# Petition for Writ of Certiorari — Mayer v. Cornell University

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 818

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0880%3A1. Public record. Not legal advice.