Petition for Writ of Certiorari — Mayer v. Cornell University

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9

61959 APR 8197

OFFICGyQF, FHE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

MARGARET MAYER, individually and as

Executrix of the ESTATE OF

JAMES E. MAYER, Deceased, Petitioner,

Vv.

CORNELL UNIVERSITY

AND LAURA BROWN, Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Second Circuit

RAYMOND M. SCHLATHER,

Counsel of Record

LoPINTO, SCHLATHER,

SOLOMON & SALK

200 East Buffalo Street

P.O. Box 353

Ithaca, New York 14850

(607) 273-2202

—— ee - cam

wats RI TE “

TNE Re REN er a SASABED, Se iS 6 ame tS Deine Sin awl ait

QUESTIONS PRESENTED

I. Whether admiralty jurisdiction

under the Death on the High Seas Act

(DOHSA) requires a nexus to a traditional

maritime activity as well as a marine

locus.

II. Whether DOHSA or the general

maritime law precludes application of a

state survival statute, especially when

there otherwise is diversity jurisdiction.

TABLE OF CONTENTS

Page

QUESTIONS pe iti: py (Pe i

TABLE OF AUTHORITIES eeeeeeeseeeeesee¢ee iv

OPINIONS BELOW. eeeeseeseeo@e2qgeeseeeeeseeeneseenees l

JURISDICTION. eeeeeeee*neeeeseeeneseeeeeneee 2

CONSTITUTIONAL AND STATUTORY |

PROVISIONS re i I eee ee 2

STATE 60.6 66 6:0 0:o eka be WHS 0 URS cows ode 3

A. Factual Background.......... 3

B. The Proceedings Below....... 5

REASONS FOR GRANTING THE PETITION..... 7

I. The Court of Appeals Directly

Conflicts With the Third and |

Eleventh Circuits Regarding |

Whether Admiralty Jurisdiction |

Under DOHSA Solely Depends

Upon the “Locality” Rule, or |

Whether a Court Must Also Find |

a Significant Relationship to

Traditional Marine Activity.. 8

It. The Court of Appeals’ Decision

Conflicts with This Court’s

Decision in Rodrigue v. Aetna

Casualty and Surety Co...... 14

III. This Case Involves An Important |

Question of Federal Law

Concerning the Purpose and Scope

ii

IV.

vi.

of Admiralty Jurisdiction and

the Extent to Which This Court

May Remedy Anachronisms in

Congressional Legislation... 15

The Court of Appeals

Misinterprets and Misapplies the

Maritime Nexus Test As Developed

by This Court in Sisson v. Ruby,

by Focusing on a Non-Defendant’s

Maritime Activities......... 18

The Court of Appeals Directly

Conflicts With the Position of

the Third Circuit Regarding the

Availability of State Law

Survival Actions....cccceces 20

The Decision of the Court of

Appeals That the Development of

a General Maritime Survival

Action Precludes State Survival

Actions Conflicts With the

Decisions of This Court.... 23

tit. Cagis da ced clddleiaédectaeas 30

iii

Ne ee ee

TABLE OF AUTHORITIES

CASES Page

Atlantic & Gulf Stevedores,

369 U.S. 355 (1962) wccccccccccccccedsy ad

Azzopardi v. Ocean Drilling &

i -, 742 F.2d 890

Exploration Co.

(5th Cir. 1984) ccccvcccccccccccscccccceal

Baker v. Bell Helicopter/Textron, Inc.,

907 F.Supp. 1007 (N.D.Tex 1995).......13

Barbe v. D ond, 507 F.2d 794

(lst Cir. 1974) cccccccccccscccscccccceesl

Brons v. ##ech Aircraft Corp.,

627 F.Supp. 230 (S.D.Fla. 1985).......13

Dugas v. National Aircraft Co.,

438 #.24 1386 (3rd Cir. 1971). ccccccee’dd

East River S.S. Corp. v. Transamerica

Delaval, 476 U.8-< 858 (1986) .ccccccccell

Executive Jet Aviation, Inc. v. City

of Cleveland, 409 U.S. 249

(1972) cccccccccccccsccccccccccce o ePassim

Favalaro v. S/S Golden Gate,

687 F.Supp. 475 (N.D.Cal. 1987) w.ccccecdl

Fitzgerald v. United States Lines Co.,

374 U.S. 16 (1963) wccccccccccccccceddayg ad

Friedman v Mitsubishi Aircraft

International, Inc., 678 F.Supp. 1064

(S.DoN.Y.19BS) .ccccccccccccccccccccedsil

iv

TR a TR

—

Grubart, Inc. v. Great L.D.& D. Co.,

513 U.S. 527 1EOUO)S od cd doce cee dicdnseoe2O

Hayden v. Krusling, 531 F.Supp. 468

Ce WaMe £00E) 5006s Seek deeveHoesésecel3

Howard v. Crystal Cruises, Inc.,

41 -97.30 527 (Sth Cine. 1996) wb ciccecececd

In re Air Crash Disaster Near Honolulu,

Hawaii, 792 F.Supp. 1541

EP re rrr 2 |

In re Korean Air Lines Disaster of

Sept. 1, 1983, 935 F.Supp. 10

(DeDOS c BROS) 80 Se ce BRi adds. o0 00 ves s%0629

Kunreuther v. Outboard Marine Corp.,

715 F.Supp. 633 (E.D.Pa. 1989),

modified, 749 F.Supp. 658 (1990),

rev’d and withdrawn, 757 F.Supp. 633

(2992) 0.0 eed cine ekavenebe ces 0b'00005,11

Kuntz v. Windjammer "Barefoot" Cruises,

Ltd., 573 F.Supp. 1277 (W.D.Pa. 1983),

aff’d, 738 F.2d 423 (3rd Cir. 1984),

cert. denied, 469 U.S. 858 (1984)

Coe eer ere cecccccccccccccccccccscedyl2,23

McAleer v. Smith, 791 F.Supp. 923

Sees BOPEO cbse deSsPhbcccosedodsbstdecdd

Miles v. Apex Marine Corp., 489 U.S. 19

CRIMES 6 ce BESS 0 Lb be BK OK bo 0.60 cvws 0016; 21

Miller v. United States, 725 F.2d 1311

(llth Cir. 1984), cert. denied,

COP Dies GOs. CEPPE) Fete eenseecececeeS, 12

|

’

Corp. v. Higginbotham

436 U.S. 618 (1978) wcccccccccccesesecead

Vv

398 U.S. 417 (1970) .ceeceeeee22,24, 25,26

Moyer _v. Klosters Rederi, 645 F.Supp. 230

(S.D. Fla. 1986) .ccccccccccccccscccseveeid

e

477 U.S. 207 (1986) ccccccccccccscesedls23

a Vv P

893 F.Supp. 341 (D.N.J. 1995)....++13,23

Vv , 892 F.Supp. 60

(D.Conn. 1995) cccccccccccccccccccccseeds

Preston v. Frantz, 11 F.3d 357 (2nd Cir.

lL99DS) cccccccccccsesesocsecccsvessese0,2e

Rodrigue v. Aetna Casualty and Surety Co.,

395 U.S. 352 (1969) .ccccccccccccccccced

Sisson v. Ruby, 497 U.S. 358 (1990).....19

Wah om v w ies,

Ltd., 4 F.3d 1084 (2d Cir. 1993)....6,22

Yamaha Motor Corp. v. Calhoun,

516 U.S. _, 116 S.Ct. 619 (1996)

COO C Crore eee eee oeeSCoeeeHosesagarseZOzal

Ziche Vv. i i ae

516 U.S. _, 116 S.Ct. 629 (1996)..28,29

CONSTITUTIONAL PROVISIONS Page

U.S. CONST. ’ amend. Vade e*eeee3ee@ee@ee#eee€?€es8e oa

vi

STATUTES

46 U.S.C. § 761 et BEG--eeeseees passim

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

MARGARET MAYER, individually and as

Executrix of the ESTATE OF

JAMES E. MAYER, Deceased, Petitioner,

Vv.

CORNELL UNIVERSITY

AND LAURA BROWN, Respondents.

— me wo ~~ ae ee ee ee ee ee

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Margaret Mayer, individually and as

Executrix of the Estate of James E. Mayer,

deceased, respectfully petitions for a

writ of certiorari to review the judgment

of the United States Court of Appeals for

the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals

(App. 1-21) is not reported. One opinion

of the district court (App. 49-76) is

reported at 909 F.Supp. 81; the others

(App. 22-34; App 38-40; App. 41-8; App.

77-200) are unreported.

*

——

be ay rae v -' ~ “~ 7, i al » ONS h

1 i are ere hu Bite 7 ree ee

JURISDICTION

The court of appeals entered its

judgment on January 8, 1997 (App. 1). The

jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 761 of the Death on the High

Seas Act ("DOHSA"), 46 U.S.C § 761,

provides:

Whenever the death of a person shall

be caused by wrongful act, neglect,

or default occurring on the high seas

beyond a marine league from the shore

of any State, or the District of

Columbia, or the Territories or

dependencies of the United States,

the personal representative of the

decedent may maintain a suit for

damages in the district courts of the

United States, in admiralty, for the

exclusive benefit of the decedent’s

wife, husband, parent, child, or

dependent relative against the

vessel, person, or corporation which

would have been liable if death had

not ensued.

The Seventh Amendment to the

Constitution of the United States, U.S.

CONST., amend. VII, provides in pertinent

part that "[{ijn suits at common law * * *

the right of trial by jury shall be

preserved."

STATEMENT

A. Factual Background

James E. Mayer died on March 14, 1990

while snorkeling off the southwestern

coast of Costa Rica. He and his wife,

petitioner Margaret Mayer, were on a land-

based birdwatching tour purchased through

the Cornell Laboratory of Ornithology and

operated by David Blanton, d/b/a Voyagers

International. Laura Brown, an employee

of the Laboratory, accompanied the tour to

assist Voyagers’ tour leader, Ken

Rosenberg. The Marenco Biological Station

of Costa Rica, which has no affiliation

with Cornell University, conducted the

snorkeling excursion and owned = and

operated the boat which carried the

Cornell group to the snorkeling site.

The planned itinerary of the tour did

not include snorkeling at Marenco.

However, when the tour arrived at Marenco,

the Station invited the members of the

tour group to participate in an already-

scheduled snorkeling excursion.

Rosenberg, after consulting with Brown,

offered the group the opportunity to go

snorkeling. Neither Rosenberg nor Brown

made any inquiry into safety precautions,

or into the snorkeling experience and

ability of the tour members. Rosenberg

and Brown decided that he would stay on

the boat, and Brown would go into the

water with the snorkelers.

A Marenco employee offered

information concerning currents and

pointed out the general area for

snorkeling. As agreed, Brown went into

the water with the snorkelers, including

James Mayer, who was observed some time

later swimming alone toward the shore.

Upon Brown’s return to the boat some

fifteen minutes later, it was noticed that

James Mayer had disappeared. His body was

later found floating in the water near the

shore. Petitioner brought a diversity

action for, among other claims, negligence

resulting in wrongful death, including a

survival claim, in the United States

District Court for the Northern District

of New York on February 14, 1992.’

+ The defendants included Cornell,

Brown, Blanton d/b/a Voyagers, Rosenberg,

and Horizontes, a Costa Rican tour

operator. Petitioner entered into a

stipulation of settlement with Voyagers

and Rosenberg, and ae stipulation of

discontinuance with Horizontes; only

Cornell and Brown remained as defendants

when the case was tried. Petitioner and

>

B. The Proceedings Below

Upon Cornell and Brown’s motion to

dismiss or, in the alternative, for

summary judgment, the district court ruled

that petitioner’s wrongful death claim was

governed by DOHSA and her remaining

claims, by general maritime law. App. 28;

App. 36. The court, relying on Friedman

Vv

Inc., 678 F.Supp. 1064 (N.D.N.¥.1988) and

j gp 867

F.Supp 633 (E.D.Pa.1991), ruled that the

two-prong test for admiralty jurisdiction

laid out in iv t Aviati Cc.

v. City of Cleveland, 409 U.S. 249 (1972)

did not apply to actions under DOHSA,

holding that “the requirement of a

traditional maritime nexus is not a

prerequisite to the exercise of admiralty

jurisdiction." App. 27.

After petitioner filed an amended

complaint, Cornell and Brown again moved

for judgment on the pleadings or, in the

alternative, summary judgment. Although

the court granted the motion in part,

petitioner’s wrongful death and survival

claims remained. The court ruled that

her decedent were residents of

Pennsylvania; Cornell, Brown, and Voyagers

were residents of New York, and Rosenberg,

a resident of Louisiana.

5

DOHSA and the survival statute of New York

would govern her claims. App. 39.

On April 15, 1995, the district court

determined that the case would be tried to

a jury. In the court’s view, nothing in

DOHSA or the general federal maritime law

precluded petitioner’s state survival

claim, and when claims carrying the right

to a jury trial are joined with admiralty

claims, those claims may be tried before a

jury. App. 44. However, just prior to

December 4, 1995, the scheduled trial

date, the case was transferred to a

different judge, who heard argument on

Cornell and Brown’s belated motion for

reconsideration of the April 15th ruling.

The court granted the motion for

reconsideration. Relying, as it was

constrained to do, on the decisions of the

Court of Appeals for the Second Circuit in

Ww Vv Ww

Ltd., 4 F3d. 1084 (2d Cir. 1993) and in

Preston v Frantz, 11 F.3d 357 (2nd Cir.

1993), which had ruled that the existence

of a general maritime survival claim

necessarily precluded a state survival

action, the court concluded that both

petitioner’s wrongful death and survival

claims were claims in admiralty.

Accordingly, petitioner was not entitled

to a jury trial. App. 65-72.

TE eT ee ee

re ee eT Pe

Following the two-week trial, the

court directed the parties to submit post-

trial briefs addressing only the issue

whether Cornell and Brown owed a legal

duty to plaintiff or her decedent. On

April 16, 1996, the district court,

finding no duty, ordered judgment entered

in favor of the defendants. App. 200.

Petitioner appealed to the Court of

Appeals for the Second Circuit, which

affirmed the district court by summary

order. In that order, the court reaffirmed

its previous holding in Preston that the

development of a general federal maritime

survival action precluded state survival

claims. Regarding petitioner’s DOHSA

claim, the court of appeals stated that

the nexus requirement is a prerequisite

for admiralty jurisdiction only in the

absence of a statute to the contrary and

DOHSA was such a statute; and, in any

event, the requisite nexus existed here

because “the accident occurred in

navigable waters in the course of

activities connected with a maritime

commercial undertaking, ocean touring of

passengers." App. 20.

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals

conflicts with those of other circuits,

and of this Court, on two important

questions on which there has been a

proliferation of conflicting decisions:

(1) whether admiralty jurisdiction under

DOHSA requires a nexus to a traditional

maritime activity as well as a marine

locus; and (2) whether DOHSA or general

maritime law precludes application of a

state survival statute, especially where

there otherwise is diversity jurisdiction.

The need for this Court’s guidance here is

acute. The decision below is erroneous,

and the issues addressed are important,

recurrent, and involve important

principles of federal law.

I. THE COURT OF APPEALS DIRECTLY

CONFLICTS WITH THE THIRD AND ELEVENTH

CIRCUITS REGARDING WHETHER ADMIRALTY

JURISDICTION UNDER DOHSA SOLELY DEPENDS

UPON THE “LOCALITY” RULE, OR WHETHER A

COURT MUST ALSO FIND A SIGNIFICANT

RELATIONSHIP TO TRADITIONAL MARINE

ACTIVITY.

In x ive et, this Court

abandoned the traditional “locality of the

wrong" test for admiralty jurisdiction and

instead imposed a two-pronged query:

whether the incident took place in

navigable waters, and whether it bore a

relationship to traditional maritime

activity. In its construction of

Executive Jet, the decision below squarely

conflicts with that of the Third Circuit

8

in Kuntz v- Windjammer “Barefoot” Cruises,

Ltd., 573 F.Supp. 1277 (W.D.Pa.1983), affd

738 F.2d 423 (3rd Cir. 1984), cert.

denied, 469 U.S. 858 (1984), and with that

of the Eleventh Circuit in Miller v-

United States, 725 F.2d 1311 (llth Cir.

1984), cert. denied, 429 U.S. 821 (1984).

Each case involves a wrongful death

occurring more than a marine league from |

the United States shore, and each case

considers whether DOHSA claims require a

finding of a maritime nexus, or 4

significant relationship to traditional

maritime activity. By applying the

Executive Jet test to the DOHSA claims

before them, the Third and Eleventh

Circuits effectively hold that a claim

under DOHSA must satisfy the nexus text.

The court of appeals, however, by

summarily affirming the district court’s

decision, concludes that the nexus test

does not apply to DOHSA claims. The

conflict is compounded by the Ninth

Circuit’s determination that relies

exclusively on locality to confer

admiralty jurisdiction on DOHSA claims,

without even considering whether Executive

Jet’s maritime nexus requirements apply.

Howard v Crystal Cruises, Inc., 41 F.3d

527 (9th Cir. 1994). Executive Jet

states that its two-pronged test applies

in the absence of “legislation to the

contrary," and some courts have concluded,

without much examination of either

Executive Jet or DOHSA itself, that DOHSA

is such a statute.

The district court, in ruling that

Executive Jet exempts DOHSA claims from

the requirement of a traditional maritime

nexus, failed to recognize that the

holding of Executive Jet itself was

limited to aviation torts, and that the

case did not, in fact, involve a DOHSA

claim. Only after this Court had found a

maritime nexus for airplane crashes on the

high seas -- concluding that planes

carrying passengers over international

waters fulfill a function once solely

provided by ships -- did the Court append

the two footnotes to Executive Jet upon

which the district court here relied. In

the first, the Court commented that “under

the Death on the High Seas Act, a

wrongful-death action arising out of an

airplane crash on the high seas beyond a

marine league from the shore of a State

may clearly be brought in a federal

admiralty court." 409 U.S. at 271, n. 20.

In the second, the Court considered

domestic flights involving passage over

the high seas and commented, "“[t]Jo the

extent that the terms of the Death on the

High Seas Act become applicable to such

flights, that Act, of course, is

10

‘legislation to the contrary’." 409 U.S.

at 274, n. 26. But these comments are

predicated on Executive Jet’s finding of a

traditional marine nexus for passenger

flights over the high seas.

Moreover, the district court

overlooked that in Preston, the Second

Circuit itself cited with approval the

Eleventh Circuit’s: Miller opinion and,

after analyzing a helicopter crash on the

high seas, found sufficient nexus to

traditional maritime activity to support

admiralty jurisdiction under DOHSA.

Instead, the district court, without

analysis, simply adopted two

distinguishable district court cases that

are themselves analytically sparse.

The court in Friedman v. Mitsubishi

Aircraft International, Iinc., 678 F.Supp.

1064 (S.D.N.Y. 1988) concluded that the

Executive Jet test is not applicable to an

action brought under DOHSA simply by

stating conclusorily that DOHSA was one of

the statutes "to the contrary" that made

it unnecessary to engage in the Executive

Jet analysis, without discussing why this

might be so. Relying solely on Friedman,

the court in Kunreuther v Outboard Marine

Corp., 757 F.Supp. 341 (D.N.J. 1995)

reached the same conclusion.

In stark contrast, the Third and

Eleventh Circuits hold that DOHSA confers

11

admiralty jurisdiction only if the court

finds a nexus between the claim and

traditional maritime activity, relying on

this Court, rather than unsupported

district court decisions, for precedent.

In Miller, the Eleventh Circuit stated

that "[a]jny determination of whether a

tort is or is not within maritime

jurisdiction begins with the Supreme

Court’s test for admiralty’ torts,

enunciated in Executive Jet Aviation v.

City of Cleveland [citation omitted].”"

Miller, 725 F.2d at 1313. The Miller

court noted that Executive Jet required

more than a finding of maritime locality

to establish jurisdiction under DOHSA for

aviation tort cases. Because’ the

exclusive use of locality as the test for

admiralty jurisdiction presented serious

problems in cases not involving a

significant relationship to traditional

maritime cases, such as aviation and

swimming tort cases, the locality of the

wrong is not nearly as important as

whether the “wrong bears a significant

relationship to traditional maritime

activity" in such borderline cases. Id.

The Third Circuit summarily affirmed

without opinion the decision requiring a

DOHSA nexus determination in Kuntz v.

Windjammer “Barefoot” Cruises, Ltd., 573

F.Supp. 1277 (W.D.Pa. 1983), aff‘d 738

12

F.2d 423 (3rd Cir. 1984), involving a

DOHSA claim arising from a scuba-diving

accident on the high seas. The district

court concluded that, under Executive Jet,

DOHSA provided a basis for admiralty

jurisdiction "so long as there is a nexus

with traditional maritime activity and, as

here, a vessel on the high seas is

involved." Kuntz, 573 F.Supp. at 1280.

Other district courts conflict in the

interpretation and application of

Executive Jet, and in particular footnotes

20 and 26, to DOHSA claims. Some

mechanically apply DOHSA’s strict locality

rule without considering a maritime nexus

(see, Pierpont v. Barnes, 892 F.Supp. 60

[D.Conn. 1995]; Palischak v- Allied Signal

Aerospace Co., 893 F.Supp. 341 (D.N.J.-

1995]; Baker v. Bell Helicopter/Textron,

Inc., 907 F.Supp. 1007 [N.D.Tex. 1995].

Others hold that a significant

relationship to traditional maritime

activity must be found before actions may

be brought under DOHSA (see, Brons Vv:

j , 627 F.Supp. 230

Beech Aircraft Corp.

(S.D.Fla. 1985); Moyer _v Klosters Rederi,

645 F.Supp. 620 (S.D.Fla.1986]; Hayden v

Krusling, 531 F.Supp. 468 {[N.D.Fla.

1982]). The need for clarity and

uniformity is apparent, and this Court’s

guidance required.

13

It. THE COURT OF APPEALS’ DECISION

CONFLICTS WITH THIS COURT’ s DECISION IN

Surety Co., 395 U.S. 352 (1969), which

involved two deaths occurring on an

artificial drilling island located in the

high seas, this Court determined that the

wrongful death action was not governed by

DOHSA despite the location on the high

seas, as location alone "is not enough to

make [DOHSA] applicable." Rodrigue, 395

U.S. at 359. To supplement the location

rule, the Court attempted to find a

relation to traditional maritime activity

and found none, noting that the accident

“had no more connection with the ordinary

stuff of admiralty than do accidents on

piers.” 395 U.S. at 360. Focusing on the

importance of the defendant’s activities

in the nexus determination, Rodrigue

stated that where a defendant engages in

activities “not even suggestive of

maritime affairs," DOHSA does not apply.

395 U.S. at 360-361.

Moreover, Rodrigue states that DOHSA

“does not apply of its own force under

admiralty principles." 395 U.S. at 355.

In other words, a federal court cannot

establish admiralty jurisdiction merely by

finding that DOHSA’s locality rule has

been satisfied; a court must first

establish an independent basis for subject

14

matter jurisdiction in admiralty.

Nevertheless, directly conflicting with

Rodrigue, the court of appeals here

assumes, with no support other than its

idiosyncratic interpretation of Executive

Jet and two weak district court cases,

that any death on the high seas falls

under admiralty jurisdiction.

Itt. THIS CASE INVOLVES AN IMPORTANT

QUESTION OF FEDERAL LAW CONCERNING THE

PURPOSE AND SCOPE OF ADMIRALTY

JURISDICTION AND THE EXTENT TO WHICH THIS

COURT MAY REMEDY ANACHRONISMS IN

CONGRESSIONAL LEGISLATION

Congress enacted DOHSA in 1920 to

provide uniformity in the maritime laws by

creating an action for wrongful deaths

occurring on the high seas. Executive

Jet, 409 U.S. at 249. State wrongful

death actions at that time extended only

to territorial waters, and there was no

cause of action under federal admiralty

common law for deaths on the high seas.

The locality test incorporated without

discussion into DOHSA was at that time the

exclusive test for admiralty jurisdiction.

But then, and now, courts have questioned

the rationale for mechanical application

of the locality rule, especially when

faced with “borderline” claims involving a

marine locality but no connection with

15

——

Oe

either a water-borne vessel or traditional

maritime activities. 409 U.S. at 254-56.

Nothing in DOHSA’s’ legislative

history, or Congress’ intent at the time

it enacted DOHSA, or even in the language

of DOHSA itself, precludes a court today

from applying to DOHSA claims the nexus

test already required under’ general

federal admiralty law. Congress intended

to unify admiralty law when it enacted

DOHSA, filling a gap in the common law by

providing a wrongful death action where

none was available and enabling similarly

situated plaintiffs to be similarly

treated. As this Court has stated,

“(njothing in the [Death on the High Seas]

Act * * * could be read to preclude this

Court from exercising its admiralty power

to remedy nonuniformities that could not

have been anticipated when those statutes

were passed." Miles v. Apex Marine Corp.,

498 U.S. 19, 26-27 (1990).

The consequences of whether the law

of admiralty or state law is applied are

significant, in terms of available causes

of action, damages, jury trials and

procedure. Currently, the only factor

determining whether similarly situated

plaintiffs in DOHSA actions will

experience substantially different

judicial process is whether the case is

heard in admiralty or under state law.

16

Like the Second Circuit, courts adhering

strictly to DOHSA’s locality test apply

admiralty jurisdiction with all its

attendant consequences, even if the

incidents and defendants bear no

connection to traditional maritime

activity. Courts following the reasoning

of the Third and Eleventh Circuits apply

state law if they find ‘no connection with

traditional marine concepts.

This Court has not yet considered

whether Executive Jet’s nexus test extends

to non-maritime, non-aviation torts

occurring on the high seas. Although this

Court has commented that “admiralty

jurisdiction is expressly provided under

DOHSA because the accidental deaths

occurred beyond a marine league from

shore," it did so only after finding that

Executive Jet’s nexus requirement had been

satisfied. Offshore Logistic, Inc. v-

Tallentire, 477 U.S. 207, 218-219 (1986).

Similarly, in East River S-.S. Corp. v

Transamerica Delaval, 476 U.S. 858 (1986),

a case involving ships engaged in

traditional maritime commerce, this Court

noted that "it need not reach the question

whether a maritime nexus also must be

established when a tort occurs on the high

seas, but were there such a requirement,

it clearly was met here." 476 U.S. at

863-864. However, substantive decisions

17

regarding the extent oof admiralty

jurisdiction belong with this Court, not

with the divergent courts below.

IV. THE COURT OF APPEALS MISINTERPRETS

AND MISAPPLIES THE MARITIME NEXUS TEST AS

DEVELOPED BY THIS COURT IN

BY FOCUSING ON A NON-DEFENDANT’S MARITIME

ACTIVITIES.

The court of appeals commented that

even if a maritime nexus were required for

cases under DOHSA, DOHSA would still apply

to this case because "[t]jhe accident

occurred in navigable waters in the course

of activities connected with a maritime

commercial undertaking, ocean touring of

passengers." App. 20. This rationale

misstates the nature of the activities

giving rise to petitioner’s wrongful death

action, and flouts a line of this Court’s

cases that have further refined Executive

Jet’s test for maritime nexus.

Petitioner claims that her husband

died during the snorkeling activity as a

result of Cornell and Brown’s failure to

exercise a duty of care toward the tour

participants as, respectively, the tour

arranger and the tour assistant. These

defendants did not control the boat, did

not control the crew, and did not control

the snorkeling trip. In other words, the

charges leveled against the defendants,

and the defendants themselves, have no

18

connection with traditional maritime

activity.

In Sisson v Ruby, 497 U.S. 358

(1990), this Court refined the Executive

Jet test for admiralty jurisdiction.

First, a court must determine whether the

accident occurred on navigable water, and

second, whether the accident had a

connection with maritime activity. Under

this second inquiry, the court must first

assess the "general features of the type

of incident involved" to determine whether

the incident has "a potentially disruptive

impact on maritime commerce," and second,

the court must determine whether “the

general character" of the “activity giving

rise to the incident" shows a “substantial

relationship to traditional maritime

activity." 497 U.S. at 363-365.

Applying Sisson’s test to the facts

of this case, petitioner does not dispute

that the accident met the locality

requirements. But where, as here, the

accident involves recreational swimming in

sheltered coastal waters far from shipping

lanes, the potential for disruption is

minimal. The general character of the

activity is the recreational snorkeling of

land-based tour participants while under

the aegis of official tour personnel. The

duty of a land-based tour leader or

assistant toward tour participants has

19

nothing to do with traditional concepts of

maritime activity.

As this Court subsequently stated in

Grubart, Inc. v. Great L.D. & D. Co., 513

U.S. 527 (1995), Sisson’s nexus test turns

on “the comparison of traditional maritime

activity to the arguably maritime

character of the tortfeasor’s activity in

a given case * * *," The substantial

relationship test is satisfied when at

least one alleged wrongdoer is engaged in

traditional maritime activity, and that

maritime activity is alleged to be the

proximate cause of the accident. The

inquiry into the general character of the

activity focuses on the defendants’ roles

in the incident and on the _ specific

charges brought against them, not on the

maritime activities of non-defendants.

Where, as here, the defendants were not

engaged in traditional maritime activity,

there is no basis for admiralty

jurisdiction.

STATE SURVIVAL ACTIONS

V. THE COURT OF APPEALS DIRECTLY

CONFLICTS WITH THE POSITION OF THE THIRD

CIRCUIT REGARDING THE AVAILABILITY OF

STATE LAW SURVIVAL ACTIONS

The Court of Appeals for the Second

Circuit here sustained the ruling of the

district court that the availablity of a

20

maritime survival action precludes a

survival claim brought under aée state

survival statute.’ In sustaining that

ruling, the court of appeals is in

conflict with the position taken by the

Third Circuit, and with the rationale of

this Court’s recent ruling in Yamaha Motor

Corp., U.S.A-, ve Calhoun, __ U.S. __, 116

S.Ct. 619 (1996). Further, it ignores the

. The circuits and districts have

concluded, although not unanimously, that

by analogy to Mora , anfra, general

maritime law also provides a general

maritime survival action, in which non-

pecuniary damages may supplement DOHSA

recovery. Azzopardi _v Ocean Drilling &

xplorati o., 742 F.2d 890 (5th Cir.

1984); Barbe v Drummond, 507 F.2d 794 (lst

Cir. 1974); McAleer v Smith, 791 F.Supp.

923 (D.R.I. 1992); Favaloro v_ S/S Golden

Gate, 687 #?.Supp 475 (N.D.Cal. 1987) (all

ruling that DOHSA does not preempt general

maritime law survival actions); cf., In re

Air Crash Disaster Near Honolulu, Hawaii,

792 F.Supp. 1541 (N.D.Cal. 1990) (DOHSA

preempts general maritime survival action

for nonpecuniary damages. ) In Miles v.

Apex Marine Corp., 498 U.S. 19 (1990),

this Court discussed, but declined to

decide, whether there existed a general

maritime survival action. Id. at 33-34.

21

separate Seventh Amendment basis for

jurisdiction of the state claim arising

out of the diversity of the parties, which

guarantees the preservation of the common

law claims. Fitzgerald v. United States

Lines Co., 374 U.S. 16 (1963); Atlantic &

Gulf Stevedores, 369 U.S. 355 (1962).

In Wahlstrom v. Kawasaki Heavy

Industries, Ltd., 4 F.3d 1084 (2d

Cir.1993), cert. denied, 510 U.S. __, 114

S.Ct. 317 (1990), the court of appeals had

previously held that this Court’s creation

in Moragne v. States Marine Lines, Inc.,

398 U.S. 417 (1970), of a federal wrongful

death action under general maritime law

precluded resort to state wrongful death

statutes in marine death claims.

Subsequently, in Preston v. Frantz, 11

F.3d 357 (2d Cir.1993), the court of

appeals further concluded that’ the

recognition and development of a similar

general marine survival action by many of

the federal courts similarly precludes

resort to state survival statutes in

marine death claims. Accordingly, the

district court here ruled, and the court

of appeals agreed, that any survival claim

brought by the petitioner was of necessity

a claim under the general maritime law.

The Third Circuit, however, has long

taken the position that DOHSA may be

supplemented by a survival action brought

22

under state law. Shortly after Moragne,

the Third Circuit decided in Dugas v.

ati Aircraft C , 438 F.2d 1386

(1971) that, where DOHSA applies, that

statute provides the sole basis for

recovery for wrongful death; however,

DOHSA does not preempt "the separate and

distinct remedy [for pre-death pain and

suffering] encompassed in state survival

statutes.” The Third Circuit reaffirmed

its position in Kuntz v. Windjammer

"Barefoot" Cruises, 738 F.2d 423 (1984),

cert. denied, 469 U.S. 858 (1984). See

also, Palischak v. ied Signal space

Co., 893 F.Supp. 341 (D.N.J. 1995).

VI. THE DECISION OF THE COURT OF APPEALS

THAT THE DEVELOPMENT OF A GENERAL MARITIME

SURVIVAL ACTION PRECLUDES STATE SURVIVAL

ACTIONS IS IN CONFLICT WITH THE DECISIONS

OF THIS COURT.

The ruling of the Second Circuit here

finds no support in this Court’s reasoning

and decisions. This Court has settled

that DOHSA, by its terms, precludes

recovery of non-pecuniary damages for

wrongful death on the high seas. Mobil

Oil Corp. v. Higginbotham, 436 U.S. 618

(1978); Offshore Logistics, Inc. 4

Tallentire, 477 U.S. 207 (1986).

Higginbotham and Tallentire, however, did

not address the issue whether a claim

under DOHSA could be accompanied by a

23

survival action for pre-death pain and

suffering, and at the time this case was

before the district court, no clear

federal rule had emerged on the extent to

which state survival statutes apply under

either DOHSA or under the general federal

maritime wrongful death action.

The sole authority and rationale

provided by the court of appeals is this

Court’s concern in Moragne with what the

court of appeals characterizes as “the

tensions and discrepancies" resulting from

the application of state law. This

paxtial quotation, h zsever, misrepresents

the true concern of Moragne, which is not

for uniformity per se, but for the

"tensions and discrepancies that have

resulted from the necessity to accommodate

state remedial statutes to exclusively

maritime substantive concepts." Moragne,

398 U.S. at 401 (emphasis added).

Moragne was occasioned in part by the

emergence of strict liability for

unseaworthiness as a primary basis for

recovery for seafarers’ injury or death.

398 U.S. at 399. Because of the

difference between this strict liability

standard and the traditional negligence

standard for state wrongful death actions,

the breach of an identical duty could

ground liability on the high seas but not

within the territorial waters of a state

24

that did not recognize a claim of

unseaworthiness as a basis for tort

liability. This anomaly -- and

particularly because it involved the

“exclusively maritime substantive concept"

of unseaworthiness -- led to this Court’s

creation of a general maritime action for

wrongful death, where none had existed

before. 398 U.S. at 401.

In Yamaha Motor Corp. v- Calhoun, 516

U.S. _, 116 S.Ct. 619 (1996), which

concerned the application of state

remedies to the death of a nonseafarer in

territorial waters, the Court asked

whether the existence of a federal

maritime claim for wrongful death

precludes all other remedies for

nonseafarers. The Court noted that, prior

to Moragne, the federal courts of

admiralty “routinely applied state

wrongful death and survival statutes in

maritime accident cases," and queried

“whether Moragne should be read to stop

that practice." Yamaha, 116 S.Ct. at 624°

2 Although .Yamaha speaks almost

exclusively in terms of wrongful death

statutes, its rationale was meant to

include survival statutes as well.

"Throughout this opinion, for economy, we

use the term wrongful death remedies or

statutes to include survival statutes."

25

In short, although the seminal and

controlling case remains Moragne, the

issue as posed by the Court is “not what

Moragne added to the remedial arsenal in

maritime cases, but what, if anything, it

removed from admiralty’s stock." 116

S.Ct. at 625, n. 7.

Even before Yamaha, the cases

interpreting Moragne rejected the notion

that uniformity of law was the primary

goal in marine wrongful death cases.

Rather, as Moragne itself made clear, the

application of state remedies must be

rejected only if they impact exclusively

maritime substantive concepts, or are

inconsistent with substantive federal

policies. As the Court pointed out in

Moragne, Congress enacted DOHSA to provide

recovery only for deaths on the high seas

and did not extend it to territorial

waters, at least in part because at the

time of that enactment the state remedies

available for deaths in territorial waters

were probably more generous than those

provided by DOHSA. The divergent state

remedies for death in territorial waters

were not offensive to DOHSA because they

were in harmony with its policy of

providing recovery for all maritime

deaths. Moragne, 398 U.S. at 397-398.

Yamaha, 116 S.Ct. at 624, n. 3.

26

f

t

Yamaha reaffirmed the long-standing

view that variable state remedies are

acceptable if they are “compatible with

federal maritime interests," and noted

that any uniformity concerns presented by

the state remedies invoked in Yamaha were

"of a different order" from those that

compelled the Court’s decision in Moragne.

Yamaha, 116 S.Ct. at 626. An exception

lies, however, where Congress has enacted

a comprehensive recovery scheme, as it has

with DOHSA or the Jones Act. In those

cases, state remedies must gave way to the

recovery allowed by the statute. However,

because DOHSA, by its own terms, is

limited to the high seas, the

Congressional enactment does not preclude

the application of state statutes to

wrongful deaths in territorial waters.

But DOHSA is similarly limited by its

own terms to recovery for wrongful death.

Under the rationale of Yamaha, DOHSA

should not therefore preclude the

application of state survival statutes

that provide remedies for pre-death pain

and suffering, a cause of action as

separate and distinct from that for

wrongful death as the high seas are from

territorial waters.

Nor, under Yamaha, should these

remedies necessarily be displaced by the.

availability of a general maritime law

27

survival action, as Yamaha specifically

rejected the view that Moragne, in

creating a general maritime wrongful death

action, had created a "solitary federal

scheme" precluding the application of

state remedies. The court of appeals here

thus errs in failing to recognize that

Yamaha completely vitiates its holding in

Preston. If the general maritime survival

action invoked there by the court of

appeals is, as that court would have it,

similar to the general maritime wrongful

death action created by Moragne, it is

similarly subject to the rationale of

Yamaha.

One week after this Court rendered

its decision in Yamaha, it decided

Zicherman _v. Korean Air Lines Co., Ltd,

516 U.S. _, 116 S. Ct. 629 (1996). There

the Court held that DOHSA provided the

substantive law for the measure of damages

in an action under the Warsaw Convention

involving an airplane shot down over the

Sea of Japan, and therefore no recovery

could be had for non-pecuniary damages.

The Court reiterated the long-standing

rule of Higginbotham and Tallentire that

where DOHSA applies, neither state law nor

general maritime law can provide recovery.

However, the only question before the

Court in Zicherman was the recovery of

damages for wrongful death; the Court

28

expressly pointed out that it need not and

did not address the district court’s

allowance of pre-death pain and suffering

damages, or its grant of a jury trial,‘ as

Korean Air Lines in its petition for

certiorari had not raised those issues.

Zicherman, 116 S.Ct. at 636, n.4.

Nevertheless, at least one court, either

ignoring or misreading Yamaha, and

ignoring the distinction there recognized

between a wrongful death action and a

survival action, has now read Zicherman as

precluding any survival claim for pre-

death pain and suffering in a DOHSA cage,

on the ground that DOHSA provides the

exclusive remedy. In Re Korean Air Lines

Disaster of Sept. 1, 1983, 935 F.Supp 10

(D.D.C. 1996).

In light of this increasing

confusion, the proliferation of

conflicting decisions, and the erroneous

determination of the court of appeals,

, One important consequence of a

state survival action is entitlement to a

jury trial. If a state claim is brought

in diversity and thus has an independent

basis for federal court jurisdiction,

there is a Seventh Amendment right to a

jury trial. Fitzgerald v. United States

Lines Co., 374 U.S. 16 (1963); Atlantic &

Gulf Stevedores, 369 U.S. 355 (1962).

29

this Court should grant certiorari to

address the question which it expressly

declined to answer in Tallentire and was

not asked to determine in Zicherman:

whether a DOHSA claim also permits an

action and a remedy under a state survival

statute, especially when such an action is

separately grounded in diversity

jurisdiction.

CONCLUSION

The petition for a writ of certiorari

should be granted.

Respectfully submitted,

Raymofid M. Schlather,

Cougsel of Record

LoPINTO, SCHLATHER,

SOLOMON & SALK

200 East Buffalo Street

P.O. Box 353

Ithaca, New York 14850

(607) 273-2202

Counsel for Petitioner

30