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
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 prove Greek law, which he has failed to do.
A. A cause of action for wrongful death resulting from the crash of the airliner is within the Court's admiralty jurisdiction under 28 U.S.C. § 1333.
It should be noted at the outset that, despite the stipulation of the parties that "[If] the plane's pilot was negligent, such negligence occurred somewhere over the Mediterranean Sea, and over international waters,"
this set of facts is probably insufficient to satisfy the current requirements for establishing this Court's admiralty jurisdiction. Aside from the objection that subject matter jurisdiction cannot be conferred by stipulation of the parties, the Court also notes the admonition of the Supreme Court in Executive Jet, supra, that the maritime locality of an airplane crash cannot by itself serve to classify the action as a maritime claim, and thereby confer admiralty jurisdiction.
In Executive Jet, the Supreme Court noted with approval the extension of admiralty jurisdiction to actions for wrongful death, arising out of airplane crashes into the high seas beyond one marine league from shore, which have been brought under the Death on the High Seas Act.
The Supreme Court made it clear, however, that it was not deciding "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." 409 U.S. at 271. Since this Court does not now decide whether the Death on the High Seas Act applies to the specific facts of this case for reasons explained at page 834 below, the issue left open by the Supreme Court in Executive Jet is thus squarely before this Court.
Executive Jet represents an effort by the Supreme Court to limit the extension of admiralty jurisdiction to such airplane tort cases as those arising out of accidents occurring on or over navigable waters within state territorial limits, when such aircraft are not, for example, on transoceanic flights. Prior to Executive Jet, this extension of admiralty jurisdiction by federal courts resulted from an increasing use of a "strict locality" test (i.e. whether the actual crash had occurred in a maritime locality) to determine whether admiralty jurisdiction would attach.
The Supreme Court noted that federal courts had been persuaded in aviation cases to extend their admiralty jurisdiction beyond the statutory coverage of the Death on the High Seas Act to air crashes involving personal injury (in contrast to death) which occurred on the high seas more than one league offshore. The courts extended their admiralty jurisdiction on the basis of the tort's strictly maritime locality, despite the fact that neither the DHSA nor any other federal statute provided a remedy. However, the Supreme Court also noted that these cases, as well as most other cases brought under the DHSA, involved torts (1) which were within a maritime locality (i.e. the alleged negligence became operative while the aircraft was on or over navigable waters) and (2) which had some relationship to maritime commerce (at least insofar as the aircraft was beyond state territorial waters and performing a function -- transoceanic crossing -- that previously would have been performed by waterborne vessels). Executive Jet, supra 93 S. Ct. at 502.
The Supreme Court, therefore, set forth the following test to determine whether maritime jurisdiction should attach to "aeronautical torts":
"[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. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty in the absence of legislation to the contrary."
Executive Jet, supra at 502.
However, the court left open the question of precisely what constitutes a "significant relationship to traditional maritime activity" in the context of air commerce. In fact, as noted above, the Court did not even decide whether an aviation tort can ever bear this "significant relationship" in the absence of legislation.
The aircraft in Executive Jet was flying over land between points within the continental United States and happened to crash into Lake Erie while taking off from Cleveland. As the Court could find "no significant relationship between such an event befalling a land-based plane flying from one point in the continental United States to another, and traditional maritime activity involving navigation and commerce on navigable waters,"
it did not have to reach the question of the circumstances wherein such a relationship might indeed exist.
This Court, in contrast, must make exactly such a determination. The language of the Supreme Court in Executive Jet is helpful in deciding this issue, although it cannot be -- as the Supreme Court itself states -- dispositive:
"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 waterborne vessels. Moreover, other factors might come into play in the area of international air commerce -- choice-of-forum problems, choice of law problems, international law problems, problems involving multinational conventions and treaties, and so on." Executive Jet, supra at 506.