Death at Sea and the Right to Jury Trial

Abstract

The Seventh Circuit has recently allowed two plaintiffs to file an interlocutory appeal from a district court decision denying them a right to trial by jury of a suit based on the Death on the High Seas Act (“DOHSA”). The case arose out of a crash of a Boeing 737 Max 8 that killed all on board shortly after a faulty flight-control system overrode the pilots and attempted to turn the plane into several nosedives. This article takes issue with the district court’s decision and will contend that DOHSA should be read as preserving the deeply held tradition, dating back to the first Judiciary Act, of allowing the plaintiff a choice of common law and admiralty forums. That tradition is enshrined in the saving-to-suitors clause of the grant of admiralty jurisdiction to federal district courts. That tradition assures the plaintiff of obtaining a jury trial if desired, either in state court or in federal court if there is diversity jurisdiction.

The Supreme Court cleared up some of the uncertainty about DOHSA when it decided in 1986 that state courts had concurrent jurisdiction. Some of DOHSA’s legislative history shows that federal courts exercising jurisdiction based on diversity or removal ought to be able to try DOHSA cases. Cases allowing jury trial when DOHSA claims are joined with other claims demonstrate that nothing in DOHSA prohibits a jury trial. That recognition combined with an appreciation of the deeply held tradition, based on the saving-to-suitors clause, of allowing maritime plaintiffs a choice of forums ought to suffice to convince a skeptical court that when a case is removed to federal court or when there is diversity jurisdiction, the plaintiff ought to be allowed to demand a jury in federal court. The article will show that courts have used the saving-to-suitors clause to effectively rewrite other statutes that on their face seem to deny a right to jury trial or a choice of forums.