Petition for Writ of Certiorari — Minnicks v. Mistich

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| 9071656 Supreme Court, U.&

FILED

NO. MAY 23 1991

IN THE ae al

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

HETTIE M. MINNICKS,

as Executrix of the Succession

of Stephen A. Mistich

Petitioner,

versus

BRANDON L. MISTICH,

REBECCA MISTICH TERRASE,

and PATRICIA MONROE MISTICH, as natural tutmx

of SHAWN A. MISTICH

Respondents.

Petition on Behalf of Hettie M. Minnicks,

as Executrix of the Succession of Stephen A. Mistich,

For Writ Of Certiorari To The Louisiana State Court

Of Appeal, Fourth Circuit

Frank H. Walk, Jr.*

Frederick W. Swaim, Jr.,

Professor of Law,

Loyola University School of Law,

New Orleans, Louisiana

600 Carondelet St., Suite 602

New Orleans, Louisiana 70130-3587

(5U4) 522-6090

Counsel for Petitioner

*Counsel of Record

Pel Hughes Printing, Inc., 134 Carondelet St., New Orleans, LA (504) 523-2618

5¢

QUESTIONS PRESENTED FOR REVIEW

In a Jones Act and general maritime law personal injury

Case in state court under the “saving to suitors” clause, when the

plaintiff seaman dies after award of a final judgment in his favor:

1. Does federal maritime law or state law determine the

substantive beneficiary of the final judgment?

2. Does federal maritime law designate the seaman’s

estate as the substantive beneficiary of the final judgment?

PARTIES TO THE PROCEEDINGS

Hettie M. Minnicks

Brown and Root, Inc.*

Brandon L. Mistich

Rebecca Mistich Terrase

Patricia Monroe Mistich, as natural tutrix of Shawn A. Mistich

*Its parent company is Halliburton, Inc.; its partially owned

subsidiaries are:

Brown & Root Constructores Petroleros de Venezuela,

C.A.

Brown & Root Do Brasil Servicos Maritimos Ltda.

Brown & Root Ingenieros Petroleros de Venezuela, C.A.

Brown & Root (Malaysia) Sdn. Bhd.

Brown & Root - Malta Limited

Brown & Root Nigeria Limited

Brown & Root - Saudi Limited

Constructora Indolatina, S.A. de C.V.

Constructores de Venezuela, Brown & Root, Inc., C.A.

Halliburton Holdings, Inc.

Manteniven, S.A.

Martec-Engenharia & Obras Ltda.

P.T. Brown & Root Indonesia

SBR Offshore Limited

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .............cccceceses0- i

PARTIES TO THE PROCEEDINGS .............cccccscsesssesseceeees li

EE RINNE hice. snsnsosdskcisdssecsesnsasesnsverecssscvecscsece lil

TPR I FA ES anno sescksceccssiccscidiscssceceovececcseses iv

asses csnssttnnetmenton l

pO EE SS a Oe l

ID sacs sccescseapacasesecsssseseseccnseese 2

RPMI OO DEMIS CASES oon. .cccccccecesesecccocosevesosesososes 6

FEDERAL QUESTIONS RAISED TIMELY .................... 10

ARGUMENT

I. WHETHER FEDERAL MARITIME LAW

OR STATE LAW DETERMINES WHO IS

THE SUBSTANTIVE BENEFICIARY OF

THE FINAL JUDGMENT. ...............cccccccccccosssceseess 10

Il. WHETHER UNDER FEDERAL MARITIME

LAW THE SUBSTANTIVE BENEFICIARY OF

THE FINAL JUDGMENT IS THE SEAMAN’S

NINN balls elistlatadscadshcadevesesccasahicie<ssccieseakcon<scovacecece 27

I 36

TABLE OF AUTHORITIES

Page

CASES

Ahearn v. Goble, 90 Colo. 173, 7 P.2d 409 (1932) ..........4+- 30

Askew v. American Waterways Operators, 411 U.S. 325,

93 S.Ct. 1590, 36 L.Ed.2d 280 (1972).........secsereeee ails 11

Asklar v. Honeywell, Inc., 96 F.R.D. 419 (D.Ct. 1982)....... 34

Baggett v. Richardson, 473 F.2d 863 (Sth Cir. 1973) ......... 11

Bailey v. Travelers Insurance Co., 383 S.W. 2d 562

(Tex. 1964) ...c.cccecccoccesccecescscsvscenscccsencescseencesnenecsesssesssees 30, 31

Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct.

1117, 55 L.EG.2d 357 (1978) ..........0.:..cccccrscossccoccrececcoees 32, 33

Bournias v. Atlantic Maritime Co., 220 F.2d 152,

154 (Dune Che: 1DES) ists sriciriccrcitecsscnsssntocposcsbssiccccnasencccvecceces 26

Branch v. Schumann, 445 F.2d 175 (Sth Cir. 1971)............ 13

Brundrett v. Hargrove, 204 Ark. 258, 161 S.W.2d

TER CIDEDD . sahciniinintnvstinninabaans tienen eessncvasschnererwenisbistininnincionn 30

In re Burnison’s Estate, 204 P.2d 330 (Cal. 1949), aff'd, U.S.

v. Burnison, 70 S.Ct. 503, 339 U.S. 87 (1950) .........:.ecceeeee 23

Butler v. American Trawler Co., 887 £.2d 20

CTeae Ce Ba abil scncsserennnerecssrncsecsecncecenssccescessees 17

Byrd v. Byrd, 657 F.2d 615 (4th Cir. 1981) ..........cssesseeseees 18

TABLE OF AUTHORITIES (cont'd)

Page

Castelluccio v. Cloverland Dairy Products Co., 165

ey ee fs , FR eee 30, 32

Chelentis v. Luckenbach S.S. Co., 247 U.S. 372,

Fe ee hg Ge MM. BETS CEE) cccscccscssscatecssscocssasonse 12, 37

Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349,

RRR TSA SRE eset OR Cee Te 26

Ciolino v. Sciortino Corp., 721 F.Supp. 1491

SM Siren EA rs 2 cn a a 18

Connors v. Gallick, 339 F.2d 381 (6th Cir. 1964)

asetanesiaanmtaadiaamalmamamamian sami es i merene ase 14, 29, 30, 33, 35, 36

Coughlan v. District of Columbia, 106 U.S. 7, 1 S.Ct.

Fg ee I: PT has caacinaecinnaiiaipntetentcnte en ana tt 32, 33

Daughtry v. Diamond M Co., 693 F.Supp. 856 (E.D. Cal.

RUIN cotsteticesoneen sallesiptbliencatglpsodalmadachgataemenan manent Sta: 18

RE IR SNe NeT NOEon E Tor NO i Ce 13

Exxon Corp. v. Chick Kam Choo, 817 F.2d 307 (Sth Cir.

1987), reversed on other grounds, 486 U.S. 140, 108

S.Ct. 1684, 100 L.Ed.2d 127 (1988)... 11, 19,27

Fowden v. Pacific Coast Steamship Co., 149 Cal.

RINE. ccacenesehusnebiendaceimeheamtraaesdh aguas ticimettecobchaeehiocncuse 23, 30, 32

Garrett v. Moore-McCormack Co., 317 U.S. 239,

63 S.Ct. 246, 87 L.Ed. 239 (1942)..........ccsccccccccceccccscecess 15, 27

TABLE OF AUTHORITIES (cont'd)

Page

Genetics International v. Cormorant Bulk Carriers, 877

F.2d 806 (Sth Cir. 1989) .......crcccccrssccrscesssesesescosreccsscasonsesncses 18

Gordon v. Hillman, 102 Wash. 411, 173 P.22 (1918)......... 30

Haggerty v. Moran Towing & Transportation Co., 556

N.Y.S.2d 314 (A.D. 1 Dept. 1990) .......cccceseecseeeseneeenseeneees 26

Hamer v. New York R. Co., 244 U.S. 266, 61 L.Ed. 1125,

FF BAe: SAL CDI ik. hiivciecidhbckcndeecreeciiinincntiienttiotions 30, 33

Heilenic Lines v. Rhoditis, 398 U.S. 306, 90 S.Ct.

RPA, DEE Te. Ba TAT aiiiadeiticcclisnntdetidetereshibitinccrinweeeses 24

Heuchert v. State Industrial Acc. Commission, 168

Chr, Fh, FBI TDR ASE CIEE cinecnttcsastsssicecscbitebscidibisinscncecsvics 30

Icelandic Coast Guard v. United Technologies Corp., 722

F. Supp. 942 (D. Conn. 1989) ..........sssceseeseneeseeeennenseeeeneeees 19

Ikospentakis v. Thalassic Steamship Agency, 915 F.2d 176

CS Ce, BDI onc chcdivcnctecinisieestdithinicibicttbiecbablistctbintbcsnathes 19

JB. Effenson Co. v. Three Bays Corp., 238 F.2d 611

CE Ge, BD cchetnibeclteathesedadecsitibicecdasintiatbedhteierelacinntts 17, 33

J. Ray McDermott & Co. v. Vessel Morning Star, 457 F.2d

815 (Sth Cir. 1972) (en banc), cert. denied, 409 U.S.

948, 93 S.Ct. 271, 34 L.Ed.2d 218 (1972)...............0008 17, 20

Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687,

BS L.Ed. DOS (1DH1) ......rcsccsesccssscrcerocesocescsoecnnecccsenesenecsscoses 11

vii

TABLE OF AUTHORITIES (cont'd)

Page

Kaspar Wire Works v. Leco Engineering and Machine,

FED TU SON COU Cle AN FD ccscecthtavitahahicsernsinininadinindien 30, 33

Kermarec v. Compagnie Generale Transatlantique, 358 U.S.

625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959) wooo. 22, 24

Kirby v. Albert TJ., 517 So.2d 974

hs A, Say SU De Gabe tact ndicdicchcciscnctbicicthedecesnatss 32

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40

DA, Sa, GO Ee BS CI hi cahi ek Siikasidideecacsnscinccsces 12

Kolsopoulos v. Asturia Shipping, 467 F.2d 91

RR TE ee ee CNC OT 32, 33

Kossick v. United Fruit Co., 365 U.S. 731, 81 S.C>. 886,

Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921,

FF CRs BAO GUD OED desciiicestndnenenletbiitldaibbesdibaiardherssaiaios 24

Lerner v. Karageorgis Lines, 488 N.E.2d 824 (N.Y. 1985) .26

Levenson v. Deupree, 345 U.S. 648, 73 S.Ct. 914,

Fe AR RR ED chescleneccbiibeks Aaiaalies db heTthichiahiabsidvianiens 27

Madruga v. Superior Court, 346 U.S. 556, 74 S.Ct. 298,

Se Se ETD ele dreitecnskdanat lichens cnlttebecltnitibiiss 12

Marcano v. Offshore Venezuela, 497 F.Supp. 204

CAM Ta salad bedanicintnbinicdeneaiconstbatibisbubsttn Shcneciessbisl 33

TABLE OF AUTHORITIES (cont'd)

Page

Matter of Rederi [Dow Chem. Co.], 25 N.Y.2d 576,

307 N.Y.S.2d 660, 225 N.E.2d 774 (1970), cert. denied,

398 U.S. 939, 90 S.Ct. 1844, 26 L.Ed.2d 272 (1970) .......... 26

Matterhorn, Inc. v. NCR Corp., 727 F.2d 629

CP Ee BE cecnernesecarqensvnnergneenneenngepesnmennanans 32, 33

Mayor of City of Anniston v. Hurt, 140 Ala. 394, 37

Sn Fe crctansepnatitianenaninigmemaninmmanigianganten 30

Miles v. Apex Marine Corp., 111 S.Ct. 317

CD cnrtseasemnenniiciannapemeenetinareennen 22, 24, 37

Moore-McCormack Lines v. Amirault, 202 F.2d 893

CE Ti caaininetenctistenmnnnemsmmenitimnemennitamanneanas: 13

Moragne v. States Marine Lines, 398 U.S. 375,

90 S.Ct. 1722, 26 L.Ed.2d 339 (1970) ..................... 18, 21, 24

Nathan v. Touro Infirmary, 512 So.2d 352 (La. 1987) .......... 7

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207,

106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) ...................cce 19, 20

Oroz v. American President Lines, 259 F.2d 636,

| | I EC TEA SIE Nae 17

Panama R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391,

Rk RELEASE. ATT e renner 16

Pastore v. Taivo Gyogzo, 571 F.2d 777 (3rd Cir. 1978)...... 13

TABLE OF AUTHORITIES (cont'd)

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202,

Pe ay OU chi dockaiantindhsitenceetersnherencnnnnrnnrereaneenenes 16

Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct.

ee es BE Cr tnnenmmennmnanmannmnen 11

Roberson v. N.V. Stoomvaart Maatschappij, 507 F.2d 994

REESE EET SE ee 14

Romero v. International Terminal Operating Co., 358 U.S.

354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959)... 24, 36

Rosenblum v. Ginis, 297 Mass. 493, 9 N.E.2d 525 (1937) .30

Seaboard Air Line Ry. v. Oliver, 261 F.2d 1

EE A ee a 29, 33

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct.

— BM. La nssveennesnnsnsnssoes 34

Sherwin v. Southern Pacific Co., 168 Cal. 722, 145 P. 92

SU chestitieinniatecsatincenin MN tid sentatdisnninaiemenenndtainsathinnin 23, 32

Siberell v. St. Louis - San Francisco Ry., 9 S.W.2d 912

at cre ersinsncrtenemsetnhenmnmnenmnannnaannn 31

Sisson v. Ruby, 110 S.Ct. 2892 (1990) ..........cccccccccccccccseeeees 21

Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct.

~- FFE 1h, nee 12, 24, 36

St. Hilaire Moye v. Henderson, 496 F.2d 973

TEA RARE eR a RAN 13

TABLE OF AUTHORITIES (cont'd)

Page

State Trading Corporation of India v.

Assuranceforeningen Skuld, 921 F.2d 409 (2nd Cir. 1990) .25

Stein v. Sea-Land Services, Inc., 440 F.2d 1191 (1971) ...... 34

Succession of Lodato, 250 So.2d 792 (La. App. 4th Cir.

Succession of Packwood, 9 Rob. 438, 12 Rob. 366

CEM, EIRIID ensccnssncnsinvnseneqnccttiensoteeseylieste spabaneaaniniiaaiaaiideAeediicine 23

Taylor v. Taylor, 232 U.S. 363, 34 S.Ct. 350, 58 L.Ed.

GI CEI ccssncocscnnsnassetetnssascencsicatcanduckentusislsbabia lattice 14

Tunnell v. Edwardsville Intelligencer, 43 I11.2d 239,

252 NE.2d 538 (1969), cert. denied, 397 U.S. 1021,

FS SAF. Fae ee Cee SCA FP isis tersicicensccesccsncscoecee 30

Variety Children’s Hospital v. Perkins, 382 So.2d

Fe i I TS TIE ncaihatetncdatatittesintesesssessininnes 31

Vincent v. Sharp, 9 La.Ann. 463 (1854) .0............ccceseeeeeeesees 32

Wilburn Boat Co. v. Fireman’s Fund Insurance Co.,

348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955) ................ 11

Wilkinson v. Carnival Cruise Lines, 920 F.2d 1560

hp Fe | Ree TRY TN, ee Oh 13

STATUTES

U.S. Constitution, article I, § 8, clause 3

CE IID ss nctnccussennin nedamnceneientbsies tite eaie Sk el 4312

TABLE OF AUTHORITIES (cont'd)

Page

U.S. Constitution, article III, § 2, clause 1

(Admiralty and Maritime Jurisdiction)...................... 2, 12, 14

U.S. Constitution, article VI, clause 2 (Supremacy) ....... 3,14

28 U.S.C. § 1333 (savings to suitors clause)................ passim

28 U.S.C. § 1961 (a) (judicial interest) 2.0.0.0... eee eeeeeeee 32

45 U.S.C. § 59 (Federal Employers

Ld I atisismestctccniennmuionrantnuntam sosiocecicerbtete’ 14, 31, 35, 36

46 U.S.C. § 688 Glones Act) ...........ccocccssssssscsessesccsesceees passim

U. S. Supreme Court Rules 10.1(b) and (c) (considerations

governing review on writ Of Certiorari). ..............ccceeseeeeeeees 10

Federal Rule of Appellate Procedure 43, Substitution of

PN peace hiviedetadisacchepnchidnss es cniiintaiatlageontnbtininesendasdinn ses 4, 33, 34

Federal Rule of Civil Procedure 25(a) , Substitution of

RRR ARE Ree ere ee Oe ee Te eA NOPE, eee ee 4, 33

Uniform Rules of Louisiana Courts of Appeal, Rule 2-9

I ih ial ch icieiachblie cbasenenninn 5

Louisiana Code of Civil Procedure Article 801 (substitution

a I Siescctecicidistcccnlectehccteiidisbatishicthainiasiiinisaiiinsonibck 5

Louisiana Civil Code Article 2315 (torts) ................. 7, 14, 28

Louisiana Civil Code Article 2315.1

a ssniinisniinsbiacabuniia 5, 7, 14, 28

xii

TABLE OF AUTHORITIES (cont'd)

Page

OTHER AUTHORITIES

1 Am. Jur. 2p Abatement, Survival, and Revival

46 Am. Jur. 2D, Judgments §s 383, 384 .........sseeseeseeseeee 31, 32

SSA, CES. DOGG AD ciserenichictisitinbihinciltcicctnbiintinhctntntslanvdgorn 31

Cook, “Substance” and “Procedure in the Conflict of Laws” ,

Be Te ID concitanctstanretiancininisttiinanaininnndiictdns 26

Comment Survival of Actions in Article 2315 of the

Louisiana, Civil Code: The Victim’s And The Wrongful

Death Action, 43 Tulane L.Rev. 330 (1969) .................:008 28

G. GitMorE & C. BLACK, THE LAw oF ADMIRALTY, 2d ed.

(IDF, © Pei Pius Ada ied cain 13

F. HARPER, F. James, & O. Gray, THE Law OF Torts, 2d ed.,

Veal. 4; © DO Ge ii aetna Niatcd ttle 28

Johnson, Death On The Callais Coach, 37 La.L.Rev. 1

(UD DGD esis thin ihintticthahactsitlbletadliai teh eaiaeiswisiedenties 28

RESTATEMENT (SECOND) OF ConFLict OF Laws 2d § 122,

comment a at 351; § 125, comment a (1971) ................ 25, 26

RESTATEMENT OF JUDGMENTS, Section 47 (1942) ...............00 32

TABLE OF AUTHORITIES (cont'd)

Page

RESTATEMENT (SECOND) Or JUDGMENTS § 13, comments b

and f; § 18, comment a (1982); § 45 (1), comment b

acer aitlense acta tender retire. Ra R TEE 32; 30; 30

Schumacher, Rights Of Action Under Death And Survival

Statutes, 23 Michigan L.Rev. 114 (1924) ........cccecscsscseeees 30

E. STIMSON, CONFLICT OF LAWS (1963) scccccccccsseccscecsescseossees 26

C. WRIGHT, A. MiLLeR & E. Cooper, FEDERAL PRACTICE AND

eT) ee ee ee 14

DECISIONS BELOW

1. April 28, 1989 judgmentin favor of original plaintiff Stephen

A. Mistich in the 25th Judicial District Court for the Parish of

Plaquemines, State of Louisiana, Case Number 29-703, Stephen

A. Mistich v. Pipelines, Inc., et al. (Appendix, page A-1)

2. January 8, 1990 order of the Louisiana Court of Appeal,

Fourth Circuit, Case Number 89-CA- 1420, Stephen A. Mistich v.

Brown & Root, Inc., substituting the adopted children Brandon

L. Mistich et al. in place of the deceased original plaintiff.

(Appendix, page A-4)

3. December 28, 1990 denial by the Louisiana Court of Appeal,

Fourth Circuit, in the same case, of the executrix of the estate of

Stephen A. Mistich’s Petition of Intervention, as the beneficiary

in interest of the April 28, 1989 judgment in favor of Stephen A.

Mistich (Appendix, page A-6)

4. February 22, 1991 denial by the Supreme Court of the State

of Louisiana, Case Number 90-OC-0164, Stephen A. Mistich v.

Brown & Root, Inc., of application for a writ of certiorari, (page

A-7)

JURISDICTION

Sought to be reviewed is the December 28, 1990 order of the

Louisiana Court of Appeal, Fourth Circuit, denying the inter-

vention of the deceased seaman’s executrix to be the beneficiary

in interest of the judgment awarded the seaman while he was

alive (Appendix, page A-6). The Louisiana Supreme Court

denied the executrix’s application for a writ of certiorari on

February 22, 1991 (Appendix, page A-7).

Suit was originally brought in 25th Judicial District Court for

the Parish of Plaquemines, State of Louisiana, Case Number 29-

703, under the Jones Act, 46 U.S.C. § 688, the general maritime

law, and the “saving to suitors” clause, 28 U.S.C. § 1333 (1). In

this Jones Act and general maritime law case, the seaman

brought suit for and was awarded damages caused by his

employer’s negligence and the unseaworthiness of the vessels on

which he was employed. Jurisdiction in this Court is founded

upon this Court’s final review of admiralty and maritime causes,

United States Constitution, article III, § 2, clause 2, and upon 28

U.S.C. §§ 1257 and 2104.

STATUTES INVOLVED

1. U.S. Constitution, article I, § 8, clause 3 (Commerce)

[3.] To regulate commerce with foreign nations, and among

the several States, and with the Indian tribes.

2. U.S. Constitution, article III, § 2, clause 1 (Admiralty and

Maritime Jurisdiction)

[1.] The judicial Power shall extend to all Cases, in Law and

Equity, arising under this Constitution, the Laws of the United

States, and Treaties made, or which shall be made, under their

Authority;-to all cases affecting Ambassadors, other public

Ministers and consuls;-to all Cases of admiralty and maritime

Jurisdiction;-to controversies to which the United States shall be

a Party;-to Controversies between two or more States;-between

a State and citizens of another State;-between Citizens of differ-

ent States;-between Citizens of the same State claiming Lands

under Grants of different States, and between a State, or the

Citizens thereof, and foreign States, Citizens or Subjects.

3. U.S. Constitution, article VI, clause 2 (Supremacy)

[2.] This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all Treaties made,

or which shall be made, under the Authority of the United States,

shall be supreme Law of the Land; and the Judges in every State

shall be bound thereby, any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding.

4. 46U.S.C. § 688

688. Recovery for injury to or death of seaman

(a) Application of railway employee statutes; jurisdic-

tion. Any seaman who shall suffer personal injury in the course

of his employment may, at his election, maintain an action for

damages at law, with the right of trial by jury, and in such action

all statutes of the United States modifying or extending the

common-law right or remedy in case of personal injury to

railway employees shall apply; and in case of the death of any

seaman as a result of any such personal injury the personal

representative of such seaman may maintain an action for dam-

ages at law with the right of trial by jury, and in such action all

statutes of the United States conferring or regulating the right of

action for death in the case of railway employees shall be

applicable. Jurisdiction in such actions shall be under the court

of the district in which the defendant employer resides or in

which is principal office is located.

5. 28 U.S.C. § 1333

1333. Admiralty, maritime and prize cases

The district courts shall have original jurisdiction, exclusive

of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdiction,

saving to suitors in all cases all other remedies to which they are

otherwise entitled.

6. Federal Rule of Appellate Procedure Rule 43. Substitu-

tion of Parties

(a) Death of a party.-If a party dies after a notice of appeal

is filed or while a proceeding is otherwise pending in the court of

appeals, the personal representative of the deceased party may be

substituted as a party on motion filed by the representative or by

any party with the clerk of the court of appeals. The motion of

a party shall be served upon the representative in accordance with

the provisions of Rule 25. If the deceased party has no represen-

tative, any party may suggest the death on the record and

proceedings shall then be had as the court of appeals may direct.

If a party against whom an appeal may be taken dies after entry

of a judgment or order in the district court but before a notice of

appeal is filed, an appellant may proceed as if death had not

occurred. After the notice of appeal is filed substitution shall be

effected in the court of appeals in accordance with this subdivi-

sion. If a party entitled to appeal shall die before filing a notice

of appeal, the notice of appeal may be filed by that party’s

personal representative, or, if there is no personal representative

by that party’s attorney of record within the time prescribed by

these rules. After the notice of appeal is filed substitution shall

be effected in the court of appeals in accordance with this

subdivision.

7. Federal Rule of Civil Procedure Rule 25. Substitution of

Parties

(a) Death.

(1) If a party dies and the claim is not thereby extinguished,

the court may order substitution of the proper parties. The

motion for substitution may be made by any party or by the

successors Or representatives of the deceased party and, together

with the notice of hearing, shall be served on the parties as

provided in Rule 5 and upon persons not parties in the manner

provided in Rule 4 for the service of a summons, and may be

served in any judicial district. Unless the motion for substitution

is made not later than 90 days after the death is suggested upon

the records by service of a statement of the fact of the death as

provided herein for the service of the motion, the action shall be

dismissed as to the deceased party.

8. Uniform Rules of Louisiana Courts of Appeal, Rule 2-9

Rule 2-9. Substitution of Parties

The rules and procedures for substitution of parties provided

by LSA-C.C.P. Arts. 801-807 shall regulate the substitution of

parties.

9. Louisiana Code of Civil Procedure Article 801

Art. 801. Voluntary substitution for deceased party;

legal successor

When a party dies during the pendency of an action which is

not extinguished by his death, his legal successor may have

himself substituted for the deceased party, on ex parte written

motion supported by proof of his quality.

As used in Articles 801 through 804, “legal successor”

means:

(1) The survivors designated in Article 2315.1 of the Civil

Code, if the action survives in their favor; and

(2) Otherwise, it means the succession representative of the

deceased appointed by a court of this state, if the succession is

under administration therein; or the heirs and legatees of the

deceased, if the deceased’s succession is not under administra-

tion therein.

10. Louisiana Civil Code Article 2315.1

Art. 2315.1. Survival action

A. If a person who has been injured by an offense or quasi-

offense dies, the right to recover all damages for injury to that

person, his property or otherwise, caused by the offense or quasi-

offense, shall survive for a period of one year from the death of

the deceased in favor of:

(1) The surviving spouse and child or children of the

deceased, or either the spouse of the child or children;

(2) The surviving father and mother of the deceased, or

either of them if he left no spouse or child surviving; and

(3) The surviving brothers and sisters of the deceased, or

any of them, if he left no spouse, child, or parent surviving.

B. In addition, the right to recover all damages for injury to

the decedent, his property or otherwise, caused by the offense or

quasi-offense, may be urged by the decedent’s succession repre-

sentative in the absence of any class of beneficiary set out in the

preceding Paragraph.

C. The right of action granted under this Article is heritable,

but the inheritance of it neither interrupts nor prolongs the

prescriptive period defined in this Article. 3

D. As used in this Article, the words “child,” “brother,”

“sister,” “father,” and “mother” include a child, brother, sister,

father, and mother, by adoption, respectively.

STATEMENT OF THE CASE

The original plaintiff, seaman Stephen A. Mistich, filed suit

on December 2, 1986 against defendant Brown and Root, Inc.

and other defendants, solely under the Jones Act and the general

maritime law. The suit was for personal injury damages resulting

from plaintiff’s employment by defendants on pipe-laying ves-

sels. The personal injury had been caused by plaintiff’s exposure

to welding-inspection x-ray radiation over a period of several

years. During this period, plaintiff worked on the vessels

predominantly in high seas locations. Suit was filed, under the

saving to suitors clause, in the 25th Judicial District Court for the

Parish of Plaquemines, State of Louisiana. All defendants except

Brown and Root, Inc. settled with plaintiff and were dismissed

prior to trial.

On April 28, 1989, after trial on the merits, final judgment for

$7,147,608.00 was rendered in favor of the original plaintiff

while he was alive. Then, after final judgment, he died on May

14, 1989. Thus here there is no survival or wrongful death action

involved. The plaintiff's personal injury causes of action were

merged into his judgment. The judgment was his property right

and at death became part of his estate.

Defendant Brown and Root, Inc. took an appeal to the

Louisiana Court of Appeal, Fourth Circuit. On January 4, 1990

the adopted children of the plaintiff, the respondents, as statutory

survival beneficiaries under La. C.C. Art. 2315.1 moved to be

substituted for the deceased plaintiff as parties plaintiff-appellees.

On January 8, 1990 the Court of Appeal ordered said children

substituted in place of the deceased original plaintiff.

In short, contrary to clearly applicable federal law, the state

court applied the state survival statute to a federal maritime non-

survival case.

On April 4, 1990 Hettie M. Minnicks, the mother of the

deceased original plaintiff, was confirmed as ancillary executrix

for his Louisiana succession and she moved to be substituted as

the plaintiff-appellee.

On June 1, 1990 the Court of Appeal denied the executrix’s

motion to substitute, citing only Nathan v. Touro Infirmary, 512

So.2d 352 (La. 1987), a La. C.C. Art. 2315, tort survival action

case, and thus again treated a federal maritime non-survival case

as a State survival case. On September 14, 1990, the Louisiana

Supreme Court without explanation denied supervisory or other

writs directed to the Court of Appeal.

Since the state order was not clear as to whether it determined

mere procedural capacity or whether it determined the substan-

tive beneficiary in interest in the lawsuit, the executrix inter-

vened on November 14, 1990 as substantive beneficiary of the

decedent’s judgment. On December 22, 1990 the Court of

Appeal denied the intervention. This state ruling deprived the

seaman’s estate of his substantive federal maritime judgment.

This state ruling is the subject of this petition.

Petitioner on December 14, 1990 had filed a petition to this

United States Supreme Court in Case No. 90-1082 for a writ of

certiorari to the Court of Appeal for its denial of the executrix’s

motion to substitute as the proper party. This Court denied writs

on the motion to substitute on February 19, 1991, apparently

because the matter of the executrix’s substantive intervention was

still pending before the Louisiana Supreme Court.

However, on February 22, 1991 the Louisiana Supreme

Court denied petitioner’s application for a writ of certiorari on

the denial of her intervention. So the state court of last resort has

now ruled on this substantive issue. The state court has applied

state law to deprive the seaman’s estate of the final judgment

awarded, solely under federal maritime law, to the living seaman

in his own right. The state court has applied state law solely

because this is a saving to suitors clause case. Had this action

been brought in federal court, federal maritime law would have

been applied. This is an impermissibly intrusive and unprec-

edented denial of the seaman’s federal maritime substantive

rights which belong to his estate as the continuation of his legal

person.

The seaman had previously been diagnosed as suffering with

terminal leukemia and as having only a very limited time

remaining tolive. He, shortly before the trial, executed on March

3, 1989 a last will and testament which substantially excluded his

adopted children and left most of his estate to three of his closest

relatives: his mother, sister, and brother. The only asset of real

value to be distributed by the will was his potential judgment in

this personal injury action. At that time no defendant had settled.

This will was filed for probate on May 30, 1989 and ordered

probated on August 30, 1989 in the Superior Court of California

for the County of Orange, where the seaman was domiciled. The

judgment and a partial pre-trial settlement were included in the

Inventory and Appraisement of the estate filed in that proceeding

on November 6, 1989. Under California law the judgment

belongs to the seaman’s estate.

The deceased had no wife or natural children. The adopted

children were his former wife’s children from her prior marriage.

The plaintiff had adopted them only eleven months before he and

his former wife separated on November 1, 1980. They were

divorced on April 19, 1982, the wife not seeking nor being

awarded child or other support, but receiving full custody of the

children. Thereafter , although two of them became majors, the

children did not support him when he was in financial need. He

had had no significant contact with them for several years before

his death. If the state court denial of the executrix’s intervention

determines the ultimate beneficiaries of this personal injury

lawsuit, then the most significant property right possessed by the

plaintiff-seaman at his death, his maritime personal injury

judgment, will not be distributed according to his will. On the

other hand, if this judgment is a right of his estate, it will be

transmitted according to his solemn will to legatees other than his

children. Whether these children are proper survival or wrongful

death beneficiaries is a question completely unrelated to the

case herein. Under federal law the personal injury judgment is

a property right of the estate, being the fruits of the seaman’s own

federal maritime personal injury action. A subversion of the

express will of the deceased seaman through the application of

State law to this federal maritime case should not be allewed.

Clearly had the plaintiff survived past the appeal and then

died after recovering on his judgment, these funds as part of his

estate would be distributed according to his testament. In fact,

the funds from the plaintiff's partial pre-trial settlement with the

other defendants were sent, by the respondents’ counsel without

objection, to the estate. Is it reasonable the actions of the de-

fendants in settling or in appealing should determine the ultimate

beneficiary of the plaintiff’s federal maritime rights? For, if the

defendant had settled or had not appealed, the recovery without

challenge would have been an asset of the seaman, and at his

| death, of hisestate. Itis submitted that this Court should preserve

the seaman’ s rights to his estate and preserve the needed uniformity

of substantive rights under federal maritime law.

FEDERAL QUESTION RAISED TIMELY

The federal questions sought to be reviewed were raised in

petitioner’s November 14, 1990 Memorandum in Support of

Petition of Intervention, on page 6, where petitioner stated

“federal maritime law should clearly have applied to this sub-

stantive issue” of “who is the real party in interest” to receive the

benefits of the federal maritime, saving to suitors clause cause of

action. The federal questions were also raised in petitioner’s

Application for Writ of Certiorari or Review to the Louisiana

Supreme Court filed January 17, 1991.

ARGUMENT

I. Whether federal maritime law or state law determines

who is the substantive beneficiary of the final judgment.

Two of the considerations in favor of granting certiorari are

presented by this petition: a conflict between the state court

action and Federal Courts of Appeals; and a conflict between the

state court action and this Court. See U.S. Supreme Court Rules

10.1 (b) and (c).

In this case the state court has applied Louisiana law to

determine the question of ultimate beneficiaries under the Jones

Act, 46 U.S.C. § 688, and general maritime law. It is petitioner’s

position that federal law should apply to this question.

) ee ne

The state court order clearly conflicts with decisions of this

Court, of the United States Courts of Appeals, and of other courts

which have uniformly held that, in maritime actions in state court

under the saving to suitors clause, federal maritime law governs

over state law which interferes with substantive maritime rights.

Excluded from this discussion are distinguishable cases

where state law has not been preempted in maritime cases

because of recognized exceptions not present in the instant case. !

Distinguished first are cases where state law is adopted to fill the

gaps where there is no federal law on point by virtue of the

interstitial nature of federal law, e.g., Wilburn Boat Co. v.

Fireman’ s Fund Insurance Co., 348 U.S. 310, 75 S.Ct. 368, 99

L.Ed. 337 (1955) (insurance contract for houseboat on land-

locked lake); and Baggett v. Richardson, 473 F.2d 863 (Sth Cir.

1973) (state tort law adopted for maritime beating). Distin-

guished second are cases where the state law regulates behavior

in which the state has an especially strong regulatory interest,

e.g., Askew v. American Waterways Operators, 411 U.S. 325,93

S.Ct. 1590, 35 L.Ed.2d 280 (1972) (Florida oil spill pollution

regulations).

Also distinguishable are cases in which state law was used to

supplement the remedies available in admiralty for the vindica-

tion of maritime rights, e.g., Just v. Chambers, 312 U.S. 383,

668, 61 S.Ct. 687, 85 L.Ed. 903 (1941); Red Cross Line v. At-

lantic Fruit Co.,264 U.S. 109, 44S.Ct. 274, 68 L.Ed. 582 (1924).

Simply stated, if this maritime case had been heard in federal

court, the substantive beneficiary of the judgment would be the

seaman’s estate. A different substantive result should not follow

because this action was brought under the saving to suitors clause

in state court.

1 See Exxon Corp. v. Chick Kam Choo, 817 F.2d 307 (Sth Cir. 1987),

reversed on other grounds, 486 U.S. 140, 108 S.Ct. 1684, 100 L.Ed.2d

127 (1988) for a discussion of these recognized exceptions.

A. Federal maritime law, not interfering state substantive

law, governs a seaman’s substantive maritime rights.

It has long been held that federal maritime law governs all

substantive rights in cases falling within the admiralty and

maritime jurisdiction of the federal courts, to the exclusion of

interfering state law. Chelentis v. LuckenbachS.S.Co.,247 U.S.

372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918), quoting Southern Pa-

cific Co. v. Jensen, 244 U.S. 205, 215, 216, 37 S.Ct. 524, 528, 61

L.Ed. 1086 (1917) with reference to the U.S. Constitution article

I, § 8, clause 3 (Commerce) and article III, § 2, clause 1

(Admiralty):

[I]t must now be accepted as settled doctrine that, in

consequence of these provisions, Congress has

paramount power to fix and determine the maritime

law which shall prevail throughout the country. . . .

and further, that in the absence of some controlling

statute, the general maritime law, as accepted by the

federal courts, constitutes part of our national law,

applicable to matters within the admiralty and mari-

time jurisdiction.

In the Chelentis case, this Court, further quoting Southern Pa-

cific Co., stated that the “saving to suitors” clause?:

[G]ave no authority to the several states to enact

legislation which would work “material prejudice to

the characteristic features of the general maritime law

or interfere with the proper harmony and uniformity

of that law in its international and interstate relations.”

In Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct.

438, 64 L.Ed. 834 (1920), this Court held that state workers

compensation laws constitutionally could not take away sub-

stantive rights under federal maritime laws.

228 U.S.C. 1333 (1). See Madruga v. Superior Court, 346 U.S. 556,

560, n. 12, 74 S.Ct. 298, 300, n.12, 98 L.Ed. 290 (1954).

The Federal Circuit Courts of Appeals have likewise held

that federal law, not state law, governs substantive maritime

rights: Moore-McCormack Lines v. Amirault, 202 F.2d 893 (1st

Cir. 1953) (allowance of prejudgment interest determined by

federal law in general maritime personal injury and property

actions); Branch v. Schumann, 445 F.2d 175 (Sth Cir. 1971)

(defendant’s standard of care determined by general maritime

law); St. Hilaire Moye v. Henderson, 496 F.2d 973 (8th Cir.

1974) (a general maritime personal injury case not governed by

Arkansas state statute limiting recovery by social guests on boats

to willful and wanton disregard of rights of others); Pastore v.

Taivo Gyogzo, 571 F.2d 777, 784 (3rd Cir. 1978) (questions of

contribution and indemnity rights governed by federal not state

law); Everett v. Carnival Cruise Lines, 912 F.2d 1355 (11th Cir.

1990) and Wilkinson v. Carnival Cruise Lines, 920 F.2d 1560

(11th Cir. 1991) (federal maritime law governs substantive legal

issue of standard of care of shipowner).

The Pastore case holding that questions of indemnity in a

Jones Actand saving to suitors clause case must be decided under

federal law, is the perfect counterpart to what is involved in this

case. Indemnity has to do with who will be ultimately liable; and

this case has to do with who will be the ultimate beneficiary of the

judgment recovery.

It is a “constitutional truism” that “state legislation is clearly

invalid where it actually conflicts with the established general

maritime law or federal statutes.” States may not “flatly contradict

established maritime law” nor “interfere with the uniform working

of the federal maritime legal system.” G. GiLMorE & C. BLAcK,

THE LAW OF ADMIRALTY, 2d ed., § 1-17, at 48-50 (1975). The

saving to suitors clause “does not authorize the application of

substantive rights created by state statutes that significantly

modify or change the national substantive maritime law that

otherwise would be applicable.” C. Wricut, A. MILLER & E.

CooPER, FEDERAL PRACTICEAND PROCEDURE, § 3672 (1985).

In the present case, the respondents rely upon La.C.C. Art.

2315.1, which designates the state survival beneficiaries as the

parties to be substituted. This same survivorship provision,

previously contained in Art. 2315, was held to be a “rule of

substantive law” and was also held, under the U.S. Constitution,

articles VI (Supremacy) and III, § 2 (Admiralty), to be inappli-

cable to a federal maritime personal injury claim. Roberson v.

N.V. Stoomvaart Maatschappij, 507 F.2d 994 (Sth Cir. 1975).

Also see Taylor v. Taylor, 232 U.S. 363, 34 S.Ct. 350, 352,

353, 58 L.Ed. 638 (1914), a Federal Employees Liability Act

(FELA; incorporated by reference into the Jones Act) wrongful

death and survival case holding that the New York State succession

law was preempted by the FELA grant of the right of action to

specified parties.’ The court stated that “the source of the right of

plaintiff . .. was the Federal statute” and “‘the laws of the states,

in so far as they cover the same field, are superseded.””. Similarly

in our case federal law clearly placed the substantive judgment

right in the seaman, and subsequently in his estate, and this right

is supreme over any interfering state law.

If the seaman herein had died before final judgment, then

federal maritime law would govern and designate the beneficia-

ries of the survival actions which would have arisen. Similarly,

if the seaman herein had died after the appeal, then federal

maritime law would also have preserved his judgment rights to

himself, and to his estate. It is wholly illogical to allow state law

to intrude in the present case, which falls chronologically in

between these two situations.

This same situation as the present case did arise in Connors

v. Gallick, 339 F.2d 381, 386 (6th Cir. 1964), a FELA personal

injury case in which, as here, the plaintiff received a personal

injury final judgment in his lifetime. The FELA survivorship

provision, which would have designated the plaintiff’s daughter

: 15

as beneficiary, was found not applicable to the judgment pro-

ceeds. Rather, federal law was found to place the judgmentrights

in the plaintiff’s estate, since his “causes of action ha[d] been

merged in his judgment” and the judgment “became part of his

estate.” But the state courts below have not followed this federal

law.

An analogy could be drawn to a wrongful death or survival

Jones Act and general maritime law claim filed under the saving

to suitors clause in the court of a state whose laws designated the

deceased’s cousin as the designated beneficiary of the action.

Surely we would not suffer the argument that state law should

dislodge the Jones Act and general maritime law designated

beneficiaries. In all three situations (wrongful death, survival,

and the present case) the question is the same. The public policy

of uniformity represented by a single maritime rule for who is the

substantive beneficiary of a seaman’s final judgment, i.e., who is

entitled to his judgment, carries a strong regulatory interest of the

United States, not of the individual states. These matters of

federal law require uniform application to facilitate maritime

commerce. Further, such a question is surely a matter of

substance, not procedure.

B. Federal maritime law, not interfering state procedural

law, governs a seaman’s substantive maritime rights.

Assuming arguendo that the interfering state law is proce-

dural, still the estate’s entitlement to the judgment the seaman

obtained while alive is a substantive maritime right, and so

federal maritime law would govern over interfering state proce-

dural law. Garrett v. Moore-McCormack Co.,317 U.S.239, 245,

63 S.Ct. 246, 251, 87 L.Ed. 239 (1942) (concerning a Jones Act

personal injury claim brought in state court under the saving to

suitors Clause). In Garrett this Court reversed the Pennsylvania

Supreme Court which had held as procedural, and determined by

state law, the question of the burden of proof on whether a

seaman’s release was valid, and held this matter substantive in its

| | |

effect and so controlled by federal law, stating:

The source of the governing law applied is in the

national, not the state, governments. If by its practice

the state court were permitted substantially to alter the

rights of either litigant, as those rights were estab-

lished in federal law, the remedy afforded by the state

would not enforce, but would actually deny, federal

rights which Congress, by providing alternative rem-

edies, intended to make not less, but more secure. The

constant objective of legislation and jurisprudence is

to assure litigants full protection for all substantive

rights intended to be afforded them by the jurisdiction

in which the right itself originates. . . . So here, in

hearing this case the state court was bound to proceed

in such manner that all the substantial rights of the

parties under controlling federal law would be pro-

tected.

Similarly, this Court refused to apply Pennsylvania state

contributory negligence law to a general maritime law

unseaworthiness and negligence claim, as here, in place of

maritime comparative negligence. In Pope & Talbot, Inc. v.

Hawn, 346 U.S. 406, 409, 410, 74 S.Ct. 202, 205, 98 L.Ed. 143

(1953) this Court stated: “While states may sometimes supple-

ment federal maritime policies, a state may not deprive a person

of any substantial admiralty rights as defined in controlling acts

of Congress or by interpretative decisions of this Court.”

In Pope, this Court stated that a maritime tort is “‘a type of action

which the Constitution has placed under national power to

control in its substantive as well its procedural features,” quoting

Panama R. Co. v. Johnson, 264 U.S. 375, 386, 44 S.Ct. 391, 393,

68 L.Ed. 748 (1924). Panama R. Co., as here, was a Jones Act

personal injury suit.

The Federal Courts of Appeals have followed this same

course. In /.B. Effenson Co. v. Three Bays Corp., 238 F.2d 611,

615 (Sth Cir. 1956) the court held that a maritime right is

governed as to a limitation of actions issue “by the maritime

law”, explaining:

Such law is that which the Congress has enacted or the

Federal courts, sitting in admiralty or in the exercise

of their maritime jurisdiction, have declared and would

apply. ... The maritime principles would prevail even

though the action were brought in a state court.

[citation omitted] They are “common law remedies”

which may be had, where available, but maritime

rights which are redressed.

Similarly, in Oroz v. American President Lines, 259 F.2d 636,

638 (2nd Cir. 1958), the issue of the time within which a general

maritime law personal injuries suit must be commenced was held

governed by general maritime law, not a local state statute of

limitations. This was the case even though the statute of

limitations was characterized as procedural under state law. It

was stated that “Admiralty principles govern the civil action and

override common law rules such as those concerning contribu-

tory negligence, burden of proof, and assumption of the risk even

though these rules are often characterized as ‘procedural’ or

‘remedial.’ ”

The 3-year federal statute of limitations, not the 6-year Maine

state law, governed a maritime personal injury action in Butler v.

American Trawler Co., 887 F.2d 20, 21 (1st Cir. 1989). Thecourt

stated “the relevant question is not whether the federal limitations

statute [citation omitted] is ‘substantive’ or ‘procedural,’ but

whether Congress intended that statute to preclude the operation

of different state limitations statutes in respect to maritime torts.

We believe that it did.”

InJ. Ray McDermott & Co. v. Vessel Morning Star, 457 F.2d

815, 818 (Sth Cir. 1972) (en banc), cert. denied, 409 U.S. 948, 93

S.Ct. 271, 292, 34 L.Ed.2d 218 (1972), a maritime contract case,

it was held that a maritime statute, “when read together with the

statutes delineating the judicial sale procedure in the federal

courts, forms a comprehensive procedure.” There the Louisiana

deficiency judgment statute was not allowed to affect the “uni-

form application” of the federal maritime statute [emphases

added].

In Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981), a general

maritime law personal injury case establishing a federal admi-

ralty rule on interspousal immunity and declining to look to local

state procedural law, the court stated “A state law, even though

it does not contravene an established principle of admiralty law

will, nevertheless, not be applied where its adoption would

impair the uniformity and simplicity which is a basic principle of

the federal admiralty law. ”

In Genetics International v. Cormorant Bulk Carriers, 877

F.2d 806 (9th Cir. 1989), the court held that a set-off against

payment of freight charges is determined by federal maritime,

not state law.

In Daughtry v. Diamond M Co., 693 F.Supp. 856, 863 (E.D.

Cal. 1988), the court applied federal law, not state procedural

statutes dealing with good faith in settlements among joint

tortfeasors in a Jones Act personal injury case; it quoted Moragne

v. State Marine Lines, 398 U.S. 375, 401-02, 90 S.Ct. 1772, 1788,

26 L.Ed.2d 339, 357 (1970) recognizing a general maritime

wrongful death action to assure “uniform vindication of federal

policies, removing the tensions and discrepancies that have

resulted from the necessity to accommodate state remedial

statutes to exclusively maritime substantive concepts... .

[U]niformity . . . will give effect to the constitutionally based

principle that federal admiralty law should be ‘a system of law

coextensive with, and operating uniformly in, the whole country.

[citation omitted]’” In Ciolino v. Sciortino Corp., 721 F.Supp.

1491, 1495 (D. Mass. 1989), a Jones Act and general maritime

law personal injury case, the court stated “because federal

substantive law controls the decision of this case, this court

should apply” the federal procedural rule on amended com-

plaints relating back to an earlier date.

The Federal Fifth Circuit has recently held the existence of a

federal procedural defense, forum non conveniens (considered a

“characteristic” feature of federal maritime law), justified re-

versing plaintiff’s voluntary dismissal to prevent his refiling suit

in state court where this defense would not be available. That is,

the state court would not be permitted to take away a federal

maritime procedural right. [kospentakis v. Thalassic Steamship

Agency, 915 F.2d 176 (Sth Cir. 1990). A fortiori the state court

must not be allowed to take away the federal maritime substantive

rights at issue herein.

This Court itself in Offshore Logistics, Inc. v. Tallentire, 477

U.S. 207, 222, 223, 106 S.Ct. 2485, 2494, 91 L.Ed.2d 174 (1986),

supporting the uniformity of federal maritime law, referred to the

“saving to suitors” clause which:

[A]llows state courts to entertain in personam mari-

time causes of action, but in such cases the extent to

which state law may be used to remedy maritime

injuries is constrained by a so-called “reverse - Erie”

doctrine which requires that the substantive remedies

afforded by the States conform to governing federal

maritime standards.

In accordance with this principle, the court in /celandic Coast

Guard v. United Technologies Corp., 722 F.Supp. 942, 949 (D.

Conn. 1989) refused to apply state tort law which conflicted with

applicable substantive maritime law.

Exxon Corp. v. Chick Kam Choo, 817 F.2d 307 (Sth Cir.

1987), reversed on other grounds, 486 U.S. 140, 108 S.Ct. 1684,

100 L.Ed.2d 127 (1988), a maritime wrongful death case, in-

volved a conflict between state and federal procedural rules of

forum non conveniens. Referring to Offshore Logistics, Inc.,

supra, the court said that when state court procedures conflict

with maritime law “it is clear that they must yield.” The court

explained: “The ‘reverse - Erie’ question is whether the incon-

sistent state law, whether deemed a matter of substance or

procedure, conflicts with maritime law.” (817 F.2d at 319, em-

phasis added). The Exxon court analyzed the factors favoring

maritime law preemption of state law. Relevant here is the

uniformity factor, i.e.:

Whenever a uniform rule will facilitate maritime

commerce, or, conversely, when non-uniform regu-

lation will work a material disadvantage tocommrcial

actors. ... A corollary of this concept is the notion

found in the J. Ray McDermott & Co. [supra] test of

“characteristic features” or core principles of the

maritime law. [citation omitted] Applying state law

inconsistent with “characteristic features” would de-

feat the reasonably settled expectations of maritime

actors. .. . Since uniformity is related to predictability

and to reasonable legal expectations, it is of greatest

importance when legal relations are not predictably

related to a certain locale and its laws.

All this is generally true for maritime commerce and particularly

true for the type of offshore maritime activities here, involving

varied party and vessel locations.

Needed uniformity would surely be compromised if the law

of each state could dictate who is to be the ultimate beneficiary

of Jones Act and general maritime law personal injury actions. In

this same way needed uniformity would be compromised if each

state could dictate the ultimate beneficiary in maritime wrongful

death and survival actions.

Would not a significant lack of uniformity exist in allowing

seaman Smith in State A to determine through his testament the

ultimate beneficiary of his maritime personal injury recovery,

but in denying this right to seaman Jones in State B?

The issue of substantive beneficiary is similar to that before

this Court in Offshore Logistics, Inc., supra, concerning the

federal Death on the High Seas Act preemption of the Louisiana

state wrongful death statute which otherwise would have al-

lowed recovery of non-pecuniary damages. This Court stated:

However, the questionable practical significance of

this difference in recovery [citation omitted] is far

overshadowed by the potential for serious conflicts

between DOSHA and state substantive law in such

areas as limitations periods, classes of beneficiaries, and

the definition of potential defenses. We defer to

Congress’ purpose in making a uniform provision for

recovery for wrongful deaths on the high seas, an area

where the federal interests are primary.

477 U.S. at 233 (emphasis added).

Here the personal injury occurred very predominantly or

exclusively in international waters, “on the high seas.” Here the

“classes of beneficiaries” have been determined by Congress in

the Jones Act and by the general maritime law. Here the state law

should likewise defer to the federal purposes underlying unifor-

mity of substantive beneficiaries.

If the several states apply varying rules, how will persons

against whom maritime claims are made know the proper claim-

ant for redress? As herein, how will defendants know the proper

party with whom to discuss settlements of judgments on appeal?

The general features of this case, the determination of the

substantive beneficiary of Jones Act and general maritime law

causes of action, are of the character which requires uniformity

to facilitate maritime commerce. The inquiry here is thus

analogous to the admiralty jurisdiction inquiry before this Court

in Sisson v. Ruby, 110 S.Ct. 2892, 2896 (1990), where the “po-

tential disruption to commercial maritime activity” plainly sat-

isfied the requirement.

Maritime substantive rights and duties should not form a

patchwork across the nation. Significant substantive uniformity

is needed here and throughout federal maritime law. Moragne v.

‘

States Marine Lines, supra; Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625, 629-631, 79 S.Ct. 406, 409, 410,

3 L.Ed.2d 550, (1959); Miles v. Apex Marine Corp., 111 S.Ct.

317 (1990).

C. Balancing of interests, state and federal.

Underlying the foregoing federal preemption jurisprudence,

and the exceptions to federal preemption, is a balancing of state

interests against federal interests. This balancing or “accom-

modation” of interests was explained by this Court in Kossick v.

United Fruit Co., 365 U.S. 731, 739, 81 S.Ct. 886, 892, 6 L.Ed.2d

56 (1961):

[T]he process is surely rather one of accommodation,

entirely familiar in many areas of overlapping state

and federal concem, or a process somewhat analogous

to the normal conflict of laws situation where two

sovereignties assert divergent interests in a transaction

as to which both have some concern.

What are the interests, state and federal? The only Louisiana

state interest is in having a simple, singularrule forall substitutions

of a “legal successor” when a party dies at any time during

litigation, including after final judgment but before resolution of

an appeal. Louisiana would apply this single rule regardless of

whether the substantive cause of action arose under its law or that

of another jurisdiction, such as federal admiralty.

Here Louisiana has an insignificant interest in the seaman’s

suit and judgment. At the time of his death he was no longer

domiciled in Louisiana, but rather had been domiciled in Califor-

nia for some two and a half years, including during most of the

trial court proceeding and at the time of the judgment. Also the

personal injury at issue herein did not occur primarily, if at all,

in Louisiana territorial waters. Rather the injury was caused to

the seaman by exposure to x-ray radiation, incident to pipe weld

inspections, occurring over a period of several years. During that

period of time, the vessels on which the seaman was working

were located in various jurisdictions. The vessels’ work was

located exclusively or very predominantly in offshore interna-

tional waters well beyond Louisiana and other state territorial

waters. The vessel work locations also included international

waters offshore of Mexico and, during three periods, interna-

tional waters offshore of Europe. Thus, even under the maxim

lex loci delicti, state law would not apply.

Further, as discussed above, the seaman was domiciled in

California for years before and continuing through the times of

the judgment and =f his subsequent death. Therefore the legal

situs of the incorporeal moveable property right represented by

his judgment, under the rule mobilia sequuntur personam, was

California, not Louisiana. This is true under the laws of both

California and Louisiana. /n re Burnison’ s Estate, 204 P.2d. 330

(Cal. 1949), aff d U.S. v. Burnison, 70 S.Ct. 503, 339 U.S. 87

(1950); Succession of Lodato, 250 So.2d 293 (La. App. 4th Cir.

1971); Succession of Packwood, 9 Rob. 438, 12 Rob. 366 (La.

1845).

Also, the decedent seaman’s will was executed in, and under

the laws of, California. Then the seaman died in California and

his will was probated there on August 30, 1989. Further, the

judgment was inventoried on November 6, 1989 as part of the

estate in the California probate proceeding. All this occurred

before the adopted children were substituted as parties in the

Louisiana appeal on January 8, 1990. Note that under long-

established California law, the right to a judgment, in favor of a

plaintiff who died pending an appeal, belongs to the plaintiff’s

estate. Fowden v. Pacific Coast Steamship Co., 149 Cal. 151, 86

P. 178 (1906); Sherwin v. Southern Pacific Co., 158 Cal. 722,

145 P. 92 (1914).

So Louisiana’s interest in the case was limited to providing,

by virtue of the federal saving to suitors clause, the forum court

for the litigation of two federal maritime causes of action. Thus

the State of Louisiana has but a negligible interest in comparison

with the State of California or the United States.

The United States’ federal maritime interests are most sig-

SE ay

nificant, markedly outweighing the interests of Louisiana and

California. The first federal interest, as the sovereign who

created the substantive rights, is the protection of its own statu-

torily (Jones Act) and judicially (general maritime law) created

federal maritime rights. The integrity of these substantive

| - maritime rights should be protected from their inception through

| final judgment and appeal. Otherwise the Congressional and

| judicial purposes of these rights will not be served if the rights are

subject to deprivation under such circumstances.

The second federal interest is the promotion of uniformity in

the substance and application of federal maritime law. Such

uniformity aids maritime commerce, as discussed. Also see,

e.g., Romero v. International Terminal Operating Co., 358 U.S.

354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); Southern Pacific Co. v.

Jensen, supra; Moragne v. States Marine Lines, supra; Kermarec

v. Compagnie Generale Transatlantique, supra; and Miles v. Apex

Marine Corp., supra.

This Court, in similar choice-of-law cases, notably Lauritzen

| v. Larsen3, has examined several factors in deciding whether to

apply United States law or to apply foreign law to personal injury

suits by seamen. “The broad principles of choice of law and the

! applicable criteria of selection set forth in Lauritzen were in-

| tended to guide courts in the application of maritime law gener-

ally.”4 The factors which are relevant here are: (1) the place of

the wrongful act; (2) the domicile of the injured seaman; (3) the

domicile of the defendant shipowner (or employer); and (4) the

3345 U.S. 571,73 S.Ct. 921,97 L.Ed. 1254 (1953); Hellenic Lines Ltd.

v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970).

4 Romero v. International Terminal Operating Co., 358 U.S. at 382.

This Court also noted “the place of contracting is largely fortuitous and

of little importance in determining the applicable law in an action of

marine tort.” 358 U.S. at 383.

ia elle

base of operations of the defendant shipowner. Here the wrong-

ful act took place in international waters, the seaman’s domicile

during most of the trial court proceedings and at the time of the

final judgment was California, the domicile of the defendant

employer was Texas, and the principal place of business of the

defendant employer was Texas. Thus Louisiana lacks the

interests which would be shown by such factors.

This Court in Kossick v. United Fruit Co., supra, expressly

analogized this balancing of interests to a conflict of laws

situation. Also see State Trading Corporation of India v.

Assuranceforeningen Skuld, 921 F.2d 409, 416 (2nd Cir. 1990),

in which a Connecticut direct action statute, substantive in

nature, was held inapplicable to a federal maritime suit under

“federal choice of law rules” which prevent “ ‘substantial varia-

tion as result of choice of forum in the rights and duties arising

from a given legal situation (citation omitted)’ ” which “would

run counter to the strong federal admiralty interest of uniformity

and predictability.” Note well that the conflict-of-laws and

choice-of-law authorities fully support the petitioner’s position.

RESTATEMENT (SECOND) OF ConFLict Or Laws 2d, § 122, com-

ment a, 351, 352 (1971), cited in State Trading Corporation of

India, supra, discusses the factors to consider concerning the

application of the law of the jurisdiction under which the right

originated rather than the law of the forum. Of the two relevant

factors discussed, one factor favoring the original (here federal)

jurisdiction’s law would be if the application of the local law

“would be likely to affect the ultimate result of the case.”

The second factor, the classification of the issue as “substan-

tive,” also favors applying the original jurisdiction’s law. On this

point Mr. Justice Harlan, while on the Court of Appeals for the

Second Circuit, said in an admiralty context:

In actions where the rights of the parties are grounded

upon the law of jurisdictions other than the forum, it is

a well-settled conflict-of-laws rule that the forum will

apply the foreign substantive law....

Bournias v. Atlantic Maritime Co., 220 F.2d 152, 154 (2nd Cir.

1955); cited with approval in Chevron Oil Company v. Huson, 404

U.S. 97, 113, 92 S.Ct. 349, 358, 30 L.Ed.2d 296 (1972), (Dou-

glas, J. concurring).

Also see RESTATEMENT (SECOND) OF ConFLict OF Laws 24d, §

125, comment a (1971), stating “the local law of the forum as

such will not...be applied when its application would substantially

affect the rights and duties of the parties.” Also see E.StImson,

ConFLICT OF Laws, at 28 (1963), stating “the true objective of

conflict of law rules is that the outcome of the suit should be the

same regardless of the jurisdiction in which it is brought,” and

at 29 stating “if there is doubt as to whether the law applied will

affect the result, the law of the forum should not be applied.”

(emphasis added). Surely a forum law determining the ultimate

beneficiary of the personal injury action does affect the “outcome”

and the “result” of the case. This “outcome determinative” rule

has governed in other federal maritime tort, saving to suitors

clause cases in state courts. Matter of Rederi [Dow Chem. Co.],

25 N.Y.2d 576, 581, 307 N.Y.S.2d 660, 255 N.E.2d 774 (1970)

cert. denied, 398 U.S. 939, 90 S.Ct. 1844, 26 L.Ed.2d 272 (1970)

(State courts must apply federal law “to secure a single and

uniform body of maritime law.”); Lerner v. Karageorgis Lines,

488 N.E. 824, 826 (N.Y. 1985); Haggerty v. Moran Towing &

Transportation Co., 556N.Y.S.2d314,316(A.D. 1 Dept. 1990).

Itis undeniable that. had this action been brought in federal court,

the federal maritime law would have applied and would have

determined that the estate was the substantive beneficiary. Also

see discussion at §§ IT. B. and C., infra. The federal court would

not have applied state law to the question.

Finally, see Cook, “Substance” and “Procedure” in the

Conflict of Laws, 42 Yale L.J. 333,334 (1933), characterizing the

correct test as “How far can the court of the forum go in applying

the rules taken from the foreign system of the law without unduly

hindering or inconveniencing itself?” At 349 Cook distinguishes

between primary rights, secondary rights (both considered sub-

stantive), and tertiary rights (remedial or procedural rights)

having to do with the mode of enforcing the prior existing and

violated rights. In the instant case the petitioner’s right to the

judgment, as the personal representative of the deceased seaman

who was awarded that judgment, is clearly substantive and may

not rightfully be taken from her under a state forum procedure.

Such rights of a seaman, as “ward of the admiralty” must be

protected from encroachment.) Garrett v. Moore-McCormack

Co., supra.

Such protection has also been extended by this Court to an

ancillary estate administrator, like the petitioner, of a maritime

tort decedent in order to preserve maritime substantive rights

which otherwise would have been lost under state procedural

law, concerning the amendment of a petition at a time when a

new suit would be barred by a statute of limitations; “federal

practice” was held tocontrolin this wrongful death case. Levenson

v. Deupree, 345 U.S. 648, 652, 73 S.Ct. 914, 916, 97 L.Ed. 1319

(1953).

A reasoned balancing of interests favors application of

federal maritime law to the significant maritime legal issues

herein. Otherwise irrational fortuities would control significant

issues: the fortuities of which state holds the forum court, of

whether the defendant appeals a final judgment, and of when the

seaman dies. In Exxon v. Chick Kam Choo, supra, it was said that

such fortuities, there the fortuity of diversity of citizenship,

should not determine crucial aspects of litigation. (817 F.2d at

320).

Il. Whether under federal maritime law the substantive

beneficiary of the final judgment is the seaman’s estate.

Under federal maritime law the estate of the deceased is the

proper party in terest when the plaintiff dies after obtaining a

final judgment in his favor. In the present case, the state court

5 The ward of the admiralty concept is not needed in this case. This

judgment belongs to the estate not because the deceased was a seaman,

but because that is the federal law which would apply to anyone.

applied state law to find that the respondents, as the survival

beneficiaries under Article 2315.1, were the proper parties to

substitute substantively for the deceased. But clearly survival

Statutes, state or federal, are irrelevant to the present case in

which the deceased seaman obtained a judgment before his

death. Jn effect, the state court has made this case a survival case

because that court applied the survival statute. [t is important to

distinguish the instant case from survival and wrongful death

actions, which are the only two actions to which the respondents

could have been entitled.

A. Not survival or wrongful death action.

The courts below have erroneously relied upon La.C.C. Art.

2315.1, astate tortsurvival statute. Addressing La.C.C.Art.2315’s

prior survival subpart, which is now this same Art. 2315.1, a

commentator has said:

an award for his injuries and then dies, the

beneficiaries’ survival action is merged into the

prior judgment . . . .Since the beneficiaries are

merely procedural representatives to assert a claim

which the victim would have asserted if he were

alive, they cannot assert a claim which the victim

has already litigated and lost [or won, as herein].

Johnson, Death On The Callais Coach, 37 La.L.Rev. 1,48 (1976).

The point is that “survival” has to do with the action the victim

could have brought to judgment but was prevented from so doing

because of death. If he has brought the action to a judgment, then

there is simply no action to survive. The victim has already

before his death merged his action into a judgment. The purpose

of survival is to prevent the death of the victim from eliminating

a rightful action. If he has already been awarded the judgment,

then survival, by its very nature, does not apply. Comment,

Survival Of Action In Article 2315 of the Louisiana Civil Code:

The Victim’ s And The Wrongful Death Action, 43 Tulane L.Rev.

330, 335, 336 (1969). F. HARPER, F. James, & O. Gray, THE Law

OF Torts, 2d ed., Vol. 4., § 24.6, 471-472 (1986).

In a survival case under federal law, the enumerated benefi-

ciaries named in the survival statutes or jurisprudence are those

in whose favor the action lies (thatis, any recovery will ultimately

go to these beneficiaries). But where the deceased had initiated

his action during life and had obtained final judgment in his favor

before his death, this judgment is his property right and at his

death becomes part of his estate to be distributed in accordance

with the intestate or testate succession laws. Connors v. Gallick,

339 F.2d at 386, discussed above in §1.A.. Connors wasaFELA

case involving a railroad employee who died after receiving a

trial court verdict and pending appeal. The Court noted that the

employee’s causes of action had been “merged into his judgment”

and that the judgment “became part of his estate.” In Seaboard

Air Line Ry. Co. v. Oliver, 261 F.2d 1 (Sth Cir. 1919), cited in

Connors, supra, a case directly on point dealing with the FELA,

the court addressed the question of whether § 59 of the act (the

“survival” provision added in 1910 by amendment), could apply

after the deceased had recovered a judgment for his personal

injuries during his lifetime. The court found that it could not

apply because the employee's right of action must “survive” to

invoke § 59, and under the circumstances, the right of action had

been terminated by the judgment. The right of recovery was

merged in or extinguished by the judgment.

If the claim for injury to the decedent was terminated

in his lifetime, no claim exists at the time of his death

to which to survival status could apply. Hence, if the

decedent settled the claim, obtained judgment upon it,

or suffered adverse judgment in an action on the claim,

a subsequent action upon the claim by his personal

representative or other successor is precluded, just as

successive actions by the decedent himself would be

precluded.

RESTATEMENT (SECOND) OF JUDGMENTS, § 45, comment b (1982).

Also see Schumacher, Rights of Action Under Death And Sur-

vival Statutes, 23 Michigan L.Rev. 114, 117-118 (1924).

B. Cause of action, merged into final judgment, becomes

property right of estate.

As discussed above in the context of survival actions, the

plaintiff’s cause of action was merged into his final judgment.

When a plaintiff obtains a judgment in his favor, his cause of

action is merged in the judgment. Mamer v. New YorkR.Co., 244

U.S. 266, 61 L.Ed. 1125, 37 S.Ct. 511 (1916); Kaspar Wire Works

v. Leco Engineering and Machine, 575 F.2d 530, 533 (Sth Cir.

1978). The cause of action no longer exists, only the final

judgment exists then. “When the plaintiff recovers a valid and

final personal judgment, his original claim is extinguished and

rights upon the judgment are substituted for it. The plaintiff's

original claim is said to be ‘merged’ in the judgment.” RE-

STATEMENT (SECOND) OF JUDGMENTS, § 18, comment a (1982).

Accord: e.g., Connors v. Gallick, supra. Tunnellv. Edwardsville

Intelligencer, 43 111.2d 239, 252 NE.2d 538 (1969), cert. denied,

397 U.S. 1021, 90 S.Ct. 1259, 25 L.Ed.2d 530 (1970); Ahearn v.

Goble,90 Colo. 173, 7 P.2d.409 (1932); Mayor of City of Anniston

v. Hurt, 140 Ala. 394, 37 So. 220 (1904); Brundrett v. Hargrove,

204 Ark. 258, 161 S.W.2d 762 (1942); Heuchert v. State In-

dustrial Acc. Commission, 168 Or. 74, 121 P.2d 453 (1942);

Rosenblumv.Ginis, 297 Mass. 493, 9 N.E.2d525 (1937); Gordon

v. Hillman, 102 Wash. 411, 173 P.22 (1918); Castelluccio v.

Cloverland Dairy Products Co., 165 La. 606, 115 So. 796 (1927);

Fowden v. Pacific Coast Steamship Co., supra; Bailey v. Trav-

elers Insurance Co., 383 S.W.2d 562 (Tex. 1964).

“It is also worthy of notice that with respect to the primary

function of the doctrine of merger to bar subsequent actions on

the original cause of action, the doctrines of merger and res

judicata are identical, and both are grounded on the sarne funda-

mental precepts”. 46 Am. Jur. 2D Judgments, § 384. Inthe present

case, had the respondents brought a subsequent survival claim,

such would be barred by the merger doctrine underlying the

doctrine of res judicata. The respondents have no greater i zhts

herein.

il iateaaieaetitiaidieeeill

aA AAO ites eae Re

The time of the final judgment is the point at which the

- seaman’s cause of action became merged into his judgment as a

property right of his estate, even though an appeal was later

taken. Siberell v. St. Louis - San Francisco Ry. Co., 9 S.W.2d

912,917 (Mo. 1928). Accord: e.g., Variety Children’ s Hospital

v. Perkins, 382 So.2d 331 (Fla. App. 3rd Dist. 1980); Bailey v.

Travelers Insurance Co., supra; 1 AM. Jur. 2p Abatement, Sur-

vival, and Revival, § 60 (1962). Siberell was a FELA death case

in which the widow beneficiary died after judgment while the

case was on appeal and the court treated the judgment as a

property right which had vested in the deceased plaintiff’s (the

widow’s) estate.

The court said the question was a “question of right, and not

of procedure, depending upon the substance of the cause of

action, and its solution must be sought in the statute giving the

right of action”. Both of these points support the application

herein of federal maritime law; see § 1 A., B., and C., supra.

In Siberell, the judgment vested in the plaintiff before she

died. The court held the cause of action merged in the judgment

to be subject to the general law of property succession upon

death. The court said:

[I]t is as obvious as it is elementary that a final

judgment is the end of litigation. That which up to the

moment of the entry of a judgment for the relief sought

was a matter in controversy becomes an absolute debt

of one party to the other. The cause of action then has

ceased to exist, being merged in the judgment.

“After judgment the right . . . .is a vested property right which

passes under the statute of descent and distribution like any other

personal property” 25A C.J.S. Death, § 40, at 699 (emphasis in

original).

The law, that the merger of a cause of action into a final

judgment is not affected by the appeal of that judgment, can be

further shown because the merger doctrine is the basis for the

doctrine of res judicata or claim preclusion. 46 Am. Jur. 2p

Judgments, § 383. The finality of a judgment for merger

purposes is not affected by the taking of an appeal (nor by a

motion for a new trial) unless the judgment be in fact set aside.

RESTATEMENT (SECOND) OF JUDGMENTS, § 13, comment f. The

“final judgment” and “judgment” referred to in the above quota-

tions refer to a judgment final in the trial court and subject to

appeal. The fact that a final judgment is on appeal does not affect

its status as a final judgment. In fact, generally only a “final

judgment” may be appealed, thus the fact that it is subject to

appeal does not make the judgment any less “final.” 28 U.S.C.

§ 1291. Bankers Trust Co. v. Mallis, 435 U.S. 381,98S.Ct. 1117,

55 L.Ed.2d 357 (1978); Matterhorn, Inc. v. NCR Corp., 727 F.2d

629 (7th Cir. 1984).

If the judgment is reversed on appeal, of course, the judgment

is then a nullity. Sut until then, it has full force and effect. A

judgment affirmed on appeal is “affirmed as of the date when it

was rendered.” Coughlan v. District of Columbia, 106U.S.7, 11,

1 S.Ct. 37, 40, 27 L.Ed. 74, 76 (1882). This is consistent with the

federal rule concerning judicial interest on judgments. In a

federal maritime tort case, as in federal cases generally, the

judicial interest accrues from the date the final judgment is

rendered, not the date the judgment is affirmed. 28 U.S.C. § 1961

(a). Kolsopoulos v. Asturia Shipping, 467 F.2d 91, 95 (2nd Cir.

1972), a maritime personal injury case, applied § 1961 based on

this merger doctrine: “Once a claim is reduced to judgment, the

original claim is extinguished and merged into the judgment; and

a new Claim, called a judgment debt arises. See Restatement of

Judgments, § 47 (1942).” (citing the predecessor of RESTATEMENT

(SECOND) OF JUDGMENTS, § 18 (1982)).

This same rule, merger of causes of action into a final

judgment, is the long-established law of California, the state of

domicile of the plaintiff and therefore the situs of the moveable

property right represented by the judgment. Fowden v. Pacific

Coast Steamship Co., supra; Sherwin v. Southern Pacific Co.,

supra. This is also the long-established law of Louisiana, the

forum court. Vincentv. Sharp,9La.Ann. 463 (1854); Castelluccio

v. Cloverland Dairy Products Co., supra; Kirby v.AlbertT J.,517

So.2d 974 (La. App. 3rd Cir. 1987). This is also the federal law.

Hamer, supra; Connors, supra; Kaspar Wire Works, supra. This

is also the federal maritime law. Kolsopoulos, supra.

C. Federal maritime law.

Maritime law has been held, “even though the action were

brought in a state court,” to be “Such law is that which the

Congress has enacted or the Federal courts, sitting in admiralty

or in the exercise of their maritime jurisdiction, have declared

and would apply.” J.B. Effenson Co. v. Three Bays Corp., supra.

Therefore, all the federal cases relied upon in §§ II. A. and B.,

supra, as to the points of law applicable herein, constitute the

federal maritime law which should be applied to the present case.

Hamer v. New York R. Co., supra; Coughlan v. District of Co-

lumbia, supra; Kaspar Wire Works v. Leco Engineering and

Machine, supra; Kolsopoulos v. Asturia Shipping, supra (a

plaintiff’s cause of action, at the time of a final judgment in his

favor, is merged into the final judgment); Bankers Trust Co. v.

Mallis, supra; Matterhorn, Inc. v. NCR Corp., supra (although

appealable or appealed, a judgment remains a final judgment).

Connors v. Gallick, supra; Seaboard Air Line Ry. Co. v. Oliver,

supra (the Jones Act/FELA personal injury judgment belongs to

the estate, not the survival beneficiaries).

Had the case herein been heard in the federal courts, Federal

Rule of Appellate Procedure 43, Substitution of Parties, Subpart

(a), “Death of a Party” would require the “personal representa-

tive of the deceased party,” here the succession executrix, to be

substituted as a party in place of the original plaintiff.

It has been held that under the comparable Federal Rule of

Civil Procedure 25 (a), the trial court rule on the substitution of

parties on death, only the succession representative is the proper

party to be substituted. See Marcano v. Offshore Venezuela, 497

F.Supp. 204, 206-208 (E.D.La. 1980), a federal general maritime

personal injury case, in which the court by analogy relied on the

same requirement of procedural capacity as contained in the

Jones Act and the Federal Employers Liability Act.

Also see Asklar v. Honeywell, Inc., 95 F.R.D. 419 (D.Ct.

1982), (a federal Age Discrimination in Employment Act case)

holding that federal rules on substitution of parties, “in an action

based on federal substantive law . . ., control over inconsistent

State statutes.” The actions herein were also based on federal

substantive law.

Federal Rule of Appellate Procedure Rule 43 (a) was ineffect

at the time of Stein v. Sea-Land Services, Inc., 440 F.2d 1181 (Sth

Cir. 1971), where the seaman had received a trial court verdict in

his lifetime for his personal injuries under the general maritime

law of unseaworthiness. After the verdict, but before judgment

was entered on the verdict, the seaman died. Thereafter, during

the appeal, his widow and administratrix of his succession was

substituted for the decedent as plaintiff-appellee and the case was

affirmed in her favor. Subsequently the widow for herself

asserted additional claims for wrongful death and survival in

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806,

39 L.Ed.2d 9 (1974). In Gaudet this Court clearly differentiated

between wrongful death and survival actions, on the one hand,

and personal injury actions prosecuted to judgment by the

plaintiff before death, on the other. There Justice Powell referred

to the prior Stein case and noted without objection that “because

Gaudet’s death intervened between the jury verdict and the

appeal, his recovery went directly to his estate, not to him

personally.” (414 U.S. 611, n. 23, Powell, J. dissenting). It was

a foregone conclusion that, because the plaintiff died after

verdict, the recovery went to his estate. The case herein is even

stronger since the plaintiff died after being awarded a final

judgment.

The very reasoning upon which Gaudet is founded dictates

that obtaining a personal injury judgment during plaintiff’s

lifetime cuts off a survival action for the same damages. That

reasoning was that the injury action and the wrongful death

action were totally distinct, i.e., they were actions for different

injuries to different persons and thus one did not exclude the

other. Although this is true of wrongful death, it certainly is not

true of survival, which is exactly the same as the personal injury

claim and for the samme damages to the same person. This sup-

ports the executrix’s substitution herein and establishes the

estate as the ultimate party in interest of the general maritime law

judgment.

The instant case’s Jones Act claim clearly is controlled by the

holding in Connors v. Gallick, supra, where a railroad employee

died after receiving a final judgment, but while a motion for a

new trial was pending. The question before the court was

whether the survivorship provision of the FELA (45 U.S.C. §59,

incorporated by reference into the Jones Act), applied so as to

entitle the daughter to the proceeds of a settlement received by

the employee’s estate. The court distinguished between the

employee’s own personal injury cause of action and the survival

right of action based on that same cause of action and held that

the survivorship provision did not apply since the employee’s

own personal injury cause of action had been merged into his

final judgment, and thus there was no cause of action Se see

to survive. The court explained:

At the time the railroad filed its motion serene trial,

Gallick was its judgment creditor and it was his

judgment debtor. We are impressed that Gallick’s

cause or causes of action ha[d} been merged in his

judgment . . . . Gallick’s death did not convert his

judgment into a cause of action to be prosecuted for

the benefit of his [survivors].

Thus the judgment and the resulting settlement belonged to the

employee’s estate:

Gallick in his lifetime had prosecuted his own cause of

action to judgment, and his death did not abate his

action or vacate his judgment. The appellate proceed-

ings did not wipe out his judgment [citation omitted]

...Gallick died possessed not of an unlitigated cause

of action, but of a judgment which became part of his

estate.

Connors v. Gallick, 339 F.2d at 386.

This is dispositive of this Jones Act/FELA and the general

maritime question since “the similarity in purpose and function

of the Jones Act and the general maritime principles of compen-

sation for personal injuries, admit of no rational differentiation

of treatment for choice of law purposes,” Romero v. Interna-

tional Terminal Operating Co., 358 U.S. at 382.

Connors v. Gallick, supra, states the FELA, Jones Act, and

general maritime law controlling this case. Under this federal

law, the decedent’s judgment is an asset of his estate.

CONCLUSION

The Louisiana court’s action in this matter interferes with

necessary supremacy and uniformity of the substantive federal

maritime law. No recognized exception justifies this interfer-

ence with a substantive maritime right of the deceased seaman’s

estate. Petitioner submits that the Louisiana court has erred, and

that its action must be reversed. It is imperative that this Court

order summary reversal or grant certiorari to protect the judgment

rights of the deceased seaman, and to preserve the constitutional

uniformity of federal maritime law needed here.

This Court, the United States Courts of Appeals and District

Courts, and the state courts have all uniformly held that questions

of substance, such as presented in this case, must be decided

under the uniform federal law; that the law applied in saving to

suitors Clause cases in state courts or federal civil courts must

conform to that which would be applied in federal admiralty.

Had this Jones Act and general maritime action been brought in

federal court, that court would not have applied state law to the

question of substantive beneficiary in interest. It would have

applied the federal maritime law which is contrary to the state

law as applied by the state court in this case. From the Southern

Pacific Co. v. Jensen case, supra, in the early part of this century,

to the recent Miles case, supra, substantive uniformity and fed-

eral supremacy have been regarded by this Court as the hallmarks

of federal maritime law. Since the Chelentis case, supra, this

Court has consistently held that these virtues also should inform

cases brought in state court under the saving to suitors clause.

Both federal and state saving clause jurisprudence have rein-

forced this principle to the present day. The action of the

Louisiana court in this case is thus contrary to nearly a century

of federal and state jurisprudence and should not be allowed to

stand. as

Respectfully submitted,

FRANK H. WALK, JR.*

FREDERICK W. SWAIM, JR.,

Professor of Law,

Loyola University School of Law

New Orleans, Louisiana

Attorneys for Petitioner

600 Carondelet St., Suite 602

New Orleans, Louisiana 70130-3587

(504) 522-6090

*Counsel of Record

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APPENDIX

25TH JUDICIAL DISTRICT COURT FOR THE PARISH

OF PLAQUEMINES

STATE OF LOUISIANA

NO. 29-703 DIVISION “B”

STEPHEN A. MISTICH

VERSUS

PIPELINES, INCORPORATED, ET AL.

FILED: April 28,1989 (Signed) Merlene M, Barthelemy

DEPUTY CLERK

IUDGMENT

This matter came on for trial on the 11th day of April, 1989

and concluded on the 20th day of April, 1989.

PRESENT: Lawrence D. Wiedemann, William Hazlaris and

Mark A. Pivach, Attorneys for Plaintiff

James F. Holmes, J. Warren Gardner and

Jeffrey Christovich, Attorneys for Defendant,

Brown and Root, Inc.

The Court, after hearing the evidence, the argument of

counsel, and considering the exhibits admitted into evidence by

the parties, finds as a matter of fact, as follows:

Plaintiff, Stephen A. Mistich, was unnecessarily and improp-

erly exposed to excessive levels of radiation as a seaman aboard

vesseis owned by Brown and Root, Inc., Pipelines, Inc., Lennard

Pipelines, Inc., Sea-Con Services, Inc., and Santa Fe Interna-

tional, Inc., over the period June 11, 1976 - November 18, 1985.

The exposure to which plaintiff, Stephen A. Mistich, was

subjected during his employments with Lennard Pipelines, Inc.,

Pipelines, Inc., and Sea-Con Services, Inc., was not causally [sic]

related to plaintiff’s condition because the employment periods

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were subsequent to the latency period for chronic myelogenous

leukemia diagnosed on January 19, 1986.

The exposure period during plaintiff’s employment with

Santa Fe International, Inc. (seven days) is questionably related

due to the latency period, but, if related, is de minimis when

compared to the exposure period during plaintiff's extended

employment with Brown and Root, Inc. over the period 1976 -

1984 (approximately 1073 days).

The Court finds, as a matter of fact, that Brown and Root, Inc.

was negligent and that the various vessels owned by it on which

plaintiff worked over the aforesaid period were unseaworthy.

The court also finds, as a matter of fact, that the negligence of

Brownand Root, Inc. wasacause-in-fact, and the unseaworthiness

of Brown and root, Inc.’s vessels was the cause-in-fact of

plaintiff’s chronic myelogenous leukemia due to exposure to

excessive levels of radiation; each of the aforesaid theories of

fault contributing equally to plaintiff’s injuries and damages.

The Court finds, as a matter of fact, that plaintiff did not

contribute in any way to the injuries, or damage, sustained by

him. :

The Court apportions the fault of plaintiff’s Jones Act/

General Maritime employers, as follows:

Brown and Root, Inc. 100%

Pipelines, Inc. 0%

Lennard Pipelines, Inc. 0%

Sea-Con Services, Inc. 0%

Santa Fe International, Inc. 0%

The Court finds that plaintiff is entitled to compensatory

damages in the sum of THREE MILLION ONE HUNDRED

FORTY-SEVEN THOUSAND SIX HUNDRED EIGHT AND

NO/100 ($3,147,608.00) DOLLARS, itemized as follows:

Past Medical $ 73,298.78

Past lost wages 83,912.00

Future medical 186,000.00

Future lost wages 804,397.00

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Past and Future physical

pain and suffering 800,000.00

Past and Future emotional

injury, mental pain and suffering 1,200,000.00

The Court further finds, as a matter of fact, that the conduct

of Brown and Root, Inc. was willful and in gross disregard of

plaintiff’s rights, and accordingly, awards to plaintiff punitive

damages in the sum of FOUR MILLION AND NO/100

($4,000,000.00) DOLLARS.

Finally, the Court utilizes its discretion and awards pre-

judgment interest from the date of judicial demand on one-half

(1/2) of the amount awarded in compensatory damages, at the

legal rate provided under Louisiana law, and herewith taxes all

costs against defendant, Brown and Root, Inc.

JUDGMENT READ, RENDERED AND SIGNED at Pointe-

a-la-Hache, Louisiana, this 28th day of April, 1989.

(SIGNED) EMILE E. MARTIN

JUDGE

UNITED STATES DISTRICT COURT [sic]

[LOUISIANA STATE COURT OF APPEAL]

FOR THE FOURTH CIRCUIT

NO. 89-CA-1420

STEPHEN A. MISTICH

VERSUS

PIPELINES, INC., ET AL.

APPEAL FROM PLAQUEMINES 25TH

JUDICIAL DISTRICT COURT, NO. 29-703

MOTION FOR SUBSTITUTION OF PARTIES

NOW INTO COURT, through undersigned counsel, come

Brandon L. Mistich, Rebecca Mistich Terrase, and Patricia A.

Mistich as natural tutrix of Shawn A. Mistich, legal survivors of

original petitioner, Stephen A. Mistich, who move of this Court

to be recognized as party plaintiffs in this action pursuant to

Louisiana Code of Civil Procedure Art. 801; Rule 2-9 of Uniform

Rules - Court of Appeal; and Louisiana Civil Code Art. 2315.1,

and upon suggesting the following:

Judgment was rendered on April 28, 1989 in favor of original

plaintiff, (Stephen A. Mistich and against defendant, Brown &

Root, Inc. in the above entitled action for damages.

II.

Original plaintiff, Stephen A. Mistich, died on May 14, 1989.

Il.

There exists no surviving spouse of the deceased, Stephen A.

Mistich.

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IV.

Brandon L. Mistich, Rebecca Mistich Terrase and Shawn A.

Mistich are the sole surviving children of the deceased, Stephen

A. Mistich, and therefore, the proper parties to be substituted in

the appeal as per the authorities cited. Proof of their quality is

attached as Exhibit 1 to this Motion.

Patricia A. Mistich is the natural mother and tutrix of minor

Shawn A. Mistich. Proof of her capacity is attached as Exhibit

2 to this Motion.

WHEREFORE, surviving children, Brandon L. Mistich,

Rebecca Mistich Terrase, and Patricia A. Mistich as natural

tutrix of Shawn A. Mistich, urge this Honorable court to recog-

nize their right of substitution under the authorities previously

cited, and that they be substituted as party plaintiffs and appellees

herein for original plaintiff, now deceased, Stephen A. Mistich.

IT ORDERED that Brandon L. Mistich, Rebecca Mistich

Terrase, and Patricia A. Mistich as natural tutrix of Shawn A.

Mistich, survivors of the deceased, Stephen A. Mistich, be

hereby recognized and substituted as party plaintiffs and appellees

in the above entitled and numbered cause.

New Orleans, Louisiana, this 8th day of January, 1990.

(SIGNED) PATRICK M, SCHOTT

JUDGE

RESPECTFULLY SUBMITTED:

WIEDEMANN & FRANSEN

(SIGNED) WILLIAM_N, HAZLARIS

LAWRENCE D. WIEDEMANN, T.A.

BAR #13457

WILLIAM N. HAZLARIS,

BAR #1950

821 Baronne Street

New Orleans, LA 70113

504/581-6180

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STEVEN A. MISTICH “ NO. 89-CA-1420

VERSUS , COURT OF APPEAL

BROWN & ROOT,INC. * FOURTH CIRCUIT

? STATE OFLOUISIANA

HeH2eEKkH£KRHAARESERSE

The Petition for Intervention filed by Hettie M.

Minnick is denied. Under Louisiana Code of Civil Procedure

Article 801 and Louisiana Civil Code Article 2315.1 the proper

party to be substituted as the legal successor are the children of

the deceased plaintiff.

New Orleans, Louisiana, this 28th day of December

1990.

(SIGNED) __RFB. IIT

Judge Rudolph F. Becker, III

(SIGNED) _ __ DAB

Judge Denis A. Barry

(SIGNED) _ _ JBA

Judge Joan Bernard Armstrong

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The Supreme Court of the State of Louisiana

STEPHEN A. MISTICH

VS. NO. 91-0C-0164

PIPELINES INC. ET AL

IN RE: Minnicks, Hettie M.; - Other(s); Applying for Supervi-

sory and/or Remedial Writs; Parish of Plaquemines 25th Judicial

District Court Div. “B” Number 29-703; to the Court of Appeal,

Fourth Circuit, Number 89CA-1420

February 22, 1991

Denied.

LEMMON, J. would grant the writ

Supreme Court of Louisiana

February 22, 1991

(SIGNED) Frans J. Labranche, Jr.

Clerk of Court

For the Court

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.