Noel v. Linea Aeropostal Venezolana, 346

• Decision Date: 19 June 1963
• Docket Number: No. 346,Docket 28061.,346
• Parties: Ruth M. NOEL and William 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, Plaintiffs-Appellants, v. LINEA AEROPOSTAL VENEZOLANA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

318 F.2d 710 (1963)

Ruth M. NOEL and William 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, Plaintiffs-Appellants, v. LINEA AEROPOSTAL VENEZOLANA, Defendant-Appellee.

No. 346, Docket 28061.

United States Court of Appeals Second Circuit.

Argued May 1, 1963.

Decided June 19, 1963.

Stephen M. Feldman, of Feldman & Feldman, Philadelphia, Pa. (Harry Norman Ball and Joseph G. Feldman, of Feldman & Feldman, Philadelphia, Pa., and Lipper, Shinn & Keeley, New York City, on the brief), for plaintiffs-appellants.

William J. Junkerman, of Haight, Gardner, Poor & Havens, New York City (James B. McQuillan, of Haight, Gardner, Poor & Havens, New York City, on the brief), for defendant-appellee.

Before CLARK, SMITH and HAYS, Circuit Judges.

CLARK, Circuit Judge.

The action before us, based on the diversity jurisdiction of the court below, was brought "at law" as one of a series of suits commenced by the plaintiffs for damages for the death of Marshal L. Noel in an airplane crash at sea. Thus see Noel v. Linea Aeropostal Venezolana, 2 Cir., 247 F.2d 677, 66 A.L.R.2d 997, cert. denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262; Noel v. Airponents, Inc., D.C.N.J., 169 F.Supp. 348; Noel v. United Aircraft Corp., D.C.Del., 191 F. Supp. 557; Noel v. Linea Aeropostal Venezolana, Curtiss-Wright Corp., and Lockheed Aircraft Corp., D.C.S.D.N.Y., Adm. 194-61. The district court dismissed this action on the ground that the admiralty court was the sole forum available to plaintiff.

It will be noted that another of plaintiffs' suits, brought on the admiralty side of the court below, is there pending. While the accident happened on June 20, 1956, the parties seem not near the trial on the merits which appears necessary for the conclusion of the litigation. Though it is never clearly stated, the procedural sparring which has occurred is really an effort by plaintiffs to recover the right of trial by jury, lost when the court held in earlier litigation that their action was only in admiralty under § 1 of the Death on the High Seas Act, 46 U.S.C. § 761, and when it presently so held, even though this action was brought under the law of Venezuela, made applicable by § 4 of that Act, 46 U.S.C. § 764.

Thus the plaintiffs are seeking to press the bifurcation of the court below into "sides" to advance successive theories of recovery of what is a single cause of action. In Bergeron v. Koninklijke Luchtvaart Maatschappij, 2 Cir., 299 F. 2d 78, we dismissed as interlocutory an appeal from a similar decision that admiralty had sole jurisdiction; and the same principle would seem applicable here to support the conclusion that there is no separate action available "at law." The ease of transfer from admiralty to the civil side and vice versa, to which we have often adverted, as in, e. g., McAfoos v. Canadian Pacific Steamships, Limited, 2 Cir., 243 F.2d 270, and cases cited at page 272, cert. denied 355 U.S. 823, 78 S. Ct. 32, 2 L.Ed.2d 39, makes the recognition of separate actions merely to assert differing...