The opinion of the court was delivered by: ROBINSON
This matter, In re Korean Air Lines Disaster of September 1, 1983, 575 F. Supp. 342, comes to this Court pursuant to the November 16, 1983 transfer order of the Judicial Panel on Multidistrict Litigation. 575 F. Supp. 342, The cases involved have been brought in judicial districts around the country as the result of the deaths of 269 passengers, including plaintiffs' decedents, killed when Korean Air Lines Flight 007, en route to Kimpo Airport, Seoul, South Korea from Kennedy International Airport, New York, was shot down over the Sea of Japan by a Soviet military aircraft. Plaintiffs have named several defendants, among them, the United States government. The cases against the United States allege jurisdiction under the Suits in Admiralty Act, 46 U.S.C. § 741 et seq., the Death on the High Seas Act, 46 U.S.C. § 761 et seq., and the admiralty and maritime provisions of Article III, Section 2 of the Constitution of the United States.
Presently before the Court are two motions by the United States. The first motion argues for dismissal of the actions against the government for lack of jurisdiction and failure to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The second motion urges the Court to enter summary judgment in favor of the United States as to all claims based upon the provisions of air traffic control services.
Two groups of plaintiffs, from New York and the District of Columbia, have made claims against the United States. The District of Columbia plaintiffs make three claims against the government. They contend that the government "negligently" deployed military aircraft in the vicinity of the flight path of Korean Air Lines Flight 007 (KAL 007), that the government should have utilized its alleged capabilities to warn KAL 007 and/or that the government failed to advise the flight crew of KAL 007 that it was headed for danger. Specifically, the District of Columbia plaintiffs claim:
27. On August 31, 1983, through September 1, 1983, and all times relevant hereto, the Defendant, UNITED STATES OF AMERICA, committed each and all of the negligent acts of omission or commission:
(a) in knowingly deploying its aircraft in geographical and temporal proximity to the departure and route of flight (sic) of Flight 007, thereby causing a danger and a hazard to the passengers on board the aircraft which the defendant knew or, in the exercise of reasonable care should have known, were being created inasmuch as defendant knew or should have known that the radar return from its aircraft and Flight 007 would be similarly received on USSR radar and that Flight 007 could be mistaken by the U.S.S.R. as a military aircraft and subjected to fatal defensive measures, and/or
(c) in failing to warn the flight crew of Flight 007 or Korean Air Lines officers or agents of the deviation from the assigned flight path which defendant knew, or in the exercise of reasonable care should have known, would create a danger and a hazard to the passengers of KOREAN AIR LINES Co., LTD., Flight 007.
For these alleged wrongs connected with this air tragedy, each District of Columbia plaintiff seeks five million dollars ($5,000,000) from the government of the United States.
The New York plaintiffs make only one claim against the government. Their cause of action is based upon the alleged negligence of the United States in providing air traffic services to KAL 007. The New York plaintiffs' claim is worded as follows:
17. During said flight, defendant United States provided air traffic control services, including instructions and radar, navigation, radio communication and other assistance to the flight crew of said aircraft while it was above international waters and the territory and adjacent navigable waters of the Union of Soviet Socialist Republics.
18. Said injuries, crash, death and resulting damages were caused by the negligence of defendant United States in that it instructed said flight crew of defendant Korean Air Lines' aircraft to fly a safe course above the territory and adjacent navigable waters of Japan and international waters, but failed to warn said flight crew of the aircraft that it violated the instructions and was off course, flying toward and then over dangerous territory and adjacent navigable waters to the Soviet Union, and defendant United States was otherwise negligent while engaged in said maritime related activity.
Initially, the government's motion to dismiss argued that all of the claims made by the District of Columbia and New York plaintiffs present non-justiciable issues. However, in order to contest plaintiffs' allegations, the government wished the Court to consider evidence beyond the pleadings. Since this would automatically transform the motion to dismiss into a motion for summary judgment, the government submitted its motion for partial summary judgment as to the claims ...