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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 1001

## Text

Pn

85-97 ; FILED

| Office-Supreme Court, U.S.

—

JUL 17 1985
No. 84-
ALEXANDER L STEVAS,
a
IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1984

PETROLEUM HELICOPTERS, INC.,
Petitioner,
we

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

SP

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 ............-..

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

(c) The surviving brothers and sisters of the de-
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0224%3A1. Public record. Not legal advice.