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December 30, 1964

4), or any other provision of the contract. Consequently, appellant's claim for additional compensation is dismissed in its entirety.

JOHN J. HYNES, Member.

WE CONCUR:

THOMAS M. DURSTON, Member.
HERBERT J. SLAUGHTER, Acting Chairman.

TORT LIABILITY AND WAIVER REQUIREMENTS

Torts: Conflicts of Law
In view of the state of the authorities, it is not possible to state with certainty

whether State or Federal law will ultimately be accepted as governing the effectiveness of pre-flight waivers of liability obtained by the United States

from nonofficial passengers on Government aircraft. Torts: Aircraft As a general rule, under Federal law and State laws, pre-flight waivers of

liability, in the form used by the Bureau of Reclamation, obtained by the United States from nonofficial passengers on Government aircraft will be

upheld, except as against willful misconduct or gross negligence. Torts: Personal Injury or Death In wrongful death actions brought under derivative type statutes, pre-flight

waivers of liability executed by the decedent have been given the same effect as they would have been given in an action brought by the decedent while still alive.

Torts: Personal Injury or Death

In wrongful death actions brought under nonderivative type statutes, pre

flight waivers of liability executed by the decedent may be held not to bar the right of action, on the theory that the decedent could not give away something which did not belong to him.

M-36674

December 30, 1964 To: COMMISSIONER OF RECLAMATION SUBJECT: TORT LIABILITY AND WAIVER REQUIREMENTS

This is in response to the memorandum in which Assistant Commissioner Kane asked for an opinion on the legal aspects of rescinding the requirement in Reclamation Instructions 334.6.16 that nonofficial passengers transported in Bureau aircraft be required to sign a waiver releasing the Government from any and all responsibility for accidental death or injury resulting from such transportation.'

The problem presented, as we understand it, is to determine whether or not these waivers, when secured, are of sufficient value to the Government to justify the difficulty and embarrassment that sometimes accompanies securing them. The results of our research are summarized below.

Our first concern was to determine whether State or Federal law governs pre-flight waivers. Federal law governs contracts to which the United States is a party. Therefore, it would seem that Federal law should govern these waivers, since they are contracts to which the United States is a party. There are cases which support this view.? However, there are other cases which take the position that waivers of this type are so closely related to the substantive law of torts that, under the Federal Tort Claims Act, the law of the State where the wrongful or negligent act or omission took place should govern the effectiveness of the waiver.3 In view of the state of the authorities, it is not possible to say with certainty whether State or Federal law will ultimately be accepted as controlling4

i The form of waiver used by the Bureau of Reclamation reads as follows:

"RELEASE “KNOW ALL MEN BY THESE PRESENT : Whereas, I,

(Full Name), am about to take a flight or flights as a passenger in certain Bureau of Reclamation Air. craft on

; and whereas I am doing so entirely upon my own initiative, risk, and responsibility; now, therefore in consideration of the permission extended to me by the United States through its officers and agents to take said flights, I do hereby, for myself, my heirs, executors, and administrators, remise, release, and forever discharge the Government of the United States and all claims, demands, actions or causes of action, on account of my death or on account of any injury to me which may occur by reasons of the said flight or flights.

"The term 'Aight or fights' as used herein is understood and agreed to include the preparation for, continuation, and completion of flight or flights whether or not one or more than one aircraft is used throughout the entire flight or flights, as well as all ground and fight operations incident thereto. It is further understood and agreed that this release, among other things, extends to and includes negligence, faulty pilotage, and structural failure of the aircraft thereof.

“The execution hereof does not operate to waive any statutory right conferred by act of Congress."

The foregoing text is clerically imperfect in that the word "and" following the expression "Government of the United States” makes no sense and was probably intended to be "from."

2 United States v. Starks, 239 F. 2d 544 (7th Cir. 1956) (provision for indemnification of United States in Federal lease) ; Guy F. Atkinson Co. v. Merritt, Chapman de Scott Corp., 141 F. Supp. 833 (N.D. Cal. S.D. 1956) (provision for indemnification of United States in Federal construction contract).

3 Air Transport Associates v. United States, 221 F. 2d 467 (9th Cir. 1955); Montellier v. United States, 202 F. Supp. 384 (E.D.N.Y. 1962), af'd 315 F. 2d 180 (2d Cir. 1963); Rogow v. United States, 173 F. Supp. 547 (S.D.N.Y. 1959).

• A number of cases hold that State law governs the question of whether the liability of the United States is discharged when a settlement is made with another person liable for the same harm. Examples are Bacon v. United States, 321 F. 2d 880 (8th Cir. 1963); Matland v. United States, 285 F. 2d 752 (3d Cir. 1961) ; Rushford v. United States, 204 F. 2d 831 (2d Cir. 1953). These cases involved waivers given to persons other than the United States and, therefore, are not necessarily precedents for the application of State law to waivers given to the United States.

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December 30, 1964

Our second concern was to ascertain the extent to which pre-flight waivers would be upheld. The answer to this question will, of course, vary from State to State if Federal law is not accepted as controlling. The general criterion that appears to have the most support in the cases decided to date, whether purporting to apply Federal law or State law, is that a waiver in the form used by the Bureau of Reclamation will be upheld except as against willful misconduct or gross negligence. This is in accord with the common law rules pertaining to waivers of tort liability that do not involve employment relationships or the obligations of public service enterprises.

The application of local precedents by courts which follow State, rather than Federal, law is illustrated by a decision holding, on the basis of New York law, that a pre-flight waiver is ineffective as against even ordinary negligence if the Government derives some benefit from the transportation of the person executing the waiver. The court considered that, under the New York decisions, a person traveling on a military aircraft in furtherance of a military project was within the scope of the common law rules that preclude employers from enforcing waivers by their employees of liability for torts sustained by the employees while on duty, and that preclude common carriers and other public service enterprises from enforcing waivers by their paying patrons of liability for torts sustained by such patrons.

Wrongful death actions deserve special mention. The statutes of some States treat the right of action for wrongful death, granted to the decedent's representatives, as being derived from the right of action for the tort that caused the decedent's death, possessed by him while still alive. The statutes of other States treat the right of action for wrongful death as being a new cause of action that arises upon the decedent's death and that is not derived from any right of action previously possessed by him. In suits brought under statutes of the derivative type, such as those of New York and Louisiana, pre-flight waivers executed by the decedent have been given the same effect as they would have been given in an action brought by the decedent while still alive. On the other hand, in a suit brought under the non-derivative statute formerly in force in Massachusetts, the waiver was held not to bar the right of action for wrongful death on the theory that the decedent could not give away something which did not belong to him.10

5 Air Transport Associates v. United States, supra note 3 ; Friedman v. United States, 138 F. Supp. 530 (E.D.N.Y. 1956); Chapman v. United States, Civil No. 5187 (S.D. Tex. 1950), al'd on other grounds, 194 F. 2d 974 (5th Cir. 1952), cert. denied, 344 U.S. 821 ; see Davies Flying Service v. United States, 216 F. 2d 104 (6th Cir. 1954).

* Restatement, Contracts, secs. 574, 575 (1932). 7 Rogow v. United States, supra note 3.

8 Restatement, Contracts, sec. 575 (1932) ; see Air Transport Associates v. United States, supra note 3.

Rogov v. United States, supra note 3 ; Friedman v. United states, supra note 5 ; Chapman v. United States, supra note 5.

A survey of agencies within this Department which operate airplanes reveals that four-Geological Survey, Bureau of Land Management, National Park Service and Bureau of Reclamation require waivers in situations comparable to those covered by Reclamation Instructions 334.6.16; and that two-Bonneville Power Administration and Bureau of Sport Fisheries and Wildlife-do not. Among outside agencies, the militay departments (which, of course, have the largest volume of such situations) require waivers, whereas the Federal Aviation Agency does not.

The decisions cited in this memorandum illustrate some of the complexities that make it impossible to state a simple hard and fast rule as to when pre-flight waivers are enforceable and when they are not. The best which may be said is that they can, at times, help in the defense of a lawsuit—and cannot, in any event, hinder its defense.

a

EDWARD WEINBERG,

Deputy Solicitor.

APPLICABILITY OF THE EXCESS LAND LAWS

IMPERIAL IRRIGATION DISTRICT LANDS

Bureau of Reclamation: Excess Lands
Sections 1 and 4(b) of the Boulder Canyon Project Act (45 Stat. 1057, 1059;

43 U.S.C. secs. 617, 617 (c)), which require the costs of the main canal and appurtenant structures to connect with the Imperial Valley to be repaid pursuant to reclamation law, carry into effect the excess land provisions of section 46 of the Omnibus Adjustment Act of May 25, 1926 (44

Stat. 649 ; 43 U.S.C. sec. 423e). Bureau of Reclamation: Construction—Statutory Construction: Generally Where a federal statute provides that the reclamation laws shall govern IMPERIAL IRRIGATION DISTRICT LANDS

the construction, operation, and management of project works, the excess land provisions of the reclamation laws are thereby carried into effect

unless the terms of the statute provide otherwise. Bureau of Reclamation: Excess Lands—Bureau of Reclamation: Water Right

Applications The provision in section 5 of the Reclamation Act of June 17, 1902 (32 Stat.

388, 389; 43 U.S.C. sec. 431) that "no right to the use of water for land in

private ownership shall be sold” for more than 160 acres means that the 10 Montellier v. United States, supra note 3. But cf. Van Sickel v. United States, 285 F. 20 87 (9th Cir. 1960) (personal representatives of deceased serviceman whose death was not within purview of the Federal Tort Claims Act, since it occurred while the serviceman was on active duty, are not entitled to recover for his wrongful death even under a nonderivative statute).

December 31, 1964

use of project facilities shall not be made available to a single owner for service to more than 160 acres. Sections 4 and 5 of the 1902 Act, read together, indicate that the "sale" referred to is not merely a commercial transaction, but is the contract by which the government secures repayment and the water user obtains the range of benefits resulting from the con

struction of the federal project. Bureau of Reclamation: Generally-Bureau of Reclamation: Excess Lands

Water and Water Rights: Generally Nothing in the Reclamation Act of 1902 (32 Stat. 388) or its legislative history

suggests that private landowners with water rights could participate in a

project, pay their share of its cost, but be exempt from acreage limitation. Water and Water Rights: Generally-Bureau of Reclamation: Excess Lands Neither the existence nor nonexistence of a vested water right is itself deter

minative of whether the excess land laws are applicable in any given

case.

Statutory Construction: Legislative History
The legislative history of the Boulder Canyon Project Act (45 Stat. 1057, 1066 ;

43 U.S.C. secs. 617, 617t) does not reveal that Congress intended to exempt, by implication or otherwise, the private lands within Imperial Valley

from the federal excess land laws. Administrative Practice The letter from Secretary of the Interior Ray Lyman Wilbur to the Imperial

Irrigation District, February 24, 1933, which informally ruled that the excess land laws did not apply to lands in the Imperial Irrigation District,

was based upon clearly erroneous conclusions of law. Administrative Practice Administrative practice, no matter of how long standing, is not controlling

where it is clearly erroneous. Statutory Construction: Administrative Construction The departmental regulation, currently found at 43 CFR 230.70, which pro

vides that section 5 of the Act of June 17, 1902 (32 Stat. 388, 389; 43 U.S.C. sec. 431), does not prevent the recognition of a vested water right for more than 160 acres and the protection of same by allowing the continued flowing of the water covered by the right through works constructed by the Government under appropriate regulations and charges, applies only to special situations where existing physical facilities or water rights are acquired under the authority of section 10 of the 1902 Act (32 Stat. 389, 390 ; 43 U.S.C. sec. 373) for incorporation in a project and where the lands to which the water right appertains are not included within that project. This regulation was intended as a codification of the Opinion of Assistant Attorney

General, 34 L.D. 351 (January 6, 1906). Statutory Construction: Generally The language of section 1 of the Boulder Canyon Project Act (45 Stat. 1057; 43

U.S.C. sec. 617) does not by its plain terms create or recognize a water right.

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