Lowe v. Trans World Airlines, Inc.

• Citation: 396 F. Supp. 9
• Decision Date: 23 June 1975
• Docket Number: No. 75 Civ. 790.,75 Civ. 790.
• Parties: Elisheva LOWE, surviving wife of Steven Ralph Lowe, also known as Steven Lowe and Steven R. Lowe, Deceased, on behalf of herself and on behalf of Ariel Theodore Chanan Lowe, the surviving infant child of the Deceased, and as Administratrix of the Estate of Steven R. Lowe, Deceased, et al., Plaintiffs, v. TRANS WORLD AIRLINES, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

396 F. Supp. 9

Elisheva LOWE, surviving wife of Steven Ralph Lowe, also known as Steven Lowe and Steven R. Lowe, Deceased, on behalf of herself and on behalf of Ariel Theodore Chanan Lowe, the surviving infant child of the Deceased, and as Administratrix of the Estate of Steven R. Lowe, Deceased, et al., Plaintiffs, v. TRANS WORLD AIRLINES, INC., et al., Defendants.

No. 75 Civ. 790.

United States District Court, S. D. New York.

June 23, 1975.

Speiser & Krause, New York City, for plaintiffs.

Bigham, Englar, Jones & Houston, New York City, for defendants; John J. Martin, New York City, of counsel.

MEMORANDUM

FRANKEL, District Judge.

Plaintiffs brought this action in the Supreme Court, New York County, to recover damages for themselves and others they represent on account of the deaths of two passengers in a crash on September 7, 1974, of a 707 jet aircraft owned and operated by defendant TWA. The complaint alleged that the airplane was on a regularly scheduled flight from Tel Aviv to New York City, with stops in Athens and Rome; that defendant Charles C. Tillinghast, TWA's Board Chairman and Chief Executive Officer, a New York citizen and resident, had been "responsible to direct and control inspection, operation, security and maintenance procedures * * * as well as determining security measures and safety policy" on TWA flights; that defendant J. Steele, "as Director of Security for TWA, was charged with providing for the safety and security of passengers * * * and for security measures and safety policy"; that the flight in question ended "when defendant's aircraft exploded and crashed into the Ionian Sea killing all aboard shortly after takeoff following a regularly scheduled stop in Athens, Greece en route to Rome, Italy"; that defendants were guilty of "negligence, gross negligence, wilful misconduct, wrongful acts and omissions and wilful and wanton negligence in various respects and * * * wilful misconduct in failing to take all necessary measures to avoid interference with the safety of the * * * passengers and in failing to prevent their wrongful deaths."

Evidently forecasting the central factual theory of plaintiffs—that a bomb planted while the aircraft was on the ground later exploded and caused the disaster—the complaint goes on to allege specific acts and omissions deviating from proper safety precautions, e. g., failure to inspect baggage and freight properly; failure to require a "cooling off" period before loading freight and baggage "in order to prevent use of a timed explosive device on said flight"; failure to follow testing and inspection procedures that would "thwart an attempted bomb placement on the aircraft"; omission of suitable precautions "after a bombing attempt was made on the same number flight at an earlier date"; and other allegations along similar lines.

In a second cause of action, against TWA alone, plaintiffs invoke the Warsaw Convention and the Montreal Agreement, claim the carrier is absolutely liable, and seek the upper limit of $75,000 each for the respective claimants under those treaties.

Defendants removed the case to this court on a petition under 28 U.S.C. § 1441(a) and (b) asserting that the case is within our original (and exclusive) jurisdiction under the Death on the High Seas Act, ("DOHSA"), 46 U.S.C. § 761,^* because the airplane crashed at a point in the Ionian Sea 100 miles west of Araxos, Peleponnesus, Greece. Plaintiffs have moved to remand. Defendants have cross-moved either for dismissal on the ground of the state court's initial lack of jurisdiction or for retention of the case in admiralty on our nonjury calendar. The resulting issues, explored in learned and challenging papers on both sides, reflect something of the price and the rewards of our federal jurisprudence. Without pretending to a thorough or exhaustive treatment, the court will outline the reasons leading to the remand plaintiffs seek.

1. Plaintiffs' initial ground for their motion is not sustained. They argue that (a) the removal papers themselves asserted exclusive federal jurisdiction; (b) this meant, of course, an absence of state jurisdiction; (c) the removal jurisdiction, being derivative from the state's, Freeman v. Bee Machine Co., 319 U.S. 448, 449, 63 S.Ct. 1146; 87 L.Ed. 1509 (1943); Lambert Run Coal Co. v. Baltimore & O. R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 66 L.Ed. 671 (1922), never came into being; and so there should be a remand. However that logic might appeal as an original proposition, there is a compelling weight of authority against it. On the foregoing premises, the proper course would be the dismissal defendants seek, not a remand. General Inv. Co. v. Lake Shore & Mich. So. Ry. Co., 260 U.S. 261, 287-88, 43 S.Ct. 106, 67 L.Ed. 244 (1922); Federal Sav. & Loan Ins. Corp. v. Quinn, 419 F.2d 1014, 1017 (7th Cir. 1969); Koppers Co. v. Continental Cas. Co., 337 F.2d 499, 501-02 (8th Cir. 1964); 1A J. Moore, Federal Practice ¶ 0.1573, at 86 & n. 6 (2d ed. 1974); C. Wright, Law of Federal Courts § 38, at 132 & n. 19 (2d ed. 1970).

2. The complaint says nothing whatever about DOHSA. It appears to allege primarily a dastardly wrong perpetrated on land (in Tel Aviv or Athens or wherever) and wrongful failure (also on land) to detect or prevent, or protect the passengers against, that deadly action. The complaint does not allege, as it was not required to, what law is thought to support the major claims in the first cause of action, but we may anticipate possibilities ranging at least from Israel to New York, via Greece and Italy. The point of main interest now is that neither cause of action counts at all upon DOHSA.

It is familiar law that "the party who brings a suit is master to decide what law he will rely upon. * * *" The Fair v. Kohler Die & Spec. Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). See also Warner Bros. Records, Inc. v. R. A. Ridges Dist. Co., 475 F.2d 262 (10th Cir. 1973) ; Brough v. United Steelworkers, 437 F.2d 748, 749 (1st Cir. 1971); M. & D. Simon Co. v. R. H. Macy & Co., 152 F.Supp. 212, 216 (S.D.N.Y. 1957); C. Wright, supra, at 134 & nn. 40-41. Having chosen deliberately and carefully to avoid DOHSA, are plaintiffs compelled to have their case within it and to sue only in the federal court? The question is not rhetorical; the answer is not perfectly clear. For cases with which today's decision may be inconsistent, see Jennings v. Goodyear Aircraft Corp., 227 F.Supp. 246, 247-48 (D. Del.1964); Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D. Cal.1954). This court concludes, however, after more brooding than it is useful to retrace, that plaintiffs may not be so confined.

Actions for wrongful death were known under the laws of many places before DOHSA. Admiralty courts, even before the rule of The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), was ended by Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S. Ct. 1772, 26 L.Ed.2d 339 (1970), would enforce such claims arising under the law of a pertinent domicile or flag. E. g., La Bourgogne, 210 U.S. 95, 138, 28 S.Ct. 664, 52 L.Ed. 973 (1908). And the courts of the states, exercising their general and presumptively sufficient jurisdiction, had a similar power. See the learning outlined by Judge Dooling in Safir v. Compagnie Générale Transatlantique, 241 F.Supp. 501, 506-08 (E.D.N. Y. 1965). While there is room for a contrary view, this court is unpersuaded that DOHSA was meant, or should be read,...