BIGGS, Chief Judge: This appeal raises the novel and interesting question of whether an action for wrongful death arising out of the crash of an aircraft in navigable waters within one marine league from shore lies within the admiralty jurisdiction of the United States.
At approximately five o'clock in the afternoon of October 4, 1960, Eastern Airlines Flight No. 375, a land-based Lockheed Electra aircraft, took off from Logan International Airport in Boston, Massachusetts, on a scheduled flight to Philadelphia, Pennsylvania. Shortly after becoming airborne, the aircraft crashed into the navigable waters of Boston Harbor. The libellants' decedents, passengers on board the aircraft, were killed as a result of the crash.
Libels in personam were filed in the United States District Court for the Eastern District of Pennsylvania, in admiralty, by the personal representatives of seven deceased passengers against Eastern Airlines, Inc., the owner and operator of the aircraft, Lockheed Aircraft Corporation, the manufacturer of the plane, and General Motors Corporation, the manufacturer of the aircraft's power plant.*fn1 The libels alleged that Eastern had been negligent in maintenance, operation and navigation of the aircraft and that Lockheed and General Motors had been negligent in the design, manufacture and inspection of the aircraft and power plant, respectively, and had failed to make necessary alterations and modifications or warn Eastern of the necessity to do so. Additional allegations of breach of warranty were directed against all three respondents.*fn2 Exceptions to the libels were filed by the respondents on the grounds that the claims asserted were not within the jurisdiction of a court sitting in admiralty.
The court below sustained the respondents' exceptions and dismissed the actions in an order dated March 19, 1962, the order appealed from.*fn3 The court held*fn4 that admiralty jurisdiction in cases of tort depends "in the absence of statute, upon a maritime locality plus some maritime connection. . . . Therefore, until Congress establishes such jurisdiction by statute, admiralty jurisdiction does not encompass causes of action arising from crashes of airplanes into the navigable waters of a state. . . ."*fn5 With regard to the contract and warranty claims, the court ruled that "The traditional criterion of admiralty jurisdiction as to contracts is whether the contract is maritime, having reference to maritime service or maritime transactions."*fn6 The contracts in the cases now on appeal, it held," had no maritime aspects at all".*fn7 We find for the reasons set out hereinafter that the court below was in error as to the issue of tort jurisdiction but was correct as to the allegedly maritime contracts herein involved.
The Constitution of the United States, Article III, Section 2, provides that the judicial power of the United States shall extend to "all Cases of admiralty and maritime Jurisdiction". Statutory implementation of this constitutional grant was enacted by Congress in substantially identical terms. See 28 U.S.C.A. § 1333.*fn8
The critical factor in determining whether a tort claim comes within the broad statutory grant of admiralty jurisdiction is the situs of the tort; i.e., the place where it happened. If the tort occurred on navigable waters,*fn9 the claim is one that lies within the jurisdiction of the courts of admiralty; nothing more is required.In the landmark case of The Plymouth, 70 U.S. (3 Wall.) 20, 36 (1865), the Supreme Court stated: "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." This "locality test" has been consistently reiterated by the courts. "In torts . . . jurisdiction depends solely upon the place where the tort was committed, which must have been upon the high seas or other navigable waters.", State Industrial Com'n v. Nordenholt Corp., 259 U.S. 263, 271 (1922). "It is well established that the situs of a tort determines whether or not it is maritime. In order to be maritime it must occur on navigable waters subject to admiralty jurisdiction.", Forgione v. United States, 202 F.2d 249, 252-253 (3 Cir.), certiorari denied, 345 U.S. (1953). "Admiralty jurisdiction extends to every species of tort committed upon the high seas or on navigable waters.", United States v. Matson Navigation Co., 201 F.2d 610, 613 (9 Cir. 1953). "It is clearly established that the jurisdiction of the admiralty over a maritime tort does not depend upon the wrong having been committed on board a vessel, but rather upon its having been committed upon the high seas or other navigable waters.", London Guarantee & Accident Co. v. Industrial Accident Comm'n, 279 U.S. 109, 123-124 (1929). See Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922); Atlantic Transport Co. v. Imbrovek, 234 U.S. 52 (1914); Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1 (1870); Dean v. Chesapeake Bay Ferry District, 158 F.Supp. 408 (E.D. Va. 1958); Thomson v. Bassett, 36 F.Supp. 956 (W.D. Mich. 1940); Fireman's Funds Ins. Co. v. City of Monterey, 6 F.2d 893 (N.D. Calif. 1925).*fn10
The respondents take the position that admiralty jurisdiction over cases of tort depends not only upon the locus of the tort but upon a finding of some maritime connection or nexus with the alleged wrong. In other words, it is their contention that the tort must have a maritime "flavor" and that an airplane crash in navigable waters lacks this necessary element. This argument, that both locality and a maritime connection are jurisdictional prerequisites, is not a new one. "It has . . . 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.", 1 Benedict, Admiralty § 127 at p. 351 (6th ed.).*fn11 The respondents cite Campbell v. H. Hackfield & Co., 125 Fed. 696 (9 Cir. 1903) and McGuire v. City of New York, 192 F.Supp. 866 (S.D.N.Y. 1961) as authority for their position.
In Campbell, the Circuit Court of Appeals for the Ninth Circuit held that a tort claim brought by an employee-longshoreman against his stevedore-employer for personal injuries sustained while loading or unloading the hold of a vessel in navigable waters was not within the jurisdiction of admiralty. The court stated: "In the case of torts, locality remains the test, for the manifest reason that, to give an admiralty court jurisdiction, they must occur in a place where the maritime law prevails. But this is by no means saying that a tort or injury in no way connected with any vessel, or its owners, officers, or crew, although occurring in such a place or territory, is for that reason within the jurisdiction of the admiralty. On the contrary, it is . . . only of maritime contracts, maritime torts, and maritime injuries of which the United States courts are given admiralty jurisdiction." See id., supra, at p. 700.*fn12
In the McGuire case, supra, a tort action was brought in admiralty to recover for personal injuries sustained when the libellant struck a submerged object while swimming at a public beach. The court held that the subject matter of the action was outside the jurisdiction of admiralty. The court stated: "That a tort may have occurred on navigable waters is merely a prima facie test of admiralty jurisdiction. . . . Not every tort committed on admiralty waters may be redressed in the admiralty courts. Only those which have a maritime character, which deal with a maritime subject matter, are properly within admiralty jurisdiction." See id., supra, at p. 870.
McGuire to the contrary notwithstanding,*fn13 the weight of authority is clearly to the effect that locality alone determines whether or not a tort claim is within the admiralty jurisdiction. In Atlantic Transport Co. v. Imbrovek, 234 U.S. 52 (1914), the Supreme Court expressly rejected the contention that the tort must, in addition to meeting the locality test, have some connection with a vessel. "It is contended that a maritime tort is one arising out of an injury to a ship caused by the negligence of a ship or a person or out of an injury to a person by the negligence of a ship; that there must either be an injury to a ship or an injury by the negligence of the ship, including therein the negligence of her owners or mariners; and that, as there was no negligence of the ship in the present case, the tort was not maritime. This view we deem to be altogether too narrow." Id., supra, at p. 61. Moreover, in Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D. Calif. 1954), a case arising under the Federal Death on the High Seas Act, 46 U.S.C.A. § 761, and involving the crash of an aircraft at sea, it was stated that: "Admiralty tort jurisdiction has never depended upon the nature of the tort or how it came about, but upon the locality where it occurred. . . . Locality has remained the sole test of admiralty tort jurisdiction despite recurring expressions of doubt whether the tort must not also bear some relation to the operation of a vessel.", id., supra, at p. 92.
Assuming arguendo that some kind of maritime nexus in addition to locality is required as a prerequisite to admiralty tort jurisdiction, we believe nonetheless that the cases at bar are within the admiralty jurisdiction insofar as the tort claims alleged therein are concerned. At the time the Constitution was framed and for a century and a half thereafter, ships of various kinds were the only means of transportation and commerce on or across navigable waters. Today, aircraft have become a major instrument of travel and commerce over and across these same waters. When an aircraft crashes into navigable waters, the dangers to persons and property are much the same as those arising out of the sinking of a ship or a collision between two vessels. "There can be nothing more maritime than the sea." Pure Oil Co. v. Snipes, 293 F.2d 60, 65 at n. 6 (5 Cir. 1961).
Concepts of admiralty tort jurisdiction should not and cannot remain static and unchanging. In Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 52 (1934), the Supreme Court, by Mr. Chief Justice Hughes, stated: "We have had abundant reason to realize that our experience and new conditions give rise to new conceptions of maritime concerns. These may require that former criteria of jurisdiction be abandoned, as, for example, they were abandoned in discarding the doctrine that the admiralty jurisdiction was limited to tidewaters.", See also McGuire v. City of New York, 192 F.Supp. 866, 871 (S.D.N.Y. 1961).*fn14
An apt analogy to the situation at bar can be drawn, we conclude, from the cases construing the Federal Death on the High Seas Act, 46 U.S.C.A. § 761. The Act provides for a cause of action, in admiralty, for wrongful death occurring beyond one marine league from the shore.*fn15 No reference to aircraft is made in the language of the Act.*fn16 Nonetheless, it has been held clearly that tort claims for wrongful death arising out of the crash of an aircraft on navigable waters beyond one marine league from shore are within the terms of the Act and cognizable in admiralty. See D'Aleman v. Pan American World Airways, 259 F.2d 493 (2 Cir. 1958);*fn17 Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D. Calif. 1954); Lavello v. Danko 175 F.Supp. 92 (S.D.N.Y. 1959); Noel v. Airponents, Inc., 169 F.Supp. 348 (D.N.J. 1958); King v. Pan American World Airways, 166 F.Supp. 136 (N.D. Calif. 1958), aff'd, 270 F.2d 355 (9 Cir. 1959); certiorari denied, 362 U.S. 928 (1960); Fernandez v. Linea Aeropostal Venezoland, 156 F.Supp. 94 (S.D.N.Y. 1957);*fn18 Lacey v. L.W. Wiggins Airways, Inc., 95 F.Supp. 916 (D. Mass. 1951); Choy v. Pan American Airways, 1941 A.M.C. 483 (S.D.N.Y.).
Prior to the Death on the High Seas Act, 46 U.S.C.A. § 761, a tort, occurring beyond one marine league, which resulted in death did not give rise to a wrongful death claim upon which relief could be granted. Nonetheless, the tort may have been one within the jurisdiction of admiralty as delineated in the Constitution and implemented by 28 U.S.C.A. § 1333. There is, of course, a clear and fundamental difference between jurisdiction and lack of it and failure to state a cause of action. See Wade v. Rogala, 270 F.2d 280, 284 (3 Cir. 1959). The Act, as we have said, creates a cause of action which could not exist absent such a statute. It does not purport to create jurisdiction. See Fernandez v. Linea Aeropostal Venezolana, supra.*fn19 In the appeals at bar the jurisdictional authority, 28 U.S.C.A. § 1333, is identical with that in the cases under the Death on the High Seas Act. The requisite statutory cause of action for wrongful death, however, is provided here by a state wrongful death act.*fn20 If, as it has been held, a tort claim arising out of the crash of an airplane beyond the one marine league line is within the jurisdiction of admiralty, then a fortiori a crash of an aircraft ...