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June 27, 1967

Margaret KANTLEHNER, as Administratrix of the Goods, Chattels and Credits of John Richard Kantlehner, Deceased, Plaintiff,
UNITED STATES of America, Defendant and Third-Party Plaintiff, v. The BOEING COMPANY and Pan American World Airways, Inc., Third-Party Defendants

The opinion of the court was delivered by: MISHLER

MISHLER, District Judge.

 The third-party defendants move pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for an order dismissing the third-party complaint for failure to state a claim upon which relief can be granted, and for such other relief as may be just. Argument on these motions was originally heard on August 10, 1966, at which time none of the parties raised any problem relating to the choice of the governing law. In a memorandum of decision dated September 14, 1966, the court indicated that it was disposed toward granting the motions, but gave all parties an opportunity to submit additional papers in support of their respective claims. Since that time the parties have submitted affidavits and briefs on several occasions and, therefore, the court treats the motions as requests for summary judgment under Rule 56.

 The plaintiff, a New York resident, is the administratrix of the estate of her husband, John Richard Kantlehner, who was killed on December 8, 1963, while performing his duties as flight engineer on Pan American World Airways, Inc.'s (Pan American) flight No. 214. The aircraft had departed Kennedy Airport in the early morning as a ferry flight to Philadelphia, Pennsylvania, and was to terminate back in New York later that same night. Upon arriving in Philadelphia, it took on passengers and proceeded on to Baltimore, Maryland and San Juan, Puerto Rico. On its return trip, the plane again touched down in Baltimore for a short time before proceeding on to Philadelphia. At 8:24 P.M., it departed Friendship International Airport with seventy-three passengers and a crew of eight on board, and at 8:59 P.M. it crashed two miles east of Elkton, Maryland. Apparently, all persons aboard the aircraft were killed instantly.

 The plaintiff brings this action under the Federal Tort Claims Act, 28 U.S.C. ยง 1346 (1964) (FTCA), alleging that the fatal accident was caused solely by the negligence of the United States, and specifying the defendant's wrongful acts as follows:

1) failing to promulgate rules and regulations requiring aircraft operating within the United States to be equipped with static electricity coils;
2) permitting and instructing the aircraft to depart Friendship International Airport at a time when weather conditions were extremely unfavorable and unsafe;
3) failing to compile a complete and accurate survey of the weather conditions;
4) failing to maintain continuous visual observation of the weather conditions in the vicinity of the airport;
5) permitting and directing the aircraft to take a dangerous and unsafe course, knowing such course to be dangerous and unsafe; and
6) failing to direct the aircraft to return to Baltimore or to change to a safer and more proper course.

 In its answer, the defendant both denied any negligence on the part of its employees or agents and argued, alternatively, that if it be found to have been negligent, such negligence was merely passive. In addition, it raised the affirmative defenses of contributory negligence and assumption of risk, and instituted a third-party action for indemnity or contribution against the Boeing Company (Boeing), the aircraft's manufacturer, and Pan American, its owner and operator.

 In support of its third-party claims, the defendant asserts that the crash was caused solely by the negligence of one or both of the third-party defendants, and that any negligence attributable to the government was of a passive or secondary nature. Both third-party defendants maintain, in turn, that the third-party claims should be dismissed on the grounds that under the applicable law the defendant has no right of indemnity or contribution in this case. Pan American, alone, proffers two additional arguments: first, that the third-party claims are barred by the statute of limitations; and, second, that workmen's compensation benefits constitute the plaintiff's exclusive remedy against the airline.

 Right to Indemnity or Contribution

 While Rule 14(a) of the Federal Rules permits a defendant to implead any person "* * * who is or may be liable to him for all or part of the plaintiff's claim * * *," it is merely a procedural mechanism, and cannot be utilized unless there is some substantive basis under the applicable law. General Dynamics Corp. v. Adams, 340 F.2d 271, 279 (5th Cir. 1965); Uptagrafft v. United States, 315 F.2d 200, 202-203 (4th Cir.) cert. denied, 375 U.S. 818, 84 S. Ct. 54, 11 L. Ed. 2d 52 (1963); Brown v. Cranston, 132 F.2d 631, 633-634 (2d Cir. 1942), cert. denied, 319 U.S. 741, 63 S. Ct. 1028, 87 L. Ed. 1698 (1943); 3 J. Moore, ...

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