Gabel v. Hughes Air Corp.

• Decision Date: 12 October 1972
• Docket Number: M.D.L. No. 106.,Civ. A. No. 71-1595-PH
• Citation: 350 F. Supp. 612
• Court: U.S. District Court — Central District of California
• Parties: Glenda GABEL, Individually, et al., Plaintiffs, v. HUGHES AIR CORP., a Delaware Corporation, doing business under the fictitious firm name and style of Air West and Hughes Air West, Defendants.

350 F. Supp. 612

Glenda GABEL, Individually, et al., Plaintiffs, v. HUGHES AIR CORP., a Delaware Corporation, doing business under the fictitious firm name and style of Air West and Hughes Air West, Defendants.

Civ. A. No. 71-1595-PH, M.D.L. No. 106.

United States District Court, C. D. California.

October 12, 1972.

Lord Bissel & Brook, Chicago, Ill., and Shield & Smith, Los Angeles, Cal., for Hughes Air Corp.

Robert L. Meyer, U. S. Atty., and James Stotter, II, Asst. U. S. Atty., Los Angeles, Cal., for United States.

Vincent H. D. Abbey, Seattle, Wash., Belcher Offices, Los Angeles, Cal., Bronson Offices, Lawrason Driscoll, San Francisco, Cal., Butler, Jefferson & Fry, Hart & Mieras, Lawler, Felix & Hall, Loeb & Loeb, Los Angeles, Cal., Vincent Pettit, Inglewood, Cal., Garth S. Pincock, Pocatello, Idaho, Prince Offices, Ray, Quinney & Nebeker, Salt Lake City, Utah, Eugene J. Craig, Seattle, Wash., Jay H. Davison, Covina, Cal., Demanes & Sanders, Burlingame, Cal., Irving S. Feffer, Los Angeles, Cal., Feist, Vetter, Knauf & Loy, Oceanside, Cal., Offices of Ned Good, Goodman Hirschberg & King, Magana & Cathcart, Margolis Offices, John T. McTernan, Los Angeles, Cal., Miller Offices, Long Beach, Cal., Aaron P. Moss, Van Nuys, Cal., Arthur H. Nielsen, Salt Lake City, Utah, Oliver Offices, Richard L. Oliver, Los Angeles, Cal., Ben Peterson, Pocatello, Idaho, Roberts, Poole & Robson, Theron P. Roberts, Boise, Idaho, Jerry N. Roth, Beverly Hills, Cal., Lloyd E. Somogyi, San Luis Obispo, Cal., Sonenshine & Armstrong, Newport Beach, Cal., Walkup Offices, Terence J. O'Reilly, San Francisco, Cal., for plaintiffs.

MEMORANDUM DENYING MOTION TO DISMISS

PEIRSON M. HALL, District Judge.

The above-numbered action is brought by the next of kin against Hughes Air West for the death of Keith A. Gabel, a passenger on Air West Flight 706 from Los Angeles, California, destined for Salt Lake City, Utah, which collided with a Marine jet on the evening of June 6, 1971, in the vicinity of Duarte, California, killing all 44 passengers, the 5 crew members of the Air West plane and pilot of the military jet. The co-pilot of the military jet parachuted to safety.

Within a month after the crash the plaintiffs in the above-entitled matter filed a petition for the preservation of testimony, under F.R.Civ.P. 27, which is Case No. 71-1431 of this Court, and filed a claim with the United States under the Federal Tort Claims Act upon which no action was taken within six months, resulting in the third action by the plaintiffs, No. 72-1-PH.

There were 50 deaths, but there are more than 60 lawsuits filed, so far, in this District and some in other Districts which have been transferred under the Multidistrict Litigation Statute, 28 U.S. C. § 1407, to this Court and to this Judge.¹

Jurisdiction of plaintiffs' claim for relief in this case against Air West is based upon the Federal Question Statute, 28 U.S.C. § 1331:

"(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States."

the Regulation of Commerce Statute, 28 U.S.C. § 1337:

"The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies."

and Diversity of Jurisdiction Statute, 28 U.S.C. § 1332.

Plaintiffs asserted that, of necessity, the United States as the owner of the military jet would, and it has since, become a party defendant in this litigation jurisdiction of which could only be had in the federal courts, thus giving this Court pendent jurisdiction of the action against Air West.

The motion to dismiss of Air West asserts generally that there is no federal question under 28 U.S.C. § 1331(a) and that no actionable right is conferred under the Federal Aviation Act of 1958 regulating air commerce which would give federal jurisdiction under 28 U.S.C. § 1337; and, by affidavit, asserts Hughes Air West is a corporation organized under the laws of Delaware and its principal place of business is in California, and thus there is no diversity under 28 U.S.C. § 1332(c).

By tacit understanding between the plaintiffs and Air West the motions to dismiss were put off calendar in order to permit discovery to proceed. This memorandum is intended to serve as the law of the case in all of the cases filed arising out of that aircrash, which assert jurisdiction under 28 U.S.C. §§ 1331(a) and 1337, whether motions to dismiss have been filed by Air West or not. The cases are now at a posture which requires decision on the motions.

The tests as to whether or not a case arises under 28 U.S.C. §§ 1331 or 1337 are set out in Gully v. First National Bank, 299 U.S. 109, at 112-113, 57 S.Ct. 96, at 97, 98, 81 L.Ed. 70:

"To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. * * * The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. * * * A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto, * * * and the controversy must be disclosed upon the face of the complaint, . . ."

After review of all of the authorities cited by the parties and those independently found by the Court, it is concluded (1) that the Federal Aviation Act of 1958 (72 Stats. 731 et seq., 49 U.S.C. § 1301 et seq.) imposed the duty upon the defendant carrier to perform its services "with the highest possible degree of safety in the public interest" (49 U.S.C. § 1431(b), and (2) so do the regulations promulgated by the Federal Aviation Administration to carry out the terms of the Act, viz., Title 14, Code of Federal Regulations, Sections 91.9, 91.65, 91.67, and 91.71, each of which are set out in the margin.²

It is further concluded that a violation of a duty imposed by the Act creates a cause of action in favor of one who is injured or damaged by the death of a person resulting from such violation; and that this Court has jurisdiction of such actions under 28 U.S.C. § 1337 and 28 U.S.C. § 1331.

We first have reference to the Act, subchapter VI, which contains the pertinent sections involved in this motion and is entitled "Safety Regulations of Civil Aeronautics."³

Section 1421 of 49 U.S.C. deals with the powers of the Administrator. Subdivision 1421(a)(1) thereof authorizes the Administrator and makes it "his duty to promote safety of flight of civil aircraft"; by (a)(2) establish "minimum standards * * * in the interest of safety"; by (a)(3) to promulgate reasonable rules and regulations "in the interest of safety" which govern the inspection, the equipment, the facility and the like; by (a)(4) to promulgate reasonable rules and regulations governing the reserve supply of aircraft, aircraft engines and the like "in the interest of safety," and by (a)(5) to promulgate reasonable rules and regulations governing the maximum hours of work of airmen and other employees of air carriers "in the interest of safety," and by (a)(6) to promulgate such other reasonable rules and regulations as he may find necessary to provide adequately "for national security and safety in air commerce."

Subdivision (b) of 49 U.S.C. § 1421 has the provision hereinbefore quoted imposing upon air carriers the duty to perform their services with the highest possible degree of safety and provides that the Administrator "shall exercise and perform his powers and duties under this chapter in such manner as will best tend to reduce or eliminate the possibility of, or recurrence of, accidents in air transportation."

By subdivision (c) of 49 U.S.C. § 1421 he may grant exemptions "in the public interest."

By section 1422 of 49 U.S.C., (a)(b) the Administrator is authorized to issue certificates to certain people in and about the aircraft industry if he finds after investigation that the person is able to perform the required duties, which certificate shall contain the terms specified in that section, "and other matters as the Administrator may determine to be necessary to assure safety in air commerce."

In section 1423(a)(2) of 49 U.S.C. the Administrator is authorized to issue certificates for aircraft and appliances as is reasonably required "in the interest of safety" and he may require tests as he deems necessary in the interest of safety of various types of equipment, and is authorized to issue a certificate only when he finds that such equipment is of proper * * * "performance for safe operation," and may insert in this certificate other terms as he deems "as are required in the interest of safety."

By subdivision (b) of 49 U.S.C. § 1423 he is authorized to issue production certificates, and, "may prescribe in any such production certificate," not only the duration thereof but "such other terms, conditions and limitations as are required in the interest of safety."

By subdivision (c) of 49 U.S.C. § 1423 he may issue air worthiness certificates for aircraft if he finds "that the aircraft is in condition for safe operation."

Under the provisions of section 1424, Title 49 U.S.C., he is empowered to issue air carrier operating certificates and to "establish minimum safety standards for the operation of the air carrier."

By section 1425 it is made "the duty of every person engaged in operating * * * equipment to observe and comply with the requirements of this chapter relating thereto, and the orders, rules and regulations issued thereunder."

By subsection (b) of 1425 the Administrator is authorized to employ inspectors, "who shall be charged with the duty" of inspecting aircraft "in use" and reporting...