EXECUTIVE JET AVIATION v. CITY OF CLEVELAND

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Argument of Phillip D. Bostwick

Chief Justice Warren E. Burger: We'll hear arguments next in 71-678, Executive JET Aviation against Cleveland and others.

Mr. Bostwick you may proceed.

Mr. Phillip D. Bostwick: Mr. Chief Justice and may it please the Court.

This case on certiorari to Sixth Circuit calls upon this court to resolve any records out of the conflict between the Third Circuit in an opinion of the court below.

The issue presented is whether the Federal courts have maritime jurisdiction over airplane crashes in navigable waters where the tortuous conduct is alleged to have occurred on land.

The facts in this case are under perjury undisputed.

The petitioners are the owner and operator of a corporate twin-engine jet aircraft, known as the Falcon.

They and their aircraft prepared to takeoff from Burke Lakefront Airport at Cleveland, Ohio on July of 1968.

Burke Lakefront is owned and operated by the respondent city of Cleveland, Ohio and is built on a fill and the navigable waters of Lake Erie.

On the day in question, the aircraft was piloted by two pilots and had a crew of one stewardess and was prepared to takeoff to pick up passengers in Maine.

There is some question in the record as to the clearance given to the pilots before takeoff.

It our position that the questions of tributary negligence not being before this Court, those matters are irrelevant, however they have been raised in the respondent's briefs.

In any event there is no question about the fact that the pilots did see -- could not see the other end of the runway before takeoff, could not see that the last third of the runway was covered by a flock of seagulls and did receive a clearance for takeoff from the air traffic controllers in the tower, from respondent Dicken who is employed by the United States government.

The aircraft took off.

Shortly after liftoff, the pilots noticed for the first time the sea of seagulls.

As the plane approached the seagulls, the flock rose, the aircraft struck many of the birds, 314 of the seagulls were found on the runway alone.

Thereafter, birds were ingested into the engines of the Jet, the engines flamed out and the pilot prepared for a ditching.

He raised the landing gear and prepared for a crash landing.

On the way down, the aircraft landing gear did strike the top of a pickup truck parked near the airport perimeter fence and broke the barbwire of the perimeter fence.

And there is an appendix of photographs to this case which shows the damage done to the vehicle and the fence, birds on the runway for the whatever use it maybe to the Court.

In any event the aircraft continued in flight and impacted in the navigable waters of Lake Erie.

When airborne again, it impacted a second time where it sank in what has been undisputed navigable waters, something in depth of an excess of 45 feet.

There is also a photograph, I believe it's photograph three showing an X out in the lake when the aircraft submerged the pilots and stewardess miraculously were not injured or killed.

They exited from the aircraft and a small craft picked them up.

The coastguard came, there was an effort made to put a line around the aircraft and pull it towards shore and the place where they succeeded in dragging it is the second X on the photograph.

Justice William J. Brennan: It was a Jet?

Mr. Phillip D. Bostwick: It was a Jet, yes sir.

It was a corporate jet, a small Falcon jet owned by Executive Jet Aviation and used for purposes of transporting business and other persons?

Justice William J. Brennan: And the only persons aboard were the crew?

Mr. Phillip D. Bostwick: The crew were deadheading if the Court pleased to pick up some revenue paying passengers at another airport.

It had been positioned at Burke Lakefront airport.

The aircraft was salvaged after remaining submerged in the lake for two days.

Skin divers were used, a contract barge was used and the aircraft was raised.

It was dropped back into the lake during raising and additional damage was done.

In any event when it had been retrieved from the lake, after over two days, the extensive water soaking to the expensive avionics navigation and equipment and instruments, and to the interior of the aircraft, the impact damage which had been done to the fuselage of the aircraft by the two impacts at the lake caused the aircraft to be a total loss.

And there is no dispute in this case of two facts; one that the aircraft did crash in navigable waters of Lake Erie and two that as a result of that crash in the lake the aircraft was totally destroyed.

Two actions were brought by the petitioners in the federal court in Cleveland.

One against United States under the Tort Claims Act, alleging negligence of the air traffic controllers in clearing the aircraft to takeoff.

Because diversity was not existent between the petitioners a Columbus, Ohio Corporation and the City of Cleveland, the owner and the operators of the airport.

A second action was filed at Federal Court against the City of Cleveland and a respondent Dicken, also a resident of Ohio, alleging Admiralty and Maritime Jurisdiction.

The complaints are virtually identical.

A motion to consolidate for discovery and all purposes including trial was made by the respondents.

City of Cleveland moved nearly three years ago to dismiss the second action on the ground of no subject matter jurisdiction.

The District Court after six months decided that there was no subject matter jurisdiction for two reasons.

One, the locality of the tort was over land. District Court relied on a Sixth Circuit case entitled Wiper against Great Lakes Engineering Company.

As an alternative holding, the District Court found that there was no maritime nexus between the wrongs alleged in the complaint and any maritime commerce navigation or service relying on the Sixth Circuit case of Chapman against Grosse Pointe Farms.

Chief Justice Warren E. Burger: I think we will resume at that point after lunch, counsel.

Mr. Phillip D. Bostwick: Thank you very much.[Luncheon Break]

Chief Justice Warren E. Burger: Mr. Bostwick you may continue.

Mr. Phillip D. Bostwick: Thank you, Your Honor.

The court below in this case with one judge dissenting, affirmed that the holding of the District Court insofar as the court had ruled that the locality of the tort was over land.

However, in so doing, it did not follow its own cases, but said this case was controlled by three cases from this Court decided in 1928 and 1935, Minnie against Port Huron, Smith & Son against Taylor and the Admiral Peoples.

The court below said that it was not necessary to reach the question of maritime nexus having found that the locality of the tort was on land.

It’s our position -- our argument is twofold and it is that there is an irreconcilable conflict between the opinion of the court below on the question of the locality of the tort for this case and the Third Circuit's ruling in Weinstein and we urge that this Court resolve that conflict by adopting Weinstein rule.

We also urge that as to the question of maritime nexus, this Court follow the course that it took in 1914 in Atlantic Transport against Imbrovek and find that if anything more than the locality of the tort is required, that the relationship between this tort and maritime affairs was quite sufficient.

Now turning first with regard to the locality of the tort, the Sixth Circuit in this case, are relying upon the three cases that I just mentioned, found that the rule was as to the situs of the tort, that the situs of the tort is where the negligence becomes operative or effective on the party not where the damages or the major portions of them are sustained.

Under this legal rule, the court found that the negligence became operative when the birds first went through the engine and caused a loss of power to the air craft and that occurred over the runway.

Therefore, the locality of the tort in this case, the court found, was on land.

In so doing, the Sixth Circuit said that this ruling did not conflict with the Third Circuit’s decision in 1963 in Weinstein against Eastern Airlines, found at 316 F.2d.

We respectfully submit that that portion of the court’s opinion is unsupportable.

The facts of the Weinstein case, one of the 150 cases to reach the Federal courts, arising out of the Boston Harbor tragedy in the early 1960s, are virtually identical to this case.

In the Boston Harbor tragedy the facts which were reported In Wrap against Eastern Airlines.

An Eastern Airline’s Electra took off from Logan Airport and six-tenths of a mile from the takeoff into the runway it ran into a flight of starlings.

The birds were ingested into the engines, which were jet engines driving propellers.

50 to 100 dead birds were found on the end of the runway.

The birds caused an immediate loss of power and the aircraft crashed thereafter in the navigable waters of Boston Harbor, 47 seconds after liftoff.

The libellants brought libels in Admiralty and the respondents claimed that there was no jurisdiction.

The District Judge, Judge Van Dusen found that the stuff of admiralty concerned vessels.

But in the absence of any legislation, like Congress concerning aircraft crashes in navigable territorial waters that the admiralty did not have jurisdiction.

On appeal to the Third Circuit, the Third Circuit reversed that narrow view.

In an opinion written in 1963 by Chief Judge Biggs which has been cited and quoted for nearly a decade thereafter, the Third Circuit held that admiralty, that concepts of admiralty tort jurisdiction could not and should not remain static and unchanging.

In a review of the law the court noted that the first aircraft crash cases arose out of The Death of a High Seas Act.

That the same arguments had been made to with that the Act did not apply to aircraft crashes.

That view had been rejected.

Now in this first case of crash in the territorial navigable waters, Chief Judge Biggs found that the applicable precedent from this Court was the Plymouth and that the historic view of this Court, indeed as expressed again by this Court, last Term, in Victory Carriers against Law was that the locality of the tort determined whether or not it was of a maritime nature.

In determining where a tort occurs, Chief Judge Biggs looked at that at the Plymouth a case from this Court which held that a tort occurs where the damages are completed or substantial amount of the damages are completed and the Plymouth held that the maritime jurisdiction depends upon the locality where the injuries or the substantial portion of them take place.

Having concluded that the Plymouth was the applicable authority, the Third Circuit found that even though the alleged negligence in the Boston Harbor tragedy was alleged maintenance on land and ineffective design of the aircraft that the “disastrous effects” of that tortuous conduct had occurred on navigable waters.

That is to say, the crash itself, the damage to the aircraft, the injuries and the deaths of the passengers therein had occurred on navigable waters.

It, therefore, found in a case virtually identical to this on this factual situation that the tort occurred in navigable waters and therefore it was a maritime tort.

It was argued to the Third Circuit that a maritime nexus was also required in addition to locality and that no nexus should be found in that case in which an aircraft which was headed from Boston to Philadelphia virtually all over land had crashed fortuitously in waters of Boston Harbor.

That view is reject by the Third Circuit on the reasoning that there is an analogy between aircraft which goes down in navigable waters and ships would sink in navigable waters and they found that there is a connection.

There is a similarity and that to dangers to person’s property are the same when an aircraft crashes in navigable waters.

Therefore, they assumed for purposes of argument that if there was such a locality plus requirement, that it was present in that case, and therefore, they held that there was maritime jurisdiction.

Certiorari was denied by this Court.

That case has been followed and cited in nearly a decade since it was passed on.

Chief Justice Warren E. Burger: That means that if you fly from New York or Washington to Miami or Palm Beach, Florida, and for varying times you are under, admiralty maritime jurisdiction or under conventional common law jurisdiction.

Mr. Phillip D. Bostwick: Well, Mr. Chief Justice --

Chief Justice Warren E. Burger: You got over the sea a good deal of the time on that trip, aren't you?

Mr. Phillip D. Bostwick: We believe that the jurisdictional point arises, if there is a crash on that flight and there was some discussion in the early days of aviation concerning whether the airspace above the entire earth as well as the sea was subject to the maritime jurisdiction, but as a matter of fact the Federal Aviation Act is based upon the commerce clause and the regulations which affect aircraft passing over states and over water and land is based upon that clause, but where there is a crash on that flight, whether it is beyond one marine league from the shore, whether it is 2400 yards off the the Florida Coast as was the case in Kelly, or whether it is next to the Miami airport to the closest navigable water on takeoff or landing.

If the crash occurs in navigable water, it is our position that this Court should find and enunciate the following rule, that when an aircraft crashes in navigable water, tort claims arising therefrom are cognizable on admiralty.

The reason for our stand is that we believe it to be the more practical, the simpler and more just and efficient rule for aviation cases, and it is our position, and it was so held by the Third Circuit and stated, we think, artistically by Judge Edwards in the dissent in this case that we believe that – excuse me, let me start all over again, I am --

Justice William H. Rehnquist: Let me interrupt you if I may Mr. Bostwick.

What would logically follow from that sort of a holding other than just the law governing that crash.

Would you ever doctrine of unseaworthiness or unairworthiness on airplanes where if say a crew member slipped without there ever being a crash that happened over water and you would have a claim under the Sea Shipping versus Sieracki and that sort of case?

Mr. Phillip D. Bostwick: Well, Mr. Justice Rehnquist what would follow we say is that the general maritime law would be applicable and that as it's going on for the past 30 years and those aircraft crashes beyond a marine league from the shore, The Death on a High Seas Act would be applicable.

Justice William H. Rehnquist: But what if we do not have a crash at all?

Supposing just while the plane is navigating over the Biscayne Bay coming into Miami, some crew member slips and falls, nothing ever happens to plane except that it lands at Miami, but if that slip and fall occurs over navigable water, does that mean that it's an admiralty type of injury?

Mr. Phillip D. Bostwick: There is a case like that Your Honor, it is a D'Aleman.

It's a Second Circuit case.

I believe it is cited in the government’s brief and a person did suffer a fright on a flight from Puerto Rico to the United States over water and died thereafter and was held to be in admiralty and I would refer the Court to the analogy of the Congress making crime which occur in aircraft over navigable waters within the maritime jurisdiction.

It is in fact, the injury which occurs on or over navigable waters which makes it a maritime tort and brings into play the general maritime law and in effect --

Justice Byron R. White: Crashes on bridges?

Mr. Phillip D. Bostwick: You mean an aircraft crashing on a bridge, Your Honor?

Justice Byron R. White: No if an automobile crashes (Inaudible) on navigable water?

Mr. Phillip D. Bostwick: Well, we don’t believe that this Court is going to be required to rule on automobile cases in this case.

We believe that a holding in this case that when an aircraft crashes in navigable waters, the tort claims arising therefrom are within maritime jurisdiction.

It does not call upon to this Court to decide that case.

In fact, there is a case of an automobile driving off a pontoon barge in New Orleans and the car that was going from the ferry to the land was in admiralty and the one going the other way was not and in fact there is a myriad of decisions.

Justice Byron R. White: What would your holding be for a private barge (Inaudible) in navigable water?

Mr. Phillip D. Bostwick: Well, for car that drives off the bridge in navigable waters, if the person is killed in --

Justice Byron R. White: Assume he has killed.

He gets on a bridge and damage is done to the car and some damage to him but often there is water, and he hurts more, he doesn't die?

Mr. Phillip D. Bostwick: If the person were injured in the water we believe it would be a maritime tort, but again we respectfully state that it is the nature of the aviation activities here which cause us to urge the present ruling upon the Court.

We are not urging a rule upon the Court in automobile cases and I am not trying to duck the Court’s question, however --

Justice Byron R. White: I don't know that (Inaudible) principle what if a plane crashed in navigable waters is the admiralty issue.

I don’t why (Inaudible)

Mr. Phillip D. Bostwick: I will be as specific as I can.

Chief Justice Warren E. Burger: Mr. Bostwick, right on that, you have this one of your important premises, if not major premises that the airplane is supplanting sea going ships as the major means of transportation.

Now when you go to Key West these days from the Mainland of Florida you travel over something like 60-90 miles that was once traversed by boats.

Now there is a great causeway and you are over the -- not just over an ordinary navigable stream, you are over the sea, the Atlantic Ocean, and the Caribbean and the Gulf.

Now your premise would certainly make an automobile which hits the railing and goes down into the water, a maritime case would --

Mr. Phillip D. Bostwick: Well, if the Court please, I believe the government has urged that this Court use this case to fashion a locality plus rule.

For once, we agree with the city, we respond to City of Cleveland in the view that, that is not required in this case.

We believe a holding in this case concerning aircraft crashes in navigable waters does not require the Court to make a statement about the type of hypothetical which has been presented and it leaves the lower courts free in the situation where a swimmer is injured in 18 inches of water or where there is a rear-end collision on a pontoon barge between two automobiles waiting for a ferry.

It leaves the lower courts free to continue to decide those few, and I emphasize the fact that they are few, to decide those few cases if they so decide on a locality plus basis.

We do not believe that this case raises the locality plus question and that the hypotheticals concerning the automobiles need to be decided because of a ruling in this case that aircraft crashes in navigable waters bring about maritime tort claims.

Justice Byron R. White: It should be on a locality basis?

Mr. Phillip D. Bostwick: The locality basis has to do with the aviation cases because, assuming arguendo there is a plus required that it is present in the aviation cases and we do not believe that it is present only in those cases where the aircraft is being used as it was previously used, like a vessel or whatever it's 90% of its flight has been over water as opposed to 5% over the land.

Justice William J. Brennan: What is the plus?

Mr. Phillip D. Bostwick: Well, that's a -- if the Court please, a good question and I have been --

Justice William J. Brennan: I thought I understood you say that it's a locality plus, if there is a locality plus, it satisfies you, what is it?

What is the plus?

Mr. Phillip D. Bostwick: We believe it to be same plus stated by the Third Circuit in Weinstein and by dissenting judge in this case, that is the relationship between a downed aircraft in navigable waters and the perils that occur to the pilots and the passengers and the analogy to a downed ship.

In other words, there is nothing fortuitous to a man who is drowning in navigable waters, but if he got there because his boat tipped over or because this airplane crashed in it just off the shore, there is an analogy between the salvage problems and navigational problems in the channel.

Justice William H. Rehnquist: Well, it's true of the automobiles too.

I mean the guy can drown, if he drives off a bridge into navigable water?

Mr. Phillip D. Bostwick: Mr. Justice Rehnquist, I am not taking the position that an automobile is necessarily outside an automobile crash in which people are killed going off a bridge, is necessarily outside of admiralty jurisdiction and as I say there are some cases in which admiralty has taken cognizance of automobile cases.

But I respectfully do not believe the Court needs to reach that here by holding that in aviation cases, there is -- the tort claims are rising auto crashes in navigable waters.

Justice William H. Rehnquist: Well, Justice Brennan asked you what is a plus here and as I understand your answer, it's because the aircraft went down in navigable water, the people in the aircraft confront basically the same problem the people going down in the ship confront and I wish to add the comment that I don't think either of those problems are distinguished between the people who are in a car about to drown in navigable water.

If there is going to be a plus that separates aircraft and automobiles, there is got to be some other than what you have said?

Mr. Phillip D. Bostwick: Very well, and as a matter of fact the court in New Orleans agreed and found that the injuries as a result of drowning and the horror that goes along with seeing your husband drown meant that an automobile crash into navigable waters was admiralty.

So, therefore, I am not taking the position that the automobile case is not an admiralty.

Justice Thurgood Marshall: Mr. Bostwick.

Mr. Phillip D. Bostwick: Yes, sir.

Justice Thurgood Marshall: Assuming that this automobile goes over the rail as a result of an accident, being struck by another automobile, which law would apply?

Mr. Phillip D. Bostwick: Well, if the --

Justice Thurgood Marshall: Well, assuming that the law -- the car was going over the state’s speed limit, you can't apply that in navigable water?

Mr. Phillip D. Bostwick: Well, if the crash occurred -- the automobile crash occurred and a person were drowned in navigable waters, we believe that the wrongful death claim would come about under this states' -- under this Court’s holding in (Inaudible) -- that there would --

Justice Thurgood Marshall: And what law would apply?

Mr. Phillip D. Bostwick: General maritime law would apply.

Justice Thurgood Marshall: To the automobile accident up on the bridge?

Mr. Phillip D. Bostwick: To the automobile accident in which the car goes into the navigable water, I thought that was your --

Justice Thurgood Marshall: Yeah, but the accident occurred up on the bridge and he struck it and as a result of being struck by the other car, he went over into the navigable water.

Now, whose is at fault?

Mr. Phillip D. Bostwick: Well, it's our view that if the person died as a result of being in navigable water, then the fault would be determined by the general maritime principles which utilize comparative negligence and have a cause of action for wrongful death.

There is, I might say, an additional distinction --

Justice Thurgood Marshall: But it certainly wouldn't be decided whether or not there is grease on the step, to maybe on the seaworthy, but you couldn't decide it on that case.

Mr. Phillip D. Bostwick: No sir, I wish to reserve few moments in rebuttal, but in answer to your question Mr. Justice Rehnquist, the aircraft which fly over navigable waters as distinguished from automobiles, do have a maritime plus in that the majority of the passengers which used to travel by boat, now travel by air and there is a need, there is a vast number of aviation accidents, because of the number of airports built on and around navigable waters and the number of accidents which occur in and around the landing patterns.

There is a large number of aircraft crashes in navigable waters, in territorial navigable waters and we believe that they present a problem which has been solved by the lower courts under Weinstein and that rule is the proper one which should be continued and ratified by this Court.

Justice Byron R. White: That is the position that government has mentioned.

Isn't that the nexus the government to suggest for the maritime connection?

Mr. Phillip D. Bostwick: Well, it is my understanding that the government would find that in some aircraft crashes, for example, the plane that lands in the water on the flight from Washington to Chicago, but which lands in Lake Michigan fortuitously that, that would not be in maritime nexus, not in maritime place --

Justice Byron R. White: Now the flight from Chicago to Washington DC that has to go into Lake Michigan, isn't much for substitute for a steamship to Washington?

Mr. Phillip D. Bostwick: It is no substitute at all, Your Honor, but the fact of the matter is that the people who are faced with possibly drowning in Lake Michigan meet the same parallels as anyone else in navigable water.

Justice Byron R. White: Now, you have got a different approach.

Chief Justice Warren E. Burger: Mr. Solicitor General.

Argument of Griswold

Mr. Griswold: Mr. Chief Justice and may it please the Court.

I think that this is the first time that I have ever been a proctor in admiralty to which I was admitted some years ago.

Let me start by restating the facts of the case which are illustrated by this chart.

Here is in the brief for the City of Cleveland and is plaintiffs exhibit 4 in the case.

North is to the right which is perhaps a little misleading, but if I took the chart to side and the lettering is hard to read, the plane started here at the runway at the gate, came to the end of the sixth left runway and started down the runway to the north-east.

At this place, where it says ‘Rotate Area’, that is airplane language for takeoff.

What you do is rotate the nose of the plane and the takeoff was between 2,800 and 3,000 feet down the runway.

The bird area was between 3,600 feet and 6,200 feet.

But before the plane had left the end of the runway, the Control Tower had said, “Caution, birds on end of runway,” and that appears on page 14 of the record and then had added, “It looks like there are a million of them.”

Now, the plane started down, nevertheless, and took off at 2,800 feet.

When it took off the bird flushed into the air.

The plane hit the birds in this area over land, as Mr. Bostwick has said, 314 dead birds were found on the runway on land and the engines of the plane were filled with ingested birds.

The plane immediately lost power, the pilot endeavored to take what steps he could to get out of the situation.

He hit the perimeter fence of the airport here and a truck which was parked at the end of the airport and this statement on the exhibit E. McA is Mr. McAvoy's initial which he put on the exhibit to indicate that is the point where the truck was hit, all of this of this of course is on land.

By this time, the plane is almost hopelessly disabled and it was a miracle that it finally came through and the three persons on board came out.

These dotted lines are the course of the plane after hitting the truck, they too were put on the exhibit as the testimony of Mr. McAvoy.

Justice William J. Brennan: Who is Mr. McAvoy?

Mr. Griswold: Mr. McAvoy is a witness for the Plaintiff.

Justice William J. Brennan: Oh! I see.

Mr. Griswold: And the plane finally came to the rest -- to rest in the water here and this E. McA 9 is Mr. McAvoy's testimony that represents the place where it came to rest.

I may point out that this is the Cleveland breakwater here, all of this is inside the breakwater, that doesn't mean that it is not navigable water, but it is not the high sea on the lake, so to speak.

Now there is a reference in the briefs to the fact that the plane came to rest a fifth of a mile from the under the runway.

That is literally true, this being the end the runaway and it's a fifth of a miles there, but it was only 30 or 40 feet from land to the North that the plane came to rest.

It's clear that the damage to the engines was done and completed before the plane hit the water.

It is also clear that there was substantial damage to the airframe from hitting the fence and the truck and the birds, before the plane hit the water.

Justice Lewis F. Powell: General, where did you say the aircraft was when the Tower warned that there were a million birds?

Mr. Griswold: The aircraft was here at the end of the runway -- at the beginning of the runway before takeoff.

Justice Lewis F. Powell: It's run.

Mr. Griswold: I am sorry, sir.

Justice Lewis F. Powell: The aircraft has not started down --

Mr. Griswold: The aircraft had not started into the air at the time of warning was given.

Justice William J. Brennan: Could the flight have been aborted?

Mr. Griswold: The flight need not have started at all.

Justice William J. Brennan: I mean, was that the choice of the pilot.

It could not have been aborted by the tower?

Mr. Griswold: Yes, the tower could have instructed them not to go off.

Justice William J. Brennan: I mean we are talking about a million birds that --

Mr. Griswold: After you have given the pilot, the information there is a quite a bit of a practice in the air industry that the decision is up to the pilot, not to the controller tower.

This has not been tried in this case.

I suppose, this bears on the question of comparative negligence which might be relevant in admiralty and the contributory negligence which would be relevant, if it is not in admiralty.

Now the district court in this case, dismiss the libel in admiralty.

It found that it is manifest that the alleged negligence became operative upon the aircraft, the pilot was over the land and it added whether it came down upon land or upon water, was largely fortuitous, and the Court of Appeals affirmed on the ground that the tort occurred on land.

It's said in its opinion that the alleged tort occurred on land, even though the plane fell into the navigable water shortly after take off from the airport and that no right of action is cognizable in admiralty.

Justice Potter Stewart: What do you -- what do you understand them to be meaning when they say tort occurred on land?

As I understand it that of these three events here, two occurred on land and one on water.

One is the alleged negligence i.e. the failure to tell him not to take off, that was obviously on land.

Number two was the inflection of the initial damage by the birds and by fence and so on and that occurred on land.

And only the third occurred on water which was the eventual loss of the airplane.

Well, were they are talking about number one and number two when they said that tort occurred on land?

Mr. Griswold: Number three is hitting the --

Justice Potter Stewart: Well, I say that was birds.

Mr. Griswold: Perhaps, yes, that is perfectly --

Justice Potter Stewart: Well, were they talking about number one, i. e. the negligence?

Mr. Griswold: I don’t know Mr. Justice.

I suppose that’s a part of the issue in this case.

Justice Potter Stewart: Well, I just to -- how you understood the District Court and the Court of Appeal?

Mr. Griswold: There are two defendants here.

One, the City of Cleveland who Mr. Crocker represents and the other the Tower Controller and employee of the Federal Government whom I represent.

Mr. Crocker has generously given all of the time to me, but I am in a very real sense representing the City of Cleveland as well as the Airport Controller, and Mr. Crocker relies more heavily on this question of where was the tort than I do and I am sure that the Court will give careful consideration to his brief.

This was the ground upon which the Six Circuit Court of Appeals decided the case and it relied primarily on three decisions.

Now I know it is perfectly easy to go through this Court's admiralty cases over 100 years and find a case such as the one Mr. Bostwick referred to, the plaintiff, which rather refers to the consequences rather than to the point of impact.

The three cases which the Six Circuit relied on, Smith & Son against Taylor, Minnie against Port Huron Terminal Company and finally The Admiral Peoples are all cases in which the Court made the decision between admiralty and non-admiralty turn on the point of injury in the sense of point of impact.

In Smith & Son against Taylor a longshoreman was standing on a stage which rested on a port and projected a few feet over the water.

He was struck by a sling loaded with cargo which was being lowered over the side from the ship and not into the water.

And the Court held that was the – in -- the tort was on land and not in sea and that there could be no maritime recovery.

The next case Minnie against Port Huron Terminal Company is almost exactly the converse and The Admiral Peoples is a gangplank case.

There is slip and fall.

He slipped and fell on the gangplank and hit the port and that was held to be a ship injury, because the slip and fall was on the gangplank.

Now the only case that really deals with this kind of accident is the Third Circuit's decision in Weinstein against Eastern Airlines and I would like to point out that though decision is certainly doctrinally inconsistent with the Six Circuit, there are no facts appeared in that case which are anything like the facts which have been shown here with respect to the injuries on and over land.

For the Weinstein case arose on a motion to dismiss and the libel said that shortly after the aircraft had become airborne by reason of the negligence of the respondents and by virtue of their respective breach of warranties, said aircraft crashed into the navigable waters of Boston Harbor.

And that is all the allegation there is.

There is no allegation there that anything happened on or above the land and the issue arose on the exceptions of the Eastern Airlines, the facts averred in the libel do not constitute a cause of action against Eastern Airlines Inc. within the admiralty jurisdiction of this Court.

I would like to devote the -- I think the factual situation is clear to the Court and the basis of the decision below appeared clearly in its opinion and we rely on that.

But I would like to devote the rest of my argument to the broader question, should admiralty law apply to an airplane crash of this sort?

By that I am not weaving the place of the tort argument, I am seeking to present a broader ground.

The only reason that I can think of for bringing this within admiralty is a purely verbal one, namely that admiralty applies to the sea or in this country to in the navigable waters and this plane landed in the water ergo, admiralty jurisdiction.

But even on a verbal basis if we start by saying that admiralty relates to ships, then this case does not involve a ship and ergo, no admiralty jurisdiction.

Obviously, both of these approaches are essentially formal, I am not suggesting at all, of course, that admiralty must be confined to exactly what it covered in 1787 or 1789.

Obviously, the constitution should be construed so as to accommodate new developments.

Admiralty took in steamships when they came and admiralty was rightly extended to the in the navigable waters of the United States which were something not paralleled in Britain.

Similarly, the constitution gives Congress power with respect to an army and a navy and no one questions that, that applies also to an air force.

But it does not follow that admiralty should extend to every tort which occurs on water, if this tort did occur on water and specifically it does not follow that admiralty jurisdiction should be found to extend to airplane accidents of the sort involved here.

There is no decision of this Court saying that any sort of airplane accident is within admiralty jurisdiction.

There are not even any decisions of this Court applying the Death on the High Seas Act to an Airplanes Act.

Thus this Court will not have to overrule any of its decisions or any make break in its established law if it comes to the conclusion that airplane accidents at least of the sort involved here do not come within admiralty jurisdiction.

The leading case to the contrary is the Weinstein case, a careful and thoughtful opinion by Judge Biggs.

However, it’s perhaps worthy of note that Judge Van Dusen was the trial judge in that case.

He decided to the contrary and Judge Van Dusen is now on the Third Circuit Court of Appeals.

Indeed there was a certain amount of what layman at least might regard as lawyers playing games in the whole Eastern Airlines situation.

The crash occurred in Massachusetts, but that in that state has a narrow wrongful death statute with a limit on recovery fixed to $20,000.

So the suit was started in Pennsylvania where there is no such limitation and the Court of Appeals held there was admiralty jurisdiction.

After that though, counsel apparently gave further thought and feared that the court and admiralty might find that the Massachusetts statute was applicable because of the strength of these place of the tort decisions.

And so suits were then brought on the law side of the Pennsylvania court based on diversity of citizenship which was easy to do, because you can appoint a nonresident administrator.

And the suit was not based on the tort, but was based on breach of a contract of safe carriage as to which it was held at the Pennsylvania law applied and this is what was sustained by the Court of Appeals and they forwarded three decisions in Scott against the Eastern Airlines Company.

This Court denied certiorari in both of the Third Circuit cases, but that is as far as it has gone on this problem.

Why should not admiralty law apply to all torts which occur or indeed come to rest on navigable water?

One may as well ask the opposite question, why should admiralty law apply to all such torts when they have nothing to do with ships?

There is a fundamental difference between ships and airplanes, apart from the fact that ships float on the sea and airplanes go through the air.

This is that ships always stay on the water.

Of course they can go aground, but the water puts them there and they can be put and dried up, but it's appropriately even held that since they float there that; that’s within admiralty jurisdiction.

The sea is the nourishing source for a ship, but an airplane is based on the ground.

It flies equally well over land as oversea, whether it ever goes over the sea and when it is over navigable water is largely fortuitous.

It has nothing whatever to do with what by analogy we call the navigation of the airplane.

Now let us take the case of a plane which flies from New York to San Francisco.

It leaves the airport and circles over navigable waters as it picks up its westward course.

Then it across the Hudson River, a navigable water way, and after while it causes the Ohio River and then the Mississippi and then the Missouri.

In due course it crosses the Upper Colorado river and the Great Salt Lake, both of which have been held by this Court to be navigable.

It crosses the Sacramento River and then comes down across San Francisco Bay, at a point where the water is very shallow.

Perhaps it circles over the Pacific Ocean before coming in for a landing.

Does it make any sense to say that tort liability is the matter of State law, except in the cases where if there is a crash, the plane chances to hit a water way, navigable by ships with in the state.

If it bounces on the shore and comes to rest in the Mississippi River, which is essentially what it did here, then it's a matter for admiralty jurisdiction.

Despite the fact, that the whole venture bears no relation whatever to maritime commerce.

Yet that was the situation in the Eastern Airlines case, the plane can be rest a few feet in the water in Boston Harbor and that's the case here, for admiralty jurisdiction is claimed to rest on the place where the plane stopped after a land activity.

Chief Justice Warren E. Burger: I suppose too Mr. Solicitor General, you could have an approach to the Washington Airport that would bounce the airplane off of Potomac and on dry land on the runway if it missed by a few?

Mr. Griswold: That would be the converse and presumably that wouldn't be an admiralty if it stopped on dry land.

The problems which can be encountered, if one takes the verbal or formal view that admiralty jurisdiction extends to everything that happens on navigable waters, it can be illustrated by a number of decisions in the lower courts.

Some of them already been referred here and they orders of fall off of bridges, but there been cases on this.

A District Court in Florida has held that a suit by a swimmer who was struck by a surfboard is within admiralty jurisdiction.

A District Court in Tennessee is held that an injury to water skier is with in admiralty jurisdiction.

Other courts have gone the other way.

A District Court in New York is held that a women who was injured by a submerged object while bathing at a public beach cannot maintain a suit in admiralty.

And the court below has held in other cases that a swimmer who dove from a municipal dock into 18 inches of water, alleging negligence and falling to construct guard rails and post warning signs could not maintain a suit in admiralty, and in other case where the decedent fell from a dock and was drowned, the Court held there was no maritime jurisdiction and finally in Gowdy against the United States, an electrician was injured while repairing the machinery inside a light house on a breakwater.

He brought a libel in admiralty, and this was dismissed because the injury bore no relation to maritime commerce and navigation.

This Court denied certiorari in both two of these Sixth Circuit cases which perhaps even score from the two denials in Eastern Airline case.

Apparently, the earliest case involving an airplane which crashed in navigable water was decided in 1940, nearly 60 years ago.

That was Crawford Bros.

No. 2 and that's the name of an airplane not of the ship.

That was the libel in rem for repairs to an airplane which fell into Puget Sound and intervening libellant asserted a salvage claim, and the Court held that there was no jurisdiction in admiralty, saying they are neither on the land nor sea and not being of the sea are restricted in their activities to navigable waters, they are not maritime.

Now, reference may well maybe made to the Death on a High Seas Act which was enacted in 1920, the text of which appears on page 21 of our brief.

There is no reference in that statute or in this legislative history to airplanes.

It applies -- it is a Lord Campbell's Act, changing the common laws, so as to provide a cause of action for wrongful death in its terms, occurring on the high seas.

Congress made the Death on The High Seas Act applicable “on the high seas beyond the marine league from the shore of any state,” thus indicating rather clearly, it's understanding that the laws of the States were applicable in territorial waters, which is what we have here, and there was no need to extend admiralty jurisdiction to them.

Many courts have held, and I think rightly, that the Death on The High Seas Act applies to airplane accidents.

Air crashes do come within the literal language of the statute where the ultimate impact of the crash is on the high seas.

It is true that Congress said that the suit under the Death on The High Seas Act should be in admiralty.

As to this on or in connection with ships, this is of course clear, and within traditional admiralty jurisdiction.

Congress was not thinking of airplane accidents, when it passed this statute.

There was no need for it to extend admiralty jurisdiction to airplane crashes causing death, for it would have ample power to provide for recovery for a wrongful death in air accidents under its power to regulate interstate and foreign commerce and not to mention the broad powers which can be found in the Curtis Wright decision of this Court.

When the statute is properly extended to airplane accidents, it may well be that it should not be constituted to mean that such suits are actually in admiralty, but rather the Congress prescribes that the recovery though at law, should be as if in admiralty, somewhat as the State law was applied by this Court as a part of Federal Law in the marine case decided a year or so ago.

That is with the measure of recovery and such things as comparative negligence to be determined by the standards of the admiralty rules.

As long as the law stays in its present state, we will have innumerable fruitless borderline problems, such as this.

And results in particular cases will be fortuitous and understandable only to the most intricately minded lawyers.

There will be disputes as to where tort occurred, the doubts about the question that Mr Justice Stewart asked me, and whether the controlling factor is, where the impact occurred, which made it inevitable, that the plane would crash, or whether the question on which jurisdiction turns is where the plane came to rest.

As I see it, there are several ways, in which the question can be disposed off.

At first, the Court can hold, as I think it should, that airplane crashes having no connection with a ship, do not come within admiralty jurisdiction.

As I have said, this Court would not have to overrule any of its decisions to reach such a result.

Such a decision would be in accord with current modern British law.

There is a British statute which provides that His Majesty by Order in Council may provide the court and the rules which apply to airplanes and the only order that has ever been issued is that actions by/or against an airplane, with respect to salvage pilotage and towage, shall be in admiralty, but nothing else, and those three items that makes a certain amount of sense to have it in admiralty.

Justice Potter Stewart: Under this first proposed text Mr. Solicitor General, do I understand correctly that you would say if a plane was flying from New York to London and crashed in mid-Atlantic on account of somebody's negligence that admiralty there would have jurisdiction?

Mr. Griswold: I have -- my position on this is, that would not be an admiralty.

Justice Potter Stewart: That would not be?

Mr. Griswold: That would not be.

Justice Potter Stewart: Even though --

Mr. Griswold: It has nothing to do with the ship that --

Justice Byron R. White: The Death on The High Seas Act?

Mr. Griswold: The Death on The High Seas Act would apply, because Congress has power to enact it under the interstate and foreign commerce power.

Justice Potter Stewart: But that even an international flight such as that, cross-Atlantic or cross-Pacific, that would not be in admiralty even though --?

Mr. Griswold: That is the position which I am seeking to advance to the Court and that's the one which seems to me to -- when you get all through with it to work out the most satisfactory.

I can think of no reasons why there should be as airplane are not ships.

When the admiralty developed, ships had no power of their own.

They were large structures floating on the water, subjected to the vagaries of winds and tides and currents and always subject to the risk of collision, no matter how careful the master or the pilot might be.

It was in this situation that the rules of comparative negligence developed in admiralty.

No one contends that airplane crew members are entitled to maintenance and cure or that they are wards of the admiralty.

I know of no case applying the admiralty doctrine of general average to an airplane nor is the law of limitation of liability applicable to them.

After all, an airplane after it's crashed is probably as worthless in water, as about as worthless as anything can be.

A mortgage on an airplane is not a maritime contact and a suit on such a security interest cannot be brought in admiralty.

Having gone so far to recognize that airplanes are not ships, and they are not within admiralty jurisdiction, it might be well to hold that they are not within admiralty jurisdiction for tort purposes.

Thus, eliminating a number of fruitless line drawing problems, if airplanes are held to be within admiralty for some purposes, and not for others.

Justice Byron R. White: But in your brief, you say, “in our view, an aircraft maybe (Inaudible) maritime commerce navigation only when it is (Inaudible)?”

Mr. Griswold: Yes, Mr. Justice.

My overall argument goes beyond the brief.

I have allowed the processes of thought to take effect.

Justice William J. Brennan: Well, I must say, we all misunderstood you.

Mr. Griswold: And as I have worked on this case, I have found myself less willing to stand on that ground which is the broad ground of the Six Circuit, and as it became more clear to me that there is no decision of this Court as to be overruled, qualified, the Court has never dealt with the problem.

Justice Byron R. White: You always say, yes, we do have to ignore that plane (Inaudible) conventional act?

Mr. Griswold: No, Mr. Justice.

Justice Byron R. White: Why not?

Mr. Griswold: Because the --

Justice Byron R. White: It says (Inaudible)

Mr. Griswold: And Congress may well have power to extend it to admiralty.

Justice Byron R. White: Well, it does say in admiralty?

Mr. Griswold: Alright, but Congress didn't have the slightest idea that it was talking about airplanes when it passed that statute.

Justice Byron R. White: But you still say Death on The High Seas Act applies?

Mr. Griswold: I say that Death on The High Seas Act applies, because Congress -- because it makes sense to apply it under all the circumstances and Congress has power to enact it under the foreign commerce power, even though it may not have had power to do it.

Justice Byron R. White: (Inaudible)

Mr. Griswold: My basic argument is, that's not presented in our brief, that this does not fall within the admiralty power.

Justice Potter Stewart: But the tort law with respect to aviation has nothing to do with admiralty?

Mr. Griswold: Unless perhaps the airplane that's a ship, which --

Justice Potter Stewart: How about a sea plane?

Mr. Griswold: Sea plane is another matter.

Justice Byron R. White: That's your problem?[Laughter]

Mr. Griswold: No, but hydroplanes is another matter.

If this were done, all the nip picking involved in this case would be eliminated.

If the crash occurred in territorial waters, as these two of the crash here, the law of the State would apply, as it would be the case that this plane had ended up on the end of the runway.

If the crash occurred on the high seas, the State Courts would have jurisdiction or the Federal Courts might have jurisdiction in diversity cases or Congress could extend jurisdiction generally to the Federal Courts since Interstate or foreign commerce is necessarily involved.

The Death on The High Seas Act would be applicable.

I am troubled about the word admiralty in the statute.

If there was a nonfatal crash, or if there was a suit with respect to loss of property, the courts could fashion a common law remedy or Congress could legislate if that was thought necessary.

Now my time has expired, but my second alternative would be to say that this case only involves territorial waters and at least as far as territorial waters is concerned, it is not admiralty.

As to the international flight to London, the Court could either hold or leave open the question whether crash is outside the limits of any state or within admiralty jurisdiction.

My third ground would be essentially that of the Six Circuit Court of Appeals, and that taken in our brief that there must be some kind of a maritime nexus which we contend is not adequately found, merely by reason of the fact that the crash comes to rest in the navigable waters.

And finally the Court could hold that, yes, it is admiralty, but the important place if it is admiralty is where the impact takes place.

Here the impact was over the sine qua non, the event beyond which there was no way to avoid the crash occurred over a land than it was on that ground that the court below decided the case.

It seems to me that the Court is confronted here with something in a sense a little like the situation presented by the Genesee Chief, where the Court extended admiralty to the inland waters.

Here we have a new means of transportation, we have two generations of experience with it.

Nothing has indicated any reason why it is useful or desirable or necessary to have it in admiralty and the Court might well provide, might well decide that neither within the history nor the proper scope of admiralty, should airplane accidents of this sort be held to be within admiralty jurisdiction.

Chief Justice Warren E. Burger: Mr. Bostwick, we'll enlarge your time a little here.

You will have 5 minutes.

Rebuttal of Phillip D. Bostwick

Mr. Phillip D. Bostwick: Thank you very much, Your Honor.

I'll be very brief.

With regard to few of the question concerning the facts of the allegations of contributory negligence.

I just would like to clear up that in an un-sworn statement, the Air Traffic Controller did say that he said to the pilots, it looks like a million birds or words of that effect.

However, there is no tape recording in this case from the tower for an unknown reason and it is undisputed that the pilots did not acknowledge hearing that transmission and asked for a further clearance for takeoff and it is un-contradicted that, on the second clearance, the air traffic controller simply said, “cleared for takeoff” without any reference to the birds at all.

And I think it is clear beyond doubt in the regulations that the traffic controllers do have the power to hold aircraft on the runway when there are dangers on the runaway.

Now with regard to the legal points raised by the Solicitor General, I would just simply state that it is true, there are no decisions by this Court concerning aircraft crisis in navigable waters.

As the judge pointed out in the dissenting opinion, there are however, about 30 years worth of decisions in the lower Federal Courts concerning this very point, both under the Death on The High Seas Act, the personal injury cases, property damage cases, cases within the general maritime law, under the general maritime law within territorial navigable waters.

Without exception, every one of those cases hold that the tort claims arising out of the crash of an aircraft in the navigable waters is cognizable in admiralty.

The case with the court below, is the only case to my knowledge, other than Judge Van Dusen's decision, which was reversed in Weinstein holding that such crash is not cognizable in admiralty.

Therefore, I know that this Court is aware of line of precedent, I also know that it is conceivable, this Court can now enunciate a totally new rule without regard to those lower court decisions.

Justice Byron R. White: But if the holding is inconsistent with the cases that hold that you fall off, if you have knocked off a doctor in the navigable waters, it's not an admiralty case?

Mr. Phillip D. Bostwick: Isn't the court below's opinion wholly consistent with ours, is that -- I am sorry?

Justice Byron R. White: Isn't what the United States is asserting here consistently?

Mr. Phillip D. Bostwick: Well, I don't believe so Your Honor.

It seems to me that the United States has virtually conceded, the government has virtually conceded a conflict between --

Justice Byron R. White: Well, isn't Cleveland's position then -- the city of Cleveland's position is wholly consistent with the wharf cases?

Mr. Phillip D. Bostwick: Cleveland's position is that the wharf case is controlling, and we would urge that because of the very playing a game, which was referred to by the Solicitor General and the very complexity and the need to have pre-litigation concerning jurisdictional questions and questions of which substantive law is applicable, that this Court should not follow that rule.

This court should enunciate a rule, such as found in the Federal Rule of Civil Procedures to reach just median inexpensive determination of the litigation on the merits.

There should be a rule which determines these questions of jurisdiction applicable substantive law without regard to metaphysical phrase such as, where causes of action arise or where torts occur or where the impact occurs.

This language which is found in the Longshoreman and Harbor Workers' compensation cases, we say, has no place in the future of aviation and space activities, and we would rest primarily on the decisions of the Third Circuit in Weinstein and on the dissenting court in judging of this case.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Bostwick.

Thank you Mr. Solicitor General.

The case is submitted.