Petition for Writ of Certiorari — United Air Lines, Inc. v. Thomas

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IME COURT) TE LED

IN THE. SEP 24 1969

| Supreme Court iif the United Stee F. DAVIE, CLERK

October Term, 1969

No. :' 4 i

UNITED AIR LINES, INC.

Petitioner,

v. .

HILARY D. THOMAS, as s Executrix, ete., . , ee

é nae.

UNITED AIR LINES, INC.,

Petitioner,

Vv.

-MARTHA L. ZABOR and- LAWRENCE S. MUNSON

as Administrators, etc.,

Respondents.

R UNITED AIR LINES, INC.,

Petitioner,

Vv.

WYVETTA HARRIS, as Executrix, ete.,

Respondent. °

UNITED AIR LINES, INC.,

Petitioner,

Vv.

RAYMOND A. RAREY, as Administrator, etc.,

Respondent.

nen

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF mig F

THE STATE OF NEW

————

WILLIAM JUNKERMAN |

Counsel for Petitioner

80 Broad Street

New York, N. Y. 10004

CARROLL E. DUBUC -

ROBERT R. MAC DONNELL

Of Counsel.

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TABLE OF CONTENTS.

Opinions Below | Sta insilassupitlontspstesnanssglabiabaiansitieie

Ct EE TRE ET LE EEN ME aI aa

Questions Presented ....:............. | sccldodincetitlconatoscsabeallastapadelsas

Constitutional Provisions and Statutes Involved ............ |

I i ii cincecanemiseatiias dhecsrvectovsseneqens

- Reasons For Granting Certiorari. .....

I—The decision of the New York Court of Appeals is

patently confusing, in conflict with prior decisions

- of this Court and other Federal Courts, and. in-

volves an important question of Federal Maritime

Law which in the interests of» justice should be

resolved BERRI aR ene ROM

T1—The ——- presented - a novel one involving

passed upon by this Court but, until now, the

answer ‘had--been assumed to be directly contrary

to the answer given by the Court below ...........:...:

I1I—The question presented is an important one which

unless decided now by this Court will result in

chaotic inconsistencies in cases. involving wrong-

ful death actions: which arise out of commercial

~ aviation accidents on the navigable waters of the -

United States .............. ea

IV—The question presented is ripe for review at this

time so that unnecessary and expensive litigation

may be avoided in the cases at bar and in other

similar GEERT nieces seccseceesns

ane seiicotaes mI

Conciusion sisdliicdee FPS ie enor earn : 22

APPENDIX: I ean

A—Opinions Below i in , Supreme Court of the State

of New York, Appellate Division—First De-

partment [30 A.D. 2d 32,.37] wt2z.,.......- Al

B—Opinions Below in Court of — State of —

“New York [24 N.Y. 2d 714] .. ‘s . “<BA-

_ C—Opinions of the United States Cos rt of a

“‘peals for: the Third Circuit in Weinstein v.

Eastern Air Lines, Inc., 316 F. 2d 758 and

Scott v. Eastern Air Lines, Ine. B99 F.2d 14.... Cl ss

D—Opinion of United States District Court for

the Southern District of lowa, Central Divi-

sion in Harris v.@nited Air Lines, Inc, 275.

F.. Sapp. 451 ................. - Di.

Cases CrTEp:

Atlantic Transport Co. v. Imbrovek, 234 U.S. 52 (1914) 10

Chaijaian eli of Grosse Pointe Farms, 385 F.2d 962

(6th Cir. 1967) ; : 18

Chelentis v. Luckenbach S.S. Co., 247 U.S. 372:(1918) 14

Cherokee Laboratories, Inc. v. Rogers, 398 P. 2d 520

(Okla. Sup. 1965) ...... 19n

Choy v. Pan American Airways, 1941 A.M. C. 483 ©

Cs 6 MID sencischpinscsspccscnisivintasnerisestbosalinn 18

Cohen v. Beneficial Loan Corp., 337 US. 541 (1949) . 21

-D’Aleman v. _— American World Airways, 259 ™ 2d

493 (2d Cir. 1958) ‘ 17

Davis v. City of Jacksonville Beach, 251 F.Supp. 327

I ae coh asiscnda cs cciesesiicccactsomeiconetiinseniicniaes 18

Cee

\ _ PAGE —

| Fernandez v. Linea Aeropostal Venezolana, 156 F.Supp.

94 (S.D.N.Y. 1957) 2 17-18

Friday v. Smoot, 211 A.2d 594: (Del: 1965) cae aciaweiiane 19n

Garrett v. Moore McCormack Co., 317 U.S. 239 (1942) 21

Gillespie v. U.S. Steel Corp., 379 U. S. 148 (1964) ............ 22

Goett v. Union Carbide Seer \361 U. s. 340°

“ (1960) ph chod meine fe pails Aicuissaciecsiniaianbines 12

HS., Inc., No. 72, The, 130 F.2d 341 (3d) Cir. 1942) .... 13

_ Hamilton, The, 207 U.S. 398 (1907) ...2..... 20

. Harris v. United Air Lines, Inc. 275| F.Supp. 431

(S.D. Iowa 1967) ........ “RES wsitobeseeeee- BD, 10,16, 18

Harrisburg, The, 119 U.S. 199 (1886) | : 13

Hess v. United States, 361 U.S. 314 (1966) «. 12

Hopkins v. Lockheed Aircraft — iy 201 So. 2d 743

> = (Bla. 1967) 19n

: Hornsby v. Fishmeal Company, 285 F. icin 990 (W:D.

La. EN ipa aailcshckcrahatieeaicniamnnntdccsa sani amenaiipesioiilaniintodes 10.

| Hutchinson v: Dickie, 162 F. 2d 103 (6th Gir. 1947) ile 13

J. B. Effenson Company v. Three Bays Corporation,

238 Rd 611 (5th Cir. 1956) ........ Sereven . 13.

Kenny.v. ‘Tritiidad Corporation, 349 F. 2d 832 (5th Cir.

1965), cert. den., 382 U.S. 1030 (1966) 2 .sscssescsseeesee: 18

Kermarec v. Compagnie Generale Transatlantique, 358

U.S. 625 (1959). a

-Kilberg v. Northeast Airlines, 9 9 N. Y.2d 34 (1961) ......... 15

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

136 (N.D. Calif. 1958) aff’d 270 F.2d 355 (9th Cir. -

1959), cert. den., 362 U.S. 928 (1960) .....: 17

Klingseisen v. Costanzo Transportation Company, 101

F.2d 202 (3d Cir. 1939) ................... Pieces 13

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) 14

LEDS LI Pa ee

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TATE

SRN RE A Ng MRE PRIME SEA PES BRU SILI YAS NT OOF TR LRAT AOS IIE MOE HOEY SOLED TEL LEG

9 .

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PAGE’ .

7 v. L. W. Wiggins Airways, Inc., 95 F. Supp. 916

(D.Mass. 1951) .. iconaiabes. ae

Lauritzen v. Larees, 845 US. 37 >) Ae 16, 19, 20

Landers v. Landers, 153 Conn: 303, 216.A.2d 183: (1966) 19n

-Lavello v. Danko, 175:F.Supp. 92 (S.D.N.Y. 1959) ........ 17

Long v. Pan American World Airways, 16 N.Y. 2d 337

(1965) , , ue 15

Maryland Casualty Co. v. Cushing, 347 U.S. 409 (1954) 14

Massaro -v. United States Lines Set ati 307 F.2d 299

OR RID «cis citesesssinericynvonsconstinenntindntn . 13

McAllister v. “Magnolia Pere Co., 357 U.S. 221 (1958) 14

McDaniel v. Sin,’ 194 Kan. 626 (1965) ........2............c.000 19n

McGuire v. City of New York, 192 F. Supp. 866 (8. D.:

N.Y._1962): ....... 18

Mercantile Nat. Bank v. Langdeau, 371 U.S. 555

_ (1963) 21-22

Niepert v. Cleveland Electric Illuminating Co., 241 F.2d

a Re EY ED cance ehinaessncrtddeneecernbcemnnieeenao 13

Nogueira v. N.Y., N.H. & H. BR. Co., ‘81 US. 128 (1930) | oe

Noel v. -Airponentiy Inc., 169 F. Supe. 348 (D.N.J. 1958) © 17 |

Parker v. Motor Boat Sales, 314 U.S. 244 (1941) ses ic

. Patton-Tully Transp. Co..v. Turner, 269 F. 0834 yg

Cir. 1920) ...: Rei ARSE (SOL eM REI SEN olinadsciapiies 20.

Plymouth, The, 70 U.S. 20 (1865) ......... RE the 10

* Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953) ........ 13

—- v. Atlantic Coast. —_ R. Co., 345 U.S. 379

* (1953). . -2)

Robins ae Dock & Repair Co. v. Dahl, 266 U. S.449°>° °

is RR a aha ia lS clade a bsold ik 13

Rodrigue v. Aetna Geanally Co., 395 U.S. 352 (1969) . 20

Romero v. International Terminal: Operating Co., 358

US. 6 >: 5 ......... Scie eeceaeteian ...-.16, 199860 *

Paces Goa eee PAGE

Scott v. Eastern Air Lines, Inc., 399 F.2d 14 (3d Cir. -

* . 1967), rehearing en bane, 399 F. 2d 18 (3d Cir. 1968),

cert. “den., 393 U.S. 979 (1968) ..7n, 10, 11, 12, 15, 16, 18,19.»

Southern Pacific Co. v. Jensen, 244 U.S. 205 ‘tal oe aa . 14

. Tironrpson Towing & Wrbcking Ass’n AL McGregor, -

507 F. 900 (Gth Cir, 1918) 2 90.

Tungus, The, v. Skovgaard, 338 U.S. 588 (1959) - ..10, 12, 13

United New York and New J ersey ‘Sandy Hook Pilots

‘Ass'n v. Halecki, 358 US. 613 (1959) ....... 13

Union Fish Co. v. Erickson, 248 U.S. 308 (1919) ............ 14 -

Weinstein v. Eastern Air Lines, Inc., 316 F.2d 758-(3d_ —«

Cir. 1963), cert. den., 375 U.S. 940 (1963) ..........7n, 10, 11,

a 12, 17, 18, 19

~ Western Fuel Co. v. Garcia, 2 257 U.S, 233 (1921) .. .-10,°13, 14

- White v. King, 244 Md: 348, 223 A.2d 763.(1966) ............ 19n

Wilson v. Transocean Airlines, 121 ¥F. aye. 85 WW. D.

see hess: cashed sssintioa iainigoad iaiaiaadies : , oe

_ OrHER AUTHORITIES CITED:

Illinois Annotated Statutes, Chapter 70, Section 2 ...:... 3,8

New York Civil Practice Law and Rules, Rule 8221 ........ 7

98. U.S.C. § 1257 ......... - a 4,20: °

SUSC.( UN. ene % 2

46.U.S.C.A. § 761 Cyevneeossessedeneenevetesnceceenseneenscoees Mittcdieenere

‘United States Constitution: . : | |

_ Article I, Section 8, Clause 18 ie inssieat Gy G

Article III, Section 2, —— 1. svibnesnethincscnestitigyinena aE ae

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IN THE ~ .

Supreme Court of the United States

October Term, 1969

/ No. senetgndikin

UNITED AIR LINES, INC, . ~ :

Petitioner, ¢

Vv. , |

HILARY D. THOMAS, as Executrix, etc.,

Respondent. :

UNITED AIR LINES, INC., |

: Petiboner,

MARTHA L. ZABOR and LAWRENCE 6&. MUNSON '

awe

Fag as Administrators, ete.,

‘ | Respondents. :

UNITED AIR LINES, INC., .

; Petitioner, :

grvares HARRIS, as Executrix, etc., j

Seepondeet.

UNITED AIR LINES, INC.,

Petitioner, *

Vv. a

RAYMOND A. RAREY, as Administrator, ete:,

Respondent.

PETITION FOR WRIT OF CERTIORARI |

TO THE COURT OF APPEALS OF .

THE STATE OF NEW YORK

To the Honorable Chief Justice of the United States and

the Associate Justices of the Supreme Court of the United

States:

’

. f P ‘

Petitioner, United Air Lines, Inc., respectfully prays that

a writ of certiorari issue to review the order of the Court

of Appeals of the State of New York entered on May 28,

1969, reversing the orders of the Supreme Court of the

State of New York, Appellate Division, First Department,

and the judgments entered thereon, and answering the ques- |

tions certified in the negative. |

Opinions Below ©

The opinions of the Supreme Court of the State of New

York, County of New York, Special Term, Part I (Postel,

J.) in the Thomas and Zabor cases granting plaintiffs’

motion to dismiss defendant United Air Lines’ second affirm-

ative defense, which- sought to limit plaintiffs’ recovery to

$30,000, the maximum amount permitted under the Illinois

‘wrongful death statute (Thomas and Zabor Appendices

TA8-A9 and ZA8-A9), are reported in 54 Mise. 2d 540, 281

N.Y.S.2d 495 (1967).*

~__The opinions of the Supreme Court of the State of New

York, County of New York, Special Term, Part I (Ascione,

J.j.in the Harris #ta Rarey cases. denying defendant United

Air Lines’ motions to dismiss the complaints and, in the

alternative, for partial summary judgment in favor of said

defendant with respect to all claims in excess of $30,000, the

maximum amount permitted under. the’ Illinois wrongful

* Counsel for petitioner has agreed with counsel for the four

respondents that all papers necessary to the consideration of this

petition -are contained in the four Appendices filed in the New

York Court of Appeals with the addition of a certified copy of the

opinion of that court and the transcript of the proceedings therein.

Consequently, pétitioner is filing one copy of.each Appendix and

references to the record in this petition will be made as follows:

Thomas Appendix—TA— :

Zabor Appendix—ZA—. - .

Harris Appendix—HA— - .

Rarey Appendix—RA—

death statute (Harris and. Rarey ‘Appendices HA7-A10 and

RA8-A10), not officially reported, is unofficially reported

in CCH 10 Aviation Law Reports 17,598 (1967).

The opinion of the New York Supreme Court, Appellate

Division, First Department unanimously reversing the

orders of the Supreme Court of’the State of New York,

Special Term, Part I, in the Thomas and Zabor cases and

holding that plaintiffs’ claims were maritime torts gov-

erned by federal maritime law and the. Illinois wrongful °

death statute,* (Thomas and Zabor Appendices, TA107- -

A113), ZA105-A111), is also printed in Appendix A hereto,

infra, Al. A6, and is reported in 30 A.D.2d 32, 290 N.Y.S.

2d 753 (1st Dep’t 1968).

The opinion of the New York Suprem Sister’ a Appellate

' Division, First Départment, unanimously reversing the or-

ders of the Supreme Court of the State of New York, Spe-

cial Term, Part I, in the Harris and Rarey cases, granting

partial summary judgment to defendant United Air Lines

with respect to all claims by plaintiffs in excess of $30,000

pursuant to, the governing federal maritime law and the

Illinois wr ngful death statute,* (Harris and Rarey Ap-

pendices HA117-118, RA120-121), is also printed in Ap-

‘ pendix A hereto, infsa, A7-A8, and reported in 30 A.D.2d

87, 290 N.Y.S.2d 757 (1st Dep’t 1968). _

The opinion of the Court of Appeals of the State of New

York in the Thomas, Zabor, Harris and Rarey cases (con-

solidated-for the Appeal) unanimously reversing the orders

of the New York Supreme Court, Appellate Division, First

Department, and the judgments entered thereon, answering

the certified questions in the negative, and determining |

that federal maritime law did not mandate the application

“ef the Illinois wrongful death statute to these cases, is .

*The text of Chapter 70, Section » 2, of the Illinois Annotated

Statutes is printed in the Appendices i in Thomas and Sabor, TA51

and ZA44. ; :

RI MS Sa

printed in Appendix B.herein, infra, B1-B9, and re-

ported in 24 N.Y.2d'714 (1969).

Jurisdiction

The jurisdiction of this Court to review the decision

below by, writ of certidrari is invoked under 28 U.S.C.

§ 1257(3) upon the ground that the opinion of the Court of

Appeals of the State of New York is repugnant to peti-

‘ tioner’s rights under Article I, Section 8, Clause 18 and.

Article III, Section 2, of the- Constitution’ of the United

States, as implemented by 28 U.S.C. § 1333 and the federal

maritime law of the United States Courts and, consequently,

presents a federal question which in the interests of justice

should be reviewed at this time. | Ke

Questions Presented -

1. Where plaintiffs have alleged acts against petitioner

which constitute a maritime tort arising in the course of

interstate commerce “and occurring within the navigable

waters of Lake Michigan: within the territorial limits. of

_ the State of Illinois, must a New York State Court “borrow”

the Illinois wrongful death statute to satan ad plaintiffs’

rights of vite A :

2. Has the New York Court of Appeals unconstitutionally

impaired petitioner’s rights under Article III, Section 2 of

the Constitution of the United States as implemented by

28 U.S.C. § 1333 by failing to apply the federal maritime

“borrowing” rule?

3. Did the New York Court of Appeals err by equating

its own choice of law rules to the federal international

choice of law rules and misapplying such rules to the cases

at bar?

¢ Constitutional Provisions and Statutes Involved

«<». The provisions of the United States Constitution in-

volved are: a

Article I, Section 8, Clause 18:

“The Congress shall have Power * * *

To make all Laws which shall be necessary and

'» proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this Constitu-

tion in the Government of the United States, or in any _

Department or Officer thereof.”

Article HI, Section 2, Clause 1

“The judicial Power shall extend * * * —to all cases

of admiralty and maritime Jurisdiction; * * *

The statutory Provisions involved are;

‘28 U.S.C. § 1333 |

“The district courts shall have original jurisdiction,

exclusive of the courts of the states, of:

(1) Any civil case of admiralty or maritime jurisdic-

tion, saving to suitors in all cases all other remedies

to which they are otherwise entitled.”

Statement

Petitioner contends that in the above-captioned actions

plaintiffs have asserted: causes of action for the deaths of

their respective decedents, based upon allegations which

would constitute maritime torts, and consequently, the gen-

eral maritime law of the United States is applicable.. Here-

ie 6 aoe

tofore, under federal maritime law, the time-honored rule,

as enunciated by this Court, has been that, where fatal in-

juries are sustained within the navigable territorial waters

of a state, survival and wrongful death actions are governed

by the laws of that state. Since the Court of Appeals of

the State of New York.has held to tite contrary, petitioner

seeks a review of its decision.

Plaintiffs in the above-captioned actions are representa-

tives of four passengers who were killed as a result of the .

accidental crash of a United Air Lines’ Boeing 727 aircraft

into the navigable waters of Lake Michigan on August 16,

1965. It is undisputed that the accident occurred within

the territorial limits of the State of. Illinois, during the

let-down and approach of the aircraft for a.landing at

O’Hare International Airport, Chicago, Illinois. The peti-

tioner, United, is a Delaware corporation having its princi-

pal place of business in Chicago, Illinois, engaged as a

common carrier in the transportation by air of passengers

and property in interstate commerce and this accident

occurred in the course of such commerce.

Plaintiff in the Thomas action and her decedent were resi-

dents of the State of New Jersey at the time of the accident.

The decedent had purchased his ticket for the flight throngh

his employer, McGraw-Hill, Inc., in New York City, and

boarded United’s aircraft at LaGuardia Airport for the

flight to Chicago. The ticket issued to the decedent indicated

that he was traveling to Milwaukee via Chicago and that

the return trip would be made between Chicago and Newark,

‘New Jersey, the point of his final destination.

Plaintiff in the Zabor case is a resident of-the State of

Connecticut, as was her decedent. Her decedent purchased

his ticket for the flight through his employer, Heindrick &

Struggles, Inc., in New York City, and boarded United’s

aircraft at LaGuardia Airport for the flight to Chicago.

The ticket issued to the decedent shows that he was to have

- returned to New York:via Pittsburgh, Pennsylvania, on’

another airline (TWA) the following day.

Plaintiff-in the Harris action is a resident of the State of

Iowa, as was her decedent. Plaintiff’s decedent purchased

the ticket for the flight in ,lowa, the origin and point of

destination of carriage, and boarded United’s aircraft at

LaGuardia. — wa the flight to Chicago, enroute to

Towa.

Plaintiff in the Rarey case is also a resident hi the State

of Iowa, as was his decedent.. Plaintiff’s decedent-purchased

her ticket for the flight in Iowa, the origin and point of

destination of. carriage, and boarded United’s aircraft at

LaGuardia Airport for the flight to Chicago, enroute to

Towa.

The complaints filed by the personal representatives of

the decedents herein allege that the fatal, injuries were

the result of “the negligence,-carelessness and wrongful acts

and omissions of defendant United, its agents, servants and -

employees * * *.” Thus, plaintiffs’ only claim against United

is based upon allegations of negligence, and sounds only

in tort. There is no claim made by plaintiffs against United

based upon any theory of breach of warranty or breach of

implied contract.* (Copies of the complaints in each of

_ * At the outset it might be noted that since plaintiffs allegations

against United Air Lines sound solely in tort, the issues presented

herein fall squarely within the purview of Weinstein v. Eastern

Air Lines, Inc., 316 F.2d 758 (3d Cir. 1963), cert. den., 375 U.S.

940 (1963) and the first panel decision in Scott v. Eastern Air

Lines, Inc., 399 F.2d 14 (3d Cir. 1967). The legal gymnastics “of. ,

waiving the tort and suing in “aSsumsit’”, endorsed by the pur-

ported majority opinion in the Scott case on reargument en banc,

399 F.2d 18 (3d Cir: 1967), cert. den., 393 U.S. 979 (1968), is not —

applicable to the cases at bar, and consequently, it is submitted

that the viewpoint. of the dissenters in Seott would represent -the

proper approach herein, 399 F.2d at 32 «(copies of the Weinstein

and Scott es are printed i in Appendix C hereto, — C1-C15

ond i |

PRE ee RITA STRIATE *

; 8 a

these four actions are printed in the Appendices filed in

the New York Court of Appeals, Thomas, TA31-A42, Zabor,

ZA30-A41, Harris, HA20-A32 and Rarey RA22-A34).

Separate wrongful death. actions were commenced in the |

‘Supreme Court of the State of New York, County of New

York, by the individual representatives of each decedent’s

estate.** In Thomas and Zabor, Special Term granted

plaintiffs’ motions to dismiss the affirmative defenses alleg-

ing this same $30,000 limitation of damages. In Rarey and

Harris, United moved unsuccessfully in Special Term for

an order dismissing the complaints, or. in the alternative,

for summary judgment dismissing all claims in excess of

$30,000, the limitation imposed by the Illinois wrongful

death statute. Thereafter, separate appeals were taken in

_each case to the New York Supreme Court, Appellate Divi-

sion, First Department. Due to the common questions of

law and fact inherent in each of the four actions, the Ap-

pellate Division considered the four appeals together and

held that the acts complained of constituted a maritime

er i \

** Over a year prior to the institution of her action in New York

plaintiff in the Harris case’ instituted an identical action seeking

- the same damages against defendant United Air Lines in the

United States District Court: for the Southern District of Iowa.

After issue was joined in that action, plaintiff moved to strike that

portion of defendant’s answer which raised the same issues

: presented in the cases at bar ‘with respect to the applicability of -

federal maritime law and the $30,000 Illinois wrongful death

limitation. Judge Hanson denied plaintiff’s motion and ruled that

federal maritime law was applicable and that plaintiff’s damages

were limited to- $30,000. Harris v. United Air Lines, Inc., 275

F, Supp. 431 (1967). (His opinion is printed in the appendix

D hereto, infra D1-D5). Five days thereafter plaintiff Harris

instituted her New York action, and after defendant’s motion

to dismiss the latter action was filed, the Iowa action was -

voluntarily dismissed. Plaintiff in the Rarey case also instituted -

& prior action in the United States District Court for the Northern

District of Iowa one year before instituting his action in New

York. This was five days soe Judge Hanson’s decision. This

, too, was obviously with the intent of avoiding the thrust of Judge.

Hanson’s decision. The Rarey action in Iowa is still pending.

, |

tort, and, as such, placed the tort in an area regulated ‘by

_ federal rather than state law. The court then held that

. under applicable-federal law the wrongful death statute of

Illinois, the place of the occurrence, would govern the reme-

dies herein. In conformity with its opinion, the court modi-

fied the orders of Special Term to limit the recovery in each

action to $30,000, as required by the law of the situs of the

‘accident (opinions printed in the Appendix hereto A1-A8).

_ Petitioner entered judgment in accordance with the orders

of the Appellate Division, and subsequently, on May 29,

1968, defendant, United Air Lines served and filed formal

offers of judgment in each of theSe cases-pursuant to Rule

"8221 of the New York Civil Practice Law and Rules, wherein

judgment in favor of each plaintiff could have been entered

for $30,000 together with accrued interest. and costs. Re-

spondents declined to accept defendant’s offers of judg-

ment, but instead successfully moved in the Appellate Divi-

sion for an order in-each case granting leave to appeal to

the Court of Appeals. of the. State of New York ona certi-

fied question as follows:

“Was the order of this court reversing the order pet

the Supreme Court properly made?”

These appeals were again consolidated for argument in

the Court of Appeals because of the common questions of

~ law. On May 28, 1969, the Court of Appeals: réversed the

orders and judgments of. the Appellate Division, First De--

partment (opinion printed in the Appendix hereto, B1-

B9). In so deciding, the court specifically avoided the

question of whether or not the acts complained of. con-

‘stituted a maritime tort. Rather, it decided that whether

the actions constituted a maritime tort or not, and’ “even

if locality alone creates a maritime tort, the court is not

. precluded from determining which of the competing wrong-

ful death statutes should regulate particular actions.”

PONTE ey pen AIT aa MRS OS ANSE, OMEN RKO

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LEEIORL LOS IY FE LN MT RN

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REASONS FOR GRANTING \CERTIORARI

; se I. oe:

The decision of the New York Court of Appeals is.

' patently confusing, in- conflict with| prior decisions of

‘this Court and other Federal Courts, and involves an

important. question of Federal Maritime Law which in

the interests of justice should beresolved at this time.

Although the New York Court of Appeals seloccitalt to

resolve the issues without committing itself to an unequiv-

ocal statement as to whether the jevents from, which, these

wrongful death claims arose, if wrongful, gonstituted a mari-

time tort, it is equally clear that such a conclusion i is inescap-

able, Weinstein v. Eastern Airlines, Inc. , BIG. 2d 758 (3d

’ Cir. 1963), cert. den., 375 U.S. 940 (1963) ; Scott v. Eastern

Air Lines, Inc., 399 F.2d14 (3d Cir. 1967), rehearing en banc,

399 F.2d 18 (3d Cir. 1968), cert. den., 393 U.S. 979 (1968) ;

Harris v. United Air Lines, Inc., 275 F.Supp. 431, 432 (S.D.

Iowa C.D. 1967); Hornsby v. Fishmeal Company, 285

_ F.Supp. 990, 993 (W.D.La. 1968). However, in rejecting the

determinations of the Appellate Division¢ the Court of

Appeals recognized that this Court “spoke in terms suff-

ciently broad to sustain the Weinstein rationale as early

as 1866” citing The Plymouth, 70 U.S. 20, 36 (1865) ; ; Atlan-

tic Transport Co., v. Imbrovek, 234 US. 52 (1914) ; Western

Fuel Co. v. Garcia, 257 U.S. 233 (1921) ; and The Tungus v.

Skovgaard, 358 U.S. 588 (1959) ; (see Appendix hereto. B3-

B4). Then, in considering the rationale of Wemstein, re-

lied upon by the Appellate Division, the Court of Appeals

reversed “without passing judgment on the Weinstein de-

cision”, apparently relying instead on the en banc opinion

in. Scott and erroneously concluding that Weinsten had: —

i: eee ot

therein been “modified in such a way that its holding i is. no

longer applicable to this case.” (B6). oe

Yet the Court of Appeals’ also resognined that at least

» that part of the Weinstein holding, which summarized over’ |

one hundred years of decisions by this Court and other

federal courts to the effect that locality alone determined

the maritime nexus in tort actions, was still viable (B7-

B8). In doing so, the Sag of Appeals rejected only

the second part of the “two-fold” holding of Weinstein;

but in that case the Weinstein court established the follow-

ing principles (316 F.2d at 761-765): => —- ;

(1) Wrongful death actions arising out of the crash of ..

ani aircraft.engaged in interstate commerce on the navigablé -

waters of the United States are cognizable in admiralty

as maritime torts and, since the Federal Death on the High~

Seas Act, 46 U.S:C.A. §761 provides only for recovery

for deaths occurring on the high seas, the.basis for recovery

in such wrongful death cases is determined by “borrowing”

the wrongful death statute of the state having ee

over such navigable waters; and 7

PUPS PIGS NOG FEIN T FE LATS TET ALOE TIA RELL OST SELIG 8 Ie POH, BM

: e t .

(2) claims ‘based ’ upon breach of contract are governed.

by differeht criteria since the nature of the contract rather .

than the place’ of performance determines whether the

claim is cognizable in admiralty as a maritime contract. _

°F

The tortured attempt of the Court of Appeals:to walk

along a tightrope anchored at one end by Weinstein and at

the other by Scott focuses directly upon the dilemma of

that court in formulating ‘its opinion, and the chaos that

will be created in the national body of maritime law if that

decision is allowed to stand without a constructive review

by this Court. Although certiorari was previously denied

in both Weinstein and Scott, in the cases at bar there are

no claims based upon breach of contract and, consequently, ~ :

~~.

‘

the issues presented are clear and ripe for review. If ;

Weinstein, and that part of Scott which establishes the

‘tort as maritime in nature are viable, then the Court of

Appeals should be reversed. Clearly that court cannot and

. should not be permitted to judicially legislate on maritime

w since, by virtue of Art. III, Section 2, Clause-1, U.S. .

* Constitution and 28 U.S.C. § 1333, Congress has placed re-

sponsibility for the development of maritime law-in the

federal courts alone. In deciding-that, (1) even if the alleged

» wrong herein constituted a maritime tort, it was permitted

to employ a choice of”law process to determine which of

’ the competing wrongful death statutes applied; and (2)

that in any wrongful death action which constitutes a mari-

time tort, a state court is not compelled to apply the federal

choice of law “borrowing” rule which requires that a plain-

tiff’s right of recovery must be measured by the wrongful

death statute of the state where the tort occurred, the

Court of Appeals has emasculated the well-established

federal rule.

y Over: the years, the federal courts have had to determine

whether, when and how maritime rules should be formulated

in order. to accommodate the claims of dependents and

other survivors of deceased victims of maritime torts which

occur on navigable waters within the territorial jurisdigtion

of a state rather than on the high seas. These determina-

tions resulted in the adoption of a federal choice of law

rule wherein the wrongful death statute of the state having

jurisdiction over the territorial waters where the tort oc-

curred is “borrowed” to form the basis for the survivors’

rights to recovery. Under this rule, the rights of recovery

are no more nor less extensive than that provided in the

wrongful death statute of such state. Goett v. Union Car-

_ bide Corporation, 361 U.S. 340 (1960); Hess v. United

States, 361 U.S. 314 (1960); The Tungus v. Skovgaard,

358 ‘U.S.-588 (1959); Western Fuel Co. v. Garcia, 257 US.

233 (1921); The AS., Inc., No. 72, 130 F.2d 341 (3d Cir.

1942) ; Klingseisen v. ' Cishanee Transportation Company,

101 F.2d 902 (3d Cir. 1939). Moreover, the substantive law

‘of the state whose wrongful death statute is borrowed can

restrict the right to recover. United New York and New

Jersey Sandy Hook Pilots Ass’n v. Halecki, 358.U.S. 613

(1959); Western Fuel Co. v. Garcia, supra; The Harris-

burg, 119 U.S. 199 (1886).

Not only is it,well settled that a wrongful death occurring

within the state territorial waters of the Great Lakes con-

stitutes a maritime tort, and is therefore goyerned exclu-

sively by federal maritime law, Niepert v. Cleveland Electric#

Illuminating Co., 241 F.2d 916, 918-19 (6th Cir. 1957); :

Hutchinson v: Dickie, 162 F.2d 103 (6th Cir. 1947) ; but it is

‘also clear that maritime torts are governed exclusively by

maritime law, regardless of whether the actions arising out

of. such torts are brought. in the federal or state courts, -

Kermarec: v. Compagme Generale. Transatlantique, 358

U.S. 626 (1959); Pope & Talbot, Inc. v. Hawn, 346 USS.

406, 409 (1953); Robins Dry Dock & Repair Co. v. Dahl,

266 U.S. 449 (1925) ; Massaro v. Unitéd States Lines Com-

pany, 307 F.2d 299 (3d Cir. 1962); J. B. Effenson' Company

v. Three Bays Corporation, 238 F.2d.611 (5th Cir. 1956).

ene a PER OE, We ORR a EEE OT eT

ee et

The question ‘presented is a novel one. involving is-

sues of constitutional law which have never been passed

upon by this Court but, until now, the answer had beén | |

assumed to be directly conteary to the answer _— by

the Court below.

Based’ upon / athe foregoing discussion, the Court of Ap-

peals was bound to follow the weight of authority under

the established federal. maritime law and affirm the deci-

_ sions of the Appellate Division. This Court long ago held

in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), that

any provision of state law which conflicted with the gov-

erning general maritime law (either statutory or as devel-

oped by the federal courts) violated the intent of Congress

to establish a ‘uniform and-consistent body of national

maritime law, and ‘would therefore, be unconstitutional.

This principle has. ‘been consistently followed by this Court

in order to maintain the “ * * * uniformity and consistency at

which the Constitution aimed on all subjects of a commercial

character * * * %, Chelentis v. Luckenbach 8.8. Co., 247 U.S.

' 372, 382 (1918); and “to preserve adequate harmony and

appropriate uniform rules relating to, maritime matters

***” > Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160

(1920). That the power to legislate in the maritime field was

exclusively vested in Congress has been consistently re-

affirmed by this Court, McAllister v. Magnolia Petro. Co.,

357 U.S. 221, 229-30 (1958); Maryland Casualty Co. v.

Cushing, 347 U.S. 409 (1954); Parker v. Motor Boat Sales,

314 U.S. 244 (1941); Nogueira v: N.Y., N.H. & H.R. Co.,

281 U.S. 128 (1930); Western Fuel Co. v. Garcia, supra;

Union Fish Co. v. Erickson, 248 U.S. 308 (1919).

In its decision below the New York Court of Appeals has

directly challenged this poneayee of uniformity by (1) in-

19)

terjecting its own choice: of law rules into the existing body

of federal maritime:law, Kilberg v. Northeast Airlines, 9

N.Y.2d 34 (1961) and Long v.\Pan American World Air-

ways, 16 N.Y.2d 337. (1965), (2) improperly relying upon

the en banc decision of the court in Sgott v. Eastern Air

Innes, Inc., 399 F.2d 18 (3d Cir. 1968), and in doing so,

(3). usurping the constitutional power of this Court to

determine the guidelines to be followed in applying federal

maritime law to maritime torts occurring within the United

States.

' The original panel in the Scott case held that in circum-

stances almost identical. to those presented in the case at

bar, wrongful death claims arising out of the crash of a

commercial airliner into the navigable waters of a state

constituted maritime torts and that plaintiff’s damages were

limited to the $20,000 limitation of the territorial waters of

the state where the accident occurred, under the traditional

maritime conflicts of law borrowing rule. (399 F.2d at 17-

18). However, a rehearing before the court sitting en banc

resulted in a four-to-three decision which overturned the

original panel decision and allowed the plaintiff a full right

of recovery. (399 F.2d at 18-29). The main thrust of the

opinion of the en banc majority was that the plaintiff had

also alleged causes of action based upon breach of contract -

-under the local law of Pennsylvania. Thus, although both

the original panel and en banc court found that plaintiff’s

claims based upon the a of the defendant consti-

tuted a maritime tort, the rity en banc ruled that the

contractual claim was not maritime and, therefore, provided

a separate and independent right of recovery under Pennsyl-

vania law. No such cause of action for breach of contract is

alleged against petitioner in the ease at bar. The purported

“majority” opinion in Scott (4-3) required three separate

opinions, to which there was a vigorous dissent.

Pitts

0 ERE es AAI OA

Part III of the “majority” opinion, which was magnified

by the Court of Appeals (although it represented only an

* alternative approach supported by but two of the seven

judges) suggests that the guidelines for determining the

maritime choice of law rules for a wrongful death occurring

upon the navigable waters of a state of the United States

are now to be furnished by this Court’s decisions in Lawr-

itzen v. Larsen, 345 U.S. 571 (1953) and Romero v. Interna-

tional Terminal Operating Co., 358 U.S. 354 (1959). But

it is respectfully submitted that these two cases have no

application to the situation in the case at bar. As, correctly

pointed out by the dissenting judges in Scott, both decisions

were concerned only with the narrow question of “whether

the maritime law of one nation or of another nation should

- be recognized as determinative of liability for a particular

maritime injury” (399 F.2d at 34): In view of the fore-

going, it is submitted that the court’s reliance upon the

Lauritzen and Romero cases is misplaced because. there has

been no indication from this Court that the international

choice of law rule should be applied to domestic tort claims

occurring upon the navigable waters of the United States.

Thus, the court below in deciding that it can apply its own

choice of law rules in determining which wrongful death

statute should provide a remedy herein, has improperly

equated its choice of law approach to the long-established

federal rule. As suggested by the original panel in Scott

(399 F.2d at 18), the dissenters to the en banc opinion, and

by Judge Hansen in Harris (275 F. Supp. at 432), if the

“borrowing” rule is to be modified that change should be |

sarees d announced by this Court.

; Il. - | bs

The question presented is an important one which

unless decided now by this Court will result in chaotic

inconsistencies in cases involving wrongful death actions

which arise out of commercial aviation accidents on

the navigable waters of the United States.

The court below reasoned (24 N.Y. 2d at 721) that «***

since a only feasible way of being carried beyond the

- one-maritime-leagué restriction at the time of the statute’s

enactment in March, 1920 [Death on the High Seas Act,

46 U.S.C.A. § 761] was by ship, it may be presumed that

the proponents of the Act contemplated that any wrong

occurring after this distance was traveled. would certainly

be of a maritime nature * * *” (B-6). This argument was

part of the Court of Appeals’ attempted attack upon the

logic of Weinstein wherein that court recognized that travel.

by air over the high seas and the inland navigable waters

was the rule rather than the exception today (316 F.2d 763).

The court in Weinstein properly noted that just as the

Death on the High Seas Act has been applied to wrongful

Pee ins arising out of airplane accidents on navigable waters

beyond one marine league from shore -(316 F.2d at 764),

“«* * * q fortiori a crash of an aircraft just short of that

. line but still within the navigable waters * * *” should also

be subject to the uniformity of the federal maritime law

(316 F.2d at 765). See, D’Aleman v. Pan American World

Airways, 259 F.2d 493 (2d Cir: 1958) ; Wilson v. Transocean

Airlines, 121 F.Supp. 85 (N.D. Calif: 1954); Lavello v.

Danko, 175 F. Supp. 92,(S.D.N.Y. 1959) ; Noel v. Airponents,

Inc., 169 F.Supp. 348 “(D. N.J. 1958) ; King v. Pan American

World Airways, 166 F.Supp. 136 (N.D. Calif. 1958), aff'd,

270 F.2d 355 (9th Cir. 1959), cert en., 362 U.S. 928 (1960) ;

Fernandez v. Linea Aeropostal Venezolana, 156 F.Supp. 94

Bi Bat at Cae a wld PURT TR)

SHAN YGEL TIAT TAT SST PO OBIET, NY

| $ 3

(S.D.N.Y. 1957); Lacey v. L. W. Wiggins Airways, Inc.,

95 F.Supp. 916 (D. Mass. 1951) ; Choy v. Pan American Air-

ways, 1941 A.M.C. 483 (S.D.N.Y. 1941).

The court below overlooked the fact that most of the

major airports of this country are located in close

proximity to navigable waters (New York, Chicago, Los

Angeles, Washington, San Francisco, Boston, Miami, San

Juan, Hawaii, etc.) and that a substantial number of acci-

dents occur during the take-off and landing phases of air-

craft operations which position the aircraft over navigable

waters which are partially more than and partially less than .

one marine league from shore. Should the governing mari-

time law be different for claims arising: out of an accident

two miles from shore than it would be for an accident oc-

curring four miles from the same shoreline? Or carrying

the example further, should the dependents of a seaman

killed as a result of the crash of an airplane into a ship

beyond a marine league from shore be entitled to greater

- rights under the national maritime law than the dependents

of another seaman who meets death as a result of a similar

event on the waters of New York harbor? CPAK enny Vv.

Trinidad Corporation, 349 F.2d 832 (5th Cir. 1965), cert,

den., 382 U.S. 1030 (1966).

Furthermore, should’ the answers to these questions de- ,

pend upon which federal or state court the action is brought

in or to which circuit court of appeals an appeal might be |

‘sought? Compare Chapman v. City of Grosse Pointe Farms,

385 F.2d 962 (6th Cir. 1967) ; Davis v. City of Jacksonville

Beach, 251 F.Supp. 327 (M.D. Fla. 1965}; Harris v. United

Air Lines, 275 F.Supp. 431 (S.D.-Iowa 1967) and Weinstein

v. Eastern Airlines, 316 F.2d 758 (3d Cir. 1963) with Mc-

_ Guire v. City of New York, 192 F.Supp. 866 (S.D.N.Y. 1961)

“ and Scott v. Eastern Air Lines, Inc.;399 F.2d 14 rev'd en banc,

399 F.2d 18 (3d Cir. 1968). And in view of the non-uniform

> ; I

| ; 19 Gia

}

adherence of. many state courts to changing conflicts of law

rules, if this Court does not resolve the present confusion, |

it would appear that some state courts which have adopted

a “contact” analysis ppproach would strain to follow the

court below while those state courts which have specifically

rejected contact analysis as part of their conflicts of law

rules* would be disposed to follow the Weimstein rationale.

‘TV.

The question presented is ripe for review at this time

so that unnecessary and expensive-litigation may be

‘avoided in the cases at bay and in other similar situa-

tions.

The rules laid down by this Court in Lauritzen and .

Romero do not suffice as a substitute for the well-established

“borrowing” rule because the “contacts” held therein to be

appropriate in the international context are inappropriate

to claims arising out of maritime torts occurring upon the

navigable waters of the United States.. The failure of the

en banc majority in Scott and the New York Court of Ap-

peals below to recognize this difference will precipitate

endless litigation unless the policy of this Court is clarified.

‘In Lauritzen, this Court determined that either the “law

of the flag” or the law of the domicile of the injured party

should be the primary eonsideration i in resolving a choice-

of-law problem involving an international maritime tort

(345 U.S. 584-587) ; and found it unnecessary to determine

* Maryland, White v. King, 244 Md. 348, 223 A.2d 763 (1966) ;

Florida, Hopkins v. Lockheed Aircraft Corp., 201 So. 2d 743 (Fla.

1967) ; Connecticut, Landers v. Landers, 153 Conn. 303, 216 A.2d

.183 (1966) ; Kansas, McDaniel v. Sin, 194 Kan. 625 (1965) ; ; Dela-

ware, Friday v. Smoot, 211 A. 2d 594 (Del. 1965); Oklahoma,

Cherokee Laboratories, Tne. v. Rogers, 398 P. 2d 520 (Okla Sup.

1965).

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the significance of the place of the wrongful act because

neither side urged that the law of Cuba, where the accident

occurred, was. the S@werning law. A similar result was

reached in Romero, (358 U.S. 382-384). Furthermore, these

cases indicated that while consideration must be.given to

the domicile of the decedent, primary consideration must be

given to the “law of the flag” of the ship upon which the

injury or death occurred. Petitioner, United Air Lifes, has

its principal place of business in Chicago, Illinois and sub-

stantially all of its aircraft operate to, from and through

Chicago in the course of their flight scheduling. Therefore,

assuming arguendo, that the Lauritzen and Romero rule is

to be applied to maritime torts occurring upon the navigable

waters of ‘the United States, it would seem that the “law

of the flag”, or in this case the law of the State of Illinois,

provides the governing law in the cases at bar. See Patton-

Tully Transp. Co. v. Turner, 269 F. 334 (6th Cir.-1920) ;

Thompson Towing & Wrecking Ass’n v. McGregor, 207

F. 209 (6th Cir. 1913). Support for this approach is found

in this Court’s recent opinion in Rodrigue v. Aetna CasualBy

Co., 395 U:S. 352, 355 (1969), which indicated that in

the absence of federal statutes admiralty law, supplemented

m by the law of the jurisdiction of the vessel’s owner, would

apply. The Hamilton, 207 U.S. 398 (1907). In view of the

departure of the court below from both the traditional

. “borrowing” rule and the’ actual determination of this

Court in Lauritzen and salsa it certiorari should be

granted.

Respondents will undoubtedly contend that the determi-

nation of the court below is not final and that, consequently, .

~ certiorari should be denied. However, it is respectfully sub-

mitted that the policy considerations underlying 28 U.S.C.

§1257 require a review at this time. Clearly, a controlling

~-question of federal maritime law is presented which, if in-

"21

correctly decided by the court below, ha§ resulted in a sub-

.. stantial abrogation of ‘petitioner’s rights, cf. Garrett v.

Moore McCormack. Co., 317 U.S.. 239, 245-46 (1942). Under

such circumstances, this Court has in the past gone beyond .

the face of. the lower court’s determination to reach the

merits of petitioner’s contentions (1) when as a practical ,

matter, there is nothing left to be decided with respect to the ;

federal question involved, Pope v. Atlantic Coast Line R. [~#

‘Co., 345 U.S. 3797-882 (1953); or (2) that when the time

comes to review the separable and collateral federal rights

involved, the opportunity will have been irreparably lost, 4

Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546 (1949).

As set forth above, petitioner has made offers of judg-

ment to respondent’s in each of the cases in the amount of

$30,000 plus interest and costs to the date of the offer. If

_ the Appellate Division’s orders and judgments had re-

mained undisturbed, that undoubtedly would have been the

end of this litigation since respondents’ damages would have

been limited to $30,C00 by the law of each case and peti-

tioner would have paid that amount to each of them in ac-

. cordance with the offers of judgment. However, if the New

- York Court of Appeals determination is:erroneous as peti-

.*tioner contends, and if this Court refuses to review that

determination at this time, all parties will be put to the ex-

pensive and _ probably unnecessary burden of extensive

pre-trial discovery proceedings, trials and ultimately an-

_ other set of appeals in order to present the same questions

for review several years hence. Such a result would be

contrary to the policy expressed by this Court to determine

substantial threshhold questions beforehand rather than

subject the parties to “long and complex litigation which

may all ne naught if consideration of the preliminary

‘

“ trntan: SRE ee tO eps negro 1 PET PONE Ry Re VR TY Rate BS i I

question * * * is postponed until the conclusion of proceed-

ings,” Mercantile Nat. Bank v. Langdeaa, 371 U.S. 555, 558

Sen E

(1963). It is submitted that the eventual costs will certainly

be less if this Court now passes on the questions presented

herejn rather than allowing the cases to go to trial with

those issues unreviewed, Gillespie ¥: VU, 8. Steel Corp., 379,

U.S. 148, 152-58 (1964).

- CONCLUSION

For the foregoing reasons, this petition for, a writ

of certiorari should be granted.

Respectfully. submitted,

See, ; " ;

-Wituiam J. JUNKERMAN

~~ Counsel for Petitioner

Canoes, E. Dusuc

Rosert R. MacDonyeEL -

Of Counsel °

"APPENDIX A

COPIES OF OPINIONS BELOW

a - id Ct

SUPREME COURT OF |THE STATE OF NEW YORK

APPELLATE DIVISION : FIRST DEPARTMENT |

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Hmary D, Taomas, as Executrix of James H. Tomas,

Deceased, Respondent, v. Unirep Air Lings, _INc.,

Appellant.

MarrHa L. Zasor et al., as Administrators C.T.A.D.B.N.

of the Estate of Rozerr G. Zasor, Deceased, Respondent,

\v. Unrrep Arr — .ppellant.

oe First Depavtfnen April 30, 1968.

Stevens, J. In these wrongful death actions United Air |

Lines, Inc. (United) appeals separately from an order. in

each case entered October 13, 1967 which granted the motion

of the respective plaintiffs to dismiss the second affirmative

defense set forth in defendant United’s answer. This de-

fense ptead’ that the law of the State of Illinois is appli-

cable to these actiohs, and such law restricts or limits the

~ amount .of recovery of each plaintiff, if any, to $30,000

Since common questions of law-and fact are involved the

appeals are éonsidered together.

These actions arose out of the crash of a United Air .

Lines aircraft into the navigable waters of Lake Michigan

on August 16, 1965. As a result of the accident plaintiffs’

decedents lost their lives. Subsequently these actions to

recover damages for wrongful death were commenced in

New York. There is no dispute that the accident occurred

within the territorial-limits of the State of Illinois. Nor

is there any dispute that each of the decedents was a non-

resident of ‘Illinois—James Thomas being a resident of

New Jersey at the time of his death, and Robert {. Zabor

a resident of Connecticut at the time he was kijled. In

both complaints it is alleged that, the round-trjp ticket

eee ee -

‘e

held by each decedent was purchased i in New York. -

The basic issue is whether Federal law, the law of a

particular State, or the law of the forum applies to any

‘recovery sought. Resolution:-6f the questioh involves "|

identification or haracterization sof the nature of the tort |

upon which the actioris are premised. |

Special Term, in granting’ the motion of each plaintiff

to strike the second affirmative defense, construed the

Tungus case (The Tungus v. Skovgaard, 358 U.S. 588) to

mean that State law and not maritime law should apply

in light of the circumstances here present. Special Term

concluded that New York’s choice-of-law rule (Babcock v.

Jackson, 12 N Y 2d 473) controlled, even a8 applied to non-

residents, and the law of the forum sh6uld take , seeeeumene

In our view this was error.

In the cases before New York does “not have a pre-—3

dominant or even a substantial interest in the protection _

and regulation of the rights of these plaintiffs, for neither

they nor their ect Hr residents of New York and

plaintiffs do not now residé here. Neither plaintiffs nor

_their- decedents bad or have any truly significant contacts

or relationship ‘with New York, and to apply the law of

New, York .is only to encourage forum shopping. The

wrongs of which plaintiffs complain fall intd an area not

covered by specific Federal law (see Death on the High

Seas Act, 66th Cong., 2d Sess. ch. 111; 41 U. S. Stat. 537-

- 538; U. S. Code, tit. 46, §§ 761-764) and the: Jones Act

(U. S. Code, tit. 46, § 688). The common law gave no right

of action for wrongful death, the right is purely statutory.

‘The purpose of the I]linois statute is to afford a remedy

for wrongful death by affording compensation to the

.» survivors., In ‘this case the source of the right should

° govern the ‘nature of the ny and limit the recovery.

}

(Cf. Reich v. Purcell, 63 Cal. Rep. 31; 81 Harv. L. Rev.

1342.) The actions, subject of these appeals, are controlled

by principles of maritime law, and do net represent a

conflict between laws of competing State jurisdictions.

Miller vy. Miller (22 N Y 2d 12) decided April 18, 1968,

- by the Court of Appeals, can be distinguished. In Miller,

plaintiff’s decedent, a New York resident, died in Maine

as the result of an automobile accident which occurred

there. The defendants, the owner and operator of the

vehicle involved, resided in Maine at the time of the

accident. Some three months later they moved to New York

and established a residence here. Subsequently an action

was commenced against them seeking damages for wrong-

ful death. Defendants pleaded as a third partial defense

the $20,000 recovery limitation in the Maine wrongful death

statute’ at the time of the accident. This defense was

stricken on motion and the order striking such defense

affirmed on appeal. In doing so the court noted that it had

previously rejected the traditional choice-of-law rule which

looked to the law of the place of the tort (Babcock v.

Jackson, 12 N Y 2d 473). The court stated (p. 15): “the

rule which has evolved clearly in our most recent decisions

is that the law of the jurisdiction having the greatest-in- .

terest in the litigation will be applied and that the facts or

contacts which obtain significance in defining State interests

are those Which relate to the purpose of the. particular law.

in conflict.” It concluded that New York had the pre-

dominant interest in the protection and regulation ‘of the

rights of plaintiff, a New York resident (see Matter of

Clark, 21 N Y 2d 478), and that there- were (p. 19}“no

substantial countervailing considerations * * * which would

warrant the rejection of our own law in favor of that of

Maine.”

An ‘action for wrongful death is a statutory creation.

-Had wrongful death occurred on the high seas beyond a

marine league from the shore of any State the Death on

the High Seas Act. (41 U. S. Stat. 537 et seq.; U..S. Code,

tit. 46, § 761 &¢ seq.) would control. In the Tungus case

(The Tungus v. Skowgaard, supra) the fatal accident .’

occurred on a motor veésel docked at Bayonhg, New Jersey.

Decedent’s administratrix commenced a suit in admiralty

to recover. damages, alleging unseaworthiness and a‘negli- ,

gent failure to provide a reasonably safe place to work.

Dismissal of the libel by the District Court’ was reversed

by the Court of Appeals which decided that the New

Jersey Wrongful Death Act embraced a claim for unsea-

worthiness: The court concluded also- that the. District

Court erred with respect to the scope of petitioner’s duty

to exercise reasonable care for Skovgaard’s safety. The

Supreme Court of the United States granted certiorari

“primarily to consider the relationship of maritime and

local law in cases of this kind” (p. 590). The primary

issue, as stated, “was whether the New Jersey statute

giving a right of action where death is caused” by a wrong-

ful act, neglect or default “is broad enough to encompass

an action for death caused by the unseaworthiness of a

vessel.” It was noted that the New Jersey courts had not

‘spoken upon the question whether in a case such’ as’ that

presented the maritime.law or‘the common law was —

applicable under the State’s Wrongful Death Act. It was

obvious that the statute embraced any claim fpunded on

negligence, and the court found also that ded¢edent was.

within the class protected by the warranty éof! seaworthi-

ness as developed by Federal maritime law. The Supreme

Court affirmed the Court of Appeals and recognized State

sovereignty over deaths caused by maritime torts in the

boas Cree L :

A5 ,

territorial waters of a State. Accordingly the law of New

Jersey applied and such law was construed to embrace

the claim of unseaworthiness (cf. Kermarec v. Compagnie

Generale, 358 U. S. 625).

In the case before us the deathS occurred in the. navigable

_ waters of the State of Illinois. The Death on the High

Seas Act is not applicable. Unless a remedy is afforded

by State statute the actions for damages for wrongful

death cannot be maintained. A remedy is afforded in these

cases by reasons of the Illinois wrongful death statute.

But, as noted in The Tungus v. Skovgaard (supra), when

the State’s right of action for wrongful death is adopted,

the right is enforced as an integrated whole with whatever -

conditions and limitations are attached by the creating

. State.

-The acts complained of here, if proved to be wrongful,

clearly constitute a maritime tort (see. Weinstein v. Eastern

Air Lines, Ine:-{1963], 316 F. 2d 758, cert. den. 375 U. S&

~ 940), and place such tort in an area regulated by Federal

rather than State law. “The maritime law will. accord

dependents and survivors right of recovery neither more

nor less extensive than they would enjoy under the law of

the State within whose territorial waters the fatal maritime.

tort oceurred” (Scott v. Eastern Airlines, 10 Avi. [CCH]

17, 179 [3d Cir., 1967]; Weinstein v. Eastern Airlines, Inc.,

supra; Harris v. United Air Lines, 275 F. Supp. 431 — U.S.

Dist. Ct. [S. D. Iowa, 1967]). Locality is. recognized by

the weight of authority as the test and determining factor

with respect to applicable law. as to whether there is ad-

miralty tort jurisdiction. The State is without power to

modify fixed maritime law so as to alter rights or liabilities

measurable by standards of niaritime law where such law

is applicable. However, in suits of this nature for wrong-

ETRE CHE RR APATHY

RSA RUSP Pr reihiescdne oe Ge

A6 .

ful death occurring in navigable waters, State courts have

concurrent jurisdiction with Federal courts. If the loca-

tion of the accident, as here, brings maritime law into play

“the substantive rights and obligations of. the parties

[arise] not out of the local law of New York State, but

under the maritime law of the United States [citations],

while any appropriate remedy afforded by the common law

and the New York State death statute is saved” (Kuhn.v.

City of New York, 274 N. Y. 118, 129-130;. Riley v. —

Agwilines, 296 N. Y. 402).

By reason of the fact that the act complained of, if

wrongful, constitutes a maritime tort, the wrongful death

statute of Illinois, under applicable Federal: law, will

govern the remedy. . rt

Each order appealed from should be reversed on the

law and the motion to strike the affirmative defense should

be denied as to each, with costs and disbursements to ;

appellant in each case.

- Boren, P.J., STEvER, Carozzoui and McNatty, JJ.,

concur. | , ,

Orders entered on October 13, 1967 unanimously reversed

on the law, with $50 costs and disbursements to appellant

_— appeal, and plaintiffs’ motions to strike the second

ative defense denied. F

AT7

Wvverra Harris, as Executrix of Katman Mustn, Deceased,

Respondent, v. Unirep Air Lines, Inc., “Appellant.

ENR a ENE RN RO ER 4

Raymonp A. Rarey, as Administrator of the Estate of '

Donna R. Mier, Deceased, sic otra, v. Unitep fitz

Lings, Inc., Appellant.

First Department, April 30, 1968.

‘Avera. J. These are separate appeals from separate

orders entered November 27, 1967 which denied the.motion

of defendant United Air Lines, Inc. (United) for an order

dismissing the complaint or, alternatively, for summary

judgment dismissing all claims 0 on behalf of each plaintiff i in

excess of $30,000.

As.in appeals in Thomas v. United Air Lines (30 A D 2d

32) and Zabor v. United Air Lines (30 A D 2d 32) these

causes of action for wrongful death arose out of an accident

which occurred August 16, 1965 when an aircraft owned by

United crashed into Lake Michigan within the territorial

boundaries of the State of Illinois. In each case plaintiff’s

decedent, a nonresident of the State of New York, was a

passenger in the aircraft. In our view, for the reasons

stated in those appeals published simultaneously herewith,

the motion in each case should have been-granted to the

extent of granting partial summary judgment to United

dismissing all claims on behalf of each plaintiff in excess of

$30,000.- The limitation imposed 4 the Illinois Wrongful

Death Statute, in effect at the time of the accident, is here

applicable. No final judgment has been entered in either

of these cases. Accordingly, neither res judicata nor col-

- lateral estoppel bars plaintiffs from litigation of the issue.

For the reasons stated the orders appealed from should

‘be reversed on the law and the motions for partial summary

5 ? ~~

o ‘ F fore

RTS REAR OLA OSE EER NN tien Tea xs

+ AS noon

judgment granted .to the extent indicated, with costs and —

. disbursements in each case to‘appellant. : <

Borzin, P. J., Srever, Capozzou1 and McNatty, JJ., —

concur. ogke ; ee

Orders entered on November 27, 1967, unanimously re-

versed on the law, with $50 costs and disbursements to

appellant in each appeal, and defendant-appellant’s motions

‘granted to the extent of granting partial summary judg- *

ment to defendant;appellant dismissing all claims on be-

half of each plaintiff in excess of $30,000.

ee ee

sic Mi

Ci seoe haa ' + APPENDIX B

COPIES OF OPINIONS BELOW

COURT OF APPEALS —

- STATE OF NEW YORK

[24 N.Y.2¢ 714]

"7?

Bl *

. Hiary D. Tuomas, as Executrix of J AMES H. THOMAS,

-» Deceased, Appellant, v. Unrrep Arr Livnzs, Inc., Respon--

dent, et al., Defendants. -

Manrtis L. pee et al., as Administrators C. T. A., D. B. N.

of the Estate of connie C. Zasor, Deceased, Appellants,

v. Unitep Arr Linss, Inc., Respondent, et al, Defen- -

dants.

Raymonp A. Rarey, as Administrator of the Estate of .

Donna R. Mutter, Deceased, Appellant, v. Unirep Arm

Lings, Inc., Respondent, et al., Defendants.

Wryvetta Harris, as Executrix of Kauman Mustn, Deceased,

Appellant, v. Unrrep Air LinEs » INc., Stcapinden: et al.,

Defendants.

Argued March 4, 1969; decided May 28, 1969.

Burks, J. Plaintiffs are the representatives of four

passengers who were killed when a United Air Lines Boeing

727 jet crashed inte Lake Michigan, within the territorial

boundary of the State of Illinois, on August 16, 1965. In

these joint appeals, the parties raise novel and interesting

questions concerning the applicability of the Federal mari-

time law and the Illinois statutory limitation of $30,000 to

these wrongful death actions.

The defendant’s jet was on a regularly scheduled cian

commercial flight originating at La Guardia Airport in

Flushing, ‘New York, and terminating at O’Hare- Inter-

national Airport in Chicago, Illinois. The decedents, who -

are represerited in this appeal, have diverse backgrounds

and came to be passengers on this fateful flight for different

“sD

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~ -

purposes. James Thomas resided in a New Jersey suburb

. with his family. He was employed by a New York,concern >

and worked in Manhattan. He was traveling to Milwaukee

and was supposed to change flights in Chicago. In some-

what similar fashion, decedent Robert Zabor’s family lived

in Greenwich, Connecticut. He too commuted each day to

his place of employment in New York. He had purchased a

round.trip ticket bétween New York and Chicago. Kalman

Musin and Donna Rae Miller were both residents of Iowa,

who left their respective families for ‘short sojourns to -

New York. They had completed their visits and were re-

turning home when the crash occurr

Separate wrongful death actions were commenced in Su-

preme Court, New York County. In| Rarey and Harris, de-

fendant United Air Lines moved, unsuccessfully, to dismiss

the complaint or, in the alternative, for summary judgment

dismissing all claims in excess of | $30,000—the limitation

imposed by the Illinois wrongful death statute. In Thomas

and Zabor, plaintiffs’ motions to) dismiss the affirmative

defenses alleging this same 000 limitations were

granted.

Separate appeals were taken ke the Auodlieds Division,

First Department, but common /questions of law and fact

caused them to be considered together. It was there held

that, the plaintiffs’ actions were “controlled by principles

of maritime law” and as the wrongs “fall into an area not

covered by specific Federal law” the State wherein the ac-

cident occurred had “sovereignty over deaths caused by

[these] maritime torts”. It was concluded that, since “the

act complained of, if wrongful, constitutes a maritime tort,

the wrongful death statute of Illinois, under applicable

‘Federal law, will govern the remedy.” The orders before

that court were reversed respectively to limit the recovery

in each action to $30,000, as required by the law of the situs

of the accident, in compliance with then existing Federal

law. The Appellate Division has asked us to determine ©

whether these orders were properly reversed.

Since we conclude that These actions for wrongful death—

whether or not the wrong be classified as a maritime tort—

are not restricted by the Illinois $30,000 limitation, we would

answer each of the certified questions in the negative, thus

reversing each of the orders of ‘the Appellate Division..

The first question necessarily presented by these appeals

is whether these actions require the application of maritime

~ law. In the context of this case, the issue is whether the

. dircumstance—fortuitous though it was—that the plane

crashed into navigable waters, is sufficient to place the

present. litigation within an area regulated by Federal

rather than State law. The court below, in categorizing the

acts complained of as maritime torts, followed a recent

Federal decision which held that “tort claims arising out of

the crash of a landbased aircraft on navigable waters within

the territorial jurisdiction of a state are cognizable in ad-

miralty.” (Weinstein v. Eastern Airlines, 316 F. 2d 758,

766 [3d Cir.].) The court then applied the admiralty :

“locality test”, whereby the law of Massachusetts, the situs

of the accident, was deemed to control the wrongful death

action brought by the representatives of seven deceased

passengers.

- A proper analysis of the decision in Weinstein and its

successor, Scott v. Eastern Airlines (399 F. 2d 14 [3d Cir.]),

requires that we first summarize the decisional law which.

existed prior to Weinstein, dealing with this question of

maritime tort. It is not disputed that the United States

Supreme Court spoke in terms sufliciently broad to sustain

the Weinstein rationale as early as 1866. “Every species of

. fo

ree ree ow wer me

| . ee J

\ 4

not, if upon the high seas or navigable waters, is of ad-

miralty cogtizance.” (The Plymouth, 3 Wall. {70 U. S.]

20, 36.) Upon closer’ scrutiny, it is evident that’ implied in

this statement was the requirement that the “species of

tort” have some maritime connection.’ (See 16 Harv. L.

Rev. 210.) This was apparent in Atlantic Transp. Co. v.

Imbrovek (234 U. S. 52). The argument ne a broad

tort, tion Je hgh and whether on board a vessel or

concept of admiralty jurisdiction in that ease was expressed

in these terms: “The appropriate. basis * * * of all ad-

_ fniralty jurisdiction, whether i in coftract or in tort, is the

‘maritime nature of the transaction or event” ( p. 61; italics

supplied). The court found it unnecessary “to enter upon

this broad inquiry” since the wrong before the court (an

injury sustained by a stevedore while loading a ship, or,

as the court described his work—in the performance of a

maritime service) was held to be of a maritime nature.

Theréafter, in Western Fuel Co. v. Garcia (257 U.S. 233,

242), the Supreme Court sustained admiralty jurisdiction

iia wrongful death action, noting that “where death * *.*

results from a maritime tort committed on navigable waters

within a State whose statutes give a right of action on ac-

count of death by wrongful act, the admiralty courts will

entertain a‘libehtn personam for the damages sustained”.

More —- The Tungus v. Skovgaard (358 U. 8. 588),

the Supreme Court again declared that admiralty courts had

jurisdiction over wrongful death acfions resulting from a

maritime tort. In these latter cases, the Supreme Court

specifically and purposively referred to the injuries as

“maritime torts” which ocurred on “navigable waters”.

The inference is apparent—a maritime tort is one of a

maritime nature, rather than any tort which merely occurs,

or ih this case, terminates, on the water.

B5 Ge.

Most recently, in McGuire v. City of New York (192 F.

Supp. 866 [S.-D. N. Y.]), a tort action was brought in ad-. |

miralty to recover for personal injuries sustained when the

libelant struck a submerged object while swimming at a

public beach. In concluding that the subject matter of this

action was outside the jurisdictics: of admiralty, the court

said: “That a tort may have occurred on navigable waters

is merely a prima facie test of admiralty jurisdiction * * *.

Not every tort committed on admiralty waters may be re-

dressed in the admiralty courts. Only those which have a

_ maritime character, which deal with a maritime subject

matter, are, properly within admiralty jurisdiction” (p.

870). |

In this setting, the Third Circuit Court of Appeals was

asked to determine whether an action for wrongful death

lies within the admiralty jurisdiction of a court where the

sole basis for invoking that jurisdiction is the fact that the

wrongful act was consummated in- navigable waters. In

sustaining jurisdiction, the court failed to definé a maritime

tort or to distinguish prior cases. Instead, it was reasoned

that since “a tort claim arising out of the crash of an air-

plane beyond the one uarine league line is within the

jurisdiction of admiralty [by virtue of the Death on the

igh Séas Act (U.S. Code, tit. 46, § 761)], then a fortiori

rash of an aircraft just short of that line but still within

(navigable waters is within that jurisdiction as well.” (316

‘F. 2d, at p. 765.) Such reasoning, plaintiffs cv.:tend, con-

fuses the statutory creation of a remedy with the fixed con-

1 Prior tg.the decision. in McGuire, a leading treatise commented

that “It seems to be still - -unsettled whether any tort whatever,

oceurring on navigable waters, ‘is. within [admiralty] jurisdiction. *

(Gilmore & Black, Law of Admiralty [1957 ed.], §§ 1-10, p. 22,

n. 78.) —

~~ | ’ B6 f

cept of jurisdiction. Moreover, the ergument is made that,

since the only feasible way of being carried beyond the one-

maritime-league restriction at the time of the statute’s

‘enactment in March, 1920 was by ship, it may be presumed

that the proponents of the act contemplated that any wrong.

occurring after this distance. was traveled would certainly

be of a maritime-nature and thus within admiralty jurisdic-

tion. Plaintiffs, therefore, assert that Weinstein was de-

cided improperly and should not be followed in the instant

case. As noted above, the Appellate Division refused to

ignore thexclear holding of that case.. :

In reversing the Appelt) Division, we do so without

passing judgment on the Weinstein decision. Rather, we

will adhere instead to a subsequent decision of the Third

Circuit Court of Appeals which has at ledst modified Wein--

stein in such a way that its holding is no longer applicable

to this case. This’ was accomplished in Scott v. Eastern

tAizlines (399 F.2d 14, supra), another wrongful death ac-

tion arising from the same crash as Weinstein. In Scott, .

that court first unanimously adhered to its prior decision

by concluding that a wrongful death action was a maritime

tort within admiralty jurisdiction. This determination pre-

cluded the court, in its opinion, from employing a choice of

law. approach to + ee which of two wrongful_death

? statutes controlled the action. “The maritime law 4.1 c-

cord dependents and-Survivors rights of-recovery nite

more nor less extensive than they would enjvy under t

law of the state -within whose territorial waters the fatal

maritime tort occurred” (supra, p, 18).

Following this decision, reargument was ordered and the

case was considered by the entire Third Circuit (399 F.2d,

at p. 18). On reargument, thegcourt reversed its earlier

decision and held that the District Court properly applied

if.

}

SERIE AOE AON RE

‘fe law of Pennsylvania to determine the extent of the

. plaintiffs wrongful death recovery even though’the air-

plane crashed in Massachusetts. While it is not at ajl ap-

parent why the court reversed its prior decision—three

opinions were required to explain the views of the four-man

majority—the holding is sufficiently clear to show that even

the Third Circuit would not automatically apply Illinois E

_law in this case, despite the fact that this was’ the “local

law” which allegedly governs all maritime torts. ne |

The first opinion, ffid purportedly the majority one, was

written by Judge Sratey who took the position that while.

this was a maritime tort within the meaning of Wenstein,

nevertheless, maritime law would not require an indjscrimi-

nate application of the law of Massachusetts, the

the crash. Referring to a recent Supreme Co

(Lauritzen v. Larsen, 345 U. 8,571), as provi

guidance for thg determination of the applicable law, he

wrote “we think the facts of the instant case exemplify a

situation where the place of the. wrong was quite adventi-

tious and where the most significant relations and contacts?

are with Pennsylvania [the domicile of the decedents]”.

He later commented: “Admiralty courts, like the state.

' courts, have an obligation to refrain from applying arule -

when its application would be ‘inappropriate or inequitable.’ a

We strongly btlieve*that it would be most inapp?dpriate, if ‘

not inequitable, to apply the law of Massachusetts to this :

case simply bécause ‘Eastern’s aircraft happened fo crash °

into that state’s navigable waters.” (316 F. 2d, at pp. 28-29.)

Since the Third Circuit chose to apply the law of Penn-.

sylvania to an accident which occurred in territorial waters

located in the State of Massachusetts, it is evident that we

need no longer adhere to the latter part of the twofold hold-

ing of Weinstein, Thus, even if locality alone creates a

PRETEEN inne ee! Rete et

rent

maritime tort, the court i is not preeluded from determining

which of the competing wrongful death statutes should

regulate particular actions.‘ In view of this decision, the ©

question whether the acts complained of constitute a mari-

time tort is no longer dispositive of these appeals for, in

accordance with Scott, the court is permitted to employ a

choice of law process to determine which of the competing

wrongful death statutes applies in each of these four cases.

As noted aboye, these cases are before us on certified

questions. Consequently, we must limit. ourselves: to a de-|

termination- of whether the Appellate Division properly

——concluded that the Illinois wrongful death statute, with its

$30,000 limitation, is applicable to each of these actions.

We have already indicated that Federal_law.does not man-

date such.a result. It is also well settled by our decisional

law fhat the fortuitous occurrence of an accident is not, of

itself, a «sufficient basis for applying the wrongful death

statute of a particular State. (Kilberg v. Northeast Air-

lines, 9 N Y 2d 34; Long v. Pan Amer. World Airways, 16 r

N Y 2d 387). Recently, the Sup me Court of Illinois also

rejected the lex loci delictus doctrine. In Wartell v. For-

musa (34 Ill. 2d 57) the court was asked which law would -

(determine whether the doctrine of intra-spousal irhmunity

would apply to an action brought by a resident of Illinois

as the result of an accident which occurred in Florida. The

court replied: “Tllinois: has the predominant interest “in

- the preservation of the husband-wife relationship of .its .

citizens” (p. 59). Following that decision, a United States

District Court, sitting in Illinois, held that, in a wrongful

death action involving residents of Illinois who were killed

in a crash which occurred in Italy, the issue of damages

" would be determined by the law 6f Illinois (Manos v. Trans

World Airlines, 295 F’. Supp. eel “The predominant in-

See ERT «ED Ce a ee

~ terests to be served on the issue of damages are those of —

the states containing the people or estates which will re-

ceive the recoverable damages, if any, for their injuries or

their decedent’s death” (p. 1173). It is thus apparent that

Federal law, the law of this State, and the law of Illinois

each reject the conclusion of the- Appellate Division that

the law of Illinois applies to these four actions. *.

For all these reasons, the orders of the Appellate Division

should be reversed and the questions certified aetilec ieee in

the negative. .

Chief Judge Funp and J udges SciteprP!, Bercan, BREITEL _

and JasEN concur. | | 7

In each case: Order. dence, with costs, and case re-

_ + mitted to ‘Special Term for further proceedings i in accord-

ance with the opinion herein. Question certified answered

in the desea

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APPENDIX C

OPINIONS OF THE

UNITED STATES COURT OF eeicuca

* .FOR THE THIRD CIRCUIT.

IN |

WEINSTEIN v. EASTERN AIRLINES, INC,

316 F.2d 758

AND

SCOTT v. EASTERN AIR LINES, INC.

399 F.2d 14

\ C1

' Dororuy Wernste1n, Executrix of the Estate of

Ralph Weinstein, Deceased, *

Appellant,

' Eastern Arties, Inc., General Motors Corporation,

and Lockheed Aircraft Corporation.

Argued Dee. 6, 1962. - | Decided April.26, 1963.

Bices, Chief Judge.

This appeal raises the novel and interesting question

of whether : an*action for wrongful death arising out of the

crash of an aircraft in navigable waters within one marine

league from shore lies within the admiralty jurisdiction

of the United States. )

At approximately five o’clock in the afternoon of October

4, 1960, Eastern Airlines Flight No. 375, a land-based Lock-

heed Electra aircraft, took off from Logan International

Airport in Boston, “Massachusetts, ona scheduled flight

to Philadelphia, Pennsy lvania. Shortly after becoming air-

borne, the aircraft crashed into the navi able waters~of |

Boston Harbor. The libellants’ decedertts, ° assengers on |

board the aircraft, were killed as a. result of \the crash.

Libels in personam were filed in the United States Dis-

trict Court for the Eastern District of Pennsylvania, in

admiralty, by the personal. representatives of seven.

deceased passengers against Eastern Airlines, Inc., the

owner .and operator of the aircraft,. Lockheed Aircraft

Corporation, the manufacturer of the plane, and General

Motors Corporation, the manufacturer of the aircraft’s

power plant.’ The libels alleged that Eastern had been

1The United States'of America was originally named as a re-

spondent in the libéls. By an order of the District Court entered

_ on December 12, 1961, these libels were dismissed as to the United

~ ~~.

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* 2 .

. .

wil e

SoC} : C2 ~.

negligent in maintenahes; operation and navigation of | the “

aircraft and that. Lockheed and General Motors had been

negligent i in the design, manufacture and inspection of the ©

- aircraft and power plant respectively, and had failed to

make necessary alterations and modifications,or warn

Eastern of the necessity to do sé. Additional allegations

‘of breach of warranty: were directed against. all three. :

respondents... Exceptions to the libels were filed. by the

respondents on the grounds that the claims asserted were

not within the jurisdiction of a court sitting in admiralty. 7

and dismissed the actions in an order dated March 19, 1962

the order appealed from.’ The court held* that admiralty

jurisdiction in cases of tort depends “in the absenge: of

statute, [upon] a maritime ested plus some maritime

The court below sustained the respondents’ ee

States. See Weinstein.v. United. States, 200 F. Ren. 448 ste .Pa.

1961). No appeal was taken from ~ this order and, therefore, no

issue as to the ay of the United sousant is now before =

court.

2It was amerted in the libels that Eastern had breached its

“warranty that the aircraft was safe, airworthy and fit to be used

as a common carrier for, hire. by air” and had breached “its eon-

tract and warranty ta’provide * * * safe and airworthy trans-

portation”; that General Motors had breached “its warranty that

the engines, propellers and other component parts of the said air-

craft furnished by it were proper, safe and suitable * * *”; and

¢ that Lockheed had breached “its warranty that the said aircraft

power plants, various component parts, instrumentation, furnish-

ings, controls and structural members were safe, airworthy, proper

and suitable for the carriage of passengers by a common carrier

apo in transportation by air.’

3 The original order of March 19, 1962, signed by Sudge Francis

L. Van Dusen, referred only te the: “@auses against Eastern Airlines,

Ine. By an order entered on April'6, 1962, however, the order of

March 19 was amended nunc pro tune to inelude the causes against —

Lockheed and General Motors.

: Weinstein v. Eastern Airlines, Inc., 203 F.Supp. 430 came D. re.

1962). :

OI.

connection * . of Therefore, until, Congress establishes

such jurisdiction by statute, admiralty. jurisdiction does

not encompass. causes of. action arising from crashes of

. airplanes into the navigable waters of a state * *.”*-With

regard to the contract and: warranty claims, the court ruled

that “The traditional criterion of ‘admiralty jurisdiction

as to contracts i is whether the contract is maritime, having

reference to maritime service or maritime transactions.” °

The contracts-in the cases now on appeal, it held, “had no

maritime aspects at all.” *\ We find for the reasons set out

hereinafter that the court; below was in error as to the

issue of tort jurisdiction but was correct as to me allegedly.

maritime contracts herein involved.:

The Constitution of ‘the United States, | | article ITT,

' Section 2, provides that the judicial power of the United

States shall extend to“all.Cases of admiralty and maritime

_ Jurisdiction”. Statutory implementation of this constitu-

enacted by Congress in so cis J

identical terms. See-38 U.S.C.A. § 1333.8

The critical factor in determining whether a tort claim

‘comes within the broad statutory grant of admiralty j juris-

diction is the situs of the tort; i.e., the ‘place where it*

‘ happened. If the tort occurred on anvigilibe waters,’ the

tional grant Ww

5203 F.Supp. 430 at 433.

6203 F.Supp. 430 at 434.

J 2038 F.Supp. 430 at 434.

8 “The district courts shall have original jurisdiction * * * of:

“(1) Any civil case of admiralty or maritime jurisdiction * * *.”

* Waters within the admiralty jurisdiction include not only the

high seas but also those navigable in fact, regardless of whether or

not they are subject to the ebb and flow of. the tide.~Insurance Co. -

v. Dunham, 78 U.S. (11 Wall.) 1, 20 L. 90 (1870).-The waters

,of Boston Harbor are admittedly naviga and therefore are

‘within the Aerritorial jurisdiction of admiralty.

\ ‘ 6 : 04 ‘ - : r. j

_daim i is one ‘that lies within the jurisdiction of the courts

+ of admiralty; nothing more is requiréd. In the Jandmark __—

- case of The Plymouth, 70 U.S. (3 Wall.) 20, 36, 18 L.Bd: -

125 (1865), the Supreme Court’ stated: “The jurisdiction ae

of the admiralty does not depend upon the’ fact that. the

injury was. inflicted by the vessel, but ‘upon. the Toenlitge=

the high seas, or\ navigable w aters where it occurred.

‘Every species of tort, however occurring, and whether on -

board a vessel or‘n ot, if upon ‘the ‘high. seas or navigable

waters, is of admiralty cognizance. “ “This “locality test” |

has been consistently reiterated by the courts. “In torts

‘Ree jurisdiction depends solely upon the.place where the

“tort was committed, which must have been upon the high \

seas or other navigable waters:”, State Industrial Comm'n

v. Nordenholt Corp., 259 U.S. 263, 271, 42°S.Ct. 473, 66.

» L.Ed. 933 (1922). “[I]t is well established that the tae :

of a tort det rmijne esavhether. or not it is maritime. : ‘Ino

to be maritime-it must oceiir “On, Hayigable, waters § snbj s A

to admiray : jurisdiction.”, ”, Forgione v. United States; X b

F.2d 249, 252:253-(3 Cir. % certidraridenied 245 U.S. 966,

73 S.Ct. 950, 97 L.Ed. 1384 (1953): 2 raee Ate onal

extends to ev ery -species_of tort ‘commii ed upon She, high

seas or on navigable waters.”, Cited Stat v. Matson.

Navigation. Co.,201 F.2d -610, 613 (9 Cir, 1953). “It-is’,

kathy. established that the: jurisdiction, of ‘the admiralty ;

“over a maritime tort does not depend upon the wrong hav-

' Ing been committed on bogrd a vessel, but rather upon its

having been committed upon the high seas or other nav-

igable-waters.”, London Guarantee & Accident Co.-v. In- .

dustrial Accident Comm’n, 279 U.S. 109, 123-124; 49 S.Ct.

296, 300, -73.L.Ed. 632 (1929). “Ste Grant Smith-Portey

Ship Lo. v. Rohde,\257 U.S. 469, 42 S,Ot. 157, 66 L.Ed. 321.

, (1922) ; Atlantic Transport ‘Co. v. + TSE, 234 U.S. 52, \

a”

[or] of the relation borne by: the wrongdoer to a vess

A aot 205. s

ieee °

34 S.Ct. 7 733, 68 LB. Ed. 1208 3 (1914) ae Co. v. Dun-.

: aii? (11 Wall.) 1, 20 L.Ed. 90 (1870); Dean v.

_— Chésapeake Bay Ferry District, 158 F.Supp. 408 (E.D.Va. © .

__ 31958); Thomson v. Bassett, 36 F. Supp.. 956 (W.D.Mich..

— 1940); Fireman’ s Fund Ins.. Co. v, "City—of- fonterey, rey, 6

-_ F.2d 893’ (N.D.Calif.1925).2°

The Tespondents take the: position that admiralty juris-

diction over cases of tort t depends not only upon the locus .

of the tort but upon a finding’ of - some maritime connection

J or nexus with the alleged wrong. In other words, it is their

-coritention that the tort must have a maritime “flavor” and -

that an airplane.crash in navigable waters lacks this neces- .

sary element. This argument, that both-locality ‘and a ~

Maritime connection are sei crate not

a new one. “If has *.* ” been doubted whether ‘the ¢ elvil

0 For additional statements of ,the locality test, see’ ‘Philadelphia, ae

Wilmington, & Balto. RR: oT & Havre De Grace

Steam Tawboat Co., 64 U.S." How.) 209, 215, 16 L.Ed. 433

(1859): “The jurisdiction ‘of courts, of admiralty, in matters of

igs contract, depends upon the nature ‘and character of: the.contract ;

but in torts, it depends entirely upon locality.” See also Buren v.

- Southern Pacific Co., 50 -2d-407, 408 (9 Cir. 1931): “[W. here ‘

oP * the locus of the accident is*upon navigable waters,

this is the test of admiralty jurisdiction in cases of tort.”; ad

°.Port of New York Stevedoring Corp. v. Castagna, 280 F. 618, 623 -.

(2 Cir. 1922): “That the locality of a tort determines whether or

not it is maritime is now so well settled that. it is necessary only

to refer to tre a code v. Imbrovek, 234 U.S. 52, 34

Sup. Ct. 733, 58 1208.”

The test is aptly stated in, 2 C.J.S. Admiralty § 59, at pp. 114-_.

or not on the high seas gr other nayigable waters, determines

. 115: “The general rule is that the place see namely, whether”

whether or not the injury/s maritime; and it has been frequently _

stated that it solely determines the questi on. The general rule that:

the place of i injury’ ermines its character applies irrespective of

the nature and origin of the wrong or jury; of its commission,

on @ vessel, of. the place of the act‘eausing e injury, of the mari-

time character of the instrument Of injury- or of the sod injured,

** #

: ee oe ee

en oer b i |

Pons admiralty jurisdiction, ee of tort, does lit: depend

“<> upon the relation of the parties to-some ship or vessel and

embrace only those tortious violations“of maritime right

and ‘duty which-occur in relation’ ‘to vessels to which the

admiralty” jurisdiction in cases “of contract applies.”, 1

Benedict, Admiralty § 127 at, p. 351_(6th ed.)." The re-

spondents cite Campbell’y. H. Hackfield & Co.,,125 F. 696

AY Cir. 1903) and McGuire. v. City of New York, 192 F.

/ Supp. 866 (S.D.N.Y.1961) as authority for their position.

In Campbell, the Cireuit Court~of: Appeals, for the

‘Ninth Circuit held that a tort claim brought by an em-

———+ ployee-longshoreman against his. ‘stevedore- -einployer for

| personal ‘injuries sustained ‘whilé loading or unloading the

‘hold of a vessel in navigable waters was not within the”

jurisdiction of admiralty. The court stated: “In the case

of-torts, locity remains the test, for the manifest reason

that, to give an admiralty court jurisdietion, they. must

. SS

> oceur in a, place where the law maritime ‘prevails. But

this is by no means’ saying that a tort or injury in no way /

: connected with any vessel, or its owner, officers, or crew,

although occurring in such a place or territory, is for that

reason within the’ jurisdiction of the, ‘admiralty. © On the

contrary, it is * es only of maritime contracts, maritime -

torts, and maritime injuries of which the United States

courts are given admiralty Reeaaasoan ” See id., supra,

at p. 700." /

best

- 11 Gee also Gilmore & Black, Admiralty §1-10 at p. 22, n.-78

(1957 ed.): “It seems to be still unsettled whether anyx_tort what-

~j-——-~ ever; “Oecurringon\ navigable waters, is within the jurisdiction.

this conclusion.”

Certainly, the courts have used language broad enough to _ support :

= A eontrary “result on the same jurisdictional issue was reached. °

by the United Statés Supreme Court in Atlantic Transport Co. v.

eek Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914), where

fio

ie.

Se G7

In iia McGuire. case, supra, a tort action was brought

in admiralty to recover for personal injuries sustained

when the libellant struck a, submerged ebject while swim-

ming at a public beach. e court held that the subject

matter of the action was outside the jurisdiction of ad-—

miralty. The éourt stated: “That a tort may have occurred

on navigable waters‘is merely a prima facie test of ad---

miralty jurisdiction. *'* * Not every tort committed on

admiralty waters may be redresséd i in the admiralty courts.

Only those which have a maritime character, which deal

with a maritime subject matter, are propetly ‘w} 1

miralty jurisdiction.” See id., supra, 192 F. Supp: at p. 870.

POS Gee

[1] McGuire to the contrary notwithstanding,” the |

weight of authority. is clearly to the effect that locality — '

- alone determines whether or not a tort claim is within ~

“the adimealty Sapna In Atlantic Transport Co. v. TJ

it held. that a ‘pines could maintain a tort action in ad:

miralty against his stevedore employer fot injuries sustained while a a

working on: a vessel in navigable waters. A further extension was ;

~ made in International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 :

S.Ct. 19\71 L.Ed. 157 (1926), in which it was held that Tongshore-_ t

.men cou uld maintain an admiralty tort action as “seamen” under ~ :

the Jones Act. The Federal Longshoremen’s and Harbor Workefy 3

Act of 1927, 33 U.S.C.A. $901 et seq., preempted the field as to

actions by-a.longshoreman against his employer, but a tort -

action in a ty against a third party contractor was preserved. |

See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. - . &

-124, 76 S.Ct. 232, 100 L:Ed. 133 (1956); Haleyon Lines v. Haenn

Ship Ceiling Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318

(1952) ; Crawford v. Pope & Talbot, Ine., 206 F2d 784 (3 Cir. -

1953).

13 The result. reached in MeGuire - v. ‘City of New York, 192 F. °

Supp. 866 (8.D. N.Y. 1961) may well be compatible with ‘the “lo- *

- eality alone” test. To say that a person bathing in the shallow,

and probably un-navigable in fact, waters of a public beach is

within the locus of admiralty jurisdiction would be to distort the

meaning of the locality test beyond what reason’ and policy would

_.. Suggest or require. — | ; “

pit itil re

. N

| ef a SS] LE NUE

: & » \ fs / f,

fahenres: 234 US. 52, 34 S.Ct. 733° 5 (1914), the Suoreme.* od

Court expressly rejected the. contention that the tort must,

in addition to meeting the locality’ test, “have some con-

nection with a’ vessel. “[It is contended] that ‘a maritime, .

tort is one arising out of an injury to a ship catised by the ~~ —*

negligence of a ship or a person a of an injury to, —

a person by the negligence of a ship ; that: ere must either \

be an jnjury to a ship or an injury b tis saligence of the.

Be gina therein the sidigoes of her\owners or

‘mariners; and that, as there was no negligence of the ship

in the present case, the tort was not maritime. This view

we deem to be altogether too narrow.” Id.,

. 34. S.Ct. at p..735. Moreover, in- ier oe

Aiflines, 121 F.Supp. 85 (N.D.Calif. 106 “wail arisin

- under the Federal Death on the High Seas Act, 46 U.S.C. A.\

§ 761, and involving the crash of an aircraft / ‘at sea, \ \

was. stated that: “Admiralty tort jurisdiction has never

- depended upon the nature of the tort or how it came,about,

but upon the locality where it occurred. * * * Locality has

remained the sole test of, admiralty tort. jurisdiction despite

reoccurring expressions of doubt whether the tort must, |

not also bear some relation to the operation \of a vessel.’’,

4 <.

_id., supra, at p. -92. | : \\ :

Phas siming oh arguendo—that—some_ ‘ina a maritime

- ‘nexus_im addition to locality is required as a\ eo NS

to admiralty tort jurisdiction, we believe nonethelase ovat

the cases at.bar are within the admiralty jurisdiction in- ~~~.

. sofar as the tort claims’alleged therein fre concerned.

At the time the Constitution was framed and for, a centur

and a half thereafter, ships of various kinds were the -

only means of transportation and comm fee on’ or ‘across

navigable waters. Today, airéraft haye become a major { *

instrument of travel and commerce rer and across these

_ ” es ah x Ri ae

xe ‘ $ ‘ e ,

o. ' ' : a ey

> - oes “oo 5 if ; . = ; * 5

@*. | ane : ol, :

same qaters. When an aircraft SSaabies inte“havigable - é

. waters, the dangers to - rsons and property are much / - 5°

; _ the same. as those rising out) of, the\ sinking of a ship or a [

a collision between: two ves “There can be nothing more :

_ maritime than the sea. % Pure Oil Co, v. “Snipes, 293 F.2d

. ‘ 60; 65'at n. 6 (5 Cir. 1961). id

9 me jtoncept’ of admiralty tort jurisdiction shoutd not and °

cannét. “‘¥inain, Static and. yne anging. In Detirdit Trust ..

Co. v. The ‘Phoniid BANRIA, 299 | S..21, 52, 55 $0. 315 41,, «|

179 L.Ed. 176 (1934), the Supre eitve Donrt, ‘by “Mr; Chief :

../ Justice Hughes, stated: “We ‘have had abunfant reason ae

to realize, that our “experience and new conditions give rise °°.

to new ‘conceptions of maritime eoncerns. These may re-

quire that:former e¢riteria of jurisdiction be abandoned,.as,

‘for example, they were abandoned in discardf the

doctrine that the admiralty jurisdie tion was limited to

tidewaters.” See also McGuire v. city of New Xork, 193... 8

F. Supp. 866, 871 {S.D.N.Y:1961).* .

An apt analogy to the situation at a can be pie: we

conclude, from the casés construing the Federal Death on

' the High. Seas Act, 46 U.S.C.:A. §761.° Phe Act -provides -

: for a cause of action, in“admiyalty, for wrongful death. = ™

P ‘ “occurring beyond one marine league from shore.* No ref- _

ré 3 erence to aircraft is made in the language of the Act." dhe

y ee Pe Seer

BORNE STS

———

*“Tt) is proper that sdmaivalty jurisdiction be —— where

i commercial necessity so dictates, * * *” ;

15, The libelg in in the cases-on appeal’ ao not- allege that the aoa ;

- occurred beyond one marine league from shore. Therefore thé A :

is. gripe . fe a

a “Whenever the death of a pataon shall be caused os wrongful

; act, neglect, or default occurring on the high seas beyond a marine

league from the shore. f any State, or the District of Columbia, or

the Territories or dependencies of the United States the personal

- “represéntative of the decedent may maintain a suit for damages in

the district : courts of the United States, 4n admiralty,. for the ex-

~ ; S ~ x . W ‘ ‘

; . ¥ ® ’

3 , ; bY . ‘ é .

‘ = r

2 * %

C10

Nonetheless, it has beer held clearly that tort dnime for

: wrongful death arising out of the crash of an aircraft on

s Mavigable watexs beyond one marine league from shore

- - ‘ate within the terms of the-Act and cognizable in admiralty.

See D’Aleman v. Pan American World Airways, 259 F.2d

-\, 493° (2° Cir. 1958) ;!* Wilson v. Transocean Airlines, 121

TK Supp..85 (N.D. Calif:1954) ; Lavello v. Danko, 175 F. Supp.

+ 92 (S.D.N.Y. 1959); Noel v. Airponents; Inc., 169 F.Supp.

_* B48 (D. N.J.1958) ; King v. Pan ‘American: World Airways,.

166 F.Supp. 136 (N.D.Calif. 1958); aff'd, 270 F.2d 355

(9 Cir. 1959), certiorari denied, 362 U.S. 928, 80 S.Ct. 753,

4 L.Bd2d 746 (1960) ; Fernandez v. Linea Aeropostal

Venezolana,.156 F. Supp. 94 (S. D.N », 1957) ;** Lacey v. L.

° -

clasive benefit of the decedent’s wife, husband, parent,. child, or

dependent relative against*the vessef, person, or corporation ‘which

would have been liable if death had not ensued.”

a 17 “he purpose of the Act was to create a uniform. cause of

‘action, where none existed before and which arose beyond the ter-

ritorial limits of the United States or any State thereof. When the ~ ,

Act was passed (Mareh 30, 1920) the only feasible way to. be :

carried beyond the jurisdiction ef any lew applicable to wrongful

death was by ship. However, with the development of the. trans- diss

oceanic airship the same extraterritorial - tuation was made pos- ‘

sible in the air. * * * The statutory expression ‘on the high seas’

should be capable of expansion to, under, or, over, as scientific ad- ~~.

vances change the methods of travel. ‘The law *would in@eed be . xy.

static ifra passenger on a ship were protected by the Act and

another passenger in the identical. location three thousand feet .

_— above in a plane were not. * * *” D’Aleman v. Pan American

World Airways, 259. F.2d 493, 495 (2- Cir. 1958).

18 # * * [T]n ‘the absence ’ ‘of a statute an action 1 could, not be

maintained for death caused by negligence. => = Zo correct this .

situation death acts: have been passed in nearly all jurisdictions.

» This still left a vacuum in the case of, deaths which might result.

from accidents on the high seas. To, allow-actions to be maintained

~,. for deaths in this situation the Death on the High Seas Act was

enacted. * * *” Fernandez v. Linea Aeropostal Venezblana, 156

F.Supp. 94, 96-97 (Ss. D.N.Y. ni. ,

\ =

r \ ey 5 i

claim upon ‘whi

oe | . Cll

W. Wiggins’ ‘Airways, Inc., 95 F. sae: 916 (D.Mass. 1951); ;

Choy v. Pan Américan Airways, 1941 - a C. 483 2D

NY). |. Ay

Prior to the’ Death on the ‘High Seas Act, 46 U.S.C.A:

” § 761, a tort, océurring beyond one marine league which —

resulted in death did no¥ give rise to a wrongful death

relief ‘could be™ granted. N onetheless,

the tort may have been one within the jurisdiction of ad-

_miralty’ as délineated in the Constitution and implémented

“by 28 U.S.C.A. . § 1333. There is, of course, a cléar and

fundamental d difference between, jurisdiction and. lack of it

and failure to state a cause of action’ See Wade v. Rogala, -

270 F.2d 280, 284 (3 Cir. 1959). The Act, as we have said¥.

creates’a’cause of action which could not exist absent such

* a statute. It does not purport to. creaté jurisdiction. See

Fernandez v. Linea Aeropostal Venezolana, supra.” In. the

: appeals at bar the jurisdictional authority, 28 U.S.C.A.

§ 1333, is identical with that in the cases under the Death

on the High Seas Act. The requisite ‘statutory ‘cause of

action: for wrongful death, howeyer, is providéd here by

a state weougtul death act. ad If, as it has been held, a tort ;

19 “The statute certainly’ ‘includes: the please ‘on the high seas’

but there i is ‘no reason why this should make the law operable only

on a horizontal plane. The very next’ phrase ‘beyond a marine ~

league from the shore of.any State’ may.,.be said to.include a verti-

eal sense~and another dimension. Certdinly what was actuall

intended was to give a right to damages for wrongful death where: ~

no:state surely could give\it but where only the Federal Govern-

ment. could claim to extend its power. The phrase, .we think, was

wholly and only geographical.” ’ (Choy v. Pan American. World

Airways, 1941 A.M.C. 483, 484 (S.D.N.Y.).

20 As we have Said, the Death on the High Seas*Act, 46 U. 8.0; A.

§ 761,is not applicable i in the eases on appeal. Nonetheless, a statu-

tory cause of action for’wrongful death may well.exist. Where

the death occurs on navigable waters: within the territorial juris-

diction of a. state, as here, state wrongful — statutes _—— be

—

~ ee SLT Ct te - ne

‘ > ’

e e

¥ wit nx | ei aaa cat

— aa al Vila ate ictics -

on Sian

-¢laim arising out. of the crash ‘of an airplane beyond ins’ '

one marine-league line is within the jurisdiction.pf ad-

miralty, then a fortiori a-crash of &n aircraft just short

of tha line but still within the navigable waters its within

the® jurisdiction as well. To hold otherwise would be to

impose an illogical and irrational distinction on the opera-

tion of the broad grant of admiralty jurisdiction extended

by the Constitution and implemented by 28 U.S.€.A. § 1333.

[3] It is true that the libels in the cases on appeal allege,

_inter alia, negligence in the inspection and maintenance.

of the aircraft. These allegations refer to allegedly -negli-

gent’ acts committed on land for we cannot assume, in the _ -

absence of express averments to such effect, that \mainte- *

, nance of an aircraft or inspection thereof except re

gency purposes takes place in flight. Nonetheless, if t

disastrous effects of failure to properly inspect or maintain

, ©the aircraft occurred on navigable waters, as was-alleged

in the instant case, the tort claims must be deemed to be-——

‘.within the admiralty. jurisdiction. In Lavello v. Danko,

175 F.Supp. 92’(S.D.N,Y.1959), a case arising under the

° Death on the High Seas- Act, the libel alleged that the

_erash of the aircraft at sea was proximately caused by

failure to properly inspect and repair thé aircraft on shore.

The. court held that the tort clajms were within the juris-"

diction of admiralty. “Even-if-the tertious conduct * * *

occurred within the’ territorial limits of this State, if the

impact of the tortious conduct. took place * * * over the

- high seas then this [admiralty] ” Court has jurisdiction

. 7 . °~

operative in the admiralty courts, Hess v. United States, 361 U.S.

314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960); The Tungus v. Skov-

gaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959) ; Levinson’

v. Deupree, 345 US. 648, 73 S.Ct. 914, 97 L.Ed, 1319 (1953) ;

Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed.

210 (1921); TheH.S., Inc., No. 72, 130 F.2d 341 (3 Cir. 1942).

—_

: a C13

Pere

, id., supra, at 93, See Noel v. Airponents, Inec., 169

F. Desi. 348 (D.N.J.1958). In Wilson v. Transocean Air-

lines, Inc., 121 F.Supp. 85, 92 (N.D.Galif.1954) the court

said: “In ‘applying the ‘locality’ test for admiralty juris-

“diction, the tort i ig deemed to occur, fiot where the wrongful .

act or omission has its inception, but whefe the impact

‘of the act or omission produces such injury as to give rise

to a cause of action.” See also Lacey v. L. W. Wiggins |

Airways, Inc., 95 F.Supp. 916 (D. Mass.1951); Fireman’s

‘Fund Ins. Co. v. City of Monterey, 6 F.2d 893 (N.D. Calif.

1925); Thomson v. Bassett, 36 F.Supp. 956 (W.D.Mich.

1940); The City of Lincoln, 25 F. 835 (S.D.N.¥\1885)..

[4] The respondents argue that the Kederal -Aviation

Act of 1958, 49 U.S.C.A. § 1301 et seq. (1962 Supp.), pre-

ea the exercise of admiralty jurisdiction as to aircraft

.erashes in navigable waters. 49 U.S.C.A. §1509(a) pro-

_ vides in pertinent part that “[T]he navigation and shipping

laws of the United States * * * shall not be construed to

apply to seaplanes or other aircraft * * *.” The’ brief

correct ongwer to oe contention is that the Federal Avi-

ation Act 4s not. a statute intended either to creat or to

limit’ judicial jurisdiction. “The principal purpose of this

_ legislation is to establish a new Federal agency with

powers adequate to enable it to provide for the safe and

efficient use of the, navigable airspace by both civil and

military ‘operations.” 1958 Oong. & Admin. News, p. 3741.

In Wilson v. Transocean Airlines, 121 F.Supp 8

and operation of the merchant marine. The term was never

intended to include a general admiralty statute * * *.”

‘

‘ 4

. A

™-

SECC PET

C14

With reference to the predecessor to the 1958 Act, the Air

Commerce Act of 1926, 44 Stat. 568, which contained the.

same language as the pertinent section in the Federal Avi-

ation Act of 1958, Benedict states: “It will be noted that

‘the Act does not go so far as to deny the existenee of

admiralty and maritime jurisdiction generally over air-

craft’* * *.” 1 Benedict? Admiralty §58, at pp. 118-119

(6th ed.). See also Choy v. Pan American Airways, 1941

A.M.C. 483, 485 (S.D.N.Y.).

We are of the opinion for the reasons stated that the

tort claims sub judice lie within the admiralty jurisdiction

of the court below Pt

’ [5-7] The claims involving breath of contract and of

. warranty in the appeals at bar present a different situation.

See note 2, supra. Admiralty jurisdiction over contracts

is dependent upon the subject matter of the contract, The

test is very different from that applicable in respect to tort

claims. State Industrial Comm’n v. Nordenholt Co., 259

U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933 (1922)."* “[{It] is

settled that the contract articulated in a libel must be,

directly and in essense, an obligation ini =

ture, for the performance of maritime service-or trans-

actions, @® confer jurisdiction.” Pacitie. _Sufety Co. v.

Leatham & Smith Towing Co., 151 P. 440, 443 (7 Cir. 1907).

See also James Richardson & Sons v. Conners Marine Co:,

141 F.2d 226 (2 Cir. 1944); Philadelphia, Wilmington &

Balto. R.R. v. Philadelphia & Havre De Grace Steam’ Tow-

21“Tn determining whether a contract be of maritime. nathre,

locality is not controlling, since the true test is the subject-matter

. of the eontract—the nature and character of the work to be done.

* * * In torts the rule is different. There, jurisdiction depends

solely upon the place where the tort was ‘committed 72S ™ wee

Industrial Comm’n v. ‘Nordenholt Co., supra, at 271, 42. S.Ct. at

473. See also Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469,

42 S.Ct. 157; 66 L.Ed. 321 (1922).

C15 a

boat t Co. 64 U.S. (23 How.) 209, 16 L‘Bd. 433 (1859). It

is clear, we believe, that a contract or warranty relating

to the airframe or power plant of a land-based aircraft

and a contract of carriage by air between two cities on

the United States mainland are not maritime in substance,

nor are such contracts and warranties made maritime by

virtue of the fact that the abveratt i in question flew briefly

over navigable waters en route from Boston to Phila-

delphia.” Admiralty jurisdiction in tort attaches only if

the consummation of a wrongful act or acts occurs within:

the territorial limits of that jurisdiction, that is to say,.:

within navigable waters. But it does not necessarily follow ©

from this that the entire flight and everything connected

with it is maritime as well.

[8, 9] We hold, Paar n that tort Alims s arising out

_ of the crash of a, land-based aircraft on navigable waters

- -within the territorial jurisdiction of a state are cognizable ;

in admiralty. We further hold, however, that contracts

and warranties referring to the entire portion of the flight

of a land-based aircraft from one mainland city to another

are not justiciable in admiralty notwithstanding the fact

that their breach is alleged as the result-of a crash into

navigable waters traversed as a segment of a primarily

_ over-land flight.

. Accordingly, the *tdgments of the court below will be

‘revérsed as to the tort claims alleged but affirmed as to

the contract and warranty claims. The cases will be re-

manded for fuyther proceedings as the facts and law may

require. “

, &

22 We, of course, do not decide whether such contracts would be

maritime in substance were the aircraft involved a trans-Atlantic

carrier en route from Boston, to, for.example, Shannon, Ireland. Re

ies

—

™

C16

Donald A. Scom, Administrator of the Estate ot

Thomas L. Moody, Deceased :

> : > Vv.

— c P -\

Eastern Arm Lives, Inc., Lockheed Aircraft Co., General

Motors Corporation and United. States of America.

—_— Air. Lines, Inc., Appellant.

No. 16328.

Uniited States: a of Appeals | - e i“

board: Third Cireuit.

Argued Jan. 20, 1967. -

Decided March 30, 1967.

ees Reargued Nov. 28,1967. © -

Decided on Rehearing June 28, 1968.

Hastiz, Circuit. J udge.

The plaintiff’s decedent, a resident of Pennsylvania, re- —™

turning home on a commercial-Eastern Airlines plane, was

killed when the plane crashed into the navigable waters of *

Boston Harbor just after taking off from Boston’s Logan

Airport on a flight to Atlanta, Georgia, with the first

scheduled stop at Philadelphia. Alleging that the fatal ac-

cident was caused by negligence and contractual breach of

-warranty' on the part of Eastern, the decedent’s adminis-

. trater-sought redress in the United States District Court

1On this appeal an agreed “Statement of the Case” asserts that .

only the claim predicated upon negligence was submitted to the

jury and .that “the breach of warranty theory was rw

waived by the plaintiff”. .

_ citizenship was alleged and the action .was brought and

- heard onthe “law side” of the district court.

_ effect at the t time of the accident, made one whose negliperite

has caused the death of another liable “in ‘damages in the

. sum of not less than two thousand nor more than twenty

thousand dollars, to be assessed with reference to the de-

- the decedent’s estate as it would exist at the end of a normal

; question n of damages was litaggted. The court refused

defendant’s request for an instruction to the effect that ths

‘nature and extent of the right of recovery should be deter-

: ‘. ~~

. on ff

r the Eastefn District of Pennsylvania. Diversity of ;

ee Tee

The \Massachusetts statutes concerning liability for :

wrongful\death and the survival of causes of ‘action, as in

gree of his vulpability” and also permit recovery of certain

expenses incurred asa result of the wrong. Mass.Gen. Laws

ch, 228, §1(2) and ch. 229, §2. In contrast, the Pennsyl-

vania Wrongful Death and Survival Acts would authorize - =

recovery of the present worth of the anticipated value of

eT THE i a i eR ic

she

bal

lifetime. 12-P.S. §§ 1601-1604, 20 P.S. § 320.601. |

The case was tried in. two stages. First, .a jury con-

sidered the. question of liability and found for the plaintiff,

thus deciding that the negligence of the deféndant was a

_responsible cause of the fatal accident. Thereafter, om

anes nicer ahold Kak viaieiadiedads

\ °

mined in accordance with the restrictive provisions, of

' appeal challenges the correctness.of that ruling.

Massachusetts law. Instead, the jury was permitted — to

award full compensation: for loss as provided under the

Pennsylvania Wrongful Death and Survival :Acts. This

We consider first the significance . the faet that: rh

wrong, the hurtful impact of the pla nitff’s negligence on

the decedent, occurred in or over the navigable waters of — Pe

Boston Harbor. : ,

In-Weinstein v. Eastern ialrlnes. Ine., 3\Cir. 1963, 316

;

F.2d 758, 759, cert. denied, 375 U.S. 940, 84 S.Ct. 343,11 ° |

C18

(7 pe = i

L.Ed. 2d 271, a libel arising out of this very accident, we

ruled that “an action for wrongful death arising out of the

yi crash of an aircraft in navigable waters within one marine.

_.* league from shore lies within the admiralty jurisdiction of

_ the United States”. Unquestionably, this is a maritime tort

‘within admiralty jurisdiction. However, it is argued by the

appellee that because the present cainplaint has been framed

as an action at law under diversity jurisdiction, the exist-

> ence of admtralty jurisdiction i is of no presently controlling

-eonsequence. More particularly, it is urged that under

_ KlaxonCo. v. Stentor Electric Mfg. Co. Ine.,.1941, 313.U.S..

* 487, 61 S.Ct._1020, 85NL.Ed. 1477, the district court sitting

in “Pennsylvania~ properly applied Pennsylvania conflict of

laws rules to reach the conclusion that the Wrongful Death’

and Survival Acts of Pennsylvania. provide the measure of

the plaintiff’s right to recover damages.

> We are not persuaded by this argument. The- established -

rule is that the principles of admiralty law) define liability

for a maritime tort, whether the pany instituted in

-admiralty‘ or on the law side of ‘the court. /The Tungus v.

Skovgaard?1959, 358 U:S. 588, 79 S.Ct. sos L.Ed.2d 524;

Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S. Ct.

202, 98 L.Ed. 143; Massaro v. United States Lines, 3d Cir.,

1962, 307 F.2d 299; J. B Effenson v. Three Boys Corp. ., Oth

Cir, 1956, 288' F.2d 611. ‘Thus, the cincumstance that the

~*/ tort occurred on navigable water, fortyitous though it was,

/ ~ placed the present controversy within an area regulated by

|. “federal rather than state law. This is not changed by the °

: | ‘circumstance that thé parties frermiah in different S

_ states or that this diversity made it/ permissible % meante

' the matter on the law- side of the court.

as ea Once the dominance of federal Jaw ‘i is ata it be- >

.. | comes apparent that the rule and policy of Erie R. Co. v.

C19

“Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188

and Klaxo’ 10. v. Stentor Electric Mfg. Co., Inc., supra, are-

inapplicable.” In,those cases diversity entitled the litigants

to a federal forum but did not cause federal substantive law

‘\to rule the issues in controver sy. Here, the maritime char- —

acter of the tort brings the controversy undér~the gover-

nance of federal,law and it is immaterial whether admiralty

or diversity jurisdiction is relied up@n as justification for

\\ suing in the federal forum. Obviously, a court thus under-

‘taking to. apply federal swbstantive law would have no oc-

easion to defer to or apply state choice of law rules.

We apply this analysis to the solution of the particular

problem of this case. Under maritime law negligence caus-

ing harm on navigable water\is actionable. But historic

rules of admiralty law did not recognize such a cause as

surviving” after-the injured person died. Neither did they

provide dependents with a right tejrecover for the loss of

the decedent’s support. Congress h % Seen, fit to provide a

legislative: remedy for this deficiency only where death oc-

curs on the high seas. 41 Stat. 537,46 U.S.C. § 761.. There-

fore, the federal courts have had to etermine whether, when -

and how maritime law should be shaped to accommodate

the claims of dependents and other. survivors of deceased.

victims of maritime torts which occur within the territorial

waters si a state rather than on the high seas. This under-

_ taking has resulted in the adoption .and consistent applica-

tion of a-novel but simple rule of borrowing. The maritime

_ law will accord dependents and survivors rights of recovery

neither more nor less extensive than they would enjoy under

the law of the state within:whose territorial waters the fatal

maritime tort occurred.’ Hess v.. United States, 1960, 361

« 2 This rule.may be subject to the limitation that “a tate wrong-

. ful death act might contain provisions so offensive to traditional

‘\

NY,

o. ¢

NRE PELE UNIS ENT TINE I IS I

ad came si

aol

I EOE EURO MRED

poe Barre ero aE, ETT ORC STR GT

* Leal

341.

_ US. 314, 80 SiCt. 341, 4 L.Ed.2d 305; The Tungus v. Skov-

C20

gaard, 1959, 358 U.S. 588, 79 S.Ct. 508, 3 L.Ed.2d 524; West-

ern Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S.Ct. 89, 66

L.Ed. 210; The H. S. Ine., No. 72, 3d Cir., 1942, 130 F.2d.

Of course some lie expedient might have, been adopted,

Borrowing could have been made fromthe law‘of the

’ decedent’s domicile or the law of the state whose contacts |

with the parties, their dealings and the mishap were deemed

- mosé¢ significant.”But, over the years, the Supreme Court

and the inferior courts under its guidance have adhered

to the simple rule of borrowing in their entirety the wrong-

_ ful death and survival rules of the state within whose -

boundaries the maritime tort occurred.* 3 |

The court below has seen fit to abandon this rule and to

substitute another. In’our view, this was error. Maritime

law is national law and its principles should, to the best of

judicial ability, be recognized and applied uniformly. While,

an inferior court is always obligated to conf rm its fade.

ments to the law as found or declared by the Sapreme Court,

the national character of maritit¥e law underscores the need

fer such conformity in this area. If the long and consis-

tently accepted and applied rule of maritime law*which ye-

quires that the federal right of recovery in such cases as |

_ this be measured by the provisions of Massachusetts law is |

~ to be modified, that change should be made by the Supreme

Court. ; | é

prineiples of’ maritime law that the admiralty would decline to

enforce thein’’. “Hess v. United States, 1960, 361 U. S. 314, 320, 88: if

S.Ct. 341, 346, ‘4 L.Ed.2d 305.

bd Reflection over a ten “year » period has persuaded the writer of

this opinion that this analysis, rather than the contrasting viéw

. expressed in his dissenting opinion’ in Skovgaard v. The Pungus,

3 Cir. 1957, 252 F.2d 14, 19-20, is sound. —

{

C21

¢ The judgment will be’reversed and the.cause remanded

for a new trial-on the issue of’ damages. ee

; ¢ ‘ ’ ei a 1 ‘ ,

* Oprnton On REHEARING L 8

STALEY, Circuit J udge.

_ This appeal arises out of wrongful death and survival

_actions brought by plaintiff-appellee,“Donald: A. Scott,

Administrator of the Estate of Thomas L. Moody, deceased, °

\ against defendant-appellant, Kastern Air Lines, Inc. Plain.

aS ; _ tiff’s decedent, a Pennsylvania resident, was killed while |

| \ returning home aboard a Lockheed Electra’ aircraft oper-

| \ ated by Eastern. The plane crashed_into “the navigable

aN waters of Boston Harbor shortly’ after taking off from

N Boston’s Logan Airport on a flight to Atlanta, Georgia, with

the first scheduled stop: at Philadelphia. Basing jurisdic.

: . -tion on.dive of of citizenship, the decedent’g adminis-

! . trator brought’ uit on on. the: “law side” of the- United States

Distri t Court, for. the Eastern District ‘of Pennsylvania,

“alleging that the decedent’s fatal injuries were the résult

: of “negligence, breach. of warranties, = breach of: con-

. tract” on thé part of Eastern.’

»The following facts are undisputed. Mr. Moody resided |

in an apartment in Philadelphia from‘ June 1; 1955,, until

“his death. During this period, he was employed by Sears

% Sears’ Admipistration Building in Philadelphia.

case , eame to

+ od

Roebuck & Co. as a-territory field:-man’ with an office i a.

fie

ef assachusetis was. taken in furtherance of his .

yi: employer’s’ bas 34 soncerned the opening ‘of a new

“7; Store in eat setts: The ticket on which the -

ead

gis ee et

EE TOO nee

RPO Ta ae ee

PELE IO

decedent ' was rw at the time. of his death was issued - *

in Philadelphia by Northeast Airdjnes for a trip from Phila-.

delphia to Boston on October 3, 1960, on Northeast Airlines,

~ and for a return trip from Boston to — Octo-

ber 4, 1960, on the Eastern aircraft. ~~

astern is incorporated under the laws of the State of

\ Delaware and does business in vario “states, including

Pennsylvania. Its principal place of usitlegs i is neither in

Pennsylvania nor in Massachusetts... - -

SN At the time of his deat @dent: was emaetel ah

childless. He was, howevey, survived by a brother, Robert,

ofLos Angeles, Califormia, ‘who was named as sole bene--

‘ficiary i in ¢ decedent’s will.\ Then céssary letters of adminis-

tration were granted by the Register gf Wills of Philadel. |

phia County, and an inventory of the estate disclosed that

decedént_ownéd personal property situated in Pennsyl- »

vania but no real property: anyw here. He did, though, At \

the time of death, have a lease on his apartment in P ila-

delphia. The debts of the estate, all owing to Pennsylvania tie

creditors, were approximately $1,000. The estate was sol- = +

vent and paid out over $1,000 i in Pennsylvania inheritance |

taxes. However, the estate did resist a cldim by the Com eng

monwealth of Pennsylvania for $4,773.03 in inheritance ra

taxes decedent’s interest in the Sears Roebuck saving

a en ofit sharing pension fund passing out of his ‘estate

to beneficiaries residing in North Carolina who had_ been

de ennee “by decedent in wesncue with. the rules of the

n. : ezine

The district court tried d the case in two sivas. First;-evi-

dence was heard‘on' the sole i issue of liability, with the jury |

a returning a verdict in favor of. the plaintiff and tgainst

Eastern. This, ‘of course, meant that the negligence of the

‘with the propriety of appl

eT } ome

refusing, Hastern’s request for an. instruction to the effect

that damages could only be awarded in accordance with the

laws of Massachusetts, the district-court instructed the jury

to award damages i in compliance with the laws of Pennsyl-

vania. This they did, rendering a verdict. of $2, 500 under

the Pennsylvania Wrongful Death Act, 12 Purdon’s Pa. Stat.

. Ann. § 1601 et seq., and $45,000 under the Survival Act,

20 Purdon’s Pa.Stat. Ann. § pa We are here concerned

g Pennsylvania law to the

issue’-of- damages rather than the law of the_ Place “of_

injury, Massachisetts, . - ;

The question presented: to this court is one’ of ie im-

. portance. Not only will our decision directly affect the in |

stant litigants, but it may also have an important tat a :

on the outcome of many other suits arising out of the East-

ern Air Lines crash. We-have carefully oonsidered the

opposing arguments and theories presented at oral argu-

ment and in the respective briefs, and have concluded that

the ruling of the district court should be affirmed. — Xf

Mode SSS? en ie tar eg eke PhS Tw eo ee ol

a I e Po md

- ’ e . ~ ke

J oreo

[1,3] The- Massachusetts statutes. concefning liability

“ tor wrote death and the survival of causes of action, as

in effect at the time of the accident>made one whose negli-

gence has caused: the death of another liable “in damages

in the sum of not less than two thousand hor; more than

twenty thousand dollars, to be assessed with reference*to i

' the degree of his culpability” and also permit ‘¥ecovery‘of

certain expenses incurred as a result of the wrong. Mass. -

Gen.Laws ch. 228, "§1(2) and ch. 229, § 2° The Massachu-

setts law is obviously restrictive aird-peratin natyre as it:

— for Tiability, within the specified limits, commeyt |

—ee

. “ Ronee ee we

Peay fen.

, . ‘

C24

surate with the “degree of culpability.” ‘Pennsylvania’s -

Wrongful Death and Survival Acts, on the other hand, are.

compensatory in nature. As applied to this case, recovery

» under the Survival Act would include the amount of lost .

“past” earnings from the date of death to the date of trial less

what the decedent would have probably spent om-his own

i maintenance, plus the amount of future earnings, reduced

,to present worth, from the date of trial less the probable

cost of decedent’s maintenance during the time he would

have lived. Recovery for the wrongful death would encom-

- pass funeral expenses and expenses of administration ne-

vessitated by reason-of the injuries causing death.

[3] With respect to the survival action, it is our view

that plaintiff has presented a valid div ersity claim under the

laws of Pennsylvania. As already noted, the complaint al-, —

leged that the decedent’s fatal injuries were the result of _

astern’s “negligence, breach of warranties, and breach of ~

contract.” During the pre-trial proceedings, plaintiff specif-

ically waived his breach of warranty theory, but*there is«

no evidence that there was any sre atten contract claim,

Such a claim is cognizable in assumpsit under Pennsylvania

w as a cause of action for breach of contract of nonnegli-

' gent carriage. Griffith v. United Air Lines, Inc., 416 Pa. 1,

203 A.2d 796 (1964).

Kastern, however, argues that “under the agreed “state-

this-appeal, there is no basis for finding a’ contractual obli-

‘gation between Eastern and Tlie decedent. With this we

cannot agree. In Griffith, the Pennsylvania Supreme Court

held that in adjudicating a claim based on breach of con-

_ tract of nonnegligent carriage “* * * {t]he principles which

will govern defendant’s liability are principles of negli-

gence, not, of contract, since the action is for negligent

/ \

‘ **

- ‘

4% C25

breach, not rane errs of contract.” 416 Pa. at 11, 203

A2d at 800. A. reading of the agreed “statement of the

case” discloses that plaintiff alleged in his complaint that

decedent’s death was caused, among other things, by Hast-

' ern’s negligence, and at the trial of the cause, he relied upon -

the issues of Eastern’s negligence with respect to: (1).the

design and operation of the airplan?;.(2) the use of this

airplane at Logan Airport in view of the known-field con-

ae “and (3) in pe ting the airplane to operate with.

efective. co-pilot’s-geat. Singe-the’ jury found in favor’

; of ela and against. Easter this finding perforce had

to be predicated’ on the ta of neglige

[4-6] The fact that ‘plain did not SSvocbaee into ‘evi-

dence a document entitled “contract of carriage” ‘is not fatal®

to his claim, for the common carrier’s contractual obligation

to transport its passengers in a nonnegligent manner is not

bargained for by the respective parties; rather i! is imposed

by law. A& reiterated in Doughty v. Maine Central Transp.

Co., 141 Me. 124, 129, 39. &.2d 758, 759, 157 KLE. 759

, (1944),° : \ y,

‘, “The law requires the common carrier of passengers

to exercise.the highest degree of care that hfmean judg-

ment and foresight are capable of, to make-his passen-

ger’s journey safe. Whoever engages if the business

impliedly promises that his. passenger shall have this -

degree of care.* * * The passenger’s remedy, may be

either in assumpsit oF tort, at his election.’” (Emphasis- ,

added) ane \

moor

—_——~wrr

——- -

Although the Pennsylvania. Supreme Court in..Grifith

did not ‘explicitly refer to the derivation of the carrier’s

obligation, in holding that Pennsylvania will recognize, a

~~ at tte J

rere gy eee

ee a

26.

claim based on breach of contract of nonnegligent carriage,

the court did say, 4) Rosca a?

)

“We cannot perceive, nor has there been brought to

our attention, any compelling reason for Pennsylvania

to restrict an injured passenger to an action in trespass |

while, at the same time, a shipper may elect between

trespass and assumpsit for- damage to goods. oe

416 Pa. at 10, 203 A.2d at 800.

Robinson . Efectrical Co. v. Capitol Trucking Corp., 168

Pa.Super. 430, 79 A.2d 123 (1951), is the Pennsylvania

decision which held that a shipper of goods could elect be-

tween trespass and assumpsit. In that case, the court said:

“The liability of a common carrier for goods en-

trusted to it for transportation does not arise from

contract, but is cast upon the carrier by the law. * * *

_An action either ex delicto or ex contractu will lie for

breach of the carrier’s duty. * * *” 168: Pa. Super. at —

433, 79 A.2d at 125. (Emphasis added.)

[7, 8] Since it is clear that a shipper of goods impliedly | °

promises that the goods will be transported in a nonnegli-

gent manner, the conclusion is inescapable that an airline

also impliedly promises that its passengers will be carried

_in a nonnegligent fashion. No amount of sophisticated

argumentation can convince us that ‘Pennsylvaia imposes

a higher duty of care with regard to the shipment of goods

than it does with respect to the carriage of passengers.

’ Indeed, such a value priority. would be unthinkable in this

day and age. In light of the foregoing discussion, there-

fore, we think that plaintiff; under the facts of this case, did .

all that was required of him to establish his state-related

claim of breach of contract of nonitegligent earriage. He

“

Z a

C27

alleged the breach of contract, he introduced into evidence

the airplane ticket purchased by decedent in Philadelphia

and he proved that the negligent breach of Eastern’s im-

plied promise constituted a proximate cause of pace

death. Nothing else need have)been done. -

. Now the argument has been|advanced that the Pennsyl-

vania Supreme Court in the

Penngylyania law to control recovery sought by a paying

passenger for negligent injury as 2 at the hand of a

commion carrier. It is contended under this argument that ~

Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.

1188 (1938), did not go so far as to require a federal court

seeking to redress a maritime tort to accept Pennsylvania’s

invocation of an ancient device of common law pleading to

accomplish a fictitious transmutation of a suit on a mari-

time tort into a suit on civil contract with resultant abdica-

tion of federal authority over maritime mishaps. This

theory, though adroitly phrased and vigorously asserted,

is not a perplexing one as we think this court decisively

settled the issue in Weinstein v. Eastern Airlines, In¢., 316

F.2d 758 (C.A. 3), cert. denied, 375 U.S. 940, 84 S.Ct. 343,

11 L.Ed.2d 271 (1963). In that. case, plaintiffs, alleging

maritime jurisdiction, sought redress in the federal district

court on claims involving tort, breach of. contract, and

- breach of warranty. The district court dismissed the actions

as being not within the maritime jurisdiction, 203 F.Supp.

430. On appeal, this court, speaking through Chief Judge .

‘_— Biggs, held that although the tort claims under considera-

Se admiralty jurisdiction.

mS a contract or warranty relating to the airframe

or power plant of.a land-baged aircraft and a contract ~

f ° }

= —....! ° 4 s *

, 7

: ifith c#se seemed to adopt ~

the old common law procédutal device of waiving the tort —

and. permitting recovery in assumpsit in order to enable :

4} ee Peer

d “<

TET:

PEER NET TE ITT I TI

POI, EYE FON

£)

norte

028 Abe

’ of carriage by air between two cities on the United

States mainland are not mgritime in substance, nor are

such contracts and warranties made maritime by virtue

of the fact that the aircraft in question flew briefly over

navigable waters en route from Boston to Philadel- :

’ phia.” 316 F.2d at 766. (Emphasis added.)

[9, 10] Proper judicial administration commands that

once the expectation is established that a particular claim

As state-created and not-maritime in nature, that expectation

will not be dashed except for the most compelling of rea-

sons. And since we ‘think that Weinstein accurately dis-

tinguished between tort claims that are maritime in nature

and contract claims that are not, we hold that recogniti

of the diversity claim for breach of contract of nonnegligent

carriage can in no sen’e be construed as an abdication of

federal authority over maritime torts.

As the contractul claim against Eastern is rooted in Penn-

sylvania law, it is governed directly by the teaching of

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 US. 487, 61 S.Ct.

1020, 85 L.Ed. 1477 (1941), which directs district courts to

look to. the choice of law rule of the state in which. it sits.

Pennsylvania’s rule was articulated in the now familiar

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

796-(1964). In Griffith, the plaintiff's decedent purchased

a ticket from United in Philadelphia: for a flight from

; Philadelphia to Phoenix, Arizona,.and return. On the w

/ to Phoenix, the decedent met immediate death when, is

plane crashed in the course of landing at Denver, Colora

a scheduled stop.; The issue before the court in Griffith was

/ whether Pennsylvania or Colorado law should govérn. the

amount of recoverable damages. In reasofiing toward the

ultimate conclusion that Pennsylvania law controlled, the

court stated: 1

. > - : 4

js ‘. 7 29 ina Ateneed

(«** * the strict lex loci delecti rule should be =

donéd i in Pennsylvania in favor of a more flexibl

which permits analysis of the politi es and interests un-

derlying the particular issue before\the ony sia oes SR

416 Pees wat 21, 203 A.2d at 805. 0 LF

The court wisely avoided the pitfall of substi caer one

rigid rule for another, but did go on to rely aa a balarice

of the following factors: the interests of the/place of the Za

injury ; the interests of the place where the relationship was ~_

created ; the. domicile of decedent and his family ; t place : N

_ of the administration of the decedent’s _estate/ and the:

domicile of the decedent’s surviving pend ts.

{i117 Aside from the obvious factual simi arity between .

Griffith and the instant case, it becomes apparent when we

apply Pennsylvania’s interest and policy ‘analysis to the

facts of this case, Pennsylvania “has demonstrated; by: rea-

son of jts policies and their connection and relevance-to the

matter in dispute, a priority of interest in the- application

~~~of its rule of law.” See McSwain v. McSwain, 420 Pa. 86, 94, .

215 A.2d 677, 682 (1966). The only arguable factor point-

“ing to the application of Massachusetts law is that Massa-

chusetts was the place of injury. Under Pennsylvania law,

i ] owever, this factor in itself doesnot necessarily ae

| jen interest in favor of the application of Massac tts

yee oe IRN Spe

7 4%

aero Soetitey, RPE LN OY EERE NIE ‘

' me

aw. For example, in Kuchinic v. McCrory, 422 Pa. 620, 229

A.2d 897 (1966), a case concerning actions for the-death of

Pennsylvania domiciliaries killed in an airplane crash in

Georgia, the court, in holding that Pennsylvania law. ap-

_ plied, stated that “under no stretch of the imagination can

Georgia be viewed as a Concerned jurisdiction,” 422 Pa. at

624, 222 A.2d at 899, and implied that the Griffith case, like

Kuchinic, exemplified a “false conflict” where the place of

Re MR g A eo Bete ace al Pgh MOLLE NIE PANEL LOT salami oo

j So —

é . " <

oN C30 ‘

. injury had only ee cvcitenta\ with thie: transaction.

I Pa. at 624 n.4, 222 A.2d at 899 n. 4.

\When the facts of this case are juxtaposed with those of

Gri th and: Kuchinic, it becomes evident’ that the conflict

here is-just as “false” -as it was there. _ Appellant’s argument

that Massachusetts has a substantial interest in view of the

underlying policy of its Wrongful Death Act to deter poten-//

tial tortfeasors from engaging in tortious conduct in Massa-

chusetts is unpersuasive. If deterrence is, as it seems to he,

the underlying policy of the Massachusetts act, see Hudson

v.Lynn & B. R. BR. Co., 185 Mass. 510, 71 N.E. 66 (1904),

there can be no-impingement upon this policy by exposing |

appellant to Pennsylvania’s more ‘liberal, gompensatory

measure of damages. Indeed, liability for compensatory

damages is in itself a deterrent against tortious conduct,

and appellant cannot reasonably contend that it and other

airlines will be less careful in regulating their conduct be-

cause the Pennsylvania measure of damages, rather than

that of Massachusetts, has been held Ve apply to the instant

-and similar transactions.

Equally unpersuasive is. awe it’s argument that con-

| _ Stitutional limitations would préclude Pennsylvania courts

~ from applying Pennsylvania law/ to this case. In Richards

-_y, United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed2d 492°

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

in Missouri allegedly caused by negligent acts occurring in

Oklahoma, the Supreme Court of the United States held:

les Baie! Where more than-one State has sufficiently

substantial contact with the activity in ‘question, the

- forum State, by’ analysis of the interesfs possessed by

the States involved, could constitutionally apply to the

decision of the case the law of one or'anothef state hav-

ing such. an interest in the multistate wiles iL a

369 U.S. at 15, 82 S.Ct. at 594 u

3 /

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C31

to say that the facts before us reveal that Pennsylvania has

“sufficiently substantial contact with the activity in ques-

tion,” and under/the rule of International Shoe Co. v. State - |

of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 :

(1945), as applied-in McGee v. International Life Ins. Co., 7

355 U.S. 220, 78 S.Ct. 199, 2 L.Hd.2d 223 (1957), we hold _

that application of Pennsylvania law violated neither! the - Po.

Due Process nor the Full Faith and Credit clauses of the~ |

‘ United States Constitution. aces ae a

° r . . 4

i ™ IL. , 3

Although the issue was not extensively discussed by any |

of the parties in their briefs, we think that plaintiff also °\— =; /

presented and proved a valid diversity claim under the

Pennsylvania Wrongful Death Act: 12 Purdon’s Pa. Stat.

_vAnn. § 1601 et seq. The’ Act provides i in part:

“Whenever death shall Ye occasioned by. cane

violence or negligence, * * * the widow of any such

deceased, or if there be nd widow, the personal repre-

sentatives may mainiain/ an action for and_ recover

damages for the death he occasioned.” 12 Purdon’ t

Pa.Stat.Ann. § 1601. ( mphasis added.)

[13- 15] The. statute makes it quite clear that nator of

CF a \ Anlewful violence or negligence is necessary if one is to

~T recover under its provisions. Similarly, i ip: Griffith v. United

ey Air ‘Lines, Inc., supra, the Pennsylvania Supreme: Court

made it just. as clear that a finding of. negligence is essential

for recovery under the Survival Act-when proceeding on

the theory of breach of contract of nonnegligent carriage, ~~

As earlier observed, the court explicitly stated that “[t]he ~

[12] Without cts botor discussion.” we sist Te watbotead

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/ priaiplee which will govern defendant’s liability.are princi- —

7 ples of negligence, not of contract, since the action is for

negligent breach, not simple breach, of contract.” 416 Pa.’

at 11, 203 A.2d at 800. ‘Dys, the only logical conclusion that ~

we can draw is that the negligent breach sufficient to satisfy

the Survival Act is also sufficient to satisfy the Wrongful -

Death Act. Appellant, however, argues that such is not the

law of Pennsylvania. But since appellant cited no cases in

the short space devoted to this contention,’ we cannet be

absolutely sure as to what authority it relies on. Our own

research, however, leads us to believe that the argument is

~ bottomed upon two relatively recent Pennsylvania cases

, concerning assumpsit actions for wrongful death allegedly

caused by breach of various warranties. Miller v. Preitz, -

Pharmacal Co., 416 Pa. 580, 208 A.2d 283 (1965). The issue

‘in. Lemmon Pharmacal, supra, was whether an action for

wrongful death could be brought in assumpsit based upon

an-alleged breach of an implied warranty of fitness for use.

In holding that the action was impermissible in’ Pennsyl- . -

~-vania, the. court stated: _ f : e

asad «Sie In our view, the legislature intended to create

a right of action where déath has resulted from a :

. tortious act and that damages arising therefrom are ‘

. recoverable only in an action in trespass.” 416 Pa. at. |

585, 208 A.2d at 285-86. : - (Emphasis theirs.)

— In Miller- v. Preitz, supra, decedent’s administrator

" brought actions pine under the Wrongful Death

2 Hastern’s basic edntention is as follows: “* * * Any rights to

, recover for wrongful“death are rights created purely by statute

* for the benefit of designated beneficiaries. Any rights of statutory

’ beneficiaries arise from statute and not from dny contractual rela- |

tionship with appellant or from any notion that they were by inten--.

tion of the Parties = =e beneficiaries of’ any contractual.

provisions.’

4 - i 1 < CES

” er

A ee eM eS ay

cae 3 — oan 4 :

~ and Survival statutes for damages allegedly sain from

s of implied ‘warranties .of merchantability Ad- .

ressing itself to the administrator’ s election to fra the

“wrongful death avtion in assumpsit, the Pennsylvania Su.

. preme’ Court: riled: & / ¢

“On- the basis of our. decision in “PrBeleaino v. y

Lemmon Pharmacal Co., _416 Pa. 580, 20 “A.2d 283 ;

” 1965), the, “lowe? court properly sustainec preliminary

objections to ptaintiff’s ‘Wrongful Death’ Count.

5 ‘Lemmon Pharmacal we ‘held. that the: right of action

. provided by th “Wrongful. Death’ statute ould be

——~——*_prought only in trespass and that, ther a an action

in assumpsit for breach of warranty was ~ aa

SATB OUTS AER SN

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* + #499 Pa, at 386- 387,.221 A.2d at 322

We assume that aybpellaiit. would rely pots on the

above-quoted passages: to“8 Support the position that a con-

tractual claim. of any natute could not possibly | invoke the

| remediés afforded: _by#the Pennsylvania Wrongfil Death

| Act. It is our opinion, however, that the Pennsylvania,céurts

“~~ ‘would not view the issue in such a constricted, smyopic A) /

. @- manner, - for to do so would, in effect, amotint to a repudia-

tion of the progressive policids espoused 7 in Griffithand a

reversion to the now discredited. practice of 1 raising: form iy

above substance. Such an approach was eschewed by the ae

“ s, court in Griffith when it said: : eo Fey se

canes The essentials f this_case [negligent breach

- of contract]. yeman dg regardless . of ° its label.

_. Mere technicalities of pleading should: not blind us to

., » ‘the true nature. ofthe action. The choice-of_law Will

Pia e the same ‘whether, the action is labeled trespa

assumpsit.”, 416 Pa. at 11, 203 A.2d at 800.

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[16] Thing this latter tevin of reference, it ii

-. parent fhat “the essentials of this case” are similar to.

ae oe } ut are obviously distinguishable from

,’those of Lemmon Pharmacal and’ Preitz. Both Lemmon vs

_ Pharmacal and Preitz involved wrongful death claints for \

~breach-of warranty; in neither case was negligence alleged ®

nor proved. In’both cases, the court referred to the wording -

of the Pennsylvania Wrongful Death Act and concluded

that recovery under its provisions could only- be permitted.

upon a showing of unlawful violence or negligence. Negli,

gencé, of course, is the essence of the present claim, just ¢

as it was in Griffith. The instant plaintiff not gnly alleged \

but proved negligent breach of contract. By so doing he \

established hits-diversity right to-recover under the Pennsyl- \

vanial\ Wrongful Death Act. | \

hte

choice f rai law should also, be ‘affirmed, on the

; basis of \th applicability of Federal maritime e principles to

, 816 F.2d 758, 766 (C.A.3), oor denied, 375

U.S. 940, 848 C 348, 11 L.Ed.2d 271 (1963). n Weinstein;

it was heat helt that if fatal injuries are sustained upon

navigable waters, tort claims for those i injuries are maritime

in nature. And although this suit was brought as an action

at law, maritime principles will govern the, tort aspécts of

the case, since admiralty standards define liability fora.

maritime tort, whether the proceeding is instituted in. ad-

miralty or on the law side of the court. Pope & Talbot, Ine.

v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1958) ; .

S 4 4. oe —

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935

. Massaro v. United States, Lines Co., 307 F.2d 299 (C.A.35 a

1962) ; J. B. Effenson Co.v. Three Bays Corp, 238 F.2d 611

‘ (C.A.5, 1956). ho

Aside from certain, Congressional enactments, ‘inapyplix

‘cable here,’ maritime. law confers no right of action for

wrongful death’in state territorial waters. Hess v. United

States, 361 U.S. 314, 89 S.Cte 341, 4 L.Ed.2d 305 (1960) ;

The Harrisburgh, 119 U.S. 199, 7 S.Ct. 140,30 L.Ed. 358 -

(1886). Instead, as we’ recently pointed out in United New

York Sandy Hook Pilots Ass’n ‘v. Rodermond’ Industries, .

Inc., 394 F.2d 65 (C.4.3, 1968), admiralty courts have tra-

ditionally entertained death actions “by permitting the

wrongful death statute of the ‘state in which the death

occurred. to supplement the general maritime law. Western

Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210.

(1921). In\these situations, maritime law adopts thestate

statute, and enforces, it ‘as it would one originating in any

foreign jurisdiction.’. Levinson v. “Deupree, 345 U.S.-648,

_ 652, 73S. Ct 914; 7 L.Ed. 1319 (1953). iets |

: Eastern contends that since the fatal mishap occurred in

the territorial waters of Massachusetts, that state’s law, not

_ Pennsylvania’s, should have been chosen by the district

—eourt to supplement the general maritime law. It asserts

that this contention is supported by its inability to find one

reported ‘eas@ in this. Circuit involving death upon. state...

‘na wvigable waters where we have not applied the death

statute of the state where the tort occurred. See, | eB»

’The Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, creates rights

only for seamen. The Death on the High Seas Act, 41 up ater

46 U.S.C. §§ 761-767, applies only where the fatal injuries Are sus-

tained outside the territorial waters of the United States. And, as ;

might be imagined, this suit does not concern those rights ‘con-

ferred by the Gone

1424 et, t seq., 33 U,S.C. § 901 et seq.

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horemen’s and Harbor Workers’ Act, 44 Stat. |

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Meehan v. Gulf Oil Col ., 312 F.2d-737 (C.A.3, 1963) ; Hill

v. Waterman §, S. corn 251 F.2d 655 (C.A. 3, 1958), cert.

' denied, 9 Us 927, 79, S.Ct. 603, 3 L.Ed.2d 629 (1959) ;

Curtis v/ A. Garcia Y, Cia, 241 Fd 30 (C.A.3, 1957); The

H. S., Ine., No. 72 130 ay 341 (C.A.3, 1942) ; Klingseisen

v. Constanzo Transp. Co.,\101 F.2d 902 (C.A.3, 1939). But —

such a negative argument\ can hardly buttress Eastern’s

position, since none of the above-cited cases considered ‘the _

question of whether any/atate law other than that of the

place of i injury governed the rights and duties of the parties.

Concededly, it was stated in\The H. S., Inc., No. 72, 130 F.2d

at 343, that tliis court “made plain in Klingseisen v: Con-

stanzo Transportation Co., supra, he who seeks to recover

in admiralty under a State death statute for a maritime

tort may do so only in accordance with the law of the

State in which the tort occurred,” but analysis of the

Klingseisen decision clearly shows that the court there

_ went no further than to hold that when a plaintiff brings

suit in admiralty ander the Pennsylvania Wrongful Death

Act, he is bound. by the condition’.and limitations of that

‘statute, including the rule which bars recovery if the de-

cedent was contributorily negligent. In view of this anal-

ysis, the above-quoted statement made by ‘this court in The

#1. S., Inc., No. 72, is obviously obiter dictum, and therefore

does not constitute precedent in the consideration of the

question now before us. What is significant about Kling-

seisen and other cases relied upon by appellant is that they

are all chiefly concerned with the degree to which maritime

law will adopt and enforce the Jaw of a particular state;

they are not, nor do they purport to be, authoritiative guides

for choosing between competing state stautes.

Appellant next suggests that we should follow what it .

considers to be a recognition by the Supreme Court in The

af. > x3

' C37

Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct, 503, 3 L.Ed.2d

524 (1959), of a Congressional intent, in enacting the Death

on the High Seas Act, 41 Stat. 537, 46 U.S.C. §§ 761-767, to

leave to the several States the power [presumably exclu-

sive] to provide for claims arising out of fatal injuries

sustained in their respective territorial waters. The prob-

lem before the Supreme Court in The Tungus involved,

not a multistate conflict, but the interrelationship of mari-

time law with the law of a particular state, New Jersey.

The decedent in The Tungus was fatally injured while

‘aboard a vessel located in the navigable waters of New

Jersey, His administratrix brought suit in admiralty under

: vad Wrongful Death Act of New Jersey; no other state’s

s relied upon. However, the administratrix did argue,

in ag alternative, that if the New Jersey Wrongful Death

Act did not permit recovery, the federal courts could apply

instead the full corpus of the maritime law so long as the

state had enacted some type of wrongful death statute.

This latter alternative, the Court believed, would conflict

with “a clear congressional purpose,” disclosed by the legis- ,

lative history of the Death on the High Seas Act,

“* * * to leave ‘unimpaired the rights under State stat-

utes as to deaths on waters within the territorial

jurisdiction of the States,’ S.Rep. 216, 66th Cong., 1st

Sess. 3; H.R.Rep. No. 674, 6th Cong., 2d Sess. 3. The

record of the debate in the House of Representatives

preceding passage of the bill reflects deep concern that

the power of the States to create actions for wrongful

death in no way be affected by enactment of the federal

law. -59 Cong. Rec. 4482-4486. ” 358 US. at 593, 79

S.Ct. at 507.

C38 \

From our examination of the legislative history, we think

it apparent that Congress, in enacting the Death on the

High Seas Act, was primarily concerned with creating a

federal ‘Tight of ‘action for death on the high seas that

would not encroach upon the sovereignty of the states over

deaths caused by maritime torts within state territorjal

waters.‘ The Court in The Tungus merely reflected

concern over retaining state sovereignty by rejecting the

idea that federal maritime law could completely supplant

and render inoperative the conditions and limitations of

state death enactments. Given the nature and purpose of

the Act, we do not think that Congress contemplated, much

less intended, precluding the application of one state’s

death act to a maritime tort occurring in the territorial

waters of another state when the former state has signifi-

cant contacts with the parties and a substantial interest

in the issue involved. We are even more certain that the

Supreme Court in The Tungus attributed no such intent

to Congress.

In our judgment, the ecessary guidance for the proper

disposition of this question has been furnished by the Su-

preme Court, not in The Tungus, but in Lauritzen v. Larsen, |

345 U.S. 571, 73°S.Ct. 921, 97 L.Ed. 1254 (1953), and Romero

v. International Terminal Operating Co., 358 U.S. 354, 79

S.Ct. 468, 3 L.Ed.2d 368 (1959). In Lauritzen, supra, the

central issue was what law should be applied te the Jones

Act claim of a Danish seaman who, after-joining a Danish

vessel in an American port, was injured in the harbor of

Havana, Cuba. The Court began its analysis of the various

factors which, alone or in combination, generally influence

‘For an informative summary~6f the Act’s legislative history,

see Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D.Calif.,

1954).

® |

0 ee

o39”

the choice of law to govern a maritime tort claim upon the

premise that |

«* *.* Maritime law, like our municipal law, has

attempted to avoid or resolve ¢onflicts between com-

peting laws by ascertaining and valuing points of con- f

tact between the transaction and the states or govern-

ments whose competing laws are involved. * * *” 345

U.S. at 582 73 S.Ct. at 928.

. After reviewing the “connecting factors which either mari-

time law or our municipal law of. conflicts regards as sig-

niificant in determining the law applicable to a claim of

actionable wrong,” the Court held there was “an overwhelm-

ing preponderance in favor of Danish law. * * *” 345 U.S.

at 592, 73 S.Ct. at 933. Among the factors which the Court

considered as possible sources of significant contact were:

law of the flag, allegiance or domicile of the injured, alle-

giance of the defendant shipowner, place of contract, in-

accessibility of foreign foram, th, law of the forum, and

‘the place of the wrongful act. In/rejecting the place of the

wrongful act as a predominant /factor in determining the

law governing maritime tort claims, the Court noted that

. the lex loci delictt commissi rule would indicate application

of the law of Cuba, a country which had far fewer significant

contacts with injured seaman then did Denmark. The Court

stated: “The test of location of the wrongful act or

omission, however sufficient for torts ashore, is of limited

application to shipboard torts, because of the varieties of

legal authority over waters she may navigate.” 345 U.S.

at 583, 73 S.Ct. at 929.

Six years later, in Romero v. International Terminal

Operating Co., 358 U.S. 354, 79 S.Ct. 468 (1959), the Court

;

C40. :

again depreciated the importance of the place of injury.

Romero, a Spanish seaman who was injured abéard a vessel!

of Spanish flag owned by a’Spanish corporation; while the _

vessel was temporarily berthed in-New York, sued the

shipowner inthe United States District Court in New York

under the Jones Act and‘the gentral maritime law of the .

United States. Reasoning toward its conclusion that Span- -

ish law governed: Romero’s claims against the shipowner,

the Court stated: “The broad principles of choice of law

and the applicable criteria of selection set forth in Lauritzen

were intended to guide courts in the application of- maritime |

law generally.” 358 U.S. at 382,°79 S.Ct. at 485.

Guided by this precept, the Court of Appeals for the

Fourth Circuit in McClure v. United States Lines Co. , 368

F.2d 197 (C.A.4, 1966), a maritime death action, held that

the choice of law rule enunciated in Lauritzen dictatéd ‘a

rejection of the law of France, the place of injury and death,

in favor ‘of the application of American maritime law, be-

cause “(a]ll of the really significant relationships are with

this country, not with France.” 368 F.2d at 201.° In reach-

ing this. decision, the’ court’ ‘observed that

We 2.9 Lauritsen and Romero were forerunners of

a general caer and revision of the choice of

law rules.2 * *

Cam...

cA similar approach was followed by the Court of Appeals for

‘the Fifth Circuit in Symonette Shipyards, Ltd. v. Clark, 865 F.2d,

464 (C.A.5, 1966), cert. detiied, 387 U.S. 908, 87 S.Ct. 1690, 18

L.Ed.2d 625 (1967). There, two American seamen were injured,

one of them fatally, “on a ship registered in and flying the flag

of the Bahamas and actually owned by a citizen of that country,”

“following a stop at Nassau for unloading of cargo.” 365 F.2d. at

467: The court held that American law applied because it believed

the most significant choice of law factor to be, mot the place of

injury, but the nationality of the injured and deceased seamen.

C41

“a

“Under the new approach the laws of. the wrong will

be applied ‘in wrongful death and personal injury- ac-

“= .-_* tions “inless some other state has a more significant Seen

~ relationship with the occurrence and the parties as to.

“x. the particular issue involved * * *.” In some factual

situations, the place of the wrong may be quite ad-

ventitious, and-all really significant relations may be

with some other state.” 368 F.2d t 201.

v, As indicated earlier; we think the fact of the instant case

ay exemplify a situation where the place of the wrong was |

HT quite adventitious and where the most s. znificant relations 4

‘; and contacts are with Pennsylvania rather v! ~ with Massa: ae

chusetts. Pennsylvania is the state in which the contractual

relationship {between the decedent and Eastern arose; it is

the situs of ecedent’s domicile; and of the administration

of his estate. [The fact that the place of injury is one other

+ than the jufi dietion whose law is being applied is no more

I significant here than it was ‘in Lauritzen ahd Romero. And

“\

Our relidnce upon jLauritzen and Romero-is fortified by

- the realization that these two cases were in the vanguard )

Lapses pene 7

“ many recent enlightened decisions attacking the usefulness

and justice of rigid adherence to the strict lex‘ loci delicti BS

rule.® dqually as tinea in this regard i is. that an anal-

6 The Ritatonen (Second), Conflict of "e cites Lauritzen

vero as examples of “[c]ases emphasizing the importance

REREAD AT EL SYP ARB AGP ales « we “ oh aN 4 ae ee: 2 i eT nc

~ j a. J x : Je

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ysis of Eastern’s position here reveals. that it 1s essentially

championing a vested rights approach to. maritime wrong-

ful death and survival actions. Historically, this approach,

as embodied in the rule of lea loct delitti, dictated that the

law of the place of the tort would invariably govern, be-

cause it was believed that the right to recover for a foreign

rt was created or withheld by the law of the jurisdiction

“ where the injury occurred. Application ‘of this concept

permitted of simplicity, uniformity, and predictability, but

too often failed’ to take cognizance of legitimate interests of.

other states.?. As a result, jurisdiction after jurisdiction

has abandoned this simplistic approach in favor of more

sophisticated, meaningful, and realistic choice of law eri-

teria.’- This trend was recognized arid encouraged by the

Official Draft, Part II, 1968). And the fourth edition of Good-

rich, Conflict ‘of Law

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