Petition for Writ of Certiorari — King v. Pan American World Airways (No. 686)

Supreme Court brief1959

Ask Donna

What actually matters in this document.

Text

peel ‘ ; te Yi Nga he ssiaaah ions eure we

FILE COPY Vig Se

FER o 19 (y

In the Supreme Coubt+ GWG ING, pic

OF THE

Anited States

; one Ocroner Term, 1959 ° F .

. 7 a - 3 an : | | ° a ; $ +4

; Z a att No. 68 6 e e ‘s 7 . P

a oy oh is SE |

VIRGixta e Kiva, as -Administratrix of |

ip we the Estate ‘of John Elvins King, a

Petitioner,

» Pan AMERICAN Worn, AIRW AYS,

a corpofation, } Re spond nf f

rs one

PETITION FOR A WRIT OF CERTIORARI.

. to. the United States Court of Appeals

- for the Ninth Circuit.

Joseru Epwarp SMITH, - *

Financial Center Building, 9°

Oakland Iz. California, F ?

: \ _ Attorney for Petitioner.’

Wa. SHANNON PARRISH, | a

Joun DB. LEwIs, .

Finan@ial Center Building. :

Oakland 12, California, °

Jounx B. KRAMER, - ; te 7.

1212 Broadway, si | aan

~ . Oakland Tz, California, ?

Of Counsel. ; °

PER. AL WALT PR TIS "., SAN*FRANC'ISCO

_——$—$—$__—_

. .

2 Subject Index ; ;

; | ¢ Page

Upinions of courts below .........:.. Veet e eee e ee eg aeons ce

Jurisdiction ey eter SOD Ee anda weluaes aaetnies =

‘Question presented .......... PEA: Sere Ue arr Ree

Constitutional prov isions | involved ....... * swe i ieaca eG se

Statutes involved .....:... PT Pee on ee eee o Pe has - 4

(a) Federal statutes .,........ aaa idee \ a gy Hs ne

(b) State statutes ....2.6..5... ieee enna cone ein =

Statement of the case ..:.........0.0.e eee ea kbe ones cues 5

Argument :...... S Eee Sit ene Fe Te Ata ae Soar ey ees

1.. The decision of the 5 aa tsiow is contrary to the de-

cisions ion PUL chad chek baddddareens6s 6 . oa

The decision of the court below appears to be in .con-

fliet. with the decisions of other United States Courts

of Appeals in the interpretation of the Death on the

igh Bets. Act ..3.. 2.0600 0.5 Ce niata e wk diai-ya"a anes ee,

3. ‘The decision of the court below dota not- aceept the”

fact that the Death on the High Seas Act created a-

cause of action and remedy in admiralty *......-..... 11

errr reser eee RP gE Pan Oe eee euec¥ cae "

Table of Authorities Cited

i Cases _ a Pages

Aladka Packers Asso.. v. Industrial Accident Comm., 276

Us S. 467, 72 L: Ed. 66, 48 S. Ct. 346 Set ak wages os 9

Hahn v.. Ross Island ‘Sand ‘ol Gravel Co., 358 U.S. 372.3

I. Ed. -2d 292, 79S. Ce. 266 ...:....: lvauneet oer«s «. £9

. Knickerboe "ker Ice Co. v. Stewart, 253 ES. 149, 64 L. Ea.

SO, 408 I POPP erie ett y bea.

ii Tabie or Avtionitizs CiTeD

“Middleton v: LueKenbach 8.8. Co, 70 Fed. 2d 326 ...... ae

Pope & Talbot, Ine. vo Hawn, 346 U.S. 406, 98 L. id. 143,

re Se | ee eer Whee deedeesessseesesess ee

-The Tungus v. Skovgard, 358 U.S: Sat 3 .L. Ed. 2d 524, 79 7

EN ete eve hag srousinns mitigans 8,9

“Turner vy. Wilson; Line of Massachusetts, 242 Fed. 2d 414... M1.

Washington v. W. ©. Dawson & Co., 264 U.S. 219, 68 L. Ed.

646, 44S. C't. 302... B......: akin ihe’ Pe re eases

e \

@ Constitutions bee nee

United States Constitution: :

Arpicle I, Section’ 8, Clause 3. .0......6.. eee ee rae er

Article IIT, Seetion 2, Clatise 1... ......0.5 —aet Ce

“statues Ls oo RF

Veath on the High Seas Act: me

Geeta Be As 5 cece ees e tines ch eevcuaeaes eft nce an ola

— . + ORO cig chats ne ag epee F ore ‘a beich oe oo

nae ° , . Q ri e °

. Lahor Code: Ai ie: ‘ oa : \ ge ot

Section 3600 2.0.00... 00. Fiona ib nga nba s vou ewnen a

. Section 36010 ...... Oe le tone adie rhs cies

—

| Do

¢ ‘Section $706-=:... NE ee ete Dl een Se neies wes Pe ks

Mar.-30, 1920; ¢. 111, Section 1, 41 Stat. 587 ....0...0.0.. 0° 4

Mar, 30, 1920, ¢. 111, Seetion 7, 41gStat. 538 ...26...... eee |

Stats. 1929, ©, 227, p. 430, Section 1 ...... ares BR teacans G ee

Stats, 1937, ¢. 90,‘p. 269, Section 3601. .....0..ssceceeegee BY

June 25, 1948, e. 646, 62 Stat. 928 22.0.6... ice uch eas 3 2

28 United States Code, Section 1254, subsection 1 eer ere r ae

. - Oe

\ ; °

“ ‘ ‘ »

OF THE

In the Supreme Coiirt

Bnited States p

. Ocroser TERM, 1959 | as

No. : ae Vs

o VIRGINEA J.. Kine G, as Adininistratriy/of |

the Estate of John Elvins King, /

| Petitioner, oe

WB ante ge ee

Pan AMERICAN Wont. D aw

. a corporation, | f |

Y:* - y grr seer ee nt. ay

; : eo oy

. a |

XK fe .:

‘Yy/ PETITION F FOR A WRIT OF CERTIORARI

aed - to the. United States. Court of Appeals

| — __for the Ninth Circuit.

f es

. ag sh sii Virginia J. King, as administra-

“ty of the estate. of John Elvi ins ‘King,- respectfully ;

etitions this Honorable Court for a writ of -Certio- f

JE directed to the United States Court of Ajpeals,

for.the Ninth Circuit, to review and reverse the judg-

ment of said lower Court, entered on the records of

said ‘Court on the 27th day of August, 1959, affirming |

4° &

ye:.. ee judgment of the. United States Distriet Court, for

the Northern District of California, Syithern Divi-

sion, When said District Court sustaine “dl renguenden nt 's

motion ‘for summary a arias :

oa /

OPINIONS OF P COURS BELOW. * .

The opinion ‘and jtdement of the United States

< ourt of ‘Appeals sought to he reviewed is. reported

cin 270) Federal) Reporter. 2d “355. “The - judgment of

this United States Court of “Appeals affirmed: the

Judgement of the U hited States District Court, for the

2 Northern District of California, Setithern Division,

re ported in 166 Federal Supplement 136.-° —

sae JURISDICTION.

The U aited States ( ‘ourt of Appe “als naniie its judg-

. ment on the 27th day of August 1959, and it was en-

te wed on the 27th day of August 1959. _A petition for -

_rebearing- was filed in the United States Court of

TAppeals within the tinie allowed by rule of court and

valid extension thereof, Petition for Yehearing was

~ denied on the 8th day of December 1959.

Jurisdiction of tis Court. is conferred by Title

28, Section 1254. Sub-séection f of the United States i

Code. June 25, 1948. ¢. 646, 62 Stat. 928. carp

>. “Cases in Phe Court of, Appeals may be. -re-

“viewed hy the Supreme Court ny the following

methods: | a6 “

before oF after rendition of | judgment o or decree.”

‘> QUESTION. PRESENTED. ©

: * An a ‘ 3 ‘ + Hee Set ie, we :

1. By Writ of Cértioran granted upen the pe- ;

tition of any, party to any civil or criminal case,.

When the death of a person occurs on the high seas -

under. such circumstances: ag tou come within the pro-

visions of the Federal **Death on the High Seas “Act”,

will the provisions of the California Workmen's Com-

pensation Act’ extinguish the federal cause of action

_, and remedy, when the deceased was an employee of

- the respondent ?

CONSTITUTIONAL PROVISIONS INVOLVED. -

Two Constitutional provisions are involved. Article

I, Section 8, Clause’ 3 of the United States ‘Comatitu-

_ tion: é WN sg

“The ‘Conaven shall have power J... to regulate

Commerce with Foreign Nations, and among:the

several States, and with the Indian Tribes. *’

Article TTT, Se tion 2, C ‘Tause 1 of the U nited States

Constitution : ay Saar | | bs

“The Judicial power ‘shall catenil to all cases,

in law and equity, arismg’ under this Constitu-

tion, the laws of the United States... . to all

cases of admiralty and maritime jurisdiction.”

“

i ?

STATUTES INV OLVED.

(a) Federal Statutes.

| Death on ‘the: High Seas Net, ge ee.

‘Seetion: 1: ‘ 4 s¢

“Whe he ver the de: ith of a erson_ shall he calisede

| “by Wrongful act, heglect, Pie fault’ occurring on

the high seas bevond-a marine league: from the

shore of any State, or the District of Columbia,

_ or the Territories or de :pendenci ies of the United

States, the personal. representative of the dece-

lent. mary’ maintain a suit for damages id, the dis-

trict cotirts of the Chited Stites, in admiralty, for

the exclusive benefit of the decedent's wife, hus-

band, parent, child, or dependerit relative against

theyvessel, person, or. corporation. which would

havé beet liable if déath had not ensudd.”” (Mar.

: 30, 1920, ¢, LLL, See. 1, AL Stat, 537.)

Section. 7: se Pe a : '

The provisions on: any State ‘Statute eiving or

regulating rights of action or remedicsyfor death

shall not, be affected by this chapter? Nor shall

this chapter apply. to the: Great Lakes or to any’

== Waters within the. te rritorial limits of any State, °

of to any. navigable waters in the Panama Canal

Zdne.” (Mar, 30, 1920, c LU, See. i, 41 Stat.

538.) Ae eee ee

The entire ‘statute, Sections: At ‘, is set ‘ott ie Ap-

pendix D, pp. 32-34, ;

: (b) State Statutes.

- California. Workmen's Compensation Act

Section: 36300, California Labor Code:

“Liability for the compensation provided by this

“division, in lieu of any sther diability: whatsoever

* &

— 7s

a / ° ee .

ae ‘ e

to any. pe rson 4i xcept as prov ited ih. see tion 3706, 7

‘ ‘shall, without regard ‘to negligence, exist against

Extn, jdovees, arising out of ‘and in the course of the

-e employment and for the death of any employee

woe injury proximately causes death, in those

cases Where: the. following conditions of compen-

Section A). i hens , .

> * ~Seetion 3601, California ‘Labor ‘Code: Pie

right to reeever such ‘compensation, pursuant to

vided section 3706, the ,exclusive remedy

against ‘the employer. for the injury. or. death.’

(Stats. AB, .¢. 90, PD. 269, Section 3601, ) -

the. “ase at bar.

of the ‘Death on the High 3 Seas Act, supra, by the

terms of said statute as set out an Seeteon I thereof.

The sole basis of the summary - jndement was. thiit

the California Workman's Compensation Act? pro-

; vided’the exclusive remedy in the case and abrogated

the provisions of the Federal Act. eat

The: facts giving rise to the cause of action, omitting

the allegations of pecuniary Toss, neglect, wronefid

act, and default are as follows:

“.an employer for any: injury’ sustained: by his em

. sation concuk.. . . (Stats. 1929, ¢. 227, D. 430, °

Where, the conditions ef compensation exist, the.

the a igen of this division is, except as pro;

ae (STATEMENT OFTHE CASE. . °°"

The Federal District Court in. Admiralty; i is granted

: jurisdiction to hear ‘ases arisihg under the eae

Section 3706 referred to above is ‘oa applic: Hle inm

oe. Sutra rmree Lee onl Vw-a

Jolm Rivins King, the decedent, was employed: by '

“ortspondent Pan American. World) Airways in San‘

- Pritticiseo, California. “His “duties required hin to

spend a substantéal part of his working time aboard

‘aireraft in’ flight. supervising the. preparation and

service of food for the passengers And-erew members. -

“On November 8, 1997, decedent departed San Fian-

“Cisco hiternational Aiypert on! board Pan ectidaten

flight 7 enroute to the Territgry of Hawaii, U.S.A. De-

cédent was in the coirrse oud scope of his empl& ment -

during the flight. | F light 7 crashed into the high se aS

more than am: rine league from any shore and the ile-

‘ cedent did) not. Survive the ‘crash. The decedent: left’

‘ > | surviving him his widow and to minor children, ° “di

Ie ollowing the death of John Elvins Kine, respond-

ent, Pan Americ, World Airways Ine, and Travel-

ors Inswrance Compariy, its Workmen's Compensation

Insurance carrier, or December 2, 1957, filédan appli-

“ation before the Industrial Accident Commission of

the State of California, An quand was made, anda

~ peport of Referee on decisioy was filed. These items

appear under their fitle in Append B,, pp. 35-39,

a wagons 1 eo ae?

om wae .

“Se ARGUMENT. | SO .

ean This petition is fora hearing and decision tordeter

omine a dhestion of federal jurisdiction which “ippe ars

ever hefore to, have heen specifically determined. by:

‘this court. “The question is of wide and general in-

terest. The enormous growth of” air travel over the

high seas ‘pequite sa final viling frome ‘this Court set-

op 5,2

ao — -

‘ting at rest any doubts as to the remedy available to

“dependents of passengers and. crew members in the |

- event of their death on the -high seas during such

flights. - In addition to this question of federal law

which has not been, but should. be settled, the opinion

of the Court below’ appears fo-be. in contliet with opin-

- jons of this Court and -with other United States

€ vurts of Appe: ils. Sian i |

‘ > ol.

ro ° a -

‘

1. THE DECISION OF THE COURT BELOW IS CONTRARY

TO THE DECISIONS OF. THIS COURT. So

| The United: States District Court, and the, Unite do

™~ States Court of Appeals in the case below lield that

seded the federal Death on the High Seas Act. Such _

a holding is contrary to the decision ‘of this Court in

a i: the ease of Pope & Talbot, Ine. ve Mawn, 346 US.

| 4065, 98 L. Ed. 143, a S. Ct. 202. The Court stated on’

page 4%: + e

“While Stites mat sometimes supplement: fo@

eral maritime. policies, a state may not deprive a

person of any substantial admiralty rights’ as de-

fined in contolling acts of Congress or by inter-

,pretative decisions of this Court. These prine iples

have been frequently, declared and we v adhere to

them.”* (Citing Cases, \

a a . e

9 as On two previaus o¢ castons this: Court has declared

unconstitutional acts of ‘Congress which attempted, -

place admixalty jurisdiction under the control of state

compensation laws. See Washington v. W. €. Dawson

‘& Co., 264 U.S. 219, 68°L. Ed. 646, 44S. Ct. 302;

o or

Anickerbocker lee Coov. Stewart, 253 U.S. 149, 64 1.

Ed. 834, 40 S.Ct. 4388.0 Tt would: seem that -such

jurisdictiot may not be granted by judicial -inte rpre-

tation of a fede ral statute, which would allow ad state

to do by state statute, what the Congress could not de

directly. : a: ped,

The area of application of the Death on the Hieh

Seas Act is clearly indi¢ated froth a reading of that

portion of the statute defining the coverage of the |

Net. The language iss... bevend a nuirine league

from the shore of any State ...°. The area is thus

‘simply but de finitely defined and is that area in whieh

all coneede.that the Congress has paramount right

to control by Tegish ation. :

Thi District Court and the U nited States Court of

Appe wls in the eage below, insist that the previous de-

. cisions of this. Court’ relating te state -terFitorial —

Waters, Frequently referred tocas “the twilight Zane

cases. compel, or at least permit a holding that the:

State. “Workmen's © Compensation Sti tute ‘abrogates.

“the Act of Congress, namely the Death on the Hieh

Seas Act. We respeet fully suggest that, the ‘se ship

shore” cases ea have no applieation-in the, case at

har. This Court has previously said plarmly enough.

atheuch inferentially, that State “Workmen's Corn

pensation Nets, and State death Nets apply Shly tw

injuries and: deaths in State: territorial waters, We

refer. 1 this Court's rulings in The Tungus v. Skov-

gerd, 3580 S. 588.3 L.Ed. 2d 5 24, AY S. ('t. OS anil

in Malin re. Ross po ae Sand and Gravel Co,, B58

U.S, 272, 3-1. Ed. 2d 292, 79S. Ct. 266.

owes”

-In the Hahn case the Court speaks of the, right of ©

a waterfront@mployee injured while working in Stite

territorial. waters te bring an action under Oregon

law and stated:

“OF course, the: employee could not i this if the

cease were not within the ‘twilight ZONE, for then:

the Lon: loremen's Act would provide me OX--

clusive remedy.”

In the Tungus case where the facts. involved the

death of an oil company worker suffering injury an

death aboard a ship in New Jersey territorial watérs,,

this € ourt spoke of the Death on the High Seas Act.

In the opinion of the Court, and, in-the concurring

and dissenting opinion of the Chief Justice and three.

of the Justices, ‘it. is poirited ont that the Death on

the High Seas Act may not be applied beeause of the

territorial water locale. Thus in the concurring opine |

ion it is sad ‘of the High Seas Act: P

The effect of Congress’ action Was to leave the

State statutes available as remedial measures 0

territorial. water death cases.’ * (Italics! ours.)

This interpretation of, Section 7 of*the Fede “J Act

is clearly opposed to the interpretation of the Court

below, to dhe effect that. State remedies: may extend

hevond territorial waters and apply on the high seas.

The Court below points te the. approval of this

Court in earlier decisions, where extraterritobial ef-

fect has heen given to State Compensation Acts. See,

the case of Alaska vei “Asso. a. Tndustrial tik

dent Comm., 276 U.S. 467, 72 L. Ed. 656, 48 S. ('t. 346.

May We enecitialte point out that im that’ decision,

10 ” ar |

and, we believe, in all similar decisions of this Court, ’

the application: cof State law was approved only be-

cause the facts were concerned with worBof a “loeal”

char acter being performed in- territorial waters. We

cen out that in the ease below and in the « companion

case of Hudson v Transocean Ait Lines et al alse

from on United States Court,of App als, 9th Circuit,

how before this’ Court on petition for a writ of or

tiorari, the Distriet Court and the United States Court —°

of Appeals forthe Ninth Circuit have in affirming the

deebsions been the first Courts since the passave of the

Death on-the High Seas Net. in 1920, to apply State

jurisdiction to deaths occurring on the litgh seas, and

holding that State law in that area of historic’ ad-

miralty jurisdiction superse vibes” Federal law.. |

THE DECISION OF THE COURT BELOW APPEARS" BE IN

_ CONFLICT WITH THE DECISIONS OF OTHER UNITED

‘STATES COURTS OF APPEALS IN THE INTERPRETATION or

THE DEATH ON THE HIGH SEAS ACT.

The Cnited States Court of Ap reals for the Seeond

Cirenit in the case 1 Middleton e Luekeonbach S.N'

Co, T Ped. 2d 326, in applying the Death jon the

Thigh Sens Act, stated as fellows: ; @ ,

p. 52s “Since the occurrence here was on the:

high seas, the law of admiralty controls and

rights must be weverned by federal Taw."

Further examfnation of that decision supports the

"position urged by petitioner, |

The United, States Conrt of Appeals for the First

Circuit held. with respect tw an employee ina elaim

11 alle

>»

against a third party, that since the death was in Bos- *

ton harbor, the Death on the High Seas Act would

hot apply. See’ Turner v. W ilson Line of Massachu-

setts, 242 Fed. 2d 414, the Court stating :. . a

p. 418 "Phe De ath on the High Seas, Act, so-

called, 46 USCA 761, et seq., although a law of

the: United States, does not provide a basis for

recovery as sought im the third and fourth counts,

because the decedent was neither injured nor died -

on the high seas but in Bosten Harbor within the

territorial waters of Massachusetts.’ ' ,

‘ . . e

- eer; es

ane,

3. THE DECISION OF THE COURT BELOW DOES NOT ACCEPT

THE FACT THAT THE DEATH ON THE HIGH SEAS ACT

CREATED A CAUSE or eres AND REMEDY 7. AD-

MIRALTY.

The Court “below expresied Yhe-opinion-that—the-

work of. the decedent not being maritime, admiralty

- jurisdiction would not attach. This reasoning. over: -

looks the fact that the cause of action and the remedy

in admiralty are éreated and conferred, by the- Federal

statute, and is not dependent upon the characteriza-

tion of the work of the deceased. The constitution |

ality of the statute not being questioned, Its effect ini

‘creating a cause of action. in admiralty niay. not he

c hallenzed. 3

. °

—_———

12.

CONCLUSION.

The Death on the High Seas Act having enced a’ -

vause of action ‘in admiralty and provided a federal

forum for its enforcement, and the area of. its applica-

tion, the high seas bem ‘traditionally subject te eon.

eressional control, it is believed that this Court should

held the federal statute Leeres. to any state statute

te the contrary, and rant the writ of certiorari is

petitioned: ‘

Dated, Oakland, ‘alifornia,

— February 5, 1960,

Joseru -Epwarp Sarr,

‘Attorney for Petitioner.

Ws MW. SHAN ANNON-PARnIsH, epee

— ons bs. Lewis,

oun Bo KRAMER,

Of Connsel.

(Appendices “ A’’, “B.C, “D" and “EB Follow.) ;

Appendix“A”

OPINION OF DISTRICT JUDGE LOUIS-GOODMAN IN THE CASE

OF VIRGINIA J. KING, ADMINISTRATRIX, v.. PAN AMERI-

CAN WORLD AIRWAYS, 1958, U.S.D.C., N.D. CAL. S.D., 166

FED. SUPP. 136.

GoopMAN, District Judge.

This case presents the novel question whether. the |

California Workmen's Compensation Act) preclides * -

an action for wrongful death under the Federal Death

on the High Seas Act by the administratrix of the.

estate of an ‘airline employee. who in the course of

his employ ment was killed in the crash of 3 an airliner

om the high seas. .. "

T he: stipulated facts:show that the decedent entered

the employ of respondent Pan American Wort, Air-

ways, a New York corporation, at San Francisco,

California, On October 12, 1942. He was steadily eni-

ploved thereafter ‘hy .Pan American and. since’ Decem

Her, 1947 was continously ased at ‘San: Ffanciseo,

On May 14, 1957, ‘the decedent was assigned the Posi-

tion of Flight Service Supervisor. The duties of this

rt position required him. to spend the majority of his

‘ working time at the San i raneisco base and the re-

~ maining working time in in-flight supervision and ob-

~ servation of pursers, stewards and stewardesses em-

ployed on Pan Americaw aircraft flving in and out of

San Franciseo, On November 8, 1957, he was in the

course of his ¢ muyploy ment aboard a Pan American air

liner which crashed upon the high seas between the

United States and Hawaii. Although>it does not

appear whether he was killed in the air dr upon im-

pact with the water, it is stipulated that he didnot

survive the crash. * Se ne ao

On Decetnber 2, 1957, Pan American and its eom-

pensation insurance carrier filed an application avith

~ the California Industgial Ace ident Commission te de-

termine theit liabitite, pss death. henefit and burial -

expenses: under the, Caliggrnia Workmen's Compen-

sation Act. At the hearing of this application on

February 20, 1958,.the decedent's wife, the libelant’

hereim, appeared specially and contested the’ jurisdic-

tion of. the Industrial Accident Commission. On

March 31, 1958, the Commission made an order find-

ing that it had jurisdiction and. awarded decedent's

wife and minor children a death benefit totaling $15. |

-000,00, Meanwhile, on February 3, 1958, decedent's

wife filed this libel under the. Death on the High Seas

Act’ in her. eapacity as administratrix of decedent's

estate. ) :

It is estabKshed that a Suit may he brought in ad-

~omiraltv under the Death on the High Seas Act for a —

death resulting from the erash, of an aircraft: upon

the high seas. Wilson v. Transocean Air Lines,

~ DCNLD. Cal. 1954,.121 F. Supp. 85. There is: no’

doubt that. in the absence of the ‘California Work-

men's Compensation Act, the libelant could maintain

this action under the Death on the High Seas Act.

s But. respondent: conténds that the California Work-

men's Compensation. Act has been properly applied

to this fase and affords the exeliisive remedy against

it for decedent” s death.

141 Stat, aT, 46 USCA §§ 761-768,

The California Workmen's. Corlspeinsutites “Act .ex-

pre sly provides compensation for the death, outside

the State, ofan employee hired: or regularly employed,

in ‘the State. . West's Ann. ‘California’ Labor Code

§ 3600.5. The right to recover such: compensation is.

declared by the Act to be the exclusive rentedy aguinst.”

the employer. West's Ann. California Labor Code

$3601. Lae 3 pes.

The United States Supreme Court has upheld the

power of the California legislaturg to provide com-

pensation to California employees for industrial ae-

cidents oceurring in other States of the Union and ine

the ‘Territories. Alaska Packers Assoc ‘jation ¥. Tndus-;.

trial Accident Commission, 1935, 294.U.S. 532, 55 S..

Ct. 518, 79 L. Ed. 1044. Does this power also extend!

_. to the High Seas? : ail | :

In Southern Pacific Co. v. Jensen, 1917, -244 U.S.

205, 37 S.Ct. 524, 61 I. Ea. 1086 the Supreme Court

held that the New. York Workmen's Compensation

‘Law, $1 et seq: could not be applied to a stevedore

killed aboard. a vessel in New York Harbor. Such an

application of a -state compensation law, the Court

stated, would destroy the niformity in 1 respect. to

maritime matters which was intended’to he preserved

by -the Constitutional provisions eranting the Con-

gress paramount power to fix and determine the mari-

time law. The Jensen. rule. was qualified by. later

eases in which the Supreme Court held that: State

compensation aets might: be applied te Injuries or

deaths within the admiralty jurisdiction provided the

application of the State Acts did not work material

prejudice to any characteristic features of the general

*”a

—_ °

te 4.

maritime law or interfere: With the proper harmony

/ and uniformity ‘of th; it law in its international and

interstate impacts. :

In Grant Smith- Porter Ship Gay » Rohe, 1922,

257 U S. 469, 42 S.Ct. 157766 LOE 321, a carpente r

Was injitred while working on a partially completed

vessel Iving at a dock in the Willamette River at

Portland, Orevon, The Couitt held that - his sole

remedy lay under the Oregon Workmen's Compensa-

tion Act, ORS. 656,002 et. SUey ‘Whieh abrogated: the

otherwise” existing right te recover damages ighye 1)

admiralty: court, «Ty Millers’ Inde ‘imnity U nderwriters

v. Braud, 1926, 270 US, O9, 46 S.C. 194, 70 L.Ed.

470, 8 diver Was: suffoe ated while. “subme ane a

. . Pas?

Hoating . bared anchored in the MVIgaAbbkALBahine

River in Texas, ‘The Court ruled that the Texas °

Workime ns Compensation Law, Vernon's. Amn. Civ,.

St. art. S306. ot SCG. Prescribed the only remedy for

his death and that its exclusive featufes abrogated the

right to resort to the maeniealty court Which othe Wise

é juried While ati

Wouldvenist.2 «°°.

In Alaska’ Packers Association ¥: "Industrial. Acei-

dent Commission, 192s, ‘276 U.S, 467, 48. S.C. S45,

72 L.Ed. 656, the Supreme Court. sanctioned the ap.’ |

plication of the California Act to av cannery: worker.

mapting fo push a stranded fishing,

hoat off an AlaskAn beach, The injured workman Was

hot emploved mérely te work on the fishing boat, but

alse to gan services? on, nial in connection with

2 * Norcirently the € ourt had in mind a suit in admiralty.assertine .

the tht Ot netion: viven by the Sq: ite Wroneful De; ath Net, Ver”

ren 's Ann. Civ, St. arte 4671 et. seq.. the death hiss ocentred

within the territorial waters of the State,

7 ; ; ~~

canning ope ‘ations, The Court. found that, assuming, |

the injury to be within the admiralty. jurisdic tion, he

was not engaged in any work so directly cotmected

with navigation and commerce that to permit * the

, rights of -the parties to be contrélled by. Sthte: law

would interfere with the essential unifor mity of the

_general maritime law. Thereafter the Court of: Ap-

peals fot this Circuit upheld the application of the,

California, act té two similarly, employed | ¢ mnery *

workers who met death in the wreck of a ,fishing -

' schooner ‘at sea. Alaska’ I a Association -v. “Mar-

shall, 9 Cir. 1938, 95 F. 2 27

Through the years the courts haye experienced con-

‘siderable difficulty. in determining whether or not a

particular application of a State compensation law

to a. case within the admiralty jufrisdietion unduly. jh

terferes: with the essential uniforniity of the general

maritime law or works material prejudice to its char-

acteristic features? Ther re has evolved no precise, test 7

for determining Whether or nota State compensation

act may constitutionally he exe usively applied te a

death ori injury within the admiralty jurisdiction.

But, the present case clearly falls within the area

where such application ofa State compensation act is

proper. The decedent was empléyed in a’ non-mari-

time industry and‘ performed no maritime works In-

~ deed the’ only aspect of this case ~~ gives it any

maritime flavor whatsoever is the loeMe of the acei-

- dent. ‘Tt must be

coneluded that there is to Consti-

“Bor an an ccornt Af these diffienities see Gilmore ¢ and Blaek The

Tawoof Admiraltw?? 333.054 -/ 1957 1: Note. This the Fens i se

Leen Jettisoned?)’ 2 Stanford: Law ‘Review 536 (1950),

. 2 ' : \

P ane

tutifhal ‘barrier to the application of the California |

~ Workmen's Compensation Act in this case.

Thee remains "4 question whether there is a stat:

utory barrier, Libtlant urges that the Congress. iy

~ tended the Death on the High Seat Act to afford the &

exchisive remedy for it death on the high Seas, If

this were the Congressional intent, the application of

» the California Workmen's Compensation Act is

harred, since Coneress possesses paramount’ power te

legislate. in respect to matters within the

“jurisdiction fa

In Wilson y, Transocean Airlines, D.C. 1954, 12]

‘PL Supp.85, this Count held that the Death on the —

“High Seas Act superseded all State Wroneful Death ~

_ Acts In-respoPt to deaths eeeurring on the high seas,

Ina dictum.inMlien y. Sransocean Air Lines,.9 Cir.

1955.. 250) F.2d ‘780, 782-83, the Court of Appeals for

this Cireuit expressed a contrary view. We-adhere °

tothe decision in Wilson that the right ‘te maintain

a suit for wrongful death onthe high’ sens aecorded

by the Death on the High-Seéas Act stpersedes any

state-given right of action for such a death. ;

But, the factors whieh, in Wilsom we found inidica--

tive of the Congressional: intent that the ‘Death son

the Hieh Seas Act should’ supersede the State Wrone- :

fl Death Statutes.are not relevant to the State Com-

"+ pensation Acts. ° The Death on the High Sens Act

amd the State Wronteful Dewth Stati tes afford a

9 the State

Compensation Net erants relief for the death ofa

“remedy for death wpe oy showine of fran

workman. killed in the course of his employment on.

adinivalty—

‘

the basis of his status-as an employee. The Compen-_

mation Agts: ‘provide a certainty of reef unobtainable

in a-suit in admiralty. There is nothing in the legis-

lative hfstory of the Death on the High Séas «Act to |

\ suggest that the Congress interidéd that the remedy.

_siven by the Act should displice any remedy afforded

by State Compensation Act for a death occurring

on’ the. high seas. It would not be: reasonable to as- °

‘sume that the Coneress had any purpos¢ to deprive

the. dependents of an employee killed in the ¢ course Of

his employment. of the,-unique protection which a,

State. Compensation Act Is competent. to. gIVG them.: |

The Death on the High: ‘Seas: Act was eriacted to

fill a void in the maritime law and provided an ad- |

miralty remedy for wrong fill death where none had °

existed before. There is no indication that the Con-

eress Intended that this “st: itutery remedy for death

should have agev- different relation te the State Con

pensation Laws than thé pre-existing non-statutory-

admiralty. remedies for personal injury. Since the

Supreme Court has ruled that State Compensation

Acts, designed to afford an exclusive remedy to: in-

~ jured employees, abrogate, the. othe rise, existing ad-

miralty remedy -for: personal injuries ‘in’ situations

-- where the application of the state aeNdoes not intér-

_fere with the uniformity of the maritime daw. it is

reasonable to emiclide that the Compensation Acts

~ Similarly abrogate the admir: altv remedy for wrong-

ful death ar dl by the De ath on.the Tigh seas

At, a ’

Rysponde nts mofion for simm: Aw Judgment in dts-

favor is crantid.

“ee Appendix ‘B".

United States Court ‘of ree als

For the Ninth ssa

Virginia JJ. Kina, as POT ae of |

the Estate of John Elvins King,

‘ A ppe lant,

No. 16,298.

* Va.

——————_ Pax AMERICAN Wr LD AIRWAYS,

: a corporation, |

; Appellee,

Appeal from the United States District Court for the

Northe Th } Pitt: of ¢ California, Southern Division

Before: STEPHENS HAMLIN and JERTBERG, :

Circui® Judges

JERTBERG, Circuit Judge,”

Appellant appeals from m4 final decree of the -dis-

trict court granting appellee ’S motion: for a summary -

jJudgme ‘nt in its favor. Jurisdiction of the district

court was based on U.S.C. Title 28, Seetion 1333. Ju-

- -visdietion of ame Court to review such decree is found

Mm US.C. Tithe 28. Sections 1291 and 1294, |

The parties agree that thessole and narrow question’

presented to. this Court is Whether the California

Workmen's Compe sation: Act ousted the” district

court of jurisdiction te entertain a suit fy admiralty

‘awainst an emplover for wroneful death under the

Death on. the High Seas Act by the administratrix .of

the estate of an airline émployee who in the course of

Iris eniployment was killed in the ¢rash of an: ‘airliner 1

on the high seas.

. The stipulation of facts presented to the district”

‘court is as follows: . : he .

-*S(1) ° At all times relevant /in. this ascii Re-

~ spondent, Pan American World Airways, Ine.,

_ Was ‘and is a New.’ York corporation, organized

_and existing under the laws of the State_af New —

York with its airline operations divided into

3 three separate divisions: The Pacifie-Alaska Di-

vision (the. Pacific area and Alaska) with, he: ad:

quarters at San Francisco, California; the Latin

American division (Central and South America)

with headquarters ‘at Miami, Florida; and the

Atlantic Division (Europe and East) with head-

quarters at New York City, New York: Since |

1944 the principal headquarters of the” Pacifie-

Alaska Division has been located at) the San

Francisco ans Airport,:.South San

Francisco, California, and the principal head-

quarters of Pan American World Airways, Ine.,

for the transaction of business within = State

of California has been located at the sami place. o.

(2) At all times relevant, the caging John

Elvins King,. and ~hibelant, Virginia J. | King.’

were residents, of the State of Califoriia: ni.

—

(3). The decedent, John Elvins King, was fitst -

employed by Respondent, Pan American World

Airways, The on or about the 12th dav of Oc-

tober, 1942, in San Francisco, Califorhia, and

began his employment ino San Francisco, Cali-

fornia. The decedent, John, Elvins King, .was

continuously empleyved by Respondent, Pan

10 .

Americin World Airways, Ine. from the said

2th day of October, 1942, to and including the

Sth day of November, 1957, and was CONTMUOUSL Yt

based at San Francises singe December Ol, 1947,

"On May b, W957, said decedent was assigned thre

position of Might: Service Supervisor, stationed

at the Pan American World Airways, Ine. base

at the San Francisés” International Airport,

South San Francisco, California. That the duties

of said employment provided that decedent Joh,

_Elvins Kine would: Hy approximately—Ge0-tHyine—

on —— hours airing a Yearly employment. of APproni-

ately 2080 hours.

(4) At and ‘prior to the time of the death of

decedent, John Elvins Kine, ou about November

- 8, 1957, Respondent, Pan American, had ‘secured’

the compensation rights of its employees under

the California Workmen's Compensation Act by:

SeCULINgG a poliey ‘of Workmen's “Compensation

Insurance issued by the Travelers Insurance.

Company, which said policy was in full force and

effect at’ the time af the death ‘of the decedent.

John Evins Kine, a :,

(9) The decedent, John Elvins King. left the

Sau Francisco International Airport, South Say

Francisco, Califcrnia, alive on November 8, 1957,

on board Pan. American Flicht No. 7, the first

Stop of which was Territory. of: Hawaii, UWS.4.

At the time of his death, decedent, John Elvins

King, was Performing services STOwINe Gut. of: ,

and incident to his employment, and was aetiny |

Within the course of his employment, and his

death Was not eailused by Intoxication, On Novem-.

ber 8. 1957, the airplane mntered the water at a

point between Sin Francisco, California, and the

Territory of Hawaiis( Hawaiian Islands), mort

than one marine league from any shorelines Fol-

lowing said event Jolin Elvyinis King was dead.

The parties do not stipulate as to whether he died

in the air or in thie water.

(6) Following the death of decedent, John. ho

Elvins King, Respondent, Pan Americ “an World

Airways, Inc., and: Travelers [Insurance ompany,

its Workmen's Compensation Insurance carrier,

—on December 2, 1957, filed an application before |

the Industrial vr ‘cident Commission of the State

of California, -being Claim No. SF 1833-024, in

which Virginia’; King, Jean C. King-Freeman,

Richard R. King and Melissa A. King, minors,

by their Guardian Ad Litem and ‘Trustee; Vir-

ginia J. King, Were parties. Said application was

filed to determine the liability of applicant, Pan

“American, for death benefit and burial’ expe nse

under the California: Workmen's Compensation

Act. On February 20, 1958, a hearing was ‘he ld

hefure the Industrial ee ‘ident Commission upon

said application. At said hearing, Virginia JJ.

King appeared, through counsel, and contested

the jurisdiction of the Industrial Ace ‘ide ‘nt Com- .

mission.

“At said time and place, said Virginia “J.

King advised that she Was appearing specially,

and that the.application had been filed by Re-

spondents without and against her consent: That

Responde nts agreed that defendants were not ap-

pearing ¥sluntarily, That Libelant advised fur-

ther that her appearance was net to be considered

asa consent to jurisdiction of the Industrial Acei-

dent Commission either directly or indirectly, Nor

“Was she appearing for any reason other than the

—

anaes | Bee

r . ; a

faet that’she had been “unmoned to appear by thi

Industrial Accident Cominission of the State of

California alter Proceedings by Pan Americar,

World ‘Airways, 1 5 ccecimaiaies teste eorosten: 1h

en a result. of said application and hearing, an

: order"awardine. a death benefit in faver of Vir

“-ginia J, King, Richard R, King and Meliss: A.

King and against Travelers Insurance Company

Was nade by the California Industrial Nceideast

Commission on Maieh 31. 1958, ;

“AO certified COPY of said application CExhihis

"A) and the order made by the Tudustrial- Nec;

dent Commission with respeet to said application,

' CENhibit *B*) in said proceeding are attached as

of the Opinion of the referee is attached herets

as Exhibit *€° hereof, nt

Entry of this stipulation shall not be deemed ais

admission by either Party as to thie relevanes or

Mnateriality of any of the lnets stipulated to, ariel

the. parties reserve: their rights in this resard.”

Appellant's bibel Was based upon the Death on the

High Seas Net (Mareh 30, P20, &, LIL, Sections 1-7,

41 Stat. 537, -46 US "WA Sections T6L-T6T4. Relevant

“portions of that Net are gd Follows;

: ‘Section he Whenever the deathof a persen

shall he caused by wroneful tet, neglect, or de.

fault oceurring on the high seas bevond a marine

leaone from: the- shore of auv State. or the Djs

trict of Columbia, or the Territories or dependen

so vies of the Chited States, ‘the Personal represen -

tative of the decedent mav maintain a suit for

"At coral arenanent inthis Case ape llant'sS conse Stated ‘that

Pestett ot the aware had been aeeepted ty appellant.

ee eee eyes -

damages “in the disttict. courts of the United

States, in admiralty, for the exclusive benefit of.

tr me decedent’s wife,. a, parent, child) ot

wx: ~ dependent -retative.against , the. vessel, person,’ or

Mei ccmaaidiaa which would have heen liable if

death ~ not ensued.’ aye ae

Section . The recovery: in such sujt. shall

~ bea fair me Just compensation for the pecuniary

Joss sustained. by ‘the persons for whose benefit

the suit. is hrought and shall be’ apportioned

among them “by thie court. in proportion to the

loss they may ‘severally have suffered by reasan

of the death of the person by whose representa-

tive the suit is brought.”

Section 5. “If a person die as a. result) of

such wrongful act, negléct, or default as is men- -

tioned in’ section 761 of. this tithe during the

pendeney in a court of admiralty of the United

_ States of a suit to recover damages for personal

injuries in respect of such act, neglect, or defauit,

the personal representative of the decedent may

be substituted as a party and the suit’ may pro

ceed ‘as a’suit under this chapter for the recovery

of the compensation. provided (in Section w02 of

this title.*’ 7

* °

Seretion 7. “The provisions of any State stat-

ute giving or regulating rights of action or reme-

dies for death shall: not be affected by this chap-

ter.” Nor shall this chapter apply to the Great

Lakes or to any waters within the territorial lim-

its of any State, orto any navigable waters in

the Panama Canal Zone.’

As a separate and special defense, the appellee al-—

leged that the rights and. obligations of the appellant

. - ad &

‘\

a Pee,

were governed by the Previsions of the California

Workmen's Compensation. Act, and that by virtue of

the provisions thereof the rights and remedies af

forded by said Workmen's Compensation Net. pro.

vided -the sole and exclusive right and remedy of itp

pellant against the appellee for and on account of the |

death of the deceased emplovee, and that Dy virtin

thereot appellant Is barred ‘from? maintainine the ace x

then. cf vay

~The California Workmen's Compensation Net

(cited as sections in the California Labor Code) in its .

pertinent parts provides :

Seetion 3600: * Liability for the compensation

provided by this division, in liew of any other lig

bility whatsoever t, UY Person except as pre

Vided in. section 5, M), shalt, Without regard | te

heeligence, exist Against an eniplover for any ine .

JUGY sustained. by his emplovees Arising wut oof:

and in the course of the emiplovment and for th

death of UY emplovee if the Injury Pronxtmately

ciises’ death, in those Cases Where the Followins

conditions: af compensation concur: © © iy

Section 36005 ; “had Tf an employer Whi has

Vreseeny hired or is restikarly emploved e this sie

receives Personal Injury. by accident arising out

of and in the COMPS of such employment Outside

of this State, lhe, or his dependents in- ease of A.

death, shal iG entitled ty compensation according

to the law of this State He wee ,

Section SHOP: Wher, the conditions of com.

pensation ONISt, the Pie’ hi. “Hendon isle eine

pensation, pursuant tu the provisions Of this di-’

Vision is, eNcept as provided in SOCOCtiON BT, the :

* »

exclusive remedy -avainst. the Cmployer for the

injury or death.” f |

Section 3706: Ttean employer fails to secure

‘the ‘payment. of compensation, My injured: em-

ployee or his dependents Inay proceed against

such employer by tiling an applieation for come ©

pensation with the commission, and, in addition,

may bring an action at law against such employer

for damages, as if this division did not apply.”

Section 5305: “The-comimission has Jurisdiction

over all controversies arising out. of injuries suf

fered without the territorial limits of this Stiute

in those cases where the injured employee is: a

> resident of this State at the-time of the Injury

~and the contract of hire was made in this State.

Any such employee er his dependents shall be en-

titled to the compensation or death benefits pro-

vided by this division.”’ |

Section S208 2° The provisions of Division 4

and Division 5 shall not apply te emplovers or

employments Which, according to law, are so en-

gaged in interstate commerce as hot to be sub. .

ject ‘to the legislative ‘power of the State, nor to

employees injured ‘while they are so engaged,

except nose far as such divisions permitted

to apply under the ‘Constitution -or laws of the

United States.” erate

The summary. judgment was granted on the eround

that the appellant's exclusive remedy was under the

California] Workmen's Compensation Act. and -that

appellant, was therefore precluded from maintaining

the admiralty. remedy for wroneful death accorded by

the Death on the High Seas Net. (See King i. .Pan

American World Airways, 166.F. Supp. 1K) |

16 :

Appellant 's main contentions are: (1) that the ape

plication of the California Workmen's Compensation

Act to the instant case is invalid under the holdiniz

‘of the Supreme Court of the United States in South.

ern Paeifie Co. vr. Jensen (1917), 244 ULS. 205: €2)

that the Death on the High Seas Act abrogated the

* otherwise applicable Workmen's Compensation Act:

and (3) that decisions of this Court compel us’ te

lield- hat the Death on the High Seas Act abrogated

-the emedy afforded under the California Workmen's

Compensation at:

Before proceeding. to discuss appellant's conten-

tions we will hote several general observations,

Neither party questions the power of Congress te.

‘enact the Death on the High Seas Act. Tf in ‘the |

‘stant case the airplane had crashed on land, whether |

— In’ the continental United States, in Hawaii, or in

any foreign country, the remedy accorded under th:

Death on thie High Seas Act wold not have been itp

plicable, “Tf Kine-had survived the crash In the in-

stant case, ne remedy would have been available ty

him under the Death on the High Seas Act.

Ttois' net disputed. that due. to the interstate and

forelen character of business of major airlines Con. |

gress has the. power under the Constitution to enaet

a federal compensation act applicable te ‘urline: em

Plovees ane their emplavers comparable te the Spe

citie federal laws enacted as to railroad workers, Sern.

men, longshoremen, and others, Up to the presen:

time Congress has chest hot te exercise such’ power,

. \ ; : eo }

i... eae :

¢ . . : . e m : 5

Liability for the compensation, provided by . the

California Workmen's Conrpensation Act exists

against an employer Without regard to ne vligence for,

any injury sustained by his. employee arising out of

and in the course of the employment and for the death

of any emplovee if the injury proximately causes

dleath. The right te reeover-such compensation is the,

exclusive remedy against the employer except unde r

certain circumstances net here pertinent, othe > Aet

applies to all injuries Whether occurring within ¢ ae

State of Califormia, or oecurring outside the territorial

hound: aries if theeontract of AnpPlovment was ente ‘red

into in California or if the emplovee was recttl: wy em-

* ployed in California. -In Alaska P achers Assn. Ine.

dustrial Accident € ommisston of California, ete, 294

US. 532, the Supreme Court upheld an awarhiiade 7

by the Industrie! Necident Cothinission of California ®

_to an emplovee who was wijured “in the course of his

“employme nt tn the Territory: of Alask: a. and Whose —

contract of employment Was entered Inte iu Cali-

fornia, and Whe had . leeted to bye hound hy thie Alaska

Workmen's) Compensation Law. Such ¢ Ntra-terbi-

torial Jurisdiction lias been stists Lined ome the biypis of

a state's legitimate interest in protecting employees”

regularly employed within their state and. thei ir fami-

lies from the consequences of Industrial injuries, Car-

illo ve Liberty Mutual quanvance fa: = Hy ULS, 459

The ap plicable state workme ns compe hscition net:

has nnifermly heen hekd te govern: industri: el. iuric me

Sustained bw et plovers of. alrlines in the CoOUuPSE of.

their cmplogment whether the er = ‘oceurred in this

dees ated

country or on foreign sole WW Mingham 1 " Eastern

, Mer Lines, 2 Cir., 199 F.2d 023; Seversyn r, “Maso

Tee State Air Line, Lie. 8 C ir, 105 FF, 2q 22,. ed.

309 US, 660 ; Spelar ev. Minvionin Overseas Airy Lines,

‘Tne. 80-¥F, Supp. BH: Urda vy, Pan American Air-

ways, 9d Cir, 2101 F.2d Ty » See ilso Dushin v, Penn.

Pos cic ( ‘“entral Nir Lines, 6 Cir. 167 PF. 2d 7 727, ¢ A,

30 US, 829, In each of the above cited cases wherein

a state wroheful death statuty Was involved it. was

held that’ the state workmen's. “compensation aet ex:

cluded the operation of the othe ‘TWise applicable dr ‘ath

act. None ofthe cases Was based upon. the Death ony

the High Seas Act. The rationale of these CASOS) iS

~ that, the applicable workmen: & compensation law. eoy-

“erns heeavse it is the law in relation to which the par-

ties contracted and the law affords a certain and

speedy remedy te the Injured emploveb, « or his family

_ In ease of his death, |

We will now discuss the. appellant's contentions j

the application of the California Workmen's Didies: Ne

Sation Aet.to the instant case invalid under the doc.

s trine a ed by the’ Supreme Court in Southery

Pacifie Co, » dense 4, supra? Tn the Jensen ¢ ase: the

Supriome ¢ Court held that the New York State Work-

men’s Compensation Act Would not be validly applied

to the death of a stevedore killed While Unloading »

ships, The Conrt he ‘ld that: “the: general maritinn

law" was part of our national law and that stat.

levishation Wes invalid if it + “Works material’ preju-

hee te the char: veferistie featares of sueh vrenera!

Maritime | law’. The — further stated, “Th

Jonas 3 19°

work of a stevedore, in which the deceased was en- ae

gaging, is. maritime in’ its nature ; his employme nt

Was a maritime contraet: the injuries Which he aaa ‘

~ ceived Were likewise maritinie: and the rights and lia-

hilities of the parties inl connection therewith were

“matters tlearly Within the admiralty jurisdic ‘thon’”*.

244 U.S. 217. The Jinse ‘n doctrine was reiterated by

the Ripa me Court in Knickerbocker flee Conv, Stew-

art (1920), 253 U.S. 149. In that case the decedent's _

death occurred while he was employed as a bargeman

and doing business of? i maritime nature, and the

Court held that the € ongressional Act in question Was x

invalid because it acai to sanction state com- - the

pe nsation remedies “for injuries suffered. by y pit oA

ployees engaged in maritime work”,

The Jensen doctrines was Jikewise apie’ by the

Supreme Court in State of W ashington. vr Wie,

jointly with two cases. By the Act of June 10, 1922

(42 Stat. 634) Congress amended Sections 24(3) and |

256 of thé Judicial Code relating to admiralty andé-

maritime jurisdiction: ‘(28 .U.S8.C.A. AN 41(3), 256), re

adding’ to. ‘the saving clause of that Act, ‘and to

7 claimants for compensation for injuries to or death

“of persons other thar the master or Membe Ts of the

erew of a Vessel their rights ane remedies. under ‘the |

Workmen's Compens: ition, Law of any’ state, district, die

territory od fossession of the United Sti tes, Which °

Vights and remedies wl

nh conferre “by ste ‘th law shall

he exe Jusive." "One £f the eases presented the alestiod?

“Whether one engaged int the busine ‘SS of ste vedoring: i ¥

Whose employ eés work only on para ships i in the nav-

igahle waters of Puget Sound, can be compelle “te

contribute to the accident fund provided’ for by th

Workmen's Compensation Act of Washington,” and

the other case presented the question as to Whether

the Industrial Aeccide nt Commission of the State of

California had jurisdiction to award compensation for

“the ‘death 6f a workman killed) while actually en-

gaged in- maritime work, ‘under maritime: contragt,

upon a prines moored at lier dock in San Franeisce

Bay and or her cargo.” - Ss

‘It is clear front decisions of the ‘Supreme Court

after the Jensen case that the. Jensen doctrine does |

Not-apply to all maritime torts. In Grant Smith-Por-

ter Ship Co, v. Rohde (1922), 257 U.S, 469, the Court

held that in’ view ir its exe lysive features the Work-

tie’s Compensation, Act of the Stat® of Oregon ab-

revated the right “of the injured employee: whiel:

would othe TWise exist to-recover damages jin an ad-

miralty court. Theemplovee, a carpenter, was injun al

While working on a partially completed Vessel Jying

- at a doe k in the. W iNamette River, at Portland, Ore-

vo, Which river is’ a part of the navighble waters of

“the United States. The Court: held that. Reet:

in ‘admiralty existed heeanse the injury occurred uy

navigsble waters, The C onrt stated, at page 475:

“The contract: for constructing ‘The: Ahala’

Was hone maritime, and although the incompleted

structure upon whieh the aéeident occurred was

- lying in Mavienble Waters, neither Rohde's ven

eral ethployment. nor his activiticsat the tim:

had any direct relation: to navigation: or come. -

\ ve

ys ~

merce. Thamés Towboat Co. vo The Schooner

‘Krancis McDonald’, 254 U.S, 242. The injury

was suffered within a-State whose positive enact:

ment preseribed an vexclusive remedy therefor,

And as both parties had accepted and proceede al

under the statute by making paymelhts to the In-

dustrial Accident Fund it) cannot ‘properly he

said that they consciously contracted with each

other in conte mplation of the acne system of

ryaritime law. Union Fish Co, ‘Erickson, 248

ToS. Boss Under, sushgetrelaatianren regulation

of the rights; obligations and consequent labil-

ties of the parties, as. between: themselves, by a

locad rule would not necessarily work material

prejudier to any -characteristic feature of. the

general maritime law, or interfere with the

proper harmony or uniformity of that law in its

*e — or. interstate refations, Southern

a Co. v. Jensen, 244 v S. 205; Western Fucl

Co. "Garcia ante,’ 233."

In Alaska’ Packers Assn. v. Industrial “Aceide nt Com-

mission (1928), 276 U.S, 467, the injured Workman

Was a resident of California and was gg ate by a

California corporation to do work . Alaska. He

agreed to go to Alaska ‘as a seaman su after ‘rriv-

ing in. Alaska ‘to work as directed. He made nets,

lized up boats, and served as a fisherman on one of

them. He was injured while attempting ‘to push a.

stranded fishing boat off the, be ach. The Stpreme

Court held. that; assuming the injury to be within

the gubniralty jurisdiction, the injured employee was

Ot engagedtigeany work so directly commected with

navigation and commerce that to permit the rights of.

the parties to be controlled by the local law would

interfere with the essential uniformity of the general

maritime law."’ Thereafter this Court upheld the ap-

plication .of the California Workmen’s Compensation

Act to two similarly employed: cannery workers wie

met -death in the wreck of a fishing schooner at. sea.

Alaska Packers: Assn. v. Marshall, 95 F. 2d- 279. Se:

also Millers’ Indemiaity Underwriters vo Brand

(1926), 270 U.S. 59. 7 |

The decedent was emploved in a non-niaritime in-

-dustry and performed no maritime work. As stated

bythe distriet court, ‘Indeed the only aspect of this

case Which ‘gives it any maritime flavor whatsoever.

is the locale of the accident. King ve Pan American

World Airways, supra, Our study: of the decisions

of the Sapreme Court above cited lead us to the con-

-elusion that there is ne constitutional barrier to the

application of the California Workmen's Compensa-

tien Aét to the facts of this. case. In reaching that

conclusion we have carefully reviewed the decisions

of the Supreme? Court. in Standard Dredging Co. —

Marphy ( 1943). 319 ULS. 306. and Pennsylvania Rail-

way do, Vr O'Rourke (W953), 344 v ae ode » cited and

relied pon by the appellant. font |

Ix the California Workmen's Compensation — Act

abrogated by the Death on the High Seas Aet?) The

Death on the High Seas Net was Chacted to fill a void

in the marjtimestaw which was found te — by the

Supreme Court in The Harrisburg, WITS 199. The

Act provides-an admiralty remedy for wrongful death

where none.existed before, The language of the Aet

‘does not purport to superse ‘dea remedy afforded by ;

a state worknien's compensation act for a, death ve-

curring on the high seas. Section 7 4 of the Act (supra)

expressly .provides that the provisions of any state

statute giving.or regulating rights of actions or reme-

dies for death shall net be affected by the Aet. The

attitude of Congress at, prior and subseque nt.to the

enactment of the Act toward state workmen's Compen-

, sation. acts Was extreme ‘ly friendly, as clearly reflected ue

in the Congressional Acts declared unconstitutional in

the Jensen, Knickerbocker and Dawson cases, supra,

Decisions of the Supreme Court as cited supra hold

that state workmen’s compensation acts whieh? provide

an exelusive remedy to injured employees supersede

the otherwise existing adthiralty remedy for personal

injuries in situations where the’ application of the

state acts does not interfere with the uniformity of the

maritime law. That the Death onthe High Seas Act

may have abrogated state wrongful death statutes for

death oceurring on the high seas is not) persuasive

pensation remedies, State wrongful death statute: —

require proof of fault. This same requirement Is ems

hodied in the Death on the THigheSeas Act. State +

wrongful death sti itutes in general de not purport or

intend to apply outside the: state's* own boundaries.

Uniformity perhaps inéthis field can only be achieved

under the Death on the High Seas Net. Recovery

under the. Aet may be uncertain ‘and long delaved,

- The factors thet might lead te the conclusion hat

the, Death on the High Seas Act supplants or super-

sedes state wield de ath statutes donot apply and

are not relevant to state workmen's compensation acts.

Under such acts, compensation — is payable Without .

proof of fault but only. on the basis of status as an

employee. Tf death results in the course of employ-

ment, relief is prompt and certain.

In contending that the Death on the High Seas Act

“extends ‘to wrongful death of emplpyees, appellant

has called to our attention the following cases: Polland

4, Seas Shipping Co. Inc, 2 Civ: (1945), 146 F. 2d.

875, 877: The Black Gull, 2 Cir, (1936), 82 F.2d 758,

759: Decker v. Moore-MeCormack Lines, Tne, D.C.

Mass. 1950, 91-P. Supp. 560, 561; Batkiewiez v. Seas”

Shipping Co., D.C N.Y. 1943,. 533 F. Supp. “802, 803:

The Four Sisters, D.C.Mass. 1947, 75 BF. Supp, 399,

400, Tn the Polland ease, the pl: untiff sued under the

Jones Act, (46 U.S.CLA, Section 688). as administra-

trix of her husband's estate for damages for his death

while in the course of his employme nt as a fireman,

on the “SS. Algie™’ owned | by the defendant. The

jury returned a verdict. for the plaintiff, and on ap:

~ peal the defendant argned that drowning was not

covered by the tones Act. The Circuit Court affirmed

the judgment. The Black Gull case involved an aetion

to recover damages for the death ef a harbor pilot

killed by the negligence of a ship about to take him.

aboard. Tn sustaining the judgement against. the’ de

fondant. ‘the Court stated at page 761: We have

assumed that a compulsory pilot is net an emplover

of the vessel in the sense that a “member of. her erey

—is such. Therefore, any duty of protection owed te

OF a

** * niust rest onesome other basis than employ-

me nt.” The Decker case involved the deaths of two.

seamen killed aa collision between two vessels. Ac-

him

tions to recover damates Were brought not against the

Vessel operated by the decedents’ emplover, but

against the owner-of the other vessel. In. the Bat- :

kicwier cas’, the court permitted plaintiff to amend by

adding a tount under the Death on the High Seas

Act to a eount under’ the Jones Aet. In the Four

Sisters case, Which also involved the death of a sea-

man, the question dealt with was whether or not an

action under the Jones Act excluded a remedy under

_ the Death on the High Seas Act. It is te be noted

that all of the cases -cited involved seamen. None in-

volved a state workmen's compensation ‘act with its”

exclusive remedy provision, None ‘involved the sub-

stantive question of law presented by tlie inst mit ase.

. Appe Hant makes reference to-the “twilight zone”

eases Under Which appellant states that resort may be

had at the election of the claimant to either a federal,

or state forum offering coneurrent rights and remedies, .

nd Gites Davis ve. Department of Labor, 317 U.S, 249,

ind, Wahu ov. Ross Island Saud & Gravel Co. B58,

272. As stated bye the Supreme Court in the Hahn ease

the Longshoremen’s and Harbor Workers’ Compensa-

tion Act does notiapply if recovery: for the disability

or death through workmen's compensation may tylidly.

he provided by State law. The “twilight zone’’ was

éreated in the Davis ease. and as stated by Mr. Justice

Stewart in his dissenting opinion in the Thahn case,

“Was a practical sdlution to ao practieal problem. a

26 ‘

problem stemming from Southern Pacifie Co. ve Jeu-

sen, 244 US. 205. and one whieh 25 vears of praost-F en

xen history had failed te solve. The problem was how

to assure to injured waterfront emplovees the spapils ‘

_prenipt and certain protection of workmen's com

pensation which Congress had-elearly intended te wave

in ehacting the federal statute. See 317 U.S. at Jo.

The, Davis decision in -ffeet told the injured employe:

thread ain ca cheotndat rul ease he would be assired of work

en's cOmpytsat hon: Whether he proceeded under a

state workmen's compensation act or the federal stat

ute.” bn the Davis case the occupation of the peti

ticter’s decedent was in the “twilight zene. ThesSu

preme Court of the Stae of Washington annulled ar

award te petitioner under the State Workmen's Com

pensation Law. The Supreme Court) of the United

States reversed and sustained the award. bn the Maha

case, the Supreme Conrt stated ;

ot As teceases within this *twilight zone.” Davis, i

effect. eave an in yreree! Waterfront emplovees at

. vleetion te recover compensation under either th:

Loneshoremen:s Actor the Workmen's Comper

sation Law of the State in whieh the injury oc

erred. Tt seems plain enough that petitioner mail

injury eceurred uf the ‘twilight zones “and tha:

recovery for it ‘through workmen's compensatior

proceedings.” could: fave -been, hd in’ faet was.

validdy provided by Staty law’ the. Oreger

Workmen's Comyonsa Aet. Ore. Rev. Stat,

SU eee Therefore, the Lonestoremen’-

Net did wot bar Metitioner’s claih under state ‘ln:

Put stnee his miplover had cleeted te reject ther

the alitometie compensation provisions of the One

gon Workmen's Compensation Net did not appl

te the claim. Seetion 656.02 Pot that law provides,

hewever. that when an eniployer -has elveted te”

reject the Net's automatic compensation provi-

sions his injured employee may maintain it the

Courts i Nevligenee aethon For damages, OF compse,

the employer could nét de thisat the cane Were thot

within the ‘twilteht) zone for then the Long-

shoremen’s “Aet would provide the exclusive

remedy, Since this ease is within the ‘twilight

zone,” it follows from: what we held in Davis that

nethime in the Loneshorertion 's Act or the United

States Conustitiition prevents recovery,”

, . ° .

In the instant ease decédent’s employment was not:

maritime. The California ‘Workmen's Compensation

Aet was in full-foree and effect, There was he federal

Workmen's compensation act i effect. We tind nothing

rh the “twilight zone eases Which oust. the California

"State Workmen's Compensation Net, or permits ape

pellant teceleet between it and the Death on the High

Seas Net. To permit sneh an election would destroy

the exelusive remedy provision whieh is at essential

clement te the California Workinerls Compensation

Act.

Pho contending thar the

California: Workmen's Com-

fietisation laws furnish ne basis for the judement of.

the district eoolyey, apepetiaant redes on the cise of

Schell wager. Ziuhik, wo PF. Supp. Q2.- The qtestion

presented iti that tune Was Whether or nota seaman

whe signs on Sfate Wwerkmien’s compensation q1eree-

Ment, receives payments thereunder. and executes a

“Hind reeedpt dscbarred fren: his rieht of PeCOVErY der

the ene. Netapd aiden the doetrine of nnceaworthi.

Hess, We do not find this cise apposite, We Tiave here-

tofore pointed out the non-maritime eharacter of the -

decedent's employment and the exclusive provision of

the California Workmen's Compensation Act which

appellee relies upon in this case. We likewise are of

the view that Occidental Tusnrance Conv. Pndust riai

Aecident Commission, 24 Cal, 2d 310, is not in portet,

In that case the California Supreme Court annulled

an industrial accident award in the case of a SEALE

injured in the courg@ of his employment, The Court

held that seamen gre coverned by admiralty law over

Which federal law ts parameunt. The Betsy Ross case .c

my Crry Wo . 2 USS, adds nothing since the samc.

partic x. the sane IN JUNES, anid the same enplovment

were nvelved in this: ease ag were involved in’ th

Occidental fusnranee Company case. ‘Phis Court

agreed with the State Conrt that eniployment of thr

Piytiredd workmen Weis MmaPRime in- character, whieh:

fact deprived the Hriclust ris Nceident Commission ur)

the State-of Califaraia of jurisdiction, Finally, under

this head dppellant contends that Seetion J2QO3. Supra,

Tol the California Workmen's Compensation Net make-

shel daw self stbordimadtine to the Death on the Hie!

Seas Net. We feel th: this port tras been disposed ut

mdve rsely te stich contention by what has already beer

said inthis gpinten,

Nrpedlant’s final contention rs that under the dee

sions ‘of this Court in digit ve Lraiasocean Air Lines.

er ss MTSU, and TPrihey ve Transoecan Mir Lines

Pie, 2 BL 2 S24, we are comp Hed te hold that’ th:

Pentli on othe High Seas Net abrogated the remed.

afforded under the Caditornia Workmen's Comipens:

fon Net. We doe net agree, In the Higa case, Migs

Was a passenger on an airplane Which crastied in the

‘Pacitie: Ocean 300. to 400 miles trom W. ake Ishind,

When Hving toWard Honelutu, The administrator of

Higa’s estate mstituted an action alleging Jhat Higa’s

death was caused by othe pkine eFashing inte the

Ovean. The action for damages wats based on the

De ath on the Plieh Seas vera wis brought ° its a

comfnan law civil suit rather than in admiralty, The

district court distnissed the action. because the action.

Was not. instituted on the admiralty side of the court.

This Court’ affirmed the judgment ‘of dismissal. The

substantive question of law presented to us in this

case Wals not invelved in the Higa case. Although the

- Court by way of dictum expressed the view that a

local wrongfub death statute Was net superseded by

the. Th ath on the High Se vts Net. the wrongful death

"st: itute of the Territory of Hawaii was net me ntioned

In the opinion except ina. footnote noting the exist-

ence of such an acts The Trihey ease involved: an.

action in admiralty for the wrongful death on the

high seas ofla passenger in an atrplane whieh crashed,

The district. court found no neghgenee on the, part

of the defendants. ‘Chis Conrt affirmed the judgment

on the eround it could hot say the findings of the

distriet conrt were erroneous, Again the question of.

substantive law invelved in the present case was not!

| present in-the Trihey ease, ner even didnot: involve

a local wrongful death statute. Appellant alse relies

on D' Aleman r Pan American World Atiways, (2

Cir) 250 F.2d 498. The decedit was a PeISSener |

on the defendan tsoairplone. fling from Pherte Rico

to New York. Beceanse of enone trouble ‘and Weather

, \ .

r _ ne *

. z j X

conditions the plane proceeded to Virginia wher re it

made a normal landing. The passengers Were advised

while enroute that one engine was being * *Feathe red™

and that. the fight would be of the three remainins

engines, and because of weather’ conditions the \plarne

would land in Virginia. Several days after landtins,

the decedent died in New York. The plaintiff's first

cause of action, based upon the Death on the® High.

Seas Act, alleged that the deceased: became se terrig NY

fied: by the “feathering” of the engine and the an- —

houne ement of the unscheduled landing in Virginia

that he went-into a state of shock w hich resulted in his

death, The second: cattse of action was based upon

alleged fatlire of the: de enitaint to provide adequate °

medical care to the deceased.. None of the workmen's

compensation laws were invglved. The district cotirt.

under the first cause of action, sitting without a jury.

found no negligence. A jury sitting under the second

eause of action found likewise. The Circuit Court

> «found that the first cause of aétion was prope thy heard

in admiralty withent) a jurv. and that) the. ruling

of the distriet court in exeludine evidence offered by

the plaintift under the, second cause of action was.

proper, This case does not hear on the specific prob

lem before us.

We conelude that under the stipulated faets of. this

case and the applicable law aprtellant’s sole remedy

against the defendant is under the California Work

me n’ x, Compefisation Aet. and that the judgment of

the district court must he and is he reby affirmed.

4 Endorsed :) Opinion. Filed Ane. 27, 1959.\,

<7 Paul P. O’Brien, Clerk.

SAL 27, 1959. ‘

Kapiadin “er ;

United States Court of Appeals:

forthe Ninth Circuit.

Virginia J. Kang, as ‘Administratrix of |

the. Estate of Jolin Elvins King,

, oA ppe Hlant, !

vs. aie bNo. 16,298

Pan AmericaN Worip Aimways,

\ a corporation, ie

Appellee. |

JUDGMENT

Appeal from the United States District Court for

the Northern District. of California, Southern Di-

Vision. | | ’

This cause came on to. be heard on the Transcript

of the Record from the United States District Court

for the Northern District of California, Southern Di- |

Viston, and was duly” submitted.

_ On consideration whereof, it is. now here ordered

and adjudged by this Court, that the Deeree of the

said District Court in this cause * he, and hereby is

affir med.

Paul P. O'Brien, Clerk.

Appendix “Dp”

~ United States Code Annotated, Title 46

* Chap. 21—Sees, 761, 762, 763, 764, 765, 766, 767

Death on the High Seas by. Wrongful Act

“See, 761. Right of action; Where sand by who

brought. e.. |

F |

“Whenever the death of a person shall be cause’

by wrongful.act, neglect, or default oecurring on

the high seas bevond a marine Jeague from the ®

shore of any State, or the Distriet of Columbis:

oor the Perritories or dependentes: of the Unites!

States. the person representive of the decedent

may maintain a suit for damages in the district

courts of the United States, in admiralty, for the

-exclusive benefit. of the decedent's wife, hiisband,

parent, child, gr dependent relative against the

Wessel, person, or corporation whieh would have

heen liable if death had aot ensued. Mar. 30,

1920, «. T11, See. 1, 41 Stat. 537."

~*See.-762. Amount and apportionment of recovery.

The recovery. in such ‘suit shall bea fair arid

‘just compensation for the peetiniary loss sustained

by the persons fer, whose benefit -the suit is -

brought and shall be appertioned among them be

the court in proportion to the loss they may sever

ally have suffered by reason of the death of the

person by whose ager the suit is

brought. «Mar. 30, 1920, 6) TTL. See. 2. 41 Stat.

537 99

“See, 763. Limitations.

“Suit shall be begun within. t@i years from: the

date of such) wrongful act, “neglect, or default,

unless during that period there has not been rea-

sonable opportunity for securing jurisdiction of

the’ vessel, pefson, or corporation sought. to be

charged; but after the expiration of such period

of two years. the right ‘of action herehy given

shall not. be deemed to have. lapsed until hinetyc®

days after a reasonable ee te secure jur- °

‘isdiction has offered: Mar. 30, 1920, %, Lh, See.

3 ue Stat. 537.""

“See. Td, Rights of agtion given by laws of foreign

- countries: os

+ 3 henever’ a right of action is granted by the

° ~ daw of any foreign State on accotnt of death by

| wrongtul aiet, negleetor def: wit occurring upon

the high seas, stieh right may be maintained. in

wn appropriate action in admiralty in the courts

of the United States without abatement in respect -

to the amount for which recovery is authorized,

‘any statute of the United States to the contrary:

notwithstanding. Mar. 30, 1920, 6 TLL, See.’ 4,

41 Stat. 537.7 | °

“See, 765. Death wo plaimititf vecaiionl aetion.

“Tf a person div as the result of snek awrong ful

-aet, neglect, or default as is mentioned in section

761 of: this title during the pendeney ina court

of admiralty of the United States of a suit to

recover damages for personal injuries In respect

of-such act, neglects or default, the personal rep.

resentativerof the decedent may be substituted as.

A party and the suit may proceed ax a suit under

_ this chapter for the récovery of the compensation

— provided in section 762 of this tithe. Mar. 30,

1920, «111, See. 5, 41 Stat. 537.7"

“See, 766. Contributory negligence. .

“In suits under. this chapter’ the’ fact that -th

decedent -has been guilty Of contributory negli-

gence shall not. bar recovery, but the court: shall

take Into consideration the degree of negligence

attributable to the devedent and reduce the re-

covery accordingly. Mar, 30, 1920, ¢ LLL, See. 6,

41 Stat. 537." ° wae 8.

“See. 767. Exceptions from operation of chapter.

X - a

*The-provisions of any State’ statute giving or

regulating rights of action or remedies for death. -

shall not be affected by this chapter. Nor shall

this Chapter apply to the Great Lakes or to any

Waters Within the territerial limits of any State. .

or to any navigable waters in the Panama Canal

Zone, Mar, 30,°1920, ¢. TLL, See. 7, 41 Stat. 538."

Appendix “E”

FY ag .

‘ AWARD

Award Is Made in faver of Virginia J. King, Rieh-

rd OR. Kinte, and. Melissa A. King attd against

Travelers Insurance Company, of a death benefit of

F000 a week beginning November 9, 1957, payable

to Vi Ireiniaa J. Kine, and continuing until a total of

$15,000.00 shall have «heen paid, less eredit to ap-

Me sscsnerne for any amounts which may have heretofore

. been advanced as death benefit herein, and Tess #7: 50.00

payable to defendants’ attorneys, Smith & Parrish, as °.

attor ne Vv s* fees.

Ith Is Ordered That all ndsweeisie herein shall bear

interest as required by Labor Code, Seetion 5800,

[Sul ~ «Robert Ball,

é Rite Referee, Industrial '

~ ks | Accident Commission

Ay ; ‘

\ : ie 0

‘ REPORT: OF REFEREE ON DECISIONS

These claims wete filed with this: Commission hy

the employers of the allegedly deceased employees,

secking a determination of the liability of said em-

| ophover under the State of California Workmen's

" Compensation Act. Said employer Is ao “party: in

interest’” and therefore is entitled te Institute: the

ve, LAC. 120 Cal App. 2d 727. 18. 0.0.0, 252.)

| ae

; 36

The principal question herein is whether this Com

mission has jurisdiction to award workmen's” con

pensation benefits under the California Workmen's

Compensation Net ine connection with the alleged

fatal -injuries to einplovees Drown, Crosthwaite.

Fortepberry, King and MeGrath on or about) Ne

vember 8, 1957, winle (lying an airplane “over th:

Mid-Pacitie Ocean, | ° |

The’ evidence is clear that the contract of hie

as te each of these emplovees was made in Cal)

fortia, Sueh being the ease. Laher Code Seetior-

600.5 and S305 purpert ‘to coufer upon this Com

Mission Spurtsdiction ovey the within clans.

The next question is whether the provisions ‘

the United States Constitution whieh erant admiralty

and maritime jurisdiction te the Federal courts has.

‘the effect cof «ustine . this Commission of jurtsdi

tion. After research of the authorities Pam convines:

for several reasons, that this Commission fs not omsted

of jurisdietion, . ae

tn the first place, Docder tiet bediewe that san aurplti

Hight over the oeegn ean de clessitied as the yp.

formanee of a maritime contract. Where an injuy

occurs en navigable waters but in the perfornrnaty:

Of a nen-imaritime contract. the injurv is. at le ~

prima faete. leeal and within the aperation of ster

laws rather than within the odmiralty jarsdiets

of thee Federal covernment. .CTeahan vs BAC 21

Cal 3h 36, IT DAL 2a. 2b: LeCasse us. Gin

Lakes Ene. Works. 242 Mieh. 154.219 NW. 7)

733). fant |

R Rt @

Secondly, even if the Hight in question was .within

the admiralty jurisdiction of the Federal government, -

1 believe that this is one of those situations where

Congress can be said to have chosen to cede to the

individual. states the- right te aet, or at least that

Congress has, by its own maction, left the partieulat !

jurisdictional ‘tield’ Vacant and tnoeeupied ‘so far as

Federal limitations are concerned. In such as situa-

thom the inet idluiatl states are free te apply their own

remedies in stele field. (See Southern. Raalway’ VN.

Railroad Corumissten Ar Lrickacania, 2h US. 439, 35

S.Ct. BOF). | Loans

Congress has established me rule of dribrhity or,

tnetheod of COMP en ST THOM W th respect te emplovees of.

alrplate carriers an foreign or iiterstate) commeree.

Spelar vs. American Overseas Apriities, Tne. 0. Fed.

Supp. GH. AT). Althoneh livlieve that the Ped-

eral Thiet Seas Death Aef CH LUS.C. T6E ot sane) ds

probably appleable te the injuries herent even though

it has not beer estithlished that the deaths oeenrred by’

rhisplanie’s crashing dite the s8. oc subsequently | Wee

ahh Ws, Vaan ANmieriedn Nirwar x, Drie., Ms 0. 24].

00 affirmed BO NOY. STS. 30 NUEL 2b 75: Chey vs,

Par American Atrwayvs Ceo. IO AMC. A830. that

\et ox pressly provides that the previstons cof ana

State: Statute: civing or. regulating rights of et ion Or,

remedies for death shall not be affected. (hi TUS.e,

TG: am sdiesn vs. Tratisoeenn Air Lines, BIO Fed. Bd

TSO, TS2). Pts trie that it has nevertheless heen held

hat the effect of the High Seas Death Net inte ex

shade the apphieation of state Wwrone fil death) -tatutes,

és oe 38

(Wilson vs. Tramsdeean ‘Airlines, 121 Fed. Supp.

and cases there cited). However, the basis for sueli

holding is: apparently. that a state wrongful death

statute is a law “of similar import’. The same cin

hot be ’said regarding a state workmen's compensa,

tion Act, which is not based pon any wrong of the

employer but which is’applicable irrespective of fauit

or negligence, “(Calit. Const.. Art. AX, see. 2by Lae

hor Code, Section 36002) LT have not been eited to,

nor have LE found, any case which holds that the High

Seas Death. Act excludes application of a | state work:

men's omnpe nsation act.

I wish to emphasize that) I do not hold, and can

‘hot hold, that) this Commission has jurisdiction of

“the within Injuries to the exelusion of any rights of

action on the part of dependents of the deceased en-

_ployees under the High Seas Death Net. What 1 do.

hold ts siniply that this ‘Commission has jurisdietios

te award workmen's compensation? benefits in- these

cases.

The testimony and déeumentary evidence at th

hearme of February 20, 1998, esti tblish Without con

flict the other ultimate facets embodied in the eeon

panving Findines and Awards. |

From the facets that the eight ‘ernplovees in ques

tien were on a plane, fragments of whieh were later

found floating on the ocean: that the beadios of thre

of the eight emplove es Were recovered 2 and th: it nen

cof the other five. ‘has been heard from. sine Naven

ver 8, 1957, it ean reasonably lie inferted that 2!

0 E i , 2 °

eight ‘of the employees sustained fatal injuries dur-

ing the tlight..

Although King was not) aecttally working during

the flight, since he was aboard transportation bemge

furnished by his employer and was on his wiiy to

the Orient, there to perform certdim cdaties for his

employer, his injury is compensable guider the Cali-

fornia: Workmen's. Compensation Act. (Tanta, Raw

of opal Injuries and Workmen's Compensa-

tion, Vol. 2, page 176, and cases cited tn footnote 11).

Tatiana Crosthwaite Ps conclusively’ presumed to

have been totally dependent upom her father, Eugene |

O. Crosthwaite, there being ne surviving dependent

-parent. (Labor Code, Seetion, 35010b) ).

[Seal]. Robért Ball,

Referee Industrial Accident

Commission.

Affidavit of Service by Mail attached.

[Endorsed]: Filed May 21, 1958,’

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.