Carolyn Roberts, Individually v. United States, 498 F.2d 520 (9th Cir. 1974). · Go Syfert
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Carolyn Roberts, Individually v. United States, 498 F.2d 520 (9th Cir. 1974). Cases Citing This Book View Copy Cite
138 citation events (18 in the last 25 years) across 39 distinct courts.
Strongest positive: Kelly v. United States (casd, 2021-08-05) · Strongest negative: Kunreuther v. Outboard Marine Corp. (paed, 1989-06-23)
Treatment trajectory · 1974 → 2026 · click a year to view as-of
1974 2000 2026
Statutes interpreted (leading-cases list)
#2 46 U.S.C. § 761-768 cited 2× in this case · 94 total citations of statute #7 46 U.S.C. § 741-752 cited 2× in this case · 247 total citations of statute #1 28 U.S.C. § 2680(k) cited 1× in this case · 1 total citations of statute #10 46 U.S.C. § 781-790 cited 1× in this case · 162 total citations of statute #19 46 U.S.C. § 745 cited 1× in this case · 414 total citations of statute
Top citers, strongest first. 49 distinct citers. How cited ↗
cited Cited "but see" Kunreuther v. Outboard Marine Corp.
E.D. Pa. · 1989 · signal: but see · confidence high
Jennings v. Boeing Co., 660 F.Supp. 796, 803 (E.D.Pa.1987); but see Roberts v. United States, 498 F.2d 520, 524 (9th Cir.1974).
discussed Cited "but see" Sanchez v. Loffland Bros.
5th Cir. · 1980 · signal: but see · confidence high
But see Roberts v. United States, 498 F.2d 520 (9th Cir. 1974). . [G]iven the clarity of the Supreme Court’s instruction to apply the two-year statute of limitations of the Death on the High Seas Act to wrongful death actions under the general maritime law, and given the Court’s repeated expression of concern for uniformity in the administration of this judge-made cause of action, the plaintiff in this case has the burden of showing what this court has called ‘strong justification for delay,’ ” Public Administrator of the County of New York v. Angela Compania Naviera, 592 F.2d 58, 64…
discussed Cited "but see" Sanchez v. Loffland Brothers Company
5th Cir. · 1980 · signal: but see · confidence high
But see Roberts v. United States, 498 F.2d 520 (9th Cir. 1974) 5 (G)iven the clarity of the Supreme Court's instruction to apply the two-year statute of limitations of the Death on the High Seas Act to wrongful death actions under the general maritime law, and given the Court's repeated expression of concern for uniformity in the administration of this judge-made cause of action, the plaintiff in this case has the burden of showing what this court has called 'strong justification for delay,' " Public Administrator of the County of New York v. Angela Compania Naviera, 592 F.2d 58, 64 (2d Cir. 1…
discussed Cited as authority (rule) Kelly v. United States
S.D. Cal. · 2021 · confidence medium
“Congressional waiver of sovereign immunity is a prerequisite to any suit brought 13 against the United States . . . .” Roberts v. United States, 498 F.2d 520, 525 (9th Cir. 1974). 14 “A waiver of the sovereign immunity of the United States ‘cannot be implied but must be 15 unequivocally expressed.’” Franconia Assocs. v. United States, 536 U.S. 129, 141 (2002) 16 (quoting United States v. King, 395 U.S. 1, 4 (1969)). “[T]he terms of [the United States’] 17 consent to be sued in any court define that court’s jurisdiction to entertain the suit.” 18 Mitchell, 445 U.S. at 538 (…
discussed Cited as authority (rule) Michael Ruan v. United States
9th Cir. · 2020 · confidence medium
Falgout Boats, Inc. v. United States, 508 F.2d 855, 858 (9th Cir. 1974), cert. denied, 421 U.S. 1000 (1975); Roberts v. United States, 498 F.2d 520, 526 (9th Cir.), cert. denied, 419 U.S. 1070 (1974)).
cited Cited as authority (rule) Vrijesh S. Tantuwaya MD, Inc. v. Anthem Blue Cross Life & Health Insurance
S.D. Cal. · 2016 · confidence medium
“It is axiomatic that Congressional waiver of sovereign immunity is a prerequisite to any suit brought against the United States.” Roberts v. United States, 498 F.2d 520, 525 (9th Cir.1974).
discussed Cited as authority (rule) Zhang Bin v. Boeing Company
7th Cir. · 2015 · confidence medium
See Miller v. United States, 725 F.2d 1311, 1315 (11th Cir.1984) (flight from Bahamas to Florida is within admiralty jurisdiction); Williams v. United States, 711 F.2d 893, 896 (9th Cir.1983) (flight from California to Hawaii is within admiralty jurisdiction); Roberts v. United States, 498 F.2d 520, 524 (9th Cir.1974) (flight from California -to Vietnam is within admiralty jurisdiction).
cited Cited as authority (rule) United States Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd.
10th Cir. · 2009 · confidence medium
Roberts v. United States, 498 F.2d 520, 524 (9th Cir.1974) (suggesting Executive Jet would not preclude admiralty jurisdiction in cargo transportation setting).
discussed Cited as authority (rule) In Re Air Crash Off Point Mugu, California
N.D. Cal. · 2001 · confidence medium
See Offshore Logistics v. Tallentire, 477 U.S. 207, 209 , 106 S.Ct. 2485 , 91 L.Ed.2d 174 (1986) (admiralty jurisdiction applies to crash of helicopter en route to offshore oil rig); Williams v. United States, 711 F.2d 893, 896 (9th Cir.1983) (admiralty jurisdiction lies over wrongful death claim where accident occurred in mid-Pacific Ocean); Roberts v. United States, 498 F.2d 520, 523 (9th Cir.1974) (applying maritime law to transoceanic flight, noting that “before the advent of aviation, such shipping could only be performed by waterborne vessels”); In re Air Disaster Near Honolulu, 792 …
cited Cited as authority (rule) Palischak v. Allied Signal Aerospace Co.
D.N.J. · 1995 · confidence medium
Falgout Boats, Inc. v. United States, 508 F.2d 855, 858 (9th Cir.1974); Roberts v. United States, 498 F.2d 520, 526 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974). 7 .
discussed Cited as authority (rule) Smith v. United States
SCOTUS · 1993 · confidence medium
See also McCormick v. United States, 680 F. 2d 345, 349 (CA5 1982) (citing Moran with approval); Roberts v. United States, 498 F. 2d 520, 525-526 (CA9 1974) (noting that prior to 1960 amendments to Suits in Admiralty Act, FTCA waived sovereign immunity for claims under the general maritime law and the DOHSA).
discussed Cited as authority (rule) Nelsen v. Research Corp. of the University of Hawaii (2×) also: Cited "see"
D. Haw. · 1991 · confidence medium
Roberts v. United States, 498 F.2d 520, 525 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974).
cited Cited as authority (rule) Paul Guidry v. John Durkin
9th Cir. · 1987 · confidence medium
Roberts v. United States, 498 F.2d 520, 525-26 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974).
discussed Cited as authority (rule) Jennings v. Boeing Co.
E.D. Pa. · 1987 · signal: contra · confidence medium
Fla.1986) (territorial waters of Mexico); In re Air Crash Disaster Near Bombay, India On January 1, 1978, 531 F.Supp. 1175, 1183 (W.D.Wash.1982) (territorial waters of India); contra Roberts v. United States, 498 F.2d 520, 524 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974) (although not deciding the issue, court hesitant to hold that foreign territorial waters are “high seas” within meaning of DOHSA).
discussed Cited as authority (rule) Olympia Sauna Compania Naviera, S.A. v. United States
D. Or. · 1987 · confidence medium
United States v. United Continental Tuna Corp., 425 U.S. 164 , 175-76 and n. 14, 96 S.Ct. 1319 , 1326 and n. 14, 47 L.Ed.2d 653 (1976); Roberts v. United States, 498 F.2d 520, 525-26 (9th Cir.1974); De Bardeleben Marine Corp. v. United States, 451 F.2d 140, 145-47 (5th Cir.1971).
discussed Cited as authority (rule) Lamontagne v. Craig
N.D. Cal. · 1986 · confidence medium
Contr., Inc., 537 F.2d 113, 115 (5th Cir.1976); Roberts v. United States, 498 F.2d 520, 523 (9th Cir.1974); Earles v. Union Barge Line Corp., 486 F.2d 1097, 1100 (3rd Cir.1973); Chapman v. City of Grosse Pointe Farms, 385 F.2d 962, 964 (6th Cir.1967), but would be consistent with the dictates of logic and common sense as well.
discussed Cited as authority (rule) Tommy Shaw v. Library of Congress (2×)
D.C. Cir. · 1984 · confidence medium
E.g., Roberts v. United States, 498 F.2d 520, 525-526 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974); National Union Fire Ins.
cited Cited as authority (rule) Robert I. Bovell and Beverly Bovell v. United States of America, Department of Defense
3rd Cir. · 1984 · confidence medium
Falgout Boats, Inc. v. United States, 508 F.2d at 858 ; Roberts v. United States, 498 F.2d 520, 526 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974).
examined Cited as authority (rule) Williams v. United States (3×) also: Cited "see"
9th Cir. · 1983 · confidence medium
Falgout Boats, Inc. v. United States, 508 F.2d 855, 858 (9th Cir.1974), cert. denied, 421 U.S. 1000 , 95 S.Ct. 2398 , 44 L.Ed.2d 667 (1975); Roberts v. United States, 498 F.2d 520, 526-27 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974).
examined Cited as authority (rule) Williams v. United States (3×) also: Cited "see"
9th Cir. · 1983 · confidence medium
Falgout Boats, Inc. v. United States, 508 F.2d 855, 858 (9th Cir.1974), cert. denied, 421 U.S. 1000 , 95 S.Ct. 2398 , 44 L.Ed.2d 667 (1975); Roberts v. United States, 498 F.2d 520, 526-27 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974).
discussed Cited as authority (rule) In Re the Complaint of American Export Lines, Inc.
S.D.N.Y. · 1983 · confidence medium
Thus, “Congressional waiver of sovereign immunity is a prerequisite to any suit brought against the United States under admiralty law or otherwise.” Roberts v. United States, 498 F.2d 520, 525 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974).
discussed Cited as authority (rule) Smith v. Pan Air Corp.
5th Cir. · 1982 · signal: cf. · confidence medium
See, e.g., Higginbotham v. Mobil Oil Corp., 545 F.2d 422 , 424 n.l, 430 (5th Cir. 1977) (stating, on page last cited, “Logic, experience and precedent compel us to reject the argument that airplane crashes ordinarily occur in the absence of default by someone connected with the design, manufacture, or operation of the craft”) (emphasis added), rev’d on other grounds, 436 U.S. 618 , 98 S.Ct. 2010 , 56 L.Ed.2d 581 (1978); Hornsby v. Fish Meal Co., 431 F.2d 865, 866-67 (5th Cir. 1970) (pilot error); Hubschman v. Antilles Airboats, Inc., 440 F.Supp. 828, 853-57 (D.V.I.1977) (recovery against…
discussed Cited as authority (rule) Denyse Nettune Jordan Smith, Etc. v. Pan Air Corp., Martha Kolb, Etc. v. Texaco, Inc. And Pool Offshore Co., Petroleum Helicopters, Inc. And American Home Assurance Co. v. Pool Company of Texas
5th Cir. · 1982 · signal: cf. · confidence medium
See, e.g., In re Dearborn Marine Serv., Inc., 499 F.2d 263, 270 (5th Cir. 1974) 13 See, e.g., Higginbotham v. Mobil Oil Corp., 545 F.2d 422 , 424 n.1, 430 (5th Cir. 1977) (stating, on page last cited, "Logic, experience and precedent compel us to reject the argument that airplane crashes ordinarily occur in the absence of default by someone connected with the design, manufacture, or operation of the craft") (emphasis added), rev'd on other grounds, 436 U.S. 618 , 98 S.Ct. 2010 , 56 L.Ed.2d 581 (1978); Hornsby v. Fish Meal Co., 431 F.2d 865, 866-67 (5th Cir. 1970) (pilot error); Hubschman v. An…
discussed Cited as authority (rule) Jacob Dick v. United States (2×)
2d Cir. · 1982 · confidence medium
Id. at 176 n.14, 96 S.Ct. at 1326 n.14; Roberts v. United States, 498 F.2d 520, 525-26 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974).
discussed Cited as authority (rule) Fosen v. United Technologies Corp.
S.D.N.Y. · 1980 · confidence medium
See Higginbotham v. Mobile Oil Corp., 545 F.2d 422 , 424 n.1 (5th Cir. 1977), rev’d on other grounds, 436 U.S. 618 , 98 S.Ct. 2010 , 56 L.Ed.2d 581 (1978); Roberts v. United States, 498 F.2d 520, 524 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974); Hubschman v. Antilles Airboats, Inc., supra, 440 F.Supp. at 840 .
discussed Cited as authority (rule) Mancuso v. Kimex, Inc.
S.D. Fla. · 1980 · confidence medium
In Roberts v. United States, 498 F.2d 520, 524 (9th Cir. 1974) Judge Trask specifically declined to decide the question presented here, “[i]n view of the somewhat ambiguous language of the statute itself and the apparent lack of authority on the point.” In a footnote to the same sentence, however, he noted that [bjecause 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 withi…
discussed Cited as authority (rule) Eazor Express, Inc. v. United States
E.D.N.Y · 1980 · confidence medium
Kelly v. United States, supra, 531 F.2d at 1149 ; Roberts v. United States, supra, 498 F.2d at 525. *142 The SIAA provides that suits authorized thereunder must be brought within two years after the cause of action accrues. 46 U.S.C. § 745 .
discussed Cited as authority (rule) Lloyd v. Cessna Aircraft Co.
E.D. Tenn. · 1976 · confidence medium
Richards v. United States (1962), 369 U.S. 1, 9-10 , 82 S.Ct. 585 , 7 L.Ed.2d 492, 498 (headnotes 3, 4); Roberts v. United States, C.A. 9th (1974), 498 F.2d 520, 522 [1], n. 2, certiorari denied (1974), 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 .
discussed Cited as authority (rule) Laurence F. Kelly, as Administrator of the Estate of Richard C. Kelly v. United States
2d Cir. · 1976 · confidence medium
Falgout Boats, Inc. v. United States, 361 F.Supp. 838, 841-42 (C.D.Cal.1972), aff’d, 508 F.2d 855 (9th Cir. 1974), cert. denied, 421 U.S. 1000 , 95 S.Ct. 2398 , 44 L.Ed.2d 667 (1975); Roberts v. United States, 498 F.2d 520, 525 (9th Cir. 1974), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974).
discussed Cited as authority (rule) Gercey v. United States
D.R.I. · 1976 · confidence medium
In 1960, however, the Suits in Admiralty Act was amended, and as the Court of Appeals for the Ninth Circuit explained in Roberts v. United States, 498 F.2d 520, 525-526 (1974), the language added means that torts of government employees as well as government vessels are to be covered by the federal courts’ admiralty jurisdiction: 2 *950 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.
cited Cited as authority (rule) Gulf Refining Co. v. United States
E.D. Tex. · 1976 · confidence medium
Roberts v. United States, 498 F.2d 520, 525 (9th Cir. 1974); De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir. 1971).
discussed Cited as authority (rule) In Re Paris Air Crash of March 3, 1974
C.D. Cal. · 1975 · confidence medium
Roberts v. United States, 498 F.2d 520, 522, fn.2 (9th Cir. 1974): “Under the FTCA, a tort claim arises at the place where the negligent act or omission occurred and not where the negligence had its ‘operative effect,’ (i.e., the situs of injury).
cited Cited "see" Thomas Landreth v. United States
9th Cir. · 2021 · signal: see · confidence high
See Roberts v. United States, 498 F.2d 520, 525 (9th Cir. 1974), cert. denied, 419 U.S. 1070 (1974).
discussed Cited "see" Landreth v. United States of America
W.D. Wash. · 2020 · signal: see · confidence high
See, Roberts v. United 9 States, 498 F.2d 520, 525 (9th Cir. 1974), cert. denied, 419 U.S. 1070 (1974) (axiomatic that a 10 congressional waiver of sovereign immunity is a prerequisite to any suit brought against the 11 United States).
cited Cited "see" Higgins v. Leland
D.S.C. · 1993 · signal: see · confidence high
See, Roberts v. U.S., 498 F.2d 520 (9th Cir.1974); see also, Kelly v. Smith, 485 F.2d 520 (5th Cir.1973).
discussed Cited "see" Robert Leppaluoto, and Judina Leppaluoto, Doing Business as Leppaluoto Offshore Marine v. United States
9th Cir. · 1989 · signal: see · confidence high
See Roberts v. United States, 498 F.2d 520, 526 (9th Cir.), cert. denied, 419 U.S. 1070 (1974). 7 The district court properly dismissed appellants' remaining claims of defamation and misrepresentation; appellants failed to comply with the administrative claims requirement of the FTCA.
cited Cited "see" Miller v. United States
11th Cir. · 1984 · signal: see · confidence high
See Roberts, 498 F.2d at 523, n. 3 .
cited Cited "see" Elissa Mueller Miller, as Personal Representative of the Estate of Chester H. Miller v. United States of America, Ann Biggs Lewis, as Personal Representative of the Estate of James W. Lewis v. United States
11th Cir. · 1984 · signal: see · confidence high
See Roberts, 498 F.2d at 523, n. 3 .
discussed Cited "see" Freeborn v. Upper Lakes Shipping, Ltd.
W.D. Mich. · 1982 · signal: see · confidence high
See, Roberts v. United States, 498 F.2d 520 (9th Cir. 1974); Annot. at 19 A.L.R.Fed. 297. 2 *1102 According to the Suits in Admiralty Act, supra, a suit may be maintained against the United States only “[i]n cases where ... if a private person or property were involved, a proceeding in admiralty could be maintained. . . . ” 46 U.S.C. § 742 .
cited Cited "see" In Re Air Crash Disaster Near Bombay, Etc.
W.D. Wash. · 1982 · signal: see · confidence high
See Roberts v. United States, 498 F.2d at 524 .
cited Cited "see" Stoddard v. Ling-Temco-Vought, Inc.
C.D. Cal. · 1981 · signal: see · confidence high
See, Roberts v. United States, 498 F.2d 520, 525 (9th Cir. 1974), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974).
discussed Cited "see" Bryson v. United States
E.D. Pa. · 1978 · signal: see · confidence high
See Roberts v. United States, 498 F.2d 520 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974); Manemann v. United States, 381 F.2d 704 (10th Cir. 1967); In Re Paris Air Crash of March 3, 1974, 399 F.Supp. 732 (C.D.Cal.1975).
discussed Cited "see, e.g." Kennedy v. Carnival Corp.
S.D. Fla. · 2019 · signal: see also · confidence low
See also Roberts v. United States , 498 F.2d 520 ,527 n.7 (9th Cir. 1974) ("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 water 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.").
discussed Cited "see, e.g." Rux v. Republic of Sudan (2×)
E.D. Va. · 2007 · signal: see also · confidence medium
See, e.g., United States v. Gavagan, 280 *561 F.2d 319, 321 (5th Cir.1960) (holding United States liable under DOHSA through the FTCA for deaths resulting from negligent rescue efforts on the high seas); Blumenthal v. United States, 189 F.Supp. 439, 446-47 (E.D.Pa.1960) (“In the same manner as a private person is liable under the Death on the High Seas Act, so, too, is the Government under the Federal Tort Claims Act.”); Moran v. United States, 102 F.Supp. 275, 279 (D.Conn.1951) (holding that FTCA extended the right of action created by DOHSA to claims against the United States for persona…
discussed Cited "see, e.g." In Re Air Crash Disaster Near Peggy's Cove, Nova Scotia on September 2, 1998 (2×)
E.D. Pa. · 2002 · signal: see also · confidence low
"Because it was generally understood that the wrongful death statutes of the coastal states were not meant to apply to the high seas, including the territorial waters of foreign states, there was no need to limit further the scope of DOHSA's application." Jennings, 660 F.Supp. at 803 (citing Moragne, 398 U.S. at 393 n. 10, 90 S.Ct. 1772 ); see also Roberts v. United States, 498 F.2d 520 , 524 n. 7 (9th Cir.1974) (declining to decide the issue, but noting, "Because Congress only has power to fix the extent of territorial waters measured from the shores of its own country it may well have consid…
discussed Cited "see, e.g." Donahue v. United States Department of Justice
S.D.N.Y. · 1990 · signal: see, e.g. · confidence medium
See, e.g., Roberts v. United States, 498 F.2d 520, 522 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974); Meredith v. United States, 330 F.2d 9, 10 (9th Cir.), cert. denied, 379 U.S. 867 , 85 S.Ct. 137 , 13 L.Ed.2d 70 (1964); Callas v. United States, 253 F.2d 838, 840 (2d Cir.), cert. denied, 357 U.S. 936 , 78 S.Ct. 1384 , 2 L.Ed.2d 1550 (1958).
cited Cited "see, e.g." Knauer v. Johns-Manville Corp.
D. Maryland · 1986 · signal: see, e.g. · confidence medium
See, e.g., Roberts v. United States, 498 F.2d 520, 526 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974); Maryland ex rel.
cited Cited "see, e.g." Mohammad Sami v. United States of America
D.C. Cir. · 1979 · signal: see also · confidence low
See also Roberts v. United States, 498 F.2d 520 , 522 n.2 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974); Bryson v. United States, 463 F.Supp. 908 (E.D.Pa.1978).
discussed Cited "see, e.g." Gaspar v. United States
D. Mass. · 1978 · signal: see also · confidence low
See also, Roberts v. United States, 498 F.2d 520 (9th Cir.), cert. denied, 419 U.S. 1070 , 95 S.Ct. 656 , 42 L.Ed.2d 665 (1974); DeBardeleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir. 1971); Richmond Marine Panama, S.A. v. United States, 350 F.Supp. 1210, 1219-20 (S.D.N.Y.1972); Tankrederiet Gefion A/S v. United States, 241 F.Supp. 83 (E.D.Mich. 1964).
Retrieving the full opinion text from the archive…
Carolyn ROBERTS, Individually, Et Al., Plaintiff-Appellees,
v.
UNITED STATES of America, Defendant-Appellant
19-15159.
Court of Appeals for the Ninth Circuit.
Jun 20, 1974.
498 F.2d 520
Neil H. Koslowe (argued), Morton Hollander, James C. Hair, Jr., of Civil Div., Appellate Section, U. S. Dept, of Justice, Washington, D. C., for defendant-appellant., Al Schallau (argued), Ian Herzog, Craig S. Dummit, Los Angeles, Cal., for plaintiff-appellees.
Ely, Hufstedler, Trask.
Cited by 104 opinions  |  Published
TRASK, Circuit Judge:

The United States appeals from an order denying its motion for dismissal of[*522] the appellees’ complaint. Because the motion raised a close jurisdictional question the District Court certified its order for an interlocutory appeal under 28 U.S.C. § 1292(b). The United States filed an application in this court to prosecute that appeal and we granted the application. Upon review of the applicable authorities we conclude that the court erroneously denied the Government’s motion to dismiss.

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. [1] Their original complaint was brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., and sought $2,500,000 damages for wrongful death. The United States, however, successfully argued that because the tort was alleged to have occurred in Okinawa, the action was therefore barred by section 2680 (k) of the FTCA which excludes “[a]ny claim arising in a foreign country.” The District Court accordingly dismissed the suit but granted the appellees leave to amend.

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). [2] To therefore shift the[*523] locus of their claim from land to sea, the appellees rely upon two independent sources: the general maritime law, and a specific federal statute, the Death on the High Seas Act, 46 U.S.C. §§ 761-768.

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. [3] A literal application of this test over the years had brought aviation tort cases within admiralty jurisdiction depending, of course, upon where the aircraft crashed. [4] However, in Executive Jet the Supreme Court criticized the fortuity of this jurisdictional classification and announced a new twofold test for determining whether a maritime tort was pleaded. The Court retained the navigable waters locality prerequisite but added a maritime “nexus” requirement:

“. . . [W]e 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.” Id. 409 U.S. at 268.

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 takeoff 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:

“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. It could be argued, for instance, that if a plane flying from New York to London crashed in the mid-Atlantic, there[*524] would be admiralty jurisdiction over resulting tort claims even absent a specific statute. 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 water-borne vessels.” Id. 409 U.S. at 271.

The Supreme Court thus expressly reserved the question which is before us now. [5]

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, [6] the facts alleged in the appellees’ own brief cast doubt upon the statute's applicability. The appellees concede that the alleged tort occurred a maximum of 1900 feet from the Okinawa shore, i. e., in presumably foreign territorial waters. In view of the somewhat ambiguous language of the statute itself and the apparent lack of authority on the point, we hesitate to conclude whether a tort occurring within foreign territorial waters comes within the purview of the Death on the High Seas Act. [7]

[*525] However, we find it unnecessary to resolve this question since our acceptance of appellees’ maritime tort designation on either this or Executive Jet ground would require recognition of another jurisdictional obstacle prohibiting this suit.

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. [8] The United States, however, contends that maritime claims against the Government arising under either the Death on the High Seas Act or the general maritime law are cognizable solely under two specific federal admiralty statutes, the Suits in Admiralty Act (SIA), 46 U.S.C. §§ 741-752 and the Public Vessels Act, 46 U.S.C. §§ 781-790. Neither side disputes the fact that jurisdiction under the FTCA and the two admiralty statutes is mutually exclusive, 28 U.S.C. § 2680(d).

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. [9] However, in 1960, Congress amended section 742 of the SIA by deleting the language which restricted the statute to claims involving merchant vessels [10] and by substituting a broad new jurisdictional statement:

“In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States. . . .” Pub.L. No. 86-770, § 3, 74 Stat. 912. (Emphasis added)

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.[*526] W. Petersen Coal & Oil Co. v. United States, 323 F.Supp. 1198 (N.D.Ill.1970). Moreover, this expanded interpretation of the SIA appears to conform with retrospective Congressional understanding of the Act, as the court in Richmond Marine Panama, S. A. v. United States, supra, notes:

“Although subsequent Congressional explanation of the meaning of a statute is not binding on the courts, it is interesting to note, nevertheless, that a Senate Report of August 17, 1972 explained that the 1960 amendment extends jurisdiction under the Suits in Admiralty Act ‘to the full range of admiralty cases which might have been maintained had a private person or property been involved rather than the Government or its agents and employees or property.’ Senate Report No. 92-1079, 92d Cong., 2d Sess., 1972, 9 U.S.Code Cong, and Admin. News, pp. 4045, 4050.” Id. 350 F.Supp. at 1220, note.

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). [11]

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. [12] While the result is harsh, it is well established that the limitations period in the Suits in Admiralty Act is jurisdictional in nature:

“The two year time-bar of the Suits in Admiralty Act is unlike a time-bar period prescribed under an ordinary Statute of Limitations. Under an ordinary time-bar statute a claim is not extinguished after the statutory period has elapsed. It is only unenforceable. The time-bar of the Suits in Admiralty Act renders a claim against the United States not only unenforceable, but extinguishes the claim itself, for when the sovereign, immune from suit, consented to be sued it was made a condition of the right to sue that suits so authorized had to be brought within the time-bar period.”

States Marine Corp. of Delaware v. United States, 283 F.2d 776, 778 (2d Cir. 1960). See also McMahon v. United[*527] States, 342 U.S. 25 (1951). Neither infancy nor any other disability can toll the running of this statute. Sgambati v. United States, 172 F.2d 297 (2d Cir. 1949), cert. denied, 337 U.S. 938, 69 S.Ct. 1514, 93 L.Ed. 1743 (1949). Accord, Williams v. United States, 133 F.Supp. 319 (E.D.Va.1954), aff’d, 228 F.2d 129 (4th Cir. 1955), cert. denied, 351 U.S. 986, 76 S.Ct. 1054, 100 L.Ed. 1499 (1956). [13]

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.

Reversed.

1

. An administrative claim was filed on July 26, 1972, and rejected by the appropriate Federal agency on August 22, 1972.

2

. Under the FTCA, a tort claim arises at the place where the negligent act or omission occurred and not where the negligence had its “operative effect,” (i.e., the situs of injury). Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). An American military base located on foreign soil is fully within the foreign country exception (section 2680 (k)), United States v.[*523] Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949), and this court has previously classified Okinawa as a foreign country for the purposes of the FTCA, Cobb v. United States, 191 F.2d 604 (9th Cir. 1951), cert. denied, 342 U.S. 913, 72 S.Ct. 360, 96 L.Ed. 683 (1952).

The OoW) 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.

3

. A classic statement of the locality test appears in The Plymouth, 3 Wall. 20, 36 (1855) ; “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 durability of this test is reflected by the fact that the Supreme Court approvingly applied the locality standard in the term immediately prior to the Executive Jet decision. Victory Carriers, Inc. v. Law, 404 U.S. 202, 205 (1971).

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.

4

. See Executive Jet, supra 409 U.S. at 264, n. 14.

5

. We find little assistance in the post -Executive Jet cases, as none have involved claims arising from a transoceanic aviation accident. E.g., Teachey v. United States, 363 F.Supp. 1197 (M.D.Fla.1973) (helicopter crash during a land shuttle); Higginbotham v. Mobil Oil Corp., 357 F.Supp. 1164 (W.D.La.1973) (helicopter crash during performance of activities identical to those performed by crew boats); Hawk v. Antilles Airboats, Inc., 355 F.Supp. 683 (D.C.Virgin Islands 1973) (crash of a seaplane).

6

. “Indeed, it may be considered settled today that this specific federal statute gives the federal admiralty courts jurisdiction of such wrongful-death actions.

* * s H * *

“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.

7

. The Act itself reads:

“Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Terri- tones or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death liad not ensued. Mar 30, 1920, c. Ill, § 1, 41 Stat. 537.” 46 U.S.C. § 761.

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.

Belatedly, a law review article discussing the Act observes:

“In addition, it is not clear whether the DHSA would have application when the[*525] accident occurs on territorial waters of a foreign country. Nevertheless, the scope of general admiralty jurisdiction clearly extends to such cases, and presumably the scope of the DHSA would be the same except in the areas where it is expressly not applicable.” 51 Cal.L.Rev. 389, 397 (1963).

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).

8

. The appellees appear to argue that the Death on the High Seas Act constitutes an independent jurisdictional base. See Appellees’ Brief at 2. However, this is clearly not the case. The DOHSA merely creates a cause of action for wrongful maritime death where none previously existed; the act does not contain any provision waiving sovereign immunity. A suit against the United States brought under the DOHSA still requires the pleading of a separate federal statute authorizing suit against the government. See e. g., Allen v. United States, 338 F.2d 160 (9th Cir. 1964); 51 Cal.L.Rev. 389 (1963).

9

. See e. g., Somerset Seafood Co. v. United States, 193 F.2d 631 (4th Cir. 1951), and the discussion in De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir. 1971).

10

. Prior to the 1960 amendment, section 742 read as originally enacted :

“In cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States or against any corporation . . . as the case may be, provided that such vessel is employed as a merchant vessel or is a tugboat operated by such corporation. ...”
11

. Although somewhat blurred in the pleadings, the appellees attempt to distinguish the events which produced the air crash from the subsequent rescue operations. While the appellees’ claim arising out of the latter activity is more readily classified as “maritime” in nature, it still requires the pleading of an appropriate jurisdictional statute authorizing suit against the government. Since we conclude that the SIA is the only statute proper in this instance, we hold that the appellees’ action based either upon the crash or upon the rescue operations is not maintainable under the FTCA.

12

. Under the Suits in Admiralty Act the two year statute of limitations begins to run from the date of injury rather than the date of denial of an administrative daim. McMahon v. United States, 342 U.S. 25 (1951); Kindrew v. United States, 479 F.2d 49 (5th Cir. 1973).

13

. In similar vein this court has held that the institution of a suit under the FTCA within the statutory period of limitation is a jurisdictional requirement, and that the limitation period is not tolled during minority. Mann v. United States, 399 F.2d 672 (9th Cir. 1968); Brown v. United States, 353 F. 2d 578 (9th Cir. 1965). Indeed, appellees do not contest the point here.