It used to be impossible for an American injured by a foreign government to sue that government in the US. If the American tried, the foreign government could assert “sovereign immunity” as a complete defense. But now the Foreign Sovereign Immunities Act sets forth a few important exceptions to that immunity. For example, a victim can sue the foreign government if the injury was caused by that government’s "commercial activity" in the United States.
What does this have to do with aviation law? Many foreign airlines are owned or controlled by foreign governments. Suing those airlines — even for injuries that occur on US soil — is considered the same as suing the foreign "sovereign." Until relatively recently, it wasn’t allowed at all.
Some of the foreign airlines that have asserted the sovereign immunity defense include:
- South African Airways
- Garuda Indonesia
- Air France
- Lot Polish Airlines
- Air Afrique
- Austrian Airlines
Many aviation manufacturers are also owned or controlled by foreign governments. Were it not for the "commercial activity" exception, they too would be completely immune from suit. Some of those manufacturers that have been treated as foreign sovereigns include:
- Augusta S.p.A
- Siai Marchetti
Though the "commercial activity" exception now allows the victim to sue, the foreign sovereign (or the airline or manufacturer it controls) is still entitled to special protections. First, the "sovereign" is entitled to have the case heard in a federal court, rather than a state court. Next, the case must be heard by a judge, not a jury. And finally, regardless of how bad the sovereign’s conduct, no punitive damages are allowed.