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2d 677
Harry Norman Ball and Joseph G. Feldman, Philadelphia, Pa., and Lipper,
Shinn & Keeley, New York City (Morris L. Weisberg, Philadelphia, Pa.,
of counsel), for plaintiffs-appellants.
William J. Junkerman and Douglas B. Bowring, New York City (Haight,
Gardner, Poor & Havens, New York City, of counsel), for defendantappellee.
Before CHASE, HINCKS and LUMBARD, Circuit Judges.
LUMBARD, Circuit Judge.
The narrow issue in this case is whether plaintiff may bring a civil action based
on either the Warsaw Convention, 49 Stat. 3000 (1934), or the Federal Death
on the High Seas Act, 46 U.S.C.A. 761-767, for a death which allegedly
occurred in the airspace over the high seas.
Since this case was disposed of on a dismissal of the complaint, the facts before
us are those alleged in the complaint, as amended.
Plaintiffs, the executors of Marshal L. Noel's estate and citizens of New Jersey
and Pennsylvania, brought an action in the United States District Court for the
Southern District of New York on the civil side against the defendant, a
corporation or entity owned by the United States of Venezuela. In their
complaint, plaintiffs allege that on June 19, 1956, the decedent, Marshal L.
Noel, boarded defendant's four-engine Super Constellation enroute from New
York to Caracas, Venezuela. At 1:30 A.M. on June 20 when the plane was over
the Atlantic Ocean approximately 30 miles from New Jersey, Noel was killed,
allegedly because of defendant's "wrongful acts, neglect, default, and wilful
misconduct." In their original complaint, plaintiffs alleged that the plane
crashed into the sea and that Noel died in the water. The action was based on
the Warsaw Convention and the Federal Death on the High Seas Act, and
plaintiffs demanded a jury trial.
4
Judge Cashin dismissed the original complaint for lack of jurisdiction over the
subject matter on the ground that (1) actions under the Federal Death on the
High Seas Act are cognizable only in admiralty; (2) the Warsaw Convention
does not create an independent right of action. Judge Cashin noted that "it is not
contended that the admiralty forum would deny to the plaintiffs their
substantive cause of action for wrongful death." [144 F.Supp. 361.]
Plaintiffs then amended their complaint to allege that the death occurred in the
airspace over the high seas. They contended that because the death occurred
over the water, an action based thereon cannot be brought in an admiralty
forum, and if the jurisdiction for actions under the Federal Death on the High
Seas Act is exclusively admiralty, then they are without a remedy and that in
such circumstances the Warsaw Convention grants them a right of action.
Defendants objected to plaintiffs' procedure in amending the complaint and
moved again to dismiss on the merits. Judge Cashin, choosing to dispose of the
case on the jurisdictional, rather than the procedural grounds, ruled that there
should be no material difference between deaths in or above the water, and
adhered to his original decision. 154 F.Supp. 162. For a different and narrower
reason, we affirm.
Plaintiffs allege first that under New York law, Article 17 of the Warsaw
Convention creates an independent right of action1 and since this complaint
alleges diversity jurisdiction, under Klaxon Co. v. Stentor Electric Mfg. Co.,
1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L. Ed. 1477, we must follow the law of
New York and also hold that the Warsaw Convention provides an independent
right of action. We do not agree.
but a federal treaty. It is applied in the state courts not because it expresses a
state policy which a federal court must follow, but because it expresses federal
policy which a state court must follow. And in interpreting a federal treaty, the
federal courts are certainly not bound by state court interpretations.2
9
10
11
12
13
Plaintiffs' second count is under the Federal Death on the High Seas Act. They
argue in the alternative that the Federal Death on the High Seas Act does grant
them a right of action and that it may be brought on the civil side. See Choy v.
Pan American Airways Co., D.C. S.D.N.Y., 1941 A.M.C. 483. We do not find
it necessary to pass on the question of whether the Act grants a right of action
for deaths in the airspace,4 for we conclude that any rights created by that Act
are cognizable only in admiralty and hence the action was correctly dismissed
from the civil side.
14
Plaintiffs contend that the phrase in the statute, "may maintain a suit for
damages * * * in admiralty," means that a plaintiff may sue either at law or in
admiralty. But the language and legislative history make it very clear that the
permissive element relates solely to the grant of the right and not to the forum.
Whereas before the Act a party could not sue under federal law for death on the
high seas at all, now he may. Higa v. Transocean Airlines, 9 Cir., 1955, 230
F.2d 780; Wilson v. Transocean Airlines, D.C.N.D.Cal.1954, 121 F.Supp. 85;
Iafrate v. Compagnie Generale Transatlantique, D.C.1952, 106 F.Supp. 619;
see Comment, 41 Corn.L.Q. at 248-50.
15
Other sections of the Act support this conclusion. Thus, the survival section
refers to "pendency in a court of admiralty," and if suit could be maintained in
other forums, there would be no reason to restrict the survival provision in this
manner. Moreover, the legislative history also supports this reading. See 59
Cong.Rec. 4482-84 (1920). Whatever the merits and demerits of the admiralty
forum, see Comment, 55 Col.L.Rev. 907, 912-16 (1955), the statutory language
and the legislative history are clear.
16
To summarize: the first count fails to state a cause of action under New York
law; the second count, under the Federal Death on the High Seas Act, cannot be
brought on the civil side of the District Court; the third count fails to state a
cause of action as the Warsaw Convention created no right of action.
Accordingly we affirm the dismissal of the complaint but without prejudice to
plaintiff's right to transfer the case to the admiralty side of the court for
adjudication of the second count of the amended complaint. We express no
opinion as to whether the Death on the High Seas Act grants a right of action in
admiralty for death in the airspace.
Notes:
1
Article 17
"The carrier shall be liable for damages sustained in the event of the death or
wounding of a passenger or any other bodily injury suffered by a passenger, if
the accident which caused the damage so sustained took place on board the
aircraft or in the course of any of the operations of embarking or
disembarking."
As a matter of fact, New York law does not favor the plaintiffs. Although
Salamon v. Koninklijke Luchtvaart Maatschappij, Sup.1951, 107 N.Y.S.2d 768,
affirmed, 1st Dept.1953, 281 App.Div. 965, 120 N.Y.S.2d 917 does hold that
the Warsaw Convention creates a right of action, Wyman v. Pan American
Airways, 1943, 181 Misc. 963, 43 N.Y.S.2d 420, affirmed, 1st Dept.1944, 267
App.Div. 947, 48 N.Y.S.2d 459 holds to the contrary and the latter decision
was affirmed by the New York Court of Appeals, 293 N.Y. 878, 59 N.E.2d 785,
certiorari denied, 1944, 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432