Scott v. Eastern Air Lines, Inc., No. 16328.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: HASTIE, GANEY and SEITZ, Circuit
• Citation: 399 F.2d 14
• Parties: Donald A. SCOTT, Administrator of the Estate of Thomas L. Moody, Deceased v. EASTERN AIR LINES, INC., Lockheed Aircraft Co., General Motors Corporation and United States of America. Eastern Air Lines, Inc., Appellant.
• Docket Number: No. 16328.
• Decision Date: 30 March 1967

399 F.2d 14 (1967)

Donald A. SCOTT, Administrator of the Estate of Thomas L. Moody, Deceased
v.
EASTERN AIR LINES, INC., Lockheed Aircraft Co., General Motors Corporation and United States of America. Eastern Air Lines, Inc., Appellant.

No. 16328.

United States Court of Appeals Third Circuit.

Argued January 20, 1967.

Decided March 30, 1967.

Reargued November 28, 1967.

Decided on Rehearing June 28, 1968.

Certiorari Denied December 9, 1968.

399 F.2d 15

COPYRIGHT MATERIAL OMITTED

399 F.2d 16

J. Grant McCabe, III, Philadelphia, Pa. (Rawle & Henderson, David L. Steck, Philadelphia, Pa., on the brief), for appellant

John R. McConnell, Philadelphia, Pa., (Ralph Earle II, John H. Lewis, Jr., Gregory M. Harvey, Morgan, Lewis & Bockius, Philadelphia, Pa., on the brief), for appellee.

Lee S. Kreindler, New York City, (Abram P. Piwosky, Philadelphia, Pa., David M. Hass, Philadelphia, Pa., Kreindler & Kreindler, Lee S. Kreindler, Paul S. Edelman, Milton G. Sincoff, Gerald A. Robbie, Jules Brody, New York City, on the brief), for amici curiae.

Milton M. Borowsky, Freedman, Borowsky & Lorry, Philadelphia, Pa., for amici curiae on rehearing.

Before HASTIE, GANEY and SEITZ, Circuit Judges.

Certiorari Denied December 9, 1968. See 89 S.Ct. 446.

OPINION OF THE COURT

HASTIE, Circuit Judge.

The plaintiff's decedent, a resident of Pennsylvania, returning home on a commercial Eastern Airlines plane, was killed when the plane crashed into the navigable waters of Boston Harbor just after taking off from Boston's Logan Airport on a flight to Atlanta, Georgia, with the first scheduled stop at Philadelphia. Alleging that the fatal accident was caused by negligence and contractual breach of warranty¹ on the part of Eastern, the decedent's administrator sought redress in the United States District Court for the Eastern District of Pennsylvania. Diversity of citizenship was alleged and the action was brought and heard on the "law side" of the district court.

The Massachusetts statutes concerning liability for wrongful death and the survival

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of causes of action, as in effect at the time of the accident, made one whose negligence has caused the death of another liable "in damages in the sum of not less than two thousand nor more than twenty thousand dollars, to be assessed with reference to the degree of his culpability" and also permit recovery of certain expenses incurred as a result of the wrong. Mass.Gen.Laws ch. 228, § 1(2) and ch. 229, § 2. In contrast, the Pennsylvania Wrongful Death and Survival Acts would authorize recovery of the present worth of the anticipated value of the decedent's estate as it would exist at the end of a normal lifetime. 12 P.S. §§ 1601-1604, 20 P.S. § 320.601

The case was tried in two stages. First, a jury considered the question of liability and found for the plaintiff, thus deciding that the negligence of the defendant was a responsible cause of the fatal accident. Thereafter, the question of damages was litigated. The court refused the defendant's request for an instruction to the effect that the nature and extent of the right of recovery should be determined in accordance with the restrictive provisions of Massachusetts law. Instead, the jury was permitted to award full compensation for loss as provided under the Pennsylvania Wrongful Death and Survival Acts. This appeal challenges the correctness of that ruling.

We consider first the significance of the fact that the wrong, the hurtful impact of the plaintiff's negligence on the decedent, occurred in or over the navigable waters of Boston Harbor.

In Weinstein v. Eastern Airlines, Inc., 3 Cir. 1963, 316 F.2d 758, 759, cert. denied, 375 U.S. 940, 84 S.Ct. 343, 11 L.Ed. 2d 271, a libel arising out of this very accident, we ruled that "an action for wrongful death arising out of the crash of an aircraft in navigable waters within one marine league from shore lies within the admiralty jurisdiction of the United States". Unquestionably, this is a maritime tort within admiralty jurisdiction. However, it is argued by the appellee that because the present complaint has been framed as an action at law under diversity jurisdiction, the existence of admiralty jurisdiction is of no presently controlling consequence. More particularly, it is urged that under Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477, the district court sitting in Pennsylvania properly applied Pennsylvania conflict of laws rules to reach the conclusion that the Wrongful Death and Survival Acts of Pennsylvania provide the measure of the plaintiff's right to recover damages.

We are not persuaded by this argument. The established rule is that the principles of admiralty law define liability for a maritime tort, whether the proceeding is instituted in admiralty or on the law side of the court. The Tungus v. Skovgaard, 1959, 358 U.S. 588, 79 S. Ct. 503, 3 L.Ed.2d 524; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Massaro v. United States Lines, 3d Cir., 1962, 307 F.2d 299; J. B. Effenson v. Three Boys Corp., 5th Cir., 1956, 238 F.2d 611. Thus, the circumstance that the tort occurred on navigable water, fortuitous though it was, placed the present controversy within an area regulated by federal rather than state law. This is not changed by the circumstance that the parties are domiciled in different states or that this diversity made it permissible to litigate the matter on the law side of the court.

Once the dominance of federal law is recognized, it becomes apparent that the rule and policy of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 and Klaxon Co. v. Stentor Electric Mfg. Co., Inc., supra, are inapplicable. In those cases diversity entitled the litigants to a federal forum but did not cause federal substantive law to rule the issues in controversy. Here, the maritime character of the tort brings the controversy under the governance of federal law and it is immaterial whether admiralty or diversity jurisdiction is relied upon as justification for suing in the federal forum. Obviously, a court thus undertaking to apply federal substantive law would have no occasion to defer to or apply state choice of law rules.

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We apply this analysis to the solution of the particular problem of this case. Under maritime law negligence causing harm on navigable water is actionable. But historic rules of admiralty law did not recognize such a cause as surviving after the injured person died. Neither did they provide dependents with a right to recover for the loss of the decedent's support. Congress has seen fit to provide a legislative remedy for this deficiency only where death occurs on the high seas. 41 Stat. 537, 46 U.S.C. § 761. Therefore, the federal courts have had to determine whether, when and how maritime law should be shaped to accommodate the claims of dependents and other survivors of deceased victims of maritime torts which occur within the territorial waters of a state rather than on the high seas. This undertaking has resulted in the adoption and consistent application of a novel but simple rule of borrowing. The maritime law will accord dependents and survivors rights of recovery neither more nor less extensive than they would enjoy under the law of the state within whose territorial waters the fatal maritime tort occurred.² Hess v. United States, 1960, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305; The Tungus v. Skovgaard, 1959, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524; Western Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; The H. S. Inc., No. 72, 3d Cir., 1942, 130 F.2d 341.

Of course some other expedient might have been adopted. Borrowing could have been made from the law of the decedent's domicile or the law of the state whose contacts with the parties, their dealings and the mishap were deemed most significant. But, over the years, the Supreme Court and the inferior courts under its guidance have adhered to the simple rule of borrowing in their entirety the wrongful death and survival rules of the state within whose boundaries the maritime tort occurred.³

The court below has seen fit to abandon this rule and to substitute another. In our view this was error. Maritime law is national law and its principles should, to the best of judicial ability, be recognized and applied uniformly. While an inferior court is always obligated to conform its judgments to the law as found or declared by the Supreme Court, the national character of maritime law underscores the need for such conformity in this area. If the long and consistently accepted and applied rule of maritime law which requires that the federal right of recovery in such cases as this be measured by the provisions of Massachusetts law is to be modified, that change should be made by the Supreme Court.

The judgment will be reversed and the cause remanded for a new trial on the issue of damages.

Before STALEY, Chief Judge, and McLAUGHLIN, KALODNER, HASTIE, GANEY, FREEDMAN and SEITZ, Circuit Judges.

OPINION ON REHEARING

STALEY, Circuit Judge.

This appeal arises out of wrongful death and survival actions brought by plaintiff-appellee, Donald A. Scott, Administrator of the Estate of Thomas L. Moody, deceased, against defendant-appellant, Eastern Air Lines, Inc. Plaintiff's decedent, a Pennsylvania resident, was killed while returning home aboard a Lockheed Electra aircraft operated by Eastern. The plane crashed into the navigable waters of Boston Harbor shortly

399 F.2d 19

after taking off from Boston's Logan Airport on a flight to Atlanta, Georgia, with the first scheduled stop at Philadelphia. Basing jurisdiction on diversity of citizenship, the decedent's administrator brought suit on the "law side" of the United States District Court for the Eastern District of Pennsylvania, alleging that the decedent's fatal injuries were the result of "negligence, breach of...