The opinion of the court was delivered by: ROSENBERG
This is here on the respondent's Motion To Dismiss. The libellants, Maria Notarian and Joseph Notarian, filed a complaint in Admiralty against the respondent, averred that the libellants, husband and wife, are citizens of the Commonwealth of Pennsylvania, United States of America; that the respondent is a citizen of the United States, but not of the Commonwealth of Pennsylvania; that jurisdiction is based on a maritime tort; that the wife-libellant purchased a round trip airline ticket in Pennsylvania from the respondent for the wife-libellant's transportation on the respondent's airline from Pittsburgh to Rome with a stopover in New York, and from Rome back to Pittsburgh with a stopover in New York; that in the course of the flight from Rome, Italy to New York City, the wife-libellant sustained personal injuries when the airplane jolted violently and threw her about as she was leaving the restroom on the airplane in an attempt to return to her seat; that these personal injuries were due to the negligence of the respondent in failing to provide the wife-libellant with a reasonably safe passage for various itemized reasons; and, that as a result of such injuries because of the respondent's negligence, the libellants were damaged.
The respondent's motion to dismiss is based upon two grounds: (1) that the aircraft in which the accident occurred made no contact with the water and is therefore not includable in admiralty, and (2) that this action is controlled by the provisions of the Warsaw Convention.
Although it is not averred, the alleged tort appears to have occurred over the Atlantic Ocean. The respondent argues that in all cases of admiralty dealing with airplane-injury cases, the tort does not occur until contact has been made with the water. It submits these as authority: Noel et al. v. Linea Aeropostal Venezolana, 247 F.2d 677, C.A.2, 1957, cert. denied 355 U.S. 907, 78 S. Ct. 334, 2 L. Ed. 2d 262 (plaintiff's decedent died in a crash in the Atlantic Ocean thirty miles from the New Jersey shore); Trihey v. Transocean Air Lines, Inc., 255 F.2d 824, C.A.9, 1958 (plaintiff's decedent died in a crash in the Pacific Ocean); and Weinstein v. Eastern Air Lines, Inc., 316 F.2d 758, C.A.3, cert. denied 375 U.S. 940, 84 S. Ct. 343, 11 L. Ed. 2d 271 (plaintiff's decedent was killed in a crash in Boston Harbor). While it is true that in the cited cases contact was made with the water, none of these cases hold that contact with the water is indispensable in an admiralty tort.
The following was said in a footnote in Wilson v. Transocean Airlines et al., 121 F. Supp. 85 (D.C.N.D.Cal., 1954) at page 91, footnote 23:
"At the beginning of the development of aviation in the United States there was considerable body of opinion that the entire ocean of air surrounding the earth is within the admiralty jurisdiction, and that consequently all air flight is within the admiralty and maritime jurisdiction of the federal government. This theory never received general acceptance and the federal legislation regulating air navigation has been based on the Commerce Clause of the Constitution. However, the question whether the airspace over the seas is within the jurisdiction of admiralty has received little attention and remains an open one. * * *"
Before the days of the airplane and the acquisition of upper space as a channel for the airplane, our law has known and been required to deal with matters as they related to land and with matters as they related to the sea. With the advent of air navigation into our scheme of life, we have had to revise and modify much of that law. In a sense, and guided by thinking of the past centuries, are we not logically compelled to adopt the perpendicular plane theory as a jurisdictional guide?
At common law the doctrine had been enunciated, Cujus est solum ejus est usque ad coelum "Whose is the soil, his it is up to the sky", or "He who owns the soil or surface of the ground owns, or has an exclusive right to, everything which is upon or above it to an indefinite height." (Black's Law Dictionary, page 487.)
In our new scheme of things, with the coming of aerial navigation, legislatures and courts were bound to reconcile the ownership of land with the conflicting interference of the air space over that land. It is unnecessary here to discuss the enactments of Congress and the various state legislatures, except to remember that Congress in regulating air commerce, did define navigable air space as "air space above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." (49 U.S.C.A. § 180.)
And while we are not here met with a problem within the defined "navigable air space", it is related to one decided in United States v. Causby et ux., 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206, 1946. There the problem related to damages done to a chicken farm by United States bombers, transports and fighter planes. At page 260, at page 1065 of 66 S. Ct., Mr. Justice Douglas discussed the ad coelum doctrine in these words:
"It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe - Cujus est solum ejus est usque ad coelum. But that doctrine has no place in the modern world."
And at page 262, at page 1066 of 66 S. Ct.:
"The fact that the planes never touched the surface would be as irrelevant as the absence in this day of the feudal livery of ...