Air Transport Associates v. United States, 14298.

• Citation: 221 F.2d 467
• Decision Date: 11 April 1955
• Docket Number: No. 14298.,14298.
• Parties: AIR TRANSPORT ASSOCIATES, Inc., a corporation, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

221 F.2d 467 (1955)

AIR TRANSPORT ASSOCIATES, Inc., a corporation, Appellant, v. UNITED STATES of America, Appellee.

No. 14298.

United States Court of Appeals, Ninth Circuit.

March 18, 1955.

As Amended April 11, 1955.

Patterson, Maxwell & Jones, Tom S. Patterson, Seattle, Washington, for appellant.

Charles P. Moriarty, U. S. Atty., John A. Roberts, Jr., Francis N. Cushman, Asst. U. S. Attys., Seattle, Wash., for appellee.

Before DENMAN, Chief Judge, POPE, Circuit Judge, and MURRAY, District Judge.

MURRAY, District Judge.

This is an appeal from a judgment of the United States District Court for the Western District of Washington, Northern Division, denying the appellant Air Transport Associates, Inc., recovery for damages to one of its air craft as a result of an accident at Elmendorf Field at Anchorage, Alaska. The case is before this Court on an agreed statement pursuant to Rule 76 of the Federal Rules of Civil Procedure, 28 U. S.C. The facts are briefly as follows: Air Transport Associates, Inc., the appellant, was engaged in the business of transporting passengers and freight for hire by airplane. The appellee owned and operated through the United States Air Force an air base known as Elmendorf Air Force Base, and in connection with such base operated an airfield known as Elmendorf Field. At the time in question the airfield of the appellee was the only airfield at Anchorage, Alaska, suitable for use by large commercial planes; and appellee made such airfield available for use to commercial planes upon payment of compensation therefor and upon the execution by the owners and operators of such planes of a written agreement. The appellant executed such an agreement for the use of the field on August 10, 1950, and paid to the government the charges made for the use of the airfield. It further appears that Anchorage, Alaska, was the principal commercial city in Alaska and the major portion of appellant's business consisted of transportation of freight and passengers between Seattle and Alaska, and particularly Anchorage.

The accident which gave rise to this action occurred after dark on the night of January 8, 1952. One of appellant's planes, carrying passengers, approached Elmendorf Field and signaled the control tower, operated by appellee, and requested landing instructions, and in response to said signal the pilot of said aircraft was directed by the employee of the government in the control tower to land on runway 23 of said airfield. It appears that a truck belonging to the government was stalled on runway 23 of said airfield and that a second truck, belonging to the government, which was attempting to assist the stalled truck, was also on runway 23 and that both of said trucks were without lights. When the aircraft of appellant attempted to land on runway 23, as directed by the control tower, a wing of the plane came in contact with the stalled truck and damage to the plane in the amount of $5690.33 resulted.

After the trial of the case to the District Court, sitting without a jury, the Court made findings of fact and conclusions of law, holding that the accident was occasioned by the negligence of the appellee and found damage sustained by the appellant in the amount of $5690.33. The trial court further found that appellant was without fault and not guilty of contributory negligence. However, appellant was denied recovery upon the sole ground that such recovery was barred by the provisions of the agreement which had been entered into by appellant for the use of the field, and particularly Paragraph 6(a)¹ thereof, and entered judgment for the appellee.

Air Transport Associates, Inc., appealed. The only question presented by the appellant on the appeal is whether the exculpatory provisions in the said agreement for the use of the airfield were a valid defense in this case.

However, the government in its brief on appeal, for the first time in the case raised the question of jurisdiction of the trial court, and this matter will be considered and disposed of first.

Section 2674 of Title 28 U.S.C. provides in part as follows:

"The United States shall be liable * * * to tort claims, in the same manner and to the same extent as a private individual under like circumstances * * *."

Similar language is found in Title 28 U.S.C. § 1346(b), which states in part:

"The district courts * * * shall have exclusive jurisdiction of civil actions * * * caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant * * *."

The government argues that in order for there to be jurisdiction in the District Court of a claim against the government under the Federal Tort Claims Act, the government must be equated to a private individual. In other words, the argument is that because a private individual does not operate a military air base, as was being operated by the government at Anchorage, Alaska, in this case, the government cannot be equated to a private individual and hence jurisdiction does not lie.

There is no merit to this argument. No distinction is to be drawn between sovereign and proprietary functions in determining liability under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. Somerset Sea Food Co. v. United States, 4 Cir., 193 F.2d 631; Mid-Central Fish Co. v. United States, D.C.W.D.Mo., 112 F.Supp. 792 at page 795; Cerri v. United States, D. C.N.D.Cal., 80 F.Supp. 831.

Furthermore, the references in the above quoted sections to liability of the government under circumstances where a private individual would be liable do not go to the question of jurisdiction but rather to the test of allowable claims. As the Supreme Court said in the case of Feres v. United States, 340 U.S. 135, 140, 71 S.Ct. 153, 156, 95 L.Ed. 152:

"Looking to the detail of the Act, it is true that it provides, broadly, that the District Court `shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * *.\' This confers jurisdiction to render judgment upon all such claims. But it does not say that all claims must be allowed. Jurisdiction is necessary to deny a claim on its merits as matter of law as much as to adjudge that liability exists. We interpret this language to mean all it says, but no more. Jurisdiction of the defendant now exists where the defendant was immune from suit before; it remains for courts, in exercise of their jurisdiction, to determine whether any claim is recognizable in law.

"For this purpose, the Act goes on to prescribe the test of allowable claims, which is, `The United States shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances * * *,\' with certain exceptions not material here. 28 U.S.C. § 2674, 28 U.S.C.A. § 2674. It will be seen that this is not the creation of new causes of action but acceptance of liability under circumstances that would bring private liability into existence."

From the foregoing language of the Supreme Court in the Feres case, it would appear that the point which the government attempts to raise for the first time in this Court, under the guise of a jurisdictional problem, does not in fact go to jurisdiction, but rather to the test of allowable claims.

However, even if it should be conceded that the language of the Act, making the government liable for tort claims to the same extent and in the same manner as a private individual under like circumstances, goes to the question of jurisdiction, there would be no lack of jurisdiction in the circumstances of this case. While it is true that Elmendorf airfield, where the accident occurred, was part of a military air base, there is nothing in the record to indicate that the accident was due in whole or in part to the military character of the airfield. Private individuals or private entities may and often do operate airfields, and if such a private individual operating an airfield left trucks parked on a runway of that airfield in the dark, as was done in this case by the government, there would unquestionably be liability on the private individual operating the field for any resultant accidents. Annotation 138 A.L.R. 126.

Turning now to the questions presented by the appellant, its position is that the District Court erred in giving effect to the exculpatory provisions of the agreement under which it used Elmendorf Field. It is contended that the provision is invalid as an illegal attempt on the part of the government to contract against liability for its own negligence...