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CITY OF NEW YORK v. WATERFRONT AIRWAYS

October 15, 1985

THE CITY OF NEW YORK, Plaintiff, against WATERFRONT AIRWAYS, INC., etc., Defendants; CAROL TOOLAN, as Executrix of the Estate of JOHN E. TOOLAN, JR., Deceased, Plaintiff, against THE CITY OF NEW YORK, Defendant; CAROL TOOLAN, as Executrix of the Estate of JOHN E. TOOLAN, JR., Deceased, Plaintiff, against WATERFRONT AIRWAYS, INC., and AMW CORP., Defendants; EILEEN McCARTHY, Plaintiff, against THE CITY OF NEW YORK, Defendant; EILEEN McCARTHY, Plaintiff, against WATERFRONT AIRWAYS, INC., and AMW CORP., Defendants; JOSEPH C. STAMLER and SUSAN K. STAMLER, Plaintiffs, against THE CITY OF NEW YORK, Defendant; JOSEPH C. STAMLER and SUSAN K. STAMLER, Plaintiffs, against WATERFRONT AIRWAYS, INC., and AMW CORP., Defendants; AMW CORP., A CORPORATION OF NEW JERSEY, Plaintiff, against THE CITY OF NEW YORK, Defendant.


The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, D.J.:

 This case arises from a collision between a Cessna Floatplane (the "Floatplane"), owned by AMW Corp. ("AMW") and operated by Waterfront Airways, Inc. ("Waterfront") as an air taxi between New Jersey and Wall Street, and a New York City Police Department Bell 206A Helicopter (the "Helicopter"). The Floatplane had begun its approach from Brooklyn airspace to its landing site in the Wall Street area when it collided in the vicinity of the Brooklyn Battery Tunnel with the Helicopter which was on routine traffic patrol over Brooklyn, New York. The Helicopter crashed into an unoccupied building in Brooklyn and both passengers (a police officer pilot and an observer) died. Wrongful death claims concerning these passengers are currently pending in state court. The Floatplane continued momentarily in its line of flight and then crashed into the East River. The pilot, David Huber Bowen, and a passenger, John Toolan, who was seated next to Mr. Bowen, each apparently lost consciousness during the crash and subsequently drowned. The passengers seated in the rear of the Floatplane, Joseph C. Stamler and Eileen McCarthy, were able to exit the Floatplane before it sank and were rescued by the Coast Guard. Thereafter, a multiplicity of lawsuits were commenced in both the federal and state courts. The first action was commenced by the City of New York (the "City") against Waterfront. In the second, fourth, and sixth actions, *fn1" Toolan, McCarthy, and the Stamlers, alleging diversity jurisdiction, sued the City for personal injuries and, in the case of Toolan, wrongful death. These same individuals also commenced actions numbered three, five, and seven against Waterfront and AMW with subject matter jurisdiction predicated on admiralty jurisdiction. *fn2"

 The City has moved (1) to dismiss the second, fourth, and sixth causes of action for failure to join indispensable parties, (2) to dismiss the third, fifth, and seventh causes of action for lack of admiralty jurisdiction, (3) to dismiss all causes of action on the basis of forum non conveniens, (4) to consolidate all actions in the event its motions to dismiss are denied, and (5) to implead Waterfront, AMW and Susan Kinter Bowen, *fn3" as third-party defendants should the dismissal motions be denied. Each of the City's motions will be addressed separately.

 (1) Motion To Dismiss For Failure To Join Indispensable Parties

 The City has moved to dismiss the second, fourth, and sixth causes of action alleging that Waterfront and AMW are indispensable parties who have not been joined. Rule 19(a) of the Fed. R. Civ. P. requires:

 A person . . . whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, mutliple, or otherwise inconsistent obligations by reason of his claimed interest.

 The City has failed to show how the specific conditions of Rule 19(a) are met. Indeed, it appears that the City, Waterfront, and AMW are, at best, joint tortfeasors, jointly and severally liable for plaintiff's injuries. Joint tortfeasors, however, are not indispensable parties, but merely permissive parties. Fed. R. Civ. P. 19 advisory committe note; Picard v. Wall Street Discount Corp., 526 F. Supp. 1248, 1252 (S.D.N.Y. 1981); Kerr v. Compagnie De Ultramar, 250 F.2d 860, 863 (2d Cir. 1953). The reasons for this general rule to recover full relief from any one of the responsible parties, which party then has the option of suing for contribution or indemnity. Thus, there is no legitimate fear of multiple obligations. 3A Moore's Federal Practice P19.07-1 [2.2] (2d ed. 1985). Complete relief can be accorded among those already parties and the City may perhaps be entitled to recover in a later action any contribution or indemnity due it from Waterfront and/or AMW. Thus, the City's motion to dismiss for failure to join an indispensable party is denied.

 (2) Admiralty Jurisdiction

 Plaintiff passengers claim admiralty jurisdiction under 28 U.S.C. § 1331(1) *fn4" for their causes of action against defendants Waterfront and AMW. The City, which is not a party to these lawsuits, moves to dismiss. Because this is a challenge to the court's subject matter jurisdiction, Fed. R. Civ. P. 12(h)(3) permits it to be brought to the court's attention by persons other than the parties to the action.

 In Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972), the Supreme Court established a two prong test for determining the existence of admiralty jurisdiction. The test requires that the alleged tort (1) have a maritime locale, and (2) "a significant relationship to traditional maritime activity." Executive Jet at 268. For a tort to have a maritime local it must have occurred on navigable waters. Executive Jet at 253. In the instant case, although the Floatplane eventually crashed into the East River, thus permitting plaintiffs to allege a maritime locale as the situs of the tort, the collision occurred over land, and the City Helicopter crashed into a building in Brooklyn. Thus, it is arguable that the tort did not even have a maritime locale.Assuming that it did, however, I find that the alleged tort does not have a significant connection with traditional maritime activity and thus does not meet the second part of the Executive Jet test.

 The court in Executive Jet clearly indicated a narrow view of what aviation accidents should properly fall within a court's admiralty jurisdiction."The matters with which admiralty is basically concerned have no conceivable bearing on the operation of aircraft, whether over land or water." Executive Jet at 270. The Court further stated that:

 [a]lthough dangers of wind and wave faced by a plane that has crashed on navigable waters may be superficially similar to those encountered by a sinking ship, the plane's unexpected descent will almost invariably have been attributable to a cause unrelated to the sea -- be it pilot error, defective design or manufacture of airframe or engine, error of a traffic controller at an airport, or some other cause; and the determination of liability will thus be based on factual and conceptual inquiries unfamiliar to the law of admiralty. It is clear, therefore, that neither the fact that a plane goes down on navigable waters nor the fact that the negligence "occurs" ...


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