Case of the Day: Schermerhorn v. Israel
Posted on December 7, 2017
The case of the day is Schermerhorn v. State of Israel (D.C. Cir. 2017). I covered the District Court decision in February 2017. The case is in the “Gaza flotilla lawfare” genre, along with Doğan v. Barak. David Schermerhorn and several others set sail on the Challenger I in 2010 to take part in the “Gaza Freedom Flotilla.” The purpose of the flotilla was to try to run Israel’s naval blockade of Gaza. The IDF intercepted the ship on the high seas and, according to the plaintiffs, “detained them in violation of international law.” Schermerhorn and the others sued in Washington, and Israel moved to dismiss for lack of jursidiction, citing the FSIA. Ordinarily this would be an easy case, since the tort, if there was a tort, obviously didn’t occur “in the United States” so as to bring the non-commercial tort exception into play, and Israel is not designated as a state sponsor of terrorism so as to bring the exception for state sponsors of terrorism into play. But the plaintiffs had a gotcha—the Challenger I was a US-flagged vessel, and therefore, they said, the tort took place in the United States. The District Court disagreed, dismissing the case, and Schermerhorn appealed.
The DC Circuit affirmed. The key decision is Argentina v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989), a case arising out of an attack by the Argentine navy on a Liberian-flagged ship on the high seas during the Falklands War. The plaintiffs there argued that the tort occurred in the United States because the high seas are within the admiralty jurisdiction of the United States, and because the FSIA (28 U.S.C. § 1603(c)) defines the “United States” to include “all territory and waters, continental or insular, subject to the jurisdiction of the United States.” But the Supreme Court rejected the argument, holding that the statutory definition referred to “the continental United States and those islands that are part of the United States or its possessions.” But Amerada Hess doesn’t fully answer the question, because it didn’t involve a US vessel. So the court looked to its own precedent in Persinger v. Iran, 729 F.2d 835 (D.C. Cir. 1984), which involved torts that occurred in the US Embassy in Tehran, and the court dismissed the claim on the grounds that the embassy was not “in the United States,” even though the embassy was subject to US jurisdiction; the court adopted a strictly geographical view. The plaintiffs sought to focus on the special status of ships, which are sometimes described as part of the territory of the flag state, but the court noted that this expression is “obviously figurative” and pointing to several cases that rejected the idea that a ship should be treated as part of the national territory in various legal contexts.
The court went on to deal with the easier issue: the terrorism exception simply does not apply to states not designated as state sponsors of terrorism. I’m not going to review this part of the holding in detail. It’s worth asking whether JASTA, the ill-conceived statute that abrogated foreign sovereign immunity in certain terrorism cases, over President Obama’s veto, would change the outcome. The answer is no. JASTA abrogates immunity for injuries to person or property “occurring in the United States” if cause by an act of international terrorism “in the United States,” and a tortious act of the foreign state or its officials, wherever that tortious act occurred. So the statute includes the same geographic limitations as the older provisions of the FSIA.