Amicus Curiae Brief — Rodrigue v. Aetna Casualty & Surety Co.

INDEX

. Page

IND is cancicaruhsd db co-ela ile wines ata edidice ama a se 2

nk ccpnwecdccckandysrdinetdushsshmaeniedaies =

Argument.____---------------- ERIC ELIE Nomen oro 5

I. In the Outer Continental Shelf Lands Act Con-

gress did not change the coverage of the

*Y Death on the High Seas Act_-_-__~ iicmetien 6

oad ' II. The Death -on the High Seas Act Covers

_ Accidents Oceurring on ‘Offshore Drilling —

PO as iccocuenbadeus cingadeeiens 12

° ' III. The Application of the Death on the High

: Seas Act to Accidents Occurring on Offshore

Drilling Platforms Would Not Violate Con-

stitutional Restrictions on the Scope. of

Admiralty Jurisdigtion_ ------ Liplanbhaanatene 20 |

Ci nncvndetaw ae deetse dsp ulineseenay ee

CITATIONS —

Cases: : ;

Fe ee ee ee 22

‘ Atlee v. Packet Co., 21 Wall. 389_------------------ 22, 23

: Plackheath, The, 195 U.S. 361__-.---------..---- — a

Calbeck v. Travelers Insurance Co., 370 U.S. 114__-_-- 17

Cleveland Terminal R.R. Co. v. Cleveland S8S.S.. Co.,

Te EE ee en eon Sm apeRree 21, 23

D’ Aleman v. Pan American World Airways, 259 F. 2d

ae a haa 15, 18

Dizon v. Oosting, 238 F. Supp. 25_-_------ a eade 16, 17

Dore v. Link Belt Company, 391 F. 2d 671_/___--___- 5

Dowlut & Williams Co. v. United States, 268 US.

Ta por eh ET ee A NE a See eee 15, 21, 23

Gutierrez v. Waterman S.S. Corp., 373 U. 5. 206,....... 22

‘yHamilton, The, 207 U.S. 398_--} pl teiddaaimeainann ne

Harrisburg, The, 119 U.S. 199_'.--_------------_--- 13.

351-726—69——1 : : %

- Cases—Continued

Johnson ¥. Chicago & Pacific Elevator C., 119 US. Pago

__—_ RE ERE Dot a eens On ty See RR ten 21

Loffiand Bros. Go. v. Roberts, 386 F. 2d 540 certiorari

I I ie inci renconciwasiews 6

pa Se OB ne ae 21

Movwible Offehore Co. v. Ousley, 346 F. 2d 870---------- 6

Nazirema Operating Co., Inc. and John P. Traynor v.

~ Johnson, Nos. 528 and @3, Oct. Term 1968____-__- 19

Ocean Drilling & Exp. Co. v. “Berry Bros. Oilfield Serv.

ae XS en ee 6

O'Donnell v. “Great Lakes-Dredge & Dock Co., 318 U.S. |

ick: chsh Meccan acs casing eee ennai nnd theta aaiannalin ms tnd demi aoe 16

Panoil, The, Se We Mi iicniccbdssihbacaanapunee 21, 23

‘Phoenix Construction Co..v: The Steamer ig saree war

' + 212\ U.S. 558, es pe ee, 162 F, 2d

opined wtedbnbishbtneniwsdnawbbbonnpeguas ae 22, 23

,Pheniz Insurance Co., Ex Parte, 118 US. ER ee |

* Plymouth, The, 3 Wall. ee See cand a 21-°

Pure Oil Co. v. Snipes, 293 F. 2d 60__-- eee aed Oem t--* 6,24.

Raithmoor, The, 241 U.S. 166--_------- ‘ ae 22, 23

Southern Pacific Co. v.. Jensen, 244 U.S. 205----- a 20

T. Smith & Son, Inc. v. Taylor, 276 US. a 21

roe SE eee eee Ene OO Te

Tungus, The v. Skovgaard, 358 U.S. 588_.....-.----- 13, 18

United Pilots Association v. Halecki, 358. U.S. 613---- 18

United States v. California, 332 U.S. 19... ---- ie 7

”. United States v. Louisiana, 339 U.S. 699<_---------- : 7

United States v. Texas, 339 U.S. 707_-------~<---,--- 7

_ . Western Fuel Co. v. Garcia, 257 U.S. 233_..-----2---" 13,

’ Wislon v. Transocean Airlines, 121 F. oops 85.--- 15, 18

Statutes:

Death ; on the te Seas Act:

Il

Statutes—-Continued 1 : ar ar 2

Outer Continental Shelf Lands Act: ° , a se

43 USO. 1331-1243. .-..------- Og ee AN 5 >

| EE icin capcoesescce CRS . oe et

p Bes (| (iT PR nibnadnchcnnbwehnbewet — 2

; : ee os. on ckewanwcdsonnbow 2,9 ~

% to Sree icclameaaaeicans 3

43 US.C. 1333(a), Sec. 4(a)-.---------- 3, 8, 9, 10, 11

2 USO AR, Gee. $0) x--2020-2--2056.-- 4

43 U.S.C. 1333(a)(1), Sec. 4(a)(1)-------------- 3.8

43 U.S.C. 1333(a)(2), Sec. 4(a)(2)------ locas 3,8,17°.

. 43.US.C. 1333(c), Sec. 4(c)_------=--- slindinbas 18

0 SE EC

Ei cluvkknckaseeconenniawewwe 8

ie ie cc enamanns .8

, Submerged Lands Act, 43 U. S.C. 1301-1315-- = ae Berra

Comment, 55 Colum. L. Rev. 907 (1986) Cee Peer 14, 15, 18

99 Cong. Rec. Fain aii A ici inl nannies nee mies 11

ioc onindpcsenaccevcunae sce ae

©) Come, Bee. TH06......a--...-.-..-.- Splietamiuns 12

- 99 Cong. .Reé.:7264._.---------=:------ we a

- 99 Cong. Rec. 10500: ...--......---------=--2----- ‘it

span H. Rep. No. 674, 66th Cong., PR cadineceen 14

is 5 H. Rep. No..413, 83rd Cong., Ist Sess.__----------- 6

i - Hearings on S. 1901, before the Senate Committeeon —_-

Interior and Insular Affairs, 83d Cong., 1st.Sess...- 10 -

Hughes, Admiralty (2d Ed.),. S20 R rs, occ ccwnsee - et a

Hughes, Death Actions in Admiralty, 31 Yale LJ. 115

| a reer side dite ulated ta sn en te a 13

Magruder ahd Grout, Wrongful Death ‘Within the Pe

Admiralty Jurisdiction, 35 Yale L.J. 395 (1926) ___- 13, 15

Robinson, Tort Jurisdiction in American ao

84 U. Pa. L. Rev. 716 (1936) -----—" eh HT PFA CLSE:

Robinson, Wrongful Death in Admiralty and the Con- — o

flict of Laws, 36 Colum. L. Rev. 406 (1936) -- = ---- . * 8

S. Rep. No. 216, 66th Cong., Ist Sess.__------------ Be ah

_S. Rep. No. 411, 83d Cong., Ist Sess......-------- 9,1

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‘OcToBER TERM,” 1968 |

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of No. 436

PAULETTE BoupREAUx : RODRIGUE, ET. AL, PETITIONERS -

- ABTNA CasvaLry” AND Surgery ‘COMPANY, ET AL.

ov WRITS OF CERTIORARI TO THE UNITED STATES couRT OF

APPEALS FOR THE FIFTH CIRCUIT

MEMORANDUM FOR a cme seas: AS aMIcUs CURIAE

This anceabedtidiail is submitted in response ‘to this

Court’s order of April 2, inviting the parties and the

. Solicitor General, as amicus curiae, to discuss the fol-

lowing question :

‘In light of the cases in this Court eclatiie to

the- limits of admiralty jurisdiction, Such as

Phoeniz Construction Co. v. The Steamer

Poughkeepsie, 212 U.S. 558,. affirming 162 F.

494 (1908 D.C. 8.D. N.Y.), and in tight, of the

language -atid legislative history: of the Quter

Continental Shelf Lands Act, does the Death

on the High Seas Act apply to these accidents?

‘ - See Pure Oil Co. v. Snipes, 293 F. 2d: 60 dpa

5th SAEs 1961).

“The Death on the High Seas Act provides | in n Der ae

‘nent part:

ae

BEATUTES INVOLVED bs

> 242 ¢i a 2

- 46 US. ©. 761. Riu aalien ; where iad ra

brought. —

“Whensver the death of a person shall be

caused by wrongful act, neglect, or default oc- *

‘ eurring on the higl seas beyond a marine.

-,. league fromthe shore of any State, or the Dis-_

trict of Columbia, or the Territories or depend-

encies of the United States, the personal repre-

sentative of the decedent may maintain a suit

aa damages 1 in the district courts of the United -

'. States, in ‘admiralty, for the exclusive benefit

of the decedent’s wife, husband,* parent, child,

or dependent relative against the vessel, person, -

~ or corporation which would have been Tiable if.

death had not ensued. +

. The Outer Continental Shelf Lands. Agh provides

in relevant part:

43 USC. 1332. Congressional. ‘dealdvedion ie

‘policy ; jurisdiction; con-

. struction. |

“@ It. is declared to be the policy of the ©

United -States: that the subsoil and seabed of.

the outer Continental Shelf appertain to the ~

United States and are subject to its _jurisdic-

tion, control, : and power of disposition, as pre

_ vided in this subchapter. -..

> (b). This. subchapter shall be construed in’.

such, manner that the character as high seas -

of the waters above the outer Continental

Shelf and the -right to navigation and fishing

| therein shall ‘not be’ affected.

- and political jurisdiction éf the United States .

State: ‘Provided, however, ‘That mineral leases

_ > . the civil and criminal laws of each adjacent —

| 3 tee aa

43.U.8.C. 1333, Laws and eens govern:

ing .lands—Constitution and

United States laws; laws of

adjacent States? publication

of projected States lines; re-

restriction on State —

and, jurisdiction. .

~ (a) (1). “The Constitution/ and laws and civil 3

are extended to. the subsoil-and, seabed of the

outer Continental Shelf and to all. artificial

‘ jslands and fixed structures which. may be

: erected. thereon for the purpose of exploring .

for, devéldping, ‘removing, and transporting

resources, therefrom, to the same extent as if -°

the outer Continental Shelf were an area of |

~ exclusive Federal jurisdiction located -within a. —

on the outer Continental Shelf shall be main-

tained or issued only under the Provisions: of

this subchapter. .

(2) To the-extent iba they_are applicable.

. and not inconsistent with this subchapter or _

_ with other Federal laws and regulations of the -

Secretary: now in effect or hereafter adopted,

State “y of [August 7, 1953] are declared to be.

the law\of the United States for that portion of ©

the subsoil.and seabed: of the Outer Continental.

Shelf, and artificial islands and fixed structures

_erected thereon, which would be within the area

_of the State if its boundaries were exténded

| “seaward . to the outer margin of the Outer Con-

tinental Shelf, and the President shall deter- —

mine and publish inthe Federal Register such -

projevied lines extending a and onaing

: a 2

”

OS eae ch area. All of viet applicable laws shall:

| be administered’ and enforced by the appro-

pwate officers and courts of the United States. *

a Ae State taxation laws shall ‘not apply. to the Outer

i}. STS Continental Shelf. . °° 3

F sere 4 * os * *

ee ee Jurisdiction of ‘Uiited States distrioe”

era courts. The U: ited States district eourts shall -

have original j iction of cases and contro- —

Rue _. versiés arising out of or ifi connection with any

eae ae operations conducted on the Outer Continental _.

a ' Shelf for the purpose of exploring for, develop-

ing, removing or transperting by pipeline the ©

-Gatural. resources, or involving: rights to the

‘- natural resources of the subsoil and seabed of |

the Outer Continental Shelf, and proceedings .

with respect to any such case or controversy

_. may be instituted.in the judicial distrigt in

' which any defendant resides oy may be found,

or in the judicial district of the adjacent State

nearest oT a nn

arose.

pie STATEMENT

These cases arose out. of fatal accidents occurring on

. or adjacent to stationary oil drilling: platforms located °

in the Gulf of Mexico, on the Outer Continental Shelf,

‘more than 25 miles south of the Louisiana coastline.

s Petitioner—Dore’s—decedent, an-oil company em-

ployee, was operating a crane on the drilling platform —

_ which was being used to unload | a barge lying along- —

side the platform. While a load was being lifted, the’

crane. toppled over and fell, carrying Mr. Dore some

60 feet to the deck on the barge below, where he was

4

p-

" Killed.. Sending: ¥. inks Rel Compara, 21 2a, 6,

B72, 0.4 (CA. 5). 05 ve

; Petitiqner: Badtigue’s deutch. an ‘oraployee of, | ai:

|” thydraulic testing company, died .of injuries. sustained

tim.ia fatl..frdm ‘the top, of an oil @errick to the flopr

of an: ‘offshore ee: on which the derrick, had

sheen. constructed. |

| aim. each: GASe, i aaktumme chia aciecn jai aie

. tflet: coiirt under both. the Louisiana Wrongful. Death -

- Act and the Death:on the High Seas Act,.and the dis-

as _ Aziet equat dismipged the claime based-on the State stat-

- sates The.vonrt of appeals held.in Dore. shat .the Death .

* s9n, the High Seas Act praxided the exclusive, remedy

for the accident, and affirmed in Rodrique. on the au-

thority ef Dore. The petition for certiorari, presented

the question whether the Death on the High Seas Act

affords the exclusive remedy for death on an artificial

structure on the’ outer continental shelf, ot—whether,

the“ reeovery~ permitted for State-created causes ° of

action may also 0 be had. : | :

a set nati all the Court..is whether, in the

light of its decisions defining the limits; of admiralty

jurisdiction and the language and ‘legislative history

eer caaben eel Lands Act, the Death

on the High Seas Act applies to the accidents involved

a in this case.’ As developed in this moran, we —

_ Jn holding thist the Death on.the High Seas Act (46 U:S.C. ©

761-768) was applicable to the accident in the Dore case, the

court. of appeals relied in.-part'‘on its earlier decisions that

‘Congress intended ‘through the Outer Continental Shelf Lands

Act (43 U.S.C. 1331-1343) that federal maritime law should be .

i 351-726—69-——--2 Se

4

beli¢ve- that’ the’ ‘question ‘shouldbe ‘answered affirma-

‘tively. Our. analysis, however, has ‘léd-us to-'concludg

‘that the’ déterniifiation whether’ the Death Act 40° ap- -

_'pliés ‘also requires ‘vonsideration’ of whether it applied

prior’t6 the enadtment of the Outer ae Shelf

‘Lan Act: Met gieetphyy Cifae: cepa

} conclusion, set forth i in . Point I, ‘below, ‘is that ;

_ * the Oiiter Continental’ Shelf Wands’ ‘Act did not affect,

‘one’ way: or thé other; the applicability of the Death oe

--Nbt th adeidents ‘oecarring on platférms oi’ the’ outer — ee

__- Sbhtitiental shelf! Tn“du¥ 'vibw; therefore, the question :

_ ¥ewhether the ‘Death !Aet- y its * 1 fore’ applies

to ‘these-accidénts; in Poirit’ II ‘we' conchide that it”

~ does: Finally, in Point ITI, we anges that it’ would: be

‘gonsistent! ‘with’ the traditional limits. of admiralty

jurisdiction tb apply the Death Act to these accidents.

IN THE. ‘oun. CONTINENTAL SHELF LANDS ACT ,CON-

" GRESS DID NOT CHANGE THE COVERAGE OF THE DEATH

ON THE HIGH SEAS ACT

_ °. The Outer Continental Shelf Tass Act was enacted

in 1953 in order to facilitate the prudent extraction

of the large sources of oil and 'gas which were sub-

merged: _ the nation’ $ shores.* The Act authorizes

applied in pave “for injuries OES on platforms located

on the continental shelf (A.° 57-59). “Pure Oil Co. v. Snipes,

20% F. 2d 60. (C.A. 5), Ocean Drilling & Enp. Co. v. Berry

Brps. Oilfield Service, 377.F. 2d 511 (C.A..5); Loffland Bros.

»\ v. Roberts, 386 F. 2d 540 (C.A. 5), certiorari denied, 389

1040; Movible Offshore Co. v. Ousley, 346 F. 24 870. .

f{CA. 5).

See H. Rep. No. 418, 88rd’ Cong., lat Sees.

- In the 1940’s, several States had undertaken to grant leasing

; iT. : ’ Letghah ty4le | ; ‘

oy

meincniia oft -te Sniclleite’ poole nag

tions, governing pecestagital and. removal of.

termine 1947 ‘whe 5 this Court, penne Pala the paramount aan

United States to the natural : resources in the .

ontinental ‘shelf, ruled that the States’ were ‘without

Fae grant rights to, or authorize extraction of, mimerals on.

the shelf even inside the three-mile zone. United States v.

California, 332 US. 19, Three years later the preeminent nature +

, -of the federal interest if such resources. was reaffirmed. United

7 resources appertaining to the United Stat

given to the States. ?

gion’ in the Cai

Lands Act, 43 U:S.

339 U.S. 1609; ‘United seen Powss, 339

fornia case, Reetam gt erinctanl the Diteceged

; 1301-1315, ceding: all rights in. the sub- |

the sev etal States or. their lessees. For that

undaries were limited toa distance of three

e coast or, in certain circumstances later held to”

as to Texas and Florida,.nine miles in the Gulf of

Mexico. The Outer Continental Shelf Lands:Act provided for

federal administration and leasing of the sfbmerged lands and

seaward of those,

The continental shelf is the chain red. portion of thé North

American continent. extending seaward :from the shoreline.

Along the Atlantic ‘Coast: the shelf extends out as much as 250.

miles, and about 200 miles in the Gulf of Mexico. The total '

area of the shelf adjacent to coastal states (including Alaska)’

is about 900,000 square miles. The part of the shelf which lies

within the belt over which the States were given control under

the Submerged Lands Act contains about 30, 000 square miles.

The outer continental shelf (outside the area‘ given to\the

Statea) ‘is subject to the Outer Continental Shelf Lands Act

_and_ includes about 97 einer of the total area. -

<

@

She 8 ‘hey et Oot ae

aN \ 4

etme United ‘States '(43°U:S.C, 1334) 1337). Author-

ity’ “bo! promulgate and enforce safety regulations for - :

‘aftificial islands and other structures is givei to the ~

‘United States Coast Guard (43 U.S.C: 1333(e)).

- Section 4(a)(1) of the Act, 43 U.S.C. 1338(a) (1),

. which: is principally “involved here, adopts federal

law as the a souree of Jaw’ for the outer con-

_ tinentat: shelf: |

The’ Constitsiion and. laws and avit and po-

‘litical: jurisdiction of the. United States are °

extended to the Sabsoil ‘and seabed of the outer

Continental Shelf and to all artificial islands

and fixed” structures. ‘which may be erected

ney thereon | oe

Asa supplement to federal law, the Aish extends ‘State

law to thé shelf on the following conditions (Section : tai

_ 4(a)(2), 43 U.S.C. 1333(a)(2)): | siaee

To the exterit that: they: are, applieable and

* -. not” inconsistent with this subchapter or with

other Federal laws and regulations of the Sec-

. retary now in effegt or hereafter adopted, the

civil and criminal laws of each adjacent State

‘as of [August 7, 1953] are declared to bé the

i tae of the United States for * * * the outer

* Continental Shelf, and artificial islands and

fixed. structures. erected thereon * * *.

On. its face, therefore, Section 4(a): of the Avt :

| does not ‘purport. to authorize or require the applica-

tion of any federal law beyond the transaction to

which it ordinarily would apply. That this was the

- intention of the Congress, particularly with respect ~~

. . : «

oN gy a wei

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a - —<—. —_— °° —————————————e

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9.

to ean maritime. law, ig, shawn. by. the evolution, of

Section, 4(a),. gs

is sole ciginch sah. ptieteveh tp, ecAanaber tae

tion 4(a). specifically provided that the laws applica-_-

ble to United - States vessels, on. the, high. seas, should ih

be applied to; acts occurring on offghore ‘platforms. |

_ If: the: Congress had enacted that provision, there

would belittle doubt thatthe, Death Agt'would apply

when fatal injuries were received on a, drilling plat- ©

‘form, without’ further inquiry into whether, thé acci-

dent otherwise would have been ‘within the sprint ee

tort jurisdiction." os (

$ * Congress specified that the Act spplies ee to ‘the hbo

and subsoil and the structures erected in’ the’ watefs of the

continental shelf. It expressly disclaimed any iritention to. alter |

the high seas nature of the water above the shelf, Sr to claim —

any jurisdiction over the water itself. “This subchapter shall

3 ‘be construed in such manner that the character as high seas of

,o the waters above the outer Continental Shelf and the right. to

2 nev igettin and fahisig, Secpin shall not by flected” {48 U.S.C. . -

” 1882(b)). See S. Rep. No. 411, 83d , 1st Sess, ps2

‘The original Section 4(a) provided as folinys (S. Rep.

No. 411, 83d Cong,, 1st Seas. p--15): 7

“Sec. 4(a). All “acts occurring and- all’ ohinwe committed on

any structure’ (other than a vessel), which. is located on the .

outer Continental Shelf or on the waters/above the outer

*Continental. Shelf for the purpose of exploring for, developing;

or removing the natural resources of-the subsoil or seabed of

such outer Continental Shelf, shall be deemed to haye occurred —. ©

or beer committed aboard, a,.yessel of the United States on, ;

_ the high seas and shall be adjudicated and determined or ad- 7

judged and punished according to, the laws relating, to to such

acts of offenses occurring on vessels of the United States on |

the high seas.”

. : Peter Leroux of the Office of the Senate Legislative Counsel

testified during the committee hearing that the “purpose of this

subsection is to make the laws relating to‘ ¢ivil acts and crimi-

nal oneane on vessels of the a: States —" to such

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‘Dutbing the hearings, however, witnesses criticized

. the original version of Section 4(a) because it applied -

| % only to acts occurring on the offshore structures. and

| thus did not cover operations ‘conducted: beneath the

wa ter“on the’ seabed" or in the subsoil (see; ¢.g., Hear-

ings on S. 1901, fn.°6, supra, at 642-644; S. Rep: Np.

411, supra; at 23), and because the body of maritime |

law was too: narrow to provide comprehensive regula-

“ tion of the exploitation | of the Outer Continental Shelf.

and: to. govern the activities: of those ‘who ‘worked on

d ‘arid’ inhabited the offsiore structures (td. -at’ 645-648,

; _ 660,. 663). The extension of maritime law to’ offshore

i structures was also specifically criticized as unneces-

- Bar ily complicating the resolution of legal disputes

(td. at 11, 16, 18-19, 44, 201; 264, 277-278, 645),.Con- .

sequently, the Senate Interior Committee recome

acts and offenses, occurring on platforms constructed on pilings ;

set into the submerged land of the shelf or oit floating plat-.-_ Ps

‘forms i such platforms are not considered to be vessels. Ves-)

- sels are excepted liere since these laws are already applicable *

to vessels.” Hearings, on S. 1901. before the Senate Committee:

on Interior and Insular Affairs, 83d: Cong., 1st Sess., Pp we

This view was shared by Senator Cordon, the acting chair-

man of the committee, who said: e

* * * [When these individuals leave their viele and

board this structure, they are subject to the law that’ op- .

erates on the structure, which in this instance is the same

law that operates on board: a ship; but becomes that [%..,.

applicable to the structure] only because of this act (td.

at 9).

_- Senator Cordon concluded that “To bis extent the maritime law °

_ * would apply with respect to the ship, jt will apply with respect’

: _ to the structure” (id. at 10). This interpretatioa_was shared by

‘then Assistant Attorney General Rankin, who viewed the sec- -

tion as re to apPly, ritime law to the structures (id.

at =) a : Gaees

* at ;

i.

* Oe

\ mended:a new Section 4(a), enacted virtually without

“ehange, which deleted the ‘referenee ‘to: injuries oc-

curing on structures, and instead extended to the

outer continental shelf all of the ‘‘Constitution and

laws’’. 6f the United States, and, asa supplement to —

federal law, the compatible laws of the adjacent

States, Bee: p. 8, supra; 8. Rep. No. a; motes at

15; 99 Cong: Ree. 10500.

- ‘The subsequent: legislative dietory Go not ie on

the revision of Section 4(a) in such a way as to make ©

the intentior. of the Congress unmistakable. In some. *

places, the deleted provision was described. as ‘“‘un-

necessary” in light of the decision to extend all federal

laws to the outer: shelf. Under this view, the ‘change i

-. was intended to broaden the section, but not to eHmi-

nate the prior provision making all federal maritime

law applicable to the platforms.’ On. the other. hand,

several Senators ‘viewed the change as. going further ; . :

*As Senator Cordon, the ped chairman of the Interior

Committee, —— on the Senate floor Seed — Rec.

6963) —

By the use of this \eibtistae approach it became un-

necessary to make applicable to the structures, by [ex- ©

press] ‘Teference * * * either the maritime law or the

social laws, as)all those laws, so far as necessary, were

made applicable by the extension of the whole body of

Federal law tothe area. * **

The Senate. Report similarly . stated (S. Rep. No. 411, overs, "ieee

23) :

| ok Section 4a) of the bill as introduced exterided the

maritime and admiralty laws of the United States to

_-structures used in connection with mineral development

on the outer shelf. It is stricken. because the ‘tommittee:

determined to extend jurisdiction over the whole of the

seabed. ‘and the subsoil, as well as to —

_

| they stated. a hae objection Pree the debates that

the .revised Section was intended to eliminate an un-

wise attempt to extend maritime law to non-maritime

' matters, see 99 ‘Cong. Ree. 7235, (Senator Elletider),

7258 (Senator Daniel), 7261 (Senator Long). Even

' in the absence of. those coniments, however, it. would

. be difficult :to diseern an inténtion to extend maritime

*. tort jurisdiction to offshore platforms - from legislative

proceedings in which the significant feature was the

‘deletion of the language which sought to achieve that

result. .Rather, the more reasonable interpretation of

‘the legislative. history is that Congress intended to

—+*

_ ‘make no change in the existing reach of the Death on

‘ ‘the. High Seas Act, whatever it was.

I. “THE DEATH ON THE HIGH SEAS ACT COVERS ACCIDEN TS

_ OCCURRING ON OFFSHORE DRILLING PLATFORMS

The language of the Death on the High Seas Act is | :

.. broad enough to cover accidents occurring on;offshore ‘

~ 7 dzilling platforms. The Act provides a right of action.

' for death “caused by wrongful act; neglect, or default

oceurring on the high seas * * *.’’ Offshore drilling

platforms ace completely surrounded by water, are

attached to the bottom of the sea, are close to the sur-

face of the water, have no-direct physical connection

with the shore, and can be reached only by water or

air. An accident upon such a platform occurs “on the

high seas’’ in much the same sense as one upon a ship

traveling upon such seas. Moreover, in some respects

these platforms have. the essential attributes of ships.

We understand that the platforms ordinarily are

floated out. (either as a unit or sometimes in sections).

' to the spot =e are attached to thie bottom ; that

13

‘ such attachinent often is made iby the lowering of re-

' tractable legs; and that when the drilling at a partic-

.wlar site has been completed, the platform is discon-

nected. from the bottom — and is floated to a new

location. ,

The question, sieiettine, is wlicther there is any-

thing in either the history or purpose of the Death

. Act indicating that Congress intended the language.

to have a more restricted reach. Both of these fac- ~

tors, as well as\the adverse consequences of holding ~

the Act inapplicable to” ee -ppscieatarnn 2 ea a.

negative answer.

1. The Death Act was etiactéd i in Tesporise to the’ need

for uniformity in the law governing the right to re- ©

cover where fatal injuries were wrongfully <i ee

on board a United States ship on the high seas.’ Like

the common law, the general maritime law, which is

the basic source of law. in federal admiralty proceed-

ings, gives no cause. of action for ‘wrongful death.’ — .

Prior to 1920, in order to alleviate the harsh conse-

quences of the absence of a federal death statute,

maritime tort .suits prsu:sced on the various State

death: statutes were entertained in actions at law in

the State courts and in admiralty actions in the fed-

eral courts—the State statute being viewed 2 per-

-mnissibly “supplementing” ” the maritime law i- 8

purpose.’ For reasons which are extensively detailed

* See generally, Hughes, Death Actions in Admiralty, 31 Yale -

‘LJ. 115. (1921) ; Magruder an1.Grout, Wrongful Death With-

in the Admiiralty Jurisdiction, 35 Yale LJ. 395 (1924). ~\~

*See The Harrisburg, 119 U. S. 199.

°See The Hamilton, 207 U.S..398; Western Fuel Co. v. Gar- a

cia, 257 U.S. 2338; The Tungus v. Skovgaard, 358 ier 588;

; Magruder and Grout, supra, at 396-401.

lA

clacivhene;* acini the. Pan Pn of Seite death

- agts wwas a: highly’ unsatisfaetory: solution to: the in-

) adequacy of federal law: maritime law tort claims

were subjected to the vagaries of the rights-and limi-

tations of the differing State statutes; courts were ~

_ faced with the exceedingly diffieult and sometimes

> paralyzing problem of selecting which State death act

to apply—the law of ‘State of registry ‘of the dece-

° dent’s vessel, the law of the domicile of the decedent,

the law of the domicile of the owner of the decedent’s

vessel, or the law of. the State of registry of a tort- _

feasor vessel; and litigants occasionally were denied

any remedy because the court applied the’ law of a - _

- State which either did not have a death act, or whose

- death act was unavailable because of - its: statute

. limitations or some other restriction.

‘ “The Death on the High Seas Act was prompted,.in.

a Aarge part, by the desire: to put an end to the uncer=-

a tainties attending the application of state statutes

to deaths on the high seas. * * * [T]he scope of the

Death on the High Seas Act, within the geographical

area of its operation, was intended to be as broad as the

tradional tort jurisdiction of — admiralty. * * *

[T]he purpose. of the Act was to afford.a uniform

z right. of. action for ‘death resulting from wrongful

aets within the admiralty jurisdiction, excepting state

10 See .Hughes, supra, at 116-117; Magruder and Grout,

supra, at 409-423;. Robinson, Wrongful Death in Admiralty

. and the Conflict of Laws, 36 Colum. L. Rev. 406 (1936) ; Com-

ment, 55, Colum. L. Rev. 907-909 (1955);.S. Rep. No. 216, 66th

b sapaigemaricae Keaghexicste habay seed ona i .

ee el ol sl

ter ritorial waters.” ! Wilson. v, ‘Transocean’ Airlines,

121 F. Supp. 85, 90, 92’ (ND. Calif.)* ab he PY

It' was generally agreed at‘the time-the Death Act

_ was énacted, and seems to be settled: law today, that

maritime ‘tort jurisdiction depends ‘ori the place where —

the injury occurs; it applies‘ to all. injuries that: occur

upon: navigable weters, ‘even, though maritime mat-

ters are not involved in ‘the circumstances of the

- injury.” Thus, when Congress: made the Death, Act

applieable to wrongful conduct. “occurring on “the

high seas,” it neither enlarged ‘nor circumscribed the

seope of maritime tort jurisdiction: maritime law’

applied to all injuries.on board a vessel iwhich, at:

that time, was the only/ type of injury that occurred

on the high-seas. There is no indication, however, that

Congress sought to freeze ‘the coverage of the Act. —

to maritime structures. as as they were then known, i.e,

ships; rather, - it appears that Congress intended to

make the Act cover all accidents that would be within ©

the scope of traditional admiralty tort’ jurisdiction.

See D’Aleman v. Pan American World Airways, 259

F. 2d 493,. 495 (C.A. 2), discussed infra, pp. 18-19.

Accidents occurring on platforms located ‘on the

- Open sea are within that jurisdiction. See, ¢.g., Doullut

& Williams Co. v. United’ States, 268 ‘U.S. 33, 35

- (damage - to pilings in the Mississippi River, which |

were “‘driven into the bottom of the river and * * *

_ completely surrounded by navigable water and * **

11 The legislative history of the Death Act is set forth i in the

Wilson case, 121 F. Supp. at 88-90.

12See generally, Robmson, Tort Jurisdiction in American

Admirality, 84 U. Pa. L. Rev. 716, 734-742 (1936); Magruder

and Grout, supra, at 401-408 ; ea 55 Colum. 'L. Rev. 907,

918-919.

FSET NINN NS ORIOL ORE ER <TR I. Par heme

oo ee |

yeed acknieds ‘ps \aids to navigation”) ; Dizon .¥.

' Oosting, 238 F. Supp. 25:(B.D. Va.). [venta occur-

Fiig .om: navigable waters”, are “matters whieh tradi-

Ruyip yan” auteledp encase tage arta

courts *..*.*??: ‘(Oana su Singne: Lakes. Dundae tt

Dock 6o4:318 LOR. F 36, 41). ii 4h A4is ee

‘dn the: Dizon ase, supra, the court, addline ad |

thie Longshoremen’s and Harbor. Workers’ Compen-

‘sation Act applidd to an:injury ‘ @affered hy a. work-

man operating: a. ‘pile; Aniver in, Ohesapeake. Bay, a

"casa asl Tesen phot ho. astmactien 5th; She

construction. of .a: bridge, stated (p, 29): rer

Am examination: of this record fails. to. supply

Binge justifying, a finding that the:in-

Jury .was not, sustained upon the navigable

_ waters of the United States. The. “monster”? was" -

__ gpproximately one and one-half miles from the

“nearest land, sitting on piling, and totally un-

connected with Iand or any exterision’ of land.

(No one controverts the fact that the piles upon

‘whieh the “‘monster” was resting’ were in the

_ nawigable. waters of..the United States, The —

only means of access to the work site: was by

beat. The “monster’’ was about 18 feet above,the

-open water and was not attached or connected

_ to any other portion of the partially completed

| roadway. ee Unless’ the Longshoremen’s

‘Act must be so strictly construed as to ‘mean

_ that there can be'no compensable injury unless —

_ the injured party comes in contact with the

water—a statement that needs no citation of

authority to refute—the injury was clearly

compensate under the federal act.

17

Although 1 the question in Dizon was whasiies the

injury occurred ‘upon the navigable waters’’ (the |

jurisdictional standard of the ‘Longshoremen’ s Act)

rather than ‘‘on the/high seas,’’ the reasoning of the

case equally supports the applicability of the Death ©

\ | Act to the injuries involved in the present case. +i

‘The exclusion of accidents occuring on offshore ~—

platfornis from the coverage pDiprtennaink sm

result in many of the difficulties which, in the case of _

gful deaths aboard ship, prompted the Death -Act

itself; there is no reason to believe that if Congress x:

_’ad ever focused. on the problem, it would have thus

: 7a limited the Death Act. For example, if the Death Act

-were viewed. as covering only those injuries on plat-

forms that result from ‘strictly maritime activities,

with State law applicable to the rest, the courts would |

be: required to engage in the same kind of futile “line

: drawing” that has so plagued the administration of

the Longshoremen’s Act and resulted i in the so-called

“twilight zone” of overlapping State and federal

jurisdiction. Cf. Calbeck v. Travelers Insurance Co.,- ’

370 U.S. 114. If, on the other-hand, the Death Act

were wholly inapplicable, the result would be to make

applicable to the platforms, under Section 4(a) (2)

of the Outer Continental Shelf Land Act (supra,,

p. 3), the wrongful. death ‘statute of the ‘coastal _

State within which the platform would be located if ©

the boundaries of the State were extended to the outer

edge of the-shelf. This would subject the next-of-kin

of deceased platferm workers to the differing limita-

tions:that the various States may impose in wrongful

death actions, such‘as the bar of contributory negli- |

18

.., gence. Ce. The Tungus. Vv. ‘Skovgaard, 358 U. S.. 588 ;

United Pilots Association v. Halecki, 358 U.S. 613. In —

the Death Act, however, Congress manifested an in-

tention to provide a uniform rule governing fatal ac-

cidents oecurring. ou the high ‘seas; it certainly did —

not intend, to create little islands of State law in

an area otherwise clearly covered by federal law.

Indeed, i in Section 4(c) of the Outer Continental Shelf

- Lands Act (43 U.S.C. 1383(e)), Congress specifically

made the’ Longshoremen’ s Act applicable to such plat- |

: forms; it is unlikely that it would have done so if it

had not contemplated that. the Death Act was not-

already: applicab etothem.. .

' 2. The appli ility of the Death .on ‘te High Seas

Act to accidents on offshore drilling platforms is fur-

ther ,supported by the cases that have applied that —

Act to aircraft accidents occurring over international

- waters, without regard: to whether the injury actually

was inflicted in the air. or upon erashing into the

‘water, The lower federal courts generally have. held.

that the Death Act covers such accidents, usually on

the ground that the lex ksi is maritime law and that

the Death Act is a part of such law. See, ¢.g., D’Ale-

‘man v. Pan American World Airways, 259 F'. 2d 493

(C.A. 2) ; Wilson V. Transocean Airlines, 121 F. Supp.

85: (N,D.. Calif.) ;-Comment, 55 Colum. L. Rev. 907

(1955). In the D’Aleman case the court, i in ruling that

“the Death on the High Seas Act grants a right of

action in admiralty for death caused by wrongful act,

neglect or default occurring in the air space over the .

high seas” (p. 496), stated (p. 495): - ns

The purpose of the Act was to create a uni-

form cause & action. where none existed before

ce e’@

eee ene 2

_* and which arose beyond the territorial limits of ;

the United States or any State. thereof. When

the Act was ‘passed’ (March 30, 1920) ‘the only

feasible way to be carried beyond the jurisdic- - |

tion of any law applicable to wrongful death

was by ship. However, with the development of

the transoceanic airship the same extraterrito-

_ vial:situation was made possible in the air. The

_ Act. was designed to create a cause. of action 3

an area not theretofore under the jurisdiction of

any court. The means of transportation into the

’ area is of no importance. The statutory expres-

sion “on the high seas” should be capable of

_. expansion to, under, or, over, as scientific ad-

' vances. change the methods of travel. * *: 7 |

If an, accident in an airplane thousands of feet above |

the surface mit mang occurs ‘on the high seas,”’

a fortiori an accident on a platform only. a few feet

above the water meets that standard.

3. The problem in the: present case. is quite unlike

that in Nacirema Operating Co., Inc., and John et

‘Traynor Vv. Johnson, Nos. 528 and 663, this Term,

which the Court on May 19, 1968, set for réargument

next Term. The government there contends. that the

Longshoremen’s Act, which applies to injuries occur-

ring “upon the navigable waters of the United

- . States/’ does not cover injuries suffered by longhorn:

men ‘on piers while loading a\ ship’s cargo. .. |

~ ‘In-the first. place, the offshore platforms involved

. in the present case are wholly at\sea, completely sur-

rounded by water, with no connection with the land; -

in the Nacirema case, on the other hand, the: piers

are directly attached to the land and: traditionally

| have .been viewed in admiralty as extensions thereof,

20 -

Equally, if not: ial important is the fact that the

- legislative history of the Longshoremen’s Act, as this

Court frequently has recognized, shows that Congréss

' : intended in that Act to embody the line of: demarca-

\tion between State and federal authority over mari-

time matters that this Court established in Southern -

Pacific Co. v. Jensen, 244 U.S. 205, and related

cases—a line based -on’ a more limited view of the

federal constitutional admiralty power than exists

today. See our brief in Nacirema, pp. 10-15. In short,

Congress there was trying to limit federal law to

areas not a part of or attached to the,shore or main-

land. In the present case, on the other hand, these

platforms were clearly within admiralty jurisdiction

as it existed when the Death Act was passed in 1920,

_ and there is no indication that Congress intended to

limit the reach of the Death Act to ships. -

. 6

III. THE APPLICATION OF THE DEATH‘ON THE HIGH SEAS

ACT ‘TO ACCIDENTS OCCURRING ON OFF-SHORE DRILLING

. PLATFORMS WOULD NOT, VIOLATE CONSTITUTIONAL RE-

STRICTIONS oN THE SCOPE OF ADMIRALTY JURISDICTION

We perceive no constitutignal barrier to the ap-

plication of the Death on the High Seas Act to drill-

ing platform accidents. Such application would not be

incompatible with the view of maritime jurisdiction —

reflected in Phoenix Construction Co. v. The Steamer

Poughkeepsie, 212 U.S. 558, affirming per curiam 162

Fed. 494 (S.D. N.Y.), to. which the Court has directed ~

the parties’ attention. That case was an in rem action —

in admiralty against a vessel which had. collided with

... & platform in the Hudson River housing several .

“borings that had’ been drilled in order, to locate a

21.

cilia iisiliiia Viewing the damaged project as

_ “not even suggestive of mariiime affairs,” and relying |

. upon Cleveland Terminal R.R: Co. v. Cleveland 8.8. .

Co., 208 US. 316, the district court ruled that ad-—

-_miralty jurisdiction did not cover the case (162 Fed. -

at 496). :

The district court's reliance on. Oipectiniz Terminal

is significant, for it is illustrative of the long line of _

cases in this Court dealing with injuries to bridges,

docks; piers, and other similar structures which have .

. been -viewed as physical’ extensions of the shore.”

_ Thus, in Cleveland Terminal, it was held that there \

was no admiralty jurisdiction over an action for dam-

ages inflicted by a vessel to a pier of a bridge over the

_ Cuyahoga River. The ground for these decisions was

that such structures pertained to the land ‘and were

‘utilized to aid commerce: on land. Accordingly, the

causes of actidn were held to be beyond the reach of

.the historical limits of admiralty jurisdiction and

remedies. See, C95 Johnson, v. Chicago ¢ Paerfic ced

vator Co., 119 U.S. 388, 397.

ms The offshote oil drilling platforms tavolvell in the

} +. present case, although fixed to the subsoil, are not

connected to the shore. They are far out at sea, com-_

pletely surrounded. by water. This Court has. relied

on that fact to’ distinguish the Cleveland Terminal

‘ line of cases in holding that suits for injury to such

. structures are cognizable in admiralty. See Doullu&t &

“= 18 Seb, ¢.g., 7.. Smith & Son, Ine. ¥. Taylor; 276 U.S: 179;

The Panoil, 266 U.S. 483; Martin v. West, 222 U,S. 191; The -

Troy, 208 US. 321;. Johneon- v. Chicago & Pacific Elevator ee

119 US. 388; Zn Parte Phenia Insurance Co., 118 U.S. 610;

The Plymouth, 3 Wall. 20.

? 7 ox” -

~~ to have

& ee 2 >

Williams Co. Vv. United States, 268 U. 8. 33; The Raith-

moor, 241 U.S. 166; The Blackheath, 195 US. 361;

| Atlee % v. Packet Co., 21 Wall. 389; Hughes, Admiralty

(2d Ed. )y § 100. See also the Extension of Admiralty

J nrisdietion Act, 46 U.S.C. 740; Gutierrez v. Water-

* man 8.8) Corp, 373 U.S. 206, 216, As Mr. Justice

. Holmes ‘observed in The Blackheath, 195 U.S. 361,

365, “referring to. a bes con located in the middle of a

river and resting on pules driven into.the bottom,

-* * * TT]t seems more arbitrary than rational

' to treat attachment to the soil as a peremp-

tory -bar outweighing the considerations that

‘the injured ‘thing was * * * no part of the

. shore, but surrounded on every side by. water, a

. mere point projecting from the sea.“*’

The district,court i in The Poughkeepsie distinguished

The Blackheath on ‘the ground that..Mr. Justice,

Holmes’ description of the beacon as an ‘‘aid to:navi- —

- gation’’ was an independent test for admiralty juris-

diction over offshore structures, which ‘was not satis-

fied by the drilling operation in that case. Although

the ‘‘aid- to-navigation” inquiry appears to have

been at beyond its’ original ‘significance * and

‘ %4The beacon “is only technically land, through a connection -

at the botto of the sea. In such a case [maritime] jurisdiction

‘may’ be. taken’ without transcending the limits of the Constitu-—

tion *.* *.” 195 U.S. 361, 367-368. See concurring opinion of

Mr. Justice Brown, 195 US.” at, 368-369: “The distinction be-

tweeh damage done to fixed and to floating structures is a: some-

what artificial one, and, in my view, founded upon no sound

principle.”.

-8Tri The Blackheath itself, Mr. Justice olen cited with ap-

proval The Arkansas, 17 Fed. 383 (S.D. Iowa), which had also —

adopted the distinction. between structures contiguous with ad

eo:

¢

ncreased the number ‘of ERpeancae dis-- os 4

23.

tinetions ; in the maritime law,"* the offshore: platforms |

involved here may’ reasonably be found to. satisfy

: -that requiremént, if applicable. Unlike the danger-

_ ous impediment to riavigation involved in The Pough-

keepste, offshore oil drilling platforms undoubtedly

provide some incidental assistance to navigators in

¥ fixing their positions. Moreover, maritime navigation —

is extensively involved in offshore drilling operations

- because the platforms are accessible, — for heli- es

copter flights, only by boat. .

It also may be argued that thg_ rules devtaped & in

the’ Cleveland Terminal line of cases are not eon- -

.clusive on the question whether maritime law applies 7

to. personal injury actions arising on offshore struc-

tures. Whatever policies may have justified the denial

of admiralty reniedies to the owner of a pier or bridge

' which * was damaged by a vessel—an inquiry of only

historical significance since that rule was abrogated

by the Extension of Admiralty Jurisdiction Act—it

would not necessarily follow that the same narrow

view of admiralty jurisdiction is justified in eases ;

where the issues invelve personal safety and the loss

of earning capacity or support. In this situation, the:

shore and those surrounded by water. The Arkansas, however,

was not concerned with a structure which aided navigation,

‘but with an isolated oil storage depot in the middle of the ~

Mississippi River. Similarly, in Atlee, supra, this Court, ap-

plying the admirelty jurisdiction to a storage pier located in

the middle of a river, expressly recognized that the pier was.in ~

no way an aid to navigation (21 Walt. at i 598); ‘See, he Raith- :

moor, supra.

** Compare The Panoil, 266 U.S. 433, . with Doullut & Wi- -

- tiams Co. v.. United States, 268° U.S. 33; see Robinson, Zort

Jurisdiction in American Admiralty, “ U: Pa. L. Rev. 716,

718-726 (1986). .

ce | a

- courts may satiate take account of the fact ‘that

workmen on offshore platforms frequently are ex-

posed to some of the same-hazards of the sea which

’ characterize employment aboard a vessel. See Pure .

Oil Co. v. sic 293 F. 2d 60 (C.A. 5).

"CONCLUSION

For the foregoing reasons, the question framed. by

the Court in its order of April 2 should be answered 7:

. affirmatively, = =

pesca submitted. |

* ERWIN N. Grisw OLD,

Solicitor General.

Wim D. RUCKELSHAUS,

Assistant Attorney General.

| ) | - | Morton’ HobLaNDER,

one ee _ Rosert M. Here,

; 5 ro

| ee Attorneys.

May 1969. - 4 a

Fd

U.S. GOVERNMENT PRINTING OFFICE: 1969