Appendix — Executive Jet Aviation, Inc. v. Cleveland

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 20706

Executive Jet Aviation, Inc., et au., Plaintiffs-A ppellants,

v.

Crry or CLEVELAND, On10, ET aL., Defendants-A ppellees.

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Appgat from the United States District Court for the

Northern District of Ohio, Eastern Division.

Decided and Filed August 24, 1971.

Before Puriurps, Chief Judge, and Epwarps and MoCrez,

Cireuit Judges.

Pumps, Chief Judge. This appeal grows out of one-

plane aircraft accident. The suit was filed in admiralty.

The sole issue on appeal is whether the action is within the

admiralty jurisdiction of the District Court. We hold that

the alleged tort occurred on land, even though the plane fell

into navigable waters shortly after take off from the airport,

and that no right of action is cognizable in admiralty. We

affirm the judgment of District Judge Girard E. Kalbfleisch,

who dismissed the complaint.

The facts, as set forth in the complaint and supplemented

by interrogatories and depositions, are as follows:

On July 28, 1968, a Falcon Mystere jet aircraft, owned by

appellant Executive Jet Sales, Inc., and operated by appel-

lant Executive Jet Aviation, Inc., struck hundreds of sea

gulls seconds after take off from Burke Lakefront Airport

in Cleveland, Ohio. The sea gulls were flushed from the

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airport runway by the aircraft as it became airborne and

collided with the plane over the airport runway. The plane

immediately suffered a substantial loss of power and began

to descend while still over land. It struck the airport

perimeter fence, then hit a pick-up truck, and finally settled

a short distance off shore into the navigable waters of

Lake Erie.

No persons were killed or injured, but the aircraft was

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

waters of Lake Erie.

The appellees are the City of Cleveland, owner of the air-

port; Phillip A. Schwenz, the airport manager on the date

in question; and Howard E. Dicken, the air traffic con-

troller on duty at the time in question.

The complaint alleged that the.loss of the aircraft was a

result of the appellees’ negligence in clearing the aircraft

for take off, failing to warn appellants of the huge flock

of sea gulls on the runway, and failing to remove the sea

gulls from the runway.

The Supreme Court said in The Admiral Peoples, 295

U.S. 649, 651:

‘‘This is one of the border cases involving the close

distinctions which from time to time are necessary in

applying the principles governing the admiralty juris-

diction. That jurisdiction in cases of tort depends

upon the locality of the injury. It does not extend to

injuries caused . .. to persons or property on the land.

Where the cause of action arises upon the land, the

state law is applicable. The Plymouth, 3 Wall. 20,

33; Johnson v. Chicago & Pacific Elevator Co., 119 US.

388, 397; Cleveland Terminal\ dé V. R. Co. v. ‘Cleveland

Steamship Co., 208 U.S. 316, 819; Atlantic Transport

Co. v. Imbrovek, 234 U.S. 52, 59; State Industrial

| Comes’ v. Nordenholt ai 9 U.S. 263, 272; Smith

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é Son v. Taylor, 276 U.S. 179, 181; compare Vancouver

S. 8. Co. v. Rice, 288 U.S. 445, 448.”

The dispositive issue is whether the cause of action for the

alleged tort arose on land or on navigable water.

The test to determine whether a cause of action in tort

arose on land or on navigable water was applied by

decisions of the Supreme Court in The Admiral Peoples,

supra, and Minnie v. Port Huron Co., 295 U.S. 647. We

consider these opinions, written by Chief Justice Hughes

for a unanimous Court, to control the present case.

In The Admiral Peoples, supra, a lady passenger fell

from the ship’s gangplank onto the wharf where she was

injured.' The passenger alleged that the fall was caused

by negligent placement or construction of the ship’s gang-

plank. The Supreme Court said:

“By reason of that neglect, as the libel alleges, she

fell from the plank and was violently thrown forward

upon the dock. Neither the short distance that she

fell nor the fact that-hea{g) on the dock and not in

the water, alters the nature of the cause of action

which arose from the breach of duty owing to her

while she was still on the ship and using its facility

for disembarking.

‘‘This view is supported by the weight of authority

in the federal courts. In The Strabo, 90 Fed. 110,

98 Fed. 998, libelant, who was working on a vessel

lying at a dock, attempted to leave the vessel by means

of a ladder which, by reason of the master’s negligence,

was not secured properly to the ship’s rail and in

consequence the ladder fell and the libelant was thrown

to the dock and injured. The District Court, sustaining

the admiralty — asked these pertinent ques-

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A wharf is an extension of land and not within the jurisdiction

sdbaben Rodrique v. Aetna Casualty Co., 395 U.S. 352, 360.

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tions (90 Fed. p. 113): ‘If a passenger, standing at

the gangway, for the purpose of alighting, were dis-

turbed by some negligent act of the master, would the

jurisdiction of this court depend upon the fact whether

he fell on the dock, and remained there, or whether he

was precipitated upon the dock in the first instance,

or finally landed there after first falling on some part

of the ship? If a seaman, by the master’s neglect,

should fall overboard, would this court entertain

jurisdiction if the,seaman fell in the water, and decline

jurisdiction if he fell on the dock or other land? The

inception of a clause of action is not usually defined

by such a rule.’ The Circuit Court of Appeals of the

Second Circuit, affirming the decision of the District

Court (98 Fed. p. 1000), ... said: ‘The cause of

action originated and the injury had commenced on

the ship, the consummation somewhere being inevitable.

It is not of vital importance to the admiralty juris-

diction whether the injury culminated on the string-

piece of the wharf or in the water.’ See, also, The

Atma, 297 Fed. 673, 675, 676; The Brand, 29 F. (2d)

792.’’ Id. at 652-53.

The Court held in The Admiral Peoples that the passenger’s

cause of action arose on navigable water.

The Supreme Court reached the same conclusion in

Minnie v. Port Huron Co., supra, 647-49:

‘Petitioner, a longshoreman, was injured at Port

Huron while unloading a vessel lying in navigable

water. He was about his work on the deck of the

vessel when he was struck by a swinging hoist, lifting

cargo from a hatch, and was precipitated upon the

wharf. He sought compensation under the compensa-

tion act of the State of Michigan. His employer, the

ta Huron oma Company, contended that the

ecident occurred upon navigable water and that the

tate law did not apply. The defense was overruled

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by the state commission in the view that the injury

must have been occasioned by petitioner’s fall upon

the wharf and hence that the claim was. within the

state statute, although the injury would not have been

received except for the force applied to his person

while on the vessel. The Supreme Court of the State

vacated the commission’s award, holding that the

federal law controlled. 269 Mich; 295; 257 N. W. 831.

Because of an asserted conflict with decisions of this

Court, a writ of certiorari was granted.

“*, .. In the instant case, the injury was due to the

blow which petitioner received from the swinging

crane. It was that blow received on the vessel in

navigable water which gave rise to the cause of action,

and the maritime character of that cause of action is

not altered by the fact that the petitioner was thrown

from the vessel to the land.

‘We had the converse case before us in Smith & Son

v. Taylor, 276 U.S. 179. There a longshoreman,

employed in the unloading of a vessel at a dock, was

standing upon a stage that rested solely upon the

wharf and projected a few feet over the water to

or near the vessel. He was struck by a sling loaded

with cargo, which was being lowered over the vessel’s

side and was knocked into the water, where sometime

later he was found dead. It was urged that the suit

was solely for the death which occurred in the water

and hence that the case was exclusively within the

admiralty jurisdiction. We held the argument to be

untenable. We said: ‘The blow by the sling was what

gave rise to the cause of action. It was given and

took effect while deceased was upon the land. It was

the sole, immediate and proximate cause of his death.

The G. R. Booth, 171 US. 450, 460. The substance

and consummation of the occurrence which gave rise

to the cause of action took place on land.’ Id., p. 182.’?

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In the present case the aircraft was precipitated into

Lake Erie by the allegedly negligent acts of the appellees

on land. The aircraft collided with the sea gulls and began

to fall while over land. The fence and the truck were

struck on land. Under the authorities cited above it is of

| no consequence that the major amount of damage occurred

after the aircraft sank in navigable water. The alleged

negligence of appellees ‘‘was given and took effect’’ on

land. Smith & Son v. Taylor, 276 U.S. 179, 182. The

cause of action arose on land and not on navigable water.

Appellants rely heavily on Weinstein v. Eastern Airlines,

Inc., 316 F.2d 758 (3rd Cir.). As we read that decision,

the test for admiralty jurisdiction over torts stated at 316

F.2d at 761 produces the same result we have reached when

applied to the facts of the present case. The Court said:

‘‘The critical factor in determining whether a tort

claim comes within the broad statutory grant of

admiralty jurisdiction is the situs of the tort; i.e., the

place where it happened.’’ Id. at 761.

Since we agree with the District Court that the alleged

tort in this case occurred on land before the aircraft reached

Lake Erie, and since admiralty jurisdiction does not extend

to torts committed on land, it is not necessary to consider

the question of maritime relationship or nexus discussed

by this court in Gowdy v. U. S., 412 F.2d 525, 527-29

(6th Cir.), cert. denied, 396 U.S. 960, and Chapman v. City

of Gross Pointe Farms, 385 F.2d 962, 966 (6th Cir.). See

Nacirema v. Johnson, 396 U.S. 212, 215, n. 7; Atlantic

Transport Co. v. Imbrovek, 234 U.S. 52, 58-60; Wiper v.

Great Lakes Engineering Works, 340 F.2d 727, 729-31

(6th Cir.).

Affirmed.

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McCreg, Circuit Judge (concurring in the opinion of

Judge Phillips). I wish to add a few words of- con-

currence ‘to Chief Judge Phillips’ opinion. Our court

adopted the ‘‘locality-plus’’ test of maritime jurisdiction

in Chapman v. City of Grosse Pointe Farms, 385 F.2d 962

(6th Cir. 1967), and Wiper v. Great Lakes Engineering

Works, 340 F.2d 727 (6th Cir. 1965), cert. denied, 382 U.S.

812 (1965), but I agree with Judge Phillips that the

difference between that test and the ‘‘locality-alone’’ test

is not involved in the decision of this case. The crucial

question here—on which I read Judge Phillips and Judgé

Edwards, to take opposite views—is where did the tort

occur ?

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That question I believe is foreclosed by the cases cited

by Judge Phillips, at 4-5 (draft opinion), and Judge

Edwards, at 9-10 (draft opinion), and by Wiper. The rule,

as I understand it, is that the situs of the tort is where

the negligence becomes operative, not where the damages,

or the major portion of them, are sustained. Applied

here, this rule requires affirmance of Judge Kalbfleisch’s

careful opinion. The plane hit the gulls over land; and

there, under our rule, is where the tort occurred. Maritime

jurisdiction is absent, and it becomes unnecessary to decide

whether there is (or must be) a ‘‘plus’’, because there is no

maritime ‘‘locality’’.

I do not read the Third Circuit’s opinion in Weinstein v.

Eastern Airlines, Inc., 316 F.2d 758 (3d Cir. 1963), as

necessarily contradicting this view. Neither in that court’s

opinion, nor in the opinion of the District Court whose

judgment it was reviewing, 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. How-

ever, it is clear that the plane was airborne, and, at the

| Posture of review required by the motion to dismiss, the'

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inference most favorable to plaintiff gwould be that the

negligence became operative over water. Nevertheless, that

court held‘ that the situs of the tort was where the injury

was sustained, 316 F.2d at 765, and on the facts presented,

it was clear that that was within navigable waters. We have

a different rule, and I believe we could not reach that

result without overruling Wiper, not to mention the

Supreme Court cases cited by Judge Phillips.

In Weimstein, the Third Circuit stated in dictum that

airplanes, at least over navigable waters, were to be con-

sidered prima facie maritime. 316 F.2d at 7. I agree, 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 jurisdiction when they crash on

navigable waters.’’ At 5 (draft opinion). But I have not

seen cited a statute indicating that Congress has so ex-

tended: maritime jurisdiction. Arguably it might be able

to do so, and should, but it is the job of Congress, and

not of the courts, to broaden maritime jurisdiction to

cover the facts of this case. Under established law, we

are faced only with a narrower question, which can be

answered fairly readily unless we wish to depart from

the precedents which normally bind us.

Epwarps, Circuit Judge, dissenting. 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 conduct which occurred

on land?

The Third Circuit has previously answered this question

affirmatively in the context of death cases arising out of

the crash of a passenger aircraft into Boston Harbor

shortly after takeoff where the causes of the crash were

alleged; as here, to have been land-based. Weinstein v.

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

$75 U.S. 940 (1963).

In our instant case, the facts properly before the court

on motion for summary judgment showed that an aircraft

taking off from a lakefront airport in Cleveland, Ohio,

struck a flight of sea gulls, ingesting sufficient of them

into its jet system to cause loss of power while it was still

over the runway and that the plane subsequently grazed

a truck and the airport perimeter fence before being

destroyed by crashing into and sinking in the navigable

waters of Lake Erie two-fifths of a mile from shore.

Appellants allege that the crash was caused by failure of

defendants to warn the pilot of the aircraft of the presence

of ‘‘a sea of birds’’ on the runway, which fact was known

to defendants or their agents but not to the pilot because

of the topography of the runway.

The crew of the aircraft survived and the pilots by

deposition provided the District Court with this vivid and

undisputed summary of the crash.

“After clearance to take-off was received the pilot

in the left seat executed the take-off and rotated at

approximately 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 distinguish

the bird line prior to rotation and in his estimation

could not abort the take-off. On rotating a sea of

1 Weinstein has subsequently been reaffirmed by the Third Cir-

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

denied, 393 U.S. 979 (1968), and has been cited and followed by

a number of District Courts: Hornsby v. Fiskmeal Co., 285 F.Supp.

990, 993 (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 by Scott, supra) ; Horton v. J & J Aircraft,

Ino., 257 F.Supp. 120 (S.D.Fla. 1966) ; Montgomery v. Goodyear

Tire & Rubber Co., 231 F.Supp. 447, 453 (S.D.N.Y. 1964), aff’d,

892 F.2d 777 (2d Cir. 1968); Harris v. United Airlines, 275

F.Supp. 431 (S.D.Iowa 1967).

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birds on the runway became visible. Approaching the

birds at approximately 75 feet caused them to flush

d fly intémthe aircraft * * *. Bird impact sub-

stantially 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

temperature indicated above 850 degrees on both

engines and the RPM dropped rapidly below 70%. The

aircraft flew in a semi-Stalled attitude stall horn blow-

ing until contacting the water. The aircraft struck

the top of a pick-up truck and a portion 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 100 feet in altitude.’’

In a well-reasoned opinion which sought earnestly to

follow the logic of this court’s previous opinions dealing

with maritime jurisdiction (in cases where the facts differed

greatly from the present ones), the District Judge granted

defendant-appellees’ motions for summary judgment. Rely-

ing primarily upon this Court’s opinions in Chapman v.

City of Grosse Pointe Farms, 385 F.2d 962 (6th Cir. 1967),

and Wiper v. Great Lakes Engineering Works, 340 F.2d

727 (6th Cir.), cert. denied, 382 U.S. 812 (1965), the District

Judge reasoned:

‘¢(T]n this case the airport and the runway were

upon land and the alleged negligence which caused

the plane to crash occurred upon land. Further, the

plane became disabled over land and came into contact

with a fence and a truck before ever crossing the

shoreline. It is this Court’s opinion that the eventual

crash of the plane into Lake Erie, and its destruction

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by water, are at best fortuitous and are significant

‘not to determine the maritime or non-maritime nature

of this action but only as it relates to damages.’

(Wiper, supra.)

“It is the opinion of the Court, therefore, that the

tort in this case did not occur upon navigable waters

and the action is not cognizable in admiralty. In reach-

ing this conclusion, the Court is well aware of the

many decisions holding that a plane crash into

navigable waters is within admiralty jurisdiction.

However, as the analysis above reveals, drawing from

those cases a general rule that all plane crashes into

navigable waters are cognizable in admiralty and

applying such a rule here would belie the principles

which governed locality of the tort before the problems

peculiar to air commerce arose. Where the facts are

not known, a court might righly assume that the

alleged negligence became operative and effective upon

the aircraft over navigable waters; but here the

alleged negligence had crippled the plane well before

it reached the water. Assuming otherwise would

require that the Court ignore the very facts upon

which it must rely in testing jurisdiction. Without

distinguishing each of the cases involving an airplane

crash into navigable waters, it is sufficient to state that

the undisputed facts in this case demonstrate that the

tort occurred over the land.’’

While I respect the logic and industry with which the

District Judge approached his task, I would reach a

different result. 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-borne ships in maritime commerce, are

within the maritime jurisdiction when they crash on

_ Ravigable waters.

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ADMIRALTY JURISDICTION IN THE Untrep States

Article ITI, § 2 of the Constitution of the United States

provides:

‘‘The judicial Power shall extend . . . to all Cases of

admiralty and maritime Jurisdiction; .. .’’

By statute Congress has vested ‘‘original jurisdiction of

... [a]ny civil case of admiralty or maritime jurisdiction

..? in the district courts. 28 U.S.C. § 1333 (1964).

The United States Supreme Court decided over a hundred

years ago that admiralty jurisdiction extended to all

navigable waters (as opposed to the original tidewater or

high seas concepts). This, of course, included the Great

Lakes into one of which (Lake Erie) the plaintiffs’ plane

crashed. The Propeller, Genesee Chief, et al., 53 U.S. (12

How.) 443 (1851).

CoNGRESSIONAL RECOGNITION OF ADMIRALTY

JURISDICTION OvEeR AIRCRAFT

In various ways Congress has recognized maritime juris-

diction over aircraft flying over, resting upon, or crashing

into navigable waters.

(a) In 1953 Congress adopted a statute which employed

maritime jurisdiction to make a variety of federal criminal

laws applicable to aircraft (owned by the United States or

by United States citizens) ‘‘while such aircraft is in flight

over the high seas, or over any other waters within the

admiralty and maritime jurisdiction of the United States

and out of the jurisdiction of any particular state.’’ 18

U.S.C. § 7(5).

(b) In 1920 Congress adopted the Death on the High

Seas Act providing a remedy in the District Court in

admiralty to the personal representatives of persons wrong-

fully killed on the high seas beyond a marine league from

shore. ~

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This statute has been unanimously interpreted as appli-

cable to deaths resulting from airplane crashes as well

as to deaths on ships on the high seas. Wilson v. Trans-

ocean Airlines, 121 F.Supp. 85 (N.D.Cal. 1954) ; Guess v.

Read, 290 F.2d 622 (5th Cir. 1961), cert. denied, 368 U.S.

957 (1962) (Black, J., dissenting) ; Noel v. Airponents, Inc.,

169 F.Supp. 348 (D.N.J. 1958) ; 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. United

Awcraft Corp., 219 F.Supp. 556 (D.Del. 1963), aff’d in

part, rev’d im part, 342 F.2d 232 (3d Cir. 1965) ; Bergeron

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

Wyman v. Pan American Airways, Inc., 45 N.Y.8.2d 420

(1943), aff’d, 48 N.Y.S.2d 458 ( S.Ct.App.Div.), leave denied,

49 N.Y.S.2d 271, cert. denied, 324 U.S. 882 (1944) ; Lacey

v. L. W. Wiggins Airways, Inc., 95 F.Supp. 916 (D.Mass.

1951).? , .

The emphasis of Congress upon the navigable waters test

of its jurisdiction is clearly shown in the Admiralty Exten-

sion Act of 1948. .

“Extension of admiralty and maritime jurisdic-

tion; libel in rem or in personam; exclusive

remedy; waiting period

The admiralty and maritime jurisdiction of the

United States shall extend to and include all cases of

damage or injury, to person.or property, caused by a

vessel on navigable water, notwithstanding that such

damage or injury be done or consummated on land.’’

46 U.S.C. § 740 (1964).

Se

*See also Moragne v. States Marine Tines, Inc., 398 U.S. 375

(1970), overruling The Harrisburg, 119 U.S. 199 (1886), recog-

nizing a remedy for wrongful death under general maritime law,

and allowing application of the Death on the High Seas Act to

death cases in territorial waters,

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Supreme Court Cases oN MARITIME JURISDICTION

It is clear that the judicial power of the United States

has the task of defining the limits of admiralty jurisdiction

within the general language and history of the constitu-

tional grant. The Propeller, Genesee Chief, et al., supra;

The Steamer St. Lawrence, 66 U.S. 522 (1861); Detroit

Trust Co. v. The Thomas Barlum, 293 U.S. 21 (1934). But

it is equally clear that defining those limits has been and

is anything but simple.

In property law, the line where the sea at high tide meets

the shore is called ‘‘the meander line’’. The term might

well be used to apply to the perimeter of admiralty juris-

diction—at least as applied to tort actions: wherein the

tort, as here, involves incidents on both land and navigable

waters. See generally, The Plymouth, 70 U.S. (3 Wall.) 20

(1865) ; London Guaranty & Accident Co. Ltd. v. Industrial

Accident Comm’n, 279 U.S. 109 (1929) ; Atlantic Transport

Co. v. Imbrovek, 234 U.S. 52 (1914) ; Minnie v. Port Huron

Co., 295 U.S. 647 (1935), and T. Smith & Sons, Ine. v.

Taylor, 276 U.S. 179 (1928). The Supreme Court has not

as yet decided any case dealing with admiralty jurisdiction

over airplane crashes. But in the series of sea-land cases’

cited above it has decided cases where, for varying reasons,

varying jurisdictional results were reached.

In The Plymouth, supra, the Supre urt held that

sea-based negligence of a docked steamers re which

set fire to and burned down dock-side warehouses did not

give rise to admiralty jurisdiction. The case can be and

has been argued by appellants for the proposition that

‘‘locality alone’’ ‘controls (referring to locality of the

damage) and by appellees that it is the locality where the

negligence takes effect that counts.

In The Admiral Peoples, 295 U.S. 649 (1935), a ship’s

passenger fell from a ship’s gangplank (alleged to have

8 We here employ ‘‘sea’’ in the sense of navigable waters.

15a

been negligently placed or constructed) to a dock where

she was injured. The Court noted that the breach of duty

occurred on shipboard and upheld admiralty jurisdiction.

In Minnie v. Port Huron Co., supra, a similar result was

reached where 4 longshoreman on the deck of a vessel was

struck by a swinging hoist and’ knocked onto a dock. The

Court there noted that ‘‘the injury was due to the blow.”

Id, at 182. It cited and relied upon 7. Smith & Sons, Inc.

v. Taylor, supra, which reached an opposite result where

the sling was land-based and knocked the longshoreman

into the water. The Court’s final rationale concerning

I. Smith € Sons, Inc. v. Taylor was, ‘‘The substance and

consummation of the occurrence which gave rise to the

cause of action took place on land.’’ 276 U.S. at 182.

I make no suggestion that there is a simple consistency to

be found in the reasoning of all these cases,

Harsh facts frequently appear to have affected results.

The Smith & Sons case, for example, preceded the effective

date of the federal Longshoremen’s Compensation Act and

upheld a state compensation award. The holding of the

court was to deny that ‘‘the case is exclusively within

admiralty jurisdiction”’ as appellants therein were claim-

ing. T. Smith & Sons, Ine. v. Taylor, 276 U.S. 179, 182

(1928) (emphasis added). And as we have noted above,

Congress, in passing the Admiralty Extension Act of 1948,

acted to extend admiralty jurisdiction so as to eliminate

the holding of The Plymouth, supra.

Among the older cases, we find the most careful approach

and reasoning in the Imbrovek case where Chief Justice

Hughes said:

“The principal question is whether the District

Court had jurisdiction; that is, whether the cause was

one ‘of admiralty and maritime jurisdiction.’ Const.

Art. ITI, § 2; Rev. Stat., § 563; Judicial Code, § 24; Act

of Sept. 24, 1789, o. XX, §9, 1 Stat. 73, 76. As the

16a

injury occurred on board a ship while it was lying in

navigable waters, there is no doubt that the require-

ment as to locality was fully met. The petitioner

insists, however, that locality is not the sole test, and

that it must appear that the tort was otherwise of a

maritime nature. And this was the view taken by the

Cireuit Court of Appeals for the Ninth Circuit, in

affirming a decree dismissing a libel for want of juris-

diction in a similar case. Campbell v. Hackfeld & Co.,

125 Fed. Rep. 696.

‘¢ At an early period the court of admiralty in Eng-

land exercised jurisdiction ‘over torts, injuries, and

offences, in ports within the ebb and flow of the tide,

on the British seas’ and on the high seas.’ De Lovio

v. Boit, 2 Gall. 398, 406, 464, 474. While its authority

was denied when the injurious action took place

infra corpus comitatus, it was not disputed that juris-

diction existed when the wrong was done ‘upon the

sea, or any part thereof which is not within any

county.’ (4 Inst. 134.) The jurisdiction in admiralty

of the courts of the United States is not controlled by

the restrictive statutes and judicial prohibitions of

England (Waring v. Clarke, 5 How. 441, 457, 458;

Insurance Company v. Dunham, 11 Wall. 1, 24; The

Lottawanna, 21 Wall. 558, 576) ; and the limitation with

respect to torts committed within the body of any

county is not applicable here. Waring v. Clarke,

supra; The Magnolia, 20 How. 296. ‘In regard to

torts’—said Mr. Justice Story in Thomas v. Lane, 2

Sumn. 1, 9—‘I have always understood, that the juris-

diction of the Admiralty is exclusively dependent upon

the locality of the act. The Admiralty has not, and

never (I believe) deliberately claimed to have any

jurisdiction over torts, except such as are maritime

torts, that is, such as are committed on the high seas,

or on waters within the ebb and flow-of the tide.’ This

rule—that locality furnishes the test—has been fre

17a

quently reiterated, with the substitution (under the

doctrine of The Genesee Chief, 12 How. 443), of

navigable waters for tide waters. Thus, in the case of

The Philadelphia, Wilmington & Baltimore R. R. Co.

v. The Philadelphia & Havre de Grace Steam Towboat

Co., 23 How. 209, 215, the court said: ‘The jurisdiction

of courts of admiralty, in matters of contract, depends

upon the nature and character of the contract; but

in torts, it depends entirely on locality.’ Again, in the

case of The Plymouth, 3 Wall. 20, where jurisdiction

was denied upon the ground that the substance and

consummation of the wrong took place on land and not

on navigable water, the court said, p. 35: ‘The juris-

diction of the admiralty over maritime torts does not

depend upon the wrong having been committed on

board the vessel, but upon its having been committed

upon the high seas or other navigable waters.—A

trespass on board of a vessel, or by the vessel itself,

above tide-water, when that was the limit of jurisdic-

tion, was not of admiralty ‘cognizance. The reason

was, that it was not committed within the locality that

gave the jurisdiction. The vessel itself was unim-

portant.... The jurisdiction of the admiralty does

not depend upon the fact that the injury was inflicted

by the vessel, but upon the locality—the high seas, or

navigable waters where it occurred. Every species of

tort, however octurring, and whether on board a vessel

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

admiralty cognizance.’ See Mamro v. Almeida, 10

Wheat. 473; Waring v. Clarke, supra, p. 459; The

Lexington, 6 How. 344, 394; The Commerce, 1 Black,

574, 579; The Rock Island Bridge, 6 Wall. 213, 215;

The Belfast, 7 Wall. 624, 637 ; Ex parte Easton, 95

U. 8. 68, 72; Leathers v. Blessing, 105 U. 8. 626, 630;

Panama Railroad v. Napier Shipping Co., 166 U. S. 280,

285; The Blackheath, 195 U. 8. 361, 365, 367; Cleveland

Terminal & Valley R. R. Co. v. Cleveland Steamship

18a

Co., 208 U. 8. 316, 319; Martin v. West, 222 U. S. 191;

The Neil Cochran, Fed. Cas. No. 10,087; The Ottawa,

Fed. Cas. No. 10,616; Holmes v. O. & C. Rwy. Co., 5

Fed. Rep. 75, 77; The Arkansas, 17 Fed. Rep. 383, 384:

The F. & P. M. No. 2, 33 Fed. Rep. 511, 513; The H. 8.

Pickands, 42 Fed. Rep. 239, 240; Hermann v. Port

Blakely Mill Co., 69 Fed. Rep. 646, 647; The Strabo,

90 Fed. Rep. 110; 2 Story on the Constitution, § 1666.

It is also apparent that Congress in providing for the

punishment of crimes committed upon navigable waters

has regarded the locality of the offense as the basis

for the exercise of its authority. Act of April 30,

1790, c. IX, § 8, 1 Stat. 112, 113; act of March 3, 1825,

ce. LXV, 4 Stat. 115; Rev. Stat. §§ 5339, 5345, 5346;

Criminal Code, § 272, 35 Stat. 1088, 1142; United

States v. Bevans, 3 Wheat. 336, 387; United States v.

Wiltberger, 5 Wheat. 76; United States v. Rodgers,

150 U. S. 249, 260, 261, 285; Wynne v. United States,

217 U. S. 234, 240.

“But the petitioners urge that the general state

ments which we have cited, with respect to the ex-

. ¢lusiveness of the test of locality in cases of tort, are

not controlling; and that in every adjudicated case in

this country in which the jurisdiction of admiralty

with respect to torts has been sustained, the tort apart

from the mere place of its occurrence has been of a

maritime character. It is asked whether admiralty

would entertain a suit for libel or slander circulated on

board a ship by one passenger against another. See

Benedict, Admiralty, 4th ed., § 231. The appropriate

basis, it is said, of all admiralty jurisdiction, whether

in contract or in tort, is the maritime nature of the

transaction or event; it is suggested that the wider au-

thority exercised in very early times in England may —

be due to its antedating the recognition by the common-

law courts of transitory causes of action and thus arose

by virtue of necessity.

19a

‘We do not find it necessary to enter upon this broad

inquiry. As this court has observed, the precise scope

of admiralty jurisdiction is not a matter of ‘obvious

principle or of very accurate history,’ The Blackheath,

supra. And we are not now concerned with the ex-

treme cases which are hypothetically presented. Even

if it be assumed that the requirement as to locality in

tort cases, while indispensable, is not necessarily ex-

clusive, still in the present case the wrong which was

the subject of the suit was, we think, of a maritime

nature and hence the District Court, from any point

of view, had jurisdiction. The petitioner contends that

a maritime tort is one arising out of an injury to a

. ship caused by the negligence of a ship or a person

or out of an injury to a person by the negligence of a

ship; that there must either be an injury to a ship

or an injury by the negligence of the ship, including

therein the negligence of her owners or mariners; and

that, as there was no negligence of the ship in the

present case, the tort was not maritime. This view

we deem to be altogether too narrow.

‘The fibelant was injured on a ship, lying in navig-

able waters, and while he was engaged in the perform-

ance of a maritime service. We entertain no doubt that

the service in loading and stowing a ship’s cargo is

of this character. Upon its proper performance de-

pends in large measure the safe carrying of the cargo

and the safety of the ship itself; and it is a service

absolutely necessary to enable the ship to discharge

its maritime duty. Formerly the work was done by

the ship’s crew; but owing to the éxigencies of increas-

ing commerce and the demand for rapidity and special

skill, it has become a specialized service devolving upon

a class ‘as clearly identified with maritime affairs as

are the mariners.’ See The George T. Kemp, 2 Lowell,

477, 482; The Circassian, 1 Ben. 209 ; The Windermere,

2 Fed. Rep. 722; The Canada, 7 Fed. Rep. 119; The

ag

20a

The Hattie M. Bain, 20 Fed. Rep. 389; The Gilbert

Knapp, 37 Fed. Rep. 209; The Main, 51 Fed. Rep. 954;

Norwegian Steamship Co. v. Washington, 57 Fed. Rep.

224; The Seguranca, 58 Fed. Rep. 908; The Allerton,

93 Fed. Rep. 219; Hughes, Adm. 113; Benedict, Adm.,

4th ed., § 207. The libelant was injured because the

care required by the law was not taken to protect him

while he was doing this work. We take it to be clear

that the District Court sitting in admiralty was en-

titled to declare the applicable law in such a case,

as it was within the power of Congress to modify that

law. Waring v. Clarke, supra; The Lottawanna, supra.

The fact that the ship was not found to be liable for

the neglect is not controlling. If-more is required

than the locality of the wrong in order to give the

court jurisdiction, the relation of the wrong to mari-

time service, to navigation and to commerce on navig-

able waters, was quite sufficient.’’ Atlantic Trans-

port Co. v. Imbrovek, 234 U.S. 52, 58-62 (1914). (En-

phasis added.) .

The more modern and more liberal interpretation of the

scope of admiralty jurisdiction is perhaps best illus-

trated in Calbeck v. Travelers Insurance Co., 370 U.S. 114,

117 (1962), where the Court said:

‘‘Our conclusion is that Congress invoked its constitu-

tional power so as to provide compensation for all

injuries sustained by employees on navigable waters

whether or not a particular injury might also have

been within the constitutional reach of a state work-

men’s compensation law.’’ (Emphasis added and

footnote omitted.)

In the most recent decision concerning admiralty juris-

diction, the Court continued its expansion of the effective

boundaries of admiralty. Moragne v. States Marine Lines,

Inc., 398 U.S. 375 (1970). In foreshadowing probable ap-

21a

plication of the Death on the High Seas Act to deaths on

territorial waters, the Court said:

‘However, it is sufficient at this point to conclude, as

Mr. Justice Holmes did 45 years ago, that the work

of the legislatures has made the allowance of recovery

for wrongful death the general rule of American law,

and its denial the exception. Where death is caused

by the breach of a duty imposed by federal maritime

law, Congress has established a policy favoring re-

covery in the absence of a legislative direction to ex-

cept a particular class of cases.’’ Id. at 393.

SIXTH CIRCUIT ADMIRALTY CASES

In Smith v. Lampe, 64 F.2d 201 (6th Cir.), cert. denied,

289 U.S. 751 (1933), Judge Simons stated the traditional

test of maritime jurisdiction for this Circuit, saying,

‘“‘Where the negligent act originates on land and the dam-

age occurs on water, the cause of action is within the ad-

miralty jurisdiction.’’ Id. at 202.

Essentially, this view was reiterated in Interlake Steam-

ship Company v. Nielsen, 338 F.2d 879 (6th Cir. 1964),

cert. dented, 381 U.S. 934 (1965), in upholding admiralty

jurisdiction over a harbor worker’s federal compensation

case wherein a ship’s custodian was killed when in the

course of his employment he drove a car off the end of the

dock where his ship was berthed.

The District Judge in dismissing the instant complaint

for lack of jurisdiction relied strongly upon language found

in more recent opinions of this court in Chapman v. City of

Grosse Pointe Farms, 385 F.2d 962 (6th Cir. 1967), and

Wiper v. Great Lakes Engineering Works, 340 F.2d 727

(6th Cir.), cert. denied, 382 U.S. 812 (1965). The District

Judge read these cases as accepting the proposition that

the locus of the tortious conduct, rather than the locus of

the damage, was the determining factor in relation to ad-

22a

miralty jurisdiction. While there is dictum in Wiper (a

drowning case alleging faulty maintenance of a pier) which

lends some support to this conclusion, we believe that Chap-

man adopted (and arguably extended) the rationale of the

Imbrovek case which is quoted above. The holding in

Chapman was:

‘*While the locality alone test should properly be used

to exclude from admiralty courts those cases in which

the tort giving rise to the lawsuit occurred on land

rather than on some navigable body of water, it is

here determined that jurisdiction may not be based

solely on the locality criterion. A relationship must

exist between the wrong and some maritime service,

navigation or commerce on navigable waters.’’ Chap-

mam v. City of Grosse Point Farms, supra at 966.

In Gowdy v. United States, 412 Fi2d 525 (6th Cir.), cert.

denied, 396 U.S. 960 (1969), two judges reiterated the

Chapman rule in the context of a tort case where a work-

man fell from the flat roof of a lighthouse building to the

ground. The lighthouse was at the end of a land-con-

nected breakwater, and the opinion of the court found no

maritime character to the tort claim which alleged negligent

maintenance of the roof.

The holding of Chapman has been praised in The Ameri-

can Law Institute, Srupy or THE Division or JURISDICTION

BetweEen State anp Feperat Courts, § 232 (1969), which

presents the point of view of critics of the ‘‘locality alone”

test. It is interesting to note, however, that even the

RestaTeMENT (SEconD) or Conruiict or Laws with its em-

phasis upon the state of the most significant relationship

to the occurrence and the parties gives a distinct preference

to ‘‘the local law of the state where the injury occurred”

in tort actions involving both personal injury and property

REstaTEMENT (SEcoND) or Conruicr oF Laws

§§ 146 and 147 (1971).

23a

I think, however, that the proper application of Chap-

man to the facts of our instant case is best shown by the

language it employed to distinguish aircraft crash cases

—more particularly, the Weinstein case:

“*It might be said that some relationship between the

alleged wrong and maritime Service, navigation ox

commerce on navigable waters, is a condition sub

silentio to admiralty jurisdiction. Indeed, in Wein-

stein v. Eastern Airlines, Inc., 316 F.2d 758 (3rd Cir.

1963), a wrongful death case arising from a plane

crash into Boston Harbor, the court was able to recon-

cile McGuire, supra, with its conclusion that locality of

the injury was the exclusive determinant of admiralty

jurisdiction (p. 763, n. 13) :

“ ‘The result reached in McQuire v. City of New

York, 192 F. Supp. 866 (S.D. N.Y. 1961) may well

be compatible with the ‘locality alone’’ test. To say

that a person bathing in the shallow, and probably

un-navigable in fact, waters of a public beach is

within the locus of admiralty jurisdiction would be

to distort the meaning of the locality test beyond

what reason and policy would suggest or require.’

“In making this concession, it appears that Wein-

steim does in fact accept the ‘locality plus’ test, not-

withstanding the declaration as to the propriety of the

‘locality alone’ criterion. In addition, the court also

noted that aircraft had become ‘a major instrument

of travel and commerce over and across’ navigable

waters, and that the dangers of piane crashes into

navigable waters ‘are much the same as those arising

out of the sinking of a ship or a collision between two

vessels.’ Id. at 763.” Chapman v. City of Grosse

Pointe Farms, supra at 966.

24a

HOLDING

I regret that I cannot agree with the majority holding

in this case. There is nothing more maritime than the

sea. Pure Oil Co, v. Snipes, 293 F.2d 60, 65 at n.6 (5th

Cir. 1961).

I believe that there are many comparisons between the

problems of aircraft over navigable waters and those of the

ships which the aircraft are rapidly replacing. We should

take judicial notice that thousands of flights of aircraft

take off daily (many from waterfront airports like Cleve-

land’s Burke Lakefront) with flights planned over the

oceans or over the Great Lakes.

I have previously noted that Congress appears to have

thought that admiralty jurisdiction attached solely by flight

over the high seas. We have, however, no need to go that

far in our instant case. We deal here with a disabled

plane which crashed upon and sank into the navigable

waters of the Great Lakes. Problems posed for aircraft

landing on, crashing on, or sinking into navigable waters

differ markedly from landings upon land. Arguably, they

might be greater or less, but they are not the same. In

such instances, wind and wave and water, the normal

problems of the mariner, become the approach or survival

problems of the pilot and his passengers. I do not, by

referring generally to these matters as being within judicial

notice, mean to pass judgment on jurisdictional problems

beyond the specific requirements of this case. What I

would hold is that tort cases arising out of aircraft crashes

into navigable waters are cognizable in admiralty juris-

diction even if the negligent conduct is alleged to have hap-

pened wholly on land. By so doing, we would follow the

reasoning and result of the Imbrovek case and apply it to

the facts of this case:

‘‘If more is required than the locality of the wrong in

order to give the court jurisdiction the relation of the

wrong to maritime service, to navigation and to com-

25a

merce on navigable waters, was quite sufficient.’’ At-

lantic Transport Co. v. Imbrovek, 234 US. 52, 62

(1914).

Here the aircraft took off from a shorefront airport; its

flight path led over navigable waters (if only for a brief

distance) ; when disabled, it fell into navigable waters; and

the damage complained of is damage occasioned by crash-

ing into and sinking into navigable waters.‘

We cannot by any means be sure that the Supreme Court

will not adhere or revert to the ‘‘locality alone’’ test, but in

the meantime we should note that there is some maritime

character to any flight of any airplane over any navigable

water.

If, as a result of shore-based negligence in dry dock, a

sea valve were left open on a deep-water vessel, would

anyone doubt admiralty jurisdiction over cases arising

& from its subsequent sinking?

I think we should adopt the Third Circuit rule of Wein-

stem, supra.

‘‘We hold, therefore, that tort claims arising out of

the crash of a land-based aircraft on navigable waters

within the territorial jurisdiction of a state are cogniz-

able in admiralty.’’ 316 F.2d at 766.

PARVUM CAT IMem, ron ta

This would not require endorsing its ‘‘locality alone’’

test, but, as is obvious from what has been said, I would

accept fully much of Judge Biggs’ reasoning, including the

following:

“Assuming arguendo that some-kind of maritime

nexus in addition to locality is required as a prerequi-

site to admiralty tort jurisdiction, we believe none-

*I attach no significance to the fact that the descending plane

struck the top of a truck and the perimeter fence of the airport

before crashing into Lake Erie. This record makes clear that the

impact on the water and the sinking of the plane with its conse-

quent water damage accomplished the destruction complained of.

26a

theless 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

commerce over and across these same waters. When

an aircraft 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 be-

tween two vessels.’’ Id. at 763.

Aside from Wewstein, supra, and Scott v. Eastern Air-

limes, Inc., 399 F.2d 14 (3d Cir.), cert. denied, 393 U.S. 979

(1968), where the Third Circuit reaffirmed Weinstein, there

is no precedent squarely in point concerning airplane

crashes in navigable waters of a state either from the

Circuit Courts of Appeal or the United States Supreme

Court. But there are many District Court cases, both be-

fore and after Weinstein, which have reached the same re-

sult. Hornsby v. Fishmeal Co., 285 F. Supp. 990, 993

(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., 257 F. Supp. 121

(S.D.Fla. 1966); Montgomery v. Goodyear Tire & Rubber

Co., 231 F.Supp. 447, 453 (S.D.N.Y. 1964), aff’d, 392 F.2d

777 (2d Cir. 1968) ; Harris v. United Airlines, 275 F. Supp.

431 (S.D.Iowa 1967). See also 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. Air-

ponents, 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.Cal.

1954).

For the reasons outlined, I would reverse and remand the

judgment of the District Court.

27a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Civil Aetion No. (69-464

Executive Jet Aviation, Inc. and Executive Jet SALgs,

Inc., Plaintiffs

v.

Crry or CLEVELAND, Onno, East 6th and Lakeside Avenue,

Cleveland, Ohio

Puiu A. Scuwenz, 724 Sandlewood,

Elyria, Ohio

and

Howarp E. Dicken, 23225 Cedar Point Road,

Cleveland, Ohio, Defendants

Memorandum and Order

Re: Motions To Dismiss

[Filed June 12, 1970]

Katsreisca, J.

The instant case arises from the crash of a Falcon Mys-

tere jet aircraft into the waters of Lake Erie near Burke

Lakefront Airport at Cleveland, Ohio, on July 28, 1968.

At the time of the accident there were three persons aboard

the Falcon aircraft, all crew members, none of whom were

injured. ;

The plaintiffs in the case are Executive Jet Sales, Inc.,

and Executive Jet Aviation, Inc., the former is alleged to

be the owner of the Falcon, while the latter operated the

aircraft. The complaint invokes the admiralty jurisdiction

of the Court and seeks damages for total loss of the Falcon.

Though the aircraft was never replaced, the prayer also

28a

includes an amount for loss of revenue from operation of

the Falcon during the reasonable period of time required

for replacement.

At the time of the accident, defendant City of Cleveland

owned the airport and employed Phillip A. Schwenz to man-

age it. Defendant Howard E. Dicken was the air trafic

controller on duty at the time of the accident.

The defendants have moved to dismiss the action on the

ground that the undisputed facts presently before the Court

demonstrate that the claim asserted by the plaintiffs is not

cognizable in admiralty and therefore the Court is without

jurisdiction over the subject matter. Plaintiffs argue, on

the other hand, that the complaint states a case in admiralty

and that the allegations thereof are not so cast into doubt

by the other material before the Court as to warrant dis-

missal for lack of jurisdiction.

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 plaintiff.

Dautartas v. Trans World Airlines, Civil No. 065-617, N.D.

Ohio (1966).

Relevant to the issues here, the complaint alleges:

**6. On July 28, 1968, plaintiffs’ Falcon aircraft tax-

ied on and took off from the airport, all under the di-

rect supervision and control of one or more of the de-

fendants. On said date defendant Howard E. Dicken

cleared the Falcon for take off from the airport.

**7, On or about July 28, 1968, defendant Howard

E. Dicken negligently and carelessly supervised and

controlled, or failed to supervise and control, plain-

tiffs’ Falcon; and negligently and carelessly failed to

warn plaintiffs of hazards to aircraft existing on, over

and adjacent to the airport of which defendant How-

ard E. Dicken knew or should have known, including 4

huge flock of seagulls which were sitting on the active

ESS ERS RR PROMO RN NYSE RR

29a

runway of the airport at the time defendant Howard

K. Dicken cleared plaintiffs’ Falcon for takeoff from

said runway.

“8. On and before July 28, 1968, the city and de-

fendant Phillip A. Schwenz, and each of them, negli-

gently and carelessly operated, controlled, maintained,

supervised and inspected the airport; negligently and

carelessly failed to remove and eliminate hazards to

aircraft existing on, over and adjacent to the airport,

including the aforementioned flock of seagulls; and

negligently failed to warn plaintiffs of hazards to air-

craft existing on, over and adjacent to the airport of

which the city and defendant Phillip A. Schwenz knew

or should have known, including the aforementioned

flock of seagulls.

“9. As a result of the aforesaid negligence and care-

lessness of defendants, and each of them, plaintiffs’

Falcon struck several hundred seagulls shortly after

take off from the airport when the flock flushed; and

the Faleon was totally destroyed when it crashed and

sank in the navigable waters of Lake Erie off shore

from the airport, all to plaintiffs’ damage in the sum

of One million, five hundred fifty thousand dollars

($1,550,000.00).

“10. As a further result of this negligence and care-

lessness plaintiffs were deprived of the use of the Fal-

con for the period reasonably required to obtain a

replacement aircraft, the reasonable rental value for

this period being Two hundred thousand dollars

($200,000.00). .

“11. As a further result of this negligence and care-

lessness, plaintiffs incurred salvage, raising and other

costs in the sum of Thirteen thousand, six hundred

forty-three dollars and 64 cents ($13,643.64).

In addition to the allegations set out above, there are

certain undisputed facts which appear in the documents

30a

presently before the Court. There is no question that the

aircraft struck the gulls while passing over a portion of

the runway upon which it had taken off. Further, there

was a substantial loss of power from the plane’s engines

either immediately when, or at some time shortly after the

Falcon encountered the birds; in either case, the loss of

power occurred while the plane was still above the land.

Also, the aircraft struck the perimeter fence of Burke

Lakefront Airport and also came into contact with the top

of a pick-up truck which was parked outside of the airport

grounds.

In answer to an interrogatory posed by defendant City

of Cleveland, the plaintiffs have submitted the joint state.

ment of W. P. Flower and Charles E. Dirk, who were pilot-

ing the Falcon at the time of the crash. Neither plaintiffs

nor the defendants take issue with the factual details nar-

rated in the statement, which reads, in part, as follows:

‘After clearance to take-off was received the pilot

in the left seat executed the take-off and rotated at

approximately 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 distinguish

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 visible. Approaching the birds

at approximately 75 feet caused them to flush and fly

into the aircraft * * * . Bird impact substantially re

duced 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 temperature indicated

above 850 degrees on both engines and the RPM

dropped rapidly below 70%. The aircraft flew in 4

semi-stalled attitude stall horn blowing until contact-

ing the water. The aircraft struck the top of a pick-up

truck and a portion of the airport perimeter fence.

31a

The aircraft contacted the water in a flat attitude and

° +r °

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 100 feet in

altitude.’’

There is no genuine issue as to any of the facts set out

above. The disagreement among the parties, as evidenced

by the briefs supporting and opposing the motions, is not

over the hard facts of the case, but rather over how the

facts are to be characterized, what the present state of the

law is on the issue, and how the law is to be applied to

resolve the jurisdictional issue.

There is no question that the plane encountered the pe-

rimeter fence of the airport, the top of a pick-up truck and

the navigable waters of Lake Erie, In the view which this

Court takes of the law, it matters not whether the plane

“‘crashed’’ into the fence and truck and ‘‘eventually came

to rest”? in Lake Erie, or whether: it ‘*grazed’’ the fence

and truck and ‘‘crashed”’ into Lake Erie. For the purpose

of the motions, however, the Court assumes the plaintiffs’

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 navigable waters of Lake Erie * * * ,” (Complaint,

para. 9.)

The basic issue is whether the allegations of the com.

plaint read in light of the undisputed facts state a case

within the realm of this Court’s admiralty jurisdiction.

The perimeter of admiralty jurisdiction has been the sub-

ject of continuing definition by federal courts at all levels.

In arguing the instant motions, the parties have briefed

that area of the law extensively; the sharp difference of

opinion as to how the many cases are to be interpreted

demonstrates that the reach of this Court’s admiralty juris-

iction is still not clearly defined.

32a

The controversy here centers around two questions: first,

What is the proper legal standard by which admiralty ju.

risdiction is to be tested?; and second, Does the claim in this

case meet that standard? Turning to the first question, the

traditional principle is well-stated in The Philadelphia,

Wilmington & Baltimore R.R. Co. v. The Philadelphia ¢

Havre de Grace Steam Towboat Co., 64 U.S. 209 (1859):

‘*The jurisdiction of courts of admiralty, in matters

of contract, depends upon the nature and character of

the contract; but in torts, it depends entirely on local- |

ity.”” (At p. 215.) |

The principle as it relates to torts has come to be known

as the ‘‘locality-alone’’ test of jurisdiction and, in its strict

application, entails an inquiry only as to where the tort

occurred: if upon navigable waters, the action is cognizable

in admiralty; if not, then the action is without the adni-

ralty jurisdiction of the court.

It is the ‘‘locality-alone’’ test of jurisdiction which plain- |

tiffs argue to be the proper standard here and the position

is supported by a myriad of cases, many of which have been

cited by the plaintiffs in the briefs opposing the instant

motions,

However, the Court of Appeals for the Sixth Circuit has

recently considered the propriety of the ‘‘locality-alone”

test and has rejected it. In Chapman v. City of Grosse

Pointe Farms, 385 F.2d 962 (6th Cir. 1967), the plaintiff

was injured when he dived from a pier owned and operated

by the defendant. There were diving boards on the end of

the pier for use by swimmers, but the plaintiff apparently

dived from some other portion of the pier into approxi-

mately eighteen inches of water. The claim was that the

defendant was negligent in failing to erect barriers along

the pier or to adequately warn of the shallow waters along

the side of the pier. After finding that the tort had 0

curred on navigable waters, the court met squarely the

33a

issue of whether the ‘‘locality-alone’’ test is the proper

jurisdictional standard. Said the court:

‘While the locality alone test should properly be

used to exclude from admiralty courts those cases in

which the tort giving rise to the lawsuit occurred on

land rather than on some navigable body of water, it

is here determined that jurisdiction may not be based

solely on the locality criterion. A relationship must

exist between the wrong and some maritime service,

navigation or commerce on navigable waters. Absent

such a relationship, admiralty jurisdiction would de-

pend entirely upon the fact that a tort occurred on

navigable waters; a fact which in‘and of itself, in light

of the historical justification for federal admiralty

jurisdiction, is quite immaterial to any meaningful in-

vocation of the jurisdiction of admiralty courts.’’? (At

p. 966. Citations omitted.)

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

Cir, 1963), a case relied upon heavily by the plaintiffs, the

court specifically rejected the argument that some maritime

nexus is needed for admiralty jurisdiction in addition to

a tort which occurred on navigable waters. As noted in

Weinstein, the argument is not a new one and the weight

of authority is in favor of the “‘locality-alone’’ test. De-

spite this weight of authority, the Chapman case, supra,

expressly binds the Sixth Circuit to the minority position

which requires some maritime nexus in addition to a find-

ing that the tort occurred upon navigable waters.

The plaintiff would read the Chapman case as holding

that, in addition to the tort having occurred upon navigable

waters, there need be a relationship between the wrong and

some maritime service, navigation or commerce on navi-

gable waters only in those ‘‘troublesome borderline cases’’

where there is some difficulty in determining whether or

not the tort occurred upon navigable waters. This posi-

tion is without merit. The opinion in Chapman first dealt

34a

with the question of whether the tort in that case had oc.

curred on navigable waters. Regarding that question, the

court stated, at page 964:

‘However, a number of troublesome borderline cases

have arisen * * *. Without attempting to distinguish

and reconcile each of the above cases, it appears that

the governing principle common to all is that reference

should properly be made to the locality where ‘the sub-

stance and consummation of the occurrence which gave

rise to the cause of action took place * * *.’ Minnie vy.

Port Huron Terminal Co., supra, note 8, 295 US. at

649, 55 S. Ct. at 885, or, as suggested in Thomson v.

Chesapeake Yacht Club, Inc., supra, note 5 at 558, ‘to

the place where the negligent act or omission becomes

operative or effective upon the plaintiff * * * .’ In

these cases, it is apparent that application of the me-

chanical place of the injury or impact test is impossi-

ble, for a claimant has usually suffered some injurious

impact upon both land and water.’’

The court then applied the standard which it deemed ap-

propriate to the circumstances of the case and determined

that the locality of the tort was upon navigable waters.

Only then did the court consider and decide that locality of

the tort alone is insufficient to confer admiralty jurisdit-

tion. This latter holding was not limited to borderline

cases where the locality of the tort could not be easily as-

certained.

Thus, it is the opinion of the Court that the proper proce-

dure here is one which first looks to the threshold question

of locality of the tort. If it can be found that the tort oc

curred upon navigable waters, then further inquiry must be

made into the ‘‘condition sub silentio’’ (Chapman, supra),

i.e., that there be some connection between the alleged wrong

and some maritime service, navigation or commerce upon

navigable waters. As will be set out below, in detail, the

Court finds the case fails to meet both criteria.

35a

Turning to the locality of the tort in this action, the many

cases involving the crash of an airplane into navigable

waters which have held the locality of the tort to be upon

the water would appear to require a similar conclusion here.

Cf. Weinstein v. Eastern Airlines, Inc., supra; Scott v.

Eastern Airlines, Inc., 399 F.2d 14 (3rd Cir. 1968); Harris

v. United Air Lines, Inc., 275 F.Supp. 431 (S.D. Iowa 1967).

A most perplexing aspect of the aircraft cases has been the

difficulty in defining where the tort occurred, especially in

those cases where the acts of negligence alleged occurred

upon or over land even though the plane came down in

navigable waters. .In Thomson v. Chesapeake Yacht Club,

255 F.Supp. 555 (D. Md. 1966), the court commented :

‘“‘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 on the passengers did not

occur until something went wrong during the flight and

the plane started to fall. Something may have started

to go wrong over the land before the plane reached

the sea, but that is usually impossible to prove one

way or the other in aircraft cases, and the decisions

adopt a practical approach.’? (P. 558.)

Thus, for purposes of determining jurisdiction, even

though the negligent acts occur on the land, if the impact

of the tortious conduct takes place over navigable water,

the cases hold that the tort “foccurred’’ on navigable water.

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

Weinstein v. Eastern Airlines, Inc., supra; Wilson v. Trans-

ocean Airlines, 121 F.Supp. 85 (N.D. Calif. 1954). In

Thomson v. Chesapeake Yacht Club, Inc., supra, the court

interpreted the various cases, including those involving

aircraft, with regard to the test for locality. The opinion

states :

“It might be more accurate to refer to the place

where the negligent act or omission becomes operative

36a

or effective upon the plaintiff, so as to cause an injury

to him, whether the physical injury and damage is

suffered and completed on land or in navigable water,

That is substantially the test which was applied in The

Admiral Peoples, The Strabo, Wiper and other cases.”

(P. 558.)

In this case the alleged negligence occurred upon land

and the damage for which recovery is sought occurred upon

Lake Erie. Without looking to the other circumstances of

the accident, it could be said, as plaintiffs argue, that the

‘‘impact’’ of the alleged negligence, with reference to the

ultimate total destruction of the aircraft, occurred upon

navigable waters.

However, there is no question in this case that, after the

alleged negligence but before the ultimate crash into Lake

Erie, the aircraft struck a number of sea gulls, that there

was an immediate loss of power, that the crippled aircraft

came into contact with the airport’s perimeter fence, that

it grazed the top of a pick-up truck parked outside the air-

port, and only then did the plane enter into the space above

Lake Erie, eventually to crash and sink in its waters.

Ignoring the fact that some comparatively small amount of

damage to the aircraft must have been occasioned by its

contact with the gulls, the fence and the truck, it is only by

blindly applying a legal fiction that the Court could say

in this case that the alleged negligence did not have its

‘‘impact’’ upon, or ‘become operative and effective’’ upon

the plane until it crashed into the water. As noted in the

Thomson case, supra, the rule which plaintiffs urge was

developed in cases where it was impossible to prove whether

or not something ‘‘started to go wrong over the land before

the plane reached the sea * * *.’’ (At p. 558.)

In this case it is manifest that the alleged negligence be-

came operative upon the aircraft while it was over the land;

and in this sense the ‘‘impact’’ of the alleged negligence

37a

occurred when the gulls disabled the plane’s engines. Turn-

ing again to the opinion of the court in Chapman, it is

stated, at page 965:

‘In cases such as The Admiral Peoples and Wiper,

cited above (footnotes 2 and 4), the negligent act or

force responsible forthe injury resulted in a direct

impact upon plaintiff, while the alleged negligence in

the instant case was the failure to restrain appellant

by means of warning signs or physical barriers from

performing a voluntary act. This distinction might as

[sic] first seem inconsequential, but it must be noted

that where a negligent act or force knocks a person

down or causes him to fall, whether he comes down on

land or water is largely fortuitous.”

Applying the same analysis to this case, the alleged negli-

gence, the take-off, the striking of the gulls and result-

ant loss of power occurred upon the land. From this point

on the plane was disabled and was caused to fall. Whether

it came down upon land or upon water was largely for-

tuitous,

In Wiper v. Great Lakes Engineering Works, 340 F.2d

727 (6th Cir. 1965), the plaintiff’s decedent was alleged to

have fallen from a dock and to have died from drowning.

The defendant was charged with negligence in maintenance

of the dock. The court stated, at page 730:

‘“‘However, docks and wharves are considered as ex-

tensions of land, American Export Lines, Inc. v. Revel,

266 F.2d 82 (4th Cir. 1959); Netherlands American

Steam Nav. Co. v. Gallagher, 282 FE. 171 (2nd Cir.

1922) ; The Plymouth, 3 Wall. 20, 70 U.S. 20, 18 L.Ed.

125 (1865); Hughes, Admiralty (2d Ed.) Sec. 198; 2

Am. Jur. 741, 767-768, ADMIRALTY See. 84, and

therefore the negligently maintained dock which pre-

sumably caused the decedent to fall was land, and the

decedent was on land at the time he was caused to fall.

Thus, the tort was complete before decedent ever

38a

touched the water and this being true, the subsequent

drowning is significant not to determine the maritime

or non-maritime nature of this action but only as it

relates to damages * * *.’’

Likewise, in this case the airport and the runway were

upon land and the alleged negligence which caused the plane

to crash occurred upon land. Further, the plane became

disabled over land and came into contact with a fence and

a truck before ever crossing the shoreline. It is this Court’s

opinion that the eventual crash of the plane into Lake Erie,

and its destruction by water, are at best fortuitous and are

significant ‘‘not to determine the maritime or non-maritime

nature of this action but only as it relates to damages.”

(Wiper, supra.)

It is the opinion of the Court, therefore, that the tort in

this case did not occur upon navigable waters and the action

is not cognizable in admiralty. In reaching this conclusion,

the Court is well aware of the many decisions holding that

a plane crash into navigable waters is within admiralty

jurisdiction. However, as the analysis above reveals, draw-

ing from those cases a general rule that all plane crashes

into navigable waters are cognizable in admiralty and

applying such a rule here would belie the principles which

governed locality of the tort before the problems peculiar

to air commerce arose. Where the facts are not known, 4

court might rightly assume that the alleged negligence be-

came operative and éffective upon the aircraft over navi-

gable waters; but here the alleged negligence had crippled

the plane well before it reached the water. Assuming other-

wise would require that the Court ignore the very facts

upon which it must rely in testing jurisdiction. Without

distinguishing each of the cases involving an airplane crash

into navigable waters, it is sufficient to state that the undis-

puted facts in this case demonstrate that the tort occurred

over the land.

As to the second prerequisite for admiralty jurisdiction—

that there be_a-relationship between the alleged wrong

39a

and some maritime service, navigation or commerce upon

navigable waters—in Weinstein v. Eastern Atrlines, Inc.,

supra, the court stated:

“‘Assuming arguendo that some kind of maritime

nexus in addition to locality is required as a prereq-

uisite to admiralty tort jurisdiction, we believe none-

theless 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 vari-

ous kinds were the only means of transportation and

commerce in or across navigable waters. Today, air-

craft 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 property are much the same as those

arising out of the sinking of a ship or a collision

between two vessels. ‘There can be nothing more

maritime than the sea.’ Pure Oil Co. v. Snipes, 293

F.2d 60, 65 at n. 6 (5 Cir. 1961).’’ (At p. 763.)

In Chapman v.‘City of Grosse Pointe Farms, supra, the

court quoted these same words from the Weinstein case as

an example of its conclusion that some maritime nexus had

been required as a condition ‘*sub silentio’’ to admiralty

jurisdiction by many courts which outwardly voiced adher-

ence to the ‘‘locality-alone’’ test.

The Court does not view either the Weinstein case or the

Chapman case as persuasive authority that there is always

‘relation between the alleged wrong and some maritime

ervice, navigation or commerce on navigable waters

vhenever an aircraft crashes into navigable waters. In the

Veinstein case, the statement was manifestly uttered by

ay of dicta; and the Chapman opinion cited the comment

f Weinstein only to illustrate that other courts have been

meerned with maritime nexus even while denying that

40a

it is a prerequisite to jurisdiction. There was little indicg.

tion as to how the Court of Appeals for the Sixth Circuit

might rule if considering de novo the question which the

court in Weinstein resolved by way of dicta.

In Gowdy v. United States, 412 F.2d 525 (6th Cir. 1969),

the maritime nexus requirement of the Chapman case was

further defined. The court emphasized in the Gowdy case

that it is the alleged ‘‘wrong’’ which must bear a relation-

ship to some maritime service, navigation or commerce on

navigable waters. The plaintiff in that case was installing

electrical machinery in a lighthouse when he fell from the

lighthouse and sustained injuries. The court stated, at

pages 528-29:

‘‘Nor is the fact that the lighthouse itself serves

a maritime purpose sufficient to require in this case

application of maritime law.

‘‘Here the ‘wrong’ if any, involved the failure of

a landowner to provide a guardrail or some type of

warning for business invitees using the property. The

invitees were an electrical construction company and

its employees engaged in the installation of new

machinery in the machinery house. The company was

not a maritime contractor, and its employees were not

seamen, longshoremen or harbor workers.

‘‘The ‘wrong’ bears no relationship whatsover to

‘some maritime service, navigation or commerce 01

navigable waters.’ The application of maritime law in

this case would not, therefore, serve the purpose of

uniformity in the area of maritime commerce.’’

Assuming, as the court noted in the Weinsteim case, supra,

that air commerce bears some relationship to maritime

commerce when the former is carried out over navigable

waters, the relevant circumstances here were unconnected

with the maritime facets of air commerce. The claimed

4la

“‘wrong’’ in this case was the alleged failure to keep the

runway free of birds and the failure to adequately warn

the pilots of their presence upon the end of the runway.

When the alleged negligence occurred, and when it became

operative upon the aircraft, all the parties were engaged in

functions common to all air commerce, whether over land

or over sea.

There is no contention here that the entire spectrum of

air travel is imbued with a maritime character merely be-

cause some airplanes at certain times might pass over navi-

gable waters. Thus, the conclusion here must be that the

operative facts of the claim in this case are concerned

with the land-connected aspects of air commerce, namely,

the maintenance and operation of an airport located on the

land and the dangers encountered by an aircraft when using

its runways for take-off. It is the Court’s opinion that there

exists no relationship between the ‘‘wrong’’ alleged in this

case and some maritime service, navigation or commerce

upon navigable waters.

For the reasons stated above, the case is not cognizable

in admiralty.

There appearing in the complaint no allegations upon

which jurisdiction might be based other than the averment

that the case falls within the admiralty and maritime juris-

diction of the Court, the Court has no jurisdiction over the

subject matter of the action as alleged. The complaint must,

therefore, be dismissed.

As to the third-party action against the United States of

America filed by defendants City of Cleveland and Phillip

A. Schwenz, it also must be dismissed. The third-party

complaint seeks relief against the third-party defendant

only if, and to the extent that the defendants City of

Cleveland and Phillip A. Schwenz are held liable to the

plaintiffs in the main action. An affirmative claim has been

asserted by the thirty-party defendant against the plaintiffs

and, in this action, the plaintiffs have made no claim directly

42a

against the third party-defendant. Thus there is no

conceivable need, purpose or requirement for the Court

to retain jurisdiction over the third-party action after

dismissal of the original action. See Moore’s Federal

Practice 14.26, at pp. 707 et seq.

Defendant Howard E. Dicken has asserted immunity

from suit, in addition to lack of admiralty jurisdiction, as

a ground for dismissal of the complaint as to him. The

issue of immunity need not be decided in view of the Court’s

opinion on the jurisdictional issue.

Ir Is Onperep, therefore, that the complaint is dismissed

for lack of jurisdiction over the subject matter.

Ir Is FurtHer Orperep that the third-party action is

dismissed.

Grrarp E. KaLBFLEIscH

United States District Judge