Before CHASE, HINCKS and LUMBARD, Circuit Judges.
The narrow issue in this case is whether plaintiff may bring a civil action based on either the Warsaw Convention, 49 Stat. 3000 (1934), or the Federal Death on the High Seas Act, 46 U.S.C.A. §§ 761-767, for a death which allegedly occurred in the airspace over the high seas.
Since this case was disposed of on a dismissal of the complaint, the facts before us are those alleged in the complaint, as amended.
Plaintiffs, the executors of Marshal L. Noel's estate and citizens of New Jersey and Pennsylvania, brought an action in the United States District Court for the Southern District of New York on the civil side against the defendant, a corporation or entity owned by the United States of Venezuela. In their complaint, plaintiffs allege that on June 19, 1956, the decedent, Marshal L. Noel, boarded defendant's four-engine Super Constellation enroute from New York to Caracas, Venezuela. At 1:30 A.M. on June 20 when the plane was over the Atlantic Ocean approximately 30 miles from New Jersey, Noel was killed, allegedly because of defendant's "wrongful acts, neglect, default, and wilful misconduct." In their original complaint, plaintiffs alleged that the plane crashed into the sea and that Noel died in the water.The action was based on the Warsaw Convention and the Federal Death on the High Seas Act, and plaintiffs demanded a jury trial.
Judge Cashin dismissed the original complaint for lack of jurisdiction over the subject matter on the ground that (1) actions under the Federal Death on the High Seas Act are cognizable only in admiralty; (2) the Warsaw Convention does not create an independent right of action. Judge Cashin noted that "it is not contended that the admiralty forum would deny to the plaintiffs their substantive cause of action for wrongful death." [144 F.Supp. 361.]
Plaintiffs then amended their complaint to allege that the death occurred in the airspace over the high seas. They contended that because the death occurred over the water, an action based thereon cannot be brought in an admiralty forum, and if the jurisdiction for actions under the Federal Death on the High Seas Act is exclusively admiralty, then they are without a remedy and that in such circumstances the Warsaw Convention grants them a right of action. Defendants objected to plaintiffs' procedure in amending the complaint and moved again to dismiss on the merits. Judge Cashin, choosing to dispose of the case on the jurisdictional, rather than the procedural grounds, ruled that there should be no material difference between deaths in or above the water, and adhered to his original decision. 154 F.Supp. 162. For a different and narrower reason, we affirm.
1. The Warsaw Convention.
Plaintiffs allege first that under New York law, Article 17 of the Warsaw Convention creates an independent right of action*fn1 and since this complaint alleges diversity jurisdiction, under Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477, we must follow the law of New York and also hold that the Warsaw Convention provides an independent right of action. We do not agree.
Although jurisdiction of the first count under the Warsaw Convention is allegedly based on diversity, the law to be applied in this case is not state law but a federal treaty. It is applied in the state courts not because it expresses a state policy which a federal court must follow, but because it expresses federal policy which a state court must follow. And in interpreting a federal treaty, the federal courts are certainly not bound by state court interpretations.*fn2
In any event, we agree with our prior decision in Komlos v. Compagnie Nationale Air France, 2 Cir., 1953, 209 F.2d 436, 438, which impliedly agreed with Judge Leibell's decision. Komlos v. Compagnie Nationale Air France, D.C.S.D.N.Y.1952, 111 F.Supp. 393, that the Convention did not create an independent right of action. As Judge Leibell pointed out, Secretary of State Hull's letter to President Roosevelt, dated March 31, 1934, indicated that the effect of Article 17 on which plaintiffs rely for their argument was only to create a presumption of liability, leaving it for local law to grant the right of action.*fn3 As one authority has stated, the purpose of the Convention was only "to effect a uniformity of procedure and remedies." Orr, The Warsaw Convention, 31 Va.L.Rev. 423 (1945); see also Comment, Air Passenger Deaths, 41 Corn.L.Q. 243, 255-60 (1956); Fixel, The Law of Aviation, § 23 (1948).
Plaintiffs, relying on a dictum in Judge Leibell's opinion in Komlos, 111 F.Supp. at page 393, argue that where the law of the place of the injury provides no right of action or where there is no law of the place of injury the Warsaw Convention provides one. They then argue that the Federal Death on the High seas Act does not grant them a right of action, for that does not apply to deaths in the airspace.
We see no justification for such a reading of the Convention. The language of Article 17 does not indicate any difference between situations where the law of the place of injury does grant a right of action and where it does not.See Comment, 41 Corn.L.Q. at 256. Nor does the history of the Convention support this dictum. Thus, regardless of ...