Respondents Brief — Mobil Oil Corp. v. Higginbotham

FOR ARGUMENT

Supreme

Supreme Court, .U. S.

FILED

jR., CLERK

3u the

Court of the Hnited States

OCTOBER TERM, 1977

2

NO. 76-1726

MOBIL OIL CORPORATION, ET AL.,

Petitioner

versus

MRS. FRANCES NELL HIGGINBOTHAM, ET AL.,

Respondents

On Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit

RESPONSIVE BRIEF ON BEHALF OF

MRS. ARLINE J. SHINN

OF COUNSEL:

KIERR, GAINSBURGH,

BENJAMIN, FALLON

& LEWIS

A B Letter Service, inc.,

JACK C. BENJAMIN

On The Brief:

ARTHUR A. CRAIS, JR.

1718 First National Bank of

Commerce Building

New Orleans, Louisiana 70112

504 - 522 - 2304

327 Chertres St., New Orleons, Le. (504) 581-5555

———

TABLE OF CONTENTS

PAGE NO

The Question Presented................0005- l

itis ceed eee hed dee nbepewe «4 2

“The Basis of Moragne v. States Marine

Peles hbidcwules bedeaue aed esésons 2

“‘DOHSA and the Jones Act Are Not

EET. cw ceccaceeeceeceteces 5

“Territorial Restriction of Moragne-

Gaudet Would Create New Anomalies’’....... 14

EE Swe back oun be ae eh béb eee RehSoe s 20

ee cw nhebeaees 22

i

TABLE OF CASES

PAGE NO

Barbe v. Drummond, 507 F.2d 794

aR GR, TIP G ovecicccccivccagescovcvecys 12,17

Dennis v. Central Gulf Steamship Corp.,

453 F.2d 137 (5th Cir. 1972), cert. den.,

409 U.S. 948, 34 L.Ed. 2d 218 (1972)....... 19

Doyle v. Albatross Tanker Corp.,

367 F.2d 465, 466-467 (2d Cir. 1966) ....... 7

Dugas v. National Aircraft Corp.,

438 F.2d 1386 (3rd Cir. 1971)............. 9,12

Estate of Kauzlarich, 405 F.Supp. 332

OD Bi POPE cha bepeedesecacesyececens 19

Executive Jet Aviation v. City of Cleveland,

Ohio, 409 U.S. 249, 34 L.Ed. 2d 454,

GEG, SEF CASTES soe vcicccccaccccccccecess 20

Fitzgerald v. United States Lines Co.,

374 US. 16, 10 L.Ed. 2d 720, 724 (1963).... 68,19

Gillespie v. United States Steel Corp.,

379 U.S. 148, 13 L.Ed. 2d 199 (1964)....... 16

Hammil v. Olympia Airways, S.A.,

398 F.Supp. 829 (D.C. Cir. 1975)........... 19

iii

TABLE OF CASES (Continued)

PAGE NO.

Higginbotham v. Mobil Oil Corp.,

545 F.2d 422 (Sth Cir. 1977) .............. 19

Law v. Sea Drilling Corp., 523 F.2d 793,

FOO CeO, BOF oes ced cc ic sede cddcvos 18

Marsh v. Buckeye Steamship Co., 330 F.Supp.

FU Ge SE COTE s Five pvinedvesscsees 17

McLaughlin v. Blidberg Rothchild Co.,

156 F.Supp. 379 (S.D. N.Y. 1966).......... 13

Moragne v. States Marine Lines, 398 U.S.

375, 26 L.Ed. 2d 339, 349, 350, 352, 353,

354,361 (1970)............ 1,2,3,4,6,14,16,17,20,21

Noel v. Linea Aeropostal Venezolana, 260 F.

Supp. 1002 (S.D. N.Y. 1966).............. 14

Nye v. Svendborg, 358 F.Supp. 145

(S.D. N.Y. 1973S) 0.2.0 cceeerccccccccess 19

Peace v. Fidalgo Island Packing Co.,

419 F.2d 371 (9th Cir. 1969).............. 7

Petition of Gulf Oil Corp., 172 F.Supp.

Pan GMA Bes DOME ec cccseccesesecesis 16

Petition of Risdal & Anderson, Inc.,

291 F.Supp. 353 (D. Mass. 1968) ........... 7

iv

TABLE OF CASES (Continued)

Rodrigue v. Aetna Casualty & Surety Co.,

395 U.S. 352, 23 L.Ed. 360 (1969). .......

Romero v. International Terminal Operat-

ing Co., 358 U.S. 354, 3 L.Ed. 2d 368,

TER, TES CGS G) oc ccc cccccccccccccccs

Sea Land Services v. Gaudet, 414 U.S.

573, 39 L.Ed. 24 9,23 (1974) ...........

Sennett v. Shell Oil Co., 325 F.Supp. 1,

7 (B.D. La. 1971) 0. cc ccccccccccccces

Spiller v. Thomas M. Lowe, Jr. &

Associates, 466 F.2d 903 (8th Cir. 1972)...

The Four Sisters, 75 F.Supp. 399

(D. Mass. 1947). .......c eee eee eee eeee

The Hamilton, 207 U.S. 398, 52 L.Ed.

264 (1907) 2. ccccccccccccccccsceces

The Harrisburg, 119 U.S. 199, 30 L.Ed.

358, 359, 360, 362 (1886) ..............

The Sea Gull, 21 Fed. 909,910 (C.C.Md.

LOGE) .. ccccccccccccccccvcccsccccese

Thompson v. Offshore Co., 1977 AMC.

1434 (S.D. Tex. 1977) .... 2... cece eens

PAGE NO.

TABLE OF CASES (Continued)

PAGE NO.

STATUTES:

Death on the High Seas Act,

46 U.S.C.§§ 761, 764, 768, et seq........... 45,6,8,9

12,14,15,16,18,19

Federal Employees Liability Act,

i EEE 4

Federal Tort Claims Act, 28 U.S.C.

$§1291, 1346, 1402, 1504, 2110, 2401,

2402, 2411, 2412, 2671, et seq............. 5

Jones Act, 46 U.S.C. § 688.............000.. 45

Longshoremen and Harbor Workers.

Compensation Act, 33 U.S.C.§§901,

Cis cee seek ad dak Rh wh teed pne ss 4

Maritime Lien Act, 46 U.S.C.§§971, et seq... ... 4

2 Benedict on Admiralty, § 81 at 7-8,

§ 84 at 7-37 (7th Ed. 1975) ............ we ae

59 Cong. Rec. 4480, 4482, 4483, 4484,

EE OR 10,12

G. Gilmore and C. Black, Jr., The Law of

Admiralty, § 6-31 at 364, 365, § 6-33 at

SGD, STO Ad Ha. 197E). ow cc ccccccccccens 21

vi

TABLE OF CASES (Continued)

PAGE NO.

S. Speiser, 2 Recovery for Wrongful Death

2d, §$14:5 at 421-422, n. 64, § 14:6 at

SPE ME bai beoced eats es obs pon 12

J. Stein, Damages and Recovery: Personal

Injury and Death Actions, §268 at 606

CEPR: ceccdbiddecccéseseeebeteceatres 17

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO. 76 - 1726

MOBIL OIL CORPORATION, ET AL..,

Petitioner

versus

MRS. FRANCES NELL HIGGINBOTHAM, ET AL.,

Respondents

On Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit

RESPONSIVE BRIEF ON BEHALF OF

MRS. ARLINE J. SHINN

THE QUESTION PRESENTED

The issue presented to the Court in this litigation is

whether the cause of action for wrongful death under the

General Maritime Law which this Court recognized in Mor-

agne v. States Marine Lines, in overruling The Harrisburg,

supplements the Jones Act and the Death on the High Seas

Act to allow recovery of nonpecuniary damages.

ARGUMENT

“The Basis of Moragne v. States Marine Lines”

“We accordingly overrule The Harrisburg, and hold that

2

an action does lie under General Maritime Law for death

caused by violation of maritime duties.” ' This Court, speak-

ing through Mr. Justice Harlan in Moragne, unanimously

reversed nearly a century of jurisprudence and recognized

the existence of a cause of action for wrongful death under

the General Maritime Law. The pithy and unambiguous

statement representing the holding of this Court is unre-

stricted and contains no territorial or geographic boundaries

or limitations. The cause of action for wrongful death

enunciated by this Court in Moragne and explained further

in Sea-Land Services v. Gaudet,? runs in favor of the bene-

ficiaries of decedents “ ‘who go down to the sea in ships and

do their business on the great waters’ ” > regardless of the

location of the delict-whether on the high seas or within

the territorial waters of a state or nation.

At issue in The Harrisburg “ was whether one could main-

tain a “suit in admiralty . . . in the courts of the United

States to recover damages for the death of a human being

on the high seas, or waters navigable from the sea. . .?” 5

The Court deductively reasoned that the roots of American

maritime law are embedded deeply in the soil of British

admiralty practice, which at that time precluded this cause

1. Moragne v. States Marine Lines, 398 U.S. 375, 26 L.Ed. 2d 339,

361 (1970).

2. 414 U.S. 573, 39 L.Ed. 2d 9 (1974).

3. The Highland Light, Chase’s Dec. 150, quoted in The Harrisburg,

119 U.S. 199, 30 L.Ed. 368, 360 (1886).

4. 119 U.S. 199, 30 L.Ed. 368 (1886).

5. The Harrisburg, supre, 30 L.Ed. at 369.

3

of action, also; and the Court overruled a long line of dis-

trict and circuit court authority to hold that no action lies

in admiralty for deaths occurring on the high seas or on the

navigable waters. A major basis for the Court’s opinion

denying the wrongful death action is succinctly summarized

in one statement by the author of that opinion: “[Wje

know of no country that has adopted a different rule on

this subject for the sea from that which it maintains on

land”.6 However, the Court in The Harrisburg did not re-

strict its holding to territorial waters; it extended to the

high seas, also.

In Moragne, Mr. Justice tiarlan scrutinized the raticnale

of the common law doctrine precluding recovery for wrong-

ful death, the ground upon which The Harrisburg was

decided. The rule denying recovery of compensatory dam-—

ages for the wrongful death of an individual was based on

the concept that the wrongful act constituted both a tort

and a felony; as such, the offending party’s property was

confiscated by the state, and the felony was punishable by

death. The United States did not adopt the felony merger

doctrine; while the felonious act of the offending party

could be punishable, his property was not confiscated by

the state.

This Court in Moragne stated that it was difficult to dis-

cern an adequate reason for extending the common-law rule

to actions governed by maritime law. The admiralty had

always been a separate body of law apart from that of com-

mon law: (1) It was administered by different courts; (2)

its roots were in the civil law; and (3) it developed general

principles different from those of the common law recog

nizing a special solicitude for those who embark on hazar-

6. /d. at 362.

dous duties on the sea.

Then, turning to ascertain whether there is any legislative

or public policy prohibiting wrongful death actions in ad-

miralty, this Court concluded that there was none.

Decisional law often finds its bases in legislative enact-

ments. As Justice Harlan in Moragne stated, particular legis-

lation plays a broader role than the limited parameters

drawn by the enactments of ~ » gislative body. It is an

obligation of the Court to i ‘y*weave legislative policies

with the body of decisional legal principles.” In the United

States, every state has enacted wrongful death legislation ; in

addition, the Congress has enacted a body of laws permitt-

ing recovery for death. (Federal Employees Li-

ability Act,® Jones Act? Death on the High Seas Act, '°

Federal Tort Claims Act '' and Longshoremen and Harbor

Workers’ Compensation Act 12) Accordingly, this Court

reasoned that the heretofore existing public policy against

recovery for wrongful death had been abrogated; and,

rather, the public policy now is to favor recovery for the

wrongful death of an individual.

7. Moragne, supra, 26 L.Ed. 2d at 352.

8. 45 U.S.C.$§51, et seq.

9. 46 U.S.C. § 688.

10. 46 U.S.C§§ 761, et seq.

11, 28 U.S.C. §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411,

2412, 2671, et seq.

12. 33 U.S.C§§ 901, et seq.

5

When this Court reconsidered its decision in The Harris-

burg and overruled it finding its reliance on English authori-

ty for wrongful death actions misplaced, practitioners be-

fore the admiralty bar had thought that a final vestige and

yoke of anachronistic legal authority had been thrown off

and discarded from American maritime law. However, old

theories and historical precedents, no matter how misplaced

or misguided their logic and basis may be, die slowly and

often attempt to rear their heads in a last chance at survival,

only to realize finally that their days have long since gone

and like victims to the vicissitudes of life at sea are lain to

rest at last. Respondent rhetorically asks, as did the author

of te opinion in The Harrisburg: ‘Why should a different

rule be adopted on this subject for the high seas from that

which it [applies] on land and on territorial waters?’’ Clear-

ly, such an arbitrary and illogical conclusion cannot be de-

fended on moral, rational or legal grounds.

“‘DOHSA and the Jones Act Are Not Exclusive Remedies”

Petitioner submits to this Court that the Death on the

High Seas Act ' and/or the Jones Act '* is the exclusive

remedy for deaths occurring on the high seas. As Congress

has enacted legislation to provide a remedy and a basis for

recovery for deaths occurring on the high seas, the area

is preempted, and the courts are precluded from delineating

the rights, duties and liabilities of parties in that field.

Yet, petitioner ignores the interplay and relationship in

the field of maritime law between statutory authority and

13. Supra, n. 10.

14. Supra, n.9.

6

jurisprudential authority. Admiralty law and practice in

the United States constitutes both statutory and jurispru-

dential elements which have been woven together into «

flexible fabric. As this Court in Fitzgerald u United States

Lines Co." stated:

Article III of the Constitution vested in the feder-

al courts jurisdiction over admiralty and maritime

cases, and, since that time, the Congress has

largely left to this Court the responsibility for

fashioning the controlling rules of admiralty law.

This Court has long recognized its power and

responsibility in this area and has exercised that

power where necessary to do so.

Petitioner’s position that DOHSA and/or the Jones Act

is the exclusive remedy for deaths occurring on the high

seas and that decisional law, Moragne and Gaudet, cannot

supplement the congressional enactments is untenable,

particularly when one considers that the courts in the past

have so judiciously woven together the rights and remedies

afforded to seamen by statutory as well as decisional law.

The Jones Act 'Swas enacted by Congress to overrule the

fellow-servant doctrine, thus affording a seaman a cause of

action for negligence against his employer. It is elementary

in admiralty law that the Jones Act is not the sole and ex-

clusive remedy afforded to seamen for personal injuries

sustained while in the service of the vessel; a seaman has at

his disposal the additional remedy of unseaworthiness, a

remedy created by decisional law. The proposition ad-

vanced by petitioner in this cause would have the Court

ignore this type of interelationship between statutory and

16. 374 U.S. 16, 10 L.Ed. 2d 720, 724 (1963).

16. Supra, no. 9.

7

decisional remedies created for the benefit of an injured

seaman.

In addition, the courts have interpreted neither DOHSA

nor the Jones Act to be the exclusive remedy to recover for

the death of a seaman on the high seas. The Second Circuit

in Doyle v. Albatross Tanker Corp."7 answered that inquiry

in the negative stating:

There is not a whisper in the text of the Jones

Act or its legislative history to indicate that,

with respect to seamen in the special area covered

by the Death on the High Seas Act, Congress in-

tended the Jones Act to supersede the Death on

the High Seas Act .... Moreover, it appears to

be the settled law of the lower federal courts,

expressed in numerous cases, that both statutory

remedies may be availed of for the purpose of

recovering damages for the wrongful deaths of

seamen caused by occurrences on the high seas,

and that the action in admiralty created by the

Death on the High Seas Act may be pursued by

the personal representative of a deceased sailor as

well as the action at law provided for in the Jones

Act.

The Jones Act, while it provides a remedy to recover

damages from the employer for the death of the seaman,

allows recovery only on the basis of negligence. Yet, the

courts have augmented this statutory remedy with the

17. 367 F.2d 465, 466-467. (See, also, Petition of Risdal & Ander-

son, inc., 291 F.Supp. 363 (D. Mass. 1968); Peace v. Fidalgo Island

Packing Co., 419 F.2d 371 (9th Cir. 1969); G. Gilmore and C. Black,

Jr., The Law of Admiralty, § 6-31 at 364 (2d Ed. 1975).

8

Death on the High Seas Act’s more liberal basis of recovery,

that is, for the breach of the warranty or seaworthiness. '8

In addition, DOHSA, in supplementing and complementing

the Jones Act, affords a remedy for an additional class

of beneficiaries to that of the Jones Act. '? Furthermore,

a claimant may join a claim under the Jones Act with an

action based on the breach of warranty of seaworthiness

and with that of the traditional maritime remedy for

maintenance and cure and have all actions tried to a jury. 2°

This interplay of statutory remedies and the integration of

statutory and decisional law are the hallmarks to the flexi-

bility of the admiralty. As these elements have been woven

together, so can the now judicially recognized action for

wrongful death under the General Maritime Law be added

as another strand to strengthen that fabric which constitu-

tes the admiralty law of the United States.

The interrelationship of statutory remedies is not limited

to the interaction between these federal statutes, DOHSA

and the Jones Act. In addition, the admiralty courts have

traditionally enforced rights afforded to litigants by state

law. As Mr. Justice Frankfurter in Romero v. International

Terminal Operating Co. ?'stated:

Although the corpus of admiralty law is federal in

the sense that it derives from the implication of

Article 3 evolved by the courts, to claim that all

enforced rights pertaining to matters maritime are

rooted in federal law is a destructive oversimpli-

fication of the highly intricate interplay <i the

18. 2 Benedict on Admiralty,§ 81 at 78 (7th Ed. 1975).

19. The Four Sisters, 75 F Supp. 399 (D. Mass. 1947).

20. Fitzgerald, supra, n. 16

21. 358 U.S. 364, 3 L.Ed. 2d 368, 382 (1959).

a

9

States and the National Government in their regu-

lation of maritime commerce.

Despite the fact that Congress has enacted legislation

governing maritime the remedies and rights afforded

by this legislative authority are not exclusive, for liens

created by state laws are enforceable in admiralty. In ad-

dition, the admiralty borrows from and enforces state laws

and rules for “the partition and sale of ships, state laws

governing the specific performance of arbitration agree-

ments, state laws regulating the effect of a breach of war-

ranty under the contracts of maritime insurance. . . .” 29

The liberal policy of the admiralty law to adopt and borrow

from other bodies of law is a tribute to its adaptibility and

vitality which allows it to set trends rather than lag behind

as a mere follower of precedent and tradition.24

In addition, that DOHSA evidences no intention on the

part of Congress to make the Act the sole and exclusive

remedy for deaths occurring on the high seas is clear from

the legislative history and debates on the floor of the House

of Representatives. As originally proposed, Section 7 of the

Act stated as follows:

That the provisions of any state Statute giving or

regulating rights of action or remedies for death

shall not be affected by this Act as to causes of

action accruing within the territorial limits of any

State 25

22. 46 U.S.C.§§97 1, et seq.

23. Romero, supra, 3 L.Ed. 2d at 383.

24. See, also, Dugas v. National Aircraft Corp., 438 F.2d 1386 (3d

Cir. 1971).

25. 58 Cong. Rec. 4480 (1920).

J 10

The legislative debates on the Act demonstrate that one

of the major concerns of congressmen was that Section 7, as

originally proposed, might restrict the rights of action and

remedies afforded by state law to its citizens2® Congress-

man Mann of Illinois ied the opposition to Section 7 be-

cause of his concern: that the legislation would abrogate a

citizen’s right to remedies extended to him by state law.

He, therefore, successfully brought an amendment to the

Act deleting the last clause, leaving Section 7 to read as

follows:

That the provisions of any state Statute giving or

regulating rights of action or remedies for death

shall not be affected by this Chapter.??

26. /d., at 4484.

27. 46 U.S.C. § 768:

THE SPEAKER PRO TEMPORE. The gentieman from lilinois

offers an amendment, which the Clerk will report. The Clerk read

as follows:

Amendment offered by Mr. Mann of Illinois: Page 3, line 12, after

the word “act,” strike out’ as to causes of action accruing within

the territorial limits of any State.”

MR. MANN OF ILLINOIS: Now, | do not know whether | am

right or wrong about it, because | have not examined the report on

this bill carefully as reported this time. But | remember this bill

very distinctly in previous Congresses, and my impression, which

very likely may be erroneous, is that the purpose of the bill was to

confer jurisdiction in certain cases of death where no jurisdiction

now exists. |! was under the impression that the bill wes not in-

tended to take away any jurisdiction which can now be exercised

by any State court. | may be wrong about that. | notice in the

report in one place, on page 2, this statement from somebody:

11

This Court in Gaudet, after studying the legislative his-

tory of DOHSA, found that the legislation and the con-

gressional intent do not abate or preclude the creation of a

jurisprudential remedy to operate concurrently with the

statutory scheme:

We recognize, of course, that our decision permits

recovery of damages not generally available under

the Death on the High Seas Act. . . . After

combing the legislative history of the Death on

the High Seas Act, we concluded in Moragne

that Congress expressed ‘no intention. . . of

foreclosing any nonstatutory federal remedies

that might be found appropriate to effectuate the

policies of general maritime law.’ [Citation

omitted.] Nothing in the legislative history of

the Act suggests that Congress intended the

Act’s statutory measure of damages to pre-empt

any additional elements of damages for a mari-

time wrongful death remedy which this Court

may deem ‘appropriate to effectuate the policies

of general maritime law.’28

(Footnote 27 - Continued)

We are very anxious to have the bill go through in its present

simple form, which avoids conflict with State statutes and yet

remedies a crying defect in the maritime law as administered in

this country - and so forth.

If the amendment which | have suggested should be agreed to, the

bill would not interfere in any way with rights now granted by any

State statute, whether the cause of action accrued within the

territorial limits of the State or not. \n other words, if a man had

@ cause of action and could get service, he could sue in @ State

court and not be required to bring suit in the Federal court. 59

Cong. Rec. at 4484, emphasis supplied.

28. Gaudet, supra, 38 L.Ed. 2d at 23, no. 22.

12

Thus, this Court has previously held that DOHSA is not

exclusive and that the General Maritime Law operates as a

supplement to augment the previously provided statutory

remedy. 2

It has been held by this Court that it is not inimical to

the interests of the Maritime Law to apply state laws in

maritime causes of action.99 In The Hamilton, 3"the Court,

through Mr. Justice Holmes, unequivocally held that state

law in an action for wrongful death between citizens of the

same state could be utilized by the claimant as a means of

recovery for wrongful death. The passage of DOHSA, as

amended, did not in any way restrict, limit or affect the

holding of this Court in that case. 32

It is further evident from the congressional debates on

the Act that DOHSA was intended to be a jurisdictional

statute, only conferring jurisdiction in the federal court for

deaths occurring on the high seas. A primary concern dur-

ing the debates was the effect of encroaching federal juris-

diction on that of the state courts.2° The Act removed a

jurisdictional bar; it did not create an exclusive remedy.

29. See, also, S. Speiser 2 Recovery for Wrongful Death 2d,§ 14:5 at

421-422, n. 64, wherein the author implicitly criticizes the First Cir-

cuit’s reasoning in Barbe v. Drummond, 507 F.2d 794 (1st Cir. 1974),

that DOHSA is the exclusive remedy for deaths occurring on the high

seas; see, also, G. Gilmore and C. Black, Jr., The Law of Admiralty,

§6-31 at 365.

30. Romero, supra, n. 21.

31. 207 U.S. 398, 52 L.Ed. 264 (1907).

32. See, also, Dugas v. National Aircraft Corp., supra, n. 24.

33. 59 Cong. Rec. 4482-4486 (1920).

13

It is further submitted that, with respect to the elements

of damages recoverable under DOHSA, the Act is not ex-

clusive, for by its express provisions the incorporation of

foreign law is permitted to supplement the damages recover-

able under the Act. Section 764 states as follows: |

Whenever a right of action is granted by the law

of any foreign State on account of death by

wrongful act, neglect, or default occurring upon

the high seas, such right may be maintained in an

appropriate action in admiralty in the courts of

the United States without abatement in respect

to the amount for which recovery is authorized,

any statute of the United States to the contrary

notwithstanding.*4

In McLaughlin v. Blidberg Rothchild Co.2° two libels

were brought to recover for the wrongful death of an

American seaman occurring in Japan. The first libel was for

the recovery of the pecuniary damages sustained and was

predicated on the Jones Act and DOHSA; the second was to

recover the nonpecuniary damages sustained by the dece-

dent, including the pain and suffering of the decedent, and

was predicated on the wrongful death provisions of the

Japanese Civil Code. The court permitted the integration of

these bases of recovery to allow the litigants to be compen-

sated for the pecuniary, as well as the nonpecuniary, dam-

ages.

34. 46 U.S.C. § 764.

35. 156 F.Supp. 379 (S.D. N.Y. 1967).

14

Again, in Noel v. Liriea Aeropostal Venezolana,*® 46 U.S.

C. § 764 was relied on specifically to permit the recovery of

nonpecuniary damages, in that instance loss of solatium,

with the incorporation of Venezuelan law to supplement

DOHSA.

Must American citizens who lose their lives on the high

seas depend upon incorporation of the law of a foreign

state in order to recover nonpecuniary damages? Must an

American citizen who loses his life on the high seas be

denied full recovery for the nonpecuniary damages sustain-

ed merely because of the fortuitous citizenship of a tort-

feasor? Such grounds for permitting or denying recovery of

particular damages lacks a rational basis and is contrary to

the reasoning and sound grounds on which this Court de-

cided the Moragne case.

‘Territorial Restriction of Moragne-Gaudet Would

Create New Anomalies’

Prior to Moragne, the rules of law which had evolved

concerning the rights and remedies for wrongful deaths

occurring on the high seas and in state territorial waters

created three anomalies which the Court recognized as in-

equitable:

[First] within the territorial waters, identical

conduct violating federal law (here the furnishing

of an unseaworthy vessel) produced liability if

the victim was merely injured, but frequently not

if he was killed.

36. 260 F.Supp. 1002 (S.D. N.Y. 1966).

15

[Second], identical breaches of the duty to pro-

pp eagare den Se wrrsa hgh ng) a ie

ed liability ou three-mile limit. . . but

not within the territorial waters of a State when a

local statute excluded unseaworthiness claims.

[Third], a true seaman-that is, a member of a

ship’s company, covered by the Jones Act was

provided no remedy for death caused by unsea-

worthiness within territorial waters while a long-

shoreman to whom the duty of seaworthiness was

extended only because he performs work tra

ditionally done by seamen, did have such a rem-

edy when allowed by a State statute”

These anomalies recognized by the Court have destroyed

the constitutionally mandated uniformity of the maritime

law.

Our recognition of a right to recover for wrong-

ful death under General Maritime Law will assure

uniform vindication of federal policies, removing

the tensions and discrepancies that have resulted

from the necessity to accommodate state reme-

dial statutes to exclusively maritizne substantive

concepts. [Citations omitted.] Such uniformity

not only will further the concerns of both of the

1920 Acts [DOHSA and the Jones Act] but also

will give effect to the constitutionally based

principle that Federal Admiralty Law would be a

‘system of law co-extensive with, and operating

unformly in, the whole country .’38

37. Moragne, supra, 26 L.Ed. 2d at 363-364.

38. Id. at 360.

16

The anomalies created by the territorial distinctions not-

ed by the Court in Moragne would be perpetuated and even

new inconsistencies would be created if the Moragne cause

of action for wrongful death were to be geographically

limited solely to those deaths occurring on territorial

waters. ©? For example, the rule of The Hamilton would

remain viable permitting actions to be brought under state

law for wrongful death where the claimant and defendant

are citizens of the same state.*' Claimants who would be

able to avail themselves of foreign law pursuant to 46 U.S.

C. § 764 to complement DOHSA could recover nonpecu-

niary damages, whereas those unable to utilize that pro-

vision of the Act would be precluded from that recovery.

Finally, true seamen—those covered by the Jones Act-would

be limited to recovery under the Jones Act and DOHSA and

would be foreclosed from relying on a state statute to re-

cover nonpecuniary damages, a remedy available to non-

seamen who die on the high seas! 42

To territorially limit the holding of Moragne would limit

the elements of recovery depending on the fortuitous lo-

cation of the death and the citizenship of a tortfeasor.

Why sould elements of damages depend on these fortui-

38. See 2 Benedict, supra, §84, 7-37.

40. Supra, n. 31.

41. See, also, Petition of Gulf Oil Com., 172 F.Supp. 911 (S.D. N.Y.

1969), Wherein Judge Paimiere utilized the provisions of the Pennsy!-

vania survivor's action to supplement DOHSA for recovery of the

decedent's pain and suffering.

42. Gillespie v. United States Steel Com., 379 U.S. 148, 13 L.Ed. 2d

199 (1964).

17

tous circumstances, particuurly when a uniform body of

federal law should apply? Should the rights of claimants be

any more or less when delictual conduct is committed on

the high seas rather than territorial waters? Respondent

respectfully submits that to geographically restrict the Mor-

agne cause of action would be an arbitrary and capricious

limitation which contravenes the admiralty’s “special soli-

citude for the welfare of those men who undertake to ven-

ture upon hazardous and unpredictable sea voyages” and

contradicts the rule of the “humane and liberal character

of proceedings in admiralty to give than to withhold the

remedy.’"43

It is respectfully submitted that petitioner’s reliance on

Barbe v. Drummond“ is misplaced for two reasons. First,

the First Circuit was concerned with the issue of recovery

on behalf of the administrator of decedent’s estate damages

for the decedent's conscious pain and suffering prior to

death, an element of damages permitted by the survival

action as opposed to a wrongful death action. It followed

the lead of the Eighth Circuit to create a survival action

under the General Maritime Law“® Second, ‘‘the Barbe

i.

“| . and certainly it better becomes the humane and liberal

of proceedings in admiralty to give than to withhold the

remedy, when not required to withhold it by established and inflex-

ble rules.” Moragne, supra, 26 L.Ed. 2d at 349, quoting from The

See Guill, 21 Fed. 908,910 (C.C. Md. 1865).

44

. 502 F.2d 794 (1st Cir, 1974).

45. See Spiller v. Thomas M. Lowe, Jr., & Associates 466 F.2d 903

(8th Cir. 1972), and Marsh v. Buckeye Steamship Co., 330 F.Supp.

972 (N.D. Ohio 1971); S. Speiser, supra, § 14:6 at 423 (2d Ed. 1975);

J. Stein, Damages and Recovery: Personal Injury and Death Actions,

§ 268 at 606 (1972).

18

Court would allow conscious pain and suffering under the

‘federal maritime survival action, created by decisional law’

but would deny loss of society [and loss of services] for the

same reason,” 48an illogical result.

That court in dictum stated that DOHSA was the exclu-

sive remedy for deaths occurring on the high seas. Yet, it

employed the methodology used by this Court in Moragne

to create a survival action permitting the recovery of non-

pecuniary damages for the conscious pain and suffering of

decedent prior to her death.*” This contradition cannot be

reconciled without concluding that the General Maritime

Law complements and supplements the statutory remedies

enacted by Congress: Decisional law as enunciated by this

Court, eugmente the lacunae left by congressional legisla-

tion.

Many courts since the Moragne decision have reasoned

that the cause of action created by that landmark case has

no geographic limitations and that the statutory remedy

may be joined with the jurisprudentially recognized remedy

to permit recovery of the full panoply of damages for

deaths occurring on land. In Sennett v. Shell Oil Co. *®

Judge Rubin analyzed the Moragne decision and concluded

46. Law v. Sea Drilling Cor., 523 F.2d 793, 795 (Sth Cir. 1975).

47. See Speiser, supra, § 14:5 at 421, n. 64.

48. Similarly, state law is adopted as surrogate federal law to fill the

voids left by federal law for actions occurring on fixed platforms on

the Outer Continental Shelf Rodrigue v. Aetna Casualty & Surety

Co., 395 U.S. 352, 23 L.Ed. 2d 360 (1968).

49. 325 F.Supp. 1 (E.D. La. 1971).

19

that Congress, by enacting DOHSA, did not intend to place

a limitation on the recovery for maritime wrongful death:

As Moragne pointed out,the policy implicit in the

state and federal wrongful death statutes indicates

that recovery for maritime death should be per-

mitted absent ‘a legislative directive to except a

particular class of cases.’ [Citations omitted.]

Congress has not so directed. The Death on the

High Seas Act is not an exclusive remedy for

those whose relatives pate wrongfully one

marine league from shore.

The Fifth Circuit in this case concluded that the heirs of

decedents could recover both pecuniary and nonpecuniary

damages, pursuant to the nonstatutory maritime wrongful

death action5' Pecuniary damages are recoverable under the

statutory remedies, DOHSA and the Jones Act, where

applicable. ‘The practical effect of such a procedure is to

furnish a uniform remedy based on unseaworthiness to

beneficiaries of seamen killed within and beyond state

territorial waters.” 52 This procedure is analagous to the

joinder of the statutory Jones Act remedy with the juris-

prudential remedy of unseaworthiness and maintenance

and cure in personal injury litigation in order to obtain a

jury trial. 59

50. id. at 7; see also, Nye v. Svendborg, 368 F.Supp. 145 (S.D. N.Y.

1973); Hammil v. Olympia Airways, S.A., 308 F.Supp. 829 (D.C.

Cir. 1975); Estate of Kauzlarich, 406 F.Supp. 332 (D. S.C. 1975).

51. Higginbotham v. Mobil Oil Corp., 545 F.2d 422 (Sth Cir. 1977);

Thompson v. Offshore Co,, 1977 A.M.C. 1434 (S.D. Tex. 1977); see,

also Dennis v. Central Gulf Steamship Corp., 453 F.2d 137 (5th Cir.

1972), cert. den., 408 U.S. 948, 34 L.Ed. 2d 218 (1972).

52. 2 Benedict, supra,§ 84 at 7-37.

53. Fitzgerald, supra, n. 15.

20

To limit the application of Moragne to territorial waters

would effectively re-entrench in the maritime law a locality

test alone which was abrogated by this Court in Executive

Jet Aviation v. City of Cleveland, Ohio™ Maritime juris-

diction requires locality and a “‘significant relationship to

traditional maritime activity.”©5 The locality test is a sim-

plistic but often difficult and perplexing rule to apply. This

Court in Executive Jet noted that “not only is the locality

test in such cases wholly adventitious, but it is sometimes

almost impossible to apply with any degree of certainity.""©6

CONCLUSION

In summary, the proposition advanced by petitioner is

unsupported by this Court’s pronouncements in both Mor-

agne and Gaudet and their progeny. Neither DOHSA nor

the Jones Act exist in a vacuum to the exclusiveness of any

other remedy, as this Court previously found and as is evi-

denced by the Act itself and its legislative history.

‘Maritime law is not a monistic system.”’ 5”

It is eclectic and borrows its substantive body from a

wide range of sources. In fashioning the rules governing the

General Maritime Law, this Court has woven together into

a flexibile fabric elements of statutory, both federal and

state, as well as decisional law. The statutory remedies,

DOHSA and the Jones Act, need not rest in the briney deep

and they need not be reduced to the “level of a nonstatu-

54. 409 U.S. 249, 34 L.Ed. 2d 464 (1972).

55. /d., 34 L.Ed. 2d at 467.

56. Executive Jet, supra, 34 L.Ed. 2d at 466.

57. Romero, supra, 3 L.Ed. 2d at 383.

21

tory Restatement.”58 They may remain as a basis for the

recovery of pecuniary damages for deaths occurring on the

high seas and may be augrnented by the remedy enunciated

by this Court in Moragne.

Accordingly, respondent respectfully urges that the de-

cision of the Fifth Circuit be upheld.

Respectfully submitted,

KIERR, GAINSBURGH,

BENJAMIN, FALLON & LEWIS

BY:

Jack C. Benjamin and

Arthur A. Crais, Jr.

1718 First National Bank of

Commerce Building

New Orleans, Louisiana 70112

504 - 522 - 2304

Attorneys for Mrs. Arline J.

Shinn, Ind., et al.

58. G. Gilmore and C. Black, Jr., The Law of Admiralty, § 6-33 at

369-370.

22

CERTIFICATE OF SERVICE

The undersigned counsel for respondent has caused three

copies of the foregoing Responsive Brief on Behalf of Mrs.

Arline J. Shinn to be served on Carl J. Schumacher, Jr.,

1106 Arabella Street, New Orleans, Louisiana 70115; Jack

Caldwell, 519 Main Street, Post Office Box 592, Franklin,

Louisiana 70538; Messrs. Christovich & Kearney, American

Bank Building, New Orleans, Louisiana 70130; Messrs.

Thompson and Sellers, Post Office Box 308, 112 South

Louisiana Avenue, Abbeville, Louisiana 70510; and IP.

Saal, Jr., Post Office Box 176, Gueydan, Louisiana, by

placing same in the United States mail, postage prepaid,

this 15th day of December, 1977.

Jack C. Benjamin