Opinion
Argued June 1, 1961
Decided July 7, 1961
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MORRIS E. SPECTOR, J.
Kenneth R. Thompson and George W. Clark for appellant. Robert A. Dwyer and Stuart M. Speiser for respondents.
The order appealed from should be affirmed, with costs, and the question certified answered in the negative ( Wyman v. Pan Amer. Airways, 181 Misc. 963, affd. 267 App. Div. 947, affd. 293 N.Y. 878; Elliott v. Steinfeldt, 254 App. Div. 739; Murphy v. Steinfeldt, 254 App. Div. 741; Colbert v. Steinfeldt, 255 App. Div. 790; Kristansen v. Steinfeldt, 256 App. Div. 824; Powers v. Cunard S.S. Co., 32 F.2d 720; Choy v. Pan Amer. Airways, 1941 A.M.C. 483; 1942 U.S. Aviation Rep. 93; 1 Avi. 1093 [U.S. Dist. Ct., S.D.N.Y., 1941]; Batkiewicz v. Seas Shipping Co., 53 F. Supp. 802; Sierra v. Pan Amer. World Airways, 107 F. Supp. 519; Bugden v. Trawler Cambridge, 319 Mass. 315). We approve the reasoning of the Appellate Division, Second Department, in Elliott v. Steinfeldt ( supra).
Section 7 of the Death on the High Seas Act (U.S. Code, tit. 46, §§ 761-768) must be deemed to relate to procedure in view of the holding by the United States Supreme Court that the Federal Death on the High Seas Act supersedes substantive rights growing out of State statutes ( Knickerbocker Ice Co. v. Stewart, 253 U.S. 149; Lindgren v. United States, 281 U.S. 38). That being true, the only purpose left to section 7 is to allow recourse to the procedure under the State act in order to enforce the substantive rights provided by the Federal act. The Supreme Court stated in the Knickerbocker Ice Co. case that the clause in the Judiciary Act of 1789 granting otherwise exclusive admiralty and maritime jurisdiction to the Federal courts which saves to suitors "in all cases, the right of a common-law remedy, where the common law is competent to give it" refers to remedies for enforcement of the Federal Maritime Law. The same may be said by analogy in the case of State statutes referred to by section 7 of the Death on the High Seas Act. The time-honored practice of concurrent jurisdiction allowed under the Judiciary Act of 1789 and perpetuated in the Federal Employers' Liability Act and the Jones Act should be applied, it would seem, unless the intention of the Congress is clearly to the contrary.
The causes of action here involved (first, third, fifth and seventh) should all be dismissed since, as the complaint alleges and plaintiff asserts and concedes, each is "brought pursuant to Title 46 U.S.C. § 761 et seq."
The statute so cited is the Federal "Death on the High Seas Act" enacted in 1920. It provides (§ 1; U.S. Code, tit. 46, § 761) as to deaths caused by wrongful acts on the high seas "a suit for damages in the district courts of the United States, in admiralty". Before its enactment neither the maritime law nor the common law furnished any right of action for such a tort ( The Harrisburg, 119 U.S. 199). The 1920 Death on the High Seas Act authorized such suits but required that they be brought "in admiralty" and admiralty jurisdiction is, of course, reserved to and pre-empted by the Federal judicial power and the Federal courts (U.S. Const., art. III, § 2; U.S. Code, tit. 28, § 1333). The courts of New York can exercise no admiralty jurisdiction ( Matter of Bird v. Steamboat Josephine, 39 N.Y. 19; Brookman v. Hamill, 43 N.Y. 554). No authorization for this suit can be found in the "saving clause" in the Judiciary Act (U.S. Code, tit. 28, § 1333, supra) which preserves "to suitors in all cases all other remedies to which they are otherwise entitled." No such "other remedy" exists since there is no authorization anywhere, except in the Federal Act of 1920, for such a suit. There must be statutory basis for any wrongful death action and our New York State "death statute" (Decedent Estate Law, § 130) does not cover when New York State is not the place of the wrong ( Kilberg v. Northeast Airlines, 9 N.Y.2d 34). This fatal accident occurred in the Gulf of Mexico and we know of no statute (except the Death on the High Seas Act itself) which licenses a wrongful death suit arising out of a fatal accident in those waters. The "home port" cases ( Old Dominion S.S. Co. v. Gilmore [ The Hamilton], 207 U.S. 398; McDonald v. Mallory, 77 N.Y. 546) do not apply to aircraft.
Plaintiff is not helped by that part (U.S. Code, tit. 46, § 767) of the Death on the High Seas Act which says: "The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter." There is no New York State statute answering that description and, as mentioned before, these causes of action are specifically brought under the Federal act only.
The New York courts should follow the modern Federal decisions which (as the Appellate Division notes) hold that the Death on the High Seas Act does not permit a suit at law to recover for wrongful death on the high seas ( Higa v. Transocean Airlines, 230 F.2d 780, cert. dsmd. 352 U.S. 802; Turner v. Wilson Line of Mass., 242 F.2d 414; Noel v. Linea Aeropostal Venezolana, 247 F.2d 677, cert. den. 355 U.S. 907; National Airlines v. Stiles, 268 F.2d 400, cert. den. 361 U.S. 885; Wilson v. Transocean Airlines, 121 F. Supp. 85; Iafrate v. Compagnie Generale Transatlantique, 106 F. Supp. 619) . Insofar as they are to the contrary, the cases which the Appellate Division followed — Wyman v. Pan Amer. Airways ( 262 App. Div. 995) and Elliott v. Steinfeldt ( 254 App. Div. 739) — should be overruled. The Wyman case decision without opinion in this court ( 293 N.Y. 878) is not relevant since the point was not raised before us or passed on by us.
The order should be reversed, with costs in all courts, the certified question answered in the affirmative, defendant's motion granted and judgment directed dismissing the first, third, fifth and seventh causes of action.
Judges DYE, FULD, FROESSEL, VAN VOORHIS, BURKE and FOSTER concur in Per Curiam opinion; Chief Judge DESMOND dissents in an opinion.
Order affirmed, etc.