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October 21, 1957

Jenny FERNANDEZ and Herman Varela, as Administrators of the Estate of Elvia B. Varela, Deceased, Libelants,

The opinion of the court was delivered by: DAWSON

Two motions have been presented to the Court. The first one brings up exceptions by the respondents to the five alleged causes of action contained in the libel, on the ground that the libel fails to state causes of action either in admiralty or at law. The second motion seeks to transfer the second, third, fourth and fifth causes of action from the admiralty to the civil docket.

The action was started by a libel in admiralty. It was brought by the administrators of the estate of Elvia B. Varela who is alleged to have been a stewardess on board an aircraft owned and operated by the respondents which crashed into the Atlantic Ocean more than one league from the shore line of the United States on June 20, 1956. It is alleged that the crash caused the death of the stewardess and that the occurrence was brought about by the negligent operation of respondent's aircraft.

Five causes of action are alleged. Respondents contend that none of the causes of action states a claim upon which relief can be granted.

 The first cause of action alleges that a cause of action has been afforded to libelants by the Death on the High Seas Act, 46 U.S.C.A. § 761-767.

 Respondents deny that this act affords a cause of action under the circumstances set forth in the libel. The Court of Appeals for the Second Circuit has expressly reserved ruling on the question of whether this act grants a right of action for death in the airspace. See Noel v. Linea Aeropostal Venezolana, 2 Cir., 247 F.2d 677. However, the act has been deemed applicable to airplane crashes in a number of cases where the crash occurred over the ocean. Wilson v. Transocean Airlines, D.C.N.D.Cal.1954, 121 F.Supp. 85; Higa v. Transocean Airlines, D.C.Hawaii 1954, 124 F.Supp. 13; Choy v. Pan-American Airways Co., 1941 A.M.C. 483 (S.D.N.Y.1941). See also, 55 Colum.L.Rev. 907, n. 56; 41 Cornell L.Rev. 243 at p. 245 (1956).

 Respondents do not seek to dismiss the first cause of action on the general ground that the Death on the High Seas Act is not applicable to death resulting from an airplane crash. Rather they contend that the only part of the act applicable is § 4 of the act, 46 U.S.C.A. § 764, *fn1" which makes recovery contingent upon the right of action granted by the law of the foreign state. Respondents contend that § 1 of the act, 46 U.S.C.A. § 761, *fn2" does not create a cause of action when death occurs on board a foreign flag ship or plane outside of the territorial waters of the United States, on the ground that under the circumstances only the law of the flag applies. They urge that the only remedy available to a representative of the person whose death occurred on board a foreign ship or plane outside of the territorial waters of the United States is that accorded by the foreign law, and that although an action may be brought in admiralty in this Court, pursuant to § 764 of Title 46, no independent cause of action (not growing out of the rights granted by the foreign law) may be maintained in this Court. This position would mean that no action would lie for wrongful death on the high seas unless death occurred on a plane or vessel which flew the flag of a nation which had by statute granted a cause of action for wrongful death. This would be a harsh rule and would hardly seem consonant with the intent of Congress in adopting the Death on the High Seas Act. If Congress had intended that only the law of the flag was applicable to actions for death on the high seas, then § 4 of the act would be sufficient to preserve such cause of action. But the act as passed preserved not merely rights under foreign law, but also, by § 1 of the act, gave an additional right to the personal representative of the deceased to maintain an action against the 'vessel, person, or corporation which would have been liable if death had not ensued.' As the court said in Wilson v. Transocean Airlines, supra, 121 F.Supp. at page 94: 'By these words the statute gives a right of action where none existed before.'

 Whether Congress had the power to create such a cause of action, or intended to create such a cause of action, where death occurred on a foreign ship or plane on the high seas, has been the subject of much discussion. *fn3" It is urged that in Lauritzen v. Larsen, 1953, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254, a case dealing with the application of the Jones Act, 46 U.S.C.A. § 688 to foreign seamen on foreign ships, the Supreme Court held that in the absence of a clear showing of different Congressional intent, such maritime statutes would be considered to apply only to areas and transactions in which American law would be considered operative under prevalent doctrines of international law. However, the Jones Act was, in practical effect, a labor law regulating the rights of seamen; and in the absence of definite legislative intent to the contrary, it would be proper to assume that it was not intended to regulate the rights of foreign seamen on foreign ships. See O'Neill v. Cunard White Star Lines, 2 Cir., 1947, 160 F.2d 446, certiorari denied 332 U.S. 773, 68 S. Ct. 56, 92 L. Ed. 358.

 But when we are dealing with death acts, such as Lord Campbell's Act, 9 & 10 Vict., c. 93, or the Death on the High Seas Act, we are dealing with a different situation. The courts have held that in the absence of a statute an action could not be maintained for death caused by negligence. See The Harrisburgh, 1886, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358. These cases did not develop from the principle that no right existed, or that no wrong had been done, but rather that whatever cause of action had existed had died with the death of the person injured and could no longer be asserted even by the next of kin or the estate of the deceased victim. To correct this situation death acts have been passed in nearly all jurisdictions. This still left a vacuum in the case of deaths which might result from accidents on the high seas. To allow actions to be maintained for deaths in this situation the Death on the High Seas Act was enacted. See Hughes, Death Actions in Admiralty, 36 Yale L.J. 115 (1921). While the maintaining of a death action is sometimes loosely referred to as a 'substantive right,' it is, properly speaking, not a 'right' but rather a 'power' which removes a previous 'disability.' See Fundamental Legal Conceptions as Applied in Judicial Reason, by Professor Hohfeld, 26 Yale L.J. 710 (1917). The 'right' depends on whether a wrong has been committed and this, of course, depends upon where the act was committed. An act in one area may be a wrong, but in another area may not be a wrong. The Death on the High Seas Act recognizes this distinction for it does not create a cause of action or grant a right of recovery for death in every situation but only against those defendants 'which would have been liable if death had not ensued.' Thus the liability for an accident causing death would be dependent upon the law of the place where the accident happened -- and if it happened on a foreign ship it might well be dependent upon the law which would be applicable to that ship. The right of action for negligence would depend upon the law of the place of the accident, but the 'power' to maintain the action would not be dependent upon the locus of the accident but rather upon the forum which exercised that power. In this country the admiralty courts have assumed jurisdiction to the extent that the laws of the country extend that jurisdiction. Thus in The Buenos Aires, 2 Cir., 1924, 5 F.2d 425, the Court of Appeals for this Circuit held that under the Death on the High Seas Act a Spanish vessel was liable in an action in rem for the death of a seaman, even though there was no right of action in rem under the Spanish law.

 In the Scotland, 105 U.S. 24, 29, 26 L. Ed. 1001, the Supreme Court said:

 'In administering justice between parties it is essential to know by what law or code or system of laws, their mutual rights are to be determined. When they arise in a particular country or State, they are generally to be determined by the laws of that State. Those laws pervade all transactions which take place where they prevail, and give them their color and legal effect. Hence if a collision should occur in British waters, at least between British ships, and the injured party should seek relief in our courts, we would administer justice according to the British law, so far as the rights and liabilities of the parties were concerned, provided it were shown what that law was. If not shown, we would apply our own law to the case. In the French or Dutch tribunals they would do the same. But, if a collision occurs on the high seas, where the law of no particular State has exclusive force, but all are equal, any forum called upon to settle the rights of the parties would, prima facie, determine them by its own law as presumptively expressing the rules of justice; but if the contesting vessels belonged to the same foreign nation, the court would assume that they were subject to the law of their Nation carried under their common flag, and would determine the controversy accordingly. If they belonged to different Nations, having different laws, since it would be unjust to apply the laws of either to the exclusion of the other, the law of the forum, that is, the maritime law as received and practiced therein, would properly furnish the rule of decision. In all other cases, each Nation will also administer justice according to its own laws. And it will do this without respect of persons, to the stranger as well as to the citizen. If it be the legislative will that any particular privilege should be enjoyed by its own citizens alone, express provision will be made to that effect. Some laws, it is true, are necessarily special in their application to domestic ships, such as those relating to the forms of ownership, charter-party, and nationality; others follow the vessel wherever she goes, as the law of the flag, such as those which regulate the mutual relations of master and crew, and the power of the master to bind the ship or her owners. But the great mass of the laws are, or are intended to be, expressive of the rules of justice and right applicable alike to all.'

 The admiralty law of the United States, as expressed in the Death on the High Seas Act, now grants power to the admiralty courts to entertain an action for a wrong done on the high seas even though the person injured has died as a result of the wrong. This power granted to the courts is applicable even though the wrong occurred in an area not subject to the laws of the United States.

 The motion to dismiss the first cause of action is denied.

 The second cause of action alleges that a cause of action has been afforded to the libelants under the Convention for Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. Part II, p. 3000 et seq. (1934), usually called the 'Warsaw Convention.' The Court of Appeals for this Circuit has held, in a case growing out of the same airplane accident, that the Warsaw Convention does not provide an independent cause of ...

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