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

‘LIBRARY ._—i«‘(‘ io OMe Seprome

4uUPREME CouRT.1) & °°. J PILED

ae a Court of the United States 7

: OCTOBER TERM, 1968 ©

NO. 540.

EASTERN AIR LINES, INC.,

. ‘Petitioner,

A

DONALD A. SCOTT, Atiatiiniser 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 RESPONDENT IN OPPOSITION

Joun R. McCownet.

' Grecory M. Harvey

Moncay, Lewis & Booxrus, —_priiagaiphn Penney Building ig

Of Counsel. — Attorneys for Respondent |

PRESS OF ALLEN, LANE @ SCOTT, PHILADELPHIA

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‘TABLE OF CONTENTS -

: TABLE OF AUTHORITIES CITED . a

OPINIONS BELOW ....... eas ii’ Wie:

| JURISDICTION EMD D OAD ca es

* COUNTER-STATEMENT OF P QUESTIONS |

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

eause of action created by Pennsylvania law: for

compensatory damages resulting from the death .

of plaintif’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 ee

- 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 SE ae 2°

| A. The facts concerning the instant de *

Re Ce ee ER ee swwse @

B. The significance of the prior litiga- ots

tion. Sy Tee Pe ree) eke NN 74

. ae The opinions, of the Court of Ap-

° peals FTG aioe ara tals. Laue eee 26 um aes

REASONS FOR. REFUSING THE WRIT °....:... 9

I. THE DECISION BELOW IS COR- pays

RECT :......... sepec sosGaepeesdecneees we 9,

I a a ee a eS ee ES See ce eee —————————————

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 7

contract and the activities of the.

parties are nonmaritime and the

. only maritime interest arises from

the fortuitous location of the place

of impact ........ ie ataes Sekec kisah es di 9

| 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 ....,.. beeeks 14

Il. THERE IS NO SUBSTANTIAL CON- |

FLICT OF DECISIONS ............... ore 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 Appeals ........ 18

CONCLUSION ...... pss ska eewedanegynebucsbecs?s

TABLE OF AUTHORITIES

Cases: |

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

__ 143, 191 N.E.2d 279 (1963) ............... wieeee 19

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

_ rev'd and remanded, 376 U.S. 612 .............. . §

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

611 (5th Cir. 1956) ......00. 0... eee cesses. 11

PAGE *

Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d

TWO CME ids cab acndignsksc cu + ee ....6,9, 10

Harris v. United Air Lines, Ine.; 275 F. Supp. 431

(B.D. Towa 1967) <0... 2... ceccccecceccdeceee,,. 18

Harris v. United Air Lines, Inc., 30 App. Div. 24 37, _—

290 N.Y.S.2d 757 (1968) ............ Titties 18

Huddleston v. Dwyer, 322 U.S. 232 .:.../...... > 3

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

Cit: 19GB)... Soc cccicse. ae hae ee -

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

crags aa, TO eee 12

King 0. Pan American World Airways, 166 F. Supp.

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

1959), cert. denied, 362 U.S: 928 ................ 13

Klaxon Co. v. Stentor -Elec. Mfg. Co., 313 U.S. 487... 6

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

tsi METAS CE TTC Oe EE, NE 11

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) .................... Hehe 19.,

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

coal gnc h casa, MEET: Es a ue

McClure v. United States Lines Co., 368 F.2d 19

(4th Cir. 1966) ...0...... S960 0Cepssveveveslens ~' 15

Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.24 734, 237

OE WET CON oe Pasccevecobeckcncsaceccn. » 19 -

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

(6th Cir. 1920) ................, Jott teen eeeees 17

Philadelphia, W. & B.R.R. v. Philadelphia & Havre |

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

Poepe.& 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 v. Van

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

manded, 376 U.S. 612 .... eneebanas Peveceseebens 5

Richards v. United States, 369 U.S.1......... 0... 16

Romero v. International Terminal ywanntan Co.,

LE ee cae Se 6, 8, 9, 14

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

ieee Eh i eae unsineeceelscenes 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

"32, 290 N.Y.S.2d 753 (1968) ...............5.0-- 18

pson Towing & Wrecking Ass’n v. McGregor,

207 Fed. 209 (6th Cir. 1913) ...... ceeuavodue ss 17

~ Van Dusen v. Barrack, 376 U.S, 612 ..... MED a 5

Weinstein v. Eastern Adrlines, 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

ET Si dec oew oases CP eEeeo OUP ESOS terseeeee: 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 Col.

5 a ae ne 19

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

n.16 (4th ed. Scoles 1964) ...............0s5e00. 15

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

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

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

— IN THE |

Supreme Court of the United States

, OCTOBER TERM, 1968 ,

NO. 540

EASTERN AIR LINES, INC.,

; Petitioner

Vv.

DONALD A. SCOTT, Administrator of the Estate of

, THOMAS L. MOODY, a

| Respondent

Ow Petition ror A Wait or CERTIORARI

TO THE UNITED States Court or APPEALS

FOR THE T'urep Crcurr

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. °

\ ‘ 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. STATEMENT OF THE QUESTIONS —

; PRESENTED

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

of action created by Pennsylvania law for compensatory

damages resulting from the death of plaintiff’s decedent, 7

be denied solely because the breach involved the crash f

of defendant’s land-based aircraft j in navigable wenn and

not on land?

2. In choosing between conflicting. a 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

parties, or must the court apply only the substantive law— a i

_ of the place of the fatal impact? ~

COUNTER STATEMENT | OF THE CASE

“he 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 “Kastern”), 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 ee

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.

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nee Cia a se Fie chars onary WHS o a ‘ i a as Sa Si ae EIA BOOS TLE ROT seg ER. Rey oe Ree o> 4 fe

ae eas areas ve es cee ey, - - oF”

Counter-Staiement of the Case.

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 October 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-

delphia, 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’ vice of ig oe

County.

At his death, decedent had a lease on n his apartment it

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 Wrongfvi Death Act for $2,500 as

the reasonable funeral and administration expenses in-.

IOI DLE LOC CEL CL YD Ng Ag RC TE eR ng . HR St ET fr EY .

<< 2 D —-s— = = ae o = os tae 2 ete

ae 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 (E.D. Pa. 1962), modified, 316 F.2d 758 (3d Cir. 1963),

cert. denied, 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 dOntinued 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 substance, nor are such contracts and -

aS Se a ee

Counter-Statement of the Case. Se.

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:) se Sid a

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

The defendants also sought to transfer all pending

. Jitigation 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-

jween 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 time 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 remahded 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,

the parties involved in the Boston crash litigation had.

?

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

jaw 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” thder the

Pennsylvania Survival Act for damages resulting from

the death of a passenger in the crash of a commereia!

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 Pennsylvania. 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 oh denonieid in tive

_ 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. 142, 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 relevanéa to the matter in. dispute, a prior--

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

14s; 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.

&>

_ Counter-Statement of the Case. ae ae

After the decision in Griffith, the defenda ts shifted their |

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

erashed in navigable waters.

C. The opinions of the Court of peat

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

tircly disregarded. plaintiff’s cause of action sounding —:

in contract under Pennsylvania law and considered thé —

_ ase 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 oe 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 6f

“eontract of nonnegligent carriage between plaintiff’s de-

cedent and Eastern, that the contract involved was non-

maritime in nature, as previously held in the Weinstein

case (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 cor-

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 v. Larsen,

soa.

( = Counter-Statement of the Case. .

- 845 US. 571, and, Romero ty International Terminal Op- =.

erating Co.,-358 U.S. 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 7

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

. *Judge 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:at 30). - : |

Judge, Seitz concurred in holding that the plaintiff

might elect to’ pursue his 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

‘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 wrongful impact (A. 33a-40a, 399 F.2d “at

32-35). : ; fae

wf

ee

pas :|

|

a ?

Reasons for Refusing the Writ. 3

REASONS FOR REFUSING.THE WRIT

"I. THE DECISION BELOW IS CORRECT.

In’ the court below, the petitioner argued that: the

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

sen, 345.U.S. 571, and Griffith v. United Air Lines, Inc.,

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. __ .

Petitioner also concedes that if the court below 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 is the. modern rule’

declared in the:Griffith decision. . er

The issues on.which petitioner seeks review, therefore,

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

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

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

_ ‘@laim is the modern Tule of Lauritzen v. Larsen and.

. Romero v. International Terminal Operating Co., 358 US.

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

A. Recognition in a death case of a state-created ‘claim

_ 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 the place

‘ of impact. ty ; La gt eee ae

The majority dpinion below held ‘that the plaintiff

had adequately pleaded and proved a cause of action

PE PGT FOLIOS GE Myer ed EE re reo

. 10° Reasons for Refusing ‘the Writ.

under Pennsylvania law for breach of contract of non-

negligent carriage, as recognized in Griffith v. United Air

Lanes, 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. 11a, 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.”. | ae

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

Reasons for Refusing the Writ. 7 an

(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 766, quoted, 399 F.2d at . -

21-22.

Neither the petitioner nor the 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 invglved an activ-

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

Tungusyv. 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.

Coz, 210 F.2d 76 (5th Cir. 1954), aff'd, 348 U.S. 207

os

12 - Reasons for Refusing the Writ.

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

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

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

vessel; interpretation -of maritime contract of carriage

on niotor 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 _— all rights and obiigations 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 enforc-

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 = and deaths on navigable

waters.

| Since the state-created cause of action oars 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

i ie eee

Reasons for Refusing the Writ. —

‘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), af’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: case 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 ssid one 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 relative 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 governed the seaman’s claims. The Court stated: ©

: ; e

“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.

.

‘a 3

This Court also held in Romero that the rule an-

nounced in Lauritzen was applicable to maritime cases

generally: : | S

WSs bis he ating bn dibh sieioul LOLS, On REN pe mmc ema y

Reasons for Refusing the Writ. 5

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

plicable criteria of ‘selection set forth in Lauritzen . |

were intended to,-guide courts in the applicatio “of

maritime law generally.” ” 358 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 ©

case in the formulation of the rule “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. Scoles 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

Lanes 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-

=

16 | Reasons for Refusing the Writ.

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

at 201. (Footnotes omitted. } . 3

"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

a ae

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 wrorfg 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 two

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

(6th Cir. 1920). ;

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

Towig 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.

- f

18 Reasons for Refusing the Writ.

I. THERE Is sid SUBSTANTIAL CONFLIOT OF DE.

CISIONS

The conflict between the decision below and certain in-

termediate New York decisions will shortly be ‘reviewed,

and most — resolved, by the New York Court of

Appeals.

As previously discussed in this brief, the decision —

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 on+the 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 the 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. Simp. 431

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

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

‘Iowa 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 i 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. -

a)

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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. ei j ;

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. -

» 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 Laurit-

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.¥.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. ee

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, ; | : 7

a Sm

20 / cs 3 A oe Conclusion:

CONCLUSION

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

certiorari should be denied.

‘Reapeettally robenitied,

. Joun R. McConnett,

Grecory M. Harvey

— Of Counsel :

Morean, Lewis & Bocxtus

a . ‘ -

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