Brief for the Respondents in Opposition — Eastern Air Lines, Inc. v. Scott

LIBRARY OP rene pa

| 40PREME CouRT.1h FILED |

ine | NOV 11999 *

JOHN F; bans. lie

nee masibichh Court of the United States |

OCTOBER — 1968 ©

NO. 540.

EASTERN AIR LINES, INC.,

; ‘Petitioner,

vi: ;

DONALD A. SCOTT, Sititeliinaioe of the Estate of —

THOMAS L. MOODY,

"Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR ia IN OPPOSITION

Joun R. McCowwet

' Grecory M. Harvey

Moncay, Lewis & Bocxuus,. ‘pabeisione Pee 109

Of Counsel. — Attorneys for Respondent |

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PRESS OF ALLEN, LANE @ SCOTT, PHILADELPHIA

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“TABLE OF CONTENTS -

1. Should recovery for eaeer of contract, in a”

cause of action created by Pennsylvania law: for

oa damages resulting from the death .

of pléintiff’s decedent, be denied solely because

the breach itivolved the crash of defendant’s land-

based aircraft in navigable waters and not on

. land?

2. In choosing between conflicting state law to —

govern the measure of damages for a maritime

tort resulting in death, should a court consider

the relative interests of the jurisdictions having

contacts with the controversy and the parties, or

must. the court apply only the substantive law of

the place.of the fatal impact? &

COUNTER-STATEMENT OF THE CASE vorerey

°

A. The facts concerning the instant de-

| + sd be we oak oon te cevoeenureess« taeds

B. The significance of the prier litiga- }

‘tion | Bete e ee ence cere eee ee eeececees eee ee -

C. The — of the Court of =

peals ..... bbedbuehssnes obiweates che ies we

o

L THE DECISION BELOW IS ‘con

RECT : ih Vee ek elds bt da eta ae wey

. PAGE

TABLE OF ? AUTHORITIES CITED D ... Resi

OPINIONS BELOW :....... eibascesveliehuaeoyiee 2

-SORISDICTION (103 20.25 f.ecpecceeee aes a

* COUNTER-STATEMENT OF P QUESTIONS he,

“|. PRESENTED |. 02.2002 0.0 <....0005... 5 Cc aone 2

ty PAGE

A. Recognition in a death case of a

state-created claim ‘for -breagh of

contract is consistent with the gen-

eral maritime law when both the =r

contract and the activities of the.

parties are nonmaritime and the

. Only maritime interest arises from

the fortuitous location of the place

of impact ........ phaeeTeTa hehe obutesccnce -

| q

B. Selection between conflicting state

law to govern a maritime tort re-.

‘sulting in death must be made by

evaluation of all points of contact

. With the parties and the transaction,

not by a mechanical rule of choosing

' the law of the place of impact ....,.. inane 14

II. THERE IS NO SUBSTANTIAL CON-

FLICT OF DECISIONS ............... veeees 18

The conflict between the decision

_ below and certain intermediate New

York decisions will shortly be re-

viewed, and most probably resolved,

by the New York Court of ee 18

CONCLUSION ...... eeiaeeaas uheewtissisunvecete Ae

TABLE OF AUTHORITIES

Cases: |

Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d

743, 191 N.E.2d 279 (1963) ............... Nineees 19

Barrack v. Van Dusen, 309 F.2d 953 (3d Cir. 1962), -

_rev’d and remanded, 376 U.S. 612 ............... a)

J. B. Effenson Co. v. Three Bays Corp., 238 F.2d

611 (5th Cir. 1956) ............. sheds auntaane a

— ~~ 4 Po 8 Om wo i Se EPO OIE SS * Oy Mee

~ SPLIT ne ERI te ee moe vis, ~* stihl hianirtarich eae ite, Aide wer: :

Harris v. United Air Lines, Inc., 30 App. Div. 2d 37, .

290 N.Y.S.2d 757 (1968) °...........0:..05...... 18

Huddleston v. Dwyer, 322 U.S. 282 .:.../...... . 10

Hudson v. Transocean Air Lines, 272 F.2d 397 (9th

Oe |) a ee ccs ae oe oe

Jansson v: Swedish American Line, 185 F.2d 212

tet acta MOREE TT Ee 12

Larios v. Victory Carriers, Inc., 316 F.2d 63 (2d Cir.

Se ee eee ee ee ee

Lauritzen v. Larsen, 345 U.S, 571 ........... 6,7, 14, 19

Macey v. Rozbicki, 18 N.Y.2d 289, 274 N.Y.S.2d 591,

221 N.E.2d 380 (1966) .................... rr 19.,

Massaro v. United States Lines Co., 307 F.2d 299

eindtggoath cacten, ROE TT Ty 11

SO TI ov iricinvcccs cece. 1S

PE PT OIE ne Wi bvsesaesas occgenti cree . 9 -

Patton-Tully Transp. Co. v. Turner, 269 Fed. 334 -

COPE SE BOD occcncscucscvncnmpenvencecccce:. 17

de Grace Steam Towboat Co., 23 How. 209 ..... . “dl

Pope.& Talbot, Inc. v. Hawn, 346 U.S. 406 ......... 11

Popkin v. Eastern Air Lines, Inc., 204 F. Supp. 426

(E.D. Pa. 1962), vacated sub nom. Barrack ¥. Van

Dusen, 309 F.2d 953 (3d Cir. 1962), rev’d and re-....

manded, 376 U.S. 612 .... isin bene Piesioustbace 5

Richards v. United States, 369 U.S.1............ 16

Romero v. International Terminal purrs Co.,

ataek Gebewevectocesegs sewers 6, 8, 9, 14

Roth v. Cox, 210 F.2d 76 (5th Cir. 1954), aff'd, 348 |

DERG ch ach neededecs ainteascewlesasee 11

Southern Pacifiedgo. v. Jensen, 244 U.S. 205 ....... 13

Symonette Shipyards, ‘Ltd. v. Clark, 365 F.2d 464

(5th Cir. 1966), cert. deniéd, 387 U.S. 908 ....... 16

_ |The Tungus v. Skovgaard, 358 U.S. 588 ........... 11

Thomas v. United Air Lines, Inc., 30 App. Div. 2d

"82, 290 N.Y.S.2d 753 (1968) ..............06.00- 18

pson Towing & Wrecking Ass’n v. McGregor,

207 Fed. 209 (6th Cir. 1913) ...... iniireene so 17

~ Van Dusen v. Barrack, 376 U.S. 612 ..... PPP LENG 5

Weinstein v. Eastern Airlines, Inc., 203 F. Supp. 430 —

(E.D. Pa. 1962), modified, 316 F.2d 758 (3d -Cir.

. 1963), cert. denied, 375 U.S. 940 :............... 4,5

Whorton v. T:A. Loving & Co., 344 F.2d 739 (4th

le MED vitenveeveres eoervevorpevrccccccacees 10

Miscellaneous:

Brief for Appellees, p. 13, Weinstein v. Eastern Air-

lines, Inc., 316 F.2d 758 (3d Cir. 1963)...:....... 4

Cheatham, “Comments on Babcock v. Jackson, a Re-

cent Development in Conflict of Laws,” 63 Cl. .-

sec ccovccencsecvencess 19

Goodrich, Conflict of Laws, § 92 at 166, §93 at 168.

n.16 (4th ed. Scoles 1964) ...............0e5000. 15

160 N.Y.L.J., issue No. 3 (July 3, 1968), pp. 2, 11 19

Restatement. (Second), Conflict of. Laws § 379, Re-

porter’s Note at 15-16 (Tent. Draft No. 9, 1964).. 15

7 ae

eee

Supreme Court of the United States

OCTOBER TERM, 1968 ?

_ NO. 540

EASTERN AIR LINES, INC.,

Petitioner

v.

DONALD A. SCOTT, Administrator of the Estate of

THOMAS L. MOODY,

Respondent

On Pertrrion ror A Writ or CERTIORARI

TO THE UNITED States Court or APPEALS

FOR THE T'urep Circurr

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW °

The opinion of the three-judge panel of the Court of,

Appeals reversing the judgment of the. District Court is

printed as Appendix A to the petition and reported. in

399 F.2d at 16. The opinions on rehearing of the Court. of..

Appeals en banc affirming the judgment of the District

Court are printed as Appendix B to the petition and re-

ported in 399 F.2d at 18.

2 Counter-Statement of the Case.

eae JURISDICTION

The judgment of the Court of Appeals affirming the

judgment of the District Court was filed on June 28, 1968,

and the petition for'a writ of certiorari was filed on Sep-

tember 18, 1968, The jurisdiction of this Court is invoked

under 28 U. S.C. § 1254(1).

COUNTER. STATEMEN T OF THE QUESTIONS —

PRESENTED.

1. Should recovery for breach of caliviant, in a cause

of action created by Pennsylvania law for compensatory

damages resulting from the death of plaintiff’s decedent, .

be denied solely because the breach involved the crash

of defendant’s land-based aircraft i in navigable wanes and

not on land?

2. In choosing between conflicting state law to govern

the measure of damages for a maritime tort résulting in

death, should a court consider the relative interests of the

jurisdictions having contacts with the controversy and the

of | the place of the fatal impact?

COUNTER STATEMENT. OF THE CASE

“The instant petition for certiorari is the most recent

.in the many attempts by the petitioner and defendant

below, Eastern Air Lines, Inc: (herein sometimes. referred

to as “Eastern”), to avoid judgments for compensatory

damages under Pennsylvania law for the deaths of twenty-

two Pennsylvania residents who were killed, as the jury

found, by the negligence of Eastern in an airplane crash

on October 4, 1960...

The instant case was selected by the petitioner for an

expedited appeal to détermine the law applicable to the

measure .of damages in the twenty-two companion cases.

: .

a a ar RAAT SPR tir Se i ne

ee

Counter-Statement of the Case. . 3

A. The facts concerning the instant decedent.

The Agreed Statement (Appendix D to the Petition,

_ pp. 44a-49a) establishes the following:

Plaintiff’s decedent, Thomas L. Moody, was a resident

‘of: Philadelphia, Pennsylvania, employed by Sears Roe-

buck &.Co. with his office in Philadelphia. .

The round-trip ticket on which Mr. Moody was travel-.

ing at the time of his death was issued in Philadelphia for .

a trip from Philadelphia to Boston, Massachusetts, on

October 3, 1960 on Northeast Airlines and for a return

trip from. Boston to Philadelphia on ae 4, 1960 on

Eastern Air Lines Flight 375.

On October 4, 1960, Eastern Flight 375, carrying Mr.

- Moody ‘on the ticket which he had been issued in Phila-

deiphia, took off from Logan International Airport, Bos-

ton, with its first stop scheduled for Philadelphia. When

in the air, the plane struck a flock of birds while still over

land, and then crashed in navigable waters of Boston

Harbor. Mr. Moody died instantaneously.

Decedent. was unmarried and without children and

“was survived ‘by a brother. His estate is being adminis-

tered by the plaintiff, 'a resident of Philadelphia, under’

the Jurisdiction of the Orphans’ Court. of eee”

County.

At his death, decedent had a lease on his apartment

in Philadelphia and owned personal property situated in

Pennsylvania. The debts of his estate were all owing to

Pennsylvania creditors and substantial Pennsylvania in-

heritance taxes have been levied on the estate. '

Following. a consolidated trial on liability of the in-

stant case and three others, the jury returned. a verdict

on liability in favor of plaintiff and against Eastern. That

verdict is not disputed in this appeal.:

Subsequently, the jury, after having been charged in’

accordance with Pennsylvania law, rendered ‘a verdict un-

der the Pennsylvania Wrongfu! Death Act for $2,500 as

the reasonable funeral and administration expenses in-.

eee Counter-Statement of the Case.

curred by decedent’s estate and $45,000 under the Penn-

_ sylvania Survival Act as the expectable value of his

estate at the end of a normal lifetime. The details of the

charge and. the amount of the verdict are not disputed

here. Petitioner seeks review only of the question of what

. law governs the measure of damages recoverable by the

. plaintiff. It is agreed that petitioner sufficiently preserved

that issue by appropriate exceptions to the charge. .

B. The significance of the prior litigation.

___In Wemstein v. Eastern Airlines, Inc., 203 F.Supp.’ °

‘~ 430 (ELD. Pa. 1962), modified, 316 F.2d 758 (3d Cir. 1963),

cert. demed, 375 U.S. 940, the District Court accepted the

argument of defendant Eastern that the location of the

instant crash in navigable waters was not ‘sufficient to

create jurisdiction in admiralty of libels alleging claims in

both tort and contract filed on behalf of seven of the

twenty-two Pennsyvania residents who died in the crash.

In the course of the appeal from that decision, defendant.

Eastern d6ntinued to argue that there was: no admiralty

jurisdiction and that, with respect to the contract claims,

there was “no maritime contract involved between any of

the libellants’ decedents and any of the respondents.”

Brief for Appellees, p. 13, Weinstein v. Eastern Airlines,

Inc., 316 F.2d 758 (3d Cir. 1963). The Court of Appeals

rejected the defendants’ argument against admiralty

jurisdiction of the claims sounding in tort, holding that

a maritime location alone was sufficient, 316 F.2d at 766,

‘but sustained the position of defendant Eastern with re-

spect to the claims sounding in contract. In affirming the

dismissal of the contract claims as being outside the ad-’

miralty jurisdiction, the court stated:

“It is clear, we believe, that a contract or warranty —

relating to the airframe or. power plant of a land-

hased: aircraft and a contract of carriage by air be-

tween two cities on the United States mainland are

not maritime in substunce, nor are such contracts and -

| the parties involved in the Boston crash litigation had.

Counter-Statement of the Case. oe

warranties made maritime by virtue of the fact that

the aircraft in question flew. briefly over navigable

waters en route from Boston to Philadelphia.” 316

F.2d at.766. (Emphasis added:) *

~ This Court denied certiorari. 375 U.S. 940.

The defendants also sought to transfer all pending

. ditigation to the District of Massachusetts for trial. The

District Court granted a motion to transfer, Popkin. v.

Eastern Air Lines, Inc., 204 F. Supp. 426 (E.D. Pa. 1962),

but.that order was later vacated, Barrack v. Van Dusen,

309 F.2d 953 (3d Cir. 1962), cert. granted, 372 U.S. 964..:

This Court recognized that the real basis of the litigation

involving transfer lay in the substantial difference be-

ween the Pennsylvania and Massachusetts statutes with

“respect to the measure. of damages allowed for negligence

resulting in death. Van Dusen v. Barrack, 376 U.S. 612,

626-627. Massachusetts awards only punitive damages for.

wrongful death, limited at the timé of the instant crash:

to-a maximum.of $20,000 and assessed with reference to ~

the degree of culpability of the tort-feasor, rather than by »

‘the amount of damages suffered by the plaintiffs. 376 U.S.

at 627. Pennsylvania awards damages on a compensatory

principle and without an arbitrary limit. 376_U.S. at 627. - .

Defendant Eastern argued in this Court in the Bar-

rack case that the difference between the substantive law ©

of the two states was “irrelevant ... because... Pennsyl-

vania state courts, applying their own choice of law rules,

would require that the Massachusetts Death Act be applied

in its entirety ... .” 376-U:S. at 628. This Court reversed

the Court of Appeals and remanded for further considera-

tion of the effect on the plaintiffs’ substantive rights of

a transfer to the District of Massachusetts in view of the

uncertainty concerning the Pennsylvania choice of law

rule applicable to the eases involving Pennsylvania de-

cedents. 376 U.S. at 64546. ; —

. During the course of the litigation involving transfer,

> .

6° Counter-Statement of the Case.

been engaged in a test.of the Pennsylvania choice of law

Tule in Griffith v. United Air Lines, Inc.,.416 Pa. 1, 203

A.2d 796 (1964). Counsel for both the. instant parties

participated on both sides of that appeal as amici curiae

and that appeal itself was a test case to determine the

law to govern the Pennsylvania cases arising from the

‘Boston ‘crash, See 416 Pa. at 6 n.2,.203 A.2d at 798 n.2.

The Supreme Court of Pennsylvania in the Griffith

decision held, first, that under Pennsylvania law an action

could properly be commenced “in assumpsit” @hder the

Pennsylvania Survival Act for damages resulting from

the death of a passenger in the crash of a commereial

aireraft.-The nature of the action is “breach of contract

of nonnegligent carriage” and liability may be imposed

only for injuries “resulting. from negligent conduct.” 416

Pa, at 8, 203 A.2d at 799.

Second, the Perinsylvania. court overruled the lee loci .

delicti doctrine and adopted a choice of law rule which

_. “gives to the place ‘having the most interest in the prob-

lem’ paramount control over the legal i issues . . .” 416 Pa.

at 22, 203 ‘A.2d at 806.

? Applying that choice of law rule aieicibienin in the

_ Griffith decision to the facts of the instant case, the court

below held in the instant case that the Pennsylvania

courts would conclude that Massachusetts,.the place of

_ the impact, has only “nominal contacts with the trans-

action” (A. 149, 399 F.2d at 22) and that the Pennsylvania

- measure of damages should govern because Pennsylvania

“has demonstrated, by reason of. its policies and their

connection and relevance to the matter in. dispute, a prior--

ity of interest in the application of its rule of law” (A.

14a; 399 F.2d at 22).

- Prior to the decision in: the Griffith case, the defend- ;

‘ants below, including the petitioner, .had consistently:

argued that the instant case. was a diversity action con-

‘trolled by Pennsylvania choice of law rules, consistent

with Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487.

: PAREN gE . no apr . .

See eee —_— ‘Gos nis Ww ¥ staal: RRO LER Sept SEE E LONE. UNC TOA AB TORN RESID SI My

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_ Counter-Statement of the Case. ee

After the decision in Griffith, the defendants shifted their —

‘position and relied instead on’ the fact that the plane had ,

‘crashed in navigable waters. ;

C. The opinions of the Court of nk. |

The three-judge panel of the- Court of heise en-

tire.y disregarded. plaintiff’s cause of action sounding

in contract under Pennsylvania law and considered thé —

case as one involving only a maritime tort resulting in

death. The panel ‘stated that the federal courts have

adhered to the simple rule of borrowing in. their entirety

the wrongful death and survival rules of the state within

whose boundaries the maritime tort occurred” (A.,4a,

399 F.2d at 18), and applied that “simple rule” to hold

that plaintiff’s damages were measured reason by

Massachusetts law.

On rehearing, the Court of Appeals:en banc in an

‘opinion by Judge Staley held that the plaintiff had stated

and proven a claim under Pennsylvania law for breach of

“eontract “of nonnegligent carriage betweeu plaintiff’s de-

cedent and Eastern, that the contract involved was non-

maritime in nature, as previously held in the Weinstein

ease (A. 9a-12a, 399 F.2d at 20-22), and that the Penn-

_sylvania courts would apply in this case the measure of

damages provided by Pennsylvania law, since - ‘Pennsyl-

' vania is the jurisdiction having the most significant in-

terest in that issue (A. 13a-15a, 399 F.2d at 22-23).

With respect to the maritime tort aspect of plaintiff’s

case, the opinion held that “separate and independent” of

the “contractual diversity claims,” the District Court eor-

rectly’ applied Pennsylvania law to the tort’ claims (A.

19a, 399 ¥.2d at 25). The Court of Appeals noted that in

no previous case had the court considered the question of

whether any state law. other than that of the place.of the

injury might govern the rights and duties of the parties,

and that the guides for the disposition ‘of that question

should be found in the decisions in Lauritzen Vv. Larsen,

we

‘ & Counter-Statement of the Case.

- 345 U.S. 571, ond Roineré¥ International Terminal Op- «

erating Co.,-358 US. 354.(A. 20a-25a, 399 F.2d at 26-28).

Applying the choice of law principles found in those cases,

the court concluded that the place of ¢he wrongful impact

was “quite adventitious” and that the most significant re-

lations and contacts were with Pennsylvania rather than |

with Massachusetts (A \25a, 399 F.2d at 28). The Court

) noted further that Lauritzen and Romero “were in the

vanguard of*many recent enlightened decisions attacking |

the usefulness. and justice of rigid adherence to the strict, y

lex Avoué delicti rule” (A. 25a-27a, 399 F.2d-at 28-29). .

&J udge Freedman, in a concurring opinion, joined | in

the affirmance of the District Court, stating that under

either ‘the Pennsylvania or the maritime choice of law

rules, “the award of. damages was properly made under

Pennsylvania’ s wrongful death’ and survival” statutes”

(A. 29a, 399 F.2d-a€ 30). |

Judge, Seitz sonatas’ in holding that the plaintiff

might elect to’ pursue hic rights, under Pennsylvania ‘law,

but expressly reserved decision on what state. law would |

be “borrowed” in ‘the event that maritime law, “was

deemed controlling” (A. 33a, 399.F.2d at 32).

Three judges, two of whom had been: part of the a

‘original three-judge panel, adhered to the position that

the case involved solely a maritime tort to be decided by

the simple rule of borrowing. the substantive law of the -

place of the —_ impact (A. aSa-A0e, 399 F. 2d “at

32-35).

J

omer

|

Reasons for Refusing the Writ. — | 3

REASONS FOR REFUSING. THE WRIT

7 1 ‘THE DECISION BELOW. IS CORRECT.

In” the court below, the petitioner argued. that the

- modern choice of law rule articulated i in Lauritzen v. Lar-

sen, 345.U.S. oft, and Griffith v. United Air Lines, Ince.,

416 Pa. 1, 203 A 2d 796 (1964), would not result in the

selection of. Pennsylvania law ‘to govern the measure of.

damages ‘recoverable by the respondent, even if that rule

was applicable to the instant case. Petitioner has now

_ abandoned that argument and impliedly concedes that if,

‘the modern choice of law. rule does govern the selection

_ of the substantive state law of damages in the instant

case,’ then that rule was correctly applied to the particular

facts by the court below. 7

Petitioner also concedes that if the court telow was’

correct in giving effect to respondent’s state-created cause

. of action for breach of contract, then the choice of law-

rule to govern that state-created claim i is the: inodern rule

declared in the:Griffith decision. .

The issues on.which petitioner seeks review; therefore,

are (1) whether the court below was éorrect in giving

effect to respondent’s state-created claim, and (2) whether

the choice: of law rule applicable: to. the maritime. tort

ae claim is the modern rule of Lauritzen v. Larsen and

_ Romero v. International Terminal Operating Co., 358 U. S.

(354, or the traditional rule of lex loci delicti.

A. Recognition in a. death case of a sain distal Gane :

for breach of contract is consistent with the general —

maritime law when’ both the contract and the activities

' Of the parties are nonmaritime and the only maritime

interest arises from the fortuitous location of vag place.

‘of ——

The majority épinion below held ‘that the as

had adequately pleaded and proved a cause of action

10° Reasons for Refusing ‘the Writ.

under Pennsylvania law for breach of contract of non-

negligent carriage, as recognized in Griffith v. United Air

Innes, Inc., 416 Pa. 1, 203 A.2d 796 (1964). The opinion’

states that the plaintiff “did all that was required of

“He alleged the ‘breach of contract, he introduced

into evidence the airplane ticket purchased by dece-

dent in Philadelphia, and he proved that the negligent

breach of Eastern’s implied promise constituted a

proxjmate cause of decedent’s death. Nothing else

need have been done.” (A, lla, 399 F.2d at 21).

The majority below further held that plaintiff’s state-

created claim was effective under both the Wrongful

Death: Act and the Survival Act of Pennsylvania (A. 15a-

18a, 399 F.2d at 23-24).° ee

Petitioner disagrees with the conclusion of the major-

ity that plaintiff proved a contractual cause of action and

argues to the contrary that “nothing in the Agreed State-

ment” can support the “finding that the case was tried or

_ submitted to the jury on a theory of breach of contract”

(Pet. 9). But. review should be denied on this issue ‘be-

- cause petitioner’s basic disagreement with the majority

below involves nothing more than the quantum of. evidence

necessary to prove plaintiff’s cause of action under Penn-

sylvania-law. As stated in Huddleston v. Dwyer, 322 U.S.

232, 237, “ordinarily we accept and therefore do not re-

view, save in exceptional cases, the considered determina-

tion of questions of state law by the intermediate federal -

appellate courts.”. | cae

Nor is review justified on the-argument made by the

dissent below (A.-34a-36a, 399 F.2d at 32-33). that no

state-related claim for breach of contract should be per-

mitted in any case which also involves a maritime tort. -

The majority opinion relies upon the holding in

Weinstein v. Eastern Airlines, Inc., 316 F.2d 758, 766

, an

Reasons for Refusing the Writ. ae

(3d Cir. 1963), cert. denied, 375-U.S. 940. The instant

petitioner there argued, and the Court of Appeals held,

that the contract claims asserted on behalf of other pas-

sengers killed.in the instant crash were nonmaritime in

nature. This Court has long held that admiralty jurisdic-

tion “in matters of contract, depends upon the nature and

character of the contract ....” Philadelphia, W. & B.R.R.

.v. Philadelphia & Havré de Grace Steam Towboat Co.,

23 How. 209; 215. Under that test, the Court of Appeals

correctly “held, both in 1963 in the Weinstein case and in

the instant case, that “a contract of carriage by air between

two cities on the United States mainland [is] not mari-

time in substance, nor are such contracts-.... made mari-

time by virtue of the fact that the aircraft in question

flew briefly over navigable waters en route from’ Boston

to Philadelphia.” 316 F.2d at 166, quoted, 399 F.2d at .

21-22.

Neither the petitioner nor ‘jn dissent have shown any

maritime or federal interest which is infringed by: recog-

nition of plaintiff’s nonmaritime and state-created contract

claim. The petition asserts that the “decision of the court —

below stands in bold conflict” with eight prior decisions

(Pet. 9-10), but each of those decisions involved an’ activ-

ity which was entirely maritime in. nature, i.e., The

Tungugyv. Skovgaard, 358 U.S. 588 (fatal injury aboard

ship while repairing pump used to discharge~ cargo);

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (injury to

carpenter aboard ship in navigable waters while facilitat-

ing loading of cargo for “safer transportation . . . by

water”); Whorton’v. T.-A. Loving & Co., 344 F.2d 739

(4th Cir. 1965) (negligent failure to remove obstruction

from navigable waterway resulting in sinking of boat); |

Larws v. Victory Carriers, Inc., 316 F.2d 63. (2d Cir. -

1963) (seaman’s claim for injury resulting from collision -

on high seas); J. B. Effenson Co. v. Three Bays Corp.,

238 F.2d 611 (5th Cir. 1956) (maritime charter) ;. Roth v.

Cox, 210 F.2d 76 (5th Cir. 1954), aff'd, 348 US. 207

—

12 - Reasons for Refusing: the Writ.

(Jones Act claim for death of seaman on high seas);.

Jansson v. Swedish Americam Line, 185 F.2d 212 (1st

Cir. 1950) (injury to passenger from fall aboar§émotor

vessel; interpretation -of maritime contract of carriage

on motor vessel between Sweden and United States);

Massaro v. United State Lines Co., 307 F.2d 299 (3d Cir.

1962) (injury to longshoreman while aboard ship to dis-

charge cargo).

Since the activity involved in each of those cases was

held to be entirely’ maritime in nature, maritime law was

properly applied to govern all rights and obligations of

the ies.

The instant case requires a different result because

the activity involved is nonmaritime, consisting of the

carriage of passengers by air in a land-based aircraft

- between two points on the mainland of the United States,

. and a maritime interest is created with respect-.to the tort

claims only because of the fortuitous location of the place

of impact. If that maritime interest is recognized with

respect to all tort claims arising from the crash, as in

the instant case, no valid maritime or federal interest is

infringed by also giving effect to the legitimate and sub-

stantial interest of Pennsylvania in recognizing and enfore-

ing & cause of action for breach Of contract by Pennsyl-

vania domiciliaries who purchase tickets in Pennsylvania

for commercial air service. Pennsylvania’s interest in

assuring adequate compensation under Pennsylvania _ ;

-~standards for the breach of such contracts is the same

in cases involving deaths on arenes and deaths on navigable

waters.

Since the state-created cause of action = Seneey by

the majority below is only supplemental to, and not ex-

clusive of, the maritime cause of action, the instant

decision is well within the limits of the decisions which

have determined the extent to which nonmaritime and

state-created causes of action can not only supplement,

but also entirely abrogate, maritime causes of action

a aed nai prin Se ee PEP EIR er As, ow

Reasons for Refusing the Writ. . - 18

-resulting from crashes of aircraft into navigable waters.

Two such decisions have held that state workmen’s com-

pensation acts exclude a maritime reeovery for the deaths

of airline personnel resulting from crashes into navigable -

waters. In King v. Pan American World Airways,.166 F.

Supp. 136 (N.D. Cal. 1958), aff'd, 270 F.2d 355 (9th Cir.

1959), cert. denied, 362 U.S. 928, recovery was denied un-

der the Death on the High Seas Act for’the death of an

airline employee who was killed in the crash of an airliner

on the high seas in a flight between the United States and

Hawaii;-on the ground that the California ‘Workman’s °

Compensation Act afforded the exclusive remedy against

the decedent’s employer. In reaching this result, both

courts considered first whether recognition of the Work-

man’s Compensation Act in such ‘a’ ease would cause -

“material prejudice to the characteristic features of the -

- general maritime law,” within the meaning of Southern ©

Pacific Co. v. Jensen, 244 U.S. 205, 216, and similar cases.

Both courts held that such “material prejudice” would not

result because the decedent “was employed in a nonmari-

time industry and performed no maritime work,” 270 .

F.2d at 362; 166 F. Supp. at 139. Both courts also held

that Congress did not intend to abrogate workman’s

compensation acts through the enactment of the Death

on the High Seas Act. The King case was followed in

Hudson v. Transocean Air Lines, 272 F.2d 397 (9th Cir.

1959).

The reasoning of the King and Hudson decisions

applies a fortiori to the instant case.. Neither the petition-

er nor the plaintiff’s decedent was engaged in any mari-

time activity at the’time of the erash. Only the fortuitous

location of that crash creates any maritime interest: Rec-

ognition under such circumstances of a state-created |

cause of action, which is not exclusive of martime rights

' and remedies, does not work any “material prejudice to

‘the characteristic features of the. general maritime law.”

“14 . Reasons for Refuoeg the Writ.

B. Selection between conflicting state law to govern a

maritime tort resulting in death must be made by

evaluation of all points of contact with the parties

and the transaction, not by a mechanical rule of choos-

ing the law of the place of impact. ;

_ The decision of the court below to select the sub-

stantive law applicable to the damages-issue by evaluation

of the rélative interests of the jurisdictions having con-

tacts with the controversy and the parties was entirely

consistent with the decisions of this Court. :

In Lauritzen v. Larsen, 345 U.S. 571 (1953), a suit

_ for damages under the Jones Act, this Court, expressly

rejected the law of the place of the injury, Cuba, stating

that “the test of location of the wrongful act or omission,

however sufficient for torts ashore, is of limited applica-

tion to shipboard torts .. .” 345 U.S. at 583. The Court

then considered at length seven “factors” or “points of

contact” which should be used to determine the choice of

law to govern a tort elaim, “particularly a maritime tort

claim . . .” 345 at 583, and held that Danish law: governed.

In Romero v. International Terminal Operating Co.,

358 U.S. 354 (1959), a seaman on a Spanish vessel was

injured while the vessel was temporarily berthed in New

York. Once again, this Court rejected the rule of the place

of the wrongful act or omission and held that Spanish .

law govérned the seaman’s claims. The Court stated:

eas 7 | :

“Discussing the significance of the place of the wrong-

ful act, we pointed out in Lauritzen that ‘[t]he test

of location of the wrongful act or omission, however ©

sufficient for torts ashore, is of limited application to

shipboard torts .. .’” 358 U.S. at 383-84.

This Court also held in Romero that the rule an.

nounced in Lauritzen was applicable to maritime cases

generally: | . =

SARE RAS (HO CPT EO te rE EY f

Reasons for | Refusing the Writ. | 15

“The broad principles of choice of law and the-ap-

plicable criteria of ‘selection set forth in Laurtizen .

were intended to,guide courts in the applicatio of

maritime law generally.” ” 358 U. U.S. at 382.

Commentators have regarded these two decisions. as -

being among the leading cases in the development of the

new conflict of laws approach. The Restatement (Second),

Conflict of Laws, cites the Lauritzen and:Romero decisions

as examples of the new rule that “rights and liabilities in

tort are determined -by the local law of the state which

has the most significant relationship with the occurrence

and with the parties.” Restatement (Second), Conflict of

Laws § 379, Reporter’s Note at 15-16 (Tent: Draft No. 9,

1964).. —

The fourth edition of Goodrich, Conflict of Laws,

relies repeatedly on the Lauritzen decision as a leading ©

ease in the formulation of the Tule “that the law by which

the forum is guided in determining the issues in tort cases .

' is that of the state whichis most significantly ‘related to

the issue . . .” Goodrich, Conflict of Laws, § 92 at 166; see

also $ 93 at 168 n.16 (4th ed. Secoles 1964).

Like the court below, the Court of Appeals for the

Fourth Circuit has recegnized in a maritime case that the

rule of Lauritzen and Romero should apply also to domes-

tic conflict of laws questions. In: McClure v. United States

Tines Co., 368 F.2d 197 (4th Cir. 1966), the court stated:

“Romero’s approach, however, is not limited to a

‘deferential concern for ‘the interests of foreign

powers. The same considerations of paramount in-

- terests have overturned established principles for the

choice of domestic law. The old dialogue that attri- .

' buted governance to the laws of the place of the ©

- wrong has given way to a new concept of assessment

of the relative interests of jurisdictions having con-

tacts with the controversy and the parties. Lauritzen

and Romero were forerunners of a general reapprais-

ae ESE tay : r °— Ss Sa ee ee

16 | Reasons for Refusing the Writ.

al and revision of the cheice-of law rules.” 368 ‘F.2d

at 201. (Footnotes omitted.) | 7

"A similar’ decision, applying the seven “factors” or

“points of contact” of the Lauritzen decision to a wrong-

ful death case, is Symonette Shipyards, Ltd. v. Clark, 365.

F.2d 464 (5th Cir. 1966), cert. denied, 387 U.S. 908, in

which the court held that “the most significant choice of

- law factor” under the facts of that case was the nation-

ality of the injured and deceased seamen and therefore '

applied American law, although the injury had occurred

- on the high seas on a ship registered in the Bahamas

and actually owned by a citizen of that country.

This Court’s endorsement of the use of an interests

and contacts choice of law rule has not been limited to

maritime cases. In Richards v. United States, 369 U.S. 1-

(1962), involving actions for deaths in an airplane crash

in Missouri allegedly caused by negligent acts. occurring

in Oklahoma, the Court commented favorably on the tend-

_ ency of some states to depart from the rule which places

sole reliance on the place of the injury “in order to take

into account the interests of the State having significant

contact with the parties to the litigation.” 369 U.S. at 12.

In that case the Court adopted an interpretation of the

Federal Tort Claims Act which would give effect to the

state choice of law rules based upon interests and contacts.

The Court. rejected the argument that the “law of the

place,” as used in the Act, referred solely to the internal

law of the state in which the negligence occurred, and held

instead that the “law of the place” included also the

choice of law rules of that state. This interpretation, the

Court stated, was appropriate because:

“Should: the States continue this rejection of the

older rule in those situations where its application

might appear inappropriate or inequitable, the flexi-

bility inherent in our interpretation will also be more -

in step with that judicial approach, as well as with

, id

Reasons for Refusing the Writ. 17

-the character of the legislation and with the purpose -

of the Act considered as.a whole.” 369 U.S. at 13.

Petitioner dismisses the Lauritzen’and Romero cases

as not involving a conflict between the laws of two states, ©

but in all but two of the cases cited by petitioner (Pet.

14), the law of the place of the wrorlg was the only state ~

.law relied upon by the parties and hence the. only law

applied by the court. With the same two exceptions, none

of those cases involved a.conflict between the laws of twe

‘States because only one state had significant contact with

the parties and the transaction,

- In the only cases which did involve such a conflict,

the Court of “Appeals for the Sixth Circuit rejected the

law of the place of the injury and selected instead the law

of the place of registry of. the vessel. Thompson Towing

& Wrecking Ass’n v. McGregor, 207 Fed. 209 (6th Cir.

1913); Patton-Tuwlly Transp. Co. v. Turner,’ 269 Fed. 334

(6th Cir. 1920). | Eset

Petitioner attempts ‘to rationalize the result in these

two decisions by arguing that they reflect a “territorial -

concept” consistent with the law of the place of the injury,

even though in both cases the law of the jurisdiction in

which the injury occurred had been rejected by the court.

The moré correct interpretation is that both the Thompson

Towing and Patton-Tully decisions, by giving controlling

weight to the jurisdiction of the registry of the vessels

involved, anticipate the interests and contacts rule first

expressly articulated in the Lauritzen decision and now

adopted by a constantly increasing number of jurisdictions.

d f

18 Reasons for Refusing the Writ.

I. THERE IS NO SUBSTANTIAL CONFLICT OF DE.

CISIONS

The conflict between the decision below and certain in-

termediate New York decisions will shortly be reviewed,

and most ey resolved, v the New York Court of

Appeals.

As previously discussed in this brief, the dactntion .

below is not in conflict with any decisions of this Court or

_. of the federal courts of appeals.

_ Three other decisions, one in the Southern District

- of Iowa and. two decisions in’ the New York Appellate

. Division, . explicitly rely onsthe original opinion of the

three-judge panel in the instant case and therefore apply

the lex loci delicti to claims arising from an aircraft crash

in navigable waters. |

On closer analysis, however; the conflict represented

by those decisions does not justify review by this Court.

All three decisions, involving a total of four death actions,

arise from tue same airplane crash in navigable waters

of Lake Michigan within the State of Illinois and involve

efforts by the defendants to limit the amount of recovery _

- for maritime tort claims to the $30,000 allowed ‘by the

Illinois statutes.

In. Harris v. United Air Lines, Ine. 275 F. Sixop. 431

- (S.D. Iowa 1967), the court relied on the original decision

- of the three-judge panel in the instant case to hold that

Towa law, was inapplicable, thus sustaining the “Illinois —

limitation. Subsequent to that decision, the civil action

pending in the Southern District of Iowa,. Central Divi-

sion (Civil No. 7-1859-C(2)) was dismissed without pre-

judice on October 19, 1967 and the claims of that. plaintiff

‘are now being asserted only in an action in the New York

State courts. In a decision in that New York case, Harris _

v. United Air Lines, Inc., 30 App. Div. 2d 37, 290

N.Y.S.2d 757 (1968), and a companion decision, Thomas —

v. United Air Lines, Inc., 30 App. Div. 2d 32, 290'N.Y.S. -

%,

~ >)

ae Reasons for Refusing the Writ. 19

2d 753 (1968), the Appellate Division, First Department; .

also “relied on the original decision of the three-judge -

panel in the instant case and applied the rule of lex loci

- delictt to govern maritime torts. ; ;

Both decisions of the Appellate Division have now

been certified by that court for review by the New York —

Court of Appeals. See 160, N.Y.L.J., issue No. 3 (July: 3,

1968), pp. 2, 11. y

» In choice of law cases decided since Babcock v. Jack-

son, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279

(1963), the New York Court of Appeals has employed an ap-

proach parallel to that employed by this Court in Lawrit-

zen Vv. Larsen, 345 U.S. 571. See Cheatham, “Comments

' on Babcock v. Jackson, a Recent Develoment in Conflict

of Laws,” 63 Col. L. Rev. 1212, 1229, 1231-32 (1963). In ©

several recent cases, the New York Court of Appeals has

‘Teversed lower court decisions which did not give full

~ Seope to the interests and contacts choice-of law rule an-

nounced in the Babcock case. E.g., Miller v. Miller, 22

N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877- (1968) ;

Macey v. Rozbicki, 18 N.Y.2d 289, 274 N.Y.S.2d 591,221 |

- N.E.2d 380 (1966). In view of the consistent approach

taken by the New York Court of Appeals, review by that

court of the Harris and Thomas cases will most probably

result in decisions which are consistent not only with the

Lauritzen decision and other decisions of this Court, but

also with the decision of the court en banc in the instant

case. a

The Appellate Division decisions now certified for’

review by the New York Court of Appeals thus provide

no reason for this Court to grant review in the instant

case. , : -

20 -.Conelusion:

CONCLUSION

. For. the’ reasons stated, the ‘petition for a writ of

certiorari should be denied. ,

‘Reapeettaty wabenitéed,

. Joun R. McConwet,

Grecory M. Harvey

Of Counsel:

Morean, Lewis & Booxrus

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