New DOHSA Case from Ninth Circuit – Bowoto v. Chevron Corp

Very interesting Ninth Circuit case arising from an oil platform off the coast of Nigeria. The decision is Bowoto v. Chevron Corp, 2010 U.S. App. LEXIS 18955 and can be found here. Facts below: A number of protestors injured in a protest on an oil platform involving security forces firing on them brought suit in federal court in California. They brought a number of claims including negligence and intentional torts under California and Nigerian law. After several pretrial decisions of law by the court, a jury found for the defendant on all counts. Issues on Appeal: 1) Can the plaintiffs pursue claims under the Alien Tort Statute, 28 U.S.C. 1350? Maritime law did not provide a wrongful death remedy until Congress passed the Death on the High Seas Act (DOHSA). The Supreme Court has held that the DOHSA preempts and displaces other recovery. It also has held that survival claims brought under maritime law are preempted by DOHSA. Dooley v. Korean Air Lines Co., Ltd., 524 U.S. 116 (1998). The Ninth Circuit found that survival claims under the Alien Tort Statute were preempted by the DOHSA. 2) Does the Torture Victim Protection Act apply to Corporations? The TVPA, codified at 28 U.S.C. 1350, provides that: An individual who, under actual or apparent authority, or color of law, of any foreign nation- (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death. As the statute says individual, the court agreed with the trial court decision that the word individual connoted only natural persons and not corporations. POTENTIAL CIRCUIT SPLIT: two district courts have held otherwise. Estate of Rodriquez v. Drummond Co. Inc., 256 F. Supp. 2d 1250, 1266-67 (N.D. Ala. 2003) (finding corporations can be liable under TVPA); Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345, 1358-59 (S.D. Fla. 2003) (same). The Eleventh Circuit decision in Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) may also conflict.

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