# Petition for Writ of Certiorari — Bell v. Tug Shrike > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0011%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 379 U.S. 844 ## Text 2 * gk rs aha . LIBRARY ear er 5 | BREE CSU ike ee | AUG 10 1964 | SUPREME COURT OF THE UNITED STATES October Term, 1964. © seecee-.. 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 In Iu 13. A. Opinion of the United States Court o1 Appeals tor District Court for 38 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” ee Johnson v Wolford, 117 Ohio St. 136, 157 N.E. 38% ee 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" 4 \ 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 ee . 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 b] 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 c 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) 22 “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). : 23 tions of its domicilaries. Adopting this view, the admiralty court in ne way abdicates its responsibility in appropriate circumstances to formulate its own law? 6 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 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 Wy ee ee ee EE een aed ee ee 36 * * * 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 37 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 Oe . + 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 ° £ es . "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, ‘ . (-