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HAMMILL v. OLYMPIC AIRWAYS

June 27, 1975

WILLIAM P. HAMMILL, ADM'R. Plaintiff,
v.
OLYMPIC AIRWAYS, S.A. Defendant



The opinion of the court was delivered by: RICHEY

 DISTRICT JUDGE CHARLES R. RICHEY

 I. INTRODUCTION

 This case is before the Court on defendant's motion to dismiss for lack of jurisdiction and for failure to state a claim upon which relief may be granted. The action arises out of the death of a Virginia resident on a flight between Corfu and Athens, Greece. Plaintiff herein is the administrator of the decedent's estate, and the defendant is the Greek airline which scheduled the ill-fated flight.

 For reasons which follow, the Court finds that plaintiff has properly alleged a common law cause of action for wrongful death based upon general maritime principles, and that the Court has jurisdiction over such claim under 28 U.S.C. § 1333. This cause of action was established by the Supreme Court's decision in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970), and extended by Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974). Since this cause of action is broader than any specific federal or state statutory right of recovery for wrongful death, and since such statutes are to be merely a guide in determining the scope of the common law remedy ( Gaudet, supra at 811), the Court finds it unnecessary to reach the question of whether plaintiff has alleged a cause of action under the Death on the High Seas Act, 46 U.S.C. §§ 761 et seq., (hereinafter, "DHSA").

 II. FACTUAL BACKGROUND AND CLAIMS OF THE PARTIES.

 The deceased, Caroline Hammill Cagle, was a United States citizen and a resident of Virginia. During the fall of 1972, she purchased a round-trip air ticket in the United States from an air carrier other than the defendant for travel from the United States to several places in Europe. While in Europe, she made a side trip to the Greek island of Corfu, located in the Mediterranean Sea; this excursion was not on the ticket purchased in the United States. While in Corfu, Ms. Cagle purchased from defendant's ticket office a one-way ticket on a non-stop flight to Athens, Greece. On its approach to the Athens airport, the airplane crashed in the water at Voula Bay, within one mile of land, on October 21, 1972, resulting in Ms. Cagle's death.

 For purposes of determining whether this Court has jurisdiction over this matter, the parties have stipulated to the above facts. Additionally, the parties stipulate that the defendant maintains a ticket office in the District of Columbia, and that if the plane's pilot was negligent, such negligence occurred somewhere over the Mediterranean Sea, and over international waters.

 On July 2, 1974, the duly-appointed administrator of the decedent's estate, William R. Hammill, also a resident of Virginia, filed an amended complaint seeking damages for wrongful death, for conscious pain and suffering, for loss of support on behalf of decedent's niece and two nephews, and for punitive damages. Plaintiff's first theory of recovery is a general common law cause of action for wrongful death, which is brought under 28 U.S.C. § 1332. His second theory is an action for wrongful death based on the "Agreement Relating to Liability Limitations of the Warsaw Convention and The Hague Protocol," on CAB Order No. E-23680 (the "Montreal Agreement"), and on obligations undertaken by defendant pursuant to the Tariff and Agreement (CAB No. 16712 and Order No. E-24571) which was approved by the Civil Aeronautics Board on December 28, 1966, and was in full force and effect at the time of the crash. His third theory of recovery is an action for wrongful death based on the general common law theory of absolute liability. His fourth theory is an action for wrongful death which is founded upon the Death on the High Seas Act, 46 U.S.C. §§ 761 et seq., and on general maritime law, 28 U.S.C. § 1333. Finally, plaintiff seeks punitive damages for the willful misconduct of defendant's pilot which allegedly resulted in the crash.

 In moving to dismiss the amended complaint for lack of jurisdiction and for failure to state a claim, defendant claims that this Court must apply Greek law. Defendant argues that this Court must follow District of Columbia law with respect to the choice-of-law question, and that in this respect the District of Columbia has rejected the traditional lex loci approach in favor of the application of the law of the state with the predominant interest in the issue. Richards v. U.S., 369 U.S. 1, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1962); Myers v. Gaither, 232 A.2d 577 (D.C. App. 1967); Tramontana v. S.A. Empresa Viacao Aerea Rio Grandense, t/a Varig Airlines, 350 F.2d 468 (D.C. Cir. 1965); cert. denied sub nom., Tramontana v. Varig Airlines, 383 U.S. 943, 16 L. Ed. 2d 206, 86 S. Ct. 1195 (1966); Restatement (Second) of Conflicts of Laws, § 145 (1971). Accordingly, defendant argues that Greece is the state with the "predominant interest" or "most significant relationship" to the case, since Greek contacts with the incident are superior to those of the District of Columbia. That is, Greece is (1) the place where injury occurred, (2) the place where the relationship between the parties arose and was centered (through the purchase of the ticket), and (3) the domicile, place of incorporation, and principal place of business of the corporate defendant.

 Defendant claims that the application of Greek law would preclude this Court's jurisdiction over this case. Defendant avers, through an affidavit by a Greek attorney who specializes in airplane tort claims, that Greek law has adopted *fn1" and would apply the Warsaw Convention to airplane accident claims arising from Greek domestic flights. Defendant claims that Article 28 (1) of the Warsaw Convention, 49 Stat. 3020, does not permit plaintiff to bring this action before this Court, since this Court is not among the forums available to plaintiff under that section, nor does it sit in the territory of a "High Contracting Party" within which any of those forums is located. Thus, defendant moves to dismiss for lack of jurisdiction.

 Since the District of Columbia would apply Greek laws, defendant urges that plaintiff must adequately plead and ultimately prove Greek law in order to sustain an action for wrongful death. Plaintiff's complaint does not plead Greek law. Therefore, defendant moves to dismiss for failure to state a claim.

 Finally, defendant argues that plaintiff does not have a cause of action either under general maritime law or under the Death on the High Seas Act. Defendant submits that the mere assertion that the airplane "crashed into the Mediterranean Sea" is insufficient to constitute a maritime tort such as would confer admiralty jurisdiction upon the Court. Defendant relies on the rule in Executive Jet Aviation Co., Inc. v. City of Cleveland, 409 U.S. 249, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972), that "maritime locality alone is not a sufficient predicate for admiralty jurisdiction in aviation tort cases," and that in the absence of legislation to the contrary, claims arising from airplane accidents are not cognizable in admiralty unless "the wrong bear a significant relationship to traditional maritime activity." Executive Jet, supra at 268. Further, defendant argues that plaintiff's claim under the Death on the High Seas Act fails because the claim is governed by Section 4 of the Act, 46 U.S.C. § 764, which requires that:

 
"[whenever] a right of action is granted by the law of any foreign State on account of death by wrongful act, neglect, or default occurring upon the high seas, such right may be maintained in an appropriate action in admiralty in the courts of the United States . . . ."

 Defendant urges that since Greek law grants such a right of action for wrongful death, Section 4 governs the case and, therefore, plaintiff must plead and ...


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