The opinion of the court was delivered by: DUSEN
On October 4, 1960, a Lockheed Electra land-based airplane crashed in the harbor of Boston, Massachusetts shortly after its take-off from Logan International Airport, Boston, Mass., on a scheduled flight to the International Airport at Philadelphia, Pa. Passengers and crew members were killed and injured as a result of the crash.
The libels filed in these seven cases all allege the liability of Eastern Airlines, Inc. on two broad theories of action. First, it is alleged that respondent Eastern Airlines, Inc. was negligent in its maintenance, operation and control of the airplane. Second, it is alleged that respondent Eastern Airlines, Inc. breached an alleged warranty that the airplane was safe, airworthy and fit to be used as a common carrier for hire by air and breached the contract and warranty to provide safe and airworthy transportation.
Admiralty jurisdiction of the court is invoked by libellants on the ground that the aircraft crashed into the navigable waters of Boston Harbor shortly after the aircraft had become airborne following take-off.
I. Admiralty jurisdiction does not encompass tortious causes of action arising from crashes of airplanes into the navigable waters of a state.
The admiralty jurisdiction of this court is set forth in 28 U.S.C.A. § 1333, which provides that District Courts shall have original jurisdiction of '(1) any civil case of admiralty or maritime jurisdiction * * *.' The admiralty or maritime jurisdiction referred to is pursuant to Article III, 2, Clause I, of the Constitution of the United States of America.
There is no dispute that the landmark case is The Plymonth, 3 Wall. 20, 70 U.S. 20, 18 L. Ed. 125 (1865). The court stated at page 36:
'The jurisdiction of the admiralty does not depend upon the fact that the injury was inflicted by the vessel, but upon the locality -- the high seas, or navigable waters where it occurred. Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.'
The rule of The Plymouth, supra, decided in 1865, was stated without any consideration of air travel.
As stated in Mr. Benedict's treatise on admiralty,
'It has nevertheless been doubted whether the civil admiralty jurisdiction, in cases of tort, does not depend upon the relation of the parties to some ship or vessel and embrace only those tortious violations of maritime right and duty which occur in relation to vessels to which the admiralty jurisdiction in cases of contract applies. If one of several landsmen bathing in the sea should assault or imprison or rob another, it has not been held that admiralty would have jurisdiction of an action for the tort.' I Benedict on Admiralty 351. (Emphasis supplied.)
Libellants contend that, in determining whether or not the nature of the tort was maritime in nature and, therefore, subject to federal admiralty jurisdiction, the courts have adhered strictly to the criterion of 'locality.'
The opinion of District Judge Dawson in McGuire v. City of New York, 192 F.Supp. 866 (S.D.N.Y.1961) sets forth a complete and learned discussion of the nature of admiralty and maritime jurisdiction. Here libellant alleged that she was injured while bathing in the waters of New York Harbor. The court had to decide whether an injury to a bather at a public beach occasioned by the negligence of the proprietor of the bathing beach constitutes a cause of action cognizable in admiralty. The court stated at page 868:
'While it has been urged that admiralty has jurisdiction over all torts where the wrong takes place on the high seas or other public navigable waters of the United States, this position has not been adopted either by the text writers or by the courts. The basis for admiralty jurisdiction must be a combination of a maritime wrong and a maritime location. A maritime wrong generally has been ...