Noel v. Airponents, Inc., Civ. A. No. 676-58.

• Decision Date: 23 December 1958
• Docket Number: Civ. A. No. 676-58.
• Citation: 169 F. Supp. 348
• Parties: Ruth M. NOEL and Wm. H. Frantz, Executors of the Estate of Marshal L. Noel, Deceased, and Sharon Noel and Marcia Noel, minors by their natural guardian, Ruth M. Noel, Patricia N. Reinhart and Ruth M. Noel, in her own right, Libellants, v. AIRPONENTS, INC., Respondent.
• Court: U.S. District Court — District of New Jersey

169 F. Supp. 348

Ruth M. NOEL and Wm. H. Frantz, Executors of the Estate of Marshal L. Noel, Deceased and Sharon Noel and Marcia Noel, minors by their natural guardian, Ruth M. Noel, Patricia N. Reinhart and Ruth M. Noel, in her own right, Libellants, v. AIRPONENTS, INC., Respondent.

Civ. A. No. 676-58.

United States District Court D. New Jersey.

December 23, 1958.

David J. Goldberg, Trenton, N. J. (Stephen M. Feldman, Philadelphia, Pa., of counsel), for libellants.

Purvis Brearley, Trenton, N. J. (Wm. J. Junkerman, New York City, of counsel), for respondent.

WILLIAM F. SMITH, District Judge.

This is a suit in admiralty in which the personal representatives of the decedent, as libellants, assert a claim for damages under Section 1 of the Death on the High Seas Act, 46 U.S.C.A. § 761 (First Cause of Action). The matter is before the Court at this time on the motion of the respondent, consistent with exceptions filed herein, to dismiss the libel on the ground that it fails to "state facts sufficient to constitute" a cause of action. The question presented for determination is a novel one in the field of aviation law.

The pertinent provisions of the section under which the claim for damages is here made reads as follows:

"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, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued."

This statute was enacted prior to the advent of international commercial air travel but has nevertheless been held applicable where, as here, death has been proximately caused by aircraft accidents in the airspace over the high seas. See the well-reasoned opinion of Judge Goodman in the case of Wilson v. Transocean Airlines, D.C., 121 F.Supp. 85; see also Higa v. Transocean Airlines, D.C., 124 F.Supp. 13; but see Noel v. Linea Aeropostal Venezolana, 2 Cir., 247 F.2d 677, 680, certiorari denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262, a companion case in which the question as to the applicability of the statute was not decided.

The essential facts, as pleaded in the libel, may be briefly summarized as follows: first, the decedent engaged passage and was ultimately a passenger on an aircraft of Venezuelan registry, owned and operated by Linea Aeropostal Venezolana; second, the aircraft departed from Idlewild Airport en route from New York to Caracas, Venezuela; third, the aircraft, at a point about thirty miles off the coast of Asbury Park, New Jersey, "burned, exploded, went out of control and crashed into the sea"; fourth, as a result of the accident the decedent suffered injuries from which he thereafter died; and fifth, the accident was caused by the negligence of the agents and servants of Airponents, Incorporated, the respondent herein, a New Jersey corporation, who had inspected and serviced the aircraft prior to its departure.

It would clearly appear from the summary of the facts that the tortious acts of the respondent, if the allegations of the libel are accepted as true, were committed within the territorial limits of the State of New York and that their disastrous consequence followed when the aircraft was in the airspace over the high seas. The alleged tort must therefore be regarded as maritime in nature. It has been held that a maritime "tort is deemed to occur, not where the wrongful act or omission has its inception, but where the impact of the act or omission produces such injury as to give rise to a cause of action." Wilson v. Transocean Airlines, supra, 121 F.Supp. 92. This is consistent with the general rule.

It is well established that ordinarily tort liability, and this includes liability for wrongful death, must be determined under the lex loci delicti, here the airspace over the high seas. However, the narrow question here presented is whether we should adopt as the law of the case the...