Noel v. United Aircraft Corp., 1781.
| Decision Date | 24 January 1961 |
| Docket Number | No. 1781.,1781. |
| Citation | 191 F. Supp. 557 |
| Parties | Ruth M. NOEL et al. v. UNITED AIRCRAFT CORP. |
| Court | U.S. District Court — District of Delaware |
Murray M. Schwartz, Wilmington, Del., and Feldman & Feldman, Philadelphia, Pa., for plaintiffs.
William Prickett (of Prickett & Prickett), Wilmington, Del., for respondent.
This is an action based upon negligence wherein the estate of the decedent (plaintiffs) seeks to recover for the decedent's death which occurred when a Venezuelan airliner on which he was a passenger crashed into the sea more than one marine league off the shore of New Jersey. This suit is not brought against the Venezuelan airline, but against the manufacturer of the propellers with which the ship was equipped.
Some two years after the action was filed and after a great deal of discovery had been had, the plaintiffs moved to amend the complaint by adding a cause of action based upon an implied breach of warranty of fitness.
The defendant has interposed a number of objections to the granting of the amendment, only one of which will be considered at this time. It is the defendant's contention that the plaintiffs' sole right of action is based upon the Venezuelan law which precludes recovery under American law.
At the outset it should be observed that the plaintiffs "claim the benefit of all the laws of the United States of America and the following laws of Venezuela: The Civil Action Law of April 12, 1955 and the Civil Code of Venezuela." Such a conclusory type of pleading is not permissible under Admiralty Rule 22, 28 U.S.C.A. Fernandez v. Linea Aeropostal Venezolana, D.C., 156 F.Supp. 94. But the important objection to the amendment is that the Venezuelan law controls here and no action based upon an implied breach of warranty can be maintained unless, of course, Venezuela permits recovery upon that ground in a situation such as this.
This action is predicated upon the Death on the High Seas Act, 46 U.S.C. A. §§ 761-767. As I read the Act, § 761 provides a cause of action for an American citizen killed upon the high seas1 under the American flag while § 764 provides that whenever an American citizen is killed upon the high seas under a foreign flag his estate can recover damages based upon the law of that flag in a United States Court.
Plaintiffs' difficulty here is that the decedent was on an airliner flying a foreign flag when he met his death. According to all the authorities, the place where this tort occurred was the scene of the crash on the high seas and the law of Venezuela controls. The Scotland, 105 U.S. 24, 26 L.Ed. 1001; The Bourgoyne, 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973; The Titanic, 233 U.S. 718, 34 S.Ct. 754, 58 L.Ed. 1171; The Vestris, D.C., 53 F.2d 847; The Restatement, Conflicts, Sec. 404. Accordingly, if the law of Venezuela permits recovery for a wrongful death, then this action will be governed by the Venezuelan law.2
The plaintiffs cite Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 as holding that, in such situations as this, there is a...
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Noel v. Linea Aeropostal Venezolana
...determined by choice of law concepts, especially if it results in foreclosing any remedy for the death. See Noel v. United Aircraft Corp., 191 F. Supp. 557, 558 n. 2 (D.Del.1961); Bergeron v. Koninklijke Luchtvaart Maatschappij, N.V., 188 F.Supp. 594, 597 (S.D.N.Y.1960), appeal dismissed, 2......
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Safir v. Compagnie Generale Transatlantique
...Iafrate v. Cie. Generale Transatlantique, supra; Bergeron v. Koninklijke Luchtvaart Maatschappij, N.V. supra. Cf. Noel v. United Aircraft Corp., D.Del. 1961, 191 F.Supp. 557. The plaintiff has not pleaded French law, as the cases appear to require; defendant has not asserted it; and it is n......
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CAB v. Island Airlines, Inc.
...would not limit the authority of the state * * *." Emphasis added 207 U.S. at 403, 28 S.Ct. at 134. Also, in Noel v. United Aircraft Corp., 191 F.Supp. 557, 558 (D.C.Del.1961): "The decedent was on an airliner flying a foreign flag Venezuela when he met his death. According to all the autho......
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McPherson v. Steamship South African Pioneer, 8305.
...vessel which collides with a foreign vessel. There is, admittedly, some suggested support for this argument. Noel v. United Aircraft Corp., 191 F.Supp. 557 (D.Del., 1961); Bergeron v. Koninklijke Luchtvaart Maatschappij, N.V., 188 F. Supp. 594 (S.D.N.Y., 1960); Norris, The Law of Seamen, se......