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November 27, 1968

George E. FARRELL, as Administrator de bonis non of the Estate of Wyand F. Doerner, Jr., deceased, et al., Plaintiffs,
PIEDMONT AVIATION, INC., the Boeing Company, United States of America, Rapidair, Inc., and Lanseair, Inc., Defendants

Wyatt, District Judge.

The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a motion by defendant Rapidair, Inc. (Rapidair) and by a "garnishee" St. Paul Fire and Marine Insurance Company (St. Paul) for an order vacating the attachment of the insurance policy issued by St. Paul to Rapidair, setting aside the service of process and dismissing the action as against Rapidair.

 The claims asserted in the complaint are by the personal representatives of 13 passengers on a Piedmont Airlines plane who died when the plane crashed after a midair collision on July 19, 1967. There were 74 passengers and 5 crew members in the Piedmont plane and the pilot and 2 passengers in the plane with which it collided; all died on both planes.

 The collision was over Hendersonville, North Carolina, and the crash was near that town. Hendersonville is in Henderson County, one of the counties in the Western District of North Carolina, and is some 20 or 25 miles south of Asheville, one of the places where Court is held in the District.

 The complaint avers that defendant Piedmont Aviation, Inc. (Piedmont) was operating as a common carrier the Boeing aircraft which crashed and in which the decedents of plaintiffs were passengers; that defendant The Boeing Company (Boeing) designed, made and owned the aircraft; that defendant Lanseair, Inc. (Lanseair) owned and operated a Cessna aircraft; that defendant Rapidair, Inc. (Rapidair) also operated, maintained, etc. this Cessna aircraft; that the Boeing plane and the Cessna plane collided, causing the crash; that the collision was caused by the concurrent negligence of all the defendants; that Piedmont, Lanseair, and Rapidair failed to keep an adequate lookout; that Boeing designed the cockpit of its aircraft unreasonably to restrict the field of vision; and that the United States operated an air traffic control facility at Asheville Municipal Airport from which it communicated to the two planes but caused them to collide by failing to issue proper instructions, information and clearances.

 Jurisdiction over the claims against the United States is based on a part of the Federal Tort Claims Act (28 U.S.C. § 1346(b)). Jurisdiction over the claims against the other defendants is said to rest on diversity of citizenship (28 U.S.C. § 1332).

 Each of the plaintiffs is an administrator, with or without a will annexed, of one or more of the 13 passengers. Eight of these passengers were citizens of Mississippi, one of Texas, two of Tennessee, and two of Maryland. Six of the decedents appear to have died intestate; seven appear to have left wills. Each of the plaintiff administrators (in one instance, as administratrix) is a citizen of New York, appointed as administrator in the State of domicile of his or her decedent.

 It seems to be undisputed that Piedmont, Boeing, Rapidair and Lanseair each is incorporated under the laws of, and has its principal place of business in, a State other than New York, Mississippi, Texas, Tennessee or Maryland. Diversity jurisdiction over these defendants is established.

 Plaintiffs moved this Court ex parte for an order of attachment of the property of defendants Rapidair and Lanseair, Inc. under the authority of Fed.R.Civ.P. 4(e) and 64, giving plaintiffs the benefit of State attachment laws. Rapidair and Lanseair are said (without contradiction) to be Missouri corporations with their principal places of business in Missouri. New York CPLR § 6201(1) authorizes an order of attachment against a foreign corporation defendant. It was represented that United States Aviation Underwriters, Incorporated and United States Aircraft Insurance Group, both doing business in New York, had issued an aircraft liability insurance policy to Rapidair with respect to the Cessna plane involved in the collision.

 Judge Frankel made an order of attachment which order was filed June 21, 1968. The Marshal served notice of levy on United States Aircraft Insurance Group specifying that the levy was on an "obligation to defend and indemnify Rapidair, Inc. and/or Lanseair, Inc. under an Aircraft Liability Insurance Policy".

 It turned out that a mistake had been made and that the insurer of Rapidair was St. Paul, which does business in New York. A supplemental order of attachment was made by Judge Bonsal and filed July 9, 1968. This order directed the attachment, as the property of Rapidair, of the policy issued by St. Paul. This policy had been issued by an agent of St. Paul in Illinois and had been delivered to Rapidair in Missouri. The Marshal served notice of levy on St. Paul in New York on July 11, 1968, specifying that the levy was on "the obligation to defend and/or indemnify Rapidair, Inc. contained in an aircraft liability Insurance Policy".

 The validity of the attachment is determined by the law of New York, subject to federal constitutional limitations.

 A sharply divided (4-3) Court of Appeals of New York has sustained an attachment which, with one significant difference, was like that at bar. Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966).

 The significant difference is that plaintiffs in Seider v. Roth were residents of New York and the action was being prosecuted for their benefit. The Court declared that there was "no policy reason against requiring the insurer to come in to New York and defend as to an accident which occurred in Vermont injuring New ...

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