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KRAUSE EX REL. STUBBS v. REPUBLIC AVIATION CORP.

July 12, 1961

Charles F. KRAUSE, Administrator and Personal Representative of George T. Stubbs for and on behalf of Janet Lenora Baker Stubbs, and the minors, Mary Margaret Stubbs and Laurie Lucille Stubbs, Libellant,
v.
REPUBLIC AVIATION CORPORATION and Sud-Aviation, Societe Nationale De Constructions Aeronautiques, Respondents



The opinion of the court was delivered by: BARTELS

Hearing on exceptions and objections by respondent Sud-Aviation, Societe Nationale De Constructions Aeronautiques (herein sometimes 'Sud-Aviation') to the libel herein.

The libel asserts two claims each based upon breach of warranty, res ipsa loquitur and specific acts of negligence, seeking damages for the wrongful death of libellant's decedent. Each claim asserts that Sud-Aviation Manufactured and Republic Aviation Corporation (herein 'republic') owned a certain helicopter known as Alouette II which was leased to the employer of libellant's decedent, that said helicopter was not properly designed, did not operate properly, was returned to Republic for repair, and that after Republic repaired the helicopter, the helicopter because of negligence or defect, was unairworthy and crashed into the Gulf of Mexico twenty miles south of Leeville, Louisiana, causing the death of libellant's decedent.

The First Cause of Action is pleaded under the Death on the High Seas Act, 46 U.S.C.A. 761 et seq., and is objected to on the grounds that the location of the crash is not on the high seas but within the territorial waters of Louisiana. This objection is based on the fact that Louisiana, by statute (Title 49, Section 1, Louisiana Revised Statutes) claims a boundary which extends three marine leagues (nine nautical miles) into the Gulf of Mexico, and is answered by the libellant's assertion that even though the death occurred within three marine leagues from the coast it occurred more than one marine league (three nautical miles) from the shore and therefore the Federal statute is applicable.

 The Second Cause of Action is pleaded under Louisiana's wrongful death act (9 L.S.A.-Civil Code art. 2315) and prays that if there be no jurisdiction in this Court under the Federal Death on the High Seas Act, the action be transferred to the civil side of this Court on the basis of diversity of citizenship. Respondent objects to this Cause of Action on the ground that the Court lacks jurisdiction over its person and that an action under the State statute, pleaded as a civil action, may not be brought on the admiralty side of this Court. In support of this objection it asserts that jurisdiction was originally obtained by a writ of foreign attachment, and that only after its attorneys entered an appearance upon the understanding that the attachment would thereupon be dissolved did respondent receive a copy of the libel and learn of the existence of a cause of action pleaded under the Louisiana wrongful death act. It therefore contends that since this action could not have been commenced on the civil side of this Court by a writ of foreign attachment it cannot now be transferred to the civil side. Libellant answers that the action is cognizable in admiralty and that the prayer for transfer was for the sole purpose of preserving libellant's jury right.

 Respondent's third objection to the libel prays for the deletion of all references to 'warranties' contained in both Causes of Action. It contends that there was no privity of contract between it and libellant's decedent, which privity is essential to any claim of breach of warranty under the law governing the contract, alleging that this law is the law of France. Libellant counters that not only were warranties made directly to decedent's employer and decedent, but that strict privity of contract is not required herein.

 Action under the Federal Death

 on the High Seas Act.

 As previously indicated, this is a suit in admiralty commenced by the service of a writ of foreign attachment. The pertinent provisions of the Death on the High Seas Act, 46 U.S.C.A. 761 and 767, read as follows:

 '761. Right of action; where and by whom brought

 'Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.'

 '767. Exceptions from operation of chapter

 'The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter. Nor shall this chapter apply to the Great Lakes or to any waters within the territorial limits of any State, or to any navigable waters in the Panama Canal Zone.'

 The libel alleges that the accident occurred 'approximately twenty (20) miles south of Leeville, Louisiana' and the Exceptive Allegations and Exhibit A attached thereto establish the scene of the accident approximately five nautical miles from the Louisiana coast, which is admittedly 'beyond a marine league from the shore' of that State. Apparently there is no question as to the scene of the accident.

 The respondent argues that the place of the accident, although five nautical miles from the coast or shore, is nevertheless within the territorial limits of the State and that hence Louisiana's wrongful death act (9 L.S.A.-Civil Code art. 2315) is applicable and not the Federal Death on the High Seas Act. In support of this contention respondent relies upon Section 767 and claims that according to the legislative discussion with respect to that section, the phrase 'any waters within the territorial limits of any State' therein contained carved out from Section 761 accidents occurring within the jurisdiction of the State even though they occurred considerably more than three miles from shore. The libellant also cites congressional debates to establish that that particular phrase merely intended to include the traditional three-mile limit and no more. The validity of the respondent's contention depends upon the determination of the shore or coastline of Louisiana in the Gulf of Mexico beyond a marine league. The unusual history of the territory of Louisiana, as well as the 1954 Louisiana statute establishing its boundary at three leagues (nine nautical miles) ...


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