Spelar v. United States

• Decision Date: 08 December 1948
• Docket Number: No. 33,Docket 21041.,33
• Citation: 171 F.2d 208
• Parties: SPELAR v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

171 F.2d 208 (1948)

SPELAR v. UNITED STATES.

No. 33, Docket 21041.

United States Court of Appeals Second Circuit.

December 8, 1948.

Arnold B. Elkind, of New York City (Gerald F. Finley, of New York City, on the brief), for plaintiff-appellant.

Frank J. Parker, Chief Asst. U. S. Atty., of Brooklyn, N. Y. (J. Vincent Keogh, U. S. Atty., of Brooklyn, N. Y., on the brief), for defendant-appellee.

Before L. HAND, Chief Judge, and AUGUSTUS N. HAND and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Does the exclusion from the coverage of the Federal Tort Claims Act of any "claim arising in a foreign country," 28 U. S.C.A. § 943(k), Revised Title 28 U.S.C.A. § 2680(k), prevent recovery from the United States of America for wrongful death occurring on a Government airfield in Newfoundland in an area covered by a 99-year lease and executive agreement as a part of the famous "destroyer deal" between Great Britain and the United States of March 27, 1941? In dismissing this action the district court has held that it does. D.C.E.D.N.Y., 75 F.Supp. 967. We are constrained to disagree.

Plaintiff is administratrix of her husband's estate under letters issued by the Surrogate's Court of Queens County, New York. Her husband was a flight engineer, an employee of American Overseas Airlines, Inc., who was killed by the crashing of his plane just as it had taken off from Harmon Field, in or near Stephenville, Newfoundland, on October 3, 1946. Compare Spelar v. American Overseas Airlines, Inc., D.C.S.D.N.Y., 80 F.Supp. 344. Plaintiff's complaint alleges that his death was due to the negligence of representatives of the United States and that under the laws of Newfoundland, Consol.Stat. of Newfoundland, 3d Ser., c. 213, an action for wrongful death is created, upon which the plaintiff relies as establishing her claim under the Federal Tort Claims Act. The complaint was dismissed below on the defendant's motion for lack of jurisdiction.

The Act as passed in 1946 gave exclusive jurisdiction to the United States district court for the district wherein the plaintiff was resident or wherein the act or omission complained of occurred, "including the United States district courts for the Territories and possessions of the United States," on claims against the United States for death by the negligent or wrongful act or omission of any Government employee while acting within the scope of his employment, "under circumstances where the United States, if a private person, would be liable to the claimant for such * * * death in accordance with the law of the place where the act or omission occurred." 28 U.S.C.A. § 931(a). This is continued in the revision, Title 28 U.S.C.A. § 1346(b), except that here the district courts are spelled out to designate those of Alaska, the Canal Zone, and the Virgin Islands. Since obviously the revision was not intended to limit the coverage, the reference to the original form is of importance, as indicating a congressional recognition of claims in the "possessions" of the United States.

The nature of the 99-year lease and executive agreement entered into between Great Britain and the United States, as set forth in 55 Stat.Pt. 2, 1560-1594, is discussed at some length in Connell v. Vermilya-Brown Co., 2 Cir., 164 F.2d 924, where we held that the Bermuda base transferred pursuant to this same agreement was a "possession" of the United States within the applicability of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Since the argument of this appeal, the Supreme Court has affirmed that case. Vermilya-Brown Co. v. Connell, 69 S.Ct. 140. Although different statutes are involved, it would seem clear that that decision is certainly persuasive, if not well-nigh conclusive, authority for reversal here. It is difficult to believe that an air base which is a possession under one Act is a foreign country, no less, under another. Moreover, in the passage quoted above, Congress appears to have recognized the applicability of the Act to possessions of the United States. While defendant here did not cite or discuss the Connell case, the district judge below attempted to distinguish it, substantially on the ground that the present statute was not crystal clear and that a congressional waiver of sovereign immunity was to be narrowly construed. This doctrine of "niggardly" construction has been cited to this Act, State of Maryland, to Use of Burkhardt, v. United States, D. C. Md., 70 F.Supp. 982, though we have had occasion to criticize such application. Aetna Cas. & Surety Co. v. United States, 2 Cir., 170 F.2d 469. When after many years of discussion and debate Congress has at length established a general policy of governmental generosity toward tort claimants, it would seem that that policy should not be set aside or hampered by a niggardly construction based on formal rules made obsolete by the very purpose of the Act itself. Particularly should this be true as to...