Smith v. Pan Air Corp.

• Citation: 684 F.2d 1102
• Decision Date: 23 August 1982
• Docket Number: Nos. 81-3522,81-3675 and 81-3638,s. 81-3522
• Parties: Denyse Nettune Jordan SMITH, etc., Plaintiff-Appellant, v. PAN AIR CORP., et al., Defendants-Appellees. Martha KOLB, etc., Plaintiff-Appellant, v. TEXACO, INC. and Pool Offshore Co., Defendants-Appellees. PETROLEUM HELICOPTERS, INC. and American Home Assurance Co., Plaintiffs-Appellants, v. POOL COMPANY OF TEXAS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1102

684 F.2d 1102

Denyse Nettune Jordan SMITH, etc., Plaintiff-Appellant, v. PAN AIR CORP., et al., Defendants-Appellees.

Martha KOLB, etc., Plaintiff-Appellant, v. TEXACO, INC. and Pool Offshore Co., Defendants-Appellees.

PETROLEUM HELICOPTERS, INC. and American Home Assurance Co., Plaintiffs-Appellants, v. POOL COMPANY OF TEXAS, Defendant-Appellee.

Nos. 81-3522, 81-3675 and 81-3638.

United States Court of Appeals Fifth Circuit.

Aug. 23, 1982.

Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, La., for smith.

Robert T. Myers, Brad G. Theard, Lawrence E. Abbott, New Orleans, La., for Pan Air Corp.

Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, La., for Southeastern Aviation Underwriters, Inc.

Bailey & Leininger, B. Ralph Bailey, Donald D. Bann, Metairie, La., Arthur Crais, New Orleans, La., for Shell Oil Co.

Lugenbuhl, Larzelere & Ellefson, Russell D. Pulver, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, La., for Kolb.

Domengeaux & Wright, Wm. P. Rutledge, Lafayette, La., for Petroleum Helicopters, Inc., et al.

Caffery, Oubre & Duzar, Patrick T. Caffery, New Iberia, La., for Texaco, Inc.

Johnson & McAlpine, Ronald A. Johnson, John F. Colowich, New Orleans, La., for Pool Offshore.

Appeal from the United States District Court for the Western District of Louisiana.

Before RUBIN, REAVLEY and TATE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge.

The scope of admiralty jurisdiction over suits arising from aircraft crashes has never been fully explored by this Circuit. These cases require us to consider the extent of that jurisdiction. If there is jurisdiction, some of the cases also involve the effect of the Outer Continental Shelf Lands Act on such suits. Finally, one case raises the question whether an aircraft is a "vessel" for Jones Act purposes.

We first sketch briefly the facts in each case.

I.

81-3522 Smith v. Pan Air Corp.

Curtis C. Jordan was a pilot regularly engaged in flying a plane to transport passengers engaged in mineral exploration and development activity to and from locations in Louisiana and off its shores. Using a plane equipped to take off from either land or water, he departed from the New Orleans Lakefront Airport with two passengers, one of them to be taken to a Shell Oil Company mineral operation located in Louisiana near the mouth of the Mississippi River. It was not practicable, however, to reach Shell's site by land travel. Using water flotation equipment, Jordan landed in a canal adjacent to Shell's facilities. After the Shell-bound passenger disembarked, Jordan took off from the canal, and almost immediately encountered a fog bank. Trying to escape the fog, he came dangerously close to an antenna tower owned by Shell. Although Jordan succeeded in avoiding the tower, the plane struck a set of its supporting guy wires and crashed onto Louisiana soil, killing Jordan instantly. ¹ Invoking Fed.R.Civ.P. 9(h), his widow and child seek damages in admiralty for his death from his employer, Pan Air, contending that the plane was a "vessel" and that Jordan was a member of its crew, hence entitled to the benefits of the Jones Act, 46 U.S.C. § 688 (1976). The plaintiffs also assert maritime tort claims for the alleged unseaworthiness of the plane. Finally, they invoke diversity jurisdiction to support claims against Pan Air for the alleged defective and unreasonably dangerous nature of the aircraft, and against Shell for "gross negligence". ² Finding claims arising from the aircraft crash not to be within its maritime jurisdiction, the district court granted Pan Air's motion to dismiss all "admiralty claims" against it. ³ In his opinion, the judge also concluded that Jordan was not a Jones Act seaman.

81-3675 Kolb v. Texaco, Inc.

81-3638 Petroleum Helicopters, Inc. v. Pool Co.

Walter Kolb was a helicopter pilot regularly engaged in transporting workers and equipment from the Louisiana mainland to and between drilling rigs and platforms located in the Gulf of Mexico. He was assigned to transport a passenger to work on a fixed platform located on the outer Continental Shelf, owned by Texaco, whose well was being "worked over" by Pool Company. A crane owned by Texaco was situated on the platform; its crane arm extended over the Gulf, and a crane ball hung from the crane arm. After landing on the helipad and discharging the passenger, Kolb took off from the platform. As he departed, the helicopter's main rotor blade struck the crane ball, causing the helicopter to crash into the Gulf. Mrs. Kolb sued Texaco and the other company engaged in work on the platform in admiralty for damages sustained as a result of her husband's death; Petroleum Helicopters sought recovery, also in admiralty, for the loss of its aircraft. Mrs. Kolb has abandoned any claim under the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1356 (1976 & Supp. III 1979) (OCSLA), that would be determined by the application of Louisiana law. Petroleum Helicopters invokes diversity as well as admiralty jurisdiction. The district judge dismissed both claims, insofar as they invoked admiralty jurisdiction, for want of jurisdiction. ⁴

II.

In 1813, Justice Story, on Circuit, stated that "(i)n regard to torts ... the jurisdiction of the admiralty is exclusively dependent upon the locality of the act." ⁵ The federal courts, therefore, defined the scope of maritime jurisdiction over tort claims solely by reference to locality until the Supreme Court reset the compass, at least with regard to claims arising out of aircraft crashes, in 1972. In Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Court first considered whether the principles formulated a century and a half earlier for those who go down to the sea in ships apply to air transportation. We, therefore, examine that decision with care.

Justice Stewart, writing for a unanimous court, spelled out the holding of Executive Jet in concluding the opinion: "in the absence of legislation to the contrary, there is no federal admiralty jurisdiction over aviation tort claims arising from flights by land-based aircraft between points within the continental United States." Id. at 274, 93 S.Ct. at 507, 34 L.Ed.2d at 471 (emphasis added). This holding does not directly dispose of any of the claims under review here but its underlying rationale is crucial and the quoted language suggests three of the questions we must consider: (1) What is "legislation to the contrary"? (2) What is the meaning of the restrictive adjectival phrase, "land-based aircraft"? (3) Does jurisdiction extend to flights that are to or from points outside the continental land mass?

A. The Smith Claim

At the outset, we note that the Smith claim comes closest of those under review to falling directly under Executive Jet's holding. No assertion has been made that "legislation to the contrary" ⁶ exists to bring the Smith plaintiffs' claim within the admiralty jurisdiction. Furthermore, the flight that crashed was apparently "between points within the continental United States." ⁷ Therefore, if Jordan's aircraft were considered "land-based," it is at least possible ⁸ that the district judge could have dismissed the Smiths' admiralty claims under the literal language of Executive Jet in its narrowest possible reading. For the purposes of this appeal, however, we assume that Jordan's seaplane, which was capable both of landing on and taking off from water in normal, nonemergency use, was not a "land-based" aircraft. Therefore, to decide this case, we go beyond Executive Jet's precise holding to its underlying rationale.

Smith argues that admiralty jurisdiction extends to all claims having a functional relationship to maritime commerce, regardless of the locality of the tort. In Executive Jet, a jet aircraft struck a flock of seagulls during takeoff from a Cleveland, Ohio, airport and crashed into Lake Erie. The plaintiffs sought to maintain a suit in admiralty because the plane had crashed into navigable waters. The Supreme Court first discussed the serious difficulties with the traditional test for admiralty jurisdiction because of that test's focus solely on the locality of the accident. The Court noted the difficulty of applying that test in "perverse and casuistic borderline situations;" the virtual absurdity of applying the test, and the "full panoply of the substantive admiralty law," to injuries to swimmers at a public beach; and the inadvisability of turning jurisdiction on the fortuity that the aircraft finally hit land rather than navigable water, or vice versa. ⁹ After considering observations by courts, commentators, and the American Law Institute and discussing congressional extension of admiralty jurisdiction to land structure injuries caused by vessels, the Court stated: "in determining whether there is admiralty jurisdiction over a particular tort or class of torts, reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test." ¹⁰

Some commentators, suggesting deficiencies and inconsistencies in any test that relies on locality at all, read Executive Jet as commanding, or at least permitting, the determination of admiralty jurisdiction solely by the relationship of the "wrong" to traditional maritime activity. ¹¹ They note that, for example, the traditional maritime remedy of maintenance and cure has always been extended to disabilities arising from injuries suffered on land; that the Admiralty Extension Act expands maritime jurisdiction to include damage to land structures caused by vessels on navigable waters; and that "the doctrine of unseaworthiness has been extended to permit a seaman or a longshoreman to recover from a ship owner for injuries sustained wholly on land, so long as those injuries were caused by defects in the ship or its gear." ¹²

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