Petition for Writ of Certiorari — Petroleum Helicopters, Inc. v. Sincox

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85-97 ; FILED

| Office-Supreme Court, U.S.

—

JUL 17 1985

No. 84-

ALEXANDER L STEVAS,

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1984

PETROLEUM HELICOPTERS, INC.,

Petitioner,

CAROL T. SINCOX, individually and as natural tutrix

of the minors, Byron Sincox, etc.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

VANCE E. ELLEFSON

LUGENBUHL, LARZELERE

& ELLEFSON

Sixth Floor, Central Plaza

600 Carondelet Street

New Orleans, Louisiana 70130

(504) 523-6066

RICHARD M. SHARP *

RICHARD M. WYNER

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

Counsel for Petitioner

Petroleum Helicopters, Inc.

July 17, 1985 * Counsel of Record

QUESTION PRESENTED

Whether the court of appeals erred in holding, con-

trary to the decisions of three other courts of appeals,

that the Death‘on the High Seag Act, 46 U.S.C. §§ 761-

767 (1982), does not preempt the application of state

wrongful death statutes to accidents on the high seas.*

* The only parties to the proceeding in the Court of Appeals were

Carol T. Sincox and Petroleum Helicopters, Inc. Ms. Sincox ap-

peared in the court below both individually and as the natural tutrix

of her minor children, Byron Sincox and Darin J. Hebert. Petitioner

Petroleum Helicopters, Inc. is a subsidiary of Offshore Navigation,

Inc., has no subsidiaries that are not wholly owned, and has the

following affiliates: Arabian Helicopters, Int'l; Arabian Helicopters,

Ltd.; Corporacion de Servicios Dzunum, S.A. de C.V.; Ecuavia

Oriente, S.A.; Evangeline Airmotive, Inc.; International Helicopter

Transport, Inc.; and Petroleum Helicopter de Bolivia, Inc.

(i)

TABLE OF CONTENTS

OPINIONS BELOW ............... Se eceeeerser ena stant th nant OF

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REASONS FOR GRANTING THE WRIT.....................

THE DECISION BELOW CONFLICTS WITH

LONG-STANDING DECISIONS OF OTHER

COURTS OF APPEALS AND _ DISTRICT

COURTS ON AN ISSUE CENTRAL TO THE

UNIFORM ADMINISTRATION OF MARITIME

1. The Decision Below Conflicts With That

Reached By Three Other Courts Of Appeals......

2. The Decision Below Places An Erroneous Con-

struction On Section 7 Of DOHSA.......

3. The Decision Below Frustrates The Principle

of Uniformity In Maritime Law By Permitting

State Statutes To Apply To Wrongful Deaths

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APPENDIX:

Judgment and Opinion of the court of appeals ........

Order of the court of appeals denying suggestion

Se SEIN OF0 DURIIC ............-..<-20<csc0-c-ceccccococcsecsensee

career Ge Cone G@IGGPIC’ COUNT .................-.-c<--0-c0-cccecececoees

Opinion of the court of appeals in Tallentire v. Off-

shore Logistics, Inc., 754 F.2d 1274 (5th Cir.

ca eg ON Ne is

Text of the Death on the High Seas Act and Louisi-

ana’s Wrongful Death Statute ...................000.00.....

(ili)

TABLE OF AUTHORITIES

CASES: Page

Alexander vy. United Technologies Corp., 548

F. Bee. TAO CER Ce Tee socisescdisncercce 8

American Tobacco Co. Vv. Patterson, 456 US. 63

ORES REIT SS yer eins oer te Maen Phos ARN Ay mA 14

Barbe v. Drummond, 507 F.2d 794 (1st Cir. 1974).. 7, 8,9

Batkiewicz v. Seas Shipping Co., 53 F. Supp. 802

It I ose, ace aas sede apsnaceciterabeans 8

Blumenthal v. United States, 189 F. Supp. 439

(E.D. Pa. 1960), aff'd, 306 F.2d 16 (3d Cir.

ERR NIE AP as aE ane io ee panna cAI Act Neale AN Sat Ny MSA NS 8

Canillas v. Joseph H. Carter, Inc., 280 F. Supp. 48

(Be BE ARE aI girl ee Metin ne ne Oecd 8

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) _.... ; il

Consumer Product Safety Comm’n v. GTE Syl-

vanes Ine., 447 U.S. 102 CIGGO) .....20.525..000c0000505...2. 11

Devlin Vv. Flying Tiger Lines, Inc., 220 F. Supp. 924

Ces Bec MD pesvocece teiccamcesns ce etenre sdesebcsanseisioianess 8

Dore Vv. Link Belt Corp., 391 F.2d 671 (5th Cir.

1968), rev’d sub nom. Rodrigue Vv. Aetna Cas-

ualty & Surety Co., 395 U.S. 352 (1969) ............ 9

Dugas Vv. National Aircreft Corp., 488 F.2d 1386

eR 2 5 RRS CE SURES oe ba nak rently Pee non dae 8

Echavarria vy. Atlantic & Caribbean Steam Nav.

Co., 10 F. Supp. 677 (E.D.N.Y. 1935) ................... 8

First Nat’l Bank v. National Airlines, Inc., 171

F. Supp. 528 (S.D.N.Y. 1958), aff’d, 288 F.2d

ee cucieoeiaieioeibievaeaes 8

The Harrisburg, 119 U.S. 199 (1886) _................... 13

In re Complaint of Exxon Corp., 548 F. Supp. 977

MPMI 5 TINE Soc vesctccanccs oho oevaeecenesaccnaceyicetaebere tines 8

In re S/S Helena, 529 F.2d 744 (5th Cir. 1976)...... 14

Jennings V. Goodyear Aircraft Corp., 227 F. Supp.

I Ce i I yi iscice evedcassfecrdedclorskeuitaniaccre 8

King Vv. Pan American World Airways, 166 F. Supp.

136 (N.D. Cal. 1958), aff’d, 270 F.2d 355 (9th

Cir. 1959), cert. denied, 362 U.S. 928 (1960)...... 8

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

k,n RRR eae cir Aeon rn Rear A Enon Pian AE Nae 12

TABLE OF AUTHORITIES—Continued

Page

Lockwood y. Astronautics Flying Club, Inc., 437

ye Ge Cee et ee a a 9

The Lottawanna, 21 Wall. 558 (1875) ees eye , 13.138

Lowe V. Trans World Airlines, Inc., 396 F. Supp. 9

{SER Ge: ; : | CR aeRmiepererae fe ree ns TAB te CAM Use 8

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766 (1983) .................--.000000-200-- 14

Mobil Oil Corp. Vv. Higginbotham, 436 U.S. 618

IFA Gains sctoloccensteccecee sane teeare teen padgeeatas terete es 9

Moragne Y¥. States Marine Lines, Inc., 398 U. S. 375

CPOE sacncrncke eee eee 13, 14

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

SD vier eee eee 14

Noel v. United. Aircraft Corp., 204 F. Supp. 929

CEP. FR See ecco ee eee 8

Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77

Cee RAPA secs eee 5,8

Rairigh v. Erlbeck, 488 F. Supp. 865 (D. Md.

[| | eeann a ae Ia PM ARDS hema ATA 8

Safir v. Compagnie Generale Transatlantique, 241

F. Supp. 501 (E.D.N.Y. 1965) 2000... ooo... 8

Sea-Land Service, Inc. v. Gaudet, 414 U.S. 573

Ao) } SEER cere ERO ATE TO nk REAR ATER RE na tM me 2

Smith v. Pan Air Corp., 684 F.2d 1102 (5th Cir.

| aE SRE eMint RE ed ies x02) et oe A 3

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

0 | | CON PSOE MAL ne Chane CSE RES Wns 2 10

Tallentire v. Offshore Logistics, Inc., 754 F.2d 1274

COCR Cae. BUG certs ncdceet ace eee passim

Wilson Vv. Transocean Airlines, 121 F. Supp. 85

CPE ee. COE SOD cecciescee ee eee passim

STATUTES:

ae USS. 8 TORE) CO) Kk ctiecc 1

38 U.S.C. § 1S98(a) (3) (1982) .................... 3

& VAC. 3088 Gee... oe 2,3

WB WC: BE PREIS CIID icescesce ccescerk ceric passim

La. Civ. Code Ann. art. 2315 (Supp. 1985)... passim

TABLE OF AUTHORITIES—Continued

LEGISLATIVE MATERIAL:

S. Rep. No. 216, 66th Cong., lst Sess. (1919) —...........

H.R. Rep. No. 674, 66th Cong., 2d Sess. (1920)........

OTHER AUTHORITIES:

Day, Maritime Wrongful Death and Survival Re-

covery: The Need for Legislative Reform, 64

Colum..1L.. Rav. G66 (ie) ccc eee

G. Gilmore & C. Black, The Law of Admiralty (2d

PD | | | ERR Ee eines Ln Fre Leemby ean Onis

Magruder & Grout, Wrongful Death Within the

Admiralty Jurisdiction, 35 Yale L.J. 395 (1935) ..

IN THE

Siuyirene Court of the United States

OCTOBER TERM, 1984

No. 84-———_

PETROLEUM HELICOPTERS, INC.,

Petitioner,

Vv.

CAROL T. SINCOX, individually and as natural tutrix

of the minors, Byron Sincox, ete.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la) is

not reported. The order of the district court (Pet. App.

3a) was issued without opinion. The opinion of the

court of appeals in Tallentire v. Offshore Logistics, Inc.

(Pet. App. 4a-33a) is reported at 754 F.2d 1274 (5th

Cir. 1985).

JURISDICTION

The judgment of the court of appeals (Pet. App. 1a)

was entered on March 22, 1985. A timely suggestion for

rehearing en banc was denied on April 18, 1985 (Pet.

App. 2a). The jurisdiction of this Court is invoked un-

der 28 U.S.C. § 1254(1) (1982).

STATUTES INVOLVED

The Death on the High Seas Act, 46 U.S.C. $$ 761-767

(1982), and Louisiana’s wrongful death statute, La. Civ.

Code Ann. art. 2315 (Supp. 1985), are reproduced at

Pet. App. 34a-37a.

STATEMENT

On April 4, 1984, Michael E. Sincox was killed in a

helicopter accident while travelling between offshore oil

and gas drilling platforms in the Gulf of Mexico. R.E.

38.! The accident occurred more than 100 miles from the

shore of any state. Plaintiff Carol T. Sincox, decedent’s

widow and a Louisiana resident, brought a wrongful

death suit? against petitioner, Petroleum Helicopters,

Inc., the owner and operator of the helicopter. Plaintiff

also sued three corporations that were allegedly engaged

in the manufacture of the helicopter.*

Petitioner moved to dismiss all of plaintiff’s claims

except those under the Death on the High Seas Act

(“DOHSA”), 46 U.S.C. $$ 761-767 (1982). R.E. 23.

Plaintiff responded that the loss of her husband should be

redressed under Louisiana’s wrongful death statute, La.

Civ. Code Ann. art. 2315 (Supp. 1985), which, she urged,

would apply by operation of § 1333 of the Outer Conti-

nental Shelf Lands Act (“OCSLA”), 43 U.S. § 1333

(1982). R.E. 39.

‘1 Citation is to the “Record Excerpts” filed in the court of appeals.

2 Wrongful death suits seek recovery for harm suffered by the

decedent’s family as a result of his or her death. By contrast,

survival actions permit the decedent’s estate to prosecute any claims

for personal injury that the decedent would have had, but for his

death. See Sea-Land Service, Inc. v. Gaudei, 414 U.S. 578, 575 n.2

(1974). Plaintiff also brought a survival action as administratrix

of her husband’s estate. The issues raised by that claim, which

remains pending in the district court, are not involved in this

petition.

3 Societe Nationale Industrielle Aerospatiale; Aerospatiale Heli-

copter Corp.; and Detroit Diesel Allison, a Division of General

Motors Corporation. R.E. 7.

The district court dismissed plaintiff’s claims under

OCSLA and the Louisiana wrongful death statute, leav-

ing for trial her claims under DOHSA. R.E. 68.4. The

practical effect of this ruling was that the measure of

plaintiff's damages would be fixed by Section 2 of

DOHSA, 46 U.S.C. § 762, which limits recovery to “pecu-

niary loss,” rather than by Louisiana’s wrongful death

statute, which allows recovery for nonpecuniary losses,

including “loss uf consortium, service, and society.” La.

Civ. Code Ann. art. 2315(B). In result, plaintiff noticed

an interlocutory appeal to the Fifth Circuit pursuant to

28 U.S.C. § 1292(a) (3) (1982) (admiralty interlocutory

appeals). R.E. 69.

While plaintiff Sincox’s appeal was pending, the court

of appeals decided a conceptually identical case, Tallen-

tire V. Offshore Logistics, Inc., 754 F.2d 1274 (5th Cir.

1985) (Pet. App. 4a-33a). The court in Tallentire re-

jected claims of federal preemption and ruled that Louisi-

ana’s wrongful death statute, by its own force, could fix

the measure of recovery for accidents occurring beyond

the three-mile limit, notwithstanding DOHSA’s narrower

measure of recovery for such accidents.’ Jd. at 1282:

*The district court’s reasons for dismissing the claims under

OCSLA are not recorded. Based on then existing precedent, peti-

tioner urged the district court to dismiss those claims because

OCSLA applies to accidents on oil rig platforms, but not to acci-

dents that occur on or over the high seas and are subject to tradi-

tional admiralty jurisdiction. R.E. 28. See Smith v. Pan Air Corp.,

684 F.2d 1102, 1108-12 (5th Cir. 1982). Dismissal was also proper

under the court of appeals’ intervening decision in Tallentire v.

Offshore Logistics, Inc., 754 F.2d 1274, 1279 (5th Cir. 1985) (Pet.

App. 10a), which held that OCSLA “would not permit recovery of

non-pecuniary damages via the Louisiana statute” because the

state statute is inconsistent with the DOHSA remedy.

*DOHSA applies to deaths caused by accidents more than one

marine league (three nautical miles) from shore. 46 U.S.C. S$ 761.

The waters less than one marine league from shore are often called

“territorial waters”; those beyond are called the “high seas.”

Pet. App. 16a. One week later the court of appeals or-

dered the district court to reconsider its dismissal of

plaintiff Sincox’s claims under the Louisiana wrongful

death statute, because “[i]n Tallentire we held that a

remedy under the Death on the High Seas Act could be

supplemented by a state’s wrongful death statute.” Pet.

App. la.

The Tallentire decision is based on a sharply divided

panel’s interpretation of Section 7 of DOHSA.’ That

section provides:

“The provisions of any State statute giving or regu-

lating rights of action or remedies for death shall

not be affected by this chapter. Nor shall this chap-

ter apply to the Great Lakes or to any waters within

the territorial limits of any State, or to any naviga-

ble waters in the Panama Canal Zone.” 46 U.S.C.

§ 767.

In Tallentire, the defendant urged that Section 7 simply

preserves state law remedies for wrongful deaths occur-

ring in territorial waters, where DOHSA does not apply.

The panel concluded, however, that Section 7 also pre-

serves state law remedies in cases involving accidents on

the high seas, where DOHSA does apply. 754 F.2d at

1282; Pet. App. 16a. The majority noted particularly

that in a last-minute amendment, proposed by Repre-

sentative Mann, the following clause was deleted from

the end of the first sentence of Section 7: “as to causes

of action accruing within the territorial limits of any

State.” The majority did not, however, reach any con-

clusion as to the intent behind the passage of this amend-

ment, suggesting that to do so would be “hopeless” and

“unnecessary in light of the clear language of the stat-

ute.” Jd. at 1282; Pet. App. 16a.

6 Judge Davis wrote for the panel majority, with Judge Jolly

specially concurring and Judge Garza dissenting.

In holding that DOHSA does not preempt state statutes

that provide rights and remedies for wrongful death on

the high seas, the Tallentire court acknowledged that its

ruling conflicted with the Ninth Circuit’s holding in

Nygaard v. Pete: Pan Seafoods, Inc., 701 F.2d 77, 80

(9th Cir. 1983). 754 F.2d at 1283; Pet. App. 20a. Else-

where the court took note of six other decisions con-

cluding that DOHSA -preempts invocation of state wrong-

ful death statutes for accidents occurring on the high

seas. 754 F.2d at 1280 n.10; Pet. App. 12a n.10. The

Tallentire panel also acknowledged that its ruling would

produce an anomalous result: federal maritime law

would provide the exclusive remedy for wrongful deaths

in the territorial waters adjacent to Louisiana, but Loui-

siana law or any other state’s law could apply to wrong-

ful deaths on the high seas. 7d. at 1284; Pet. App. 21a.

Judge Davis articulated profound reservations for the

Tallentire majority :

“Our holding in this case does not promote the

uniformity in the maritime law which the Supreme

Court has nurtured for many decades, and we may

agree with our brothers of the Ninth Circuit that to

have state law preempted in territorial waters yet

operative on the high seas is ‘a result as damaging

to uniformity in wrongful death actions as it is il-

logical.’ [Nygaard v. Peter Pan Seafoods, Inc., 701

F.2d 77, 80 (9th Cir. 1983)]. It is indeed pro-

foundly unsettling that state law will have nothing

to do with a claim for wrongful death which occurs

on the Mississippi River, yet might apply to the

death of an offshore worker forty miles from

land * * *.” 754 F.2d at 1284; Pet. App. 20a-21a.

Judge Jolly, specially concurring, put his reservations

even more strongly:

“The result we reach in this case creates significant

problems in the field of maritime law because it de-

fies reason, runs contrary to principles of the gen-

erai precedent in the field, and creates all sorts of

internal inconsistencies in the prosecution of cases

dealing with death on the high seas.” Id. at 1249;

Pet. App. 31a-32a.

Judge Garza, in dissent, concluded that Congress in-

tended that the federal remedy be the exclusive remedy

for wrongful deaths on the high seas. He echoed the

majority’s concern that any other result would be “ ‘as

damaging to uniformity in wrongful death actions as it

is illogical.’” Jd. at 1289; Pet. App. 33a.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW CONFLICTS WITH LONG-

STANDING DECISIONS OF OTHER COURTS OF

APPEALS AND DISTRICT COURTS ON AN IM-

PORTANT ISSUE CENTRAL TO THE UNIFORM

ADMINISTRATION OF MARITIME LAW

In Tallentire, the Fifth Circuit created an important

issue of federal preemption in maritime law by holding

that the Death on the High Seas Act does not preempt

the application of state wrongful death statutes to acci-

dents on the high seas. In this case, the court of appeals

directed the district court to follow Tallentire, and thus

to allow Louisiana law to “‘supplement” the federal rem-

edy for death on the high seas. That ruling warrants re-

view by this Court because (1) it conflicts with the long-

settled decisions of three other courts of appeals and nu-

merous district courts and with this Court’s express ap-

proval of the most prominent of those cases; (2) it is

based on the Fifth Circuit’s mistaken view of the intent

of the Sixty-Sixth Congress in enacting Section 7 of

DOHSA; and (3) by allowing state wrongful death sta-

tutes to supplement the uniform federal remedy, it runs

counter to the principle of uniformity in maritime law

and resurrects jurisprudential problems put to rest by

this Court some 15 years ago.

1. The Decision Below Conflicts With That Reached By

Other Courts, Including Three Courts Of Appeals.

The Fifth Circuit’s construction of Section 7 of

DOHSA is in direct conflict with rulings by three other

Circuits and various district courts. The landmark con-

struction of Section 7 was made more than thirty years

ago in Wilson v. Transocean Airlines, 121 F. Supp. 85

(N.D. Cal. 1954). Examining first the state of maritime

law in 1920, the Wilson court concluded that the prin-

cipal impetus for the enactment of DOHSA was that, in a

given case, either there was no remedy at all for wrong-

ful death on the high seas or there were almost- insuper-

able problems in choosing and applying the state laws

that purportedly furnished such a remedy. Jd. at 87-88.

The court then analyzed the legislative history and pur-

poses of Section 7, including especially the last-minute

Mann Amendment. The court noted that as originally

written Section 7 had plainly provided that the DOHSA

remedy would be exclusive; speeches relating to the Mann

Amendment, moreover, showed that other members of

the House believed that the amendment would not under-

mine the exclusivity of the DOHSA remedy, either be-

cause enactment of DOHSA would occupy the field en-

tirely or because state remedies would, even absent an

express preemption, be considered inconsistent with the

Act’s fundamental purpose of providing a uniform rem-

edy. The Wilson court thus concluded that, in light of

the policies favoring exclusivity of the federal remedy

and in accordance with the then “unanimous” body of

case law and commentary, DOHSA must be read to pre-

empt state wrongful death statutes for accidents occur-

ring on the high seas.

In the wake of Wilson, the First, Third, and Ninth

Circuits have concluded that DOHSA preempts state

wrongful death statutes for accidents occurring on the

high seas. See Barbe v. Drummond, 507 F.2d 794, 801

n.10 (1st Cir. 1974) (“It would be possible to interpret

this section [Section 7 of DOHSA] to allow a state

wrongful death statute to operate where the death occurs

on the high seas, but the better authority rejects this

view * * *.”); Dugas Vv. National Aircraft Corp., 438

F.2d 1386, 1388-91 (3d Cir. 1971) (“Courts have clearly

held that the need for uniformity requires that [DOHSA]

supersede any state wrongful death statute.”) ; Nygaard

v. Peter Pan Seafoods, Inc., 701 F.2d 77, 80 (9th Cir.

1983) (“where it is applicable, the Death on the High

Seas Act preempts state wrongful death statutes,” for

a contrary result would be “illogical” and “damaging to

uniformity”). The decisions of these courts of appeals,

moreover, accord with numerous district court decisions

of the past 50 years and with the views of the com-

mentators.’

This Court has also treated the decisions in Wilson and

Barbe as providing the authoritative construction of

7E.g., Day, Maritime Wrongful Death and Survival Recovery:

The Need for Legislative Reform, 64 Colum. L. Rev. 648, 651 & n.16

(1964); Magruder & Grout, Wrongful Death Within the Ad-

miralty Jurisdiction, 35 Yale L.J. 395, 422-23 (1935); Canillas v.

Joseph H. Carter, Inc., 280 F. Supp. 48, 51 (S.D.N.Y. 1968) ;

Jennings Vv. Goodyear Aircraft Corp., 227 F. Supp. 246, 247-48

(D. Del. 1964); Devlin v. Flying Tiger Lines, Inc., 220 F. Supp.

924, 927 (S.D.N.Y. 1963); Noel v. United Aircraft Corp., 204

F. Supp. 929, 930-33 (D. Del. 1962); Blumenthal v. United States,

189 F. Supp. 439, 446 (E.D. Pa. 1960), aff'd, 306 F.2d 16 (3d Cir.

1962); First Nat'l Bank v. National Airlines, Inc., 171 F. Supp.

528, 586 (S.D.N.Y. 1958), aff'd, 288 F.2d 621 (2d Cir. 1961); King

v. Pan American World Airways, 166 F. Supp. 136, 139 (N.D. Cal.

1958), aff'd, 270 F.2d 355 (9th Cir. 1959), cert. denied, 362. U.S. 928

(1960); Batkiewicz v. Seas Shipping Co., 53 F. Supp. .802, 804

(S.D.N.Y. 1943); Echavarria vy. Atlantic & Caribbean Steam Nav.

Co., 10 F. Supp. 677, 678 (E.D.N.Y. 1935); see also cases and

articles cited in Wilson, supra, 121 F. Supp. at 91 n.22.

But see In re Complaint of Exxon Corp., 548 F. Supp. 977 (S.D.

N.Y. 1982); Alexander v. United Technologies Corp., 548 F. Supp.

139 (D. Conn. 1982); Rairigh v. Erlbeck, 488 F. Supp. 865 (D. Md.

1980) ; Lowe v. Trans World Airlines, Inc., 396 F. Supp. 9 (S.D.N.Y.

1975) ; Safir v. Compagnie Generale Transatlantique, 241 F. Supp.

501 (E.D.N.Y. 1965).

Section 7 of DOHSA. In Mobil Oil Corp. v. Higgin-

botham, 436 U.S. 618 (1978), this Court held that the

wrongful death remedy provided by DOHSA—“fair and

just compensation for the pecuniary loss’”—could not be

supplemented by the more generous remedy for nonpe-

cuniary losses provided under “general maritime princi-

ples.” The Court based its decision in part on Wilson’s

and Barbe’s express conclusion that, notwithstanding Sec-

tion 7, the federal remedy provided for under DOHSA

cannot be supplemented by state wrongful death statutes.

Thus, this Court said:

“Congress did not limit DOHSA beneficiaries to re-

covery of their pecuniary losses in order to encour-

age the creation of non-pecuniary supplements. See

generally Barbe v. Drummond, 507 F.2d 794, 801

n.10 (CA1 1974); Wilson v. Transocean Airlines,

121 F. Supp. 85 (ND Cal. 1954).” 436 U.S. at 625.

Moreover, the Court in Higginbotham recognized that

the maritime rules relating to wrongful death are “na-

tional” rules and that in light of its decision there would

be “one national rule [applying] to fatalities in terri-

torial waters and a slightly narrower national rule [ap-

plying] to accidents farther from land.” Jd. at 624 n.18.

Ironically, even the Fifth Circuit has held that DOHSA

provides the exclusive remedy for wrongful death on the

high seas. See Dore v. Link Belt Co., 391 F.2d 671 (5th

Cir. 1968), rev’d on other grounds sub nom. Rodrigue v.

Aetna Casualty & Surety Co., 395 U.S. 352 (1969) ;

Lockwood v. Astronautics Flying Club, Inc., 437 F.2d

437 (5th Cir. 1971). But, in reversing its position in

Tallentire and in this case, the Fifth Circuit has now

created a square conflict with three other Circuits and

numerous district courts.

2. The Decision Below Places An Erroneous Construc-

tion On Section 7 Of DOHSA.

The Tallentire panel placed unduly great, if not con-

clusive, weight on what it said was the “clear language

of the statute” (754 F.2d at 1282; Pet. App. 16a), and

hence misconstrued Section 7 of DOHSA. While the

court felt compelled to reach a “damaging” and “illogi-

cal’? result, the many decisions reaching an opposite re-

sult demonstrate that the language of Section 7 is not a

“clear” command to embrace the Fifth Circuit’s construc-

tion. In fact the panel admitted as much, citing as

‘“prophetic[]” one Congressman’s remark during the de-

bate that “the effect of the [Mann] amendment would

be to leave the sentence incomplete and the remaining

language, not unlike Mahomet’s coffin, suspended be-

tween heaven and earth, having no application to any-

thing in particular.” 754 F.2d at 1280 n.9; Pet. App.

12a n.9.

Further, in considering the legislative history, the

court failed to appreciate the historical context in which

DOHSA was enacted. As explained by the Wilson court,

enactment of federal legislation governing wrongful

deaths on the high seas was prompted by a felt need for

a uniform remedy, by widespread doubts whether state

legislatures had the requisite legislative jurisdiction to

provide remedies, and by the significant difficulties en-

countered in litigating those cases where state laws pur-

ported to be applicable. 121 F. Supp. at 87-88. In fact,

just three years prior to the enactment of DOHSA, this

Court had stated in Southern Pacific Co. v. Jensen, 244

U.S. 205, 215 (1917), that “[i]t certainly could not have

been intended [by those drafting the Constitution] to

place the rules and limits of maritime law under the

disposal and regulation of the several States, as that

would have defeated the uniformity and consistency at

which the Constitution aimed * * *.”

Moreover, as the Wilson opinion explained, the

DOHSA legislation of 1920 was the product of a political

compromise, carefully worked out over almost ten years,

between those persons favoring an exclusive federal

remedy for all maritime accidents and the local bars of

the maritime states which favored applying local law.

This compromise was direct and simple: DOHSA would

create an exclusive federal remedy on the high seas but

would leave to state law all accidents occurring in terri-

torial waters. See 121 F. Supp. at 89.

The terms of the compromise and the purposes of

DOHSA were plainly set forth in the Committee Reports

for both Houses:

“The right [of action] is made exclusive for deaths

on the high seas, leaving unimpaired the rights un-

der State statutes as to deaths on waters within the

terr orial jurisdiction of the States. * * *

“Section 7 makes the act the law of the courts of

admiralty of the United States, and, so far as the

high seas are concerned, makes the remedy exclusive.

This is for the purpose of uniformity, as the States

can not properly legislate for the high seas. * * *

“There is no reason why the admiralty law of the

United States should [any] longer depend on the

statute laws of the States * * *.” S. Rep. No. 216,

66th Cong., Ist Sess. 38, 4 (1919); H.R. Rep. No.

674, 66th Cong., 2d Sess. 3, 4 (1920) (emphasis

added).

Given these considerations, the court below attached

too much weight to the idiosyncratic views of Repre-

sentative Mann and misconstrued the effect of his last

minute amendment. As this Court has repeatedly empha-

sized, the remarks of a single member of Congress, even

a bill’s sponsor, are by no means controlling; rather, they

“must be considered with the Reports of both Houses and

the statements of other Congressmen.” Chrysler Corp.

v. Brown, 441 U.S. 281, 311 (1979); see also Consumer

Product Safety Comm’n v. GTE Sylvania, Inc., 447 US.

102, 118 (1980). As discussed in detail by the Wilson

court, 121 F. Supp. at 90, and conceded in Tallentire,

754 F.2d at 1280-81, there is ample proof that other

members of Congress believed that Representative

Mann’s amendment would not alter the exclusivity of

the federal remedy on the high seas, either because the

states would be powerless to act once Congress had occu-

pied the field or because state remedies would be con-

sidered inconsistent with the fundamental purpose of

the Act to provide a uniform remedy.

In short, the court below placed an aberrant construc-

tion on Section 7 that is inconsistent with the purpose

of the Act—to provide a uniform, federal remedy—and

with the political compromise that brought the Act into

being.

3. The Decision Below Frustrates The Principle Of Uni-

formity In Maritime Law By Permitting State Stat-

utes To Apply To Wrongful Deaths On The High Seas.

If allowed to stand, the rulings of the court below in

Tallentire and in this case will undermine the principle of

uniformity in maritime law as it applies to wrongful

deaths on the high seas. The special importance of that

principle in maritime law has long been recognized by

this Court:

“Since the beginning, federal courts have recog-

nized and applied the rules and principles of mari-

time law as something distinct from laws of the sev-

eral States—not derived from or dependent on their

will. The foundation of the right to do this, the

purpose for which it was granted, and the nature of

the system so administered, were distinctly pointed

out long ago. ‘That we have a maritime law oi our

own, operative throughout the United States, cannot

be doubted. * * * One thing, however, is unquestion-

able; the Constitution must have referred to a sys-

tem of law coextensive with, and operating uniformly

in, the whole country. * * *’ The Lottawanna, 21

Wall. 558, 574, 575 |1875].” Knickerbocker Ice Co.

v. Stewart, 253 U.S. 149, 160-61 (1920).

When principles of uniformity have been abandoned in

favor of state law, moreover, it has resulted in abundant

unhappy experiences for this Court and the admiralty

courts. Those experiences commenced when this Court

held in 1886 that the general maritime law of the United

States provided no remedy for wrongful deaths on the

high seas or in territorial waters. The Harrisburg, 119

U.S. 199 (1886). For more than 80 years, admiralty

courts struggled to apply state law to deaths occurring

in territorial waters.* These efforts produced “confusion”

and “incongruity” in this Court’s words,” or a “juris-

prudential disaster” in the words of Professors Gilmore

and Black.’ By either account, a change was needed.

In 1970 this Court responded by overruling The Har-

risburg and holding that general federal maritime law

furnishes a remedy for deaths occurring in territorial

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

375 (1970). This ruling was necessary to “assure uni-

form vindication of federal policies [and] remov{e] the

tensions and discrepancies that have resulted from the

necessity to accommodate state remedial statutes to ex-

clusively maritime substantive concepts.” Jd. at 401.

The Court thus affirmed that “jf]ederal law, rather than

state, is the more appropriate source of a remedy for

violation of the federally imposed duties of maritime

law.” Id. at 401 & n.15. Uniformity within territorial

waters, said the Court, “not only will further the con-

cerns of both the 1920 Acts [DOHSA and the Jones Act]

but also 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.’” Jd. at 402 (quoting The Lotta-

wanna, 21 Wall. 558, 575 (1875) ).

8 Similar difficulties respecting deaths on the high seas were re-

solved by Congress in 1920, when it enacted DOHSA.

® Moragne v. States Marine Lines, Inc., 398 U.S. 375, 378, 395

(1970).

10G. Gilmore & C. Black, The Law of Admiralty 365-67 (2d ed.

1975).

Since the Moragne decision, lower courts, including the

Fifth Cireuit, have held that the federal maritime law

remedy recognized in Moragne entirely displaces the var-

ious states’ wrongful death statutes that formerly applied

to deaths in territorial waters, thus resolving the ‘“juris-

prudential disaster’”’ involved in applying state laws. See

In ve S/S Helena, 529 F.2d 744, 753 (5th Cir. 1976) ;

Nelson v. United States, 689 F.2d 469 (9th Cir. 1980).

But now, according to Tallentire and the decision below,

those same state wrongful death statutes may be applied

if the accident occurs more than one marine league from

shore. In short, the decision below runs counter to the

essential uniformity of federal maritime law and resur-

rects problems put to rest by this Court 15 years ago."

11 That the decision below frustrates the principle of uniformity

and creates manifestly undesirable results not only shows the im-

portance of the question presented by this petition but also estab-

lishes a further reason for accepting the traditional construction of

Section 7. This Court in construing statutes has emphasized that

“we cannot attribute to Congress the intention to * * * open the

door to such obvious incongruities and undesirable possibilities.”

Metropolitan Edison Co. v. People Against Nuclear Energy, 460

U.S. 766, 776 (1988); accord, American Tobacco Co. v. Patterson,

456 U.S. 63, 71 (1982).

CONCLUSION

In light of the importance of the substantive ruling in

Tallentire and this case, the conflict among the Circuits

with respect to the meaning of an important federal stat-

ute, and the special need for uniformity of maritime

law, this Court should grant certiorari to review the

question presented by petitioner.

Respectfully submitted,

VANCE E. ELLEFSON

LUGENBUHL, LARZELERE

& ELLEFSON

Sixth Floor, Central Plaza

600 Carondelet Street

New Orleans, Louisiana 70130

(504) 523-6066

RICHARD M. SHARP *

RICHARD M. WYNER

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

Counsel for Petitioner

Petroleum Helicopters, Inc.

* Counsel of Record

July 17, 1985

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 84-4639

Summary Calendar

CAROL T. SINCOX, Individually, and as natural tutrix of

the minors, BYRON SINCOX, etc.,

Plaintiff-A ppellant,

versus

PETROLEUM HELICOPTERS, INC.,

Defendant-A ppellee.

Appeal from the United States District Court

for the Western District of Louisiana

{March 22, 1985)

Before WILLIAMS, JOLLY and HILL, Circuit Judges.

PER CURIAM:*

While the appeal in this case was pending, we decided

Tallentire v. Offshore Logistics, Inc., No. 83-3296, slip op.

at 3061 (5th Cir. March 15, 1985). In Tallentire, we

held that a remedy under the Death on the High Seas Act

could be supplemented by a state’s wrongful death stat-

ute. Accordingly, this case is remanded to the district

court for reconsideration in the light of Tallentire.

REMANDED.

* Local Rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless expense

on the public and burdens on the legal profession.” Pursuant to

that Rule, the court has determined that this opinion should not be

published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 84-4639

CAROL T. SINCOX, Individually and as natural tutrix of

the minors, BYRON SINCOX, Etce.,

Plaintiff-A ppellant,

versus

PETROLEUM HELICOPTERS, INC.,

Defendant-A ppellee.

Appeal from the United States District Court

for the Western District of Louisiana

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 3/22/85, 5 Cir., 198- , —— F.2d ——)

(April 18, 1985)

Before WILLIAMS, JOLLY and HILL, Circuit Judges.

PER CURIAM:

Treating the suggestion for rehearing en banc as a

petition for panel rehearing, it is ordered that the peti-

tion for panel rehearing is DENIED. No member of the

panel nor Judge in regular active service of this Court

having requested that the Court be polled on rehearing

en bane (Federal Rules of Appellate Procedure and Local

Rule 35), the suggestion for Rehearing En Banc is

DENIED.

ENTERED FOR THE COURT:

/s/ E. Grady Jolly

United States Circuit Judge

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

SEPTEMBER 18, 1984

PRESENT: HON. JOHN M. SHAW, Judge, Presiding

MILDRED BAKER, Minute Clerk

CoURT OPENED: 9:30 AM CouRT ADJOURNED: 11:00 AM

MINUTES OF COURT

Case No. 84-1051

Section O

CAROL T. SINCOX, et al.

| vs.

PETROLEUM HELICOPTERS, INC.

APPEARANCES

DANNY LIRETTE for Plaintiffs

VANCE E. ELLEFSON for Petroleum Helicopters,

Ine.

CASE CALLED FOR

Hearing on motions

VERDICT, RULING, COMMENTS:

Motion on behalf of Petroleum Helicopters for judg-

ment on the pleadings argued, submitted and GRANTED

as to Art. 2315 and Outer Continental Shelf Lands Act

claims. Plaintiffs’ remaining claims lie under DOHSA

and the General Maritime Law. Counsel for plaintiffs

conceded that there is no diversity and trial will be before

the Judge, not a jury.

Plaintiffs’ request that the interlocutory judgment be

certified for appeal under 28 U.S.C.A. 1292(b) is denied.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Nos. 83-3296, 83-3328

BETH A. TALLENTIRE,

Plaintiff-A ppellant,

OFFSHORE LOGISTICS, INC., et al.,

Defendants,

AIR LOGISTICS,

Defendant-A ppellee.

CoRINE ANN SOUDELIER TAYLOR, Individually,

as administratrix of the estate of MICHAEL JOHN TAYLOR,

and as natural tutrix of the minor, LESLIE ANN TAYLOR,

Plaintiff-Appellant Cross-A ppellee,

BELL HELICOPTER TEXTRON, a DIVISION OF TEXTRON, INC.,

Defendant.

CORINE ANN SOUDELIER TAYLOR, ETC.,

Plaintiff-A ppellant Cross-A ppellee,

Vv.

AIR LOGISTICS, INC.,

Defendant-A ppellee Cross-A ppellant,

HALLIBURTON SERVICES,

Intervenor-A ppellee.

March 15, 1985

Davidson, Meaux, Sonnier & McElligott, V. Farley

Sonnier, Lafayette, La., for plaintiffs-appellants.

Phelps, Dunbar, Marks, Claverie & Sims, Howard

Daigle, Jr.. New Orleans, La., for Air Logistics.

Charles Hanemann, Houma, La., for Taylor.

Ronald A. Johnson, Johnson & McAlpine, New Orleans,

La., for Halliburton Serv.

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before GARZA, JOLLY and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

These consolidated cases stem from the death of two

offshore workers in the crash of a helicopter some thirty

miles off the Louisiana coast. The helicopter was owned

and operated by Air Logistics, a division of Offshore

Logistics, Inc., and was manufactured by Bell Helicopter,

a division of Textron, Inc. Air Logistics is a division of

Offshore Logistics, a Louisiana corporation, (hereafter

referred to as Air Logistics) ; Bell is a Delaware corpora-

tion with its principal place of business in Rhode Island.

Both actions included claims under the Death on the

High Seas Act (DOHSA), 46 U.S.C. § 761 et seq., the

Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C.

§ 1331 et seq., and the law of Louisiana. The district

court held that DOHSA furnished Taylor and Tallentire

with their exclusive remedy. Air Logistics admitted lia-

bility. Bell did not admit liability, but agreed to pay

any judgment which Air Logistics was unable to satisfy.

Pursuant to the trial judge’s pretrial ruling restricting

the claims to those arising under DOHSA, and striking

all claims founded on Louisiana law, trial was devoted

solely to the issue of damages under DOHSA. No evi-

dence of Bell’s liability was introduced at trial, and no

party appeals the judgment in its favor, thus the only

defendant before us is Air Logistics.

In this appeal, Taylor and Tallentire press a common

claim that Louisiana’s wrongful death statute applies to

this helicopter crash on the high seas, either of its own

force or as adopted federal law through section 1333 of

OCSLA. In view of the clear mandate of section 7 of

DOHSA reserving to litigants their rights of recovery

under state wrongful death acts, we reverse the district

court’s denial of benefits recoverable under Louisiana

law.

I. APPLICABILITY OF STATE WRONGFUL

DEATH STATUTES TO HIGH SEAS DEATHS

A. BACKGROUND

Today we are invited to make further adjustments in

the volatile field of maritime wrongful death and for the

sake of clarity, our analysis of the subject requires a

brief historical discussion.

The jurisprudential and legislative saga leading to this

decision began almost a century ago when the Supreme

Court held in THE HARRISBURG, 119 U.S. 199, 7

S.Ct. 140, 30 L.Ed. 358 (1886) that the general maritime

law of the United States afforded no remedy for wrong-

ful death. The admiralty courts were not entirely stymied

by this forced parsimony and state wrongful death acts,

if available, were enforced in admiralty to allow recovery

in wrongful death cases. This practice was approved by

the Supreme Court in the case of a high seas death in

THE HAMILTON, 207 U.S. 398, 52 L.Ed. 264, 28 S.Ct.

133 (1907). Though the admiralty courts were disposed

to grant a remedy when one could be fashioned,’ in the

1 See, e.g. Southern Pacific Co. v. De Valle Da Costa, 190 Fed. 689

(1st Cir. 1911) ; International Navigation Co. v. Lindstrom, 123 Fed.

475 (2d Cir. 1903) ; The City of Norwalk, 55 F. 98 (S.D.N.Y. 1893).

2 See the often-quoted passage from Chief Justice Chase’s opinion

in THE SEA GULL, 21 F.Cas. No. 12,578 p. 909 (C.C.Md. 1865) :

[T]here are cases, indeed, in which it has been held that in a

suit at law, no redress can be had by the surviving representa-

ease of high seas deaths the coverage supplied by state

statutes was not uniform, and did not adequately fill the

void left by THE HARRISBURG. This is one of the con-

siderations which led to the passage in 1920 of DOHSA

and its companion legislation, the Jones Act (currently

codified at 46 U.S.C. § 688 et seq.) See Moragne v. States

Marine Lines, 398 U.S. 375, 398-94, 90 S.Ct. 1772, 1783-

84, 26 L.Ed.2d 339, 351-53 (1970). Section 1 of DOHSA

provides:

Whenever the death of a person shall be caused by a

wrongful act, neglect, or default occurring on the

high seas beyond a marine league from the shore of

any state, . . . the personal representative of the

decedent may maintain a suit for damages in the

district courts of the United States, in admiralty,

for the exclusive benefit of the decedent’s wife,

husband, parent, child, or dependent relative egainst

the vessel, person, or corporation which would have

been liable if the death had not ensued.

46 U.S.C. § 761.

After 1920, DOHSA supplied a uniform remedy for

deaths occurring over a marine league from shore; within

territorial waters, after some initial confusion, state

statutes continued to hold sway.* The evolution of mari-

time wrongful death remedies continued in 1970 with

tive for injuries occasioned by the death of one through the

wrong of another; but these are all common-law cases, and the

common law has its peculiar rules in relation to this subject,

. and certainly it better becomes the humane and liberal

character of proceedings in admiralty to give than to withhold

the remedy, when not required to withhold it by established

and inflexible rules.

Id. at 910.

3 See, e.g. Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct.

89, 66 L.Ed. 210 (1921) ; THE TUNGUS v. Skovgaard, 358 U.S. 588,

79 S.Ct. 508, 3 L.Ed.2d 524 (1959).

Moragne v. States Marine Lines, in which the Supreme

Court overruled THE HARRISBURG and established a

remedy for wrongful death grounded in the general mari-

- time law of the United States. Six years later, this cir-

cuit held in Jn re S/S HELENA, 529 F.2d 744, 753 (5th

Cir. 1976), that after Moragne there was no longer any

reason for admiralty courts to apply state wrongful death

acts in territorial waters. A further critical development

occurred in 1978 with Mobil Oil Corp. v. Higginbotham,

436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978), in

which the Supreme Court held that damages recoverable

under DOHSA may not be supplemented by the Moragne

death remedy. Generally, in post-Higginbotham actions

by survivors of non-seamen, this circuit was left with

the Moragne remedy supreme in territorial waters,

DOHSA supreme on the high seas, and state statutes, it

was strongly hinted, out of the picture altogether.*

The problem we have before us now arises because

DOHSA permits recovery of only pecuniary damages—

lost wages, loss of services, and the like.* Many state

wrongful death acts, including Article 2315 of the Lou-

isiana Civil Code, allow recovery for non-pecuniary losses

such as loss of love and affection. In an effort to recover

these non-pecuniary losses, Taylor and Tallentire offer

two alternative theories under which the Louisiana stat-

ute could apply to their actions. The first is that Article

2315 applies through section 1333 of OCSLA. The sec-

ond is that DOHSA does not preempt state wrongful

death acts, and Article 2315 grants them rights of its

+See Vaz Borralho v. Keydril Co., 696 F.2d 379, 384 n. 6 (5th

Cir. 1983) (DOHSA likely preempts state wrongful death remedies;

citing Higginbotham).

5 46 U.S.C. § 762:

[T]he recovery in such suit shall be a fair and just compensa-

tion for the pecuniary loss sustained by the persons for whose

benefit the suit is brought...

own force as state law. We address each of these con-

tentions in turn.®

B. APPLICATION OF LOUISIANA LAW THROUGH

§ 1333 OF OCSLA

“The purpose of the Lands Act was to define a body

of law applicable to the seabed, the subsoil, and the fixed

structures such as those in question here on the outer

Continental Shelf.” Rodrigue v. Aetna Casualty & Surety

® Before venturing into the merits, we note the bases for federal

jurisdiction to consider wrongful death claims asserted under

Louisiana law by Taylor and Tallentire. In the Tallentire case,

there appear to be two separate bases for federal court jurisdiction

at the time the suit was filed: (1) diversity of citizenship, since

Beth Tallentire is a citizen of Pennsylvania and thus diverse as to

both Air Logistics and Bell Helicopter; and (2) admiralty juris-

diction, since the helicopter ferrying the decedents ashore crashed

on navigable waters. LeDoux v. Petroleum Helicopters, Inc., 609

F.2d 824, 824 (5th Cir. 1980).

In the Taylor case, since the plaintiff and Air Logistics are

both Louisiana residents, the sole jurisdictional base present is

admiralty jurisdiction under LeDoux.

Assuming the existence of a right of action under the Louisiana

statute, the federal court has in any case the power to decide this

state law claim under its pendent jurisdiction. A DOHSA claim

and an article 2315 claim ere obviously of the sort that, if considered

without regard to their state or federal character, would ordinarily

be expected to be tried in one judicial proceeding. United Mine

Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d

218 (1966). The decision to exercise pendent jurisdiction is of

course a matter of discretion, but when, as here, the considerations

of judicial economy and convenience would be served, adjudication of

state law claims is to be expected. Hagans v. Lavine, 415 U.S.

528, 545-46, 94 S.Ct. 1372, 1383, 39 L.Ed.2d 577 (1974). A

federal court may exercise its pendent jurisdiction over state law

claims when the jurisdictional base of the main claim is in admiralty.

E.q. Norfolk & Western Co. v. United States, 641 F.2d 1201, 1208

n. 4 (6th Cir. 1980). Since pendent jurisdiction over the Article

2315 claims will be available in any case, the primary effect of which

jurisdictional theory is actually used will be on whether plaintiffs

are entitled to a jury trial, a matter which is discussed infra.

10a

Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 1837, 23 L.Ed.2d

360, 364 (1969). Section 1333 of OCSLA adopts the

law of the adjacent state, including tort law, as surro-

gate federal law for the area the act covers.’ This provi-

sion was included in OCSLA in recognition of the fact

that offshore workers were likely to have significant ties

with adjacent states. Since the decedents in this case

were platform workers, although their deaths did not

occur on a platform, Taylor and Tallentire assert that

OCSLA should apply.

Assuming that OCSLA does apply, it nonetheless

would not permit recovery of non-pecuniary damages via

the Louisiana statute. Section 1333 of OCSLA adopts

state laws as surrogate federal law only “to the extent

that they are applicable and not inconsistent with this

subchapter or other federal laws or regulations ... .”

43 U.S.C. § 13883 (emphasis added). It is established in

743 § 1333:

(a)(1) The Constitution and laws and civil and political

jurisdiction of the United States are extended to the subsoil

and seabed of the outer Continental Shelf and to all artificial

islands and fixed structures which may be erected thereon for

the purpose of exploring for, developing, removing, and trans-

porting resources therefrom, to the same extent as if the outer

Continental Shelf were an area of exclusive Federal jurisdiction

located within a State: Provided however, That mineral leases

on the outer Continental Sheif shall be maintained or issued

only under the provisions of this subchapter.

(2) To the extent that they are applicable and not incon-

sistent with this subchapter or with other Federal laws and

regulations of the Secretary now in effect or hereafter adopted,

the civil and criminal laws of each adjacent State as of August

7, 1953 are declared to be the law of the United States for that

portion of the subsoil and seabed of the outer Continental

Shelf, and artificia] islands and fixed structures erected there-

on, which would be within the area of the State if its boundaries

were extended seaward to the outer margin of the outer Con-

tinental Shelf, ...

43 U.S.C. § 1833 (emphasis in original).

lla

this circuit that DOHSA applies to crash of a helicopter

on the high seas, so Louisiana law could be adopted only

to the extent it is not inconsistent with DOHSA.* This

leaves the far more difficult question of whether state

wrongful death statutes are preempted by DOHSA.

C. PREEMPTION OF STATE STATUTES BY

DOHSA

The heart of this issue is the interpretation of section

7 of DOHSA:

The provisions of any state statviz giving or regu-

lating rights of action or remedies for death shall

not be affected by this chapter. Nor shall this chap-

ter apply to the Great Lakes or to any waters with-

in the territorial limits of any State, or to any

navigable waters in the Panama Canal Zone.

46 U.S.C. § 767 (emphasis added).

We begin with the proposition that section 7 is broad

enough on its face to support Taylor and Tallentire’s

argument that if a state statute grants a right to re-

cover for a high seas death, it is not preempted by

DOHSA. As discussed more fully below, however, there

has been considerable uncertainty over the effect of this

seemingly simple provision. The heart of the debate over

the interpretation of section 7, in turn, is the effect of

the ill-starred ‘‘Mann Amendment.”

As originally drafted, section 7 read “‘{t|he provisions

of any State statute giving or regulating rights of action

or remedies for death shall not be affected by this act

as to causes of action accruing within the territorial lim-

its of any state ...”’, 59 Cong. Rec. 4482 (1920), a

formulation which would obviously allow DOHSA to pre-

8 See Smith v. Pan Air Corp., 684 F.2d 1102, 1111-12 (5th Cir.

1982); see also Kimble v. Noble Drilling Corp., 416 F.2d 847, 850

(5th Cir. 1969), cert. denied, 397 U.S. 918, 90 S.Ct. 924, 25 L.Ed.2d

99 (1970).

—————————

12a

empt state remedies on the high seas. During floor de-

bate on the bill, Representative Mann of Illinois intro-

duced an amendment to strike the phrase ‘as to causes

of action accruing within the territorial limits of any

state,” id. at 4484, leaving the provision in its present

form. The debate at the time reflects considerable con-

fusion among the members of Congress concerning the

effect of the amendment, a confusion which is reflected

over the next sixty years in the conflicting decisions of

federal courts interpreting section 7.° A number of deci-

sions interpret section 7 as Air Logistics would have

us interpret it, to preserve state remedies only in terri-

torial waters.'’° Other decisions take the opposite view,

that section 7 is effective to preserve state remedies on

the high seas as well.'' The former position is based

primarily on the belief, drawn from the floor debate, that

regardless of what Representative Mann intended, Con-

gress as a whole intended DOHSA to be an exclusive

® Congressman Goodykoontz spoke more prophetically than he

realized when he remarked during the debate that “the effect of

the amendment would be to leave the sentence incomplete and the

remaining language, not unlike Mahomet’s coffin, suspended between

heaven and earth, having no application to anything in particular.”

Id. at 4486.

10 See, e.g., Jennings v. Goodyear Aircraft Corp., 227 F.Supp.

246, 248 (D. Del. 1964) ; Wilson ». Transocean Airlines, 121 F.Supp.

85 (N.D. Cal. 1954). See also Barbe v. Drummond, 507 F.2d 794,

801 n. 10 (1st Cir. 1974); Devlin v. Flying Tiger Lines, Inc., 220

F.Supp. 924 (S.D.N.Y. 1963). Other decisions state that DOHSA

preempts state remedies without mentioning section 7 at all. E.g.,

Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77, 80 (9th Cir.

1983) ; Montgomery v. Goodyear Tire and Rubber Co., 231 F.Supp.

447, 452 (S.D.N.Y. 1964) ; Blumenthal v. United States, 189 F.Supp.

439, 446 (E.D. Pa. 1960).

1! See, e.g., In re Complaint of Exxon Corp., 548 F.Supp. 977, 978

(S.D.N.Y. 1982); Alexander v. United Technologies Corp., 548

F.Supp. 139, 142 (D. Conn. 1982); Rairigh v. Erlbeck, 488 F.Supp.

865 (D. Md. 1980); Safir v. Compagnie General Transatlantique,

241 F.Supp. 501, 508 (E.D.N.Y. 1965). Cf. Sierra v. Pan American

World Airways, 107 F.Supp. 519, 520-21 (D.P.R. 1952).

13a

remedy. The case most frequently cited for this propo-

sition is Wilson v. Transocean Airlines, 121 F.Supp. 85

(N.D.Cal. 1954), in which the court reviewed the legisla-

tive history of DOHSA in general, the Mann amendment

in particular and concluded:

[I]t is not at all clear that the subsequent approval

of the amendment should be accepted as an indica-

tion that the intent of the Congress coincided with

that of the amendment’s author. It is equally likely

that the approval of the amendment represented no

more than the acceptance of what appeared to be an

innocuous change in language to facilitate the imme-

diate passage of the legislation. ... An ambiguous

and ill-considered amendment to the bill, which be-

came the Act, is not [sufficient reason to ignore the

original purpose of DOHSA.|]

Id. at 90-91.

The congressional debate reflects a number of differing

concerns and beliefs on the part of the legislators. These

include whether the federal courts would have exclusive

jurisdiction of DOHSA claims and whether causes of ac-

tion granted by state statutes would be affected or pre-

empted by DOHSA. The debate is not couched in the

most precise legal terminology, and it appears that the

term “jurisdiction” was used indiscriminately to refer to

both the power of state or federal courts to hear a partic-

ular case and the power of a state to grant a right of

recovery. Thus, at some points it is not entirely certain

whether the subject of discussion is the power of state

courts to hear DOHSA claims or the power of states to

provide a remedy in addition to DOHSA. Some of the

congressmen apparently believed that once Congress had

legislated in this area, state statutes would be preempted

regardless of any language to the contrary.’ It is cer-

12 Mr. MONTAGUE. In repiy to the statement of my colleague

{Mr. Moore] I will say that jurisdiction upon this subject is

l4a

tain, however, that Representative Mann intended that if

a state remedy was available, it would remain available.'*

found in the Constitution of the United States, and it has been

held over and over again by our courts that when the Con-

gress legislates in pursuance of constitutional authority such

a law is exclusive. It requires no asservation in the bill to make

it exclusive. It is exclusive by virtue of its superior jurisdic-

tion; therefore, I submit, it is needless to amend this bill now

and raise the chance of its defeat by adding a mere adjective

when by the very force of the Constitution and the law in

pursuance thereof it is inherently and necessarily exclusive.

Mr. VOLSTEAD. My impression is it would be exclusive

upon the theory the gentlemen [Mr. Montague] sugrosts.

” * * *

Mr. VOLSTEAD. The view taken by the parties who drew

this bill is that it is exclusive, because, as the gentleman from

Virginia [Mr. Montague] pointed out, the power to pass laws

on this subject is conferred on Congress in the Constitution,

and whenever Congress acts I have no doubt it excludes the

power on the part of the State to pass laws on the same subject.

Mr. DEWALT. If that is true, as to that sort of accidents

resulting in death, and if there be no doubt about that, accord-

ing to the gentlemen from Virginia |[Mr. Montague], and the

gentleman’s interpretation, and it being exclusive only as to

matters occurring on the high seas, and also that the States

have jurisdiction in regard to matters happening in their

territorial limits, what is the use in having section 7?

59 Cong. Rec. at 4483-4485.

Mr. MANN of Illinois. Now, I do not know whether I am

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

on this bill carefully as reported this time. But I remember this

bill very distinctly in previous Congresses, and my impression,

which very likely may be erroneous, is that the purpose of the

bill was to confer jurisdiction in certain cases of death where

no jurisdiction now exists. I was under the impression that the

bill was not intended to take away any jurisdiction which can

now be exercised by any State court. I may be wrong about

that. I notice in the report in one place, on page 2, this state-

ment from somebody:

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

present simple form, which avoids conflict with State

eee >

l5a

After a thorough review of the debate surrounding the

Mann amendment to section 7, we agree with the court in

Wilson that some members of Congress accepted the

amendment so the bill could muster the necessary votes

statutes and yet remedies a crying defect in the maritime

law as administered in this country—

and so forth.

If the amendment which I have suggested should be agreed

to, the bill would not interfere in any way with rights now

granted by any State statute, whether the cause of action

accrued within the territorial limits of the State or not. In

other words, if a man had cause of action and could get service,

he could sue in a State court and not be required to bring suit

in the Federal court.

* * * *

Mr. SANDERS of Indiana. I would like to know what the

effect of this law would be if the amendment offered by the

gentleman from Illinois [Mr. Mann] be adopted with reference

to this particular question: As thus amended, the first sen ence

in section 7 will read, “That the provisions of any State statute

giving or regulating rights of action or remedies for death shall

not be affected by this act.” Now, as I understand it, if a per-

son living in Illinois should be in the beneficiary class, should

be, say, the widow of a person who had been killed on the high

seas, that person may now bring action in personam in the

State court of Illinois, and the damages recovered shall then be

distributed in accordance with the provisions of the State

statutes. Now, if this act is passed as thus amended, it will

give that widow the right to elect as to whether she shall

proceed under the terms of the act conferring jurisdiction upon

the Federal courts with reference to this matter, or whether

she shall proceed under the State statute of Illinois. Is that the

gentlernan’s understanding ?

Mr. VOLSTEAD. That is my view of it, and my understand-

ing is that in the form in which the bill at one time was drawn

there was a provision something like this, and there was a pre-

cautionary clause added to prevent a double action; that is, to

prevent action first in the State court and then afterwards an

action in the Federal court.

Mr. SANDERS of Indiana. The reason I raised the question

is that you notice here that the action is for the benefit of the

husband, parent, or child. My recollection of the action for

l6a

for passage. Nevertheless, the debate reflects an intent

by the author of the amendment and others to preserve

state remedies and the amendment carried the day. In

this circumstance, an attempt to discern the congressional

intent from the conflicting statements by participants in

the debate is hopeless. It is also unnecessary in light of

the clear language of the statute. Absent a clearly-

expressed legislative intention to the contrary, the plain

words of the statute must ordinarily be regarded as con-

trolling. Escondido Mutual Water v. LaJolla Indians,

— US. ; , 104 S.Ct. 2105, 2110, 80 L.Ed.2d

753, 761 (1984). Since the language of section 7 is

clear, we conclude that a state statute which is effective

to grant rights resulting from deaths on the high seas is

not preempted by DOHSA.

Air Logistics advances five arguments why section 7

should not be given the interpretation we have given it.

Each of these points deserves consideration, although

ultimately none is persuasive.

—_——

wrongful dealth in Illinois is that the child precedes the parent

in the beneficial interest. It seems to me this might give con-

flicting rights. If the right of action were in one person in

either case, then, of course, having elected to proceed under

one provision, he would be barred from proceeding under the

other provision. But suppose that the parent had the right to

proceed in admiralty in the Federal courts under this law, and

suppose under the State law of Illinois the child had the right

to proceed. Now, how are you going to have an election in that

case when the right to elect is not in the same person?

* * *

Mr. MANN of lllinois. We give a certain class of rights

under this act. If this act as originally drawn by the admiralty

lawyers was intended for the purpose of taking away jurisdic-

tion now conferred by State statutes, it ought to be very

critically examined.

* * * *

Mr. VOLSTEAD. It would be a good deal simpler if we

should leave the statute in the form in which it is drawn.

Mr. MANN of Illinois. It would be a good deal wickeder.

59 Cong. Rec. at 4484-85 (emphasis added).

17a

i. Dore v. Link Belt Co.

As an initial matter, Air Logistics argues that Dore

v. Link Belt Co., 391 F.2d 671 (5th Cir. 1968), reversed

sub nom Rodrigue v. Aetna Casualty & Surety Co., 395

U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969) controls

this case. In Dore, the survivors of a worker killed when

he fell from an offshore platform contended, as do the

plaintiffs in this case, that in addition to DOHSA they

were entitled to invoke the Louisiana death statute either

of itself or through OCSLA. This court rejected both

contentions, holding that DOHSA was the plaintiff’s sole

remedy. 391 F.2d at 674-76. The Supreme Court granted

certiorari and reversed, holding that since under the

terms of OCSLA offshore drilling platforms were to be

treated as federal: enclaves located in an upland state,

the case was not within the admiralty jurisdiction. Even

if there were admiralty jurisdiction, DOHSA did not

apply because Congress did not intend that result when

it adopted the Lands Act. 395 U.S. at 365-66, 89 S.Ct.

at 1842, 23 L.Ed.2d at 370. State law became federal

law federally enforced as to platform accidents. There

is no indication that the Court considered the circuit

court holding that DOHSA preempts state statutes. It

determined, however, that Louisiana law applied through

OCSLA, and reversed the circuit court decision applying

DOHSA to the exclusion of state statutes. We therefore

do not consider the Dore opinion to control the issue of

DOHSA’s exclusivity when DOHSA does apply.

ii. Mobil Oil Corporation v. Higginbotham

A second argument put forward by Air Logistics is

that the Supreme Court decision in Mobil Oil Corp v.

Higginbotham forecloses supplementation of DOHSA by

state statutes.1* We disagree. Higginbotham dealt solely

14 Air Logistics relies on the following langauge:

We realize that, because Congress has never enacted a com-

prehensive maritime code, admiralty courts have often been

18a

with whether damages available under DOHSA could be

supplemented by the general maritime wrongful death

remedy recognized in Moragne v. States Marine Lines.

Whether DOHSA preempts state wrongful death reme-

dies was not addressed in the decision. Particularly in

light of the interpretation of section 7 of DOHSA set

forth above, Higginbotham cannot be extended to answer

this question.

iii. In Re S/S HELENA

Air Logistics also points out that under this court’s

decision in In Re S/S HELENA, 529 F.2d 744, 753 (5th

Cir. 1976), state statutes are preempted by the Moragne

death remedy when death occurs within territorial wa-

ters. We agree that the anomaly of allowing state stat-

utes to operate on the high seas but not in territorial

waters is apparent. Air Logistics’ argument has logic

on its side, but again it does not take into account sec-

tion 7. The general maritime law preempts state law,

but DOHSA preempts the general maritime law, and, as

explained, section 7 of DOHSA specifically saves state

remedies.

iv. Moragne v. States Marine Lines

Air Logistics also asserts that section 7 was inter-

preted by the United States Supreme Court in Moragne

and THE TUNGUS v. Skovgaard, 358 U.S. 588, 79 S.Ct.

503, 3 L.Ed.2d 524 (1959) as preserving the effect of

called upon to supplement maritime statutes. The Death on the

High Seas Act, however, announces Congress’ considered judg-

ment on such issues as the beneficiaries, the limitations period,

contributory negligence, survival, and damages. See nn. 6-10,

supra. The Act does not address every issue of wrongful-death

law, see e.g., n. 15 supra, but when it does speak directly to a

question, the courts are not free to “supplement” Congress’

answer so thoroughly that the Act becomes meaningless.

436 U.S. at 625, 98 S.Ct. at 2015, 56 L.Ed.2d at 587. |

19a

state statutes only within territorial waters. In the pas-

sages relied on by Air Logistics, however, the Court is

simply quoting from the House and Senate reports on

DOHSA. With regard to the Moragne opinion in par-

ticular, this argument reflects a basic misunderstanding

of the context in which the court used this language.

The respondent in Moragne argued that since DOHSA

applied only to deaths occurring more than a marine

league from shore, it evidenced a congressional intent to

withhold a federal wrongful death remedy within terri-

torial waters. The Court quoted this legislative history

in support of its conclusion that Congress did not extend

DOHSA to territorial waters simply because state stat-

utes already provided a remedy in that area. 398 U.S. at

395-97, 90 S.Ct. at 1784-85, 26 L.Ed.2d at 353-55.

In THE TUNGUS, the respondent argued that a New

Jersey death statute should be applied in admiralty with-

out regard to any of the procedural or substantive limi-

tations New Jersey had placed on the right to recover.

The Court noted that to accept this argument would be

to infringe on the sovereignty Congress intended the

states to retain over deaths in a state’s territorial waters,

and for this proposition qucted the congressional reports.

THE TUNGUS does not consider the application of state

Statutes beyond territorial waters. From these sketchy

references we cannot derive the conclusion that the Su-

preme Court has interpreted section 7 to preserve state

remedies only within territorial waters. In addition, the

language in the quoted House and Senate Reports de

15 ([DOHSA] would accomplish that result ‘‘for deaths on the

high seas, leaving unimpaired the rights under state stat-

utes as to deaths on waters within the territorial jurisdic-

tion of the states ... this is for the purpose of uniformity, as

the states cannot properly legislate for the high seas.” S.Rep.

No. 216, 66th Cong., 1st Sess., 3, 4 (1919) ; H.R.Rep. No. 674,

66th Cong., 2nd Sess., 3, 4 (1920).

398 U.S. at 397, 90 S.Ct. at 1786, 26 L.Ed.2d at 355; see also THE

TUNGUS, 358 U.S. at 593, 79 S.Ct. at 507, 3 L.Ed.2d at 529.

20a

scribes section 7 as it was constituted prior to the Mann

amendment.

v. Nygaard v. Peter Pan Seafoods

We recognize that this holding places us in conflict

with the Ninth Circuit. In Nygaard v. Peter Pan Sea-

foods, Inc., 701 F.2d 77, 80 (9th Cir. 1983), the Ninth

Circuit held that maritime uniformity required the con-

clusion that DOHSA preempts state statutes. The court

stated: “If the federal remedial scheme for death within

territorial waters takes precedence over state remedies,

then certainly the federal remedial scheme for death on

the high seas, where the primacy of federal interests is

far clearer, should also take precedence.” Jd. at 80. The

discussion of this issue in Nygaard does not mention sec-

tion 7 of DOHSA; indeed we have no way of knowing

that section 7 was brought to the court’s attention.’® In

light of the interpretation of section 7 mapped out above,

we disagree with the conclusion reached in Nygaard."

Our hoiding in this case does not promote the uniform-

ity in the maritime law which the Supreme Court has

nurtured for many decades, and we may agree with our

brothers of the Ninth Circuit that to have state law pre-

empted in territorial waters yet operative on the high

16 The Ninth Circuit’s holding in Nygaard was based on the

“logical import” of its decision in Nelson v. United States, 639 F.2d

469 (9th Cir. 1980), that maritime uniformity requires preemption

of state death statutes by the gencral maritime law. The result

reached in Nelson is, of course, the same reached by this circuit in

In re S/S HELENA, discussed supra.

17 We also note that in Barbe v. Drummond, the First Circuit

noted in dicta that section 7 could be interpreted to preserve state

remedies, “but the better authority rejects this view [citing cases,

including Wilson v. Transocean Airlines|.” 507 F.2d at 801 n. 10.

Again, as outlined above, the necessary interpretation of section 7

after the Mann amendment is that it allows state remedies to oper-

ate on the high seas. The Barbe footnote contains no analysis

which undercuts this position.

2la

seas is “a result as damaging to uniformity in wrongful

death actions as it is illogical.” 701 F.2d at 80. It is

indeed profoundly unsettling that state law will have

nothing to do with a claim for wrongful death which oc-

curs on the Mississippi River, yet might apply to the

death of an offshore worker forty miles from land, but

this is the legacy of eighty-odd years of haphazard evolu-

tion in maritime wrongful death remedies. The remedy

for wrongful death on the high seas under DOHSA has

not changed since 1926, but remedies for maritime wrong-

ful death occurring in inland waters have been altered

almost beyond recognition. Prior to Moragne and In Re

S/S HELENA, a straightforward interpretation of sec-

tion 7 resulted in no anomaly—state statutes could apply

in territorial waters, state statutes could apply on the

high seas. Section 7 is simply out of syne with a chang-

ing jurisprudence. Nonetheless, Higginbotham teaches us

that DOHSA must take priority over jurisprudential

formulations, and this principle holds as true when the

result is one we dislike as when it is one we applaud. If

section 7 is to be molded to form a symmetrical whole

with other developments in maritime wrongful death

law, the artisan must be Congress and not this court.

We turn next to whether Louisiana has the authority

to extend the coverage of its wrongful death remedy to

the high seas and if so, whether it has elected to do so.

D. LEGISLATIVE JURISDICTION

Air Logistics argues that the states simply do not have

the power to legislate with regard to occurrences outside

their territorial boundaries. They contend that as a mat-

ter of federalism, “Louisiana can no more enact laws

governing death on the high seas than it could enact

laws governing deaths in Mississippi.” This leads us

into the relatively unexplored territory of legislative

jurisdiction.'"* Many of the decisions which have consid-

18 Simply stated, legislative jurisdiction is the power of a govern-

mental body to apply its laws to create or otherwise affect legal

22a

ered the question whether DOHSA preempts state stat-

utes have glossed or failed entirely to discuss this critical

question, and there is little solid, unambiguous precedent

in this area which is of any help. After careful consid-

eration, however, we conclude that in this respect Air

Logistics paints with too broad a brush. There are cer-

tainly constitutional limits on a state’s power to apply its

laws to order the rights of individuals, but these limits

are not determined entirely by geographic and territorial

considerations.

From the time of THE HARRISBURG until the pas-

sage of the Death on the High Seas Act in 1920, state

statutes afforded the only available remedy for deaths on

the high seas. The case most often cited as authority for

the use of state statutes in admiralty, both before and

after the passage of DOHSA, is THE HAMILTON.”

THE HAMILTON appeared to be based on the theory

that the “law follows the flag’’—the vessels, since they

were owned by Delaware citizens, were part of the terri-

tory of Delaware regardless of their location *°—but its

discussion was not limited to that proposition. Justice

Holmes initially addressed the power of the State of

interests. It is to be distinguished from judicial jurisdiction, which

is the bare power of a body to hear a case in its court system, re-

gardless of the law applied. See generally Reese, Legislative Juris-

diction, 78 Columbia L. Rev. 1587 (1978). No question of Louisi-

ana’s judicial jurisdiction is presented by this case.

18 E.g., Alexander v. United Technologies Corp., 548 F.Supp. 139,

141 (D. Conn. 1982); Safir v. Compagnie General Transatlantique,

241 F.Supp. 501, 506-07 (E.D.N.Y. 1965); THE JAMES MCGEE,

300 Fed. 93, 96 (S.D.N.Y. 1923) ; So. Pace. Co. v. DeValla Da Costa,

190 Fed. 689, 692 (1st Cir. 1911).

20 Long before THE HAMILTON, and indeed even before THE

HARRISBURG, Judge Pardee of this circuit suggested that Article

2315 of the Louisiana Civil Code might be applied to a death occur-

ring on a vessel owned by Louisiana citizens and based in Louisiana,

on the theory that the vessel was a part of Louisiana’s territory.

THE E.B. WARD, JR., 17 F. 456, 459-60 (C.C. La. 1883).

23a

Delaware to make laws applicable to the high seas, and

concluded that if there were no conflict with the Consti-

tution, Delaware could make such laws. The Justice went

on to conclude that when Congress was silent on the mat-

ter, there was no Constitutional bar to application of the

Delaware statute to its own citizens on the high seas.

207 U.S. at 403-04, 28 S.Ct. at 133-34, 52 L.Ed.2d at 269.

In Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85

L.Ed. 1193 (1941), THE HAMILTON was affirmed as

standing for a considerably broader proposition than

simply that the law follows the flag. Skiriotes was

charged with violation of a Florida statute which pro-

hibited the collection of sponges with diving equipment.

At the time of the offense he was apprcximately two

marine leagues off the shore of Florida. 313 U.S. at 70,

61 S.Ct. at 926, 85 L.Ed. at 1196. In response to Skiri-

otes’ argument that Florida lacked the power to apply

this statute outside territorial waters, Justice Hughes ob-

served that “if the United States may control the ccn-

duct of its citizens upon the high seas, we see no reason

why the State of Florida may not likewise govern the

conduct of its citizens upon the high seas with respect to

matters in which the state has a legitimate interest and

where there is no conflict with acts of Congress.” 313

U.S. at 77, 61 S.Ct. at 929, 85 L.Ed. at 1200. This prin-

ciple was based in part upon THE HAMILTON, as Jus-

tice Hughes explained:

[T]he principle recognized in THE HAMILTON,

supra, was not limited by the conception of vessels as

floating territory. There was recognition of the

broader principle of the power of a sovereign State

to govern the conduct of its citizens on the high seas.

. . . When its action does not conflict with federal

legislation, the sovereign authority of the State over

the conduct of its citizens upon the high seas is

24a

analogous to the sovereign authority of the United

States over its citizens in like circumstances.

313 U.S. at 78-79, 61 S.Ct. at 930, 85 L.Ed. at 1201.”

21 More recent Supreme Court citations to THE HAMILTON are

ambiguous. In Rodrigue v. Aetna, THE HAMILTON was cited for

the proposition that had offshore oil rigs been treated as vessels,

the admiralty law “supplemented by the law of the jurisdiction of

the vessel’s owner” would apply to them. 395 U.S. at 355, 23

L.Ed.2d at 364. In Moragne v. States Marine Lines, however, the

Court noted that

The general understanding was that the statutes of the coastal

States, which provided remedies for death within territorial

waters, did not apply beyond state boundaries. This court had

suggested, in an early case where the plaintiff and defendant

were of the same State, that the law of that State could be

applied to a death on the high seas, if the state intended its

law to have such scope. THE HAMILTON ...

398 U.S. at 393 n. 10, 90 S.Ct. at 1784 n. 10, 26 L.Ed.2d at 352 n. 10.

These passing references inay have some academic interest, but are

of little relevance to the concrete issue we must decide.

It has been suggested that THE HAMILTON may have been

implicitly overruled by Southern Pacific Co. v. Jensen, 244 U.S. 205,

37 S.Ct. 524, 61 L.Ed. 1086 (1917), and Western Fuel Co. v. Garcia,

257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921). See Wilson v.

Transocean Airlines, 121 F.Supp. at 91-92; Comment, Maritime

Wrongful Death After Moragne: The Seaman’s Legal Lifeboat, 59

Geo.L.J. 1411, 1423-24 (1971). Jensen is a celebrated and forceful

statement of the doctrine that the provisions of state law may not

interfere with the essential unity of federal maritime law. Garcia

approved the use of a state statute when a death occurred on naviga-

ble waters within a state’s territorial waters on the basis that the

action was “maritime and local in character,” and did not signifi-

cantly threaten this unity. The argument that the Jensen doctrine

and the “maritime and local” dicta in Garcia limit the power of a

state to apply its laws to a high seas death might have some force

were it not for section 7 of DOHSA and Skiriotes v. Florida. We

note as well that Jensen itself cites THE HAMILTON in support of

the proposition that one of the areas in which the states may

legislate without infringing on the necessary maritime uniformity

is that of wrongful death. 244 U.S. at 216, 37 S.Ct. at 529, 16 L.Ed.

at 1098. See also Oil Workers v. Mobil Oil Corp., 426 U.S. 407,

435-36, 96 S.Ct. 2140, 2153-54, 48 L.Ed.2d 736 (1976) (Stewart,

25a

The statute involved in Skiriotes was criminal but Jus-

tice Hughes’ interpretation of THE HAMILTON makes

it clear that this analysis of legislative jurisdiction is

equally applicable to wrongful death statutes. Florida’s

interest in protecting the sponge fishery, in the absence

of conflicting federal law, was sufficient to allow it to

order the conduct of its own citizens on the high seas.

Given a sufficient interest in a wrongful death occurring

outside its territorial waters, and absent conflicting fed-

eral law, it follows that a state may also constitutionally

apply its own law to order the rights of its citizens with

regard to that death.

We note that both THE HAMILTON and Skiriotes v.

Florida are careful to limit their analysis to the power of

a state to attach legal consequences to the acts of their

own citizens on the high seas.** As Skiriotes expressly

notes, “No right of a citizen of any other state is here

asserted. The question is solely between appellant and

his own state.” 313 U.S. at 76, 61 S.Ct. at 929, 85 L.Ed.

at 1200. Fortunately, we are not compelled to explore the

outer limits of a state’s legislative jurisdiction over high

seas occurrences since the significant contacts in this liti-

gation are exclusively with Louisiana. Offshore Logistics

is a Louisiana corporation and the helicopter was enroute

to Houma, Louisiana at the time of the crash. Both

decedents were Louisiana residents, and their work ac-

J., dissenting) (‘The Court has never struck down a state law on

the ground that the States are jurisdictionally incompetent to

legislate over matters that occur within the ocean ‘territory.’ ”)

22 This is congruent with the conflict of laws principle that a

state must have a sufficient interest in a particular transaction or

occurrence to apply its own law. Cf. Allstate Ins. Co. v. Hague, 449

U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981); Clay v. Sun Insur-

ance Office, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960);

Home Insurance Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926

(1930). See generally, Comment, A Constitutional Analysis of the

Mississippi Commercial Code Conflict of Laws Provision, 53 Miss.

L.J. 619 (1983).

26a

tivities were centered around the Louisiana offices of the

service companies by which they were employed. Both

plaintiffs were also Louisiana residents at the time of the

crash. In these circumstances, Air Logistics is clearly

subject to the substantive law of Louisiana.

E. EXTRATERRITORIAL APPLICATION OF ART.

2315

What now remains is to determine whether as a matter

of Louisiana law these plaintiffs have a claim under the

Louisiana statute against this defendant. Article 2315

provides no clue as to whether it is intended to apply to

deaths occurring on the high seas. Louisiana decisional

law construing Article 2315 also furnishes no concrete

guidance concerning whether that provision should have

extraterritorial application. It is significant, however,

that Louisiana will apply its tort law to an event or a

transaction occurring in another state, if Louisiana has a

sufficient interest in the transaction. See Jagers v. Royal

Indemnity Co., 276 So.2d 309, 313 (La. 1973) ; Romero v.

State Farm Mutual Automobile Insurance, 277 So.2d 649,

651 (La. 1973). We also note that Louisiana applies its

workmen’s compensation law to employees meeting cer-

tain statutorily-defined conditions, even if the injury oc-

curs in another state, a foreign country, or on the outer

Continental Shelf. See Thompson v. Teledyne Movible

Offshore, Inc., 419 So.2d 822, 823-25 (La. 1982); La.

Rev.Stat. 23:1035.1. Workmen’s compensation statutes

and wrongful death statutes, broadly speaking, have the

same purpose: to insure that injured individuals or their

survivors are compensated. There can be little doubt that

Louisiana has a strong interest in seeing that the sur-

vivors of its citizens killed by the fault of another are

adequately compensated. It is most reasonable, unless the

Louisiana courts or legislature indicate a contrary in-

tent, to assume that the state intended the protection of

this law to extend to its constitutional limits. This is

27a

particularly so when, as in this case, none of the con-

siderations of comity which influence choice of law in the

interstate context are present.

F. RIGHT TO JURY TRIAL

Both Taylor and Tallentire demand a jury trial on

their claims under the Louisiana death act. Since Taylor

and Offshore Logistics are both Louisiana residents, Tay-

lor’s state law claim is cognizable in federal court either

as an admiralty action or as a pendent claim to her

DOHSA action. Since, in either instance Taylor’s case

would be in federal court solely by virtue of admiralty

jurisdiction, Taylor has no right to a trial by jury.”

Since Tallentire and Air Logistics are citizens of dif-

ferent states, trial by jury will be available to Tallentire

on her Louisiana death action. This is so whether Tallen-

tire’s claims are considered as based solely on the Louisi-

ana statute or based on DOHSA and the Louisiana

statute.**

II. DAMAGES

The district ccurt accepted the projections made by Air

Logistics’ economist in computing the future earnings of

each of the decedents. Taylor and Tallentire both con-

tend their respective awards were inadequate, and con-

tend that the district court erred in a number of respects

in computing the awards. Since Tallentire’s damage

claims must be presented to a jury, we address only

Taylor’s complaints.

23 F.g., Green v. Ross, 481 F.2d 102 (5th Cir. 1973), cert. denied,

414 U.S. 1068, 94 S.Ct. 577, 38 L.Ed.2d 473 (1973); Ashland Oil

v. Third Nat. Bank, 557 F.Supp. 862 (E.D. Ky. 1983).

24 See Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct.

1646, 10 L.Ed.2d 720 (1963), Cruz v. Hendy Inter. Co., 638 F.2d

719, 723 (5th Cir. 1981).

28a

A. Social Security Taxes

In computing future earnings, the defendant’s econo-

mist deducted social security taxes for the decedent’s life

span. Taylor in essence argues that social security pay-

ments are similar to payments to a pension plan, and

that in any case social security deductions are matched

by the employer’s contribution, so there is no net loss of

income. Although this argument has a certain amount of

superficial appeal, our cases establish that social security

taxes should be deducted in computing future earnings.

See Culver v. Slater Boat Co., 688 F.2d 280, 302 (5th

Cir. 1982), modified in other respects Culver v. Slater

Boat Co., 722 F.2d 114 (5th Cir. 1983); Madore v. In-

gram Tank Ships, Inc., 732 F.2d 475, 479 (5th Cir.

1984).

B. Loss of Inheritance

The trial court also denied damages for loss of in-

heritance. This is a proper element of damages under

DOHSA, see Solomon v. Warren, 540 F.2d 777, 790 (5th

Cir. 1976), cert. dismissed, 484 U.S. 801, 98 S.Ct. 28, 54

L.Ed.2d 59 (1977); National Air Lines, Inc. v. Stiles,

268 F.2d 400 (5th Cir. 1959), cert. denied, 361 U.S. 885,

80 S.Ct. 157, 4 L.Ed.2d 121 (1960), but should be

awarded only when there is “a reasonable expectation of

pecuniary benefit” or a “probability” that the claimed in-

heritance would have come to the plaintiff. Solomon, 540

F.2d at 790-91; see also Nygaard v. Peter Pan Seafoods,

Inc., 701 F.2d at 81. In Solomon v. Warren, several

factors were considered in determining whether a reason-

able expectation of pecuniary benefit was present: (1)

the existence of a will; (2) the fact that plaintiffs were

actually legatees in the will; (3) the plaintiffs would be

entitled to take under intestate succession even in the

absence of a will; (4) the decedent had a history of ac-

cumulating property. 540 F.2d at 791. Taylor intro-

duced no evidence of these or other factors which would

29a

establish a sufficient probability of inheritance. In light

of this, the district court’s denial of this item as too

speculative was well within its discretion.

C. Loss of Services

The district court also denied Taylor damages for loss

of the services of her husband, because no evidence of the

value of those services was introduced. Taylor’s testi-

mony that the decedent routinely performed repair work

on the home and repaired the family automobiles was not

contradicted; indeed we note that the defendant’s post-

trial brief conceded the propriety of damages for loss of

services, seeking only to limit the amount. Damages of

this sort are, by nature, not calculable with absolute

exactness, and there is some merit to Taylor’s contention

that an expert’s valuation of those services would be little

better than that of anyone else. We remand this element

for reconsideration and without intimating that those

cases furnish the proper measure of damages, commend

to the district court’s attention Consolidated Machines

Inc. v. Protein Products Corp., 428 F.Supp. 209, 230

(M.D.Fla. 1976), and the district court’s opinion in

Higginbotham v. Mobil Oit Corp., 360 F.Supp. 1140, 1144

(W.D.La. 1973), reversed on other grounds 545 F.2d

422 (5th Cir. 1977), reversed and remanded, 436 U.S.

618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978).

We have examined appellee’s remaining assignments

of error with regard to damages, and conclude that these

decisions were within the trial court’s discretion.

D. Cross Appeal by Air Logistics

Air Logistics has cross appealed, contending that the

annual income figure used by the district court to cal-

culate future earnings for Taylor was based on inad-

missible testimony. A Mr. Verrett, the district manager

of Halliburton, the decedent’s employer, testified that fig-

ures supplied to him by the company showed that the

30a

annual earnings of an employee in the positions to which

the decedent would have been promoted were approxi-

mately $33,000 in 1981 and approximately $38,000 in

1982, including overtime. The base salary for employees

in these positions was approximately $29,000 annually.

Mr. Verrett also stated that he personally would have

thought the figure would have been greater, perhaps

$40,000 annually, but stated that any figure he gave

would be a “guess.” The district court used a $40,000

annual salary as the base for computing the decedent’s

future earnings. Air Logistics objects to the use of any

figure other than the guaranteed salary testified to by

Mr. Verrett, on the basis that the other figures are

hearsay.

Whatever the merit of Air Logistics’ argument that

the figures supplied by Mr. Verrett are hearsay, the ob-

jection was not adequately preserved for appeal. Al-

though Air Logistics’ counsel made an initial objection

that the average annual earnings of a special operator

were not within Verrett’s personal knowledge, plaintiff’s

counsel replied that he would “clarify that.” Verrett

then testified to the effect noted above, and defense coun-

sel indicated no further objection to this testimony either

then or in his cross-examination. The objection was

never ruled upon, and Air Logistics’ counsel indicated

no dissatisfaction with the state of the record. Having

given the trial court no reason to exclude this testimony

as hearsay, the objection to the figures supplied by the

company for base wages may not be pressed on appeal.”°

Cf. Complete Auto Transit, Inc. v. Wayne Broyles Eng.

Corp., 351 F.2d 478, 481-82 (5th Cir. 1965). We agree,

however, that the $40,000 figure, which Mr. Verrett can-

didly stated was a guess, should not have been used to

calculate the damage award. Use of a “guess” by a

25 Since we remand for proceedings to determine other aspects of

Taylor’s damage award, the district court may wish to exercise its

discretion to take additional evidence on this issue, if justice so

requires.

3la

witness as a basis for a damage award, when the witness

himself states that other evidence is more accurate, is

plain error affecting substantia! rights. We therefore

remand this aspect of Taylor’s damage award for re-

consideration by the district court.

CONCLUSION

The plain words of section 7 of DOHSA prevent the

preemption by DOHSA of the Louisiana state death act.

Our desire for a uniform, consistent, scheme of maritime

death remedies cannot justify a refusal to follow the leg-

islative will. We also conclude that Louisiana has the

authority to apply its death act to its own citizens on

the high seas adjacent to its shores and that as a matter

of Louisiana law, plaintiffs may assert a claim under the

Louisiana death act. Other than the amount of Taylor’s

annual earnings and the claim for loss of services by his

survivors, we find no error in the trial court’s computa-

tion of Taylor’s award under DOHSA.

The judgment in Taylor is VACATED, however, for re-

consideration of the above discussed items under DOHSA

and for further proceedings necessary for the district

court to consider plaintiff’s claims for non-pecuniary

losses under Article 2315 of the Louisiana Civil Code.

The judgment in Tallentire is VACATED and RE-

MANDED for trial by jury.*°

E. GRADY JOLLY, Circuit Judge, specially concur-

ring:

I econeur, but with no minor reservation. The result

we reach in this case creates significant problems in the

26 All parties correctly assert that the district court should enter

a judgment for a sum certain, rather than simply setting out the

method by which damages are to be calculated. On remand, the

district court should require the parties to provide the necessary

assistance to permit it to enter judgments for a definite sum.

32a

field of maritime law because it defies reason, runs con-

trary to principles of the general precedent in the field,

and creates all sorts of internal inconsistencies in the

prosecution of cases dealing with death on the high seas.

Most of these problems are noted in Judge Davis’

thorough and honest opinion.

Notwithstanding the powerful reasons exhorting a

result opposite the one we have reached, the language of

the statute is plain and clear that state remedies for

deaths on the high seas are preserved and not federally

preempted, and there is legislative history that clearly

supports the plain meaning of the plain words of the

statute. I therefore concur, but knowing that this result

may create a mess in more than a few cases.

GARZA, Circuit Judge, dissenting.

I respectfully dissent.

The majority begins with the proposition that section

7 of the Death on the High Seas Act (DOHSA) is “broad

enough on its face” to permit a state wrongful death

action for deaths occurring on the high seas. Indeed,

read in a vacuum, section 7 does allow for such a con-

struction. When read in the proper historical perspective,

however, I believe that the majority’s construction of

section 7 is flawed.

Historically, state wrongful death actions provided the

remedy for deaths occurring on territorial waters. Func-

tionally, there was no remedy for deaths on the high

seas. The absence of any remedy for deaths on the high

seas was the primary purpose for the enactment of

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

375, 398, 90 S.Ct. 1772, 1786, 26 L.Ed.2d 339, 355

(1970). “The express provision that state remedies in

territorial waters were not disturbed by the Act en-

sured that Congress’ solution of one problem would not

create another by inviting the courts to find that the

ih ab an sot ete Peo ae

33a

Act preempted the entire field, destroying the state reme-

dies that had previously existed.” Jd. In other words,

section 7 preserved the then existing state law remedies

available for deaths on territorial waters. It did not then,

and does not now, expand the exclusive remedy created

by DOHSA.

I am also compelled to dissent for the reasons ex-

pressed by the Ninth Circuit in Nygaard v. Peter Pan

Seafoods, Inc., 701 F.2d 77 (1983), in which the court

held that DOHSA preempts state wrongful death stat-

utes. Under the majority’s opinion, state law is pre-

empted by general maritime law on territorial waters,

but operative on the high seas. This result is “as dam-

aging to uniformity in wrongful death actions as it is

illogical.” Jd. at 80.

For the foregoing reasons, I would affirm the district

court’s holding that DOHSA provided Taylor and Tal-

lentire their exclusive remedy.

34a

DEATH ON THE HIGH SEAS ACT

46 U.S.C. $$ 761-767 (1982)

§ 761. Right of action; where and by whom brought

Whenever the death of a person shall be caused by

wrongful act, neglect, or default occurring on the high

seas beyond a marine league from the shore of any State,

or the District of Columbia, or the Territories or de-

pendencies of the United States, the personal representa-

tive of the decedent may maintain a suit for damages

in the district courts of the United States, in admiralty,

for the exclusive benefit of the decedent’s wife, husband,

parent, child, or dependent relative against the vessel,

person, or corporation which would have been liable if

death had not ensued.

§ 762. Amount and apportienment of recovery

The recovery in such suit shall be a fair and just

compensation for the pecuniary loss sustained by the

persons for whose benefit the suit is brought and shall

be apportioned among them by the court in proportion to

the loss they may severally have suffered by reason of the

death of the person by whose representative the suit is

brought.

§$ 763a. Limitations

Unless otherwise specified by law, a suit for recovery

of damages for personal injury or death, or both, arising

out of a maritime tort, shall not be maintained unless

commenced within three years from the date the cause

of action accrued.

§ 764. Rights of action given by laws of

foreign countries

Whenever a right of action is granted by the law of

any foreign State on account of death by wrongful act,

neglect, or default occurring upon the high seas, such

right may be maintained in an appropriate action in

35a

admiralty in the courts of the United States without

abatement in respect to the amount for which recovery

is authorized, any statute of the United States to the

contrary notwithstanding.

§ 765. Death of plaintiff pending action

If a person die[s] as the result of such wrongful act,

neglect, or default as is mentioned in section 761 of this

title during the pendency in a court of admiralty of the

United States of a suit to recover damages for personal

injuries in respect of such act, neglect, or default, the

personal representative of the decedent may be substi-

tuted as a party and the suit may proceed as a suit under

this chapter for the recovery of the compensation pro-

vided in section 762 of this title.

§$ 766. Contributory negligence

In suits under this chapter the fact that the decedent

has been guilty of contributory negligence shall not bar

recovery, but the court shall take into consideration the

degree of negligence attributable to the decedent and

reduce the recovery accordingly.

§ 767. Exceptions from operation of chapter

The provisions of any State statute giving or regulat-

ing rights of action or remedies for death shall not be

affected by this chapter. Nor shall this chapter apply

to the Great Lakes or to any waters within the terri-

torial limits of any State, or to any navigable waters in

the Panama Canal Zone.

LOUISIANA CIVIL CODE ANNOTATED

Art. 2315. Liability for acts causing damages; survival

of action

A. Every act whatever of man that causes damage

to another obliges him by whose fault it happened to

repair it.

36a

B. Damages may include loss of consortium, service,

and society, and shall be recoverable by the same respec-

tive categories of persons who would have had a cause of

action for wrongful death of an injured person.

C. (1) The right to recover damages to property

caused by an offense or quasi-offense is a property right

which, on the death of the obligee, is inherited by his

legal, instituted, or irregular heirs, subject to the com-

munity rights of the surviving spouse.

(2) As used in this Paragraph, property damages may

include expenses or monetary obligations necessarily in-

curred by the obligee on account of such offense or quasi-

offense; however, if the obligee is survived by any bene-

ficiary enumerated in the following Paragraph of this

Article, such expenses or obligations shall be recoverable

by said beneficiaries.

D. (1) The right to recover all other damages caused

by an offense or quasi-offense, if the injured person dies,

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

the deceased in favor of:

(a) The surviving spouse and child or children of

the deceased, or either such spouse or such child or

children;

(b) The surviving father and mother of the de-

ceased, or either of them, if he left no spouse or

child surviving; and

ceased, or any of them, if he left no spouse, child,

or parent surviving.

(2) The survivors in whose favor this right of action

survives may also recover the damages which they sus-

tained through the wrongful death of the deceased.

(3) A right to recover damages under the provisions

of this Paragraph is a property right which, on the

os |

37a

death of the survivor in whose favor the right of action

survived, is inherited by his legal, instituted, or irregu-

lar heirs, whether suit has been instituted thereon by the

survivor or not. :

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

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

sister, father, and mother, by adoption, respectively.

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.