Wallace Higa, Administrator of the Estate of Takeichi Higa, Deceased v. Transocean Airlines, a Corporation

This is an appeal from a decision of the United States District Court for the District of Hawaii in a diversity suit which dismissed appellant’s complaint for damages under the Death on the High Seas Act, 46 U.S.C.A. § 761 , to be determined by a common law jury since it was brought as a common law civil suit rather than in admiralty. Jurisdiction was based on diversity of citizenship, the deceased Higa and his administrator in a Hawaiian proceeding being citizens of Hawaii, and the plane owned by a California corporation.

Takeichi Higa was a passenger on a Transocean Airlines airplane, admittedly not a plane to land on or travel the water, which crashed into the Pacific Ocean 300 to 400 miles from Wake Island when flying in the direction of Honolulu. Appellant is Higa’s administrator and he brought this action for the benefit of Higa’s parents, alleging that Takeichi Higa’s death was caused by the plane’s crashing into the ocean.

Since this is a diversity suit brought in the United States District Court for the Territory of Hawaii, seeking a common law remedy for a death on the high seas outside territorial waters, appellant is required to show that the law of Hawaii had…

On Petition for Rehearing

Higa was granted a rehearing to determine whether the order of the district court dismissing his case without prejudice to file an action in admiralty should be set aside and the case remanded to the admiralty docket of the court below. 1 On appeal this court agreed with the view of the trial judge that an action under the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq., could be brought only in an admiralty action. Higa raised for the first time in his petition for rehearing the question of whether the case should have been dismissed or transferred to the admiralty docket. Generally one may not enlarge the scope of an appeal in a petition for rehearing. Jaynes v. United States, 9 Cir., 224 F.2d 367 ; Mitchell v. Gree-nough, 9 Cir., 1939, 100 F.2d 1006 .

There is no reason to depart from that rule here. Higa’s attorney was warned of the possibility that the period of limitation might run while his appeal was pending here. He could have filed an action in admiralty without affecting his right to appeal.

We find no reason to disturb our decision of December 15, 1955, and it remains unaltered.

. This court may so remand in an appropriate case. See…

230 F.2d 780 Wallace HIGA, Administrator of the Estate of Takeichi Higa, Deceased, Appellant, v. TRANSOCEAN AIRLINES, a corporation, Appellee. No. 14592. United States Court of Appeals Ninth Circuit. Dec. 15, 1955. Rehearing Denied Feb. 25, 1956. Shiro Kashiwa, Genro Kashiwa, Honolulu, Hawaii, for appellant. Jesse H. Steinhart, John J. Goldberg, Neil E. Falconer, San Francisco, Cal., Pratt, Tavares & Cassity, Honolulu, Hawaii, for appellee. Before DENMAN, Chief Judge, BONE, Circuit Judge, and BYRNE, District Judge. DENMAN, Chief Judge. 1 This is an appeal from a decision of the United States District Court for the District of Hawaii in a diversity suit which dismissed appellant's complaint for damages under the Death on the High Seas Act, 46 U.S.C.A. § 761 , to be determined by a common law jury since it was brought as a common law civil suit rather than in admiralty. Jurisdiction was based on diversity of citizenship, the deceased Higa and his administrator in a Hawaiian proceeding being citizens of Hawaii, and the plane owned by a California corporation. 2 Takeichi Higa was a passenger on a Transocean Airlines airplane, admittedly not a plane to land on or travel the…