Spelar v. United States
| Decision Date | 11 February 1948 |
| Docket Number | Civil Action No. 8019. |
| Citation | 75 F. Supp. 967 |
| Parties | SPELAR v. UNITED STATES. |
| Court | U.S. District Court — Eastern District of New York |
J. Vincent Keogh, U. S. Atty., of New York City (Frank J. Parker, Chief Asst. U. S. Atty., of Brooklyn, of counsel), for defendant, for the motion.
Gerald F. Finley, of New York City, for plaintiff.
This suit for wrongful death is based upon the Federal Tort Claims Act, 28 U.S. C.A. § 921 et seq. Plaintiff is the widow of a deceased employee of American Overseas Airline, Inc. She alleges in her complaint that she is a resident of the Eastern District of New York and that on January 20, 1947, she became administratrix of her husband's estate under letters issued by the Surrogate's Court of Queens County. The plane, on board of which decedent was killed, had just taken off from Harmon Field in or near Stephenville, Newfoundland, on October 3, 1946, the date of the fatal accident. And this accident is said to have been due to the negligence of the defendant. It is also alleged in the complaint that, under the laws of Newfoundland (Consolidated Statutes of Newfoundland, 3rd Series, Ch. 213), an action for wrongful death is created. Upon this statute plaintiff relies. She says that under the Federal Tort Claims Act she has a right to invoke this statutory law of the place where the accident occurred, even though it is not within the territorial limits of the United States, because at the time of the decedent's death, the government was operating the air base at or near which the plane fell, and because the Federal Tort Claims Act provides that her rights are to be determined by the lex loci delicti.
Whether or not the Federal Tort Claims Act applies to this situation depends largely upon whether Harmon Field does or does not answer the description "foreign country," because, while the Federal Tort Claims Act constitutes a waiver of sovereign immunity under certain circumstances, the statute itself specifically bars a recovery on any "claim arising in a foreign country." 28 U.S.C.A. § 943(k). The government, urging that all of Newfoundland is obviously a foreign country, moves to dismiss the complaint. The plaintiff opposes the motion on the ground that the locale of the accident, even though in Newfoundland, is not a "foreign country" since it is one of the areas covered by a 99-year lease and executive agreement entered into between the British Government and the United States of America on March 27, 1941, 55 Stat. Pt. 2, 1560-1594.
The agreement and lease of March 27, 1941, to which plaintiff refers, was recently carefully considered and analyzed by Judge Clark in this circuit. Connell v. Vermilya-Brown Company, Inc., 2 Cir., 1947, 164 F.2d 924. The Connell case involved a claim under the Fair Labor Standards Act, 29 U.S.C.A. § 201, by persons who had done construction work at Fort Bell and Kindley Field, Bermuda. That area was embraced within the scope of the same lease and executive agreement which relates to Harmon Field in Newfoundland. The Connell complaint was dismissed in the District Court on the ground that, despite the lease and executive agreement, the leased areas of Bermuda did not constitute a "Territory or possession of the United States" within the meaning of the Fair Labor Standards Act. Judgment of dismissal was reversed in the Circuit Court because the lease and executive agreement were construed to embrace such a far-reaching surrender of sovereignty by Great Britain, and acceptance of control by the United States, as to constitute Bermuda a "possession" within the meaning of the act then under consideration.
Clearly, therefore, Harmon Field, the locale of the accident which gave rise to the claim at bar, is, under the Connell case, a "territory or possession of the United States," within the meaning of the Fair Labor Standards Act. Is it also a part...
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...States from Great Britain, alleging, it appears, negligence upon the part of the United States in the operation of the field. Spelar v. U. S., D.C., 75 F.Supp. 967. The Court of Appeals, 2 Cir., reversed, 171 F.2d The decedent Spelar was an employee of American Overseas Airlines and was kil......
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