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March 17, 1950

CORDOVA et al.

The opinion of the court was delivered by: KENNEDY

On March 30, 1949, an information was filed against the defendant Cordova, along with one Santano, the charge consisting of four counts: 1) that on August 1, 1948 Cordova assaulted on Machada, pilot of an airplane owned by Flying Tigers, Inc., an American corporation, while the plane was flying over the high seas from San Juan, Puerto Rico, to New York; 2) that at the same time and place Cordova assaulted one Santiago, stewardess of the air carrier; 3) that at the same time and place Cordova assaulted the codefendant Santano; and 4) that at the same time and place Santano assaulted Cordova.

The statutory bases for jurisdiction alleged in the information are respectively (a) the act forbidding striking, wounding and beating and simple assault within the admiralty and maritime jurisdiction of the United States, 18 U.S.C.A. § 455, now 18 U.S.C.A. § 113(d) and (e), (b) the act defining the admiralty and maritime jurisdiction, 18 U.S.C.A. § 451, now 18 U.S.C.A. § 7, and (c) the venue statute for the prosecution of crimes within the admiralty and maritime jurisdiction, 18 U.S.C.A. § 102, now 18 U.S.C.A. § 3238. The pertinent portions of these statutes, as they existed on August 2, 1948, the date of the alleged offenses, are given in the margin: *fn1"

 As will appear shortly, after the facts have been outlined, the revision of the criminal code has no bearing on the case: the relevant statutes are substantially the same now as they were at the time of the offenses set forth in the information.

 When the trial commenced, the government moved to dismiss the fourth count of the information (which charges the codefendant Santano with assault upon the defendant Cordova), a jury was waived, and the cause was tried to the court. Motions appropriate to challenge the jurisdiction of the court over the offenses charged were made at every stage of the case. These included a motion addressed to the information, a motion for the direction of an acquittal at the end of the government's case, and the same motion at the end of the whole case, coupled with a motion in arrest of judgment.

 The facts are simple and clear. At 6:42 P.M., New York time, the carrier plane DC-4 No. NC-90911 took off from San Juan Airfield in Puerto Rico, bound for New York. The plane is the property of Flying Tigers, Inc., an American corporation, and at the time of the flight was under charter to Air America, Inc., another American corporation, organized under the laws of California. On board when the flight began were 60 passengers and 6 crew members. Of the passengers 43 were adults, 11 were children under 2 years of age, and 6 were children over that age.

 At 8:15 P.M. on August 2, 1948 the plane, travelling at an air speed of 180 m.p.h., was over the Atlantic Ocean on a course 324 degrees true bound for Charleston, S.C., having been on her course for 1 1/2 hours. This means that the plane was to the northward of the Bahama Islands at a point approximately 270 miles northwest of San Juan, Puerto Rico. The plane's altitude was 8,500 feet. At that time (8:15 P.M., August 2, 1948) the plane became tail heavy, and her indicated air speed fell from 180 miles per hour to 150 miles per hour. The nose was rising so fast that the automatic pilot could not make corrections which would keep the ship on an even keel, and it became necessary to adjust the instrument. At this juncture the steward notified the pilot Machada that there was a fight going on in the passenger compartment. Machada turned the controls over to his First Officer and went aft. What he found was a brawl in progress between the passengers Cordova and Santano, which the steward and the stewardess (one Santiago) had been attempting to stop in vain. The passengers had crowded aft to watch the fight; it was because of this fact that the plane had become tail heavy.

 Machada intervened, with the result that the defendant Cordova bit him on the shoulder, and during this portion of the fracas Cordova struck not only his adversary Santano, but also the stewardess Santiago.

 The story of the origin of the fight is an old one. Apparently when these planes leave from San Juan, the relatives and friends of the passengers participate in a bon voyage celebration, the principal attraction being Puerto Rican rum in large quantities. And to fortify themselves for the flight, on this particular occasion many of the passengers, including Cordova and Santano, had boarded the plane with bottles of rum in paper shopping bags, which they took to their seats. Cordova and Santano had been toasting each other effusively for the first part of the flight, but soon a dispute arose over a missing bottle. Cordova seems literally to have gone berserk: while the main object of his viciousness was Santano, anyone else who crossed his path, including the captain of the plane, was in danger. The efforts of Machada (the captain) to subdue Cordova were reasonable. He began by attempting to hold Cordova's arms. At that time the weather being warm, Machada was wearing no flight jacket, and Cordova, attempting to free himself, bit Machada in the shoulder, drawing blood and necessitating first aid treatment. Eventually Cordova was locked up in a compartment.

 The plane landed at La Guardia Field at 4:45 A.M. on August 3, 1948. Cordova and Santano were immediately apprehended in this District and charged with assault. It thus appears that the venue requirements of the statute, 28 U.S.C.A. § 102, heretofore quoted in the margin, are satisfied if a crime within the jurisdiction of the United States Courts was committed. It is also plain that Cordova did, in fact, and without just cause or excuse strike and bite Machada (count 1), Santiago (count 2), and Santano (count 3). The case under the third count is weaker than the others, because Santano was at least in the beginning himself an active participant in the fight. Later, however, he attempted to retreat when the pilot of the plane and the stewardess intervened and the striking or biting which were then committed by Cordova on all three victims clearly violated the terms of the specific substantive statute, 18 U.S.C.A. § 455, heretofore quoted in the margin.

 But the statute condemning striking, wounding and beating, and simple assault, within the admiralty and maritime jurisdiction of the United States does not become operative unless the acts complained of meet one of two tests, 18 U.S.C.A. § 451: (1) Were those acts committed on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State? or (2) Were those acts committed within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State on board any vessel belonging in whole or in part to the United States or any citizen thereof or any corporation created by or under the laws of the United States, or of any State, Territory or District thereof?

 The second question gives less difficulty than the other, and perhaps should be dealt with first. The answer that ought to be made turns on the question whether an airplane is a vessel, within the meaning of the statute, and obviously the answer should be in the negative.

 In the famous Reinhardt case, Reinhardt v. Newport Flying Service Corp., 1921, 232 N.Y. 115, 133 N.E. 371, 18 A.L.R. 1324, Judge Cardozo, speaking for the unanimous Court of Appeals, held that a hydroplane, which had been moored in navigable waters and had begun to drag her anchor was within the admiralty jurisdiction. This holding was necessary for the decision of the case, because the problem before the court was whether the New York State Workmen's Compensation Commission had jurisdiction to make an award to an employee engaged in attempting to save the plane when she was in danger of being wrecked. The lower courts had upheld the Commission's jurisdiction, but the Court of Appeals reversed. Once the conclusion was reached that while afloat in navigable waters a hydroplane is a 'vessel' within the admiralty jurisdiction, it became clear that the jurisdiction of the Compensation Commission was excluded. Knickerbocker Ice Co. v. Stewart, 1919, 253 U.S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A.L.R. 1145.

 Judge Cardozo was careful to point out in dictum that even a hydroplane, while in the air, is not subject to the admiralty, citing Crawford Bros. No. 2, D.C. Wash. 1914, 215 F. 269, 271, a case which held that the admiralty has no jurisdiction to enforce a lien for repairs against an airplane on the theory that it is a vessel. The rationale of the Crawford case was that planes 'are neither of the land nor sea, and, not being of the sea or restricted in their activities to navigable waters, they are not maritime'. A similar conclusion was reached, after the Reinhardt decision, in United States v. Northwest Air Service, Inc., 9 Cir., 1935, 80 F.2d 804. There an unsuccessful attempt was made to assert a maritime lien against an airplane libeled by the United States because of violations of the Air Commerce Act of 1926, 49 U.S.C.A. §§ 177(b), 181(b), the Tariff Act of 1930, 19 U.S.C.A. §§ 1454, 1459, and the Customs Regulations of 1931. The basis for the maritime lien was the performance of work on the plane's engine while she was in a hanger on the shore of Lake Washington.

 Objection may be made that the cases so far mentioned are civil cases, and for that reason have no important bearing on questions of federal criminal jurisdiction. However, in McBoyle v. U.S., 1931, 283 U.S. 25, 51 S. Ct. 340, 341, 75 L. Ed. 816, Mr. Justice Holmes, construing the National Motor Vehicle Theft Act, held that it did not apply to a case where an airplane was stolen. The language of the criminal statute, 18 U.S.C.A. § 408 (now § 2311), was very broad: 'The term 'motor vehicle' when used in this section shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails'. Of course, literally an airplane is a self-propelled vehicle not designed for running on rails. But Mr. Justice Holmes reasons that Congress was using the word 'vehicle' in the popular sense, and that even though airplanes were well-known in 1919 when the statute was passed, Congress had laid down a rule of conduct 'in words that evoke in the common mind ...

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