Petition for Writ of Certiorari — Executive Jet Aviation, Inc. v. Cleveland

INDEX

Page

PE. scnccccevesecccsccevenccesscosccoed 1

diction PPT eTETTCTTTL LLCO TTT TELE 2

Q jon Presented ...........ccccccccccscccccccce 2

Oar s tutional and Statutory Provisions Involved ..... 2

Biaten OS 3

MMs for Granting the Writ ..........:..02...5- 10

-L The Sixth Circuit’s Decision in This Case Is

"am Direct and Irreconcilable Conflict With the

© Third Circuit’s Decision in Weinstein on the

Same Matter of Federal Law ................ 10

ZL. The Question of Federal Law Involved Here Is

* an Important One Which Has Not Been, But

» $hould Be, Settled by This Court ............ 16

Gil. The Sixth Circuit’s Ruling on This Important

© Matter of Federal Law Is Such a Departure

© From All Prior Authority as to Call for the

> Exercise of This Court’s Power of Supervision 22

ay bd vA0 sc WON 6 $e 69.00 6066046 s0000000000 27

A—Opinion of the court of appeals ....... la

B—Opinion of the district court ......... 27a

CITATIONS

io Corp. v. Aero Lodge No. 735 1.A.M. & A.W., 390

DE: CRUD co accccvccsessccveneersccocees 16

werson v Aero Assoctates, Inc., 213 F. Supp. 936

STR AOU) 6s ccvsccsaccccsscccscccesccces 22

os

ii Index Continued

Page

Chapman v. City of Grosse Pointe Farms, 385 F. 2d

962 (6th Cir. BUM) cdwneciccaceessssecvetetars 12

Dugas v. National Aircraft Corp., 438 F. 2d 1386 (3d

Gin. 1971). Beeeeeee eee eee eeeeseeeeseeertseesor tee 20,

Fernandez v. Linea Aeropostal Venezolana, 166 F.

‘ Supp. .94.(S.D.N UY. 1957)... cece eee eeneees 3

Gowdy v. United States, 412 F. 2d 525 (6th Cir.),

cert. denied, 396 U.S. 960 (1969) .......00.-0- 12

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

* Jee, BOGE) wcicccccccsicccestcnsecvescevccess 18, 22

Hess v. United States, 361 U.S. 314 (1960) cthieeaned 19

Higa v. Transocean Airlines, 124 F. Supp. 13 (D.C.

NE cca Lanch puinsathieetassen 23

Hornsby v. The Fishmeal Co., 285 F. Supp. 99 990 a

La. 1968), rev’d on other grounds, 431 F

een rryis iter ee 20, 22

Horton v. J. & = Aircraft, Inc., 257 F. Supp. 121

| ee ry reer ere eter 22

King .v. Pan American World Airway s, 166 F. a

936 ee Cal. 1958), aff’d 270 F 2d 355 (9th Cir

1959), cert. denied, 362 U.S. 928 (1960) .......... 93

Krause v. Sud-Aviation, Souidté Nationale de Constr.

Aero., 301 F. Supp. 513 (S.D.N.Y. 1968), aff’d,

418 F. dd 428 (2d Cir. SEE Gi daikcas ceesec decay 23

Kropp v. Douglas Aircraft Co.. 329 F. ~~ 447

N.Y, oo Se reper Teer eee eee 20, 23

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

Terre Tere TTT TTT es rer ee 23

Leroy v. United Atr Lines, Inc., 11 Av. Cas. {17,919

Sh A OD Ss Soainackaksvenscscbwseae t 20, 23

Minnie v. Port Huron Co., 295 U.S. 647 rp | ' 24, y-5)

on Gin, : PRN PMR R ed eweeseqatasscecdecesas 22

Wels v. States Marine Lines, Inc., ‘398 U.S. By

t Re ASRS re aT eee er 9, 20, 26

Noel Ft conan Inc., 169 ¥. Supp. 348 DN. ‘

(bi hhea be yandeeqdtieres ce Pesssceneweeeees 1

Northeastern Pennsylvania National Bank & Trust Co. :

v. United States, 387 U.S. 213 (1967) ......2..... 16

Perma Life Mufflers, Inc. v. International Parts Corp.,

SE IE ED osc kn cascpecctadeccsanesvece 2

app v. Eastern Air Lines, Inc., 264 F. Supp. 673

CU EA WUR UED 4h60 i xeOen Oise sccnnesesess 13, 15, 22

Index Continued iil

Page

Scott v. Eastern Airlines, Inc., 399 F. 2d 14 (3d Cir.),

cert. denied, 393 U.S. 979 (1968) ............ 10, 19, 22

Smith & Son v. Taylor, 276 U.S. 179 (1928) ......... 24, 25

Stiles v. National Airlines, Inc., 161 F. Supp. 125 (E.D.

Pa. 1958), aff’d, 268 F. 2d 400 (5th Cir.), cert.

denied, 361 U.S. 885 (1959) ........... cece ee ees 22

The Admiral Peoples, 295 U.S. 649 (1935) ....... 10, 24, 25

Thomas v. United Air Lines, Inc., 24 N.Y. 2d 714, 24

2k & 4 Fe. | Pee PeTETeTeeTr eer 18, 23

Thomson v. Chesapeake Yacht Club, Inc., 255 F. Supp.

ee See eer ee

Weinstein v. Eastern Airlines, Inc., 316 F. 2d 758 (3d

Cir.), cert. denied, 375 U.S. 940 (1963) ....9, 10, 11, 12,

13, 15, 16, 17, 19, 23, 24, 26

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

SERER Bm. UGE) Crew 7G) oo ou0 00 ve scence cccceses 23

Williams v. Lee, 358 U.S. 217 (1958) ................ 27

Wilson v. Transocean Airlines, 121 F. Supp. 85 (N.D.

GI, BOD vac vi cwacccencasevessvescdssbecTey 18, 22

STaTUTEs :

SPURRED, © EROOCLD vec vcwsa tuys cossVeereveeewsvnges -2

ot bea 5: 9

BE UB.C. § 1BBB(1) 2... ccc ccc cc scree scccccccccess 2,19

BEUBA. § 1ADELa) 2... ccc ccccccsccccncccsecccccces 21

err Perr 21

Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-

Death on the High Seas Act, 46 U.S.C. § 761 ........ 19

MISCELLANEOUS : ;

U.S. Constr. art. ITT, § 2 2... cece cece ewes 2

Fed. R. Civ. P:~12(h)(3) 2.0... cece eee 9

Federal Aviation Administration, Statistical Hand-

book of Aviation (1969) ...................08. 17

American Law Institute, Study of the Division of

oe Between State and Federal Courts

——

IN THE

Supreme Court of the United States

OctToBER TERM, 1971

No.

EXECUTIVE JET AVIATION, INC., ET AL., Petitioners

v.

Crry oF CLEVELAND, OHIO, ET AL., Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners Executive Jet Aviation, Inc. and Ex-

ecutive Jet Sales, Inc.’ respectfully pray that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Sixth Circuit entered

in this proceeding on August 24, 1971.

OPINIONS BELOW

The opinion of the court of appeals, reported at 448

F. 2d 151, appears in the Appendix hereto (App. A,

infra, pp. la-26a). The unreported opinion of the

district court also appears in the Appendix hereto

(App. B, infra, pp. 27Ta-42a).

___

— petitioners will be referred to collectively as

‘BJA.”

2

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered on August 24, 1971.

On September 14, 1971, EJA filed with the court of

appeals a suggestion of a party for rehearing in bane

and a motion to enlarge time for filing such a sug-

gestion. On October 18, 1971, the court of appeals

entered an order granting EJA’s motion. As of the

date of filing this petition, no action has been taken

by the court of appeals on EJA’s suggestion for a re-

hearing in bane. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

EJA adopts the following statement from Circuit

Judge Edwards’ dissenting opinion written in this case:

This case presents a single important question:

Do the federal courts have maritime jurisdiction

over airplane crashes in navigable waters where

the cause of the crash is alleged to be tortious

— which occurred on land? (App. A, infra,

p. 8a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

U. S. Const. art. IIT:

§ 2. Jurisdiction of Courts

The judicial Power shall extend... to all Cases

of admiralty and maritime Jurisdiction; . . .

United States Code (U.S.C.), Title 28:

§ 1333. Admiralty, maritime and prize cases

The district courts shall have original jurisdic

tion, exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime

jurisdiction. .. .

_

3

STATEMENT OF THE CASE

On July 28, 1968, a corporate jet aircraft known as

a Faleon Mystere M-20, Registration N367EJ (here-

inafter referred to as the Falcon), owned by petitioner

Executive Jet Sales, Inc. and operated by petitioner

Executive Jet Aviation, Inc. crashed in the navigable

waters of Lake Erie after striking several hundred

seagulls shortly after takeoff from Burke Lakefront

Airport at Cleveland, Ohio (hereinafter referred to

as the airport). The airport is owned, operated and

maintained by respondent the City of Cleveland, Ohio,

and at the time of the crash respondent Phillip A.

Schwenz? was employed by the City as manager of

the airport and was acting in the scope and course of

his employment (R. 4, 9).2 Respondent Howard E.

Dicken was employed by the United States Federal

Aviation Administration (FAA) at the time of the

erash and was acting in the scope of his employment

as an Air Traffic Controller when he issued a clearance

from the airport tower to the Falcon for takeoff (R.

4,7). ‘

What happened at the time of this crash is suc-

cinetly stated by the two pilots flying the Falcon in a

statement given by them two days after the accident

to the Naional Transportation Safety Board during

the course of the official investigation of this accident

(R. 18-20). That statement reads:

~-

? Hereinafter appellees the City of Cleveland, Ohio, and Phillip

A. Schwenz will be referred to collectively as ‘‘the City.”’ !

® Record citations refer to pages in the printed Appendix to

the Briefs filed in the court of appeals which, together with

the Appendix of Photographic Exhibits, was certified and trans-

mitted as the record in this case.

4

STATEMENT OF WITNESS

July 30, 1968

Pilot Statement: W. P. Flower, P/C

C. Dirck, C/P

_ The Aircraft—EJ 367—arrived at Burke Lake-

front July 26 a 1600 hours. It was

immediately refueled by Remmert-Warner, se-

cured and the crew departed to the motel. The

crew consisted of W. P. Flo®er, P/C, C. Dirck,

C/P, and Miss J. Vargo, Hostess.

On the 28th at approximately 1000 hours, the

crew arrived at Lakefront for a ferry flight to

Portland, Maine, picking up engers and con-

tinuing to White Plains, N. Y. The aircraft was

uncovered and preflighted by the First officer. The

Hostess made a final inspection of the cabin in

preparation for picking up passengers and the

Captain obtained the weather, filed a flight plan,

and obtained a release from the Company dis-

patcher. After engine start we received clearance

to taxi to Runway 6 Left. As the flight was non-

revenue it is company policy for the first officer to

fly in the left seat for proficiency and training.

The first officer was flying from the left seat, the

captain in the right seat, and the Hostess was

— in the first seat on the right side facing

a

The check list was completed and on taxiing

out, it was noted that one aircraft was on landing

rollout on 6 Left, and ground advised an aircraft

was on the approach to 6 Right. The ground ad-

vised to expedite across 6 Right. At this point

there were, to my knowledge, no advisories regard-

ing birds from ground control. In obtaining the

weather by phone for Cleveland, Portland, and

White Plains, there was no information given

regarding birds as would appear on the end of the

Cleveland sequence. On instructions, the pilot in

5

the right seat, switched to tower frequency, and re-

quested take-off. The take-off clearance initially

was faded with the final portion of the statement

saying something to the effect ‘‘Caution, birds on

end of runway.’’ These exact remarks can be

substantiated by the tower tape. The bird caution

to me was a routine advisory as would be given

for a few or small number of birds. The trans-

mission did not possess extreme hazard informa-

tion. As the take-off clearance was not clear a

second request was made and a second clearance

was issued for take-off. Neither pilot could see

the birds on the end of the runway. After clear-

ance to take-off was received the pilot:in the left

seat executed the take-off and rotated at approxi-

mately 125 Kts. The pilot in the right seat made

a power check, voiced 30 Kts., 100 Kts., V: and

rotate. The pilot in the left seat could not dis-

tinguish the bird line prior to rotation and in

his estimation could not abort the take-off. On

rotating a sea of birds on the runway became visi-

ble. Approaching the birds at approximately 75

feet caused them to flush and fly into the aircraft,

apparently hundreds hitting the belly and engine

intakes. Bird impact substantially reduced the

air speed an estimated 15 or 20 Kts. The pilot

in the left seat raised the gear handle, the pilot

in the right seat maneuvered the throttles in an

effort to obtain partial power. There was almost

immediate total loss of power. The engine tem-

perature indicated above 850 degrees on both en-

ines and the RPM dropped rapidly below 70%.

e aircraft flew in a semi-stalled, attitude stall

horn blowing until contacting the water. The air-

craft struck the top of a pick-up truck and a por-

tion of the airport perimeter fence. The aircraft

contacted the water in a flat attitude and on a

second impact water entered the cabin almost

immediately. Only a few seconds passed between

bird impact and water contact and it is estimated

that the aircraft did not attain more than 75 to

6

100 feet in altitude. After the second impact the

pilot went to the rear of the aircraft to release

the emergency exit and see if the stewardess was

uninjured. The airplane settling in the water ap-

parently exerted some pressure inside and it was

impossible to open the right cabin emergency exit.

One pilot succeeded in opening the pilot’s left

window with the fire extinguisher. The other pilot

opened the left cabin exit. A small private boat

picked up the crew as the aircraft was settling in

the water. Approximately the nose cone area re-

mained above the water level. The crew returned

to the airport and there were no injuries. The

aircraft floated approximately 5 to 10 minutes.

No bird dispersing method or system of any kind

exists at the airport.

In conclusion, the advisory comment ‘‘birds on

end of runway’’, ‘‘bird activity’’ is a caution re-

mark and denoted no extreme hazard to the crew.

It has been given routinely to hundreds of de-

parting pilots at Lakefront. The mass of birds

that must have been on the runway that would

allow an aircraft to strike 314 birds to me denotes

an extreme hazard. When an aircraft is cleared

to takeoff, the pilot has every right to assume that

there are no other aircraft on the runway, that

there are no people on that runway or that there

are not one thousand birds on the runway. In my

estimation the runway should have been closed for

departing jet traffic. With that many birds, the

runway could never have been considered safe. It

would have been helpful if some official survival

assistance could have been available from the air-

rt. The Coast Guard apparently does not have

irect contact with the tower and it was sometime

before they arrived at the submerged aircraft.

/3/ W. P. FLower

W. P. Flower

/s/ CHARLES E. Dirck

C. Dirck

yi

7

Official accident investigators later counted 314 dead

seagulls on the runway (R. 31). They also determined

that the aircraft impacted the water at a point located

one-fifth of a statute mile from the cyclone fence which

marked the airport boundary (R. 43, 44). The waters

-of Lake Erie are navigable at that point, their depth

being estimated at ‘‘between 40 and 45 feet’’ (R. 49).

The Falcon sank completely and remained submerged

in Lake Erie for more than two days (R. 50, 54).

After it was raised an inspection of the aircraft re-

vealed that, among: other things, ‘‘the fuselage con-

tained severe bending’’ (R. 60), and the interior of

_ the aircraft (including all electrical components, radios

and instruments) ‘‘revealed intensive water soaking”’

(R. 61).*

This action was brought within the admiralty and

maritime jurisdiction of the United States District

Court for the Northern District of Ohio, Eastern Di-

vision, by EJA against the City and respondent

Dicken * to recover for the total destruction of EJ A’s

‘Falcon, for the loss of use of the aircraft for a period

reasonably required to obtain a replacement, and for

the salvage, raising and other costs incurred (R. 3-6).

The complaint seeks damages in the amount of $1,763,-

*Photographs of the dead birds, the impact point, the cyclone

fence and truck struck by the Falcon, the damage to the Falcon

and similar matters are shown in the Appendrx of Photographic

Exhibits.

°EJA also filed an action against Dicken’s employer, the United

States of America, under the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b), 2671-2680. That action, identical to the present ac-

tion against Dicken except for the jurisdictional basis, is still

pending in the United States District Court for the Northern Dis-

triet of Ohio, Eastern Division, as Civil Action No. C69-352.

8

643.64 (with interest), and contains the following al-

legations, among others:

7. On or about July 28, 1968, defendant Howard |

E. Dicken negligently and carelessly supervised

and controlled, or failed to supervise and control,

er ery Falcon; and negligently and carelessly

ailed to warn plaintiffs of hazards to aircraft

existing on, over and adjacent to the airport of

which defendant Howard E. Dicken knew or should

have known, including a huge flock of seagulls

which were sitting on the active runway.

8. On and before July 28, 1968, the city and

defendant Phillip A. Schwenz, and each of them,

negligently and carelessly operated, controlled,

maintained, supervised and inspected the airport;

negligently and carelessly failed to remove and

eliminate hazards to the aircraft existing on, over

and adjacent to the airport, including the afore-

mentioned flock of seagulls; and negligently failed

to warn plaintiffs of hazards to aircraft existing

on, over and adjacent to the airport of which

the city and defendant Phillip A. Schwenz knew

or should have known, including the aforemen-

tioned flock of seagulls.

9. As a result of the aforementioned negligence

and carelessness of defendants, and each of them,

plaintiffs’ Falcon struck several hundred sea-

gulls shortly after take off from the airport when

the flock flushed; and the Falcon was totally de-

stroyed when it crashed and sank into the navigable

waters of Lake Erie off shore from the airport,

pel laintiffs’ damage.... (R. 4, 5, emphasis

a

The City impleaded the United States of America

seeking non-contractual indemnity (R. 14-17). After

all pleadings were at issue (R. 9, 6, 22) and following |

some initial discovery (R. 25-69), the City filed a

aa

9

motion pursuant to Rule 12(h)(3) Fed. R. Civ. P.

suggesting to the district court that it lacked jurisdic-

. tion of the subject matter (R. 21). Dicken joined in

P the motion (R. 24). On June 12, 1970, the district

court granted the City’s motion and filed a memo-

randum and order dismissing EJA’s complaint for

lack of jurisdiction over the subject matter (R. 73-87).

The district court held (1) that the locality of the

tort was over land because ‘‘the ‘impact’ of the alleged

negligence occurred when the gulls disabled the plane’s

engines’? (App. B, infra, pp. 36a-37a) ; and (2) that

there was ‘‘no relationship between the ‘wrong’ alleged

in this case and some maritime service, navigation or

commerce upon navigable waters’? (App. B, infra,

p. 41a).

EJA appealed the dismissal to the Sixth Circuit

under 28 U.S.C. § 1291. By a vote of two-to-one the

court of appeals affirmed the judgment below. Chief

Judge Phillips, writing for the majority, agreed with

the district court’s holding that ‘‘the alleged tort oc-

curred on land, even though the plane fell into naviga-

ble waters ...’’ (App. A, infra, p. 1a); but found it

“not necessary to consider the question of maritime

relationship or nexus .. .’’ (App. A, infra, p. 6a).

In a seventeen page dissent Circuit Judge Edwards

disagreed. He noted that in Weinstein v. Eastern

Airlines, Inc., 316 F.2d 758 (3d Cir.), cert. denied,

375 U.S. 940 (1963), the Third Circuit held that the

federal courts have maritime jurisdiction over airplane

crashes in navigable waters where the cause of the

crash was alleged to be tortious conduct which oc-

curred on land. He agreed with the Third Circuit’s

reasoning in Weinstein that such cases are within the

admiralty jurisdiction because ‘‘When an aircraft

10

crashes into navigable waters, the dangers to persons

and property are much the same as those arising out

of the sinking of a ship or a collision between two

vessels’ (Id. at 763). He felt that this case required

the Sixth Circuit to accept or reject Weinstein, and

concluded that in his view it ‘‘should adopt the Third

Circuit rule of Weinstein, supra’’ (App. A, infra, p.

25a). Ina separate concurring opinion Circuit Judge

McCree agreed ‘‘as a matter of policy, with much of

what Judge Edwards has written in support of the

view that ‘air ships... are within the maritime juris-

diction when they crash on navigable waters’ ’’ (App.

A, infra, p. 8a). However, he concluded that the

question was ‘‘foreclosed’’ by this Court’s opinions

in The Admiral Peoples, 295 U.S. 649 (1935) and

Minnie v. Port Huron Co., 295 U.S. 647 (1935). He

therefore joined Chief Judge Phillips in affirming the

district court.

REASONS FOR GRANTING THE WRIT

I. The Sixth Circuit's Decision in This Case Is in Direct and

Irreconcilable Conflict With the Third Circuit's Decision

in Weinstein on the Same Matter of Federal Law

As Judge Edwards stated in his dissenting opinion,

‘‘This case presents a single important question: Do

the federal courts have maritime jurisdiction over air-

plane crashes in navigable waters where the cause of Ff

the crash is alleged to be tortious conduct which oc ff

curred on land?’”? (App. A, infra, p. 8a). He also

noted that the Third ‘Circuit ‘‘has previously answered

this question affirmatively”’ in the case of Weinstein

v. Eastern Airlines, Inc., 316 F.2d 758 (3d Cir.), cert.

denied, 375 U.S. 940 (1963), and reaffirmed their

conclusion sitting in banc in the case of Scott v. Eastern

Airlines, Inc., 399 F.2d 14 (3d Cir.), cért. denied, 393

11

U.S. 979 (1968). Both cases arose out of the crash

of a passenger aircraft into the navigable waters of

Boston Harbor shortly after takeoff. In Weinstein

the Third Circuit said:

The critical factor in determining whether a

tort claim comes within the broad statutory grant

of admiralty jurisdictiori is the situs of the tort;

ie., the place where it happened. If the tort oc-

curred on navigable waters, the claim is one that

lies within the jurisdiction of the courts of ad-

miralty ; nothing more is required.

* * *

McGuire [McGuire v. City of New York, 192

F. Supp. 866 (S.D.N.Y. 1961)] to the contrary

notwithstanding, the weight of authority is clearly

to the effect that locality alone determines whether

or not a claim is within the admiralty jurisdiction.

In Atlantic Transport Co. v. Imbrovek, 234 U.S.

52, 34 8.Ct. 733 (1914), the Supreme Court ex-

pressly rejected the contention that the tort must,

in addition to meeting the locality test, have some

connection with a vessel.

* * *

Assuming arguendo that some kind of maritime

nexus in addition to locality is required as a pre-

requisite to admiralty tort jurisdiction, we believe

nonetheless that the cases at bar are within the

admiralty jurisdiction insofar as the tort claims

alleged therein are concerned. At the time the

Constitution was framed and for a century and a

half thereafter, ships of various kinds were the

only means of transportation and commerce on or

across navigable waters. Today, aircraft have

become a major instrument of travel and com-.’

merce over and across these same waters. When

an aircraft crashes into navigable waters, the dan-

gers to persons and property are much the same

as those arising out of the sinking of a ship or a

collision between two vessels. ‘‘There can be noth-

12

ing more maritime than the sea.’’ Pure Oil Co,

v. Snipes, 293 F.2d 60, 65 at n. 6 (5 Cir. 1961),

Concepts of admiralty tort jurisdiction should

not and cannot remain static and unchanging.

316 F.2d at 761, 763 (emphasis added).

’ In the present case both the district court and the

court of appeals answered this same question in the

negative. The district court did not try to distinguish

Weinstein. It simply concluded that it was bound by

the Sixth Circuit’s ‘‘minority position which requires

some maritime nexus,’’ rather than by the Third Cir-

cuit’s rule (App. B, infra, p. 33a). See Chapman v.

City of Grosse Pointe Farms, 385 F.2d 962 (6th Cir.

1967) and Gowdy v. United States, 412 F.2d 525 (6th

Cir.), cert. denied, 396 U.S. 960 (1969) The court

of appeals realized that if it found that the alleged

tort occurred over land there was no need to con-

sider the question of maritime nexus. That realiza-

tion, however, left the court of appeals face to face

with the Weinstein decision. It resolved the dilemma

by ‘‘reconciling’’ the present case with Weinstein in

the following manner:

As we read that decision [Weinstein], the test

for admiralty jurisdiction over torts stated at 316

F.2d at 761 saaiuaae the same result we, have

reached when applied to the facts of the present

case. (App. A, infra, p. 6a, emphasis added).

EJA respectfully submits that the above-quoted

statement is erroneous and cannot withstand analysis;

and that Judge Edwards’ conclusion ‘‘that the facts

of this case require us to accept or reject Weinstein”

is the only correct view of this case (App. A, 7 |

p. lla).

a.

13

KJA’s complaint alleges that its ‘Falcon was totally

destroyed when it crashed and sank in the navigable

waters of Lake Erie off shore from the airport .. .

(R. 5). The district court admitted that ‘‘In ruling

on a motion to dismiss for lack of jurisdiction over

the subject matter, the allegations of the complaint

must be construed most strongly in favor of the plain-

tiff” (App. B, infra, p. 28a). Furthermore, the district

court assumed EJA’s ‘‘position that the damage to

the plane from contact with the birds, fence and truck

was minimal compared to the total destruction of

the aircraft when it ‘crashed and sank in the naviga-

ble waters of Lake Erie’”’ (App. B, infra, p. 31a).

The court of appeals also admitted that EJA’s “‘plane

fell into navigable waters’’ and that ‘‘the aircraft was

alleged to be a total loss as a result of the soaking in

the waters of Lake Erie’’ (App. A, infra, pp. la-2a).

Thus, there has never been any question in this case

about the following two facts: (1) EJA’s plane

crashed into navigable waters, and (2) it was totally

destroyed when it crashed and sank in those navigable

waters. .

The court of appeals reasoned that this case could

be reconciled with Weinstein because the tort in this

case occurred over land ‘when EJA’s Falcon hit the

seagulls and its engines became crippled; while in

Weinstein the tort occurred over navigable water when

the aircraft crashed into Boston Harbor. To reach

such a conclusion one must totally disregard the actual

facts of the Boston Harbor crash—facts which are

chillingly identical to the facts of this crash. The facts

of the Boston Harbor crash are reported in Rapp v.

Eastern Air Lines, Inc., 264 F. Supp. 673 (E.D. Pa.

14

1967)—one of the approximately 150 cases brought in

federal courts in Philadelphia and Boston as a result

of the Boston Harbor tragedy—as follows:

On October 4, 1960, Eastern Air Lines Flight 375

crashed into the waters of Boston Harbor just out-

side Logan Airport in Boston, Massachusetts. The

lant was on a commercial flight from Boston to

hiladelphia. Fifty-nine passengers and the

three crewmen were killed; 10 persons survived.

The airplane was.a Lockheed 188 Electra, a four-

engine turbo-prop aircraft. The 501-D-13 engines

had been designed and built by General Motors.

The flight took off from runway 9 which is |

7,021 feet in length. The taxi out to the runway,

the take-off roll, the lift-off and the climb were

all normal. The aircraft climbed naturally to

about 200 feet, when a burst of flame erupted very

briefly and quickly from number one engine.

After the burst of re the aircraft continued to

climb for 200-300 feet, reaching a maximum of

400-500 feet, when the number one engine came

to a complete stop and the propeller on number

one was seen to rotate slowly. The aircraft then

made a flat left turn and returned to its original

heading parallel to the runway. Thereafter, the

plane made another flat turn, the nose went up

and it began to climb, after which it went into

a steep left bank, with the right wing high. The

crash followed. A total of 47 seconds had elapsed

from the take-off to the time of the disaster.

The plane met a flight of starlings about 6/10ths

of a mile from the beginning of the runway. Esti-

mates of the amount of dead starlings found on the

runway varied from 50 to 100. Five to ten dead

gulls were also found in the same general area. A

sufficient amount of bird material had penetrated

into the air inlet of the plane as to cause the auto-

feathering device to shut off number one engine

or so as to cause a flameout and the crew to shu

15

off number one engine. At any rate, the ingestion

of the birds into the air inlet caused the number

one engine to shut off. (264 F. Supp. at 675;

’ emphasis added)

The facts of the Boston Harbor crash, as reported

in Rapp, were presented to both the district court and

the court of appeals in this case by EJA. In reply,

the City could only argue that these facts should be

disregarded by the court of appeals because they did

not appear in the Weinstein decision. Apparently,

Judge McCree found that to be a persuasive argument

for he states in his concurring opinion, ‘‘Neither in

that court’s opinion [Weinstein], nor in the opinion

of the District Court whose judgment it was review-

ing, 203 F. Supp. 430 (E.D. Pa. 1962), is there a

finding where the impact of the tortious conduct was

first evidenced—over land or over sea’’ (App. A, infra,

p. 7a). Judge Edwards was not so persuaded be-

cause he found a clear and irreconcilable conflict be-

tween the facts in this case and the holding in Wein-

stem. EJA submits that this is the only correct view

and the only way courts should approach the practical

problems of solving questions brought before them.

Judges need not restrict their vision to the four

corners of one reported decision while refraining from

reading another. It seems preposterous to argue, as

the City did here, that courts should totally disregard

the reported facts of the Boston Harbor crash when

deciding this case. :

The simple truth is, in Weinstein the Third Cir-

cuit was faced with the question of whether a case

involving the crash of an aircraft into navigable ter-

ritorial waters was cognizable in admiralty. The air-

plane had crashed shortly after takeoff because it

16

became ‘“‘crippled’’ over land when birds were ingested

into its jet-powered engines. It ‘‘fortuitously’’ crashed

in navigable waters nearby. Nevertheless, the Third

Circuit held that such a case was within the jurisdic-

tion of admiralty. In view of the amazing similarity

between the facts in this case and the facts of the

Boston Harbor crash, there is no escape from the

conclusion that the Sixth Circuit’s decision here is in

direct and irreconcilable conflict with the Third Cir-

cuit’s decision in Weinstein.

One of the prime purposes of the certiorari juris-

diction of this Court is to bring about uniformity of

decisions on the same matter of federal law among the

federal courts of appeal, and this Court has often

granted review to resolve irreconcilable conflicts be-

tween decisions of the courts of appeal. See, eg,

Avco Corp. v. Aero Lodge No. 735 I.A.M. & A.W., 3%

U.S. 557 (1968), and Northeastern Pennsylvania Na-

tional Bank & Trust Co. v. United States, 387 U.S. 213

(1967). EJA submits that such a conflict exists here

and that certiorari should be granted in this case to

bring about uniformity in the decisions of the courts

of appeal on this matter of federal law.

Il. The Question of Federal Law Involved Here Is An Im-

portant One Which Has Not Been, But Should Be, Settled

by This Court

In his dissenting opinion in this case J udge Edwards

states:

... There are legal and policy questions of great

portent for the future which this case requires us

to answer. I believe that the facts of this case

require us to accept or reject Weinstein, supra,

and thus, to decide for this Circuit whether air

ships, which are increasingly displacing water-

17

borne ships in maritime commerce, are within the

maritime jurisdiction when they crash on navigable

waters (App. A, infra, p. 11a).

To explain this statement Judge Edwards reviews in

his opinion the historical scope of admiralty jurisdic-

tion, the statutes which indicate that Congress has long

“recognized maritime jurisdiction over aircraft flying

over, resting upon, or crashing into navigable waters’’

(App. A, infra, p. 12a), this Court’s cases concerning

the scope of maritime jurisdiction, the admiralty cases

in the Sixth Circuit, the Weinstein case and the facts

of this case. EJA submits that Judge Edwards’ dis-

senting opinion is a thorough, scholarly, well-reasoned

and correct statement of the law in this area and adopts

it without reservation in connection with this petition.

For brevity, EJ A will not repeat and quote extensively

from Judge Edwards’ dissent in this petition, but will

rely instead upon this Court’s careful reading of it in

the Appendix hereto. A few additional matters con-

cerning the importance of the question of federal law

here involved should be noted.

Aircraft are fast replacing ships as the primary

means of travel across navigable waters. The 1969

edition of the Federal Aviation Administration’s Sta-

tistical Handbook of Aviation states that during cal-

endar year 1968 approximately 140.5 million passen-

gers enplaned on this country’s certified air carrier

fleet (p. 6). While all of these passengers did not

travel over navigable waters, some 5.5 million of them

traveled by air to Europe alone (Id. p. 91). Further-

more, it is a matter of common knowledge that most

airports serving metropolitan areas on the coasts and

the Great Lakes are located near navigable water. It

is also a known fact that the majority of aircraft acci-

18

dents occur during landings and takeoffs. Finally, it

is a matter of common knowledge to the judiciary that

a high percentage of aircraft accidents result in litiga-

tion in the courts. The upshot of all this is that

there have been, and will unquestionably continue to

be, a large number of cases involving aircraft crashes

into navigable water where the cause of the crash is

alleged to be tortious conduct which occurred on land.

See, ¢.g., Harris v. United Air Lines, Inc., 275 F. Supp.

431 (S.D. Iowa 1967) and Thomas v. United Air Lines,

Inc., 24 N.Y. 2d 714, 249 N.E. 2d 755 (1969), cases aris-

ing out of the crash of a Boeing 727 jet which ‘‘for-

tuitously’’ crashed into the navigable waters of Lake

Michigan within the territorial boundaries of the State

of Illinois; Wilson v. Transocean Airlines, 121 F. Supp.

85 (N.D. Calif. 1954), a case involving a crash east of

Wake Island; Noel v. Airponents, Inc., 169 F. Supp.

348 (D.N.J. 1958), where tortious acts committed on

land caused an airliner to explode and burn in mid-air

off the coast of New Jersey and the aircraft went out

of control and crashed into the sea; and Hornsby v.

The Fishmeal Co., 285 F. Supp. 990 (W.D. La. 1968),

rev’d on other grounds, 431 F.2d 865 (5th Cir. 1970),

where two light planes collided in mid-air over the Gulf

of Mexico within one marine league of the Louisiana

shore.

In all such cases which have arisen in the past, and

in all similar cases to arise in the future, the threshold

question must be—is the tort involved a maritime one?

It is important to note that this quesion must be an-

swered whether jurisdiction is based upon admiralty

or not. Thus, if the tort is a maritime one the federal

general maritime law is the substantive law to be ap-

plied rather than state law, whetherthe case is brought

19

in federal court on the admiralty side, in federal court

on the ‘‘law side’’ on the basis of diversity (or against

the government under the Federal Tort Claims Act),

or in a state court under the “savings clause” (28

U.S.C. § 1333(1)). Hess v. United States, 361 U.S.

314 (1960). :

Until the Sixth Circuit’s decision in this case, every

case involving the crash of an aircraft in navigable

waters had been held to be within admiralty jurisdic-

tion,’ even where the cause of the crash was alleged

to be tortious conduct which occurred on land. Those

cases coming after Weinstein cited and followed the

Third Circuit’s decision in that case.’ This was So

despite criticism leveled at Weinstein by the American

Law Institute in its Srupy or THE Division or JurIs-

' DicTiON BETWEEN StaTE anpD FepEraL Courts (1969).*

Actually, the ALI’s criticism of Weinstein stemmed

from the problem involved in “borrowing” a_state’s

substantive law in those death cases where the air-

craft crashed in navigable territorial waters and the

Death on the High Stas Act? (DOHSA) was inappli-

cable. See, e.g., Scott v. Eastern Airlines, Inc., 399

F.2d14 (3d°Cir.), cert. denied, 393 U.S. 979 (1968).

Those problems have now been laid to rest by this

Court’s decision in Moragne v. States Marine Lines,

Inc., 398 U.S. 375 (1970), which recognized a remedy

for wrongful death under the general maritime law.

Se

* See, e.g., the cases cited in Judge Edwards’ dissenting opinion

at p. 26a (App. A, infra).

"See, ¢.g., the cases cited in Judge Edwards’ dissenting opinion

at p. 9a, n.1 (App. A, infra).

* See pp. 231-234 of that study.

°46 U.S.C. § 761.

i ninnnenesiiln

/

20

It is clear that since Moragne the courts (except for

the Sixth Circuit’s decision in this case) have contin-

ued to find that cases involving aircraft crashes in

navigable water are within the jurisdiction of ad-

miralty. See, ¢.g., Hornsby v. The Fishmeal Co., 431

F.2d 865 (5th Cir. 1970); Dugas v. National Aircraft

Corp., 438 F.2d 1386 (3d Cir. 1971) (crash of private

airplane at sea); Leroy v. United Air Lines, Inc., 11

Av. Cas. 117,919 (Til. Cir. Ct. 1970) (crash of a Boeing

727 in Santa Monica Bay shortly after takeoff from

Los Angeles International Airport); and Kropp vy.

Douglas Aircraft Co., 329 F. Supp. 447 (E.D.N.Y.

1971) (action against manufacturer of Navy jet bomber

to recover for death of crewman who fell from the air-

craft over the high seas).

Defining the scope of admiralty jurisdiction to in-

clude aircraft crashes in navigable waters is also

important to the efficient judicial administration of

such cases. At first blush the ircutt' hold-

ing in this case might seem attractive to those holding

a restrictive view of the jurisdiction of federal courts.

Thus, in this very case one might conclude that the

state court in Cleveland would be the most appropriate

forum to deal with this case rather than the federal

‘eourt there. Such an approach completely ignores the

actual realities involved in aviation accident litiga-

tion. For example, in this case the Sixth Circuit has

not reduced the work load of the district court in Cleve-

land; it has simply multiplied litigation by causing

both the district court and the state court in that city

to litigate the same issues of fact. That is, the United

States (respondent Dicken’s employer) could be sued

here only in federal court.” Thus, if the Sixth Cir-

10 98 U.S.C. § 1346(b).

UU

21 ’

cuit’s opinion stands in this case EJ A will not be able

to have a joint trial against both tortfeasors in federal

court, but will be forced to litigate its Tort Claims

action against the government in federal court and

conduct an identical law suit against the City in state

court ‘‘across the street.’’

This phenomenon is a daily problem in aviation ac-

cident litigation because of the government’s pervasive

involvement in all aspects of aviation—such as air

traffic control, regulation of air carriers and aircraft

manufacturers, licensing of pilots, ete. A federal forum

in aviation accident cases involving major accidents

allows the litigants possible acoess to the Panel on

Complex and Multidistrict Litigation (and transfer

for discovery) under 28 U.S.C. § 1407; transfer for

discovery and trial under 28 U.S.C. § 1404(a); and

the ability to join the United States as a defendant

or a third-party defendant. The application of fed-

eral general maritime law in admiralty cases insures

uniformity of decisions and uniformity of results in

multiparty cases, and eliminates complex choice of

law problems. These everyday aspects of litigation

do not escape the practitioner’s notice in this field,

and they undoubtedly account for the large number

of aviation accident cases being litigated in federal

courts. The fact is, the Sixth Circuit’s opinion here

will not relieve the workload of the federal courts ;

it will simply multiply litigation and increase the

workload of the entire court system—state and federal.

EJA submits that the matter of federal law involved

in this case is an extremely important one, not only

for the petitioners here, but for many, many liti-

_

“ There is no diversity between EJA and the City.

22

gants in aviation accident cases in years to come. As

noted by Judge ‘Edwards, ‘‘there is no precedent

squarely in point concerning airplane crashes in navi-

gable waters of a state ... from the United States

Supreme Court” (App. A, infra, p. 26a). For these

reasons this Court should grant certiorari to resolve

the conflict between the Sixth Circuit’s decision in this

ease and the Third Circuit’s decision in Weinstein.

III. The Sixth Circuit's Ruling on This Important Matter of

Federal Law Is Such a Departure From All Prior Author-

ity As To Call for the Exercise of This Court's Power of

Supervision

In addition to Wemstein, supra, and this case, there

are many, many lower court cases—both state and fed-

eral—involving aircraft crashes into navigable waters.

In every such case that can be found the holding has

always been the same: aircraft crashes in navigable

waters are within the jurisdiction of admiralty. See,

e.g., Hornsby v. Fishmeal Co., 285 F. Supp. 990 (W.D.

La. 1968), rev’d on other grounds, 431 F.2d 865 (5th

Cir. 1970) ; Rapp v. Eastern Airlines, Inc., 264 F. Supp.

673 (E.D. Pa. 1967), aff’d sub nom. Scott v. Eastern

Airlines, Inc., 399 F.2d 14 (3d Cir.), cert. denied, 393

U.S. 979 (1968); Horton v. J & J Aircraft, Inc., 25%

F. Supp. 121 (8.D. Fla. 1966) ; Montgomery v. Good-

_ year Tire & Rubber Co., 231 F. Supp. 447 (8.D.N.Y.

1964), aff’d, 392 F.2d 777 (2d Cir. 1968); Harris v.

United Airlines, 275 F. Supp. 431 (8.D. Iowa 1967);

Stiles v. National Airlines, Inc., 161 F. Supp. 125

(E.D. La. 1958), aff’d, 268 F.2d 400 (5th Cir.), cert.

denied, 361 U.S. 885 (1959) ; Noel v. Airponents, Inc.,

169 F. Supp. 348 (D.N.J. 1958); Bergeron v. Aero

Associates, Inc., 213 F. Supp. 936 (E.D. La. 1963);

Wilson v. Transocean Airlines, 121 F. Supp. 85 (N.D.

23

Oal. 1954) ; Krause v. Sud-Aviation, Société Nationale

de Constr. Aero., 301 F. Supp. 513 (S.D.N.Y. 1968),

aff’d, 413 F.2d 428 (2d Cir. 1969) ; King v. Pan Ameri-

can,W orld Airways, 166 F. Supp. 136 (N.D. Cal. 1958),

aff’d, 270 F.2d 355 (9th Cir. 1959), cert. denied, 362

U.S. 928 (1960); Fernandez v. Linea. Aeropostal

Venezolana, 156 F. Supp. 94 (S.D.N.Y. 1957); Higa

v. Transocean Airlines, 124 F. Supp. 13 (D.C. Hawaii

1954) ; Lacey v. L. W. Wiggins Airways, Inc., 95 F.

Supp. 916 (D. Mass. 1951) ; Dugas v. National Aircraft

Corp., 438 F.2d 1386 (3d Cir. 1971) ; Leroy v. United

Air Iines, Inc., 11 Av. Cas. 117,919 (Ill. Cir. Ct. 1970) ;

Thomas v. United Air Lines, Inc., 24 N.Y.2d 714, 249

N.E.2d 755 (1969) ; accord, Kropp v. Douglas Aircraft

Co., 319 F. Supp. 447 (E.D.N.Y. 1971).

The above list is not meant to be complete. It is

meant to illustrate that the Sixth Circuit’s decision in

this case stands alone against a tremendous volume of

authority holding to the contrary. The only case which

can be found that reaches a conclusion similar to the

Sixth Circuit’s decision here is the case of Weinstein

v. Hastern Airlines, Inc., 203 F. Supp. 430 (E.D. Pa.

1962), the district court case which the Third Circuit

reversed in Weinstein v. Eastern Airlines, Inc., 316

F.2d 758 (3d Cir.), cert. denied, 375 U.S. 940 (1963).

The district court in Weinstein concluded that “‘. . . ad-

miralty jurisdiction does not encompass tortious causes

of action arising from crashes of airplanes into the

navigable waters of a state... .” 203 F. Supp. at 431.

In rejecting that narrow view of the scope of admiralty

jurisdiction the Third Circuit said:

At the time the Constitution was framed and for a

century and a half thereafter, ships of various

kinds were the only means of transportation and

24

commerce on or across navigable waters. Today

aircraft have become a major instrument of travel

and commerce over and across these same waters,

- When an aircraft crashes into navigable waters,

the dangers to persons and | ringer’ are much the

same as those arising out of the sinking of a ship

or a collision between two vessels.

Concepts of admiralty tort jurisdiction should

not and cannot remain static and unchanging. 316

F.2d at 763.

The Third Circuit’s ruling in: Wemstein has been

cited and followed many, many times since it was pro-

nounced in 1963. Despite this volume of authority to

the contrary, the Sixth Circuit in its opinion in this

case did not discuss a single case involving the crash

of an aircraft into navigable waters, with the exception

of Weinstein. Instead, it found that this case was

controlled by three opinions from this Court; two

workmen’s compensation cases dating back to 1928”

and 1935,” and a 1935 case involving injury to a ship’s

passenger.* The Sixth Circuit used these three cases

to reach its conclusion as to the locality where the tort

in this case occurred.

EJA will not belabor this Court with a discussion-of

the merits of this kind of approach to the solution of

an important question of federal law—whether the

scope of admiralty jurisdiction encompasses cases in-

volving aircraft crashes into navigable waters. Suf-

fice it to say, as Judge Edwards points out in his dis-

sent, ‘‘I make no suggestion that there is a simple con-

12 Smith & Son v. Taylor, 276 U.S. 179 (1928).

18 Minnie v. Port Huron Co., 295 U.S. 647 (1935).

1% The Admiral Peoples, 295 U.S. 649 (1935).

25

sistency to be found in the reasoning of all these cases

(Smith & Son, supra; Minnie, supra; and The Ad-

miral Peoples, supra]. Harsh facts frequently ap-

pear to have affected results’ (App. A, infra, p. 15a).

In Thomson v. Chesapeake Yacht Club, Inc., 255 F.

Supp. 555 (D. Md. 1965), Chief Judge Thomsen noted

a similar difficulty in trying to fit every case into a neat

pattern. He said:

It is difficult, if-not impossible, to reconcile the

opinions in such cases as... Wiper [Wiper v.

eat Lakes Engineering Works, 340 F.2d 727

(6th Cir. 1955)] with the opinions in the .. . air-

craft cases.

* * *

The aircraft cases present special problems. Al- .

though the negligence may have occurred on land,

where there was negligent maintenance, the impact

(effect) of the negligence onthe passengers did

not occur until something went wrong during the

flight and the plane started to fall. Something may

have started to g° wrong over the land before the

plane reached the sea, but that is usually impos-

sible to prove one way or the other in aircraft

cases, and the decisions adopt a practical approach.

(255 F'. Supp. 557, 558; emphasis added.)

EJA submits that the court of appeals here did not

adopt a practical approach, and that by mechanically

applying certain language from old workmen’s com-

pensation cases to reach a conclusion in a case involv-

ing the crash of an aircraft into navigable waters, the

Sixth Circuit has fashioned a totally unworkable rule

for future aircraft cases. The Sixth Circuit has de-

cided that the locality of the tort in an aviation case

is not where the aircraft crashes, but where the air-

craft first becomes ‘‘crippled.’’ Apart from the diffi-

26

culties of locating such a point, it can also be seen that

the rule may apply only to the aircraft, rather than to

the people inside, who may not become injured in any

way until the aircraft crashes. In this very case, for

example, if EJA’s crew had been killed or injured

their death or personal injury cases would clearly have

been cognizable in admiralty. See Moragne v. States

Marine Lines, Inc., supra. Thus, the Sixth Circuit’s

rule here means that state law will apply to the action

brought to recover damages for loss of the aircraft,

and federal maritime law will apply to the death and

injury claims brought by the passengers and crew or

their beneficiaries. This could also result in the need

for simultaneous multiple litigation in state and fed-

eral courts. The result is confusion, unnecessary com-

plexity and unreality. In this case, for example, it

makes no sense to say that EJA’s claim for the total

destruction of its aircraft occurred when the plane

first struck the birds, rather than when it crashed and

sank in the navigable waters of Lake Erie.

In short, the Sixth Circuit’s opinion in this case is

clearly erroneous, it is in direct conflict with the Third

Circuit’s rule in Weinstein, and contrary to every case

that can be found involving aircraft crashes into

navigable waters. There is no possibility that this erro-

neous decision will be rectified by subsequent litiga-

tion. Therefore, prompt action by this Court is re-

quired for its reversal. While it is true that this Court

does not sit solely for the purpose of corrécting errors

made by courts of appeal, where there is a conflict

among the decisions of the courts of appeal on an im-

portant matter of federal law—such as the scope of ad-

miralty jurisdiction—and the decision in question ‘

clearly a questionable one, thi Court has granted cer-

}

{!

27

tiorari. See, eg, Perma Life Mufflers, Inc. v. Interna-

tional Parts Corp., 392 U.S. 134 (1968) ;: Williams v.

Lee, 358 U.S. 217 (1958).

EJA submits that the Sixth Circuit’s ruling in this

ease is such a departure from all the authority holding

that aircraft crashes in navigable waters are within

admiralty jurisdiction as to call for the exercise of this

Court’s supervision, and that certiorari should there-

fore be granted in this case.

CONCLUSION

For the foregoing reasons, this petition for a writ

of certiorari should be granted.

Respectfully submitted,

Puitr D. Bostwick

910 17th Street, N. W.

Washington, D. C. 20006

Counsel for Petitioners

November 19, 1971