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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 249

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0080%3A02. Public record. Not legal advice.