author: Mr. Justice Marshall

text:
    ERLENBAUGH et al. v. UNITED STATES
    No. 71-839.
    Argued November 13, 1972
    Decided December 12, 1972
    MARSHALL, J., delivered the opinion of the Court, in which all Members joined except White, J., who took no part in the decision of the case.

      Charles W. Grubb argued the cause and filed a brief for petitioners.

      Allan A. Tuttle argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, and Roger A. Pauley.

   Mr. Justice Marshall

delivered the opinion of the Court.

The petitioners in this case attack their convictions under the Travel Act, 18 U. S. C. § 1952, which makes it unlawful to use a facility of interstate commerce in furtherance of certain criminal activity. Petitioners were tried in five separate trials. The cases were consolidated for purposes of appeal since each raised the question whether causing a publication to be carried by a facility of interstate commerce with an intent to facilitate the operation of a gambling business illegal under state law violated § 1952. The Court of Appeals for the Seventh Circuit affirmed the convictions, finding no exception in § 1952 for the transmittal of publications. 452 F. 2d 967 (1971). We granted certiorari for the limited purpose of resolving the conflict between this decision and a previous ruling of the Court of Appeals for the Fourth Circuit. 405 U. S. 973 (1972). For reasons stated below, we affirm.

In all respects here relevant, the facts of the five cases are identical. Each involves the operation in Hammond, Indiana, of a bookmaking business. A publication known as the Illinois Sports News was important to the functioning of each bookmaking operation. The News, a publication of the type generally referred to as a “scratch sheet,” contains more complete and detailed horse racing information than is found in regular newspapers, and was used extensively by the customers of the five bookmaking operations in placing their bets. Because the News, which appears daily except Sunday, is published in Chicago, Illinois, it was necessary to make arrangements for prompt daily delivery from Chicago to Hammond and the bookmaking establishments. This was accomplished by causing copies of the News to be placed on board an early morning train of the Chicago, South Shore, & South Bend Railroad in Chicago for delivery to the railroad station in Hammond, where copies were picked up for each of the bookmaking operations. In each case the petitioners assumed various roles in this scheme, but the pattern of the scheme for securing the prompt daily delivery of the News was the same in all cases.

Section 1952 (a) subjects to criminal liability anyone who “uses any facility in interstate . . . commerce . . . with intent to . . . promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of [these] acts . . . .” Unlawful activity includes “any business enterprise involving gambling . . . offenses in violation of the laws of the State in which they are committed . . . See 18 U. S. C. § 1952 (b). For our limited purposes it is not open to dispute that in each case petitioners were involved in bookmaking businesses which violated Indiana law; that the Illinois Sports News was important to the operation of those bookmaking businesses; that the scheme for delivery of the News — a scheme which involved the use of a facility of interstate commerce, the railroad — was intended to facilitate the operation of the bookmaking businesses; or that the requisite overt acts occurred following the use of the interstate facility. The only question here is whether these cases fall outside the ambit of § 1952 because the use of the interstate facility was to secure delivery of a news publication.

The basis of petitioners’ challenge to the legality of their convictions under § 1952 — and of the conflict between the courts of appeals — is to be found in 18 U. S. C. § 1953. Section 1953 (a) makes it unlawful for anyone, “except a common carrier in the usual course of its business, knowingly [to] carr'fy] or [to send] in interstate . . . commerce any . . . paraphernalia, . . . paper, writing, or other device used, or to be used . . . in (a) bookmaking; or (b) wagering pools . . . ; or (c) in a numbers, policy, bolita, or similar game . . . .” The broad sweep of subsection (a) in terms of paraphernalia covered is limited to some extent by § 1953 (b) (3) which makes the section inapplicable to “the carriage or transportation in interstate . . . commerce of any newspaper or similar publication.”

Petitioners’ argument starts from the premise that they could not have been prosecuted under § 1953 (a) because the Illinois Sports News falls within the newspaper exception contained in § 1953 (b)(3). Petitioners recognize that § 1952 contains no express exception for newspapers comparable to § 1953 (b)(3), but contend that § 1952 and § 1953 are in pari materia — that is, pertain to the same subject — and, under settled principles of statutory construction, should therefore be construed “as if they were one law,” United States v. Freeman, 3 How. 556, 564 (1845); see, e. g., United States v. Stewart, 311 U. S. 60, 64 (1940); Estate of Sanford v. Commissioner, 308 U. S. 39, 44 (1939). Thus, petitioners would have us read the exception contained in § 1953 (b) (3) as applicable to not only § 1953 (a) but also § 1952 (a), thereby barring their prosecution under the latter as well as the former. This we cannot do.

The rule of in pari materia — like any canon of statutory construction — is a reflection of practical experience in the interpretation of statutes: a legislative body generally uses a particular word with a consistent meaning in a given context. Thus, for example, a “later act can ... be regarded as a legislative interpretation of [an] earlier act . . . in the sense that it aids in ascertaining the meaning of the words as used in their contemporary setting,” and “is therefore entitled to great weight in resolving any ambiguities and doubts.” United States v. Stewart, supra, at 64-65. See also, e. g., Hunter v. Erickson, 393 U. S. 385, 388 (1969); United States v.Freeman, supra, at 565. The rule is but a logical extension of the principle that individual sections of a single statute should be construed together, for it necessarily assumes that whenever Congress passes a new statute, it acts aware of all previous statutes on the same subject, cf. Allen v. Grand Central Aircraft Co., 347 U. S. 535, 541-552 (1954). Given this underlying assumption, the rule’s application certainly makes the most sense when the statutes were enacted by the same legislative body at the same time. Such was indeed the case here. Yet petitioners would have us resort to the exception contained in § 1953 (b) (3) not simply to resolve any “ambiguities [or] doubts” in .the language in § 1952 but to introduce an exception to the coverage of the latter where none is now apparent. This might be a sensible construction of the two statutes if they were intended to serve the same function, but plainly they were not.

True, § 1952 and § 1953 were both parts of a comprehensive federal legislative effort to assist local authorities in dealing with organized criminal activity which, in many instances, had assumed interstate proportions and which in all cases was materially assisted in its operations by the availability of facilities of interstate commerce. The two statutes, however, play different roles in achieving these broad, common goals.

Section 1953 has a narrow, specific function. It erects a substantial barrier to the distribution of certain materials used in the conduct of various forms of illegal gambling. By interdicting the flow of these materials to and between illegal gambling businesses, the statute purposefully seeks to impede the operation of such businesses.

Section 1952, by contrast, does not apply just to illegal gambling; rather, it is concerned with a broad spectrum of "unlawful activity,” illegal gambling businesses being only one element. Moreover, the statute does not focus upon any particular materials, but upon the use of the facilities of interstate commerce with the intent of furthering an unlawful “business enterprise.” It is, in short, an effort to deny individuals who act for such a criminal purpose access to the channels of commerce. Thus, while § 1952 ultimately seeks, like § 1953, to inhibit organized criminal activity, it takes a very different approach to doing so. To introduce into § 1952 an exception based upon the nature of the material transported in interstate commerce would carve a substantial slice from the intended coverage of the statute. This we will not do without an affirmative indication— which is lacking here- — that Congress so intended.

Our conclusion here is bolstered by the fact that the reason for the newspaper exception to § 1953 is absent in the context of § 1952. The original version of § 1953 introduced in the Senate contained none of the exceptions set forth in subsection (b). It was quickly realized that the bill, as introduced, bore the potential for unreasonably broad application, since it would have imposed absolute criminal liability on anyone, except a common carrier, who “knowingly carries or sends in interstate . . . commerce” any gambling paraphernalia used in an illegal gambling business. Were “knowingly” construed as modifying only the phrase “carries or sends,” the statute might have been applied to a wholly innocent person who knowingly carried a newspaper in interstate commerce unaware that it contained racing information. It was to avoid this problem that the newspaper exception was added to § 1953. But § 1952 obviously poses no threat to innocent citizens. Its application is limited to those who act with an intent to further unlawful activity — as was clearly true of these petitioners. There is, then, no reason for carrying the newspaper exception of § 1953 (b) (3) over to § 1952.

The judgment is

Affirmed.

MR. Justice White took no part in the decision of this case.

       Petitioners Erlenbaugh, Mitchell, and Hintz were tried together. Petitioner Erlenbaugh was convicted of conspiracy to violate § 1952. Petitioners Mitchell and Hintz were each convicted of two counts of violating § 1952 and of conspiracy to violate the section.
      Petitioners White and Lloyd were tried together with petitioner Hintz in a second trial. Each was convicted of conspiracy to violate § 1952, and petitioner White was convicted of three counts, petitioner Hintz of two counts, and petitioner Lloyd of one count of violating § 1952.
      Petitioner Kelly was tried alone and convicted of one count of violating § 1952 and of conspiracy to violate the section.
      Petitioners Kulik and Dobrowski were tried together and convicted of conspiracy to violate § 1952 and of three counts and two counts, respectively, of violating the section.
      Petitioners Misiolek, Tumlin, and Strosky were tried together, and convicted of conspiracy to violate § 1952. Petitioner Misiolek was also convicted of three counts of violating § 1952, while petitioners Tumlin and Strosky were convicted of four counts of violating the section.

       In United States v. Arnold, 380 F. 2d 366, 368 (1967), the Fourth Circuit reversed a conviction under § 1952 because, in its view, “the use of the telephone to order . . . transmittal through the mail [of a sports publication intended to be used to facilitate the operation of a football betting pool] is not the use of a 'facility ... to .. . promote . . . any unlawful activity’, as contemplated by ... § 1952.” The Seventh Circuit in this case specifically declined to follow the decision in Arnold. See 452 F. 2d, at 973.

       A “scratch” is a horse that has been withdrawn from a race in which it was entered. The withdrawal of a good horse obviously affects the odds in a race, and is therefore of great interest to bettors.

       The Court of Appeals described each operation and the respective roles of the petitioners in detail, see 452 F. 2d, at 969-970.

       See n. 19, infra.

       See Ind. Ann. Stat. §§ 10-2304, 10-2307, 10-2331 (1956).

       The question presented in this case is solely one of statutory construction. There is no issue here as to the constitutionality of § 1952.

       Subsection (b) also makes the section inapplicable to:
      “(1) parimutuel betting equipment, parimutuel tickets where legally acquired, or parimutuel materials used or designed for use at racetracks or other sporting events in connection with which betting is legal under applicable State law, or (2) the transportation of betting materials to be used in the placing of bets or wagers on a sporting event into a State in which such betting is legal under the statutes of that State . . . .”

       Whether publications such as the “scratch sheet” here at issue are in fact within the “newspaper or similar publication” exception contained in § 1953 (b) (3) is a question that has arisen on a number of occasions in the lower courts. See United States v. Kelly, 328 F. 2d 227, 229-236 (CA6 1964); United States v. Arnold, 380 F. 2d 366, 368 (CA4 1967); United States v. Kish, 303 F. Supp. 1212 (ND Ind. 1969); United States v. Azar, 243 F. Supp. 345, 346-347 (ED Mich. 1964). The Government here concedes that the Illinois Sports News is within § 1953 (b)(3). See Brief for United States 9 n. 3.

       See, e. g., Clark v. Uebersee Finanz-Korporation, A. G., 332 U. S. 480, 488 (1947); Markham v. Cabell, 326 U. S. 404, 410-411 (1945); Ex parte Public National Bank, 278 U. S. 101, 104 (1928).

       Section 1952 was added to Title 18 of the United States Code by the Act of Sept. 13, 1961, Pub. L. 87-228, § 1 (a), 75 Stat. 498, amended, Act of July 7, 1965, Pub. L. 89-68, 79 Stat. 212; Act of Oct. 27, 1970, Tit. II, § 701 (i) (2), 84 Stat. 1282. Section 1953 was added to Title 18 of the United States Code by the Act of Sept. 13, 1961, Pub. L. 87-218, 75 Stat. 492. Indeed, both statutes were a part of Attorney General Kennedy’s legislative program to combat organized crime and racketeering, and were considered simultaneously by committees of the House and Senate. See Hearings on S. 1653, S. 1654, S. 1655, S. 1656, S. 1657, S. 1658, S. 1665 before the Senate Committee on the Judiciary, 87th Cong., 1st Sess. (1961) (hereinafter Senate Hearings); Hearings on H. R. 468, H. R. 1246, H. R. 3021, H. R. 3022, H. R. 3023, H. R. 3246, H. R. 5230, H. R. 6571, H. R. 6572, H. R. 6909, H. R. 7039 before Subcommittee No. 5 of the House Committee on the Judiciary, 87th Cong., 1st Sess. (1961) (hereinafter House Hearings).

       Cf. Farmers Reservoir & Irrigation Co. v. McComb, 337 U. S. 755, 764 (1949); Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 87-88 (1934); Atlantic Cleaners & Dyers v. United States, 286 U. S. 427, 433 (1932).

       See n. 11, supra.

       Attorney General Kennedy, who recommended the legislation to Congress, testified before the Senate and House Committees that “the extent to which organized crime and racketeering have developed on an interstate basis convincingly [demonstrates] the need for new Federal laws.” Senate Hearings 10-11; see House Hearings 19-20. See also H. R. Rep. No. 966, 87th Cong., 1st Sess., 2-3 (1961) (§ 1952).

       Attorney General Kennedy observed before the Senate Committee that racketeers “use interstate commerce and interstate communications with impunity in the conduct of their unlawful activities. If we could curtail their use of interstate communications and facilities, we could inflict a telling blow to their operations. We could cut them down to size.” Senate Hearings 11. Previously, before the House Subcommittee, the Attorney General had described the legislative package as “designed to prohibit the use of interstate facilities for the conduct of the many unlawful enterprises which make up organized crime today.” House Hearings 20. See also H. R. Rep. No. 966, 87th Cong., 1st Sess., 3 (1961) (§ 1952); H. R. Rep. No. 968, 87th Cong., 1st Sess., 2 (1961) (§ 1953).

       Only common carriers acting in the usual course of their business, plus those materials specified in § 1953 (b), see n. 8, supra, are excluded from the statute’s prohibition.

       See also 18 U. S. C. § 1084.

       Representative Celler, who introduced the statute in the House, described its purposes as follows:
      “The primary purpose is to prevent the transportation in interstate commerce of wagering material. The purpose actually is to cutoff and shutoff gambling supplies, in reality to prevent these lotteries and kindred illegal diversions.” 107 Cong. Rec. 16537.
      See also S. Rep. No. 589, 87th Cong., 1st Sess., 2 (1961); H. R. Rep. No. 968, 87th Cong., 1st Sess., 2 (1961).

       “As used in this section ‘unlawful activity’ means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or controlled substances . . . or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.”

       “This bill will assist local law enforcement by denying interstate facilities to individuals engaged in illegal gambling, liquor, narcotics or prostitution business enterprises.” H. R. Rep. No. 966, 87th Cong., 1st Sess., 3 (1961). See also 107 Cong. Rec. 13943 (remarks of Sen. Eastland).

       In Rewis v. United States, 401 U. S. 808, 811 (1971), we observed that “§ 1962 was aimed primarily at organized crime and, more specifically, at persons who reside in one State while operating or managing illegal activities located in another.” We, of course, adhere to this view of the statute for “Congress would certainly recognize that an expansive Travel Act would alter sensitive federal-state relationships, could overextend limited federal police resources, and might well produce situations in which . . . relatively minor state offenses [would be transformed] into federal felonies.” Id., at 812. See also United States v. Bass, 404 U. S. 336, 349-350 (1971). Petitioners contend that there was no proof in these cases that they were involved in organized criminal activity and that such activity was being directed from another State. Given the limited nature of our grant of certiorari, it is not open to question here that the five illegal bookmaking businesses were elements of organized criminal activity of the type contemplated by § 1952 — though we do note that the reach of the statute clearly was not limited to instances in which organized criminal activity in one State is managed from another State, see n. 15, supra.

       But cf. United States v. Chase, 372 F. 2d 453, 460 (CA4), cert. denied, 387 U. S. 907 (1967) (“[KJnowledge and intent to transmit gambling paraphernalia in interstate commerce are elements of the crime created by” § 1953).

       “The committee . . . felt that the bill, as introduced, might be so interpreted as to bring within its criminal penalties a person who carried a newspaper or other publication containing racing results or predictions.” S. Rep. No. 589, 87th Cong., 1st Sess., 2 (1961).

       See ibid.; H. R. Rep. No. 968, 87th Cong., 1st Sess., 3 (1961).


source: Caselaw Access Project

author: MR. Justice Stewart

license: Public Domain

text:
    EXECUTIVE JET AVIATION, INC., et al. v. CITY OF CLEVELAND et al.
    No. 71-678.
    Argued November 15, 1972
    Decided December 18, 1972
    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.
   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 28 U. S. C. § 1333 (l), the petitioners brought this suit for damages in the District Court for the Northern District of Ohio against Dicken and the other respondents, 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. 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 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:

“Assuming . . . that air commerce bears some relationship to maritime commerce when the former is carried out over navigable waters, the relevant circumstances here were unconnected with the maritime facets of air commerce. The claimed ‘wrong’ in this case was the alleged failure to keep the runway free of birds and the failure to adequately warn the pilots of their presence upon the end of the runway. When the alleged negligence occurred, and when it became operative upon the aircraft, all the parties were engaged in functions common to all air commerce, whether over land or over sea.
“. . . Thus, the conclusion here must be that the operative facts of the claim in this case are concerned with the land-connected aspects of air commerce, namely, the maintenance and operation of an airport located on the land and the dangers encountered by an aircraft when using its runways for take-off.”

The Court of Appeals for the Sixth Circuit affirmed on the ground that “the alleged tort in this case occurred on land before the aircraft reached Lake Erie . . . .” 448 F. 2d 151, 154 (1971). Hence, that court found it “not necessary to consider the question of maritime relationship or nexus discussed by this court in [Chapman].” Ibid. We granted certiorari to consider a seemingly important question affecting the jurisdiction of the federal courts. 405 U. S. 915 (1972).

I

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 regard to torts I have always understood, that the jurisdiction of the admiralty is exclusively dependent upon the locality of the act. The admiralty has not, and never (I believe) deliberately claimed to have any jurisdiction over torts, except such as are maritime torts, that is, such as are committed on the high seas, or on waters within the ebb and flow of the tide.” Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13,902) (CC Me.).

See also De Lovio v. Boit, 7 F. Cas. 418, 444 (No. 3,776) (CC Mass. 1815); Philadelphia, W. & B. R. Co. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. 209, 215 (1860). Later, this locality test was expanded to include not only tidewaters, but all navigable waters, including lakes and rivers. The Genesee Chief v. Fitzhugh, 12 How. 443 (1852).

In The Plymouth, 3 Wall. 20, 35, 36 (1866), the Court essayed a definition of when a tort is “located” on navigable waters:

“[T]he wrong and injury complained of must have been committed wholly upon the high seas or navigable waters, or, at least, the substance and consummation of the same must have taken place upon these waters to be within the admiralty jurisdiction. . . .
“. . . The jurisdiction of the admiralty over maritime torts does not depend upon the wrong having been committed on board the vessel, but upon its having been committed upon the high seas or other navigable waters.
“. . . 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 Court has often reiterated this rule of locality. As recently as last Term, in Victory Carriers, Inc. v. Law, 404 U. S. 202, 205, we repeated that “[t]he historic view of this Court has been that the maritime tort jurisdiction of the federal courts is determined by the locality of the accident and that maritime law governs only those torts occurring on the navigable waters of the United States.”

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:

“It should be stressed that the important cases in admiralty are not the borderline cases on jurisdiction; these may exercise a perverse fascination in the occasion they afford for elaborate casuistry, but the main business of the [admiralty] court involves claims for cargo damage, collision, seamen’s injuries and the like — all well and comfortably within the circle, and far from the penumbra.” G. Gilmore & C. Black, The Law of Admiralty 24 n. 88 (1957).

But it is the perverse and casuistic borderline situations that have demonstrated some of the problems with the locality test of maritime tort jurisdiction. In Smith & Son v. Taylor, 276 U. S. 179 (1928), for instance, a longshoreman unloading a vessel was standing on the pier when he was struck by a cargo-laden sling from the ship and knocked into the water where he was later found dead. This Court held that there was no admiralty jurisdiction in that case, despite the fact that the longshoreman was knocked into the water, because the blow by the sling was what gave rise to the cause of action, and it took effect on the land. Hence, the Court concluded, “[t]he substance and consummation of the occurrence which gave rise to the cause of action took place on land.” 276 U. S., at 182. In the converse factual setting, however, where a longshoreman working on the deck of a vessel was struck by a hoist and knocked onto the pier, the Court upheld admiralty jurisdiction because the cause of action arose on the vessel. Minnie v. Port Huron Terminal Co., 295 U. S. 647 (1935). See also The Admiral Peoples, 295 U. S. 649 (1935).

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 forms of maritime commerce and navigation. 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

“[ajbsent such a relationship, admiralty jurisdiction would depend entirely upon the fact that a tort occurred on navigable waters; a fact which in and of itself, in light of the historical justification for federal admiralty jurisdiction, is quite immaterial to any meaningful invocation of the jurisdiction of admiralty courts.” 385 F. 2d, at 966.

As early as 1850, admiralty scholars began to suggest that a traditional maritime activity, as well as a maritime locality, is necessary to invoke admiralty jurisdiction over torts. In that year, Judge Benedict expressed his “celebrated doubt” as to whether such jurisdiction did not depend, in addition to a maritime locality, upon some “relation of the parties to a ship or vessel, embracing only those tortious violation [s] of maritime right and duty which occur in vessels to which the Admiralty jurisdiction, in cases of contracts, applies.” E. Benedict, The American Admiralty 173 (1850). More recently, commentators have actively criticized the rule of locality as the sole criterion for admiralty jurisdiction, and have recommended adoption of a maritime relationship requirement as well. See 7A J. Moore, Federal Practice, Admiralty ¶¶ .325'[3] and .325 [5] (2d ed. 1972); Black, Admiralty Jurisdiction: Critique and Suggestions, 50 Col. L. Rev. 259, 264 (1950). In 1969, the American Law Institute’s Study of the Division of Jurisdiction Between State and Federal Courts (ALI Study) also made that recommendation, stating (at 233) :

“It is hard to think of any reason why access to federal court should be allowed without regard to amount in controversy or citizenship of the parties merely because of the fortuity that a tort occurred on navigable waters, rather than on other waters or on land. The federal courts should not be burdened with every case of an injured swimmer.”

Despite the broad language of cases like The Plymouth, 3 Wall. 20 (1866), the fact is that this Court has never explicitly held that a maritime locality is the sole test of admiralty tort jurisdiction. The last time the Court considered the matter, the question was left open. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52 (1914). In that case, a stevedore brought suit for injuries sustained on board a vessel while loading and stowing copper. The petitioner admitted the maritime locality of the tort, but contended that no maritime relationship was present. The Court sustained federal admiralty jurisdiction, but found that it was not necessary to decide whether locality alone is sufficient:

“Even if it be assumed that the requirement as to locality in tort cases, while indispensable, is not necessarily exclusive, still in the present case the wrong which was the subject of the suit was, we think, of a maritime nature and hence the District Court, from any point of view, had jurisdiction. . . .
“. . . If more is required than the locality of the wrong in order to give the court jurisdiction, the relation of the wrong to maritime service, to navigation and to commerce on navigable waters, was quite sufficient.” Id., at 61, 62.

Since the time of that decision the Court has not squarely dealt with the question left open there, although opinions in several cases have discussed the maritime or non-maritime nature of the tort and its relationship to maritime navigation. In Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352 (1969), for instance, we held that admiralty had no jurisdiction of wrongful-death actions under the Death on the High Seas Act, 41 Stat. 537, 46 U. S. C. § 761 et seq., arising out of accidents on artificial island drilling rigs in the Gulf of Mexico more than a marine league offshore. We relied in that case on the fact that the accidents bore no relation to any navigational function:

“The accidents in question here involved no collision with a vessel, and the structures were not navigational aids. They were islands, albeit artificial ones, and the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers.” Id., at 360.

See also The Raithmoor, 241 U. S. 166, 176-177 (1916); Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 382 (1918); Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 481 (1923); Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449, 457 (1925); London Guarantee & Accident Co. v. Industrial Accident Comm’n, 279 U. S. 109, 123 (1929).

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:

“[T]he maritime law, as recognized in the federal courts, has not in general allowed recovery for personal injuries occurring on land. But there is an important exception to this generalization in the case of maintenance and cure. From its dawn, the maritime law has recognized the seaman’s right to maintenance and cure for injuries suffered in the course of his service to his vessel, whether occurring on sea or on land.” Id., at 41-42.

Similarly, the doctrine of unseaworthiness has been extended to permit a seaman or a longshoreman to recover from a shipowner for injuries sustained wholly on land, so long as those injuries were caused by defects in the ship or its gear. Gutierrez v. Waterman S. S. Corp., 373 U. S. 206, 214-215 (1963). See also Strika v. Netherlands Ministry of Traffic, 185 F. 2d 555 (CA2 1950).

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 :

“The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.”

This Act was passed specifically to overrule cases, such as The Plymouth, supra, holding that admiralty does not provide a remedy for damage done to land structures by ships on navigable waters. Victory Carriers, Inc. v. Law, 404 U. S., at 209 n. 8; Gutierrez v. Waterman S. S. Corp., 373 U. S., at 209-210.

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.

II

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. Continuing doubt as to the applicability of admiralty law to aircraft was illustrated by cases in the 19;30’s and 1940's holding that aircraft owners could not invoke the benefits of the maritime doctrine of limitation of liability, and that crimes committed on board aircraft flying over international waters were not punishable under criminal statutes proscribing acts committed on the high seas. Moreover, Congress exempted all aircraft from conformity with United States navigation and shipping laws.

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 seg. 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:

“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 Territories 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 . . .

The first aviation case brought pursuant to the Death on the High Seas Act was apparently Choy v. Pan-American Airways Co., 1941 A. M. C. 483 (SDNY), where death was caused by the crash of a seaplane into the Pacific Ocean during a transoceanic flight. The District Court upheld admiralty jurisdiction on the ground that the language of the Act was broad and made no reference to surface vessels. According to the court:

“The statute certainly includes the phrase 'on the high seas’ but there is no reason why this should make the law operable only on a horizontal plane. The very next phrase 'beyond a marine league from the shore of any State’ may be said to include a vertical sense and another dimension.” Id., at 484.

Since Choy, many actions for wrongful death arising out of aircraft crashes into the high seas beyond one marine league from shore have been brought under the Death on the High Seas Act, and federal jurisdiction has consistently been sustained in those cases. Indeed, it may be considered as settled today that this specific federal statute gives the federal admiralty courts jurisdiction of such wrongful-death actions.

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. 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.

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, 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:

“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 just short of that line but still within the navigable waters is within that jurisdiction as well.” Id., at 765.

There have been a few subsequent cases to like effect. To the contrary, of course, is the decision of the Court of Appeals for the Sixth Circuit in the present case.

Ill

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 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:

“If a plane takes off from Boston's Logan Airport bound for Philadelphia, and crashes on takeoff, it makes little sense that the next of kin of the passengers killed should be left to their usual remedies, ordinarily in state court, if the plane crashes oru land, but that they have access to a federal court, and the distinctive substantive law of admiralty applies, if the wrecked plane ends up in the waters of Boston Harbor.” ALI Study 231.

Moreover, not only is the locality test in such cases wholly adventitious, but it is sometimes almost impossible to apply with any degree of certainty. Under the locality test, the tort “occurs” where the alleged negligence took effect, The Plymouth, supra; Smith & Son v. Taylor, 276 U. S. 179 (1928); and in the case of aircraft that locus is often most difficult to determine.

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 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, 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.

IV

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 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:

“I believe that there are many comparisons between the problems of aircraft over navigable waters and those of the ships which the aircraft are rapidly replacing. . . .
“. . . Problems posed for aircraft landing on, crashing on, or sinking into navigable waters differ markedly from landings upon land. ... In such instances, wind and wave and water, the normal problems of the mariner, become the approach or survival problems of the pilot and his passengers. . . . What I would hold is that tort cases arising out of aircraft crashes into navigable waters are cognizable in admiralty jurisdiction even if the negligent conduct is alleged to have happened wholly on land.” 448 F. 2d, at 163.

We cannot accept that definition of traditional maritime activity. It is true that in a literal sense there may be some similarities between the problems posed for a plane downed on water and those faced by a sinking ship. But the differences between the two modes of transportation are far greater, in terms of their basic qualities and traditions, and consequently in terms of the conceptual expertise of the law to be applied. The law of admiralty has evolved over many centuries, designed and molded to handle problems of vessels relegated to ply the waterways of the world, beyond whose shores they cannot go. That law deals with navigational rules — rules that govern the manner and direction those vessels may rightly move upon the waters. When a collision occurs or a ship founders at sea, the law of admiralty looks to those rules to determine fault, liability, and all other questions that may arise from such a catastrophe. Through long experience, the law of the sea knows how to determine whether a particular ship is seaworthy, and it knows the nature of maintenance and cure. It is concerned with maritime liens, the general average, captures and prizes, limitation of liability, cargo damage, and claims for salvage.

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. 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 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. 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. 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. Moreover, other factors might come into play in the area of international air commerce — choice-of-forum problems, choice-of-law problems, 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:

“ 'The power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution. . . . Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which [a federal] statute has defined.’ ”

In the situation before us, which is only fortuitously and incidentally connected to navigable waters and which bears no relationship to traditional maritime activity, the Ohio courts could plainly exercise jurisdiction over the suit, and could plainly apply familiar concepts of Ohio tort law without any effect on maritime endeavors.

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 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.

The judgment is affirmed.

       That section provides:
      “The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
      “(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”

       Besides Dicken, the respondents are the City of Cleveland, as owner and operator of the airport, and Phillip A. Schwenz, the airport manager.

       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.

       In Victory Carriers, Inc. v. Law, 404 U. S. 202, 205 n. 2 (1971), we cited over 40 cases to this effect.

         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).

       In another injured-swimmer case, McGuire v. City of New York, 192 F. Supp. 866, 871-872 (SDNY 1961), the court stated:
      “The proper scope of jurisdiction should include all matters relating to the business of the sea and the business conducted on navigable waters.
      “The libel in this case does not relate to any tort which grows out of navigation. It alleges an ordinary tort, no different in substance because the injury occurred in shallow waters along the shore than if the injury had occurred on the sandy beach above the water line. Whether the City of New York should be held liable for the injury suffered by libellant is a question which can easily be determined in the courts of the locality. To endeavor to project such an action into the federal courts on the ground of admiralty jurisdiction is to misinterpret the nature of admiralty jurisdiction.”
      Other cases holding that admiralty jurisdiction was not properly invoked because the tort, while having a maritime locality, lacked a significant relationship to maritime navigation and commerce, include: Peytavin v. Government Employees Insurance Co., 453 F. 2d 1121 (CA5 1972); Gowdy v. United States, 412 F. 2d 525, 527-529 (CA6 1969); Smith v. Guerrant, 290 F. Supp. 111, 113-114 (SD Tex. 1968). See also J. W. Petersen Coal & Oil Co. v. United States, 323 F. Supp. 1198, 1201 (ND Ill. 1970); O’Connor & Co. v. City of Pascagoula, 304 F. Supp. 681, 683 (SD Miss. 1969); Hastings v. Mann, 226 F. Supp. 962, 964-965 (EDNC 1964), aff’d, 340 F. 2d 910 (CA4 1965). A similar view is taken by the English courts. Queen v. Judge of the City of London Court, [1892] 1 Q. B. 273.

       Hough, Admiralty Jurisdiction — Of Late Years, 37 Harv. L. Rev. 529, 531 (1924).

       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 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.

        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).

         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).

        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).

       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.).

       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).

        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).

       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.

        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).

       See also Comment, Admiralty Jurisdiction: Airplanes and Wrongful Death in Territorial Waters, 64 Col. L. Rev. 1084, 1091— 1092 (1964).

       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.

       See supra, at 261-262.

       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.

       But see 7A J. Moore, Federal Practice, Admiralty ¶ .330 [5], p. 3772 (2d ed. 1972):
      “What possible rational basis is there, for instance, in holding that the personal representative of a passenger killed in the crash of an airplane traveling from Shannon, Ireland to Logan Field in Boston has a cause of action within the admiralty jurisdiction if the plane goes down three miles from shore; may have a cause of action within the admiralty jurisdiction if the plane goes down within an area circumscribed by the shore and the three-mile limit; and will not have a cause of action within the admiralty jurisdiction if the plane managed to remain airborne until reaching the Massachusetts coast? And this notwithstanding that in all instances the plane may have developed engine trouble or been the victim of pilot error at an identical site far out over the Atlantic.”

       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 traditonally performed by waterborne vessels, is shown in Hornsby v. Fish Med Co., 431 F. 2d 865 (CA5 1970), which involved the mid-air collision of two light aircraft 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.

       In such a situation, it has been stated:
      “Were the maritime law not applicable, it is argued that the recovery would depend upon a confusing consideration of what substantive law to apply, i. e., the law of the forum, the law of the place where each decedent [or injured party] purchased his ticket, the law of the place where the plane took off, or, perhaps, the law of the point of destination.” 7A J. Moore, Federal Practice, Admiralty ¶.330 [5], p. 3774 (2d ed. 1972).

       There is no diversity of citizenship between petitioners and the City of Cleveland.

       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 trafile 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.

       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.”


text:
    HEUBLEIN, INC. v. SOUTH CAROLINA TAX COMMISSION
    No. 71-879.
    Argued November 13, 1972
    Decided December 18, 1972
    MaRshall, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, Brennan, White, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed a statement concurring in the result, post, p. 284. Stewart, J., took no part in the consideration or decision of the case.

      Stephen M. Piga argued the cause for appellant. With him on the briefs was W. Croft Jennings, Jr.

      G. Lewis Argoe, Jr., Assistant Attorney General of South Carolina, argued the cause for appellee. With him on the brief were Daniel B. McLeod, Attorney General, and Joe L. Allen, Jr., and John C. Von Lehe, Assistant Attorneys General.

      Mr. Piga filed a brief for the Distilled Spirits Institute as amicus curiae urging reversal.
    Briefs of amici curiae urging affirmance were filed by Solicitor General Griswold, Assistant Attorney General Crampton, and Ernest J. Brown for the United States, and by William D. Dexter, Assistant Attorney General of Washington, and Eugene F. Corrigan for the Multi-state Tax Commission.
   Mr. Justice Marshall

delivered the opinion of the Court.

In this case we must determine whether South Carolina may tax the income from local sales of Heublein’s products, consistent with the limitations on the State’s power to tax imposed by 15 U. S. C. § 381 (a). The South Carolina Tax Commission assessed Heublein, Inc., a Connecticut corporation that produces alcoholic beverages, a total of $21,549.50 in taxes on income derived from the sale of its goods in South Carolina. After a hearing before the Tax Commission, Heublein paid the taxes and brought suit to recover them. The Court of Common Pleas held that § 381 (a) protected Heublein from tax liability in South Carolina. The Supreme Court of South Carolina reversed. 257 S. C. 17, 183 S. E. 2d 710. We noted probable jurisdiction, 405 U. S. 952 (1972), and now affirm. We hold that Heublein’s activities within South Carolina exceed the minimum standards established in 15 U. S. C. § 381 (a), and that South Carolina may, pursuant to an otherwise valid regulatory scheme, compel Heublein to undertake activities that take it beyond the protection of 15' U. S. C. §381 (a).

I

During the years in question, Heublein had one employee in South Carolina. He maintained an office in his home and a desk at the warehouse of Ben Arnold Co., the local distributor of Heublein’s products. Heublein’s representative briefed Ben Arnold’s salesmen on Heublein’s products, and traveled throughout the State to liquor retailers, telling them of the products and leaving promotional literature with them. Ordinarily, the retailers sent orders directly to Ben Arnold, but occasionally Heublein’s representative transmitted them. Ben Arnold, in turn, placed its orders with Heublein’s home office in Connecticut. Heublein then acknowledged its acceptance of the orders and indicated to Ben Arnold when the goods would be shipped. They were sent by common carrier consigned to Heublein in care of its representative at the premises of Ben Arnold.

This arrangement, which served none of Heublein’s business interests, was adopted to conform to the requirements of the South Carolina Alcoholic Beverage Control Act. S. C. Code Ann. §4^1 et seq. (1962 and Supp. 1971). Under that Act, only registered producers of registered brands of alcoholic beverages may ship those brands of alcoholic beverages into the State. §§ 4U134, 4-135. Such producers must have a resident representative who has no direct or indirect interest in a local liquor business. §§ 4-131 (3), 4-139. Shipments of liquor into the State may be made only to the producer in care of its representative. § 4-141. Prior to the shipment, the producer must mail a copy of the invoice showing the quantity and price of the items shipped, and a copy of the bill of lading, to the Alcoholic Beverage Control Commission. Immediately after accepting delivery, the representative must furnish the Commission a copy of the invoice showing the time and place of delivery. Ibid. When received, the shipment must be stored in a licensed warehouse of the producer, or, after delivery is complete, the shipment may be transferred to a licensed wholesaler. §§4-140, A-141. Before the goods are shipped to a wholesaler, however, the representative must obtain the Commission’s permission to make the transfer. § 4-141. Heublein complied with this regulatory scheme.

II

Title 15 U. S. C. § 381 (a)(1), on which Heublein relies, provides that no State shall have power to impose a net income tax on income derived within the State from interstate commerce if the recipient of the income confined its business within the State to “the solicitation of orders ... in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State.”

We need not decide whether, as the State urges, the actions of Heublein’s representative in maintaining a local office, meeting with retailers, distributing promotional literature, and personally delivering some orders to the wholesaler, do not fall within the term “solicitation.” Compare Smith Kline & French v. Tax Comm’n, 241 Ore. 50, 403 P. 2d 375 (1965), with Clairol, Inc. v. Kingsley, 109 N. J. Super. 22, 262 A. 2d 213, aff’d, 57 N. J. 199, 270 A. 2d 702 (1970), appeal dismissed, 402 U. S. 902 (1971). For here Heublein has done more than just those acts. It sent its products to its local representative who transferred them to a local wholesaler. This transfer occurred within the State and clearly was neither “solicitation” nor the filling of orders “by shipment or delivery from a point outside the State” within the meaning of § 381 (a)(1).

Heublein contends, however, that the transfer never would have occurred had not South Carolina required it as a condition of conducting business within the State. Heublein argues that a State may not evade the purpose of § 381 (a) by requiring a firm to do more than solicit business within the State and then taxing the firm for engaging in this compelled additional activity.

If we were persuaded that South Carolina has evaded the intent of the statute we would, of course, be reluctant to uphold its actions. But that is not what South Carolina has done here. The legislative history of § 381 shows that Congress had rather limited purposes which are not evaded by South Carolina’s regulation of liquor sales in the manner it has chosen. Congress did not focus on the consequences of its actions for such local regulatory schemes. We therefore will not read the statute as prohibiting the States from adopting such schemes, even when the regulation requires the producer to have more than the minimum contacts with the State for which § 381 provides tax immunity. Such a reading would require us to assume that Congress carefully considered the difficult problems of accommodating the federal interest in an open national economy with local interest in regulating the sale of liquor. The evidence is clear that Congress did not do so.

The impetus behind the enactment of § 381 was this Court’s opinion in Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450 (1950). There we held that “net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same.” 358 U. S., at 452. Congress promptly responded to the “considerable concern and uncertainty” and the “serious apprehension in the commercial community” generated by this decision by enacting Pub. L. 86-272, 73 Stat. 555, 15 TJ. S. C. § 381, within seven months.

In this statute, Congress attempted to allay the apprehension of businessmen that “mere solicitation” would subject them to state taxation. Such apprehension arose because, as businessmen who sought relief from Congress viewed the situation, Northwestern States Portland Cement did not adequately specify what local activities were enough to create a “sufficient nexus” for the exercise of the State’s power to tax. Section 381 was designed to define clearly a lower limit for the exercise of that power. Clarity that would remove uncertainty was Congress’ primary goal. By establishing such a limit, Congress did, of course, implicitly determine that the State’s interest in taxing business activities below that limit was weaker than the national interest in promoting an open economy. But it did not address the questions raised by a requirement, incident to a valid regulatory scheme, that a business undertake activities above the limit as a condition of doing business within the State.

Congress recognized, instead, that the accommodation of local and national interests in this area was a delicate matter. The committees reporting the bill to the House and Senate emphasized the difficulty of devising appropriate limitations on state taxing powers. Both Committees called their bills temporary solutions to meet only the most pressing problems created by Northwestern States Portland Cement. More comprehensive legislation could only follow careful study, in the Committees’ view. Congress agreed, and in Title II of Pub. L. 86-272, provided that the Committee on the Judiciary of the House of Representatives and the Committee on Finance of the Senate study the entire problem of state taxation of interstate commerce.

Congress, then, did not address in § 381 the problem of taxing a'business when it undertook local activities simply in order to comply with the requirements of a valid regulatory scheme. Such regulation is an important function of local governments in our federal scheme. As we said last Term, “unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the Federal-State balance.” United States v. Bass, 404 U. S. 336, 349 (1971).

Congress of course did not enact in § 381 a statute which a State can deliberately evade by requiring a firm to undertake more than mere solicitation. When a State enacts a regulatory scheme that serves legitimate State purposes other than assuring that the State may tax the firm’s income, it is not evading § 381; it is pursuing permissible ends in a manner that Congress did not address. Thus, if South Carolina’s system of regulating the sale of liquor is valid, § 381 does not prohibit taxation of Heublein’s local sales.

Ill

South Carolina’s Alcoholic Beverage Control Act is a long and detailed statute. Requirements that certain records be kept by the manufacturer, the wholesaler, and the retailer pervade the scheme. There must be complete records of the quantities, brands, and prices involved at every stage of each liquor sale. By requiring manufacturers to localize their sales, South Carolina establishes a check on the accuracy of these records. For example, when a manufacturer can transfer its goods to a wholesaler in the State only after it submits an invoice showing the price and after it receives permission for the transfer, it is easier for the State to enforce its requirement that the wholesale price in South Carolina be no higher than that elsewhere in the country. S. C. Code Ann. §4-137.1 (Supp. 1971). The requirement that sales be localized is, unquestionably, reasonably related to the State’s purposes and is not simply an attempt by the State to provide a basis for the taxation of an out-of-state seller’s local sales.

Nor does this requirement violate the Commerce Clause. The Twenty-first Amendment, § 2, provides that “[t]he transportation or importation into any State . . . for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” As this Court said in Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324, 330 (1964):

“This Court made clear in the early years following the adoption of the Twenty-first Amendment that by virtue of its provisions a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.”

The requirement that, before engaging in the liquor business in South Carolina, a manufacturer do more than merely solicit sales there, is an appropriate element in the State’s system of regulating the sale of liquor. The regulation in question here is therefore valid, and § 381 (a) does not apply. The judgment of the Supreme Court of South Carolina is

Affirmed.

Mr. Justice Stewart took no part in the consideration or decision of this case.

Mr. Justice Blackmun, being of the opinion that the Twenty-first Amendment provides the sole authority for what South Carolina has required of Heublein by its Alcoholic Beverage Control Act and, to that extent, overrides what otherwise would be proscribed by 15 U. S. C. § 381, concurs in the result.

       Title 15 U. S. C. §381 (a) provides in pertinent part:
      “No State . . . shall have power to impose ... a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person ... are either, or both, of the following:
      “(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and
      “(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1).”

       A license tax, which is predicated upon liability for income taxes, was also assessed and paid. S. C. Code Aim. § 65-606 (1962). There is no dispute over the amount for which Heublein is liable under this statute.

       S. Rep. No. 658, 86th Cong., 1st Sess., 2.

       H. R. Rep. No. 936, 86th Cong., 1st Sess., 1.

       See, e. g., S. Rep. No. 658, supra, n. 3, pp. 2-3: “Persons engaged in interstate commerce are in doubt as to the amount of local activities within a State that will be regarded as forming a sufficient ‘nexus/ that is, connection, with the State to support the imposition of a tax on net income from interstate operations and ‘properly apportioned’ to the State.”

       That Congress was untroubled by those questions is suggested by its emphasis on the increased overhead and recordkeeping that local taxation of minimal activities would cause. See, e. g., id., at 4; H. R. Rep. No. 936, supra, n. 4, p. 2: “These businesses are concerned not only with the costs of taxation, but also with the inescapable fact that compliance with the diverse tax laws of every jurisdiction in which income is produced will require the maintenance of records for each jurisdiction and the retention of legal counsel and accountants who are familiar with the tax practice of each jurisdiction.” Where a valid regulatory scheme requires that records be kept, the overhead costs about which Congress was concerned might not rise substantially when a state income tax was imposed. South Carolina’s scheme for regulating liquor does little more than require that Heublein keep certain records.

       H. R. Rep. No. 936, supra, n. 4, p. 2; S. Rep. No. 658, supra, n. 3, pp. 4-5: “Your committee recognizes that the bill it has reported is not a permanent solution to the problem that exists. It was not intended to be. Your committee . . . recognizes that the problem is a complex one which requires extensive and exhaustive study in arriving at a permanent solution fair alike to the States and to the Nation. Your committee believes, however, that the bill it has reported will serve as an effective stopgap or temporary solution while further studies are made of the problem.”

       This report is published as H. R. Rep. No. 1480, 88th Cong., 2d Sess., H. R. Rep. No. 565, 89th Cong., 1st Sess., and H. R. Rep. No. 952, 89th Cong., 1st Sess.

       MR. Justice Blackmun, in his separate statement, suggests that § 381 does proscribe what South Carolina has done here, but that the Twenty-first Amendment prohibits such an action by Congress. In his view, to the extent that § 381 prohibits taxing activities undertaken in order to comply with a regulation valid under the Twenty-first Amendment, it is unconstitutional. We prefer to read the statute and its legislative history, ambiguous though they may be, to avoid such a holding. Cf. United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916). And, though the relation between the Twenty-first Amendment and the force of the Commerce Clause in the absence of congressional action has occasionally been explored by this Court, we have never squarely determined how that Amendment affects Congress’ power under the Commerce Clause. Cf. Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384 (1951).

       In upholding a comprehensive scheme of liquor regulation rather similar to South Carolina’s, this Court said:
      “[The State] has seen fit to permit manufacture of whiskey only upon condition that it be sold to an indicated class of customers and transported in definitely specified ways. These conditions are not unreasonable and are clearly appropriate for effectuating the policy of limiting traffic in order to minimize well-known evils . . . .” Ziffrin, Inc. v. Beeves, 308 U. S. 132, 139 (1939). Cf. Duckworth v. Arkansas, 314 U. S. 390 (1941); Carter v. Virginia, 321 U. S. 131 (1944).


author: Per Curiam and Decree.

text:
    NEBRASKA v. IOWA
    No. 17,
    Orig.
    Decided April 24, 1972
    Decided and Decree entered January 8, 1973
   Per Curiam and Decree.

The Special Master, as directed in Nebraska v. Iowa, 406 U. S. 117, 127 (1972), has submitted a proposed Decree. Nebraska accepts it but Iowa filed five Exceptions, to which Nebraska replied. Upon consideration of the Exceptions in light of our opinion and the Report of the Special Master, Iowa’s Exceptions II and III are overruled and Exceptions I, IV, and V are sustained insofar as paragraphs 11 and 12 of the Proposed Decree are revised in the following Decree, the entry of which is directed:

It Is Ordered, Adjudged, and Decreed That:

1. The Missouri River was the boundary between the States of Iowa and Nebraska which was subject to the general rules of accretion and avulsion until 1943 when the states determined to agree by compact upon a permanent location of the boundary line.

2. By 1943 the shifts of the Missouri River channel had been so numerous and intricate, both in its natural state and as a result of the work of the Corps of Engineers, that it was practically impossible to locate the original boundary line between the states.

3. The Compact between the states effective July 12, 1943, provides in Section 3 as adopted by Iowa:

“Titles, mortgages and other liens good in Nebraska shall be good in Iowa as to any lands Nebraska may cede to Iowa and any pending suits or actions concerning said lands may be prosecuted to final judgment in Nebraska and such judgment shall be accorded full force and effect in Iowa.”

4. Under Section 2 of the Compact, each state “cedes” to the other state “and relinquishes jurisdiction over” all such lands then located within the compact boundary of the other.

The word “cedes” in Section 2 was meant by the states to describe all areas formed before July 12, 1943, regardless of their location with reference to the original boundary, whose “titles, mortgages and other liens” were, at the date of the Compact, “good in” the ceding state. Under Section 3, the state is bound to recognize such “titles, mortgages and other liens” to be “good in” its state, and not to claim ownership in itself.

5. Sections 2 and and 3 are not to be construed as relating only to areas formed before July 12, 1943, that can be proved by clear, satisfactory, and convincing evidence to have been on the Nebraska side of the original boundary before the Compact fixed the permanent boundary. Such a construction would require the claimant who proves title “good in Nebraska” also to shoulder the burden of proving the location of the original boundary before 1943, as well as proving that the lands were on the Nebraska side of that boundary which would be placing a burden upon the land owner which the states themselves refused to undertake in 1943 and agreed would not be necessary.

6. The State of Iowa does not own Nottleman Island and Schemmel Island. The proofs sufficed to establish title “good in Nebraska” to Nottleman Island which was the land involved in the case of State of Iowa, Plaintiff, v. Darwin Merritt Babbitt, et al., Equity No. 17433 in the District Court for Mills County, Iowa, and to Schemmel Island which was the land involved in the case of State of Iowa, Plaintiff, v. Henry E. Schemmel, et al., Defendants, Equity No. 19765 filed in the District Court of Fremont County, Iowa, on March 26, 1963, and that Nottleman Island and Schemmel Island formed before July 12, 1943.

7. Under Section 3 of the Compact, titles “good in Nebraska” include private titles to riparian lands that under Nebraska law, differing from Iowa law, run to the thread of the contiguous stream.

8. Titles “good in Nebraska” are found to include and embrace titles obtained by ten years’ open, notorious and adverse possession under claim of right without any requirement of a record title or of “color of title.”

9. As to areas formed before July 12, 1943, Sections 2 and 3 of the Compact limit the State of Iowa to contesting with private litigants in State or Federal Courts the question whether the private claimants can prove title “good in Nebraska” and when private litigants prove such title, Iowa cannot interpose Iowa’s doctrine of state ownership as defeating such title.

10. In the presently pending cases of State of Iowa, Plaintiff v. Darwin Merritt Babbitt, et al., Equity No. 17433, (District Court of Mills County, Iowa), and State of Iowa, Plaintiff v. Henry E. Schemmel, et al., Equity No. 19765, (District Court of Fremont County, Iowa), it having been proved that there are titles “good in Nebraska” as to those islands, there is no reason for an injunction against Iowa, its officers, agents and servants, at this stage, unless it be shown that the State of Iowa will not abide by this determination of the issues as embodied in our opinion of April 24, 1972.

11. Generally, ownership of the twenty-one areas and part of the twenty-second area north of Omaha — claimed by Iowa to be state owned by Iowa because allegedly formed wholly on the Iowa side of the Compact boundary after the Compact date — shall be determined by the law of the state in which they are found to have formed, the Compact boundary being the line which shall determine in which state they formed. Claimants of title to these areas as against Iowa may have the opportunity to show title “good in Nebraska” on the Compact date.

12. Although under the Nebraska law of accretion private titles to riparian lands run to the thread of the contiguous stream, whether a Nebraska riparian owner has title to the accretions that cross the boundary into Iowa is determined by Iowa law.

13. The counterclaim of Iowa is dismissed.

14. The parties having paid their own costs and having contributed equally to a fund for expenses of the Special Master, any amounts remaining in said fund after deduction of all expenses by the Special Master shall be divided equally and returned to each state by the Special Master.

It is so ordered.