Moragne v. States Marine Lines, Inc.

PETITIONER:Moragne
RESPONDENT:States Marine Lines, Inc.
LOCATION:Dodge County Juvenile Court

DOCKET NO.: 175
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 398 US 375 (1970)
ARGUED: Mar 04, 1970
DECIDED: Jun 15, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – March 04, 1970 in Moragne v. States Marine Lines, Inc.

Warren E. Burger:

Number 175, Petsonella Moragne against States Marines Lines.

Mr. Hardee, you may proceed whenever you’re — you and you’re colleagues are ready.

Charles Hardee:

Mr. Chief Justice, may it please the Court.

Edward Moragne Sr. was a longshoreman employed in the Port of Tampa, by Gulf Florida Terminal Corporation, which is a respondent in this case, and was his employer, the stevedores.

On December 31, 1964, he was killed when a hedge beam fell, became lose and fell down in the bottom of the hole, where he was discharging cargo, on the SS Palmetto State, a vessel owned by the respondent States Marine Lines, Inc.

The vessel was docked up here in Tampa on navigable waters of United States.

His widow, the plaintiff Petsonella Moragne, or herself and her two minor children filed suit in the State Court in four counts.

Two counts under the States Wrongful Death Act and to claim damages under the Act.

One count in negligence to unseaworthiness.

And two counts under the States Survivor Act for damages of personal representative and for damages to the State.

The case was removed at the instance of States Marine Lines, Inc. to the Federal District Court in Tampa.

And then upon motions by both respondents, after a third party complaint was filed for indemnity by the ship owner against the stevedore.

The District Judge struck count two which had to with unseaworthiness and based his decision upon two cases of the Fifth Circuit Court of Appeals, the ground against A. Lusi Limited and Emerson against Holloway Concrete Products Company, which held that Florida common law applied and was applicable under the Florida Wrongful Death Statute.

One of these cases were decided in 1953, the other was decided with a vigorous dissent by Judge Brown in 1960, right after this Court came, issued its opinion in the Congress.

But the District Judge was concerned about the correctness of its ruling and pursuant to the appropriate rule, gave language in his opinion, which allowed us to petition for an interlocutory appeal to the Court of Appeals.

The Court of Appeals granted our interlocutory appeal and then upon the request of the respondent States Marine Lines certified the question involved to the Florida Supreme Court.

The Florida Supreme Court held that the warranty of seaworthiness if that is not applicable under the Florida Wrongful Death Act.

We then requested the Court of Appeals to ignore this opinion on a certified question of the Florida Supreme Court and raise the constitutional questions which are here before this Court.

Argument was held, briefs were fully made to the Court of Appeals.

The Court of Appeals took a considerable time working with the issue, and then finally in its opinion, said they felt nevertheless bound by the Tungus to accord to the Florida Supreme Court or the Florida Courts, the right to decide what substantive law was applicable to maritime deaths occurring on navigable waters of United States within the territorial limits of Florida.

Potter Stewart:

As I understand it, you brought your original action, the State Court.

Charles Hardee:

Yes sir.

Potter Stewart:

Under the State’s Wrongful Death Act and under the State Survivor Act.

Charles Hardee:

Yes sir.

Potter Stewart:

And that it was removed by the defendant to the Federal Court solely on the basis of diversity jurisdiction.

Charles Hardee:

Yes sir, that’s correct.

Potter Stewart:

Well, in view of that, I have a little trouble seeing what the Tungus or the Harrisburg or anything else, any of the those cases have, what bearing they have on this case, if this is a state action for a wrongful death, in the District Court only by reason of diversity and not by a reason of its admirably jurisdiction, doesn’t Erie Railroad against Tompkins require that the District Court follow the state law, whatever it may be.

I’m aware of course, this Court asked you about the Harrisburg and asked the parties to brief it but — so, if this is —

Charles Hardee:

Alright sir, let’s assume that the injury had not resulted in death.

The case could — would still had been removable for a personal injury not resulted in —

Potter Stewart:

As it result any death?

Charles Hardee:

Under diversity jurisdiction, but Federal Law — Federal Maritime Law would have applied in the State Court or in the District Court, under diversity jurisdiction or on the admiralty side of the Court had the plaintiff chosen to go there.

Warren E. Burger:

And by virtue of —

Potter Stewart:

But you didn’t choose to go there.

Charles Hardee:

No sir because this was a death.

This was not an injury.

Potter Stewart:

Well, but in order to test the continuing validity of the Harrisburg it would seem to me that a plaintiff — you should have added, another complaint, an admiralty for wrongful death.

You were simply suing under the State Wrongful Death Statute and the State Survivor Statue.

Charles Hardee:

But, Your Honor we thought for negligence.

Potter Stewart:

For negligence and unseaworthiness and the Florida Supreme Court is now held that the state — these two state statutes don’t embody a liability for unseaworthiness.

Charles Hardee:

Yes sir, well we —

Potter Stewart:

And in order to test the continuing validity, Harrisburg it seems to me a plaintiff would have to sue for wrongful death and admiralty.

You’ve never gone to the admiralty side, you never — the Federal Court in order to plea the cause of action in admiralty in the State Court.

I’m just telling him my objection (Voice Overlap).

Charles Hardee:

Yes sir, I understand your feelings first.

Mr. Justice Stewart and we were proceeding under what we felt and apparently the Fifth Circuit Court of Appeals agrees with us, what we felt was the compulsion of the majority ruling in the Tungus.

And every other state, since Tungus, which is decided this question, some eleven major maritime states have held that the wrongful death statute of those states incorporate admiralty substantive law, it’s only in this case.

Potter Stewart:

But in Tungus and in Harrisburg, the cause of action was in admiralty.

And the holding was that there is no cause of action for wrongful death in admiralty, but that admiralty may — the event of wrongful death may borrow from the local state statute.

But here you sued under the local state statute.

Charles Hardee:

But what’s the difference, if you please the Court.

I mean — I frankly don’t see the difference, that’s a —

Potter Stewart:

I think the Tungus or the Harrisburg could be attested by a plaintiff who sued in admiralty for wrongful death.

Charles Hardee:

Alright sir, well —

Byron R. White:

Well, could I ask you, after removal when as the case proceeded, was a claim asserted whether formally or informally under the admiralty law?

Charles Hardee:

No sir, I had considered the case to be under the admiralty law from the beginning.

This is the whole issue involved and the State Court — not on the admiralty side of Court, but at maritime law applied under the Florida wrongful death statute.

This has been the position of the plaintiff from the beginning.

Byron R. White:

Is it your claim that the admiralty law would require a state to have its wrongful death statute in corporate maritime law?

Charles Hardee:

Yes sir.

Charles Hardee:

It’s my claim that maritime substantive law must apply under the state’s wrongful death statute to a maritime death, which occurs on the navigable waters of the United States within the state’s territorial jurisdiction.

Byron R. White:

Well, that isn’t the — is that a question about the Harrisburg?

Charles Hardee:

No sir, I haven’t got in the Harrisburg yet, I would be glad to talk about the Harrisburg.

Byron R. White:

But can’t — if that’s your only claim, you never will get to the Harrisburg, will you?

Charles Hardee:

Yes sir, I think I will.

Alright, so that — what in effect happened in this case is that the Court of Appeals applied Florida law to a maritime death occurring within the territorial waters of Florida, under the compulsion of the Tungus and applied substantive law, which conflicted with the duties and obligations which are routed in maritime law.

Speaking there of the warranty of seaworthiness.

There’s no question about the warranty of seaworthiness is a duty, and an obligation of a ship owner which is owed to a longshoreman.

And in the case of injury of violat ion of this duty produces the right to sue.

William J. Brennan, Jr.:

In other words — and you could have sued, I gather Mr. Hardee in the case of an injury not a death.

You had your option to proceed in the Federal Court or in the State Court.

Charles Hardee:

Yes sir.

William J. Brennan, Jr.:

But in either court.

Charles Hardee:

Yes sir.

William J. Brennan, Jr.:

Not a death case?

Charles Hardee:

Yes sir.

William J. Brennan, Jr.:

The controlling law that would have to be applied would be the federal maritime law.

Charles Hardee:

Yes sir.

William J. Brennan, Jr.:

And that I gather you take the same position in death cases.

Charles Hardee:

Yes sir.

William J. Brennan, Jr.:

And you insist that Harrisburg should be overruled.

Charles Hardee:

Yes sir.

William J. Brennan, Jr.:

And the — a different federal maritime rule applied.

Charles Hardee:

Yes sir.

William J. Brennan, Jr.:

Is that it?

Charles Hardee:

That’s correct, yes sir.

I say first of all that Moragne has been decided that the fears expressed by the minority in Tungus have come to fruition.

And the State of Florida has caused to be applied to maritime deaths in Florida are ruled different from the substantive admiralty rule or a law.

So that I think if this Court recedes from the majority reasoning in Tungus and does what the minority suggest, my client is protected in this case.

This Court asked the parties to brief the question of whether the Harrisburg should be overruled.

Charles Hardee:

And I have taken the position that it should be for a number of reasons.

First of all, the Harrisburg of course is a very careful, well reasoned and thought out decision.

The problem is that I think the Court in the Harrisburg at that time went a stray on a couple of matters.

First of all, the civil law had traditionally been the law applied in admiralty in England and in this country.

The Court’s generally got to the civil law, now this is not to say that Courts might not look to the common law, but at that time Swift against Tyson was in effect, and it was assumed to be a federal uniform, some uniform federal common law.

So that I think Swift against Tyson had some effect on the Court.

And of course, that’s been laid to rest in 1936 and 1938.

But, in looking to the common law, if a Court in admiralty were going to law or applying maritime law would go and look to the common law.

It seem to me the Court would look in and find a doctrine of the common law, which was a progressive, a good and doctrine that everyone said this is wonderful in it’s something that should be adopted by the admiralty.

But in this case, the Court adopted a rule of the common law, which had been abrogated 40 years before by the English Parliament, which had been criticized by everybody that ever said anything about it, which everybody agreed was a terrible rule, the common law, and which everybody agrees, they think it’s a terrible rule.

So admiralty went out from the civil law theme to engraft into maritime law a rule of the common law, which nobody defends.

That is that there’s no right of action for wrongful death absent the statute.

And this is where the point here.

Warren E. Burger:

In Florida, what’s the source of the right to sue within a Death and Wrongful Act?

Charles Hardee:

The Wrongful Death Act in Florida was originally thought to be a Lord Campbell’s Act.

Warren E. Burger:

It’s a statute.

Charles Hardee:

It’s a statute, yes sir.

It’s a Lord Campbell’s type statute.

However, it was amended in 1953 to provide for actions ex contractu, as well as actions ex delicto, which brought in the field of implied warranty of food stuffs and product liability and so on.

So, that is not a technically any longer really a Lord Campbell’s Act.

So that the Harrisburg now has resulted by evolution in the situation that we find ourselves now in Moragne and that is where the State of Florida has effectively abolished the warranty of sea worthiness, which is in deeply engrafted in admiralty and maritime law.

So that a longshoreman, who is healed as distinguished could be an injured on navigable waters of the State of Florida, navigable waters of the United States, within the State of Florida is deprived of this doctrine as warranty of seaworthiness.

And is relegated to common law and negligence, which is very different type now, from the negligence that we know in maritime law.

I think that it’s been traditional in admiralty courts, and the Supreme Court in particular has fashioned admiralty remedies and admiralty law where necessary.

I need only point out a few for instance in this case, the ship owner is seeking indemnity against the stevedore.

The indemnity of a ship owner against the stevedore was fashioned by the court in the Ryan case and substantive cases.

So, we have indemnity involved in this case, in this very case, which is a court made or court fashioned maritime doctrine, which is unknown in the State of Florida, but it’s going to be an issue in this case, and yet the respondents say that the plaintiff, the petitioner here should be relegated the state law, as far as her rights for death are concerned to turn on navigable waters.

But they turned around and seeked the benefit of the court fashioned, right of indemnity against the stevedore, of course the duty of — the warranty of sea worthiness is a thing that has been fashioned by the court.

And the impleader rules had been fashioned by the Court.

I’d like to point out one other thing.

Charles Hardee:

Back in the 1917 to 1924, starting with the Jensen case, the Supreme Court held that a state law, workmen’s compensation law, could not validly be applied to maritime injuries or death occurring on state waters.

After the Jensen’s case the Congress had passed a statute, which can be effective of placing state workmen’s compensation laws over these injuries and death.

And the court – and the Nicker Barker case, said you can’t do that, that’s unconstitutional.

So then, the Congress came back and passed another statute of the same title exempting members, masters and members of vessels.

And the Court again said, you cannot constitutionally apply a state statute, workmen’s compensation statute, to injuries or death occurring on maritime waters.

It seems to me in the Tungus, that this Court has done in maritime deaths, what the court three times said back in 1917 and 1924 that the Congress could not constitutionally do.

So that I urge this Court, and I’d like to reserve my remaining time for rebuttal, if I may, and I urge this Court to receive from the majority reasoning in Tungus and to overrule the Harrisburg.

Warren E. Burger:

Thank you Mr. Hardee.

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court.

The United States is here in this case, pursuant to the Court’s invitation to file a brief and to participate in the oral argument of the case.

We have devoted our submission primarily to the proposition that the Harrisburg, in answer to the Court’s question ought to be overruled.

Incidentally, we see no difficulty, and that’s being done in a diversity case, it has been clear, I think that a state court may apply admiralty law at the federal court to which such and causes removed under the diversity of jurisdiction may likewise do so.

Although, the case could not have been brought on the law side of the federal court originally, the absence of diversity of system.

Potter Stewart:

But this is removed un-diversity and what happens to Erie Railroad against Tompkins.

Louis F. Claiborne:

Well, I thought Mr. Justice Stewart this Court had long settled that under the savings pursued as clause, state courts, all federal courts acting as state courts that is under that diversity, jurisdiction applied federal maritime law in all maritime cases.

At the election of the plaintiff, otherwise admiralty sought to the Federal Court.

Potter Stewart:

The plaintiff here elected to proceed under two state statutes, a wrongful death statute and a survivor statute.

He didn’t sue on admiralty, quite unlike the plaintiff in the Tungus case.

Louis F. Claiborne:

Well Mr. Justice Stewart, it may be a problem of pleading.

There maybe a problem of pleading.

There’s no problem of jurisdiction.

The Court here, just as Mr. Justice Brennan said a moment ago, that this has been a possible injury case, the claim could have been under the warranty of sea worthiness, a federal claim.

And it could have been vindicated in the State Court or in the Federal Court under diversity.

Potter Stewart:

Without question.

Louis F. Claiborne:

And there is no difference —

William J. Brennan, Jr.:

— listen to another answer here anyway.

This whole thing arises because count 2, which is framed on unseaworthiness was dismissed by the District Court and that dismissal was sustained in the Court of Appeals.

And that all was founded on unseaworthiness, wouldn’t it?

A federal question case.

Louis F. Claiborne:

Except to the extent Mr. Justice Brennan that the claim was unseaworthiness as recognized by the state wrongful death statute.

Potter Stewart:

Exactly.

Louis F. Claiborne:

However, as I read the complaint, the suit is brought simply alleging a claim for wrongful death and unseaworthiness without particularly or uniquely invoking the state wrongful death statute.

William J. Brennan, Jr.:

Exactly.

Count 2 doesn’t uniquely invoke the state wrongful death.

Louis F. Claiborne:

Nor does Count 4, which is also an unseaworthiness count, though for the seaman’s — longshoreman own injury.

Warren E. Burger:

Mr. Claiborne, had the suit been as you suggested for an injury not for death, what have been the source of the basis for the suit?

Louis F. Claiborne:

It would have been the federal maritime law of unseaworthiness as to Count 2 of the complaint, which is the only here at issue, which is enforceable in both the State Court.

And on the law side of the Federal Court under the diversity head of jurisdiction, as well as in admiralty without a jury, without diversity.

Warren E. Burger:

And were there no statutes at all, would there had been a right to sue, the injury?

Louis F. Claiborne:

With no statute, whatever, there would have been a right to sue for the injury.

Warren E. Burger:

So — is that a distinction?

I am not suggesting that it’s a significant, but that is a distinction between the death act and the action for injuries.

Louis F. Claiborne:

Well, as suggested here Mr. Chief Justice is that once the Harrisburg is overruled, as we think — as we submit to the Court it should be, there will likewise be a right to sue for wrongful death without a statute, without invoking of the state wrongful death statutes.

And so, in that sense, this is exactly the same case, it would be for personal injury in the right court.

Warren E. Burger:

If the law is different from what it is today, then your rights would be in the courts what you’re really signing of, isn’t it?

Louis F. Claiborne:

That — that is —

Warren E. Burger:

What is it, that would just get us very far.

Louis F. Claiborne:

The reason of jurisdictional problem, there maybe a question as to the sufficiency of the pleading, though I don’t think there’s any problem as sufficiency to complaint.

There maybe some question as to the plaintiff’s agreeing that the matter are to be determined at the period of time by reference to the Florida law, when the certification to the Florida Supreme Court was made.

However, it really is not my place to speak to any defect in the way the plaintiff brought the suit here.

We must assume, that the question is before the Court and answer it as the Court requested that we do.

The faults of — and the problems created by the decision in the Harrisburg have been sufficiently exposed.

The underlying principles of both the common law rule, denying recovery for wrongful death, and the application of that rule to admiralty have been criticized by so many eminent jurists and scholars that I need hardly add anything to what they’ve said, mentioning only that they include Mr. Justice Holmes, Judge Learned Hand, Dean Prosser and Dean Pound.

Congress in one sense, has also repudiated the result, which the Harrisburg required by enacting the federal statutes which to a lot extent supplant the state laws and notably the Death on the High Seas Act.

Though it stops three-mile line and the Jones Act, which covers all maritime waters built only with respect to true seaman.

The Harrisburg is today whatever the correctness of the decision at the time, and there’s some reason to question that is today an anachronism.

It creates a series of anomalies, which are not mere anomalies, they’re arbitrary results often unjust and very much it adds with the desirable uniformity of the admiralty law.

Warren E. Burger:

Did Congress have altered that situation, since Harrisburg was decided?

Louis F. Claiborne:

No, no question whatever, Mr. Chief Justice that Congress could and as the other side will — I’m sure point out, there is pending appeal which would have some such result, though —

Byron R. White:

They didalter it, they did alter it for —

Louis F. Claiborne:

They did alter to the extent of the high seas, the death on the High Seas Act did alter it, to the extent of —

Potter Stewart:

And (Voice Overlap) Jones Act.

Louis F. Claiborne:

Jones Act for the entire coverage of maritime law, but only with respect to seaman, so we really have a small area left, which Congress — the reasons which I will try to explain in the moment, did not —

Byron R. White:

Non seaman in the states territory less than marine league from the shores.

Louis F. Claiborne:

Within the three-mile limit, yes Mr. Justice White.

Potter Stewart:

And the submission of this case would be that those people would have greater right of action for wrongful death, they’re representatives, for the wrongful death of those people, and they would if they were sure that they happened on the shore or on the land in Florida, which gives the right to wrongful death only for negligence, I gather?

Louis F. Claiborne:

Yes, so putting it the other way Mr. Justice Stewart, we’ve said they should not have less rights than because the action had occurred beyond the three-mile limit nor they should have —

Potter Stewart:

No Congress passed a statute, the people beyond the three-mile limit.

Louis F. Claiborne:

I’ll come to that Mr. Justice Stewart.

Let me say that the anomalies created are really three.

The same conduct, which imposes liability on ship owners, produces one result if the man — if the victim is injured, it produces often a different result, the man is killed, there is no rhyme or reason to that.

Likewise, the same conduct by the ship owner —

Potter Stewart:

This is true of course in the — that’s nothing unusual about that, many states for example, that have limited liability for wrongful death.

Louis F. Claiborne:

Well, there is — Mr. Justice Stewart there is no state law, which provides no remedy when the man is killed while providing remedy for the same conduct, when the man is merely injured.

It maybe degrees —

Potter Stewart:

This isn’t a case where no remedy is provided.

There is a remedy here for negligence.

Louis F. Claiborne:

The same conduct, which in this case, this purpose is unseaworthiness of the vessel affords no remedy under Florida law, when the seaman died, when the longshoreman died, whereas it affords a remedy as it must under federal or when the longshoreman is injured, so it’s an all or nothing proposition.

Likewise, the same conduct may give rise to an obligation to pay and the right of recovery, depending on whether it happens within or outside the three-mile limit.

A line which makes no sense in terms of the maritime jurisdiction, which covers the entire area.

And finally —

Warren E. Burger:

You say it makes no sense, you’re saying that the line drawn by Congress did not have a logical, sensible basis, is that what you’re saying?

Louis F. Claiborne:

No, I think it — as I will suggest it did have some basis.

I’m suggesting that the result, which I don’t think it was intended by Congress, because of the differences in the law that existed has now become acute and arbitrary, though I don’t impute any such purpose to the Congress in 1920, when the remedies, were quite different, and the state laws quite adequately state wrongful death statutes, quite adequately covered the three-mile area.

Beyond that there was a confused situation, some form of vacuum, and at least in appropriate place to an urgent need to provide a law, a law that was thought comparable to the state remedy, provided by the wrongful death actions.

Indeed, the suggestion is that the state law was more generous than the new federal and some complaint do not displace the state law within the three-mile area, to have now turned round, seems to impute a very strange notion, the congressional purpose.

Now strange as to all the anomalies produced by the Harrisburg, as construed in the Tungus, is that true seaman are often less able to recover than those who recover for unseaworthiness or other seaman’s remedies only because they do the work as barely performed by seaman, so called seriaki seaman.

So the question arises why not —

Potter Stewart:

I don’t —

Louis F. Claiborne:

How can that be?

Potter Stewart:

Yes, how can that be or how is that?

Louis F. Claiborne:

Because under this Court’s decision, in Lindgren and in Gillespie, a seaman who is killed, its survivors cannot resort to State Wrongful Death Act, even where that State Wrongful Death Act would provide a remedy for unseaworthiness, but as defined in the Jones Act remedy for negligence.

Potter Stewart:

The negligence —

Louis F. Claiborne:

Therefore, in the Tungus, that remedy would not have been available to a seaman, because —

Potter Stewart:

He wasn’t a seaman in Tungus, he was —

Louis F. Claiborne:

He wasn’t, but the seaman would not have had the benefit of the ruling of the Tungus, given the fact that New Jersey law did provide that remedy.

Potter Stewart:

Except Jones Act, insofar as it has been acquitted with FELA.

Louis F. Claiborne:

But which does —

Potter Stewart:

Still uses the word negligence.

Louis F. Claiborne:

Well, I’m assuming there’s a difference, and in this case, the assumption is there’s a difference between unseaworthiness and negligence, though I recognize that negligence under the Jones Act is a broader concept than negligence under Florida’s law.

And it must be — there has to be a reason for not setting things right.

There could be three reasons, the first is that a long time has passed and it’s too late, that this Court has made a lot of decisions premised on the Harrisburg, and that Congress has legislated against that background.

And it uses a practical matter impossible to undue 80 years of legislation in jurisprudence.

The remarkable fact is that that is not true.

A simple overruling of the Harrisburg would recreate the uniformity, basic uniformity in the maritime law.

And it would erase all the harsh anomalies that are dispensable.

Now, in saying that I assume that overly what Harrisburg carries with it, first day proposition that now, that federal law, federal substantive law is available in death cases.

There can be no resort to state laws, even more favorable to state laws.

Therefore, the anomalies resulted in Hess versus United States, about which Mr. Justice Harlan and others complained would no longer obtain.

Byron R. White:

Didn’t the Death on the High Seas Act, they retain statement under this?

Louis F. Claiborne:

Well, that is the second argument against repealing the Harrisburg by judicial action rather than by legislative action.

There were statements in the decision, in the majority decision in the Tungus to the effect that Congress drew a knowing line between the three miles and beyond three miles.

That it explicitly or clearly intended to preserve state remedies within the three-mile area.

Having looked at the legislative history, we noticed first that the committee report say no such thing They simply notice the result that state laws will remain available within the three-mile area.

That is not to say that Congress consciously meant to preserve that situation forever.

The stray remarks that were made on the floor —

Warren E. Burger:

I’m not sure I followed you there Mr. Claiborne, what did they do when they carved that out?

Louis F. Claiborne:

Well, I am just speaking to Mr. Chief Justice is the words of the committee reports, which are quoted in the majority opinion.

They simply state that the result of not covering this area is that state law remains.

Louis F. Claiborne:

That’s a far cry from saying, we are doing this because we think it’s important to preserve state remedies in the three-mile area.

Now, as I’ve suggested a moment ago, it seems to us the obvious reason why Congress stopped at the three-mile line was because there was no problem within that area then.

There was a problem beyond, nobody quite knew what if any law would apply.

Obviously, the coastal law, the state couldn’t apply beyond three miles, it was beyond the state boundary.

So what law could apply?

One decision of this Court, it suggested that at least where the defendant and plaintiff were of the same stage, you could apply the state law, if it was meant to apply.

But state laws normally didn’t mean to govern accident on the high seas.

And there was a vacuum there, which Congress quite reasonably thought it necessary to fill.

As I’ve also suggested, there were those who wanted to preserve state remedies within the three-mile area, because they were familiar with them or because they viewed them as more generous than the pending federal legislation.

Those are hardly reasons for this Court today to hesitate, to erase that distinction.

A distinction which then was not as great as it is now, because then un-seaworthiness remedies were unknown for practical purposes and the remedy beyond three miles was no greater than what state Wrongful Death Act supplied within the three-mile area.

Byron R. White:

Would be your suggestion that the Government suggestion that we just overrule the Harrisburg and then spell out on a case by case basis, the essential elements of this action for wrongful death?

Who can sue statute limitations and all the other caught in the trappings?

Louis F. Claiborne:

Basically yes Mr. Justice White, though I must point out that by overruling Harrisburg is not fashioning a whole new body of federal law.

It’s simply removing the bar to access to the existing federal law.

Byron R. White:

I understand (Voice Overlap) case to case basis —

Louis F. Claiborne:

Now, there are some details that have to be worked out.

I wouldn’t have thought statute limitations is one of them, I would have thought the normal admiralty rule obliges would apply as it does in every other suit (Voice Overlap).

Byron R. White:

How about of beneficiaries?

Louis F. Claiborne:

As to beneficiaries, there could be a reference to state law, thought I’m not —

Byron R. White:

What does a Death on High Seas Act do as to beneficiaries?

Louis F. Claiborne:

Death on a High Seas Act has a list of beneficiaries, the only ones you can take, the Jones Act has a list of beneficiaries, unfortunately not identical.

Warren E. Burger:

We can always adapt either —

Louis F. Claiborne:

Mostly the same.

Warren E. Burger:

We can adopt either one of those, couldn’t we, for reference?

Louis F. Claiborne:

I think the normal thing for a federal court to do, faced with that problem would be to borrow from the federal statutory law, which governs the same conduct or be it beyond the three-mile area.

William J. Brennan, Jr.:

Would they bring something like in — what was it McAllister or something?

Louis F. Claiborne:

Well, that was respect to the three year statute limitations of the Jones Act, which was borrowed when the two suits were brought together.

Potter Stewart:

How about borrowing from the federal law that actually covers this decedent, i.e. the Federal Longshoreman’s and Harbor Workers Act?

So far the beneficiaries go?

Louis F. Claiborne:

Well, I would have thought that one would want a uniform rule, which remember that overruling the Harrisburg will — permit suits not only by longshoreman but also by seaman, and also by passengers, all of which is (Voice Overlap).

Potter Stewart:

Passengers wouldn’t be covered by seaworthiness.

Louis F. Claiborne:

No, but they would be —

Potter Stewart:

— on unseaworthiness would they?

Louis F. Claiborne:

The Harrisburg now bars a suit for negligence, for wrongful death — negligence.

Potter Stewart:

I beg your pardon?

Louis F. Claiborne:

The Harrisburg likewise bars a suit for wrongful death due to negligence.

Except —

Potter Stewart:

Except by — that’s changed by — by Congressional action, the Death on the High Seas Act.

Louis F. Claiborne:

Beyond three miles, all for the seaman under the Jones Act.

But as to the longshoreman, who has a suit against the ship owner for negligent injury are —

Potter Stewart:

But there is a federal —

Louis F. Claiborne:

He has no suit for negligent killing, because of the Harrisburg.

I hesitate to suggest that the Court ought to look to the Longshoreman Act when the plaintiffs longshoreman to the Jones Act and the plaintiff is a seaman and to Death on the High Seas Act when the plaintiff is a —

Potter Stewart:

A passenger.

Louis F. Claiborne:

A passenger, though —

Potter Stewart:

Why, why it is state?

Louis F. Claiborne:

It’s just — I would suppose that it were complicated, unduly complicated, but I don’t — they said inappropriateness to that and I don’t reject it as one alternative.

William J. Brennan, Jr.:

I suppose you would have a — would you have comparative negligence rule?

Louis F. Claiborne:

Yes, as the substantive or admiralty law of (Voice Overlap).

William J. Brennan, Jr.:

Just what it is in the non death case, would have — in a seaworthiness case?

Louis F. Claiborne:

In seaworthiness contributory negligence, no negligence is relevant in a negligence case under the maritime law, comparative negligence is the rule, not contributory negligence.

All of those substantive rules would have caused —

William J. Brennan, Jr.:

Well those — you would simply apply under death cases, the substantive rules are now applicable in non death cases, is it?

Louis F. Claiborne:

The only thing to be fashioned is a question of who may file the suit whether it’s the widow and the children or only the dependents, or only the small children are — and how you divide it up between them, and those questions are largely answered if one borrows from the federal law.

There is no occasion to borrow from the law of the coastal state.

It has no conceivable interest in those questions.

The only state that has any interest in those questions is the state of the domicile of the survivor.

But the coastal state has no legitimate claim to controlling accidents otherwise governed by maritime, federal maritime law, although within its own waters.

For these reasons, we suggest that the judgment ought to be reversed and that in so doing, the Court should overrule the Harrisburg and the Tungus.

Warren E. Burger:

Thank you Mr. Claiborne.

Mr. Villareal.

Dewey R. Villareal, Jr.:

Mr. Chief Justice, may it please the Court.

The ship owner, States Marine Line asks the Court not to capsize the law, which has been in effect for 80 years and more and not to reverse decisions, which have been made in this Court as recently as 1964.

And suggest that what we really are concerned within the case is the balancing of competing interests within a limited geographical area that is within the territorial limits of a state.

And the question has got to be in the end, which of the two interests, federal or state, has the more urgent or the more important right to control this sort of death.

The law today we think is clear on principles that have been with us since the Harrisburg and right on up through the Gillespie in 1964 on the federal side, principles that have been known and used in Florida in this specific context, since 1953 and as recently as 1968 in this very case, and in which Congress and the Florida legislature have acquiesced regularly.

We think that to overturn a body of law that has been developed in this way and to say that the justices of this Court who have fashioned this body of law and the Congress, and the legislature who have also contributed to it did this unthinkingly or without realizing what they were doing is just to ask too much of you.

The result limited to the area, in which this action occurred is that a non seaman, like Moragne, the result of the Florida Supreme Court’s construction of the Florida statute is that Moragne, the longshoreman has exactly the same right that a seaman or the seaman would have — had a seaman been standing right by him and been hit by the same hatch beam.

That is uniformity, no matter which way you turn in this case and this area there’s going to be assumed non uniformity for somebody.

And the survivors of Mr. Moragne here have already, as it has been mentioned, they have a compensation remedy, and they have a negligence remedy.

I would submit to the Court that the distinction between the negligence remedy, under Florida law, and under the Jones Act is really more apparent than real.

The way it always comes up at the jury charge stage, you get practically the same charge on burden of proof and I’ll leave that point with that.

Potter Stewart:

But if this is an admiralty case, you wouldn’t have a jury, would you?

Dewey R. Villareal, Jr.:

That is of course true, and that’s the main reason, I will submit that they didn’t sue in admiralty is because they want a jury to weigh this, because they know that juries are better for plaintiffs ordinarily.

The man’s survivors here will have, besides the comp remedy, they will have the same right of action that a man would — that the survivors of a man who were killed on the dock, suppose this man had been walking, gone down the gang way to get a swing.

Third party trip driver comes up to get some cargo, knocks him down, kills him.

You got the same rights as the man who works in a mine or lives right next door to him.

We submit that this sort of uniformity is just as important and is just as appropriately left to the states, as it has been by Congress, and by this Court up until now.

As the uniformity that’s contended for by Mr. Hardee.

Uniformity has often been urged in this area, on this Court, but it has never until the day so far as I can understand, been considered to be a thing that’s required in the wrongful death area.

Even with Jensen, they start out in Jensen in the majority opinion and much emphasized in the dissents, saying that wrongful death is an area that does not require the imposition of uniformity and that it’s ever been so and is not has been repeated, and repeated to subsequent decisions.

The same sort of thing can be said with respect to the federal supremacy, which is argued as something that’s — somehow cut into by the decision of the Florida Supreme Court, that is this Court and Congress have deliberately said, No we will not assert federal supremacy within the territorial waters of the state.

And say, Congress — I’m thinking of the Death on the High Seas Act, which deliberately leaves to the state the right to regulate recovery for wrongful death within one marine league of the state’s boundaries.

And by this court, in 1964, in Gillespie, in which he said that the state act could not extend the remedy available to a seaman.

Potter Stewart:

Suppose however that Congress, with respect to seaman, has very broadly legislated, depending upon their status, I suppose conceivably the Jones Act would cover a seaman injured on shore, wouldn’t it?

If he were a seaman, a bonafide member of the crew of the ship and went to shore, that is (Voice Overlap) for the ships galley and were injured by agency of the ship.

I suppose he’d be under the Jones Act, wouldn’t he?

Dewey R. Villareal, Jr.:

Yes.

And sometimes — well, yes if he were injured, if the fight cases as one of the example, where the officer is getting a scrap in the bar, something like this.

Thurgood Marshall:

(Inaudible)

Dewey R. Villareal, Jr.:

Or out of the window or some other things that the —

Potter Stewart:

But that would depend entirely on his status, rather than the (Inaudible) of acts of the injuries, wouldn’t it?

Dewey R. Villareal, Jr.:

Yes sir, as a crew member, employee of the shipment.

Potter Stewart:

Because that would be the language of the Jones Act.

Dewey R. Villareal, Jr.:

We think that the reason that the law has developed in this way results from a consideration of the desirability of having local uniformity for people who are essentially local, like longshoreman.

And the thought by the Court in Congress and the legislature that people like longshoreman, like this man, this plaintiff’s decedent who live in Tampa, and work in Tampa everyday should be more or like the remedies accorded to his neighbors and friends that live in that state, then the need for uniformity of a man who own a ship comes in to Tampa today, and he’s going to Mobile tomorrow, and Panama the next day or wherever it maybe.

For people like that, it would be a confusing thing.

If they never knew from one week to the next, which kind of law was going to control their rights for injuries, but this sort of argument can apply in our submission to a man who is a Florida resident, and always has been.

Hugo L. Black:

Is the Harrisburg’s rule, was it judicially created or congressional hearsay?

Louis F. Claiborne:

I suppose it was judicially announced or created.

I suppose you could say, as part of a recognition of the —

Hugo L. Black:

— comes on from the Court.

Dewey R. Villareal, Jr.:

Sir?

Hugo L. Black:

It comes from the Court and not from the Congress.

Dewey R. Villareal, Jr.:

Yes sir, yes Your Honor.

Potter Stewart:

The other way of putting it is that the only areas where you have actions for wrongful death have had to come from the legislators, not from the Courts.

Dewey R. Villareal, Jr.:

Well, that’s true.

Potter Stewart:

Whether the common law or an admiralty, isn’t that correct?

Dewey R. Villareal, Jr.:

That is true or as I understood the Harrisburg decisions is by the civil law, even the common law and (Voice Overlap).

Potter Stewart:

That’s what I say, wherever you have a wrongful death action, in the Anglo-American legal system, it’s because of legislations, isn’t that correct?

Dewey R. Villareal, Jr.:

That is correct, and I believe in every state in the union, the only way you can have an action for wrongful death is by statute.

Hugo L. Black:

But the Harrisburg rule does not come from legislation, does it?

Dewey R. Villareal, Jr.:

Well, I think it comes from the absence of legislation Your Honor.

Hugo L. Black:

But it exists and exists on the judicial creation.

Dewey R. Villareal, Jr.:

I suppose that’s correct sir.

As the Florida Supreme Court has pointed out, there seems no reason in policy, as far as Florida is concerned to prefer the widow of a longshoreman over the widow of another man, because of the fortuitous of the circumstance that her husband met his death in the hold of a ship, and not on the dock or not in the mill or not on a mine.

I think the Solicitor General and Mr. Hardee has said, well all you have got to do to straighten this out is simply to create a common law remedy for maritime purposes anyway, that says you can have an action for wrongful death.

Well, the other way of saying that is all you’ve got to do to straighten this out is in effect repeal the Death on the High Seas Act which very definitely says to the three-mile limit and no further will this federally created right come.

And in doing that, I might say, speaking of anomalies, you will be giving to the widow of this longshoreman, a right that the widow of a seaman does not have under Gillespie, which I think is the most recent pronouncement in this general area.

Byron R. White:

Because he’s got — because the right of action exclusively under the Jones Act?

Dewey R. Villareal, Jr.:

Yes Your Honor.

What really is asked for here, and this is worth thinking of too we think, is the fact that they want a fault free remedy for Mrs. Moragne.

This is not conduct on the part of the ship owner or conduct of the ship, this is a situational thing.

By definition, a species of liability without fault —

Byron R. White:

Which is something the seaman doesn’t have for death?

Dewey R. Villareal, Jr.:

Which is something the seaman doesn’t have for death if it occurs within the three miles of land.

If it occurs beyond, he does have —

Byron R. White:

On the high seas.

Dewey R. Villareal, Jr.:

The Death on the High Seas Act.

Byron R. White:

— Death on the High Seas Act.

Dewey R. Villareal, Jr.:

Yes sir.

I think that’s pretty well what I wanted to say.

Your Honors, if Tungus and Harrisburg, and the Lindgren case, Gillespie and all of those are overruled, repealed, reversed or whatever today, it will create — we submit more problems than it will solve, then it will create an uncertainty on the part of the maritime community that would be very undesirable, because none of us would know then.

If Gillespie has overruled in 1970, what’s going to happen to Moragne in 1972 or something of that sort.

Thank you.

Warren E. Burger:

Thank you Mr. Villareal.

Mr. Kerr.

David C. G. Kerr:

Mr. Chief Justice, may it please the Court.

I’m representing the respondent stevedore, Gulf Florida Terminal Corporation that was impleaded by the ship owner, by virtue of the Ryan doctrine, which has been referred by Mr. Hardee.

And before proceeding with the two or three points that I’d like to cover, I might mention parenthetically that Mr. Hardee indicated the Ryan doctrine was one newly fashioned in admiralty.

And if I remember that decision correctly, and it’s not correctly involved in the appeal here.

It was merely an extension of implied contractual warranties, which had been recognized as early as Buick versus Pearson and then restated in the restatement contracts.

And those with authorities were lined on by the Court.

In any event, at this stage of litigation, at least.

The interest of the ship owner and the stevedore are alive.

And we join therefore, in urging that the Court of Appeals below and insofar as they incorporated the opinion, the Florida Supreme Court, that Court also be affirmed by this Court.

I’d like to make just three points.

The first one is one that was I think had demonstrated by the Florida Supreme Court in its opinion, as one of the factors, practical factors that it had in mind in trying to arrive at a decision.

And that was the posture of the case as it presented itself to that point, in the first place.

David C. G. Kerr:

The Court recognized that Mrs. Moragne, the petitioner here, had available one remedy irrespective of fault already.

They took note of the fact, that she had available two of the statutory remedies, under the federal Longshoremen’s and Harbor Worker’s Compensation Act.

They also recognized that she would have an addition to that light.

The right to pursue a course of action based on negligence on the Florida wrongful death statute.

So that the sole issue really, the sole practical issue was whether or not she could also, in addition to those two pursue a cause of action based on the warranty of seaworthiness, which stated somewhat differently, and is already alluded to by Mr. Villareal, simply boils down to the fact as to what burden of proof she will have to maintain in the Trial Court.

At this stage then, the off repeated cry, which is found in the briefs of the petitioner and some of the amicus briefs also.

To the effect that it is cheaper to kill than to injure is at least premature, indeed should negligence be established under the Florida Wrongful Death Statute, it could very possibly be that she would receive as much in compensation, if not more than some other defendants, similarly situated to a land based or lands locked.

The second point, which I think was paramount in the mind of the Fifth Circuit, when they considered this problem, was that in Tungus, the decision, the majority opinions is quite clear and was followed by the parties all the way up to the Fifth Circuit, and was followed by the Fifth Circuit in adapting the decision of the Florida Supreme Court.

Because in Tungus, there are at least four points, which become eminently clear and which is stated without any equivocation by Mr. Justice Stewart.

The first is that the state wrongful death statutes do not merely give rise to a right to recover, but further establish what type of conduct is actionable.

The second proposition, which is stated with equal clarity is that when admiralty courts are called upon to apply or enforce rights, which are “routed” in state law, then they the admiralty courts must do so consonant with state substantive law, they may not, as the decision went on to say pick or choose.

The third principle, which is eminently clear in that opinion, is that Congress in enacting the Death on the High Seas Act, intended to preserve intact state sovereignty over maritime deaths within territorial waters.

And the fourth proposition, which is stated in the opinion, is that the uniformity argument, is in opposite in rights — in the case of rights given to recover in death cases.

And as already been suggested this was noted as early as the Jensen case, both in the majority opinion and in Mr. Justice Holmes’ opinion where he spoke of the specter of a lack of uniformity in referring to this particular area of the law.

This latter proposition in Tungus, we submit is probably or undoubtedly the key question that is, why is it that in this particular area of the law, with respect to the death cases, there should be a departure from so-called uniformity and there has been consistently in this Court and other Courts.

We submit that the Harrisburg, and Jensen, and Tungus, and also in particularly actually language of Mr. Justice Harlan’s dissent in Hess suggest several reasons why in this particular area of the law, uniformity has not been a compelling factor.

In the first place, actions for wrongful death being preaches of statute or inherently non-uniform, in every jurisdiction.

And it’s not very helpful here to point out that the archade in inhumane treatment, given this matter on the common law is no longer fashionable.

This of course is true but the simple fact is that every jurisdiction has its own statutory scheme.

Indeed, Congress has two separate statutory schemes, and they are themselves dissimilar.

So, perhaps uniformity or lack of uniformity for this reason is a built in situation.

Secondly, as it has been pointed out, the wrongful death statutes involved matters which are peculiarly of local concern, and in again from the Hess opinion, site such examples as pauperism and dissent and distribution, in other matters which are really almost within the state’s police power.

The third reason, why this area has perhaps been carved out of the uniformity situation, while the wrongful death statute maybe of grave concern in individual cases to certain individuals, they do not from a maritime concept involve matters of navigation and commerce.

In reading the cases, one notices, particularly in Hess and also in Jensen, that the concept of uniformity in admiralty was developed more as a maritime commercial aid, that is to give the ship owner some degree of certainty, as to what his obligations would be commercial and from the standpoint of commercial obligations, and navigational requirements and regulations, from state to state and nation to nation.

It was to give him some certainty.

Indeed, I think this is perhaps an explanation of the Hess case, where the Oregon statute in question, increased or imposed an added burden.

It was this type of uniformity from the standpoint of the ship owner’s operation that the concept we suggest or we submit was evolved to meet.

Hugo L. Black:

Mr. Kerr have you filed a brief?

I don’t find your brief here.

David C. G. Kerr:

Yes sir, I have.

Hugo L. Black:

In your own name?

David C. G. Kerr:

I believe it’s filed in my partner’s name, I was not admitted at the time.

I was admitted yesterday.

Hugo L. Black:

Now, which one is yours?

David C. G. Kerr:

It’s the brief on behalf of Gulf Florida Terminal Company respondent.

And there’s a name of George W. Ericksen and James B. McDonough Jr. Finally, it has been suggested that the wrongful death statutes are not efforts to delineate or create standards of conduct or care but rather designed merely to give a remedy, where an existing standard is breached and since this is resulting in death of course.

The final point that I would like to make in this connection is that the statutory history of the Florida Wrongful Death Statute was of some concern to the Florida Court.

It was discussed in some length in the opinion and this is consonant with the attitude, which has been demonstrated by this Court and its concern with the history of the Death on the High Seas Act and the Jones Act.

We note for instance that the Death on the High Seas Act was passed 34 years after the Harrisburg had established that there was no action for wrongful death in maritime law or fatality within the territorial waters of the state and demonstrated as it has been noted by this Court, an intent to preserve state sovereignty in this area.

There have been no Amendments to the Death on the High Seas Act, until the recently proposed Magnuson (ph) bill, which is Senate Bill 3143 and is mentioned in the briefs.

Despite the decision in Tungus in 1959, and Hess in 1960.

Similarly, with respect to the Jones Act, there has been no amendment to cover death of a seaman in state territorial waters based on unseaworthiness as a cause of action.

Despite the decision in Lindgren, which was in 1930 and the reaffirmation of that principle in Gillespie in 1964, so this Court has taken note of Congress’s inactivity or of acquiescence.

The Florida Supreme Court was faced with a very similar situation, because in Graham v. Lusi, which was decided in 1953, it was held that the Florida statute did not contemplate a cause of action based on unseaworthiness, and that was reaffirmed in Emerson v. Holloway in 1960.

So there were 15 years without corrective action by the Florida legislature, and yet as noted by the Florida Supreme Court, the Florida legislature has been sensitive to the statute, because it amend the statute to cover cause of action based on a warranty on food stuffs, etcetera.

And they did that very promptly, because a decision which held that was not covered under statute, it was 1952 in the very next session adopted an amendment, the Florida wrongful death statute, but they have not chosen to do so, despite the opinions of the Fifth Circuit, which have been in existence for some time.

We attach some significance to the sensitivity which has been demonstrated by this Court, as well as the sensitivities demonstrated by Florida Supreme Court to existing statute and existing statutory schemes.

We feel in highlights of the fact that if a change, in this particular area of the laws to come, it must come to the legislature, and not to the court.

Potter Stewart:

Of course, what the Florida legislature has done or has not done doesn’t really bear at all upon the fundamental issue here does it?

David C. G. Kerr:

No sir, I don’t believe it does.

Potter Stewart:

But Congress has done or has not done indeed it does a great — perhaps a great deal in relevance, certainly has relevance.

David C. G. Kerr:

Yes Mr. Justice Stewart.

I was merely emphasizing the Florida Supreme Court was also sensitive to a statutory history which it had and this Court has demonstrated, I believe that same sensitivity in these decisions.

Thank you very much.

Warren E. Burger:

Mr. Hardee.

Charles Hardee:

Mr. Chief Justice, may it please the Court.

There’s one area in particular that I think we want to be certain that we have cleared up.

As we understand the law at present, a seaman has a right or the heirs of a dead seaman have a right to recover for negligence within the territorial waters of the United States.

And for negligence and un-seaworthiness beyond the three-mile limit, by virtue of the Jones Act and the Death on the High Seas Act.

William J. Brennan, Jr.:

He had only the Jones Act within the three miles.

Charles Hardee:

Right.

William J. Brennan, Jr.:

And outside he has on option of Death on the High Seas Act or Jones Act?

Charles Hardee:

Yes sir, this Court has never made a decision on that, but Gilmore and Black at page 304 in their previous decision.

William J. Brennan, Jr.:

That the language in the Death on High Seas Act is a usually local —

Charles Hardee:

Just like that, New Jersey statute in Tungus, if it’s a —

William J. Brennan, Jr.:

Well, who can neglect or default –

Charles Hardee:

Act in neglect or default I think is the exact words of it or in simple language.

William J. Brennan, Jr.:

That’s broad enough to cover both negligence and unseaworthiness.

Charles Hardee:

Unseaworthiness and the federal courts, the chairman seaman against —

William J. Brennan, Jr.:

It is the straight negligence to that law.

Charles Hardee:

Yes sir and under the Death on a High Seas Act, the seaman have been allowed to recover for unseaworthiness or the heirs of the seaman have been allowed to recover for unseaworthiness in a Death Act, so —

William J. Brennan, Jr.:

It has never been squarely raised whether outside of the three-mile?

Charles Hardee:

Yes sir and —

William J. Brennan, Jr.:

Was the seaman the — whether it’s exclusive under the Jones Act?

Charles Hardee:

In Chermesino against the Vessel Judith Lee Rose, which was recorded in the federal supplement also went to Second Circuit —

William J. Brennan, Jr.:

Rather has this Court ever —

Charles Hardee:

No, Sir cert was denied in that case but this Court has never written an opinion on this question.

But Gilmore and Black have said that all of the lower court decisions are to disaffect and he assumes that this Court would withhold that.

Byron R. White:

When was the Jones Act passed?

Charles Hardee:

1920, the same year Mr. Justice White as the Death on the High Seas Act.

Byron R. White:

So, why did they needed both?

Charles Hardee:

I think as the Government suggested, the Death on the High Seas Act was intended by Congress to fill a void or a vacuum —

Potter Stewart:

For passengers primarily.

Byron R. White:

Or non-seaman.

Charles Hardee:

No sir, it includes everybody, seaman and non-seaman —

Byron R. White:

I know, but why did they needed to cover seaman?

Why do they need two for seaman?

Charles Hardee:

Well, I’m sure it wasn’t — the purpose wasn’t to cover seaman because it passed the Jones Act the same year.

Byron R. White:

Well, I guess the Death on the High Seas Act, used the word person.

Charles Hardee:

Yes sir.

Byron R. White:

Any person.

Charles Hardee:

Any person, that’s right.

William J. Brennan, Jr.:

And the Jones Act says its seaman.

Byron R. White:

If you apply the — if you apply the Death on High Seas Act, seaman where they certainly don’t have — they certainly can recover one of –- the standard for recovery will be different than in the negligence case.

Charles Hardee:

Yes sir.

And Gilmore and Black suggested the lower courts have held, they’re thinking can recover under either theory or both.

Byron R. White:

Or both.

William J. Brennan, Jr.:

Incidentally, aren’t the beneficiaries different under —

Charles Hardee:

Yes, they’re slightly different, they are.

Now, what this brings us to is this, that a seaman does not have — or the heirs of a dead seaman do not have the right to recover for unseaworthiness within the territorial waters of the United States, by a reason of Lindgren and Gellispie.

On the other hand —

Potter Stewart:

A passenger doesn’t have a right to recover for unseaworthiness wherever he is.

Charles Hardee:

Well, that’s right because the warranty doesn’t apply to — extended to apply to a vesture, unless the failure was a negligence failure to find as in seaworthiness, but —

Potter Stewart:

It’s negligence, not unseaworthiness.

Charles Hardee:

A longshoreman may recover in all the states, except Florida that it decided the question.

Both for negligence and for unseaworthiness in the territorial waters of the United States, so that a seaman for whom the doctrine of unseaworthiness was originally fashioned in the aziola has a left right by reason of the preemption problem that confronted the Court in Lindgren and Gellispie that longshoreman have.

Byron R. White:

Why?

Charles Hardee:

Because he has no — he does not have the warranty of seaworthiness does not extend to him in a death case within the territorial waters of the United States.

Byron R. White:

Well, why does it apply to a longshoreman?

Charles Hardee:

Well, under Tungus, in New Jersey, in New York.

Byron R. White:

Well I know, but why can’t the seaman take advantage of the same thing that longshoreman does?

Charles Hardee:

Because in Gillespie, the longshoreman can take advantage of it by reason of Tungus, because he sues under the State Death Act.

But in Gillespie, the Court held that the Jones Act preempted State Act.

Byron R. White:

I know, but we’re not talking about the Jones Act.

Charles Hardee:

So that’s — well, this is what I’m saying, this is why a seaman cannot recover from and/or the heirs of a seaman who has been killed, cannot recover for unseaworthiness within the territorial waters of the United States —

Byron R. White:

Because it’s an exclusive remedy for the seaman per day, it’s a Jones Act, is that it?

Charles Hardee:

Within territorial waters of the Untied States.

Byron R. White:

Within territorial waters — the Jones Act and that talks about the negligence action at law.

Charles Hardee:

Right.

Byron R. White:

And that’s exclusive.

Charles Hardee:

Yes sir, that’s correct.

Byron R. White:

In territorial waters.

Charles Hardee:

Yes sir.

Now, what we’re saying is if this Court overrules the Harrisburg, then the Court of necessity has in effect overrule Gellispie.

And the range that seaman have are the same then as the rights of longshoreman have, and we have a complete uniformity, as far as death cases are concerned.

We were not sure whether we made this clear.

Byron R. White:

Well, I wouldn’t think that overruling the Harrisburg would overrule this Court’s construction of the Jones Act, which was set to — intended to made an exclusive remedy for death.

Charles Hardee:

No sir, but if this Court overrules the Harrisburg, I assume that the Court then intends to find that there is in maritime law a remedy for wrongful death, aside from any statute.

Byron R. White:

For unseaworthiness.

Charles Hardee:

Besides many statute for whatever the rights would have been and if the man had been injured, he had — he’s heirs have the same rights if he’s killed.

Byron R. White:

Oh yes, but if the Harrisburg is overruled, would you suggest that the seaman on the high seas has any other remedy other than either a Jones Act or a Death on the High Seas Act remedy?

Charles Hardee:

No sir, but I would suggest that —

Byron R. White:

Well, that it isn’t — whether the legislature is regulated, created and regulated, the death remedy, I suppose that would be it.

Charles Hardee:

But I would suggest this that if the Harrisburg were overruled and this Court decided that there is a remedy for wrongful death in maritime law aside from the statute, that the heirs of a seaman who’s killed on territorial waters would have a right to the warranty of — or to the doctrine of unseaworthiness —

Byron R. White:

Not if the Congress intended by the Jones Act to make the remedy of the seaman — given if the seaman exclusive of all of the remedies.

Charles Hardee:

Well in any event, this is the way we see it.

William J. Brennan, Jr.:

Well in any event, that issue is not before us in this event?

Charles Hardee:

Yes sir, that is correct.

There are several —

Warren E. Burger:

While you’re talking about the consequences of overruling Harrisburg, assuming for purposes of the moment that you would prevailed and that that did happen, would then be appropriate to call for additional briefs and perhaps argument on the guidelines that are have to be provided as to who may sue and how the recovery will be divided and all the other problems?

Charles Hardee:

Yes sir, I think it would be appropriate for the Court to that or to say we’re going to generally follow the federal statutes that are on existence and —

Warren E. Burger:

Well which ones?

Charles Hardee:

Well, the Jones Act or Death on a High Seas Act, there’s not a great difference between.

Hugo L. Black:

Why would we have to do that, set out guidelines?

Charles Hardee:

I don’t — well, I don’t —

Hugo L. Black:

— not here.

Charles Hardee:

I don’t really think that you need to Mr. Justice Black.

I think we can — actually, as I mentioned in my brief, I think the Court should revert to the civil law, which says that any person who suffers damages by the act of another, the other person is obliged to repair it.

I think as you start restricting damages, then it’s going to create a lot of problems.

I just don’t see much of a problem.

Warren E. Burger:

Who’s going to define these people who are injured, that’s the whole question, isn’t it?

Is it just the wife, the surviving widow, surviving widow and minor children or adult children, brothers and sisters?

Byron R. White:

How about his creditors?

Charles Hardee:

I don’t think — is there any — I don’t think there’s any general law on damages.

It says that his creditors can come in and —

Warren E. Burger:

But aren’t all statute —

Charles Hardee:

That is always pretty generally uniform —

Byron R. White:

We would be — perhaps we would be fashioning the law on a case by case basis.

Charles Hardee:

Yes sir.

Warren E. Burger:

Or wouldn’t it be better to hold a hearing and sort of like a legislative hearing and get the whole thing thrust out all at once?

Charles Hardee:

I think you do that or —

Warren E. Burger:

Or we start down after all.

Byron R. White:

We didn’t have to that, I think it’s McAllister, I forgot the name of it, I guess that’s the name.

Charles Hardee:

I just don’t see —

Byron R. White:

Well, we did precisely this, when we had a void, we had to fill it, and we found an answer by analogy in other federal statutes.

We’ve got federal statutes here which give us an answer.

Charles Hardee:

I think it’s very simple, I don’t see the problem.

Byron R. White:

Two different answer, yes.

Charles Hardee:

That the respondents see in this case or in that regard.

Hugo L. Black:

Did the Court have a legislative hearing when it decided the Harrisburg?

Charles Hardee:

No sir, not that I know of.

It certainly didn’t.

Warren E. Burger:

They didn’t have all these acts at that time either, did they?

Charles Hardee:

No sir, and i think (Voice Overlap), by reason of the Harrisburg, which — and I think is an amicus of — the American Trial Lawyers pointed out that this Court is not just an anchorage, it also has a sale, and if you make that law, you can also repeal it, same bad law.

There’s one other thing I wanted to mention, and that is a statement made by the respondents, Mrs. Moragne has identical right, under the Florida wrongful death statute as presently decided by the Florida Supreme Court, as a seaman had.

Now, this just is not so, in fact if Florida common law negligence walked down the street and passed Jones Act negligence, they wouldn’t recognize each other.

There’s absolutely no kinship at all between the two.

Byron R. White:

(Inaudible)

Charles Hardee:

Yes sir.

Byron R. White:

(Inaudible)

Charles Hardee:

Yes sir, negligence of fellow seaman, assumption to risk, all of those things go with the Florida.

Warren E. Burger:

Thank you Mr. Hardee.

Thank you for submission gentlemen.

The case is submitted.