Amicus Curiae Brief — Yamaha Motor Corp., USA v. Calhoun

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No. 94-1387 JUL 2 4 1995

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1995

YAMAHA MOTOR CORPORATION, U.S.A. and

YAMAHA MOTOR COMPANY, LTD.,

Petitioners,

Vv.

LUCIEN B. CALHOUN and ROBIN L. CALHOUN

INDIVIDUALLY and as ADMINISTRATORS OF the

Estate of Natalie K. Calhoun, Deceased,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF AMICUS CURIAE

OF THE MARITIME LAW ASSOCIATION

OF THE UNITED STATES

IN SUPPORT OF PETITIONERS

CHESTER D. Hooper WARREN J. MARWEDEL

President Counsel of Record

THE MARITIME LAW ASSOCIATION DENNIS MINICHELLO

OF THE UNITED STATES SHARI FRIEDMAN

HAIGHT, GARDNER, Poor & HAVENS Keck, MAHIN & CaTE

195 Broadway 77 W. Wacker Drive

New York, N.Y. 10007 Chicago, IL 60601

(212) 341-7244 (312) 634-7700

Counsel for the Maritime Law Association

of the United States as Amicus Curiae

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

8 oe ef S:

QUESTIONS PRESENTED

1. Whether the General Maritime Law of the United

States since this Court’s decision in Moragne v. States

Marines Lines provides for wrongful death and survival

remedies in cases involving the death of recreational boat-

ers on the navigable waters of the United States.

2. Whether, if Moragne did not provide wrongful death

and survival remedies for recreational boaters, should such

remedies be fashioned as part of the general maritime law

to the exclusion of state law.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED .................. i

TABLE OF AUTHORITIES ................. iv

BRIEF IN SUPPORT OF PETITIONER ..... 1

NATURE OF MLA’S INTEREST ............ 1

SUMMARY OF ARGUMENT ................ 3

ARIES occvcvccctiaheventencuknseene 4

THE GENERAL MARITIME LAW OF THE

UNITED STATES AND NOT STATE LAW MUST

PROVIDE THE REMEDY FOR WRONGFUL

DEATH AND SURVIVAL ACTIONS INVOLVING

RECREATIONAL BOATERS ON THE NAVIGA-

BLE WATERS OF THE UNITED STATES... 4

THE PRINCIPLE OF UNIFORMITY IN THE

GENERAL MARITIME LAW OF THE UNITED

DERE occccccccvescecésépeeukeapneuenae

A. Constitutional Basis For Uniformity .....

B. The Process For Determining The Choice

CS EO .ccccctccsdeuesesela eee 7

Il.

THIS COURT HAS DEVELOPED A BODY OF

MARITIME TORT PRINCIPLES WHICH OC-

CUPY AND GOVERN ALL INJURIES AND

DEATH ON NAVIGABLE WATERS.......... 12

A. This Court’s Decision In Moragne v. States

Marine Lines Created A General Maritime

Remedy For Wrongful Death ........... 12

B. The Further Development Of Maritime Tort

IES IELELESS EP IP PTUUTTTTTTE TE

C. The Application Of Maritime Jurisdiction To

Recreational Boating And The Need For

CE eee eee

III.

THE USE OF STATE WRONGFUL DEATH AND

SURVIVAL REMEDIES WOULD RESULT IN

IRRECONCILABLE AND UNJUST OUTCOMES

FOR SIMILARLY SITUATED PERSONS .....

A. Drowning In The Sea Of State Law....

B. The Nature Of State Wrongful Death And

Survival Remedies And The Likelihood Of

Te acc epecccecce

State-Maritime Law Conflicts ...........

D. The Need For A Judicial Pronouncement Of

A Uniform Maritime Remedy ...........

IV.

IS THIS ANOTHER WAY TO CIRCUMVENT AD-

MIRALTY JURISDICTION FOR RECREATION-

BAD, WEEE ccc ccccccccccccccccccccccccees

DE cpaebeccccceicvesdevcccccccccs

SB &

TABLE OF AUTHORITIES

Cases PAGE

American Dredging Co. v. Miller, 510 U.S. ___,

es § 0 errr 2, 6, 7, 10

Askew v. American Waterways Operators, Inc., 411

Cy Fn hi bebetdeteddmbatecdedéakns 2

Azzopardi v. Ocean Drilling & Exploration Co.,

742 F.2d 890 (5th Cir. 1984) ............... 13

Barbe v. Drummond, 507 F.2d 794 (1st Cir. 1974) . 13

Chick Kam Choo v. Exxon Corp., 486 U.S. 140

GUE 0 vv etes cécdnsqusdcuteewes hate Wiedss 2

Debrino v. Benaquista & Benaquista Realty, Inc.,

522 N.Y.2d 980, 135 A.D.2d 1044 (8d Dpmnt.

GED wncesenverevenuscpaundenevubantnanuess 20

Delevio v. Boit, 7 F. Cas. 418 (C.C.D. Mass. 1815) . 5

East River S.S. Corp. v. Transamerica Delaval

Eme., 476 US. GER CBBE .. cc ccccccccess 6, 8, 9, 24

Edynak v. Atlantic Shipping, Inc., 562 F.2d 515

Gee GA ee ha SC bWices docs sckscouebvcaden: 28

Executive Jet Aviation, Inc. v. City of Cleveland,

Gar Se Gee Ge hiesé évdndcdedccakeee 6, 8, 28

Foremost Ins. Co. v. Richardson, 457 U.S. 668

EE a6 iu necackevieedsceeaaciedes 16, 28

Green v. Vantage S.S. Corp., 466 F.2d 159 (4th Cir.

DEED dadens cececcedecSaaetinees tewohudties 13

Jerome B. Grubart, Inc. v. Great Lakes Dredge &

Dock Co., ___ U.S. ___, 115 S. Ct. 1048

GHEE i vtccscetecoduvceededdveseecunnunt 2, 28, 29

Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), cert.

denied, 416 U.S. 969 (1974) ................ 28

Kermarec v. Compagnie Gen. Transatlantique, 358

Ee ye ee 9,14

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

hak a ke eee end ade 8

Kossick v. United Fruit Co., 365 U.S. 731 (1961) . 17

Lyon v. Ranger III, 858 F.2d 22 (1st Cir. 1988) . 13

Matter of S/S Ilelena, 529 F.2d 744 (5th Cir. 1976) . 13

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) .

eds We ceuWSseus wusehd s6cuvdceunees eet 3, 9, 18, 15

' Mobil Oil Corp. v. Higginbotham, 436 U.S. 618

ED a dekiek sndbadciitetendsesebadens ve 8, 9, 14, 15

Moragne v. Marine Lines, Inc., 398 U.S. 375 (1970) .

IO PRPS S Sere 3, 9, 12-13, 14, 15, 16, 18, 23, 26, 29

Nelson v. United States, 639 F.2d 469 (9th Cir.

RE Per rT errr? error rr rrr Tree 13

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

SE casdinkds desendgensethees cnugidéeans 2,8

Price v. Price, 929 F.2d 131 (4th Cir. 1991)... 28

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) . 2

Romero v. International Terminal Operating Co.,

SUB UB. BEG CUGGD) 2. cccccccccccsccvccees

Sea Land Servs., Inc. v. Gaudet, 414 U.S. 573

GE cS ouaccbéncedastendévaciouesiaintee 6, 7,9, 14

Sinclair v. Soniform, Inc., 935 F.2d 599 (3d Cir.

Ds 1 chime cieu able ¢aesbiweseeebaneion sis 16, 28

Sisson v. Ruby, 497 U.S. 358 (1990) ... 2, 16, 25, 28, 29

Smith v. Knowles, 642 F. Supp. 1137 (D. Md.

SEED aviccntnutdececesdsdussacddveacisceees 28

Spiller v. Thomas M. Lowe, Jr. & Assoc., 466 F.2d

fF _ ee Serer ry rrr. 14

THE HARRISBURG, 119 U.S. 199 (1886)......... 12, 24

THE LOTTAWANNA, 88 U.S. (21 Wall.) 558 (1875) .. 6

THE TUNGUs v. Skovgaard, 358 U.S. 588 (1959) .. 24, 25

United States v. Reliable Transfer Co., 421 U.S.

ee GE stn sku) wennecsadeas> 8, 9, 14, 15, 19, 24

Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d

1084 (2d Cir. 1993), cert. denied, __._ U.S. ___,

Se We i EE conden icnctcecaceces 13

Walker v. Braris, 995 F.2d 77 (5th Cir. 1993) .... 13

Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348

ee Se SE cdthccdnncdnadenssbedauedaeh 26-27

Constitution

RRs Ts GB tin his be Fe eR aaa ais cee 4, 29

Statutes

DP We ST vodcccdenneetCidsccsiddcdsdccds 2

ee coi cdi cabicacceases sete 7

Se es SE sic 6 eracenenceeeunesese4s 2

2 5 - ernie ise aa nenE 2,6

Cp es MED nid ce codencenundcscdecens 7,12

Fp EE hk éS0kd0d60sdceccdccendes 12

Se als b cove dvinsescscwidcceccde 18, 24

ns cos cbs reeacecneen 2

SP Ge EM. on cncdcccepecciccccesce 6

735 ILCS 5/2-1115.1(a) (1995) .................. 19

PED CE BT EE oc bu cevetsvegsscecouatoe 19, 20

vii

Cal. Civ. Proc. § 377.34 (1992) ................. 22

Cal. Civ. Proc. § 340 (1982) ..............2008- 22

Cal. Civ. Code § 1714 (1978) .................. 22

Ce Es Bs BS Fe Wowk ek ec ccc ccuvcnnccces 21

Conn. Gen. Stat. Ann. § 52-555 (1991) ......... 20, 21

Conn. Gen. Stat. Ann. § 52-572h(b) (1991) ...... 21

Ind. Code § 22-3-9-6 (1991) ..............e20e8- 19

Ind. Code § 34-1-1-2 (1983) ...............00eee 19, 20

Ind. Code § 34-4-33-3 (1995) ................0.. 19

Ind. Code § 34-4-33-4 (1995) ..............0000. 19

La. Civ. Code Ann. Art. 2315.2 (1995) ......... 21

La. Civ. Code Ann. Art. 2323 (1995) .......... 21

La. Rev. Stat. Ann. § 13:5106 (1991) ........... 21

Me. Rev. Stat. Ann. tit. 18-A, § 2-804(b) (1981) .. 20

Mich. Comp. Laws § 600.2922 (1986) ........... 20

Mich. Comp. Laws § 600.2949 (1986) ........... 20

N.Y. Civ. Prac. L. & R. Art. 1, § 16 (1939).... 20

N.Y. Civ. Prac. L. & R. § 1411 (1976) ......... 21

Or. Rev. Stat. § 18.470 (1993) ................. 22

Or. Rev. Stat. § 30.020 (1991) ................. 22

P.R. Laws Ann. tit. 31, § 5298 (1991) .......... 22

P.R. Laws Ann. tit. 31, § 5141 (1991) .......... 23

Pa. Cons. Stat. Ann. § 7102 (1982) ............ 23

Pa. Cons. Stat. Ann. § 8301 (1982) ............ 23

Pa. Cons. Stat. Ann. § 8553 (1982) ............ 22

Tx. Civ. Prac. & Rem. Code Ann. § 101.023 (1986) . 21

Tx. Civ. Prac. & Rem. Code Ann. § 16.003 (1986) . 21

Tx. Civ. Prac. & Rem. Code Ann. § 33.001 (1995) . 21

Wash. Rev. Code § 4.16.130 (1988) ............. 22

Wash. Rev. Code § 4.20.020 (1985) ............. 22

Wash. Rev. Code § 4.22.005 (1981) ............. 22

Wis. Stat. Ann. § 893.54 (1983) ................ 20

Wis. Stat. Ann. § 895.04(4) (1995) .............. 19

Wis. Stat. Ann. § 895.045 (1995) ............... 19

Regulations

TP Gia Gh 8 scccccdewaedntndsiwicase<s ss 2

Other Authorities

1 Benedict On Admiralty, § 104 (1995) ........ 6

1 Benedict On Admiralty, § 109 (1995) ........ 9

Gilmore & Black, The Law of Admiralty § 6-61, p.

GO DD Pir eee 15-16

Gilmore & Black, The Law of Admiralty, pp.

463-68, (2d ed. 1975) .........cccceeseeeees 10

Gilmore & Black, The Law of Admiralty, pp.

SE eNO rer errrr 14

Gilmore & Black, The Law of Admiralty, § 2-8 (2d

i HII sks Sb abs Gece ba vaaen dk teadcst

Gilmore & Black, The Law of Admiralty, § 2-1, p.

ee Ge GE, BPE wkd6in oc ceiodedenectccie ses

Schoenbaum, Admiralty and Maritime Law pp. 240-

Ge GE oii0 bees kn bas 0hasedve002645s0000- 14

The Federalist No. 80 (Alexander Hamilton), (F.

Cooice ed., 1961)....... FR AHS AE

MLA Doc. No. 588 (1975) ...........0eeeeeees

MLA Doc. No. 669 (1986) ............---+005-

MLA Report, MLA Doc. No. 671 (1987) .......

Warren J. Marwedel, Admiralty Jurisdiction and

Recreational Craft Personal Injury Issues, 68

TuL. L. REV. 423 (1994) ............eeeeeee

Conventions

28 U.S.T. 3459, 1050 U.N.T.S. 16, amended by

T.LA.S. No. 10672, 1143 U.N.T.S. 346.....

owe

No. 94-1387

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

YAMAHA MOTOR CORPORATION, U.S.A. and

YAMAHA MOTOR COMPANY, LTD.,

Petitioners,

Vv.

LUCIEN B. CALHOUN and ROBIN L. CALHOUN

INDIVIDUALLY and as ADMINISTRATORS OF the

Estate of Natalie K. Calhoun, Deceased,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF AMICUS CURIAE

OF THE MARITIME LAW ASSOCIATION

OF THE UNITED STATES

IN SUPPORT OF PETITIONERS

The Maritime Law Association of the United States

(“MLA”) respectfully files this brief amicus curiae in sup-

port of Petitioners Yamaha Motor Corporation, U.S.A. and

Yamaha Motor Company, Ltd. and requests this Court to

reverse the decision of the United States Court of Appeals

for the Third Circuit (the “Court of Appeals”). Petitioners

and Respondents have consented in writing to the filing of

this brief by the MLA and the parties’ written consents

have been filed with the Clerk of this Court pursuant to

Rule 37.3 of this Court.

NATURE OF THE MLA’S INTEREST

MLA has a strong interest in this case because it involves

important issues of maritime law, and because the Court’s

decision may substantially affect the uniformity of maritime

law. MLA is a nationwide bar association founded in 1899

and incorporated in 1993. Its membership of approximately

3,600 includes attorneys, judges, law professors and others

interested in maritime law. It is affiliated with the Ameri-

can Bar Association (“ABA”) and is represented in ABA’s

House of Delegates.

MLA’s attorney members, most of whom are specialists in

admiralty law, represent all maritime interests—shipown-

ers, charterers, cargo owners, shippers, forwarders, port

authorities, seamen, longshoremen, stevedoring companies,

passengers, marine insurance underwriters and brokers

and all other maritime plaintiffs and defendants.

MLA’s purposes are stated in its Articles of Incorporation:

The objectives of the Association shall be to advance re-

forms in the Maritime Law of the United States, to

facilitate justice in its administration, to promote uni-

formity in its enactment and interpretation. . . .

(Emphasis added).

The MLA has sponsored a wide range of legislation deal-

ing with maritime matters, including the Carriage of Goods

by Sea Act and the Federal Arbitration Act. 46 U.S.C. $§

1300-1315; 9 U.S.C. §§ 1-16. The MLA also has cooperated

with congressional committees in the formulation of other

maritime legislation.’

On April 25, 1975, the MLA passed a resolution urging

congressional committees “that nationwide and, in fact,

world-wide uniformity in the Maritime Law is highly desir-

able, not only from the standpoint of those involved with

maritime commerce but from that of the public as well.”* A

substantially identical resolution was adopted by the Amer-

ican Bar Association in 1976. The MLA reaffirmed this

resolution in 1986.°

In furtherance of its uniformity of maritime law policy,

MLA has filed a number of amicus briefs accepted by this

Court* in important issues of maritime law where the

' E.g., 1972 Water Pollution Control Act Amendments, 33 U.S.C.

§§ 1251-1376 (1988); implementation of the 1972 Convention for

Prevention Collisions at Sea, 28 U.S.T. 3459, 1050 U.N.T.S. 16,

amended by T.1.A.S. No. 10672, 1143 U.N.T.S. 346, reprinted in

6 BENEDICT ON ADMIRALTY, Doc. No. 3-4 (7th rev'd ed. 1993)

[BENEDICT] at p. 3-34.1; See 33 C.F.R. ch. 1, subch. D, Special

Note, at 160 (1987); Inland Navigation Rules Act of 1980, 33

U.S.C. §§ 2001-2073.

* MLA Minutes, MLA Doc. No. 588 at 6397-98 (1975).

* MLA Minutes, MLA Doc. No. 669 at 8769 (1986).

* E.g., Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock

Co.,___ U.S. __, 115 S. Ct. 1043 (1995); American Dredging Co.

v. Miller, 510 U.S. __, 114 S. Ct. 981 (1994); Sisson v. Ruby, 497

U.S. 358 (1990); Chick Kam Choo v. Exxon Corp., 486 U.S. 140

(1988); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986);

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978); Askew v. Amer-

ican Waterways Operators, Inc., 411 U.S. 325 (1973). For a more

comprehensive listing, see MLA Report, MLA Doc. No. 671 at

8862-63 (1987).

Court’s decision would substantially affect the uniformity

of maritime law. Such a situation exists in this case.

The maritime jurisdiction of federal courts is provided by

the Constitution and is the cornerstone upon which unifor-

mity of U.S. maritime law has been built. If maritime inter-

ests were governed by the laws of the fifty states, it would

create an unworkable patchwork of laws that would defeat

uniformity and inhibit the free flow and use of navigable

waters.

SUMMARY OF ARGUMENT

The general maritime laws of the United States, and not

the laws of the fifty states, must provide the remedies for

wrongful death and survival involving recreational boaters

on the navigable waters of the United States. This Court

decided in Moragne v. Marine Lines, Inc., 398 U.S. 375

(1970), that there is a wrongful death remedy in the gen-

eral maritime law “for death caused by violation of mari-

time duties” Jd. at 409. The fashioning of that remedy was

most recently reaffirmed in Miles v. Apex Marine Corp., 498

U.S. 19 (1990).

This Court should declare that Moragne was not limited

to its facts, longshoremen and seamen, but created a gen-

eral maritime wrongful death remedy for all persons falling

within maritime jurisdiction. Alternatively, a wrongful

death and survival remedy for torts causing death to re-

creational boaters should be fashioned by the Court in

keeping with the principle of uniformity. Uniformity is re-

quired in this area because the application of various and

diverse state remedies would result in unjustifiable and

hopeless conflicts in substantive law among the states and

between the states and maritime law for similarly situated

plaintiffs within the maritime jurisdiction of the United

States.

ARGUMENT

THE GENERAL MARITIME LAW OF THE UNITED

STATES AND NOT STATE LAW MUST PROVIDE THE

REMEDY FOR WRONGFUL DEATH AND SURVIVAL AC-

TIONS INVOLVING RECREATIONAL BOATERS ON THE

NAVIGABLE WATERS OF THE UNITED STATES.

THE PRINCIPLE OF UNIFORMITY IN THE GENERAL

MARITIME LAW OF THE UNITED STATES.

A. Constitutional Basis For Uniformity.

Article III, Section 2 of the U.S. Constitution grants judi-

cial power to “all cases of admiralty and maritime jurisdic-

tion.” According to this Court, the Constitution establishes

three different grants of power:

(1) It empowered Congress to confer admiralty and

maritime jurisdiction on the “Tribunals inferior to the

supreme Court” which were authorized by Art. I, § 8, cl.

9. (2) It empowered the federal courts in their exercise

of the admiralty and maritime jurisdiction which had

been conferred on them, to draw on the substantive law

“inherent in the admiralty and maritime jurisdiction,”

[citation omitted], and to continue the development of

this law within constitutional limits. (3) It empowered

Congress to revise and supplement the maritime law

within the limits of the Constitution.

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

354, 360-61 (1959).

Since the early days of this nation, the constitutional

grant of admiralty and maritime jurisdiction to the federal

courts has been broadly construed. Justice Story noted that

the addition of the term “maritime” in the constitutional

grant of power was purposeful, and the jurisdiction was

broader than just the term “admiralty” as it existed under

English law and called for the most liberal interpretation:

(TJhe Constitution not only confers admiralty jurisdic-

tion, but the word “maritime” is super added, seemingly

ex industria to remove every latent doubt. “Cases of

maritime jurisdiction” must include all maritime con-

tracts, torts and injuries, which are in the understand-

ing of the common law, as well as of the admiralty,

“causae civiles et maritime.” In this view there is a pe-

culiar propriety in the incorporation of the term “mari-

time” into the Constitution. The disputes and discus-

sions, respecting what the admiralty jurisdiction was,

could not but be well known to the framers of that in-

strument. [Citation omitted]. One party sought to limit

it by locality, another by the subject matter. It was

wise, therefore, to dissipate all question by giving cog-

nizance of all “cases of maritime jurisdiction,” or, what

is precisely equivalent, of all maritime cases.

. . . [The language of the Constitution will therefore

warrant the most liberal interpretation. . . .

The advantages resulting to the commerce and naviga-

tion of the United States, from a uniformity of rules and

decisions in all maritime questions, authorized us to be-

lieve the national policy, as well as juridical logic, re-

quire the clause of the Constitution to be so construed,

as to embrace all maritime contracts, torts and injuries,

or, in other words, to embrace all those causes, which

originally and inherently belonged to the admiralty, be-

fore any statutable restriction.

Delevio v. Boit, 7 F. Cas. 418, 442-43 (C.C.D. Mass. 1815).

The justification for granting federal judicial power over

admiralty and maritime cases was, at the time of the public

debate on the Constitution, found in the “laws of nations”

and “public peace.” As noted by Alexander Hamilton in The

Federalist No. 80:

. . . The most bigoted idolizers of state authority have

not thus far shown a disposition to deny the national

judiciary the COGNIZANCE of Maritime causes. These

so generally depend on the laws of nations, and so com-

monly affect the rights of foreigners, that they fall with-

in the considerations which are relative to the public

peace. The most important part of them are by the pres-

ent confederation submitted to federal jurisdiction.

The Federalist No. 80, at 538 (Alexander Hamilton), (F.

Cooice ed., 1961).

This Court in THE LOTTAWANNA, clearly stated that the

Article III provision intended to create “. . . a system of law

coextensive with, and operating uniformly in, the whole

country.” 88 U.S. (21 Wall.) 558, 575 (1875), cited in Ameri-

can Dredging Co. v. Miller, 510 U.S. __, 114 S. Ct. 981,

987 (1994). The development and application of a substan-

tive body of uniform laws in all situations in which there is

admiralty jurisdiction, follows from the principal of unifor-

mity. “With admiralty jurisdiction comes the application of

substantive admiralty law.” East River S.S. Corp. v. Trans-

america Delaval Inc., 476 U.S. 858, 864 (1986); Execu-

tive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249,

255 (1972).

The importance of uniformity arises from the commonali-

ty of those factors and conditions which are founu in the

realm of the maritime. These include a common historical

basis,° the perils associated with the seas and weather, the

juridical personality of the vessel, the similarity of risks in

the maritime venture, the federal statutory rules governing

navigation on the territorial waters;* and governing vessel

safety,’ the special solicitude shown to maritime workers by

5 1 Benedict On Admiralty, § 104 (1995).

8 See, e.g., Sea Land Servs., Inc. v. Gaudet, 414 U.S. 573 (1974);

Inland Navigational Rules Act of 1980, 33 U.S.C. §§ 2001-2073.

” Federal Boat Safety Act, 46 U.S.C. § 4301 et seq.

both the courts® and Congress’ and the particular charac-

teristics associated with maritime commerce. Maritime sub-

stantive law was developed to respond to the special needs

of the maritime world.

Therefore, the principle of uniformity does not exist solely

in a vacuum as a self-serving concept without any basis in

reality. The courts have implicitly recognized this reality in

the situs and nexus requirements for maritime jurisdiction

which are themselves factors and conditions which require

maritime substantive rules. Those factors and conditions do

not change from state to state ~r on some other venue

related basis but are themselves uniform. Maritime law

recognizes this and has developed a set of uniform laws to

govern these situations.

B. The Process For Determining The Choice Of Law.

The attention to the principle of uniformity evidences the

importance attached to it, and is a recognition of the fact

that this principle deserves more than lip service as sug-

gested by the Court of Appeals below. Petition at A-10.

Highlighting the difficulty of adhering to the principle of

uniformity does not diminish the vital importance of it to

the maritime jurisprudence of this country.

It is true that it is not always easy to discern a bright

line “separating permissible from impermissible state

regulation in [this Court’s] admiralty jurisprudence.”

American Dredging Co. v. Miller, 510 U.S. __, 114 S. Ct.

981, 987 (1994). However, what is apparent from this

* See, e.g., Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 577

(1974).

* The Jones Act, 46 U.S.C. app. § 688; The Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. §§ 901-950.

Court’s jurisprudence on the principle of uniformity is the

process by which this Court arrives at a determination of

what law should apply. There are essentially four factors to

the choice of law process one can discern from this Court’s

decisions.

First, with admiralty jurisdiction comes the application of

substantive maritime law. East River S.S. Corp. v. Trans-

america Delaval Inc., 476 U.S. 858, 864 (1986) (citing

Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S.

249, 255 (1972)). There is a presumption of the application

of maritime law when the jurisdictional inquiry has been

satisfied. The reason for this is the same as the justification

for uniformity: the locus and nexus of the occurrence re-

quires the specialty of the maritime law for resolution. If

substantive admiralty law is not applied, why bother with

admiralty jurisdiction.

Second, the Courts look to applicable federal statutes or,

“absent a relevant statute, the general maritime law, as de-

veloped by the judiciary. . . .” East River S.S. Corp. v.

Transamerica Delaval Inc., 476 U.S. 858, 864 (1986) (citing

United States v. Reliable Transfer Co., 421 U.S. 397, 409

(1975) and Knickerbocker Ice Co. v. Stewart, 253 U.S. 149,

160-161 (1920)). See generally Mobil Oil Corp. v. Higgin-

botham, 436 U.S. 618, 626 (1978); Offshore Logistics, Inc. v.

Tallentire, 477 U.S. 207, 233 (1986). Federal statutory laws

are given deference by the Court.” The contribution of con-

gressional enactments to the maritime area is quite evident

0“... [W]e have no authority to substitute our views for those

expressed by Congress in a duly enacted statute.” Mobil Oil Corp.

v. Higginbotham, peak. US. 618, 626 (1978). “[We] defer to Con-

gress’ nad tae making a uniform provision for recovery for

ths on the high .” Offshore Logistics, Inc. v.

Tolltive 477 U.S. 207, rs (1986).

in the many laws dealing with maritime issues.'' Absent

any legislative enactments, the controlling rules of admiral-

ty as developed by the judiciary apply.

In the absence of statutory law or general maritime law,

the Court fashions general maritime law from existing

maritime law, federal maritime statutes and state sources.

East River S.S. Corp. v. Transamerica Delaval Inc., 476

U.S. 858, 864-65 (1986) (recognizing products liability in-

cluding strict liability); Kermarec v. Compagnie Gen. Trans

at Catiques, 358 U.S. 625, 630 (1959) (fashioning a ship-

owner's duty of reasonable care); Moragne v. Marine Lines,

Inc., 398 U.S. 375 (1970) (creating a wrongful death remedy

in general maritime law); Mobil Oil Corp. v. Higginbotham,

436 U.S. 618, 624-25 (1978); Miles v. Apex Marine Corp.,

498 U.S. 19, 27 (1990).

The cases in which this Court has fashioned remedies

may be generally divided into two categories: those where

the court has developed a body of principles;’” and those

where the Court has felt a need to resolve anomalies or dis-

crepancies in the law.’* Obviously, again, the jurisdictional

locus and nexus are a necessary and outcome determinative

pretext for the fashioning of the law.

Finally, when reviewing state statutes which impact on

maritime ‘activities, this Court determines whether the

state statutes “contravenes an applicable act of Congress”

'"' 1 Benedict on Admiralty, § 109 (1995).

East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S.

858, 864-65 (1986); Kermarec v. Compagnie Gen. Trans at

Catiques, 358 U.S. 625, 630 (1959); United States v. Reliable

Transfer Co., 421 U.S. 397 (1975); Miles v. Apex Marine Corp.,

498 U.S. 19 (1990).

‘8 Moragne v. Marine Lines, Inc., 398 U.S. 375 (1970); Sea Land

Servs., Inc. v. Gaudet, 414 U.S. 573 (1974).

or “works material prejudice to characteristic features of

the general maritime law, or interferes with the proper har-

mony and uniformity of that law in its international and in-

terstate relations”. A state statute which does, must yield

to a general maritime rule of law.

This fourth characteristic includes two scenarios. The

first is a state statute which regulates a specific activity al-

ready regulated by existing maritime law. The second is the

situation where there is an applicable state statute, but no

specific general maritime rule of law or statute and the

state statute arguably may still conflict with the unique

characteristics of the general maritime law. It is in this

latter area where this Court has had to determine the

necessity of fashioning an appropriate general maritime

remedy where none exists and in spite of the existence of a

state remedy.

As stated by this Court’* and by commentators,” it is dif-

ficult to ascertain when a maritime rule should be fash-

ioned, or, stated differently, when an applicable state

statute should be viewed as violative of the unique charac-

teristic features of maritime law. Two points do surface,

however, which are most important in this issue. First, the

existence of admiralty jurisdiction creates the need to ex-

amine any state statute in the overall context of general

maritime law. Second, a general maritime remedy must be

fashioned when one does not exist, if there are characteris-

tic features of maritime law which otherwise would be vio-

‘4 American Dredging Co. v. Miller, 510 U.S. __, 1148. Ct. 981

(1994).

ed. 1975) where the authors suggest a “balancing test” best ex-

plains the Court’s decisions on this point without providing any

real guidance on the issue.

lated by the use of the state law. Indeed, both points arise

from the principle of uniformity enunciated by this Court as

a desired feature in the general maritime law.'®

The appropriate and proper conclusion to be made is that

the process for determining the choice of law is driven by

the unique nature of maritime interests and that uniformi-

ty is the guiding principle. The substantive law may be

fashioned from federal statutes, state statutes, common law

or existing maritime law always guided by the principle of

uniformity. And, even in the review of a state law which

impacts maritime interests, it is always necessary to be

mindful of the unique nature of maritime interests.

'® The Court of Appeals below developed a “displacement analy-

sis” to determine the choice of law issue. The “displacement

analysis” of the Court of Appeals is fundamentally flawed for

three reasons. First, the Court equates the preemption analysis

applicable to federal-state statute conflicts issues with the mari-

time choice of law rules when the latter rests on admiralty juris-

diction and the former relies on a federal-state statutory conflict.

Second, the analysis fails to place proper emphasis on the im-

portance of fashioning law in an area already occupied by mari-

time substantive law. Third, the analysis seems to suggest that

because state law may be a source from which to fashion an

appropriate maritime rule, state law could be used in and of itself

without the step of inclusion into the general maritime law.

“Thus, because it makes little practical difference as to whether

the general maritime law has incorporated state law or whether

state law provides a rule of decision of its own force, we simply

refer to the problem as ‘displacement of state law ”. Petition at

A-10 (footnote omitted). It is difficult to imagine after the use of

state law along with existing maritime law in Moragne, East

River and Miles to fashion a maritime remedy how the Court of

Appeals could have reached such a strange conclusion. The Court

of Appeals’ blurring of this important distinction also will lead to

the “displacement” of existing substantive maritime law. See Dis-

cussion, infra, pp. 23-26.

Il.

THIS COURT HAS DEVELOPED A BODY OF MARITIME

TORT PRINCIPLES WHICH OCCUPY AND GOVERN ALL

INJURIES AND DEATH ON NAVIGABLE WATERS.

A. This Court’s Decision In Moragne v. States Marine

Lines Created A General Maritime Remedy For Wrong-

ful Death.

This Court’s decision in Moragne v. States Marine Lines,

398 U.S. 375 (1970), was a landmark decision because it re-

versed the decision in THE HARRISBURG, 119 U.S. 199

(1886), and fashioned a wrongful death remedy for the gen-

eral maritime law. Moragne is noteworthy for the principle

of uniformity and the discussion in this case for several rea-

sons.

First, this Court took notice of the special characteristics

of maritime law. Moragne, 398 U.S. at 386-87. Second, the

general development of state wrongful death remedies and

federal wrongful death remedies was acknowledged as evi-

dence of a policy favoring the creation of such a remedy. Jd.

at 390-93. Third, this Court further recognized that Con-

gress “has given no affirmative indication of an intent to

preclude the judicial allowance of a remedy for wrongful

death ...” Id. at 393. Fourth, Congress enacted Death on

the High Seas Act (DOHSA), 46 U.S.C. §§ 761-768 and the

Jones Act, 46 U.S.C. app. § 688, providing for wrongful

death remedies and consequently evidencing congressional

intent. Fifth, incongruities had developed between the deci-

sional and the statutory law regarding wrongful death

which could no longer be justified. Moragne, 398 U.S. at

395-96.

All of the above factors formed the basis for the repudia-

tion of THE HARRISBURG, the affirmation of the principal of

uniformity and the rejection of state remedies:

Our recognition of a right to recover for wrongful death

under general maritime law will assure uniform vindi-

cation of federal policies, removing the tensions and dis-

crepancies that have resulted from the necessity to

accommodate state remedial statutes to exclusively

maritime substantive concepts.

Id. at 401.

The wrongful death remedy fashioned by this Court in

Moragne was for the general maritime law and is not, as

the Court of Appeals below has stated, limited to longshore-

man. Petition at A-33-34. Legal scholars and almost all of

the other circuits have concurred in this interpretation."”

"7 See Matter of S/S Ilelena, 529 F.2d 744, 753 (5th Cir. 1976)

(“because a persuasive rational for the enforcement of state

wrongful death statutes in admiralty courts no longer exists after

Moragne, we hold that the wrongful death remedy provided by

that case precludes recognition in admiralty of state statutes.”);

Nelson v. United States, 639 F.2d 469, 473 (9th Cir. 1980) (“We

hold ti.at the need for uniformity in maritime wrongful death

actions requires extension of Moragne to cover claims based on

negligence, to the exclusion of state wrongful death statutes.”);

Miles v. Apex Marine, Corp., 498 U.S. 19 (1990) (the uniform law

of admiralty preempts state wrongful death statutes in territorial

waters); Barbe v. Drummond, 507 F.2d 794 (1st Cir. 1974) (recog-

nizing a federal maritime survival action similar to Moragne);

Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084 (2d Cir.

1993), cert. denied, __ U.S. ___, 114 S. Ct. 1060 (1994) (state law

claims dismissed in favor of federal maritime law); Lyon v.

Ranger III, 858 F.2d 22 (1st Cir. 1988) (recovery consistent with

standard Moragne wrongful death and survival action); Green v.

Vantage S.S. Corp., 466 F.2d 159 (4th Cir. 1972) (Moragne wrong-

ful death action displaces state statutes); Walker v. Braris, 995

F.2d 77 (5th Cir. 1993) (damages limited to those recoverable

under a Moragne death cause of action); Azzopardi v. Ocean Dril-

ling & Exploration Co., 742 F.2d 890 (5th Cir. 1984) (under prin-

ciples announced in Moragne, general maritime law includes a

survival action permitting recovery of decedent’s pre-death dam-

(continued...)

B. The Further Development Of Maritime Tort Law.

Moragne does not stand alone in the jurisprudence deal-

ing with uniformity in maritime tort law. Other recent

cases before and after evidence continuing activity in the

area of substantive maritime tort law.

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

625, 630 (1959) developed the shipowner’s duty of exercis-

ing reasonable care, noting the development in the common

law in fashioning a single standard of care. Sea Land

Servs., Inc. v. Gaudet, 414 U.S. 573 (1974), picked up where

Moragne left off in the fashioning of a nonstatutory wrong-

ful death remedy. In Gaudet, the majority and dissent

again looked to the policy evidenced by state and federal

law to argue for the proper parameters of the remedy.

In Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978),

this Court read DOHSA to provide the elements of damages

in a wrongful death on the high seas. While the decision

has been read as an example of this Court failing to sup-

port uniformity, it is better interpreted to show the defer-

ence paid to specific federal maritime statutory schemes in

determining maritime tort damages. Thus, while this Court

fashioned the elements of damages for wrongful death on

territorial waters in Gaudet by reference to statutory law

and the uniformity policy of the maritime law, it would not

upset the specific federal statutory scheme in the name of

uniformity. Most importantly, this Court reaffirmed the

7 (continued)

ages); Spiller v. Thomas M. Lowe, Jr. & Assoc., 466 F.2d 903 (8th

Cir. 1972) (general maritime wrongful death and survival actions

exist after Moragne); Gilmore & Black, The Law of Admiralty pp.

369-70 (2d ed. 1975) (a treatise previously cited with approval by

this Court in United States v. Reliable Transfer Co., 421 U.S. 397,

405, 410 (1975)); Schoenbaum, Admiralty and Maritime Law, pp.

240-41 (1987).

— we es =

” —

value of uniformity, but minimized the threat in the context

of DOHSA laws. Mobil Oil Corp., 436 U.S. at 624.

If there was any doubt as to how to interpret the inclu-

siveness of the wrongful death remedy in Moragne, then the

decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990),

should have laid that doubt to rest. Miles confirmed that

Moragne’s general maritime cause of action for wrongful

death applies to seamen which in essence confirmed that

Moragne should not be so narrowly interpreted to apply

only to longshoremen.

Miles also is noteworthy for two other reasons. First, it

reconfirmed the willingness of this Court to fashion tort

remedies consistent with existing maritime law. Second,

this Court acknowledged (although it did not rule on) the

federal and state statutory support for a right of survival

and the decisions of various lower courts to use the Jones

Act and the many state survival statutes to fashion a gen-

eral maritime right of survival. Miles, 498 U.S. at 33-34.

The inescapable conclusion to be drawn from this line of

cases is that this Court has totally occupied the maritime

tort area and that it is willing to fashion tort remedies for

the-general maritime law consistent with the existing fed-

eral statutes in recognition of the principal of uniformity

and has taken the lead in developing fair and flexible rem-

edies. United States v. Reliable Transfer Co., 421 U.S. 397.

409 (1975). Thus, to the extent the Court of Appeals is cor-

rect in its narrow reading of Moragne, this Court should

now extend the general maritime wrongful death remedy to

the recreational boating area."

‘* This Court’s activities in the maritime tort area between 1950

and 1970 have been characterized by Gilmore and Black as revo-

lutionary. Gilmore & Black, The Law of Admiralty § 6-6

C. The Application Of Maritime Jurisdiction To Recre-

ational Boating And The Need For Uniformity.

An important and relevant development in this Court’s

maritime jurisprudence since Moragne has been the appli-

cation of maritime jurisdiction to recreational boating. See

Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982); Sis-

son v. Ruby, 497 U.S. 358 (1990). See generally Warren J.

Marwedel, Admiralty Jurisdiction and Recreational Craft

Personal Injury Issues, 68 TUL. L. REV. 423 (1994). Until

Calhoun, the Court of Appeals also seemed to be in agree-

ment with application of general maritime law to recre-

ational boaters. See Sinclair v. Soniform, Inc., 935 F.2d 599,

603 (3d Cir. 1991). Indeed, the existence of admiralty juris-

diction in this case is incontrovertible.

There is now a convergence of this Court’s maritime juris-

dictional decisions and its substantive maritime tort law. It

is consistent with this Court’s previous decisions that the

substantive maritime law should follow maritime jurisdic-

tion in cases involving torts arising from recreational ves-

sels. This Court should clarify this issue and, to the extent

necessary, fashion the appropriate wrongful death and sur-

vival remedies in the same manner used in Moragne and its

successors.

8 (...continued)

(2d ed. 1975). “Not infrequently the personal injury cases seemed

to present a problem of choice between a federal or maritime law

rule and a state common law or statutory rule... . State law

rules which were not inconsistent with the court’s reformulation

of the substantive law were allowed to continue to influence the

results in litigation. The federal solution was reserved for cases

in which ts consistent with the reformulation of substantive

law required the application of an old or the fashioning of a new

rule of maritime law. . . .” Jd. The case law since 1970 has only

furthered this development.

As noted above, the reasons for fashioning tort remedies

for the general maritime law center on the goal of uniformi-

ty. A general maritime tort remedy treats all similarly situ-

ated persons within admiralty jurisdiction in a uniform and

predictable manner. It precludes forum shopping. It re-

moves the anomalies created by the differences in remedies

among the states. And, it promotes harmony with the fed-

eral statutory scheme applicable to recreational boating.

Moreover, there is no compelling state or local interest

which should override the development of appropriate rem-

edies. Kossick v. United Fruit Co., 365 U.S. 731, 738-42

(1961).

Il.

THE USE OF STATE WRONGFUL DEATH AND SURVIVAL

REMEDIES WOULD RESULT IN IRRECONCILABLE AND

UNJUST OUTCOMES FOR SIMILARLY SITUATED PER-

SONS.

A. Drowning In The Sea Of State Law.

The accident resulting in the death of Natalie K. Calhoun

is not unlike many unfortunate accidents giving rise to

maritime tort law suits in that such accidents share certain

common elements: a navigable body of water, a vessel, alle-

gations of negligence, strict liability or breach of warranty,

risks normally associated with perils of the sea, and com-

mon navigation rules. The commonality of elements results

in similarly situated plaintiffs and strongly suggests the

desirability of equal treatment before the law. And yet, the

Court of Appeals would have the myriad and diverse state

laws govern the rights of those similarly situated plaintiffs.

The Court of Appeals did not offer a rationale for such a

conclusion and its opinion does not even attempt any re-

view or analysis of any state laws to justify such an opinion

and which would eliminate what appears on its face to be

an unjust and inequitable result.

However, a proper analysis of state laws would demon-

strate that the application of state wrongful death and sur-

vival action remedies would result in endless and impossi-

ble conflicts no less in number and no less unjust than

those faced by this Court in Moragne. The conflicts would

result both from the interstate differences in the law and

the conflicts between state law and the general maritime

law.

B. The Nature Of State Wrongful Death And Survival

Remedies And The Likelihood Of Conflict.

Wrongful death and survival remedies are found in all

states and were created by state legislatures to supplement

the common law which precluded such remedies. In es-

sence, the wrongful death remedy usually permits next of

kin to maintain a cause of action for the death of a loved

one and a survival remedy preserves the causes of action

available to a decedent before he dies. Most important for

this analysis is the fact that the remedies preserve whatev-

er tort causes of action are available under the general laws

of the state. Thus, a plaintiff may allege a right to bring a

cause of action pursuant to a wrongful death statute, but

must plead the elements of a recognized tort in order to

state a valid cause of action.

It logically follows that a proper impact analysis of the

application of state remedies to persons similarly situated

in the maritime must include not only the remedies them-

selves, but also the substantive tort law which would be the

basis of any cause of action authorized by the remedies.

And it is in that state substantive tort law where the signi-

ficant differences among the states may be found.

General maritime law provides that all actions involving

personal injury must be commenced within three (3) years

of the date of occurrence. 46 U.S.C. § 763a. The law pro-

vides that pure comparative fault be used to reduce a plain-

tiff’s recovery by the percentage of the decedent’s fault, but

does not provide a complete bar to recovery for damages.

United States v. Reliable Transfer Co., 421 U.S. 397 (1975).

Finally, the general maritime law does not limit the

amount of damages that may be recovered for personal in-

jury, including death.

In stark contrast to the above, differences in the wrongful

death and survival act statutes of the numerous states hav-

ing navigable waters with respect to the amounts of dam-

ages recoverable, statutes of limitations and comparative

fault rules are significant. We only need to survey a hand-

ful of states bordering identical bodies of water to demon-

strate these differences.

For example, in Indiana, bordering Lake Michigan, if the

defendant in a wrongful death action is the decedent’s em-

ployer, liability shall not exceed $10,000. Ind. Code § 22-3-

9-6 (1991). Indiana does not otherwise limit the amount of

damages recoverable in a wrongful death action. Id. § 34-1-

1-2 (1983). In contrast, Wisconsin limits damages for loss of

society and companionship to $150,000. Wis. Stat. Ann. §

895.04(4) (1995). Illinois limits non-economic damages to

$500,000 and bars all recovery for hedonic damages. 740

ILCS 180/2 (1995); 735 ILCS 5/2-1115.1(a) (1995).

Indiana, Wisconsin and Illinois further limit recovery by

reducing available damages by the percentage of fault attri-

butable to the decedent.'* However, if the decedent’s fault

is determined to be greater than that of the defendants, re-

covery is barred altogether.” In contrast, Michigan does not

'* Ind. Code § 34-4-33-3 (1995) and § 34-4-33-4 (1995); Wis. Stat.

Ann. § 895.045 (1995); 740 ILCS 180/2 (1995).

*” Id.

bar recovery regardless of the decedent’s degree of fault, but

only reduces damages by that percentage. Mich. Comp.

Laws § 600.2949 (1986).

In terms of when an action may be maintained, Indiana

and Illinois adhere to a two (2) year limitation period from

the date of death.” In Wisconsin, an action must be

brought within three (3) years. Wis. Stat. Ann. § 893.54

(1983). And in Michigan, the applicable limitations period

depends on the underlying cause of action upon which re-

covery is sought. Mich. Comp. Laws. § 600.2922 (1986).

The laws governing the various states bordering naviga-

ble waters other than the Great Lakes also differ signifi-

cantly. For example, Maine limits damages for loss of com-

fort, society and companionship, including damages for

emotional distress, to $75,000. Me. Rev. Stat. Ann. tit. 18-A,

§ 2-804(b) (1981). It also limits punitive damages to

$75,000. Jd. In contrast, New York law specifically provides

that the amount of damages recoverable due to injuries

causing death shall not be subject to any statutory limita-

tions. N.Y. Civ. Prac. L. & R. Art 1, § 16 (1939). Similarly,

Connecticut does not significantly limit the damages recov-

erable. Conn. Gen. Stat. Ann. § 52-555 (1991).

All of these states, Maine, New York, and Connecticut,

generally proscribe a two (2) year limitations period from

the time of a death within which to bring an action.” How-

ever, Connecticut further restricts when an action may be

commenced by refusing to recognize any actions for wrong-

ful death commenced more than five years from the date of

** Ind. Code § 34-1-1-2 (1983); 740 ILCS 180/2 (1995).

2 Me. Rev. Stat. Ann. tit. 18-A, § 2-804(b) (1981); Debrino v.

Benaquista & Benaquista Realty, Inc., 522 N.Y.2d 980, 135

A.D.2d 1044 (3d Dpmnt. 1987); Conn. Gen. Stat. Ann. § 52-555

(1991).

the wrongful act or omission. Conn. Gen. Stat. Ann. § 52-

555 (1991).

These states also differ in their application of a contribu-

tory negligence rule. The rule followed by Connecticut pro-

vides that recovery is completely barred if the plaintiff or

decedent’s fault is greater than the fault of all defendants.

Conn. Gen. Stat. Ann. § 52-572h(b) (1991). In contrast, in

Maine and New York, a decedent’s fault serves only to re-

duce recovery by the degree of that fault.”

Other states also differ in their application of rules gov-

erning recovery in wrongful death actions. The maximum

money damages recoverable for injury or death from the

Texas state government or a municipality thereof is

$250,000 per person and $500,000 for each single occur-

rence. Tex. Civ. Prac. & Rem. Code Ann. § 101.023 (1986).

Maximum money damages recoverable against a unit of lo-

cal government are $100,000 for each person and $300,000

for each single occurrence. Jd. Louisiana limits damages in

a death action against the state to $500,000. La. Rev. Stat.

Ann. § 13:5106 (1991). An action for wrongful death under

Texas law must be commenced within two (2) years from

the date of death. Tx. Civ. Prac. & Rem. Code Ann. § 16.003

(1986). In Louisiana, an action must be commenced within

one (1) year. La. Civ. Code Ann. art. 2315.2 (1995). In

Texas, recovery for wrongful death due to negligence is

completely barred if the decedent’s fault was greater than

that of all defendants. Tx. Civ. Prac. & Rem. Code Ann. §

33.001 (1995). In contrast, Louisiana only reduces the

amount of recovery by the degree of the decedent’s fault.

La. Civ. Code Ann. art. 2323 (1995).

* Code Me. R. 14 § 156; N.Y. Civ. Prac. L. & R. § 1411 (1976).

California, Oregon and Washington on the west coast also

differ in the application of their wrongful death statutes. In

California, an action must be brought within one (1) year of

the death. Cal. Civ. Proc. § 340 (1982). Damages are limited

to the loss/damages that the decedent sustained or incurred

before death including any punitive or exemplary damages

the decedent would have been entitled to had he/she lived,

but do not include pain suffering or disfigurement. Cal. Civ.

Proc. § 377.34 (1992). A decedent’s contributory negligence

does not bar recovery, but only reduces recovery by the

degree of decedent’s fault. Cal. Civ. Code § 1714 (1978).

In contrast, in Oregon, a wrongful death action must be

commenced within three (3) years of the death. Or. Rev.

Stat. § 30.020 (1991). In Washington, the action must be

commenced within two (2) years. Wash. Rev. Code §

4.16.130 (1988). Neither Oregon nor Washington signifi-

cantly limit damages available. Or. Rev. Stat. § 30.020

(1991); Wash. Rev. Code § 4.20.020 (1985). Oregon bars all

recovery if a decedent’s fault is greater than the fault of all

defendants. Or. Rev. Stat. § 18.470 (1993). Washington, like

California, only reduces recovery by the degree of the dece-

dent’s fault. Wash. Rev. Code § 4.22.005 (1981).

Finally, Puerto Rico, the locale of the subject incident,

and Pennsylvania, the state in which Petitioners brought

the instant action, also differ with respect to the laws of

their wrongful death and survival acts. In Pennsylvania,

damages where a governmental unit is liable cannot exceed

$500,000 and are limited to past and future earning capaci-

ty, pain and suffering due to death, medical expenses, loss

of consortium, loss of support and property losses. Pa. Cons.

Stat. Ann. § 8553 (1982). Puerto Rico has a one (1) year

limitations period from date of death within which to file an

action. P.R. Laws Ann. tit. 31, § 5298 (1991). Pennsylvania

has a two (2) year limitation period which is further re-

stricted by the requirement that the limitation period on

the underlying personal injury action had not run before

the decedent’s death. Pa. Cons. Stat. Ann. § 8301 (1982).

Puerto Rico requires that any recovery be reduced by the

degree of fault attributable to the decedent. P.R. Laws Ann.

tit. 31, § 5141 (1991). The rule followed by Pennsylvania

provides that recovery is completely barred if the plaintiff

or decedent’s fault is greater than the fault of all defen-

dants. Pa. Cons. Stat. Ann. § 7102 (1982).

Obviously, it will be important in which state’s territorial

waters an accident occurs for even though two states share

the same navigable waters, the available remedies may

differ significantly. There is no principled or logical justifi-

cation for allowing such a difference to exist when the

occurrence leading to death occurs on a navigable water, is

governed by the same federal rules as to navigation and

boat safety and is subject to maritime jurisdiction. Similarly

situated plaintiffs should not be treated differently.

C. State-Maritime Law Conflicts.

The Court of Appeals found no conflict between state

wrongful death and survival remedies and general mari-

time law because there allegedly are no similar remedies

for non-seamen. Even if that conclusion is correct based on

a reading of Moragne, it is totally incorrect in the context

of all maritime tort law. It is not only the difference among

the state wrongful death and survival remedies that creates

unjustified anomalies in the law of wrongful death. Using

“ If a decedent employee knew of the defect or negligence which

caused his injury and failed to give notice within a reasonable

time, his heirs are not entitled to any compensation as against

the employer.

a state wrongful death and survival remedy in a maritime

case creates its own set of anomalies.

Maritime law recognizes a general theory of products lia-

bility for negligence including strict liability. See East River

S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858

(1986). Maritime law also recognizes the doctrine of pure

comparative fault. See United States v. Reliable Transfer

Co., 421 U.S. 397 (1975). The maritime statute of limita-

tions for personal injury actions, including death, is three

years. 46 U.S.C. § 763a. The problem develops, of course,

from the need to apply a substantive body of law consistent

with the principals of maritime law, after having adopted

a state wrongful death and survival remedy. This Court has

previously held that “. . . when admiralty adopts a state’s

right of action for wrongful death, it must enforce the right

as an integrated whole, with whatever conditions and lim-

itations the creating state has attached.” THE TUNGUS v.

Skovgaard, 358 U.S. 588, 592 (1959) (citing THE HARRIS-

BURG, 119 U.S. 199 (1886)). But applying state substantive

law would result in many instances in the abrogation of

maritime substantive law. Thus, rather than state law

“supplementing” a void in the maritime law, state law

would supplant maritime law which would otherwise apply,

in total contradiction to the supremacy of maritime law,

and uniformity. Indeed, the anomaly of the situation is

clearly demonstrated by the instant case: had Natalie Cal-

houn only been injured as opposed to killed, there is no

doubt that federal maritime law would apply to her claims.

The perverse effects created by the use of state remedies

in the arena of maritime tort law can best be illustrated by

a hypothetical death due to a negligence scenario occurring

on the Illinois navigable waters of Lake Michigan arising

from an alleged breach of federal navigational rules.”* [Ili-

nois has a two year statute of limitations for bringing a

wrongful death claim, a cap on non-economic damages and

a 51% contributory negligence rule. In contrast, general

maritime law has a three year statute of limitations, no cap

on damages and a pure comparative fault rule. Does the

maritime pure comparative fault doctrine supersede the IIli-

nois 51% rule? Does the Illinois limit on non-economic dam-

ages “cap” the recovery otherwise available under maritime

law? If the action is filed within three years, but after two

years from the date of the occurrence or death, is the action

barred? THE TUNGUS decision would mandate the use of

state law to the exclusion of existing and applicable mari-

time law even though the accident arose from a breach of

the federal navigational rules.

The inequities in such an outcome can be further illus-

trated by another hypothetical. If Natalie Calhoun owned

the vessel she was driving and was carrying a passenger

who was injured but not killed, Natalie would have a state

law remedy while her passenger would have maritime rem-

edies against her and Yamaha. Or, if both Natalie and her

passenger were passengers on someone else’s vessel, their

remedies would differ. In either case, Yamaha would find

itself swamped in the differences between state and mari-

time law.”

- Lake Michigan has been selected because it is the body of

water on which Mr. Sisson’s vessel, the M/V ULTORIAN, was

found at the time of the fire. Sisson v. Ruby, 497 U.S. 358, n.4,

(1990).

= The Court of Appeals below downplayed the significance of

different recoveries based on a party’s status. Petition at A-41.

But the real problem is illustrated here, where the status of the

parties is the same.

These illustrations demonstrate the fallacy in the pre-

emption analysis of the Court of Appeals. It is important

whether you adopt a state remedy or only use state reme-

dies as sources of law from which to fashion a uniform

maritime remedy. In the former case, you end up displacing

maritime law while in the latter you fill a void in the gen-

eral maritime law by fashioning a maritime remedy without

the state law baggage.

D. The Need For A Judicial Pronouncement Of A Uniform

Maritime Remedy.

Clearly, without a reversal of the Court of Appeals deci-

sion below, and a pronouncement of the application of Mor-

agne (along with the creation of a maritime survival action)

to recreational boating accidents, the “anomalies” rectified

by Moragne and other decisions will overtake maritime tort

law and destroy uniformity. This Court should define mari-

time tort law in this context as is appropriate and neces-

sary, to the exclusion of state wrongful death and survival

remedies, the application of which can only lead to trouble-

some results.

This Court’s decision in Wilburn Boat Co. v. Fireman's

Fund Ins. Co., 348 U.S. 310 (1955), is a good example of the

conflict and confusion created when the principal of unifor-

mity is “displaced” by state law. Wilburn involved the de-

struction of a small houseboat for commercial use on an

artificial inland lake and the insurer’s refusal to pay a

claim for the loss because of alleged breaches of “warran-

ties.” The issue before the Court was whether any breach

of warranty, although unrelated to the loss, bars recovery

under a maritime contract of insurance.

The maritime jurisdiction of the Court in Wilburn was

acknowledged as the policy was a maritime contract. Jd. at

313. The Court made two inquiries: “(1) Is there a judicially

‘ee

established federal admiralty rule governing these warran-

ties; (2) If not, should we fashion one?” Jd. at 315. Finding

that there was no maritime rule of warranties, that the law

of insurance was historically governed by the states, that

insurance disputes were generally handled in state courts,

and that Congress left regulation to the states, the majority

of the Court felt compelled to leave regulation with the

States.

The Wilburn decision has been harshly criticized.”’ In-

surance policies have been “as unquestionably an integral

part of the admiralty and maritime jurisdiction as is any

other subject matter.”” By not fashioning a rule of law on

this outcome determinative issue, the Court in essence pre-

cluded the future development of a maritime rule of law in

this most fundamental area of maritime jurisprudence.

While sharing all of the indices of maritime jurisdiction,

historical underpinnings and commercial necessity, the in-

terpretation of maritime policies of insurance are to be sub-

ject to the local state rules of law.

This same outcome is likely in the maritime tort law if

this court affirms the decision of the Court of Appeals. It

would be impossible to justify such an outcome in light of

the “displacement” of existing substantive maritime law

which would result.

*" See Gilmore & Black, The Law of Admiralty, § 2-8 (2d ed.

1975).

8 Id. § 2-1, p. 53.

IV.

IS THIS ANOTHER WAY TO CIRCUMVENT ADMIRALTY

JURISDICTION FOR RECREATIONAL VESSELS.

The Appellate Court’s decision in Yamaha is yet another

example of the undeniable confusion which presently char-

acterizes maritime jurisdiction inquiries by the lower

courts, where little or none existed under the old “situs”

test. Even after this Court decided Sisson, the lower courts

continued to apply multi-factored jurisdictional tests as set

forth in Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), cert.

denied, 416 U.S. 969 (1974) and Edynak v. Atlantic Ship-

ping, Inc., 562 F.2d 515 (3d Cir. 1977) or variations thereof.

For instance, the third and fourth circuits, while acknowl-

edging they were bound by Sisson, continued to use the

Kelly factors. Sinclair v. Soniforn, Inc., 935 F.2d 599, 602

(3d Cir. 1991); Price v. Price, 929 F.2d 131, 135 (4th Cir.

1991). A district court in Maryland, following the multi-part

test fashioned a commercial “hit the tanker” test showing

lower courts unnecessary focus on commerce. Smith v.

Knowles, 642 F. Supp. 1137 (D. Md. 1986).

This Court has had to address admiralty tort jurisdiction-

al issues four times” since 1972. This case raises essential-

ly the same issue. Part of the reason may be philosophical,

that admiralty jurisdiction and law should not apply in the

recreational context, but we believe the real confusion has

been the nexus test first created in Executive Jet. While the

original nexus decision in Executive Jet may have been re-

stricted to aircraft, we submit it was not necessary if the

Court used the original situs test and the obvious, unstated

2 Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 429

(1972); Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982); Sis-

son v. Ruby, 497 U.S. 358 (1990); Jerome B. Grubart, Inc. v. Great

Lakes Dredge & Dock Co., __ U.S. ___ 115 S. Ct. 1043 (1995).

rule, that a vessel be involved. Admiralty jurisdiction is

constitutional, and may be augmented by Congress under

the Commerce Clause. However, the constitution does not

require commerce under Article III. Even if commerce is re-

quired, 20 million boats on the water represents a substan-

tial commercial impact. What is the difference between

vacationers on the Q.E. 2, or 100 people on a sightseeing

boat on the Potomac River, or one person who rents and

operates a wave runner on navigable water. All of these

people are involved in recreational pursuits that directly

impact on commerce.

This Court has struggled with the commercial/recreation-

al argument for years resulting in extensive litigation over

the issue of admiralty jurisdiction and what law applies.

The doctrine of uniformity in admiralty law should provide

the real focus. It is the use of navigable waterways that de-

mands uniformity.

We urge the Court to reconsider the arguments made in

Sisson and Grubart that the Court return to the situs test

analysis. If you have a vessel on navigable waters, you have

admiralty jurisdiction and admiralty law applies. If no ad-

miralty rule exists, the Court should then fashion one. This

will give uniformity and end the “paper chase” approach we

presently have.

CONCLUSION

The MLA respectfully urges this Court to reaffirm the

principal of uniformity in the area of maritime tort law by

applying Moragne to the death actions of recreational boat-

ers. Alternatively, this Court should fashion an appropriate

general maritime wrongful death and survival remedy con-

sistent with its maritime tort jurisprudence. The decision

of the Court of Appeals should therefore be reversed and

the case remanded for further proceedings consistent with

such a decision.

Respectfully submitted,