Petition for Writ of Certiorari — Roberts v. United States
Supreme Court brief1974
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IN ‘THE SUPREME COURT
OF THE UNITED STATES
OCTOBER TERM, 1974
CAROLYN ROBERTS, Individually,
and STACY. ROBERTS, GAIL
ROBERTS and MATTHEW ROBERTS,
by CAROLYN ROBERTS, Their
Guardian Ad Litem,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD G. HARRIS
4500 Via Marina
Marina del Rev, California 90291
(213) 822-2061
~
NED GOOD. IAN HERZOG and AL SCHALLAU
By AL SCHALLAU
727 West Seventh Street, Suite 1127
Los Angeles, California 90017
(213) 683-0880
Attorneys for Petitioners
ER mF
TOPICAL INDEX
Table of Authorities
PETITION FOR WRIT OF
CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
OPINIONS BELOW
JURISDIC TION
QUESTIONS PRESENTED
“STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED
STATEMENT OF THE CASE
R-ASONS FOR GRANTING
THIS WRIT
ARGUMENT
Page
vi
12
14
II
THE OPINION OF THE COURT
OF APPEALS BELOW HAS
ACKNOWLEDGED THAT THERE
IS A CONFLICT OF AUTHORITY
AMONG THE LOWER COURTS
ON THE CRUCIAL LEGAL ISSUE
ON WHICH THIS CASE TURNS
(I.E., THE DISPUTED INTER-
PRETATION OF THE 1960
AMENDMENT TO SEC. 2 OF
THE SUITS IN ADMIRALTY ACT
[46 USC SEC. 742]); AND THERE
ARE NO DECISIONS FROM THE
SUPREME COURT ON THAT
CRUCIAL LEGAL ISSUE: AND
THIS CASE WAS ONE OF FIRST
IMPRESSION IN THE NINTH
CIRCUIT AS TO THAT CRUCIAL
LEGAL ISSUE. 14
IN ITS RESOLUTION OF THE
PURPORTED CONFLICT OF
JURISDICTION BETWEEN THE
FEDERAL TORT CLAIMS ACT
AND THE SUITS IN ADMIRALTY
ACT, AS SUCH CONFLICT
RELATES TO AVIATION TORT
CLAIMS ON NAVIGABLE WATERS,
THE DECISION OF THE COURT
OF APPEALS BELOW IS SQUARELY
IN CONFLICT WITH THE HOLDING
OF THE THIRD CIRCUIT IN
BLUMENTHAL V, UNITED STATES,
306 F.2ND 16 (3RD CIR, 1962),
AFFIRMING THE OPINION OF
ii.
III
IV
Page
THE DISTRICT COURT REPORTED
AT 189 F. SUPP. 439 (E,D.-PA.,
1960). RESOLUTION OF THAT
CONFLICT BY THE SUPREME
COURT IS NECESSARY IN THIS
CASE, 22
AS THE OPINION OF THE
COURT OF APPEALS BELOW
HAS STATED, THIS CASE
RAISES THE VERY ISSUE
WHICH THE SUPREME COURT
EXPRESSLY LEFT UNANSWERED
IN EXECUTIVE JET AVIATION,
INC. V. CITY OF CLEVELAND,
409 U.S. 249 (1972), (ILE.,
V},HETHER AN AVIATION TORT
CLAIM IS COGNIZABLE UNDER
MARITIME LAW, WHERE THE
AVIATION ACCIDENT OCCURS
DURING A TRANSOCEANIC
F LIGHT). 25
THE DECISION OF THE COURT
OF APPEALS BELOW RAISES A
VERY SIGNIFICANT ISSUE OF
FEDERAL STATUTORY CON-
STRUCTION WHICH REQUIRES
RESOLUTION BY THE SUPREME
COURT, PARTICULARLY TO
THE EXTENT THAT THE COURT
OF APPEALS' DECISION
CONSTITUTES A HOLDING THAT
THE 1960 AMENDMENT TO 46
USC SEC. 742 WAS A REPEAL
iii.
VI
Pa ge
BY IMPLICATION OF THE
PRE-1960 CONSENT OF THE
UNITED STATES THAT HAD
PERMITTED MARITIME WRONG-
FUL DEATH ACTIONS TO BE
MAINTAINED AGAINST THE
UNITED STATES UNDER THE
FEDERAL TORT CLAIMS ACT, 28
THE DECISION OF THE COURT
OF APPEALS BELOW (WHICH
INTERPRETS THE INTENT OF
CONGRESS IN ENACTING THE
1960 AMENDMENT TO 46 USC
SEC, 742), HAS CAUSED A
MOST SIGNIFICANT FEDERAL
CONSTITUTIONAL ISSUE TO BE
PRESENTED, WHICH IS WHETHER
THE LANGUAGE CONTAINED IN
46 USC SEC, 742 VIOLATES
FEDERAL CONSTITUTIONAL
STANDARDS OF VAGUENESS
AND FAIR WARNING. 31
A JUDICIAL DEFINITION BY
THE SUPREME COURT IS
NEEDED OF THE WORD
"STATE" CONTAINED IN THE
DEATH ON THE HIGH SEAS ACT
(46 USC SEC. 761 ET SEQ, ).
THIS CASE PRESENTS THAT
ISSUE FOR DETERMINATION, 37
VII INTERVENTION BY THE
SUPREME COURT IS NECES-
SARY IN THIS CASE TO
PREVENT THE COURT OF
APPEALS' ADMITTEDLY
"HARSH RESULT" FROM
PERPETRATING A MANIFEST
MISCARRIAGE OF JUSTICE
UPON PETITIONERS,
VIII THE RECURRING NATURE OF
THE ISSUES HEREIN PRESENTED
(CONCERNING AVIATION TORT
CLAIMS) CAUSES THOSE ISSUES
TO ASSUME ENORMOUS
GENERAL IMPORTANCE DUE
TO THE CONTINUOUS EXPAN-
SION OF AVIATION ACTIVITIES
ON AN INTERNATIONAL SCOPE,
RESOLUTION OF CRUCIAL
LEGAL ISSUES THAT HAVE
THUS FAR GONE UNRESOLVED
BY THE SUPREME COURT, IS
NECESSARY FOR THE BENEFIT
OF ALL LOWER COURTS, THE
BAR, AND THE AVIATION
INDUSTRY.
CONCLUSION
Page
39
41
43
TABLE OF AUTHORITIES
Cases Page
Blumenthal v. United States (1962)
306 F.2d 16 Si: 2Ba Bees
22, 23, 39, 40
Bouie v. City of Columbia (1964)
378 U.S. 347 23, 32, 33, 35
Calmar S.S. Corp. v. U. S. (1953)
345 U.S. 466 24
Executive Jet Aviation, Inc. v. City
of Cleveland (1972)
409 U.S. 249 4, 12, 25, 26
Galef v. U.S. (1928)
25 F. 2d 134 38
J. W. Petersen Coal & Oil Co.
v. United States (1970)
323 F. Supp. 1198 19, 20, 21
Jones v. Alfred H. Mayer Co. (1968)
392 U.S. 409 29
Kropp v. Douglas Aircraft Co. (1971)
329 F. Supp. 447 24, 25
Lambert v. People of the State of
California (1957)
355 U.S. 225 35, 36
McBoyle v. United States (1931)
283 U.S. 25 33
vi.
Page
McMaster v. New York Life
Insurance Co. (1901)
183 U.S. 25 35
Milliken v. Meyer (1940)
311 U.S. 457 39
Moragne v. States Marine Lines, Inc. (1970)
398 U.S. 375 ™ 27, 38
Moran v. United States (1951)
102 F. Supp. 275 i 8, 39, 40
Osborn v. Nicholson (1871) ~
80 U.S. 654 ; 30
Panama Railroad v. Napier Shipping
Company (1897)
166 U.S. 280 38
Pritchard v. Norton (1882) \
106 U.S. 124 . 36
Rosenberg v. United States (1953),
346 U.S. 273 29
United States v. Heth (1806)
7U.S. 399 35
U.ited States v. Pennsylvania
Chemical Corporation (19732) ‘
411 U.S. 655 . 39, 40
Wilmot v. Mudge (1880)
103 U.S. 217 . 29
vii.
Page
Wynne v. United States (1910)
217 U.S. 234 38
Constitution
Constitution of the United States,
Sth Amendment 6
Statutes
28 USC
§ 1292 (b) 2
§ 1346 (b) 5, &, 10, 12, 13,
18, 22, 27, 28, 29, 32, 34, 36, 41
§ 2401 (b) 6, 7, 8
§ 2671 5, 8
§ 2674 6
§ 2675 6, 7
§§2679, 2680 6
46 USC
§ 740 6
§ 741 9, 22, 23
§§ 741-752 3, 6
§ 742 3, 4, 5, 10, 11, 12, 13, 14,
19, 22, 28, 31, 32, 33, 34, 37
viii.
eee ee ——
2
Page
46 USC
§§ 761-767 6. & 86. 43,
23, 24, 37, 38, 39
§ 781 23, 41
§§ 781-790 6
Textbooks
2 Jayson Handling Federal Tort Claims
§ 257
17, 18
berets
No.
IN THE
SUPREME COURT
OF THE UNITED STATES
OCTOBER TERM, 1974
i
:
|
Speen HS TRE ARR 4
CAROLYN ROBERTS, Individually,
and STACY ROBERTS, GAIL
ROBERTS and MATTHEW ROBERTS,
by CAROLYN ROBERTS, Their
Guardian Ad Litem,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
' PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioners pray that a writ of certiorari issue
to review the judgment and opinion of the United
States Court of Appeals for the Ninth Circuit,
entered in the above entitled case on June 6, 1974,
petition for rehearing denied July 9, 1974.
OPINIONS BELOW
The opinion of the Court of Appeals below, as
yet unreported, is attached hereto as Appendix A.
By said opinion, the Court of Appeals reversed
an order of the District Court for the Central
District of California, in which the District
Court had denied the United States' Motion for
Dismissal of Petitioners' Complaint.
The Minute Order issued by the District
Court for the Central District of California
which denied the motion of the United States
to dismiss petitioners' First Amended Com-
plaint (unpublished) is attached hereto as
Appendix B.
The "Order Amending Order Denying
Mc'*>n to Dismiss,'' signed and filed in the
Uistmct Court for the Central District of
California on June 12, 1973 (unpublished)
by the terms of which the District Court
certified its order entered April 30, 1973
for interlocutory appeal under 28 USC Sec.
1292(b), is attached hereto as Appendix C.
The Order of the United States Court of
Appeals for the Ninth Circuit denying the
Petition for Rehearing, which Order was filed
on July 9, 1974, is attached hereto as
Appendix D.
JU RISDIC TION
The judgment of the Court of Appeals of
the Ninth Circuit was entered on June 6,
1974. A timely Petition for Rehearing was
denied on July 9, 1974. The jurisdiction
of this Court is invoked under 28 USC Sec.
1254(1).
QUESTIONS PRESENTED
1. Where the opinion of the Court of
Appeals below has acknowledged that there
is a conflict of author:iy among the lower
courts on the crucial legal issue on which
this case turns (i.e., the disputed inter-
pretation of the 1960 amendment to Section 2
of the Suits in Admiralty Act [46 U.S.C.
§742]); and there are no decisions from the
Supreme Court on that crucial legal issue; and
the case was one of first impression in the Ninth
Circuit as to that crucial legal issue; -- under
such circumstances, where the law applicable
is admittedly unciear, cana statute of limita-
tions bar be constitutionally applied to
absolutely bar a plaintiff's cause of action for
wrongful death against the United States?
2. Ina case which does not involve a
"public vessel, '' can it properly be held that
plaintiff's sole and exclusive remedy for
wrongful death is under those laws entitled
"Suits in Admiralty by or Against Vessels or
Cargoes of United States," (46 U.S.C.
§§ 741-752)?
3. In actions against the United States
for aviation wrongful death occurring in
navigable waters, did Congress, by its 1960
amendment to Sec. 2 of the Suits in Admiralty
Act (46 USC Sec. 742) thereby revoke and repeal
the United States' pre-1960 waiver of sovereign
immunity that had previously authorized such
claims against the United States to be asserted
under the Federal Tort Claims Act?
4. If (as the Court of Appeals below has
held in this case) the 1960 amendment to Section
2 of the Suits in Admiralty Act (46 U.S.C. §742)
did constitute a repeal and revocation of the
United States' pre-1960 consent to having such
claims asserted under the Federal Tort Claims
Act; -- does the language used in 46 U.S.C.
§ 742 to manifest such repeal violate Federal
constitutional standards of vagueness and fair
warning ?
5. Where an amending statute (46 USC
Sec. 742) contains no express revocation of a
prior waiver of sovereign immunity, can sucha
revocation be found by implication without violat-
ing Federal constitutional standards of fair warning?
6. Concerning aviation tort claims, the
opinion of the Court of Appeals below stated:
"This appeal invites an examination of whether,
under the circumstances shown here, an
aviation tort claim is cognizable under mari-
time law.'' As acknowledged by the Court of
Appeals below, the Supreme Court expressly
reserved decision on this question in Executive
Jet Aviation, Inc. v. City of Cleveland, 409
U.S. 249 (1972). That question is squarely
4,
presented by this case.
7. Do the words ''occurring on the high
seas beyond a marine league from the shore of
any State, or the District of Columbia, or the
Territories of or dependencies of the United
States,'' found in 46 USC §761 (Death on the
High Seas Act) refer to States of the United
States of America? Or is the foreign country
of Okinawa considered a ''State'' within the
meaning of 46 USC $761?
8. Concerning aviation tort claims for
death occurring on navigable waters, are the
tort remedies against the United States provided
by 46 USC §742 (Suits in Admiralty) and the
Federal Tort Claims Act (28 USC §1346(b) and
§ 2671 et seq. ), mutually exclusive to the extent
that a plaintiff will suffer an absolute forfeiture
of his cause of action if it turns out that his
attorney guessed wrong ?
9. Where the decision of the Court of
Appeals below has by the Court's own admission
reached a "harsh result, '' where the crucial
legal issues on which the case turns are mani-
festly unclear, should the Supreme Court
exercise its power of supervision over the lower
court to prevent the perpetration of a harsh
miscarriage of justice?
=
bat ear SL re
STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED
(1) Fifth Amendment, Constitution of the
United States, provides in pertinent part:
"No person shall be. . . deprived of life,
liberty, or property without due process
i: ee
(2) Federal Tort Claims Act, 28 USC
§1346(b); §2401(b); §2674; §2675; §2679; §2680.
(Texts of applicable statutes are at Appendix
E, pp. 1-5).
(3) Suits in Admiralty by or against
Vessels or Cargoes of United States, Title 46
U. S. Code, Chapter 20. (46 USC §§741-752".
(Texts of the statutes are at Appendix E, pp. 5-13).
(4) 46 USC §740 - Extension of Admiralty
and Maritime Jurisdiction.
(Text of statute is at Appendix E, pp. 13-14).
(5) Death on the High Seas Act, Title 46,
U. S. Code, Chapter 21. (46 USC §§761-767).
(Texts of statutes are at Appendix E, pp. 14-17),
(6) Suits in Admiralty Against United
States for Damages Caused by Public Vessels
("Public Vessels Act"), Title 46 U. S. Code,
Chapter 22. (46 USC §§781-790).
(Texts of statutes are at Appendix E, pp. 17-21).
oy aoe ieienisieemmatnen
STATEMENT OF THE CASE
Petitioners are the widow and three minor
children of Decedent Walter Roberts, who died
on July 27, 1970 when the cargo plane on which
he was the navigator crashed in navigable
waters off the coast of Okinawa. The plane,
which was owned by Flying Tiger Lines, was
approaching the Naha Air Base, Okinawa, for
a ground controlled landing when it crashed in
navigable waters 1500 to 1900 feet short of the
runway.
The subject aircraft was on a trans-oceanic
cargo flight that had originated in Los Angeles,
and was bound for Victnam.
Petitioners filed a timely administrative
claim under the Federal Tort Claims Act
(28 USC Sec. 2401[b] and Sec. 2675) on July
26, 1972, which was rejected by the appropri-
ate Federal agency on August 22, 1972.
Petitioners then filed a timely suit under the
Federal Tort Claims Act against the United
States on November 21, 1972 in the District
Court for the Central District of California. |
By their First Amended Complaint, petitioners
asserted two bases of liability against the
United States:
(1) That United States Air Force personnel
negligently directed the ground controlled
landing; and
(2) That after the crash of the aircraft in
navigable waters, United States Air Force
personnel negligently failed to rescue plaintiffs'
‘es
decedent from said waters.
Petitioners' counsel proceeded against the
United States under the Federal Tort Claims
Act, relying on .... authority of Blumenthal v.
United States, 306 F.2d 16 (3rd Cir. 1962),
affirming the District Court's opinion at 189
F. Supp. 439 (E.D.-Pa. 1960); and Moran v.
United States, 102 F. Supp. 275 (Conn. 1951).
' Petitioners' First ‘Amended Complaint
pleaded three causes cf action, all relying upon
the same specific acts of negligence described
above. The First Cause of Action asserted
that the District Couri had jurisdiction under
the Federal Tort Claims Act (28 USC Sec.
,1346(b) and Sec. 2671‘et seq.); the Second
Cause of Action was asserted as a "Maritime
Wrongful Death" under the general admiralty
and maritime jurisdiction (Federal Rule of
Civil Procedure 9(h); and the Third Cause of
Action was based on the ''Death on the High
Seas Act," (46 USC Sec. 761-767), and
asserted that the subject plane crash and death
occurred in navigable waters on the high seas
"more'than a marine league from the shores
_of the United States.".
The Government moved to dismiss the
First Amended Complaint, contending that the
aviation crash did not give rise to a maritime
Claim. Secondarily, the Government contend-
ed that even if maritime jurisdiction were
appropriate, petitioners' suit against the United
States was cognizable solely under the statutes
entitled "Suits in Admiralty By Or Against
Vessels Or Cargoes Of The United States,"
8.
(46 USC Sec. 741-752).
The District Court below rejected the
Government's contention, and at oral a. ,ument
the District Court stated: ''I think where the
Government is in error is that you're trying to
rely on the Admiraity Section, which involves
public vessels and we don't have a suit against
public vessels here.'' The District Court
concluded that it had Jurisdiction to entertain
petitioners’ suit as a maritime wrongful death
action under the Federal Tort Claims Act.
The District Court below certified its
order denying the Government's Motion to
Dismiss,for Interlocutory Appeal under 28
USC Sec. 1292(b) (Appendix C), the District
Court being of the opimon that the Government's
Motion to Dismiss raised a ciose jurisdictional
question.
The Court of Appea!s for the Ninth Circuit
reversed the District Court and held that the
Government's Motion to Dismiss should have
been granted (Appendix A, p. 10). A
Timely Petition for Rehearing filed by your
petitioners was denied by the Court of Appeals
below on July 9, 1974 (Appendix D, pp. 1-2).
The Court of Appeal below held that
although petitioners’ administrative claim and
lawsuit were both timely filed under the
Federal Tort Claims Act (FTCA) (28 USC
Sec. 2401{b]), petitioners should have filed
their suit under the Suits in Admiralty Act
(46 USC Sec. 741-752).
9.
In making its decision, the Court of Appeal
below held: (a) that by reason of the 1960
amendment to Sec. 2 of the Suits in Admiralty
Act (46 USC Sec. 742), all aviation wrongful
death actions against the United States arising
under the general maritime law or under the
Death on the High Seas Act must now be brought
exclusively under the Suits in Admiralty Act
(SIA); and (b) that the necessary corollary is
that petitioners' action for aviation wrongful
death in this case cannot be maintained under
the FTCA (Appendix A,pp.8-9),
The Court of Appeal below stated: ‘We
therefore conclude tinct to the extent that appel-
lees' claim is ccgnizable in admiralty, it is
governed by the Suits in Admiralty Act and
absolutely time-barred by Sec. 745 of that
Act. The Government's Motion to Dismiss
should have been granted." (Appendix A,
p. 10).
The opinion of the Court of Appeal below
acknowledged that the result reached was
"harsh" (Appendix A, p. 9), and further stated
that petitioners' maritime claim here presented
was properly maintainable under the FTCA
prior to the 1960 amendment to the Suits in
Admiralty Act (46 USC Sec. 742). The Court
of Appeal below (while acknowledging that
there was post-1960 judicial authority to the
contrary) held that the 1960 amendment to 46
USC Sec. 742, ". . . has been interpreted by
a majority of courts as a legislative attempt
to bring all maritime torts asserted against
the United States within the purview of the
SIA." (Citations of supporting and contrary
10.
authorities follow). (Appendix A, p. 8).
The above holding of the Court of Appeals
for the Ninth Circuit in this case is squarely
contrary to the post-1960 decision of the Third
Circuit Court of Appeals in Blumenthal v.
United States, 306 F. 2d 16 (3rd Cir. 1962),
which affirmed the opinion of the District
Court which is at 189 F.Supp. 439 (E. D. -Pa.
1960). Although the Blumenthal case, supra,
was extensively briefed and argued in the
Court of Appeals below, the case was not cited
or mentioned at all in the opinion of the Court
of Appeals below (Appendix A). Concerning
the Blumentnal case, supra, during oral argu-
ment in the Court of Appeals below, Circuit
Judge Hufstedler very correctly pointed out to
counsel that the Ninth Circuit is not bound to
follow the decisions of the Third Circuit.
In the Ninth Circuit, this was a case of
first impression as to the crucial issue on
which the Court of Appeals below held that
the case must be summarily dismissed. There
are no decisions of the Supreme Court on that
crucial issue (i.e., the disputed interpretation
of the 1960 amendment to 46 USC Sec. 742).
Petitioners respectfully pray that this
Court grant a Writ of Certiorari in this case to
resolve the obvious conflicts in the various
lower courts concerning the crucial issues of
Federal statutory construction on which this
case turns.
11.
REASONS FOR GRANTING
THIS WRIT
(1) The opinion of the Court of Appeals below
has acknowledged that there 1s a conflict of
authority among the lower courts on the crucial
legal issue on wnicnh this caseturus(i.e., the
disputed interpretation of the 1960 amendment
to Sec. 2 of the Suits in Admiralty Act [46 USC
Sec. 742]); and there are no decisions from
the Supreme Court on that crucial legal issue;
and this case was one of first impression in
the Ninth Circuit as to that crucial legal issue.
(II) In its resolution 1 the purported conflict
of jurisdiction between the Federal Tort Claims
Act and the Suits in Admiralty Act, as such
conflict relates to aviation tort claims on
navigable waters, the decision of the Court of
Appeals below is squarely in conflict with the
holding of the Third Circuit in Biumenthal v.
United States, 306 F.2d 16 (2rd Cir. 1962),
affirming the 9pinion ot the District Court
reported at 189 F. Supp. 439 (E. D. -Pa.,
1960). Resolution of that conflict by the
Supreme Court is necessary.
(II1) As the opinion of the Court of Appeals
below has stated, this case raises the very
issue which the Supreme Court expressly left
unanswered in Executive Jet Aviation, Inc. v.
City of Cleveland, 409 U.S. 249 (1972), (i.e.,
whether an aviation tort claim 1s cognizable
under maritime law, where the aviation acci-
dent occurs during a trans-oceanic flight).
‘ ee Ca . ’ Pvgiy wir oA te ne,
® — .
(IV) The decision of the Court of Appeals be-
low raises a very significant issue of Federal
statutory construction which requires resolu-
tion by the Supreme Court, particularly to the
extent that the Court of Appeals' decision
constitutes a holding that the 1960 amendment
to 46 USC Sec. 742 was a repeal by implication
of the pre-1960 consent of the United States
that had permitted maritime wrongful death
actions to be maintained against the United
States under the Federal Tort Claims Act.
(V) The decision of the Court of Appeals below
(which interprets the intent of Congress in
enacting the 1960 amc ndment to 46 USC Sec.
742), has caused a most significant Federal
Constitutional issue to be presented, which is
whether the language contained in 46 USC Sec.
742 violates Federal Constitutional standards
of vagueness and fair warning.
(VI) A judicial definition by the Supreme
Court is needed of the word "'State"’ contained
in the Death on the High Seas Act (46 USC Sec.
761). This case presents that issue for
determination.
(VII) Intervention by the Supreme Court is
necessary in this case to prevent the Court of
Appeals' admittedly "harsh result'' from per-
petrating a manifest miscarriage of justice
upon petitioners.
(VIII) The recurring nature of the issues
herein presented (concerning aviation tort
claims) causes those issues to assume enor-
mous general importance due to the continuous
13.
expansion of aviation activities on an inter-
national scope. Resolution of crucial legal
issues that have thus far gone unresolved by
the Supreme Court, is necessary for the
benefit of all lower courts, the Bar, and the
aviation industry.
ARGUMENT
I
THE OPINION OF THE COURT OF
APPEALS BELOW HAS ACKNOW-
LEDGED Ti'AT THERE IS A
CONFLICT OF AUTHORITY AMONG
THE LOWER COURTS ON THE
CRUCIAL LEGAL ISSUE ON WHICH
THIS CASE TURNS (I. E., THE DIS-
PUTED INTERPRETATION OF THE
1960 AMENDMENT TO SEC, 2 OF
THE SUITS IN ADMIRALTY ACT [46
USC SEC. 742]); AND THERE ARE NO
DECISIONS FROM THE SUPREME COURT.
ON THAT CRUCIAL LEGAL ISSUE;
AND THIS CASE WAS ONE OF FIRST
IMPRESSION IN THE NINTH CIRCUIT
AS TO THAT CRUCIAL LEGAL ISSUE,
The opinion of the Court of Appeals below
stated:
"It is axiomatic that Congressional waiver
of sovereign immunity is’ a prerequisite
to any suit brought against the United
States under admiralty law or otherwise.
14,
° 7. wie
, ‘
~ ae Nl be
"Recognizing this fact, the appellees rely
upon the Federal Tort Claims Act, 28 USC
Sec. 1346(b), 2671 et seq., as an expres-
sion of the governmental consent to be
sucd., The United States, however,
contends that maritime claims against the
Government arising under either the Death
on the High Seas Act or the general mari-
time law are cognizable solely under two
specific admiralty statutes, the Suits in
Admiralty Act (SIA), 46 USC Sec. 741-742
and the Public Vessels Act, 46 USC Sec.
781-790."
a“ % * *
"The District Court, believing that the
admiralty statutes extended only to claims
involving United States vessels or cargo
concluded that the appellees' maritime
claim was maintainable solely under the
FTCA. Prior to 1960, this interpretation
of the intersecting scope of the statutes
would have been correct. However, in
1960, Congress amended Sec. 742 of the
SIA by deleting the language which res-
tricted the statute to claims involving
merchant vessels and substituting a broad
new jurisdictional statement:
, 'In cases where if such vessel were
privately owned or operated, or such
cargo were: privately owned or pos-
sesge:’, or if o private person or
property were involved, a proceeding
in admiralty could be maintained, any
appropriat~ nonjury proceeding in
15.
$
¢
3
Ps RYO oO
personam may be brought against the
United States... ."
The addition of the phrase ‘or if a private
person. . . were involved’ has been inter-
preted by a majority of courts asa
legislative attempt to bring all maritime
torts asserted against the United States
within the purview of the SIA. (Citations
of supporting and contrary authority follow. )
"We therefore conclude that the Suits in
Admiralty Act, as amended, encompasses
aviation wrongful death actions against the
United States arising under the general
maritime law or under the Death on the
High Seas Act. (Citations.) The neces-
sary corollary is that the appellees' action
is therefore not maintainable under the
FTCA. (28 USC Sec. 2680(d)."
Appendix A, pp. 8-9.
Footnote 11 of the opinion of the Court of
Appeals below states:
", . . While the appellees' claim arising
out of the (subsequent rescue operations)
is more readily classified as 'maritime'
in nature, it still requires the pleading of
an appropriate jurisdictional statute
authorizing suit against the Government.
Since we conclude that the SIA is the only
statute proper in this instance, we hold
16.
that the appellees' action based either
upon the crash or upon the rescue opera-
tions is not maintainable under the FTCA."
(Appendix A, p. 9).
%
"While the result is harsh, it is well
established that the limitations period in
the Suits in Admiralty Act is jurisdictional
in nature:'' (Appendix A, p. 9).
"We therefore conclude that to the extent
that the appellees' claim is cognizable in
admiralty, it is governed by the Suits in
Admiralty Act and absolutely time-barred
by Sec. 745 of that Act. The Government's
motion to dismiss should have been
granted. Reversed." (Appendix A, p. 10).
4
The Court of Appeal below has acknowledged
that the various lower courts are not in unani-
mous accord with the result reached by the
Court of Appeals in this case. In 1968 it was
po'nted out in 2 Jayson Handling Federal Tort
Claims, Sec. 257, that:
"It is no longer open to question that a
maritime tort for which no remedy is
provided either by the Suits in Admiralty
Act or by the Public Vessels Act may be
the basis of a claim under the Tort Claims
Act. Thus, the United States may be
17.
held liable under the Tort Claims Act
for a drowning when a tug was caused to
capsize on navigable waters; (Hess v.
United States, 361 U.S, 314 [1960]; or
for a Civilian's death occurring when he
bailed out of a military plane being
negligently operated over international
waters (Blumenthal v. United States, 306
F.2d 16 (3rd Circ., 1952);. .. or for
negligence in connection with rescue
operations at sea (United States v. DeVane,
306 I. 2d 182 [5th Cir., 1962]; United
States v. Gavagan, 280 F. 2d 319 (5th Cir.,
1960], certiorari denied 364 U.S. 933
{[1961]); or for injuries sustained as the
result of the absence of a guard rail by
workmen repairing a lighthouse located
on a breakwater (Gowdy v. United States,
271 F. Supp. 733 (W.D. 1967)"
(Emphasis added).
The state of uncertainty that exists in this
area of the law is cogently illustrated by a
contention made by the Government in its
Openi::; — :ief i ‘curt of ..,-eals below in
which the Government contended simultaneously
that petitioners could not maintain their action
under the Federal Tort Claims Act because
their remedy was exclusively in admiralty;
and to apparently cover itself against all
possible contentions by petitioners, the Govern-
ment's Opening Brief also includes the following
diametrically opposite contention:
"The considerations behind Executive Jet
underscore the inapplicability of admiralty
law to the present case. Here, as
18,
already mentioned, plaintiff alieges
negligent conduct by Government air
traffic controllers and Air Force person-
nel occurring on land at the Naha Air
Base, Okinawa. The accident occurred,
according to the amended complaint,
'while this aircraft was making an approach
to landing at Naha Air Base, Okinawa'
and this accident, like the one in Executive
Jet, was 'only fortuitously and incidentally
connected to navigable waters' and bore
no 'significant relationship to traditional
maritime activity.' This is not evena
case of a mid-vceanic crash over which
‘it could be argued' admiralty jurisdiction
attached." (Government's Opening Erief,
pp. 19-20).
The uncertainty as to whether any remedy
existed in admiralty in fuvor of petitioners in
this case, makes it man: festly unjust that
petitioners have been made to suffer summary
dismissal of their cause of action for wrongful
death for simply having guessed wrong.
The Government's contention concerning
the 1960 amendment to 46 USC Sec. 742, which
was embraced by the Court of Appeals below,
was summarily rejected in 1970in J. W.
Petersen Coai « Oil Company v. United States,
323 F. Supp. 1198 (N, D. -Ill., 1970), as
follows:
"The Government concedes that before
1960 in cases not involving Government
vessels it had not consented to be sued
under the Suits in Admiralty Act and that
19,
, — |
:
ye
‘
<M OP.
the Federal Tort Claims Act constituted
the Government's waiver of sovereign
immunity for maritime torts not involving
Government vessels." (323 F. Supp. at
p- 1203).
we we ae
a4 - 2f
"In 1960, Congress amended 46 USC Sec.
742, Therein the Government contends
that by the inclusion of the words 'or if a
private person or property were involved'
Congress intended to include all maritime
torts within the Suits in Admiralty Act
and not just taose involving vessels owned,
possessed, or operated by or for the
Government. . . . This court believes
that the 1960 amendment had no such
purpose.
te J
- °
"That the 1960 amendment was not intended
to change the requirement of a vessel
‘owned by. . . or in possessionof...
or operated by or for the United States, '
is supported by the immediate statutory
context of the phrase in question. Van
Dusen v. Barrack, 376 U.S. 612 (1964).
The full title is Suits in Admiralty by or
against Vessels or Cargoes of the United
States. The amended 46 USC Sec. 742,
itself, still speaks of suits being brought
in the district 'in which the vessel or cargo
charged with liability is found.' And 46
USC Sec. 740 speaks of presenting a claim
to the 'agency owning or operating the
20.
vessel' involved. . . . Petition of the
United States, 216 F. Supp. 775 (D. Or.
1963) also supports the view that a
Government vessel is still required.
Based on the foregoing, the court concludes
that unless the vessel was 'owned by...
in the possession of. . . or operated by
or for the United States' there is no remedy ©
available under the Suits in Admiralty Act.
If that be so, then there is no bar to an
action under the Federal Tort Claims Act."
(323 F. Supp. at pp. 1204-1205).
Ae
f os
Petitioners respectfully submit that the
granting of this writ is necessary to resolve
the above conflict among the various lower
courts which concerns the very issue on which
this case was decided in the Court of Appeals
below.
aie
-
8 Aa PEP AGT a SE
Il
IN ITS RESOLUTION OF THE PURPOR-
TED CONFLICT OF JURISDICTION
BETWEEN THE FEDERAL TORT CLAIMS
ACT AND THE SUITS IN ADMIRALTY
ACT, AS SUCH CONFLICT RELATES
TO AVIATION TORT CLAIMS ON NAVIG-
ABLE WATERS, THE DECISION OF
THE COURT OF APPEALS BELOW IS
SSQUARELY IN CONFLICT WITH THE
HOLDING OF THE THIRD CIRCUIT IN
BLUMENTHAL V. UNITED STATES,
306 F.2ND 16 (3RD CIR, 1962),
AFFIRMING THE,OPINION OF THE
: DISTRICT COURT REPORTED AT 189
, F, SUPP. 439 (E.D.-PA., 1960).
RESOLUTION OF THAT CONFLICT BY
| THE SUPREME COURT IS NECESSARY
IN THIS CASE,
;
|
:
eh aT adn
er |
WO RRO Le ey
~~
OE TOURED ore
Although the Blumenti:ai case, supra, was
extensively briefed and argued by both parties,
the opinion of the Court of Appeals below does
not cite or mention the Blumenthal case at all.
| Blumenthal was an action for aviation wrongful
\; death. None of the cases cited by the Court
. of Appeal below in support of its interpretation
of the 1960 amendment to 46 USC Sec. 742,
involved actions for aviation wrongful death,
and none of those cited cases are from the
Ninth Circuit. ° :
In the Court of Appeals below, the govern-
ment sought to distinguish the Blumenthal case
solely on the basis that it was filed prior to
;
‘
;
99 y
a) 5
. y ’ . orraperrcumere- Ee ss wee? peer gy
‘
1960 (even though it was decided by the Third
Circuit Court of Appeals in1962). However,
neither the Government nor the Court of Appeals
has cited any cases that have distinguished or
overruled the Blumenthal holding on the basis
urged by the Government in this case.
To now reject the Blumenthal holding and
apply such rejection retroactively to forever
bar petitioners' cause of action for wrongful
death is the very kind of "unforeseeable and
retroactive" judicial construction of statutes
which the Supreme Court rejected in Bouie v.
City of Columbia, 378 U.S. 347 (1964).
In the Blumenthal case, supra, the Third
Circuit held that in an action for aviation wrong-
ful death brought against the United States under
the Death on the High Seas Act, 46 USC Sec.
761 et seq., the absence of any involvement of
a vessel of the United States dictated that
plaintiff's cause of action must be pursued
under the waiver of sovereign immunity pro-
vided by the Federal Tort Claims Act (28 USC
Sec. 1346[b]). The Third Circuit further stated
that the absence of a vessel of the United States
precluded invoking jurisdiction against the
United States under the Public Vessels Act,
46 USC Sec. 781 et seq., or the Suits in
Admiralty Act, +6 USC Sec. 741 et seq.
Obviously, the holding of the Third Circuit
in the Blumenthal case, supra, is diametrically
contrary to the holding of the Ninth Circuit in
the case at bar. The Ninth Circuit has held in
the case at bar that an action for aviation
wrongful death against the United States
23.
aden
a
brought under the Death on the High Seas Act,
must be based on the waiver of sovereign
immunity contained in the Suits in Admiralty
Act or the Public Vessels Act, notwithstanding
that there was no public vessel of the United
States involved in this case.
The District Court below, in denying the
Government's motion to dismiss, stated:
"I think where the Government is in error
is that you're trying to rely on the
Admiralty Section, which involves public
vessels and we don't have a suit against
public vessels here."
The Supreme Court has held that a privately-
owned ship operating on a war mission for the
United States was employed as a merchant
vessel, and not as a public vessel subject to the
Public Vessels Act. Calmar S.S. Corporation
v. United States, 345 U.S. 446 (1953).
4
Another post-1960 aviation wrongful death
case which reached a holding contrary to that
of the Court of Appeals below is Kropp v.
Douglas Aircraft Company, 329 F. Supp. 447
(E.D.-N. Y., 1971), in which the District
Court stated that:
"Suits maintainable against the private
person based on the Death on the High
Seas Act may similarly be brought
against the Government by virtue of the
Federal Tort Claims Act. . . unless the
suit comes within the exceptions to the
Act, as to which the Government does not
24.
v Siero
: waive its sovereign immunity."' (329 F.
Supp. at p. 455).
Your petitioners respectfully pray that this
Court issue its Writ of Certiorari to resolve
the above described conflict among the lower
courts.
III
AS THE OPINION OF THE COURT OF
APPEALS BELOW HAS STATED, THIS
CASE RAISES THE VERY ISSUE WHICH
THE SUPREME COURT EXPRESSLY
LEFT UNANSWERED IN EXECUTIVE
JET AVIATION, INC, V. CITY OF
CLEVELAND, 409 U.S. 249 (1972),
(I.E., WHETHER AN AVIATION TORT
CLAIM IS COGNIZABLE UNDER
MARITIME LAW, WHERE THE AVIA-
TION ACCIDENT OCCURS DURING A
TRANSOCEANIC FLIGHT),
As noted earlier, the Government contended
in the Court of Appeal below that this accident
"bore no significant relationship to traditional
maritime activity, '' and that "this is not even
a case of a mid-oceanic crash over which it
could be argued admiralty jurisdiction attached. "’
(Government's Opening Brief, p. 20).
Concerning the Executive Jet issue in this
case, the Court of Appeals below stated:
"The District Court. . . concluded that
it had jurisdiction to entertain appellees'
25.
suit as a maritime wrongful death action
under the FTCA, This appeal invites an
examination of whether, under the cir-
cumstances shown here, an aviation tort
claim is cognizable under maritime law. '
‘Appendix A, pp. 2-3).
+
"As far as the general maritime law is
~uneerned, Executive Jet Aviation, Inc.
v. City of Cleveland, 409 U.S. 249 (1972)
is necessarily the starting point in any
effort to define a 'maritime tort' in the
aviation context.’ (Appendix A, p. 3).
"(In Executive Jet) the Supreme Court thus
expressly reserved the question which is
before us now."' (Appendix A, p. 5).
at te ate ale
° " *e 76
"More significantly, the transoceanic
transportation of cargo is an activity which
is readily analogized with 'traditional
maritime activity.' Indeed, before the
advent of aviation, such shipping could
only be performed by waterborne vessels.
We therefore do not interpret Executive
Jet, supra, as precluding a maritime
action on the facts of this case."'
(Appendix A, p. 5).
96.
eit eiea _|
This case also presents for interpretation
by the Supreme Court the issue of whether a
cause of action for wrongful death occurring
in navigable waters, can be asserted as a
commonlaw cause of action for wrongful death
(Moragne v. States Marine Lines, Inc., 398
U.S. 375 [1970]), and if so, is such a cause of
action properly asserted against the United
States pursuant to the waiver of sovereign
immunity in the Federal Tort Claims Act?
There are no cases from the Supreme Court to
provide guidance to the lower courts or to the
Bar on that issue. The difficult nature of that
issue focuses sharply in this case, particularly
with respect to petitioners' cause of action
based on the negligent failure of the Air Force
personnel to rescue petitioners' decedent
from the navigable waters.
97
a . rvs A BO mALS inte fe EPROPS, AE LAE AAO
ai 4
>
IV
z
*
Z
a
2
‘a
4
THE DECISION OF THE COURT OF
APPEALS BELOW RAISES A VERY
SIGNIFICANT ISSUE OF FEDERAL
STATUTORY CONSTRUCTION WHICH
REQUIRES RESOLUTION BY THE
SUPREME COURT, PARTICULARLY
TO THE EXTENT THAT THE COURT
OF APPEALS' DECISION CONSTITUTES
A HOLDING THAT THE 1960 AMEND-
MENT TO 46 USC SEC, 742 WAS A
REPEAL BY IMPLICATION OF THE
PRE-1960 CONSENT OF THE UNITED
STATES THAT HAD PERMITTED
MARITIME WRONGFUL DEATH ACTIONS
TO BE MAINTAINED AGAINST THE
UNITED STATES UNDER THE FEDERAL
TORT CLAIMS ACT,
ay eat Nitdorety
The Court of Appeals below held that by its
1960 amendment to 46 USC Sec. 742, Congress
repealed the pre-1960 consent of the United
States to be sued under the FTCA for mari-
time wrongful death. However, the legislative
history of the 1960 amendment reveals no
intent by Congress to repeal or affirmatively
withdraw any previous consent to be sued.
On the contrary, all of the legislative history
cited by the Government and by the Court of
Appeals below, demonstrates an intent by
Congress to broaden the jurisdictional bases
for asserting maritime claims.
Petitioners contend tnat where the
sovereign has previously consented to being
& 28.
“- sen + Sect AW teat SO OD
sued for maritime wrongful death under the
3
4 Federal Tort Claims Act, any repeal or affir-
d mative withdrawal of that consent must be
3 ‘ manifested in clear, concise, and unambiguous
4 statutory language. Petitioners further
. contend that such a repeal or affirmative with-
drawal of the consent of the sovereign to be
sued for maritime wrongful death under the
‘FTCA cannot be accomplished by judicial
construction of statutory language which lends
itself to several interpretations by reasonable
judges and attorneys.
The Supremé Court-has held that the car-
dinal rule is that statutory repeals by
implication are not favored. Jones v.
Alfred H. Mayer Company, 392 U.S. 409
(1968). Ifa statutory repeal by implication
is found by a court, the intention of the
) legislature to repeal the statute must be clear
and manifest, and it is not sufficient to
establish merely that the subsequent law
covers some or all of the cases provided for
by the prior statute. Instead it is essential
that there be a positive repugnancy between
the provisions of the new law and the provisions
of the old law. Rosenberg v. United States,
346 U.S. 273 (1953), reconsideration denied,
346 U.S. 324,
When a repeal by implication is relied on,
it must be impossible for both statutory provi-
sions under consideration to stand because one
necessarily destroys tle other. Wilmot v.
Mudge, 103 U.S. 217 (1880). Repeals of
statutes by implication are unfavored unless
the implication is so clear as to be equivalent
_' 29,
+ aD
to an explicit declaration, and every doubt
should be resolved against such a construction,
Osborn v. Nicholson, 80 U.S. 654 (1871).
In the case at bar, the finding of a repeal
by implication of the prior waiver of sovereign
immunity by the United States to have maritime
tort claims prosecuted under the Federal Tort
Claims Act is certainly not clear, and is not
necessary in that said implication creates a
conflict in jurisdiction. The judicial finding
of a repeal by implication can hardly be con-
sidered irresistible since several District
Courts have thus far managed to resist, as
well as the Third Circuit Court of Appeals.
It can hardly be said that such a repeal by
implication is free from reasonable doubt.
Again, since an obvious conflict exists
among the lower courts, Clarification of this
uncertainty by the Supreme Court is necessary
for the benefit of the lower courts and the Bar.
30.
V
THE DECISION OF THE COURT OF
APPEALS BELOW (WHICH INTERPRETS
THE INTENT OF CONGRESS IN
ENACTING THE 1960 AMENDMENT
TO 46 USC SEC. 742), HAS CAUSED A
MOST SIGNIFICANT FEDERAL CONS-
TITUTIONAL ISSUE TO BE PRESENTED,
WHICH IS WHETHER THE LANGUAGE
CONTAINED IN 46 USC SEC, 742
VIOLATES FEDERAL CONSTITUTIONAL
STANDARDS OF VAGUENESS AND FAIR
WARNING.
If (as the Court of Appeals below has held in
this case) the 1960 amendment to 46 USC Sec.
742 did constitute a repeal and revocation of
the United States' pre-1960 consent to having
maritime wrongful death claims asserted under
the Federal Tort Claims Act; -- the language
used by Congress in 46 USC Sec. 742 to
manifest such a repeal] is violative of Federal
Constitutional standards of vagueness and fair
warning. By reason of the vagueness of said
Sec. 742 and the lack of fair warning accorded
to petitioners thereby, petitioners have been
deprived of a valuable property right (to wit:
a vested cause of action for wrongful death),
without due process of law.
In its application to this case, the inter-
pretation of the 1960 amendment to 46 USC Sec.
742 urged by the Government and accepted by
the Court of Appeals below, cannot be recon-
ciled with the Constitutional standard that
31.
* ae ne aD
Congress, when it enacts statutes, must
afford every person affected by the statute a
"right of fair warning'' which may not be
abrogated by vague statutory language.
Bouie v. City of Columbia, 378 U.S. 347
(1964).
If the intent of Congress (when Congress
enacted the 1960 amendment to 46 USC Sec.
742) had been to impose new jurisdictional
restrictions upon the maintenance of actions
for maritime torts, it is preposterous to
believe that Congress could have manifested
such a delimiting intent by adding to the
amended statute the words "any appropriate
nonjury proceeding in personam may be
brought against the United States...”
Both the Government and the Court of
Appeals below have acknowledged that prior
to 1960, proceeding under the Federal Tort
Claims Act was “an appropriate nonjury pro-
ceeding" for maintaining a maritime wrongful
death action against the United States. It is
inconceivable that the insertion of the words
"any appropriate nonjury proceeding in per-
sonam may be brought against the United
States . . .'' into the amended Sec. 742,
could be intended by Congress as meaning that
the Federal Tort Claims Act was to become
an inappropriate nonjury proceeding for main-
taining a maritime tort claim against the United
States.
Neither the Government nor the Court of
Appeals below have come to grips with the
meaning to be attributed to the words "any
32.
appropriate nonjury proceeding in personam
may be brought against the United States...
which are found in the 1960 amendment to 46
USC Sec. 742.
In Bouie v. City of Columbia, 378 U.S.
347 (1964), the Supreme Court stated:
", . . A statute which either forbids or
requires the doing of an act in terms so
vague that men of common intelligence
must necessarily guess at its meaning and
differ as to its application violates the
first essential of due process of law."
(378 U.S. at p. 351)
"There can be no doubt that a deprivation
of the right of fair warning can result not
only from vague statutory language but
also from an unforeseeable and retroactive
judicial expansion of narrow and precise
statutory language."' (378 U.S. at p. 352).
In 1931, Justice Holmes wrote: ". . . It
is reasonable that a fair warning should be
given to the world in language that the common
world will understand, of what the law intends
to do if a certain line is passed. To make the
warning fair, so far as possible the line should
be clear.'' McBoyle v. United States, 283 U.S.
25 (1931).
If by its 1960 amendment to 46 USC Sec.
742, Congress did actually intend to transform
a previously appropriate nonjury proceeding
33.
a
(the FTCA) into an inappropriate nonjury
proceeding for the maintenance of maritime
tort claims against the United States, the
language chosen by Congress to manifest such
intent is hopelessly violative of the above
described Constitutional standard articulated
by the Supreme Court.
The position asserted by the Government
and upheld by the Court of Appeals below leads
to the conclusion that the words "any appropri-
ate nonjury proceeding in personam may be
brought against the United States. . ."’ (which
are found in the amended 46 USC Sec. 742),
actually must be taken to mean "only a
proceeding in admiralty may be brought
against the United States."' Petitioners res-
pectfully submit that if Congress had intended
such a meaning, the lawmakers could have and
should have found the proper words to express
such a meaning.
In the case at bar, the United States
Government is attempting to escape liability
for a tort claim for wrongful death, and is
using as its means of escape the obviously
ambiguous, unclear, and confusing statutory
language drafted into law by the United States
Government, acting through Congress.
Under such circumstances, wherein
defendant is the party which drafted confusing
language on which it bases its escape from
liability, the court should examine the merits
of such a defendant's contentions from the same
posture from which the courts examine con-
fusing and ambigupus clauses contained in
34,
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insurance policies. The Supreme Court has
held that an ambiguity in an insurance policy
must be construed in favor of indemnity and
against a forfeiture. McMaster v. New York
Life Insurance Company, 183 U.S. 25 (1901).
In the time-honored case of United States v.
Heth, 7 U.S. 399 (1806), Justice Cushing wrote:
"The words of a statute, if dubious, ought in
cases of the present kind, to be taken most
strongly against the lawmakers." (7 U.S. at
p- 413).
In Bouie v. City of Columbia, supra, the
Supreme Court held that if a violation of due
process Of law nas been perpetrated by reason
of a vague statute, '. . . the violation is that
much greater when, because the uncertainty as
to the statute's meaning is itself not revealed
until the court's decision, a person is not even
afforded an opportunity to engage in such
speculation before committing the act in
question."' (378 U.S. at p. 352).
Although many of the leading cases dealing
with unconstitutionally vague statutes were
criminal or quasi-criminal statutes, the
Supreme Court has recognized the need for
application of the same Constitutional standards
to civil statutes. In Lambert v. People of
the State of California, 355 U.S. 225 (1957),
the Supreme Court, per Mr. Justice Douglas,
stated:
"Engrained in our concept of due process
is the requirement of notice... . Notice
is required before property interests are
disturbed, before assessments are made,
35.
;
before penalties are assessed. Notice
is required in a myriad of situations where
a penalty or forfeiture might be suffered
for mere failure to act. Recent cases
illustrating the point are Mullane v.
Central Hanover Bank & Trust Company,
339 U.S. 306; Covey v. Town of Somers,
351 U.S. 141; Walker v. City of Hutchin-
son, 352 U.S. 112. These cases involved
only property interests in civil litigation."
(355 U,S. at’p. 228).
Concerning the nature of the property rights
of which petitioners have been summarily de-
prived in this case without due process of law,
the Supreme Court has held that a vested right
of action is property in the same sense in which
tangible things are property, and is equally
protected against arbitrary interference.
Pritchard v. Norton, 106 U.S. 124, 132 (1882).
The admitted existence of the pre-1960
consent by the United States to the assertion of
maritime tort claims against the sovereign
under the Federal Tort Claims Act, placed an
affirmative duty upon the United States Govern-
ment to give clear and fair warning to the
citizenry that they would be required to assert
such claims under different rules of law and
jurisdictional procedures after 1960. Congress
gave no such warning to the citizenry, and the
existence of any such changes in the jurisdic-
tional procedures for asserting such claim,
have been established only by judicial legisla-
tion. It certainly cannot be reasonably
contended that the United States Government
gave such "clear and fair warning to the
36.
citizenry" by the obviously ambiguous amend-
ment to 46 USC Sec. 742.
Petitioners respectfully request that this
Court issue its Writ of Certiorari to examine
the constitutionality of 46 USC Sec. 742 as
amended in 1960.
VI
A JUDICIAL DEFINITION BY THE
SUPREME COURT IS NEEDED OF THE
WORD "STATE" CONTAINED IN THE
DEATH ON THE HIGH SEAS ACT (46
USC SEC. 761 ET SEQ.). THIS CASE
PRESENTS THAT ISSUE FOR DETER-
MINA TION,
In the case at Bar, the Complaint alleges
that the subject crash occurred 1500 to 1900
feet off the shore of Okinawa (which is less
than one marine league from Okinawa but much
more than one marine league from the shores
of any State, territory or dependency of the
United States).
On this particular issue, the Death on the
High Seas Act (46 USC Sec. 761) provides that
the jurisdiction of the Act is limited to the
death of a person "occurring on the high seas
beyond a marine league from the shore of any
State, or the District of Columbia, or the
territories or dependencies of the United States
"
8 e@
37.
In Moragne v. States Marine Lines, Inc.,
supra, the Supreme Court held that when death
occurs within the territorial waters of a State
of the United States, the Death on the High
Seas Act does not apply, but a commonlaw
cause of action for wrongful death can be
maintained. This of course raises the issue
of what law applies when death occurs within
the territorial waters of a foreign country ?
In Panama Railroad v. Napier Shipping
Company, 166 U.S. 280 (1897), the Supreme
Court held that the fact that a cause of action
arose in the waters of a foreign port is
immaterial, ana heid that the law is well
settled both in England and the United States
that torts originating within the waters of a
foreign power may be the subject of a suit ina
domestic court.
The above principle established in the
Panama Railroad case, supra, was further
extended in Galef v. United States, 25 F.2d
134 (D.C. -S.C. 1928) which held that the
jurisdiction of maritime courts of the United
States extend to maritime torts committed in
the ports of harbors and territorial waters of
foreign powers (independent of foreign law),
and that such torts will be redressed in
American maritime courts by virtue of the
maritime law as accepted by this country.
In Wynne v. United States, 217 U.S. 234
(1910), the Supreme Court was confronted
with an issue of interpretation of the word
"State, '' in regard to a criminal statute. The
Supreme Court there held that the word ''State"
38.
h
F
E
&
applies to States of the United States, and not
to any separate particular community.
In the case at Bar, petitioners submit that
the Death on the High Seas Act provides a
remedy against the United States, irrespective
of whether the plane crashed within or without
one marine league from the shore of Okinawa.
That such a cause of action can be asserted
under the Federal Tort Claims Act is supported
by Blumenthal v. United States, 306 F. 2d 16
(1962); and Moran v. United States, 102 F.
Supp. 275 (Conn. 1951).
Vil
INTERVENTION BY THE SUPREME
COURT IS NECESSARY IN THIS CASE
TO PREVENT THE COURT OF APPEALS'!
ADMITTEDLY "HARSH RESULT" FROM
PERPETRATING A MANIFEST MISCAR-
RIAGE OF JUSTICE UPON PETITIONERS,
The opinion of the Court of Appeals below
admits to having reached a "harsh result" in
this case. Under the unusual circumstances
here presented, such an admittedly "harsh
result'' cannot be reconciled with the Supreme
Court's admonition that civil courts must adhere
to ''traditional notions of fair play and substan-
tial justice implicit in due process."' Milliken
v. Meyer, 311 U.S. 457 (1940).
In United States v. Pennsylvania Chemical
Corporation, 411 U.S. 655 (1973), the Supreme
39.
Pitt iad
Court held that the United States Government
could not penalize a corporation where the
court found that the defendant corporation had
been "affirmatively misled" by the Govern-
ment's prior rulings, interpretations, and
opinions. The Supreme Court held that to the
extent that the Government's regulations
deprived the defendant corporation of fair
warning as to what conduct was prohibited,
there could be no doubt that "traditional notions
of fairness" prevent the Government from
proceeding with a prosecution. \
In the case at Bar, the sovereign's pre-
1960 consent to having maritime tort claims
asserted against it under the FTCA, constituted
a body of experience and informed judgment to
which it was proper for attorneys to resorft\for
guidance, particularly by refernce to the hald-
ings in Moran v. United States, 102 F. Supp.
275 (Conn. 1951); and Blumenthal v. United
States, 306 F.2d 16 (3rd Cir., 1962).
It is important to note that in United Statks
v. Pennsylvania Chemical Corporation, supra,
the Supreme Court based its decision on
"traditional notions of fairness" and not on
Constitutional due process grounds,
Application of ''traditional notions of fair- \
ness" in the present case, would tend to require
that the unexpected holding of the Court of
Appeals below cannot be applied retroactively
to summarily bar petitioners' claims for wrong-
ful death.
40.
Vill
THE RECURRING NATURE OF THE.
ISSUES HEREIN PRESENTED (CON-
CERNING AVIATION TORT CLAIMS)
CAUSES THOSE ISSUES TO ASSUME
ENORMOUS GENERAL IMPORTANCE
DUE TO THE CONTINUOUS EXPAN-
SION OF AVIATION ACTIVITIES ON AN
INTERNATIONAL SCOPE, RESOLUTION
OF CRUCIAL LEGAL ISSUES THAT
HAVE THUS FAR GONE UNRESOLVED
BY THE SUPREME COURT, IS
NECESSARY FOR THE BENEFIT OF
ALL LOWER COURTS, THE BAR, AND
THE AVIATION INDUSTRY.
With the literal explosion of air passenger
miles traveled in recent years, it is readily
foreseeable that more plane crashes on
navigable waters will be occurring in future
years which could subject the United States to
liability for aviation torts. Thus the confusing
jurisdictional issues herein presented must be
resolved by the Supreme Court of the United
States to provide the Bench and Bar with
adequate methods for handling cases.
At the present time, the Bench and Bar do
not have a clear and decisive mandate from the
Supreme Court as to whether an aviation death
case on navigable waters should be brought
against the United States under FTCA, or under
the Suits in Admiralty Act. If such a deter-
mination is left to the lower trial courts or
lower appellate courts to determine on a
41.
case-by-case basis, serious iujustices could
result by reason of the disparity in the statutes
of limitation under the two procedures.
It should not be a policy of the Federal
courts to dispose of litigation merely upon
confusing and ambiguous statutes on jurisdic-
tion and procedural matters. Basic fairness
demands that a definite statement be issued by
the Supreme Court clarifying this serious
jurisdictional and procedural dilemma that now
exists on matters involving maritime tort
claims against the United States.
For the above reasons, the decision of the
Court of Appeals in the instant case raises
questions of general and continuing importance
in the prosecution of Federal tort and maritime
actions against the United States. Petitioners
respectfully submit that it is in the public
interest that the Supreme Court establish viable
and consistent doctrines concerning jurisdic-
tion and procedures on such matters.
CONCLUSION
For the foregoing reasons, petitioners
respectfully pray that this Court issue a Writ
of Certiorari to review the judgment and
opinion of the United States Court of Appeals
for the Ninth Circuit entered on June 6, 1974
(rehearing denied July 9, 1974), in Ninth
Circuit Case No. 73-2260.
Respectfully submitted,
RICHARD G. HARRIS,
NED GOOD, IAN
HE RZOG and AL
SCHALLAU
By AL SCHALLAU
Attorneys for Petitioners
43.
—_
‘ APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CaRroLyn Kosenrts, Individually, and Stacy Ros. |
ERTS, Gaw. Rosperts and MarrHew Roserts,
by Caro.yn Roserts, their Guardian ad
Litem,
Plaintiff-Appellees, 7 No. 73-2260
vs.
Unrrep States oF AMERICA,
Defendant-Appellant. J
{June 6, 1974]
Appeal from the United States District Court
from the Central District of California
Before: ELY, HUFSTEDLER and TRASK,
Circuit Judges
TRASK, Circuit Judge:
The United States appeals from an order denying its motion
for dismissal of the appellees’ complaint. Because the motion
raised a close jurisdictional question the District Court certified
its order for an interlocutory appeal under 28 U.S.C. § 1292(b).
The United States filed an application in this court to prosecute
that appeal and we granted the application. Upon review of the
applicable authorities we conclude that the court erroneously
denied the Government’s motion to dismiss.
This is a wrongful death action arsing out of the crash of a
Flying Tiger Lines cargo plane on July 27, 1970. The plane was
approaching the Naha Air Base, Okinawa, for a ground con-
trolled landing when it crashed in navigable waters 1500 to 1900
fect short of the runway. Charging that United States Air Force
personnel negligently directed the landing and subsequent rescue
2 Carolyn Roberts, ct al. vs.
operations, the widow and three minor children of the plane's
navigater (appellees) filed suit against the United States on
November 21, 1972.1 Their original complaint was brought under
the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b),
2671 ct seq., and sought $2,500,000 damages for wrongful death.
The United States, however, suceossfully argued that bee:use the
tort was alleged to have oceurred in Okinawa, the action was
therefore barred by section 2680(k) of the FTCA whieh excludes
“fajny claim arising in a foreign country.” The District Court
accordingly dismissed the suit but granted the appellecs leave
to amend.
In their subsequently amended complaint the appellees relied
upon the same basic facts but stated them somewhat differently.
The first cause of action was still based upon the FTCA. How-
ever, instead of alleging that the events ocenrred “at or near
Naha Air Base, Okinawa, Ryukyu Islands” which would open the
claim to the “foreign country” exclusion of section 26S80(k) the
complaint alleged that the events occurred “while the aireraft was
making an approach to landing... over the high seas crashing
into navigable waters... .” Thus, the elaim was asserted to be
“maritime.” A second cause of action was asserted as a “Maritime
Wrongful Death” under the general admiralty and maritime jur-
isdiction, Fed. R. Civ. P. 90h), and a third cause of action was
alleged under the “Death on the Iligh Seas Act,” 46 U.S.C.
S$ 761-767.
The specifie acts of negligence relied upon were the same as to
each of the three claims: that the United States negligently
directed the landing of the aircraft and the subsequent rescue
operations of its passengers.
The United States again moved to dismiss the action, arguing
that the aviation erash did not give rise to a maritime claim.
Secondarily, the Government contended that even if maritime jr
isdiction were appropriate, the appellees’ suit against the United
States was cognizable solely under the Suits in Admiraltw Aet
(STA), 46 U.S.C. §§ 741-752, and not the FTCA as averred. The
District Court rejected both of these arguments and concluded
1An administrative claim was tiled oo July 26. 1972, and rejected hy
the appropriate Federal agency on August 22, 1972.
y .
United States of America 3
that it had jurisdiction to entertain the appellees’ suit as a mari-
time wrongful death action under the FTCA.
This appeal invites an examination of whether, under the cir-
ewnstanees shown here, an aviation tort claim is cognizable under
maritime law. Preliminarily we note that if viewed as stating a
“land” rather than a “maritime” tort, the appellees’ complaint
under the FTCA is indeed barred by 28 U.S.C. § 2680(k). Ser
United States v. Spelar, 338 U.S, 217 (1949).2 To therefore shift
the locus of their claim from Jand to sea, the appellees rely upon
two independent sources: the general maritime law, and a specific
federal statute, the Death on the High Seas Act, 46 U.S.C.
§§ 761-768.
As far as the general maritime law is concerned, Executive Jet
Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972) is nee-
essurily the starting point in any effort to define a “maritime
tort” in the aviation context. In E.recutive Jet the Supreme Court
rejected the traditional locality test which found maritime juris-
diction whenever a tort oceurred in navigable waters.’ A literal
2Under the FTCA, a tort claim arises at the place where the negligent
act or omission oecurred and not where the negligence had its “operative
effect,” (i.e., the situs of injury). Richards v. United States, 369 U.S. 1
(1962). An American military base located on foreign soil is fully within
the foreign country exception (section 2680(k)), United States v. Spelar,
338 U.S. 217 (1949), and this court has previously classified Okinawa as
a foreign country for the purposes of the FTCA, Cobb v. United States,
191 F.2d 604 (9th Cir. 1951), cert. denied, 342 U.S. 913 (1952).
The Cobb classification was based upon the status of Okinawa as of
1949. We note that on May 15, 1972, after the cause of action in this suit
arose, the island was returned to the empire of Japan. 23 U.S.T., Part 1
at 447.
3A classic statement of the locality test appears in The Plymouth, 3
Wall. 20, 36 (1855); “Every species of tort, however occurring, and
whether on board a vessel or not, if upon the high seas or navigable
waters, is of admiralty cognizance.” The duradility of this test is reflected
by the fact that the Supreme Court approvingly applied the locality
standard in the term immediately prior to the Krecutive Jet decision.
Vietorv Carriers, Inc. v. Law, 404 U.S. 202, 205 (1971).
A distinet problem is the determination of where an aviation tort
“occurs.” Unlike the rule developed under the Federal Tort Claims Act,
sce supra, n.2, in applying the maritime locality test a tort is deemed to
occur not where the wrongful act or omission had its ineeption, but at the
place where it became operative, i... place of injury. Oppen v. Actna
S Be
4 Carolyn Roberts, ct al. vs.
application of this test over the years had brought aviation tort
eases within admiralty jurisdiction depending, of course, upon
where the aircraft crashed.4 However, in Exceulire Jet the
Supreme Court criticized the fortuity of this jurisdictional classi-
fication and announeed a new twofold test for determining
whether a maritime tort was pleaded. The Court retained the
navigable waters locality prerequisite but added a maritime
“nexus” requirement:
“ . . PWle conelude that the mere feet that the alleged
wrong ‘occurs’ or ‘is located’ on or over navigable waters-—
whatever that means in an aviation context—is not of itself
sufficient to turn an airplane negligence case into a ‘maritime
tort.” It is far more consistent with the history and purpose
of admiralty to require also that the wrong bear a significant
relationship to traditional maritime activity.” /d. at 268.
The maritime claims asserted in E.urccculire Jet avose from the
erash of a chartered jet en route from Cleveland, Ohio to VPort-
land, Maine. The aireraft struck and ingested a flock of seaeulls
on takeoff and erashed in the navigable waters of Lake Erie. The
Supreme Court had little difficulty in concluding that “a flight
that would have been almost entirely over Jand and within the
continental United States” bore an insufficient relationship with
traditional maritime activity. However, the Court declined to gen-
eralize as to other aviation tort contexts, commenting instead:
“We need not decide today whether an aviation tort ean
ever, under any circumstances, bear a sufficient relationship
to traditional maritime activity to come within admiralty
jurisdiction in the absence of legislation. It could be argued.
for instance, that if a plane flying from New York to Londen
crashed in the mid-Atlantic, there would be admiralty juris.
diction over resulting tort claims even absent a specifie stat
ute. An aircraft in that situation might be thought to bes
Grosse Pointe Farms, 355 F.2d 962 (lth Cor. 1967); Wilson ve Trans
ocean Airlines, 121 F. Supp. 85, 92 (N.D. Cal. 1954). The Supreme Cour
in Exceutive Jet, supra, discussed the difliculties inherent in determinins
tort loens in the aviation context, but the Cowt did net propose snothe
test. J7. at 266-65.
4See Erceutive Jet, supa at 264, ni.
United States of America : © §
a significant relationship to traditional maritime activity
because it would be performing a function traditionally per-
formed by water-borne vessels.” Jd, ut 271,
The Supreme Court thus expressly reserved the question which
is before us now.5
An examination of the record provides several bases for «dis-
tinguishing the air accident in this case from the erash which
oceurred in Exceutive Jet. According to the appellees’ amended
complaint, the Flying Tiger Lines aireraft was engaged in trans.
porting eargo between Los Angeles and Viet Nam; Okinawa was
merely one of a number of intermediate stopping points. Geo-
graphic realities, therefore, do not make the cargo plane's contact
with navigable waters entirely “fortuitous.” More significantly,
the transoceanie transportation of cargo is an activity which is
readily analogized with “traditional maritime activity.” Indeed,
before the advent of aviation. such shipping could only be per-
formed by waterborne vessels. We therefore do not interpret
Executive Jet, supra, as precluding a maritinie action on the facts
of this case.
The appellees’ alternate reliance upon the Death on the High
Seas Act (DOHSA), 26 U.S.C. § 3 761-768, is more questionable.
Although the Supreme Court has explicitly sanctioned the bring-
ing of aviation wrongful death eases under a literal construction
of the DOINISA,$ the facts alleged in the appellees’ own brief vast
5We find little assistance in the post-Irecutive Jet cases, as none have
involved claims arising from a transoceanic aviation accident. /.7.,
Teachey v. United States, 963. F. Supp. 1197 (ALD. Pla. 1975) chelicopter
erash durmg a land shuttle); Higginbotham v. Mobil Oil Corp., 357 F.
Supp. 1164 (W.D. La. 1973) (helicopter erash during performance of
activities identical to those performed by erew boats); Hawk v. Antilles,
Airboats, Inc., 355 F. Snop. 685 (D.C. Virgin Islands 1973) (erast ot a
seaplane).
5“Indeed, it may be settled today that this specific federal statute gives
the federal admiralty courts jurisdiction of such wrongful-death actions.
. - . ;
“Of course, under the Death on the High Seas Act, a wroneful death
action arising owt of an airplane erash on the high seas beveud a marine
leazne from ‘the shore of a State mas clearly be brought in a federal
admiralty court.” Executive Jet, supra at 263-64, 271, n.20.
6 Carolyn Roberts, et al. vs.
doubt upon the statute’s applicability. The appellees concede that
the alleged tort occurred a maximum of 1900 feet from the Oki-
nawa shore, i, in presumably foreign territarial waters In vies
of the somewhat ambiguous language of the statute itself and the
apparent lack of authority on the point, we hesitate te conclude
whether a tort occurring within foreign territorial waters comes
within the purview of the Death on the High Seas Aet,?
However, we find it unnecessary to resolve this question since
our aeceptanee of appellees’ maritime tert designation on either
this or Evecutive Jet ground would require recognition of another
jurisdictional obstacle prohibiting this suit.
‘The Act itself reads:
Whenever the death of a person shall be eansed be wronetul net,
nevlect, or default occurring on the lich seas bhevond a nerine leaerne
from the shore of any State, or the Distiet of Columbia, or ihe
Territories or dependencies of the United States, the personal repre-
sentative of the decedent may maintain a suit ber catuages ate the
distriet courts of the United States, ii admiralty, for the exclusive
benefit of the decedent's wife, husband, parent, clild, or dependent
relative against the vessel, person, or corporation whieh would hase
been liable if death lad not ensued. Mar. 50, 1920, & 111, 51, 51
Stat. 537." 46 U.S.C. § 761.
While a distance of 1900 feet from shore would almost certainly be
within a foreign state's territorial waters, we have noted that some toreign
states lave extended their territorial waters for fishing purposes te much
greater distances than “one marine leazue.” (Approximately 3 nautical
miles.) Beeause Congress only has power to fix the extent of territorial
waters measured from the shores of its own country it may well have
considered all waters beyend one marine leacne from these shores to be
“high seas” for purposes of DOTISA se long as navicable, even theuzh
within the territorial waters of a forcizi state.
Relatedly, a law review article discussing the Act observes:
“In addition, it is not clear whether the DISA would have apy
cation when the accident oveurs on territorial waters of a fercon
eountry. Nevertheless, the seope of several admiralty irisdietoon
elearly extends to such cases, aud presumably the seope of the DISA
would be the same exeept in the areas where it is expressly not
applicable.” 51 Cal. Lev, 589, 307 (Wii),
For a discussion of the meaning of the terin “high seas” see United States
v. Flores, 289 U.S. 137 (1935) and United States v. Rodgers, 150 ULS. 249
(1893). But see United States v. Koss, 459 F.2d 1555, 1557 (oth Cir.
1971).
United States of America 7
It is axiomatic that Congressional waiver of sovereign immn-
nity is a prerequisite to any suit brought against the United
States under admiralty law or otherwise. Recognizing this fact,
the appellees rely upon the Federal Tort Claims Act, 28 USC.
$$ 1346(b), 2671 cf seg, as an expression of governmental con-
sent to be sued.’ The United States, however, contends that mari-
time claims against the Government arising under cither the
Death on the High Seas Act or the general maritime law are
cognizable solely under two specific federal admiralty statutes,
the Suits in Admiralty Act (STA), 46 U.S.C. §§ 741-752 and the
Public Vessels Act. 46 U.S.C. $$ 781-790. Neither side disputes
the fact that jurisdiction under the FTCA and the two adniiralty
statutes is mutually exclusive, 28 U.S.C. § 2680(d).
The District Court, believing that the admiralty statutes ex-
tended only to claims involving United States vessels os eargo
concluded that the appellees’ marttine claim was maintainable
solely under the FTCA. Prior to 1960, this interpretation of the
intersecting seope of the statutes would have been earreet.o Tovw-
ever, In 1960, Congress amended section 742 of the SIA by delet-
ing the language which restricted the statute to claims involving
merehant vessels'® and by substituting a broad new jurisdictional
statement:
“In cases where if such vessel were privately owned or oper-
ated, or such cargo were privately owned or possessed, or if
SThe appellees appear to argue that the Death on the High Seas Act
constitutes an independent jurisdictional base. Sce Appellees’ Brict at 2.
However, this ts clearly not the case. The DOTISA merciv creates a ex ise
of action for wrowrtud mantime death where none previous!) existed;
the act dves not contain any provision waiving sever¢ign imanwnity. A
suit against the United States brought ander the DOHSA still requires
the pleading of a separate federal statute authorizine suit) Goat the
government. See ¢.7., Allen v. United States, 388 F.2e 166 (9th Cir.
1964); 51 Cal. L.Rev. 389 (1963).
"See e.g., Somerset Seatood Co. vo Vuiteld Stotes, 195 F202 G31 (4th
Cir. 1951), and the diseussion in De Bardeleben Marine Corp. ve United
States, 451 F.2d 140 (Sth Cir. 1971).
MPrior to the 1960 ameudment, section 742 read as originally cnacted:
“Tn cases where W such vessel were privately owned or operated. or
if such earvo were privately owned and possessed, a proceedine: in
admiralty could be maintsined at the time of the commencement of
8 Carolyn Roberts, ct al. vs.
a privale person or property were tuvolecd, a proceeding in
admiralty could be maintained, any appropriate nonjury pro-
ceeding in personam may be brought against the United
States... .” Pub. L. No. 86-770, £3, 74 Stat. 912. (Emphasis
added)
The addition of the phrase “or if a private person... were
involved” has been interpreted by a majority of courts as s legis-
lative attempt to bring all maritime torts asserted against the
United States within the purview of the SEAL See De Bardleben
Marine Corp. v. United States, 451 F2d WO (sth Cir, 171);
Richmond Marine Panama, S.A. vr. Vuited States, 350 BL Sup.
1210, 1219-1220 (SDNY. 19923: TVauhrederict Cre fron A/S «.
United States, 241 F. Supu. 88 (ELD Mieh. 196452 Contra, JTW.
Petersen Coal & OU Co. v. United States, S25 FL Stapp. Tos
(N.D. Th 1970). Moreover, this estonded interpretation of the
STA appears to conform with retrospective Coneressional under.
standing of the Net. as the court in Me hind Marine Panama,
S.A, v. United States, supra, notes:
“Although subsequent Congressional explanation of the mean
ing of a statute is not binding om the courts, fo is iiterestine
to note, nevertheless, ihat a Senate Report of Aueat 17,
1972 explained that the 1960 snicndment extends jorisdietion
under the Suits in Admiralty Net cio the fall range of adit
ralty cases which might have been maintained bad a private
person or property been invelved rather than the Govern.
ment or its agents and emplovecs or property. Senate Report.
No, 92-1079, 92d Cong... 2d Sess. 1972, 9 US. Code Cong.
and Admin. News, po. #45, 4090.7 [do ot 1220, mete,
We therefore conelnde that the Suits in Admirs!ty Net,
amended, encompasses aviation wronaglul death getions against t
United States arising under the @eneral mearitige laa or under
the Death on the High Seas Aet. See Wen e. Voted states, 35s
F.2d 160 (%h Cir. 1964) (Text aecoipanysing mi; The neces.
Hh
‘
'
the
the action herein provided ter, a tibei ia persenam mins be brows) t
avainst the United States or azatiet aa corporation 2... as the ex
may be, provided that sich vessel is enplesed as a micerenint ves-el
or is a tigboat operated by such corporecen
United States of America Hf)
sary corollary is that the appellees action is therefore not main.
tainabie under the PTCA, 28 Cos.) 8 268000) .1
Finally, in anticipation of ana lverse resolution of these issues.
the appellees request a second opportunity to amend their eam.
plaint in conformity with the eenii’s jurisdictional eonelsions
Appellees further coutend that sceetoon sniendment should lat:
back” so us te avoid the time bar of the tye year Timitations
period contained in the Suits in Admiralty Aet, 46 USC. £745,
In support of this request the oupellees eite Beer v. Uuiled
States, SoS FL OST kd Cie 16200 end other eases errvanen ists
bronebt under the ETOA in whieh a transfer to adr: Iv was
allowed.
However, the Appetioes’ Situation is distinenishabl: from the
preecdent they cite in that the gpa Hees ordained complaint was
het filed cutih affer the two verre SEA limitetion- period tad
Already expired, Since anv ariondment fled now ea oante refer
haved toy the lite s hye no othe rhage Wews arty af coumplaien t was frleal
Fed. BR. Civ. PL fe), the “rehition back” areement esmmot save
this setion from the operation af seeqen TEI! While the ve cult
Is haesti. i? is well ee tisha] Tits Titer 04 1; ten s 3 i wloap 1!
Suits in Nemuiradty Net is nisisctetions! am matere
“The two your timeshar ef the Suits in Adminalte Net is
. ’ iar -o s ‘ :
1s SD UMM a pee herd pestis Unter gn ordinary Stat
Mites at Pobnietts tions, Ure ee Coleggey. yf They shit? Sfaatittes og
el iin is Dheet exiine itiwhese | tte liv statutory te prev has
thipeseed It is onls baplededenteeca bile The troe-bor at the sstitts
mo Ndmtretts Net renders a claim agains: the United States
TUNE thes So a af forsissend gue the p dessin the gy Nees ottompa te
distingcush ihe events wines preritec the nis eps org? rhe ent
Pesce operetions. Whar the on Mm) tbasine ’ the titles
et V IN is dere rm liv wittssif - bette on Wie. its re jias
the plea Ihe oot an OPP perisste ‘ ul ostutute gether, ;
weainst the coverviment. Simee we ecuelude that the SEA is eoonty
statute proper ti this inpstatec, we | 1 thiat Shpeioes ste t bone
either apon the erush oer
tneer the FITC.
Under the Suits in N@miretty Net the twee vear stat
mi THO Pere ue operations as not muditainable
} vow ‘ > ed dite et Vaaitutiens
hezins to rnu from the date of ie par. vate than the date at ce atin
whatnistrative elm. MeMahon o. fo cted States, S42 UL8. 2. 2AsE
Kindrew sv. United States, 409 Fo 49 65th Cir. 1973)
10 Carolyn Roberts, et al. vs.
not only unenforeeable, but extinguishes the elain: itself, for
when the sovercign, immune from suit, consented te be sued
it was made a condition of the right to sue that suits so
authorized had to be brought within the time-har period.”
States Marine Corp. v. United States, 283 F.2d 776, 778 old Cir,
1960). Sce also McMahon v. United States, 342 US. 24 C1951).
Neither infaney nor any other disability can toll the running of
this statute. Sqambati v. United States, 72 Ptd 297 12d Cir
1949), cert, denied, 337 US. 938 (1949). Accord, Woillrams ov,
United States, 133 F. Supp. 319 CE.D. Va. 154). aed, 22s F 2d
129 (4th Cir. 1955), cert. denied, 351 US. 986 (T9900 84
We therefore conclude that to the extent that the appellees’
claim is cognizable in admiralty, it is governed by the Suits in
Admiralty Act and absolutely time-barred by 2 745 of that Aet.
The Government's motion to distiss shenld have becom granted
Reversed.
13[p similar vein this court has held that the tistitutien of a sud moder
the FTCA within the statutery period of limitetion is a qerisdsetonn! re-
quirement, and that the fimitetion period is net tolled luring munovity.
Mann v. United States, 399 Pvd 672 69t. Cir, TOS):
States, 353 F.2d 578 (9th Cir, 1965). Indecd, appetlees do not contest the
point here.
Brown ve United
PERNAU-WALSH PRINTING CU., SAN Li \NeTSCO 6§-12-74—450
APPEND‘*X B
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. 72-2784-EC- Date April 30, 1973
Title Carolyn Roberts, etal -v- U.S.A.
Docket Entry Ent procs hrg & denying deft's
motion to dismiss lst amended complaint.
Ent ord deft 20 days to file an answer.
PRESENT:
iiON. E. AVERY CRARY, JUDGE
Wayne E. Payne Virginia Wright
Deputy Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS:
Ian Herzog
ATTORNEYS PRESENT FOR DEFENDANTS:
Larry Dier for James Stotter
Ass't. U. S. Attorney
PROCEEDINGS: HEARING Defendant's Motion
to Dismiss First Amended Complaint:
Counsel presente as shown and argue the motion.
Court denied defendant's motion to dismiss the
first amended complaint.
B-1
ss de
Court permits defendants 20 days in which to
file an answer.
APPENDIX C
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CAROLYN ROBERTS, )
individually, and STACY )
ROBERTS, GAIL ROBERTS)
and MATTHEW ROBERTS, ) No. 72-2784-EC
by Carolyn Roberts, )
their Guardian ad Litem, ORDER AMEND-
ING ORDER
DENYING MOTION
TO DISMISS,
Plaintiffs,
Vs.
UNITED STATES OF
AMERICA,
)
)
)
)
)
)
)
)
)
Defendant. )
)
The interlocutory order of this Court
entered April 30, 1973, denying the motion of
the defendant United States to dismiss plaintiffs’
amended complaint for lack of jurisdiction
(motion for reconsideration denied June 4,
1973), is hereby amended to include the state-
ments required by Title 28, U.S.C. §1292(b),
and Rule 5(a), Federal Rules of Appellate
Procedure, necessary for a petition for
permission to appeal.
IT IS ORDERED that the Order denying the
defendant's motion to dismiss, entered April
30, 1973, is hereby amended to include the
C-1
PEPER AD
following:
This Order involves a controlling question
of law as to which there is substantial
ground for difference of opinion, and, an
immediate appeal from this Order may
materially advance the ultimate termina-
tion of this litigation.
IT IS FURTHER ORDERED that the above
described Order, as hereby amended, shall be
deemed entered as of the date of this Order for
purposes of computing the allowable time for
the filing of a petition for permission to appeal,
and for this purpose only.
DATED: June 12, 1973.
/s/ E. Avery Crary
E, AVERY CRARY
United States District
Court
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROLYN ROBERTS, ) FILED
Individually, and STACY ) July 9, 1974
ROBERTS, GAIL ROBERTS
and MATTHEW ROBERTS,)
by CAROLYN ROBERTS, )
their Guardian ac Litem,
Plaintiffs -
Appellees,
No. 73-2260
vs.
UNITED STATES OF
AMERICA,
Defendant-
)
)
)
)
)
)
)
)
)
)
)
Appellant. )
)
Before: ELY, HUFSTEDLER and
TRASK, Circuit Judges
ORDER
The panel as constituted in the ‘above case
has voted to deny the petition for rehearing and
to reject the suggestion for rehearing en banc.
The full court has been advised of the
suggestion for an en banc hearing, and no judge
D-1
of the court has requested a vote on the sugges-
tion for rehearing en banc. Fed. R. App. P.
35(b).
The petition for rehearing is denied and the
suggestion for rehearing en banc is rejected.
APPENDIX E
TEXTS OF STATUTES AND CONSTITU-
TIONAL PROVISIONS INVOLVED
(1) Fifth Amendment, Constitution of the
United States, provides in pertinent part:
"No person shall be. . . deprived of life,
liberty, or property without due process of
a a
-(2) Federal Tort Claims Act: Sections
28 U.S.C. §1346(b):
'(a) The District Court shall have original
jurisdiction, concurrent with the court of
claims, of:
'(b) Subject to the provisions of chapter
171 of this title, the district courts,
together with the United States District
Court for the District of the Canal Zone
and the District Court of the Virgin Islands,
shall have exclusive jurisdiction of civil
actions on claims against the United States,
for money damages, accruing on and after
January 1, 1915, for injury or loss of
property, or persona! injury or death
caused by the negligent or wrongful act or
omission of any employee of the Govern-
ment while acting within the scope of his
office or employment, under circumstances
where the United States, if a private
person, would be liable to the claimant in
accordance with the law of the place where
E-1
the act or omission occurred. "'
28 U.S.C. §2401(b):
'(b) A tort claim against the United
States shall be forever barred unless it is
presented in writing to the appropriate
Federal agency within two years after such
claim accrues or unless is begun within six
months after the date of mailing, by certified
or registered mail, of notice of final denial
of the claim by the agency to which it was
presented. "'
28 U.S.C. §2674:
"The United States shall be liable,
respecting the provisions of this title
relating to tort claims, in the same manner
and to the same extent as a private indivi-
dual under the circumstances, but shall
not be liable for interest prior to judgment
or for punitive damages.
"If, however, in any case wherein death
was caused, the law of the place where the
act or omission complained of occurred
provides, or has been construed to provide,
for damages only punitive in nature, the
United States shall be liable for actual or
compensatory damages, measured by the
pecuniary injuries resulting from such
death to the persons respectively, for
whose benefit the action was brought, in
lieu thereof."
&
'
ft
ma
28 U.S.C. $2675:
(a) An action shall not be instituted upon
a Claim against the United States for money
damages for injury or loss of property or
personal injury or death caused by the
negligent or wrongful act or omission of ‘
any employee of the Government while
acting within the scope of his office or
employment, unless the claimant shall have
first presented the claim to the appropriate
Federal agency and his claim shall have
been finally denied by the agency in writing
and sent by certified or registered mail.
The failure of an agency to make final
disposition of a claim within six months
after it is filed shall, at the option of the
claimant any time thereafter, be deemed
a final denial of the claim for purposes of
this section. The provisions of this sub-
section shall not apply to such Claims as
may be asserted under the Federal Rules
of Civil Procedure by third party complaint,
cross Claim, or counterclaim.
'(b) Action under this section shall not
be instituted for any sum in excess of the
amount of the claim presented to the
federal agency, except where the increased
amount is based upon newly discovered
evidence not reasonably discoverable at
the time of presenting the claim to the
federal agency, or upon allegation and
proof of intervening facts, relating to the
_ amount of the claim.
"(c) Sisgesition of any claim by the
Attorney General or other head of a federal
k-3 f , -
agency shall not be competent evidence of
liability or amount of damages."
28 U.S.C. §2679:
'(a) The authority of any federal agency
to sue and be sued in its own name shall
not be construed to authorize suits against
such federal agency on claims which are
cognizable under section 1346(b) of this
title, and the remedies provided by this
title in such cases shall be exclusive.
'(b) The remedy against the United States
provided by sections 1346(b) and 2672 of
this title for injury or loss of property or
personal injury or death, resulting from
the operation by any employee of the Govern-
ment of any motor vehicle while acting
within the scope of his office or employment,
shall hereafter be exclusive of any other
civil action or proceeding by reason of the
same subject matter against the employee
or his estate whose act or omission gave
rise to the claim."
28 U.S.C. §2680:
"The provisions of this chapter and
section 1346(b) of this title shall not apply
to <=
* He % mE %% % mE Hs x6
'(d) Any claim for which a remedy is
provided by sections 741-752, 781-790 of
Title 46, relating to claims or suits in
admiralty against the United States.
fe. Fs as a
« ° « é 76 7 76 -
E-4
'(k) Any claim arising in a foreign
country. "
(3) Suits in Admiralty by or Against
Vessels or Cargoes of United States, Title
46 U.S. Code, Chapter 20. (46 U.S.C.
§§ 741-752).
46 U.S.C. §741 Exemption of United
States Vessels and Cargoes from Arrest
or Seizure
"No vessel owned by the United States or
by any: corporation in which the United
States or its representatives shall own the
entire outstanding capital stock or in
possession of the United States or of such
corporation or operated by or for the
United States or such corporation, and no
cargo owned or possessed by the United
States or by such corporation, shall, in
view of the provisions made herein for a
libel in personam, be subject to arrest or
seizure by judicial process in the United
States or its possessions: provided, that
this chapter shall not apply to the Panama
Railroad Company."
46 U.S.C. §742 Libel in Personam
"In cases where if such vessel were
privately owned or operated, or if such
cargo were privately owned or possessed,
or if a piivate person or property were
involved, a proceeding in admiralty could
be maintained, any appropriate nonjury
proceeding in personam may be brought
E-5
™- ——' “a
against the United States or against any
corporation mentioned in Sec. 741 of this
title. Such suits shall be brought in the
District Court of the United States for the
district in which the parties so suing, or
any of them, reside or have their principal
place of business in the United States, or
in which the vessel or cargo charged with
liability is found. The libelant shall forth-
with serve a copy of his libel on the United
States Attorney for such district and mail
a copy thereof by registered mail to the
Attorney General of the United States, and
shall file a sworn return of such service
and mailing. Such service and mailing
shall constitute valid service on the United
States and such corporation. In case the
United States or such corporation shall file
a libel in rem or in personam in any
district, a cross-libel in personam may
be filed or a set-off claimed against the
United States or such corporation with the
same force and effect as if the libel had
been filed by a private party. Upon
application of either party the case may,
in the discretion of the court, be trans-
ferred to any other District Court of the
United States. "'
46 U.S.C. §743 Procedure in Cases of
Libel in Personam
"Such suits shall proceed and shall be
heard and determined according to the
principles of law and to the rules of prac-
tice obtaining in like cases between private
parties. A decree against the United
E-6
States or a corporation mentioned in Sec.
741 of this title may include costs of suit,
and when the decree is for a money judg-
ment, interest at the rate of 4% per annum
until satisfied, or at any higher rate which
shall be stipulated in any contract upon
which such decree shall be based.
Interest shall run as ordered by the court.
Decrees shall be subject to appeal and
revision as provided in other cases of
admiralty and maritime jurisdiction. If
the libelant so elects in his libe, the suil
may proceed in accord ince with the prin-
ciples of libels in rem wherever it shall
appear that had the cargo or vessel been
privately owned and possessed a libel in
rem might have been obtained. Elections -
so to proceed shall not preclude the
libelant in any proper case from seeking
relief in personam in the same suit.
Neither the United States nor such cor-
poration shall be required to give any bond
or admiralty stipulation on any proceeding
brought hereunder. "'
46 U.S.C. §744 Release of Privately
Owned Vessel After Seizure
"If a privately owned vesse! not in the
possession of the United States or of a
corporation described in Sec. 741 of this
title is arrested or attached upon any
cause of action arising or alleged to have
arisen from previous possession, owner-
ship, or operation of such vessel by the
United States or by such corporation, such
vessel shall be released without bond or
E-7
stipulation therefor upon the suggestion by
the United States, through its Attorney
General or other duly authorized law officer,
that it is interested in such cause, desires
such release, and assumes the liability for
the satisfaction of any decree obtained by
the libelant in such cause, and thereafter
such cause shall proceed against the United
States in accordance with the provisions of
this chapter.
46 U.S.C. §745 Causes of Actions for
Which Suits May Be Brought; Limitations;
Exceptions; Actions Which May Not Be
Revived; Interest on New Claims
"Suits as authorized by this chapter may
be brought only within two years after the
cause of action arises: provided, that
where a remedy is provided by this chapter
it shall hereafter be exclusive of any other
action by reason of the same subject
matter against the agent or employee of
the United States or of any incorporated or
unincorporated agency thereof whose act
or omission gave rise to the claim:
provided further, that the limitations con-
tained in this section for the commencement
of suits shall not bar any suit against the
United States brought hereunder within one
year after December 13, 1950, if such suit
is based upon a cause of action whereon a
prior suit is based upon a cause of action
whereon a prior suit in admiralty or an
action at law was timely commenced and
was or may hereafter be dismissed because >
solely improperly brought against any
E-8
person, partnership, association or cor-
poration engaged by the United States to
manage and conduct the business of a
vessel owned or fare boat chartered by the
United States or against the master of any
such vessel: provided further that after
June 30, 1932, no interest shall be allowed
on any claim prior to the time when suit on
such claim was brought as authorized by
Sec. 742 of this title unless upon a contract
especially stipulating for the payment of
interest."
46 U.S.C. §746 Exemptions and
Limitations of Liability
"The United States or a corporation des-
cribed in Sec. 741 of this title shall be
entitled to the benefit of all exemptions and
of all the limitations of liability accorded
by law to the owners, charterers, opera-
tors, or agents of vessels."
46 U.S.C. §747 Seizures in Foreign
Jurisdictions.
"If any vessel or cargo within the purview
of Sec. 741 and 744 of this title is arrested,
attached, or otherwise seized by process
of any court in any country other than the
United States, or if any suit is brought
therein against the master of any such
vessel for any cause of action arising
from, or in connection with, the posses-
sion, operation, or ownership of any such
vessel, or the possession, pierage, or
ownership of such cargo, the Secretary of
E-9
State of the United States in his discretion,
on the request of the Attorney General of
the United States, or any other officer duly
authorized by him, may direct the United
States Consul residing at or nearest the
place at which such action may have been
commenced claims such vessel or cargo as
immune from such arrest, attachment, or
other seizure, then to execute an agree-
ment, undertaking, bond or stipulation for
and on behalf of the United States, or the
Secretary of Commerce or a corporation
described in Sec. 741 of this title as by
said court required, for the release of such
vessel or cargo, and for the prosecution
of any appeal; or may, in the event of such
suits against the master of any such vessel,
direct said United States Consul to enter
the appearance of the United States, ‘or of
the Secretary of Commerce, or of such
corporation, and to pledge the credit there-
of to the payment of any judgments or costs
that may be entered in such suit. The
Attorney General is vested with’ power and
authority to arrange with any bank, surety
company, person, firm, or corporation in
the United States, its territories and pos-
sessions, or in any foreign country, to —
execute any such aforesaid bond or stipula-
tion as surety or stipulator thereon, and
to pledge the credit of the United States to
the indemnification of such surety or
stipulator as may be required to secure’
the execution of such bond or stipulation.
The presentation of a copy of the judgment
rule in any such suit, certified by the
clerk of the court and authenticated by the
E-10
i ? a [om
‘
oa a
certificate and seal of the United States
Consul, claiming such vessel, or cargo,
or his successor, and by the certificate of
the Secretary of State as to the official
capacity of such consul, shall be sufficient
evidence to the proper accounting officer
of the United States, or of the Secretary
of Commerce, or of such corporation for
the allowance and payment of such judg-
ments: provided, however, that nothing in
this section shall be held to prejudice or
preclude a claim of the immunity of such
vessel or cargo from foreign jurisdiction
in a proper case."
46 U.S.C. §748 Payment of Judgrient,
Order, or Settlement
"Any final judgment rendered in any suits
herein authorized, in any final judgment
within the purview of Sec. 744 and 747 of
this title, in any arbitration award or
settlement herein agreed to under the
provisions of Sec. 749 of this title, shall,
upon the presentation of a duly authenti-
cated copy thereof, be paid by the proper
accounting officers of the United States
out of any appropriation or insurance fund
or other fund especially available therefor;
otherwise there is appropriated out of
money in the Treasury of the United States
not otherwise appropriated, a sum suf-
ficient to pay any such judgment or award
or settlement."
E-11
PUREE OO OEE BoP a
46 U.S.C. §749 Arbitration, Compromise,
or Settlement of Claims
"The Secretary of any department of the
Government of the United States, or the
board of trustees of any corporation men-
tioned in Sec. 741 of this title, having
control of the possession or operation of
any merchant vessel are, and each is,
authorized to arbitrate, compromise, or
settle any claim in which suit will lie
under the provisions of Sec. 742, 744,
and 750 of this title. "'
46 U.S.C. §750 Recovery for Salvage
Services by Vessel or Crew
"The United States, and the crew of any
merchant vessel owned or operated by the
United States, or a corporation mentioned
in Sec. 741 of this title, shall have the
right to collect and sue for salvage services
rendered by such vessel and crew, and any
monies recovered therefrom by the United
States for its own benefit, and not for the
benefit of the crew, shall be covered into
the United States Treasury to the credit
of the department of the Government of the
United States, or of such corporation,
having control of the possession or opera-
tion of such vessel.
46 U.S.C. §751 Disposition of Monies
Recovered by the United States
"All monies recovered in any suit brought
by the United States on any cause of action
E-12
Nee rere —— 4
arising from, or in connection with, the
possession, operation, or ownership of
any merchant vessel, or the possession,
carriage, or ownership of any cargo, shall
be covered into the United States Treasury
to the credit of the department of the
Government of the United States, or of the
corporations mentioned in Sec. 741 of
this title, and a control of the vessel or
cargo with respect to which said cause of
action arises, for reimbursement of the
appropriation, or insurance fund, or other
funds, from which the loss, damage or
compensation for which such judgment was
recovered has been or will be paid.”
46 U.S.C. $752 Reports as to Awards
and Settlements
"The Secretary of any Department of the
United States, and the board of trustees of
any corporation mentioned in Sec. 741 of
this title, shall report to the Congress at
each session thereof the arbitration awards
or settlements of claims which shall have
been agreed to under this chapter since
the previous session, and in which the
time to appeal shall have expired or have
been waived."
(4) 46U.S.C. $740 Extension of
Admiralty and Maritime Jurisdiction
“The admiralty and maritime jurisdiction
of the United States shall extend to and
include all cases of damage or injury, tw
person or property, caused by a vessel
E-13
SRA
wee
SPEEA
fe Oe eretiwt aD
on navigable water, notwithstanding that
such damage or injury be done or consum-
mated on land.
"In any such case suit may be brought in
rem or in personam according to the prin-
ciples of law and the rules of practice
obtaining in cases where the injury or
damage has been done and consummated on
navigable water: provided, that as to any
suit against the United States for injury
done or consummated on land by a vessel
on navigable waters, the Public Vessels
Act or Suits in Admiralty Act, as appropri-
ate, shall constitute the exclusive remedy
for all causes of action arising after June
19, 1948, and for all causes of action where
suit has not been hitherto filed under the
Federal Tort Claims Act: provided further,
that no suit shall be filed against the United
States until there shall have expired a
period of six months after the claim has
been presented in writing to the Federal
agency owning or operating the vessel
causing damage. "'
(5) Death on the High Seas Act, Title 46,
U.S. Code, Chapter 21. (46 U.S.C. §§761-
767).
46 U.S.C. §761 Right of Action:
Where and by Whom brought:
"Whenever the death of a person shall be
caused by wrongful act, neglect, or default
occurring on the high seas beyond a marine
league from the shore of any State, or the
B-id-
District of Columbia, or the Territories
or dependencies of the United States, the
personal representative of the decedent
May Maintain a suit for damages in the
District Court of the United States, in
admiraity, for the exclusive benefit of the
decedent's wife, husband, parent, child
or dependent relative against the vessel,
person or corporation which would have
been liable if death had not ensued."
46 U.S.C. §762 Amount and Apportion-
ment of Recovery
"The recovery in such suits shall be a fair
and just compensation for the pecuniary
loss sustained by the persons for whose
benefit the suit is brought and shall be
apportioned among them by the court in
proportion to the loss they may have
severally suffered by reason of the death
of the person by whose representative the
suit is brought."
46 U.S.C. §763 Limitations
"Suits shall be begun within two years from
the date of such wrongful act, neglect, or
default, unless during that period there has
not been reasonable opportunity for secur-
ing jurisdiction of the vessel, person, or
corporation sought to be charged; but after
the expiration of such period of two years
the right of action hereby given shall not
be deemed to have lapsed until ninety days
after a reasonable opportunity to secure
jurisdiction has offered."
E-15
46 U.S.C. §764 Rights of Action Given
by Laws of Foreign Countries
Whenever a right of action is granted by
the law of any foreign state on account of
death by wrongful act, neglect, or default
occurring upon the high seas, such right
may be maintained in an appropriate action
in admiralty in the courts of the United
States without abatement in respect to the
amount for which recovery is authorized,
any statute of the United States to the
contrary notwithstanding. "
46 U.S.C. §765 Death of Plaintiff
Pending Action
"If a person dies as the result of such
wrongful act, neglect, or default as is
mentioned in subsection 761 of this title
during the pendency in court of admiralty
of the United States of a suit to recover
damage for personal injuries in respect to
such act, neglect, or default, the personal
representative of the decedent may be
substituted as a party in the suit and may
proceed as a suit under this chapter for
the recovery of the compensation provided
in Sec. 762 of this title."
46 U.S.C. §766 Contributory Negligence
"In suits under this chapter the fact that
the decedent has been guilty of contributory
negligence shall not bar recovery, but the
courts shall take into consideration the
degree of negligence attributable to the
E-16 —
decedent and reduce the recovery accor-
dingly."
46 U. S.C. §767 Exceptions from Opera-
tion of Chapter :
"The provisions of any state statute
regulating or giving rights of action or
remedies for death shall not be affected
by this chapter. Nor shall this chapter
apply to the Great Lakes or to any waters
within the territorial waters of any state,
' or to any navigable waters in the Panama
Canal Zone."
(6) Suits in Admiralty Against United
States for Damages Caused by Public Vessels
("Public Vessels Act"), Title 46, U.S. Code,
Chapter 22. (46 U.S.C. §§781-790).
46 U.S.C. §781 Libel in Admiralty
Against or Impleader of United States
"A libel in personam in admiralty may be
brought against the United States, or a
petition impleading the United States, for
damages caused by a public vessel of the
United States, and for compensation for
towage and salvage services, including
contract salvage, rendered to a public
vessel of the United States: provided, that
the cause of acticn rose after the sixth _,
day of April, 1920,"
46 U.S.C. §782 Venue of Suit: Applica-
tion of Provision of Chapter 20
"Such suits shall be brought in the District
Court of the United States for the district
in which the vessel or cargo charged with
creating the liability is found within the
United States, or if such vessel or cargo
be outside the territorial waters of the
United States, then in the District Court of
the United States for the district in which
the parties so suing, or any of them,
reside or have an office for the transaction
of business in the United States; or in case
none of such parties reside or have an
office for the transaction of business in
the United States, and such vessel or cargo
be outside the territorial waters of the
United States. Such suits shall be subject
to and proceed in accordance with the
provisions of Chapter 20 of this title or
any amendment thereof, insofar as the
same are not inconsistent herewith, except
that no interest shall be allowed on any
claim up to the time of the rendition of
judgment unless upon a contract expressly
stipulating for the payment of interest.”
46 U.S.C. §783 Cross-libel, set-off,
or counterclaim
"In the event of tre United States filing a
libel in rem or in perso1am in admiralty
for damages caused by a privately owned
vessel, the owner of such vessel, or his
successors in interest, may file a cross-
libel in personam or claim a set-off or
E-18 =
counterclaim against the United States in
such suit for and on account of any damages
arising out of the same subject matter or
cause of action; provided, that whenever a
cross -libel is filed for any cause of action
for which the original libel is filed by
authority of Sec. 781 through 790 of this
title, the respondent in the cross-libel
shall give security in the usual amount and
form to respond to the claims set forth in
said cross-libel unless the court, for cause
shown, shall otherwise direct; and all
proceedings on the original libel shall be
stayed until such security shall be given."
46 U.S.C. §784 Subpoenas to Officers
or Members of Crews
"No officer or member of the crew of any
public vessel of the United States may be
subpoenaed in connection with any suit
authorized under Sec. 781 through 790 of
this title without the consent of the secre-
tary of the department or the head of any
independent establishment of the govern-
ment having control of the vessel at the
time the cause of action arose, or of the
master or commanding officer of such
vessel at the time of the issuance of such
subpoena. "
46 U.S.C. §785 Suits by Nationals of
Foreign Governments
"No suit may be brought under Sec. 781
through 790 of this title by a national of
any foreign government unless it shall
E-19
ee
appear to the satisfaction of the court in
which suit is brought that said government,
under similar circumstances, allows
nationals of the United States to sue in its
courts."
46 U.S.C. §786 Arbitration, Compromise,
or Settlement
"The Attorney General of the United States
is authorized to arbitrate, compromise, or
settle any claim on which a libel or cross-
libel would lie under the provisions of Sec.
781 through 790 of this title and for which
a libel or cross-libel has actually been
filed."
46 U.S.C. §787 Payment of Judgments
or Settlements
"Any final judgment rendered on any libel
or cross-libel herein authorized, and any
settlement had and agreed to under the
provisions of Sec. 786 of this title, shall
upon presentation of a duly authenticated
copy thereof, be paid by the proper
accounting officer of the United States
out of any monies in the Treasury of the
United States appropriated therefor by
Congress. "
46 U.S.C. §788 Lien Not Created
Against Public Vessels
"Nothing contained in Sec. 781 through 790
of this title shall be construed to recognize
the existence of or as creating a lien
E-20
SNe teens
against any public vessel of the United
States."
46 U.S.C. §789 Exemptions and Limita-
tions of Liability
"The United States shall be entitled to the
benefits of all exemptions and of all limi-
tations of liability accorded by law to the
owners, charterers, operators or agents
of vessels. "’
46 U.S.C. §790 Reports by Attorney
General
"The Attorney General of the United States
shall report to the Congress at each session
thereof all claims which shall have been
settled under Sec. 781 through 790 of this
title. "'
E-21
An 5 —— EME IE ROSE Sb EAL LV\ LINE! CLE A, LL DELICE AS ED Ee
SEP APOLLON ITI ONL, NES AEM TE ORTH SY RN TR IT SP
2 REI TES
:
;
:
3
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