Hess v. United States

PETITIONER:Henry L. Hess Jr.
RESPONDENT:United States
LOCATION:Bonneville Dam

DOCKET NO.: 5
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 361 US 314 (1960)
ARGUED: Oct 15, 1959
DECIDED: Jan 18, 1960
GRANTED: Mar 02, 1959

ADVOCATES:
Alan S. Rosenthal – for the respondent
Cleveland C. Cory – for the petitioner

Facts of the case

Located on the Columbia River between the states of Oregon and Washington, the Bonneville Dam consisted of several facilities including a spillway dam with eighteen numbered bays separated by fifty-foot gates. On the bed of the river was a concrete structure called a baffle deck, which extended the width of the dam. This deck was lined with concrete blocks called ‘baffles’, designed to reduce the downstream velocity of the river. Over the years, the flow of water eroded the baffles. To restore them to their original condition, the United States contracted with Larson Construction Company, an independent contractor. The United States retained the right to inspect Larson’s work, but did not have direct control over it.

On August 20, 1954, Larson’s tug ‘Muleduzer’ set out from Bradford Island pushing Larson’s barge. As the tug and barge approached bay nine, the Columbia River’s flow was clearly turbulent; despite this, Larson proceeded with its work. The barge veered north when it reached bay nine and the port bow struck a pier. Water flooded a hole in the bow, and the barge and tug were swamped and sunk. Most of the crew drowned, including George William Graham; Graham was a member of the sounding party aboard the tug. The crew died in navigable Oregon waters.

Under Oregon’s Employers’ Liability Law (ELL), employers were liable for failure to use every device, care and precaution practicable for the protection and safety of life and limb. Oregon’s Wrongful Death Act (WDA), however, only permitted recovery for deaths caused by a wrongful act or omission, and set contributory negligence as an absolute bar to recovery. Henry Hess, the administrator of Graham’s estate, filed an action against the United States under both the ELL and the WDA. The district court entered judgment for the United States, holding that the United States was not liable under either statute. It ruled that the ELL did not apply to Hess’ case in part because the ELL imposed a higher standard of duty than federal maritime law. The United States Court of Appeals for the Ninth Circuit affirmed, holding that only the WDA applied to Hess’ claim.

Question

Could Hess invoke Oregon’s Employers’ Liability Law to recover for Graham’s maritime death, even though the ELL imposed a higher standard of duty than federal maritime law?

Earl Warren:

Number 5, Henry L. Hess, Jr., Administrator of the Estate to George William Graham, Deceased, Petitioner, versus United States of America.

Mr. Cory.

Cleveland C. Cory:

Mr. Chief Justice, may it please the Court.

I hope this case will be a welcome change from the last case here.

We have a very — a very short record.

We have two briefs of 40 pages.

We have no conflict in fact.

The only questions before the Court are questions of law.

Now, this is a Federal Tort Claims Act.

It was brought in the District Court of Oregon.

And after a full trial, mostly on stipulated facts, the District Judge dismissed the case on the merits.

An appeal was taken to the Court of Appeals and the Court of Appeals affirmed.

The action was brought to recover substantial $100,000 damages for the wrongful death of the man named Graham.

And on October 20, 1954, he was employed as a carpenter by a Mr. Robert Larson and Larson had a contract with the United States for the repair of the baffle-deck of one-half of the baffle-deck of the spillway deck of the Bonneville Dam.

Your Honors, you may again see a map here, the spillway dam on the Columbia River is right here, the baffle-deck is a concrete structure that takes the flow of water which comes through the gates down there, and this — in the period between 1938 when the dam was constructed in 1954 when this contract would last.

There seemed to be a great deal of erosion of the deck and of the baffles which were constructed to dissipate the velocity of the water, these big concrete baffles.

So Mr. Larson had this contract with the United States and Graham was his employee.

Now, under the contract, the contract contemplated that the operations of the dam would be carried on at all times in the regular manner by the corps of engineers, these employees of the United States, and that they were, of course, in exclusive and complete charge of lowering and raising the gates of the dam.

There are 18 spillways all the way down to the Washington side, number one down to the Oregon side, number 18.

And they are — these gates, which are about 50 feet by 50 feet, rest on a so-called “ogee section” above the deck, and they are moved by big cranes that move across the base of the dam.

Now, Your Honors, the contractor contemplated that he was would go in and build a timber crib right in this section here at gate nine.

And — that then he would complete all these copper dams right around and then he would pump the water out of this section so that he could expose the surface of the baffle-deck and proceed to do his extensive repair work.

And of course, he was required by the contract at all times to consult with the employees of United States.

There was a man named Caps (ph) who was in charge of the operation of the dam.

And then, there was a man named Patrick Leonti who was the liaison man.

And it was up to Larson, and he did confer with Mr. Leonti and he told them what he expected to do.

And this accident — this very tragic accident in which four men were drowned occurred when he was just commencing his contract.

Now, what he proposed to do and what he told the United States he was going to do was to find out by a sounding operation just how this baffle-deck had been eroded in this section so that he could construct a timber crib on land and take it out and sink it and it would be on the right section underneath.

And so he told the United States that he wanted to take a tugboat and a barge and go up there and anchor or lash a barge in by the phase of the dam and take these soundings.

And in connection with that — at that — at that time, the — these gates, 11 to 18 were closed and that created a quiet pool in this area.

Cleveland C. Cory:

Larson asked (Inaudible) gates 10 and 11 on the day that he was going to — his men were going to do this operation.

And that was done.

But gates eight, seven, six, five, four, three, two, one were open.

They’re opened to a certain extent and the evidence conclusively shows that the velocity of the water coming through these gates, immediately in the stations to where this operation was going to be carried on was about 30 miles an hour, a tremendous flow of water coming through there.

Earl Warren:

Faster than the other one — the other ones?

Cleveland C. Cory:

Well, in here, with gates closed, there was no water coming through here.

Earl Warren:

That’s right.

Cleveland C. Cory:

So that all water were coming through the gates that remained open.

Earl Warren:

And how about on the Washington side?

Cleveland C. Cory:

Well, all these gates were open to more or less an extent.

I think the main velocity of water was coming through with the gates —

Earl Warren:

Those newly open ones, is that right?

Cleveland C. Cory:

Excuse me, sir?

Earl Warren:

The great velocity was coming through those newly opened ones at 10 and 11?

Cleveland C. Cory:

Well, I think the — the evidence shows that gate eight, for instance, was opened 32 inches and the water was coming through there at 5700 cubic feet per second.

And gate seven was opened 55 inches.

And — and the water was coming through at 9100 cubic feet per second.

Gate six was opened 32 inches and water was coming through at 5700 feet.

I haven’t got the figures on the actual discharge of the water in gate five (Inaudible) gate one, but the main water was — was coming through on gates eight, seven and six.

On the date of the accident then, and these are all stipulated facts, they’re in the findings of fact, the — Larson assembled this crew and told them what to do and sent them out there.

And with the tug, pushed a barge up, and they started here, and they went around here, and they went up into the river into the spillway section.

At this time, of course, there was no cause for them to this — it was a quiet pool of water in here and the velocity was here.

And they got up to this bay nine and to make the long story short, the boat and barge and tug started to yoke, got into the turbulent current in front of gate eight and immediately capsized, turned right over and all these men were drowned.

One — one escaped.

Their three cases were consolidated under the Tort Claims Act.

The other two cases now are pending in the Court of Appeals, and it’s been stipulated that the decision in this case will govern the other cases.

Now, the petitioner, I, of course, represent the administrator of the estate of Mr. Graham but the cause of actions for the benefit of the real minor children, the suit was brought in to the District Court on two — under two statutes.

First, the regular Lord Campbell’s Act of Oregon, Oregon long possessed statutes that time at $15,000 limit.

Secondly, a special statutory cause of action for wrongful death created by the Oregon Employers’ Liability Law.

This latter argument statute provides in substance that owners and contractors responsible for work involving risk and danger shall use every device, care and precaution which is practical for the use for the protection of — and safety of life and limb limited only by the necessity for preserving the efficiency of the operation of the structure and without regard to additional cause of suitable material or safety appliances and devices.

Cleveland C. Cory:

Now, the District Court held, as a matter of fact, that under the Oregon Wrongful Death Act, the Government was not guilty of negligence.And secondly, it held that to apply this Oregon statute which creates this by degree of care every — every device care and proportion would append the so-called Jensen doctrine or it’d be unconstitutional to do so.

And the Court of Appeals has affirmed that —

They’re holding on the Oregon statute without — without importing any so-called maritime standard into statutes —

Cleveland C. Cory:

That’s right.

— with that cause of action?

Cleveland C. Cory:

Yes, sir.

It held that this, as a matter of law, this Oregon statute had no occupation here because the higher standard of care that it created was prejudicial to the uniformity of maritime law.

I’m not talking about that, was that statute is wrong?

Was that —

Cleveland C. Cory:

Oh, the wrongful death statute is the usual one, Your Honor, for negligent conduct.

The Court didn’t have the occasion to consider whether unseaworthiness was embraced in that statute because there’s no issue of unseaworthiness here, that no ship was involved, I mean no seamen involved.

The carpenter who was — as we will develop later —

William O. Douglas:

But we don’t have any issue as to wrongful death statute, do we?

Cleveland C. Cory:

No, Your Honor.

The Court of Appeals has affirmed those findings.

The Government was not negligent.

And we —

William J. Brennan, Jr.:

So you raise it with us only the (Voice Overlap) —

Cleveland C. Cory:

We’re — I’m raising in this — we’re raising in this Court the one legal question, whether or not the lower court erred in holding, as a matter of law, that the Employers’ Liability Act of Oregon could not be applied to this case.

Of course, the underlying feature was that this death was a drowning.

Therefore, it was on navigable waters of the United States, and — and therefore, general maritime law applied.

Now, I have three main arguments, Your Honor.

The first one is the fact that we’re in here, in the Court’s on Federal Tort Claims Act, which provides for the liability of the United States for death on account of negligent acts or omissions of government employees under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

And we say that by using that peculiar statutory phrase, law of the place where the act or omission occurred rather than the law where the injury or death occurred, that Congress intended to change the ordinary conflicts of law rules and federal tort claims at cases.

And that here, any negligence that we claimed on part of the employees of the United States was their own negligence, not imputed or anything like that, their own negligence was in the operation of the dam because in — in other words, we say that they should, knowing all the dangers and being advised just where this operation was going to be carried out, they should have taken every device, care and precaution by closing more gates and creating a quiet pool up on the Washington side so that — that they could be sure that this tug-and-barge wouldn’t run into turbulent waters.

That it would stay over in the quiet waters.

That they knew just the way the operation was going to be handled, and that that negligence or those omissions to act occurred on the dam and the dam is a shore structure.

It’s an extension of a land.

I think the cases in this Court and the Courts of Appeal bear that out, decided in the brief.

The mere fact that the presence of the dam might affect the flow of water and therefore, by — ultimately facilitate navigation.

Cleveland C. Cory:

It’s not enough under the standard of United States versus the Panoil in 266 U.S.

That was a big dike which was held to be a — a shore structure.

You can see that — that the distance — this is the Oregon shore, which is the powerhouse of the rest of the island and the dam.

This is at — we’re talking about a shore structure therefore, any negligent act or omission occurred on the land and maritime law is completely immaterial.

It has nothing to do with this case.

Justice Whittaker in the previous argument said, what better guide to legislative interpretation do you have than the words that Congress used, and the words that Congress used are a very explicit, and the Court of Appeals for the District of Columbia in the Eastern Air Lines versus United States followed that language and they held that where the negligent act of the United States was in the operation of an airport tower that was in Virginia, and this airplane crushed in the Potomac which is part of the District of Columbia, that the liability of United States was limited by the limits of the wrongful death statute of Virginia because that was the law of the place where the negligent act or omission occurred, and that this Court denied certiorari in that case.

Potter Stewart:

(Voice Overlap) the Court of Appeals in that case, in Eastern Air Lines case, it was filed certainly in conflict with the decisions of Court of Appeals in this case still and the District of Columbia Court of Appeals construed the word “place” to mean estate and these are governmental —

Cleveland C. Cory:

Well —

Potter Stewart:

— jurisdictions.

Cleveland C. Cory:

They weren’t required to go any further than that, Justice Stewart, because you had two States —

Potter Stewart:

Your State.

Cleveland C. Cory:

— you had the District of Columbia and Virginia here.

You have land —

Potter Stewart:

And water.

Cleveland C. Cory:

— and water.

Potter Stewart:

All on the same State.

Cleveland C. Cory:

But Congress could have used the word “State”, it didn’t use the word “place”.

“Place”, it seems to me to be a broader term than State, the law of the place.

Charles E. Whittaker:

(Inaudible)

Cleveland C. Cory:

Yes, sir.

Charles E. Whittaker:

(Inaudible)

Cleveland C. Cory:

That’s right.

And then the — and the law would be the Oregon statutory law —

Charles E. Whittaker:

It’s a very good law, whether it’s statutory or otherwise.

Cleveland C. Cory:

Yes.

If there’s a statute then there would be — in other words, the liability of the United States is the same as of a private person and if a private person would be governed by the Oregon Employers’ Liability Law then so with — of United States.

Charles E. Whittaker:

(Inaudible) that would mean we’re comfortable (Inaudible) against United States, isn’t that right?

Cleveland C. Cory:

That’s right, sir.

Yes.

Now, going on to another argument, we say that in any event, apart from this interpretation of the Tort Claims Act that to apply the Employers’ Liability Act does not work material prejudice to characteristic features of the maritime law or interfere with the uniformity of that law because any wrongful death statute that is applied that does that to a greater or lesser extent.

Cleveland C. Cory:

Actually, this — this device, care and precaution, every device, care and precaution standards of the Oregon Act is not very much different from the doctrine of unseaworthiness which, of course, in absolute non-delegable duty to furnish a seaworthy ship.

And that duty is not satisfied just because the shipowner may use reasonable care.

The incidents of this Employers’ Liability Act are much closer to principles of general maritime law.They’re applied in admiralty courts because in the Oregon Wrongful Death Act, you have contributory negligence as a complete defense, the function of risk as a complete defense and in the Employers’ Liability Act, contributory negligence is only in mitigation of damages, assumption of risk is no defense, negligence, at all, serving is no defense.

So that from a point of view of prejudice of a state statute to maritime law, it has been assuming that maritime law might — might govern.

We don’t see that — that we have a situation which requires a rejection of a — of a state statute if it’s applicable.

Now, apart — then, Your Honor, after the petitioner for writ was filed, the Court wrote two opinions that we think are very relevant to this case.

And one is Tungus versus Skovgaard.

And that decision of the Court shows that a wrongful death statute must be applied as an integrated whole, and that to do so, does not interfere or — or prejudice the uniformity of maritime law.

So if you take this Oregon — the argument’s been made, of course, that while you take the remedy of the Oregon Employers’ Liability Act and then you apply the standards of general maritime law, something like that, but that whole idea was rejected by this Court in the Tungus case.

And there — and therefore, if — if the Oregon Employers’ Liability Act is otherwise applicable, then it must be applied in entirety, in its entirety.

And to do so, it doesn’t offend the uniformity of maritime law, and of course, the principle behind all that is that — that there was no remedy for wrongful death that — in admiralty, and therefore, the state statutes will avoid, and that there are many cases on that, some of which is cited in the brief.

Then an entirely different principle is this.

That the case of Hahn versus Ross Island Sand & Gravel Company where this Court reversed the argument of the Supreme Court is — is the embodiment of the Oregon law.

It’s not the Oregon Supreme Court’s opinion in that case because that’s been reversed and taken out, so that this Court’s opinion is — is the Oregon law.

And there, the Court held under fairly similar facts, in other words, I think our case is found there, that Mr. Hahn who had a job repairing a barge on navigable waters in the Willamette River, his — he went onboard a barge to — and climbed up a ladder to repair some winch up there and he fell off the ladder.

That — that his employment and the character of that tort was local in nature.

And here, we say that this whole controversy is local in nature that we’re not dealing with a ship, it has nothing to do with commerce or vessels going from port to port down up the coast.

We have the dam that just sits there on the Columbia River and it never moves and — and there’s no — and — and this fellow Graham was not a seaman, he’s — he was a carpenter, and he just happened to be out that day on the river.

Mostly the work requires would — under the contract, it must be done in here, commencing his work when the water was taken out, and this is the area.

That was upon the purpose of — of this contract.

And so if — certainly if Hahn was in the twilight zone, I’d say that Mr. Graham was also, and of course, it’s the nature of the general employment and employers-employees’ activities at the time of death which governs, there’s been an argument here that — well, the statute says that the Bonneville Dam is an aid of navigation.

And that’s what the statute says, of course.

But the aid to navigation of the Bonneville Dam I was — it was the zip lock that was put in to here.

Certainly, the dam was not an aid to navigation.

It’s an instruction to navigation.

It’s been — it’s been recognized or dams have been recognized as instructions in navigation in — in many cases.

So the question remains then, Your Honors, whether under the findings of fact made by the employers by the — by the Court, District Court, affirmed, and — and the Court of Appeals, the — this fellow, Graham, is entitled to the protection of the Oregon Employers’ Liability Act remembering that he is not an employee of the United States, and remembering that the liability of the United States is the same as a private person.

And this is quite an intricate question of Oregon law if the Court will see when it reviews the cases.

But we say that the Oregon cases show five basic criteria which are all met under the undisputed findings of fact that the conclusion of the District Court that he wasn’t entitled, as a matter of fact, to the protection of the Act was induced by erroneous conclusion of the law.

Now, under the Oregon cases, a plaintiff must be an employee of someone and must have relation towards the defendant different from that of a member of the general public.

Cleveland C. Cory:

And that’s what this thought.

He was employed by contract in working for — for the United States, for his employer but he wasn’t a member of the general public.

And his duties must require his presence in the vicinity of a hazardous condition and a working button must involve risk and danger.

There’s no question that — that those — that that condition was fulfilled.

Now, the defendant must be an employer, and the United States was an employer of people on the Bonneville Dam, and there must be a common purpose or mutual benefit in the relationship between the defendant and the plaintiff’s employer.

And here, this contract is the tie between the United States and the plaintiff’s and decedent’s employer.

Now, then, most important, the defendant, under these Oregon cases, particularly Myers versus Staub, 201 Oregon, the defendant must have had primary control over the instrumentalities in use which is the media of injuries or death giving rise to the claims for damage.

And that is the situation here.

The Government had exclusive control to regulate in a few (Inaudible) and of how much water would be allowed to flow down, and has exclusive control over the — the whole operation not to contract of operation but their own operation in running that dam.

And —

Charles E. Whittaker:

(Inaudible) and how do you trade jobs or responsibility for people?

Cleveland C. Cory:

That’s — that’s right, Your Honor, but it’s not — it’s not the work of the — of the decedent’s employer.

It — it is work, work that’s being done.

It doesn’t necessarily have to be the work that this injured person is doing.

And that’s illustrated particularly by that Walters versus the Dock Commission in 126 Oregon.

That’s extensively briefed in my brief.

Charles E. Whittaker:

Did these courts hold back the (Inaudible) the Government was not in charge of or responsible for this work?

Cleveland C. Cory:

Well, the District Court made such a finding.

The Court of Appeals held as a matter of law the Employers’ Liability Act didn’t apply so it said in a footnote that it was not required to pass on these facts.

But the — the District Court did find that.

We say that that is a relevant consideration, a wrong deduction from the fact.

Now, then, the —

William J. Brennan, Jr.:

Mr. Cory, have you made any comment on that (Inaudible) the Court of Appeals’ opinion in 251, assuming now that the Congress didn’t (Inaudible) Did that Court, seeking re-argument, think that (Inaudible) where the right of the party that the defendant by the maritime law (Inaudible)

Cleveland C. Cory:

I haven’t specifically mentioned that in my brief, Your Honor, but the Hawkins there or was pure dicta in that Hawkins case and that has not been followed.

The decisions from the District Court of the District of Oregon was contrary as cited by the Court of Appeals, it was Footnote 7 on that.

William J. Brennan, Jr.:

That is in the Federal District Court.

Cleveland C. Cory:

Yes, in the Federal District Court.

The final inquiry is whether the Government did use every device, care and precaution, and we say that the undisputed fact shows the Government did not.

The case should be reversed.

Thank you.

Earl Warren:

Mr. Rosenthal.

Alan S. Rosenthal:

Mr. Chief Justice, may it please the Court.

I would like at the outset to add one or two facts to those stated by Mr. Cory in order to bring the entire factual situation in what we regard as — should be a part of context.

The arrangement between the United States or rather its project engineer and the representatives of Larson was that, when Larson wished additional gates closed, it was to advise the project engineer who would in turn relay that request to the operational personnel of the dam.

Now, the — Mr. Cory points out the Larson representatives requested the closing of two additional gates.

Those two gates were closed.

There was no other request.

And additionally, the day before the accident, the superintendent of the Larson Company undertook personally a reconnaissance trip along the area where the sounding operation is where to be undertaken, to ascertain for himself whether or not, the soundings could be taken safely with the gates closed, the number of gates closed which have been requested to be closed.

On the basis of that reconnaissance trip, the Larson superintendent decided for himself that the operation would be safe with the gates closed as requested.

And we think that that forms the basis for — the basis for District Court’s alternative holding of this case that the Employers’ Liability Act was inapplicable in terms, because the work was from beginning to end, in charge, the District Court found, all the independent contractors that all that the United States was interested in was in the accomplishment of the general result.

Now, the basic position of the Government here this afternoon is first, that this is beyond any question, an action on a maritime tort.

Second, that if this were an action between private parties, the liability of the defendant would be measured by the reasonable care standard of both the maritime law and the Oregon Wrongful Death Act, which standard was applied by the District Court here, rather than by the strict standard of the Oregon Employers’ Liability Law.

And third, that since the United States is liable under the Tort Act, only to the same extent as a private party would be in like circumstances, the Employers’ Liability Law is similarly inapplicable here.

But we do not understand the petitioner to challenge here, that if this action were between private parties, this suit would clearly be within the admiralty and maritime jurisdiction.

The critical fact from that standpoint is, of course, that the injurious force, in this case the turbulent waters which caused the tug to capsize, came into contact with and caused the death of the decedent on the — on navigable waters of the State of Oregon.

Now, we concede, of course, that merely because this case is within the admiralty and maritime jurisdiction, it does not necessarily follow that state law is completely inapplicable.

As we note in our brief and as this Court pointed out in the Romero case last year, there are certain incidents of maritime relationships to which state laws maybe validly applied.

But we are dealing here with one particular aspect of the maritime relationship, and that aspect is the standards of substantive tort liability, which are to be applied.

And we submit, if the Court pleases, that as to this area, this Court has never permitted state law to determine substantive tort liability for an injury on navigable waters.

Now, we are going through, of course, in our brief —

Tom C. Clark:

In a death case.

Alan S. Rosenthal:

Pardon?

Tom C. Clark:

In a death case.

Alan S. Rosenthal:

In a death case or in a personal injury case.

In Tungus versus Skovgaard?

Alan S. Rosenthal:

In Tungus, Your Honor, the substantive tort liability, the question there was whether the Oregon — excuse me, the New Jersey Wrongful Death Act embraced a claim for seaworthiness, a claim which is recognized by the — the maritime law.

There was no suggestion in the Tungus case or in Halecki that was decided with it, that a state law imposing a different standard of care upon the defendant —

William J. Brennan, Jr.:

Wasn’t it said that (Inaudible) whatever the action is that the State (Inaudible)

Alan S. Rosenthal:

No, Your Honor.

It — I think that what this Court held in the Tungus case was simply that since you are invoking a state-created remedy, you must take it subject to whatever conditions or limitations the State may have imposed.

Alan S. Rosenthal:

And I wish to point out in this connection in — in the Halecki case where the question — one of the questions was whether or not, the warranty of unseaworthiness or warranty of seaworthiness rather, extended to the — to the victim in that case.

This Court on that question turned to the federal cases, Pope & Talbot versus Hawn to the Sieracki case in determining whether or not, there had been a breach of duty upon the part of the defendant, that it was a federal maritime law that defined the scope of the duty of the defendant.

And that again, the — the reference to the state law came in into the context as — you have to enforce for state remedy as you find it and if the State does impose conditions or limitations upon recovery, for example, as the question in the scope by itself as to whether the state act was sufficiently broad to — to encompass a claim for unseaworthiness.

Those questions are questions of state law, but we submit that there was nothing in the — the Tungus or in Halecki or in any of the other decisions of this Court which suggest that a state wrongful death act maybe invoked to enforce a claim which would not have been recognized in admiralty.

Potter Stewart:

Well, isn’t it true in both Halecki and Tungus that there was no claim made that the State had gone further than the —

Alan S. Rosenthal:

That’s correct.

Potter Stewart:

— maritime law and the controversy was — as to whether it had gone so far or not.

Alan S. Rosenthal:

That is correct sir.

Potter Stewart:

And that there was therefore no occasion for the Court to consider it but —

Alan S. Rosenthal:

That — that Your Honor —

Potter Stewart:

(Voice Overlap) state law.

Alan S. Rosenthal:

— is quite right.

Potter Stewart:

Yes.

Alan S. Rosenthal:

But our position would be on — on that is this.

That — as we suggest in our brief that this case — this Court rather has always rejected endeavors to utilize state laws in determining of substantive tort liability which were state laws which were inconsistent with the maritime law.

Now, in two of the cases in this chain, the precise question was whether a state statute or common-law doctrine which imposed a different standard of care from that of the maritime law could be applied.

Now, in the Robins Dry Dock versus Dahl, it was a matter of the New York labor law which imposed a higher standard of care than the reasonable care standard of the maritime law.

And this Court —

William J. Brennan, Jr.:

But — may — may I understand this?

Is the Government’s position on this is that the maritime tort or Wrongful Death Act, the state law is less favorable than what has been the general maritime law (Inaudible) survivor of the accident then the less favorable standard may be required to see the claim of his —

Alan S. Rosenthal:

No.

William J. Brennan, Jr.:

(Voice Overlap) —

Alan S. Rosenthal:

No, no Your Honor.

Our position is with respect to the manner of substantive tort liability that the — that the maritime law would control, that the standard —

William J. Brennan, Jr.:

And that state statute would (Inaudible) did not embrace —

Alan S. Rosenthal:

Well —

William J. Brennan, Jr.:

— seaworthiness.

Alan S. Rosenthal:

— in — in that instance —

William J. Brennan, Jr.:

And yet if the individual survived the accident, he does have a claim which would have given recovery based on appeal.

Alan S. Rosenthal:

Well, that — that is quite so in those circumstances but that is only because —

William J. Brennan, Jr.:

(Voice Overlap) quite so, then — then if he couldn’t prove that the state death statute embraced unseaworthiness, there should be no recovery.

Alan S. Rosenthal:

That’s right.

William J. Brennan, Jr.:

But if on the other hand, the state death statute imposed standard of absolute liability, it (Inaudible) higher standard than the general maritime standard likewise (Voice Overlap) —

Alan S. Rosenthal:

Well, it isn’t because it’s a matter of a higher standard in that, Your Honor.

We are or our suggestion is this.

That in order to invoke a state-created remedy for a maritime on a maritime tort that before you get to the question as to whether the state-created remedy applies or not, you have to determine whether there has been a breach of a duty imposed by the maritime law.

But once it has been determined that there is a breach of the — the maritime law — of the duty imposed by the maritime law, then the question becomes whether the State has created a remedy for it.

Now, to the extent that — that their inconsistency here, of course, all stems from the fact that it is still the — the law that admiralty itself does not recognize the cause of action for wrongful death and that you have to import a state law to provide that remedy.

But we suggest though that in order to, again, in order to invoke the state remedy, you first have to ascertain whether or not there was a breach of a duty recognized by the maritime law.

Now, otherwise, you would have a — a situation where the — the individual had he survived and gone into a court of admiralty or had invoked a remedy under the savings to suitors clause, would not have been entitled to recovery.

There would have been no breach of a maritime duty.

Yet the fact that he died permits the State to give him a recovery which is in excess — well, a recovery which he could not have gotten under — under the maritime law had he lived.

But we do not think that the importation into the admiralty and maritime area of state wrongful death acts was intended to give the survivors if the person who dies greater rights than the individual would have had if he had lived.

Well, we — similarly, if the — if the Court —

William J. Brennan, Jr.:

(Inaudible)to be under this — under that is — is (Inaudible) the injured employee to decide —

Alan S. Rosenthal:

Oh, yes.

William J. Brennan, Jr.:

— by (Voice Overlap) —

Alan S. Rosenthal:

Oh, yes.

Yes, that’s right, but our position would be whether in this case, whether this individual lived or died, even Mr. Graham — even Mr. Graham survived that the — the Oregon Employers’ Liability Act would not have been applicable.

William J. Brennan, Jr.:

That’s because the standard is — is a — imposed by a higher standard —

Alan S. Rosenthal:

Well —

William J. Brennan, Jr.:

— (Voice Overlap) employer.

Alan S. Rosenthal:

— no.

It would have worked the —

William J. Brennan, Jr.:

(Inaudible)

Alan S. Rosenthal:

It’s a state law.

It doesn’t make any difference whether the state law is imposing a higher or a lower, in the case of a — case of a personal injury action.

Just last year in Kermarec, this Court rejected the application of the New York “gratuitous licensee” rule which had a lower standard of care.

We don’t think it makes any difference where you’re dealing with a personal injury case as to whether the standard of care is higher or lower.

But the reasonable care standard of the maritime law controls.

Alan S. Rosenthal:

Now, where you have a wrongful death, you run into this problem because you’re invoking a state remedy and as this Court held in — in the Skovgaard case, you have to take it with the conditions or limitations.

But —

William J. Brennan, Jr.:

The state conditions.

Alan S. Rosenthal:

The state conditions and limitations.

William J. Brennan, Jr.:

You’re not holding out federal limitation.

Alan S. Rosenthal:

No, no, not a federal — well, a federal limitation is, simply, that the Act is — that you do not invoke the Act as in a — with respect to a maritime tort unless there was a breach of a maritime duty that — that we do certainly argue here.

Now, the petitioner places reliance here on the local concern doctrine and the twilight zone doctrine which was involved in the workmen’s compensation field.

And we think that these doctrines are clearly inapplicable to the field of tort liability.

These doctrines were evolved in the workmen’s compensation field to meet problems that were peculiar to workmen’s compensation.

And certainly, there has been no suggestion by this Court in recent times that either of these doctrines have application to the area of tort liability.

Now, last year, I referred a moment ago to the Kermarec case.

Now, Mr. Cory has stressed the fact that the injured — the decedent in this case was a carpenter, albeit, working on navigable waters.

In the Kermarec case, the injured person had no connection at all with navigable waters.

He was a mere casual visitor to the ship.

He was visiting a crew member and he slipped and fell on a stairway.

And certainly, in that case, there was — that if, in this case, the local concern doctrine would apply, it certainly would have applied in that case.

And the — the fact is that the Court made no reference to local concern, didn’t give it any consideration, and we think quite properly solved.

And we think that this is a doctrine which is confined in its scope to the — to the area of workmen’s compensation.

William J. Brennan, Jr.:

(Inaudible) precisely the argument in — advanced in the dissent in Tungus and rejected by the Court, namely, the argument and the dissent in Tungus was that only the remedy should be borrowed and the substantive law be fashioned according to the general maritime.

Alan S. Rosenthal:

Again, if Your Honor pleases, I do not think that this question was before the — the Court in Tungus.

The question in Tungus —

William J. Brennan, Jr.:

But I did my best to get it there, hadn’t I?

Alan S. Rosenthal:

But the question in Tungus was, and that we see that the only question that was decided was whether or not the New Jersey Wrongful Death Act embraced the — the maritime recognized cause of action for unseaworthiness.

William J. Brennan, Jr.:

Well, then let me put it this way.

Isn’t the argument made from the dissent precisely the argument you’re making now?

Alan S. Rosenthal:

Well, if — to the extent that Your — Your Honor in Tungus argued for the — the broad application of maritime law, that’s — that’s right, but I’m not willing to concede that the position that we take is in anyway —

William J. Brennan, Jr.:

The whole argument was based on —

Alan S. Rosenthal:

— inconsistent with the holding in —

William J. Brennan, Jr.:

— the whole argument was based on the desirability and uniformity, wasn’t it?

Alan S. Rosenthal:

That’s — that’s correct.

Alan S. Rosenthal:

That — that’s correct.

But we — we still feel we — that there is no inconsistency between the holding in the — the Tungus case that that was dealing again with the matter of the conditions and limitations that are imposed by the state laws.

They’re not holding and the — and the position that we take in — in this Court.

But we submit, therefore, that if this — this action were between private parties in an Oregon court, in a Federal District Court exercising diversity of jurisdiction or in a — on the admiralty side of the District Court, that the Oregon Employer — Employers’ Liability Act would be inapplicable.

And because that is so, we think that it follows that under the — the language of the Tort Claims Act, the Act — the liability of law is similarly applicable here.

Now, the petitioner’s argument is that the use of the term “place” in 1346 (b) was intended to be as I think the Ninth Circuit Court in a reference, the type of territory or terrain.

His argument is that the injury — that the negligence occurred on land and therefore, it is land law rather than the maritime law.

We think that this argument is — is without merit.

We feel that certainly here, the — the Congress’ reference to a place was a — was and — was a — that’s a conflict’s rule with the reference being to a political jurisdiction which, of course, promulgates laws.

Now, there’s no such law — there’s no such — there’s no laws of — of dams.

The laws emanate from political entities.

Now, they’re not only States, they’re also counties and municipalities.

And one of the reasons why the Congress may have chose — may have chose to refrain from the use of the word “State” was to encompass municipal regulations or county ordinances of the like.

But there’s certainly no suggestion that it was intended within the confines of a particular State to make a selection on the basis of whether it happened on water in that State or on land in that State.

And Eastern Air Lines, of course, was dealing with the typical conflict situation.

As Mr. Justice Stewart pointed out, there was a choice of the laws of two States, Virginia on the one hand and the District of Columbia on the other hand.

In this case, there is no such problem.

The entire transaction from beginning to end occurred within the State of Oregon.

It is our position that it would be the Oregon law that would be applied in this case on these facts, if there were private parties involved.

Now, the Oregon Supreme Court has once held albeit by way of dictum that where a maritime tort is involved, it’s a tort of liability of the law.

It’s inapplicable.

William J. Brennan, Jr.:

Well, do you think that — that settled your —

Alan S. Rosenthal:

That’s —

William J. Brennan, Jr.:

— as i suggest that —

Alan S. Rosenthal:

Well, Your Honor, in a —

William J. Brennan, Jr.:

(Voice Overlap) itself such suit cases that the case, if it’s not (Voice Overlap) —

Alan S. Rosenthal:

I know of no — of cases of the Oregon Supreme Court indicating that to the contrary in a — another case which is cited in our — our brief, the Rorvik case, which was in 99 Oregon.

There was a — a captain who had been killed or in this ship had been killed when he hit the — he’d been hit by a piece of lumber.

He was — the captain was standing on the wharf.

He was hit by the lumber and was thrown into the water.

Alan S. Rosenthal:

And the State endeavored to invoke, in that case, the liability law.

And the Oregon Supreme Court there held, yes, the liability law is applicable, but it’s applicable because the injury took place on land.

And therefore, this is not within the admiralty and maritime jurisdiction.

I don’t think that there is any question in — in these circumstances for taking these two cases together.

That the Oregon courts would regard as we suggest they must.

The Oregon law applicable here to embrace the reasonable care standard of the maritime law.

And with respect to the case of Hahn versus Ross Island Sand & Gravel Company upon which the petitioner relies, we think that that is clearly inapplicable here.

The question in that case was whether the federal Longshoremen’s and Harbor Workers’ Compensation Act provided the exclusive remedy in circumstances where the employee, one, was in the twilight zone and two, the employer had not elected to place himself under the Oregon State Compensation Act, which Act provided that if there wasn’t election to remain without its provisions, the employee was left to — he was provided with his common-law remedies.

Now, there was no suggestion in the opinion of this Court that the employee was entitled to rely upon the Employers’ Liability Law.

As a matter of fact, the Supreme Court of Oregon didn’t reach the question as to whether — assuming that the employee was allowed to bring a judicial proceeding.

The standard of care would be that of the Wrongful Death Act or that of the Employers’ Liability Law.

This was because in the view of the Oregon Supreme Court, the federal employer — the Longshoremen’s and Harbor Workers’ Compensation Act was exclusive, so we feel that the — the Ross case lends no support whatsoever to — to the petitioner’s position of the — the petitioner here.

Finally, if the Court pleases, we suggest that the — that the Oregon — experienced Oregon District Judge held here that the Act is inapplicable in terms of the — in terms of the Act imposed to obligation only upon persons having charged of or responsible for the work being performed.

The District Court filed as a fact here that the United States was not in charge of or responsible for the work being performed and we thought —

William J. Brennan, Jr.:

The Court of Appeals didn’t reach that case.

Alan S. Rosenthal:

No.

The Court of Appeals disposed of this case solely on the ground that the Employers’ Liability Act could not be applicable if this were an action between private parties and therefore, it’s inapplicable here.

But we do think that the — the alternative ground upon which the District Court placed its decision was also correct.

And we think that this — this follows from the case of Warner versus Synnes which is discussed in our brief.

For these reasons, we respectfully submit that the judgment of the court below should be affirmed.

Potter Stewart:

Mr. Rosenthal, just before you sit down is this to you, on your official argument, is a constitutional question?

You — are you telling us that it’s your position, it’s your primary position, your alternative position that Oregon could not constitutionally —

Alan S. Rosenthal:

Well, we are saying —

Potter Stewart:

— that it would be — that it would be unconstitutional to (Voice Overlap) —

Alan S. Rosenthal:

Yes.

We’re saying that — we’re using it in the same sense, I think.

Our argument is really along the same lines that —

Potter Stewart:

Jensen.

Alan S. Rosenthal:

— that — Jensen, but taking the most recent case in Kermarec, I think what this — this Court was holding there, was that in view of — of Jensen and the principle of uniformity that the maritime standard of reasonable care governed rather than the lesser gratuitous licensee standard of the New York law.

But what it was holding in effect was that the New York — that an action between — involving New York law or based upon New York law, nevertheless, that the New York courts could not apply their gratuitous licensee standard.

Potter Stewart:

Ross — Kermarec doesn’t involve New York law.

That — the —

Alan S. Rosenthal:

I — I think, if Your Honors please —

Potter Stewart:

It stands to be a proposition that only the admiralty law is involved.

Alan S. Rosenthal:

That’s — well, as I understood it, in the Kermarec case in the lower courts, the lower courts held that since this accident occurred in the navigable waters in New York, as to the vessel had berthed in the New York harbor, that the shipowner was only liable if he had known of — actually known of the defect and had failed to warn the — the visitor of that defect.

But that wasn’t one of the bases on which the — the plaintiff in that case lost with this application of New York law.

And this Court, as I understand it, held that no, that the — the Court should not have invoked that New York standard, not only should not have, could not, and that the action was governed by the reasonable care standard of the maritime law.

And that was the question here is whether the shipowner had — had exercised reasonable care.

And so, our position here is — is right along, we think, in line with the — with the holding of the Court in Kermarec, with some of the same basis.

Potter Stewart:

(Voice Overlap) of course it was not a wrongful death case, is it not?

Alan S. Rosenthal:

That — that’s correct, but we suggest that it does not make any difference in — in this area as to whether it’s a wrongful death or not.

We would suggest that certainly, at the time of Western Fuel Company versus Garcia in this whole doctrine with respect to importing a wrongful death act or state law death act, to provide a remedy on a maritime tort but it was never thought that the result of this would be that in using the state act, the individual could recover on a claim which would not have been recognized in admiralty.

And again, that — on the other side of this was just simply a matter here, but since you are invoking a — a state-created remedy, that you have to take a remedy subject to whatever limitations the State has placed upon it.

Now, I would like to point — point to this, and that is that this Court may recall in the Halecki case, the Second Circuit, in construing New Jersey law, came to the conclusion that the New Jersey courts, if faced with a seaworthiness claim under a wrongful death act, would not invoke to contributory negligence doctrine that would be invoked if it were with respect to a non-maritime tort.

Since the time of the Halecki case, the Fourth Circuit has come to precisely the same conclusion with respect to the Virginia Wrongful Death Act.

That the Virginia Wrongful Death Act, when being invoked on a maritime tort, the Virginia courts would impose the same conditions or — and limitations of the maritime law.

And this was without any — any — Virginia decision points or it well may be that this — this problem that has arisen because of the necessity of taking in the conditions of limitations will not in practice prove as a serious one.

And there will be in the final analysis that under the Wrongful Death Act, you will have on both sides of it, both in terms of the creation of liability and also in terms of the conditions and limitations, the application of the — the maritime law.

And I think that that would be, of course, a desirable result in terms of the uniformity doctrine which this Court has consistently applied.