# Respondents Brief — Mobil Oil Corp. v. Higginbotham > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1961%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1978 - **Citation:** 436 U.S. 618 ## Text 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