Rodrigue v. Aetna Casualty & Surety Company

PETITIONER:Rodrigue
RESPONDENT:Aetna Casualty & Surety Company
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 436
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 395 US 352 (1969)
ARGUED: Feb 25, 1969
DECIDED: Jun 09, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – February 25, 1969 in Rodrigue v. Aetna Casualty & Surety Company

Earl Warren:

Number 436, Owlet Budrow Rodrigue, et al, petitioners, versus Aetna Casualty & Surety Co. et al.

Philip E. Henderson:

May I please —

Earl Warren:

Mr. Henderson.

Philip E. Henderson:

Thank you.

Mr. Chief Justice and may it please the Court.

I’m Philip Henderson from Homer, Louisiana.

In this case, there is presented the issue of whether the Death on the High Seas Act is the exclusive remedy for wrongful death occurring to one of the workers on the artificial islands, fixed platforms, in the Outer Continental Shelf, off of the Coast of Louisiana in this case.

Actually, before the Court today are two cases that came here on a joint petition for a writ of certiorari.

The two cases present exactly the same issue in the Owlet Budrow Rodrigue case.

She is suing– she and her children are suing on– for the death of her husband.

Budrow Rodrigue fell from the top of a derrick to his death on the drilling platform floor.

It is alleged that the death was caused by the negligence of the operator of the platform and the drilling company.

In the Dore case– or let met continue and bring the Rodrigue case up to the Court.

Before the death, Mrs. Rodrigue brought actually three suits.

She brought one suit under the Death on the High Seas Act.

This suit was brought in admiralty.

She brought two civil action claiming that the Louisiana Death Act, which was the adjacent state in this case, and the Rodrigue death occurred on a platform which was 28 miles seaward of the Coast of Louisiana.

In these civil actions, Mrs. Rodrigue contended that the Louisiana Death Act was extended to these artificial islands by the Outer Continental Shelf Lands Act which specifically provides that the law of the adjacent state shall be extended to the artificial islands in the Outer Continental Shelf and shall be applied when not inconsistent with a federal law.

The cases were consolidated.

Motions were filed by the defendants to dismiss all of the claims actually contending that one of the other was an exclusive remedy.

The trial judge denied all motions.

The case was fixed for trial with the jury to hear the civil actions, the judge to hear the admiralty action concurrently.

On the morning of the trial after a jury was empanelled, the judge changed his mind and granted a motion to dismiss the civil actions.

William J. Brennan, Jr.:

Mr. Henderson, may I ask, whom are we indebted for this?

Philip E. Henderson:

Not many, Your Honor, just one.

William J. Brennan, Jr.:

The respondent?

Philip E. Henderson:

Yes, Your Honor.

Byron R. White:

What was the question of my Brother Brennan?

William J. Brennan, Jr.:

Whose fight it is, this fight.

Byron R. White:

Do you know about this?

Philip E. Henderson:

I was given copies this morning.

Byron R. White:

Yes.

Potter Stewart:

Well, this talk about the Submerged Lands Act.

Let’s not involved in this case.

Philip E. Henderson:

Well, the Outer Continental Shelf Lands Act actually is part of the Submerged Lands Act.

People somehow —

Potter Stewart:

I thought it came earlier.

Philip E. Henderson:

I beg your pardon, sir?

Potter Stewart:

I thought the Outer Continental Shelf Act came earlier.

Philip E. Henderson:

Well —

Potter Stewart:

The Submerged Lands Act is something else, isn’t it?

Philip E. Henderson:

If Your Honor please, I always refer to that Act as the Outer Continental Shelf Lands Act.

I have heard it referred to by the persons as the Submerged Lands Act —

Potter Stewart:

There are two quite different statutes, aren’t they not?

Philip E. Henderson:

If Your Honor please, I don’t know.

I am dealing here with the Outer Continental Shelf Lands Act.

Potter Stewart:

That’s what I thought.

Philip E. Henderson:

Yes, sir.

Potter Stewart:

And this —

Philip E. Henderson:

And that’s not my —

Potter Stewart:

Yes.

Philip E. Henderson:

My document —

Potter Stewart:

You’re not responsible for this.

Don’t waste your time away.

Thank you.

Philip E. Henderson:

Now, when the trial judge dismissed the two civil actions, he held that the exclusive remedy for death on the artificial island was the Outer Continental Shelf Lands Act — excuse me, was the Death on the High Seas Act.

Potter Stewart:

Is there any question — is there any issue between the parties here, in fact, that the — as to whether or not this artificial island was within the contours of the Outer Continental Shelf?

Philip E. Henderson:

None whatsoever.

Potter Stewart:

Geographically?

Philip E. Henderson:

None whatsoever.

Potter Stewart:

No dispute about that?

Philip E. Henderson:

No dispute about that as to either the Budrow Rodrigue case or the Dubois Dore case.

Both platforms were within the Continental Shelf and both were adjacent to the State of Louisiana.

An appeal was taken for the dismissal of the civil actions to the Fifth Circuit.

In the Dubois Dore case, Mr. Dore was a crane operator on one of these artificial islands or platforms.

The crane collapsed.

Mr. Dore fell to his death.

For his death, his widow and children brought suit, a single action claiming, as one cause of action, a right under the Death on the High Seas Act and also claimed rights under the Louisiana Death Act.

The Louisiana Death Act allows recompense for not only the pecuniary lawsuits but also allows a recompense for lost of love, affection, and companionship.

The Death on the High Seas Act only allows a recompense for pecuniary lawsuits.

In the Dubois Dore case, the defendants, at the District Court level, filed a motion to strike the Louisiana cause of action and to strike all claims or none pecuniary damages.

The district judge granted this motion and then certified the question that’s raised in a motion to the Fifth Circuit so that, actually, the Dore case reached the Fifth Circuit before the Rodrigue case, though both involved exactly the same issue.

In the Fifth Circuit, the Court held that the exclusive remedy for a death was the Death on the High Seas Act.

If this Court had granted the certiorari, the Rodrigue case actually followed the Dore case very promptly.

The Court in the Rodrigue case issued a per curiam opinion and simply referred to our decision in the Dore case.

It is our contention that the Fifth Circuit erred in holding that the Death on the High Seas Act is the exclusive remedy.

The Outer Continental Shelf Lands Act specifically extends the law of the adjacent state to the particular islands and it is to be applied where not in consistent with the federal law.

Now, the holding that the Death on the High Seas Act was an exclusive remedy is clearly an error because the Death on the High Seas Act specifically provides that it is not an exclusive remedy.

Section 7 of the Death on the High Seas Act reads the provisions of any state statute giving or regulating rights of action or remedies for death shall not be affected by this chapter.

Now, it’s hard to see how anything could be clearer than that.

Now, at the time of the adoption of the Death on the High Seas Act, there were some state statutes which were construed as giving rights of action for Death on the High Seas.

The most famous of these cases is the Hamilton.

Also, there we — there happen to be a case, the E.B. Ward, Jr. which was a Fifth Circuit Court of Appeals case applying the very same Louisiana Death Act that’s at issue here to a death which occurred in a collision between two vessels in the Gulf of Mexico.

Both of these cases were on the books at the time of the adoption of the Death on the High Seas Act.

The clarity of this specific statement in the Death on a High Seas Act that it shall not affect the rights given by state statutes is highlighted by the legislative history.

At the time that this Bill, it was a Senate Bill when it was in the House just before the passage, at that time, there was a debate as to whether the Act should be an exclusive remedy.

At that point, Section 7, which I have just read to you, provided that the provisions of any state statute giving or regulating rights of action are remedies for death shall not be affected by this Act as to causes of action accruing within the territorial limits of any state.

Now, that made it clear that there was a limitation upon this — what the Act was going to affect.

However, those last words as to causes of action accruing within the limits of any state were deleted after argument and after debate.

They were deleted so that the Act would read that the provisions of any state statute given — giving or regulating rights of action are remedies for death shall not be affected by this Act without any limiting feature.

Philip E. Henderson:

Now, it is true that during that debate some of the people who debated said that this Act should be exclusive, some said that it shouldn’t.

Actually, the final blow on the amendment was 201 in favor of the amendment to 75 against it.

Counsel for respondents seems to take comfort from the fact that some of the persons who debated gave some reasons why they thought that the amendment shouldn’t be passed or that if it passed, it didn’t make any difference.

But, the fact is that there were 201 as opposed to 75 of the legislators who voted for this amendment so that the Act would plainly read that the provisions of any state statute giving or regulating rights of action or remedies for death shall not be affected by this Act.

It couldn’t be plainer.

Abe Fortas:

I wonder if your — how far you’d carry that.

Suppose 20 miles out at sea from the Coast of Louisiana but on a direct line.

Philip E. Henderson:

Yes, sir.

Abe Fortas:

Say, disaster occurred and there was a Death on the High Seas at that point.

Philip E. Henderson:

On one of the islands or one of the artificial —

Abe Fortas:

No, not an island at all, just a collision or a ship or something of the sort Having nothing to do with the Continental Shelf, way outside of the Continental Shelf, would you say that Death on the High Seas Act at the effect of giving cause of action also in the Louisiana law?

Philip E. Henderson:

Well,now the Death on the High Seas Act, of course, gives its own cause of action.

Abe Fortas:

I understand that.

Philip E. Henderson:

The Loui — the Outer Continental Shelf Lands Act would not give a cause of action because the Outer Continental Shelf Lands Act applies only to these islands.

Abe Fortas:

I’m talking only about the argument you’ve been making here with respect to the Death on this High Seas Act.

Philip E. Henderson:

As to the old cases that were in existence —

Abe Fortas:

No, on the Death on the High Seas Act.

You say that the Death on the High Seas Act expressly reserves state causes of action.

Philip E. Henderson:

Yes, sir.

Abe Fortas:

Well, I’m asking you whether that would apply in the circum — in the situation I put to you without — far beyond the Outer Continental Shelf.

There is Death on the High Seas and somebody claims a remedy, and the Louisiana law is saying that the Death on the High Seas Act saves remedies under the state law and this death occurred on a direct projected line from the middle of the State of Louisiana and, therefore, we — the contention is that we have a cause of action in Louisiana laws.

Philip E. Henderson:

I don’t think in that circumstances, Your Honor, that the direct line in the State of Louisiana really has any bearing.

I would think that the only time in which the direct line from the State of Louisiana has any bearing is under the Outer Continental Shelf Lands Act because it’s —

Abe Fortas:

It’s essential for you to demonstrate not only that there is a possibility under the Death on the High Seas Act, but also that the Outer Continental Shelf Act does provide for the alternative applicability of Louisiana law.

Philip E. Henderson:

I call it supplementary, Your Honor.

Abe Fortas:

Alright, I don’t care what you call it.

Philip E. Henderson:

Or cumulative

Abe Fortas:

Is that right?

So, you’ve got —

Philip E. Henderson:

Not necessarily.

Abe Fortas:

In other words, you’ve got to show that —

Philip E. Henderson:

No, I think — I think, Your Honor, that —

Abe Fortas:

You’ve got to show that this — that Louisiana has jurisdiction by reason of the place where this act — this death occurred.

Philip E. Henderson:

In the instant cases, Your Honor, that point was clearly met because the Outer Continental Shelf Act does specifically say that as to these platforms involved, because they are adjacent to the state, that the Louisiana law does apply there.

Now —

Byron R. White:

Yes, but that’s only as federal law.

Philip E. Henderson:

As Loui — as adopted federal law, yes, Your Honor.

Byron R. White:

It makes the federal law of Louisiana law.

Philip E. Henderson:

Correct, sir.

Byron R. White:

And doesn’t give it — Louisiana any jurisdiction over the Outer Continental Shelf.

Philip E. Henderson:

That’s correct.

Jurisdiction is not really — it’s federal jurisdiction.

Byron R. White:

Nor does (Inaudible) Louisiana law talks only as a —

Philip E. Henderson:

Yes, sir.

It’s adopted federal law.

It’s federal jurisdiction.

It’s adopted to be applied where not inconsistent with federal law but, Mr. Justice Fortas, I think, to get back to your original question, your question could be phrased to be whether it be state death Acts in a situation in which the Outer Continental Shelf is not involved might still be applied according to my argument.

Is that — that is the question.

Now, I point out first that that is not particularly at issue here, but my question — but the answer is, I think, yes.

I think that that is the clear intent of the legislators.

They discussed that in the legislative history that the discussion —

Abe Fortas:

Legislative history of a Death on the High Seas Act?

Philip E. Henderson:

No, sir — yes, the Death on the High Seas Act.

They discussed the case of the Hamilton and they noted that, because there was a Delaware ship involved and the defendant was a Delaware corporation and I believe that the plaintiffs were citizens of Delaware, that with those facts, that the Delaware law could apply.

The law of Delaware would have to be looked to.

The conflicts of laws rules of the State of Delaware would have to be looked to, and if they gave a remedy under those circumstances, the remedy would be available.

Now, it was also pointed out in that debate that the State of Massachusetts had different conflicts of law or rules and they discussed one of the men from Massachusetts got up and said “well, in such-and-such a case there was a collision but the ship was owned by a Massachusetts corporation, but the other ship was not.

It was owned by a different state and that the rules were hopelessly in conflict, and they gave no remedy.”

And so, to answer your question, I would think that if a Delaware ship and if the Delaware law has not changed, if a Delaware ship with a Delaware corporation with a Delaware plaintiff were involve, yes, Delaware could give its citizens a cause of action under its laws for a Death on the High Seas in addition to our supplementary to what would be available to that person under the Death on the High Seas Act.

Potter Stewart:

But that would be in a Delaware Court, absent diversity of citizenship, would it not?

Philip E. Henderson:

I would think so.

Potter Stewart:

That would not be as a matter of federal law.

Philip E. Henderson:

That’s correct.

Potter Stewart:

It’ll just be a matter of additional Delaware law.

Philip E. Henderson:

That’s right.

I think that that is certainly what these legislators were discussing when they amended this provision, so that the provision would read that the Death on the High Seas Act shall not affect state remedies.

That’s precisely what they had in mind and they went through that discussion just exactly as I related it to you.

Now, in the instant cases, we really don’t have to see whether Louisiana, in this day and time, would apply its conflict of laws rule so as to, in a given situation, allow a cause of action out there because the Louisiana law as adopted federal law is specifically extended to these islands.

At — but the crucial and important port is that the Death on the High Seas Act does say in plain terms that it is not an exclusive remedy.

That is different than the Jones Act which doesn’t say.

The Jones Act, as you will regard — I’m certain the Lynn Grennan, Glasby decisions, the statement of this Court was that Congress in enacting the Jones Act intended to make a uniform remedy.

However, the Death on the High Seas Act is different than the Jones Act, in that, the Death on the High Seas Act specifically provides that the remedy is not exclusive.

Now, actually —

Potter Stewart:

Not exclusive, but the legislative history also shows that the intent was to make a uniform remedy.

Philip E. Henderson:

A uniform basic remedy.

Potter Stewart:

Yes.

Philip E. Henderson:

Actually, they used the word “basic.”

Potter Stewart:

Yes.

Philip E. Henderson:

In this discussion.

That is true.

The man from Massachusetts says “I want to be sure I get something.

So, alright, you got the Death on the High Seas Act,” but the man from Delaware says “I don’t want you taking away what might be available in addition under my law” and, of course, there is nothing unusual whatsoever in allowing curative remedies for the same wrong.

Suppose that a man has a chattel or suppose that a man is using someone else’s chattel and damages it, while the man who has suffered the damage, if he can come within the terms of a contract, he can collect under contract.

If not, he can collect under tort.

But, does the fact that he may have a remedy under contract preclude him from having a remedy under tort?

Byron R. White:

Does the Longshoremen’s Act apply here?

Philip E. Henderson:

Not in these cases, we d —

Byron R. White:

Why?

Philip E. Henderson:

The Longshoremen’s Act —

Byron R. White:

Doesn’t the Continental Shelf Act say — refer specifically to the Longshoremen’s Act?

Philip E. Henderson:

Yes, it does.

The Longshoremen’s Act is strictly an employer-employee Act

Byron R. White:

I see.

Philip E. Henderson:

The Workman’s Compensation Act in the —

Byron R. White:

This is a–

Philip E. Henderson:

Negligent parties in this — in both of these cases are not the employer.

Byron R. White:

What would have been the situation if these people had not been killed but only injured?

Philip E. Henderson:

Then, the — every law available to them, except of course the Jones Act —

Byron R. White:

They would’ve been under the Continental Shelf Act, wouldn’t they?

Philip E. Henderson:

No, sir, they don’t — the Continental Shelf Lands Act really doest say anything about —

Byron R. White:

All it says is — it says, for the purposes of — on these artificial islands, the federal law is the state law.

Philip E. Henderson:

Yes.

Well, the state law — actually, the state law is extended.

That is correct, we’re not —

Byron R. White:

That is — but the Continental Shelf Act says that a matter of — as a matter of federal law, the state law will apply —

Philip E. Henderson:

This — the state law —

Byron R. White:

Two injuries on these artificial islands.

Philip E. Henderson:

The state law will apply, yes, that is correct.

Byron R. White:

Except where there’s some other federal law that’s applicable.

Philip E. Henderson:

No, it doesn’t really say that.

It says where there’s conflict.

Now, that’s the bone, if Your Honor please.

Byron R. White:

Well, alright.

If the — except where there’s some conflicting federal law.

Philip E. Henderson:

Conflicting, yes, sir.

Byron R. White:

And, you are — are you suggesting that the High Seas Act is not in conflict with the —

Philip E. Henderson:

Yes, sir.

Byron R. White:

Louisiana law.

Philip E. Henderson:

Yes, sir.

That’s it, precisely.

Philip E. Henderson:

I am saying that there is nothing conflict —

Byron R. White:

Do you mean either one of them applies that would permit recovery and, therefore, they’re not in conflict?

Philip E. Henderson:

I didn’t hear you, Your Honor, I’m sorry.

Byron R. White:

Either they — either any law — you can apply any part of any law as long as it allows recovery.

Philip E. Henderson:

No, I’m saying that “conflicting” does not mean “not identical.”

Byron R. White:

Does Louisiana law bar for contributory negligence?

Philip E. Henderson:

Yes, it does.

Byron R. White:

Does the High Seas Act?

Philip E. Henderson:

No, comparative negligence is a rule.

Your Honor, I —

Byron R. White:

Well, is that not a conflict or not?

Philip E. Henderson:

No, sir.

I am say —

Byron R. White:

You mean you’d apply the High Seas Act in that respect.

Philip E. Henderson:

I am saying —

Byron R. White:

But you want the recovery of the “for pain and suffering” under Louisiana law.

Philip E. Henderson:

What I’m saying, Your Honor, is that perhaps, and this is the meat of the manner right here, the word “conflict” does not mean un — “different” exactly.

In other words, Your Honor, if “conflict” meant “different,” in other words, if the only Louisiana law that could apply on there was law that was exactly and precisely the same as the same as the federal law that was already in existence out there, what were the legislators doing in saying that the Louisiana law has to be applied out there?

They were doing a vane and useless thing.

Hugo L. Black:

You would say that the (Inaudible)

Philip E. Henderson:

Yes, sir.

Hugo L. Black:

And —

Philip E. Henderson:

I’ve lost my cause of action under Louisiana law, that’s right.

Hugo L. Black:

In this case?

Philip E. Henderson:

Yes, sir.

Hugo L. Black:

And, say that (Inaudible)

Philip E. Henderson:

If I can come within the terms of Louisiana law, I can get the benefits of the Louisiana law.

If I can prove, in this case and in any death case, I am contributory negligent, I cannot bring myself within the terms of the Louisiana law and, thus, that cause of action is out.

And, of course, with it goes my claim for loss of love and affection.

Now, if I can’t come within the terms of Louisiana law, I don’t get it.

Philip E. Henderson:

Just as though there were a man with a chattel who were using it and it was damaged.

If the plaintiff can come within the terms of a contract, he can have the benefits of the contract even though the remedies might be different, the statute of limitations might be different, he st — he can — if he can bring himself within that contract, he can obtain the rights of the contract.

If he can’t bring himself within it, he cannot.

He still has tort remedies.

Hugo L. Black:

[Inaudible]

Philip E. Henderson:

Yes, sir.

Byron R. White:

Do I understand — are you claiming a right of recovery under both statutes?

Philip E. Henderson:

Of course I’m claiming no double recovery.

I’m saying that I could have a right under either statutes, just like an injured seaman has a right under unseaworthiness in the Jones Act.

Byron R. White:

In other words then, you’d — I take it that it has to be on the basic issue of negligence.

It would have to be a determination of the issue of negligence under both statutes, right?

Philip E. Henderson:

Yes.

Byron R. White:

And one by the judge in admiralty, is that it?

Philip E. Henderson:

It could be, yes.

Byron R. White:

Could be?

Philip E. Henderson:

Yes, one — the one in the High Seas Act would definitely have to be by the judge in admiralty, yes.

Byron R. White:

And the other would be by a jury.

Philip E. Henderson:

If requested.

In other words, if I could bring myself within the terms of that law —

Byron R. White:

Now, which comes first and are you concluded if there’s a finding against you in negligence, say, by the judge under the High Seas Act, does that throw you out of Court on the second?

Philip E. Henderson:

Yes, it would.

Yes, in other words, if I can bring myself within the terms of the other, I can come in — I can come and have its benefits.

To answer Justice White’s argument, I take the position —

Byron R. White:

Is that Dore case the Higa case?

Philip E. Henderson:

Yes, Your Honor?

Byron R. White:

The Higa case, is that the Dore — would you call the Dore case?

Philip E. Henderson:

No, sir.

The Dore case is one of the cases at issue here.

There are two cases which have come before this Court now in a joint petition.

Byron R. White:

But, there’s that — But there’s an earlier decision.

Philip E. Henderson:

Yes, the Higa case, I say, is in my favor, yes.

That’s true.

Abe Fortas:

[Inaudible]

Philip E. Henderson:

No, I think that the whole matter could be tried jointly.

If the party wants a jury trial under his state, under the Louisiana federally adopted law, it could all be tried with the judge sitting in admiralty.

And, if the jury finds contributory negligence, why, of course, there is no cause of action under the Louisiana law.

There would, of course, be special interrogatories to the jury.

Is there — was the plaintiff negligent?

If they answer yes to that, why, then the jury case is out.

If they say yes, why, then the — they would go on to answer quantum and everything as is ordinary in a jury trial, but there would be interrogatories to the jury.

It would pose no procedural problem.

There are cases in which that’s done.

I’ve cited some in my brief in which a case was tried under both the Death on High Seas Act and under Japanese law, as a matter of fact, as one side of my District Court case.

I say, in response to Justice White’s question, that the Jones Act is conflict with or inconsistent with unseaworthiness or damages under the Jones Act or unseaworthiness are not in conflict with or inconsistent with maintenance in cure.

They’re just overlapping in supplementary remedies, Mr. Justice.

If my analogy in a man that might have a remedy for both contract and tort, they’re not even consistent.

It’s just the rule rather than the exception to have possibility of two or three remedies —

Byron R. White:

Yes, but your action —

Philip E. Henderson:

If you can bring yourself within the terms.

Byron R. White:

Yes, but your action in — your action would, in either case, so be for negligence.

Philip E. Henderson:

Yes.

Byron R. White:

You see, in your case, which is different than between the Jones Act and unseaworthiness, completely different situation.

You have a different cause of action.

Here, you’re claiming that you have to have cause of action for negligence in admiralty and you have a cause of action for negligence under the Louisiana law.

Now, would you say that if we decided contrary to your view that, under the Continental — that within the meaning of the Continental Shelf Act, the Louisiana law is in conflict with the federal law, namely the High Seas Act, that you have lost your case?

Philip E. Henderson:

No, I say that it is to the issue at — at issue here as to the narrow issue you would hear there and here, in this case, there is not even a second remedy.

There is not federal remedy for no “yey” or “ney” as to loss of love and affection.

The Death on the High Seas Act only treats pecuniary losses.

It does not even treat loss of love and affection —

Byron R. White:

Well, I understand —

Philip E. Henderson:

And say “yey” or “ney.”

Byron R. White:

I understand that.

You’re just again arguing that it isn’t in conflict.

Philip E. Henderson:

Yes.

Byron R. White:

Now, that’s —

Philip E. Henderson:

Yes, if you would say that the two laws are in conflict, yes, Your Honor, I would —

Byron R. White:

You’ve lost your case in spite of the reservation in the High Seas Act.

Philip E. Henderson:

No, I would say that, then, the case which I’ve mentioned to Justice Fortas, is that if he Louisiana laws under these conflict rules allow recover here then, yes, there could be recovery here.

They’re just — we couldn’t use the Outer Continental Shelf vehicle.

I see that I’m running out of time and I do want to save some time for rebuttal, Your Honor.

Earl Warren:

You have five minutes for rebuttal.

The white light is on, the red light if you want.

Philip E. Henderson:

But, I did want to save some time for rebuttal.

Earl Warren:

I see.

Very well, you can make use of the remaining time.

Philip E. Henderson:

Thank you.

Earl Warren:

Mr. Diaz.

James E. Diaz:

Mr. Chief Justice and may it please the Court.

I’m James Diaz from Lafayette, Louisiana, representing two of the — one of the respondents in these two consolidated cases.

I represent Link Belt Company and the Road Equipment Company.

Mr. Richard Baldwin, sited, and Mr. James Blazek, sited at the counsel table with me, represents the respondents in the Budrow Rodrigue case where a Ruben Merion, a citizen of Louisiana, doing business as Merion Drilling Company, It’s Ensure, and Humble Oil Company.

I also feel a sense of responsibility of representing the two Federal District Court judges, Judge Ainsworth as the organ of the Fifth Circuit Court of Appeals in both of these cases whose decisions are here for review and who does not have an opportunity here today of defending the reviews.

These Louisiana-trained federal —

Earl Warren:

May I ask, Mr. Diaz, why you presented this document to us?

James E. Diaz:

Yes, Your Honor.

I prepared my argument here today in a little different prospective that I had argued it in my brief, and I wanted to present this to you as a visual aid in following the argument which I am making here today.

It is merely as a visual aid of whatever benefit it may be to the Court.

Earl Warren:

So, you didn’t do this in your brief?

James E. Diaz:

No, Your Honor, it’s merely an outline of my argument here today which varies in perspective from the argument I presented in my written brief.

Earl Warren:

Did you argue in your briefs the Submerged Lands Act?

James E. Diaz:

Yes, Your Honor.

Yes, sir.

Now, Your Honor, in connection with the Submerged Lands Act —

Earl Warren:

This isn’t our practice, to have documents like this at this time.

James E. Diaz:

I apologize if I was out of order, Your Honor.

I merely meant it as a visual aid as a benefit to the Court.

Earl Warren:

You did argue the Submerged Lands Act, didn’t you?

James E. Diaz:

Yes, Your Honor.

Earl Warren:

Alright, you may proceed.

James E. Diaz:

Thank you, Chief Justice.

I may point out at this time, sir, that I use the term “Submerged Lands Act” because that is the title which the United States Court annotated as of the top of this Section 1333 which I understood it to be the popular name as the Outer Continental Shelf Lands Act.

I maybe in error on that, Justice Stewart, and I wish to state though that my argument here is with reference to the Outer Continental Shelf Lands Act.

Potter Stewart:

When was that enacted?

Do you happen to know?

James E. Diaz:

Your Honor, I believe that was enacted in 1948, sir.

Potter Stewart:

Yes, and the statute which we know of as the Submerged Lands Act was enacted in 1953.

However, you’re talking about the Outer Continental Shelf —

James E. Diaz:

That is correct, Your Honor.

Potter Stewart:

Lands Act.

James E. Diaz:

Now, what are these Louisiana-trained judges hold?

They held that on deaths occurring on stationary platforms, the Death on the High Seas Act is the applicable law.

It’s the federal dispositive law.

That where there is federal dispositive law, the state law cannot apply and is superseded, and thirdly, that the state law, the elements of the cause of action provided by the wrongful death action of the State of Louisiana, those elements are inconsistent with the elements of the cause of action provided under the Death on the High Seas Act.

The issue here before us is narrowed down to the question as to whether the Death on the High Seas Act which restricts recovery to pecuniary loss can be supplemented by the law on the adjacent state.

Before proceeding to give a little more detail —

Thurgood Marshall:

Isn’t there also the question of whether it’s exclusive or not?

James E. Diaz:

Yes, Your Honor, that is a correlative issue.

In the Rodrigue — I would like to mention, in the Rodrigue case, there were two civil actions filed and there was an admiralty action filed.

The two civil actions were dismissed by a motion to dismiss by Judge West, and those are the only two decisions which are here before the Court today.

The admiralty action was tried on the merits and judgment was rendered in favor of the plaintiff on pecuniary loss, and that action is not before the Court here today.

James E. Diaz:

Now, the Fifth Circuit Court of Appeals affirmed the Budrow Rodrgue case as it affirmed the Dore cases.

These two cases have in common the fact that both occurred on the Outer Continental Shelf or the marine league from shore and the actions are both against third parties non-employers.

The plaintiffs’ attorney has attempted to use two avenues by which to incorporate the state law, that those two avenues are the Outer Continental Shelf Lands Act and the Death on the High Seas Act.

The Outer Continental Shelf Lands Act provides, as set forth on page 7 and 8 of our brief in division (a) (1), that the laws applicable to these artificial islands are as the — are the federal constitutions — the federal constitution and the federal laws.

It then provides that, to the extent that the state law is applicable and to the extent that the state law is not inconsistent, then the state laws may be applied.

And, it also provides that the Executive Department of the United States is to define by extending theoretical boundaries into the ocean what adjacent laws are to be applied.

Up to my knowledge, the Executive Department has not projected that the state boundary is out into the ocean and not into the Gulf of Mexico.

Insofar as the Submerged Lands Act which unquestionably applies here, the plaintiffs’ attorney, in order to have the state law adopted as a federal law, must meet these three requirements.

The first requirement is, does the state law apply?

One of the first things that I’m learning of constitutional law is that where there is federal legislation in a field that the federal legislature is competent to legislate upon, it supersedes those state laws which had been previously incorporated by federal law in order to provide a remedy.

This Court, in Lynn Grennan — the Lynn Grennan case and also in the Glasby versus United States Steel Corporation case, in which Justice Black was the organ of the Court, there, reiterated the principle that where the federal legislature has preempted the field previously occupied by state law and can competently do so, then, the state law is superseded.

Now, the Lynn Grennan case is very applicable to this case at Bar because, in that case, a seaman was killed as a result of an accident which occurred in Virginia waters.

And, he was survived only by a niece and a nephew who were not dependent upon the seaman.

The plaintiffs’ attorney stated that he had the right to recover for general damages under the Virginia Wrongful Death action as a supplementary law to the Jones Act, which is exactly what is being argued here.

In the Lynn Grennan decision, the United States Supreme Court held that the Jones Act that’d been legislated in order to provide this field of law previously covered by state ter — by state law and, therefore, that the Jones Act superseded the wrongful death action even to the extent of ruling out general damages.

34 years later, this Court in the Glasby again affirmed the Lynn Grennan decision, but separate and apart from the general field of federal preemption is a question that there are three decisions by the Fifth Circuit Court of Appeals which are the Loffland Brothers versus Roberts, Ocean Drilling and Exploration Company versus Berry Brothers, and Pure Oil Company versus Snipes cited on page 9 of our brief.

In which, the First Circuit has held, and this Court has approved since writs of certiorari were denied in each one of these cases, has held that on the Outer Continental Shelf under Section (a) (1) of Title 1333 — of Section 1333, it is a federal maritime law that is to apply to personal injury litigation and that the state law has no application whatsoever.

So that, in personal injury litigation, insofar as the stationary platforms, the Outer Continental Shelf Lands Act, as adopting federal maritime law, governs.

Therefore, the state law apply?

The state law does not apply because it has been superseded by the Federal Death on the High Seas Act.

Even if this Court were to hold that state law is to apply, the second requirement written into the submer — the Outer Continental Shelf Lands Act is that the state law, before it can be adopted, has to be consistent with federal laws then existing.

Now, I have set forth in this visual aid, as I did in my memorandum, as to a comparison of the various elements of the causes of action provided under the Louisiana law and under the Death on the High Seas Act, the beneficiaries are different, the damages are different.

Now, the plaintiffs’ attorney says that there is a hiatus in this particular field of law because no general damages are provided by the Death on the High Seas Act.

I submit to you that the legislature in 1920, the legislature that enacted the Death on the High Seas Act, specifically contemplated the granting of general damages.

Judge Putnam — Chief Justice Putnam of New York, who was the author of the Bill, provided in his original letter to the Congress that the damages were for fair and just compensation.

In 1914, the Legislative Judicial Committee modified — qualified that language by saying that it was restricted to pecuniary loss and this concept of restricting damages to pecuniary loss is not only applicable in the Death on the High Seas Act, but in the companion case of the Jones Act which was enacted by the same legislature in 1920.

I therefore submit to you that the Death on the High Seas Act is — does not provide an incomplete remedy for damages.

It compli — it provides for the complete remedy as intended by the legislature, so that there is no hiatus.

Therefore, the two-principle requirements of the Outer Continental Shelf Lands Act for the adoption of state law, first, its application of state law and, secondly, the fact that the state law cannot be inconsistent, it had not been complied with in this case and, therefore, the state law has no application whatsoever.

Hugo L. Black:

[Inaudible]

James E. Diaz:

Yes, Your Honor.

I’m coming to that that is the second avenue that the plaintiffs’ attorney has sought to use the Wrongful Death Act of Louisiana.

The Death on the High Seas Act legislative history shows that they intended, at least Judge Putnam did, intended for the Death on the High Seas Act to be the exclusive remedy.

Now, then, Mann — Mr. Mann of Illinois, in 1920, made an amendment because he was concerned with this.

He says “what about an Illinois constituent in Illinois, does he have to go to New York to a Federal District — Foreign Federal District Court to assert her remedies?”

He says “I want to preserve to the State Courts their jurisdiction under their own laws for my own constituents to proceed under a state law.”

I think that the legislative history and the arguments that were presented by the legislature in pages 20 through 23 of our brief, Your Honor, show that their intention was not to give concurrent jurisdiction, not to give concurrent remedies, but to give alternative remedies.

They wanted to preserve to suitors the right to proceed in State Court under a State Court remedy.

Byron R. White:

Which was — which came first, the Death on the High Seas or the Continental Shelf Act?

James E. Diaz:

The Death on the High Seas was in 1920, Your Honor, and the Submerged Lands Act was in 19 —

Byron R. White:

Well, under the High Seas Act, while there — and before the Continental Shelf Act, there was a limited applicability of state law, wasn’t there?

With the coming — the Continental Shelf Act, certainly, that Act set federal laws to apply on the High Seas or in these islands — on these artificial islands, right?

James E. Diaz:

That’s correct.

Byron R. White:

No state law.

I mean, no state law as state law.

James E. Diaz:

That is correct.

Byron R. White:

Only state law as federal law.

James E. Diaz:

Only state law as adopted by the federal law.

Byron R. White:

So, state law was put aside and the — that Act said that if there’s a Federal Act that is in conflict with the state law, well, it would be the federal statute that would apply.

James E. Diaz:

That is correct.

Byron R. White:

Well, would you — are you arguing that the Savings Clause then in the High Seas Act is, in effect, repealed or set aside by the Continental Shelf Act insofar as the — these artificial islands are concerned?

That’s the effect of your argument, isn’t it?

James E. Diaz:

That is correct, Your Honor, and that’s why I say that you need not decide whether the Death on the High Seas Act is the exclusive remedy because this specific legislation on point is the Outer Continental Shelf Lands Act, so that even if the state law could be supplemented, which we do not but even assuming it could be supplemented under Death on the High Seas Act, this specific Act in question, the Outer Continental Shelf Lands Act would not permit it because the state law would be inconsistent with the applicable federal law.

Hugo L. Black:

[Inaudible]

James E. Diaz:

No idea, Your Honor, is that the survivors of a dissident have a right to proceed in a federal forum under federal law —

Hugo L. Black:

Completely?

James E. Diaz:

Completely, and that —

Hugo L. Black:

No state law at all.

James E. Diaz:

And that —

Hugo L. Black:

No —

James E. Diaz:

No state law at all, Your Honor.

That is correct.

Now, I believe that is the case on the Outer Continental Shelf — under —

Byron R. White:

(Inaudible)

James E. Diaz:

The direct action statute — Your Honor, I don’t believe that the direct action statute, first of all, is at issue here but, to answer your question —

Hugo L. Black:

[Inaudible]

James E. Diaz:

That is correct, Your Honor.

Of course, I believe that the direct action statute is inimical to maritime law.

It’s inimical to the limitation of liability concept and should not be applied in maritime cases at all, and these cases — in this Act, as occurring on s —

Hugo L. Black:

It does.

James E. Diaz:

Your Honor?

Hugo L. Black:

It does [Inaudible]–

James E. Diaz:

Your Honor, it has been — Excuse me, sir.

Hugo L. Black:

It has been applied.

James E. Diaz:

It has been applied, Your Honor, but what I am saying here is that it should not be applied.

Hugo L. Black:

(Inaudible)

James E. Diaz:

Yes, Your Honor.

Yes.

Byron R. White:

(Inaudible)

James E. Diaz:

Your Honor, I — the only way I can answer that is this.

I was trained as a lawyer in law school and in practice to confine myself with then the legisla — within the legislative provisions, and I am saying — is that the legislative provision here are clear that the only remedy for Deaths occurring on the — under the a — under the intendment of the Outer Continental Shelf Lands Act, the only remedy is under the Death on the High Seas Act exclusive of state law.

Hugo L. Black:

(Inaudible)

James E. Diaz:

I have to d —

Hugo L. Black:

(Inaudible)

James E. Diaz:

Yes, sir, the Outer Continental Shelf Lands Act.

Hugo L. Black:

(Inaudible)

James E. Diaz:

Yes, sir.

Well, you’ve got to go to the parent which is the Outer Continental Shelf Lands Act and the parent adopts the Death on the High Seas Act.

What I’m saying is that you can then — you cannot then incorporate under the Death on the High Seas Act, the state law, which you cannot do under the adopted provisions of the Outer Continental Shelf.

You cannot do indirectly what you cannot do directly because if the parent Act is the Outer Continental Shelf Lands Act, then you have to look at that primarily.

James E. Diaz:

If you cannot incorporate state law under that Act, you certainly cannot incorporate it under the Death on the High Seas Act which itself is incorporated in the Outer Continental Shelf Lands Act.

Hugo L. Black:

(Inaudible)

James E. Diaz:

Your Honor, I believe that the intention of Mr. Mann and Mr. Sanders, who were part of the legis — part of the legislature in 1920, was to allow suitors their ability to sue in a state forum with state laws wherever state laws have been held to be competent, as in the Hamilton.

I think a very strong argument against —

Hugo L. Black:

(Inaudible)

James E. Diaz:

As I see the consequences, Your Honor, the survivors of a dissident would have an alternate or elective course that could either go into federal forum with federal laws, substantive laws, or they could go into a state forum with state laws at their election.

Hugo L. Black:

(Inaudible)

James E. Diaz:

Your Honor, I am of the opinion that the Death on the High Seas Act should be given as exclusive remedy, but if we are to give any effect to Section 7 on the Death on the High Seas Act, that’s applied, as Mr. Mann intended it, to preserve to his constituent his reme — his right to go into a State Court with a State Court Remedy.

Hugo L. Black:

(Inaudible)

James E. Diaz:

That’s correct, Your Honor.

Byron R. White:

And, I thought your — a hearing of that, that the Continental Shelf Act made the federal law the exclusive source causes of action or injury on those islands.

James E. Diaz:

Where there is dispositive federal law carrying the subject matter.

Byron R. White:

No, it’s federal law all the way.

They may borrow some state law, but it’s still federal law.

James E. Diaz:

I see what you mean.

Yes, sir.

William J. Brennan, Jr.:

And, it seems to me, you’re going — if I understand the opinion of the Court of Appeals on the analysis that Mr. Justice White has just suggested, the Court of Appeals held that, to answer Justice Black’s question, the only remedy is the federal remedy under the Death on the High Seas Act.

There is no state remedy under Section 7 or otherwise of the High Seas Act.

The only remedy is the federal remedy.

Isn’t that what the Court of Appeals held?

James E. Diaz:

Yes, Your Honor.

William J. Brennan, Jr.:

I’m surprised to hear you suggest that, nevertheless, there may be a state remedy if the proceeding is brought in a State Court.

James E. Diaz:

I’m sorry, Your Honor, I didn’t mean —

William J. Brennan, Jr.:

Well, I thought that’s what you answered to Mr. Justice Black.

James E. Diaz:

He — I had understood his question as to the interpretation of Section 7 of the Death on the High Seas Act outside of the contents of the Outer Continental Shelf.

William J. Brennan, Jr.:

Well —

James E. Diaz:

That’s what I was arguing there.

Those are my — my position is that the application of state law in this, insofar as injuries occurring on the stationery platform, that the application of state law is inimical to the Outer Continental Shelf Lands Act and, therefore, cannot be applied.

William J. Brennan, Jr.:

There’s just isn’t any recovery under state law.

James E. Diaz:

That’s correct.

William J. Brennan, Jr.:

Now that there is a federal statute, the Death on the High Seas Act.

James E. Diaz:

That’s right.

Abe Fortas:

Well, may I direct your attention a bit more specifically to the Outer Continental Shelf Lands Act in Section 1331 (a) (2).

Now, merely a reading of that, I suppose it’s at least arguable hat after the enactment of that probation, the federal law applicable to a tort or committed on the High — one of these artificial islands on the Outer Continental Shelf.

The federal law would include not only the Death on the High Seas Act, but also such legislation of the State of Louisiana relating to this tort, as is not inconsistent with Death on the High Seas Act, isn’t that right?

James E. Diaz:

That is correct.

Abe Fortas:

And so, you get down to the question of whether the Louisiana laws in question here, that is to say Louisiana laws providing for recovery in the case of wrongful death not only for pecuniary loss but also for loss of affection, consorting, or whatever it may be.

Whether those Louisiana laws are inconsistent with the Death on the High Seas Act, is that right?

James E. Diaz:

Yes, Your Honor.

Abe Fortas:

And that’s the — that, I take it, is the issue before us because if we find — if we should conclude that the Louisiana tort law, in the respect that I have stated, is not inconsistent with the Death on the High Seas Act then, by virtue of 1331 (a) (2), that Louisiana law is incorporated into the federal law and becomes a federal law available to these petitioners, is that right?

James E. Diaz:

Justice Fortas, I agree with you in part, but I think that Section (a) (2) has two conditions precedent.

One is that there is no federal dispositive law on the subject matter and, secondly, that if there is no federal dispositive law, then state law may be used provided it is not inconsistent with other federal laws.

Abe Fortas:

Well, that’s your argument in this trial.

That’s your submission and your adversary says the opposite, 1331 (a) (2) does not specifically refer to those two preconditions, as you would have us construe them to be.

James E. Diaz:

That’s correct, Your Honor, and I am saying that I — that the Fifth Circuit also held that on the basis of the Berry Brothers and the Pure Oil versus Snipes that here were two conditions precedent that had to be met.

As an alternative argument, Your Honors, as I said in my — my principle position is that the state law cannot be applied whatsoever under the Outer Continental Shelf Lands Act.

But, as an alternate argument, if the Death on the High Seas Act does allow a supplemental remedy, I submit to you that the case cited by opposing counsel, the Higa versus Transocean which he says is in his favor, supports our proposition here because, in Higa, the Court held, the Ninth Circuit Court of Appeals held, as affirmed by this Court in writ of certiorari, that the state law may be applied only where its own Wrongful Death Act provisions give it extraterritorial effect.

If that is the case, and that’s the case we’re going to follow here, I submit to Your Honors that there has been no showing nor can there be any that the Louisiana Wrongful Death Act does not have any extraterritorial effect.

A counsel, opposing counsel has cited the E.B. Ward, Jr. and let me say this to you in connection with that.

The E.B. Ward, Jr. does not hold that Louisiana Wrongful Death Act has extraterritorial effect.

The E.B. Ward, Jr. held, at a time when the Death on the High Seas Act was not in effect, that because of the fact that the Shelf, the E.B. Ward, was a Louisiana Shelf, it was Louisiana territory so that it could be governed by the laws of the State of Louisiana.

In conclusion, Your Honors, I respectfully request that the decision of the Fifth Circuit Court of Appeals be affirmed because the controlling statute is the Outer Continental Shelf Lands Act, that there are patent inconsistencies in the state law and in the federal law as to beneficiaries, statute of limitations, contribution among joint tort fees and, as was held by this ca — by this Court in the Tungus, you have to take the state law in its entirety and not just those parts of it which benefit you.

So, if we’re going to take this cause of action provided under Article 2315, each and every one of those elements is inconsistent and contradictory to the elements of the cause of action provided under the Death on the Highs Seas Act.

Philip E. Henderson:

May it please the Court.

I’ll take the discussion of the Higa case first.

In the Higa case, Mr. Higa died on an airplane enroot from California to Hawaii.

He died when the plane crash in the middle of the ocean.

His dependants, survivors, filed suit under the Death on the High Seas Act and also claimed a civil action as we are here.

The Court — the Ninth Circuit Court of Appeals in the Higa case first said “we are looking to see whether the Conflicts of Laws Rules of Hawaii apply,” and this is — they took special note that the airplane was owned by a California company and said “no.”

They then said there is no statute that would apply the Hawaii Death Act to this area and there is no decisional law that would apply under Conflicts of Laws Rules, the Hawaii Death Act, to this death.

Philip E. Henderson:

Now, in our case, we have both.

We’ve got a statute.

We’ve got the Outer Continental Shelf Lands Act and we also have our Death on the High Seas Act.

Snipes and Loffland Brothers, which are cited as this Circuit’s holdings, did not hold that federal law is the exclusive remedy.

They only held that state law was not exclusive remedy.

In both of those cases, the defendant says the man’s action must be dismissed under state law because he was contributory and negligent in one case and because the state’s statute of limitations had run in the other, but the Court said “no, that’s not true, that the state remedy is not his exclusive remedy and that he does have a federal remedy.”

Those cases didn’t say the federal remedy is exclusive.

Hugo L. Black:

(Inaudible)

Philip E. Henderson:

If Your Honor please —

Hugo L. Black:

(Inaudible)

Philip E. Henderson:

I think that that — that the word “conflict” is — the approach is wrong in trying to see where they’re not identical.

I don’t think that the word “inconsistent” meant “not identical.”

Otherwise, nothing could’ve been extended by that Act.

I think “conflict” means “opposed to one another.”

For instance, if the federal rule was that the minerals extracted from these artificial islands are the property of the federal government and if the state law said that the minerals extracted are the property of private citizens, they’re in conflict and so, obviously, the state statute would have to give way, but, as to a tort action or a death action, why, these are cumulative supplementary remedies.

The cumulative remedy for the same incident is the rule rather than the exception in law, as my example when a man may have a right in contract or quasi-contract or tort for the same incident.

They’re not in conflict of one another.

Abe Fortas:

Sir, I know your time is up, but I want to follow the Chief Justice’s question to you —

Philip E. Henderson:

Yes.

Abe Fortas:

By this question.

Please assume with me for the moment that the Death on the High Seas Act provided a remedy for all of these factors, that is to say not only for loss, pecuniary loss, direct pecuniary loss, but also for loss of consorting, love, affection, and whatnot just as Louisiana law does.

Please make that assumption.

But, let us suppose that the Louisiana law fixed a higher limit on the aggregate recovery.

Now, would you say that the Louisiana law was still available to you or, in those circumstances, would you agree that the federal law — and that the Death on the High Seas Act and the Louisiana state law are inconsistent within the meaning of the Continental Shelfs Act?

Philip E. Henderson:

I would say that there’s no inconsistency.

I would say that the Louisiana Act would still be available if I could bring myself with its terms.

Abe Fortas:

Why?

Now, how would you explain that?

Philip E. Henderson:

I think — I say that the rule of law is that it does not follow that if there is one avenue by which a destination can be reached, that there can be no other avenue.

I say that, for a man whose chattel is damaged, if he has an avenue to get recovery under tort —

Abe Fortas:

I suppose —

Philip E. Henderson:

That does not mean he can’t get it under contract —

Abe Fortas:

Well, let me ask you this.

Philip E. Henderson:

And get something better.

Abe Fortas:

Yes, let me ask you his quickly.

Suppose the Death on the High Seas Act said, expressly, “there shall be no recovery for any of — for any damages whatsoever of any kind or nature as a result of wrongful death, and let’s suppose the Louisiana statute did provide a remedy.

Would you say that those two are inconsistent?

Philip E. Henderson:

If they die or — diametrically oppose, if one says that you — that, as a policy of the United States, that —

Abe Fortas:

If I turn to the latter, it’s yes.

Philip E. Henderson:

That you can’t do this, then you can’t do it.

The state law must give way.

Yes, sir.

Byron R. White:

Well, wouldn’t that be true (Inaudible)?

Philip E. Henderson:

No, I don’t think that there is a diametric opposition.

It’s just one route to recovery.

There can be another route to recovery if you can bring yourself in these terms.

Byron R. White:

(Inaudible)

Philip E. Henderson:

Well, they’re different.

The two laws are not identical.

There are many differences.

Byron R. White:

Well, I know.

(Inaudible)

Philip E. Henderson:

Beyond the two years, I do — actually, as a matter of fact, the Louisiana Act has a one-year statute, but is — if we assume that the Louisiana has got a three-year statute, then if the person can bring himself within the terms of the Louisiana Act as adopted federal law, he can have a recovery.

In other words, if he brings it within three years, he can do it.

In the instant case, if a man brings his suit within one year and if he is not contributory negligent, then he’s entitled to his Louisiana recovery.

If he can’t come within the t — within the terms of the statute, if he’s contributory negligent, as I say, he cannot have his recovery under Louisiana law.

He’s just — if he can’t bring himself within the terms of that Act, just like in a contract situation, if he can’t come within the terms of the contract, he’s got no contract remedy.

He’s only got a tort remedy.

Hugo L. Black:

(Inaudible)

Philip E. Henderson:

No, sir.

Philip E. Henderson:

I — the only real — the only question is the word “inconsistent with.”

If “inconsistent with” means “opposed,” why then, that’s one thing.

If it means “not identical,” why then, of course, then that’s another thing.

But, I say that the word “inconsistent with” can’t mean “identical” or there could be no law whatsoever extended out there.

Hugo L. Black:

(Inaudible)

Philip E. Henderson:

Because, then, the legislature was wasting its breath and ink in extending that the law — in saying that the Louisiana law shall be extended out there because it’s got to have a different result or what’s the good of extending it out there?

If it doesn’t have any different result in extending the Louisiana law out there, then why in the world extend it out there?

The legislature had to mean something in saying that that law is extended.

Hugo L. Black:

(Inaudible)

Philip E. Henderson:

Yes, but then it would — then you’d have a different result by the Louisiana law that’s out there.

It would be not identical with the federal law that’s out there.

It would be — you’d have a different result.

I say the cumulative remedies or the rule in law rather than a single avenue had recovered it.

Thank you very much.