Brief for the Petitioners — Gillespie v. United States Steel Corp.

Supreme Court brief1964

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Text

: | cy F0thce Supreme Coun, 0S. |.”

te. Liesl " FILED

seni: So i

ae Se eens eae JUL 29 1964

In the Supreme Court of the: United States

a 1 oO

ts — 1963.

MABEL GILLESPIE,

Administratrix of the Estate of Daniel E. Gillespie,

deceased,

: Petitioner,

vs. et

UNITED STATES STEEL CORPORATION,

a. Corporation,

Respondent.

. On Writ or CERTIORARI TO THE UNITED STATES

Coukt oF APPEALS FOR THE SIXTH CIRCUIT.

BRIEF FOR THE PETITIONER.

‘Jack G. Day, . |

_ BERNARD A. BERKMAN,

1748 Standard Building,

Cleveland 13, Ohio,

~* Counsel for Petitioners.

Bernarp A. BERKMAN,

Of Counsel.

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—PHONE: €21-5647

, a¢

TABLE OF CONTENTS. °

SI a ec ee ee

* tacriossputdiemrsl OE ET ne Awe a daaeien

Questions Presented ______ eR me: che

ae eee

Statement of the Case Seema SUR EEO oe Beas

Summary of Argument REE SNe Be ER eee a

EE Ae ALES OT A

I. Where the Death of a Seaman Occurs in State

Waters, Suit for His Wrongful Death May Be

‘Maintained Against His Employer Under the

General Maritirne Law Doctrine of Unseaworthi-

ness and the State Statute Which Provides a

Remedy for Wrongful Death _.___.__________

- A. The Jones Act did not pre-empt the. entire

field of recovery for maritime wrongful death

B. Interpretation of the statutory language of the

Jones Act fails to demonstrate a Congres-

sional . finding that unseaworthiness is not

available as an alternative maritime death

-remedy to Jones Act negligence ____-____-

C. Plaintiff's amended complaint asserts a claim

based on unseaworthiness for which she is

entitled to proceed to trial _...___.______-

II. The: Classes of Beneficiaries ‘Named in the

Jones Act Are Cumulative, Not Exclusive a ee

III. A Claim for Conscious Pain and Suffering Sur-

_ vives Despite the Close Proximity of the maid

SE dina acne fala aie <a eGo ak we or

ERR ces oe eat ad

- (2d Cir. 1917), aff'd 247 U. S. 372 (1918) -__.

Appendix A:

_ Merchant Marine Act of 1920, Sec. 33 - . &

Federal Employers’ Liability oo ae

Ohio Wrongful Death Act... _-.- --_-__--_ 48

Ohio Survival Statute... _. SSI oes os oa

TABLE OF AUTHORITIES. |

7 Cases.

Allen-Bradley .Local v. Wisconsin Employment Re- -

lations Board, 315 U. S. 740 (1942) 18

Balado v: _— Bros. S. S. Co., 179 F. 2d 943 a

Cir. 1950) - tee Sie e am tee Cook i

Baltimore S. S. Co. v. », Phillipe 274 U. S. 316. (1927)

2) RO AC Re OE ay ne aes

' Bath v. ‘Sargent kins Corp., 166 F. Supp. 311 (S.D.

\ N.Y. 1958) - CESS LE:

Boutlier v. \City of 3 Malden, 226 Mass. 479, 116 N. E.

251 (1917) - atmnsie ch nawannniitenewonnaww _ 40

Branic v. Wheeling Steel Cor. 152 F. 2d 887 (rd

Cir. hia cert. den. 327 U. S. 801 (1946) .. 27

Brown v. Oeetman, 362 Mich. 614, 107 N. W. 2d 837

(1961) \. LA AR ORS eT

Buch v. United States, 122 F. Supp. 25 (S. D.N. Y.

1954) modified and aff'd 220 F. 2d. 165 ( 2nd Cir.

1955) - oa Abn pea oe Pm ieee ee 32

. Burns v. Marine Transport Lines, Inc., 207 F. . Supp.

. &: & kD x, Ee nme >

Campbell v. Romanos, 191 N. E, 2d 764 (Mass. 1963) 40

Chelentis v. Luckenbach S: S. Co., Inc., 243 F. 536

Chermesino v. Vessel Judith Lee Rose, Inc:, 211 F.

Supp. 36 (D. Mass. 1962) aff'd 317 F. 2d 927 (1st

Cir. 1963), cert. den. 375 U.S. 931 _-.....--- 22

Chicago, B. & Q. R. Co: v. algae Trust Co.,

Adm’r., 275 U. S. 161 (1927) _..._-------6, 37, 38

Chicago R. I. & P. R. Co. v. White, 112 Ark: 607, 165

-— Se ow fe ee ee 40

Corsair, The, 145 U.S. 335. (1892) _. .....5, 39, 40, 41°

' Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367

“(eet tena APES eS Dk) ee a. |

Cox v. Roth, 348 U. S. 207 (1955). 22

Davis v. Bolstad, 295 S. W. 2d 941 Juan Civ. a

ee _ 40

Fall v. Esso Standard Oil Co., 297 F. 2d 411 (5th Cir.

1961) cert. den. 371 U.S. 814 (1962) _...-- 26; 29

Fitzgerald v. United States Lines Co., 374 U. S. 16

(1963) .. ..- a's eee er 22, 41

Four Sisters, The, 75 F. Supp. 399 (D. Mass. 1947) 35, 36 |

‘Georgetown College v. — 130 F. 2d 810 (D. C.

Cir, 1058) .-.---.- 24

German-v. Carnegie-Illinois Steel Corp. 156 Fr. 2d 977

(3rd Cir. 1946) . | 27

Gill v. United States, 184 F. 2d 49 (2d Cir. 1950) 12, 29,

Goett v. Union Carbide Corp., 361 U.S. 340 (1960) 34 ‘i

Great Lakes Dredge & ‘Dock Co. v. wiinaniten 261

U. S. 479 (1923) - frases 10

Gutierrez v. Waterman S. §. . Cor, 373 -U. S. 206

(1963) ....------..---------- : 32

Hamilton, The, 207-U. S. 398 (1907) ” ie | 10

Harrisburg, The, 119 U. S. 199 (1886)... ——-- = 28

Hess v. United States, 361 U. S. 314 (1960) 28, 34

Holland v. Steag, Inc., 143 F. Supp. 203 (D. Mass.

1956) Dee ere {seen oe ae 22, .38, 39

Holley v. The Manfred Stansfield, 269 F. 2d 317 (4th

Cir. 1959) ___- mains epeeee Ga Uae reas 22

Ilinvis Central R. Co. v. Public Urility Comm., 245°

«UL S, 493 (1918)_- pyc Mops 13

- Just v. Chambers, 312 U. S. 383 (1941) ___ ___.22,°39

Karr v. Sixt, 146 Ohio St. 527 (1946) aera - ow

Kelly v. Washington, 302 U.S. 1 (1937) ....._ 13, 14, 15

Keowen v. Amite Sand & Gravel Co., 4 So. 2d 79 (La.

App. 1941) . eae alec oct ene . 40

Kernan v. American Dredging C Co.,° 355 U. S. 426

(enn | | | FF

Kossick v. United Fruit Co., 365 U. S. 731 (1961) __ 34

Lee v Pure Oil Co., 218 F. 2d 711 .(6th Cir. 1955) __12, 29

Lindgren v. United States, 281 U. S. 38 (1930) ___-

5, 6, 7, 8, 9, 12, 13, 16, 17, 20, 21, 24, 27, 28, 30, 33, 34

Mahnich v. Southern S. 'S. Co., 321 U. S. 96 ete

cbse te Ss cic: vegan atic 21, 23, 32

ieee v. Hamilton, 309 U. S. 598 (1940) 13, 14 |

McAllister v. Magnolia Petroleum Co., 357 U. S, 201

SOE isch ute cat tae ee cSepetree me ee

McCarthy v. American Eastern apeey 175 F. 2d 724

(3rd Cir. 1949), cert. den. 338 U. S. 868 (1949) 27 ~

McLaughlin v. Blidberg Rothchild Co., 167 F. Supp.

714.(S. D. N. Y. 1958) - OE SANTIS ee

Michalic v. Cleveland Tankers, Inc., 364 U. S. s35. |

(1960). - POR OM AO SE ETE

Mitchell v. Peieston Racer, Inc., 362 U. S. 539 (1959). 30

Mortenson v. Pacific Far East Line, Inc., 148 F. —

“71 (N. D. Cal. 1956) - Lentenenecenernte aE

_ Napier v. Atlantic Coast Line R. Co., 272 U. S. 605

OS SER TRL aS 13

O'Leary v. United States Lines Co., 215 F. 2d 708

(1st Cir. 1954),-cert. den. 348 U. S. 939 (1955) 22.

Osceola, The, 189 U. S. 158 (1903) . = F + me

_ Pacific S. S. Co. v. Peterson, 278 U.S. 130 (1928) . 25, 26

Poff v. Pennsylvania R. Co., 327 U. 5S. 399 (1946) 37 .

Pope & Talbott, Inc. v. Hawn, 346 U. S. 406 (1954)

RO AA Re ees Ene eal ese 17, 26, 27, 32°

Reid v. Colorado, 187 ‘U.S. 137 (1902) ey Be

Robbins v. Esso — Co., 190 F. sits $80 (S. D.

N. Y. 1960) - eee ae ~----. 12, 29

Savage v. Jones, 225 U.S. 501 ae 14

Schlichter v. Port Arthur Towing Co., 288 F. 2d 801

‘(5th Cir. 1961) ‘cert. den. 368 U. 5S. 828: (1961) .

ee Ce tae oa ol ee ae ae a cme te ae

oe Seas sitaeadiaes Co. v. Sieracki, 328 BY S: 85 (1946)

aie i Be 21, 23, 3

: Sharpe v. Munes, 256 S. W. 2d 890 Fen. Civ. App.

ae =F PR eee ‘ a 40

Southern Pacific R. R. v. ‘eal 244-U. S. 205 5 (1919) 34

Sperbeck - v. A. L. Burbank & Co., Inc., 190 F. 2d

‘449 (2nd: Cir. 1951) ---.--.---. 22

St. Louis, I. M. & S. R. Co. v. Stamps, 84 Ark. 241,

- 104 S. W. 1114 (1907) Me Rae 39

State of Maryland, The, 85 F. 2d 944 (4th Cir. 1936) 17

e The, v. Skovgaard, 358 U. S. 588 (1959)

eens Se Se Ae 34

United Pilots Ass'n. v. Halecki, 358 U. S. 613 (1959) “34

Vickers v. Tumey, 290 F. 2d 426 (5th Cir..1961) _. 26

Welch, H. P. Co. v. New pein 306 U. S 79

(1938) - Pc ee a Petr 13,

Western Fuel Co. v. Garcia, 257 U. S. 233 (1921)

- Whitaker v. Blidberg-Rothchild Co., 195 F. Supp.

420, aff'd 296 F. 2d 554 (4th Cir. 1961) -

Williams v. Tide Water Asso. Oil Co., 227 F. 2d 791

(9th Cir: 1955), cert. den. 350 U.'S. 960 (1956)

Texts.

Gilmore and Biack, ‘The Law is es S$ 6-23

through 6-25 (1957) | po Pistieh ON TO

Gilmore and Black, The Law of —e 279-280

|, GPa SERS eeu :

Gilmore and Black, The Law oof nin: 281-282 ©

| DE ace ig nk oe

Gilmore and Black, The Law -of Se 3 292 -

WE see at eee S

' Gilmore and Black, The Law ° of Admiralty 315

(1957) * ze

Robinson, ‘Admiralty, 335 (1939)

Statutes..

Death on the High Seas Act, 46 U.S. C. Sections 761-

we che

Federal Employers’ Liability Act; 45 U.S. C. Section

eS ee Dds ames ae

Merchant Marine Act of 1920 (Jones Act), Sec. 33,

46 U.S.C. Section 688 ______ 2, 3, et passim,

Ohio Survival Statute, Ohio Revised Code Section

Ss occa cts ae ce eee in oe a

‘Ohio Wrongful Death Act, Ohio Revised Code

Sections 2125.01 and 212502 ....-.. 2. 3, 35,

oe Ge |S arene mee eae A

fo]

In the Supreme Court of the United States

No. 582.

OCTOBER TERM, 1963.

MABEL GILLESPIE,

Administratrix of the Estate of Daniel E. Gillespie,

deceased,

Petitioner,

vs.

UNITED STATES.STEEL CORPORATION, .

a corporation, ,

Respondent.

On Writ oF CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE SIXTH CIRCUIT.

BRIEF FOR THE PETITIONER.

OPINION BELOW.

The opinion of the Court of Appeals (R. 29-50) is

reported at 321 F. 2d 518 (6th Cir. 1963).

J URISDICTION.

The judgment of the United States Court of bisia |

for the Sixth Circuit, affirming the order of the United

States District Court for the Northern District of Ohio,

Eastern Division, which struck from the petitioner's

amended complaint al] allegations relating to the general

maritime law doctrine of unseaworthiness and the Ohio

Wrongful Death Act, was entered on July 29. 1963 (R.

26).

Petition for a writ of certiorari was filed October 24,

_ 1963 and was granted Ja.: cuary 6, 1964. 375 U. S. 962

(1964).

The jurisdiction of this Court rests upon 28 a oe

1254(1).

QUESTIONS PRESENTED.

' I. Whether suit for wrongful death of a deceased

‘seaman may be maintained against his employer under

the general maritime law doctrine of unseaworthiness and

-the-state statute which provides a remedy for wrongful

death, where the death occurred in state waters.-

II. Whether the classes of beneficiaries named, in the

Jones Act are mutually exclusive, so that, in a wrongful |

death action, the existence of a person in one such class-

precludes recovery by persons in the other class.

III. Whether a claim for conscious pain and suffering

against his employer survives the death of a seaman,

where the period of pain and suffering for which com-/

pensation is claimed is short and immediately: preceded his

death by drowning. — .

STATUTES INVOLVED. -

The statutes involved are Section 33 of the Merchant

Marine Act of 1920, 41 Stat. 1007, 46 U.S. C. Section 688,

incorporating the Federal Employers’ Liability Act, 45

U. S. C. Section 51, the Qhio Wrongful Death Act, Ohio .

Revised Code Sections 2125.01 and 2125.02, and the Ohio

. Survival Statute. Ohio Revised Code Section 2305.21.

They are reprinted in Appendix A, infra, at pp. 42-45.

. ’

| STATEMENT OF THE CASE.

Petitioner, Mabel Gillespie, as administratrix.of the

estate of her deceased son, Daniel E. Gillespie, filed an

amended complaint in the district court against the re- —

spondent, United States Steel Corporation, for damages:

arising out of the death of her decedent in Ohio waters

while employed by the respondent as a seaman and a

member of the crew of one of respondent’s steamships,

engaged in transportation as a Cargo carrier on the Great

Lakes (R. 1-6). Jurisdiction of the district court was in-

voked because the complaint raised questions under a law

relating to admiralty and commerce, the Merchant Marine

Act of 1920 (Jones Act),and the general federal maritime

law. Petitioner’s amended complaint sought recovery (1)

for herself as dependent mother of the decedent, and for

the benefit of her children, dependent sisters and brother

_ of the decedent, for wrongful death, and (2) for the estate

of the decedent for his conscious pain and suffering imme-

diately prior to his death by drowning (R. 5). She sought

recovery for wrongful death on the alternate grounds of

-(1) the Merchant Marine Act of 1920-(Jones Act), and

(2) the general maritime law of unseaworthiness coupled

‘ with the Ohio Wrongful Death Act, and for decedent's ©

conscious pain and suffering based upon the alternate the-

ories of liahility of (1) the survival provisions of the Mer-

chant Marine Act of. 1920 (Jones Act), and (2) the gen-

eral maritime law of unseaworthiness coupled with the |

Ohio Survival Statute (R. 1-2).

Respondent filed a moticn requesting the trial court

to strike from the amended complaint all allegations relat-

ing to the general maritime doctrine of unseaworthiness,

the Ohio Wrongful Death and Survival Statutes, and the | 3

dependent sisters and brother of the decedent as bene--

ficiaries (R. 6-14). The district court granted respondent’s

motion to strike in its entirety (R. 15-16).

Petitioner appealed from this order to the Sixth Cir-

cuit Court.of Appeals (R. 16). Respondent filed a motion

to dismiss the appeal on the ground that the order ap-

pealed from was not final and appealable (R. 17). Before

',the Court of Appeals heard the motion to dismiss, peti-

tioner and the other named beneficiaries for whom she

sued filed a petition for extraordinary relief in the event

that the Court of Appeals should rule that the order of the

_ district court from which appellate relief was sought was

not final and appealable (R. 18-24). Both the appeal and

the application for extraordinary relief were consolidated

in the Court of Appeals (R. 24-25).

. With the appellate proceedings in this posture, ‘the

Court of Appeals ruled as follows:

(1) The court denied the respondent’s motion to

‘ dismiss the appeal (R. 25).

(2) The Court affirmed the order of the district court

below on its merits (R. 26). °

(3) The court denied the petition for extraordinary

relief (R. 28). 3

It is the affirmance on its merits of the district court

order below by the Court of Appeals from which peti- -

tioner seeks relief in this Court.

SUMMARY OF ARGUMENT.

The pre-trial ruling on the pleadings by the district

court below, affirmed’ by the Circuit Court of Appeals for

the Sixth Circuit, has’ effectively barred from this case

_(1) the petitioner’s. claim for the wrongful death of her

decedent, a seaman, against his employer upon the general

maritime law theory of unseaworthiness and the Ohio

‘Wrongful Death Act; ( 2) certain designated dependent

brother and sisters of the decedent as beneficiaries of the

wrongful death claim;* and (3) petitioner’s claim ‘for

_ decedent’s conscious pain and suffering prior to his death

upon the doctrine of unseaworthiness and the Ohio Sur-

vival Statute." |

Petitioner contends that each of these holdings of the

court below is erroneous. She urges:

First, that the decision of this Court in Lindgren v.

United States,-281 U. S. 38 (1930), which held that the

Jones Act provides the exclusive remedy for death of a

. 1Upon the ground that the Jones Act, Section 33 of the

Merchant Marine Act of 1920, 46.U. S. C. § 688, provides the ex-

clusive remedy for death of a seaman against his employer, and

that therefore the unseaworthiness of the vessel, irrespettive of

negligence, is unavailable as an alternate basis of recovery’ for

the seaman’s death, even though such claim is predicated upon.

the wrongful death statute of the state in which the death-causing

injury occurred, Lindgren v. United States, 281 U. S. 38 (1930),

approved and followed. .

. = Upon the ground that the classes of beneficiaries named in

the Jones Act are mutually exclusive, so that, in a wrongful

death action governed by its provisiorts, the existence of a bene-

ficiary in one such class precludes recovery by persons in the

other class. -. .

* Upon the ground that a claim for conscious pain and suf-

fering does not survive the death of a seaman where the period

of pain and suffering for which compensation is claimed is shost

and immediately preceded his death by drowning, despite the fact

_ that such claim is predicated upon the survival statute of the

state. in which the death-causing injury occurred. The Corsair,

145 U. S. 335, 348 (1892), approved and followed.

‘seaman against his employer, ‘was. incorrectly decided at .

its inception, that subsequent case experience in con-

tiguous areas has stripped Lindgren of any.vitality it may

have had at the outset, and that this case presents a long:

overdue opportunity for this Court to re-examine and dis-

_card an unjust, illogical and overly-harsh rule which too

narrowly delineates the rights of survivors of a seaman

whose death resulted from a maritime tort. She urges this

Court to rule that, where death occurred in state waters,

survivors of a seaman may bring suit for wrongful death

against his employer upon the general maritime doctrine

of unseaworthiness, notwithstanding the Jones - Act 53

remedy which may also be available to them..

Second, that the interpretation of the language of the

Jones Act relating to beneficiaries which most nearly

satisfies the beneficent purposes of the. Act is that the

classes of beneficiaries enumerated are cumulative, rather

than exclusive; that, to the extent that Chicago, :B. & Q. R.

‘Co. v. Wells-Dickey Trust Co., Adm’y., 275 U. S. 161

(1927), has uiterpreted the Jores Act differently, it

should be overruled; and that, in addition to their par-

ticipation as beneficiaries of a wrongful death award

based upon unseaworthiness and the Ohio wrongful death

act (her first argument, supra), the beneficiaries excluded

by the rulings of the courts below are entitled to par-

. ticipate as beneficiaries of a Jones Act wrongful death

award. eee

Third, the clearly established principle that where a

claim.for conscious pain and suffering prior to death is

based upon the survival statute of the state in which the

tortious injury occurred, the survival provisions of the

Jones Act and the’ state survival statute provide a valid

basis far such a claim on the theories of both negligence

under the Jones Act and unseaworthiness under the ~

*>» *,

general maritime law, Holland v. Steag, Inc.,.143 F. Supp.

203 (D. Mass. 1956), cited with approval in Kernan v. |

American Dredging Co., 355°U. S. 426, 430, footnote 4

(1958), is applicable here despite the fact that the interval

for which claim is made is of short duration and immedi-

ately preceded the death of the decedent by drowning.

ARGUMENT.

ae I.

WHERE THE DEATH OF A SEAMAN OCCURS IN STATE «

WATERS, SUIT FOR HIS WRONGFUL DEATH MAY BE

MAINTAINED AGAINST HIS EMPLOYER UNDER THE

GENERAL MARITIME LAW DOCTRINE. OF UNSEA-

WORTHINESS AND THE STATE STATUTE WHICH PRO-

VIDES A REMEDY FOR WRONGFUL DEATH.

The opinion of the Sixth Circuit Court of Appeals

: from which petitioner“here seeks relief is based upon,

and reyitalizes, the position taken by this Court in Lind-

gren v. United States, 281 U. S. 38 (1930), that the Jones

Act' provides the exclusive remedy for death of a seaman

agdinst his employer and that therefore the unseaworthi-

ness of the vessel, irrespective of negligence, is unavailable

as an alternate basis for recovery for the seaman’s death,

even though such claim is predicated upon the wrongful

death statute of. the state in which the injury causing

death occurred. An}

~ Upon such authority and reasoning, the court below

affirmed the pre-trial pleading ruling made by the federal °

district court which struck from the emended complaint _

all allegations concerning the common law maritime doc- .

> trine of‘unseaworthiness, the Ohio wrongful death act as

4 Section 33 of the Merchant Marine Act of. 1920, 46 U.S.C.

§ 688. . :

it would remedially implement the unseaworthiness doc-

trime, and all beneficiaries.who would participate in a

death award under the provisions of the Ohio Wrongful

Death Act, but not under the Jones Act.

Thus, the question of the continuing validity of Lind-

gren v. U nited States, supra, is ae presented to this

Court.” .

The Court of Appeals noted with approval both of

the arguments employed in the Lindgren opinion to sup-

‘port the rule that the Jones Act remedy for wrongful

death of a seaman against his employer i is ‘paramount and

exclusive”’:° (1) that the federal enactment of the Jones

_ Act proeugeel the field of recovery from his employer of

- damages for a seaman’s death,':and (2) that the express

language of the Jones Act, insofar as it provides for an

election by an injured seaman between the theories of

Jones Act negligence and unseaworthiness, but fails to

-mention any such election in the language describing his

personal representative's claim for his death, clearly dem- -

onstrates that no alternative death remedy under the

maritime law was intended by Congress.”

‘

>In response to the Petitioner’s contention in the court be-

' low that the position taken in Lindgren on this point was un-

sound, and had been eroded by more recent decisions of this

_ Court in contiguous areas, the Court of Appeals remarked:

“* * * if the prior rule is no longer accepted by the Supreme

Court, and Lindgren v. United States * * * is to be over-

ruled, the landmarks must be plainer to.see; and ‘it would ~

be unbecoming for this Court to base its determination upon

‘the assumption that the holding in Lindgren is to’ be re-

versed.”. (R. 46.) (Emphasis supplied.) »

“ Lindgren v. United States, 281 U. S. 38, “46 (1930), quoting

from Erie R. R. Co. v. Winfield, 244 U. S. 170, 172 (1917).

7 Lindgren v. United States, 281 U. S. 38, 43-46 (1930). ‘See

Court of Appeals opinion (R. 48).

Lindgren v. United States, 281 U. S. 38, 47-48 (1930). See

Court of Appeals opinion (R. 42). .

The’ Court of’ Appeals then sought to implement its .

judgment that Lindgren effectively blocked an alternate ~

unseaworthiness death remedy in this case by noting, as

did the district court below ® that “all of the allegations

of the complaint * * * constitute assertions of negli-

gence,” and that “[w|hether the negligence was failure

to provide safe access to the ship for plaintiff's decedent,

or whether the negligence was a breach of defendant’s

duty to provide a seaworthy ship, the action is based upon

negligence and proximate cause * * *.” (R. 48.) (Em-

phasis supplied.) | 3

; Petitioner contends that at its inception the rule ”’ in

Lindgren was indefensible logically and that subsequent

case experience has stripped Lindgren of: any vitality it

may have had, as to both the arguments which were ad-

‘vanced to support the result ih that case: (1) federal pre-

- emption and (2) the interpretation of the statutory: lan-

guage “at ‘his election” in the Jones Act; and that this

* See Memorandum on Motion'-to Strike by Jones, J., in the

federal district court: &.

“ reading of the complaint as to the facts and character of

the suit spells ‘Jones Act.’ The incorporation of the addi-

tional legal provisions in the complaint gives no greater right

or remedy than-that furnished by the Jones Act.” (R. 15.) '

1“ There has been some difference of opinion in the pro-

ceedings below as to whether the language in Lindgrer. assert-

ing that, even where unseaworthiness is the gravamen of the

elaim, the Jones Act provides an exclusive remedy for the death

of a seaman was a square holding or obiter dictum. See Mr.

Justice Brennan’s comment, concurring in part and dissenting

.in part in The Tungus v. Skovgaard, 358 U. S. 588, 606 (1959)

and the rejoinder of the Court of Appeals (R. 44-45). Counsel

for petitioner has learned enough in these proceedings to engage

no further in this academic exercise, particularly before this

Court. For here the determination of whether the Lindgren rule

is controlling rests upon the validity of the rule, not its character- -

jzation as either dictum or decision. Petitioner’s position is

simply. that, whatever the Lindgren rule is, it should’be dis-

carded. ;

ws.

\10

case presents a long overdue opportunity to this Court to

re-examine and discard an unjust, unwarranted and

overly-harsh rule which too narrowly delineates the rights

of survivors of a seaman whose death resulted from a

maritime tort. =O

Further, petitioner urges that her. amended complaint -

clearly asserts a claim based upon unseaworthiness and

that the availability of a remedy in Jones Act negligence

does not preclude her from proceeding to trial upon both

theories.

Fach of these contentions will be coiaidaied in detail

below. a

‘The Jones Act did not pre-empt the entire field of ©

recovery for maritime wrongful death.

Prior to the enactment of, and in areas not. served by

the Jones Act, the courts, unsatisfied withthe bare recital

of the incantation that ‘‘[d|eath is a composer of strife by

the general law of the’sea * * *”"' as a substitute for a

solution to the problem of the harsh rule of non-sur-

vivability of common law maritime death claims, had

established that the general maritime doctrine of unsea-

worthiness did provide a theory of recovery for wrongful

death, both in seamen’s suits against their employers and

otherwise, by utilizing the state wrongful death. statute in

whose jurisdiction the death occurred to supply a remedy

for death to complement the substantive general maritime

- doctriné of unseaworthiness. The Hamilfon, 207 U. S. 398

(1907); Great Lakes Dredge & Dock Co..v. Kierejewski,

261 U. S. 479 (1923); and see Cortes v. Baltimore Insular

11 Cortes v. Baltimore Hiei Line, Inc., 287 U. S. 367, 371

(1932). cf. Gilmore & ‘Black, The Law of Admiralty 302-303

(1957).

Line, 287 U. S. 367 (1932); Western Fuel Co. v. Garcia,

257 U. S. 233 (1921). |

In this context of existing law, both the Jones Act,

which provided a remedy for wrongful death caused by the

negligence of the decedent-seaman’s employer where the

death occurred in staté waters, and the Death on the High

Seas Act, 41 Stat. 537, et seq., 46 U. S. C. Sections 761-768,

which provided a remedy for wrongful death where the

death occurred beyond a marine league from state shores,

- were enacted in 1920 at the same session of Congress. ©

That. the latter piece of legislation was intended by the

same Congress that enacted the Jones Act to fill a void in

wrongful death recovery and tc supplement the state

wrongful death remedies rather than eliminate them is

clearly demonstrated by the express statutory direction in

the Death on the High Seas Act (41 Stat. 538, 46 U.S. C.

‘Section 767) “that the provisions of any state statute giv-

ing or regulating rights“of’ action or remedies for death

shall not be affected by this Act.” (Emphasis supplied.)

Western Fuel Co. v..Garcia, 257 U. S. 233, 243 (1921).

One might well conclude, despite a lack of comparable

legislative history of the’ Jones Act itself, that Congress’

would not have: intentionally eliminated state death reme-

dies for unseaworthiness where the decedent was'a seaman,

while expressly refusing to do so in cases involving non-

'? And see Mr. pag Stewart's language in the majority

opinion in The Tungus v. Skovgaard, 358 U. S. 588, 593 (1959):

“The legislative history of the Death on the High Seas Act

discloses a clear congressional purpose to leave ‘unimpaired

the rights under State statutes as to deaths on waters with-

in the territorial jurisdiction of the States.’ S. Rep. No. 216,

66th Cong. lst Sess. 3; H. R. Rep. No. 674, 66th Cong. 2d

Sess. 3. The record of débate in the House’ of Representa-

tives preceding passage of tke bill reflects deep concern that

the power of the States to create actions for wrongful death - -

in no way be affected by enactment of the federal law. 59

Cong. Rec. 4482-4486.” ;

seaman decedents, except: that in Lindgren v. United

States, 281 U. S. 38 (1930), this Court used language

which has been interpreted by some to be just such a hold-

ing | : *

Although this was.solely a Jones Act death case in

which unseaworthiness was never pleaded as a basis for

liability, the Court in Lindgren took occasion to remark

that the Jones Act wrongful death remedy was exclusive

and precluded recovery for death by reason of the, un-

seaworthiness of the vessel. , =

With respect to the question of federal pre-emption of

- the field of maritime death remedies as between seaman

and employer, however, the Court’s reasoning was quite

explicit.'* Since the general maritime law. provided no re-.

is E.g., Schlichter v. Port Arthur Towing Co., 288 F. 2d 801.

(5th Cir. 1961) cert. den. 368 U. S. 828 (1961); Lee v. Pure Oil

Co., 218 F. 2d 711 (6th Cir. 1955); Gill v. United States, 184 F.

2d 49 (2d Cir.. 1950); Robbins v. Esso Shipping Co., 190 F. Supp.

880 (S. D. N. Y. 1960); Bath-v. Sargent Line Corp., 166 F. Supp.

311 (S. D. N. Y. 1958). But ef. Justice Brennan, concurring in

part and dissenting in part on other facts in The Tungus v. Skov-

gaard, 358 U. S. 588, 606-07 (1959):

“The opinion [in Lindgren v. United States] dealt primarily

with the effect of the Jones Act’s wrongful death provision

in rernoving.the seaman’s right to invoke the remedies of

state Death Acts for the identical. gravamen of negligence.

. And, although the libel did not allege unseaworthiness, the’

Court briefly observed. that the Jones Act’s death provi-

sion would ..be construed equally. as foreclosing a state

statute’s use on that count.” (Emphasis supplied.)

1+ A careful reading of Lindgren demonstrates that the ref-

erence to federal pre-emption in the Court’: opinion was in re-

sponse only to the libellant’s. contention that the state wrong-

ful death statute should be applied to supply an alternate rem- |

edy to that provided by. the Jones Act, wheze the liability

charged was solely negligence, not unseaworthiness. That argu-

‘.ment is.not advanced in the instant case; however, since the

Court of Appeals below failed’ to make this distinction, but,

rather, ruled that ‘the.Jones Act pre-empted the field of maritime

death remedies, including state remedies for death by unsea-

worthiness, as well as negligence [Court of Appeals Opinion (R.

42)] petitioner will, in the text which follows, meet this conten-

tion. ; ‘

13°

covery for death by maritime tort, state statutes could be

employed to provide relief in the absence of federal legisla-

tion on the subject. But when the Jones Act undertook to

provide a federal death remedy in claims based upen negli- -

yence in the Jones Act, that legislation, “as it covers the

entire field of liability for injuries to seamen, * * * is

paramount and exclusive, and supersedes the operation of |

9 15

all state statutes dealing with that subject.”.

It is petitioner’s intention to demonstrate that a find-

ing that the Jones Act pre-empted the entire field of} s@a-

men’s iiijuries was unsupportable at its inception in Lind-

gren, and that subsequent interpretations of Congressional _

intent have made such a finding .at best, a histortcal

curiosity—at worst, a hoary blunder of the past perpetu-

ated by stare decisis into an unjust rule of the presént.

Even though there has been a federal legislative en-

actment in the field, the doctrine of federal pre-emption

cannot be applied to supersede the ‘operation of state stat-

utes in the same area in the absence of a-clear manifesta-

tion of the intent. of Congress to exclude States from ex-

erting their police power in the field.” “Its | Congress's |

purpose to displace the local law must be definitely..ex-

pressed.” H, P. Welch Co. v. New Hampshire, 306 U.S-79,

85 (1938). ‘This is especially th~ case when public safety

and health are concerned.” Maurer v. Hamilton, 309

U. S. 598, 614 (1940). Moreover, “[t|here is no con-

stitutional rule. which compels Congress to occupy the

1s Lindgren v. United States, 281 U. S. 38,.47 (1930).

‘* This principle had been clearly established by this Court

before. and followed sit» Lindgren was decided. E.g., Reid v.

Colorado, 187 U. S. 137, “48 (1902); Illinois Central R.-Co. v.

Public Utility Comm., 245 U. S. 493, 510 (1918); Napier v. At-

lantic Coast Line R. -Co.;.272 U. S. 605, 61% (1926); Kelly v.

Washington, 302 U. S. 1, 9-10 (1937); .H. P. Welch Co. v. New

Hampshire, 306 U. S. 79, 85 (1939); Maurer v. Hamilton, 309 ©

U. S. 598, 614 (1940); Allen-Bradley Local v. Wisconsin’ Employ-

ment Relations Board, 315 U. S. 740, 749 (1942).

‘ &

whole field. -Congress may circumscribe its regulation and

‘occupy only a limited field. When it does so, state regula-

tion outside that limited field * * * is not forbidden or dis-

in placed * * * | T]he exercise by the State of its police power

.* Mi * is superseded orily whe: re the repugnance or conflict

is sd. ‘direct and positive’ that the two acts cannot ‘be rec-

onciled ‘er consistently stand together’.” a v. Washing-

ton,.302 USS. J, 10 (1937).

“But the intent to supersede the exercise by the State

of its police power “* * * is not to be implied unless the

‘act of Congress fairly inferpreted is in actual conflict with

the law of the State.” Savage’v. Jones, 225 U. S: 501, 533

~ (1912). And, moving from the ‘general to the specific

facts of this case, “| w|hen the State is seeking to prevent

the operation of unsafe and unseaworthy vessels in going ©

to and from its ports, it is exercising a protective power

akin to that which enables the State to exclude diseased

persons * * *. When the State is seeking to protect a vital

interest, | this Court has| always been slow to find that the

inaction of Congress has shorn the State of the power

which it would otherwise possess.” Kelly v. Washington,

302 U. S. 1, 14 (1937): (Emphasis and bracketed ma-

terial supplied. ) , ;

_ Four .general principles of statutory construction

emerge from these cases:

1. If the federal pre-emption’ doctrine, is to be

applied, there must be a clear expression of Congres-

-siona] intention to displace the entire local law by its

legislative enactment, H. P. Welch Co. v. New Hamp-

shire, supra, particularly where public safety is in--

volved, Maurer v. Hamilton, supra.

2. Such broad intention cannot be implied unless

the act of Congress fairly interpreted is actually in

conflict with the local law. Savage v. Jones, supra.

3. When Congress does not occupy an entire

field, but only a limited field within the general sub-

stantive area, state regulation outside, and not in con- .

flict with, that limited field of federal legislation is not

forbidden or displaced, Kelly v. Washington, supra.

4. Where the state is seeking to protect a vital

interest (such as the prevention of operation of un-

safe-and unseaworthy vessels in its waterways) .the |

failure of the Congress to fully qccupy an entire field

-should ordinarily not be interpreted to indicate an in-

‘tention to -nullify: the state’s exercise of its police

power in the limited area in which Congress has not

legislated. Kelly v. Woskington, supra.

It is submitted that (1) there was no clear expression -

of: congressional intention by the enactment of the Jones

Act to ‘displace the entire local wrongful death act as it

“was applied to maritime injuries; (2) the Jones Act, fairly

interpreted, is npt in conflict with the continued operation

‘ of the local wrongful death act.as it applies to maritime

. injuries, but merely supplies an additional remedy to sea-

men, and‘theréfore a broad intention to pre-empt the en-

‘tire field cannot be implied; (3) the Jones ‘Act occupies’ *

only a limited field within the general substantive area of

remedies for maritime injury and death, and state wrong-

ful death acts, not being in conflict with, but outside that

limited field of federal legislation, are not forbidden or dis- —

placed; (4) since the state by its enactment of its wrongful

death act is, as it is applied to maritime injuries, seeking to

protect a vital interest, Congress’s failure by the enactment

of the Jones Act to fully occupy the entire field of seamen’s

death remedies should not be interpreted to indicate an in-

tention to nullify the state’s exercise of its police power-in °

the limited area in whith Congress has not legislated, i.e.,

_ the death: remedy based upon unseaworthiness and the ©

local wrongful death act. |

The application of these principles of statutory con-

struction to the Jones Act.compels the conclusion that this

federal enactment did not, nor was it ever intended by

_ Congress; to cover “the entire field of liability for injuries

to seamen,””’ despite language to the contrary in the

' Lindgren opinion. .

For it is evident that the Jones. Act was enacted to -

enhance rather than diminish the rights of the seaman |

and his personal representative in the event of his injury

or death in the course of his employment. As Justite

Brennan, speaking for Chief Justice Warren and Justices

_ Black, Douglas and Clark in Kernan v. American Dredg-

ing Co., 355 U. S. 426, 431-432 (1958), has described the

background of the enactment of such: special industrial

legislation as the Federal Employers’ Liability Act, and

the Jones Act, into which the F. E. L. A. is specifically in-

corporated: '

“It is true that at common law the liability of the

master to his servant was founded wholly on tort rules

of general applicability and the master was granted

the effective defenses of assumption of risk and cori-

tributory negligence. This limited liability derived

from a public policy, designed ‘to give maximum free-

dom to infant industrial enterprises, ‘to insulate the

employer as much as possible from bearing the ‘hu-

man overhead’ which is an inevitable part of the

cost—to someone-—of the doing of industrialized busi-.

ness.’ Tiller #. Atlantic Coast Line R. Co., 318 U. S.

_ 54, 59. But it came to be recognized that, whatever

the rights and duties among. persons generally, the

industrial empJcyer had a special responsibility to-—

ward his workers, who were daily exposed to the risks

7 Lindgren. v. United States, 281 U. S. 38, 47 (1930).

17 .

of the business and who were largely helpless to pro-

vide adequately for their own safety. Therefore, as

industry and commerce became sufficiently strong to

bear the burden, the law, the reflection of an evolv-

ing public ,olicy, came to favor compensation of em-

ployees and their dependents for the losses occasioned

by the inevitable deaths and injuries of industrial .

employment, thus shifting to industry the ‘human

overhead’ of doing business. For most industries this

change has been embodied in Workmen’s Compen-

sation Acts. In the railroad and shipping industries,

‘however, the FELA and Jones Act provide the frame-

work for determining liability for industrial acci-

_dents. But instead of a detailed statute codifying com-

mon law principles, Congress saw fit to enact a stat-

ute of the most general terms, thus leaving in large

measure to the courts the duty of fashioning remedies

for injured employees in a manner analogous to the

development of tort remedies at common law. But it

_ is clear that the general congressional intent was to

provide liberal recovery for injured workers, Rogers

v. Missouri Pacific R. Co., 352 U. S. 500, 508-510, and

it is also clear that Congress intended the creation of

no static remedy, but one which would be developed

and enlarged to meet changing conditions and chang-.

ing concepts of industry’s duty toward its workers.”

(Emphasis supplied. )

Add to this consideration the fact that “|s|eamen are the

wards of admiralty, and the policy of the maritime law has

ever been to see that they are accorded proper protection

99 15

by the vessels on which they serve,” '* and the position

taken by the Lindgren Court becomes even less tenable.

Unfortunately, one of.the prime tools in ascertaining

'S The State of Maryland, 85 F. 2d 944, 945 (4th Cir. 1936).

And see, Jackson, J. dissenting in Pope & Talbot, Inc. v. Hawn,

346 U. S. 406, 424-425 (1953), pointing out some of the reasons

behind the preferential treatment given seamen by the law.

legislative intention is not available. The Jones. Act: ef- _

fected a sweeping change in the responsibility of maritime

employers totheir employees in a brief paragraph with no

record of Congressional debate or committee report.’* But,

whatever the reason for such lack of legislative assistance

in interpreting this brief but. troublesome Congressional

act, the sequence of Congressional action in the field of

maritime injuries in response to decisional law, considered

as a motion picture rather than a still snapshot, sharpens

and clarifies the picture of legislative intention.

Prior to 1915, a seaman was “‘not allowed to recover

* * * for the negligence of the master, or any member of

the crew * * *.” The Osceola, 189 U.S. 158, 175 (1903).

“Nor; by that same authority could he “recover for injuries

sustained through the negligence of [a fellow servant |"

Ibid.

In 1915, Congress passed “{a]n Act to promote the

welfare of American seamen in the merchant marine of the

United States * * *.” 38 Stat. 1164 (1915). In an at-

tempt to alleviate the harsh rule of The Osceola, Section

20 provided, in pertinent part: d

“That in any suit to recover damages for any injury

* * * seamen having command shall not be held to be

fellow-servants with those under their authority.”

38 Stat. 1185 (1915).

1° See comment of Gilmore and Black, The Law of Ad-

miralty, 281-282 (1957):

“* *.* Section 33 [of the Merchant Marine -Act of 1920]

was a little noticed provision, unrelated to the balance of

the statute. As it made its way through committee to the

floor of House and Senate, it can hardJy have drawn much

' attention. In due course its constitutionality * * * was up-

held by a Supreme Court which might better have struck it

down as offensive to the due process clause by reason of im-

possibly bad ne -

19°

As Gilmore ond Black” have saneiienel this ake.

“tive action:

“By those few lines the Congress apparently intended

to change the maritime law as stated in The Osceola

under which an injured seaman could recover more

than his maintenance and cure only in an action based

on unseaworthiness and could not recover damages

“for negligence of master or crew in the navigation or

management of the ship. At least, if that was not the

- intention, no one has ever been able to suggest what

the intention was. The draftsman of Section 20 had

evidently read the [fellow-servant] proposition in

The Osceola to mean that the reason why seamen

_ could not recover damages for negligence was that all

-the members of the crew were fellow-servants and

consequently the negligence of each was attributed to

all, thus barring the action; on that reading, the aboli-

tion of the fellow-servant relationship removed the

only barrier to recovery and the action could.be main- :

tained under maritime law: with no need for affirma-

tive Congressional action.”

But with the decision in: Chelentis v. Lushisudieck

S. S. Co., Inc., 243. F. 536 (2d Cir. 1917), aff'd 247 U. S.

372 (1918), it became apparent that the bad drafting of

the Act of 1915 was to frustrate the Congressional pur-

pose. For, while eliminating one impediment to seamen’s

recovery, for negligence (the fellow-servant doctrine), it

had failed to expressly eliminate the other obstacle im-

posed by The Osceola to a seaman’s claim for injuries re-

sulting from negligence, ie., the, express prohibition of

_ recovery “for the negligence of the master, or any member

of the crew.” *’

“» Gilmore and Black, ‘The Law. of Admiralty 27{'-280

(1957). ;

*! The Osceola, 189 U. S. 158, 175 (1903).

While there has been some criticism of this technical

holding of the Court,” in fact it stimulated Congress to

clarify its intention with respect to the expansion of sea-

men’s right to recover from their employers for active

negligence as well as.for unseaworthiness of the vessel.

For scarcely two years later the Jones Act, incorporating

the jiability provisions for negligence of the Federal Em-

ployers Liability Act, was enacted by Congress. se

It is apparent from this recital of events that.Con-

gressional, activity during this period at all times was

directed toward the attempted expansion of the theories

upen which a seaman’s claim against his employer might

be brought, expansion to include active negligence as a

_ basis of recovery, not the elimination of any remedies that

he already had by virtue of the doctrine of unseaworthi-

ness supplemented by local wrongful death acts. For “it

is clear that the general congressional intent was to pro-

vide liberal recovery for injured workers * * *.” Kernan

v. American Dredging Co., 355 U. S. 426, 432 (1958).

All of the foregoing indicia of Congressional purpose

in enacting the Jones Act were available to the Lindgren

Court and should have compelled a different conclusion so

- See comment of Gilmore and Black, The Law of Ad-

dua 281 (1 1957) :

“On the ‘how to read cases’ level, there can be no quarrel with

the Chelentis holding. It is another matter whether Congress

should have been made to put on-the dunce cap and stand

in the corner. If Section 20 had been given its obvious (in-

deed its only) meaning, the Court would have spared much

grief to itself, to the inferior federal judiciary, to the bar and

to all parties litigant. The theory of Section 20 had been

that, with the removal of the only maritime law bar to re-

covery, the seaman’s action for negligence could proceed on

ordinary maritime law principles and there would no longer

have been any need to distinguish between unseaworthiness

and operating negligence. It must be & matter of regret that

the Court refused this simple solution and instead goaded

Congress into doing it the hard way.”

far. as separate unseaworthiness death claims were con-

cerned. _

But subsequent case law in the maritime field, with

the clarity offered by hindsight, makes yet more ‘dazzlingly

lucid what was only somewhat less clear at the time Lind-

gren was decided: that the Jones Act was never intended

. by Congress to occupy. the entire field of seamen’s claims

for injury and death, but was, rather, intended to plug the

gap created by The Osceola and provide seamen a remedy —

‘against their employers’ active negligence in addition to

the one The Osceola gave them for unseaworthiness.

The decisional landseape in the area of survivability

of maritime torts has been drastically altered in the thirty-

four years since Lindgren was decided. The unseaworthi-

ness doctrine has been expanded so that it, and not the

Jones Act “has become the principal vehicle for personal

injury recovery.” Unseaworthiness now includes operat-

ing negligence, Mahnich v. Southern S. S. Co., 321 U.S.

96, 100 (1944), although the absolute duty imposed upon

. the shipowner to provide a seaworthy vessel requires no

such showing. Seas. Shipping Co. v. Sieracki, 328 U. S. 85

(1946). ~ ; ; Si Feo

| Moreover, “‘{t|he implacable effect of death on causes

of action under the general maritime law has been blunted

by recent decisions.” “* This Court has employed state

statutes to alter the venerated-maritime rule that a tort-

** Gilmore and Biack, The Law of Admiralty: 315 (1957).

And see discussion, pp. 315-316: “* * * in another ten years the

Jones Act will have become a faint and ghostly echo and the

law of recovery for maritime injuries will be stated in terms of

unseaworthiness alone.”

Seven years have passed since this prediction; its accuracy

may be tested by the intervening case law.

24 Burns v. Marine Transport Lines, Inc., 207 F. Supp. 276,

280 (S. D.N. Y. 1962).

' 22

_ feasor’s liability dies with the tortfeasor. ies v. Cham-

-. bers, 312 U. S. 383, 668 (1941); cf. Cox v. Roth, 348 U. S.

207 (1955). An action against the vessel owner based up-

on the applicable state wrongful death statute and the gen-

- eral maritime doctrine of unseaworthiness may be main-

tained for,death of a non-seaman employed aboard a

vessel at the time.of his death. The Tungus v. Skovgaard,

358 U. S: 588 (1959); and see Holley v. The Manfred

Stansfield, 269 F. 2d 317 (4th Cir. 1959); and Q’Leary v.

United States Lines Co., 215 F. 2d 708 (1st Cir. 1954),

cert. der. 348 U.S. 939 (1955). If the death occurs be-

yond a marine league from shore a wrongful death action

based upon unseaworthiness may be brought under the

Death on the High Seas Act. Kernan v. American Dredg-

ing Co., 355 U. S. 426 (1958); McLaughlin v. Blidberg

Rothchild Co., 167 F. Supp. 714 (S. DN. Y. 1958) ; Cher-

mesino v. Vessel Judith Lee Rose, Inc., 211 F. Supp. 36

(D. Mass. 1962) aff'd 317 F. 2d 927 (1st Cir. 1963). cert. -

den. 375 U. S.-931. By the use of local survival] statutes,

claims.based upon unseaworthiness against a shipowner-

employer for conscious pain and suffering for injuries ac-

crued prior to the decedent-seamen's death survive. Hol-

land v. Steag, Inc., 143 F. Supp. 203 (D..Mass. 1956),

cited with approval in Kernan v.. American Dredging Co., |

355 U. S. 426, 430, footnote 4 (1958); accord: McLaughlin

v. Blidberg Rothchild Co., 167 F. Supp. 714 (S. D. N. Y.

1958); cf. Just v. Chambers, 312 U. S. 383 (1941). Claims

for maintenance and cure survive the death of the seaman.

Sperbeck v. A. L. Burbank &-Co., Inc., 190 F. 2d 449. (2nd.

- Cir. 1951). And the intention of this Court to grant similar

remedies for substantive rights arising out of the same

maritime wrong has been very recently demonstrated.

Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963). .

Nor does the Jones Act provide such an exclusive remedy

; 8

: to seamen as to preclude’ recoyery for unseaworthiness. for

a seaman’s personai injury if his injuries are not severe.

enough to cause his death. Mahnich v. Southern S.'S. Co.,

321 U.S. 96, 100 (1944); Seas Shipping Co. v. Sieracki,

328 U.S. 85 (1946). |

As a consequence of these holdings, dune remains but

one set-of facts in which all general maritime rights are

_ not available to the victim of a maritime tort or his bene-

ficiaries.’ This results only under circumstances, as in the

instant case, where all of the following factors co-exist: _

1. The victim must be injured severely enougl: to be

killed.

2. The victim must be a seaman.

3. The viciim’s death must have occurred in state

waters. ;

4. Suit must have been filed against the victim's

employer. :

5. The suit must be for nila death.

Contemplating the law in this posture as it applies to

the concept of federal pre-eniption, several immediate

questions come to mind. Could Congress have intended

the Jones Act to be an exclusive remedy for death-causing

injuries, but not for non-fatal injuries? Did Congress

intend by the enactment of the Jones Act to eliminate

claims for wrongful death based upon unseaworthiness

and local remedial statutes, but not claims for decedent's

conscious pain and suffering prior to death? Did Congress

attempt to deal more harshly with seamen’s claims for

injury and death than with non-seamen’s similar claims,

by denying representatives of seamen the right to sue

under the gengral maritime doctrine of unseaworthiness,

-while permitting non-seamen’s representatives to do so?

Can Congress: have intended different results in a sea-

man’s wrongful death claim based upon unseaworthiness,

depending’ upon whether the death occurred: in state

waters or a marine league out to sea? The mere posing of

these questions: indicates that a Congress operating on

any rational basis could not and did not have such legisla-

tive purposes. As a consequence, the argument that the

Jones Act pre-empted the entire field of seamen’s remedies .

for injury and death was, at the time Lindgren was de-

cided, and is now, hopelessly indefensible.

Thus, only Lindgren now stands in the path of the

' general tort proposition that all the rights which a claim-

ant had before he died are available in some form to his

personal representative upon his death.

This observation is not a compulsive plea for lene!

symmetry for its.own sake. The vast philoséphic gulf be-

tween Lindgren and the other decided cases “indicate|s |

something wrong at the beginning or that something has

become wrong since then. [It| also show[{s| that correc-

~ tion, though in process, is incomplete.” “"

Interpretation of the statutory language of the Jones Act

fails to demonstrate a Congressional finding that un-

seaworthiness is not available as an alternative mari-

time death remedy to Jones Act negligence.

After dealing with the ‘subject of federal pre-emption

of local laws by the Jones Act," the Court in Lindgren’

remarked: )

“Nor can the libel be sustained as one to recover or:

indemnity for {decedent’s| death under the old mari-

time rules on the ground that, the injuries were occa-_

| Georgetown College v. Hughes, 130 F. 2d 810, 812 (D. C.

Cir, 1942).

: *“ In response toa contention not urged here. See footnote

11, supra. .

sioned by the unseaworthiness of the vessel. * * *

| A|n insuperable objection to this suggestion is that.

the prior maritime law * * * gave no right to re-

cover indemnity for the death of a seamari, although

occasioned by the unséaworthiness of the vessel

* *,*. Apparently for this reason the words ‘at his

election’—which appear in the first clause of |the

Jones Act], relating to the personal right .of action

of an injured seaman, and * * * gave him, as alter-

native yer tee relief ‘an election between the

right under the Yew rule to recover compensatory

damages for injuries caused by negligence and the

right under the old rules to recover indemnity for

injuries occasioned by unseaworthiness: “"—were

omitted from the second clause of |the Jones Act],

relating to the right of the personal representative to

recover damages for the seaman's death, since there

was no right to indemnity under the prior maritime

law which he might have elected to pursue.” Lind-

gren v. United States, 281 U. S. 38, 47-48 (1930).

(Emphasis and bracketed material supplied. )

Thus, the Court, to bolster its contention that the

' Sones, Act recognized that there was no remedy based upon

unseaworthiness for a wrongful death claim arising out of

-a seaman’s death in state waters, and by its enactment did

not seek to provide any such remedy, urged that the omis-

. sion of the words “at his election” from the second clause

‘of the Jones Act dealing with wrongful death claims was

significant in view of the appearance of these words in the

first clause dealing with injury claims. The Court argued

that . this ste cutory language demonstrates that the sea-

_ man’s representatives had no election between the theories

of negligence-and unseaworthiness because the unsea-

worthiness remedy was’ not evailable to them at all,-omisg

“* Citing sad S. S. Co. v. Peterson, 278 U. S. 130. 139

(1928). >

in the case where a seaman survived his injury was he

required to elect between pursuing his claim upon the

bakis of negligence or unseaworthiness. Therefore, the

Court’s reasoning was based upon the interpretation that

the “élection” mentioned in the statute was the seaman’s

required election between pursuing his claim for negli-

gence or unseaworthiness.” But with the procedural

determination that a seaman was required to plead both

grounds of recovery ~ and elect .between them before

reaching the jury,” it became increasingly difficult, as the

factual distinctions between the twe ‘grounds gradually

‘melted away.” for seamen-claimants to make a choice

which was not “both meaningless and impossible.” “* To

relieve this cruel choice, the courts interpreted the “elec-

tion” language of the Jones Act to mean that a seaman

-was required to elect procedurally between a suit in’

admiralty and a civil action at law, specifically rejecting

the cnet J assigned to the Jones Act language by the

: ““ An interpretation derived from language in Pacific S. S.

Co. v. Peterson, 278 U. S. 130, 137-138 (1928) and Baltimore S°

S. Co. v. Phillips, 274 U. S. 316 (1927). And see Robinson, Ad-

miralty, 335 (1939). Note that even under this rule, maintenance

and cure was a cumulative remedy to thet provided by the Jones

Act, and a seaman did not have to elect between them. Pacific

S. S. Co. v. Peterson, 278 U. S. 130 (1928).

“" Baltimore S. S. Co. v. Phillips, 274 U. S. 316 (1927).

*” Pacific S. S. Co. v. Peterson, 278 U. S; 130 (1928).

. %!1Eg., see Michalic v. Cleveland Tankers, Inc., 364 U. S. ©

325 (1960); Vickers v. Tumey, 290 F. 2d 426 (5th Cir. 1961);

Full v. Esso Standard Oil Co., 297 F. 2d 411 (Sth Cir. 1961) cert.

den. 371 U. S. 814 (1962) (recovery for negligent failure to ye

ply ‘with the absolute duty to furnish a seaworthy vessel).

see Kernan v. American Dredging Co., 355 U.S. 426 (1958) < re-

‘covery under Jones Act for non-negligent violations. of coast-

guard regulations). Cf. Frankfurter, J., concurring in Pope &

Talbot, Inc. v. Hawn, 346 U. S. 406, 418 (1954): * [Ijt will

be rare that the circumstances of an- injury will constitute neg-

ligence but not unseaworthiness.”

+? Gilmore and Black, The Law of Admiralty 292 (1957).

Lindgren Court: ,that a seaman had to elect between

substantive grounds of recovery.** And when this Court

in McAllister v. Magnolia Petroleum Co.; 357 U. S. 221.

222 (1958), ratified this liberal interpretation of the:

words, “at his election,” the already shaky rationale for

the Lindgren decision toppled entirely and Lindgren be- ;

.came clearly visible as what it has always been: a rule in .

search of a reason. For while the rationale of Lindgren

was based upon the view that_a searnan was required to

“elect” whether to pursue a negligence recovery under

the Jones Act or recover under the general maritime

doctrine of unseaworthiness, since that case was decided,

it has-become clear that a seaman need not elect between

Jones Act negligence and unseaworthiness, but may pro-

ceed to judgment alternatively on both and his verdict:

will be sustained on appeal if there is no demonstrable

prejudicia] error as to one of them: McAllister v. Magnolia

Petroleum Co., 357 U. S. 221 (1958).

Nor is the Lindgren conclusion any more-rehabilitated

by history than by the statutory language of the Jones

Act. For the Court’s contention that “there was no right

to indemnity under the prior, maritime law which [the

personal representative of the decedent-seaman| might

have elected to pursue” is not historically accurate.

quite apart from the Court’s attempt to force the statutory

‘3 Branic v. Wheeling Steel Corp., 152 F. 2d 88? (3rd Cir.

1946), cert..den. 327 U. S. 801 (1946); German v. Carnegie-Il-

linois Steel Corp., 156 F. 2d 977 (3rd Cir. 1946); McCarthy v.

American Eastern Corp., 175 F. 2d 724, 725 (3rd Cir. 1949) cert.

den. 338 U. S. 868 (1949); Balado v. Lykes Bros. S. S. Co., 179

F. 2d 943 (2d Cir. 1950); Williams v. Tide Water Asso. Oil Co.,

227 F. 2d 791 (9th Cir. 1955), cert. den. 350 U. S. 960° (1956);

Cf. Pope & Talbot, Inc. v. Hawn, 346 U. S. 406 (1954). And see

Gilmore and Black, The Law of ‘Admiralty, §§ 6-23 through 6-25

(1957).

“4 Lindgren v. United States, 281 U. S. 38, 48 (1930).

ah language into recognition uf such a principle. For, as Mr.

* Justice Stewart has described the development of the case

law in this area in Hess v. United States, 361 U. S. 314,

318-19 (1960): |

“Although admiralty law itself confers 1 no right of .*

action for wrongful death, The Harrisburg, 119 U. S. —

199, yet ‘where death * * * results from a maritime

tort committed on navigable waters within a State

whose statutes give a right of action on account of |

death by wrongful act, the admiralty .courts will

entertain a. libel in personam, for the damages sus-

tuined by those to whom such right is given.’ Western

Fuet Co..v. Garcia, 257 U. S. 233, 242. See The

Hamilton, 207 U. S. 398; LaBourgogne, 210 U.S.’ 95:

Levinson v. Deupree, 345.U. S. 648; The Tungus. v.

Skovgaard, 358 U. S. 588; United Pilots Ass’n. v. Ha-

_lecki, 358 U. S. 613.” (Emphasis supplied. )

- . And reason compels this result, ‘or “iit would be a

_ strained statement of the effect of The Harrisburg |119

U. S. 199 (1886) |- to say that there was no duty imposed °

by the maritime law not to kill persons through breach of

the duty of seaworthiness.” *

* * tk * xe

Despite the original invalidity of Lindgren v. United:

States and the body blows dealt Lindgren by the subse-

quent case law, that decision will not disappear sua sponte

solely as a result of its own logical inconsistencies and lack

of Karmony with our current social values. .For in spite.

of ‘its infirmities, Lindgren is still considered to be com-

pelling precedent by the Court of ‘Appeals below” and

** Brennan, J., concurring in part and dissenting in part in .

The Tungus v. Skovgaard, 358 U. S..588, 601 (1959).

“ Court of Appeals opinion (R. 46).

Feed

~ 29

other inferior courts."’ Many of these courts:have followed

Lindgren protestingly, haltingly, and crying out against its

logical barrenness and basic injustice. E.g., Fall v. Esso

Standard Oil Co., 297 F. 2d 411, 417 (5th Cir. 1961):

‘We feel compelled to hold that the general mari-

time law, unaided by the Jones Act, anomalously, ar-

chaically, unnecessarily i in terms of general principles,

gives |plaintiff| no right of action.’”” (Emphasis sup-

plied.)

And see Mortenson v. Pacific F ar East Line, Inc., 148 F -

Supp. 71,-73 (N. D. Cal. 1956):

“If this disparity in actions for ‘Dersonal injuries and

wrongful death,is deplorable, the remedy’ is not for

this Court.”

And in Gill v. United States, 184 F. 2d 49, 57 (2nd

Cir. 1950), Judge Learned Hand attacked the logical basis

sd the Lindgren decision with unassailable force:

“Is a vessel owner liable. fora seaman’s * * * death

within the territorial waters of a state, when it is

caused by the unseaworthiness of the vessel?. I have

no doubt that the death was owing to the respondent's

‘wrongful act, neglect or default,’ as the New Jersey

_ Act uses those words; but in Lindgren v. United

* States, 281 U.S. 38 * * *, the Supreme Court held

that the Jones Act, 46 U.S.C. A. $ 688, superseded a

state statute creating such a claim *, * *. Since then,

the Court has indeed decided that a seaman may re-

cover for injuries suffered from the ship's unsea-

worthiness, Mahnich v. Southern S. S. Co., 321 U.S.

96,100 * * *, and the same is true of longshoremen,

Seas Shipping Co. v. Sietacki, 328 U. S. 85 * * *:

“* Schlichter v. Port Arthur Towing Co., 288 F. 2d 801 (5th

Cir. 1961); Rebbins v. Esso Shipping Co., 190 F. Supp. 880 (S. D.

N. Y. 1960); Bath v. Sargent Line Corp., 166 F. Supp. 311. (S. D.

N. Y. 1958); Lee v. Pure Oil Co., 218 F. 2d 711 (6th Cir. 1955);

Gill v. United States, 184 Fy 2d 49 (2nd Cir. 1950).

I find it hard to understand why the rationale of

Lindgren v. United States, supra, ought not to have

forbidden recovery ‘in either of these instances. If the

Jonés Act ‘covers the entire field of liability for in-

juties to seamen’ * * * and ‘is paramount and ex-

clusive,’“why does it not supersede injuries arising

from unseaworthiness which do not result in death, as

well as those which do? * * * Yet I] must own to the

greatest doubt whether the Court would today. so

hold.”” (Emphasis supplied. )

To this plea for a rational rule to administer, this

Court owes a clear response. For this Court has “a most

extensive responsibility of fashioning rules of substantive

law in maritime cases * * *. This responsibility places

on this Court the duty of anaes that the product of the

effort be coherent and rational.”

“When it appears that a challenged doctrine has been

_uncritically accepted as a matter of course by the inertia

of repetition * * * the Court owes it to the demands of

reason, on which judicial law-making power ultimately

rests for its authority, to examine its foundations and

validity” * and: having done so. to remove Lindgren from

the judicial] landscape by expressly overruling it.

Plaintiff's amended complaint asserts a claim based on un-

seaworthiness for which she i is entitled to proceed to

trial.

There remains for consideration the question of

whether petitioner's amended complaint asserts a claim

. » , zs

based upon unseaworthiness sufficient to raise -the ques-

‘* Brennan, J., concurring in part and dissenting in part in

The Tungus v. Skovgaard, 358 U. S. 588, 611 (1959).

“” Frankfurter, J., dissenting in Mitchell. v. Trawler Racer;

Inc. 362 U. S. 539. 550 (1959).

tions considered in arguments I(A) and 1(B), ‘supra, pp.

10-30.

Both of the courts below ail sbi emphasis upon

their finding that “all of the allegations of the complaint

* * * constitute assertions of negligence,” *’. apparently

to support their conclusion that petitioner's sole relief is

under the Jones Act. Petitioner’s positiop is that her

amended complaint adequately presents and preserves for

review a wrongful death claim based upon unseaworthi-

ness, and that her reliance, in the alternative, upon allega-

tions of negligence under the Jones Act does not divest her ~

_ of her general maritime rights, nor prevent her from going °

to trial on both grounds.

Petitioner's amended complaint clearly establishes

her claim based upon unseaworthiness for wrongful death.

Apart from other allegations, her reliance upon “the Gen-

eral Maritirae Law [and| the Ohio Wrongful Death Act.

Ohio Revised Code, Sec. 2125.01. et seq.” is clearly stated

in the very first paragraph. (R. 1.) Moreover, paragraph

V of her amended complaint makes her legal’ position

abundantly clear: |

“The failuré of the defendant to provide gear and

* equipment to permit safe actéss to its vessel from a

slippery. dangerous and unsafe dock and the defend- .

ant's failure to equip the ship with devices to elimi-

nate the necessity of boarding the vesse] by the lad-

der and tackle arrangement used. rendered the vessel

unseaworthy: such unseaworthiness proximately

caused the fall of the plaintiff's decedent from the

dock and his resultant death by drowning.”

Further, allegations of negligence (h). (j). (k). (1), (mn),

(q) and (r) in‘paragraph IV (R. 2-4) are iol pi

—_—_—————

. * Court of Appeals opinien (R. 48). And see Memorandum

on Motien to Strike by Jones, J. in the federal] district court (R.

15).

32 ©

tions of negligent failure to provide the --essel with gear

and equipment, without which the vessel would be unsea-

worthy.

Petitioner has pleaded aaheiiail s failure to provide

adequate equipment and appliances appurtenant to the

vessel to permit reasonably safe access to the ship from,

shore. These allegations fall squarely within the expanded .

concept of unseaworthinéss provided by this Court’s re-

cent decisions. Whether a condition of unseaworthiness of

a vessel is brought about by operating negligence, Mah-

nich v. Southern S. S. Co., 321 U.S. 96 (1944) or no neg-

ligence at all, Seas Shipping Co. v. Sieracki, 328 U. S. 85

(1946), recovery on that ground is not precluded. Fur-

.ther, where the unseaworthiness of the vessel causes in-

jury to an individual on the dock, rather than aboard ship,

he may recover on that ground from the vessel owner.

Gutierrez v. Waterman S. S. Corp., 373 U.S. 206 (1963) .*'

Moreover, failure to. provide an adequate ladder as a

safe means of ingress and egress to the vessel has been held

‘to constitute unseaworthiness. Buch v. United States, 122

F. Supp. 25 (S. D. N. Y. 1954) modified and wes 220 F.

2d 165 (2nd Cir. 1955).

_ Furthermore, not only may a seaman or his repre-

sentatives join in the same action separate counts of Jones

Act negligence and unseaworthiness and proceed to trial

‘without electing between them. McAllister v. Magnolia

Petroleum Co., 357 U. S. 221 (1958), but if he is to pre-

serve his right to litigate on both grounds, he must do SO,

Baltimore S. S. Co. v. Phillips, 274 U. S. 316 (1927).

4! And see Frankfurter, J.. concurring in Pope & Talbot vr.

Hawn,.346 U.S. 406. 418 (1954): “* * * it will be rare that the

circumstances of an injury will constitute negligence but not

unseaworthiness.”’

33 | oy

In view of these holdings, the reasoning of the Court

of Appeals becomes, to say the least, obscure, with respect

to the following language:

“It is to be noted that all of the ithemetione of the cora-

plaint constitute assertions of negligence * * *

Whether the negligence was failure to provide safe

access to the ship for plaintiff's decedent, or whether

the negligence was a breach of defendant’s duty to

provide a seaworthy ship, the action is based upon

negligence and proximate cause, and on the proof

thereof, plaintiff would be entitled to a judgment.”

(R. 48.) (Emphasis ‘supplied. )

Quite apart from the important differences in benefitiaries

dependent upon whether petitioner's claim is- grounded

upon negligence or unseaworthiness, it would be a harsh

application of the rule indeed to hold, as the language of

the Court of Appeals would suggest, that petitioner, who

would have been barred from. pursuing. her Jones Act

remedy had she omitted it from her complaint, is now

barred from pursuing her unseaworthiness remedy be-

cause she failed to omit her. Jones Act allegations.

The issue has been properly prensa for ‘review by-

this Court.

To the plea of the Court of aii below that “if

Lindgren v. United States * * * is to be overruled, the

landmarks must be plainer to see,” ’ this Court ought to re-

spond by providing the clearly visible landmark which

that court seeks: ‘a clear rejection of Lindgren, and an ex-

plicit statement that, in an action against his employer for

the wrongful death of a seaman in state waters, the wrong-

. ful death statute of the state may be used to provide an

effective remedy for the violation of the federal maritime

duty to keep vessels seaworthy,” notwithstanding any

other remedies for negligence under the Jones Act which

may be available to his beneficiaries. .

Such a result is clearly in the public interest, for so

long as seamen are employed extensively in the hazardous

‘industry of transportation by ship, so long as maritime

torts ocpur which cause fatal injuries. so many persons

will this Court’s ruling affect and so far will the shadow -

of this Court’s ruling extend. ‘

Il.

THE CLASSES OF BENEFICIARIES NAMED IN THE

JONES ACT ARE CUMULATIVE, NOT EXCLUSIVE.

The second-question raised is whether the classes of

beneficiaries named in the Jones Act are mutually exclu- -

sive so that, in a wrongful death action, the existence of a

beneficiary in one such class precludes recovery by persons

in the. other class. a .

It is true, of course. that if petitioner is successful in

her contention under |{I!, supra, that the right to claim

under general maritim@ law and the Ohio Wrongful Death

Act is available to her. as a practical matter. this question

-would become less important, because all of the bene- .

ficiaries for whom petitioner originally sued would be

‘In overruling Lindgren, the determination of how much

of the local wrongful death statute and the extent to which the

law of the. state in whose waters the death occurred controls

need: not be.here considered because of the clear manner in

which the issue has been raised by the pleadings. Unless the

Court would prefer tc explain or reconcile the decisions on this

subject in Southern Pacific R.R. v. Jensen, 244 U.S. 205 (1917):

The Tungus v. Skovgaard, 358 U. S. 588 (1959); United Pilots

Ass'n. v. Halecki, 358 U. S. 613 (1959); Hess v. United ee

361 U. S. 314 (1960); Goett’v. Union Carbide Corp., 361 U.

340, 347 (1960) (Whittaker. J., dissenting) and Kossick v. tela

Fruit Co., 365 U. S. 731 (1961), in order to provide guidance in

the order of the court below. Clearly, if the Ohio Wrong-

ful Death Act (R. C. § 2125.01, et’ seq.), in conjunction

with the doctrine of unseaworthiness, is applicable to the

instant action, dependent sisters and brothers as well as

a dependent mother may participate as beneficiaries in the

same wrengful death action. Section 2125.02, Ohio Re-

vised Code, provides that a wrongful death action “shall

be for the exclusive benefit of. the surviving spouse, the

children and other next of kin of the decedent’. (em-

phasis supplied), and this language has been interpreted

broadly to include brothers and sisters as well as parents,

when both classes of kin are in existence, among the bene-

~“ficiaries of a single wrongful death action. Karr v. Sizt,

146 Ohio St. 527 (1946).

It has been demonstrated that where each of several

theories of liability permits recovery for a different class

of beneficiaries, recovery by orie class upon one theory

does not bar the other class from an independent recovery

on the other. F or example, in. The-Four Sisters, 75 F.

‘Supp. 399 (D. Mass. 1947), the decedent-seaman was un-

married, had no children and was survived by a father, a

brother and a sister. The: father-administrator brought

suit under the Jones Act for the benefit of decedent's de-

pendent sister and himself. After the suit as to the sister

was dismissed by the trial court on the ground that the sur- .

vival of the father precluded Jones Act recovery for the

sister because of the mutually exclusive classes of bene- |

“ficiaries, provided by the -F ELA, the father recovered a -

Jones Act verdict. After this judgment was satisfied, he

brought suit, as administrator, in admiralty for the sister

under the Death on the High Seas Act. Held: the sister’s

. action was not barred by the prior Jones Act recovery of

the father. This decision indicates that where, as here,

different theories of liability establish the right of different

classes of beneficiaries to recover, recovery may be. had

—

by one class on one theory and by the other class on an-

other.

Any procedural impedes to joining both classes

of beneficiartes and both theories ‘of liability in a single

action has been removed by M cAllister v. Magnolia Petro-

leum Co., 357 U. S. 221 (1958), decided since The Four

Sisters, supra, which permits the joinder of several theo-

ries in one action, with no requirement that the plaintiff

elect, between them. See Whitaker v. Blidberg-Rothchild

Co:, 195 F. Supp. 420, aff'd296 F. 2d 554 (4th Cir. 1961),

which permitted a dependent mother to recover for her

decedent’s death under the Death on the High Seas Act,.

although in the same action she was denied recovery under

the Jones Act because of the survival of a non-dependent

}

daughter of the decedent. ? /

It follows that in the case at bar sini of the peti-

tioner’s allegations will permit recovery under the Jones. .

Act by. the petitioner as the decedent’s mother, and under

the doctrine of unseaworthiness to the other named bene-

ficiaries, the decedent's siblings..

But even if this Court should rule againsi petitioner’ s

- claim in [1], supra, petitioner contends ;that under the

Jones Act alone, all of the dependent sisters and brother,

as well as the mother of the decedent are entitled to par-

ticipate in the fund created by recovery for their dece-

dent's wrongful death. It is expressly provided by the

F. E. L. A.,** incorporated by reference into the Jones Act,

that in a wrongful death action under the Act, the dece-

dent’s personal representative may recover “for the bene-

fit of the surviving widow or husband and children of such

“a

+ Federal Employers’ Liability Act, 45 U. S.C. § 51 et seq.

employee; and, if none, then‘of such employee’s parents;

and, if none, then of the next of kin dependent upon such

employee * * *” ( pp. 42-43, infra). (Emphasis -sup-

plied. ) ; 3

It is true that in C. B. & Q. R. Co. v. Wells-Dickey

“Trust Co., Admr., 275 U. S. 161 (1927) this Court inter-

’ preted this language narrowly as providing exclusive

classes of beneficiaries. But in Poff v. Pennsylvania R. Co.,

327 U. S. 399 (1946), this language was- interpreted

broadly to provide, rather than to defeat, -recovery for

beneficiaries. The liberal purposes of the Act require such

broad interpretation of this as well as other language. in

the Jones Act and F. E. L. A. .

* ‘Although the court in Wells-Dickey, without deiteste, e*

@found thé express language of the F.’E. L. A. to clearly

demonstrate the Congressional intent to provide exclusiye

compartments of beneficiaries, the holding is not. merely

a pro forma reading of the statute; the result that it

reached required judicial interpretation of a greater degree -

as well—judicial interpretation which might well have

reached a contrary result, in view of the liberal construc-

tion required-of the F. E. L. A. The use of the connective ~

“and” between the classes of beneficiaries rather than “or”

suggests strongly that Congress intended the classes to be

cumulative rather than exclusive. The words “if none”

have meaning under this construction of the -statutory

language by inserting an elliptical “even” before those

words, demonstrating that all subsequently named classes

participate as beneficiaries, “even if none” exist in the

prior class. As to the question of how a recovery shall be

apportioned among such beneficiaries, the probate ma-

chinery of each state (which adequately confers status to

sue upon a. personal representative under the same fed-

eral acts) provides an equitable and adequate solution.

This statutory construction is at least as valid as that

which the Court in Wells-Dickey applied, and has the .

additional advantage of conforming to the spirit of the

F. E. L. A. and Jones Act and the liberal construction to

_ which these Acts are entitled.

This Court is urged to re-examine Wells-Dickey in

this light to give effect to the purposes of this social legis-

lation.

Ii.

A CLAIM FOR CONSCIOUS PAIN AND SUFFERING SUR-

VIVES DESPITE THE CLOSE PROXIMITY OF THE IN-

JURY AND DEATH.

The third question raised is ’ whether a claim for

conscious pain and suffering survives the death of a sea-

man, where the period of pain and suffering for which

compensation is claimed is short and immadiately preceded

his death by drowning.

It must be noted that, in addition to her lites for the

decedent's wrongful death (Paragraph VII, amended com-

plaint, R. 5) petitioner also seeks recovery for conscious

pain and suffering of the decedent while he was alive.

(Paragraph VI, amended complaint, R. 5.)

Even if Respondent’s contention that unseaworthiness

is not an available theory of liability in actions for wrong-

fui death were correct (which petitioner denies, see argu-

ment [Ij above, pp. 7-34) the language in her complaint

which refers to the general maritime law, the doctrine of

unseaworthiness and the Ohio Survival Statute, Ohio Re-

vised Code, Sec. 2305.21 et seq., should be retained be-

cause she has, in the same action, Sought relief, in addition, |

for conscious pain and suffering.

Holland v. Steag, 143 F. Supp. 203° (D. Mass. 1956),

‘so holds. In that case the court*held that a state survival

statute “appears effective * * * to bring about a survival

of the seaman’s right under maritime law to recover for

personal -injuries caused by the unseaworthiness of the. .

vessel.” 143 F. Supp. 203, 206.

_ And this Court has cited Holland with approval in

Kernan v. American Dredging Co., 355 U.S. 426, 430, foot-

‘note 4 (1958). Sée also Just_v. Chambers, 312 U. S. 383

(1941), in which it was held that a state survival statute

would permit the survival of a maritime action for per- -

sonal injuries after the death of the tortfeasor, even

though, under the maritime law alone, there would have

been no such survival.

But the court below concluded that “there would be

no substantial basis, in this case, for a separate estimate

of pain and suffering,” even “‘!a|ssuming * * * that a right

of action were to pass to decedent’s relatives, under the

Ohio Wrongful Death Act,’ ** based upon the language in

The Corsair, 145 U.S. 335, 348 (1892), that where suffer-

-—— “ing is brief « 3 “substantially contemporaneous” with

death, the decedent's “fright for a few minutes is too un-

substantial a basis for a separate estimation of damage.”’ *

The language of the amended complaint. which .the court

below dismissed in such summary manner referred to “‘se-

vere personal injuries which caused | decedent] excruci-

ating pain and méntal anguish prior to his death” “* and.

_ sought compensation therefor: ._

‘Since the decision of The Corsair, 145 U. S. 335.

(1892), many courts have sustained separate awards for

conscious pain and suffering where the interval between

injury and death was extremely short. E.g., St. Louis,

I. M. & S. R. Co. v. Stamps, 84 Ark. 241, 104 S. W. 1114

‘* Court of Appeals Opinion (R. 35).

** Court of Appeals Opinion (R. 36).

“ K. 3.

—

a * . 40

(1997) (verdict of damages for pain and suffering sus-_

tained where decedent. fell from bridge and drowned);

Boutlier v. City of Malden, 226 Mass. 479, 116 N. E. 251

(1917) (decedent exclaimed and rolled on ground before

death after electrocution; held: conscious pain action sus-

tained); Campbell v.. Romanos, 191 N. E. 2d 764, 768

(Mass. 1963) (decedent died of burns while running from

fire; held: conscious pain and suffering action justified) ;

' Brown v. Oestman, .362 Mich. 614, 107 N. W. 2d 837

(1961) (proof of flow of blood after decedent was struck

on head held sufficient to sustain action for consciqs pain’

and suffering) ; Sharpe v. Munoz, 256 S. W. 2d 890, 93°

(Tex. Civ. App. 1953) (child died- of burns in seconds;

although remittitur of part of conscious pain and suffering

award was ordered, ‘principle of recovery for conscious

- pain and suffering where death was almost instantaneous

approved). See also Chicago R. I. & P. R. Co. v. White,

112 Ark. 607, 165 S. W. 627 (1914); Davis v. Bolstad, 295

S. W. 2d 941, 955 (Tex. ‘Civ. App. 1956): Keowen v.

Amite Sand & Gravel. Co., 4 So. 2d 79 (La. App. 1941).

In the light of this judicial experience, this Court is .

‘urged to reconsider the harsh view announéed in The Cor-

sair. 7

Tf, at trial, petitioner is unable to sustain her burden

of proof on this issue, her claim for compensation for this

portion of her suit should fail for that reason. But she

should have the opportunity to make such proof of this

contention as she can muster without a prejudgment at

the pleading stage that her proof must fail. If the language

in The Corsair is no longer the position of this Court in

view of-the developments over the. past half-century of

tort law with reference to ¢ompensability of claims °for~

pain accompanied by mental anguish since that: decision,

this case provides a an opportunity to say so.

eae

The imperatives of orderly and symmetrical treat-

ment of maritime claims arising out! of the same incident *

require that this Court emancipate itself and the inferior

federal courts from the hoary rule of The Corsair.

CONCLUSION.

. For the foregoing reasons, the judgment of the court ony

below should be reversed.

, | Respectfully submitted, -

Jack G. Day,

BERNARD A. BERKMAN, |

Counsel for Petitioner.

BERNARD A. BERKMAN,

Of Counsel.

* E.g., F itzgerald v. United States Lines Co., 374 U.S. 16

(1963) . . :

42.

APPENDIX A.

MERCHANT MARINE ACT OF 1920, .SEC. 33.

46 U.S.C. § 688. Recovery ” Inj jury to or Death of —

a Seaman.

‘Any seaman who shall wile personal injury in the

course of his employment may, at his election, maintain

an action for damages at law, with the right of trial by

_ jury, and in such action all statutes of the United States

modifying or extending the common law right or remedy

‘in cases of persdnal injury to railway employees shall

apply; and in case of the death of any seaman as a result

of.any such personal injury the personal represéntative of

such seaman may maintain an action for damages at law

with the right of trial by jury, and in such action all stat-

utes of the United States conferring or regulating the right

of action for death in the case of railway employees shall

- be applicable. Jurisdiction in such action shall’be under

the court of the-district in which the defendant employer

resides or in which his principal office is located.

FEDERAL EMPLOYERS’ LIABILITY ACT.

45 U.S. C. §51. Liability of Common Carriers by

Railroad, in Interstate or Foreign Commerce, for Injuries

to Employees from Negligence; Definition of Employees.

_ Every common carrier by railroad while engaging in

commerce between any of the several States or Territories,

or between any of the States and Territories, or between

the District of Columbia and.any of the States or Terri-

_ tories, or- between the District of Columbia or any of the.

States or Territories and any foreign nation or nations,

shall be liable in damages to any person suffering injury

while he is employed by such carrier in such commerce,

or, in case of the death of such employee, to his or her

_ personal representative, for the benefit of the surviving

widow or husband and children of such employee; and, if

none, then of such employee's parents; and, if none, then

~ of the next of kin dependent upon such employee, for such

injury or death resulting in whole or in part from tha’,

negligence of any of the officers, agents, or employees of

such carrier, or by reason of any defect or insufficiency,

due to its negligence, in its cars, engines, appliances,. ma-

chinery, track, roadbed, works, boats, wharves, or other

equipment.

Any employee of a carrier, any part of whose datine

as such employee shall be the furtherance of interstate or

foreign commerce; or shall, in any way directly or-closely

and substantially, affect such commerce as above set forth

shall, for the purposes of ‘this chapter, be considered as.

being employed by such carrier in such commerce and

shall be considered _ as entitled to the’ benefits ‘of this

chapter.

OHIO WRONGFUL DEATH ACT.

Ohio Revised Code. § 2125.01. Action for Wrongful Death.

When the death of a person is caused by wrongful act,

neglect, or default which would have entitled the party

injured to maintain an action and recover damages if death

_ had not ensued, the corporation which or the person who

would have been liable if death had not ensued, or the

administrator or executor of the estate of such person, as

such administrator or executor, shall be liable to an action

for damages, notwithstanding the death of the person

injured and although the death was caused under circum-

stances which make it murder in the first or second degree,

_or manslaughter. When the action is against such adminis- |

trator or executor the damages recovered shall be a valid

claim against the estate of such deceased person.

«44

When death is caused by a wrongful act, neglect, or

default in another state.- territory, or foreign country, for

which a right to maintain an action and recover damages

is given by a statute of such other state, territory, or

foreign country, ,such right of action may be enforced -in--

this state. Every such action shall be commenced within ~*

the time prescribed for the commencement of such actions

by the statute of such other: state, weritory, ” foreign

country.

The same: remedy shall apply to any such’ cause of

action now existing’and to any such action commenced

before January 1, 1932, or attempted to be commenced in

proper time and now appearing on the files of any court

within this state, and no prior law of this state shall pre-

vent the maintenance thereof.

Ohio Revised Code. § 2125.02. Proceedings.

An action for wrongful death must be brought in the

name of the personal representative of the deceased per-

son, but shall be for the exclusive benefit of the surviving

spouse, the children, and other next of kin of the decedent.

The jury may give such damages as it thinks proportioned

to the pecuniary injury resulting from such death to the

persons, respectively, for whose benefit the action was

brought. Except as otherwise provided by law, every such

action must be commenced within two years after the

death of such deceased person. Such personal representa-

tive, if he was appointed i in this state, with the consent of

the court making such appointment may, at any time be-

fore or after the commencement of the suit, settle with the

defendant the amount to be paid. |

“-

]

ae Ae

OHIO SURVIVAL STATUTE.

Ohio Revised C ode. § 2305.21. Survival of pr

In addition to the causes of-action which survive “«

' common law, causes of action for mesne profits, or injuries

to the person or property, or for deceit or fraud, also shall

survive; and such actions: may_be brought notwithstand- ai

ing'the death of the person entitled or liable thereto.

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.