Petitioners, invoking federal admiralty jurisdiction under 28 U.S.C. 1333 (1), brought suit for damages resulting from the crashlanding and sinking in the navigable waters of Lake Erie of their jet aircraft shortly after takeoff from a Cleveland airport. The District Court dismissed the complaint for lack of admiralty jurisdiction on the grounds that the alleged tort had neither a maritime locality nor a maritime nexus. The Court of Appeals affirmed on the first ground. Held: Neither the fact that an aircraft goes down on navigable waters nor that the negligence "occurs" while the aircraft is flying over such waters is sufficient to confer federal admiralty jurisdiction over aviation tort claims, and in the absence of legislation to the contrary such jurisdiction exists with respect to those claims only when there is a significant relationship to traditional maritime activity. Therefore, federal admiralty jurisdiction does not extend to aviation tort claims arising from flights like the one involved here between points within the continental United States. Pp. 253-274.
448 F.2d 151, affirmed.
STEWART, J., delivered the opinion for a unanimous Court.
Phillip D. Bostwick argued the cause and filed briefs for petitioners.
Solicitor General Griswold argued the cause for respondent Dicken. With him on the brief were Assistant Attorney General Wood, Allan A. Tuttle, and Walter H. Fleischer. Edward D. Crocker filed a brief for respondents City of Cleveland et al. [409 U.S. 249, 250]
MR. JUSTICE STEWART delivered the opinion of the Court.
On July 28, 1968, a jet aircraft, owned and operated by the petitioners, struck a flock of seagulls as it was taking off from Burke Lakefront Airport in Cleveland, Ohio, adjacent to Lake Erie. As a result, the plane lost its power, crashed, and ultimately sank in the navigable waters of Lake Erie, a short distance from the airport. The question before us is whether the petitioners' suit for property damage to the aircraft, allegedly caused by the respondents' negligence, lies within federal admiralty jurisdiction.
When the crash occurred, the plane was manned by a pilot, a co-pilot, and a stewardess, and was departing Cleveland on a charter flight to Portland, Maine, where it was to pick up passengers and then continue to White Plains, New York. After being cleared for takeoff by the respondent Dicken, who was the federal air traffic controller at the airport, the plane took off, becoming airborne at about half the distance down the runway. The takeoff flushed the seagulls on the runway, and they rose into the airspace directly ahead of the ascending plane. Ingestion of the birds into the plane's jet engines caused an almost total loss of power. Descending back toward the runway in a semi-stalled condition, the plane veered slightly to the left, struck a portion of the airport perimeter fence and the top of a nearby pickup truck, and then settled in Lake Erie just off the end of the runway and less than one-fifth of a statute mile offshore. There were no injuries to the crew, but the aircraft soon sank and became a total loss.
Invoking federal admiralty jurisdiction under [409 U.S. 249, 251] 28 U.S.C. 1333 (1), 1 the petitioners brought this suit for damages in the District Court for the Northern District of Ohio against Dicken and the other respondents, 2 alleging that the crash had been caused by the respondents' negligent failure to keep the runway free of the birds or to give adequate warning of their presence. 3 The District Court, in an unreported opinion, held that the suit was not cognizable in admiralty and dismissed the complaint for lack of subject matter jurisdiction.
Relying primarily on the Sixth Circuit precedent of Chapman v. City of Grosse Pointe Farms, 385 F.2d 962 (1967), the District Court held that admiralty jurisdiction over torts may properly be invoked only when two criteria are met: (1) the locality where the alleged tortious wrong occurred must have been on navigable waters; and (2) there must have been a relationship between the wrong and some maritime service, navigation, or commerce on navigable waters. The District Court found that the allegations of the petitioners' complaint satisfied neither of these criteria. With respect to the locality of the alleged wrong, the court stated that "the alleged negligence became operative upon the aircraft while it was over the land; and in this sense [409 U.S. 249, 252] the `impact' of the alleged negligence occurred when the gulls disabled the plane's engines [over the land] . . . . From this point on the plane was disabled and was caused to fall. Whether it came down upon land or upon water was largely fortuitous." Alternatively, the court concluded that the wrong bore no relationship to maritime service, navigation, or commerce:
Determination of the question whether a tort is "maritime" and thus within the admiralty jurisdiction of the federal courts has traditionally depended upon the locality of the wrong. If the wrong occurred on navigable waters, the action is within admiralty jurisdiction; if the wrong occurred on land, it is not. As early as 1813, Mr. Justice Story, on Circuit, stated this general principle:
In The Plymouth, 3 Wall. 20, 35, 36 (1866), the Court essayed a definition of when a tort is "located" on navigable waters:
This locality test, of course, was established and grew up in an era when it was difficult to conceive of a tortious occurrence on navigable waters other than in connection with a waterborne vessel. Indeed, for the traditional types of maritime torts, the traditional test has worked quite satisfactorily. As a leading admiralty text has put the matter:
Other serious difficulties with the locality test are illustrated by cases where the maritime locality of the tort is clear, but where the invocation of admiralty jurisdiction seems almost absurd. If a swimmer at a public beach is injured by another swimmer or by a submerged object on the bottom, or if a piece of machinery sustains water damage from being dropped into a harbor by a land-based crane, a literal application of the locality test invokes not only the jurisdiction of the federal courts, but the full panoply of the substantive admiralty law as well. In cases such as these, some courts have adhered to a mechanical application of the strict locality rule and have sustained admiralty jurisdiction despite the lack of any connection between the wrong and traditional [409 U.S. 249, 256] forms of maritime commerce and navigation. 5 Other courts, however, have held in such situations that a maritime locality is not sufficient to bring the tort within federal admiralty jurisdiction, but that there must also be a maritime nexus - some relationship between the tort and traditional maritime activities, involving navigation or commerce on navigable waters. The Court of Appeals for the Sixth Circuit, for instance, in the Chapman case, where a swimmer at a public beach was injured, held that
Apart from the difficulties involved in trying to apply the locality rule as the sole test of admiralty tort jurisdiction, another indictment of that test is to be found in the number of times the federal courts and the Congress, in the interests of justice, have had to create exceptions to it in the converse situation - i. e., when the tort has no maritime locality, but does bear a relationship to maritime service, commerce, or navigation. See 7A J. Moore, Federal Practice, Admiralty § .325 4. (2d ed. 1972). For example, in O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36 (1943), the Court sustained the application of the Jones Act, 41 Stat. 1007, 46 U.S.C. 688, to injuries to a seaman on land, because of the seaman's connection with maritime commerce. We relied in that case on an analogy to maintenance and cure:
Congress, too, has extended admiralty jurisdiction predicated on the relation of the wrong to maritime activities, regardless of the locality of the tort. In the Extension of Admiralty Jurisdiction Act, 62 Stat. 496, 46 U.S.C. 740, enacted in 1948, Congress provided:
In sum, there has existed over the years a judicial, legislative, and scholarly recognition that, in determining whether there is admiralty jurisdiction over a particular tort or class of torts, reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test.
One area in which locality as the exclusive test of admiralty tort jurisdiction has given rise to serious problems in application is that of aviation. For the reasons discussed above and those to be discussed, we have concluded that maritime locality alone is not a sufficient predicate for admiralty jurisdiction in aviation tort cases.
In one of the earliest aircraft cases brought in admiralty, The Crawford Bros. No. 2, 215 F. 269, 271 (WD Wash. 1914), in which a libel in rem for repairs was brought against an airplane that had crashed into Puget Sound, the federal court declined to assume jurisdiction, reasoning that an airplane could not be characterized as a maritime vessel. The Crawford Bros. was followed by a number of cases dealing with seaplanes, in which the courts restricted admiralty jurisdiction to occurrences involving planes that were afloat on navigable waters. 9 Continuing doubt as to the applicability [409 U.S. 249, 262] of admiralty law to aircraft was illustrated by cases in the 1930's and 1940's holding that aircraft owners could not invoke the benefits of the maritime doctrine of limitation of liability, 10 and that crimes committed on board aircraft flying over international waters were not punishable under criminal statutes proscribing acts committed on the high seas. 11 Moreover, Congress exempted all aircraft from conformity with United States navigation and shipping laws. 12
The first major extension of admiralty jurisdiction to land-based aircraft came in wrongful-death actions arising out of aircraft crashes at sea and brought under the Death on the High Seas Act, 46 U.S.C. 761 et seq. The federal courts took jurisdiction of such cases because the literal provisions of that statute appeared to be clearly applicable. The Death on the High Seas Act, enacted in 1920, provides:
In recent years, however, some federal courts have been persuaded in aviation cases to extend their admiralty jurisdiction beyond the statutory coverage of the Death on the High Seas Act. Several cases have held that actions for personal injuries arising out of aircraft crashes into the high seas more than one league off shore or arising out of aircraft accidents in the airspace over the high seas were cognizable in admiralty because of their maritime locality, although they were not within the scope of the Death on the High Seas Act or any other federal legislation. 14 These cases, as well as most of those brought under the Death on the High Seas Act, involved torts both with a maritime locality, in that the alleged negligence became operative while the aircraft was on or over navigable waters, and also with some relationship to maritime commerce, at least insofar as the aircraft was beyond state territorial waters and performing a function - transoceanic crossing - that previously would have been performed by waterborne vessels. 15
But a further extension of admiralty jurisdiction was created when courts began to sustain that jurisdiction in situations such as the one now before us - when the claim arose out of an aircraft accident that occurred on or over navigable waters within state territorial limits, [409 U.S. 249, 265] and when the aircraft was not on a transoceanic flight. Apparently, the first such case grew out of a 1960 crash of a commercial jet, bound from Boston to Philadelphia, that collided with a flock of birds over the airport runway and crashed into Boston Harbor within one minute after takeoff. Weinstein v. Eastern Airlines, Inc., 316 F.2d 758 (CA3 1963). In deciding that a wrongful-death action arising from this crash was within admiralty jurisdiction, the Court of Appeals for the Third Circuit applied the strict locality rule and found that the tort had a maritime locality. The court further justified the invocation of admiralty jurisdiction in that case by an analogy to the Death on the High Seas Act:
These latter cases graphically demonstrate the problems involved in applying a locality-alone test of admiralty tort jurisdiction to the crashes of aircraft. Airplanes, unlike waterborne vessels, are not limited by physical boundaries and can and do operate over both land and navigable bodies of water. As Professor Moore and [409 U.S. 249, 266] his colleague Professor Pelaez have stated, "In both death and injury cases . . . it is evident that while distinctions based on locality often are in fact quite relevant where water vessels are concerned, they entirely lose their significance where aircraft, which are not geographically restrained, are concerned." 7A J. Moore, Federal Practice, Admiralty § .330 5., pp. 3772-3773 (2d ed. 1972). In flights within the continental United States, which are principally over land, the fact that an aircraft happens to fall in navigable waters, rather than on land, is wholly fortuitous. The ALI Study, in criticizing the Weinstein decision, observed:
The case before us provides a good example of these difficulties. The petitioners contend that since their aircraft crashed into the navigable waters of Lake Erie and was totally destroyed when it sank in those waters, the locality of the tort, or the place where the alleged [409 U.S. 249, 267] negligence took effect, was there. The fact that the major damage to their plane would not have occurred if it had not landed in the lake indicates, they say, that the substance and consummation of the wrong took place in navigable waters. The respondents, on the other hand, argue that the alleged negligence took effect when the plane collided with the birds - over land. Relying on cases such as Smith & Son v. Taylor, supra, where admiralty jurisdiction was denied in the case of a longshoreman struck by a ship's sling while standing on a pier, and knocked into the water, the respondents contend that a tort "occurs" at the point of first impact of the alleged negligence. Here, they say, the cause of action arose as soon as the plane struck the birds; from then on, the plane was destined to fall, and whether it came down on land or water should not affect "the locality of the act." See Thomas v. Lane, 23 F. Cas., at 960.
In the view we take of the question before us, we need not decide who has the better of this dispute. It is enough to note that either position gives rise to the problems inherent in applying the strict locality test of admiralty tort jurisdiction in aviation accident cases. The petitioners' argument, if accepted, would make jurisdiction depend on where the plane ended up - a circumstance that could be wholly fortuitous and completely unrelated to the tort itself. The anomaly is well illustrated by the hypothetical case of two aircraft colliding at a high altitude, with one crashing on land and the other in a navigable river. If, on the other hand, the respondents' position were adopted, jurisdiction would depend on whether the plane happened to be flying over land or water when the original impact of the alleged negligence occurred. This circumstance, too, could be totally fortuitous. If the plane in the present case struck the birds over Cleveland's Lakefront Airport, [409 U.S. 249, 268] admiralty jurisdiction would not lie; but if the plane had just crossed the shoreline when it struck the birds, admiralty jurisdiction would attach, even if the plane were then able to make it back to the airport and crashland there. These are hardly the types of distinctions with which admiralty law was designed to deal.
All these and other difficulties that can arise in attempting to apply the locality test of admiralty jurisdiction to aeronautical torts are, of course, attributable to the inherent nature of aircraft. Unlike waterborne vessels, they are not restrained by one-dimensional geographic and physical boundaries. For this elementary reason, we conclude that the mere fact that the alleged wrong "occurs" or "is located" on or over navigable waters - whatever that means in an aviation context - is not of itself sufficient to turn an airplane negligence case into a "maritime tort." It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty in the absence of legislation to the contrary.
This conclusion, however, does not end our inquiry, for there remains the question of what constitutes, in the context of aviation, a significant relationship to traditional maritime activity. The petitioners argue that any aircraft falling into navigable waters has a sufficient relationship to maritime activity to satisfy the test. The relevant analogy, they say, is not between flying aircraft and sailing ships, but between a downed plane and a sinking ship. Quoting from the Weinstein opinion, they contend: "When an aircraft crashes into navigable waters, the dangers to persons and property [409 U.S. 249, 269] are much the same as those arising out of the sinking of a ship or a collision between two vessels." 316 F.2d, at 763. The dissenting opinion in the Court of Appeals in the present case made the same argument:
Rules and concepts such as these are wholly alien to air commerce, whose vehicles operate in a totally different element, unhindered by geographical boundaries and exempt from the navigational rules of the maritime road. The matters with which admiralty is basically concerned have no conceivable bearing on the operation of aircraft, whether over land or water. Indeed, in contexts other than tort, Congress and the courts have recognized that, because of these differences, aircraft are not subject to maritime law. 19 Although 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" while a plane is flying [409 U.S. 249, 271] over such waters is enough to create such a relationship to traditional maritime activity as to justify the invocation of admiralty jurisdiction.
We need not decide today whether an aviation tort can ever, under any circumstances, bear a sufficient relationship to traditional maritime activity to come within admiralty jurisdiction in the absence of legislation. 20 It could be argued, for instance, that if a plane flying from New York to London crashed in the mid-Atlantic, there would be admiralty jurisdiction over resulting tort claims even absent a specific statute. 21 An aircraft in that situation might be thought to bear a significant relationship to traditional maritime activity because it would be performing a function traditionally performed by waterborne vessels. 22 Moreover, [409 U.S. 249, 272] other factors might come into play in the area of international air commerce - choice-of-forum problems, choice-of-law problems, 23 international law problems, problems involving multi-nation conventions and treaties, and so on.
But none of these considerations is of concern in the case before us. The flight of the petitioners' land-based aircraft was to be from Cleveland to Portland, Maine, and thence to White Plains, New York - a flight that would have been almost entirely over land and within the continental United States. After it struck the flock of seagulls over the runway, the plane descended and settled in Lake Erie within the territorial waters of Ohio. We can find no significant relationship between such an event befalling a land-based plane flying from one point in the continental United States to another, and traditional maritime activity involving navigation and commerce on navigable waters.
Just last Term, in Victory Carriers, Inc. v. Law, 404 U.S., at 212 , we observed that in determining whether to expand admiralty jurisdiction, "we should proceed with caution . . . ." Quoting from Healy v. Ratta, 292 U.S. 263, 270 (1934), we stated:
It may be, as the petitioners argue, that aviation tort cases should be governed by uniform substantive and procedural laws, and that such actions should be heard in the federal courts so as to avoid divergent results and duplicitous litigation in multi-party cases. But for this Court to uphold federal admiralty jurisdiction [409 U.S. 249, 274] in a few wholly fortuitous aircraft cases would be a most quixotic way of approaching that goal. If federal uniformity is the desired goal with respect to claims arising from aviation accidents, Congress is free under the Commerce Clause to enact legislation applicable to all such accidents, whether occurring on land or water, and adapted to the specific characteristics of air commerce.
For the reasons stated in this opinion we hold that, in the absence of legislation to the contrary, there is no federal admiralty jurisdiction over aviation tort claims arising from flights by land-based aircraft between points within the continental United States. 26
The judgment is affirmed.
[ Footnote 2 ] Besides Dicken, the respondents are the City of Cleveland, as owner and operator of the airport, and Phillip A. Schwenz, the airport manager.
[ Footnote 3 ] The petitioners also filed an action against Dicken's employer, the United States, under the Federal Tort Claims Act, 28 U.S.C. 1346 (b) and 2674, asserting the same claim. That action is pending in the District Court for the Northern District of Ohio.
[ Footnote 4 ] In Victory Carriers, Inc. v. Law, 404 U.S. 202, 205 n. 2 (1971), we cited over 40 cases to this effect.
[ Footnote 5 ] Davis v. City of Jacksonville Beach, 251 F. Supp. 327 (MD Fla. 1965) (injury to a swimmer by a surfboard); King v. Testerman, 214 F. Supp. 335, 336 (ED Tenn. 1963) (injuries to a water skier). See also Horton v. J. & J. Aircraft, Inc., 257 F. Supp. 120, 121 (SD Fla. 1966). Cf. Weinstein v. Eastern Airlines, Inc., 316 F.2d 758 (CA3 1963).
[ Footnote 6 ] In another injured-swimmer case, McGuire v. City of New York, 192 F. Supp. 866, 871-872 (SDNY 1961), the court stated:
[ Footnote 7 ] Hough, Admiralty Jurisdiction - Of Late Years, 37 Harv. L. Rev. 529, 531 (1924).
[ Footnote 8 ] The Court has held, however, that there is no admiralty jurisdiction under the Extension of Admiralty Jurisdiction Act over suits brought by longshoremen injured while working on a pier, when such [409 U.S. 249, 261] injuries were caused, not by ships, but by pier-based equipment. Victory Carriers, Inc. v. Law, supra; Nacirema Co. v. Johnson, 396 U.S. 212, 223 (1969). The Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq., was amended in 1972 to cover employees working on those areas of the shore customarily used in loading, unloading, repairing, or building a vessel. Pub. L. No. 92-576, 2, 86 Stat. 1251.
[ Footnote 9 ] Matter of Reinhardt v. Newport Flying Service Corp., 232 N. Y. 115, 117-118, 133 N. E. 371, 372 (1921); United States v. Northwest Air Service, Inc., 80 F.2d 804, 805 (CA9 1935). See also Lambros Seaplane Base v. The Batory, 215 F.2d 228, 231 (CA2 1954).
[ Footnote 10 ] Dollins v. Pan-American Grace Airways, Inc., 27 F. Supp. 487, 488-489 (SDNY 1939); Noakes v. Imperial Airways, Ltd., 29 F. Supp. 412, 413 (SDNY 1939).
[ Footnote 11 ] United States v. Peoples, 50 F. Supp. 462 (ND Cal. 1943); United States v. Cordova, 89 F. Supp. 298 (EDNY 1950).
In 1952, however, Congress amended the criminal jurisdiction of admiralty to include crimes committed aboard aircraft while in flight over the high seas or any other waters within the admiralty jurisdiction of the United States except waters within the territorial jurisdiction of any State. 18 U.S.C. 7 (5).
[ Footnote 12 ] The Federal Aviation Act of 1958, 72 Stat. 799, as amended, 49 U.S.C. 1509 (a), the successor to the Air Commerce Act of 1926, 44 Stat. 572, formerly 49 U.S.C. 177 (1952 ed.).
[ Footnote 13 ] See, e. g., Wyman v. Pan-American Airways, Inc., 181 Misc. 963, 966, 43 N. Y. S. 2d 420, 423, aff'd, 267 App. Div. 947, 48 N. Y. S. 2d 459, aff'd, 293 N. Y. 878, 59 N. E. 2d 785 (1944); Higa v. Transocean Airlines, 230 F.2d 780 (CA9 1955); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677, 680 (CA2 1957); Trihey v. Transocean Air Lines, 255 F.2d 824, 827 (CA9 1958); Lacey v. L. W. Wiggins Airways, Inc., 95 F. Supp. 916 (Mass. 1951); Wilson v. Transocean Airlines, 121 F. Supp. 85 (ND Cal. 1954); Stiles v. National Airlines, Inc., 161 F. Supp. 125 (ED La. 1958), aff'd, 268 F.2d 400 (CA5 1959); Noel v. Airponents, Inc., 169 F. Supp. 348 (NJ 1958); Lavello v. Danko, 175 F. Supp. 92 (SDNY 1959); Blumenthal v. United States, 189 F. Supp. 439, 445 (ED Pa. 1960), aff'd, 306 F.2d 16 (CA3 1962); Pardonnet v. Flying Tiger Line, Inc., 233 F. Supp. 683 (ND Ill. 1964); Kropp v. Douglas Aircraft Co., 329 F. Supp. 447, 453-455 (EDNY 1971). Cf. D'Aleman v. Pan American World Airways, 259 F.2d 493 (CA2 1958).
[ Footnote 14 ] Bergeron v. Aero Associates, Inc., 213 F. Supp. 936 (ED La. 1963); Notarian v. Trans World Airlines, Inc., 244 F. Supp. 874 (WD Pa. 1965); Horton v. J. & J. Aircraft, Inc., 257 F. Supp. 120 (SD Fla. 1966).
[ Footnote 15 ] Whether this type of relationship to maritime commerce is a sufficient maritime nexus to justify admiralty jurisdiction over airplane accidents is discussed infra, at 271-272. We do not decide that question in this case.
[ Footnote 16 ] Hornsby v. Fish Meal Co., 431 F.2d 865 (CA5 1970); Harris v. United Air Lines, Inc., 275 F. Supp. 431, 432 (SD Iowa 1967). Cf. Scott v. Eastern Air Lines, Inc., 399 F.2d 14, 21-22 (CA3 1968) (en banc).
[ Footnote 17 ] See also Comment, Admiralty Jurisdiction: Airplanes and Wrongful Death in Territorial Waters, 64 Col. L. Rev. 1084, 1091-1092 (1964).
[ Footnote 18 ] Moreover, if the mere happenstance that an aircraft falls into navigable waters creates a maritime relationship because of the maritime dangers to a sinking plane, then the maritime relationship test would be the same as the petitioners' view of the maritime-locality test, with the same inherent fortuity.
[ Footnote 19 ] See supra, at 261-262.
[ Footnote 20 ] 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.
[ Footnote 21 ] But see 7A J. Moore, Federal Practice, Admiralty § .330 5., p. 3772 (2d ed. 1972):
[ Footnote 22 ] Apart from transoceanic flights, the Government's brief suggests that another example where admiralty jurisdiction might properly be invoked in an airplane accident case on the ground that the plane was performing a function traditionally performed by waterborne vessels, is shown in Hornsby v. Fish Meal Co., 431 F.2d 865 (CA5 1970), which involved the mid-air collision of two light aircraft [409 U.S. 249, 272] used in spotting schools of fish and the crash of those aircraft into the Gulf of Mexico within one marine league of the Louisiana shore.
[ Footnote 23 ] In such a situation, it has been stated:
[ Footnote 24 ] There is no diversity of citizenship between petitioners and the City of Cleveland.
[ Footnote 25 ] The United States, respondent Dicken's employer, can be sued, of course, only in federal district court under the Federal Tort Claims Act, 28 U.S.C. 1346 (b) and 2674. Such an action has been filed by the petitioners here, but even in that suit the federal court will apply the substantive tort law of Ohio. Thus, Ohio law will not be ousted in this case, and the pendency of the action under the Tort Claims Act has no relevance in determining whether the instant case should be heard in admiralty, with its federal substantive law.
The possibility that the petitioners would have to litigate the same claim in two forums is the same possibility that would exist if their plane had stopped on the shore of the lake, instead of going into the water, and is the same possibility that exists every time a plane goes down on land, negligence of the federal air traffic controller is alleged, and there is no diversity of citizenship. This problem cannot be solved merely by upholding admiralty jurisdiction in cases where the plane happens to fall on navigable waters.
[ Footnote 26 ] Some such flights, e. g., New York City to Miami, Florida, no doubt involve passage over "the high seas beyond a marine league from the shore of any State." To the extent that the terms of the Death on the High Seas Act become applicable to such flights, that Act, of course, is "legislation to the contrary." [409 U.S. 249, 275]