Roberts v. United States

• Decision Date: 20 June 1974
• Docket Number: No. 73-2260.,73-2260.
• Citation: 498 F.2d 520
• Parties: Carolyn ROBERTS, Individually, et al., Plaintiff-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

498 F.2d 520 (1974)

Carolyn ROBERTS, Individually, et al., Plaintiff-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 73-2260.

United States Court of Appeals, Ninth Circuit,

June 6, 1974.

Rehearing Denied June 20, 1974.

Neil H. Koslowe (argued), Morton Hollander, James C. Hair, Jr., of Civil Div., Appellate Section, U. S. Dept. of Justice, Washington, D. C., for defendant-appellant.

Al Schallau (argued), Ian Herzog, Craig S. Dummit, Los Angeles, Cal., for plaintiff-appellees.

Before ELY, HUFSTEDLER and TRASK, Circuit Judges.

TRASK, Circuit Judge:

The United States appeals from an order denying its motion for dismissal of the appellees' complaint. Because the motion raised a close jurisdictional question the District Court certified its order for an interlocutory appeal under 28 U.S.C. § 1292(b). The United States filed an application in this court to prosecute that appeal and we granted the application. Upon review of the applicable authorities we conclude that the court erroneously denied the Government's motion to dismiss.

This is a wrongful death action arising out of the crash of a Flying Tiger Lines cargo plane on July 27, 1970. The plane was approaching the Naha Air Base, Okinawa, for a ground controlled landing when it crashed in navigable waters 1500 to 1900 feet short of the runway. Charging that United States Air Force personnel negligently directed the landing and subsequent rescue operations, the widow and three minor children of the plane's navigator (appellees) filed suit against the United States on November 21, 1972.¹ Their original complaint was brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., and sought $2,500,000 damages for wrongful death. The United States, however, successfully argued that because the tort was alleged to have occurred in Okinawa, the action was therefore barred by section 2680(k) of the FTCA which excludes "any claim arising in a foreign country." The District Court accordingly dismissed the suit but granted the appellees leave to amend.

In their subsequently amended complaint the appellees relied upon the same basic facts but stated them somewhat differently. The first cause of action was still based upon the FTCA. However, instead of alleging that the events occurred "at or near Naha Air Base, Okinawa, Ryukyu Islands" which would open the claim to the "foreign country" exclusion of section 2680(k), the complaint alleged that the events occurred "while the aircraft was making an approach to landing . . . over the high seas crashing into navigable waters . . . ." Thus, the claim was asserted to be "maritime." A second cause of action was asserted as a "Maritime Wrongful Death" under the general admiralty and maritime jurisdiction, Fed.R.Civ.P. 9(h), and a third cause of action was alleged under the "Death on the High Seas Act," 46 U.S.C. §§ 761-767.

The specific acts of negligence relied upon were the same as to each of the three claims: that the United States negligently directed the landing of the aircraft and the subsequent rescue operations of its passengers.

The United States again moved to dismiss the action, arguing that the aviation crash did not give rise to a maritime claim. Secondarily, the Government contended that even if maritime jurisdiction were appropriate, the appellees' suit against the United States was cognizable solely under the Suits in Admiralty Act (SIA), 46 U.S.C. §§ 741-752, and not the FTCA as averred. The District Court rejected both of these arguments and concluded that it had jurisdiction to entertain the appellees' suit as a maritime wrongful death action under the FTCA.

This appeal invites an examination of whether, under the circumstances shown here, an aviation tort claim is cognizable under maritime law. Preliminarily we note that if viewed as stating a "land" rather than a "maritime" tort, the appellees' complaint under the FTCA is indeed barred by 28 U.S.C. § 2680(k). See United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L. Ed. 3 (1949).² To therefore shift the locus of their claim from land to sea, the appellees rely upon two independent sources: the general maritime law, and a specific federal statute, the Death on the High Seas Act, 46 U.S.C. §§ 761-768.

As far as the general maritime law is concerned, Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) is necessarily the starting point in any effort to define a "maritime tort" in the aviation context. In Executive Jet the Supreme Court rejected the traditional locality test which found maritime jurisdiction whenever a tort occurred in navigable waters.³ A literal application of this test over the years had brought aviation tort cases within admiralty jurisdiction depending, of course, upon where the aircraft crashed.⁴ However, in Executive Jet the Supreme Court criticized the fortuity of this jurisdictional classification and announced a new twofold test for determining whether a maritime tort was pleaded. The Court retained the navigable waters locality prerequisite but added a maritime "nexus" requirement:

". . . We conclude that the mere fact that the alleged wrong `occurs\' or `is located\' on or over navigable waters—whatever that means in an aviation context—is not of itself sufficient to turn an airplane negligence case into a `maritime tort.\' It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity." Id. 409 U.S. at 268.

The maritime claims asserted in Executive Jet arose from the crash of a chartered jet en route from Cleveland, Ohio to Portland, Maine. The aircraft struck and ingested a flock of seagulls on take-off and crashed in the navigable waters of Lake Erie. The Supreme Court had little difficulty in concluding that "a flight that would have been almost entirely over land and within the continental United States" bore an insufficient relationship with traditional maritime activity. However, the Court declined to generalize as to other aviation tort contexts, commenting instead:

"We need not decide today whether an aviation tort can ever, under any circumstances, bear a sufficient relationship to traditional maritime activity to come within admiralty jurisdiction in the absence of legislation. It could be argued, for instance, that if a plane flying from New York to London crashed in the mid-Atlantic, there would be admiralty jurisdiction over resulting tort claims even absent a specific statute. An aircraft in that situation might be thought to bear a significant relationship to traditional maritime activity because it would be performing a function traditionally performed by water-borne vessels." Id. 409 U.S. at 271.

The Supreme Court thus expressly reserved the question which is before us now.⁵

An examination of the record provides several bases for distinguishing the air accident in this case from the crash which occurred in Executive Jet. According to the appellees' amended complaint, the Flying Tiger Lines aircraft was engaged in transporting cargo between Los Angeles and Viet Nam; Okinawa was merely one of a number of intermediate stopping points. Geographic realities, therefore, do not make the cargo plane's contact with navigable waters entirely "fortuitous." More significantly, the transoceanic transportation of cargo is an activity which is readily analogized with "traditional maritime activity." Indeed, before the advent of aviation, such shipping could only be performed by waterborne vessels. We therefore do not interpret Executive Jet, supra, as precluding a maritime action on the facts of this case.

The appellees' alternate reliance upon the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 761-768, is more questionable. Although the Supreme Court has explicitly sanctioned the bringing of aviation wrongful death cases under a literal construction of the DOHSA,⁶ the facts alleged in the appellees' own brief cast doubt upon the statute's applicability. The appellees concede that the alleged tort occurred a maximum of 1900 feet from the Okinawa shore, i. e., in presumably foreign territorial waters. In view of the somewhat ambiguous language of the statute itself and the apparent lack of authority on the point, we hesitate to conclude whether a tort occurring within foreign territorial waters comes within the purview of the Death on the High Seas Act.⁷

However, we find it unnecessary to resolve this question since our acceptance of appellees' maritime tort designation on either this or Executive Jet ground would require recognition of another jurisdictional obstacle prohibiting this suit.

It is axiomatic that Congressional waiver of sovereign immunity is a prerequisite to any suit brought against the United States under admiralty law or otherwise. Recognizing this fact, the appellees rely upon the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., as an expression of governmental consent to be sued.⁸ The United States, however, contends that maritime claims against the Government arising under either the Death on the High Seas Act or the general maritime law are cognizable solely under two specific federal admiralty statutes, the Suits in Admiralty Act (SIA), 46 U.S.C. §§ 741-752 and the Public Vessels Act, 46 U.S.C. §§ 781-790. Neither side disputes the fact that jurisdiction under the FTCA and the two admiralty statutes is mutually exclusive, 28 U.S.C. § 2680(d).

The District Court, believing that the admiralty statutes extended only to claims involving United States vessels or cargo concluded that the appellees' maritime claim was maintainable solely under the FTCA. Prior to 1960, this interpretation of the intersecting scope of the statutes would have been correct.⁹ However, in 1960, Congress amended section 742 of the SIA by deleting the language which restricted the statute to claims involving...