Norfolk Shipbuilding Drydock Corporation v. Garris – Oral Argument – April 18, 2001

Media for Norfolk Shipbuilding Drydock Corporation v. Garris

Audio Transcription for Opinion Announcement – June 04, 2001 in Norfolk Shipbuilding Drydock Corporation v. Garris

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William H. Rehnquist:

We’ll hear now argument next in 00-346, Norfolk Shipbuilding & Drydock Corporation v. Garris.

Mr. Ferrini.

James T. Ferrini:

Mr. Chief Justice, if it please the Court–

This is a decidedly local tort action which defendant respectfully submits does not invoke a federal uniformity interest; certainly it does not invoke a need for such interest so compelling as to require this Court to create or infer a wrongful death cause of action based on general negligence under circumstances where there is no claim of vessel liability.

What this case is not is a case which would involve any concept endemic to or originating in or peculiar to the sea.

We are not concerned about seamen’s responses; we are not concerned about unseaworthiness or any form of vessel liability.

William H. Rehnquist:

Mr. Ferrini, how does your case differ from the Kermarec case, the one this Court decided in 1959?

James T. Ferrini:

In Kermarec, Your Honor, which involved negligence, the negligence was negligence in the operation of a vessel, either with it navigating or the manner in which it was operated, but nothing like our case where we have a local enterprise that was operating a crane that was located on a pier over a–

William H. Rehnquist:

But it was… that case did recognize, didn’t it, a claim for negligence under general maritime law?

James T. Ferrini:

–Your Honor, I believe it did, but again, that was a case of a visitor on a vessel, and the captain of the vessel had an obligation to make sure that the stairway was in good condition, etcetera, but there you’re dealing with a concept which I think to be very akin to that in Moragne.

What we’re dealing with there is a concept of the manner in which a vessel is operated, a vessel is maintained for the safety of people on it, and that is the kind of concept which requires uniform treatment.

William H. Rehnquist:

But Moragne dealt with… by its terms at any rate… with unseaworthiness, and the question you’ve presented here is whether Moragne is a basis for also extending that doctrine to negligence as well as unseaworthiness, and yet in Kermarec it seems that we’ve already recognized a general maritime claim for negligence.

You feel this is different?

James T. Ferrini:

Your Honor, I think what we have to do is look at the concept of uniformity in the context of Article 3, Section 2 in the Federalist Papers, and think in terms of why is it that this particular body of law, as of all bodies of law there are… this substantive body of admiralty is given to this Court and to Congress, and the purpose is so that the nation speaks with one voice under circumstances where there can be an impact on our relationship with our partners in trade.

Sandra Day O’Connor:

Well, Mr. Ferrini, the question which we granted certiorari, I thought, was whether a general maritime law cause of action for wrongful death in negligence exists or should exist.

In other words, whether Moragne should extend to wrongful death action based on negligence, and I didn’t… have you raised below the question of even if it does… even if the answer is yes, it should, it shouldn’t apply here because these are all land based actors.

I mean, I would have thought that would be a logical defense to raise, but I don’t see that as part of the question.

James T. Ferrini:

The way they are–

Sandra Day O’Connor:

Suppose I say yes, Moragne extends to wrongful death based on negligence, but does it extend to totally land based action like this?

You didn’t raise that apparently.

James T. Ferrini:

–Your fourth circuit, Your Honor, quite frankly, the focus of the court and the parties was upon what does Moragne create rather than should it create an exception.

Sandra Day O’Connor:

Well, answer my question.

Suppose I say yes, Moragne, sure it extends to that.

We’ve been saying that all along in dicta, at least.

Suppose I say yes.

Is that open then to make your argument that whatever Moragne extends to, it doesn’t apply to totally land based actors like these?

Is that open?

James T. Ferrini:

I think it’s certainly open, Your Honor, because when we… when you made your decision in Moragne, the idea was not just is there a general cause of action for all circumstances for wrongful death?

No, the focus was on unseaworthiness and on maritime duties.

And by the same token, if you’re going to here decide if there is a wrongful death action created under the Moragne rationale, if that much of Moragne is even left existent, certainly I think this Court has the jurisdiction to determine under what circumstances, and just as–

Sandra Day O’Connor:

I just didn’t think you raised that here.

I mean… and we ended up with this very limited question about whether Moragne, to the extend it applies at all, extends to wrongful death actions based on negligence.

But these other questions I didn’t think were presented to us.

James T. Ferrini:

–Your Honor, with all due respect, I view our question as having been raised as whether there is a wrongful death cause of action under the circumstances with which the Court is presented.

Ruth Bader Ginsburg:

But you’re arguing… the limitation, it seems to me… death wouldn’t matter.

It would be just as land locked if it had been mere injury, and that’s the question I’d like you to answer under the law as you see it.

Suppose Mr. Garris had not been killed, he’d just been badly injured.

Would he have an action under Federal maritime law for negligence?

James T. Ferrini:

If he were on the vessel at the time, as he was, yes, he would.

This very case.

Ruth Bader Ginsburg:

Don’t change a thing.

James T. Ferrini:

He would.

Ruth Bader Ginsburg:

He would?

So, then you can’t… then you’re not making a distinction based on land locked versus something else; you’re making a distinction based on death versus injury.

James T. Ferrini:

In that respect I am, Your Honor, because this Court has created a general maritime body of law dealing with injury.

There is no two ways about that.

But the result would be different because that… the fact that the state law does not give the same remedy that that general body of law gives is not an objective of uniformity.

Ruth Bader Ginsburg:

But all of your… your discussion about state domain versus admiralty, maritime… it seems to fall apart when one recognizes that it can be the very same accident.

It’s maritime if he’s merely injured, but no maritime responsibility if he’s killed.

And that seems to be a hard line to explain to anyone, at least who’s not a lawyer.

James T. Ferrini:

Well, maritime law has been described as one of the most complex areas, and it certainly is a patchwork, and that is the historical consequence of the way things developed.

Ruth Bader Ginsburg:

But you were giving something beyond historical patchwork… you were giving some kind of rationale distinction between land locked, sea duty, Federal/state… and I could accept all that were it not for that the distinction is only death versus injury.

James T. Ferrini:

Well, I respectfully submit that to create a monistic single area of law covering both death and injury, the first thing this Court would have to do is overrule the Tungus.

It would have to overrule–

Ruth Bader Ginsburg:

Why?

Tungus just said you can take the state wrongful death claim.

Doesn’t… well, let’s take Yamaha, where we, this Court recognized that you could have a claim under the state wrongful death act.

It took that position even on the assumption… and it was only an assumption in that case… that you could also have a claim under Moragne.

James T. Ferrini:

–Yes, this Court did not decide, however.

In footnote 7 we said… this Court said we are not deciding that there is such a cause of action, but I take it a step further.

James T. Ferrini:

What this Court, I believe, was assuming was the existence of a cause of action against the manufacturer of a vessel, because that is what a jet ski has been determined to be.

And it comes back to my same concept of what is the purpose of uniformity?

And I don’t think the purpose of uniformity is that all remedies be the same in all circumstances, because that’s exactly what Your Honor said was not the objective of uniformity in the Yamaha case.

Ruth Bader Ginsburg:

But that was a case where you could have both State and Federal remedies if there was a Federal remedy, and we said if there was a Federal remedy, that wouldn’t preclude also having a state remedy.

James T. Ferrini:

I think it is very… I think what Your Honor is driving at is the possibility of concurrent existence of a Federal cause of action and a state cause of action.

Ruth Bader Ginsburg:

Yes.

James T. Ferrini:

And I point out… I hasten to point out that that is the one thing my opponent has not raised or urged, and why is that?

Because I do not believe that that is consistent with uniformity.

If uniformity… the purpose of uniformity is going to be that there is some semblance of reliability in knowing what cause of action is going to exist, once you create a dual system, then everything is up in the air… your insurance questions, your rates, everything is up in the air, because we don’t know in any individual death what law the plaintiff is going to invoke.

Ruth Bader Ginsburg:

So then your answer must be in the case of injury it’s only maritime law… it’s only Federal law, not state law.

James T. Ferrini:

I think that that is… in the case of injury, absolutely.

I agree with that.

There is this existing body of law, and I don’t think, however that that… that the fact that that is a solitary body of law is a matter of uniformity.

David H. Souter:

But regardless of whether it’s a matter of uniformity or not, if the Federal maritime law covers it in the case of injury, what is the justification for a separate regime in the case of death?

James T. Ferrini:

Well, just–

David H. Souter:

I mean, I think you… I think maybe I misunderstood your answer to several questions, but going back to the Chief Justice’s question about Kermarec, I understood you to assume that yes, there is a general maritime cause of action for negligence.

James T. Ferrini:

–Yes.

David H. Souter:

And I understood you to have said later on in the argument that if this individual had merely been injured but had not been killed, that that cause of action would apply.

And if that’s the case, the question for us I think is why should we have a separate regime when the negligence is efficient enough to cause his death?

James T. Ferrini:

First, I would like to correct an answer I gave earlier to the Chief Justice.

I forgot… I believe Kermarec was an injury case and not a death case, a totally different situation.

David H. Souter:

It was an injury case, and I think what we’re driving at is why should it be a different situation?

James T. Ferrini:

Again, it comes back to what this Court sees as the purpose of uniformity.

David H. Souter:

Well, before we get to uniformity, what about irrationality?

If we’re going to recognize the cause of action for the injured, why are we not going to recognize the cause of action when death ensues?

James T. Ferrini:

Because this Court never has, death was something that was always left to the states.

David H. Souter:

Well, I know.

If we had, we wouldn’t have this case.

The question is, why shouldn’t we?

James T. Ferrini:

Then I would ask–

David H. Souter:

What is the rational basis for distinguishing the one from the other?

James T. Ferrini:

–To me, Your Honor, because that would be result oriented.

You’re going the other way then in a situation where the State law is more favorable–

Anthony M. Kennedy:

Why is it result oriented to have symmetry in the law?

John Paul Stevens:

Well, isn’t your answer historical?

James T. Ferrini:

–It’s historical, and it’s a departure from the objective with which this Court is granted the power of uniformity.

Anthony M. Kennedy:

Well, is the Court… is the Court wrong under uniformity to have Federal admiralty law with reference to injuries?

James T. Ferrini:

I think, to be quite frank, that things developed beyond a clear view of what the mission of the Court was.

Antonin Scalia:

You don’t agree with Moragne, basically.

I mean, if… if you’re saying what you’re saying here about uniformity, you probably don’t agree with Moragne.

James T. Ferrini:

Not at all, Your Honor.

I do agree with Moragne.

Antonin Scalia:

You do agree with Moragne?

Well, I really can’t say why, having decided Moragne, we want to draw the line between… if indeed we didn’t already cross that bridge in Moragne… I don’t know why we would want to draw a distinction between injury and death.

James T. Ferrini:

Because this Court has recognized time and time again that you must treat everybody the same, no matter where they are on the sea.

And when you’re dealing with unseaworthiness, that vessel had better be operational regardless of whether it’s in territorial waters or in the Sea of Japan or next door, because everybody has… let’s put it this way, I think uniformity… the concept of uniformity is very similar to the concept of the diversity of citizenship, which the purpose of which is fair treatment of foreigners.

And regardless if you’re dealing with a seaman who gets in, in Italy and he comes over here and he’s injured over here, he has to be treated the same.

But when you’re dealing in a case like this with a harbor worker, and you’re dealing with local businesses like my client that’s named after Norfolk, and it’s in the… there would have been no, talk about abnormalities or, there would be no recovery.

We wouldn’t even be here if this particular crane had struck him while he was doing preparatory work on the dock.

Never… not… there is no such thing as perfect symmetry; you’ll never reach that because–

David H. Souter:

Then we should go back and overrule Kermarec.

James T. Ferrini:

–Not at all, Your Honor.

I think that’s too far developed to do that.

I think that there, the–

David H. Souter:

In other words it’s wrong, but–

James T. Ferrini:

–general maritime–

David H. Souter:

–it’s clearly established?

James T. Ferrini:

–Clearly established.

And I think that’s the purpose of the Talbot case my opponent relies on.

He says, well–

Ruth Bader Ginsburg:

You said… before you go on to Talbot, you said that symmetry and treating like situations alike… this survivor, this mother… what was the recovery that she got?

She got a worker’s compensation recovery?

James T. Ferrini:

–Yes.

Ruth Bader Ginsburg:

And that was what?

James T. Ferrini:

I am told… I have no authority on this, and I don’t believe it’s in the record… I am told what she got was the funeral expenses, which is what Congress decided she should get since there was no dependency.

Ruth Bader Ginsburg:

That was up to three thousand dollars?

James T. Ferrini:

I have no idea, Your Honor.

Ruth Bader Ginsburg:

And yet if her son had survived, there would have been a large recovery, and you say that that was okay, to have negligence under maritime law.

Why isn’t there a gross inequality in those two situations?

James T. Ferrini:

Because I think what Your Honor is looking at is the particular jurisdiction.

If this had happened in New York Harbor where the law is different, there would be a substantial recovery.

But the fourth circuit got it wrong when the fourth circuit said that it’s happenstance that the man was killed in Norfolk Harbor rather than New York Harbor.

He was in Norfolk Harbor because that’s where he lived and that’s where he worked, and that’s where he died.

And the state should be able to provide for their interest in deciding the familial issues of wrongful death, who should recover, and how much they should recover.

It should be able to decide that what a statutory employer will get as a quid pro quo for giving the benefits.

And I would point out there is a very little difference between the LHWCA and the Virginia wrongful death statute.

Both of them have the concept of a statutory employer.

Both of them have the concept that that statutory employer is immune from common law or statutory actions.

The only difference is that in Virginia they guarantee the money will be there by saying if you hire somebody to do the job, you have to go out and get insurance to make sure that comp benefit is there, where the Federal statute says you only have to go out and get that insurance if the person you’ve hired hasn’t fulfilled his responsibility.

And that’s kind of an iffy thing, because he can show you a certificate of insurance and it turns out to be that there’s no coverage for one reason or another.

All I’m saying is that this is a very limited exception… a very limited case… where this man’s descendants or his widow… his mother… will have no recovery, but it’s not the ordinary case.

And I don’t think the law can change based upon the happenstance that we don’t like the result for this particular plaintiff because in the next case you’re going to be very happy with the results for the particular plaintiff.

Ruth Bader Ginsburg:

I think the question is whether it’s, the line between injury and death is a valid one.

James T. Ferrini:

Well, I think it is, because you are then dealing with familial issues which the State has a strong interest in.

Who should recover in the event of death?

What should their relationship be to the decedent?

What should be the degree of dependency, if any?

These have always been left to the State.

Ruth Bader Ginsburg:

Why couldn’t you pick that… why couldn’t you pick up that part from State law?

James T. Ferrini:

Well, that’s kind of a pick and choose thing, Your Honor.

James T. Ferrini:

I think that the law has to be consistent… either you apply State law or you don’t.

Ruth Bader Ginsburg:

Doesn’t Federal law do that in other instances, not have an independent Federal law of who will be the survivors in the case of a Federal tort?

James T. Ferrini:

I can’t comment on the full area, but certainly the Tungus case said you take state law… if you’re taking state law, you take state law as it is with the all the parts of it.

Ruth Bader Ginsburg:

Yes, but I wasn’t asking you, the state law in Tungus was the liability as well as who picks it up.

But now where… you seem to be suggesting that if you had Federal law, you would also have to invent who the survivors are for purposes of wrongful death, and I’m suggesting that there is no reason why you couldn’t pick that up from state law.

James T. Ferrini:

I don’t see that as consistent with uniformity but again, Your Honor, what I think the Court is doing is proposing to fashion a remedy to benefit an individual in very limited circumstances where the bottom line is that the state application of state law, consistent with this Court’s majority concurring and dissenting opinions in American Dredging, has no impact on commerce.

I think we’re losing sight of the objective in order to fashion a remedy.

I think that… I would suggest that–

Ruth Bader Ginsburg:

Again, if you’re going to talk about impact on commerce, there really can’t be any difference between injury and death, so I think once you concede that the injury would be covered by Federal law, you can’t make an argument about the Commerce Clause that wouldn’t apply to both.

James T. Ferrini:

–I do not believe that everything this Court has developed in the way of substantive law for injury is necessarily something that is required for uniformity in the sense of the constitutional basis of it, but rather a symmetry.

And that’s just the way things developed, but let me point out in Pope & Talbot, my opponent points out that in that particular case, look, they refused to apply the state contributory rule because there was a Federal rule of comparative negligence.

Why?

That wasn’t… this Court didn’t say that that was because of uniformity concerns; the Court did so saying, look, we have considered… we’ve already created a body of law.

In that existing body of law we created certain rights, and those rights now exist.

And if a right exists by virtue of a Congressional action or by a decision of this Court, a state can’t take it away.

So that body of law is not representative as a whole of a need for uniformity in all aspects of law.

I respectfully submit that what I’m offering this Court is a predictability, that we look as Professor Fore suggests to our national interests… that we look as this Court suggested in American Dredging to the impairment of commerce or to the Kamen court where the Court of Appeals of New York looked to whether state law had extraterritorial effect, and if it didn’t have that kind of effect, then there was no need for preemption.

There was no uniformity concern.

Sandra Day O’Connor:

It just seems to me that the language in Moragne itself points in the direction of extending liability to negligence if it can be characterized as a violation of a maritime duty.

But where our Court has never really spoken to the question is whether that kind of liability extends beyond the owners of the vessels to people who are land based, and I think that’s where there is more of a question, although it certainly wasn’t raised here very clearly.

If it were a vessel owner who was the defendant here, would you take the same position that you’re taking today?

James T. Ferrini:

My position is if it’s a vessel owner, I can perfectly understand adoption or creation of a cause of action for the sake of uniformity.

I would point out to Your Honor that my opponent’s main argument I view as saying this Court in Moragne talked of maritime duties.

What is a maritime duty?

If a man comes on a vessel and pulls a gun on another man, he’s violated duties but not maritime duties.

Negligence as an abstract concept is not a maritime duty.

The maritime duty I submit has to do with the manner in which the vessel is operated, and this Court has never said anything to the contrary.

I point out that Kermarec and Leathers, the two cases that are said to refer to negligence as a maritime duty or a breach of a maritime duty, they dealt with vessel liability.

Or the East River case which is stated by my opponent to refer to products liability as a breach of a maritime duty.

That was that the product there was the main propulsion unit for the vessel.

James T. Ferrini:

We keep coming back to the same thing.

So that you treat people the same no matter where they are on the sea.

Mr. Ferrini, you’re trying to make now something special about ships and their navigation, and in part that’s true, but let’s just take your… a slip and fall on a deck on a banana peel.

Ruth Bader Ginsburg:

That could have well happened on the sidewalk, but it happened to happen on the ship.

There’s nothing about that conduct of leaving the banana peel that’s maritime, or do you see something that–

James T. Ferrini:

Well, I don’t… I don’t purport to give you an answer for every case that will arise in the future, but I think that if that banana peel was dropped by a crew member, you could have a breach of a maritime duty, but if it was dropped by another visitor and the crew had no chance to clean it up, that that’s negligence but that is not a breach of a maritime duty.

I think you keep, I keep coming back to the concept of what is it that we’re trying to achieve?

And what we’re trying to achieve is a uniform treatment of foreigners much like the diversity concept.

John Paul Stevens:

–Mr. Ferrini, can I ask you just what your response is to one of the arguments made in the concurring opinion below, namely that it would not have been necessary to overrule Harrisburg unless it was decided to recognize a cause of action for negligence.

James T. Ferrini:

I think Harrisburg had to be overruled in order to recognize that it was the Harrisburg’s–

John Paul Stevens:

But that was just a negligence case.

James T. Ferrini:

–I’m sorry?

John Paul Stevens:

Wasn’t the Harrisburg just a negligence case?

James T. Ferrini:

Negligent vessel.

John Paul Stevens:

Yes, but it was negligence as opposed to seaworthiness.

James T. Ferrini:

That’s right.

But it, again it dealt with a negligent vessel, it did not deal with general negligence, and the rule was nothing survives.

After death, no personal action survives.

So that had to be overruled or it was impossible for Moragne to exist.

John Paul Stevens:

Well, it could have been distinguished.

James T. Ferrini:

But Moragne–

John Paul Stevens:

It could have been distinguished as Judge Hall pointed out by saying that that’s limited to, this is not a negligence case, therefore the Harrisburg is not squarely on point.

James T. Ferrini:

–Not if the Court wanted to do as it did and broadly state we’re talking about unseaworthiness and breach of maritime duties, because the breach of maritime duty was at issue in the Harrisburg, since it was vessel liability.

I would like to reserve whatever I have left.

William H. Rehnquist:

Very well, Mr. Ferrini.

James T. Ferrini:

Thank you.

William H. Rehnquist:

Mr. O’Donnell, we’ll hear from you.

Patrick H. O’Donnell:

Mr. Chief Justice, and may it please the Court–

I would like to first address one of the points that Mr. Ferrini just raised, and that Justice O’Connor asked about, and that was whether this new sub species of maritime negligence law which has been dubbed vessel negligence was raised below.

In fact it was not; it was raised for the first time in the reply brief, and we believe there are a number of reasons not to, for this Court to adopt yet another difficult distinction within the very complex law of maritime law.

William H. Rehnquist:

Is this the same thing that Justice O’Connor inquired of your opponent about there being all land based actors here?

Patrick H. O’Donnell:

Well–

William H. Rehnquist:

Are those two different things, or is it basically a rephrasing of the same thing?

Patrick H. O’Donnell:

–Well, we would not contend… we would not agree with the characterization that… it is true that Mr. Garris did not live aboard the ship.

William H. Rehnquist:

He was a longshoreman, wasn’t he?

Patrick H. O’Donnell:

He was a ship repair worker.

William H. Rehnquist:

A ship repair worker who did not live on the ship.

Patrick H. O’Donnell:

That is correct.

And… but the argument–

Sandra Day O’Connor:

And the employer was a land based contractor who did work on ships at dock to repair them.

Patrick H. O’Donnell:

–Yes, Justice O’Connor.

He–

Sandra Day O’Connor:

Yes.

Not a vessel owner.

Patrick H. O’Donnell:

–No.

Sandra Day O’Connor:

No.

Patrick H. O’Donnell:

The defendant was a subcontractor to Norshipco that was hired to sandblast the hulls inside the vessel, and Mr. Garris was asked to assist in that effort.

And in doing so, he was asked to climb up to some scaffolding whereupon he was knocked off, fell, and died aboard the ship.

But the argument that it was mere happenstance that he died aboard the ship I think ignores the very reason he was aboard the ship.

It wasn’t as in Kermarec.

Kermarec, they had a social visitor aboard the ship.

Mr. Ferrini acknowledges that’s maritime in nature.

It’s hard to imagine a more maritime activity than what Mr. Garris himself was engaged in.

William H. Rehnquist:

But Kermarec, Kermarec sued the vessel owner.

Patrick H. O’Donnell:

Yes, sir.

William H. Rehnquist:

And here you did not sue the vessel owner.

Patrick H. O’Donnell:

No.

We did not have a… we did not believe we had a negligence claim against the vessel owner, as the enterprise was being controlled by Norshipco.

William H. Rehnquist:

So the case is therefore distinct in, factually anyway, from Kermarec.

Patrick H. O’Donnell:

It is.

Patrick H. O’Donnell:

I would say it is very close, however, to the Robins Dry Dock case in which the lawsuit there was not against the shipowner but against the shipyard, and that was also a negligence case and achieved the same result.

In other words, there the court refused to apply the State law in deference to the Federal law in general maritime, and it did so, we contend, out of uniformity concerns.

John Paul Stevens:

And Kermarec… negligence under Federal admiralty law was not discussed, I take it, because there was apparently parallel to the state negligence law which was adequate?

Is that the way you read Kermarec?

Patrick H. O’Donnell:

I read Kermarec as suggesting that the law was different; in fact, that there was a contributory negligence law under the State statute in that under maritime law, comparative negligence would apply.

And also Kermarec had another issue in that–

Anthony M. Kennedy:

Well, I thought Kermarec was an unseaworthiness case, and that this Court did not address whether there was a Federal admiralty cause of action based on negligence.

Am I wrong about that?

Patrick H. O’Donnell:

–I think that’s Moragne, Your Honor.

Kermarec actually dealt with negligence precisely.

Anthony M. Kennedy:

Well, there was negligence under New Jersey law–

William H. Rehnquist:

–New York.

Anthony M. Kennedy:

Well, I’ll read it again.

You… what was the holding of Kermarec–

Patrick H. O’Donnell:

Kermarec–

Anthony M. Kennedy:

–with reference… Kermarec with reference to Federal admiralty law of negligence in a wrongful death case.

Patrick H. O’Donnell:

–That in Kermarec the law regarding comparative negligence would be the rule rather than state contrib… contributory negligence rule, and also that the State rules regarding different duties owed to invitees, licensees and the other classifications would not apply in maritime law because maritime law had rejected those types of distinctions in favor of a uniform reasonable care under the circumstances test.

So that in that case I would disagree.

I would think that Kermarec can be read and should be read as a vindication of maritime uniformity principles in almost all respects.

It does involve an injury; it is distinguishable only because it’s an injury case, but I would submit that that distinction is not a distinction that the Court should maintain.

William H. Rehnquist:

And the Court, as I understand in Kermarec, the Court there said that because the guy was a visitor, there was no duty of seaworthiness owed to him.

Patrick H. O’Donnell:

Correct.

There would be no duty of seaworthiness owed to a–

William H. Rehnquist:

Casual visitor.

Patrick H. O’Donnell:

–Social visitor is what the Court described him as.

The injury/death distinction as Justice Stevens correctly points out is historical, but it is historical only because it derived out of the Harrisburg.

Prior to the Harrisburg, and if the Harrisburg itself records those prior decisions, and there are some that say there is no wrongful death, but on balance the clear majority of the opinions that the Harrisburg reviews finds a negligence based maritime cause of action for wrongful death, and we would submit that once the Harrisburg was overturned in Moragne, the entire historical underpinnings of that distinction, which we submit was not a good distinction to begin with, but even the historical basis for it was a ruse, and so now that distinction is floating in air.

There is no historical or logical–

Sandra Day O’Connor:

But we have… we have talked in terms of general maritime duties, I guess, which could include negligence, a duty not to be negligent.

Patrick H. O’Donnell:

–Absolutely, and the Court–

Sandra Day O’Connor:

But I’m not sure that it extends to all land based actors.

Patrick H. O’Donnell:

–Well, I… I would agree.

I don’t think it may extend to all land based actors but, in this instance, Mr. Garris was involved in a very fundamental aspect of maritime activity, and that is the repairing of vessels… the unseaworthy–

David H. Souter:

And that was the case in Robins too, wasn’t it?

Patrick H. O’Donnell:

–Yes.

David H. Souter:

You cited Robins a moment ago.

Is there any… is there any… with respect to the concept of land based, is there any distinction between Robins and this?

Patrick H. O’Donnell:

I would submit not.

He was involved in the same activity, and he was injured in that activity, and the Court recognized he had a general maritime cause of action for negligence.

So we do rely on Robins, and the only distinction I can find in that is that it was an injury versus a death case.

Ruth Bader Ginsburg:

Well, why isn’t that something that the Court should now respect, even if it made no sense but it was… it emerges from the English common law, that there was no common law action for wrongful death, and now we have DOHSA and we have the possibility of picking up State wrongful death acts for watery deaths. Why couldn’t one say, even if it made no sense, this distinction.

between surviving injury and death?

Now the field is so occupied by statutes… State wrongful death statutes, DOHSA for death on the high seas… that the Court ought to stay out of it and leave it all to legislation.

Patrick H. O’Donnell:

I think what exists under a view that Moragne does not extend to negligence based wrongful death is a gap in the Federal remedy scheme in which the maritime duty to not negligently kill someone has no corresponding Federal maritime remedy unless Moragne is interpreted as extending such a remedy.

William H. Rehnquist:

Well, when you say gap, that just means a situation unfavorable to the plaintiff in your view, I take it.

Patrick H. O’Donnell:

Well, it’s a gap in that the Federal law does not permit it, but in this instance and in other instances, what it will mean is that State law, State law which incorporate principles which are directly contrary to Federal maritime principles would govern, and they would deny the remedy, and we would submit that in that instance–

William H. Rehnquist:

Well, you say they’re directly contrary.

What do you mean by that?

Patrick H. O’Donnell:

–Well, for instance in Virginia, the Virginia statutory employer statute says that in these circumstances, Norshipco would be immune from suit whereas the Federal statutory employer statute would reach the exact opposite result.

In addition, you have the State of Virginia having a contributory negligence bar–

William H. Rehnquist:

So the State of Virginia law grants more immunity to employers… what, subcontractors… than the Federal law does?

Because certainly a longshoreman can’t sue his employer under the Federal–

Patrick H. O’Donnell:

–That’s correct.

And he was not employed by Norshipco; he was employed by a subcontractor.

But under Federal law, unless Norshipco actually paid the benefits, they do not receive statutory–

William H. Rehnquist:

–Okay, so you have two different systems, and you know, if you’re out at sea there’s no doubt the maritime law.

But why when you’ve got a situation that’s all land based actors, why shouldn’t the State system prevail?

Patrick H. O’Donnell:

–Well, we would submit that first of all there’s a presumption that where Federal maritime jurisdiction exists, Federal maritime law ought to apply.

We would also submit that in this very instance, the Robins case would hold that maritime law ought to apply.

We would also say that the need for uniformity in the administration of maritime law counsels in favor of applying the Federal standards.

William H. Rehnquist:

Well, but you get to a point, certainly, where you have to pick up some parts of the various state regimes.

Patrick H. O’Donnell:

Well, if this Court recognizes a Moragne negligence based wrongful death action, I’m not sure that’s entirely true.

I think what would happen in those instances… and what we are asking for is just that… we are not, as Mr. Ferrini suggested, arguing that all State law should be preempted within State territorial waters.

William H. Rehnquist:

Well, if you’re going to get a wrongful death cause of action, you’re going to have to turn to State law to decide who the beneficiaries are, are you not?

Patrick H. O’Donnell:

Well, perhaps with regard to… to simply deciding the beneficiaries, but not the liability.

William H. Rehnquist:

Well, then, you say simply deciding.

You couldn’t proceed without some scheme for deciding who the beneficiaries are, could you?

Patrick H. O’Donnell:

Not in ultimately giving out the remedies.

That’s true.

But the fundamental liability standards, we submit, must be governed by Federal maritime law to preserve uniformity, and for that reason we think that applying the State standard would get the Court right, and the lower courts, right back into the Tungus mess, whereas the Court is, the lower courts now have to analyze every aspect of the State law in order to determine which it would apply.

I know, the Tungus would say you apply everything at whole, but on remand in the Yamaha case, the third circuit said we’re not going to… I don’t think they overruled the Tungus, but they suggested another course of activity was to apply the Federal liability standards, and that same course was filed in the Amtrak–

Ruth Bader Ginsburg:

But that’s the… the question we were given in Yamaha was does the State wrongful death act apply?

There was nothing about… there wasn’t a claim before us under Federal maritime law.

The question was whether you could apply the State wrongful death act.

I take it what you’re telling us is that Mr. Ferrini was right when he said if you prevail, that there is a Federal maritime law claim for wrongful death, then there is no longer the claim that this Court thought was a viable one in Yamaha, that is, a wholly State based wrongful death claim.

Patrick H. O’Donnell:

–We are… that is not our fight, Your Honor.

We are asking for the Moragne… we are not saying that if you adopt the Moragne, you necessarily preempt state–

Ruth Bader Ginsburg:

What I am asking you is a precedent out there you are urging that we hold for you?

It would be, I think, quite inexplicable if we didn’t say where Yamaha stands in light of the holding in your favor if we were to rule for you.

Patrick H. O’Donnell:

–We don’t think a ruling recognizing a Moragne negligence based cause of action would infringe on Yamaha.

Yamaha–

Sandra Day O’Connor:

Well, Mr. O’Donnell, didn’t Robins, which you rely on, go on to say that if it is a maritime suit here, then it could not be enlarged or impaired by State statute or State law?

It indicated that was it.

Then you just look to the maritime.

Patrick H. O’Donnell:

–Yes, Your Honor.

The maritime action itself… what I thought I was being asked by Justice Ginsburg was whether or not that precluded the application of State wrongful death statutes.

I would submit that–

Sandra Day O’Connor:

In addition to.

Patrick H. O’Donnell:

–In addition to.

The Court in Yamaha used the term seafarer to describe those individuals who may not have access to State wrongful death statutes.

Patrick H. O’Donnell:

It’s unclear from my reading of Yamaha just who is and who isn’t a seafarer.

Stephen G. Breyer:

So you want to give them both, in other words.

What do you think about Mr. Ferrini’s argument, as I understand it, going back to the question that you were discussing with the Chief Justice?

His point I think, if I understood it, is that look, I agree… imagining he’s making this argument… I agree with you if a seaman is involved, you need a uniform admiralty law.

If the seaworthiness of the vessel is involved, you need a uniform admiralty law.

If a sea owner is involved, you need a uniform admiralty law.

But in the absence of those things, the word uniformity has no reason.

And, moreover, here we’re talking about a local person in a harbor, local circumstances, and so local law should prevail.

And when you come back and say, well, isn’t that equally true of injury, he says yes.

But even if we’ve decided the opposite in respect to injury, let’s not make matters worse.

And here he would say… I guess, or I thought I heard him say… that this particular wrongful death statute is more local yet, because it is not the injured person’s personal statute.

It belongs to the survivors.

They’re the ones who are suing, and they are local people, and that’s unlike a personal injury action.

And, indeed, you in fact have to pick up State law anyway, I’ve heard, in order to find out who those survivors are who are going to be able to sue.

So he says this is even more local than the injury action and, besides, don’t make matters worse.

Now, I’m trying to paraphrase; I don’t know if I’ve got it right, but if… I’m trying to make it as strong as I can in my mind.

Now I want to hear your response.

Patrick H. O’Donnell:

Well, my response comes back to the activity that he was involved in, and it not being a purely local–

Stephen G. Breyer:

No, no, it’s absolutely on a ship.

It’s definitely an activity on a ship, but so what?

I mean, what’s the interest there?

I mean, anything on a ship then you win by definition, but his point is, you see, that just being on a ship is not enough.

Patrick H. O’Donnell:

–Well, he used the example where someone other than a ship… a crew member drops the banana peel, and that would not be a maritime matter.

Here Your Honor has mentioned unseaworthiness, and vessel maintenance, vessel repair goes to the very heart of what I–

Stephen G. Breyer:

I was really looking for an answer in terms of precedent, or in terms of what Justice Ginsburg is talking about, or whether or not Moragne in fact did involve… did it?

a question of personal injury for negligence as applied to a longshoreman, or did it?

I’m really looking for an answer.

Is he really asking us to back up too far, or what is the precedent on it?

Did Moragne decide this question for a longshoreman as to injury?

Patrick H. O’Donnell:

–We–

Stephen G. Breyer:

Well, you say what you want to say.

I want to hear your answer.

Patrick H. O’Donnell:

–We contend that Moragne, when it referenced maritime duties in the plural, it meant to incorporate and encompass negligence based wrongful death actions.

And we think–

Ruth Bader Ginsburg:

But that case itself involved an unseaworthiness claim, not a negligence claim.

Patrick H. O’Donnell:

–Absolutely, Justice Ginsburg.

It dealt with an unseaworthiness claim.

That is correct.

Sandra Day O’Connor:

And a vessel owner.

Patrick H. O’Donnell:

And a vessel owner.

Sandra Day O’Connor:

Right.

Patrick H. O’Donnell:

And I’ll keep coming back to the Robins Dry Dock where again that distinction was not made.

The vessel… a special subcategory called vessel negligence was not relied on.

Ruth Bader Ginsburg:

Mr. O’Donnell, I hope that you will complete the answer to my question which I think you hadn’t yet answered.

I didn’t think your answer was as clear as the one Justice Breyer gave you which was… yeah, you have, your argument is now that we take away the limitations that Moragne is just unseaworthiness; it applies to negligence as well; then we have Yamaha which means that anyone in the situation of Mr. Garris or his survivors has a choice between the state remedy or the Federal remedy.

It’s not one or the other.

That’s what Justice Breyer said was your answer, but I’m not sure it was.

Patrick H. O’Donnell:

Well, I’m not arguing that if you recognize a negligence based Moragne cause of action, you have swept the field of state wrongful death statutes.

That is not our position.

Our position is the elements of uniformity and to fill this… the fact that there is a Federal duty with no corresponding remedy, those issues counsel in favor of recognizing a Moragne negligence action, but it doesn’t.

We are not arguing here preemption.

Stephen G. Breyer:

I know you’re not arguing it, but it’s something I have to worry about.

To be specific, I would worry if in addition to all of Mr. Ferrini’s arguments, my deciding you are right in this case means I’ve wiped out all the wrongful death actions belonging to States that somebody who was injured on a ship might otherwise have.

I would worry about that.

So I would like you to either get rid of my worry or confirm my worry.

Patrick H. O’Donnell:

Well, I’m not sure where your worry springs from.

Stephen G. Breyer:

It springs from that just… maybe I may not have understood it, but I thought what we were talking about was the possibility that if you have a Federal action in the area, you no longer can have the State action.

So maybe it’s so far off you’re just going to dispose of my worry in a sentence, so do it.

Patrick H. O’Donnell:

No, Your Honor.

But the state law may continue to apply.

Patrick H. O’Donnell:

What you’ve done by creating the Moragne cause of action is you’ve gotten rid of that problem that the lower courts had to deal with in which they were trying to determine what aspects of State law they could apply, and which were violative of Federal maritime principles.

I think you’ve actually cleaned up a problem as opposed to creating a new one.

I don’t see the answer to our request being incompatible with the continuation of State wrongful death statutes in territorial waters.

Anthony M. Kennedy:

What was the reason why there was no State law avenue of recovery here?

Because of the Longshore Harbor Workers’ Compensation Act being the exclusive remedy by reason of Virginia law, or am I wrong about that?

Patrick H. O’Donnell:

No.

Our state wrongful death action would have been met with the application of the Virginia statutory employer bar.

Anthony M. Kennedy:

But did the statutory employer bar in turn depend on the Longshore Harbor Workers’ Compensation Act coverage, or some other–

Patrick H. O’Donnell:

No, there are two separate statutory employer bars… the Virginia and then the Longshoremen.

Anthony M. Kennedy:

–Yes.

Patrick H. O’Donnell:

And if we… and the Fourth Circuit in Alumax decided that if you’re bringing your action under the State wrongful death statute, then the State statutory employer bar applies, and you are… and we would have been out of court.

Anthony M. Kennedy:

Why did the employer… the state employer bar apply in this case?

Patrick H. O’Donnell:

Why would it apply in the Federal case?

Anthony M. Kennedy:

Yeah.

Why was the employer entitled to invoke the bar under Virginia law?

Patrick H. O’Donnell:

Because that, unlike the Longshoremen Harbor Worker bar, the… Norshipco… there’s no prohibition on Norshipco using that bar even though it didn’t actually pay any benefits.

It says if you’re in the–

Anthony M. Kennedy:

Were the benefits paid under the Longshore Act?

Patrick H. O’Donnell:

–Yes.

Anthony M. Kennedy:

So there is, then, a Federal act which basically ultimately is the reason for there being no liability here.

There is a Virginia State bar, but the Virginia State bar depends upon payment of premiums by the subsidiary corporation under the Longshore Harbor Workers’ Compensation Act.

Patrick H. O’Donnell:

No.

The Virginia act has no… has no corresponding limit that limits it because you paid the benefits.

Anthony M. Kennedy:

But you paid the benefits under a Federal act, or am I wrong?

Patrick H. O’Donnell:

They were paid under a Federal act.

Anthony M. Kennedy:

All right.

So ultimately it is a Federal act that is the reason you have a bar.

Patrick H. O’Donnell:

No, because the Virginia bar would apply whether or not he received funeral benefits under the Federal act.

Anthony M. Kennedy:

Well, I’ll think about it.

I still think ultimately… I’m trying to help you.

Anthony M. Kennedy:

I think that ultimately there’s… it’s, ultimately it’s the existence of the Longshore Harbor Workers’ Compensation Act, and the benefits payments that were made by the subsidiary, that invokes the bar, or am I wrong about that?

Patrick H. O’Donnell:

That would not… that’s… I believe that’s irrelevant to the application of the state bar.

It’s only relevant to the application of the Longshoremen Harbor Worker Act Bar.

In other words, if you… if you actually pay the benefits under the Longshoremen bar, you receive the immunity.

Under the state there’s no similar limitation.

Sandra Day O’Connor:

Well, what is the State bar?

Explain it.

What is the State law in Virginia?

Patrick H. O’Donnell:

If you are the… if you’re in the status of prime contractor and your subcontractor has employees who are injured, you are considered their statutory employer under Virginia law.

It’s much… there’s no exception to it as there is under–

Anthony M. Kennedy:

And because your subsidiary paid benefits under the… and is covered by the Federal… by the Longshore Harbor Workers’ Compensation Act, you are entitled to invoke the State bar.

Patrick H. O’Donnell:

–Where I’m having trouble, Justice Kennedy, is that–

Anthony M. Kennedy:

You may be having trouble because I’m wrong, but I… I don’t know… I don’t know what it is that the subsidiary employer did that it operated to allow the parent to invoke the state bar, if it were not payment of Longshore Harbor Workers’ Compensation benefits.

Patrick H. O’Donnell:

–What I’m… what I’m… what I’m saying is that the payment… let’s assume there was no payments made to anyone.

Norshipco would still have in the State wrongful death action… they fall under the definition of statutory employer and would therefore be able to claim that defense.

The fact that they were paid under the Federal statute doesn’t affect that defense in State law, in the state wrongful death action.

Anthony M. Kennedy:

All right.

Thank you.

David H. Souter:

Would you go back to Robins.

You pointed out in your argument a second ago that the Court in Robins had made the remark that negligence in the course of this kind of repair work is not a matter of purely local concern, that it was properly maritime.

Has there been any litigation… and sorry, and what I further assume to be the case is that the cause of action that Robins recognized if it were to have a counterpart, it had a parallel in state law because Robins didn’t say it was a purely maritime issue.

And so Robins, as I understand it, left State law wherever it might be, and I presume there would have been a State law negligence action as well.

Two questions, Am I right in that assumption that there was a State law negligence action parallel to what we recognized in Robins?

And if the answer is yes, can you tell me whether there has been any litigation in the ensuing sixty years, I guess, on the issue of whether the state law action may continue to be recognized in the light of the fact that there is also a Federal cause of action?

Patrick H. O’Donnell:

Well, it’s… I would concede it’s a confusing area.

I don’t know if there is any case that… first of all, with regard to Robins, I don’t read Robins as preempting State wrongful death statutes generally.

There is language in there about where State law contradicts some fundamental feature of admiralty law, and so there is some of that.

But I don’t think the court went on… the court concluded the Federal maritime law cause of action was to be the action because Federal maritime jurisdiction existed.

David H. Souter:

Well, that was the only claim before it, wasn’t it, in Robins?

Patrick H. O’Donnell:

Yes, yes.

David H. Souter:

Okay.

So they said we recognize the federal maritime claim.

Now, is it clear that there was a parallel State law claim, and there was some kind of a State law claim for negligence which could also have been brought on the same facts.

Is that correct?

Patrick H. O’Donnell:

Yes, and that’s why the court discussed the difference between the two laws.

David H. Souter:

All right.

And any litigation subsequent to that as to whether the state law claim survives in whole or in part the recognition in Robins of the maritime claim.

Patrick H. O’Donnell:

Well, in the Amtrak train crash litigation, the Court goes through an analysis in which it looks at the Federal… the aspects and characteristics of the state wrongful death statute and concludes that because there’s maritime jurisdiction, those rules cannot apply because they’re directly contrary–

David H. Souter:

Conflict case, then.

Patrick H. O’Donnell:

–Yeah, it’s a conflict case.

David H. Souter:

Okay.

In a non conflict situation, in other words, a kind of field preemption situation, you know, in a common law context, any litigation on that?

Patrick H. O’Donnell:

I’m not aware of anything except… and as Justice Ginsburg points out, Yamaha did not precisely deal with this issue of negligence, but in Yamaha, I don’t read any suggestion that the existence of the Moragne cause of action somehow… the existence… the Court seems to assume the existence of a negligence Moragne based cause of action, else there’s nothing for… there’s nothing there to displace the state law to begin with.

So there’s an implicit assumption in Yamaha that it did.

Ruth Bader Ginsburg:

The Yamaha said if, assuming there were a Federal claim, would that preclude a State claim, and the answer was no, it wouldn’t.

But that’s why I was surprised at your answer is that, well, maybe it would.

Patrick H. O’Donnell:

Well, I meant to only talk in terms of where you have these conflicts with the Federal law that currently exists.

My position is–

Stephen G. Breyer:

Well, all right.

There certainly would be a claim in any state that was more generous than Federal law that there was a conflict, so it looks like my concern… you win your case in this situation where the laws–

William H. Rehnquist:

Thank you, Mr. O’Donnell.

The case is submitted.