Petition for Writ of Certiorari — Bell v. Tug Shrike

Supreme Court brief1964

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| BREE CSU ike ee | AUG 10 1964 |

SUPREME COURT OF THE UNITED STATES

October Term, 1964.

MRS. MARY ‘VIRGIN IA BELL, INDIV IDUALLY

AND AS ADMINISTRATRIX OF' THE ESTATE

OF JOHN WARE BELL, DECEASED.

Me Petitioner, ae

P Vv. . ~

TUG SHRIKE, IN REM, SOUTHERN TRANSPOR-

TATION COMPANY, INCORPORATED, A COR-

PORATION AND SOUTHERN TUG or.

TION, IN PERSONAM,

rd Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

: FOURTH CIRCUIT.

AND APPENDIX

~~ -

SIDNEY. H. KELSEY

_ RarpH RaBinow!tTz

1408 Maritime Tower

Norfolk, Virginia

Attorneys for Petitioner

SipnEY H. Ketsey .

1408 Maritime Tower

' Norfoik, Virginia

Counsel for Petitioner

INDEX

Citations To Opinions Below

Jurisdiction ... ,.....

(Question Presented *

Statutes lacie

Statement of the Case

Reasons For Granting The Writ

Ca oe :

APPENDIX

the Pourth Circuit

B. Opinion of the United States

the Eastern District of Virgimia

| Statutes :

Federal Employers’ Liability Act. 45 UIS.C. 1

Jones Act, 46 U.S.C. 688

13.

A. Opinion of the United States Court o1 Appeals tor

District Court for

CITATIONS ~ :

ars | Page .

Cosmopolitan Shaioing Cousesey v McAllister, 337 U. 2:

783 S. Ct. 1317, 93-L ed 1692 (1949) oe. “8

_ Cox v Roth, 348 US S. 207,75 S. Ct. 242, 99 L ed 260. - ;

eS... |b ae eee Sno ck sneieWeiansinapens strain tasanblenceaee nee big

David v Whittock, S.C. 233, 73 S.E. 171 (1911) ‘dies

De Sylva v Ballentine, 351 U S. S70 -( 3956) ........--... Senee i

Dice v Ivon Ce Y Ry. Co, 42 US. 359, 72 5. Ct.

-312, 96-L ed 398 1952). Papitioee pea nenrermere abr 8

Fenton v Reed, 4 Johns. R. 52 (N.Y) 1809) ee cn

Garrett v Moore MeCormack Company: 317, Us S. 239,

63S. Ct. 246, &7 L ed239 | 1942) .. ity epncsesasdear i... 8

Haywood.v Nichols, 99 Ken. 138, 160 Pac. 9&2 | yaaG) 10

Hess v Hess, 176 P. 24805 (Sup. Ct. Okla. 1947) 20... 10

Holgate v United Electric Ry.. 47 R. I. 337.133 Ath”

Johnson v Wolford, 117 Ohio St. 136, 157 N.E. 38%

LeBlanc v Yawn, 99 Fla. 328, 126 So. 789 (1930)... 10;

Lee v Lee? 150 Iowa 611, 130 NW. 128 CI9ET) -...: 10

Meister v Moore, ae PN COURS Beco ico ascns eo aw. Pas

Morrison v Sunil Mining Co., 64 Idaho 6,127 P. 2d

776 | 1942) - Ee cade teteaa alee ik Cai east a

Mudd v Perry, 108 Okla. 168, 235 Pac. 479 (1925) ee

Panama, Railroad Company v Johnson, 264 U.S. 375,

445. Ct. 391. 68 L ed 748 (1924) 2... eee. 8

Prince v Edwards, 175 Ala. $32. 57 Sa: 714 (1912) _. 10

Pas ; | Page .

Uf Re Hoffner’s ‘state, 254 N.Y) 238, 172 NUE! 483

& NUDRDY «0.002... ee Ss eat aa ae ecto a

- Rocky Mountain ‘Fal Co. v Reed. 0 Colo. RK, 130

P. 2d 1049 (1942) ...... “eiaiint chats repre aso - 10-

‘Seabcard Air Line v Kenney. 240 U.S. 489 ¢ 1916) J 11

Smith v/Reed, 148 Ga. 724, 89 SE. 818 (1916) 10

State v Murphy. 6 Ala. 703 f SOME cs catia tas ee

Thomas | v Murchy, 107 F 2d 268 (D.C. Cir. 1939) . 10

Thomey v. Thomey. 181 P. 2d 777 (Sup. Ct Idaho

as en Sele MDa et rth © ee

| “Town of Londe berry v- Town of Chester. 2 2. H. 268

Cr cea eee eee “9

“Travers v Reinhardt, 205 U S. 423 (1907 ) aases 9

Utterback v. Utterback. 71 F. Supp. 231 CD. DC. 1947). 1D

. & a

; MISCELLANEOUS

House Report 2335, 59th Congress. ——

March 15, 1906 ...... Veatidiaciie NEA Ri we ee 1

Congréssional Record April 2 1906, p. “$6U2- 4604 ays 7.

\ ae kere ©. Ree I

bal

“In ‘The

SUPREME COURT OF THE UNITED. STATES

* Octobef Term 1904"

No.

MRS. MARY VIRGINIA» BELL. INDIVIDUALLY

AND AS ADMINISTRATRIX OF: THE. ESTATE:

OF JPHN WARE BELL, DECEASED.

Pe iene r.

\. ;

TUG SHRIKE, IN REM, S¢ IUTHERN TRANSPOR:

TATION. COMPANY, INCORPORATED. A COR-

PORATION AND SOUTHE RN TUG CORPORA-

TION, IN PE RSON AM. .

- Re spondents.

PETITION FOK A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

—

cia FOURTH CIRCUIT 2”

Petitioner prays that a Writ of Certiorari issue to re-

view the judgment of the United States-Ccurt of Appeals

for the Fourth Circuit entered in the above entitled admir-

alty cause on May. 13.°1964..

CITATIONS TO OPINIONS BELOW

; ne F : ; ; .

The Opinion of the Court of Appeals tor the ‘Fourth

enepiihia

Circuit. printed in Appendix hereto, pp’ 15-28, is reported

in 332 F. 2d 330. The “Opinion of the. re Court.

printed: in the Appendix | hereto, PP. 29-37." is reported in

215 F. Supp. 377,

ee tee _ JURISDICTION

The judgment ot’ the Couri of Ay cals for ihe Fourth

Cirenit was entered on May 13, 1964.-The jurisdiction of

this Court is invoked under 28 U.S.C. See. 1254 (1)

QUESTION PRESENTED |

Where uiternity of shipowner’s hability to a seaman s

dependent widow. was, intended by Congress in the Jones:

Act. 4o Los.€: O88, should the marriage st aputes of the

Stage of Virginia be applied in "Admiralty to nullify unt

formity, by denying and divesting a common law widow,

not recognized by the State of Virginia. of her fedérally

given-righis as the survjsihg dependent widow under the

Jones Act. we . . s

pues STATUTES INVOLVED

‘The statutory provisions involved are’ the Jones, .\ct,

446 UC. 688. incerporating by its express. terms «the

Federal Employers’ Liability Aet, 48 U:S.C. 31. They are

printed in the Appendix, pp. 38-39.

STATEMENT OF THE CASE

. ve > ° . . . : *. e°? .-

Mrs. Mary Virginia Bell as widow and admunistratrix

ofthe estate of her husband. John Ware Bell, deceased, °

a hd

; y@- a

filed her Libel i in: Admiralty under: the Jones Act. 40 LS.

OSX, seeking,to recover damages for-the wrongful death of

her’ husband, a member of crew of respondent's tug

“SHRIKE” when the vessel, capsized and sank in the,

‘

~~.

shitowner on the morning of irial Settled its liability for

Chesapeake Bay on September 12. 1920, The respondent ,

causing the death or Bell in the sum of Sixty Thousand -

($60,006.00) Dollars Of which sum $13,500.00 was dis.

tributed to the. children of the dececent by his first wife,

and the remaining $44,500.00 was grafited to Mrs. Marvy.

Virginia Bell, the petitioner here, payment conditioned upon

her showing: of ‘entitlement as the ssurviving widow under

the terms of the Jones Act. If it' was determined that she

was net the surviving’ Jones Act widess hen the S44.

500.00 settlement was to be reti Seed by the shipow ner,

there being no other claimant as Bel widew.

Peshioner: Bell having been separated frorn her first,

“husband and hving apart for some twelve years obtained

‘a diverce trom him in Aprif or 1956. On December 13.

1956, she and ‘the décedent John Ware bell obtained at

marriage. license in Mathews County, Virginia. and were

ceremgniously married. After their marriage they came |

»to live in Norfolk, Virginia, held themselves open to fhe

community and the world’ to be legally husband and wife.

bought a@ home in {their joint names-at 3300 Montana Ave-

‘nue, ; Nordolk. Vitginia. paid their faxes in the namé ot

Mr. and Mrs. John Bell and were known in the community

as Mr. and Mrs. Bell. Widow Bell’ daughter by her. first

marriage. Mrs. Ruth Altimus, was living with her mother

in 1956 when her mother married the decedent Bell sind

continued ty live with Mr. and Mrs. Bell after their

marriage. Both she and her mother believed that the pe-

titioner was legally married-to the deceased Bell. Prior, to

ancnesilapesias

their marnage Mrs. Bell ran her home as a rooming house

cand Mr. Bell stayed thére occasionally. having known Mrs. -

Bell's son who worked on the same boat, through whom:

he met the petitioner. Coes |

"The decedent John Ware Bell was first. martied. to

Helen Woolard. Bell by when he had three children and

was divorced on June 12, 105). He was separated from

this waite prior te the Tvorce, and one week after the final ‘

decree ot divorce he married Catherine Estal Smith on

June 19, 1981. He lived with Catherine until January 15,

4054. 0m which date while living in the City of Portsmouth,

complaint bit was not granted a tnal divorce until Sep

teniber TS. P9S7. Having been separated trom second wite

ere { ) 1

Catherine since. janusry is, Tad. tbe decedent eli cere,

momousty married the present widow petitioner Mary Vir

ginta Bell on December 13. 1956, in) Mathews County.,

Virginia, arr they both had obtained a marriage livense

fromtabe Clerk of Court The decedent had told her ot his

lepst inarriage in North Carolina and of the three children

by thit wire. Lie also told her that he hac only. once been.

previously married, to the North Carolina wity. Petitioner

etl stared ghat she Knew ‘or Catherine but the deceased

- denied being married jw her. Widow Bell was totally de

pendent upen her husband throughout their naarriage,

from 10350 until the date of his death in 1959, and no other

suppert contributions by the decedent were made to any

ether person, She is the sole and only surviving widow of

John Ware Bell, the first two wives having secured thetr

divorces betore his death,

The District Court decided that decedent’s marriage to

petitioner in 1956 before the removal of the impediment

of Catherine's marriage to him by her final divorce in 1957

was defective. However, petitioner and decedent. having

lived together as husband and wife at common law, the

District Court held that “the issue’ now before the Court

is whether the libellant in her own right is entitled to re-

cover as the alleged widow or common law wife of John

Ware Bell. If she ts, entitled tu recover, the remaining

balance of said sertlement ts to he pa Ttohers” © App. p. 2¢

The District Court having round ia the State of Virginia

does not recognize common law marriages, applicd this

state law to determine the status‘of the surviving widow

beneficiary under the Jones Act. It held that the petitioner

Was not ‘the surviving widow under that statute, and al

Wuwed the shipowner to retain the petitioner’s agreed settle-

ment of $44,500.00. The Court of Appeals affirmed, hold-

ing that state law govertis the determination of beneficiaries

under the Jones Act and an admiralty court has no choice

of law to recognize a common law widow to prevent ryaldet:

cation of her federal rights. ‘;

REASONS FOR GRANTING THE WRIT

1. Ip the construction and application of the Jones Act,

46 U.S.C, 688, incorporating FELLA. 48 U.S.C. 51, this

case raises important federal statutory issues of conflicts, |

as to Whether state law should determine the status of the

widow beneficiary entitled to the federal grant or whether

the admiralty court has a choice of law other than state law,

to prevent state nullification of federal rights and carry

out the congressional intent of uniform. liability ‘of ship-

owners to the dependent widow. The decision of the Court

of Appeals conflicts in principle with the purposes and intent

of the Jones Act and with the decisions of the Supreme

Court. ae ee

The Court‘of Appeals held that state domestic relations

law, varying in each of the 50 states, must be applied to.

, determine widowhood status under the Jones Act, even

though this allows state divestiture of a federal remedial

grant where the widow fails to meet state statutory ap-

probation. But this is not a domestic relations problem.

Nor is it an inheritance situation. Congress specifically

and purposetully avoided the heirship dilemma and bene-

fitted the widow in her own right. See House Report 2335.

59th Congress First SeXsion, of March 13, 1906. And a

broad definition of widowhood for purposes of this Act

world not affect the scope or requirements of state domes-

tic relations law.

The beneficiary provision of the Jones Act ts set forth

in the incorporated FLE.LAN.. 45 USC. Sf «App. p. 38)

enacted April 22, 1908, which in turn took the precise pro~

“vision from the first Employers’ Liability Act of June 11.

“1906, ¢ 3073, 34 Stat. 232. other provisions of which on

being held unconstitutional, were corrected in passage of

the present statute. From the 1906 statute the elear con-

gressional intent in passage of these statutes ds shown in

House Report 2335. 59th Congress First Session, of Ma: “ch

13. 1906: f,

ero serine

* «

* and by this bill itis senght to fir a warform rule

of lability throughout the- union with reference to

common carriers engaged ww this line of employment.

i Emphasis: added )

* * -

\ Federal statute 6f this character will supplant the

numerous State statutes on the subject so far as they

relate to interstate commerce. It will create uniformity

throughout the Unign, andthe legal status of such

employer's, liability for personal injuries instead of

being subject to numoerus [sic] rules willbe fixed by

one rule in all the States.

See also, Congressional Kecord, April 2. 1906, at page

+02:

Mr. Sterling: | think there is no doubt that this statute.

within its nig Ax would cevtrol the, statutes of the sev-

eral Statics. That is one purpose ot the Balto lave a

uniform 1 Pil with reference to the employees engaged

in interstate commerce. ( Emphasis added )

And at page 4004; °—

Mr. Driscoll: The power which creates the cause of |

action has the right'to say how the proceeds shall be

disposed of. They should not be subject to decedent's

debts. but should go te the husband, wite, children,

parents, hrothers. sisters, and other next of kin: ac

cording to the pecuniary damages resulting to them

from his death.

There can be no uniformity of liability if the states are

free to detine the objects of the express federal grant

Certainly the states could now define “railroad employee”

so as to determine his status under the F.i.L.A. Similarls

to allow the states to variously interpret and detine

“widow” is to allow them to cartously determine the liability

per se. Fo admit Viability but refuse to allow a beneficiary

to collect thereunder is to deny liability. There is ng lability

_in the air. It can exist cnly between at least two parties..

eR a a mar

en Re nee ed now oe,

; : 8

. The Jones Act is remedial welfare legislation, Cox v

‘Roth, 348 U.S. 207, 75 S.Ct. 242, 99 L ed 260 (1955);

Cosmopolitan Shipping Company v McAllister, 337-U.S.

783. 69 S.Ct. 4317; 93 Led 1692 (1949). Uniform appli-

‘cation througheut the country is necessary to effectuate

its purposes and therefore state laws are not controlling in

determining what the incidents of this federal right shall

be. Panama Railroad Company v fohnson, 264°C S. 375,

oe SRO, -HES.Ct. 391, G8 1. ed 748 (1924); Garrett v Moore °

MeCormack Company, 317 U.S. 239, 63 S.Ct. 246, 87 L ed»

239 (1952); Dice v ‘Akron C & Y Ry. Co., 342 Us. 359,

301072 S.Ct. 312.96 L ed 398 (1952). +

In providing the federal grant te the benetfiaries an

Section 31oor FELLA. 45 U.S.C.. which is incorporated |

in the Jones Act. 40 ULS.C. 6&8, Congress specifically

retrained troni establishing any quafications as to the

class of widow; and it is apparent that by using the word

-widows, Congress intended to include widows By any proper

definition, including common law widows. How ean it: be

maintained that they were not included as a class of widows

together with -tate approved widows when no limitations

or restricted meanings are expressed by thé statute itselt ?

Does net this carry out the congressional intent for unt

form lability under the \ct to all classes ‘of widows ?

Common law widows existed in many parts of the worid

including the United States at the ume-of the passage of

the Statute as they do exist now.

ee Oe LAA ROT <3 COUPE Ae AL, IES fee LL ‘this

Court stated:

That such a contract [per verba de praesenti| consti-

tutes a marriage at common law there can be no doubt,

in view of the adjudications made in this“country,

-from) its earliest settlement to the present day. Mar.

Tlage is everywhere regarded as aceivil contract, Stat:

Utesgin Inany oF the States, it is true. regulate the mode

of entering-inte the contract, bid they de vet confer the

right... (leniphasi~ added)

See also Travers Reinhardt. 205 U.s. 423 (1907);

(Harlan, J.). where just prior to passage in 1908 oF

PAELLA. 48 CoeC. 51, this Court recognized the common

law right oi marriage: a

‘Tt is laid down by Blackstone that a imarriase for cerca

de pracsenti, without the intervention of a clergyman,

is a legitimate marriage. And beth Stores aod het

say that, according to the universal understanding in

this country, a marriage per verba de praesenti, with:

oat the intervention of a clergyman, followed by co-

habitation, makes,a legitimate marriage.

According to the common law of England existing in

the Colémies at the time of the American Revolution, cor

sensual marriages—-Le., marriages resting simply on con-

sent per verba de praesenti, were valid marriages, Wharton

Contl. L., Sec. 171-173, as they were also valid in the otd

Roman fimpire down to the Council of Trent. 3 MatMand,

Select History, p. 810. See also 2 Kent, Commentaries on

American Law (3th Ed. 1840), 86-88; Fenton v Reed, 4

Johns, R. 52 (N.Y. 1809) Ceiting English casesy: Town

of Londenberry v Town of Chester, 2 Nuff. 2o8 ¢P820)-

(citing Ienglish cases). State v Murphy. 6 Aba 765 (18+)

(citing English eases) 222 Modern E. Rey, 396 (1959),

. -

oA ee ee RNS Rn Nt sueman as

It is clear that both the decedent and petitioner widow

Bell intended and attempted to be married under the laws

of the State of Virginia since they secured a marriage

license trom the Clerk of Court of Mathews County, Vir-

ginia, where petitioner's home was, and they were ceve-

noniously married by a clergyman on December 13, 19506.

The impediment to their valid marriage under Virginia

Statutes was removed on Cseptenmber TS, 19576 when de

‘

cedent’s wite Catherine secared her tinal decree from the

decedent alter being separated from hint since January 15,,

iYS4. Petnioner did net know of this marriage or this di

vorce, ft she had known of this.impediment she could have

andowoold have vomarried a ceremony, to avoid jawalidity

ot her marriage under Virginia law Atier the removal of

the mupediment or Catherine's marriage on,September 1%,

1987. until the death of the decedent on September 12 1959,

the pariies continued their good taith marriage as henhand

and wite and the conjugal | nexus was breken only by death

Joth the Distriet Court and the Court or Appeals regarded °

the parties married: as at common law from the date of

removal of thé iutediment antih decedent’ Cali si Hie

two. vears later Upon the removal of the scrpedlicete and

continued good taith cohabitation as husband and wite, a

common law marriage is deemed in law to exist, since

marnage is preterable to concubinage. Thomas vy Murphy.

1G7 2d 208.1 1D.C) Cir. 1939), Themey v Thomey, 18]

Pi2de77 i Sup. Ct Idaho 1947), Hess v Hess, 176 P.2d

’ a4

SUS ¢Sup. Ct. Oia. P9470: Prince vo Kdwards, 172

532,37 So. 714 (1912); Rocky Mountain Fuel Co. v Reed,

110 Colo. 8&8. 130 P.2d 1049 (1942); Utterback v Utter.

bieck, 71 TF Styyp. 231 (D.DC 1947); LeBlanc vy Vawn 99

Fla. 328, 126 So. 789 | 1930); Smith v Reed, 145 Ga. 724.

XY SE. 815 (1916); Lee v Lee, 150 Towa 611, 130 N.W.

12% (1911): Haywood v Nichols; 99 Kan. 138, 160 Pac.

~ome 1Pe,

YX2 (1915); Morrison ¥ Sunshine Mining Co., 64 Idaho 6,

127 P.2d 776 (1942); Johrison v Wolford, 117 Ohio St.

136, 157°N.E. 385 (1927); Mudd v Perry, 108 Okla. 16x,

235 Pac. 479 (1925); Holgate v United Electric Ky.. 47

Kk §. 337, 133 Atl. 243 (1920); David v Whittock, 90 S.C

‘233. 73 S.E. 171 (1911)...

Their martiage could not be meretricions since their

intent to enter inty a legal and honorable state or matri

mieny is evidenced by their public act of securing a Virginia

marriage license. and being coremonioushy. married. Re

Hotfner’s Estate, 254 NY. 238 177 Node. 483 6 1930).

There can be no question under the tacts of this case

that petitioner Bell and the decedent had a valid common

law marriage, and at his death. petitioner Bell was and i

his common law widow ’

- , ¥ am ae te

2. It is believed that the dectsiet below of the Cour

Appeals is erroneous in failing to hold that the cotyres

sional intent in passing the Jones Act making thig grape te

the widow in the broadest sense of the word intel all

classes of widows, common law’ widows and. statutory

widows abke® and te turther tke celal At cadrinrcalt’ -

had a choice to recognize decedent's commen law widow,

petitioner Bell, and thereby carry out the intent of the

remedial grant by Congress. The lower Court's. view of

Seaboard Air Line v Renney. ‘240 US) 489 (1911. as

restricting the choice to state qualifies! Hs aS @rronedt:

In Kénney it was claimed that the words “next of kin”

were litnited to their common Jaw signiticatiee. and could

not be expanded by stzte interpretation in order to ac-

complish the beneficent purposes of F.E.LAA. This Court

held ‘that a state interpretation which broadened the, term

emit prem mem ane en alipetn

“neXt of kin” beyond its common-lawesignificance to include

illegitimates was permissible, since it enlarged the scope of

the remedy and no restriction of characterization was ex-

pressed by Congress in the Act. But while the Kenney case

permitted states to enlarge the scope of ine federal remedy,

it. was used as autherite buow to allow a state restriction

‘thereot, Neotoonkys4 < Kenney no authority for permissive

state restriction, it is cle arly no support for mandat:. TV state

Peery Toot igre hottory. interpretation. Both the

letter amd. the spuritcor the Kenney lecision are violated hi

. eyat + on 4 a. 7 Vel "y . 7 “hes » dee -

Mterpyrctai he att VE. Wick ie ‘| Status. | he re Was also

a rasappheatior below of this Court's dectsion in DeSvlva s

Ballentine, 331. Cos. 370 (1956). While DeSylva stood for

permnasive state braadening of the scope of a tederal rem-

wedy. it was used as authority by the Court of Appeals asa

mandate for sstriction. Moreover, in| DeSviva. Justice

Douglas and Tusth Block in their conenrring opinion felt’

that it was not necessary to rely upon a state enlargement

“at all, as the statute itself eenerates definitive Scope CON,

comitant with its purpose. stating, 351 U.S. 571, 583-84:

But }owould think athe statutory policy of protecting

dependents would be better served. by uniformity,

rather than by’ the diversity which would flow. trom

incorporating into the Act the laws of forty-eight

States.

oa * _ *

The purpose and object of the statute is to continue

the support of dependents atter a’ casualty. To hold

that these children or the parents do not come within

the terms of the act would be te defeat the purposes

of the act. The benefit conterred beyond being tor such

beneficiaries is) for saciety’s welfare in making pre-

vision tor the support of those who might otl 2 rwise

become dependent.

Petitioner: Bell. then, is a common law widow. The Jones:

Act grants a remedy toa widow..But here state definitions -

were improperly used to restrict the scope of liability under

the federal statute, and Mrs. Bell has been deprived of

her grant. :

CONCLUS 1ON

— the foregeing reasons; this Petition for’ a Writ of

Certiorari should be granted.

Respectfully submitted,

, Sipney H. KELSEY

° Counsel for Petitioner

July 31,. 1964

APPENDIX A

UNITED STATES COURT OF APPEALS

| FOR THE FOURTH CIRCUIT

: No. 91 9178.

Mrs. Mary \ irginia Bell. individually and as administratrix

of the Estat: of John Ware Bell, Deceased,

y: Appellant.

versus

Tug SHR! Nisin rem, Seuthern “Pransportation Company,

Incorporated, a corporation: and Southern, Tug

- Corporation, in personam.

: an ces Appellees.

_— ww.

APPEAL FROM THE UNITED States Disticet Court Fok

THE EasTERN District or V IRGINIA, AT NORFOLK

. Water E. HorrMan, Districr Jv UGE.

(Argued January 15, 1964. - Decided May 13. 1964. j

Before SopELorr, Chief Judge, J]. SPENCER BELL. Circuit

Judge.’and BarxspaLe, District Judge.

al ee ; e f oe -— 2

Sidney H. Kelsey for Appellant. and Roy 1. Sykes CR

Arthur Jett, Jr.. and Jett, Sykes & Berkley on brief ) for 2

Appellees. -

eis

tp.

Sone.corr, Chiet Judge: * gt

The Jones Act suit brought by Mrs. Mary Virginia Bell

iwr the death of John Ware Bell, a seaman, was settled

before trial tor.an agreed sum; vet this further litigation _

has been necessary to resolve the validity of her claim as —

John Ware Bell's “strviv'ing widow.’ There was and is

no problem ef competing claimants. The sole issue 1s

whether thef District Courtgugoperly concluded that Vir--

vintda state law‘applies, end that since. according to tnat

law, she was mt legally married to.the decedent at the

time of his death. she was theretore not his lawtul widow

entitled to the settlement. Stated differently, this appeal

ractses upon the troublesome problem as to whether a

fae 1 Ry Me ee “EA a ee aa ee

lederal court situng in admiralty Should Le governed by

the normally-applicable state domestic relations Taw, or by

some other rule wich che court may fashion

dt is undisputed that John Ware Bell was marriéd on

three different occasions in the courséot his lifetime. First.

he contracted a marfiage in 1940, which was dissolved by

divorce in June, 1951. He entered into his second marriage

one week later. but he and his second wite were separated

in 1954 and this marriage also was ended by divorcee, on

September 18, 1957. At issue in this/case is a ceremonial

marriage of the seaman to the appellant in) Mathews

County, Virginia. on December 13. 1950, when he was

? The Federal Employers’ Liaabibts Act. 45 ULS.CN0 sec 3]

(19585, renders a carner liable to the decedent's “personal repre-

sentative, for the benefit of the surviving widow * * *" and other

listed beneticiaries. This provision has been specifically meorporsted

anto the Jones Act. Merchant Marine Act, 46 U.S-CAA.. Sec. 688

(1988). See, ex. Norris. THE LAW OF SEXMEN, Sec. 668,

669 (2d ed, 1962): Gilmore & Black. PHE LAW OF ADMIRAL,

TY See. 6-29 (1957) °

still legally married to the second wile. Between the date

of the last mentioned marriage and September 12, 1959,

when the Tug SHRIKE capsized in the Chesapeake Bay,

causing John Ware Bell's death, he and the appellant lived

together in Norfolk. Virginia, and held themselves out to

the commiunity as husband and wife. Because of the nature

of their relationship, the appellant claims that she is entitled

te recognition as the decedent's widoyunder“the Jonés Act:

After the appellant brought her action in the District

Court as admuinistratrix, a oe was arranged be-

tween all parties concerned whereby the shipowner agreed

to pay a total of -$60,000, of which sum $15,500 was

-allotted to the children of ‘the decedent by his first wife.

and the remaining $44.500 to the appellant. provided she

eould establish her right to recover as Bell’s widow under

the terms of the Jones Act. If she failed in this, the $44,506

was to Le retained by the shipowner, there being no other

claimant as Bell's widow. .

‘The appellant maintains that, although her marriage to

Bell was bigamous..2a valid common-law marriage was

created once the impediment of the prior existing marriage

was removed by divorce tn 1957. The District Court dis-

agreed, reasoning that because “(t)here is no‘admiraity

law of domestic relations” a federal court sitting in ad-

‘miralty must ‘look to state law .to define statutory bene-

ficiaries under the Jones -Act. Bell v Tug SHRIKE, 215 FF.

Supp. 377. 381 (E.D: Va. 1963). Virginia law does not

. . 9 .

recognize common-law marriages.” On that basis the ap. ,

* The parties ape in occord that, if state law is applicable. the

appropriate law ts that eo Virginia and that under it the appecant's

claim of a common-law merriage is without substance. °

pellant was denied recognition as the surviving widow.”

Appellant contends, however, that state law should not

have been applied because a federal court sitting in ad-

niralty is not bound by the doctrine of Erie R.R. v Fomp-

kins, $04 U.S. 64 (1938). Appellant maintains that ad-

miralty has a choice of law and that, if the appligation of

state jaw would undermine a federal right, the court should

look to that law which will best effectuate admiralty prin-

ciples and achieve the rational uniformity that is desirable

in this area. She urges that these fundamental principles

would be better. satisfied by accepting her 2s a common-law

wife instead of depriving her’ot that status by resort to

the domestic relations laws of Virginia.

’

Whether or not the Erje doctrine ts limited to diversity

cases or also governs where federal jurisdiction 1s grounded

in admiralty is 2 matter very much in dispute. Mr. Justice

Biack has commented that Erie “did not answer all ques-

tions * * *. For example * * * the extension of the doctrine

to admiralty jurisdiction. and the total impact of the prin-

ciple in cases other than those oj diversity of citizenship

have not vet been finally determined.”: 13 Mo.B.J. 173, 175

3The’ District Cour, Was asked alternatively to treat the appellant

as the decedent's “putative widow.” This the court declined to do

because it found on the evidence adduced that she knew of the prior

existing marriage when she married the decedent and was. thus dis-

qualified from such treatment. No issue is pressed on this appeal

that Mrs. Mary Virginia Bell is the putative widow

*iA Moore, FEDERAL PRACTICE ‘Sec. 0.322(2) (1961).

Currie, “Federalism. and the Admiralty :“‘The Devil's Ow. Mess, ~

1960 S.Ct. Rev, 158; Stevens, “ERIE R.Ro vy TOMPKINS AND

THE UNIFORM GENERAL MARITIME LAW.” 64 Harv. 1.

Rev 246 (1950). oe)

“49

(1942). To our understanding this question is still. un-

settled. The Supreme Court appears to have adopted a

flexible standard, applying in admiralty cases either mari-

time principles or state law, depending upon the nature of

the case and the problems involved. The determining tactor

as to which law governs seems to be the availability or an

-admiri uty rule which is gene: ralty accepted and clearly de

fined. Where such a rule exists it will prevail over con

flicting local law. regardless*of Eric; -but where no ad

miralty rule has been clearly establisned. an admiralty

court will, in the absence-of legislation, hesitate te las

down a rule for unitorm application in the face of cor

flicting possible choices.” ,

This approach ts best exemplitied vy comparing Pope &

Talbot. Inc. v Hawn. 346 U.s. 406 (1933)..and Wilburn

Boat Co. « Fireman's Fund Ins. Co., 348 U.S..310 (1955 }

In the former the plaintiti asserted a claim for a-maritime

tort on the civil side of the District Court. There was a

jury finding that he had been contributorily negligent. 1:

was urged on appeal that this finding should bar recovery

either on the theory that admiralty law. having ne rule of

its own on the subject. must look to the common law, or ofi

the theory that the state rule on the subject controtied

under the Erie doctrine. Mr. Justice Black. writing tor

himselt and four colleagues, stated that “(the harsh- rule

ot the common law (that recovery is barred by contributors

negligence) is completely imeonpatible, with modern ad.

miralty practice and. procedure” He therefore agreed this

> See also Fiess v United States. 361 ULS. 314 (1960). Levinson

v Deupree. 345 U.S. O48 (19535: Isbrandtsen (Co. lohimsen, 343

U.S. 779 (1952): Garrett v Moore- McCormack Co.. 317 U.S 234

(1982); Just v Chambers, 312 U.S 383 -( 1941)

‘Cf. Baer, ADMER ALTY LAW OF THE SUPREME COURT

141-49 (1963).

the established “admiralty doctrine’ of comparative negli-

gence should be invoked. As to Erie, the basic principle,

according to the Justice, was that plaintiff's rights should

not be varied by hi. choice of forum. 346 U.S. at 410-11.

(n the other hand, in Wilburn Boat Justice Black, speak-

ing this time for six members of the Court, held that the

‘problem of a breath of warranty in a maritime, insurance

policy was not the subject of an established federal maritime

rule. Rather than delve into the “number of * * * possible

rules from which this Court could fashion one for admir-

alty.” 348 U.S. at 320, the Court remanded the case for

_appheation of the “appropriate state law.”

Here too the appellant has been unable to direct us to

any adnuralty principle or maritime rule which could aid,

the court in determining the legality.of her marital relation-

ship. She merely points to the law of those states. other

than Virginia, which recognize common-law marriage as

a general family-law principle.” It would at best be illogical

to disregard the state law which under accepted principles

of conflicts of law would apply, merely because the law’ of

some other place, unrelated to the parties and tothe subject

matier, happens to atferd one in the appellant’s. position

more tavoreble treatment. Tf the Court. in the.absence ot

® The anpellant states in her brief that common-law marreagges are

recognized if entered into today mi the following states: .\'abamia.

Alaska, Coloraco, Connecticut. Florida, Georgia, Idaho, lowa. Kansas

Kentucky, Montana, Ohio, Oklahoma, Pennsylvania. Rhode Island,

South Carolina. South Dakota, Texas and ‘District of Columbia

They are also recognized in the fotlowing if entered into before a

specified date: Califorpia, Indiana, Michigan, Minnesota, Missourt,

salacdadl New Jersey, New York. °

For example, in thé District of Columbia it has been sifegesty!.

that a’woman in the position of Mrs. Bell would Be a valid common-

law widow. Thomas v Murphy. 107 F.2d. 268. 269 (D.C. Cir. 1939)

21 Se hee

an admiralty rule or policy, as to look to some source other

than the law of Virginia, we think that it would have to be

the American common law:* but to say that would really

not contribute to a practical solution here, since the “com .

mon law” has been variously interpreted by judicial de.

cision, es cn :

Tf we inquire into the law of marriage and divorce under

“the law.of England as it existed at the time of the sepa

ration from’ the mother country.’ Seaboard Air Line-Ry. \

Kenney. 240 ULS. 489, 494 61916), in an effort to discover

a common: law which might be applied. the result is ne

more favorable to appellant that the law of Virgimia. Ac

cording to Kent:

“No person can marry while the 1 mer husband or

wite is living * * * (and) the principle of the commen

law, not only ot England, but generally of the Chris

_ tian world, is, ea no length of time or absence, and

nothing but death, or the decree of a court contesse. ily

competent to the case, can dissolve the marriage tie.”

2 Kent. COMMENTARIES ON AMERICAN LAW

79-80 (14th ed. 1896).

And Blackstone. discussing: the effect of a prior subsisting

Mi arria we, SAYS:

® Ours is not the typftal “federal common law” case represented fy

Clearfield Trust Co. v. United’ States. 378 US. 363 (1943). and,

Bank of America ¥ Parnell, 352 U.S. 29 | 1956). nor has there hee:

any argumen’ that the court should treat it as such. Ct. Fnendh. |

“In Praise of Erie—and of the New Federal Common Law, 1°

Record of the Association of the Bar of the City of New York 6+

(1964)

“The first of these legal disabilities is a prior marriage.

or having another husband or wife living; in which’

case, besides the penalties consequent upen it as a

felony, the second marriage is to all intents and pur-

poses void * * *." | Blackstone, COMMENTARIES

402 ( Lewis ed. 1922) °° |

A-marriage void because of an existing marriage may

§ £ ;

‘an ‘gertain circumstances have been converted into a com-

inon-law marriage after removat of the impediment,” but

this could not occur if both parties knew of the existence

of the impediment and failed, to enter into a new marriage

contract after the disability had been removed.'' Thus, the) —

common law, 1f we have been able to discover it with any

precision, does not advance the appellant's cause. Further.

if admiralty does indeed favor uniformity, this end is no

better achieved in cases like ours by looking te a tederal

judge's interpretation of the common law than by relying

apon the domestic relations laws of the states in which the

parties are domiciled. ,

Because we can perceive no controlling maritime or clear

cut common law rule, there is in fact no choice of law for

an admiralty court to consider. The court must look to the

Virginia law: which normally governs the domestic rela:

See, eg. Hanty + Seals, 6 Bin. 6 (Pac) 405, 30x (1so7. |

Bishop. ON MARRIAGE, DIVORCE, AND SEPAR VIRION

310-43 (1801): Barry, “Till Death Us Do Part.” 17 Va. Loew. 415."

420 (1930).

” Keezer, MARRLAGE AND DIVORCE 276-79 «3d ed. 1946).

vee, eg. Fenton v Reed, 4+ Johns. ONY.) $2 (T8001. Cf. Tetterton

veAreti® Tankers, Ine, 116 F.Supp: 429, 432 (ED. Pa. 1953)

Note, 21 Va. L.Rev, 331 .( 1934); Koegel,, COMMON LAW

MARRIAGE 153-60 (1922). :

tions of its domicilaries. Adopting this view, the admiralty

court in ne way abdicates its responsibility in appropriate

circumstances to formulate its own law?

meatal

—

The Supreme Court has declared that “there is no federal

law of domestic relations.” De Sviva v Ballentine, 351 US

870 (1956). and the question is whether in the presen:

circumstances admiralty should fashion a rule on the sub

wiect and. if so, from what sources shali the rule be drawn,

In De Sviva v Ballentine the Court was similarly faced with

the choice of making anainde endent formulation or relying

on existing state law tO determine whether. an dlegitimat

som of an author is entitled. as one of the “children” men

tioned in the Copyright Act. 17 ULS.CLA. Sec. 24, to succeed

to the right of renewal In deciding to follow state law, the

Court said oe ,

“We come, then, te the question of whether an, Hlegiti

mate child is included within the term’ ‘children’ as

used in See 24. The scope of a federal right ts, ©

course.a federal question, but that does not mean tha:

its content is net to be determined by state. rather tha:

federal daw. Ci. Reconstruction Finance Corp. 9

. Beaver County, 328 U.S. 204. Board of County Com

missioners v United States, 308 US. 343. 351-52. This

is especially trne where a stitute deals with a tamil.’

bd -

ee - . a*

We are fully acvertent to the statement of oe i ke ratth

furter in Mitchell v Trawler Racer, Ine 362 TS. £34, 350 01900.

‘idissenting opinion). “No area of tederal law 1 judge made at it-

source to such an extent as is the law of admiralty ~ Nor dow.

overlook the even more recent’ comment of Mr Justice Black tor

the Court that “Article HI of the Constitution vested in the jeder: !

courts jurisdiction over admiralty and maritime cases, and, since thet

time, the Congress has largely left to this Court the resporsitality: for

fashioning the <ontrolling rules of Vadmiralty law Fitzgerald

United States Lines. Inc . 374 US 16, 20 11963)

relationship; there is no federal law of, domestic re-

lations, which is primarily a matter of state concern.”

351 U.S. at 580.

Similar reasoning was employed in a Jones Act case, Beebe

vy Moormack Gulf Lines, Inc., 59-F.2d 319 (5th Cir. )j, cert.

denied, 287 U.S. 397 (1932), where reliance was upon

Louisiana law in interpreting the term “widow” in the ted-

ral statute. and-in- the interpretation of other federal

statutes as well. | .

oe directly pertinent than these analogous statutes

is thé Federal Employers’ Liability Act itself. which the

Jones “Act incurporates. Repeatedly questions involving do-

mMestic- relations arising.under that statute have been seftled

mn accordance with state law. In Seaboard Air Line Ry. v

_ Kenney, 240 U.S. 489 (1916), it was stated:

‘Some of these statutes are listed in a footnote in Lawson v

United States, 192 F.2d-479, 481 n.5 (2d Cir. 1951). cert. denied.

343 U.S, 904 11952). To this list should be added the Railroad

Retirement Act, 45 U.S.C.A., Sec. 228 e (b), Gloss ¥ Railroad

Retirement Bd., 313 F.2d 568 (D.C. Cir. 1962) (interpreting the

statutory term “remarriage’™): the World War .Veterans Act, 38

U.S.C.A. Sec. 445, Live Stock Nat. Bank of Chicago v United States.

“106 F.2d 240 (7th Cir, 1939) (involving validity ‘of common-law

marriage); the Social Security Act, 42- U.S.C-A., Sec. 402(e).

Yeager v Flemming, 282 F2d 779 (Sth Cir. 1960) (marital status ,

of clammant upon annulment of “renrarriage”}; and the Interna!

Revenue laws, Helvering v Fuller, 310 &.S. 69 (1940) (status of

parties and their property ifter a divorce).

The appellant has argued that this case is not conmettien: because

it was cecided four ‘vears before the enactment of the Jones Act. We

think the upposite is true. Congress specifically said that beneficiaries

of that Act were to be determined by reference to “all statutes of.the

United States conferring or regulating the sight of action for death

in the case cf railway employees.” 46 U.S.C.A., Sec. 688.

“e

25 Ls

f La

“There can now be no question that the act of Con-

gress in so far as it deals with the subjects to which it

. relates is paramount and exclusive. It is therefore not

disputable that recovery under that act can be had alone

in the mode and by and for the persons or class of per.

sons in whose ‘favor the’ law creates and* bestows 2

right of actions * * * But this is irrelevant, since the

‘controversy concerns only the meaning of the. act

which it is conceded, when rightly interpreted,- is en-

titled to exclusive operation, ;

“Piainly the statute contains no definition of who are

. to constitute the next of kin to whom a right of re

covery is granted. But as. speaking generA@y. under

our dual system of government who are next of kin

is determined by the legisiation of the various States

to whose authority that subject is normally committed,

it would seennt+ be clear that the absence of a definition

in the act of Congress plainly indicates the. purpose of

; Congress te leave the nada of that question

re the state law.” 240 US. at 493-94."

SE.g.. Pott v Pennsylvania’ bk, 327 US. 399, 401 (1940) -

Pacheco ve New Yo: ‘k, NUL. & HERR. 15 Fed. 46.7, 469 (2d Cir

1926): Padgett v Padgett, 8&8 F Supn. 30. 632 (SD. Fla, 1950)

Hammond v Pennsylvania R. . 54 NJ. Super.. 149 148 A.2d 515

(1959). We think that Dice v Akron, C & Y.R.R., H2 U.S. 350

(1982). cited by appellant, axe Net unpair chis-authority. There th:

‘Court declined to follow state law on fraud in the obtention Sf ;

release from an FELA claim, a subject not as clearly committed te

local law: is domestic relations.. Moreover, the Court was able to lool

to an established federal rules See also Tune vi Po& NOR Re 223-6

Supp. 928 (MD. Tenn. 1963), where tie court indicated, withor

deciding. that the meaning of the term “children” as used im th:

FELA is determined by state law. It held that under cither state-o

federal law an illegitimate child was within the statutory category

*O .

None of the cases cited.by appellant refutes the essential

holding of the Kenney case. In* Middleton v Luckenbach

S.S. Co., 70 F2d 326 (2d Cir. ). cert. denied, 293 U.S. 577

(1934), the court could not logically apply any state law

to interpret the Death gn the High Seas Act, 46 U.S.C.A.,

Sec. 761-68 (1958), because the persons involved were

subjects of the British West Indies, the lawsuit arose from

a ship collision in the, Caribbean, and the forum had no |

“substantial contact” with the transaction. Kenney was

distinguished as arising under a separate: statute, the

FELA, which specifically’ provided for concurrent federal

and state jurisdiction, a distinction which is inapplicable

in the present case since the jones Act incorporates FELA

on the matter of beneficiaries.” The court concluded that,

2as amatter of general law. “the rule that a bastard is.nullius

filius applies only in cases of inheritance” and, because the

statutory test of dependency was met, tthe illegitimate had’

_ standing. Nor is) Thonipson y Lawson, 347 U.S. 334.

(1954), a case arising under the Longshoremen’s and Har-

bor. Workers’ Compensation Act, 33 UsS.C.A.. Sec. 902

( 160). controlling. There also the Court fie reference to -.

state law unnecessary because whether the claiming widow:

cou recover ‘turned on the question of her “dependency.”

- The Jones Act and the Death on the High Seas Act di fler as to

geographic coverage and the survival of personal injury artions, and

‘also. important to the present case, as to beheficiaries entitled to

recover. The FELA (Jonss Act) contains mutually exclusive classes

of beneticfaries, while the WHS. does not. Day, “Maritime. Recov-

ery,” OF Col b. Rev G4, 63 ( L064)

os - \

Determinath oof the UsurcNing wide” under that Act is a matter

of state law “ice marital status ts ordinarily determined -by local

law ** °° A ona tngine and Mach. Works v O'Leary, 328 F.2d

877 Oth Cie Pedy) Under vers Similar circumstances. Idaho law,

which was there apple:ble, was-found to be more faverable to plain-

tiff than the law of Virgimia in this case :

Similarly, Gibson v Hughes, 192 F.Supp. 564°(S.D.NLY.

1961), is not in point for it concerns a problem. of conflict

of laws, in a different context.” The opinion as a whole, we

‘think, is much more persuasive against the appellant's con

tention than for it. . ‘.

There is a certain appeal i in the argument of the appellant

that if she was actually dependent upon the deceased seaman

she should be entitled to recover. especially as there is no

other woman claiming as.a widow. But the statute does no’

spread its benefits broadly according to dependency.” Re

aes is an essential factor under the. statute. whic.

speaks of a “surviving widow.” Neither express language

in the statute nor the term “widow” in its ordinary use

qualifies the surviver of a bigamous marriage as a w idow e

If the statute made only pecuniary loss the test rather, than.

relationship, we would havea different case. In dei aling with

the rights of illegitimate children, as we ‘have seen in De

Sylva and Middleton, discussed-above, we find, sboth under

‘Certain state and federal laws, a social attitude more favor-

*The problem”. said the court, “is to determine whether the law

governing the marital status of the plaiutifi is. that of New York

of the District of. Colinabia, or of French Morocco’ (the Taw ot

France ),’ 192 ¥. Sepp. at 566i

"The jones Act * * * explie itiv name(s) the widow as bene

ficiary. without reference to her dependency on the deceased * * *”

“Civil v Waterman S.S. Corp., 217 -F2d 94, 99 (2d Cir: 1954) (dic

tum): FELA- Sec. 51, 45 US CUA. See. 51 61958). provides tha:

only dependent .“‘next-of-kin” shall benefit. The other designated

beneficiaries need not prove dependency. See Gilmore & Black, 1.A\

OF ADMIRALTY 307 (19577. In, fact. rondépendent relatives

‘may recover at the expense of a depende nt relative listed in a subse

quent class. Whitaker v Blidberg Rothschild Co., 195 FStupp. beat

(E-D. Va.}. aff'd. 296 F.2d 554 (4th Cir. 1961) Cnondepender:

daughter. prevented dependent mother from recovering under the

Jones Act); Thy Four Sisters, 75 F.Supp. 399 (1D. Mass 1947)

(dependent father precluded recovery for dependent. sister)

238

able than in ¢arly English common law; but neither Vir-

ginia law nor any federal statute has recognized a right of

recovery in a person in the position of this appellant.

Whether it would ‘be sounder social policy to relax the

statutory requirement of ‘widowhood by treating the sur-

vivor of a bigamous marriage as a widow entitled tc

recovery is a fairly. debatable question. But should such a

change in policy be made on judicial initiative? It is one

thing for admiralty to fill in the lacunae left by congres-

sional. silence; it would be ‘quite another to rewrite the

statute. It seéms to us that an admiralty court would overstep. |

proper limits if it should attain the result by giving a forced —

and - artificial’ definttion. to the w ell-established term

“widow.” This would be the case were we to recognize as

a wife 4 woman who goes through a marriage ceremony

with a man knowing that he has an undivorced wife in

being.

While it is true that in the present instance no other

wonlan is competing, with the appellant for a share in the

settlement fund, a decision according the appellant standing

could operate to the detriment of claimants such é as parents

or next of kin in future cases.

Bataticny we must decline to accept the appellant's

eentention that by applying the law cf Virginia to interpret

the term *

right is being defeated by the:state. There can be no federal

right unless the claimant can qualify as a beneficiary under

the statute. Linder the circumstances this can only be

acnieved through a lawful marriage as that term is inter-

preted in. the only available domestic'relations law—the law

of the domicile... .

A firmed.

surviving widow” in the Jones Act, a federal

“APPENDIX B Pate

- “¢

‘

Mary Virginia BELL, Administratrix of the ~

estate. ot John’ Ware Bell, Deceased.

Libellant,

- TUG SHRIKE, Southern Transportation C maipany, “Ine,

Southern Tue Corp. ALLIED CHEMICAL BARGE

Respondei rs.

Noo, SOB.

Cotted States District. Court

nD. Virginia ; ;

Nortolk Division

February 26, 1963 :

: As Atsended “April 17, 1963.

WaArrer Eo Hore Man. Chiet Judge:

The tacts of this case are notjn dispute. In an action:

under the Jones et. 40 COS.C.. Sec. O88, Libelant seeks te

recover damages tor the death ot ber cdleged hnsbiend

fehn Ware Gell, who was 4a member of ‘the crew ot th:

tug SHRIKE: owned by -Southern “Pug Corporation cane

operated by Southern Transportation Company, Ine., as .

charterer thereof. when. the vessel capsized “and sank: ‘or

September 12, 1950 resulting in the death of tohn War.

. “Bell ;

¢ .

Shortly prior to the date of trial the action was condi.

{ tionally settled. Certain children had been born of decedent s

marriage to Helen Woolard (Bell) and the sum of S15:

300.00 was paid to the North Carolina eosbenee ot these

children, pursuant to the court’s order of October 25, 1900

The total settiement figure a = upon, subject » the

conditions. hereinafter mentioned) was S..0.000.002 From

this amount the afovesaid* sum ot $18, 500.00 was deducted

and paid, leaving in controversy the. remaining sum of

$44.500.00

The issue now before the court ts wheter He fibelant

sy her own right, is entitled to recover as the alleged ° vidow

ir commiony, Taw wife of Jahn Ware Bell. li she is entitled

o recover. the xemaining balance of said settlement ts to

ve paid to her, It she is not entitled to recover, the case 1s

at-an end, as the $15,300.00 has been paid and distributed

“to decedent’® chituren.

A. chronolugical sequence of the marital” life of John —

Ware Bell.will perhaps give a better focus to the problem

presented. [tis as follows: ;

Date | " tokn Ware Bell

"March 16, 1940 Marfied Helen Woolard

lune 72, 1951 Divorced by Helen Woolard Bell .

June 19, 1951 * Married Catherine Estal Smith

December 13, 1950 Married Mary Wirgimia White

soa (the libelant)

September IR, 1957.° Ptivorced by Catherine Estal

. ,. Smith Bell: -. -s

‘September 12, 1989 “John Ware Bell died.

}

Initially. libelant argued that decedent's marriage to

Catherine Estal Smith was not vahd because he did not

wait until the end of the North Carolina term of court on

June 20, 1951. betore going through the marriage cere

mony and, ‘even if décedent’s marriage to °Mary Virginia:

White (the libelants was illegal, she is a putative widow’

ang. as such, entitled ter re ver under the Jones Act.

These contentions were substantially abandoned by libel

ant at the time of tinal argument. Indeed thes must ‘x

abandoned as the great preponderance of the evidence sup

ports the view that. under North Carolina law, deceden

Was free te omarry immediately upen the entry ol the -

divorce decree of June 12,1951, His marriage to Catherin

IZetal Smith on Jiine 1, 198], took place in Norfolk Vir

vinia. While stil legally married to Catherine lestal Smit}

Bell. -he legally narried Mary Virginia White at Mathews

Virginia, on December 13. 1056: The following «year, 01

September PS, 1957. decedent’ was. divorced by Catherine

Iestal Smith Beil inthe Cireuit Court of the City ot Ports

mouth, Virginia. Decedent was tren free to ge throug!

another marrizge ceremony with Mary Virginia White an

théreby legalize their bonds of matrimeay iut this even:

never took place. As far as the record indicates, deceden.

and Mary Virgima White (Beli) live together in) Var

vinia as husband and wife from December 13, 1056, anti!

his death on September 12. 1959.

Nor cana be successtully urged that decedent's Wega’

marriage to Mary Virginia White constituted a putatiy:

Marriage, defined in law as a marriage contracted: in good

faith and in ignorence (on one or both sides) that impedi

rients exist which render it unlawful. Black's Law Piétion

arty, drd Ed) 1933. In one case. Lawson 1) Uriited States, &e

LLL I

F.Supp. 706, [district Judge Irving R. Katfimar, now a

member of the Court of Appeals for the Second Circtit, sus

tained the right of a putative wife to recover under the

Death on the High Seas .\ct but this holding was reversed

on appeal, Lawson v. United States, 2 Cir., 192 F2d 479.

cert. den. $43 U.S. yO4, 72 S.Ct. 635, 96 L.Ed. 1323.C1.

Beebe y.. Moormack Gult Lines, Inc., 3 Cir., 59 F.2d 319:

Winder v. Consolidated Underwriters, DC. 25 VF. Supp.

$3]. Tetterion 1. Artic Tankers. Inc. D.C. 6 Fosupp

429, The overwhelming weight of the evidence establishes

that Mary Virginia White (Bell) was not the putative

sife Of the decedent; she knew. prior to hier legal mar

riage ceremony on December 13, 1956, that decedent was

then still married to Catherine Estal Smith Bell. That she

did not see fit to enter inte ane ther marriage contract with

decedent subsequent ty September 18, 1057—when ‘the

egal impediment had been reny wed—is to be regretted but

it is. well settled that the diverce decree does not relate

back so as te validate an attempted marriage by one ot

the parties prior. to the rendition of the decree. §5 C.}.5

“Marriage Sec. OR; Tetterton v. Arctic Tankers, Inc., supra.

As the libelant’s oral argument and brief did not urge a

recovery on any theory of libelant’s stattis as an ‘alleged

putative “wite” oF “widow” the facts supporting the court’s

conelusion that Mary Virginia White (Belly was not the

mutative wife of John Ware Bell will not be stated ‘herein

Voreover, the right to recover as the putative widow under

The Jones Act has been rejected. See authorities cited infra.

The principal thrust of Tibelant’s case lies in her conten-

tion that there is.no rival claimant “widow; that admiralty

ecks uniformity in application and that to resort to Vir-

ginia law would constitute an unconstitutional delegation

by Congress to the several, states granting such states the

? 33

power to declare and control the rights and liabilities ot

parties arising out of negligently. caused deaths occurring:

upon navigable waters. It ts conceded that Virginia doe-

Net recognize coimiien law marriages. The argument ts one

of interest for students of law but to accept this doctrine

world require a reversal of many cases already decided to

the contrary by the United States Supreme Court.

“When Congress enacted the Merchant Marine Net 0,

1920, including the Jores Act. the rights and remmedic

“wranted te seamen cere incorporated by specie relerenc

inte similar prior legislation Known as the Federal Emples

ers’ Liability Act. 43 US Sec. 34 et seq. By virtue o

this incorporation, the applicable provisions of the FEL N

were mide “part and parcel of the Jones a Parvin

RR. Conv. Johnsen, 264 US. 375, 445.01. JOT, O8 1 kad

= 44. Buvonski, y. Luckenbach S.S. Co. 277 U.S. 226.

HX S.Ct. 440, 72 Ld ROO, Lindgren v. United States.

ws 38. 208 C1. 207.741 fail. ORO:

in 1016, font years prior to the adoption ot ae

Act. the Supreme Court” in Seaboard Nir Line Ky. \

Kenney, 240 US. 489, 30 8.01. 458, 00 Ltid. 762, heb!

that since Congress had not defined the various, classes oF

heneticiaries provided for under the FLAN. its inter

mist be taken\te be that federal court: are te lok at the

domestic relations laws of the states. The Kener cast

invelved the death of a railroad empl vee. with one legity

mate child and twe illegitimate children claiming the re

covery. As to the deceased employee, they were all his

children and, to this extent, they were not rival claimants

The same argument’ now advanced with respect tw lack

of uniformity was urged in Renney, but the Supreme Court

held that it was the intent of Congress to resolve the ques

2 a eget nen een 6

34.

tion as to who constituted “next of kin” by looking to state

law (240 US. 493, 494, 36 S.Ct. 488, 460). See calse Pott

v Pennsylvania * Co. 327 U.S. 399, 66 S.Ct. 605. 90.L. Ea

749.

in Panama R.R. Co. v Johnson, supra. the constitution-

ality of the Jones Act was upheld. In considering the umi-

form operation of the Jones Act, the Supreme"Court said

(264 US. 392, 45.Ct. 396):

“The asserted departure from the restriction respect-

ing uniformity in operation is without any basis. The

statute extends territorially as far as Congress can

make it go,and there is nothing in it to cause its oper-

ation to beotherwise than uniform. The yational legis~

latian respechugy mypuries to railivay cmpldyees engaged

ii interstate and foreign commerce: which it’ adopts

has a uniform operation, and neither is nor can be

detlected therefrom by, local statutes or local views otf

common law rules.” (Emphasis supplied )

From ‘the foregoing it will be noted hi itonlys rorht vers

following Kenney, the Supreme Court recognized the uni-

formity of operation of FL.E.L.A. and the Jones Act.

‘

‘ Federal courts making a determination of the requisite

legal status necessary to effect recovery under a number

oft federal statutes have consistently considered a valid

marriage under state law essential, and have turned to the

domestic relations law of the states for definitions of such.

familial status.’

. Lawson v United States, 2 Cir. 192 F.2d 479,

See footnote § ‘

3S. 904, 72 8.Ct 638,96 L.Ed 1323. Decisions

‘

$1. cert. den 34

The argument that a common law wife, not recognized

by the laws of Virginia as a ‘wife’, may bring hersel/

within the meaning of a “widow” under the Jones Act

merely because there is no rival clafmant asserting her

right of recovery as a widow, is untenable. Hf the Hbéelant

was not within -the class of persons whom Congress in

tended should be entitled to a recovery for the negligently

caused death of a seaman, the fact that she is the only one

claiming to bea member of that class dees not bring her

within it. To so hold would permit any woman, having had

hem relations with a seaman, to maintain an action under

the’ Jones Act under the theory that she is the only perso’.

claiming to be a “widow.” We do not suggest that this

example is applicable to the present set of facts, but where

do we draw. the line? ff the federal-courts-do not apply

the existing state kaw Gf domestic relations, we will have

created a tederal common law of domestic relations wher

-ever a tederally-created right is involved. As was said in

De Sylva \ badlonimne, = US. 570), S80) 7t) Sy. O74

9X0, 1OO L.Ed. 1415:

The scope of a tederal right is, of course, a federal

question, but that does not mean that its content is net

to be determined by state,-rather than. federal law.

”

~ bie

under actos. Mivoliig Nationa: oerviae hive tnesurcice holding t.

this effect are Castor v. United States, 8 Cir 174 bf 2d USE. cert. de

338 U.S. $36. 70 S.Ct. 45, 94 Liles S21. reli. den. 338 US. 90°,”

> Schurink v Umited States, 3 Cir. 17,

70 S.Ct. 245, 94 LE. 355

dUS. G28, 70 S.Ct. 627.04 L.Ed. 14

I. 24 SOY, cert. den. 33*

Gelita v United States. 83 Fsupp. 1003; Cavanaugh v United States;

D.C., 94 F.Supp. 776. Like decisions under War isk fnsuratice a:

United States, v. Robinson, 5 Cir., 40, F.2d 14. Sehicter vy Umited

States, 2 Cir., 52 F 2d $27. And under the Lonyshoremen and Harbe:

Workers’ Compensa ion Act. Greet vy Crowell, 5 Cir, 69 PF o2d 762,

cert. den, 203 Uls. 324, 88S Ct. 88, 79 Lod. 636: Bolin.y Marshall.

9 Cir., 76 F.2d 668. cert. den. 206 US) 573, 56 8.0. 116, SO Lhe

ee ee

ee EE

een aed

ee ee

* * * This is especially true where a statute deals with

a familial relationship; there is no federal law of do-

inestiv relations, which is primarily a matter of state

concern,” . .

To the same effect, see Brantley v Skeens, 105 Uos. App

.C. 246, 206 F.2d 447; Sears v Austin, Y Cir., 292 Fld

O90, cert. den, 368 WLS. 929, #2.8.Ct. 305, 7 L.Ed.2d 192;

Gibson » Hughes, D.C., 192 F.Supp. 304.

Libelant’s reliance upon Thompson vy Lawson, 347 ULS

: o~ og ad ae ee ae Ae = ‘ P on

334.74 S.Ct. 335. 9% Led. 733. 1s misplaced. That was a

‘ase under the Longshoromen and-PHarbor Workers’ € 4

“sensation Act and may be distinguished as the Act makes

ifs own definition of the word “widow™. Resort to state -

law was wholly unnecessary. The dicta‘’in Thonipson tends

.o support the conclusion that ‘it.1s linnited te Claims wager

the compensation act.

tis said that Congress may not constitutionally delegate

wower to the states to declare the rights and liabilities

arising out of a maritime injury. Southern Pacific Co. -v

Jensen. 244 U.S. 205, 37 8.Ct. 324, 61 L.Ed. 1086; Knick-

erbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438,

4 L.Ed. 834; Washington v W.C. Dawson & Co., 264

ULS. 219, 44. 5.Ct. 302, 08 L.Ed. 646. The authorities cited

relate to attempts by state legislatures toa apply their own

workmen's compensation statutes to injuries within the

admiratty and maritime jurisdiction. The difficulty with

libelant’s argument is that the state domestic relations law

does: not, standing alone, determine whether a-claimant in

a Jones Aet death action is entitled to recover, It 1s the

maritiie law of the United States, through the F.E.L.A,

as incerperated within the Jones Act. which has been

interpreted by authorize the definition of statuto:y bene

ticiaries by reference ta state Jaw. There is no admiralty

Jaw of demestic relations. The cases of Kossick v United

Fruit Co., 365 Uus. 731, 81 S.Ct. 886, 6 L.Eed.2d 36, and

Union Fish Co v Erickson, 248 US. 308, 39 S.Ct. 112.

03 L.Ed. 261. are inapposite’ There are instances in whicl .-

_comtragts are within the field of admiralty jurisdiction, but

the regulation of sugh contracts ts Jett with the states

Wilburn Boat Co. v Fireman's Fund Ins. Co. 348 US |

31, at p. 313. 75.8.Ct. 368, at p. 370, 99 L.Ed. 337. And.

likewise, federal inspection law~ have been held te yield te

local ordinances inveking smoke control regulations, Huron,

Portland Cement Co. wv Detroit, 352 Us. 440. at ye 442.

SOS CL R13 at p. X17. 4 Liked 2d 8520 There can be ne

doubt as to the constitutionality or resort to the domests

relations laws of the several states im aid of detining statu

tory beneticiaries in death actions brought under the Jone

\ct .

N\dopting this tuet.onameaum. tea clietce with Neca

‘ “

r 'ore fer reso ri ieetit oat Lrepaty

ralty iXirle 46 ;

and present after inspection by opposing proctor, an appre

priate decree hielding that Mary Virginia Wiite (Beli.

is net entitied to any portion Gr the recovery or settlemen

occasioned by the death of John Ware Bell, the action wt!

he dismissed. Taxable court costs for imstituting the action

and for all proceedings te and including Qetober 25. 10m)

will be assessed against the respondents. Taxable cour

costs for pre mecdings subsequent ter October 23, LOM ser

be assessed against the libellant

. + APPENDIX C.

JONES ACT. 46 U.S.C. 688

“Any seaman who shall suffer personal injury in the

course of his employment miay, at his election, maintain an

action, for damages at law, with the right of trial by: jury.

and in such action all statutgs of the United States modify

iIngor extending the common-law right or remedy in. cases

of personal injury to railway employees shall apply; aid in

case of the death of any seaman as @ result of any such

personal injury the personal representative of such seaman

may maintain an action for damages al law with the-right

of trial by jury, and in such actiowall statutes of the Larited

States conferring or regulating the right of action for

leath ti the case of railway employees shall.be applicable.

Jurisdiction in such actions shall be under the court of the

district in which the defendant emptoyer resides or in which

his principal ofhce is located. Mar. 4, 1915. ¢. 153, Sec. 20,

38 Stat. 1185; June 5, 1920, c. 250, Sec. 33.41 Stat. 1007."

FEDERAL EMPLOYERS’ LIABILITY ACT

45 U.S.C: 51

Every commen carrier by railroad while engagi.g in

umegyrece between any of the several: States or Terri

tories, or betaveen any of the States, and Territories, or

between the District of Columbia and any of the States oF

Territories, ‘or between the District of Columbia or any of

the States or Territories and any foreign nation or mations,

shall be hable in damages to any person suffering anjury

while he is emploved by such carrier in such commerce, or,

‘1 Ease of the death of such employee. to his or her personal

vepresentative, for the benept of the surviving widow or

"4 39 os

husband and children of. such employee; and, if none, theu-

of such employee's parents; and, if nene, then of the next

of kin dependent upon such employee, for such injury or

death resulting. in whole or in part from the negligence of ,

any of the officers, agents; or employees cf such carrier, «

by reason of any defect or insufficiency due to its negli

gence, in its cars, engines, appliances, machinery. track,’

- roadbed, works, boats, wharves,.or other equipment,

‘ . (- <p A ;

Any employee of a carrier, any part of Whose duties as -

such employee shall be the juirtherance of interstate or

“foreign commerce; or shall, in’ any way directly or closely

and. substantially, tee such conimerce as above sei*furth

shall. for the purposes of this chapter, be considered as

being employed by such carrier in such commerce and shall

be oe entitled to the benefits of this chapter.

Apr. 22. 1908, c. 149, Sec. 1, 35 Stat. 65; Aug. 11, 1939,

c. O83, See. 1, 53 Stat. 1404.

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.