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The Mavi Mamara, another ship in the flotilla. Credit: Adambro (CC BY-SA)

Case of the Day: Schermerhorn v. Israel

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.

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