Joint Appendix — Norfolk Shipbuilding & Drydock Corp. v. Garris
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No. 00-346 5) Supreme Comt, U.S.
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IN THE Qn G6 2001
Supreme Court of the United) States
OFFICE OF THE CLERK
NORFOLK SHIPBUILDING & DRYDOCK
CORPORATION,
Petitioner,
v.
CELESTINE GARRIS, Administratrix of the ESTATE OF
CHRISTOPHER GARRIS, Deceased,
Respondent.
On WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
JOINT APPENDIX
_ JoHN R. CRUMPLER* _ JAMES T. FERRINI*
PATRICK H. O’DONNELL KIMBLEY A. KEARNEY
KAUFMAN & CANOLES MELINDA S. KOLLROSS
One Commercial Place CLAUSEN MILLER, P.C.
Suite 2000 10 South LaSalle Street
Norfolk, Virginia 23514 Chicago, Illinois 60603
(757) 624-3000 (312) 855-1010
Attorneys for Respondent RoBERT M. TaTA
Car D. GRAY
HUNTON & WILLIAMS
Suntrust Center
500 East Main Street
Suite 1000
Norfolk, Virginia 23510
(757) 640-5300
Attorneys for Petitioner
*Counsel of Record
PETITION FOR CERTIORARI FILED AUGUST 30, 2000
CERTIORARI GRANTED DECEMBER 11, 2000
|
. l
TABLE OF APPENDICES
Appendix A — Relevant Docket Entries Of The
United States District Court For The Eastern
District Of Virginia, Norfolk Division ........
Appendix B — Relevant Docket Entries Of The
United States Court Of Appeals For The Fourth
2 re rr oer y eee ie
itu EERE PETA ETT ET TPC ee re ere
Appendix D — Norsuipco’s Motion To Dismiss
Dated And Filed May 6, 1998 ...............
Appendix E — Opinion And Final Order Of The
United States District Court For The Eastern
District Of Virginia, Norfolk Division Dated And
Teme eS ee OE so a ee
Appendix F — Opinion Of The United States Court
Of Appeals For The Fourth Circuit Dated And
Decided April 3, 2000 ..............00.005-
Appendix G — Order Of The United States Court
Of Appeals For The Fourth Circuit Denying
Petition For Rehearing Dated And Filed June 1,
PY Cua AW aN 4 Wes ek Bee eeu ibal ene
il
Appendices
Page
Appendix H — Dissenting Opinion Of Judge
Widener Of The United States Court Of Appeals
For The Fourth Circuit To The Order Denying
Petition For Rehearing Dated And Filed June 2,
te ree Pe eee ge en ee ear 64a
la
APPENDIX A — RELEVANT DOCKET ENTRIES OF
THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA,
NORFOLK DIVISION
2:98cv382 — Garris v. Norfolk Shipbuilding, et al
4/9/98 1 COMPLAINT: Filing Fee $150.00 paid by
Kaufman & Canoles: Receipt #200-16791
(mwin) [Entry date 04/13/98]
5/4/98 4 MOTION by E. T. Gresham, Inc. to Dismiss
for failureto state a claim (mwin) [Entry date
05/06/98}
5/4/98 5 MEMORANDUM by E. T. Gresham, Inc. in
support of [4-1] motion by E. T. Gresham,
Inc. to Dismiss for failure to state a claim,
received (mwin) [Entry date 05/06/98]
5/5/98 6 MOTION by Norfolk Shipbuilding to
Dismiss for failure to state a claim (mwin)
[Entry date 05/06/98]
5/5/98 7 MEMORANDUM by Norfolk Shipbuilding
in support of [6-1] motion by Norfolk
Shipbuilding to Dismiss for failure to state a
claim, received (mwin) [Entry date 05/22/98]
5/18/98 8 MEMORANDUM by Celestine Garris in
Opposition to [6-1] motion by Norfolk
Shipbuilding to Dismiss for failure to State a
claim and [4-1] motion by E. T. Gresham, Inc.
to Dismiss for failure to state a claim,
received (mwin) [Entry date 05/22/98]
5/26/98
5/26/98
5/28/98
6/1/98
6/19/98
- 6/19/98
10
11
12
13
2a
Appendix A
REPLY Brief by Norfolk Shipbuilding to
response to [6-1] motion by Norfolk
Shipbuilding to Dismiss for failure to state a
claim, received (mwin) [Entry date 06/02/98]
Motion hearing re: [6-1] motion by Norfolk
Shipbuilding to Dismiss for failure to state a
claim set at 11:00 6/19/98, [4-1] motion by
E. T. Gresham, Inc. to Dismiss for failure to
state a claim set at 11:00 6/19/98 (mwin)
[Entry date 06/02/98]
NOTICE of hearing by E. T. Gresham, Inc.
(mwin) [Entry date 06/02/98] [Edit date
06/02/98]
NOTICE of hearing by Norfolk Shipbuilding
(mwin) [Entry date 06/02/98]
Motion hearing held re: [6-1] motion by
Norfolk Shipbuilding to Dismiss for failure
to state a claim by Norfolk Shipbuilding,
[4-1] motion by E. T. Gresham, Inc. to
Dismiss for failure to state a claim by E. T.
Gresham, Inc. (rlam)
Minute entry: COURT PROCEEDINGS —
JBF,j. Sue Ash, Reporter. Counsel and plaintiff
appeared. Matter came on defendants’
motions to dismiss. Argument of counsel
heard. Court ruled from the bench
DISMISSING the federal claims with
8/31/98
8/31/98
9/11/98
14
15
16
3a
Appendix A
prejudice and DISMISSING the state claims
without prejudice to file in state court. Court
to prepare an order. Court noted the appeal
time to run from date of written opinion and
order. Court adjourned. (rlam)
OPINION AND FINAL ORDER granting
[6-1] motion by Norfolk Shipbuilding to
Dismiss; granting [4-1] motion by E. T.
Gresham, Inc. to Dismiss; Dismissing plaintiff's
claims under general maritime law with
prejudice; declining to exercise supplemental
jurisdiction over plaintiff's pendant state law
claims, and Dismissing same without prejudice;
entered and filed 8/31/98 (signed by Judge
Jerome B. Friedman) Copies Mailed: 8/31/98
(mwin)
JUDGMENT granting defendants’ motions to
dismiss, and dismissing plaintiff's claims
under general maritime law with prejudice;
declining to exercise supplemental jurisdiction
over plaintiff's pendant state law claims, and
. dismissing same without prejudice; entered
by clerk and filed 8/31/98. Copies Mailed:
8/31/98. ob (mwin)
NOTICE OF APPEAL OF [15-1] judgment
order, [14-1] order Dismissing plaintiff's
claims under general maritime law with
prejudice by Celestine Garris. FILING FEE
$ 105.00 RECEIPT # 18307 (forb) [Entry date
09/15/98]
9/15/98
ta
Appendix A
Copy of Notice of Appeal, Judgment, Opinion
and Final Order and docket sheet to USCA:
copy of notice of appeal and docketing
statement to counsel for plaintiff; copy of
notice of appeal to counsel [16-1] appeal by
Celestine Garrts (forb)
Sa ;
APPENDIX B — RELEVANT DOCKET ENTRIES OF
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
98-2368 Garris v. Norfolk Shipbuilding, et al
9/17/98 Civil case docketed. (sn)
10/1/98 Certification of ROA complete and retained in
the District Court. [98-2368] (sn)
3/4/99 Certification transcript filed in district court by
Sue Ash on 3/2/99. [98-2368] (sn)
3/17/99 Certification of ROA complete and retained in
the District Court. [98-2368] (sn)
4/13/99 Brief joint appendix filed by Appellant Celestine
Garris. Type of Service: HD Copies of brief: 8
# brf pages: 20 Copies of apx: 6 # apx pages: 56
Sufficient?[Y/N]: y 2-sided copying: y [98-2368]
Appellee brief due 5/13/99 for E T Gresham Inc,
for Norfolk Shipbuilding. (rhs)
5/17/99 Brief filed by Appellee Norfolk Shipbuilding,
Appellee E T Gresham Inc. Type of Service:
PM Copies: 8 # brf pages: 31. Sufficient [Y/N]: y.
[98-2368] (rhs)
12/2/99 Oral argument heard. Courtroorn Deputy: JLC,
Jr. [98-2368] (jc)
4/3/00 Published, authored opinion filed. [98-2368]
(amy)
4/3/00
4/17/00
4/20/00
4/24/00
4/24/00
5/1/00
5/4/00
6/1/00
6a
Appendix B
Judgment order filed. Decision: reversed and
remanded. EOD Date: 4/3/00. [98-2368] (amy)
Petition filed by Appellee Norfolk Shipbuilding,
Appellee E T Gresham Inc for rehearing. Number
copies filed: 20 [3171077-1]., for rehearing
en banc. [3171077-2] [98-2368] (sn)
Motion filed by Appellee E T Gresham Inc to
dismiss Appellee E T Gresham Inc as party to
the appeal [3171831-1]. [98-2368] (sn)
Letter referencing motion to dismiss party
[3171831-1] and a copy of the order dated 7/13/99
in the Circuit Court for the City of Norfolk (filed
by Appellee E T Gresham Inc) [3173318-1]
[98-2368] (amy)
Response/answer requested to motion for rehearing
[3171077-1], motion for rehearing en banc
[3171077-2] [98-2368] (amy)
COURT ORDER filed granting motion to dismiss
party [3171831-1] Copies to all counsel.
[98-2368] (amy)
Response/answer filed [3179796-1] by Appellant
Celestine Garris to motion for rehearing
[3171077-1], motion for rehearing en banc
[3171077-2] [98-2368] (sn)
COURT ORDER filed denying motion for
rehearing [3171077-1] EOD Date: 6/1/00,
Wo arm
6/2/00
6/9/00
7/6/00
7/10/00
9/8/00
10/26/00
12/18/00
7a
Appendix B
denying motion for rehearing en banc
[3171077-2] EOD Date: 6/1/00. Copies to all
counsel. [98-2368] (sn)
Corrected order filed per HEW’s directions.
Order is dissent from order of 6/1/00 disposing
of motion for rehearing [3171077-1], motion for
rehearing en banc [3171077-2]. [98-2368] (sn)
Mandate issued. [98-2368] (sn)
Motion filed by Appellee Norfolk Shipbuilding
to recall the mandate file a petition for writ of
certiorari [321471 1-1]. [321471 1-1], to stay the
mandate [3214711-2]. [98-2368] (dad)
COURT ORDER filed granting motion to recall
the mandate [3214711-] ], granting motion to Stay.
mandate [3214711-2] pending petition for a writ
of certiorari. Copies to all counsel. [98-2368]
(amy)
Supreme Court notice that petition for certiorari
was filed on 08/30/00. Spct No.: 00-346
Spet Pty 1: Norfolk Shipbuilding & Drydock
Corporation Spct Pty 2: Celestine Garris.
[98-2368] (jh)
Federal Reporter Citation: 210 F.3d 209.
[98-2368] (vsl)
Supreme Court order received granting petition
certiorari [3249473-1] on 12/11/00. [98-2368]
(dhb)
8a
APPENDIX C — COMPLAINT DATED
AND FILED APRIL 9, 1998
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
CIVIL ACTION NO. 2:98-CV-382
CELESTINE GARRIS, Administratrix of the
ESTATE OF CHRISTOPHER GARRIS, deceased,
Plaintiff,
Vv.
NORFOLK SHIPBUILDING & DRYDOCK
CORPORATION,
SERVE: John L. Roper, IV
Registered Agent
750 Berkley Avenue
Norfolk, Virginia 23523
and
E. T. GRESHAM, INC.,
SERVE: Earl T. Gresham
Registered Agent
1038 West 26" Street
Norfolk, Virginia 23517
Defendants.
9a
Appendix C
COMPLAINT
NOW COMES the plaintiff, Celestine Garris,
Administratrix of the Estate of Christopher Garris, deceased,
by counsel, and for her Complaint, states as follows:
1. This is a maritime and admiralty action within the
meaning of Rule 9(h) and 28 U.S.C. § 1333.
2. The plaintiff is the mother of, and Administratrix of
the Estate of Christopher Garris, deceased, who sustained
fatal injuries on April 8, 1997, while working aboard the
USNS MAJ. STEPHEN w. PLESS, while the vessel was
berthed at Norfolk Shipbuilding & Drydock Corporation
(“NORSHIPCO”), Norfolk, Virginia, in the navigable waters
of the United States of America.
3. The plaintiff believes that the plaintiff's deceased
was employed by Tidewater Temps, Inc. (“Tidewater”) to
perform sand blasting work for Mid-Atlantic Coatings, Inc.
(“Mid-Atlantic”), a sub-contractor of NORSHIPCO.
4. The defendant, NORSHIPCO, is a ship repair company
who had contracted to perform certain work on the USNS
MAJ. STEPHEN W. PLESS.
5. The defendant, E. T. Gresham, Inc. (“Gresham’’), was
a subcontractor of either Mid-Atlantic or NORSHIPCO, and
had responsibilities with regard to the provision of and/or
operation of a crane alongside the USNS MAJ. STEPHEN
W. PLESS.
10a
Appendix C
6. On April 8, 1997, while working aboard the USNS
MAJ. STEPHEN W. PLESS, the plaintiff’s deceased
sustained injuries and died on April 9, 1997, as a result of
the negligence of the defendants, jointly and severally.
7. The plaintiff demands damages pursuant to the
general maritime law for funeral expenses, pain and suffering
of the decedent prior to his death, loss of society and loss of
services, and for damages pursuant to the Virginia Wrongful
Death Act, § 8.01-52.
WHEREFORE, the plaintiff prays for judgment against
the defendants, jointly and severally, in the amount of Two
Million and 00/100 Dollars ($2,000,000.00).
CELESTINE GARRIS, Administratrix
of the ESTATE OF CHRISTOPHER
GARRIS, deceased
By s/ John R. Crumpler, Jr.
Of Counsel
John R. Crumpler, Jr., Esq.
Patrick H. O’Donnell, Esq.
KAUFMAN & CANOLES, P. C.
2000 NationsBank Center
One Commercial Place
Post Office Box 3037
Norfolk, Virginia 23514
(757) 624-3103
lla
APPENDIX D — NORSHIPCO’S MOTION TO
DISMISS DATED AND FILED MAY 6, 1998
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
CIVIL ACTION NO. 2:98-CV-382
CELESTINE GARRIS, Administratrix of the
ESTATE OF CHRISTOPHER GARRIS, deceased,
Og ee ae Te ee
Plaintiff,
V.
NORFOLK SHIPBUILDING & DRYDOCK
CORPORATION, et al.,
Defendants.
NORSHIPCO’S MOTION TO DISMISS
_ Defendant, Norfolk Shipbuilding & Drydock Corporation
(“NorsHiPco”), by counsel, hereby moves to dismiss the
Complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure on the grounds that plaintiff has failed to
State a claim against it for which relief may be granted. In
support of this motion, NorsHiPco adopts the arguments and
authority contained in the brief which is filed in support of
this motion.
OnE 0 MRE PAIS ABA eh A AO
12a
Appendix D
NORFOLK SHIPBUILDING &
DRYDOCK CORPORATION
By: s/ Robert M. Tata
Of Counsel
Robert M. Tata (BAR No. 30101)
HUNTON & WILLIAMS
500 East Main Street — Suite 1000
Norfolk, Virginia 23510
(757) 625-5501 .
Be ita oe
Stal nar St a hg hel LPS aa th
l3a
APPENDIX E — OPINION AND FINAL ORDER OF
THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA, NORFOLK
DIVISION DATED AND FILED AUGUST 31, 1998
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
Civil Action No. 2:98-cy-382
CELESTINE GARRIS, Administratrix of the
ESTATE OF CHRISTOPHER GARRIS, deceased,
Plaintiff,
v.
NORFOLK SHIPBUILDING & DRYDOCK
CORPORATION,
and
E.T. GRESHAM, INC.,
Defendants.
OPINION AND FINAL ORDER
This matter comes before the Court on Defendants’
Motions to Dismiss for Failure to State a Claim. For the
reasons stated below, the Court finds that no cause of action
exists, under general maritime law, for death of a nonseaman
in state territorial waters resulting from negligence.
14a
Appendix E
Defendants’ motions to dismiss are GRANTED, and
Plaintiff's federal claims are DISMISSED with prejudice.
The Court declines to exercise supplemental jurisdiction
under Title 28, United States Code Sections 1367(a) and
(c)(3) over Plaintiff's Virginia Wrongful Death Act claim;
the state claim is therefore DISMISSED without prejudice.
I. Factual Background
Celestine Garris, as Administratrix of the Estate of
Christopher Garris, seeks damages relating to the death of
Christopher Garris. Plaintiff's claims are brought under both
general maritime law and the Virginia Wrongful Death Act.
While the parties do not agree on the actual series of events
which led to the death of Christopher Garris, those factual
discrepancies need not be resolved for purposes of ruling on
Defendants’ motions.
According to the Plaintiff, on April 8, 1997, the decedent
was performing sandblasting work on the USNS Major
STEPHEN W. PLEss for Mid-Atlantic Coatings, Inc. (“Mid-
Atlantic’’) through a temporary agency. Norfolk Shipbuilding
& Drydock Company (“NORSHIPCO”), a ship repair
company who had contracted to perform work on the vessel,
sub-contracted the sandblasting work to Mid-Atlantic. To
accomplish the sand-blasting, a pre-loaded hopper of
sandblast shot was lifted from the pier to the opening of a
silo located on the deck of the vessel. A door on the underside
of the hopper was then opened to release the shot, depositing
the shot in the opening of the silo. The particular silo in
question was approximately 30 feet in height. Christopher
Garris fell from the top of the silo onto the deck of the vessel,
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nae ate or ed a FRE ACE NAL wet ORTUT ET Da Pahe Cate SEE ae
0 in API T dat Vi Ae PUN LS i ERA RA ST sett Lo te te
Kocsis ali linn Mal Sas 82:
1Sa
Appendix E
Sustaining fatal injuries in the fall. Garris passed away on
April 9, 1997.' The USNS Major STEPHEN W. PLEss was
docked in Norfolk, Virginia, in the navigable waters of the
United States of America at the time of the incident.
Plaintiff seeks damages under general maritime law for
funeral expenses, pain and suffering of the decedent, loss of
society, and loss of services. Ina pendant state claim, Plaintiff
seeks damages pursuant to the Virginia Wrongful Death Act.
II. Analysis
A. Standard of Review
In a Motion to Dismiss, the complaint is construed in
the light most favorabie to the plaintiff, and the plaintiff's
allegations are taken as true. Scheuer v. Rhodes, 416 U.S.
232, 236 (1974); Jenkins v. McKeither, 395 U.S. 411, 421
(1969). Nonetheless, the Fourth Circuit has held that
“[cJonclusory allegations regarding the legal effect of the
facts alleged” need not be accepted as true. Labram v. Havel,
43 F.3d 918, 921 (4th Cir.1995). In order for the Court to
grant a motion to dismiss, it must appear to a certainty that
1. The Plaintiff received death benefits under the Longshore
and Harbor Workers’ Compensation Act, and filed suit in state court
seeking additional recovery. Under Virginia law, no general
maritime cause of action exists for negligence for the death of a
nonseaman in state territorial waters. See, e.g., Brown v. Brown,
226 Va. 320, 327, 309 S.E.2d 586, 590 (1983). Plaintiff nonsuited
the state court action following the filing of a demurrer and
miscellaneous other motions by Defendants. The instant action was
filed shortly thereafter.
l6a
Appendix E
the plaintiff cannot prove any facts in support of his claim
which would entitle him to relief. Conley v. Gibson, 355
U.S. 41, 45-46 (1957); Martin Marietta Corp. v. International
Telecommunications Satellite Org., 991 F.2d 94, 97 (4th Cir.
1993).
B. Negligence Action Under General Maritime Law
The sole issue before this Court is whether Plaintiff may
properly maintain a negligence action under general maritime
law. The Supreme Court first recognized a general maritime
law cause of action for death occurring from a breach of
maritime duties in Moragne v. States Marine Lines, Inc.,
398 U.S. 375 (1970). Plaintiff argues that in the Moragne
decision, the Supreme Court intended to establish the
propriety of both unseaworthiness and negligence claims
under general maritime law. Defendants submit that the
Supreme Court’s recognition in Moragne was limited to
unseaworthiness claims, and that general maritime law has
not been extended to include a negiigence cause of action
for the wrongful death of a nonseaman in state territorial
waters. See Ford v. Wooten, 681 F.2d 712, 715 (11th
Cir.1982) (Hoffman, District Judge sitting by designation)
(recognizing Moragne “pertained only to an unseaworthiness
claim”); Minnick v. United States, 767 F.Supp. 115, 118-
119 (E.D. Va.1990) (noting “Moragne created a general
maritime wrongful death cause of action for unseaworthiness’”’).
The Moragne decision was a necessary reaction to an
antiquated common law holding. In rendering the decision
it did, the Supreme Court filled an obvious void that
materialized following the enactment of the Death on the
High Seas Act and the Jones Act. Prior to Moragne,
Pee ae a eT eee oY
17a
Appendix E
no federal cause of action existed for wrongful death in state
territorial waters due to unseaworthiness. The Supreme Court
has never applied its holding in Moragne to negligence
claims, although some jurisdictions have expanded the
decision to allow negligence actions under general maritime
law, or otherwise held the decision intended to provide a
general maritime law action for both unseaworthiness and
negligence. See, e.g., Nelson v. United States, 639 F.2d 469,
473 (9th Cir. 1980) (holding the need for uniformity requires
extension of Moragne to negligence claims); Miles vy.
Melrose, 882 F.2d 976 (Sth Cir. 1989) (noting, without
citation, that Moragne recognized actions for both
unseaworthiness and negligence.); Neil v. McGinnis, 716
F.Supp. 996 (E.D. Ky. 1989): Garner vy. Dravo Basic
Materials, 768 F.Supp. 192 (S.D. W.Va. 1991); Cantore v.
Blue Lagoon Water Sports, Inc., 799 F.Supp. 1151 (S.D. Fla.
1992); but see generally Ivy vy. Security Barge Lines, Inc.,
606 F.2d 524 (Sth Cir. 1979). :
The 1972 amendments to the Longshore and Harbor
Workers’ Compensation Act superseded the holding in
Moragne, foreclosing a general maritime law wrongful death
action by the survivors of a longshoreman or harbor worker.
See 33 U.S.C. §§ 901-950; Miles v. Apex Marine, 498 U.S.
19, 28 (1990). Defendants submit that this responsive
legislative action cautions against the extension of Moragne
beyond unseaworthiness, an argument with which the Court
is inclined to agree. The Court, however, must also take into
consideration the Supreme Court’s more recent decision in
Yamaha Motor Corporation vy. Calhoun, 516 U.S. 199
(1996), as well as decisions previously rendered by other
judges of this district. -
18a
Appendix E
In Minnick v. United States, supra, the parties assumed
a negligence action could be pursued under general maritime
law. Judge Clarke, in reviewing Moragne and the cases
interpreting Moragne, found the assumption to be incorrect,
noting that Moragne created only a general maritime wrongful
death cause of action for unseaworthiness. Minnick, 767
F.Supp. at 117-18.? Similarly, Judge Hoffman, sitting on the
Eleventh Circuit by designation, considered “whether
Moragne should be extended to permit recovery under
general maritime law for wrongful death caused by
negligence.” Ford, 681 F.2d at 716. Judge Hoffman, writing
for a panel of the Eleventh Circuit, held that Moragne
pertained only to unseaworthiness claims, and that
subsequent Supreme Court decisions supported this finding.
Id. at 715. Although the decisions in Minnick and Ford
predated the Supreme Court’s opinion in Yamaha, the Court
finds the reasoning of Judges Hoffman and Clarke in those
decisions remains sound.
Yamaha held the general maritime wrongful death action
recognized in Moragne did not preempt state remedies for
non-seaman deaths in territorial waters. Jd. at 215. In
rendering this decision, the Supreme Court created some
confusion regarding the current status of the law. The Court
noted in footnote seven, that:
If Moragne’s wrongful death action did not extend
to non-seafarers like Natalie [injured in a jet ski
accident], one could hardly argue that Moragne
2. Judge Clarke further found that the plaintiff in Minnick could
pursue a negligence action under LHWCA, allowing the plaintiff
leave to amend to assert the appropriate claim. Minnick, at 117-18.
a a te tae =e
19a
Appendix E
displaced the state law remedies the Calhouns
seek. Lower courts have held that Moragne’s
wrongful death action extends to non-seafarers.
(Citations omitted). We assume, for purposes of
this decision, the correctness of that position.
Similarly, as in prior encounters, we assume
without deciding that Moragne also provides a
survival action. [Citation omitted.] The question
we confront is not what Moragne added to the
remedial arsenal in maritime cases, but what, if
anything, it removed from admiralty’s stock.
[Emphasis added. ]
Yamaha, 516 U.S. at 209, n. 7. Plaintiff also relies on footnote
eleven in an attempt to persuade the Court that Moragne
recognized negligence claims under general maritime law
in addition to unseaworthiness claims. In footnote eleven,
Yamaha correctly notes that the right of action, as stated in
Moragne, established a cause of action “for death caused by
violations of maritime duties.” /d. at 214, n. 11. Nonetheless,
unseaworthiness was the doctrine at stake before the Court
in Moragne, not negligence. A thorough analysis of Yamaha
reveals that in Yamaha, the Supreme Court reserved the issue
of whether a wrongful death action sounding in negligence
exists under general maritime law.?
The generality with which the Court spoke in Moragne
is not sufficient to establish a general maritime law cause of
3. Defendants also offer authority from the Virginia Supreme
Court, in which the Court recognized that claims under general
maritime law were restricted to claims of unseaworthiness.
See Brown v. Brown, 226 Va. 320 (1983).
20a
Appendix E
action for negligence in light of Yamaha's reservation of the
issue, and the absence of any Supreme Court decision
applying Moragne to negligence. Neither the arguments nor
the case law set forth by Plaintiff are persuasive in her attempt
to have this Court extend the application of general maritime
law to negligence actions.
III. Conclusion
Accordingly, Defendants’ Motions to Dismiss are
GRANTED and Plaintiff's claims under general maritime
law are DISMISSED with prejudice. The Court declines to
exercise supplemental jurisdiction over Plaintiff's pendant
state law claims, and the same are DISMISSED without
prejudice.
The Clerk is REQUESTED to send a copy of this
Opinion and Order to counsel for the Plaintiff and counsel
for the Defendant.
It is so ORDERED.
s/ Jerome B. Friedman
UNITED STATES-DISTRICT
JUDGE
August 31, 1998
Norfolk, Virginia
Pe Te ee OP ee aes
21a
APPENDIX F — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
DATED AND DECIDED APRIL 3, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-2368
CELESTINE GARRIS, Administratrix of the Estate of
Christopher Garris, deceased,
Plaintiff-Appellant,
V.
NORFOLK SHIPBUILDING & DRYDOCK CORPORATION;
E.T. GRESHAM, INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court for the
Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CA-98-382-2)
Argued: December 2, 1999
Decided: April 3, 2000
Before MURNAGHAN and WILLIAMS, Circuit Judges,
and Cynthia Holcomb HALL, Senior Circuit Judge of
the United States Court of Appeals for the
Ninth Circuit, sitting by designation.
* * *
22a
Appendix F
OPINION
WILLIAMS, Circuit Judge:
The sole issue on appeal is whether we should construe
or extend the United States Supreme Court’s decision in
Moragne vy. States Marine Lines, Inc., 398 U.S. 375 (1970),
which recognized a general maritime law cause of action for
wrongful death based upon unseaworthiness, to include a
general maritime law cause of action for wrongful death
based upon negligence. We agree with the district court that
the Supreme Court did not create a general maritime law
cause of action for wrongful death based upon negligence in
Moragne. We find it appropriate, however, to apply the
principles of Moragne and its progeny to recognize one. We,
therefore, reverse the district court’s dismissal of Celestine
Garris’s claim and remand for further proceedings.
L.
Christopher Garris (Garris’s son) worked as a sandblaster
aboard the USNS MAJ. STEPHEN W. PLESS, a ship berthed
in the navigable waters of the United States. He was actually
employed by Tidewater Temps but worked on behalf of Mid-
Atlantic Coatings (Mid-Atlantic), a subcontractor of Norfolk
Shipbuilding & Drydock Corporation (Norfolk). E.T.
Gresham, Inc. (Gresham), another subcontractor for Norfolk,
had employees aboard the same ship. On April 8, 1997, a
crane operator working for Gresham accidentally caused
Garris’s son to fall off a reserve hopper on the ship, which
was used to load sand for sandblasting. Garris’s son died as
a result of the accident.
23a
Appendix F
After receiving Statutory death benefits under the
Longshore and Harbor Workers’ Compensation Act (LHWCA),
33 U.S.C.A. §§ 901-950 (West 1986 & Supp. 1999), Christopher
Garris’s mother, Celestine Garris (Garris), brought suit in
the United States District Court for the Eastern District of
Virginia against Norfolk and Gresham, seeking recovery for
wrongful death based upon negligence under general
maritime law and the Virginia wrongful-death statute.
According to Garris, the crane operator’s negligence and
Norfolk’s use of an inadequate communication signaling
system were the reasons for her son’s death. The district court
dismissed her suit on the ground that general maritime law
does not recognize a negligence-based cause of action!
Garris argues on appeal that the Supreme Court’s holding
in Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970),
which recognized a general maritime law cause of action for
wrongful death based upon unseaworthiness, also established
a general maritime law cause of action for wrongful death
based upon negligence. In the alternative, Garris asks us to
extend the holding of Moragne to create a general maritime
law cause of action for wrongful death based upon
negligence. Reviewing this legal question de novo,
see Meekins y. United T, ransp. Union, 946 ‘F.2d 1054, 1057
(4th Cir. 1991) (“We review the district court’s determinations
of law de novo.”), we conclude that the principles developed
1. The district court dismissed with prejudice Garris’s general
maritime law wrongful-death claim. The district court dismissed
without prejudice her state law claim under the Virginia wrongful-
death statute. Garris has not appealed the district court’s dismissal
of her state law claim and has since filed that claim in state court
only against Gresham.
24a
Appendix F
in Moragne and its progeny compel us to recognize a
negligence-based action. We, therefore, reverse the district
court’s dismissal of this claim and remand for further
proceedings.
II.
In order to determine whether the district court erred in
dismissing Garris’s suit, we must first consider whether the
Supreme Court in Moragne v. States Marine Lines, Inc., 398
U.S. 375 (1970), intended to create a general maritime law
cause of action for wrongful death based upon negligence.
Accordingly, we must examine the language and context of
Moragne, including the events and developments leading up
to the Supreme Court’s decision in that case.
A. Pre-Moragne
Our discussion begins with The Harrisburg, 119 U.S.
199 (1886), overruled by Moragne v. States Marine Lines,
Inc., 398 U.S. 375 (1970), in which the Supreme Court held
that general maritime law did not allow recovery for wrongful
death. In The Harrisburg, the widow and child of the
decedent, Rickards, sought to recover damages for Rickards’s
death “caused by the negligence of the steamer” that collided
with Rickards’s schooner. See id. at 199. The Court had to
determine whether Rickards’s survivors could recover for
wrongful death absent a state statute or act of Congress
affirmatively allowing such recovery. See id. at 204. The
Court noted that at common law there was no civil action
for an injury that resulted in death and that English maritime
law also had no cause of action for wrongful death on the
high seas. See id. The Court concluded that because
25a
Appendix F
it is now established that in the courts of the
United States no action at law can be maintained
for [wrongful death] in the absence of a Statute
giving the right, and it has not been shown that
the maritime law, as accepted and ‘received by
maritime nations generally, has established a
different rule for the government of the courts of
admiralty from those which govern courts of law
in matters of this kind, we are forced to the
conclusion that no such action will lie in the courts
of the United States under the general maritime
law.
Id. at 213.
Despite the rule of The Harrisburg, which prohibited
recovery for wrongful death under general maritime law, two
significant developments in maritime law softened the
harshness of The Harrisburg. First, in 1920, Congress.
enacted both the Death on the High Seas Act (DOHSA),
46 U.S.C.A. §§ 761-768 (West 1975 & Supp. 1999), and the
Jones Act, 46 U.S.C.A. app. § 688 (West Supp. 1999), which
afforded recovery for wrongful death in certain circumstances.”
2. DOHSA provides, in pertinent part, that “[w]henever the
death of a person shall be caused by wrongful act... occurring on
the high seas beyond a marine league from the shore of any State
... the personal representative of the decedent may maintain a suit
for damages in the district courts of the United States.” 46 U.S.C.A.
§ 761 (West 1975). DOHSA, therefore, provides a federal claim for
the wrongful death of any person that occurs more than a marine
league, or three miles, from shore.
(Cont'd)
26a
| Appendix F
Second, federal courts began to recognize the application of
state wrongful-death statutes to fatal accidents that occurred
in state territorial waters. See Yamaha Motor Corp. v.
Ca/toun, 516 U.S. 199, 206-08 (1996) (describing the
response of “[f]ederal admiralty courts [in] temper[ing] the
harshness of The Harrisburg’s rule by allowing recovery
under state wrongful-death statutes”); Western Fuel Co. v.
Garcia, 257 U.S. 233, 242 (1921) (finding that California’s
wrongful-death statute applied to the death of a maritime
worker in state territorial waters). Consequently, in the years
that followed The Harrisburg, state wrongful-death statutes
— which often encompassed wrongful-death causes of action
based upon negligence, but not unseaworthiness, see Moragne,
398 U.S. at 398-99 — “proved an adequate supplement to
federal maritime law[ ] until a series of this Court’s decisions
transformed the maritime doctrine of unseaworthiness into
a strict liability rule.”? Yamaha, 516 U.S. at 207-08. Because
of this new development in maritime law, unseaworthiness,
which originally was an obscure and rarely used cause of
action for which many state wrongful-death statutes did not
(Cont'd)
The Jones Act states that “[a]ny seaman who shall suffer
personal injury in the course of his employment may .. . maintain
an action for damages at law . . . and in case of death of such seaman
as a result of any such personal injury the personal representative
may maintain an action for damages at law. .. .” 46 U.S.C.A. app.
§ 688(a) (West Supp. 1999). Thus, the Jones Act permits recovery
for the wrongful death of a seaman in all navigable waters.
3. Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944),
Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and Mitchell v.
Trawler Racer, Inc., 362 U.S. 539 (1960), all set forth and developed
the rule that a shipowner’s liability for unseaworthiness is absolute.
27a
Appendix F
account, evolved into a cause of action that “soon eclipsed
ordinary negligence as the primary basis of recovery when a
seafarer was injured or killed.” /d. at 208. The evolution of
the unseaworthiness doctrine, however, also created gaps in
the law whereby recovery for wrongful death based upon
unseaworthiness could depend on mere happenstance. For
example, if death occurred within state territorial waters, then
recovery was unlikely because many state wrongful-death
Statutes did not include causes of action based upon
unseaworthiness. See Moragne, 398 U.S. at 395. By contrast,
if the death occurred more than three miles from shore, then
recovery for wrongful death based upon unseaworthiness was
possible under DOHSA. See id. The emergence of
unseaworthiness as a viable and powerful tool for asserting
claims against shipowners, and the discrepancies that
necessarily followed, set the stage for Moragne, which gave
the Supreme Court the opportunity to revisit the vitality and
soundness of The Harrisburg in light of the changing
maritime landscape.
B. Moragne v. States Marine Lines, Inc.
Moragne was a longshoreman who was killed aboard a
ship in Florida’s navigable waters. See Moragne v. States
Marine Lines, Inc., 398 U.S. 375, 376 (1970). His widow
sued in state court for wrongful death based upon
unseaworthiness and negligence. See id. After removal to
federal court, the district court dismissed her unseaworthiness
claim, holding that general maritime law did not permit
recovery for wrongful death based upon unseaworthiness in
State territorial waters, and, unlike her negligence-based
claim, Florida’s wrongful-death statute did not encompass
28a
Appendix F
wrongful-death based upon unseaworthiness. See id. The
only issue on appeal, therefore, was whether general maritime
law recognized a cause of action for wrongful death based
upon unseaworthiness. See id. at 377.
_ The Court’s analysis began with The Harrisburg, which,
as noted above, based its holding upon the premise that
neither American nor English common law recognized civil
actions for injuries that resulted in death. The Moragne Court,
however, concluded that the Court’s construction of the
common law rule in The Harrisburg “was based upon a
particular set of factors that had, when The Harrisburg was
decided, long since been thrown into discard even in England,
and that had never existed in this country at all.” Jd. at 381.
Moreover, the Court noted that significant developments in
American maritime law had further undercut The Harrisburg,
including the emergence of state wrongful-death statutes and
Congress’s enactment of DOHSA and the Jones Act. See id-
at 390. The Court stated that
the work of the legislatures has made the
allowance of recovery for wrongful death the
general rule of American law, and its denial the
exception. Where death is caused by the breach
of a duty imposed by federal maritime law,
Congress has established a policy favoring
recovery in the absence of a legislative direction
to except a particular class of cases.
Id. at 393. The Court, therefore, found it necessary to address
“whether Congress has given such a direction [to deny
recovery for wrongful death under general maritime law] in
29a
Appendix F
its legislation granting remedies for wrongful deaths in
portions of the maritime domain.” /d.
Examining the Jones Act and DOHSA to determine if
they should be construed to preclude a general maritime
cause of action for wrongful death within state territorial
waters, the Moragne Court pointed to three anomalies that
would be perpetuated if Congress had indeed intended the
Jones Act and DOHSA to preclude such recovery. First,
identical conduct violating federal law in state territorial
waters, such as the furnishing of an unseaworthy ship, would
give rise to liability only if the victim were injured, but not
killed. See id. at 395. Second, identical violations of the duty
to furnish a seaworthy ship that resulted in death would give
rise to liability for unseaworthiness under DOHSA more than
three miles from shore but not within three miles of shore if
the state’s wrongful-death statute did not encompass
unseaworthiness claims. See id. Third, a seaman, covered
by the Jones Act, would have no cause of action for
unseaworthiness while a longshoreman “te whom the duty
of seaworthiness was extended only because he performs
work traditionally done by seamen, [would have] such a
remedy when allowed by a state statute.” Jd. at 395-96. Based
upon these obvious anomalies, which arose from the
emergence of unseaworthiness as a viable and prominent
maritime cause of action, the Court concluded that Congress
could not have intended to foreclose wrongful-death
remedies in state territorial waters when it passed the Jones
Act and DOHSA. The Court reasoned instead that “(t]he void
that existed in maritime law up until 1920 [when Congress
enacted DOHSA] was the absence of any remedy for
wrongful death on the high seas. Congress, in acting to fill
30a
Appendix F
that void, legislated only to the three-mile limit because that
was the extent of the problem.” Jd. at 398. Congress did not
need to extend its reach into state territorial waters because
“It]he beneficiaries of persons meeting death on territorial
waters did not suffer at that time from being excluded from
the coverage of [DOHSA],” largely because “the primary
basis for recovery under state wrongful death statutes was
negligence” and unseaworthiness was a little used cause of
action. Jd. However,
[s]ince that time the equation has changed
drastically, through this Court’s transformation
of the shipowner’s duty to provide a seaworthy
ship into an absolute duty not satisfied by due
diligence. The unseaworthiness doctrine has
become the principal vehicle for recovery by
seamen for injury or death, overshadowing the
negligence action made available by the Jones
Act; and it has achieved equal importance for
longshoremen and other harbor workers to whom
the duty of seaworthiness was extended because
they perform work on the vessel traditionally done
by seamen. The resulting discrepancy between the
remedies for deaths covered by [DOHSA] and for
deaths that happen to fall within a state wrongful-
death statute not encompassing unseaworthiness
could not have been foreseen by Congress.
/d. at 399 (internal citations omitted and emphasis added).
The Court concluded that the unforeseen development
of unseaworthiness as a primary means of recovery under
3la
Appendix F
maritime = — and not a congressional intent to foreclose
recovery for wrongful death in state territorial waters — was
the primary reason for the anomalies that had emerged after
The Harrisburg. See id. at 399-400. Noting that its
recognition of unseaworthiness as a general maritime law
wrongful-death cause of action furthered Congress’s stated
purpose of “uniformity in the exercise of admiralty
jurisdiction” in enacting the Jones Act, id. at 401 (internal
quotation marks omitted), the Court overruled The Harrisburg,
and stated that “[w]e do not regard the rule of The Harrisburg
as a closely arguable proposition — it rested on @ most
dubious foundation when announced [and] has become an
increasingly unjustifiable anomaly as the law over the years
has left it behind,” id. at 404. Concluding that its decision
“d[id] not require the fashioning of a whole new body of
federal law, but merely remov(al of] a bar to access to the
existing general maritime law,” id. at 405-06, the Court held
that “an action does lie under general maritime law for death
caused by violation of maritime duties,” id. at 409.4
Our examination of the language and context of Moragne
reveals three crucial points that guide our analysis. First,
4. Two years after the Court’s decision in Moragne, Congress
. passed the 1972 amendments to the Longshore and Harbor Workers’
Compensation Act (LHWCA), 33 U.S.C.A. §§ 901-950 (West 1986
& Supp. 1999), and specifically eliminated unseaworthiness as a
cause of action for wrongful death as it related to longshoremen
and harbor workers, such as Garris’s son. See 33 U.S.C.A. § 905(b)
(West 1986) (“The liability of the vessel under this subsection shall
not be based upon the warranty of seaworthiness. . . .”). The general
maritime law cause of action for wrongful death based upon
unseaworthiness still remains viable for true seamen. See Miles v.
Apex Marine Corp., 498 U.S. 19, 30 (1990).
32a
Appendix F
the sole issue on appeal in Moragne was whether general
maritime law recognized a wrongful-death cause of action
based upon unseaworthiness; negligence was simply not an
issue before the Court. See id. at 377. Second, the Court in
Moragne referred repeatedly to unseaworthiness without
expressly mentioning negligence.,See Ford v. Wooten, 681
F.2d 712, 715 (11th Cir. 1982) (noting that Moragne mentioned
unseaworthiness but never expressly discussed negligence);
Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 527 (Sth Cir.
1979) (en banc) (“{Moragne] dealt only with an unseaworthiness
claim asserted under general maritime law.”). Third, the
unforeseen evolution of the unseaworthiness doctrine as a
powerful tool for recovery under maritime law was the stated
predicate for the Court’s analysis, and indeed, it played a
large part in the Court’s decision to overrule The Harrisburg.
As the Court later recognized in Yamaha Motor Corp. v.
Calhoun, 516 U.S. 199 (1996), “[t]he disparity between the
unseaworthiness doctrine’s strict-liability standard and
negligence-based state wrongful-death statutes figured
prominently in our landmark Moragne decision.” Jd. at 208.
The Moragne Court’s clear focus on unseaworthiness,
as opposed to maritime duties as a whole, is most evident in
the Court’s analysis of the three anomalies that arose after
the emergence of unseaworthiness as a strict liability
doctrine. Two of the three anomalies identified by the Court
in Moragne were that: (1) identical violations of the duty of
seaworthiness, each resulting in death, could give rise to
liability more than three miles from shore but not within the
territorial waters of a state that did not include unseaworthiness
in its wrongful-death statute, and (2) a seaman, covered by
the Jones Act, would have no cause of action for
33a
Appendix F
unseaworthiness while a longshoreman “to whom the duty
of seaworthiness was extended only because he performs
work traditionally done by seamen, [would have] such-a
remedy when allowed by a state statute.” Jd. at 395-96. The
Court framed these two anomalies specifically in terms of
unseaworthiness; these anomalies were cause for concern
only within that context. The third anomaly, that identical
violations of federal law, such as the furnishing of an
unseaworthy vessel, would give rise to liability if the victim
was injured but not killed if the state wrongful-death statute
did not encompass unseaworthiness, see id. at 395, arguably
might have applied to negligence-based actions, at least to
the extent that state wrongful-death statutes did not include
a cause of action for negligence-based wrongful death. As
the Court noted in Miles v. Apex Marine Corp., 498 U.S. 19
(1990), however, every state had a wrongful-death statute
that did provide recovery for negligence-based actions even
where the state did not provide similar recovery for
unseaworthiness-based actions. See id. at 25. Consequently,
none of these three anomalies, which played a prominent
role in the Moragne Court’s decision, applied equally
between a general maritime law cause of action for wrongful
death based upon unseaworthiness and a general maritime
law cause of action for wrongful death based upon negligence. \
We have no difficulty concluding that Moragne recognized
only a general maritime law cause of action for wrongful
death based upon unseaworthiness.
C. Post-Moragne
Garris argues, nevertheless, that the Supreme Court’s
later decision in Yamaha Motor Cerp. v. Calhoun, 516 U.S.
199 (1996), suggests that Moragne’s holding was broader
34a
Appendix F
than a simple recognition of a general maritime law cause of
action for wrongful death based upon unseaworthiness.
In Yamaha, the Supreme Court addressed whether state
remedies remain applicable in “maritime wrongful-death
cases in which no federal statute specifies the appropriate
relief and the decedent was not a seaman, longshore worker,
or person otherwise engaged in a maritime trade.” /d. at 202.
The Court held that “state remedies remain applicable in such
cases and have not been displaced by the federal maritime
wrongful-death action recognized in [Moragne].” Id. Yamaha
involved a jet ski accident that occurred in navigable waters.
The parents of the decedent sued the jet ski manufacturer,
which responded that state remedies were not applicable to
accidents in navigable waters and that federal maritime law
controlled to the exclusion of state law. The Court, therefore,
had to address whether “the federal maritime claim for
wrongful death recognized in Moragne suppl[tes] the
exclusive remedy in cases involving the deaths of nonseafarers
in territorial waters.” Jd. at 205. In deciding that federal
maritime claims for wrongful death did not displace state
remedies, the Court briefly discussed Moragne and included
two footnotes that, according to Garris, support her-position.
The first, footnote seven, states that
[i]f Moragne’s wrongful-death action did not
extend to nonseafarers like [the decedent], one
could hardly argue that Moragne displaced the
state-law remedies the Calhouns seek. Lower
courts have held that Moragne’s wrongful-death
action extends to nonseafarers. We assume, for
purposes of this decision, the correctness of that
position. Similarly, as in prior encounters, we
35a
Appendix F
assume without deciding that Moragne also
provides a survival action. The question we
confront is not what Moragne added io the
remedial arsenal in maritime cases, but what, if
anything, it removed from admiralty’s stock.
Id. at 211 n.7 (internal citations omitted). The other, footnote
eleven, states that “[w]hile unseaworthiness was the doctrine
immediately at stake in Moragne, the right of action, as stated
in the Court’s opinion, is ‘for death caused by violation of
maritime duties.’” Jd. at 214 n.1] (citing, inter alia,
Kermarec v. Compagnie Generale T: ransatlantique, 358 U.S.
625, 630 (1959) (stating that negligence is a violation of a
maritime duty), and G. Gilmore & C. Black, The Law of
Admiralty 368 (2d ed. 1975)).5
Garris argues that these footnotes demonstrate that the
Court interprets Moragne as recognizing a right of action
5. G. Gilmore & C. Black, The Law of Admiralty 368 (2d ed.
1975) states that “[f]rom Justice Harlan’s discussion of the
‘anomalies’ which the Moragne decision was designed to avoid
several conclusions clearly follow. ... The remedy provides
recovery for deaths caused by negligence as well as for deaths caused
by unseaworthiness. . . .” We note that this treatise offers no analysis
to support its assertion that Moragne created a general maritime
law cause of action for wrongful death based upon negligence. As
discussed above, we construe the Moragne Court’s analysis of the
three anomalies differently than Gilmore & Black and conclude that
the three anomalies applied only in the context of unseaworthiness.
See supra part II.B. (discussing the three anomalies). At least one
circuit has expresz!y rejected Gilmore & Black’s reading of
Moragne. See Ford v. Wooten, 681 F.2d 712, 717 n.4 (11th Cir.
1982) (referring to “Gilmore & Black’s unsubstantiated assertion
that negligence is actionable under Moragne’”’). ;
36a
Appendix F
“for death caused by violation of maritime duties,” including
negligence. Moragne, 398 U.S. at 409. We disagree.
Although footnotes seven and eleven, read by themselves,
arguably support Garris’s position, particulariy footnote
eleven’s reference to “the right of action” as being for the
“violation of maritime duties,” we note that the Court in
footnote seven expressly refrained from addressing this
question: “The question we confront is not what Moragne
added to the remedial arsenal in maritime cases, but what, if
anything, it removed from admiralty’s stock.” Yamaha, 516
U.S. at 210 n.7. Moreover, the Court in Yamaha recognized
that Moragne relied in large part on unseaworthiness, stating
explicitly that “[t}he disparity between the unseaworthiness
doctrine’s strict liability standard and negligence-based state
wrongful-death statutes figured prominently in our landmark
Moragne decision,” id. at 208, and that “[t]he uniformity
concern that drove our decision in Moragne related . . . to the
availability of unseaworthiness as a basis of liability,” id. at
211. Yamaha's recognition of the historical and legal context
of Moragne further supports our belief that Moragne was a
limited holding that came in response to a set of concerns that
arose specifically in the context of unseaworthiness.
Our conclusion is bolstered by those few circuits that
have addressed this issue. In Ford v. Wooten, 681 F.2d 712
(11th Cir. 1982), for example, the Eleventh Circuit refused
to construe Moragne as creating a general maritime law cause
of action for wrongful death based upon negligence, stating
that Moragne, “which mentioned unseaworthiness but never
expressly discussed negligence, pertained only to an
unseaworthiness claim.” /d. at 715. Likewise, in /vy v.
Security Barge Lines, Inc., 606 F.2d 524 (Sth Cir. 1979)
BM
37a
Appendix F
(en banc), the Fifth Circuit recognized that “Moragne did
not create or even discuss an action for negligence; it dealt
only with death occasioned by unseaworthiness.” /d. at $27.
Even the case upon which Garris relies, Nelson vy. United
States, 639 F.2d 469 (9th Cir. 1980), supports our conclusion
that Moragne did not itself recognize a general maritime law
cause of action for wrongful death based upon negligence.
In Nelson, the Ninth Circuit addressed “whether or not the
Government owes a duty of care to the employees of an
independent contractor which has been engaged by the
Government to perform hazardous maritime work.” Jd at
470. In determining the “[t]he precise nature of plaintiff's
cause of action,” the court noted that prior to Moragne,
there was no general maritime common law cause
of action for wrongful death; state wrongful death
acts were applied by federal courts sitting in
admiralty. We have found no case deciding
whether a Moragne suit may be based upon
negligence as well as unseaworthiness. We hold
that the need for uniformity in maritime wrongful
death actions requires extension of Moragne to
cover claims based on negligence, to the exclusion
of state wrongful death statutes.
Id. at 473 (internal citation omitted and emphasis added).
Thus, although the court found it appropriate to extend
Moragne, it also recognized that Moragne did not itself create
a general maritime law cause of action for wrongful death
based upon negligence.°
6. Indeed, Garris can point to only one federal court of appeals
that has construed Moragne consistently with her position. In
(Cont'd)
38a
Appendix F
Finally, Garris correctly notes that the Moragne Court
referred to maritime duties 1n its holding: “We accordingly
overrule The Harrisburg, and hold that an action does lie
under general maritime law for death caused by violation of
maritime duties.” /d. at 409. We do not believe, however,
that this vague reference to “maritime duties,” taken in the
context of the entire decision and the events prompting that
decision, is sufficient to counterbalance the Moragne Court’s
otherwise clear reliance on unseaworthiness as the basis for
its decision. The context under which Moragne was decided
speaks volumes; neither the events leading up to Moragne
— specifically, the emergence of unseaworthiness as a strict
(Cont'd)
Wahlstrom v. Kawasaki Heavy Indus., 4 F.3d 1084 (2d Cir. 1993),
the Second Circuit addressed whether “actions brought under the
federal courts’ admiralty jurisdiction are governed solely by federal
maritime law.” Jd. at 1085. The court, after a brief discussion of
Moragne, noted that
[t]he Court was addressing the specific issue of what, if
any remedy should be available for a wrongful death
caused within state territorial waters by a vessel’s
unseaworthiness, a claim for which there was no right
of recovery under applicable state law. In fashioning
the remedy, however, the Supreme Court did not limit
the new right of recovery to unseaworthiness claims,
but instead established a general remedy for wrongful
death under maritime law. i
Id. at 1088-89 (internal citation omitted). Garris has not offered,
nor have we found, another federal court of appeals decision that
has adopted Wahistrom’s reading of Moragne. For the reasons stated
above, we disagree with the Second Circuit’s reading of Moragne.
39a
Appendix F
liability doctrine and its absence in many state wrongful-
death statutes — nor the Court’s analysis of the three
anomalies, framed in the specific context of unseaworthiness,
apply equally to negligence-based actions.’
7. Garris argues that notwithstanding the limited issue before
the Court in Moragne and its historical context, the Moragne Court
must have intended to recognize a cause of action of wrongful death
for all breaches of maritime duties because it explicitly overruled
The Harrisburg, which held, in the context of a wrongful-death cause
of action based upon negligence under general maritime law, that
general maritime law did not afford recovery for wrongful death.
Garris argues that “[i]f the Court meant to limit its holding to
unseaworthiness, it would have merely distinguished The
Harrisburg.” (Appellant’s Br. at 7.) The Court in The Harrisburg,
however, relied explicitly upon /nsurance Co. v. Brame, 95 U.S.
754 (1877), which held “that by the common law no civil action
lies for an injury which results in death.” Jd. at 756. The Court in
The Harrisburg found no reason to apply a different rule in admiralty
than at common law, and, therefore, concluded that there could be
no civil action for wrongful death in admiralty absent a relevant
Statute. See The Harrisburg, 119 U.S. at 213-14. Thus, although the
issue before the Court in The Harrisburg had to do only with
negligence-based wrongful-death actions, its rationale was
applicable to all forms of wrongful death. The Moragne Court,
therefore, had to overrule, rather than distinguish, The Harrisburg
in order to create a general maritime law cause of action for wrongful
death based upon unseaworthiness. The Moragne Court’s necessary
step of overruling The Harrisburg does not suggest, as Garris argues,
that it actually intended to recognize a general maritime law cause
of action for wrongful death based upon negligence that was not
before it on appeal.
We note that the Court in Miles vy. Apex Marine Corp., 498
U.S. 19 (1990), read Moragne as recognizing a general maritime
(Cont'd)
40a
Appendix F
Our reading of Moragne, both from the Court’s language
and the context in which it was decided, as well as its
subsequent interpretation, leads us to the inescapable
conclusion that Moragne was, both at its heart and in its
facts, an unseaworthiness case. We, therefore, agree with
the district court and conclude that Moragne did not
recognize a general maritime law cause of action for wrongful
death based upon negligence.
Ill.
Having concluded that Moragne v. States Marine Lines,
Inc., 398 U.S. 375 (1970), did not create a general maritime
law cause of action for wrongful death based upon
negligence, we must now decide whether to extend Moragne
(Cont'd)
law cause of action for wrongful death based upon unseaworthiness
for seamen, as opposed to only longshoremen, partially because
“Moragne explicitly overruled The Harrisburg. The Harrisburg
involved a true seaman.” Jd. at 30 (internal citation omitted). The
other basis for the Miles Court’s reading of Moragne, however, was
that “all three of the ‘anomalies’ to which the Moragne cause of
action was directed involved seamen. . . . It would be strange indeed
were we to read Moragne as not addressing a problem that in large
part motivated its result.” Jd. The Court in Miles, therefore,
recognized a general maritime law cause of action for wrongful death
based upon unseaworthiness for seamen partially because the
reasoning applied equally between seamen and longshoremen. Here,
however, unlike in Miles, the reasoning does not apply equally
between unseaworthiness and negligence; the three “anomalies” in
Moragne related specifically to a wrongful-death cause of action
based upon unseaworthiness and had little relation to a wrongful-
death cause of action based upon negligence.
4la
Appendix F
to recognize such a cause of action. Because the creation of
a negligence-based wrongful-death action is Consistent with
the principles of uniformity and consistency that formed the
basis of Moragne, and because Congress has not affirmatively
precluded a negligence-based wrongful-death claim, we find
it appropriate to recognize a general maritime law cause of
action for wrongful death based upon negligence.
In deciding to recognize a general maritime law cause
of action for wrongful death based upon unseaworthiness,
the Moragne Court concluded that
the work of the legislatures has made the
allowance of recovery for wrongful death the
general rule of American law, and its denial the
exception. Where death is caused by the breach
of a duty imposed by federal maritime law,
Congress has established a policy favoring
recovery in the absence of a legislative direction
to except a particular class of cases.
Id. at 393. Applying this principle, the Moragne Court
examined the Jones Act and DOHSA to determine whether
Congress had expressed an intent to preclude a general
maritime law cause of action for wrongful death based upon
unseaworthiness. The Moragne Court rejected the argument
that DOHSA’s failure to account for an unseaworthiness-
based claim reflected a congressional intent to foreclose that
cause of action. The Moragne Court, pointing to the three
anomalies described above, noted that “[t]he resulting
discrepancy between the remedies for deaths covered by
[DOHSA] and for deaths that happen to fall within a state
42a
Appendix F
wrongful-death statute not encompassing unseaworthiness
could not have been foreseen by Congress.” /d. at 399.
The Moragne Court concluded that the absence of an
unseaworthiness-based wrongful-death cause of action in
DOHSA did not evidence a congressional intent to foreclose
such a cause of action because “no intention appears that
[DOHSA] have the effect of foreclosing any nonstatutory
federal remedies that might be found appropriate to effectuate
the policies of general maritime law.” /d. at 400.
The Moragne Court reasoned, instead, that creation of a
general maritime law cause of action for wrongful death
based upon unseaworthiness was consistent with the purpose
of the Jones Act, which
was intended to achieve uniformity in the exercise
of admiralty jurisdiction by giving seamen a
federal right to recover from their employers for
negligence regardless of the location of the injury
or death. That strong concern for uniformity is
scarcely consistent with a conclusion that
Congress intended to require the present
nonuniformity in the effectuation of the duty to
provide a seaworthy ship.
Id. at 401 (internal quotation marks omitted). The Moragne
Court concluded that “Congress has given no affirmative
indication of an intent to preclude the judicial allowance of
a remedy for wrongful death to persons in the situation of
this petitioner.” /d. at 393.
The Moragne Court’s examination of the three
anomalies, the Jones Act, and DOHSA is instructive. It
43a
Appendix F
demonstrates an analytical framework under which the
Moragne Court created a general maritime law cause of
action for wrongful death based upon unseaworthiness under
circumstances where: (1) Congress had not affirmatively
expressed an intention to bar such a Cause of action; and
(2) creation of that cause of action was consistent with the
policies of general maritime law articulated in the Jones Act
— uniformity in the exercise of admiralty jurisdiction.
This analytical framework likewise applies in the present
case and counsels in favor of recognizing a Moragne action
based upon negligence.* In the present case, Garris has no
right of recovery under the existing statutory scheme. Garris
cannot recover under DOHSA because her son died within
State territorial waters. She cannot recover under the Jones
Act because her son was a harbor worker, and not a seaman.
And, she apparently cannot recover against Norfolk under
the Virginia wrongful-death statute because the Virginia
worker’s compensation statute confers broader immunity
than the LHWCA; unlike the LHWCA, which bars suit only
against the immediate employer,’ the Virginia statute bars
8. A “Moragne action” or “Moragne cause of action” is simply
another term for a general maritime law cause of action for wrongful
death. See Miles y. Apex Marine Corp., 498 U.S. 19, 30 (1990)
(referring to a “Moragne cause of action” in deciding whether to
apply a general maritime law wrongful-death action to seamen);
Miller v. American President Lines, Ltd., 989 F.2d 1450, 1457
(6th Cir. 1993) (referring to a “Moragne action”).
9. The LHWCA sets forth the exclusive remedies for a
longshoreman or harbor worker’s injury or death “occurring upon
(Cont'd)
44a
Appendix F
state tort claims against contractors as well as immediate
employers.'® See Va. Code Ann. §§ 65.2-302, 307 (Michie
Supp. 1999); Ward v. Norfolk Shipbuilding & Drydock Corp.,
770 F. Supp. 1118, 1120 (E.D. Va. 1991) (“Under the
Virginia Act, a contractor such as Norshipco is the ‘statutory
employer’ of a subcontractor’s or sub-subcontractor’s
employee, and therefore liable for compensation to such an
employee. The exclusivity provision of the Virginia Act
makes the contractor immune from suit for negligence,
provided the subcontractors were performing the ‘normal
work’ of the contractor. The LHWCA reaches the opposite
result with respect to the liability of a contractor to a
subcontractor’s injured employee.”); cf Garvin v. Alumax
of South Carolina, 787 F.2d 910, 918 (4th Cir. 1986)
(“Congress has diligently attempted to preserve state law
governance of state law third party claims by recipients of
(Cont'd)
the navigable waters of the United States,” including adjoining piers
or dry docks, see 33 U.S.C.A. § 903(a) (West 1986), for injuries caused
by a maritime employer, co-employee, or vessel. See 33 U.S.C.A.
§§ 905, 933(1) (West 1986). The LHWCA requires the employer,
inter alia, to compensate the injured longshoreman or harbor worker
for certain disability costs, recovery costs, and to provide death
benefits to certain beneficiaries. See 33 U.S.C.A. §§ 906-910, 914
(West 1986). It also permits the longshoreman or harbor worker to
sue the employer if the employer fails to pay the prescribed benefits.
See 33 U.S.C.A. § 905(a). As part of this compensation scheme, the
LHWCA confers immunity to an immediate employer from tort suits
by injured employees. See id.
10. That is presumably why Garris has sued only Gresham,
and not Norfolk, in state court under the Virginia wrongful-death
statute.
45a
Appendix F
LHWCA compensation. Since there is no conflict between
differing rules of immunity and application of South
Carolina’s rule [granting immunity to contractors] will not
frustrate the effectiveness of any federal law ... the
contractor [ ] is immune from this state tort claim.”). In other
words, because Garris’s son was a harbor worker who
happened to be killed in Virginia’s territorial waters, Garris
cannot recover against Norfolk absent a federal maritime law
cause of action for wrongful death based upon negligence.
We see no reason to deny Garris a basis of recovery
simply because her son was a harbor worker who died in
Virginia, as opposed to another state that permits recovery
against contractors. First, Congress has not affirmatively
expressed an intent to preclude a negligence-based wrongful-
death cause of action against a third party. As the Court noted
in Moragne, DOHSA does not preclude a “nonstatutory
federal remed[y] that might be found appropriate to effectuate
the policies of general maritime law.” Moragne, 398 U.S. at
400. And, like DOHSA, the LHWCA does not evidence a
congressional intent to preclude a general maritime law cause
of action against third parties for wrongful death based upon
negligence.'' Second, recognition of a general maritime law
11. The LHWCA generally does not address rights of recovery
against third parties except in one instance: the LHWCA eliminated
unseaworthiness as a cause of action against the vessel with respect
to longshoremen and harbor workers and replaced that cause of
action by permitting longshoremen and harbor workers to bring suit
for negligence “against [the] vessel as a third party.” See 33 U.S.C.A.
§ 905(b) (West 1986); Miles v. Apex Marine Corp., 498 U.S. 19, 28
(1990) (“If Moragne’s widow brought her action today, it would be
(Cont'd)
46a
Appendix F
cause of action for wrongful death based upon negligence
“effectuate[s] the policies of general maritime law” because
it is consistent with the policy of achieving uniformity in
admiralty law. Jd. at 400. The location of a harbor worker’s
death — a fact of true happenstance — should not determine
(Cont'd)
foreclosed by statute.”); Garvin v. Alumax of South Carolina, 787
F.2d 910, 917 (4th Cir. 1986) (“Except with respect to claims against
vessels addressed in 33 U.S.C.A. § 905(b), the LHWCA does not
address the substantive rights of claimants against third parties.”’).
We recognize that Congress’s removal of the unseaworthiness
cause of action for longshoremen and harbor workers reduced their
overall right of recovery. See Holland v. Sea-Land Serv., Inc., 655
F.2d 556, 558-59 (4th Cir. 1981) (stating that Congress “substantially
limited the right of longshoremen to recover from third parties in
tort actions” by eliminating unseaworthiness as a cause of action,
but “preserve[d] his right under prior law to recover for third party
negligence”). This restriction of rights, however, occurred within
the limited context of unseaworthiness, and for a very specific
reason: “ ‘[t]he rationale which justifies holding the vessel absolutely
liable to seamen if the vessel is unseaworthy does not apply with
equal force to longshoremen and other non-seamen working on board
a vessel while it is in port.’ ” Harwood v. Partredereit AF 15.5.81,
944 F.2d 1187, 1198 (4th Cir. 1991) (Ervin, J., dissenting) (quoting
H.R. Rep. No. 92-1441, 92nd Cong., 2d Sess., reprinted in 1972
U.S. Code Cong. & Admin. News 4698, 4703). We do not believe
that this limited curtailment of longshoremen and harbor workers’
rights is inconsistent with our recognition of a general maritime law
cause of action against third parties for wrongful death based upon
negligence, nor does it express an affirmative congressional intent
to preclude such a cause of action. Indeed, the LHWCA expressly
leaves intact a longshoreman or harbor worker’s rights against all
other third parties except the employer and “persons in the same
employ.” See 33 U.S.C.A. § 933(i) (West 1986).
47a
Appendix F
an injured party’s ability to recover for wrongful death.!
Because such a cause of action is consistent with the
framework set forth in Moragne, we hold that a general
maritime law cause of action against third Parties for
wrongful death based upon negligence is available where a
federal claim; when the third party claim is a state law Claim, the
immunity rules of that state are to be applied.” Jd. at 917. Because
Garvin dealt only witha State claim, and not a federal claim, Garvin
is not inconsistent with our decision in the present case.
Nor does a negligence-based Moragne cause of action violate
“important federalism principles” by impermissibly interfering with
Virginia’s grant of immunity to Norfolk under State law. (Appellee’s
Br. at 21.) First, the broader Virginia immunity rule would still apply
to any state tort actions brought by Garris. To that extent, a Moragne
cause of action does not interfere with state law at all. Second,
.. .. Permissible state regulation . . . must be consistent with federal
maritime principles and policies.” Yamaha Motor Corp. v. Calhoun,
Supplement federal maritime policies, a state may not deprive a
person of any substantial admiralty rights as defined in controlling
acts of Congress or by interpretive decisions of this Court.”).
Accordingly, Norfolk’s federalism argument does not deter us from
recognizing a Moragne cause of action in this context.
48a
Appendix F
harbor worker, such as Garris’s son, dies within state
territorial waters.'’ For that reason, we reverse the district
13. We recognize that the Supreme Court, in Dooley v. Korean
Air Lines Co., 118 S.Ct. 1890 (1998), declined to extend general
maritime law to permit recovery for pre-death pain and suffering under
a general maritime law survival cause of action. See id. at 1895. In
Dooley, the Court reyected the argument that DOHSA, which does not
authorize recovery for pre-death pain and suffering, did not bar such
damages under general maritime law because DOHSA is a wrongful-
death statute rather than a survival statute. See id. The Court stated that
DOHSA expresses Congress’ judgment that there
should be mo such cause of action in cases of death on
the high seas. By authorizing only certain surviving
relatives to recover damages, and by limiting damages
to the pecuniary losses sustained by those relatives,
Congress provided the exclusive recovery for deaths that
occur on the high seas.
Id. at 1894-95. The Court noted that “[b]ecause Congress has already
decided these issues, it has precluded the judiciary from enlarging either
the class of beneficiaries or the recoverable damages.” /d. at 1895.
Moreover, “it cannot be contended that DOHSA has no bearing on
survival actions; rather, Congress has simply chosen to adopt a more
limited survival provision.” /d. The Court concluded that “[e]ven in
the exercise of our admiralty jurisdiction, we will not upset the balance
struck by Congress by authorizing a cause of action with which Congress
was certainly familiar but nonetheless declined to adopt.” Jd.
Unlike DOHSA, which addressed the remedy sought by the
petitioners in Dooley, and, therefore, pervaded the field on that issue,
the LHWCA does not address the third party cause of action that
Garris seeks in the present case. In fact, as noted above, the LHWCA
addresses third party rights only in the limited context of eliminating
(Cont’d)
49a
Appendix F
court’s dismissal of Garris’s general maritime law
negligence-based claim and remand for further proceedings
consistent with this opinion.
IV.
In conclusion, the language of Moragne v. States Marine
Lines, Inc., 398 U.S. 375 (1970), combined with its historical
and legal context and the absence of persuasive authority to
the contrary, leads us to conclude that Moragne recognized
only a general maritime law cause of action for wrongful
death based upon unseaworthiness and not for wrongful death
based upon negligence. However, because Congress has not
affirmatively precluded a negligence-based cause of action,
and because such a cause of action is consistent with the
principle of uniformity expressed in Moragne and Miles y.
Apex Marine Corp., 498 U.S. 19, 33 (1990) (“Today we
restore a uniform rule applicable to all actions for the
wrongful death of a seaman, whether under DOHSA, the
Jones Act, or general maritime law.”), we find it appropriate
to recognize a general maritime law cause of action for wrongful
death based upon negligence. Accordingly, we reverse the
district court’s dismissal of Garris’s general maritime law
negligence-based claim and remand for further proceedings.
REVERSED AND REMANDED
(Cont'd)
an unseaworthiness action against the vessel and replacing it witha
negligence action against the vessel. Thus, unlike the Court in
Dooiey, we can find no congressional intent that precludes us from
recognizing a Moragne cause of action against third parties other
than vessels for wrongful death based upon negligence.
50a
Appendix F
HALL, Senior Circuit Judge, concurring in the judgment:
Over the past three decades, Justice Harlan’s opinion in
Moragne vy. States Marine Lines, Inc., 398 U.S. 375 (1970),
has come to occupy an important place within the Supreme
Court’s canon. Generations of la\ students have studied
Moragne for its scholarly discussion of legal process and
the role of precedent. But before those students reach these
abstract questions, their professors have no doubt tormented
them by asking a seemingly simple question that defies a
simple answer: What, precisely, is the holding of Moragne?
I.
The majority, which concludes in the first instance that
Moragne’s holding is limited to wrongful death
unseaworthiness claims, gives what is in many ways a
reasonable answer to that thorny question — albeit one with
which I cannot concur. And Part III of the majority opinion
ultimately reaches the right result by finding a Moragne cause
of action on the instant set of facts. The majority’s
explanation of why congressional silence and Appellant’s
lack of a state-law remedy warrant the creation of a federal
admiralty remedy is particularly laudable. Because I would
hold that Moragne already covers Appellant’s claim, I find
it unnecessary to reach Part III’s analysis. But if I were
inclined to interpret Moragne as narrowly as the majority
does, I would certainly assent to Part III’s sound discussion.
Those words of explanation having been voiced, I shall
explain why, in my view, Moragne itself created a cause of
action for negligence-based wrongful death.
Sla
Appendix F
I.
In The Harrisburg, 119 U.S. 199 (1886), the Supreme
Court held that general maritime law provided no cause of
action for wrongful death. At the time, any successful
wrongful death suit would have required the plaintiff to prove
that the defendant acted negligently, and negligence was
indeed the theory of liability pressed by The Harrisburg
plaintiff and the only theory of negligence considered by
the Supreme Court. See id. at 204.
Fifty-eight years later the Supreme Court recognized,
for the first time, the doctrine of unseaworthiness.
See Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944);
see also Yamaha Motor Corp. v. Calhoun, 516 U.S. 199,
208 (1996) (“Prior to 1944, unseaworthiness was an obscure
and relatively little used liability standard .. . .”) (internal
quotations marks omitted). In contrast to negligence,
unseaworthiness is a strict liability theory flowing from the
ship’s owner to its crew, longshoreman, or harbor workers
aboard the ship. See Ballwanz v. Isthmian Lines, 319 F.2d
457, 461 (4th Cir. 1963).
Twenty-six years after Mahnich, the Supreme Court
decided Moragne, 398 U.S. at 375. In Moragne the plaintiff
was a longshoreman’s widow who brought an unseaworthiness
suit against the owner of a ship on which her husband had
perished. Like Appellant, the Moragne plaintiffs loved one
had been killed while working aboard a vessel in navigable
waters within a state’s territorial waters. See id. at 376.
Although no federal statute authorized recovery for the
widow, the Supreme Court nevertheless allowed her suit to
52a
Appendix F
proceed. In order to do so, the Supreme Court said it was
compelled to overrule The Harrisburg, stare decisis
considerations notwithstanding. In broad language, Justice
Harlan, writing for a unanimous Court, announced the rule
of Moragne: “We accordingly overrule The Harrisburg, and
hold that an action does lie under general maritime law for
death caused by violation of maritime duties.” Jd. at 409.
Two aspects of the Moragne opinion are of pivotal
importance in the case at bar. First, the court explicitly
announced that a cause of action exists for a “violation of
maritime duties,” not just for “unseaworthiness.” Had the
Court sought to limit its holding to unseaworthiness, it could
have easily done so. Second, and relatedly, had the Supreme
Court sought only to allow the plaintiff to recover in her
unseaworthiness-based wrongful death action, it could easily
have distinguished The Harrisburg. After all, The Harrisburg
held that there was no general maritime law cause of action
for negligence-based wrongful death suits, but The Harrisburg
said nothing about the presence or absence of a general
maritime law cause of action for unseaworthiness-based
wrongful death suits, since the unseaworthiness theory of
liability did not enter the Supreme Court’s lexicon until fifty-
eight years after The Harrisburg was handed down. But the
Supreme Court consciously, and with much fanfare,’
1. Justice Harlan’s opinion in Moragne devotes seven
fascinating pages to the “very weighty considerations” of stare
decisis that augured against overruling The Harrisburg.
See Moragne, 398 U.S. at 403-09. Anyone who reads this discussion
comes away from it profoundly impressed with Justice Harlan’s
reverence for precedent and his reluctance to cast aside a controlling
(Cont'd)
$3a
Appendix F
overruled The Harrisburg instead of distinguishing it.? In so
(Cont'd)
precedent in the absence of compelling reasons to do so. Indeed,
scholars have long appreciated Justice Harlan’s Particularly hardy
the principle of judicial restraint, see, e.g., Stephen M. Dane,
“Ordered Liberty” and Self-Restraint: The Judicial Philosophy of
the Second Justice Harlan, 51 U. Cin. L. Rev. 545 (1982).
follow from the majority’s holding today: Either Moragne’s
overruling of The Harrisburg was mere dicta or Justice Harlan and
death suits, but not negligence-based wrongful death suits.
2. The majority contends that Moragne had to overrule
The Harrisburg because The Harrisburg’s “rationale was applicable
(Cont’d)
54a
Appendix F
doing, the Court must have believed that there was no
principled basis for distinguishing between negligence-based
wrongful death suits and unseaworthiness-based wrongful
death suits under general maritime law. Yet that is precisely
the distinction that the majority draws today.
In order to fully understand Moragne, courts have often
looked to the three famous “anomalies” that The Harrisburg
and pre-Moragne developments had wrought. See, e.g.,
Miller v. American President Lines, 989 F.2d 1450, 1458
(6th Cir. 1993); Bodden v. American Offshore, Inc., 681 F.2d
319, 323 (Sth Cir. 1982). The Moragne Court was terribly
troubled by these inconsistencies that had emerged in
(Cont'd)
to all forms of wrongful death.” Maj. op. at 15 n.7. In so doing, the
majority emphasizes The Harrisburg’s reliance on Jnsurance Co. v.
Brame, 95 U.S. 754 (1877), which held that under the common law,
“actions for injuries to the person abate by death,” see id. at 759.
I fail to see why Brame alters the analysis. At the time of The
Harrisburg, the common law recognized no wrongful death cause
of action. Among the possible theories of liability, the only candidate
for a wrongful death recovery action would have been negligence
because, as I noted above, the strict-liability theory of wrongful death
recovery would not make its way into American admiralty
jurisprudence for another fifty-eight years. It is therefore not
surprising that The Harrisburg Court considered the question before
it in the narrowest of terms: “Can a suit in admiralty be maintained
in the courts of the United States to recover damages for the death
of a human being on the high seas, or waters navigable from the
sea, caused by negligence, in the absence of an act of congress or a
statute of a state giving a right of action therefor?” 119 U.S. at 204
(emphasis added). Thus, the majority’s view appears to be that the
Moragne Court read The Harrisburg to preclude a cause of action
that had not yet been invented.
SSa
Appendix F
admiralty law, whereby a seaman might recover damages if
injured within territorial waters, but not if killed within those
same waters; whereby a seaman’s estate could recover in an
unseaworthiness action if he was killed on the high seas but
not if killed within a State’s territorial waters; and whereby
a seaman’s estate could not recover for wrongful death if he
were killed within territorial waters, but a longshoreman’s
estate could. See id. at 395-96. By overruling The Harrisburg
and removing these anomalies, the Court saw itself as
assuring “uniform vindication of federal policies [by]
removing the tensions and discrepancies that have resulted
from the necessity to accommodate state remedial statutes
to exclusively maritime substantive concepts.” /d. at 401.
The majority concludes that Moragne’s three anomalies
are not directly implicated by the instant case. | disagree.
The purpose of Moragne was to allow individuals who are,
for all intents and purposes, equally situated, to obtain equal
recoveries in the event of their deaths. In other words,
happenstance should not determine whether an individual’s
heirs have a cause of action in the event of his untimely death.
But, as the majority points out, Appellant’s misfortune here
is purely driven by happenstance. Maj. op. at 17-19. Had
Garris been a seaman, Appellant would have had a wrongful
death cause of action under the Jones Act or general maritime
law. But because Garris was a longshoreman, the Jones Act is
inapplicable, and Appellant is now unable to bring any suit under
general maritime law. Had Garris’s death resulted from the
actions of the ship’s owner, Appellant could have recovered
under the Longshore & Harbor Workers’ Compensation Act
(“LHWCA”), 33 U.S.C. § 905(b). But because his death
allegedly resulted from the actions of subcontractors working
S6a
Appendix F
aboard the ship, such a remedy is not available to Appellant.
] am hardly alone in understanding Moragne’s anomalies to
be directly implicated by the set of facts presented in the
instant case. To Grant Gilmore and Charles Black, two of
their generation’s towering legal minds, it “clearly
follow[ed]” from Moragne that “The Moragne remedy ....
provides recovery for deaths caused by negligence as well
as for deaths caused by unseaworthiness.” Grant Gilmore &
Charles L. Black, Jr. The Law of Admiralty 368 (2d ed. 1974).
In 1980, a Ninth Circuit opinion cited page 368 of the
Gilmore and Black treatise and largely agreed with those
scholars’ reading of Moragne. See Nelson v. United States, 639
F.2d 469, 473 (9th Cir. 1980). While observing that no post-
Moragne published opinion had decided whether a Moragne
suit “could be based on negligence as well as unseaworthiness,”
the court expressed sympathy for Gilmore and Black’s view
that the obvious implication of Moragne was that negligence
suits were covered under the general maritime law. The Court
held that the “need for uniformity in maritime wrongful death
actions requires extension of Moragne to cover claims based
on negligence, to the exclusion of state wrongful death statutes.”
Id. The majority reads Nelson as recognizing “that Moragne
did not itself create a general maritime law cause of action for
wrongful death based upon negligence.” Maj. op. at 13.
Although the question is admittedly close, I read no such
analysis into Nelson, and believe the majority places too
much emphasis on Nelson’s use of the word “extension.”
3. When an opinion is obviously applicable to a nearly identical
set of facts, it is nevertheless accurate to say that the opinion still
must be “extended” to cover the second set of facts. Sometimes,
. (Cont’¢)
57a
Appendix F
Indeed, Nelson’s invocation of page 368 of Gilmore and
Black suggests a contrary view.
As the majority recognizes, the Second Circuit has also
held that Moragne created a negligence-based cause of action
as well as an unseaworthiness-based cause of action.
See Wahlstrom v. Kawasaki Heavy Indus., 4 F.3d 1084 (2d
Cir. 1993). The Second Circuit correctly held that the
Moragne Court “did not limit the new right of recovery to
unseaworthiness claims, but instead established a general
remedy for wrongful death under maritime law.” /d. at 1088-
89. The majority’s assertion that no court has adopted
Wahlstrom’s reasoning is misleading. Wahistrom is
consistent with Nelson, and Wahlstrom was the last circuit
court case to consider the issue that is before this Court today.
The majority seeks solace in an Eleventh Circuit case,
but that reliance is somewhat misplaced. Admittedly, the
Eleventh Circuit has held that Moragne does not create a
negligence-based wrongful death cause of action “where a
cause of action exists for wrongful death under DOHSA
[the Death on the High Seas Act].” Ford y. Wooten, 681
F.2d 712, 716 (11th Cir. 1982). But it is undisputed that
Appellant has no DOHSA remedy here, because Garris’s
injury occurred in territorial waters. In Ford, the Eleventh
(Cont'd) -
a minimal extension of the prior precedent to a situation clearly
controlled by that precedent even warrants the publication of a
Subsequent opinion. See, e.g., Boulahanis v. Board of Regents, 198
F.3d 633 (7th Cir. 1999) (extending Kelley v. Board of Trustees,
35 F.3d 265 (7th Cir. 1994), while recognizing that Kelley plainly
controlled the case at bar).
58a
Appendix F
Circuit premised its opinion upon a balancing of interests
where the interest in uniformity favored granting a remedy
and “consistency with federal remedial schemes” favored
withholding a remedy. The court held that “[a]t least where
statutory remedies exist, we deem consistency with the
federal remedial schemes to be more important than the
somewhat limited loss of uniformity.” /d. (emphasis added).
Notably, a general maritime law cause of action would have
conflicted with DOHSA because DOHSA “already provides
a cause of action for death due to negligence.” /d. Where, as
in the case at bar, no federal statute authorizes or bars a
recovery from the third party alleged to have caused Garris’s
death, there is nothing to balance the interest in uniformity,
so Moragne creates a cause of action.*
4. Both parties invoke the Fifth Circuit’s precedents as
supporting their respective readings of Moragne. Surprisingly, both
parties appear to be correct. In /vy v. Security Barge Lines, Inc.,
606 F.2d 524, 527 (Sth Cir. 1979) (en banc), the Fifth Circuit held:
Other reasons, somewhat more complex, appear to
preclude interpreting the Jones Act as being supplemented
by a Moragne-engendered negligence action for damages
if (but only if) death occurs in territorial waters or on
land. Moragne did not create or even discuss an action
for negligence; it dealt only with death occasioned by
unseaworthiness. The suggestion that the Jones Act
measure of damages can be supplemented by the
Moragne-cause-of-action-Gaudet-damages rule will not
bear analysis ....
A decade later, the Fifth Circuit appears to have reversed course,
observing that in “Moragne, the Supreme Court recognized a
(Cont’d)
59a
Appendix F
Any lingering doubts about whether Moragne created a
negligence-based wrongful death cause of action were laid
to rest by the Supreme Court in 1996. In Yamaha Motor
Corp., 516 U.S. at 199, the Court held that Moragne did not
preempt state law remedies for wrongful death resulting from
injuries to nonseamen in territorial waters. But it is one of
Yamaha’s footnotes, not its holding, that definitively resolves
the instant case. Footnote 11 reads in pertinent part:
While unseaworthiness was the doctrine
immediately at stake in Moragne, the right of
(Cont'd)
wrongful death action for negligence and unseaworthiness under
the general maritime law.” Miles y. Melrose, 882 F.2d 976, 985
(Sth Cir. 1989), aff'd sub nom. Miles v. Apex Marine Corp., 498
U.S. 19 (1990). Ordinarily, an en banc opinion would trump a panel
opinion, but that might not be the case where, as here, the panel
opinion post-dates the en banc opinion or where, as here, only the
panel opinion was affirmed by the Supreme Court. The Fifth Circuit
thus appears to find itself on both sides of a circuit split.
Nevertheless, the majority opinion cites /vy as the current F ifth
Circuit law. Maj. op. at 13. Assuming, arguendo, the correctness of
that assessment, I would emphasize that /vy’s holding is inapplicable
to the case at bar. The Ivy court’s analysis was animated by the
problem of double recoveries for someone under Moragne and the
Jones Act. Appellant, and those similarly situated, are not eligible
for such a double recovery, since the Jones Act covers seamen, but
not longshoremen. The Longshore & Harbor Workers’ Compensation
Act (LHWCA), which covers Garris, does not provided for a
wrongful death cause of action against a subcontractor. Hence, there
is no risk that Appellant might recover twice, unless one construes
funeral benefits from an employer and wrongful death benefits from
a third-party subcontractor to be a double recovery.
60a
Appendix F
action, as stated in the Court’s opinion, 1s “for
death caused by violation of maritime duties.” . .
See ... Kermarec, 358 U.S. at 630, 79 S.Ct. at
409-410 (negligence). See also G. Gilmore & C.
Black, The Law of Admiralty 368 (2d ed. 1975).
Id. at 214 n.11. This footnote is a crucial clue for at least
two reasons. First, the Court emphasized that the Moragne
cause of action covered something in addition to
unseaworthiness causes of action, and the citation to
Kermarec v. Compagnie Generale Transatlantique, 358 U.S.
625, 630 (1959), makes it rather clear that negligence causes
of action for wrongful death were part of that “something”
encompassed by the broader language “violation of maritime
duties.” See Steven F. Friedell, Searching for a Compass:
Federal and State Law Making Authority in Admiralty,
57 La. L. Rev. 825, 835 (1997) (“[T]he holding in Moragne
was not limited to unseaworthiness. The Court held that ‘an
action does lie under general maritime law for death caused
by violation of maritime duties.’ As recognized by the
Yamaha Court, this encompasses not only unseaworthiness
but also products liability and negligence.’’).
Second, and perhaps even more importantly, the
Supreme Court cited favorably to the aforementioned page
368 of the Gilmore and Black treatise, where the authors
concluded that the Moragne remedy “provides recovery for
deaths caused by negligence as well as for deaths caused by
unseaworthiness.” Gilmore & Black, supra, at 368. This
citation, combined with the text of footnote 11 and the
citation to Kermarec, make it clear that the Yamaha Court
understood Moragne’s remedy as encompassing claims like
6la
Appendix F
Appellant’s. Although footnote 11] is dicta, it deserves special
solace from this Court because it Clarifies the Supreme
Court’s understanding of one of its Own opinions. See United
States v. City of Hialeah, 140 F.3d 968, 974 (11th Cir. 1998)
(“Even though that statement by the Supreme Court in Local
93 was dictum, it is of considerable persuasive value,
especially because it interprets the Court’s own precedent.”).
IT].
Ultimately, the agreement between my view and the
majority’s is far more important than our points of contention.
It goes without Saying that Appellant has a cause of action
under either reading of Moragne. | write separately to
emphasize that in my view Appellant’s cause of action is
not a new ship that has suddenly appeared on the horizon.
Rather, Appellant’s cause of action has been lurking just
under the surface for quite some time. For the foregoing
reasons, I concur in the judgment.
62a
APPENDIX G — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
DENYING PETITION FOR REHEARING
DATED AND FILED JUNE 1, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-2368
(CA-98-382-2)
CELESTINE GARRIS, Administratrix of the
Estate of Christopher Garris, deceased,
Plaintiff — Appellant,
versus
NORFOLK SHIPBUILDING & DRYDOCK
CORPORATION,
Defendant — Appellee,
and
E.T. GRESHAM, INCORPORATED,
Defendant.
ON PETITION FOR REHEARING EN BANC
Appellees filed a petition for rehearing en banc.
A member of the Court requested a poll on the petition
for rehearing en banc. The poll failed to produce a majority
63a
Appendix G
of judges in active service in favor of rehearing en banc.
Judges Widener and Niemeyer voted to rehear the case
en banc. Chief Judge Wilkinson and Judges Murnaghan,
Wilkins, Lutti g, Williams, Michael, Motz, Traxler, and King
voted against rehearing en banc.
The Court denies the petition for rehearing en banc.
Entered at the direction of J udge Williams for the Court.
For the Court
/s/ Patricia S. Connor
Clerk
64a
APPENDIX H — DISSENTING OPINION OF JUDGE
WIDENER OF THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT TO THE
ORDER DENYING PETITION FOR REHEARING
DATED AND FILED JUNE 2, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-2368
(CA-98-382-2)
CELESTINE GARRIS, Administratrix of the
Estate of Christopher Garris, deceased,
Plaintiff — Appellant,
versus
NORFOLK SHIPBUILDING & DRYDOCK
CORPORATION,
Defendant — Appellee,
and
E.T. GRESHAM, INCORPORATED,
Defendant.
ON PETITION FOR REHEARING EN BANC
6Sa
Appendix H |
WIDENER, Circuit Judge, dissenting:
I respectfully dissent to the denial of rehearing en banc
in this case. I would grant rehearing en banc in this case of
first impression.
The panel opinion relies almost exclusively on the
opinion in Moragne v. States Marine Lines, Inc., 398 U.S.
375 (1970). In Moragne, the Court addressed discrepancies
“between the remedies for deaths covered by the Death on
the High Seas Act and for deaths that happen to fall within a
State wrongful death statute not encompassing unseaworthiness
...." 398 U.S. at 399. Finding that Congress could not have
foreseen these discrepancies, the Court concluded that the
Death on the High Seas Act did not foreclose any nonstatutory
federal remedies that would effectuate the policies of general
maritime law. Moragne, 398 U.S. at 399-400.
With respect to longshoremen and other harbor workers,
the Moragne Court found that a claim for wrongful death
based upon the unseaworthiness of a vessel was viable
because the unseaworthiness doctrine had been extended to
longshoremen as the principal vehicle for recovery of injury
or death while performing work on a vessel, Moragne, 398
U.S. at 399, on the authority of Seas Shipping Co. v. Sieracki,
328 U.S. 85 (1946). Sieracki extended to land-based
stevedores the right given by maritime law to seamen to
recover against the ship owner, without the need of proving
negligence, for injuries caused by the unseaworthiness of
the vessel. Following Sieracki, courts made awards to
longshoremen on the basis of unseaworthiness. And, as
noted, the Meragne Court specifically retied on the Sieracki
66a
Appendix H
decision to extend the coverage of a wrongful death cause
of action based on unseaworthiness to a longshoreman.
In 1972, Congress enacted various amendments to the
Longshore and Harbor Workers’ Compensation Act. As part
of these amendments, Congress added 33 U.S.C. § 905(b),
which specifically eliminates the right of longshoremen and
harbor workers to recover against the vessel on the basis of
unseaworthiness. See Scindia Steam Navigation Co. v.
De Los Santos, 451 U.S. 156, 165 (1981) (longshoreman’s
right to recover for unseaworthiness abolished); Herbert R.
Baer, Admiralty Law of the Supreme Court § 6-17 at 90-91
(2d ed. Supp. 1977). The legislative history mentions Sieracki
by name and rejects the holding of that case to the extent
that it created an absolute duty of seaworthiness to
“longshoreman and others who performed work on the
vessel.” H.R. Robert E. Payne. No. 92-1441 (1972), reprinted
in 1972 U.S.C.C.A.N. 4698, 4702. Thus, because Moragne
relies on Sieracki to extend a wrongful death action based
on unseaworthiness to longshoremen and harbor workers,
to the extent of that reliance Moragne was superceded and
reversed by the 1972 amendments to the act. Thus, the panel
opinion’s reliance on this portion of Moragne is misplaced.
The legislative history of the 1972 amendments to the
Act are particularly relevant to our decision in this case. It is
clear from this history that Congress intended to “place an
employee injured aboard a vessel in the same position he
would be if he were injured in non-maritime employment
ashore, insofar as bringing a third party damage action is
concerned, and not to endow him with any special maritime
theory of liability or cause of action under whatever judicial
67a
Appendix H
nomenclature it may be called, Such as ‘unseaworthiness’,
non-delegable duty’, or the like.” 1972 U.S.C.C.A.N 4698,
4703:!
In spite of this explicit expression of Congressional
intent, the panel opinion creates a new cause of action which
is exactly the opposite of that which Congress intended. F irst,
the decision creates a “special maritime theory of liability”
— One for wrongful death based on negligence. Second, the
decision gives an employee injured aboard a vessel a cause
of action that a Virginia worker on shore would not have.
In a case such as this in which Congress has made its
intention explicit, | suggest it is beyond our warrant to
substitute our notions of public policy for that of Congress.
Local 1976, United Bhd of Carpenters and Joiners y.
N.L.R.B., 357 U.S. 93, 100 (1958) (“[I]t is the business of
Congress to declare policy and not this Court’s. The judicial
function is confined to applying what Congress has enacted
after ascertaining what it is that Congress has enacted.”’).
“Whether the federal policy is a wise one is for the Congress
and the Chief Executive to determine. Once they have
spoken, it is our function to enforce their will.” United States
v. Georgia Pub. Serv. Comm'n, 371 U.S. 285, 293 (1963).
1. As Scindia points out both the Senate and House Committee
Reports agree on this language. Scindia, 45} U.S. at 165-166 n.13.
O8a
APPENDIX I — RELEVANT STATUTES
The Longshore and Harbor Workers Compensation Act,
33 U.S.C.A. §§ 903(a), 904, 905(a)-(b), 909 (West 1986).
§ 903. Coverage.
(a) Disability or death; injuries occurring upon
navigable waters of United States. Except as otherwise
provided in this section, compensation shall be payable under
this chapter in respect of disability or death of an employee,
but only if the disability or death results from an injury
occurring upon the navigable waters of the United States
(including any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area
customarily used by an employer in loading, unloading,
repairing, dismantling, or building a vessel).
§ 904. Liability for compensation.
(a) Every employer shall be liable for and shall secure
the payment to his employees of the compensation payable
under sections 907, 908, and 909 of this title. In the case of
an employer who is a subcontractor, only if such
subcontractor fails to secure the payment of compensation
shall the contractor be liable for and be required to secure
the payment of compensation. A subcontractor shall not be
deemed to have failed to secure the payment of compensation
if the contractor has provided insurance for such
compensation for the benefit of the subcontractor.
(b) Compensation shall be payable irrespective of fault
as a cause for the injury.
69a
Appendix |
§ 905. Exclusiveness of liability.
(a) Employer liability; failure of employer to secure
payment of compensation. The liability of an employer
prescribed in section 904 of this title shall be exclusive and
In place of all other liability of such employer to the
employee, his legal representative, husband or wife, parents,
dependents, next of kin, and anyone otherwise entitled to
recover damages from such employer at law or in admiralty
on account of such injury or death, except that if an employer
fails to secure Payment of compensation as required by this
chapter, an injured employee, or his legal representative in
employees only if the subcontractor fails to secure the payment
of compensation as required by section 904 of this title.
(b) Negligence of vessel. In the event of injury to a
person covered under this chapter caused by the negligence
of a vessel, then such person, or anyone otherwise entitled
lo recover damages by reason thereof. may bring an action
70a
Appendix I
shall be void. If such person was employed by the vessel to
provide stevedoring services, no such action shall be permitted
if the injury was caused by the negligence of persons engaged
in providing stevedoring services to the vessel. If such person
was employed to provide shipbuilding, repairing, or breaking
services and such person’s employer was the owner, owner
pro hac vice, agent, operator, or charterer of the vessel, no such
action shall be permitted, in whole or in part or directly or
indirectly, against the injured person’s employer (in any
capacity, including as the vessel’s owner, owner pro hac vice,
agent, operator, or charterer) or against the employees of the
employer. The liability of the vessel under this subsection shall
not be based upon the warranty of seaworthiness or a breach
thereof at the time the injury occurred. The remedy provided in
this subsection shall be exclusive of all other remedies against
the vessel except remedies available under this chapter.
§ 909. Compensation for death.
If the injury causes death, the compensation therefore
shall be known as a death benefit and shall be payable in the
amount and to or for the benefit of the persons following:
(a) Reasonable funeral expenses not exceeding $3,000.
(b) If there be a widow or widower and no child of the
deceased, to such widow or widower 50 per centum of the
average wages of the deceased, during widowhood, or
dependent widowerhood, with two years’ compensation in
one sum upon remarriage; and if there be a surviving child
or children of the deceased, the additional amount of 16 2/3
per centum of such wages for each such child; in case of the
7la
Appendix |
death or remarriage of such widow or widower, if there be
one surviving child of the deceased employee, such child
Shall have his compensation increased to 50 per centum of
such wages, and if there be more than one surviving child of
the deceased employee, to such children, in equal parts,
50 per centum of such Wages increased by 16 2/3 per centum
of such wages for each child in excess of one: Provided,
That the total amount payable shall in no case exceed 66 2/3
per centum of such wages. The deputy commissioner having
jurisdiction over the claim may, in his discretion, require
the appointment of a guardian for the purpose of receiving
the compensation of a minor child. In the absence of such a
requirement the appointment of a guardian for such purposes
shall not be necessary.
(c) {f there be one Surviving child of the deceased, but
no widow or widower, then for the support of such child
50 per centum of the wages of the deceased; and if there be
more than one Surviving child of the deceased, but no widow
or dependent husband, then for the Support of such children,
in equal parts 50 per centum of such wages increased by
16 2/3 per centum of such Wages for each child in excess of
one: Provided, That the total amount payable shall in no case
exceed 66 2/3 per centum of such wages.
(d) If there be no Surviving wife or husband or child, or
if the amount payable to a surviving wife or husband and to
children shall be less in the aggregate than 66 2/3 per centum
of the average wages of the deceased; then for the support
of grandchildren or brothers and sisters, if dependent upon
the deceased at the time of the injury, and any other persons
who satisfy the definition of the term “dependent” in section
72a
Appendix 1
152 of Title 26, but are not otherwise eligible under this
section, 20 per centum of such wages for the support of each
such person during such dependency and for the support of
each parent, or grandparent, of the deceased if dependent
upon him at the time of the injury, 25 per centum of such
wages during such dependency. But in no case shall the
aggregate amount payable under this subdivision exceed the
difference between 66 2/3 per centum of such wages and the
amount payable as hereinbefore provided to widow or
widower and for the support of surviving child or children.
(e) In computing death benefits, the average weekly
wages of the deceased shall not be less than the national
average weekly wage as prescribed in section 906(b) of this
title, but —
(1) the total weekly benefits shall not exceed
the lesser of the average weekly wages of the
deceased or the benefit which the deceased
employee would have been eligible to receive
under section 906(b)(1) of this title; and
(2) in the case of a claim based on death due
to an occupational disease for which the time of
injury (as determined under section 910(1) of this
title) occurs after the employee has retired, the
total weekly benefits shall not exceed one fifty-
second part of the employee’s average annual
earnings during the 52-week period preceding
retirement.
(f) All questions of dependency shall be determined as
of the time of the injury.
73a
Appendix |
The Virginia Workers’ Compensation Act, Va. Code Ann.
§§ 65.2-302, -307, -512. -515, -516 (Michie 1995 & Supp.
1999),
§ 65.2-302. Statutory employer.
A. When any person (referred to in this section as
“owner”’) undertakes to perform or execute any work which
is a part of his trade, business Or Occupation and contracts
with any other person (referred to in this section as
subcontractor”) for the execution or performance by or
under such subcontractor of the Whole or any part of the
work undertaken by such owner, the owner shall be liable to
Pay to any worker employed in the work any compensation
under this title which he would have been liable to pay if the
worker had been immediately employed by him.
B. When any person (referred to in this section as
“contractor”) contracts to perform or execute any work for
another person which work or undertaking is not a part of
the trade, business or Occupation of such other person and
contracts with any other person (referred to in this section
as “subcontractor”) for the execution or performance by or
under the subcontractor of the whole or any part of the work
undertaken by such contractor, then the contractor shall be
liable to pay to any worker employed in the work any
compensation under this title which he would have been
liable to pay if that worker had been immediately employed
by him.
C. When the subcontractor in turn contracts with still
another person (also referred to as “subcontractor”) for the
74a
Appendix I
performance or execution by or under such last subcontractor
of the whole or any part of the work undertaken by the first
subcontractor, then the liability of the owner or contractor
shall be the same as the liability imposed by subsections A
and B of this section.
§ 65.2-307. Employee’s rights under Act exclude all
others.
A. The rights and remedies herein granted to an
employee when his employer and he have accepted the
provisions of this title respectively to pay and accept
compensation on account of injury or death by accident shall
exclude all other rights and remedies of such employee, his
personal representative, parents, dependents or next of kin,
at common law or otherwise, on account of such injury, loss
of service or death.
B. Notwithstanding this exclusion, nothing in the Act
shall bar an employer from voluntarily agreeing to pay an
employee compensation above and beyond those benefits
provided for in the Act. Nothing herein, however, shall be
deemed to affect or alter any existing right or remedy of the
employer or employee under the Act.
§ 65.2-512. Compensation to dependents of an employee
killed; burial expenses.
A. If death results from the accident within nine years,
the employer shall pay, or cause to be paid, compensation in
weekly payments equal to 66 2/3 percent of the employee’s
average weekly wages, but not more than 100 percent of the
75a
Appendix |
average weekly wage of the Commonwealth as defined in
§ 65.2-500 nor less than 25 percent of the average weekly
wage as defined therein:
1. To those persons presumed to be wholly
dependent upon the deceased employee as set
forth in subdivisions A 1, A 2, and A 3 of
§ 65.2-515, for a period of 500 weeks from the
date of injury; or
2. If there are no total dependents pursuant
to subdivision A 1, A 2, or A 3 of § 65.2-515, to
those persons presumed to be wholly dependent
as set forth in subdivision A 4 of § 65.2-515, and
to those determined to be Wholly dependent in
fact, for a period of 400 weeks from the date of
injury; or
3. If there are no total dependents, to partial
dependents in fact, fora period of 400 weeks from
the date of injury.
B. The employer shall also pay burial expenses not
exceeding $10,000 and reasonable transportation expenses
for the deceased not exceeding $1,000.
C. Benefits shall be divided equally among total
dependents, to the exclusion of partial dependents. If there
are no total dependents, benefits shal] be divided among
partial dependents according to the dependency of each upon
the earnings of the employee at the time of the injury, in the
Proportion that partial dependency bears to total dependency.
76a
Appendix I
D. Ifbenefits are terminated as to any member of a class
herein, that member’s share shall be divided among the
remaining members of the class proportionately according
to their dependency.
E. When weekly payments have been made to an injured
employee before his death, the compensation to dependents
shall begin from the date of the last of such payments but
shall not continue for a period longer than specified in
subsection A of this section.
§ 65.2-515. Persons conclusively presumed to be wholly
dependent.
A. The following persons shall be conclusively
presumed to be dependents wholly dependent for support
upon the deceased employee:
1. A wife upon a husband whom she had not
voluntarily deserted or abandoned at the time of
the accident or with whom she lived at the time
of his accident, if she is then actually dependent
upon him;
2. A husband upon a wife whom he had not
voluntarily deserted at the time of the accident or
with whom he lived at the time of her accident, if
he is then actually dependent upon her;
3. A cchild under the age of eighteen upon a
parent and a child over such age if physically or
mentally incapacitated from earning a livelihood
77a
Appendix I
or a child under the age of twenty-three if enrolled
as a full-time student in any accredited
educational institution; and
4. Parents in destitute circumstances,
provided there be no total dependents pursuant to
other provisions of this section.
B. As used in this section, the term “child” shall include
a stepchild, a legally adopted child, a posthumous child, and
an acknowledged illegitimate child, but shall not include a
married child; and the term “parent” shall include stepparents
and parents by adoption.
§ 65.2-516. Other cases of dependency.
In all other cases questions of dependency in whole or
in part shall be determined in accordance with the facts as
the facts are at the time of the accident; but no allowance
shall be made for any payment made in lieu of board and
lodging or services and no compensation shall be allowed
unless the dependency existed for a period of three months
or more prior to the accident.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.