Lacey v. LW Wiggins Airways

• Citation: 95 F. Supp. 916
• Decision Date: 05 January 1951
• Docket Number: No. 50-44.,50-44.
• Parties: LACEY v. L. W. WIGGINS AIRWAYS, Inc.
• Court: U.S. District Court — District of Massachusetts

95 F. Supp. 916

LACEY v. L. W. WIGGINS AIRWAYS, Inc.

No. 50-44.

United States District Court D. Massachusetts.

January 5, 1951.

Joseph P. Rooney and Paul V. Power, Boston, Mass., for libellant.

Kneeland & Splane, Boston, Mass., for respondent.

McCARTHY, District Judge.

This libel, brought pursuant to the Death on the High Seas Act, 46 U.S.C.A. § 761ff, alleges that the respondent corporation was engaged by one Van Arsdale, doing business as Cape Cod Flying Service, to make a one hundred hour inspection and engine check on a Piper Clipper airplane. The respondent's work, in the course of which various engine parts were installed, was done at the Logan International Airport in Boston, and on its conclusion, Van Arsdale was assured that the aircraft was in good repair. The libellant's intestate, Daniel W. Lacey, a pilot-employee of the Flying Service, took off in the plane from Boston, his destination being Provincetown across Massachusetts Bay.

At a point on the high seas beyond a marine league from shore, the engine failed and the craft went down. Lacey's body was recovered from the water by the Coast Guard. The airplane was recovered also.

The libel alleges in Paragraph First that the craft was forced into the water "as a result of the wrongful act, neglect and default of the respondent, as hereinafter described * * *", and in Paragraph Fourth that the "engine breakdown had caused the engine failure resulting in the death of the libellant's intestate. It was the result of the respondent's wrongful act, neglect and default in failing to discover this defect in the aircraft engine or to repair or to notify the owner of said aircraft of this defect that the said Daniel W. Lacey met his death by exposure * * *."

It is contended, therefore, that failure to inspect the plane, or negligent inspection of the plane, or failure to inform the owner of a defect discovered, while the craft was on land, resulted in an accident on the high seas which caused the death of the libellant's intestate.

Exception to the libel is taken under Admiralty Rule 27, 28 U.S.C.A. All facts appearing in the libel, therefore, are assumed to be true. The Blue Mountain, D.C., 20 F.Supp. 165; The Vulcania, D.C., 32 F.Supp. 815.

Title 46 U.S.C.A. § 761 provides: "Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State * * *, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States * * *."

The respondent does not deny that this statute applies to airplane accidents on the high seas. Wyman v. Pan American Airways, Inc., 181 Misc. 963, 43 N.Y.S.2d 420; Choy v. Pan American Airways, Inc., 1941 A.M.C. 483. The exception is based, rather, on the ground that the statute requires that the wrongful act, neglect or default must have occurred on the high seas. Respondent contends that from the facts alleged in the libel it appears that, while the death occurred on the high seas, the wrongful act, neglect or default did not, and that the libel therefore does not state a cause of action within the jurisdiction of the court.

The disposition of the exception to the libel depends upon the proper interpretation of the statute quoted above. The question is not without difficulty.

It appears that the phrase "occurring on the high seas", as continued in § 761 of Title 46 U.S.C.A., is adjectival of "wrongful act, neglect, or default", rather than of "death". This interpretation is buttressed by decisions involving death statutes in which courts have held that an admiralty court has jurisdiction if the deceased has been injured on the high seas and has died on land. Vancouver S.S. Co. v. Rice, 288 U.S. 445, 448, 53 S.Ct. 420, 77 L.Ed. 885; The Chiswick, 5 Cir., 231 F. 452; The Samnanger, D.C., ...