Appendix — Fred Olsen Line v. Curry

hen

1 Order of the District ‘Court (avers eeucadsealncarernen

2. ‘Opinion of the Court of Appeals

eer ec eomeereeee ee eer ee eee”

3. Judgment of the Court of Appeals .

Ya

Appendix

In the United States District Court

for the Northern District of California

G

Southern Division:

Civil Action No. 40545.

ne ,

~——

Madeline Curry, Administratrix of the.Estate |

‘of Jack Curry, Deceased, '

Plaintiff,

"vs. 7

Fred Olsen Line, a corporation; A/S Ganger

Rolf, A/S Borga and A/S Bonheur,

Defendants. |

Fred Olsen Line, a corporation; A/S Ganger

Rolf, A/S Borga and‘A/S Bonheur, ‘

‘Third feiss Plaintiff,

_Vs.

California Stevedore & Bailast Company, a

corporation, * . |

, Third Party Defendant, | ‘

California Stevedore & Ballast Company, a fo

- corporation, aa

Lien Chidmaamt:

—)

| | ORDER | ;

.' partial summary judgment is granted to defendants

FRED OLSEN LINE, a corporation, A/S GANGER

Original Filed Oct. 20, 1964

ROLF, A/S BORGA and A/S BONHEUR as to the claim

- contained in the Second Cause of Action of the Amended

_ Complaint. Mortenson v. Pacific Far East Line, 148 F,

Supp. 71 (N.D.Cal., 1956) is controlling.

Dated: October 29, 1964. - : |

Stanley A. Weigel —

Judge.

Clerk, U.S. Dist. Court, San Francisco

United States Court of Appeals: *

for the Ninth Circuit

\ 3 - ‘

' Madeline Curry, Ete., .

£ ads Wee, Se _ Appellant, |

bac? ne +No. 20,182

Fred Olsen Line, Ete., ;

_ Appellee. ;

[October 10, 1966]:

Appeal from the-United States District Court

for the Northern District. of venice

~ Southern Division

Before: CHAMBERS, MERRILL and DUNIWAY,

Cireuit Judges

DUNIWAY, Circuit Judge:

Appellant Madeline Curry, in her capacity as ad-

ministratrix of the estate of her deceased husband Jack

Curry, brought this wrongful death action against the

appellees as owners of the. S.S. BATAAN. Federal juris-

_ diction is predicated upon diversity of citizenship. Her

complaint contained three causes of action, the first based

upon appellees’ negligence, the second based upon the

_unseaworthiness of the vessel, and the third based upon

- appellees’ wilful: and. wanton ‘misconduct. The court

granted. a motion for partial summary judgment as to the .

unseaworthiness count. This is the only ruling here

assigned as error.’ bs e > verse.

_ “1The case was tried upon the other counts, end a jury verdict

was returned in favor of appellees. No error is assigned as to the

judgment entered upon the verdict, as to = ‘counts.

iv

No affidavits were filed in support of or in opposition

to the motion for partial summary judgment. The sole .

question presented was one of law: May an action predi-

eated upon the California wrongful death statute he

maintained where the ‘sole.cause of death is claimed to be

unseaworthiness of the vessel? |

The California Statute, Code of Civil Procedure Section

377, provides, in pertinent part:

_ ‘When the death of a person not was aminor...

is caused’ by the wrongful act or neglect of another,

his heirs or personal representatives may maintain an

action for damages against the person causing the

death . . In every action under this section, such

damages ‘nay be given as ‘under all the circumstances

of the case, -may be just, but shall not include dam-

ages recoverable under Section 573 of the Probate

Code. The respective rights of the heirs in any award

shall be ee by the court. ane ,

The relevant! ‘operative ree of this statute has re-—

mained unchanged since its enactinent in 1872. (See note

to West’s Ann. Code of Civil Procedure § 377.) 5

“It is settled in California that this statute is not one

providing for survival of the decedent’s cause of action,

‘but creates a new and independent cause of action in

favor of the heirs of the decedent in which they recover ~~

the damages that they have suffered by reason of their

ancestor's death.? The present Cantera survival statute a

2The sufficiency of the allegation of ciseiaaiieien that the

deck on which Curry, a longshoreman, was working was slippery

and unsafe, causing him to fall through a hatch to his death, is

not challenged.

3Munro v. Pacific Coast Dredging & Rec. Co., 1890, 84 Cal. 515,

24 Pac. 303; Bond-v. United Railroads of San Francisco, 1911,

SS ———E—EEwe —— errs pee

v

is Probate Code § 573, as améfded in 1961. tt ite

damages . |

‘to such loss or daiage as thé decedent. sustained or

\ incurred prior to his death, . \. and shall not include

damages for pain, watering prs ee roe a8

Similar limitations appear. in the ae statute,

‘Civil Code § 956, which was: repealed i in 1961 (Cal. Stats.

1961, C. 657, p. 1867, $1). |

«-

Decisions of the United States Suprefne Court have °

settled. certain pertinent rules. First, there was no right

to recover damages for wrongful death under the mari-

time law.’ Second, a state may; by its wrongful death or’

survival statute give or preserve a cause of action for ©

death resulting from a maritime tort, assuming that the

‘state otherwise has jurisdiction, of the tort,® and such a

159 Cal. 270, 113 P. 366; Watkins v. Nutting, 1941*17 Cal.2d 490,

110 P.2d 384. Marks v. ’ Reissinger, 1917, 35 Cal. App. 44 169 P.

" 243; Buckley v. Chadwick, 1955, 45 Cal.2d 183, 288 P.2d 12;-

Tann v. Western Pac. Ry. Co., 1919, 39 Cal. App. 377, 178 P.

971; Secrest v. Pacific- Elec. Ry. Co., 1943, 60 Cal. App.2d 746,

141 P.2d 747; Estate of Bright v. Western Air Lines, 1951, 104

-Cal.App.2d 827, 232 P.2d 523; Dominguez v. Galindo, 1953, 122

Cal.App.2d 76, 264 P.2d 213; Norman v. Murphy, 1954, 124

Cal. yrs 2d 95, 268 P.2d'178; Pacific Emp. Ins. Co. v. Hartford

., Steam Boiler Inspection & Ins. Co., 1956, 143. Cal. App.2d 646,

299 P.2d 928; Kunakoff v. Woods, 1958, 166 Cal. App2d 59,0332.

*P.2d 773; Armstrong v. Beadle, C.C. Cal., 1879, 1 Fed. Cas. 1138

(No. 541) ; Van Sickel v. United States, 9 Cir., 1960, 285 F.2d 87.

4The present actioi is not one under Probate Code § 573 or

Civil Code Ԥ 956. In such an action the damages, if any, would be

nominal because death and injury were simultaneous.

5The Harrisburg, 1886, 119 U.S. 199. Congress has provided. a

remedy for death on the high seas (Act of March 30,;1920, Ch.

111, § 1, 41 Stat. 5387, 46 U.S.C. §§ 761-68) and for deaths of mer-

chant seamen, wherever occurring, under the Jones Act (Act of

June 5, 1920, Ch. 250, § 33, 41 Stat. 1007, 46- US.C. § 688.)

‘ Neither statute is applicable here. .

6The Hamilton, 1907, 207 U.S. 398 (Delaware Statute) ; Western

Fuel Co. -v.. Garcia, 1921, 257 US. 233 (California Statate)

cause of action may be enforced in admiralty as well as

in the state court. Whether the state statute does give

such a cause of action is a question of state law. Third,

. when admiralty. adopts a Sfate’s right of action for

weet death, it must enforce the right as an integrated

whole, with whatever conditions and limitations the creat-

ing State has attached .... The policy expressed by a

State Legislature in enacting a wrongful death statute is

not, merely that death shall give rise to a right of ‘recov-

ery, nor even that tortious conduct resulting in death shall

be actionable, byt that: damages shall be recoverable when

conduct of a pafticular kind results in death. It is incum-

bent upon a court enforcing that policy to enforce it all;

it may not pick or choose.’’? This rule is equally appli-

cable whether the action is in admiralty i in a federal court;

or at law in.a state court, or at law, under diversity .

jurisdiction, in a federal court. In the last type of ¢ase, a

federal court must apply the appropriate state law, under |

the rule in Erie R. Co.:v. Tompkins, 1938, 304 U.S. 64.

This. court ‘has ° previously applied the third aule.*

Appellant, however, points to disagreements among the

- Justices of he Supreme Court, appearing in the opinions

in The Tungus v. Skovgaard; supra, n. 6; United Pilots

‘Assn. Vv. Halecki, 1959, 358 U.S. 613; Goett v. Union Car-. °

bide Co., supra, n. 6, and. Hess v. United States, supra,

Levinson v. Deupree, 1953, 345 U:S.. 648 (Kentucky Statute) ; The .

Tungus v. Skovgaard, 1959, 358 U.S. 588 (New Jersey Statute); ©

Hess v. United States, "1960, 361 U.S. 314 (Oregon Statute) ;

Goett v. Union Carbide Co., 1960, 361 U.S. 340 (West Virginia

Statute) ; cf. Kossick v. United Fruit Co., 1961, 365 U.S. 731.

The Tungus v. Skovgaard, supra, n, 6, 358 U.S. at 592, °593. .

8Western Fuel Co. v. Garcia, ‘supra, n. 6, and see Humboldt

Lumber Manufacturers’ Assn. v. Christopherson, 9 Cir., . 1896,

73 Fed. 239 ; Allen v. United ee 9 Cir., 1964, 338 F.2d 160,

%

ee

vu

n. 6, as to whether, once a right of action created by a

state appears, the state’s limitations upon it should also

apply. Appellant suggests that it is likely ‘that the

Supreme Court will adopt. the views expressed by Mr.

Justice Brennan, dissenting in The Tungus, supra, that

once the state affords a remedy in a general way for.

_ wrongful death then the right is governed by the general

maritime law rather thanstate law. The foregoing de-

cisions, howeveT, are to the contrary, and it is not our

~ function to guess that the Supreme Court may overrule

them and then to apply our guess instead of the rules

announced in those decisions. We therefore hold that: the

third rule is applicable here.

It is not here urged that the California statute does:

not give a cause of action for wrongful death resulting -

' from a maritime but local tort occurring within California .

waters.® Our question is narrower: does that statute give

such a cause of action where the sole basis asserted for

liability is: unseaworthiness not cansed ‘by - negligence?

That is a question of California law. No California appeles

late court has passed upon that question.. Under these -

circumstances, we must construe the statute in the light of

such California decisions as may be helpful, in an

endeavor to determine what the California courts would |

hold.?° 7

9Sée Allen v. United States, supra, n. 8.

10In Mortenson v. Pacific Far East Tine, Inc., N.D. Cal., 1956,

148 °F. .Supp. 71, District Judge Murphy, a former California

Superior Judge, held that unseaworthiness is not a ground of:

recovery under the California statute. So far as appears, however,

no California decisions were considered. In the present case, Judge

Weigel simply -held that Mortenson was-controlling. Two Cali-

fornia Superior Judges have come to the same conclusion. Smith

. , -——

° . is,

74

Appellant asks us to construe the law of 1872 to meet .

the needs of 1965, to apply a.‘‘bold”’ approach to its con-

struction, to give’ the statute a generous construction to-

' achieve. results consistent not only with remedial purpose

of the statute but also with the like purpose of the

admiralty itself; Whatever we may think our duty to be .

~ when we are construing an act of Congress, we think thgt

where a California statute is involved such exhortations

are not, properly addressed to us. They would be more

appropriately addressed to the courts or to the legislature

of California." We do not make California law, even

interstitially; we have a more modest function, to attempt

to apply it as it is to a particular case.

The key language in the California. Statute is ‘“‘death

. caused by the wrongful act or neglect of another.”

hadgew the statute does not say is emphasized by appellees.

It does not speak of “wrongful act, neglect or default,’’

as many statutes do, or give a cause-of action for a wrong

for which the decedent could have recovered had he lived,

. .er mention maritime worse, or injuries on ships, or any-

thing similar.

The California Supreme Court roe ruled cunparatividy

recently, in the Bickley case,!? that contributory negli-

gence is a defense under the statute. There the court said

that ‘‘it is to be strongly presumed that the Legislature

acted’ in the light of the contemporary coystruction of

v. Union Oil Company, Superior Court, County of Los Angeles,

1963, No. 697815 unreported, and O'Sullivan v. Matson Navigation

| Co., ‘Superior Court, San Francisco, 1963, No. 505418, also unre-

ported. No authority is cited in Smith; only M ortenson is cited.

\in O'Sullivan. These decisions are of little help to us.

| 11Appellant could have brought this action in a California court.

he chose the federal forum.

, 12Buckley v. Chadwick, 1955, supra n. 3, 45 Cal.2d at 193-94.

Oe oe \

[Lord Campbell’s Act, including] .. . the English deci-

sions pertinent to the application . of the law.’’ In 1872,

when ‘the statute: was enacted, the doctrine of unseaworthi-

\ ness had not yet. ‘been ‘defined by the United States

‘Supreme Court. It began with The Osceola, 1903, 189 U.S.

158. And it did not come into full flower until many years -

later. 18 The Buckley case. e.lends § some sical to appellees’

_ position.

The California courts. have ales construed: the operative

words of the Act: ‘‘wrongful act,’’ and ‘‘negleéct.’’ In

Burke v. Arcata & Mad-River R.R., 1899, 125..Cal. 364, 57

Pac. 1065, the Court said: “The act causing the death

must be willful or negligent.” (125 Cal. at 369,57 Pac. at

1066.) '* Here, neither, wilfulness nor negligence F ondeeed

Unseaworthiness gives rise to liability without fault, and.

* while it is now characterized as a species of ‘tort, its:

km is said to be in warranty, arising out of the sea-

m

S contract of service.'® Appellees urge that the Cali-

_ fornia courts would hold that such a tort is not embraced °

within the languagé of Code of Civil Procedure Section

; \

188ee ‘Mahnich v. Southern 8.8. Co., 1944, 321.U.S. 96; Seas,

Shipping Co. v. Sieracki, 1946, 328 U.S. 85;. Pope &-Talbot, Inc. |

.v. Hawn, 1953, 346 U.S. 406;. Alaska S:S. Co. v. Petterson, "1954,

347 U.S... 396; ‘Mitchell v. Trawle Racer, Inc., 1960, 362 U.S. 539;

Gutierrez v. Waterman S.S. Corp., 1963, 373 U.S. 206.

-14The statement -was dictum, as the cause: of. action was for

negligence. Compare Moxon v. County of Kern, 1965, 233 Cal. .

App.2d 393, 43 Cal.Rptr. 481; Hinds v. Wheadon, 1941, 115 P.2d

35, reversed on other prounds, 1942, 19 Cal.2d 458, 121 P.2d 724.

15Union Carbide Corp. v. Goett, 4 Cir., 1960, 278 F.2d 319;

Skovgaard v..The Tungus, 3 Cir., 1957, 252 F.2d 14; Strika v.

Netherlands Ministry of Traffic, 3: Cir., 1950, 185 F.2d 555, cf.

‘Seas Shipping Co. v. Steracki, Supra, n. "13, 328 US. at 93.

16See cases cited i in note 13, supra,

: -

4

/

/

/

q /

Ap iia say that it has been held that Code of Civil

Procedure § 377 does not give a cause of action for breach

of contract, citing the cases listed in note 14, supra, and?

‘Willey v. Alaska Packers Assn., N.D. Cal., 1926, 9 F.2d —

937, affirmed 9 Cir., 1927, 18 F.2d 8. Willey. ele

claimed breach of the duty of maintenance and cure.'The _

trial court held that the duty was contractual, and not,

« covered by Code Civ. Proc. $377, and alternatively, that

the action was barred by a prior judgment in a California

court, and that in any event, no breach of duty was

‘proved. This court affirmed, but solely upon the third

- ground. The case is weak authority at best. Moxon v.

County of Kern, supra, n. 14, was a wrongful death action.

against a Megpital, based upon negligence and breach of

warranty. Decedent, while he was in the hospital, ‘was

killed by an insane fellow patient. The court held that the

_ negligence claim was barred by Cal. Gov. Code § 854.8,

and that the breach of warranty claim sounded in con-

.” tract, not tort, and so did not come within Code Civ. Proce.

-§377. It is notéworthy, however, that the court -cited

Prosser’s statement ‘that the wrongful death statute

covers torts, including intentional-and negligent torts and :

strict liability. af.

In Hinds v. Wheadon, supra, n. 14, the District Court of.

Appeal held that an action for breach of express warranty

sounds in contract, not tort, and so is not within Code Civ.

Proce. § 377. The Supreme Court granted .a hearing and

reversed, holding that there was sufficient evidence of

! . —s

” “VWeprosser, Torts, 3d. Ed. 1964; p. 925. “Strict liability in tor€ has

-” made its appearance in relatively few cases, but there appears

to be no reason to doubt that it is included within the death °

acts.” : « :

cF

xi

negligence to, go to a jury.'® Hinds v. Wheadon is not

authority on the question. =e - |

Appellees also-argue that the case is governed by Cali-

fornia Labor Code Section 2803.1° That section, however,

deals with employers’ liability, which is not here involved.

Moreover; it has been held, under the former statute, Cal.

Civ. Code § 1970 as amended, Cal. Stats. 1907 c. 97 that

an action could be brought either under that section or

under Code Civ. Proc. $ 377, as the present action is.?°

Appellees argue, however, that Labor Code § 2803, limits

recovery to cases’ involving ‘‘want of ordinary care,’’ and

is a replacement, in 1937, of a statute, Civil Code § 1970,

which allowed recovery for ‘wrongful act, neglect or de-

fault.’’ This is said to indicate’a legislative policy against.

recovery, in a death case, for such torts as unseaworthi-

ness, where no negligence need “be shown. A similar argu-.

ment is made based upon the adoption by the California

legislature in 1959 of sections 600-772 of the Harbors and -

Navigation Code, which deal with registration and opera-

_ 18In California; the granting of a hearing by the Supreme Court

vacates and sets at large the opinion of the District Court of Ap-

peal. That opinion is then no more authoritative than a brief

by its author. Knouse v. Nimocks, 1937, 8 Cal.2d 482, 66 P.2d 438;

In re Kent’s Estate, 1936, 6 Cal.2d 154, 57 P.2d 901; Martin v.

Howe, 1922, 190 Cal. 187, 211 Pac. 453. ;

19 Action by personal representative of deceased employee. When

‘death, whether instantaneous or otherwise, results from an injury

to'an employee caused by the want of ordinary or reasonable care

of an employer or of any officer, agent, a servant of the employer,

the personal representative of such employee shall have a right of

action therefor against, such employer, and may recover damages

in respect thereof, for and on behalf of the widow, children,

- dependent parents, and dependent brothers and sisters, in order

of precedence. as stated, but no more than one action shall be

brought for such recovery.” 4 :

20Gonsalves v. Petaluma & Santa Rosa Ry., 1916, 173 Cal. 264,

159 Pae. 724.

. bd

“pe = Mp ail 23 & .

a nn a ee

xii. : _

4 ; |

tion of boats on California waters. Appellees point out

that section’ 661, as amended in 1961, imposes liability for

negligent operation, but that no section sprovides,liability

for unseaworthiness. It is. argued that this indicates a

‘California legislative policy against such a cause of action. -

Section 661, however, creates an imputed liability of an

“

owner for the negligence of one who operates a boat with

the -owner ’S perntission. It also provides: ‘‘Nothing con-

’ tained in this chapter shall -be ‘construed to relieve any

person from any liability which he would otherwise have.

npn ?? This could include liability for unseaworthiness,

' devect hiability of an owner. These statutes, as an indica-

tion of legislative intent regarding unseaworthiness and

Code Civ. Proc. g 3h, are, to nf the least, ears ane

unpersuasive. Pi

oe

We think that the California: statute does lesa. a

_ eause of action for unseaworthiness. In the first place, we

“are not persuaded that. the California Supreme Court

would confine the statute’s- operation to causes of action —

with which the legislature was acquainted in 1872, in spite

of the language that we have quoted from the Buckley

‘ case, supra, n, 12. That case involved a negligent tort, and

merely held that contributory negligence. is a defense to

. such. an action, although the wrongful death statute did

not mention any defenses. |

‘In the second place,. the idea of ‘tort liability without

‘‘fault’’ or ““negligence’’ was not unheard of in 1872,

although _ it has since expanded considerably. The .

Buckley case spoke of construing the act in the light, of ,

contemporaneous (1872) construction of Lord Campbell’s -

Act. Thus the. California Supreme Court- had supported

liability, where no negligence was shown, in the case of

attack by a known vicious dog,”! or by a known ‘vicious

cow.”? In 1886, it held that defendants were liable for

damages resulting from blasting on a city lot, damages

whith ‘‘no care or skill in so doing can excuse.’ We '

"have no reason to think that these cases would have been

_ decided differently if they had arisen before 1872. The

famous case of Rylands v. Fletcher, 1868, L.R. 3-H.L. 330,

affirming Fletcher v. Rylands, 1866, L.R. 1 Exch. 265, had

_ been decided before the California wrongful’ death statute

-- was enacted. It has since- been - followed by California

courts. Again, we have no reason to suppose that the

results would have: been different if the cases had arisen

earlier. Indeed, as Prosser points out, a number of Amer- -

ican courts followed R ylands v. Fletcher shortly after~it

was decided.2® Moreover, in 1872 the notion that there

_ Should be no liability without fault was still developing,

_ and the earlier view, that the court ‘‘was not concerned

primarily with the. moral responsibility or ‘fault’ of the —

wrongdoer”’ was still somewhat i in. vogue.”®. gs

In ‘the third place, while no court has” followed. the

dictum 4 in Burke v. Arcata & Mad River R. R., supra, that

21Wilkinson v. Parrott, 1867, 32 Cal 102; Laverone v. Mangianto,

£4871, 41 Cal. 138.

220f. Ficken v. Jones, 1865, 28 Cal. 618; Karr v. Parks, 1870,

" 40 Cal. 188.

GO etree

:

23(/olton v. Onderdonk, 1886, 69 Cal. 155, 10 Pac. 395. See also

Munro v. Pacific Coast Dredging & Rec. Co., supra, n. 3, 84 Cal.

at 519, 7A Pac. at 304.

: 24Luthringer wv. Mooré, 1948, 31 Cal.2d 489, 190 P24 1; ‘Gin

v. General Petroleum Corp., 1928, 205 Cal.- 328, 270 Pac. 952;

Miles v. A. Arena & Co., 1937, 23 Cal. App.2d 680, 73 P-2d 1260;

Kall v. ‘Carruthers, 1922, 59 Cal. App. 555, 211 Pac. ak

25Prosser, op. eit. n. 17, at -p. 523.

_ 267d, at 506.

xiv

the act causing death must be wilful or negligent, other

California cases have given words identical to those of

the wrongful death statute a broader meaning. -Cal. Code

of Civ.*Proce. § 340, subd. 3 establishes a one year limita-

tion for the filing of an action ‘‘for injury to or for the .

death of one caused by the wrongful act or neglect of |

another.’’ The causation language is identical to that of

— section 377. Rubino v. Utah Canning Co., 1954,°123 Cal.

‘App.2d 18, 266 P.2d 163,; was an action for personal.

injuries, based upon breach of the implied warranty of

fitness of canned. food. It was claimed that the two year

statute of limitations, Cal. Code ‘Civ. Proc. § 339, dealing

with. breach -of contract, was applicable. The court, how-

ever, held that section 340, subd. 3 was applicable, holding

that defendant’s act was ‘‘wrongful’’ within thé meaning

of the statute, whether it was considered a breach of

warranty or a tort (123 Cal.App.2d at 23). |

This court reached the same conclusion in a California

wrongful déath case, arising from the’consumption of |

contaminated food.?7 Zellmer v. Acme. Brewing Co., 9 Cir. a

1950, 184 F.2d 940. There we said:

_ **However, appellant argues that, unlike an

.338(2), section 340(3) is not inclusive of all actions:

for injuries to the person but#only,of such actions as

concern injuries caused intentionally or through negli-

gence and hence that § 340(3) is not applicable to the

27It is now well established in California that the so-called

breach of warranty of fitness of” food is really a tort, for which

a species of strict liability is imposed. See Klein v. Duchess

Sandwich Co., 1939, 14 Cal.2d 272, 280, 93 P.2d 799, 803; Green-

man v. Yuba ’ Power Prods., Inc., 1962, 59 Cal.2d 57, 62,. 97 Cal.

Rptr. 697, 700; Vandermark v. Ford Motor Co., 1964, 61 Cal.2d

256, 262, 37 Cal. Rptr. 896, (899.

. online liability, regardless of fault, of the manu-

facturer of unfit foodstuffs.’’ .

“Assuming that the manufacturer is absolutely: liable,

we believe that the California courts have helde(indi-

rectly). that an action to enforce an absolute liability

for personal injuries is subject to section three hun-

_dred forty’s time limitation. The California District

Court of Appeal in Huntly v. Zurich General Acc. &

Inab. Ins. Co., 1929, 100 Cal. App? 201, 212, 280 P.

163, 168, declared that ‘by the amendment to subdivi-

sion 3 of section 340 [in 1905] introducing the clause

“or for injury to or, the death, of one. caused by the

wrongful act or neglect of another,” it-was intended

to. embrace therein all infringements: of personal .

rights as distinguished from property rights.’ And |

Harp v. Ferrell, 1931, 115 Cal.App. 160, 300 P. 978, is

in accord with the holding in the ‘Huntly case. Such _

interpretation of the terms ‘wrongful act ‘or neglect

of another’ accords with the interpretation elsewhere

that such words are: sufficiently broad to embrace |

every degree of tort that can be committed against

the person (including, we believe, that for which the’

tort-feasor is absolutely liable regardless of fault or’

negligence).”’ (184 F.2d at 944-45.) _

If, as thése cases indicate, the words ‘‘wrongful act or .

neglect’? apply to actions, including wrongful death -

actions, based upon Strict liability, for limitation purposes

when used in section 340, subd. 3, we pérceive no reason

why they do not also apply for creation yarpoees,; when

“used in section 377 of the same code. ;

In the fourth place, as the California cases éiing with.

liability to consumérs for injuries caused by defective

products, n. 27, supra, show, the California ‘Supreme

- xvi

o)

Court does not hesitate to modify old theories of liability ey

or to develop new ones as it believes that modern condi-

tions require. We cannot believe that, it would . refuse to

allow suits under the wrongful death, statute based” on -

‘such new. .theories. Why, then, would it refuse to permit

this suit, based upon unseaworthiness? It is a much older .

doctrine than the current California” consumer products

liability doctrine. - |

Finally, there are many cases in which the wrongful

death statutes ‘of other states have been held to grant or

preserve a cause of action based upon unseaworthiness.”®

There are differences in’ the language of the statutes

involved, -but at least in some cases the differences do not .

seem to be controlling. Thus in Skovgaard v. The Twngus,

supra, n. 28, the Fourth Circuit was of the view that un-

seaworthiness was a *‘wrongful.act.’’ The statute there’.

involved covered ‘‘wrongful act, neglect or default, 2 but

the court did not rely upon the word ‘‘default.’’ (See 952

F.2d at 17.) Similarly, in Halecki v. United N.Y. € NJ.

’ Sandy Hook Pilots Assn., supra, n.- 27, the Second Circuit,

construing the same statute, was of the opinion that ‘‘neg-

28Anthony v. International Paper Co., 4 Cir., 1961, 289 F.2d

574 (South Carolina law) ; Union Carbide Corp. v. Goett, 4 Cir.,

1960, 278 F.2d 319 (West Virginia law) ; Holley v. The Manfred

Stansfield, 4 Cir., 1959, 269 F.2d 317 (Virginia law) ; Halecki v.

‘United N.Y. GN. J. Sands y Hook ‘Pilots Assn., 2 Cir., 1958, 251 -

F.2d 708, affirmed on this ground, 358 U.S. 613 (New Jersey law) ; ;

Skovgaard v. The~Tungus, 3 Cir., 1957, 252. F.2d 14, aff'd 358

“U.S. 588 (same); State ex rel. Smith v. A/S. Nabella, D. Md.,

1959, 176 ¥. Supp. 668 (Maryland law). Contra: Emerson v.

Holloway Concrete Prods. Co., 5 Cir., 1960, -282 F.2d 271 (Florida

law); Lee v. Pure Oil Co., 6 Cir., 1955, 218 F.2d 711 (Tennessee

law) ; Graham v. A. Lusi, Ltd., 5 Cir,, 1953, 206 F.2d 223 (Florida

law) ; Babin v. Lykes Bros., SS. Co., La. Ct. App., 1957, 94 So.2d -

715 (Louisiana law).

lect’’ as well as “défault” eo covers breach ‘of the warranty |

of unseaworthiness. (251 F.2d at 712) |

At the trial of the negligence cone in the present case,

the jury returned a special verdict in which it found that

Curry, the decedent, had been contributorily negligent.

Appellees assert that, assuming that the California

Statute provides a cause of action for. unseaworthiness,

contributory negligence 6f the decedent is a defense, and j

that, because of this jury finding, the judgment should be

affirmed. We think not. °

This, too, is &h open question in California. Buckley, v.

Chadwick, supra, n. 12, does hold that under the Cali-

- fornia statute contributory negligence is a defense to an.

- action based upon negligence. Certain of the language of

the opinion can be taken as indicating that. contributory

" negligence is a defense to.any action under the statute.

“We do not think the California courts would so hold.

The general rule is that contributory negligence is a

defense only to actions grounded on negligence and the

California courts apply this principle.” Thus, they have

held that contributory negligence is not a defense to an

~ intentional tort.2”'There is no doubt that Code Civ. Proc.

§ 377 gives a cause of action for death caused by a wilful

- tort. We cannot believe that the California courts v would

' 29See Kassouf v. in Bros. Inc., 1962, 209 Cal.App.2d 568, 572,

26 Cal. Rptr, 276, 278.

_ 0Security-First Nat. Bank v. Earp, 1942, 19 Cal.2d 774, 122

‘P.2d 900 (fraud) ; Seeger v. Odell, 1941, 18 Cal. 2d 409, 115 P.2d -

wet Saag Bt ; Villines v. Tomerlin, 1962, 206 Cal. App.2d 448, 23,

Cal. “+ 617 (assault and battery) ; Lowry v. Standard Oil Co,

BB Cal.App.2d 1, 146 P.2d 57 (assault); Lovett v. Hitchcock,

‘er 192 Cal. App.2a 806, 14 Cal.Rptr. 117 (wilful and wanton

misconduct).

xviii

_ read Buckley v. Chadwick, supra, n. 12, as permitting,

- much less requiring, the defense of contributory mnegli-

gence in such a* case. Similarily; the California courts

have held that contributory negligence is not a defense jn

‘certain ‘types of actions bottomed upon strict liability.*!

We do not think that the court would have applied a dif-

- ferent rule if the injured party had died and. the action

had been brought under the wrongful death statute. We

think that the California courts, in such a case, would |

‘sustain only such defenses. as are appropriate to the

_ particular type ‘of liability asserted. |

The federal rule in’ unseaworthiness. cases is that con-

tributory negligence is not a complete bar, but only serves

to “mitigate damages. 82 That is the extent to which it is

‘ appropriate’ to the liability here asserted. We think that

the California courts would so hold. We are strengthened

in that belief by the California courts’ wholehearted

acceptance. of the federal rules. of law as the measure of

their duties when that‘ law controls their decisions.*? We

-agree with appellees that the cited cases are not directly

in point because they deal with federal causes- of action

while here we: deal. with a state cause of action. Never-

theless, as we have held above, while the wrongful death

act creates the cause of action, it uses the federal law as

its basis. We think that the California courts would also

-, 81Kassouf:v. Lee Bros. Inc., supra, n. 28. (injury’ caused by

eating poisonous food) ; Luthringer v. Moore, supra, n. 23 (injury

caused by defendants’ fumigation with hydrocyanic acid gas).

32Pope & Talbot Inc. v. Hawn, 1953, 346 U.S. 406, 408-10.

83Rouchleau’ v. Silva, | 1950, 35 Cal.2d 355, 358, 217 P.2d 929,

930-31; Intagliata v. Shipowners & Merchants Téwboat Co., 1945,

26 Cal. 2d 365, 370, 375, 159 P.2d 1, 5, 8; O’Hey v. Matson Nav.

Co., 1955, 135 Cal. App.2d 819, 827, 288 P.2d 81, 85.

accept that law as it applies to the defense of contributory ~

negligence in an unseaworthiness case. .

We are further strengthened in our belief by the rea-

soning in the opinions of certain of the federal courts of

* appeals that have passed ‘upon the question in recent

cases.* | ae Poe

.The cases on which appellees rely do not convince us.

Those dealing with New York law* are not in point be-

‘cause that law then provided ‘‘On the trial of any action

to recover damages for causing death, contributory negli-

gence of the person killed shall be a defense... . .”

(§841-b, N.Y. Code of Civil Procedure) In one of the other

cases, the nature of the cause of action is not stated;%¢

another involves a- statute that has been held. by state

courts not to confer a cause of action for unseaworthi-

ness.*7 In all of the others, the cause of action was for

negligence, not unseaworthiness.** Negligence is an estab-

‘lished concept of the common law, and it is not surprising

_ por aa : :

34See“Halecki v. United N.Y. & N.J. Sandy Hook Pilots Assn.,

supra, n. 27; Holley v. The Manfred Stansfield, supra,-n. 27.

350’Brien v. Inckenbach 8.8. Co., 2 Cir., 1923, 293 F. 170, 175,

179-80; Groonstad v, Robins Dry Dock & Repair Co., 1923, 236

N.Y. 52,139 NE. %77. ©

, 36H7ill v. Waterman S.S. Corp., 3 Cir., 1958, 251. F.2d 655 (Pa.

aw). | ; pes

87Graham v. A. Lusi, Ltd., 5 Cir., 1953, 206: F.2d 223 (Fla. law).

_ _ 88Klingseisen v.-Co8tanzo Transp. Co., 3 Cir., 1939, 101 F.2d

902 (Pa. law)-; Curtis v. A. Garcia y Cia., 3 Cir., 1957, 241 F.2d

30 (Pa. law) ; Mooney v..Carter, 5 Cir., 1907, 152 Fed. 147 (Ala.

law); Quinette v. Bisso, 5 Cir., 1905, 136 Fed. 825 (La. law); -

Byrd v. Napoleon Ave. Ferry Co., E.D.La., 1954, 125 F.Supp. 573, -

* aff'd, 5/Cir., 1955, 227 F.2d 958 (La. law); Hartford Acc. &

_ Indem/Co. v. Gulf Refiting Co., 5 Cir., 1956, 230 F.2d 346 (La.

law); Monongahela Rwer Consol. Coal & Coke Co. v. Schinnerer,

6 Cir., 1912, 196 Fed. 375 (Ark. law); Feige v. Hurley 6 Cir.,

1937, 89 F.2d 575 (Ky. law); Niepert v. Cleveland Electric

. ©

Pe ae ati a hats Ele at ns ol

that state. courts apply the common law defense of con-

tributory negligence in such cases. Unseaworthiness, on

the other hand; is an admiralty concept, and it seems to

us that, once a state applies its wrongful death statute -to

such’a cause of action, it is probable that it will also apply

the admiralty concept as fo ae defense of. ny

negligence.

The judgment is reversed and the oe is remanded

for further proceedings not inconsistent with this opinion.

a

ihe Maha ty

2 f < rn

>

oe

/

2 af

- Iluminating Co., 6 Cir., 1957, 241 F 2d 916 (Ohio law) ; Comartie .

' * y. Stoye, 1927, 194 N.C. 663, 140 S.E. 612 (N.C. law); Roswall

v. Grays Harbor. Stevedore Co., y 6, 138 Wash. 390, 244 P. 723

(Wash. law). :

. .

ee me nnee neuter .

°

United States Court of Appeals

for the Ninth‘ Circuit

No. 20,182: |

- . . 5 j

Madeline Curry, Ete., : :

: Appellant,

ae vs. ) > :

Fred Olsen Line, Ete.,

a si Appellee..- | it

—

a JUDGMENT

APPEAL from the United States District Court for the

Northern Distri¢t of California, Southern Division. .

-THIS CAUSE came on to be heard on the Transcript

of the Record from the. United States District Court for

the Northern District of California, _ Southern Division,

and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that. the judgment of.

the said Distritt Court in this Cause be, ‘and hereby is

reversed at this cause. be and hereby is remanded

to the said District Court for further. proceedings not

inconsistent with the opinion of this Court, with costs in

this. court in favor of the appellant and against the |

appellee. . |

COSTS: eh, ; ae

Docket Fee: $25.00

Repro. costs: . . - 11.08 ven

Total: §«§—S=—~*«&8G.O

Filed and entered October 10, 1966.

‘