Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 20706.

Citation448 F.2d 151
Decision Date24 August 1971
Docket NumberNo. 20706.,20706.
PartiesEXECUTIVE 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.
CourtUnited 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.

PHILLIPS, Chief Judge.

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.

"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 jurisdiction. 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 18 L.Ed. 125; Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388, 397 7 S.Ct. 254, 30 L.Ed. 447; Cleveland Terminal & V. R. Co. v. Cleveland Steamship Co., 208 U.S. 316, 319 28 S.Ct. 414, 52 L.Ed. 508; Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U.S. 52, 59 34 S.Ct. 733, 58 L.Ed. 1208; State Industrial Comm\'n of State of New York v. Nordenholt Corp., 259 U.S. 263, 272 42 S.Ct. 473, 66 L.Ed. 933; Smith & Son v. Taylor, 276 U.S. 179, 181 48 S.Ct. 228, 72 L.Ed. 520; compare Vancouver S. S. Co. v. Rice, 288 U.S. 445, 448 53 S.Ct. 420, 77 L.Ed. 885."

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:

"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 she fell 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, D.C. 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 jurisdiction, asked these pertinent questions (90 Fed. p. 113): `If a passenger, standing at the gangway, for the purpose of alighting, were disturbed 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 cause 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 jurisdiction whether the injury culminated on the stringpiece of the wharf or in the water.\' See, also, The Atna, D.C. 297 F. 673, 675, 676; The Brand, D.C. 29 F.2d 792." Id., 295 U.S. at 652-653, 55 S.Ct. at 886.

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:

"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 compensation act of the State of Michigan. His employer, the Port Huron Terminal Company, contended that the accident occurred upon navigable water and that the state law did not apply. The defense was overruled 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. Minnie v. Port Huron Terminal Co. 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 48 S.Ct. 228, 72 L.Ed. 520. 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 U.S. 450, 460 19 S.Ct. 9, 43 L.Ed. 234. The substance and consummation of the occurrence which gave rise to the cause of action took place on land.\' Id., 276 U.S. p. 182 48 S.Ct. 228, 229."

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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