Siswanto et al v. Airbus, S.A.S. et al

Filing 158

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 12/9/2016. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Aris Siswanto, Personal Representative
of the Heirs of Mrs. Susiyah, deceased,
et al.,

Case No. 15-cv-5486

Plaintiffs,
v.

Judge John Robert Blakey

Airbus Americas, Inc. et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
This case arises from the tragic December 28, 2014 crash of AirAsia Flight
8501 during its flight from Surabaya, Indonesia to Singapore.

Plaintiffs are

personal representatives of the heirs of certain deceased passengers. On August 18,
2016, Defendant Airbus Americas, Inc. (“Airbus Americas”) moved for summary
judgment pursuant to Federal Rule of Civil Procedure 56. Def.’s Mot. Summ. J.
[125]. For the reasons explained below, Airbus Americas’ motion is granted.
I.

Background
A.

The Accident and Investigation

On December 28, 2014, AirAsia Flight 8501, operated by PT Indonesia
AirAsia (“AirAsia”), an Indonesian airline, crashed in the Java Sea while en route
from Surabaya, Indonesia to Singapore. Def.’s Local Rule 56.1 Statement of Facts
(“DSOF”) [126] ¶ 9. Virtually all of the planned flightpath for Flight 8501 was over

1

the Java Sea. Id. ¶ 10. The crash resulted in the deaths of all passengers and crew
on board. Id.
Indonesia’s National Transportation Safety Committee (the Komite Nasional
Keselamatan Transportasi) (“KNKT”) conducted the official investigation into the
crash. Id. ¶¶ 9, 11. The KNKT investigation revealed that during the flight, the
pilots experienced failure of the aircraft’s Rudder Travel Limiter Units (“RTLU’s”), 1
which caused the aircraft to depart from its normal flight path. Id. ¶ 11. While the
malfunction itself did not jeopardize the flight, the crew’s erroneous reaction to the
malfunction nonetheless caused the aircraft to enter a prolonged stall condition
from which the flight crew could not recover. Id. Tragically, the aircraft crashed
into the Java Sea, near the Indonesian island of Borneo, where it was later
recovered from the sea bed. Id. ¶ 10.
The KNKT investigation further identified deficiencies in AirAsia’s
maintenance procedures which failed to identify and remedy the malfunctioning
RTLU’s prior to the December 28, 2014 flight. Id. ¶ 12. The KNKT investigation
did not mention Airbus Americas or suggest that it played any role in the accident.
Id.
B.

The Aircraft

The accident aircraft, an Airbus A320-216, was designed, assembled, and sold
by Airbus, S.A.S. 2 DSOF [126] ¶ 13-14. Airbus, S.A.S. is an aircraft manufacturing
An aircraft’s Rudder Travel Limitation limits rudder deflection based upon speed in order to avoid
high structural loads. Moving Defs.’ Mem. Supp. Mot. Dismiss [78] Attach. 1 at 36.

1

2

“S.A.S.” is an acronym for “société par actions simplifiée,” a type of French business entity. See

2

company organized under French law with its principal place of business in
Toulouse, France. Id. ¶ 14. The design, assembly, and sale of the crashed A320-216
all occurred in Europe.

Id. Airbus, S.A.S. sold the accident aircraft in a 2005

purchase agreement to AirAsia Berhad, a Malaysian air carrier that owns AirAsia.
Id.
C.

Defendant Airbus Americas

Until 2015, Airbus Americas—whose area of operations included the United
States and countries in North and South America—served principally as a
marketing and sales subsidiary of Airbus, S.A.S. DSOF [126] ¶ 18. In 2015, the
company began performing final assembly of certain Airbus aircraft in Mobile,
Alabama. Id. Airbus Americas did not, however, design, manufacture, or assemble
the accident aircraft or any component thereof. Id. ¶ 19.
Nor did Airbus Americas market, promote, sell, lease, or finance the accident
aircraft—or any other Airbus aircraft—to AirAsia Berhad or AirAsia. Id. ¶¶ 20-21.
Similarly, the company never provided, or promised to provide, after-sale warnings,
post-sale operational support, instructions, advice, or training as to the
maintenance, repair, or operation of any Airbus aircraft (including the accident
aircraft) to AirAsia Berhad or AirAsia. Id. ¶¶ 22-25. Indeed, Airbus Americas has
never marketed, promoted, leased, financed, or sold the Airbus A320-216 model to
any customer, nor provided training for its operation. Id. ¶¶ 26-27.

Margaret Niles, Going International: Fundamentals of International Business Transactions, Foreign
Business Entities, SL037 ALI-ABA 367, 377 (2005).

3

D.

The Present Litigation

Plaintiffs, personal representatives of the heirs of certain deceased
passengers of Flight 8501, initiated this suit on June 19, 2015 and filed an amended
complaint on July 1, 2015. Compl. [1]; Am. Compl [6]. In their original and first
amended complaints, Plaintiffs named multiple defendants, including Airbus
Americas and Airbus, S.A.S. Compl. [1]; Am. Compl [6].
On August 26, 2015, Plaintiffs voluntarily dismissed Airbus Americas
without prejudice. Pls.’ Notice of Voluntary Dismissal [15]. Plaintiffs filed their
Second Amended Complaint on October 15, 2015, which continued to name Airbus,
S.A.S. as a defendant. Second Am. Compl. [32]. Specifically, Plaintiffs alleged that
Airbus, S.A.S. designed, manufactured, and sold an accident aircraft that was
“defectively and unreasonably dangerous” in myriad respects.

Id. at 3.

Additionally, Plaintiffs alleged that Airbus, S.A.S. provided AirAsia with negligent
training, after-sale warnings, instructions, and advice as to the maintenance,
repair, and operation of the accident aircraft. Id. at 6.
On December 30, 2015, the Court dismissed Plaintiffs’ claims against Airbus,
S.A.S. for lack of personal jurisdiction. Mem. Op. and Order [63]. On February 18,
2016, Plaintiffs filed their Third Amended Complaint. Third Am. Compl. [70]. This
complaint reinstated Airbus Americas as a defendant and alleged that Airbus
Americas “marketed and assisted in the promotion and sale” of the defective
accident aircraft.

Id. at 4.

Plaintiffs further alleged that Airbus Americas

negligently provided or failed to provide “after-sale warnings, instructions, and
4

advice as to the maintenance, repair, and operation” of the accident aircraft, as well
as “training to flight crews.” Id. at 7-9.
On August 18, 2016, Airbus Americas moved for summary judgment. Def.’s
Mot. Summ. J. [125]. On September 9, 2016, Plaintiffs filed their Fourth Amended
Complaint. Fourth Am. Compl. [135]. On November 3, 2016, Plaintiffs once again
moved to voluntarily dismiss Airbus Americas without prejudice. Pls.’ Mot. Dismiss
[146]. Plaintiffs withdrew their motion on November 17, 2016. Minute Entry [152];
see Merit Ins. Co. v. Leatherby Ins. Co., 581 F.2d 137, 143 (7th Cir. 1978) (“[T]he
plaintiff can only once voluntarily dismiss without prejudice.”) (citing Fed. R. Civ. P.
41(a)). The same day, however, Plaintiffs deliberately elected not respond to Airbus
Americas’ summary judgment motion. Minute Entry [152].
II.

Legal Standard
Summary judgment is appropriate if there is “no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Burnell v. Gates Rubber Co., 647 F.3d 704, 708 (7th Cir. 2011). The
party seeking summary judgment has the burden of establishing that there is no
genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
In making a summary judgment determination, the Court must “construe all
facts and reasonable inferences in favor of the non-moving party.” Goodman v.
Nat'l Sec. Agency, Inc., 621 F.3d 651, 653 (7th Cir. 2010). However, where, as here,
the non-moving party chooses not to respond to the summary judgment motion, the
5

Court treats as admitted the uncontroverted facts alleged by the moving party, so
long as they are properly supported by references to the record or other evidentiary
material. Fed. R. Civ. P. 56(e)(2); Motzny v. Hilander Food Stores, 47 F.3d 1173
(7th Cir. 1995); Stewart v. McGinnis, 5 F.3d 1031, 1034-35 (7th Cir. 1993).
Moreover, when an adverse party does not respond, summary judgment may
be entered against that party if the motion and supporting materials—including the
facts considered undisputed—show that the movant is entitled to it. Fed. R. Civ. P.
56(e)(3); Earl v. Belgado, 113 F. App’x 183, 184 (7th Cir. 2004) (citing Waldridge v.
American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)).
III.

Analysis
Because summary judgment is appropriate only if Airbus Americas is

entitled to judgment as a matter of law, the Court must first determine which
substantive law applies to the present case. See Fed. R. Civ. P. 56(a).
Plaintiffs’ operative Complaint alleges that this matter is governed by The
Multiparty, Multiforum Trial Jurisdiction Act (“MMTJA”), 28 U.S.C. § 1369.
Fourth Am. Compl. [135] 4.

Because the MMTJA is silent as to which state’s

substantive law applies to the cases brought into a single federal court, the Court
must apply “the traditional federal choice of law approach.”

Joseph M. Creed,

Choice of Law Under the Multiparty, Multiforum Trial Jurisdiction Act of 2002, 17
Regent U. L. Rev. 157 (2005). When a federal court hears a case in diversity, it
applies the choice-of-law rules of the forum state. Auto-Owners Ins. Co. v. Websolv
Computing, Inc., 580 F.3d 543, 547 (7th Cir. 2009).
6

Illinois applies the “most

significant contacts” test to choice-of-law disputes. Id. (citing Westchester Fire Ins.
Co. v. G. Heileman Brewing Co., 747 N.E.2d 955, 961 (Ill. App. Ct. 2001)). Given
the facts presented here, this would result in the application of foreign law.
In contrast, Airbus Americas asserts that Plaintiffs’ claims fall under the
Court’s admiralty jurisdiction, see 28 U.S.C. § 1333, and thus federal maritime law
governs. Def.’s Mem. Supp. Mot. Summ. J. [127] 5-10; see East River S.S. Corp. v.
Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986) (“With admiralty jurisdiction
comes the application of substantive admiralty law.”). Airbus Americas’ theory is
potentially dispositive; if this case indeed falls within the Court’s admiralty
jurisdiction, maritime law controls, “regardless of whether Plaintiff actually invoked
that jurisdiction.” Lambert v. Babcock & Wilcox, Co., 70 F. Supp. 2d 877, 883 (S.D.
Ind. 1999) (citing Carey v. Bahama Cruise Lines, 864 F.2d 201, 206 (1st Cir. 1988));
Quirin v. Lorillard Tobacco Co., 17 F. Supp. 3d 760, 766 (N.D. Ill. 2014) (stating
that the plaintiff’s invocation of diversity jurisdiction did not control whether
federal maritime law applied).
Although before “the Wright Brothers, admiralty jurisdiction necessarily was
limited to vessels on navigable waters,” the Seventh Circuit has since concluded
that, when sufficient connection to maritime activity exists, “airplanes over
navigable waters should be treated the same as vessels.” 3 Lu Junhong v. Boeing

3 Navigable waters include those “that are used, or are susceptible of being used, in their ordinary
condition, as highways for commerce, over which trade and travel are or may be conducted in the
customary modes of trade and travel on water.” Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d
379, 382 (7th Cir. 2001) (quoting The Daniel Ball, 77 U.S. 557 (1870)). Because Plaintiffs elected not
to respond to Airbus Americas’ motion, there is no dispute that the Java Sea qualifies as “navigable
water.”

7

Co., 792 F.3d 805, 815 (7th Cir. 2015). In Jerome Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527, 534 (1995), the Supreme Court held that the
presence of admiralty jurisdiction over a tort claim “turns on two factors: (1)
whether the situs of the tort was maritime; and (2) whether the tort bore a
significant relationship to traditional maritime activity; these are also referred to as
the ‘location’ and ‘nexus’ tests.” Quirin, 17 F. Supp. 3d 760, 767 (N.D. Ill. 2014).
The present case satisfies both parts of the Grubart test.

Regarding

“location,” the locality test “reflects the traditional requirement that a tort occur on
navigable waters.” Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 382 (7th
Cir. 2001). The test is satisfied where the negligence alleged “became operative
while the aircraft was on or over navigable waters.” Exec. Jet Aviation, Inc. v. City
of Cleveland, Ohio, 409 U.S. 249, 264 (1972); Lu Junhong, 792 F.3d at 816 (stating
that admiralty jurisdiction applies to accidents caused by problems in airplanes
that occur above water during trans-oceanic flight).

Here, the failure of Flight

8501’s RTLU’s, as well as the pilots’ erroneous response, occurred—i.e., became
operative—while the aircraft was over the Java Sea. DSOF [126] ¶¶ 9-10. Thus,
the “location” test is satisfied. 4

4 Despite the geographic disparity between the Java Sea and navigable waters of the United States,
“the weight of authority, including the precedent of the Supreme Court, supports the view that there
are no clear territorial limits to federal maritime tort jurisdiction.” Perforaciones Exploracion Y
Produccion v. Maritimas Mexicanas, S.A. de C.V., 356 F. App’x 675, 678-79 (5th Cir. 2009) (citing
Panama R. Co. v. Napier Shipping Co., 166 U.S. 280, 285 (1897) (“[T]he law is entirely well settled
. . . that torts originating within the waters of a foreign power may be the subject of a suit in a
domestic court.”); Malay. Int’l Shipping Corp. v. Sinochem Int’l Co., 436 F.3d 349, 355-56 (3d Cir.
2006) (finding that seizure of ship at Chinese port established admiralty jurisdiction), rev’d on other
grounds, 549 U.S. 422 (2007); Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1117-19 (5th Cir. 1995)
(finding admiralty jurisdiction over tort in territorial waters of United Arab Emirates); Exxon Corp.
v. Chick Kam Choo, 817 F.2d 307, 311 (5th Cir. 1987) (finding that “admiralty jurisdiction over

8

The “nexus” test “raises two issues.” Weaver, 255 F.3d at 382. First, the
Court must determine whether “the general character” of the activity giving rise to
the incident shows a substantial relationship “to traditional maritime activity.” Id.
(internal quotations omitted). The “ferrying of passengers from an island”—here,
Indonesia—constitutes a function “traditionally performed by waterborne vessels.”
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 219 (1986). Federal courts “have
concluded nearly unanimously that transoceanic or island voyages that, but for air
travel, would have been conducted by sea have a significant relationship to
maritime activity.” In re Air Crash at Belle Harbor, N.Y. on Nov. 12, 2001, No.
MDL 1448 (RWS), 2006 WL 1288298, at *9 (S.D.N.Y. May 9, 2006); see Miller v.
United States, 725 F.2d 1311, 1315 (11th Cir. 1984) (flight between Bahamas and
Florida), cert. denied, 469 U.S. 821 (1984); Williams v. United States, 711 F.2d 893,
896 (9th Cir. 1983) (flight from California to Hawaii); Ledoux v. Petroleum
Helicopters, Inc., 609 F.2d 824, 824 (5th Cir. 1980) (per curiam) (use of helicopters
to ferry oil rig workers to and from the mainland); Roberts v. United States, 498
F.2d 520, 524 (9th Cir. 1974) (flight from Los Angeles to Vietnam), cert. denied, 419
U.S. 1070 (1974); Ledesma v. Airbus Helicopters, Inc., No. 3:15-CV-00177, 2016 WL
5341897, at *4 (S.D. Tex. Sept. 23, 2016); Hammill v. Olympic Airways, S.A., 398 F.
Supp. 829, 834 (D.D.C. 1975) (flight across Mediterranean Sea from Greek Island of
Corfu to Athens).

claims by Singapore plaintiffs on an alleged tort in Singapore” was “undoubted”), rev’d on other
grounds, 486 U.S. 140 (1988).

9

Under the second part of the “nexus” test, the Court must determine whether
the incident involved “has a potentially disruptive effect on maritime commerce.”
Weaver, 255 F.3d at 382 (internal quotations omitted).

Courts determine the

potential impact of an incident “by examining its general character.”

Sisson v.

Ruby, 497 U.S. 358, 363 (1990) (emphasis added). That is, the jurisdictional inquiry
“does not turn on the actual effects on maritime commerce,” nor “does it turn on the
particular facts of the incident in this case.” Id. (emphasis in original). Rather, a
court “must assess the general features of the type of incident involved to determine
whether such an incident is likely to disrupt commercial activity.” Id. (emphasis
added).

Here, “an aircraft sinking in the water could create a hazard for the

navigation of commercial vessels in the vicinity.” Foremost Ins. Co. v. Richardson,
457 U.S. 668, 675 n.5 (1982); Williamson v. Petroleum Helicopters, Inc., 32 F. Supp.
2d 456, 459 (S.D. Tex. 1999) (“The sinking of an aircraft in navigable waters is well
within that class of incidents [that pose more than a fanciful risk to commercial
shipping.]”).
Because Plaintiffs’ claims fall within the Court’s admiralty jurisdiction, it
follows that maritime law governs issues of liability.

Plaintiffs’ claims against

Airbus Americas (Counts I through IV) are based upon theories of product liability
and negligence, see Fourth Am. Compl. [135] 3-10, both of which have been
recognized as part of maritime jurisprudence. See East River, 476 U.S. at 865;
Quirin v. Lorillard Tobacco Co., 17 F. Supp. 3d 760, 768 (N.D. Ill. 2014).

10

At this stage in the proceedings, however, Plaintiffs’ allegations not only lack
evidentiary support, but are directly contracted by the record. Plaintiffs originally
alleged that Airbus Americas “marketed and assisted in the promotion and sale” of
the accident aircraft. Fourth Am. Compl. [135] at 4. It is now undisputed, however,
that Airbus Americas did not market, promote, sell, lease, or finance the accident
aircraft—or any other Airbus aircraft—to AirAsia Berhad or AirAsia. DSOF [126]
¶¶ 20-21. 5 Indeed, Airbus Americas has never marketed, promoted, sold, leased, or
financed the Airbus A320-216 model to any customer. Id. ¶ 26.
Similarly, Plaintiffs originally alleged that the accident aircraft “was
defectively and unreasonably dangerous” in multiple respects. Fourth Am. Compl.
[135] 4.

It is now undisputed, however, that Airbus Americas did not design,

manufacture, or assemble the accident aircraft or any component thereof. DSOF
[126] ¶ 19.

It is further undisputed that Airbus Americas never provided or

promised to provide post-sale operational support or maintenance to AirAsia
Berhad or AirAsia. Id. ¶ 25.
Plaintiffs originally alleged that Airbus Americas provided or promised to
provide “after-sale warnings, instructions, and advice as to the maintenance, repair,
and operation of the subject model aircraft,” as well as “training to flight crews.”
Fourth Am. Compl. [135] 7. It is now undisputed that this is not the case. See
DSOF [126] ¶¶ 22-23.

5 All of Airbus Americas’ alleged facts regarding the company’s involvement with the accident
aircraft are properly supported by references to evidentiary material, specifically, the declaration of
Robert Geckle, Airbus Americas’ Vice President and General Counsel. DSOF [126] Ex. 1.

11

Given the above, Airbus Americas is entitled to summary judgment. Under
maritime law, a defendant “cannot be liable for a manufacturing defect” in a
product “that it did not make or supply.” Quirin, 17 F. Supp. 3d 768. Similarly, to
prevail in a maritime negligence action, Plaintiffs must establish “that the
defendant’s breach of duty is the but-for and proximate cause of the injury
complained of.” Id. (internal quotations omitted). Here, Plaintiffs have failed to
show that Airbus Americas either owed them a duty of care or that Airbus Americas
was the cause of their injuries.
Summary judgment “is the ‘put up or shut up’ moment in a lawsuit, when a
party must show what evidence it has that would convince a trier of fact to accept
its version of events.” Schacht v. Wisconsin Dep’t of Corr., 175 F.3d 497, 504 (7th
Cir. 1999) (quoting Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.
2003)). There is no longer a genuine dispute as to any material fact as it relates to
Airbus Americas’ potential liability, and Airbus Americas is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a).

12

IV.

Conclusion
Defendant Airbus America’s Motion for Summary Judgment [125] is granted.

The Clerk is directed to enter Rule 58 judgment in favor of Airbus Americas and
against Plaintiffs.
Date: December 9, 2016
ENTERED:

____________________________
John Robert Blakey
United States District Judge

13