Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 20706.
Citation | 448 F.2d 151 |
Decision Date | 24 August 1971 |
Docket Number | No. 20706.,20706. |
Parties | EXECUTIVE JET AVIATION, INC., and Executive Jet Sales, Inc., Plaintiffs-Appellants, v. CITY OF CLEVELAND, OHIO and Phillip A. Schwenz, Defendants and Third-Party Plaintiffs-Appellees, Howard E. Dicken, Defendant-Appellee, v. UNITED STATES of America, Third-Party Defendant-Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Phillip D. Bostwick, Washington, D. C., Shaw, Pittman, Potts, Trowbridge & Madden, Washington, D. C., Ron Tonidandel, Spieth, Bell, McCurdy & Newell, Cleveland, Ohio, on the brief, for appellants.
Edward D. Crocker, Cleveland, Ohio, Arter & Hadden, Cleveland, Ohio, on the brief, for City of Cleveland and Phillip A. Schwenz.
James C. Hair, Jr., Department of Justice, Washington, D. C., William D. Ruckelshaus, Asst. Atty. Gen., Robert V. Zener, Atty., Department of Justice, Washington, D. C., Robert B. Krupansky, U. S. Atty., Cleveland, Ohio, on the brief, for Howard E. Dicken.
Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.
This appeal grows out of a 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 appellant 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 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 airport; Phillip A. Schwenz, the airport manager on the date in question; and Howard E. Dickens the air traffic controller 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, 55 S.Ct. 885, 886, 79 L.Ed. 1633.
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 Terminal Co., 295 U.S. 647, 55 S.Ct. 884, 79 L.Ed. 1631. 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.1 The passenger alleged that the fall was caused by negligent placement or construction of the ship's gangplank. The Supreme Court said:
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, 295 U.S. 647-649, 55 S.Ct. at 884:
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, 48...
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