TRASK, Circuit Judge:
The United States appeals from an order denying its motion for dismissal of
This is a wrongful death action arising out of the crash of a Flying Tiger Lines cargo plane on July 27, 1970. The plane was approaching the Naha Air Base, Okinawa, for a ground controlled landing when it crashed in navigable waters 1500 to 1900 feet short of the runway. Charging that United States Air Force personnel negligently directed the landing and subsequent rescue operations, the widow and three minor children of the plane's navigator (appellees) filed suit against the United States on November 21, 1972.
In their subsequently amended complaint the appellees relied upon the same basic facts but stated them somewhat differently. The first cause of action was still based upon the FTCA. However, instead of alleging that the events occurred "at or near Naha Air Base, Okinawa, Ryukyu Islands" which would open the claim to the "foreign country" exclusion of section 2680(k), the complaint alleged that the events occurred "while the aircraft was making an approach to landing . . . over the high seas crashing into navigable waters . . . ." Thus, the claim was asserted to be "maritime." A second cause of action was asserted as a "Maritime Wrongful Death" under the general admiralty and maritime jurisdiction, Fed.R.Civ.P. 9(h), and a third cause of action was alleged under the "Death on the High Seas Act," 46 U.S.C. §§ 761-767.
The specific acts of negligence relied upon were the same as to each of the three claims: that the United States negligently directed the landing of the aircraft and the subsequent rescue operations of its passengers.
The United States again moved to dismiss the action, arguing that the aviation crash did not give rise to a maritime claim. Secondarily, the Government contended that even if maritime jurisdiction were appropriate, the appellees' suit against the United States was cognizable solely under the Suits in Admiralty Act (SIA), 46 U.S.C. §§ 741-752, and not the FTCA as averred. The District Court rejected both of these arguments and concluded that it had jurisdiction to entertain the appellees' suit as a maritime wrongful death action under the FTCA.
This appeal invites an examination of whether, under the circumstances shown here, an aviation tort claim is cognizable under maritime law. Preliminarily we note that if viewed as stating a "land" rather than a "maritime" tort, the appellees' complaint under the FTCA is indeed barred by 28 U.S.C. § 2680(k). See United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L. Ed. 3 (1949).
As far as the general maritime law is concerned, Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) is necessarily the starting point in any effort to define a "maritime tort" in the aviation context. In Executive Jet the Supreme Court rejected the traditional locality test which found maritime jurisdiction whenever a tort occurred in navigable waters.
The maritime claims asserted in Executive Jet arose from the crash of a chartered jet en route from Cleveland, Ohio to Portland, Maine. The aircraft struck and ingested a flock of seagulls on take-off and crashed in the navigable waters of Lake Erie. The Supreme Court had little difficulty in concluding that "a flight that would have been almost entirely over land and within the continental United States" bore an insufficient relationship with traditional maritime activity. However, the Court declined to generalize as to other aviation tort contexts, commenting instead:
The Supreme Court thus expressly reserved the question which is before us now.
An examination of the record provides several bases for distinguishing the air accident in this case from the crash which occurred in Executive Jet. According to the appellees' amended complaint, the Flying Tiger Lines aircraft was engaged in transporting cargo between Los Angeles and Viet Nam; Okinawa was merely one of a number of intermediate stopping points. Geographic realities, therefore, do not make the cargo plane's contact with navigable waters entirely "fortuitous." More significantly, the transoceanic transportation of cargo is an activity which is readily analogized with "traditional maritime activity." Indeed, before the advent of aviation, such shipping could only be performed by waterborne vessels. We therefore do not interpret Executive Jet, supra, as precluding a maritime action on the facts of this case.
The appellees' alternate reliance upon the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 761-768, is more questionable. Although the Supreme Court has explicitly sanctioned the bringing of aviation wrongful death cases under a literal construction of the DOHSA,
It is axiomatic that Congressional waiver of sovereign immunity is a prerequisite to any suit brought against the United States under admiralty law or otherwise. Recognizing this fact, the appellees rely upon the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., as an expression of governmental consent to be sued.
The District Court, believing that the admiralty statutes extended only to claims involving United States vessels or cargo concluded that the appellees' maritime claim was maintainable solely under the FTCA. Prior to 1960, this interpretation of the intersecting scope of the statutes would have been correct.
The addition of the phrase "or if a private person . . . were involved" has been interpreted by a majority of courts as a legislative attempt to bring all maritime torts asserted against the United States within the purview of the SIA. See De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir. 1971); Richmond Marine Panama, S. A. v. United States, 350 F.Supp. 1210, 1219-1220 (S.D.N.Y.1972); Tankrederiet Gefion A/S v. United States, 241 F.Supp. 83 (E.D.Mich.1964); Contra, J.
We therefore conclude that the Suits in Admiralty Act, as amended, encompasses aviation wrongful death actions against the United States arising under the general maritime law or under the Death on the High Seas Act. See Allen v. United States, 338 F.2d 160 (9th Cir. 1964) (Text accompanying n. 2.) The necessary corollary is that the appellees action is therefore not maintainable under the FTCA. 28 U.S.C. § 2680(d).
Finally, in anticipation of an adverse resolution of these issues, the appellees request a second opportunity to amend their complaint in conformity with the court's jurisdictional conclusions. Appellees further contend that such an amendment should "relate back" so as to avoid the time bar of the two year limitations period contained in the Suits in Admiralty Act, 46 U.S.C. § 745. In support of this request the appellees cite Beeler v. United States, 338 F.2d 687 (3d Cir. 1962), and other cases erroneously brought under the FTCA in which a transfer to admiralty was allowed.
However, the appellees' situation is distinguishable from the precedent they cite in that the appellees' original complaint was not filed until after the two year SIA limitations period had already expired. Since any amendment filed now can only refer back to the date when the appellees' original complaint was filed, Fed.R.Civ. P. 15(c), the "relation back" argument cannot save this action from the operation of section 745.
States Marine Corp. of Delaware v. United States, 283 F.2d 776, 778 (2d Cir. 1960). See also McMahon v. United
We therefore conclude that to the extent that the appellees' claim is cognizable in admiralty, it is governed by the Suits in Admiralty Act and absolutely time-barred by § 745 of that Act. The Government's motion to dismiss should have been granted.
The Cobb classification was based upon the status of Okinawa as of 1949. We note that on May 15, 1972, after the cause of action in this suit arose, the island was returned to the empire of Japan. 23 U.S.T., Part 1 at 447.
A distinct problem is the determination of where an aviation tort "occurs." Unlike the rule developed under the Federal Tort Claims Act, see supra, n. 2, in applying the maritime locality test a tort is deemed to occur not where the wrongful act or omission had its inception, but at the place where it became operative, i.e., place of injury. Oppen v. Aetna Insurance Co., 485 F.2d 252, 256 (9th Cir. 1973); Chapman v. City of Grosse Pointe Farms, 385 F.2d 962 (6th Cir. 1967); Wilson v. Transocean Airlines, 121 F.Supp. 85, 92 (N.D.Cal.1954). The Supreme Court in Executive Jet, supra, discussed the difficulties inherent in determining tort locus in the aviation context, but the Court did not propose another test. Id. 409 U.S. at 266-268.
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"Of course, under the Death on the High Seas Act, a wrongful death action arising out of an airplane crash on the high seas beyond a marine league from the shore of a State may clearly be brought in a federal admiralty court." Executive Jet, supra, 409 U.S. at 263-264, 271, n. 20.
While a distince of 1900 feet from shore would almost certainly be within a foreign state's territorial waters, we have noted that some foreign states have extended their territorial waters for fishing purposes to much greater distances than "one marine league." (Approximately 3 nautical miles.) Because Congress only has power to fix the extent of territorial waters measured from the shores of its own country it may well have considered all waters beyond one marine league from those shores to be "high seas" for purposes of DOHSA so long as navigable, even though within the territorial waters of a foreign state.
Relatedly, a law review article discussing the Act observes:
For a discussion of the meaning of the term "high seas" see United States v. Flores, 289 U.S. 137, 153 S.Ct. 580, 77 L.Ed. 1086 (1933) and United States v. Rodgers, 150 U.S. 249, 14 S.Ct. 109, 37 L.Ed. 1071 (1893). But see United States v. Ross, 439 F.2d 1355, 1357 (9th Cir. 1971).