Requiem for Moragne: the new uniformity.
The following study analyzes the current maritime law of wrongful death as it pertains to the high seas. The basic issue addressed is whether the general maritime law wrongful death remedy is applicable to the high seas, or whether that area falls under the exclusive governance of the Death On The High Seas Act (DOHSA). (2) This issue will be addressed mostly-but not exclusively-in terms of elements of damage. If it should be determined that the general maritime law applies where death occurs on the high seas, then recovery may be had for nonpecuniary losses, such as loss of society. However, if DOHSA is said to apply to the high seas, to the exclusion of the general maritime law, then recovery is restricted to pecuniary losses only.
One concept which is central to an understanding of the basic issue to be resolved is uniformity of law. The basic reason for constitutionally lodging admiralty jurisdiction in the federal judiciary was to bring about a high degree of uniformity in the rules and principles applicable to maritime commerce. (3) Since maritime commerce exists on both interstate and foreign fronts, there is a great financial business necessity for a significant degree of uniformity in the law governing it.
Another central concept relevant to this study involves the maritime law's traditional concern for those persons injured or killed within its jurisdiction, a concern founded on the humanitarian aspects of this law. (4)
This analysis will proceed as follows: First, it will look briefly at Mobil Oil Corp. v. Higginbotham, (5) a recently decided case which focused on this matter and which served as the impetus for this Article. Second, the history leading up to and including the United States Supreme Court's momentous creation, in 1970, of a remedy for wrongful death under the general maritime law (6) will be traced briefly, concentrating on deaths in state territorial waters, the arena where that history was played out.
While discussing Moragne v. States Marine Lines, Inc., (7) the 1970 Supreme Court case mentioned above, a basic defect in that decision will be elucidated and the effects of this defect will be traced and pointed up from time to time during the remainder of this study. It is the author's contention that this flaw in the Supreme Court's decision contributed, to a great extent, to the confusion that has followed it up to the present day.
Third, an examination of the development of the new wrongful death remedy by the lower courts will be undertaken, once again concentrating on state territorial waters. The principal point of interest here will be to determine whether this new death remedy is developed by relying on DOHSA or whether it is developed in a way inconsistent with DOHSA. If the death remedy under the general maritime law is significantly different from the death remedy provided for in DOHSA, the question of the applicability of the general maritime law to the high seas, our real concern, becomes important. This is so because uniformity of law would be endangered, or even impossible to achieve, if the substantive law applied in territorial waters is different from that applicable on the high seas. The lower courts were split on this question of whether the general maritime law remedy must conform to that of DOHSA. The Supreme Court finally decided the issue in Sea-Land Services, Inc. v. Gaudet, (8) and interpreted the general maritime remedy in a manner thoroughly inconsistent with the statute.
A New Uniformity
Fourth, this study will examine cases dealing with the now relevant inquiry as to the general maritime law remedy's applicability on the high seas. With one significant exception, Barbe v. Drummond, (9) this study will show that the courts were unified in applying the general maritime law remedy to the high seas. In Barbe, however, a majority of the First Circuit Court of Appeals refused to apply the general maritime law to that area because it believed that DOHSA was exclusive there. Although the majority recognized the lack of uniformity and the lack of humanity engendered by its decision, it nevertheless felt powerless to rectify it. The rest of the courts, on the other hand, applied the nonstatutory remedy to the high seas precisely to insure a needed uniformity and humanity in the law of maritime wrongful death.
Finally, this study will thoroughly discuss Higginbotham, in which the Supreme Court held that DOHSA is exclusive on the high seas, and therefore opted for the nonuniform and the non-humane in the law of maritime wrongful death.
The author will then draw general conclusions concerning the state of the law in this area and comment briefly on the internal incompatibility of the three leading Supreme Court decisions on point: Moragne, Gaudet, and Higginbotham. It is the author's thesis that these decisions cannot be reconciled with one another; that, although any one or two of the three may be viewed as correct, when the third is added to the group it necessarily renders them internally inconsistent. The author's point is that, since the individual pieces of this jurisprudential puzzle are individually misleading in that each can stand only when viewed in isolation, the three decisions must be viewed together, and judged only on this basis. Any individual evaluation of only the parts of the whole is at best misleading and at worst completely wrong.
It should be noted that two distinct causes of action are available when a person dies as the result of an allegedly wrongful act or default. The survival action lodges in the estate of the deceased and involves the legal rights that the deceased person could have prosecuted had he not died. These rights are said to "survive" in his estate. What is involved here are alleged wrongs done to the deceased. The wrongful death action, on the other hand, involves the harm caused to certain beneficiaries of the deceased, not to the deceased himself, as the result of his wrongful death. (10) This Article will deal only with wrongful death recovery. Although many of the cases to be discussed also involve survival actions, this aspect, for the most part, is not addressed. The reason for this bias is quite simple: the maritime law as it pertains to survival is either already settled in a reasonable manner in favor of the action under the general maritime law,' (11) or the way to its settlement in that direction is already well-charted. In other words, the problematic area of death in the maritime law today is wrongful death-not survival.
From The Harrisburg to Moragne
If there were to be a competition for "worst decision rendered by the United States Supreme Court in the year 1978," the winner would have to be Mobil Oil Corp. v. Higginbotham, (12) decided on June 5. Higginbotham involved the question of whether the survivors of a person killed on the high seas could recover wrongful death damages for loss of society as well as pecuniary loss. The resolution of this question hinged on the related question of whether DOHSA, which limited recovery to pecuniary loss, was the exclusive remedy for wrongful death occurring on the high seas.
The Court answered the latter question in the affirmative, holding that Congress had indicated its intention in DOHSA to limit recovery to pecuniary loss only (13) in this maritime domain and that the courts have no authority to disregard this mandate. In one sense, this case merely recognized the superiority of Congress' substantive maritime legislative power over the Court's general maritime law creative power; but the effect of this decision on the law of admiralty is far greater.
The 1970 case of Moragne, in which the Court created an action for wrongful death under the general maritime law, was based on the fundamental need for uniformity in the maritime law of wrongful death. (14) Prior to Moragne, there had been no recovery under the general maritime law for deaths which occurred in a state's territorial waters and the practice had developed of borrowing state death statutes in such cases. (15) The lack of uniformity generated by this practice, and the resulting juridical chaos, had led to an intolerable situation.
The significance of Higginbotham is that it may well herald a return to a situation very much like that which existed prior to Moragne: a situation characterized by a severe lack of uniformity (16) in the law of maritime wrongful death. In other words, Higginbotham may in fact have dealt a severe blow to the integrity of Moragne.
Since Moragne was the pivotal decision in this area, and was a response to that which had preceded it, a brief examination of the historical, although not always logical, development of the law prior to Moragne is necessary to elucidate the problems caused by the lack of uniformity that it sought to rectify. In the 1886 case of The Harrisburg, (17) the United States Supreme Court held that, like the common law, the general maritime law provided no remedy for wrongful death. Although that decision was to remain essentially unchanged until 1970, (18) the courts and Congress soon realized that the decision promoted gross inequities and each attempted to circumvent it in its own inimitable fashion. (19)
In 1907, in The Hamilton, (20) the Supreme Court reacted to its own precedent by holding that a state wrongful death statute could apply to a high seas death. In 1920 Congress reacted to the same situation by enacting DOHSA, (21) which created an action for death caused by a "wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State," (22) and thus obviated the necessity of borrowing state death statutes for "necessary and proper" for Congress to legislate because uniform rules of decision in maritime cases are required. Constitutionally required uniformity is the very basis for Congress' substantive maritime legislative power.
In 1920 Congress also enacted the Jones Act, (23) applicable only to seamen and incorporating by reference the provisions of the Federal Employers' Liability Act (FELA). (24) The Jones Act provided for personal injury, wrongful death, and survival actions against the seaman's employer. Thus, after 1920 there existed statutorily-based wrongful death recovery for anyone killed on the high seas and such statutorily-based recovery was also available for seamen, without geographical limitation. But what of the non-seaman killed in a state's territorial waters? The 1907 precedent of The Hamilton was readily available, and in Western Fuel Co. v. Garcia, (25) the Supreme Court relied on it to hold a state statute applicable to the death of a non-seaman which had occurred in territorial waters. (26) As a result, when all states came to embrace wrongful death legislation, the more drastic effects of The Harrisburg (27) seemed to have been neutralized.
If a non-seaman was killed on the high seas, his survivor could recover under DOHSA based on the defendant's wrongful act, neglect, or default. The survivor of a seaman killed on the high seas could recover under the Jones Act based on the employer's fault, and also under DOHSA based on the unseaworthiness of the vessel on which the seaman served. (28) If death occurred in territorial waters, the non-seaman's survivor could recover under the relevant state's wrongful death statute based on negligence. The seaman's survivor, however, was limited to recovery under the Jones Act. The seaman's survivor was not permitted to use a state wrongful death provision because the Supreme Court, in the case of Lindgren v. United States, (29) had held that the state statute could not be borrowed in a seaman's death action because Congress had preempted the field with the Jones Act. (30) The Court also held that a seaman's survivor could not base recovery for death which occurred in territorial waters on unseaworthiness, a strict liability concept, because Congress in the Jones Act had expressed its intention that the seaman's remedy be predicated on negligence or statutory fault. (31) If the seaman's survivor was allowed to borrow the state wrongful death provision, the theory of recovery under it would have to be unseaworthiness because his fault recovery was already statutorily provided for in the Jones Act.
If a seaman was killed on the high seas, the Jones Act did not provide the exclusive source of recovery. (32) Two federal statutes were available; and, since the theories of recovery were different-fault under the Jones Act and unseaworthiness under DOHSA-there appeared to be no problem in applying them both. This situation betrayed a certain lack of uniformity in seamen's remedies depending on whether death occurred in territorial waters or on the high seas. In the former area, recovery could not--be based on unseaworthiness; in the latter it could.
There also existed a lack of uniformity as to deaths of non-seamen occurring on the high seas and those taking place in territorial waters, due to the differing provisions of DOHSA on the one hand and those of the various state wrongful death acts on the other.
Although the basic elements of a state statute and DOHSA might be the same, or similar, in any one case, many of these state statutes differed from the federal death statute. There was also a certain lack of uniformity when non-seamen were killed in territorial waters because the relevant wrongful death provisions of the different states were not necessarily uniform in their application. This problem stemmed from the Garcia (33) decision in which the Court, in a territorial waters death case, borrowed a state wrongful death statute, including the state limitation period, instead of applying the admiralty doctrine of laches. The Court's rationale was that both the remedy and the liability were creatures of the state statute. It stated that "the limitations of the remedy are, therefore, to be treated as limitations of the right." (34) In other words, the lower courts had to take the state statute cum onere. The threats to uniformity in such a scheme are apparent; but, state law could only be borrowed because Garcia had held (35) that the subject of wrongful death was "maritime and local," or "of local concern," and thus no uniformity was required.
An act is "of local concern" when it satisfies the test set forth in Southern Pacific Co. v. Jensen. (36) According to the Jensen test, even though the particular accident is maritime in nature because the locality is maritime (the high seas or the navigable waters of the United States), and the subject matter is maritime, (37) the nature of the occurrence may be such that it is peculiarly of local concern. In other words, there is no need for national uniformity in a maritime location which has been recognized as local under the Jensen test because maritime commerce will not be adversely affected by the application of a variety of non-uniform rules of law, and because there exist no inconsistent principles reflected in federal maritime legislation or general maritime law. This, of course, was a gross fiction which the courts indulged merely to provide a rationale for supplying death recovery where none existed under the maritime law. But, once the fiction was accepted, there was to be no further concern with uniformity, thus the Garcia state "limitations-of-the- remedy" concept was quite consistent with the Garcia local concern holding. (38) It is clear then, that when something was found to be "of local concern," it was not excepted from the uniformity requirement; rather, uniformity was not a relevant consideration in the first place. The fact that all state law qualifications applied when admiralty law borrowed a state's wrongful death statute eventually led to such a gross lack of uniformity that the Court was forced to take drastic action in the 1970 case of Moragne. (39) Particularly in the decade preceding 1970, the decisions concerning state death law in all its detail became so quixotic that the very availability of a remedy for a territorial waters death was called into question.
In 1959, the Supreme Court decided the case of The Tungus v. Skovgaard, (40) marking the beginning of the end of The Harrisburg. In The Tungus, the deceased was a harbor worker who came aboard the vessel to repair a pump. He slipped on some oil that had spilled on the deck and fell into a tank of hot coconut oil and was killed. The Court agreed that the death had been caused by the unseaworthiness of the vessel and that the deceased was a Sieracki seaman;41 but, the Court could not agree on how to apply the relevant state statute. Four members of the Court were of the view that recovery could be based on unseaworthiness. They reached this conclusion by applying the state statute which they interpreted as including un- seaworthiness as a ground for recovery. Justice Frankfurter joined with this group to make up a majority, but felt that the case should have been remanded to the state court for its authoritative determination as to the scope of the state law. The four dissenting members of the Court thought that the state court's construction of the statute was irrelevant. They were of the opinion that the state law should only be used to supply a remedy for the violation of a substantive federal duty (unseaworthiness) already existent under the general maritime law. Therefore, since the right was federal, any state qualification of the state right was irrelevant because the state remedy, not the state right, was being borrowed.
In The Tungus, the dissenters would have abandoned the concept of applying state law with all its qualifications. The majority, on the other hand, took state law as it found it with a theoretical vengeance. (42) According to the majority, the very theory of recovery, unseaworthiness, had to be found in state law in order to justify recovery for a death occurring in state waters on that basis. This, of course, meant that if the particular state statute did not include unseaworthiness as a ground for recovery, the Sieracki seaman's survivor could not recover on that basis. The possibility that some state statutes would include unseaworthiness and that some would not, and the resultant lack of uniformity that this would entail, loomed threateningly ahead.
The Tungus set the stage for a veritable feast of absurdity, which in turn was indulged by the Court. The next dish was served the following year, 1960, in the case of Hess v. United States. (43) Hess involved a death in state waters. Prior to the Hess decision, the State of Oregon had passed an Employers' Liability Law (44) which imposed a higher duty of care on the defendant than did the maritime law. The lower courts held that the state could not constitutionally impose a higher duty of care than that imposed by the supreme federal maritime law. Applying The Tungus, the Supreme Court reversed the lower courts and remanded the case for consideration of the Oregon statute. The majority in Hess consisted of the four dissenters from The Tungus, plus Justices Stewart and Clark from the majority. The ex-dissenters, now majoritarians, expressly stated that they joined the majority under the compulsion of The Tungus, but still believed that it, and of course Hess, were wrong because of Jensen-required uniformity.
The dessert was also served in 1960, in the decision of Goett v. Union Carbide Corp. (45) "The Goett case, decided the same day as Hess, marked a descent into a still lower circle of the Court's private jurisprudential hell." (46) The question in Goett concerned the circuit court's holding that no recovery was available for negligence or un-seaworthiness. The majority, now consisting of just the dissenters from The Tungus and Justice Clark (Justice Stewart had deserted to the dissenting camp), remanded the case in order to learn whether the negligence question had been decided on the basis of state law or federal maritime law.
Once again the dissenters from The Tungus made their declaration of compulsion explicit, just as they had in Hess: THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS AND MR. JUSTICE BRENNAN join this opinion, but solely under compulsion of the Court's ruling in The Tungus False They believe that as long as the view of the law represented by that ruling prevails in the Court, it should be applied evenhandedly, despite the contrary views of some of those originally joining it that state law is the measure of recovery when it helps the defendant, as in The Tungus, and is not ... when it militates against the defendant, as in Hess.... However, they note their continued disagreement with the ruling in The Tungus, and reserve their position as to whether it should be overruled, particularly I in the light of the controversy application of it has engendered among its original subscribers." (47)
According to Professors Gilmore and Black: "In effect eight of the Justices thought that the mandate in Goett was nonsense, a bad joke played by the Tungus dissenters on their now dissenting colleagues." (48) This then was the "intolerable" situation as it existed just prior to Moragne. The courts had indulged the fiction that uniformity was not required in order to provide a remedy for death in territorial waters. After The Tungus, Goett, and Hess, the lack of uniformity had become so great, and the confusion generated by it so gross, that the question was raised whether the maritime law could afford the luxury of its beneficient fiction any longer. If not, two approaches were available to the judiciary. First, the courts could find uniformity in the nonexistence of a remedy for wrongful death in territorial waters. However, since Congress had provided such a remedy for the high seas, this would not really provide uniformity at all, but rather its opposite. It would also be contrary to the traditional humanitarian emphasis of the maritime law. (49) Second, the principle that there is no nonstatutory recovery for wrongful death under the general maritime law could be overturned and such recovery could be jurisprudentially provided; after all, the very denial of recovery under the maritime law had been jurisprudentially created in the first place. (50)
The Supreme Court chose to take the latter route as will be seen from the following discussion of Moragne v. States Marine Lines, Inc.61 Moragne involved the death of a longshoreman in the territorial waters of the State of Florida., Invoking the Florida wrongful death statute,52 the widow of the deceased sued the owner of the vessel upon which her husband had been working for unseaworthiness under the then-extant Sieracki doctrine. (53) The district court dismissed the unseaworthiness claim on the ground that the wrongful death statute of Florida did not include unseaworthiness as a theory of liability. The plaintiff took an interlocutory appeal to the Fifth Circuit Court of Appeals, which in turn used a provision of Florida law (54) to certify the following question to the Florida Supreme Court: Does the Florida death act encompass the maritime doctrine of unseaworthiness? The Florida Supreme Court answered that it did not and the Fifth Circuit affirmed the lower court's dismissal.
Thus the Fifth Circuit's decision gave rise to the stark possibility that the survivor would be unable to recover because no remedy for death was provided by the general maritime law. As a result, the hand of the Supreme Court was forced.
Speaking for a unanimous Court, Justice Harlan overruled The Harrisburg and held that a remedy for wrongful death now existed under the general maritime law. In Moragne, the Court expressly refused to flesh the bones of the new death concept with regard to schedule of beneficiaries, elements of damage, etc. The Court indicated that the lower courts would have to determine these factors in the course of litigation; (55) for purposes of analogy, they could draw from DOHSA, the Jones Act, the Longshoremen's and Harbor Workers' Compensation Act, (56) and the various state wrongful death provisions. Also available was the general maritime law as it pertained to nonfatal injuries. However one determination that was not left to the lower courts to develop in the future was the basic standard that was to be used in the process of selection among the several relevant analogous provisions: uniformity in the law of maritime wrongful death.
According to Justice Harlan, there were anomalies in the prevailing rule of maritime wrongful death which called for the overruling of The Harrisburg. (57) These anomalies gave rise to a certain lack of uniformity in the maritime law. The first such anomaly noted by Justice Harlan was that, within territorial waters, the federal maritime law provided recovery if the victim was merely injured, but not if he died as a result of those injuries. In other words, there was the gross lack of uniformity in treatment of the same violations of federal law depending on the degree of wrong involved. The greater the wrong, the less federal protection available. The second "incongruity" noted by Justice Harlan was that "identical breaches of the duty to provide a seaworthy ship, resulting in death, produce liability outside the three-mile limit ... but not within the territorial waters of a State whose local statute excludes unseaworthiness claims." (58) The third "and assuredly the 'strangest' anomaly" (59) was that a true crewmember covered by the Jones Act was accorded no remedy in territorial waters for death caused by unseaworthiness, whereas a substitute seaman, a long shoreman or harbor worker who was treated as a seaman only because the work he performed had been traditionally performed by, seamen, had a remedy based on unseaworthiness if such was allowed by a relevant state statute. (60) It is apparent that in all these cases the term "anomaly" was used to refer to a lack of uniformity where uniformity, in the traditional Jensen sense, was required. (61) It is the author's contention that the truly strangest "anomaly" of all was the fact that within territorial waters there was no federal remedy for the maritime death of a non-seaman, whereas on the high seas there was such a remedy: DOHSA.
In discussing whether the limitation of DOHSA's coverage to the area beyond the three-mile limit, and the Jones Act coverage to seamen only, indicated a policy precluding the existence of a general federal nonstatutory wrongful death remedy, Justice Harlan noted that when Congress enacted DOHSA the state remedies were either the same as those provided in DOHSA, or even a little more favorable to the plaintiff. He further noted that this balance had been changed when the concept of unseaworthiness had been transformed into a doctrine of strict liability (62) and was thereafter extended to certain longshoremen and harbor workers by the Sieracki case. According to Justice Harlan, the result was a "discrepancy between the remedies for deaths covered by [DOHSA] ... and for deaths that happen to fall within a state wrongful-death statute not encompassing unseaworthiness [which] could not have been foresee A by Congress." (63) What Congress had done in DOHSA was to allow adequate state remedies to exist; it had never intended to forbid the formulation of further maritime remedies which would be required to effectuate new duties imposed by a dynamic maritime law. There was no "instruction to the federal courts that deaths in territorial waters, caused by breaches of the evolving duty of seaworthiness, must be damnum absque injuria unless the States expand[ed] their remedies to match the scope of the federal duty." (64)
Throughout his opinion in Moragne, Justice Harlan often recognized the central importance of uniformity. For instance, he said:
Our recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies, removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts.... Such uniformity not only will further the concerns of both of the 1920 Acts but also will give effect to the constitutionally based principle that federal admiralty law should be "a system of law coextensive with, and operating uniformly in, the whole country." (65)
This clearly illustrates the fact that a major conceptual and practical basis for Moragne was the essential requirement of uniformity. In closing, the Court stated: "We conclude that [DOSHA] was not intended to preclude the availability of a remedy for wrongful death under general maritime law in situations not covered by the Act." (66)
A reading of the Moragne opinion establishes that what Justice Harlan had in mind was that the new general maritime law action would apply where needed, just as DOHSA had been limited to the high seas because it had not been needed in territorial waters in 1920 due to the availability of state wrongful death legislation there. And, the area where this new action was needed was where The Tungus and its progeny had made the application of a wrongful death remedy in the admiralty so problematical: territorial waters. It is the author's view that in all probability Justice Harlan intended the phrase "in situations not covered by the Act" to be taken quite literally and to preclude application of Moragne to the high seas. (67) Of course, he probably also had in mind that the lower courts, and the Supreme Court, would interpret the new action in such a way as to make it consistent with DOHSA and the Jones Act. If this was done, there would be no reason to apply Moragne on the high seas. But if the details of the new action were construed in such a way as to make it inconsistent with DOHSA, then perhaps the only way to secure uniformity (the fundamental basis of the Moragne decision) would be to apply the general maritime law action on the high seas. Whether it would ever be necessary to apply Moragne on the high seas would depend on how the courts chose to interpret Moragne in the future.
Thus Moragne created an action for wrongful death under the general nonstatutory maritime law. The Court thereby assured that state law would not have to be borrowed in the future. Thus federal maritime law would uniformly rule the waves. As previously stated, had the Court then fleshed the skeleton of the Moragne action by looking to DOHSA and the Jones Act, no lack of substantial uniformity would have resulted from the application of both DOHSA and Moragne. However, because the Court chose to allow lower courts to flesh the skeleton of Moragne, it became possible that Moragne would be interpreted in disregard of the Jones Act and DOHSA, resulting in a lack of uniformity. In other words, if the lower courts worked out the details of the general maritime law action in a manner inconsistent with the federal death statutes, then, depending on the situs of the wrongful conduct, different substantive laws with widely varying details would result in a lack of uniformity, the antithesis of what was intended by Moragne. This would, in fact, be a reversion to the pre-Moragne state of the law.
It is suggested that the roots of this possibility are found in Moragne itself. (68) It is the author's view that the Moragne opinion is fundamentally flawed (69) and that this flaw accounts for the uncertain state of maritime wrongful death law since 1970. Regardless of his intent, Justice Harlan failed to provide any clear guide for the lower courts, and, when left to their own devices, these courts developed the general maritime death remedy in a twisted and conflicting manner. Although the specifics of the new remedy were properly left for development by the lower courts, Justice Harlan should have provided a single, fairly understandable policy strain in the Moragne opinion which would serve as a guide to the lower courts. He should have set forth a standard by which the specific elements of the general maritime law wrongful death action could be determined uniformly. However, Justice Harlan's real vice was that he supplied too much in Moragne, not too little. Although it is true that the basic, underlying principle of Moragne is uniformity in the law of maritime death, in enunciating this principle Justice Harlan couched the opinion in terms of another ideal as well. (70) Therefore, two policy strains run throughout the entire opinion: the fundamental concern for uniformity in the maritime law of wrongful death, (71) and the humanitarian concern for those killed within the admiralty jurisdiction. (72) If these two policies were always consistent with one another there would have been no problem. But they are not. In fact, in the context of maritime wrongful death law as it existed in 1970, these two policies were inconsistent with each other. This was true because in 1970, DOHSA and the Jones Act provided (and still provide) somewhat restricted recovery for death. (73) Because of the restrictive nature of these provisions, they were (and are) in this sense in conflict with the humanitarian concerns of the law of admiralty. (74) Therefore, in Moragne, Justice Harlan gave inconsistent mandates to the lower courts: Be liberal with this remedial action (i.e., be humanitarian) and at the same time be conservative (i.e., be uniform). It was this basic flaw in Moragne which was to give rise to the case of SeaLand Services, Inc. v. Gaudet,15 the case in which the Supreme Court interpreted the Moragne wrongful death remedy in a manner to make it radically different from DOHSA by finding nonpecuniary damages available under Moragne. While it is true that Gaudet was the immediate cause of the lack of uniformity between Moragne and the federal death statutes, (76) it was Moragne that created the problem to which Gaudet was merely a response. (77)
Following Moragne, the lower courts could not agree whether to opt for humanity or for uniformity as a guide in fleshing the bare bones of the death action. Both concepts had been validated in that case, thus the circuits came into inevitable conflict: a conflict the Supreme Court was forced to resolve in Gaudet. Since the dual policies of Moragne were, in the Gaudet context, quite inconsistent, the 'Court had to opt for one horn, only, of the Moragne double dilemma. The Court chose humanity and thereby sacrificed uniformity. In Gaudet, (78) the deceased had recovered for his injuries during his lifetime. After his death, Mr. Gaudet's widow sought recovery through the general maritime wrongful death action. Had the Court ruled in accord with DOHSA and the Jones Act, it is possible that the wrongful death action would have been precluded by the personal injury recovery obtained during, the lifetime of the deceased, and no nonpecuniary recovery would have been allowed. As a result of such rulings, the humanitarian principle would clearly have been sacrificed to the uniformity principle. If the Court had ignored the federal statutes and allowed the death action, and also allowed nonpecuniary recovery, the uniformity principle would clearly have been sacrificed to the humanitarian principle. The Court was forced-by Moragne-to make a choice. It held that the widow's wrongful death action was not precluded by the deceased's recovery during his lifetime.
It is submitted that had Justice Harlan and the Court done a more acceptable job in Moragne, the initial confusion of the lower courts, to which Gaudet was a response, and to which Higginbotham is merely the latest response, never would have surfaced. This study will now briefly examine that "initial confusion."
From Moragne to Gaudet
In the period between Moragne and Gaudet, a considerable jurisprudence developed in the lower courts concerning the elements of damage recoverable in territorial waters deaths under the new Moragne-general maritime law wrongful death concept. (79) This was to become the central issue in the broader question of Moragne's extra-territorial applicability. The resolution of this issue caused a split in the lower courts which can be summarized as follows:
whether elements of damages in territorial waters deaths should be restricted in accordance with the Jones Act and DOHSA, or whether a more liberal approach should be taken under the newly-created general maritime law action. (80)
As stated previously, Justice Harlan intentionally left many issues unresolved in Moragne. He said:
" If still other subsidiary issues should require resolution, such as particular questions of the measure of damages, the courts will not be without persuasive analogy for guidance. Both [DOHSA] and the numerous state wrongful-death acts have been implemented with success for decades. The experience thus built up counsels that a suit for wrongful death raises no problems unlike those that have long been grist for the judicial mill." (81)
Shortly thereafter, the "judicial mill" commenced operations. The problem was that there were many judicial mills, and that the grist fed into them was not standardized, but was as variegated as were the mills themselves.
The courts apparently agreed on one thing: recovery under the general maritime law wrongful death action was available for pecuniary loss resulting from loss of support, that is, the financial contributions the beneficiaries might have reasonably expected (82) had decedent not been killed. Since such pecuniary loss was recoverable under DOHSA, the Jones Act, and state wrongful death statutes, agreement on this point was not surprising, since it was in accord with either interpretation of the Moragne mandate.
The disagreement among the lower courts developed as a result of the inconsistencies between the federal statutes on the one hand and the various state wrongful death acts on the other, principally as to the measure of damages. This developed into a line of demarcation between the two opposed camps: those in favor of filling in the bare outline of the remedy drawn in Moragne by looking to the provisions of the various state wrongful death acts, which for the most part allow nonpecuniary damages, versus those who wanted to sketch the details of the remedy by looking to DOHSA (and the Jones Act), which allow only pecuniary damages. The former group, which can be characterized as state law-oriented, followed the banner of humanitarianism; while the latter group, which can be characterized as federal law-oriented, followed the banner of uniformity. The following cases are illustrative of the two differing approaches.
Greene v. Vantage Steamship Corp. (83) represented the state death acts approach. This case involved an unseaworthiness suit based on the death of a longshoreman in territorial waters. The court refused to limit recovery to pecuniary damages; instead, it looked for the most "appropriate" measure of damages and found that, although state laws did not control the question, they did provide an indication of what was becoming the generally acceptable standard of damages. In response to the uniformity argument, the court was of the opinion that uniformity of liability, but not uniformity in the measure and elements of damages, was constitutionally required under Jensen and Moragne. The court recognized that "both the sixth and ninth circuits felt that the proper measure was that embodied in DOHSA," (84) and that "[t]he basis for Vantage's argument that damages for this new cause of action are limited to pecuniary loss is the principle that general maritime law be uniform." (85) The court also noted that "Vantage's position [was] not without support," (86) but nevertheless concluded: "We agree that Moragne was concerned with establishing a uniform basis of liability for wrongful death occurring on territorial waters, but that that decision should not be read as requiring that damages for this new cause of action be controlled by DOHSA." (87) The court correctly interpreted the Jensen case (88) as forbidding the application of state law where there would be an actual conflict with federal maritime law, statutory or general; but then went on to state that "[here there is no conflict between state and federal law, because as yet there is no federal law on the issue."89 Just as Justice Harlan in Moragne had remarked that all states had enacted death legislation which had thus become a part of the common law to be looked to in determining what the public policy of the United States was in 1970, (90) the Greene court stated that "this [i.e., state] body of law must be examined [in the same way as in Moragne] to determine what the proper measure of damages should be." (91) The court went on to say that "we do not give them [state wrongful death statutes] preference over federal law, but rather we view them as indicators of what has come to be the accepted measure of damages in such actions." (92)
The court then looked to the legislative history of DOHSA and found that, by excluding it from territorial waters, Congress had intended that the remedy be disuniform and that it had endorsed "remedies on territorial waters which differed from those provided for death on the high seas." (93)
Thus, the decision in Greene reflected the humanitarian principle of Moragne. Since the court did not interpret Moragne as mandating uniformity of the elements of recoverable damage, however, perhaps the court did not actually choose humanitarianism over uniformity. At any rate, the humanitarian policy prevailed.
Another case which opted for Moragne's humanitarian policy was In re Sincere Navigation Corp. (94) This case arose as the result of the deaths of members of the crew of a Coast Guard vessel which sank in a collision which occurred in Louisiana territorial waters. Initially the court recognized that neither the Jones Act, FELA, nor DOHSA allows recovery for the emotional distress of survivors. However it found a trend in the various states of allowing such recovery under the death statutes themselves, or by way of increased verdicts for "pecuniary" damages where the pecuniary limitation prevailed. The district judge also looked to maritime and state personal injury law and found that such losses were compensated as injuries. Therefore, the court held that survivor's emotional distress was a proper item of recovery under Moragne. That the significant implications of this holding were clearly recognized is evident in the court's statement that "[t]his conclusion may conflict with Moragne's goal of uniformity of recovery for all who perish on navigable waters." (95) However the court viewed the resulting lack of uniformity as the price that had to be paid for choosing Moragne's humanitarian horn. (96)
In Dennis v. Central Gulf Steamship Corp., (97) the court had to decide whether damages were available under Moragne for a non-seaman decedent's pain and suffering and for funeral expenses, both assumed to be nonpecuniary items of recovery. The death had occurred in state territorial waters. The court looked to state wrongful death statutes and found that most of them allowed pain and suffering under survival provisions and that most allowed funeral expenses also. Therefore the court reasoned that no real lack of uniformity would be created by allowing these elements of damages under Moragne because, even though not allowed under DOHSA, state survival provisions had been universally 'used to supplement DOHSA where deaths had occurred on the high seas. And, since state survival provisions were previously applied to territorial waters deaths before Moragne, "it would be anomalous," according to the court, "to take away a pre-Moragne remedy which was almost universally available by the application of state survival statutes when there [is] no federal maritime policy against such recovery." (98) Further, this would go against the humanitarian aspect of Moragne without adding to the uniformity aspect in any significant way. Finally the court also found that the general maritime law pertaining to personal injuries allowed recovery for pain and suffering.
Thus, the humanitarian aspect of Moragne prevailed, to some extent, over the uniformity aspect. But once again the court did not view its decision as violating Moragne's uniformity mandate at all. According to the court: "The 'uniformity' that is fundamental in maritime law has to do with the bases of liability, not with differing elements of damages that may be recoverable in differing circum- stances with differing classes of beneficiaries." (99)
In In re Farrell Lines, Inc., (100) the parents of a seaman killed in Louisiana waters sued the shipowner under the general maritime law for unseaworthiness and under the Jones Act for negligence. The general maritime law and Jones Act claims were considered together because, according to the court, "the measure of damages under the general maritime law is at least as broad, and perhaps a good deal broader, than the Jones Act False" (101) In effect, this meant that only the general maritime law would be considered because the Jones Act was irrelevant since it was narrower than Moragne. The court followed Dennis and In re Sincere Navigation, and allowed recovery for nonpecuniary items of damage, rejecting the analogy to DOHSA and the Jones Act.
A case which does not fit comfortably into either of the categories, i.e., state law oriented or federal law oriented, is Canal Barge Co. v. Griffith, (102) in which the pilot of a tugboat was killed when the tug collided with a bridge. The accident occurred in state territorial waters. The vessel owner petitioned for limitation of liability. The pilot's widow filed a claim for wrongful death in the limitation proceeding based on the Jones Act and the general maritime law on theories of negligence and unseaworthiness respectively. The court found in the widow's favor on both counts. Plaintiff had demanded damages for loss of love and affection (survivor's grief) (103) under her general maritime law claim (no such recovery was available, of course, under the Jones Act). The district court refused to grant such recovery based on the analogy it drew between the general maritime law and DOSHA (and the Jones Act), and based on the need for uniformity in the law maritime. (104)
On appeal, the Fifth Circuit Court of Appeals read Moragne as endorsing a process by which the lower courts should look to the general maritime law as it relates to injuries, then to the federal maritime death statutes, and then to state wrongful death acts. The court found that neither the general maritime law, the Jones Act, nor DOHSA allow such damages. It was also determined that there was no definite trend in allowing recovery for loss of love and affection under state wrongful death acts. Accordingly, this nonpecuniary element of damages was disallowed.
It should be noted that the court did look to state statutes but simply found them unpersuasive on the issue at hand. The court concluded that "the current rationales underlying recover ability for survivor's grief damages in state death actions are too divergent and ill defined to override the policies against recoverability manifested in general maritime law [as it pertains to injuries] and in the federal statutes." (105) But the court went on to make perfectly clear that this conclusion (106) is not based on a mandate that the Moragne recovery be identical in all respects to general maritime law and to federal maritime statutes. "Absolute uniformity is neither required nor desirable.... Our conclusion results rather from measuring the federal policies manifested in the federal statutes and general maritime law against those policies expressed in the state experience and relevant to maritime problems." (107) In following this line of reasoning, the Fifth Circuit avoided choosing one piece of the Moragne puzzle over the other. In effect, the court declared that it would decide each case by applying either state or federal statutes depending upon the particular policies reflected therein.
Since the Canal Barge case is difficult to classify, it serves as a transition to those cases which opted for the federal statutes and uniformity. (108)
A leading case denying the relevance of state wrongful death statutes, Petition of United States Steel Corp., (109) involved death claims resulting from the sinking of a vessel due to a collision which occurred in territorial waters of the State of Michigan. The survivors of the five seamen killed in the accident sued the owners of both vessels: the employer shipowner under the Jones Act, and the non-employer shipowner under the Michigan wrongful death statute and the Moragne-general maritime law theory. The survivors' claims against the employer for pecuniary loss, loss of widow's guidance, and conscious pain and suffering were based on the Jones Act, and their claims against the non-employer for loss of consortium and loss of care and guidance to adult children were based on the state statute and the general maritime law. The court viewed both the general maritime law and the state wrongful death statute as allowing recovery for pecuniary loss only. Therefore the issue was whether these elements of damages: loss of consortium and loss of guidance to adult children, were pecuniary in nature. Under the general maritime law these damages were regarded as nonpecuniary, (110) but under the state act they were regarded as pecuniary. (111) The court said:
Recognition of a right of recovery for wrongful death under the general maritime law strongly dictates that in order to promote the uniformity and supremacy of the maritime law ... the measure of recovery must be governed by the principles of that law where, as here, there is a conflict between the damages recoverable under the general maritime law ... and those recoverable under state law. (112)
The court did not look to DOHSA, rather it looked to the general maritime law as it applied to personal injuries. Nevertheless it is clear that the uniformity standard of Moragne prevailed over the humanitarian standard (113) also set forth in that case.
In Mungin v. Calmar Steamship Corp., (114) the deceased was a longshoreman killed while loading a vessel. His illegitimate children sued under the general maritime law on the basis of a breach of the warranty of seaworthiness. Defendant objected on the ground that illegitimate children lack standing to sue under Moragne. The court stated:
"It appears to this Court that the desired uniformity in the maritime law that was the basis for the decision in Moragne would be diluted if guidance were sought from any authority other than existing statutory rights to recover under maritime law. Consequently, this Court concludes that those entitled to recover under .. .[DOHSA and the Jones Act] are likewise entitled to recover under Moragne." (115)
The court held that illegitimate children could recover under the federal statutes. The court also opted for uniformity in recovery and allowed pecuniary damages only. (116)
In Futch v. Midland Enterprises, Inc., (117) the court held, by analogy to the Jones Act, DOHSA, and the Longshoremen's and Harbor Workers' Compensation Act, (118) that the deceased seaman's father had no standing to sue under the general maritime law because he was not the personal representative of the deceased. In the course of its short opinion the court said:
"The advantages inherent to a uniform rule as to who may sue or settle a claim for a maritime death are so obvious as to require no enumeration. In the absence of any persuasive reason for the introduction of an anomaly into the maritime law, the consistent pattern of the Congressional enactments controls." (119) In Green v. Ross, (120) the court was faced with the task of determining the schedule of beneficiaries and elements of damages under Moragne. That the problem posed by Moragne was clearly recognized is evident in the court's statement that "these two themes of liberality and uniformity must therefore be reconciled." (121) The court found that the beneficiaries in Green corresponded with potential beneficiaries in DOHSA and were thus permitted to sue for recovery; therefore the court opted for Moragne's theme of uniformity. In keeping with this theme, the court went on to state that "recovery sought for loss of consortium and companionship is ... [following the Dennis case] 'inimical to the maritime law,' and must therefore be stricken." (122) The court here cited, inter alia, In re United States Steel Corp. (123) as authority.
In re Cambria Steamship Co. (124) involved wrongful death actions based on unseaworthiness. The suits were brought by the representatives of the surviving brothers and sisters of the deceased seamen because decedents were not survived by spouses, parents, or children. The deaths had occurred in state territorial waters. The issues before the court were the schedule of beneficiaries and elements of damages under the Moragne action. The court in the instant case did not feel that Moragne absolutely required that the federal statutes be followed, as is evidenced by its statement:
The Court [in Moragne] stated that no accommodation [between the Moragne action and the federal statutes] was necessary. Congress never intended that either of the two statutes preempt any portion of the field of admiralty damages.... Thus, the determinations of the measure of damages and class of beneficiaries entitled to recovery under a Moragne claim must not rest solely upon their consistency with the Jones Act and [DOHSAI provisions. (125)
But the court continued: "On the other hand, we cannot disregard these two federal statutes altogether in determining the measure of damages and class of beneficiaries in Moragne-type claims. We must consider these generally along with the various state wrongful-death statutes in seeking to resolve these two issues." (126) How was the court to choose among the Moragne-authorized sources? In answering this question the court stated that three principles must be kept in mind: (1) It is not necessary to accommodate the federal death statutes; (2) "[tlhe standards that are adopted must be uniform in application to all cases decided under admiralty jurisdiction;" (127) and (3) the court must consider congressional and legislative policies reflected in existing wrongful death statutes (state and federal) "as articulating generally-accepted objects of concern to our society and generally-accepted methods of protecting those objects of concern." (128) The court found that it-must look for the basic policy reflected in the various statutory enactments in order to find the "common law" of the legislation, a procedure suggested by Justice Harlan in Moragne: (129)
We must, therefore, consider various state and federal wrongful-death statutes as the expression of a societal policy of concern for a given class of individuals and as a desire to provide them with certain measure of protection. Thus, we must examine these various statutes and determine whether we can detect a general policy of concern for certain individuals, as opposed to others, and a general desire to provide one measure of protection as opposed to another. (130)
After examining the various state and federal wrongful death statutes in this light, the court concluded that the "federal ... statutes must be weighed heavily in our determination" (131) because they are more broadly based, deal with maritime subjects, reflect a long and consistent congressional policy, and are more internally consistent than many of the state statutes. The court found that these statutes were consistent in excluding nondependent relatives from the class of beneficiaries. Such survivors had no firm expectancies dependent on the continued life of the deceased; whereas, the dependent relative suffered a change in his life situation because of the death of his benefactor. Therefore the court stated:
We have determined that the class of beneficiaries defined by [DOHSAI provides the most appropriate, generally-accepted, and logically-consistent class of beneficiaries for maritime wrongful death claims. We have determined to utilize that definition in deciding all Moragne-type claims asserted in this litigation. (132)
The court also concluded that the pecuniary loss standard of DOHSA and the Jones Act would be applied to Moragne claims. It admitted that a majority of the state statutes permit recovery for loss of love and affection and survivors' grief, but found that there were good reasons for looking to the federal statutes here. In so finding the court stated:
We must weigh the long-standing federal policy in this area more heavily than the various state statutes which have allowed a recovery for loss of love and affection and grief and mental anguish. To hold otherwise would be to disregard the need for uniformity which is expressly sought in the Moragne decision. (133)
Thus, the decision as to items of damage was based exclusively on the need for uniformity as dictated by Moragne. Admittedly the author is somewhat confused by this result in light of f.he court's previous statement that "the determination should not be tailored to accommodate the operation of the federal wrongful-death statutes." (134) It would seem that this statement indicates the exclusion of uniformity as a determinant of the source of law which the court should consider. But, in any event, the federal statutes were considered and the policy of uniformity prevailed.
Strickland v. Nutt (135) involved the territorial waters death of the pilot of a motorboat. The state court looked to DOHSA and the Jones Act to determine the elements of damages believing that Moragne and uniformity so required. (136) In keeping with this belief the court stated: "The Moragne case, with the desire for uniformity in maritime death actions announced therein, precludes loss of love and affection as an element of damage here." (137) In Strickland even though a seaman was involved, the court allowed recovery under Moragne and only relied upon the Jones Act to sketch the details of the general maritime law action.
From the foregoing cases it is apparent that a definite conflict had developed in the lower district and circuit courts as to the precise meaning of the Moragne mandate. This very conflict precluded the attainment of one of the fundamental goals of Moragne: uniformity. In Sea-Land Services, Inc. v. Gaudet, (138) the Supreme Court attempted to resolve this conflict but unfortunately left unresolved another question which had to be answered before uniformity could be achieved. As will be seen, Gaudet left Moragne and DOHSA conceptually divorced; thus it appeared that whether non-pecuniary damages were recoverable depended on the fortuity of whether the wrongful act occurred on territorial waters or on the high seas. (139) As stated previously, one of the major reasons the general maritime wrongful death action had been created in Moragne was to obviate such fortuities. The significance of Gaudet then is that it raised a new issue: whether Moragne-Gaudet applied on the high seas and-if so-how? The resolution of this issue was to become the pivotal point in the determination of whether uniformity would exist in the law of maritime wrongful death damages.
Gaudet involved a longshoreman who had been injured in Louisiana waters. Mr. Gaudet successfully sued the shipowner as a Sieracki-seaman for unseaworthiness and recovered $140,000. (140) He then died from his injuries and his widow sued the shipowner under Moragne for wrongful death. The district court dismissed on res judicata grounds (141) but was reversed by the Fifth Circuit. The Supreme Court granted certiorari and affirmed.
In referring to the fact that the decedent had already recovered for his personal injuries before he died, Justice Brennan, speaking for a majority of the Court, recognized that a "majority of courts interpreting state and federal wrongful-death statutes have held that an action for wrongful death is barred by the decedent's recovery for injuries during his lifetime." (142) But the Court held that such holdings were not based on general concepts of res judicata, rather they were based on limitations found in the very statutes which created the wrongful death actions. The Moragne general maritime law action, not being a creature of statute, suffered no such limitation.
Justice Brennan also recognized that allowing the wrongful death action in these situations would conflict with the Jones Act because FELA, which had been incorporated into the Jones Act, had been interpreted as not allowing a survivor to recover in a wrongful death action when the deceased had received a judgment during his lifetime.143 But Justice Brennan did not view Gaudet as necessarily in conflict with DOHSA on this point:
Significantly, [DOHSAJ, the only federal statute "that deals specifically and exclusively with actions for wrongful death ... for breaches of the duties imposed by general maritime law," ... has not been interpreted, as FELA has been, to bar wrongful death recovery in cases where the decedent has already recovered during his lifetime for his personal injuries." (144)
In addressing the question of whether the wrongful death recovery would duplicate all or part of the personal injury recovery, Justice Brennan discussed the various items of damage under each.145 It was at this point that he held that, under Moragne, the plaintiff could recover for loss of support, services, society, and funeral expenses.
The first two items, support and services, are recoverable under DOHSA. Loss of society (146) is not recoverable under DOHSA. (147) Although the Court expressly recognized that DOHSA does not permit recovery for loss of society, (although it does allow recovery for support and services), the Court held that a survivor could recover for loss of society under Moragne because:
A clear majority of States ... have rejected ... a narrow view of damages, and, either by express statutory provision or by judicial construction, permit recovery for loss of society.... Thus, our decision to permit recovery for loss of society aligns the maritime wrongful-death remedy with a majority of state wrongful-death statutes. But in any event, our decision is compelled if we are to shape the remedy to comport with the humanitarian policy of the maritime law to show "special solicitude" for those who are injured within its jurisdiction. (148)
The Court also allowed funeral expenses where the dependents had either paid or were obligated to pay them because, once again, a majority of states allowed them under the state death statutes, and also because such expenses were recoverable under the general maritime law prior to The Harrisburg. (149) The Court thus stated: "We therefore find no persuasive reason for not following the earlier admiralty rule and thus hold that funeral expenses are compensable" (150) in spite of the recognition that "there is a conflict over whether funeral expenses are compensable under [DOHSA]. (151)
Thus, the Court in Gaudet expressly opted for Moragne's humanitarian strain. (152) Of course, whether this would be consistent with the uniformity concept remained to be seen. If Moragne was found to be applicable on the high seas as well as in territorial waters, then a substantial degree of uniformity could still be achieved.
Gaudet was a five to four decision. The major criticism leveled at the majority's opinion by the dissenting justices was that the majority had violated the uniformity concept underlying Moragne. Justice Powell wrote for the dissenters that the "reference in Moragne to the 'strong concern for uniformity' in admiralty law ... often repeated and often related to congressional policies underlying the Jones Act and [DOHSA] ... was not an expression of concern solely for intellectual consistency," (153) rather it would bring about that uniform federal admiralty law which the Constitution envisages. "But the lack of uniformity produced by the majority's holding should be evident." (154) If Moragne-Gaudet applied only in territorial waters and DOHSA applied exclusively on the high seas then, after Gaudet, the more liberal damages would only be recoverable in territorial waters and not on the high seas. But the geographical application of Moragne was, at this time, not clear. Justice Harlan had not expressly limited the application of Moragne to territorial waters except in one oblique reference. (155) However, despite the fact that the majority's holding in Gaudet did not necessarily preclude the possibility of achieving uniformity in the future, the dissenters characterized the allowance of recovery for loss of society as "a clear example of the majority's repudiation of the congressional purposes expressed in the two federal maritime wrongful-death statutes." (156) The dissent further stated:
Moreover, these well-established damages principles under the two federal maritime wrongful-death statutes, coupled with a concern for uniformity in admiralty law, have led most lower courts that have taken part in the continuing development of the Moragne cause of action to conclude that the affection-related damages endorsed by the Court are not recoverable under Moragne. (157)
So in one sense Moragne had left the question of its territorial applicability open; in another very important sense, however, it had not. As previously suggested, the fundamental rationale underlying Moragne, and its overruling of The Harrisburg, was the need for maritime uniformity in the death area. (158) Before Gaudet, there were two basic ways to insure this uniformity. Moragne could be limited to territorial waters and DOHSA could be used to flesh out the details of the doctrine. This would insure a high degree of desired identity between the general maritime law and DOHSA; but, it would also represent a disavowal of Moragne's humanitarian policy. In the alternative, Moragne could be applied on the high seas either to supplement or supplant DOHSA and both policies of Moragne could be carried forward. However, after Gaudet, it became impossible to achieve substantial uniformity via the former method, unless of course the Court chose to overrule Gaudet; thus, only the latter alternative remained viable.
As suggested above, the viability of this latter alternative could be sustained under two theories: DOHSA could be supplemented or DOHSA could be supplanted. Moragne-Gaudet, if applicable on the high seas, could be viewed as compatible with DOHSA if the pecuniary loss limitations of DOHSA (159) were not interpreted to preclude supplementation of DOHSA with other laws providing for non-pecuniary losses. The more radical view, however, was that DOHSA, after Moragne-Gaudet, had lost all usefulness and viability and should be supplanted, rather than supplemented, by the general maritime law concept.
Prior to the Court's decision in Gaudet, Professors Gilmore and Black were already adherents of this more radical theory. These commentators viewed Moragne as so broad in its implications as to supplant DOHSA by rendering that statute useless and unnecessary. They were of the opinion that Moragne had "in effect ... reduced both DOHSA [and the Jones Act] ... to the level of non-statutory Restatements." (160) Subsequently, in their analysis of Gaudet, Professors Gilmore and Black state that that decision, by ignoring DOHSA, took this idea much further, and that with Gaudet "all the state statutes seemed to have joined the federal statutes on the scrap heap." (161) According to Professors Gilmore and Black, it followed that [t]he maritime law death remedy, as explicated in Gaudet, is now more comprehensive and provides for a greater recovery than had previously been available under the federal death statutes or under most state death statutes. From the point of view of surviving beneficiaries, there are now obvious advantages if their decedent's fatal accident occurs on navigable waters (or at all events within the admiralty jurisdiction) rather than on an interstate highway. (162)
In reality there is no practical difference between the supplementation and supplanting theories. The result under either theory is that, as far as damages are concerned, both pecuniary and nonpecuniary damages are recoverable in high seas deaths.
The Court in Gaudet only went as far as holding that pecuniary and nonpecuniary damages (with the exception of damages for societal grief and anguish) were recoverable in territorial waters. It did not go a step further and say, as Professors Gilmore and Black did, that such damages were recoverable on the high seas as well. (163) This is because the issue was not before the Court since Mr. Gaudet had died as a result of injuries sustained in territorial waters. Nevertheless, Gaudet remained significant as to this issue because, if the uniformity mandate of Moragne was to be achieved, the question of Moragne-Gaudet's extra-territorial application would eventually have to be resolved.
From Gaudet to Higginbotham
The question, at this point, became: How would the lower courts deal with this Supreme Court-created puzzle in a high seas context? There were two alternatives: limit Moragne-Gaudet to territorial waters and simply concede the lack of uniformity; or, extend Moragne-Gaudet to all admiralty waters, including the high seas, and once-again establish basic uniformity in the area. It is obvious from the previous discussion that such an extension could only be achieved at the expense of DOHSA. However, if the lower courts opted for the second alternative, they would establish the more liberal, plaintiff-oriented principles of a uniform federal law of maritime wrongful death. Thus, the courts could be true to both principles of Moragne, uniformity and humanitarianism, at the same time, and could salvage Justice Harlan and Moragne.
After Moragne was decided, but prior to the decision in Gaudet, several lower courts had dealt with the question of Moragne's applicability to the high seas. This study will look briefly at these pre-Gaudet cases and then deal with the lower court decisions which followed Gaudet and which were decided in full light of the significance of the question of Moragne's geographical applicability.
In Sennett v. Shell Oil Co., (164) the court held that Moragne applied to the high seas. However, the court also held that DOHSA and the Jones Act did not apply because the Oceanographic Research Law (165) precluded their application. Therefore, on the facts of the case, the question of whether Moragne applied on the high seas was resolved in an instance when neither DOHSA nor the Jones Act applied there. But the court did not expressly so limit its opinion: "Though Moragne dealt with the problem of death in coastal waters, which was uniquely complex, nothing in the opinion suggests that the maritime right is to be denied those whose death is brought about wrongfully on the High Seas." (166)
Relying on the language in Moragne, whereby Justice Harlan had indicated that the existence of the Jones Act would not preclude a seaman from recovery under Moragne in territorial waters, the Sennett court said that the same theory should prevail between DOHSA and the general maritime law death action on the high seas. Justice Harlan's quoted language, however, was couched in terms of the need for uniformity. Justice Harlan was quoted by the Sennett court as saying that the "existence of a maritime remedy for deaths of seamen in territorial waters will further, rather than hinder, 'uniformity in the exercise of admiralty jurisdiction." (167)
Of course, it is true that allowing seamen to recover under Moragne on the high seas will not defeat uniformity if-and only if-Moragne is interpreted by relying on the Jones Act and DOHSA or DOHSA and the Jones Act are supplemented or supplanted by Moragne. This point was precisely left open by the Sennett court: "Should there be a conflict between schedule of beneficiaries or the recoverable items of damage under the Moragne right and [DOHSA], there is no need to consider here which would control." (168) Yes, no need precisely because DOHSA and the Jones Act had already been held inapplicable.
Nye v. A/S DIS Svendborg (169) involved a non-seaman killed on the high seas. The court held that the general maritime law action could be brought at law under the saving to suitors' clause when 'diversity of citizenship was present. Although the action was not brought under DOHSA, the court stated:
That Act may afford analogy in determining the schedule of beneficiaries False And I believe we may also resort to cases under it for the elements of damage in an action for death on the high seas, since there is no logical reason for determining damages differently where the action is on the law side rather than in admiralty. (170)
The court found that recovery could be had, under this standard, inter alia, for funeral expenses and pain and suffering, but denied recovery for loss of consortium. So the only thing accomplished in Nye by applying Moragne to the high seas was to obtain jurisdiction at law and thereby obtain a jury.
Another pre-Gaudet case involving a death on the high seas was McPherson v. Steamship South African Pioneer, (171) in which a seaman was killed as the result of a marine collision. The shipowner /employer of the deceased was sued under the Jones Act and the general maritime law. The non-employer owner was sued under DOHSA and the general maritime law. One question before the court was whether a bigamous spouse had the right to recover since she had been dependent upon the deceased when he died. The court held that such a non-relative, even though actually dependent upon the deceased at the time of his death, could not recover under DOHSA or the Jones Act. Further, none of the plaintiffs (172) were allowed to recover under Moragne because "[Moragne] permits a recovery for death occasioned by unseaworthiness, unaccompanied by any act of negligence, under general maritime law where the death occurs in the jurisdictional waters of a state which does not recognize unseaworthiness as a basis for recovery under a state wrongful death statute." (173)
The claim against the nonemployer vessel owner, a South African corporation, was maintained because it was uncertain whether South African law would provide a remedy to such a dependent nonrelative. The South African law was viewed as applicable under the foreign law saving provision of DOHSA. (174)
As previously stated, these cases were pre-Gaudet, and thus the importance of Moragne's extra-territorial applicability was not yet realized. (175) It was only after Gaudet's espousal of a radical pro-humanitarian stance that the real significance of this question became obvious.
The different approaches taken by the circuit courts after Gaudet were reflected in a decision of the United States Court of Appeals for the First Circuit on the one hand and in a decision of the United States Court of Appeals for the Fifth Circuit on the other. The leading Fifth Circuit case was Barbe v. Drummond. (116) Barbe involved the sinking of a pleasure boat which caused a passenger's death as a result of exposure. The defendant, owner and operator of the vessel, had been negligent. The significant issue in Barbe was whether the plaintiff could recover damages for conscious pain and suffering and funeral expenses. The accident had occurred on the high seas, the domain of DOHSA. If the latter statute was applicable, it would limit recovery to pecuniary loss thereby excluding conscious pain and suffering as an element of damages. (177) Three arguments were advanced in favor of awarding pain and suffering damages. First, it was contended that a state survival provision should be borrowed and allowed to supplement maritime law to provide for pain and suffering recovery. Second, the argument was made that conscious pain and suffering should be allowed as an element of wrongful death recovery under Moragne itself. This had been done previously by the Fourth and Fifth Circuits in cases dealing with state territorial waters but had never been applied to the domain of DOHSA, the high seas. (178) Following this course would entail navigating Moragne out onto the high seas on a possible collision course with DOHSA. The court recognized the difficulty clearly:
When an accident occurs in state territorial waters, where DOHSA does not apply, ... it is easy to apply Moragne reasoning and conclude that the previous absence of a federal cause of action for wrongful death has been remedied. But in a case like the instant one, where the accident occurred on the high seas, it is not so easy to apply Moragne to generate a cause of action. The distinction is that Moragne provided a cause of action where one did not previously exist, but here a congressionally provided cause of action already exists, namely, DOHSA. The reason plaintiff finds DOHSA unsatisfactory is that it does not provide recovery for pain and suffering prior to death. (179)
Third, the plaintiffs asked the court to recognize a general maritime law survival action just as the Supreme Court had recognized a wrongful death action in Moragne. This last argument is the one that persuaded the court. The policy enunciated by the Court in Moragne seemed to authorize a judicially created general maritime survival action. Further, this newly recognized federal survival action was perfectly compatible with DOHSA since each involved a distinct cause of action. (180)
Next, the court held that funeral expenses were a nonpecuniary element of a wrongful death claim rather than a survival claim; thus, DOHSA controlled and recovery was denied. The First Circuit correctly noted that in Gaudet the Court had allowed such expenses under Moragne, but then went on to state:
Since DOHSA clearly provides a cause of action for wrongful death in this case, we fail to see how Moragne applies. We hold that the measure of damages for wrongful death provided by DOHSA, namely, "pecuniary loss," controls in the instant case ... [Further,] there is a substantial difference between removing a decisional bar like The Harrisburg and circumventing a statutory mandate like DOHSA. We believe that to cast aside DOHSA in favor of the Moragne cause of action would be to engage in a "tabula rasa restructuring of the law of admiralty," ... of the sort Moragne counseled against. (181)
Thus the First Circuit in this case expressly refused to tow Moragne to the high seas. First, the court refused to recognize pain and suffering as an element of wrongful death because this would have meant that, in order to allow' such recovery, Moragne would have to be applied in the domain of DOHSA. Second, the court refused to allow recovery of funeral expenses because allowance of this wrongful death, nonpecuniary element of damages under Moragne would also entail applying that case on the high seas.
Barbe was decided after Gaudet and thus the court's failure to apply Moragne on the high seas led to a lack of uniformity in the law of maritime death and, more importantly, it led to a redrawing of that "imaginary line" three miles from shore: a line which Moragne had sought to erase.
The problem presented in Barbe also came before the United States Court of Appeals for the Fifth Circuit in the case of Law v. Sea Drilling Corp. (182) The opinion in this leading case was written by that most eminent of admiralty judges, Chief Judge John R. Brown. (183) In Law, a man was killed when a ramp upon which he was standing collapsed and precipitated him into the sea. The ramp in question was located on the Outer Continental Shelf and it connected a seagoing tender vessel to a fixed platform. On the first hearing of the case, Chief Judge Brown expressly held that Moragne applied on the high seas. (184) This aspect of the case was
The defendants' objections were aimed primarily at two elements of recovery: conscious pain and suffering and loss of society, items of recovery not allowed under DOHSA. The court reaffirmed its previously-stated position that "[i]f DOHSA continued to hold sway as the exclusive remedy for death more than a marine league from shore Seadrill would be right but the High Seas are no longer DOHSA's Mare Nostrum." (185)
The Fifth Circuit agreed with the Barbe court that there now existed a general maritime law survival action which encompassed conscious pain and suffering and which was not inconsistent with DOHSA because the latter has nothing to do with survival. The court went on to state: "But where our course diverges from that of the Barbe Court is that we do not hold, as did they, that 'the measure of damages for wrongful death provided by DOHSA, namely "pecuniary loss," controls' on the High Seas. This brings us to ... loss of society." (186)
Since loss of society is an element of wrongful death recovery, and is clearly nonpecuniary in nature, it is not a recoverable element of damages under DOHSA. But Judge Brown noted that the Supreme Court in Gaudet had rejected the pecuniary loss standard under Moragne as inconsistent with the basic humanitarian policy of the lex maritima. (187) He stated: "Nowhere, does the Court indicate that the fact that Gaudet's injury occurred in territorial waters rather than the High Seas is critical." (188)
The Chief Judge then proceeded to quote extensively from Professors Gilmore and Black189 to establish support for his position that the "maritime law death remedy, as explicated in Gaudet, is now more comprehensive and provides for a greater recovery than had previously been available under the federal death statutes [DOHSA and the Jones Act]. (190)
Judge Brown felt that Moragne-Gaudet had either supplanted or supplemented DOHSA on the high seas because a contrary course would have added to the anomalies Justice Harlan had intended to eliminate in Moragne. (191) It was for this reason that the court refused to follow Barbe on this point. Under Barbe, at least according to the Chief Judge's interpretation, a general maritime law claim for wrongful death on the high seas could be brought at law under the saving to suitors clause (192) and receive the "ull panoply of recovery under Moragne;" (193) whereas, if the suit were designated as admiralty under rule 9(H), recovery would be limited to DOHSA's pecuniary standard because DOHSA was, according to Barbe, exclusively applicable in admiralty. This would mean that since the saving to suitors' clause could not be used in instances where there was no diversity of citizenship or where personal jurisdiction could not be obtained, plaintiffs would be limited to pecuniary damages, while those who could satisfy the requirements of the saving to suitors clause could recover nonpecuniary damages under Moragne- Gaudet. Thus, these totally fortuitous circumstances would dictate the application of a different substantive law. (194)
The court indicated that the basic reason for this view is found in the statutory limitation that DOHSA suits must be brought exclusively in admiralty. (195) Since the only reason given by Barbe for the nonapplication of Moragne on the high seas was the applicability of DOHSA there, there existed no impediment to applying Moragne in situations where DOHSA did not apply. When the general maritime law action is brought at law under the saving to suitors' clause, as it may be under federal statute, (196) DOHSA cannot apply because it can apply only in admiralty. Therefore, the general maritime law may apply since there is no conflict with congressional policy in such an instance. Thus the court stated:
Where this leaves us is that the [Barbe] alternative to our holding is to impose an unwieldy trifid system on recovery for maritime deaths, [i] If the death occurred within territorial waters, recovery could be had under the Moragne wrongful death-survival action, [ii] If the death occurred on the High Seas and the unwary pleader invoked the magical provisions of F.R. Civ. P. 9(h), or in the unlikely event that he could not obtain jurisdiction in any state court, full survival recovery could be had under the decisional law-created federal maritime survival action but wrongful death recovery would be limited to DOHSA's "pecuniary loss." And [iii] the legal helmsman with a closer eye on the telltale-for the same death on the High Seas-could file his action at law and under substantive maritime principles would recover all that Moragne and Gaudet allow. (197)
This certainly "is not uniformity. It is its lack." (198) Such a situation, in Judge Brown's view, would mark a retreat from the felicitous principles of Moragne and a return to the situation dictated by The Harrisburg, the very case expressly overruled by Moragne. This was so because the draftsmen of DOHSA had acted under the weight of The Harrisburg and had thus limited the new statutory recovery to pecuniary loss only. According to Judge Brown, it was high "time that the dead hand of The Harrisburg whether in the courts or on the elbow of the congressional draftsmen of DOHSA-follow the rest of the hulk to an honorable rest in the briney deep." (199)
In grand style Chief Judge Brown summarized: No longer does one need a state remedy. No longer does one need a state court, or The Admiralty as a Court, or DOHSA as a remedy. There is a federal maritime cause of action for death on navigable waters-any navigable waters-and it can be enforced in any court. (200) As mentioned above, Judge Brown apparently viewed Barbe as precluding application of Moragne on the high seas only when the forum chosen, or available, was the admiralty court: the exclusive forum for DOHSA actions. If the suit were brought under the concurrent jurisdiction of the saving to suitors clause at law, then there was no impediment to applying Moragne because DOHSA could not be asserted at law. Apparently Judge Brown thought Barbe regarded the choice of forum, admiralty or law, as determinative of the particular substantive law to be applied.
It is suggested that this is not the most obvious reading of Barbe. In fact, it is the author's contention that no such distinction can be found in Barbe. Barbe simply held that Moragne's wrongful death remedy was unavailable on the high seas. (201)
It is precisely in this phase of Judge Brown's opinion in Law that one observes a masterful judge in action. By so interpreting Barbe, the court was preparing for the yet-unknown future. It was attempting to salvage both uniformity and humanitarianism by allowing for the application of as much of Moragne-Gaudet as possible on the high seas, no matter what the future held. In other words, the Chief Judge
foresaw the possibility of a Higginbotham (202) and was simply guarding against it as best he could. Since the case that eventually came before the Supreme Court was Higginbotham, and not Law, that Court had no occasion to address this aspect of the latter case.
It is obvious that Chief Judge Brown was hedging his bet in the Law decision. By indicating what the state of the law would be if Law was later overturned, and by attributing this to Barbe, (203) he set up a situation whereby his idea that the general maritime law measure of damages would apply to high seas deaths as long as suit was not brought in admiralty would survive the overturning of Law. He seems to have covered his bet well. Today, in the Fifth Circuit, even after Higginbotham, the high seas plaintiff may, apparently, if he sues at law (state or federal), and if the necessary jurisdictional requirements under the saving to suitors clause are satisfied, (204) recover nonpecuniary damages on the authority of the Law case.
It should be noted that not everyone saw Chief Judge Brown's opinion in Law for what it was. The author of a Note published in Houston Law Review,205 simply accepts Judge Brown's analysis of the effects of Barbe without question. He commends Judge Brown for not letting the choice of forum dictate a different measure of damages. What the Note author failed to observe is that the conclusion that not applying Moragne on the high seas would bring about such a result is Judge Brown's own invention. Under Barbe, an action based on the high seas death of a non-seaman could not be brought at law under the saving to suitors' clause because DOHSA is exclusive and it provides for an exclusive admiralty forum. Thus the statement that the choice of forum would dictate a different measure of damages is false because there could be no choice as to forum. (206)
The idea that the choice of forum will affect the measure of damages is surely an "anomaly"-but it is one of Judge Brown's own making. (207) Why did he indulge his obviously formidable talents in this way? It is suggested that he was convinced that the only way to return Moragne-uniformity-humanity to the law of maritime wrongful death, after Gaudet had established a measure of recovery different from that provided for by DOHSA and the Jones Act, was to apply Moragne-Gaudet on the high seas as well as in territorial waters. Thus in Law, the court attempted to accomplish this very result by holding that, even in admiralty, Moragne-Gaudet applies on the high seas. Foreseeing the possibility that Law might be overruled, Chief Judge Brown '"slipped in" the proposition that the general maritime law would at least apply under the saving to suitors clause at law in any case, because DOHSA would not be applicable there.
By applying Moragne-Gaudet to the high seas, which is the basic holding of Law, the goals of both uniformity and humanity were being furthered. At last Moragne had been returned to navigation.
In other words, Judge Brown was attempting to save Moragne from the non-uniform influence of Gaudet. (208) In effect, he was at- tempting to reconcile Gaudet with Moragne, and Moragne with itself, in an embrace of uniformity and humanity.
The accomplishment of Chief Judge Brown in Law in applying Moragne directly to the high seas was substantial. (209) He succeeded in returning a degree of uniformity to an area apparently left bereft of it by Gaudet, without sacrificing the humanity of that decision. By applying Moragne to the high seas, he made the fortuity of geographic location of death irrelevant; the same liberal, pecuniary and nonpecuniary recoveries would be had in either case. What Chief Judge Brown had done in Law was to save the Supreme Court from the consequences of its own actions. The Court could either follow Moragne or Gaudet or the congressional mandate of DOHSA; but, it could not follow all three simultaneously. The Fifth Circuit had opted for Moragne and Gaudet, thus allowing for a uniform, plaintiff-oriented wrongful death action in the admiralty; in this way it was true to both principles of the Moragne decision.
The author finds it impossible to overemphasize Chief Judge Brown's accomplishment in Law. By opting for both principles of the Moragne mandate he succeeded in bringing a degree of sophistication to the law governing maritime deaths. Such sophistication has seldom been attained in other areas of legal strife. Furthermore, he managed to take hold of a muddled, apparently unsalvageable body of law and make eminent good sense of it. He left us with a law that was both uniform and humane, something many had thought impossible to achieve.
Another consequence of applying Moragne on the high seas should be noted. Since the general maritime action may be brought at law under the saving to suitors clause, if the other requisites for such jurisdiction are satisfied, then a jury trial is available to a non-seaman's survivor in a high sea's death case. Assuming arguendo that Judge Brown's Barbe theory is not accepted (210) and Moragne does not apply on the high seas, a plaintiff is restricted to admiralty without a jury under the exclusivity provision of DOHSA. (211) Of course, the existence of a jury on the high seas in death cases, after Higginbotham, depends entirely upon Judge Brown's Barbe theory.
Several federal district court cases dealing with the applicability of the Moragne general maritime law doctrine to the high seas were decided around the same time as Law. Most of these, like Law, held Moragne applicable to the high seas. This trend clearly indicated that the Barbe approach was failing to gain significant support. The idea of simultaneously furthering both fundamental policies of Moragne, and the maritime law itself, through the simple expedient of applying Moragne-Gaudet to the high seas was very appealing to those courts charged with carrying out the policies of the maritime law.
Estate of Kauzlarich v. Exxon Co. (212) involved the death of a seaman on the high seas. Suit was brought under DOHSA, the Jones Act, and the general maritime law (Moragne). The action was instituted more than four years after the death occurred, and therefore beyond the two-year and three-year limitations periods of DOHSA (213) and the Jones Act (214) respectively. Thus, the plaintiff could only recover if Moragne was held to apply on the high seas, and if DOHSA and the Jones Act were not looked to in applying the general maritime law doctrine of laches.
The court canvassed most of the then-existing relevant cases. Relying heavily on the fact that Gaudet had recognized that the Moragne action contained elements previously unknown to the federal statutory scheme,215 the court held that the Moragne action was neither intended to be constrained by existing statutory enactments nor was its application to be limited to territorial waters. The court stated: "There now exists a cause of action for wrongful death under general maritime law whether said cause of action arises on the high seas or inside state territorial waters. (216)
Having reached this conclusion the court was then faced with the question of the "time limitation applicable in a cause of action for wrongful death brought under the general maritime law." (217) Laches applied. In the application of laches, analogous federal and state limitation periods were considered, but were not viewed by the court as controlling. Relying on the jurisprudence dealing with elements of damages under Moragne, the court found that "it would seem equally as inappropriate to borrow, without recognizing other equitable considerations, a strict limitation period from any such acts." (218)
Then the court, quite consistently, let the issue turn on the requirements of uniformity. It stated:
Furthermore, if courts were to adopt DOHSA or Jones Act limitations for wrongful death actions on the high seas, and state wrongful death act limitations for actions inside state territorial waters, an imaginary line where state territorial waters end would be of this line on which the maritime duty was violated, and this, court feels that it would be improper and illogical to create such an anomaly. (219)
From the foregoing discussion, it is clear that by this point in time, the law had evolved to the point where the dual requirements of uniformity and humanity had merged in an "in order to" sense; that is, in order to achieve uniformity, the humanitarian ideal must be furthered, and in order to achieve humanity, the uniformity ideal must be furthered. Both of these goals could now be unified under the banner of a real uniform standard since one is no longer antithetical to the other. Once different results in the application of Moragne in territorial waters and DOHSA on the high seas are recognized, then in order to be consistent with itself, (220) Moragne must be applied to the high seas as well as to territorial waters.
Further, once it is admitted that Moragne as applied in territorial waters is more plaintiff-oriented and liberal than DOHSA is on the high seas, then, once again, in order to be consistent with Moragne, the general maritime law remedy must be made available on the high seas. Both policies of Moragne require no less. Kauzlarich concerned the limitation period; Gaudet concerned the elements of damages-but nevertheless the same basic questions are involved: Uniformity or not? Humanity or not?
It is the author's contention that the courts are not necessarily correct in their precise resolution of the uniformity question. Perhaps, in order to assure uniformity without applying Moragne on the high seas, the analogous limitation period in territorial waters should be those of DOHSA or the Jones Act, (221) or perhaps Gaudet should have opted for pecuniary damages only. There is more than one way to assure uniformity. Despite the distinct possibility that Gaudet was wrong, once accepted, it dictates the application of Moragne on the high seas, just as in the instant case the Kauziarich court had to opt for the application of Moragne on the high seas and a non-DOHSA, non-Jones Act limitation period-once it was admitted that these federal statutory periods would not apply in territorial waters. Both policies reflected in Moragne require this.
The Kauzlarich court then went on to find that the delay was excusable and that there was no undue prejudice; thus laches did not bar the action under the general maritime law. Obviously hoping for an appellate court determination of the important issue of Moragne's territorial applicability, the court granted its permission for an immediate appeal since it regarded its order as involving a controlling question of law as to which there was substantial ground for difference of opinion. (222)
Hammill v. Olympic Airways (223) came before the court on defendant's motion to dismiss. The deceased had been a passenger on a Greek airline when the plane on which he was traveling crashed within one mile of land during a flight from Corfu to Athens, Greece. Although the plane went down in Greek waters, the acts of negligence attributed to the pilot occurred over the high seas. The court determined that under the locality-plus criterion of Executive Jet Aviation Co. v. City of Cleveland (224) since the plane had been fulfilling a function that would otherwise have to be performed by an oceangoing vessel, the Executive Jet test was satisfied and there was admiralty jurisdiction under 28 U.S.C. section 1333.
The court next addressed the issue of whether the general mari- time remedy was available in DOHSA's domain and determined that [o]nce a federal court determines that it has maritime jurisdiction over a wrongful death action [which this court did through its application of Executive Jet's locality-plus test], the broader forms of relief under the federal common law remedy become available. These operate, in effect, to supercede whatever statutory remedies might also be available. (225)
The court refused to decide if DOHSA was applicable to the case before it, but went on to say that even if it were, "the remedy which would be framed could still be broader-under Moragne and Gaudet-than the Act would otherwise afford." (226) In other words, it was the court's view-a view which was in harmony with the views of Professors Gilmore and Black (227) that the Moragne-Gaudet action had rendered the question of DOHSA's applicability irrelevant because, since the general maritime action was applicable on the high seas even when DOHSA did apply, then it would also apply when DOHSA did not. Further, since the broader remedy was provided by Moragne-Gaudet, DOHSA would be irrelevant in any case.
The reason why the issue of the applicability of DOHSA was in question was that that statute provides as follows: "Whenever a right of action is granted by the law of any foreign State on account of death by wrongful act, neglect, or default occurring upon the high seas, such right may be maintained in an appropriate action in admiralty in the courts of the United States False " (228) It was defendant's position that, since Greek law grants such a right of action, DOHSA would require that Greek law be applied.
Apparently, the Hammill court drew a distinction between the mandates of Moragne on the one hand and Moragne-as-aided-by-Gaudet on the other. The court seemed to agree with Professor Moore that "Moragne made clear that the general maritime law is itself preempted in areas where Congress enacts remedies for maritime death-such as [DOHSA] and the Jones Act." (229) Nonetheless, the court then said that "Gaudet, however, holds that the federal statutes enjoy no such primacy." (230) On this basis the court found it unnecessary to decide whether DOHSA was applicable or not.
If the Act were found to be applicable, then the remedy which would be framed could still be broader-under Moragne and Gaudetthan the Act would otherwise afford. [That is, apparently because Moragne-Gaudet would be applicable and would supplant DOHSA.] If inapplicable, then the Moragne remedy clearly would be available, since its initial purpose was to provide relief in precisely those situations wherein no statutory remedy for wrongful death was available. (231) The court, feeling entirely free of statutory constraint after Gaudet, threw the helm to the windward and said:
If plaintiff were to prove his case herein, this Court, following Moragne and Gaudet, would be bound to fashion a remedy "designed to extend to the dependents of maritime wrongful death victims admiralty's 'special solicitude for the welfare of those men who under [take] to venture upon hazardous and unpredictable sea voyages.
The court further stated that "It follows that courts are not bound by the specific provisions of any federal or state statute in fashioning a remedy for maritime wrongful death, including those statutes which might otherwise directly govern the cases before them." (233) Finally, the court stated that it was not bound by DOHSA's dependent relative requirements or by DOHSA's elements of damage restrictions. In fact, the court apparently experienced such existential freedom that it may never come down to earth again.
This case illustrates the almost audible sigh of relief uttered be a court when it realized that by being humane it could also be uniform; indeed, when it realized that only by being humane could it be uniform, when it realized that both purposes of Moragne could be served by simply applying Gaudet uniformly to the maritime law of wrongful death.
Renner v. Rockwell International Corp. (234) involved three navy airmen who lost their lives when their planes crashed into the high seas after they had attempted to land on the flight decks of aircraft carriers. The jets' arresting gearhook assemblies failed, causing the accidents. The defendant was the manufacturer of the gearhook assemblies. The claims were filed under DOHSA and the general maritime law. Relying on Law, and other authority, (235) the court held that both DOHSA and Moragne applied. The court expressly allowed plaintiffs to seek recovery based on (1) damages allowable under DOHSA, and (2) damages allowable under Moragne-Gaudet, but not under DOHSA; thus the court clearly allowed Moragne to supplement DOHSA on the high seas. For instance, the court stated that the following items of damages are not available under DOHSA: loss of society, loss of consortium, and punitive damages; but, it expressly allowed them under Moragne. The only damage item apparently not recovered was survivors' grief and sorrow because neither DOHSA nor Moragne (236) allows it.
The effect of the Renner court's ruling that Moragne applied on the high seas was that the nonpecuniary elements of damages, denied under DOHSA, were expressly recognized and allowed under the general maritime law. It is apparent that the court expressly relied on the humanitarian policy reflected in Moragne and Gaudet in reaching this result. (237)
Hamilton v. Canal Barge Co. (238) involved a seaman's death within territorial waters. Thus, the question of Moragne's applicability on the high seas did not arise. However, the parents of the deceased were seeking to recover for loss of society. They could not recover under the Jones Act because they were excluded by a primary beneficiary. (239) This however, did not preclude recovery under the general maritime law because Gaudet had held that DOHSA did not preclude recovery of items of damages under the general maritime law which were not recoverable under DOHSA itself. According to the Hamilton court, although Gaudet dealt with DOHSA, "[its] logic extend[ed] to the relationship of the Jones Act to the maritime death action." (240) The court then considered whether it would be more appropriate to borrow from the Jones Act or DOHSA in determining the schedule of beneficiaries under the Moragne action. It concluded:
Application of the Jones Act schedule of beneficiaries to a Moragne action would once again create geographic boundary problems, as the place of injury would once again determine the rights of the beneficiaries. Thus, the DOHSA schedule would be applicable where death occurred on the high seas, but not where death occurred in state territorial waters. The uniformity sought by Moragne would be defeated. Hence, it appears sound here to borrow from DOHSA and permit the parents' claim notwithstanding the concomitant claim by Mr. Hamilton's posthumous son. (241)
Of course, since Judge Rubin, the author of the opinion, would have applied Moragne on the high seas anyway, (242) it is difficult to say that his denial of the Jones Act analogy here was anything more than a means of providing the parents with recoverable damages. Nevertheless the decision illustrates a very able admiralty judge's recognition of the Moragne-dictated requirement of uniformity, at least when it can be used to serve plaintiff-oriented humanitarianism.
It is the author's contention that Hamilton presented something of an anomaly. Loss of society was said to be recoverable under the general maritime law because the Supreme Court in Gaudet refused to look to DOHSA for purposes of analogy. The parents were said to have capacity to recover loss of society, however, only because the court did look to DOHSA for purposes of analogy. Therefore, the Hamilton decision appears to promote a juridical magical trick: now you see it, now you don't.
In Cretella v. Lockheed Shipbuilding & Construction Co., (243) several deaths had occurred and injuries inflicted as a result of the explosion of a valve in a United States Navy vessel. The question before the court was whether the general maritime law wrongful death actions could be tried by jury along with the personal injury actions or whether they must be tried by the admiralty court without a jury as mandated by DOHSA. The court said that "[although the law is unsettled, the policy considerations discussed in Moragne and Gaudet appear to favor the position that [DOHSA] is no longer to be considered an exclusive remedy." (244) The court regarded this determination as merely a stage in the sifting process referred to in Moragne. (245)
In Tialigo v. Steffany, (246) death occurred on the high seas and suit was filed at law in the High Court of American Samoa. The question raised was whether this non-admiralty court had jurisdiction over a death on the high seas case in light of DOHSA's provision that such cases are exclusively in admiralty. (247) The court admitted that prior to Moragne such a case would have been exclusively in admiralty. It further admitted that the Moragne action could be brought at law under the saving to suitors' clause (248) if Moragne applied on the high seas. (249) Relying basically on the uniformity and humanitarian elements of Moragne, the court held that Moragne did apply on the high seas and that jurisdiction at law was proper.
In reaching this conclusion, the court stated:
If the effect of Moragne is restricted to the territorial sea, these distinctions between DOHSA and the liberal recovery afforded by the general maritime law action would be predicated solely upon the fortuitous circumstance of death occurring on one side or the other of an imaginary line situated three miles seaward of a United Statescoastline. We do not think this discrimination was intended to come about from the progressive step taken by the Court in Moragne. (250)
The "distinctions" referred to by the court had to do with the schedule of beneficiaries, the law versus the admiralty forum, survival, and the availability of a jury trial under Moragne. The point made by the court was that in light of the differences between Moragne and DOHSA, uniformity could be secured and the imaginary line erased only by applying Moragne to the high seas. Further, DOHSA had not lost its significance because it still applied whenever some- one cannot, or does not want to, use the saving to suitors clause. (251) Thus, the court saw the general maritime law action as supplementing DOHSA on the high seas.
It should be noted that the reasoning of the court in Tialigo has nothing to do with Chief Judge Brown's interpretation of Barbe as set forth in the Law case. (252) There Chief Judge Brown would have allowed a saving to suitors clause action on the high seas even if Moragne did not directly apply there in place of, or. as well as, DOHSA; whereas, in Tialigo, the saving to suitors clause action was allowed only because Moragne was held to apply on the high seas. In other words, the holding in Tialigo is in accord with the basic holding of Law on this issue, but not with Chief Judge Brown's interpretation of Barbe.
Thompson v. Offshore Co., (253) a 1977 case, strikingly illustrates, and summarizes, the state of the jurisprudence immediately prior to Higginbotham. Thompson involved the collapse of a drilling rig in the Gulf of Suez causing many deaths, including those of four American citizens employed on the rig. The survivors of the Americans instituted actions for survival and wrongful death under the Jones Act, DOHSA, and the general maritime law. The court held the general maritime law applicable in this DOHSA action on the authority of Law. The court recognized the conflict between the First Circuit (Barbe) and the Fifth Circuit (Law) and concluded that it should "apply the law as announced by the Fifth Circuit and recognize a recovery in this action which encompasses the nonpecuniary damage elements of the general maritime law, particularly loss of society." (254) The court followed both Barbe and Law in also finding that recovery was permitted under the general maritime law for conscious pain and suffering, but simply found no evidence to support such recovery on the facts of this case. Recovery was allowed for loss of consortium as an element of the broader loss of society category.
From the foregoing survey of cases dealing with the issue of Moragne's applicability on the high seas, the reader may gauge the state of the jurisprudence on this important question as it appeared to the Supreme Court when it turned to consider Higginbotham. It is obvious that the jurisprudence was, for the most part, in favor of Moragne's application to the high seas. Most
cases had followed Law in bringing together uniformity and humanity in one uniform wrongful death remedy in the law of admiralty. It should be noted that the lower courts also allowed the Moragne-general maritime law action to supplement (or supplant) the Jones Act as well as DOHSA. Several of the cases in which Moragne was applied to the high seas involved seamen who were also asserting Jones Act claims. The more restrictive Jones Act provisions, for example, schedule of beneficiaries, pecuniary loss limitations, and period of limitation, were thus circumvented by resort to the general maritime law. Thus, the question of Moragne's applicability to the high seas not only called into question DOHSA's rule there, but also the exclusive nature of the Jones Act vis-A-vis the general maritime law. Of course, one of the main purposes for creating the general maritime law action in Moragne was-to provide seamen with an unseaworthiness remedy in state territorial waters, and thus the federal statute does not preclude the application of Moragne-Gaudet in those waters. (255) Furthermore, it has long been the case that DOHSA has been allowed to apply with the Jones Act on the high seas. (256) These actions, however, are based on distinct theories of recovery: unseaworthiness under DOHSA and the territorial waters Moragne action, and fault under the Jones Act. What is involved in supplementing the Jones Act on the high seas by Moragne is something else: supplying a new remedy, with its more liberal elements, also based on negligence. In other words, the remedies and the substantive theories of recovery already comprehensively exist in the area, and what is involved is thus not the filling in of gaps in the maritime law, but the supplying of additional, and different, modes of recovery. Therefore, most of the remarks made in this Article about DOHSA versus Moragne on the high seas would apply also to the Jones Act versus Moragne on the high seas.
To summarize the situation immediately preceding Higginbotham, the jurisprudence had clearly opted to follow both mandates of Moragne, which in this instance, in this framework, were not in competition, but rather fit together like hand and glove. Here the district and circuit court judges had found a way to follow both Moragne and Gaudet, and at the same time to adhere to the two basic, foundational policies of the maritime law-uniformity and humanitarianism. They had succeeded in making Moragne and Gaudet totally consistent with each other as well as with the basic policies of the maritime law.
Apparently, however, the Supreme Court was not content to leave well enough alone; instead, the Court decided to sail once more.
On June 5, 1978, the Supreme Court decided the case of Mobil Oil Corp. v. Higginbotham. (257) The Supreme Court apparently viewed the issue before it as one dealing with supplementation. It stated: "The question is whether, in addition to the damages authorized by federal statute, a decedent's survivors may also recover damages under general maritime law." (258)
The decedents were killed in a helicopter crash on the high seas. The district court had held that Moragne applied on the high seas because "the language of Moragne, ... 'itself clearly establishes that the action of wrongful death exists in General Maritime Law and there is no indication ... that the remedy is limited to the territorial waters of the states." (259) The district court had also held that a seaman's survivor could sue under the Jones Act, DOHSA, and the general maritime law and had recognized a general maritime law negligence action. The district court, however, had held that the general maritime law action under Moragne did not encompass recovery for nonpecuniary damages. It stated:
Since the decision in Moragne, ... there have been district court decisions awarding damages for non-pecuniary losses, such as loss of society and survivors' grief .... However, the circuit courts which have considered the issue have uniformly denied grief damages in a general maritime action.... Consequently, notwithstanding our factual finding that the survivors have suffered loss of love and affection and grief as a result of the demise of Mr. Higginbotham and Mr. Shinn, we disallow this item of damage. (260)
Therefore, even though the district court applied Moragne to the high seas, since it used DOHSA and the Jones Act as the models for determining the elements of damages under it, no conflict was presented. It should be noted, however, that the district court's opinion in Higginbotham pre-dated the Supreme Court's decision in Gaudet.
The Fifth Circuit, reversing in part, held that, on the basis of Gaudet, nonpecuniary losses were recoverable under Moragne, and, on the basis of Law, Moragne applied on the high seas. (261) The court observed that "the members of the panel would read Moragne to say that DOHSA is the exclusive wrongful death remedy outside of state territorial waters. The decision in Law, however, forecloses this issue for the panel." (262)
On the basis of a truly simplistic theory of congressional supremacy, the Supreme Court reversed the circuit court and squarely held that the Moragne-general maritime law action does not apply to the high seas but only to territorial waters.
In so holding, the Court recognized that its decision might bring a degree of disuniformity in its wake: "We recognize today, as we did in Moragne, the value of uniformity, but a ruling that DOHSA governs wrongful-death recoveries on the high seas poses only a minor threat to the uniformity of maritime law." (263) This was the case because of "a policy determination [made] in Gaudet which differed from the choice made by Congress when it enacted [DOHSA]." (264) Thus, the Court had to choose "the rule chosen by Congress in 1920 or the rule chosen by this Court in Gaudet." (265) In effect, the Court went on to say that uniformity was not greatly imperiled by its holding that Moragne does not apply to the high seas because the Court would never again do what it had done in Gaudet.
Damages aside, none of the issues on which DOHSA is explicit have been settled to the contrary by this Court in either. Moragne or Gaudet. Nor are other disparities likely to develop. As Moragne itself implied, DOHSA should be the courts' primary guide as they refine the non-statutory death remedy, both because of the interest in uniformity and because Congress' considered judgment has great force in its own right. (266)
Since one of the major maritime tasks of the courts is supplementing federal statutes, the Court indicated that DOHSA may be supplemented, but not in areas where the statute announced "Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages." (267) The Court further stated that even though DOHSA "does not address every issue of wrongful-death law ... when it does speak directly to a question, the courts are not free to 'supplement' Congress' answer so thoroughly that the Act becomes meaningless." (268)
It could be argued that if DOHSA and the Jones Act may not be supplemented by the general maritime law on the high seas, then the general maritime law should not be used to supplement the Jones Act in territorial waters. (269) In the Jones Act, Congress has also limited recovery to pecuniary damages which is contrary to the general maritime law as expressed in Gaudet. (210) And yet one of the major reasons for creating the general maritime law action in Moragne, and for extending it in Gaudet, was to provide seamen with an additional basis for recovery (unseaworthiness) in territorial waters deaths. It would seem that congressional intent is expressed just as solemnly in the Jones Act (FELA) as it is in DOHSA, and therefore, if the Court is correct, the Court's allowing supplementation of the Jones Act by Moragne-Gaudet in spite of congressional intent to the contrary seems quite peculiar.
In Higginbotham, the Court ignored this peculiarity and ironically couched its entire opinion in terms of congressional intent and congressional supremacy.
Justice Stevens, writing for the majority, admitted that this decision would create a basic lack of uniformity in the law of maritime death, (271) but he stated that "even if this difference proves significant, a desire for uniformity cannot override the- statute." (272)
The opinion in Higginbotham indicates that no matter how desirable a goal uniformity may be; Congress has the final word and the Court must abide by it. The Court suggested, however, that because of various mitigating factors, only minimal disuniformity would ensue.
Even though he suggested that any ensuing disuniformity would be minimal, Justice Stevens attempted to further minimize such in two footnotes to the opinion. In footnote 18 he drew a distinction between the pre-Moragne situation, one federal remedy on the high seas and potentially fifty different state remedies in territorial waters, and the disparity involved in Higginbotham which "is the difference between applying one national rule to fatalities in territorial waters and a slightly narrower national rule to accidents farther from land. (273) In footnote 20 he indicated that loss of society interests could be aatisfie4 with awards which were symbolic and that funeral expenses could well be considered pecuniary. (274)
It should be noted that loss of society awards may represent a very substantial dollar figure, not at all falling into the "symbolic" category. The societal damages of the two families involved in Higginbotham were valued at $100,000 and $155,000 respectively," (275) However, the Court said that it had "not been asked to rule on the propriety of the large sums that the District Court would have awarded for loss of society in this case," (276) inferring that it would have looked upon them with a disapproving eye. The district court, in Higginbotham, had calculated, but had not awarded, the societal damages.
As stated previously, the conclusion of the majority opinion is couched in terms of congressional supremacy:
There is a basic difference between filling a gap left by Congress' silence and rewriting rules that Congress has affirmatively and specifically enacted. In the area covered by the statute, it would be no more appropriate to prescribe a different measure of damages than to prescribe a different statute of limitations, or a different class of beneficiaries. (277)
To further the notion that there should be no doubt as to this supremacy, the Court added: "Perhaps the wisdom we possess today would enable us to do a better job of repudiating The Harrisburg than Congress did in 1920, but even if that be true, we have no authority to substitute our views for those expressed by Congress in a duly enacted statute. (278)
Justice Marshall, joined by Justice Blackmun, dissented based on the lack of uniformity and humanity created by the majority's decision. "Today the Court takes a narrow and unwarranted view of these cases [Moragne and Gaudet], limiting them to their facts and making the availability of recovery for loss of society turn solely on a ship's distance from shore at the time of the injury causing death." (279) According to the dissent, this was violative of Moragne because in that case "[a] unanimous Court concluded ... that the distance of a ship from shore is a fortuity unrelated to the reasons for allowing a seaman's family to recover damages upon his death." (280) It should be noted that Justice Marshall referred in this passage to "a seaman's family" and his opinion throughout is phrased in terms of seamen. The majority, on the other hand, does not expressly mention seamen. Of course, the majority does intend, to include seamen in the ruling of this case because Higginbotham involved two deaths on the high seas: one a non-seaman and one a seaman; thus Justice Marshall is correct in referring to seamen.
The dissent clearly recognized that the majority opinion, in light of Gaudet, could not be reconciled with Moragne's position on uniformity or humanity:
The Court today establishes a rule that, like the pre-Moragne rule, "produces different results ... in situations that cannot be differentiated in policy." When death arises from injuries occurring within a State's territorial waters, dependents will be able to recover for loss of society under the "humanitarian" rule of Gaudet. ... But once a vessel crosses the imaginary three-mile line, the seamans dependents no longer have a remedy for an identical loss, occasioned by an identical breach of duty. Instead, they may recover only pecuniary losses, which are allowed them by [DOHSA]. (281)
Justice Marshall did agree with the majority that Congress is supreme in maritime law; he simply disagreed with the majority's belief that Congress had definitely indicated its intention. In 1920 the remedy for death upon the high seas depended upon the existence of a state statute. According to Justice Marshall, "This rule left many dependents without any remedy and was viewed as 'a disgrace to civilized people.' ,282 Justice Marshall said that the section of DOHSA which provides for "fair and just compensation for the pecuniary loss sustained"283 was merely intended to ensure "that those suing under DOHSA were able to recover at least their pecuniary loss." (284) According to Justice Marshall, DOHSA was never intended to obviate another, more liberal standard. And, since Justice Marshall could find no such intent behind DOHSA, he believed that the humanitarian policy relied on and reflected in Moragne-Gaudet dictated recognition of the general maritime law damage item. Accordingly, he stated: "When DOHSA is read against the background out of which it arose-rather than as if it had been written after Moragne and Gaudet-it becomes apparent that Congress did not mean to exclude the possibility of recovery beyond pecuniary loss." (285) Thus, for Justice Marshall, no "established and inflexible rule" (286) existed which would dictate a limitation to pecuniary loss. The one remaining issue was whether allowance of recovery for loss of society would be appropriate, policy-wise, in the general maritime law. He found that Gaudet had already answered this question.
In closing, Justice Marshall clearly recognized the clash with Moragne that was brought about by the majority opinion: "I would follow Gaudet in this case and thereby avoid the creation of a new and unfair 'anomaly' of the type that Moragne was intended to eliminate." (287)
Thus, in Higginbotham one watches the Court destroy the common sensible resolution of admiralty's long-standing wrongful death dilemma which had been reached by Chief Judge Brown and the various other judges to whom the issue had been presented. The case is totally inconsistent with the approach reflected by the Court in Gaudet and is more in accord with the dissent in that case. Although Higginbotham does not purport to affect Gaudet, it is difficult to see how these cases can co-exist. Apparently, courts will continue to apply Gaudet with Moragne in territorial waters, but the basic philosophy of the Court which first applied it there is absent in Higginbotham. In effect, Higginbotham rendered Gaudet a gross anomaly in the law of maritime wrongful death.
With Higginbotham there is, to a considerable extent, a return to the confused state of the law as it existed before Moragne. It is true that the degree of confusion will not be the same; there is no longer any need to borrow state wrongful death law in any case. But the Court has nevertheless reverted to the line-drawing which was eschewed in Moragne, and the significance of the line thus drawn has added vigor because the Court has now expressly endorsed it. At least prior to Moragne these exercises were regarded as make- shifts necessitated by the imperfect nature of the law as then developed. Now, after Higginbotham, line-drawing may be regarded as the state of being of the mature, fully-developed maritime law.
The most telling criticism that can be leveled at Higginbotham is that the Court decided the case in isolation, as if no other jurisprudence existed in the area. In isolation the case stands up well. The defects in the opinion only become "obvious" when the case is placed beside its two companions: Moragne and Gaudet. Only then does one observe that Higginbotham is inconsistent with basic policies reflected in the other cases. But, although the Supreme Court may forget Moragne and Gaudet, we must not forget them. The maritime law of wrongful death is stated by all three cases. The congressional supremacy which constituted the ground for the Higginbotham decision was ignored in Gaudet. The policies of uniformity and humanity which constituted the ground for the Moragne decision were ignored in Higginbotham.
There is one rather striking conclusion to be drawn from the foregoing discussion: all cases comprising the unholy trilogy Moragne, Gaudet, and Higginbotham -cannot be correct. Although each case in itself may be correct; although each case could represent an adequate statement of the law; the three taken together are internally inconsistent. If Moragne dictates uniformity, then it is inconsistent with Gaudet and Higginbotham; if Gaudet dictates disuniformity, then it is inconsistent with Moragne; if Gaudet dictates uniformity, then it is inconsistent with Higginbotham; Higginbotham is grossly inconsistent with Moragne- as-interpreted-by-Gaudet. (288) The point is that the Supreme Court should not be allowed to have it all ways at the same time. Surely, there must be at least a minimal standard of internal consistency to which even that tribunal must conform.
The commentator who analyzes the cases separately is missing the point; they form a whole pattern woven into the fabric of an important portion of the maritime law. The whole consists of its parts but means more than them. An adequate evaluation of the three cases necessarily entails looking at each in the context of the others. The present law of maritime wrongful death was created by all three of the cases, and must be analyzed and evaluated on this basis.
Higginbotham, in addition, cannot be squared with either head of the Moragne double dilemma. It creates a lack of uniformity between the law applicable to high seas deaths, on the one hand, and territorial waters deaths, on the other. It is also conservative and fails to adequately protect the rights of plaintiffs, including survivors of the "wards of the admiralty" in that it favors the more restrictive provisions of DOHSA and the Jones Act. Thus, in Higginbotham, the Court has accomplished that which many had assumed impossible: the Court has succeeded in violating both principles enunciated in Moragne., Furthermore, Higginbotham resurrects one of the great "anomalies" which Moragne attempted to eradicate: a law of death in territorial waters different from that prevailing on the high seas.
Chief Judge Brown addressed this issue clearly in Law and acted in such a way that he finally succeeded in carrying into effect both principles of Moragne. By applying Moragne to the high seas, Judge Brown was able to attain both uniformity and humanitarianism; finally, Mr. Justice Harlan and the Moragne Court had been, in a certain sense, vindicated. Apparently this approach was too simple for our "nine putative admirals" (or at least for six of them, since two were in dissent and Mr. Justice Brennan did not participate). Not only were they dissatisfied with Judge Brown's sensible resolution of the Moragne-Gaudet-DOHSA riddle, but in disapproving it they rendered any responsible resolution highly unlikely and reverted to a hard core anti-Moragne posture, that is, they reverted to a hard core anti-uniformity, anti-humanity posture. (289) One wonders, with all these felicitous goals out of the picture, just what policy was left to be served by the Higginbotham decision.
Apparently we have come full circle. The full promise of Moragne-Gaudet is not to be realized; at least it will not be realized in the near future absent congressional legislation. Considering Congress' track record on this issue, such legislation is not likely. In coming full circle, line drawing and confusion are once again the order of the day. The irrationality of fortuitous situs once again, contrary to all trends in the modem maritime law, commands the people's fleet.
What is left may be described as a new, curious type of uniformity: a bifurcated, twisted concept. There is now one uniform rule for territorial waters and another uniform rule for the high seas, but no uniform law of wrongful death for the admiralty. This new uniformity, it is suggested, represents the wrongful death of Moragne, and a return to something very similar to that which existed before that decision was rendered.
Leon Uris closed his famous novel of Ireland, entitled Trinity, (290) with these words:
"When all of this was done, a republic eventually came to pass but the sorrows and the troubles have never left that tragic, lovely land. For you see, in Ireland there is no future, only the past happening over and over." (291) The analogy is inescapable: When all of this was done, a general maritime wrongful death remedy eventually came to pass but the sorrows and troubles have never left those troubled waters. For you see, in the law of maritime wrongful death there is no future, only the past happening over and over.
ADDENDUM: A TOUCH OF IVY
After this Article was written, the United States Court of Appeals for the Fifth Circuit decided the case of Ivy v. Security Barge Lines, Inc. (292) It is submitted that the Ivy decision clearly illustrates the absurdity of the Moragne-Gaudet-Higginbotham trilogy. In Ivy, a seaman was killed in territorial waters and the central question was whether his representative was entitled to recover damages for loss of society. Writing for the majority, Judge Rubin relied upon Higginbotham for the proposition that in the Jones Act, Congress had expressed its intention to limit recovery by the representatives of seamen to pecuniary loss only. Since a seaman had been involved in Higginbotham and recovery of nonpecuniary damages had been denied his representative, that denial must have been dictated by the Jones Act as well as by DOHSA. Thus, Judge Rubin viewed Higginbotham as controlling on this issue even though Higginbotham involved a high seas death. He stated:
To allow the recovery of nonpecuniary damages under the Jones Act merely because the accident occurred within territorial waters would not only be inconsistent with this policy [of not distinguishing between DOHSA and the Jones Act on this question of not allowing nonpecuniary recovery] and negate years of firmly established legal precedent, but would create two separate Jones Act remedies, each applicable only within its own geographical sphere. (293)
Judge Rubin continued:
"It would be anomalous indeed if we interpreted the Supreme Court's opinion to encourage the creation of needless disuniformity based solely on the place of the accident, bringing the law full circle from the days prior to Moragne." (294)
It is the author's contention that many readers will find it difficult to believe what they have just read. In the name of Moragne uniformity a "ward of the admiralty" is denied Gaudet recovery. (295) What could better illustrate the basic incompatibility of Higginbotham with both Moragne and Gaudet? A non-seaman passenger who is killed 'in territorial waters can invoke the nonpecuniary recovery allowed in Gaudet, but the true ward of the admiralty, the seaman, is limited to pecuniary damages only because of the Jones Act. This situation represents a return to the pre-Moragne state of the law.
If there is one thing clear about Moragne, it is that the principal reason for creating the wrongful death remedy in that case was to benefit the seaman by providing him with a liberal unseaworthiness remedy under the general maritime law. In Ivy, the plaintiffs recovery was based on negligence; but, Judge Rubin indicated that the same result, i.e., recovery limited to pecuniary damages, would have obtained under the doctrine of unseaworthiness under the general maritime law. (296)
It is suggested that Judge Rubin erred in finding that Higginbotham dictated this result in territorial waters. Higginbotham merely held that the general maritime law of wrongful death was inapplicable on the high seas. Thus, that case never addressed the question of the availability of societal damages to the seaman under the general maritime law, since it held that law inapplicable to the seaman killed on the high seas. Higginbotham interpreted DOHSA and the Jones Act and found that societal damages were not available under either statute; it did not interpret the Moragne-Gaudet general maritime law action because the Higginbotham plaintiffs were denied such causes of action on the high seas.
The Ivy case can easily be distinguished from Higginbotham. In Ivy, the general maritime law of wrongful death applied to afford the seaman any appropriate unseaworthiness relief. The radical difference between Higginbotham and Ivy is: in the former case, the Gaudet general maritime law did not apply; in the latter, since the death occurred in territorial waters, the general maritime law was indeed applicable. (297) Therefore, the question of Gaudet's applicability to seamen was presented only in the Ivy case and was not dictated in any way by Higginbotham, a case territorially immune from that issue.
The author has no doubt that there will be many students of admiralty law who are troubled by this latest blow dealt the seaman. Nonetheless these students must be careful to recognize the real source of the problem. On the general maritime law-unseaworthiness issue Judge Rubin's dictum did enlarge the Higginbotham doctrine, but the idea that the Jones Act, as well as DOHSA, precluded recovery of societal damages based on negligence was merely a logical extension of Higginbotham. The idea that the general maritime law could not be used to supplement the elements of damages available under the Jones Act negligence action was also dictated by Higginbotham. On these points, Judge Rubin, in Ivy, did no more than carry Higginbotham to its logical conclusion; he did not innovate in the least. The real problem is to be found, not only in the Fifth Circuit's Ivy decision, but clearly in the Supreme Court's Higginbotham decision as well. It was the Higginbotham decision that brought both disuniformity and inhumanity to the law of maritime wrongful death. Ivy merely forwarded inhumanity in the name of uniformity. Judge Rubin took the Supreme Court at its word, nothing more, nothing less.
In Ivy, Judge Rubin indicated that he would perhaps have charted a different course from that set in Higginbotham; but once the Supreme Court had acted, he felt bound to follow its mandate. (298)
After Ivy, nonpecuniary damages may not be recovered in a seaman's death case. This is true for deaths occurring in territorial waters as well as for those occurring on the high seas. This is, to a great extent, the result of Higginbotham: With the Higginbotham-Ivy duet, the law of maritime wrongful death has come full circle. The most troublesome aspect of the confusion that existed prior to Moragne (299) was the fact that seamen were not treated as well as non-seamen in territorial waters, because non-seamen were allowed to borrow state law dealing with wrongful death and seamen were not allowed to do so. Therefore, the Moragne wrongful death action was created to place seamen, killed in territorial waters, at least on a par with non-seamen. After Higginbotham-Ivy, once again, seamen are at a disadvantage vis-a-vis non-seamen in territorial waters.
This is not the case on the high seas after Higginbotham. There, neither seamen nor non-seamen may recover for loss of society because Higginbotham restricted Gaudet to territorial waters. Then Higginbotham-Ivy further restricted Gaudet to non-seamen. Therefore, the significance of Gaudet is severely restricted; now only non- seamen in territorial waters can recover nonpecuniary losses.
Besides betraying a certain lack of humanity, Higginbotham-Ivy also brought a gross lack of uniformity to the law of maritime wrongful death. In Ivy, Judge Rubin was concerned about the disuniform treatment of seamen depending on whether death occurred on the high seas or in territorial waters. But, the lack of uniformity which results from allowing the recovery of different types of damages by seamen and non-seamen who are killed in the identical geographical location, was ignored by Judge Rubin. Ivy, like Higginbotham, represents a denial of both Moragne principles.
(2.) 46 U.S.C. [section][section] 761-768 (1970) [hereinafter cited as DOHSA].
(3.) See, e.g., Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970); Washington v. W. C. Dawson & Co., 264 U.S. 219 (1924J; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149(1920); Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).
(4.) See, e.g., Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573 (1974); The Sea Gull, 21 Fed. Cas. 909 (C.C.D.Md. 1865) (No. 12,578).
(5.) 436 U.S. 618 (1978).
(6.) Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970).
(7.) 398 U.S. 375 (1970).
(8.) 414 U.S. 573 (1974).
(9.) 507 F.2d 794 (1st Cir. 1974).
(10.) See generally S. Speism, Recovery for Wrongful Death (1966).
(11.) See, e.g., Law v. Sea Drilling Corp., 523 F.2d 793 (5th Cir. 1975); Barbe v. Drummond, 507 F.2d 794 (1st Cir. 1974).
(12.) 436 U.S. 618 (1978).
(13.) "The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought 46 U.S.C. [section] 762
(1970). The following cases have held that only pecuniary damages are recoverable under DOHSA: Igneri v. Cie de Transports Oceaniques, 323 F.2d 257 (2d Cir. 1963), cert, denied, 376 U.S. 949 (1964); First Nat'l Bank v. National Airlines, Inc., 288 F.2d 621 (2d Cir. 1961); National Airlines, Inc. v. Stiles, 268 F.2d 400 (5th Cir.), cert, denied, 361 U.S. 885 (1959); Middleton v. Luckenbach S.S. Co., 70 F.2d 326 (2d Cir.), cert, denied, 293 U.S. 577 (1934); In re Canal Barge Co., 323 F. Supp. 805 (N.D. Miss. 1971).
(14.) The uniformity requirement in maritime law has a constitutional base: the judicial grant of article III combined with the necessary and proper clause of article I. The power of Congress to legislate in the maritime area is distilled from
these two sources; that is, it is.
(15.) See notes 24-49 infra, and accompanying text.
(16.) And, indeed, as this study will indicate, the situation is also characterized by a lack in the humanitarian aspect of the maritime law.
(17.) 119 U.S. 199 (1886). The Harrisburg concerned a death in territorial waters, but in The Alaska, 130 U.S. 201 (1889), the Court applied the rule of The Harrisburg to the high seas.
(18.) The Moragne case was decided in 1970.
(19.) See generally H. Baer, Admiralty Law of the Supreme Court [section][section] 6-10 (1969); D. Robertson, Admiralty and Federalism ch. 13 (1970).
(20.) 207 U.S. 398 (1907).
(21.) 46 U.S.C. [section][section] 761-768 (1970).
(22.) 46 U.S.C. [section] 761 (1970).
(23.) 46 U.S.C. [section] 688(1970).
(24.) 45 U.S.C. [section][section] 51-60 (1970).
(25.) 257 U.S. 233 (1921).
(26.) DOHSA expressly provides that it does not preclude the application of state death statutes to territorial waters deaths. 46 U.S.C. [section] 767 (1970).
(27.) For a concise discussion of this entire area, see generally G. Gilmore and C. Black, The Law of Admiralty 360-67 (2d ed. 1975) [hereinafter cited as Gilmore and Black].
(28.) This latter course, available only to survivors of seamen, was based on the Supreme Court's view that the Jones Act was not intended to be exclusive as far as DOHSA was concerned. See, e.g., Kernan v. American Dredging Co., 355 U.S. 426 (1958); Doyle v. Albatross Tanker Corp., 367 F.2d 465 (2d Cir. 1966); The Four Sisters, 75 F. Supp. 399 (D. Mass. 1947).
(29.) 281 U.S. 38 (1930).
(30.) In Lindgren, the estate of the deceased seaman wished to borrow the Virginia wrongful death provision because the deceased's heirs, his nephew and niece, had not been dependent upon him and thus did not satisfy the Jones Act's dependency requirements for such beneficiaries. See Federal Employers' Liability Act, 45 U.S.C. [section][section] 51, 59 (1970). The reason state law could be borrowed in territorial waters when a non-seaman was killed, but not when a seaman was killed, is found in the three-pronged standard enunciated in the famous case of Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). State law could be applied to a maritime cause of action in the non-seaman context because (1) there was no federal maritime legislation applicable; (2) there was no rule of the general maritime law applicable; and (3) this was a case (wrongful death) where uniformity of the maritime law was not required. However, when dealing with a seaman, the first requirement of the Jensen test was the stumbling block: there was inconsistent federal maritime legislation, that is, the Jones Act. Therefore, under the Jensen test, state law could not be applied. However when wrongful death occurred on the high seas, there was no reason to borrow state law because two federal statutes were applicable: DOHSA and the Jones Act.
(31.) See Gillespie v. United States Steel Corp., 379 U.S. 148 (1964); Kernan v. American
Dredging Co., 355 U.S. 426 (1958).
(32.) See note 29 supra, for the proposition that there was no conflict between state and federal law when wrongful death occurred on the high seas.
(33.) See text accompanying note 24 supra.
(34.) 257 U.S. at 243 (quoting The Harrisburg, 119 U.S. 213, 214 (1886)).
(35.) Actually it was in the famous case that was to symbolize the uniformity principle,
Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), that the Supreme Court excepted wrongful death from that principle and found that the application of state death statutes did not offend required uniformity. Id. at 216.
(36.) 244 U.S. 205 (1917).
(37.) See Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972). This case held that locality.alone was no longer sufficient to establish admiralty jurisdiction in tort, but that locality-plus was to be the tort jurisdictional standard. The "plus" signifies a substantial connection between the tort and traditional maritime concerns.
(38.) One reason the Court held that the entire state law must be applied with the wrongful death provision was that Congress had seemed to mandate such a respect for state law in section 7 of DOHSA, which provides that "[the provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this [Act]." 46 U.S.C. [section] 767 (1970). See Judge Wisdom's discussion of this in In re S/S Helena, 529 F.2d 744, 751 (5th Cir. 1976).
(39.) For instance, it had been held that the measure of damages in a pre-Moragne territorial waters death case is whatever is provided by the borrowed state law. See, e.g., Briscoe v. United States, 65 F.2d 404 (2d Cir. 1933); Quinette v. Bisso, 136 F. 825 (5th Cir.), cert, denied, 199 U.S. 606 (1905). In 1953, it appeared as though the Court might step back from its "qualification of the right" theory of borrowing in the case of Levinson v. Deupree, 345 U.S. 648 (1953). Levinson involved a question related to the defective appointment of an administrator and the question of the application of the state prescriptive period in that context. The Court stated that, although it must take the state 'law as it is, this applies only to state rules which are a part of the state-created right, and not state procedural rules. Therefore, if a state provision could be characterized as procedural, it did not have to be applied in a maritime death action founded on the state statute.
(40.) 358 U.S. 588 (1959). See also United N.Y. & N.J. Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613 (1959).
(41.) That is, the deceased was the type of harbor worker to whom the case of Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), had extended the seaman's traditional warranty of seaworthiness. The Longshoremen's and Harbor Workers' Compensation Act was amended in 1972 to take away from these workmen the action based on unseaworthiness. See 33 U.S.C. [section] 905(b) (1976).
(42.) In The Tungus, the Court said that "when admiralty adopts a State's right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached." 358 U.S. at 592.
(43.) 361 U.S. 314 (1960).
(44.) Or. Rev. Stat. [section] 654.305-654.335 (1959).
(45.) 361 U.S. 340 (1960).
(46.) Gilmore and Black, supra note 26, at 367.
(47.) 361 U.S. at 344 n.5 (citations omitted).
(48.) Gilmore and Black, supra note 26, at 367.
(49.) Justice Brennan stated that humanitarian ideal well in Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573, 577 (1974): "Our approach to the resolution of the issue before us must necessarily be consistent with the extension of this 'special solicitude' to the dependents of the seafaring decedent."
(50.) See note 16 supra, and accompanying text.
(51.) 398 U.S. 375 (1970).
(52.) Fla. Stat. Ann. [section] 768.01 (West 1964), repealed 1972 Fla. Laws, ch. 72-35, [section] 2.
(53.) See note 40 supra.
(54.) Fla. Stat. Ann. [section] 25.031 (West 1965).
(55.) The Court stated:
We do not determine this issue now, for we think its final resolution should await further sifting through the lower courts in future litigation. For present purposes we conclude only that its existence ti.e., the problem of the relevant source of the Moragne action detail] affords no sufficient reason for not coming to grips with The Harrisburg. 398 U.S. at 408.
(56.) 33 U.S.C. [section][section] 901-950 (1976).
(57.) 398 U.S. at 395-96.
(58.) Id. at 395.
(60.) This was true between 1946, the date of Sieracki, and 1972, the date when the Longshoremen's and Harbor Workers' Compensation Act was amended to legislatively over rule Sieracki and strip such workmen of their unseaworthiness action. See 33 U.S.C. [section] 905(b)(1976).
(61.) Also apparent is that each anomaly also entails the withholding of the more liberal remedy in admiralty, which runs contrary to the traditional humanitarian thrust of that law. For a discussion of this aspect of Moragne, see notes 67-77 infra, and accompanying text.
(62.) See, e.g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960); Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946).
(63.) 398 U.S. at 399.
(64.) Id. at 399-400.
(65.) Id. at 401-02 (quoting The Lottawanna, 88 U.S. (21 Wall.) 558, 575 (1875)) (citations omitted).
(66.) Id. at 402
(67.) See 7A J. Moore, Moore's Federal Practice [paragraph] 330 n.5 (Supp. 1973) [hereinafter cited as Moore], and text accompanying note 228 infra.
(68.) What the author is suggesting is that Moragne contained the seed of its own destruction. Although, as indicated by the discussion in the text, the concept of uniformity was the core, essential element of that case; the decision was also, to. a great extent, based on a competing concept which would, in the future, trigger the destruction of that other concept (uniformity). This competition was not directly presented in Moragne itself; but the very possibility of its later emergence was an element of that decision.
(69.) Justice Harlan's Moragne opinion has been the subject of almost universal acclaim. For instance, Professors Gilmore and Black say of Justice Harlan's discussion of why The Harrisburg should be cast aside "that the demonstration was carried out with the assured touch of a great master." Gilmore & Black, supra note 26, at 368. For the reasons given in the text, the present author is of the opinion that this approval is ill-founded and itself contributed to the judicial floundering that followed Moragne.
(70.) One author recognized that two policies run through Moragne and Gaudet, but apparently did not appreciate the true significance of the fact: "Thus, the policies announced in Moragne and in [Gaudet] indicate a favorable Supreme Court reception to any necessary reorganization of judicial precedent in order to provide remuneration within a uniform system of maritime law and in keeping with the 'special solicitude' encompassed in this body of laws." Comment, Charting the Waters After Moragne: Sea-Land Services, Juc. v. Gaudet, 26 BAYLOR L. REv. 566, 588 (1974).
(71.) "Our recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies, removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts." 398 U.S. at 401.
(72.) "[Clertainly it better becomes the humane and liberal character of proceedings in
admiralty to give [rather] than to withhold the remedy, when not required to withhold it by established and inflexible rules." Id. at 387 (quoting The Sea Gull, 21 F. Cas. 909, 910 (C.C.Md. 1865) (No. 12,578)).
(73.) See note 12 supra, and accompanying text.
(74.) The reference is to the unavailability of nonpecuniary damages under the two federal statutes. Of course, in other ways, the statutes are quite liberal and plaintiff-oriented.
(75.) 414 U.S. 573 (1974).
(76.) DOHSA and the Jones Act.
(77.) The two-pronged nature of Moragne is well illustrated by Justice Brennan's remarks in Gaudet:
In overruling The Harrisburg, Moragne ended these anomalies by the creation of a uniform federal cause of action for maritime death, designed to extend to the dependents of maritime wrongful-death victims admiralty's "special solicitude for the welfare of those men who undertake] to venture upon hazardous and unpredictable sea voyages." Our approach to the resolution of the issue before us must necessarily be consistent with the extension of this "special solicitude" to the dependents of the seafaring decedent. 414 U.S. at 577 (quoting Moragne v. States Marine Lines, Inc., 398 U.S. 375, 387 (1970)).
(78.) See notes 137-56 infra, and accompanying text.
(79.) The question of the proper elements of damage was not the only area of conflict; but, it was apparently the most significant one. Other Moragne details that required elucidation by the lower courts had to do with the limitation period, proper party to sue, etc. The courts agreed that laches applied, but disagreed as to what should be looked to, for purposes of analogy, to ascertain whether laches existed or not. In Ward v. Union Barge Line Corp., 443 F.2d 565 (3d Cir. 1971), the court looked to the Jones Act as a guide for laches. In Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670 (2d Cir. 1971), DOHSA was looked to as a guide. In Thomas v. C. J. Langenfelder & Sons, Inc., 324 F. Supp. 325 (D.Md. 1971), the court held that, when two actions with differing limitation periods were brought together, the shorter period should not be used. With regard to the issue of the proper party to sue, it was held that only the personal representative of the deceased may sue, Futch v. Midland Enter., Inc., 471 F.2d 1195 (5th Cir. 1973), but it was also held that the mother of illegitimate children may sue in her own capacity. Mungin v. Calmar S.S. Corp., 342 F. Supp. 479 (D.Md. 1972). The question of whether recoveries go to the survivors or to the estate was resolved in favor of the survivors. Futch v. Midland Enter., Inc., 471 F.2d 1195 (5th Cir' 1973); In re United States Steel Corp., 436 F.2d 1256 (6th Cir. 1970), cert, denied, 402 U.S. 987 (1971); Dennis v. Central Gulf S.S. Corp., 323 F. Supp. 943 (E.D.La. 1971), affd, 453 F.2d 137 (5th Cir.)., cert, denied, 409 U.S. 948 (1972). Therefore, although the questions generated by Moragne were not limited to questions of recoverable damages, this issue was perhaps the one of central importance. See generally Note, 24 Emory L.J. 195, 198-213 (1975).
(80.) See the dissenting opinion in Gaudet for an excellent discussion of this issue. 414
U.S. at 606 n.18 (Powell, J., dissenting).
(81.) 398 U.S. at 408.
(82.) See In re M/V Elaine Jones, 480 F.2d 11 (5th Cir. 1973); Greene v. Vantage S.S. Corp., 466 F.2d 159 (4th Cir. 1972); Dennis v. Central Gulf S.S. Corp., 453 F.2d 137 (5th Cir.), cert, denied, 409 U.S. 948 (1972); Simpson v. Knutsen, 444 F.2d 523 (9th Cir. 1971); In re United States Steel Corp., 436 F.2d 1256 (6th Cir.), cert, denied, 402 U.S. 987 (1970).
(83.) 466 F.2d 159 (4th Cir. 1972).
(84.) Id. at 164.
(87.) . Id. at 165.
(88.) See notes 35-38 supra, and accompanying text.
(89.) 466 F.2d at 165.
(90.) 398 U.S. at 388-93.
(91.) 466 F.2d at 166.
(92.) Id. The yourt allowed recovery for conscious pain and suffering under the general maritime law wrongful death action even though a majority of wrongful death statutes (state and federal) would not consider it a wrongful death item of damages because the state statutes normally allowed it as a survival item of recovery. Id. at 166-67. See Comment, Wrongful Death Damages in North Carolina, 44 N.C. L. REv. 402 (1966). Funeral expenses were allowed because a majority of states allowed them, 466 F.2d at 167, and also because before The Harrisburg the general maritime law allowed such recovery. Id.
(93.) Id. at 167-68. The court decided that, because a majority of statutes (state and federal) did not permit recovery for grief and mental anguish, the general maritime law should not permit such recovery either. Id. at 168.
(94.) 329 F. Supp. 652 (E.D. La. 1971), rev'd sub nom., In re S/S Helena, 529 F.2d 744 (5th Cir. 1976).
(95.) Id. at 657.
(96.) With regard to any potential conflict with the Jones Act, Judge Rubin stated:
"Beneficiaries who recover under the Jones Act for the death of seamen may be unable to recover for their grief. It is enough here to recognize this consideration; whether or not it is to be resolved must be determined when a Jones Act death claim is presented." Id. Although the United States Court of Appeals, relying on the intervening Gaudet case, later reversed Judge Rubin on this precise point (In re S/S Helena, 529 F.2d 744 (5th Cir. 1976)), since this survey treats cases decided between Moragne and Gaudet in order to gauge the temper of the lower federal judiciary on this issue during a specific time span, the author has felt it appropriate to include the Sincere Navigation case at this point in the study.
(97.) 323 F. Supp. 943 (E.D.La. 1971), affd, 453 F.2d 137 (5th Cir.), cert, denied, 409
U.S. 948 (1972).
(98.) 453 F.2d at 140.
(99.) Id. Here the court was in agreement with Greene v. Vantage S.S. Corp., 466 F.2d 159 (4th Cir. 1972).
(100.) 339 F. Supp. 91 (E.D.La. 1971).
(101.) Id. at 93.
(102.) 480 F.2d 11 (1973), modified, 513 F.2d 911 (5th Cir.), cert, denied, 423 U.S. 840 (1975).
(103.) The Fifth Circuit here grouped loss of society with mental anguish in a general
nonpecuniary category termed "survivors grief for which recovery was denied. This grouping was dissected, however, in Gaudet wherein the Supreme Court distinguished nonpecuniary loss of society (recoverable) from nonpecuniary grief and sorrow (nonrecoverable). 414 U.S. at 585 n.17. Thus, the Canal Barge Co. grouping is no longer viable.
(104.) The circuit court said: "Relying by analogy on the Jones Act ... and ... [DOHSA] ... and rejecting as discordant with admiralty's quest for uniformity the suggestion that state law be borrowed, the District Court concluded that damages for survivor's grief could not be recovered in a general maritime action for death caused by unseaworthiness." 480 F.2d at 29. For convenience, in case the appellate court disagreed, the district court set the damage figures at $60,000 for lost love and affection, $20,000 to the widow and $10,000 to each of the four children. Id.
(105.) Here the court was in disagreement with Judge Rubin in the Sincere Navigation case. See text accompanying notes 93-95 supra.
(106.) The Fifth Circuit also refused damages for loss of love and affection. See Hueschen v. Fluor Ocean Serv., Inc., 483 F.2d 1396 (1973), vacated and remanded, 494 F.2d 1354 (5th Cir. 1974).
(107.) 480 F.2d at 33-34.
(108.) Id. at 34.
(109.) 436 F.2d 1256 (6th Cir. 1970), cert, denied, 402 U.S. 987 (1971).
(110.) See, e.g., Igneri v. Cie de Transports Oceaniques, 323 F.2d 257 (2d Cir. 1963), cert, denied, 376 U.S. 949 (1964).
(111.) See, e.g., Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960).
(112.) 436 F.2d at 1279 (citations omitted).
(113.) In Simpson v. Knutsen, 444 F.2d 523 (9th Cir. 1971), which involved the death of a longshoreman in California waters, the court followed the United States Steel Corp. case in looking to the general maritime law of personal injuries and finding that loss of consortium was not allowed under that law. In Curry v. United States, 338 F. Supp. 1219 (N.D. Cal. 1971), the court, without significant discussion, also refused to award damages for loss of consortium. In Smith v. Olsen & Ugedstad, 324 F. Supp. 578 (E.D. Mich. 1971), an action to recover for the territorial waters death of a longshoreman, the court, by analogy to DOHSA, refused to allow recovery for loss of consortium.
(114.) 342 F. Supp. 479 (D.C. Md. 1972).
(115.) Id. at 480.
(116.) In opting to award pecuniary damages only, the court stated: "In the absence of any indication from the Supreme Court that Moragne damages should differ from those generally permissible under existing statutory authority and in the interest of insuring uniformity in maritime law, the usual measure of damages, actual pecuniary loss, will be awarded." Id. at 482. Of course, that "indication from the Supreme Court" came soon after in Gaudet.
(117.) 471 F.2d 1195 (5th Cir. 1973).
(118.) 33 U.S.C. [section][section] 901-950 (1976).
(119.) 471 F.2dat 1196.
(120.) 338 F. Supp. 365 (S.D. Fla. 1972), affd, 481 F.2d 102 (5th Cir.), cert, denied, 414
U.S. 1068 (1973).
(121.) Id. at. 366.
(122.) Id. at 367 (quoting Dennis v. Central Gulf S.S. Corp., 453 F.2d 137, 140 (5th Cir.), cert, denied, 409 U.S. 948 (1972)).
(123.) 436 F.2d 1256 (6th Cir. 1970), cert, denied, 402 U.S. 987 (1971). See also Mascuilli
v. United States, 343 F. Supp. 439 (E.D.Or. 1972), rev'd on other grounds, 483 F.2d 81 (3d Cir. 1973). In Mascuilli, suit was filed seeking recovery for the territorial waters death of a longshoreman. The basis of the wrongful death action was unseaworthiness and the case was similar to Moragne in that the state death statute had been interpreted to encompass only deaths resulting from negligence. The court allowed recovery for pecuniary loss, but on the basis that both DOHSA and the state act were limited to such losses. Thus the case is not clear authority as to which horn of the Moragne dilemma would have been chosen if the choice had been required. There is, however, an inscrutable footnote in the case which is reproduced for the sake of completeness:
In a 1932 opinion, The Culberson, ... the Court of Appeals for the Third Circuit held that under [DOHSA], funeral costs would be considered an estate expense and thus could not be recovered in a wrongful death action. In view of Moragne and the majority view of the states, a contrary result might well be reached today.
Id. at 442 n.5 (citing Dennis v. Central Gulf S.S. Corp., 323 F. Supp. 943, 949 (E.D. La. 1971), affd, 453 F.2d 137 (5th Cir.), cert, denied, 409 U.S. 948 (1972)) (citations omitted).
(124.) 353 F. Supp. 691 (N.D. Ohio 1973).
(125.) Id. at 693-94.
(126.) Id. at 694.
(129.) 398 U.S. at 390-92.
(130.) 353 F. Supp. at 695.
(132.) Id. at 697.
(133.) Id. at 698.
(134.) Id. at 694.
(135.) 264 So. 2d 317 (La. App. 1st Cir.), writ refused, 262 La. 1124, 266 So. 2d 432 (1972).
(136.) The court said: "The [Moragnel Court indicated that the details of the new remedy would be jurisprudentially arrived at through analogy to federal wrongful death statutes such as the Jones Act and [DOHSA]. It is to these statutes [that] we must look to determine the elements of damage." Id. at 321(footnotes omitted).
(137.) Id. at 322.
(138.) 414 U.S. 573 (1974).
(139.) Justice Harlan, in discussing whether The Harrisburg should be overruled under the theory of stare decisis stated: "Finally, a judicious reconsideration of precedent cannot be as threatening to public faith in the judiciary as continued adherence to a rule unjustified in reason, which produces different results for breaches of duty in situations that cannot be differentiated in policy." 398 U.S. at 405. Surely, when Gaudet and Higginbotham are read together what one finds are precisely "different results for breaches of duty in situations that cannot be differentiated in policy." Thus, Gaudet Higginbotham violate the express basis of Moragne indicated by the above quotation.
(140.) The award was reduced by the jury from $175,000 because of a finding of 20% contributory negligence.
(141.) On this and related issues, see generally Vestal, Claim Preclusion and Parties in Privity: Sea-Land Services v. Gaudet in Perspective, 60 Iowa L. Rev. 973 (1975).
(142.) 414 U.S. at 579.
(143.) See, e.g., Mellon v. Goodyear, 277 U.S. 335 (1928).
(144.) 414 U.S. at 583 n.10 (quoting Moragne v. States Marine Lines, Inc., 398 U.S. 375, 407 (1970)) (citation omitted). Justice Powell, in dissent, disagreed on the point about DOHSA because "no cases addressing the situation presented here appear to have arisen under that Act." Id. at 599 (Powell, J., dissenting). Justice Powell felt that such a result under DOHSA would not be readily acceptable because it would destroy uniformity by conflicting with the Jones Act. He also felt that section 765 of DOHSA dictated otherwise by providing that if a person dies during the pendency of his personal injury action, that action may be transformed into a DOHSA wrongful death action. "Surely this substitution provision evidences a congressional recognition that only one action or the other should be allowed to proceed to judgment." Id. at 600-01 (Powell, J., dissenting).
(145.) In Gaudet, the Fifth Circuit had not expressly addressed the issue of items of recovery. The court had said that it intended to "intimate nothing as to the possibility of Mrs. Gaudet proving any of the possible damage elements listed above, nor which of them should be includible in this federal maritime action." 463 F.2d at 1333.
(146.) "The term 'society' embraces a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort, and protection." 414 U.S. at 585.
(147.) There is some doubt as to whether funeral expenses are recoverable under DOHSA.
See text accompanying note 150 infra. The statement in the text should be considered with this in mind.
(148.) 414 U.S. at 587-88.
(149.) 119 U.S. 199(1886).
(150.) 414 U.S. at 591.
(152.) Most writers have failed to understand what the Court was attempting to do in Gaudet; they have failed to understand that the Gaudet Court was intentionally opting for humanity, and perhaps for uniformity too, depending on future developments. See, e.g., Note 5 Calif. West. Int'l L.J. 446, 454 (1975):
Nevertheless, maritime wrongful death law had been basically settled as to the denial of a subsequent recovery where the decedent had previously recovered. In spite of this, the Court's decision in [Gaudet] enunciated a judgment contrary to the prior law, and has thereby created a new discrepancy in the general body of maritime law. The same author goes on to accuse the Gaudet Court of a violation of Moragne:
The final problem caused by the prior recovery conflict is the breach of theMoragne guidelines. Specifically, the Supreme Court expressed the need to draw from and to rely on the federal and state acts in establishing the precise nature and extent of the newly created maritime wrongful death action. Yet, in [Gaudet] the Court found no trouble in disregarding the Moragne guidelines, from which the existence of [Gaudet] arose, and proceeded to hold directly contrary to generally settled maritime law of the Jones Act, its line of cases, and the [DOHSA] implication. Id. at 455. But the real problem was that, no matter how the Court acted, it would be in violation of Moragne. The Court chose not to violate Moragne's humanitarian theme, that is all.
(153.) 414 U.S. at 601 (Powell, J., dissenting).
(154.) Id. (Powell, J., dissenting).
(155.) In summarizing his discussion of congressional intent to limit DOHSA to the high seas, Justice Harlan said: "[DOHSA] was not intended to preclude the availability of a remedy for wrongful death under general maritime law in situations not covered by the Act."398 U.S. at 402 (emphasis added). Of course, he was referring to the facts of the case before him, as well as to the historical purpose for limiting the congressional statute to the high seas. There is another indication of congressional intent in Moragne that the new remedy be limited to territorial waters. "We find that Congress has given no affirmative indication of an intent to preclude the judicial allowance of a remedy for wrongful death to persons in the situation of this petitioner." Id. at 393. The "situation of this petitioner" was that he was killed in the territorial waters of the State of Florida.
(156.) 414 U.S. at 605 (Powell, J., dissenting).
(157.) Id. at 606 (Powell, J., dissenting).
(158.) For an excellent treatment of this entire area, see Note, 5 SEroN HALL L. RaV. 896 (1974). The author of this Note suggests that Moragne-Gaudet may replace the federal statutory scheme, but he does not really discuss the issue or give any supporting reasons for such a conclusion.
(159.) 46 U.S.C. [section] 762 (1970).
(160.) Gilmore and Black, supra note 26, at 368.
(161.) Id. at 370.
(162.) Id. The author submits that Professors Gilmore and Black are both right and wrong in these assessments of the radical effects of Moragne and Gaudet. After Moragne had been decided, but before the Gaudet decision, there was simply no reason to read the case so broadly because a basic uniformity could possibly be attained by modeling the Moragne action after DOHSA. But after the Court in Gaudet refused to do this, and instead looked to state statutes for analogies, perhaps the good professors' initial position had been salvaged.
(163.) The Court in Gaudet did not expressly state the territorial applicability of that case. The facts, however, as stated in the text, concerned territorial waters.
(164.) 325 F. Supp. 1 (E.D.La. 1971).
(165.) 46 U.S.C. [section][section] 441-445 (1970).
(166.) 325 F. Supp. at 7.
(167.) Id. (quoting Moragne v. States Marine Lines, Inc., 398 U.S. 375, 396 n.12 (1970)).
(168.) Id. at 8.
(169.) 358 F. Supp. 145 (S.D.N.Y. 1973), modified, 501 F.2d 376 (2d Cir. 1974), cert, denied, 420 U.S. 964 (1975).
(170.) Id. at 152.
(171.) 321 F. Supp. 42 (E.D.Va. 1971).
(172.) The original libel was filed for the benefit of "dependent relatives who [had] suffered pecuniary loss by reason of his death." ... [l]he amended libel alleged that [decedent] "left surviving him next of kin and dependents,
including but not limited to, his widow if any, his children if any, and his mother, father, brothers and sisters, all of whom [had] suffered pecuniary loss by reason of his death." Id. at 44.
(173.) Id. at 47 (emphasis added). The court also said that it doubted "that Moragne was intended to give an alternative remedy under general maritime law where the obvious right to maintain an action exists under ... [DOHSA] or [the] Jones Act." Id. at 47-48.
(174.) 46 U.S.C. [section] 764 (1970). Another case should be mentioned. In Tug Michele, 1974 A.M.C. 2637 (E.D.Va. 1974) the United States District Court for the Eastern District of Virginia applied Moragne along with DOHSA and the Jones Act to the high seas death of a seaman. The court said: "In the case at bar, there are three methods by which the personal representatives of the deceased plaintiffs may recover; the Jones Act, [DOHSA], and the general maritime action for wrongful death as enunciated in Moragne ...." Id. at 2648 (citations omitted). The court further stated that "no election is required and all theories of recovery may be pleaded in the same cause of action." Id. at 2649 (citations omitted).
(175.) For a brief discussion of pre-Gaudet cases in the context of their extraterritorial applicability, see Schill, Moragne-Gaudet: Three If By Sea?, 13 HousT. L. REV. 917, 923-30
(176.) 507 F.2d 794 (1st Cir. 1974).
(177.) See Dennis v. Central Gulf S.S. Corp., 323 F. Supp. 943 (E.D.La. 1971), affd, 453 F.2d 137 (5th Cir.), cert, denied, 409 U.S. 948 (1972); Canillas v. Joseph H. Carter, Inc., 280 F. Supp. 48 (S.D.N.Y. 1968); Decker v. Moore-McCormack Lines, Inc., 91 F. Supp. 560 (D. Mass. 1950).
(178.) See Greene v. Vantage S.S. Corp., 466 F.2d 159 (4th Cir. 1972); Dennis v. Central Gulf S.S. Corp., 323 F. Supp. 943 (E.D. La. 1971), affd, 453 F.2d 137 (5th Cir.), cert, denied, 409 U.S. 948 (1972).
(179.) 507 F.2d at 799 (footnote and citations omitted).
(180.) In Spiller v. Thomas M. Lowe, Jr. & Assoc., Inc., 466 F.2d 903 (8th Cir. 1972), the Eighth Circuit, in following the First Circuit, recognized a federal survival action under the general maritime law.
(181.) 507 F.2d at 801 (quoting Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573, 596 (1972)) (citations and footnotes omitted). The following cases have allowed recovery of funeral expenses under Moragne: Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573 (1974); Greene v. Vantage S.S. Corp., 466 F.2d 159 (4th Cir. 1972); Nye v. A/S D/S
Svendborg, 358 F. Supp. 145 (S.D.N.Y. 1973), modified, 501 F.2d 376 (2d Cir. 1974), cert, denied, 420 U.S. 964 (1975); Mascuilli v. United States, 343 F. Supp. 439 (E.D.Pa. 1972), rev'd on other grounds, 483 F.2d 81 (3d Cir. 1973); Dennis.v. Central Gulf S.S. Corp., 323 F. Supp. 943 (E.D.La. 1971), affd, 453 F.2d 137 (5th Cir.), cert, denied, 409 U.S. 948 (1972); In re Farrell Lines, Inc., 339 F. Supp. 91 (E.D.La. 1971).
(182.) 510 F.2d 242, on petition for rehearing, 523 F.2d 793 i5th Cir. 1975). Law is the leading Fifth Circuit case because Higginbotham, also a Fifth Circuit case, had relied entirely on Law as binding precedent on the question of Moragne's applicability on the high seas. Therefore, in reversing Higginbotham, the Supreme Court was really dealing with, and in effect reversing, Law. See Higginbotham v. Mobile Oil Corp., 545 F.2d 422, 436 n.19 (5th Cir. 1977), rev'd, 436 U.S. 618 (1978).
(183.) It should be noted that, prior to Law, the Fifth Circuit had expressly reserved the question of Moragne's extra-territorial applicability: "Whether Moragne applies on the high seas is an issue not yet decided by this court and not briefed by the parties, and we do not consider it." In re Dearborn Marine Serv., Inc., 499 F.2d 263, 270 n.12 (5th Cir. 1974).
(184.) Chief Judge Brown stated: "We join the First Circuit in its recent Barbe decision to now hold what we said in Dennis that Moragne applies not only to navigable waters of the States, but to the High Seas as well, including the area defined in challenged by defendants and triggered the opinion on the petitions for rehearing. Here Judge Brown addressed this aspect of the case at' length.
DOHSA." 510 F.2d at 250 (citations omitted). What Judge Brown meant by his sympathetic reference to the First Circuit escapes the author, since that circuit had expressly refused to apply Moragne to the high seas in Barbe. It is submitted that this was simply a mistake on Judge Brown's part.
(185.) 523 F.2d at 794 (emphasis added). In Hornsby v. Fish Meal Co., 431 F.2d 865 (5th Cir. 1970), the decision of which was delayed pending the Supreme Court's disposition of Moragne, Judge Brown did not indicate that Moragne would apply on the high seas. Hornsby involved deaths in territorial waters; the court held that, since the deaths were in such waters, DOHSA was inapplicable. To the present writer, this statement would seem to indicate that had this been the high seas, DOHSA, contrary to what was later said in Law, would have been held applicable.
(186.) 523 F.2d at 795 (quoting Barbe v. Drummond, 507 F.2d 794, 801 (1st Cir. 1974)) (original emphasis).
(187.) Judge Brown openly, and correctly, relied on Gaudet as authority for allowing Moragne to apply on the high seas. Id. at 796.
(190.) Gilmore and Black, supra note 26, at 370.
(191.) See Gilmore and Black's view that "If from Justice Harlan's discussion of the 'anomalies' which the Moragne decision was designed to avoid, several conclusions clearly follow. The Moragne remedy covers deaths within territorial waters as well as deaths on the high seas." Gilmore and Black, supra note 26, at 368. The authors further state:
DOHSA, for example, contains a provision ([section] 761) which has been taken to mean that jurisdiction in DOHSA suits is vested exclusively in the federal courts on the admiralty side; despite that provision, Justice Harlan suggested, actions for wrongful death on the high seas under Moragne could be brought under the saving to suitors clause in non-admiralty courts with a right to jury trial.
(192.) 28 U.S.C. [section] 1333 (1976). This clause provides for concurrent jurisdiction of most in personam maritime actions between the admiralty and law courts.
(193.) 523 F.2d at 797.
(194.) FED. R. Civ. P. 9(h).
(195.) 46 U.S.C. [section] 761 (1970). See Noel v, Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert, denied, 355 U.S. 907 (1957).
(196.) 28 U.S.C. [section] 1333 (1976).
(197.) 523 F.2d at 797-98.
(198.) Id. at 798.
(201.) The Barbe court stated:
Since DOHSA clearly provides a cause of action for wrongful death in this case, we fail to see how Moragne applies.. We hold that the measure of damages for wrongful death provided by DOHSA, namely, "pecuniary loss," controls in the instant case.... We believe that to cast aside DOHSA in favor of the Moragne cause of action would be to engage in a "tabula rasa restructuring of the law of admiralty," ... of the sort Moragne counseled against. 507 F.2d at 801 (quoting Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573, 596 (1974)) (citations and-footnotes omitted). The author finds nothing in this language to indicate that the deci- sion is based on the fact that Barbe was an admiralty, nonjury action. Since Moragne, under Barbe, can never apply on the high seas, there is never a time when DOHSA does not apply there.
(202.) Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978).
(203.) It is the author's contention that the Barbe case is one of the most misinterpreted cases on record. For instance, one author has said the following: "The rationale of this decision [Law] was that the general maritime wrongful death remedy was not just a stop- gap survival action, as the Barbe court had held, but one that included items traditionally allowed under both wrongful death and survival actions." Note, 11 TEx. INT'L L.J. 595, 599 (1976). Of course, the Barbe court held no such thing. In Barbe, the court simply refused to apply the Gaudet wrongful death remedy to the high seas. It clearly recognized that wrongful death was involved in Gaudet.
(204.) The requisites for federal law jurisdiction under the clause would be diversity of citizenship and the minimum amount-in-controversy. See Romero v. International Term.
Oper. Co., 358 U.S. 354 (1959).
(205.) Note, 13 HOUST. L. REV. 615 (1976).
(206.) Another writer has taken the Law court to task for this reading of Barbe. See Schill, Moragne-Gaudet: Three If By Sea?, 13 Houst. L. Rev. 917 (1976). Schill feels that "the Moragne-Gaudet theories could not be applied on any docket if the casualty occurred without the one league limit" and that "there is nothing in Barbe which produces this anomaly, since the decision prohibits the application of Moragne-Gaudet beyond the one marine league from shore." Id. at 925-26. Finally, Schill writes that "Itihe Barbe decision recognizes a geographical line of demarcation established by an act of Congress upon which the docket [admiralty or law] selected by the litigant has no bearing." Id. at 927. Schill also feels that the application of Moragne-Gaudet to the high seas would in no way remove Judge Brown's "anomaly:" "Additionally, there is no language within the Law decision which circumscribes the plaintiffs right to select a jury trial on the civil docket or a nonjury trial by designating the case as subject to Rule 9(h); therefore, the 'trifid system' will continue." Id. (footnote omitted).
(207.) One writer has said the following concerning Law's interpretation of Barbe: Apparently, the Fifth Circuit strictly construed the Barbe decision to mean that the Moragne wrongful death action was precluded on the high seas, and DOHSA was the exclusive wrongful death remedy only if such an action was brought under the federal court's admiralty jurisdiction. Thus, the Fifth Circuit contended that even if Barbe represented correct law, it would not bar recovery in the present case, for the federal court's jurisdiction in Law could have been based on diversity of. citizenship under the Saving to Suitors Clause, instead of on admiralty. Note, 22 Loy. L. REv. 646, 655 (1976) (original emphasis). That certainly appears to be Judge Brown's point in Law. The Note author, however, does not critique Judge Brown's view, nor does he explain how the Chief Judge arrived at it. This is understandable. It is difficult to critique something that avoids logical analysis in the first place. The temptation is to be thoroughly confused by Judge Brown's discussion, and then to attribute this conclusion to oneself instead of to the Chief Judge of the United States Court of Appeals for the Fifth Circuit. But, as mentioned in the text, Judge Brown was not at all confused; it was just that he was engaged, at this point in the Law opinion, in tactical maneuvering instead of logical analysis.
(208.) And, of course, from Moragne's own influence. See notes 67-77 supra, and accompanying text.
(209.) One writer did recognize what Judge Brown was attempting to do in Law:
In Moragne, Justice Harlan sought to create a uniform system of recovery for wrongful death. The Fifth Circuit's holding in Law is clearly in accord with that intent. A uniform federal maritime cause of action for death on all navigable waters exists independent of state law and the pecuniary loss requirement of DOHSA. Note, 11 Tex. Int'l L.J. 595, 599 (1976).
(210.) The reference is to the view that, even without the direct application of Moragne to the high seas, it could apply to the high seas if the action were brought at law under the saving to suitors-clause.
(211.) See Hammill v. Olympic Airways, 398 F. Supp. 829 (D.D.C. 1975); Tialigo v. Steffany, 1975 A.M.C. 1549 (Samoa 1975). Of course, as discussed in the text, this would follow according "to Chief Judge Brown and the Law court even if Law were subsequently overturned.
(212.) 405 F. Supp. 332 (D.S.C. 1975).
(213.) 46 U.S.C. [section] 763 (1970).
(214.) 46 U.S.C. [section] 688 (1970) (incorporating by reference the limitations contained in the Federal Employers' Liability Act, 45 U.S.C. [section] 56 (1970)).
(215.) Such elements included allowing the survivors to recover for wrongful death after the deceased had recovered for his injuries during life and allowing loss of society as a wrongful death element, elements uninhibited by DOHSA or the Jones Act.
(216.) 405 F. Supp. at 337.
(220.) In order to be consistent with both elements of the Moragne double dilemma, Moragne must apply on the high seas and in territorial waters. See notes 67-77 supra, and accompanying text.
(221.) The Supreme Court in Higginbotham indicated that this would be its preference.
436 U.S. at 625.
(222.) 405 F. Supp. at 338.
(223.) 398 F. Supp. 829 (D.D.C. 1975).
(224.) 409 U.S. 249 (1972). This is the case that held that some maritime subject matter is required for admiralty tort jurisdiction. The mere locality of the occurrence, although necessary, is not alone sufficient. See note 36 supra.
(225.) 398 F. Supp. at 835.
(226.) Id. at 836.
(227.) See notes 159-61 supra, and accompanying text.
(228.) 46 U.S.C. [section] 764 (1970).
(229.) 398 F. Supp. at 836 n.11 (quoting MOORE, supra note 66 at U330[21 n.5) (emphasis added).
(231.) Id. at 836 (footnotes omitted).
(232.) Id. at 837 (quoting Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573, 577 (1974)).
(234.) 403 F. Supp. 849 (C.D.Cal. 1975).
(235.) Gilmore and Black, supra note 26, at 367-68; 2 E. Benedict, Benedict on Admiralty 7-37 (7th ed. 1975).
(236.) See 414 U.S. at 585-86 n. 17.
(237.) 403 F. Supp. at 852. In addition to dealing with the question of the elements of damages, the court also held that both DOHSA and Moragne include claims founded on intentional torts and the doctrine of strict liability. It was also decided that, even though the plaintiffs had instituted their actions some four years after the accidents, and even though in applying laches under Moragne the DOHSA two-year period would be accepted under the general maritime law, the presence of fraudulent misrepresentation would preclude the application of laches and would toll the DOHSA two-year limitation period. Actually, the strength of this case as precedent is weakened because of the finding of fraud.
(238.) 395 F. Supp. 978 (E.D.La. 1975).
(239.) This is true under the Federal Employers' Liability Act, 45 U.S.C. [section][section] 51-60 (1970), incorporated into the Jones Act by reference.
(240.) 395 F. Supp. at 984.
(242.) See Sennett v. Shell Oil Co., 325 F. Supp. 1 (E.D.La. 1971).
(243.) 404 F. Supp. 663 (E.D.N.Y. 1975).
(244.) Id. at 664.
(245.) The court stated: "This decision to submit *the entire case to the jury is consistent with the Supreme Court's decision expressed in Moragne to defer resolving the relationship between [DOHSAJ and general maritime law pending further sifting in the lower federal courts in future litigation." Id. (citation omitted).
(246.) 1975 A.M.C. 1549 (Samoa 1975).
(247.) 46 U.S.C. [section] 761 (1970).
(248.) 28 U.S.C. [section] 1333 (1976).
(249.) Note that, unlike Judge Brown in Law, this court was of the opinion that the availability of the saving to suitors clause to high seas wrongful deaths
depended on Moragne's applicability on the high seas. See notes 199-207 supra, and accompanying text.
(250.) 1975 A.M.C. at 1551.
(251.) It is arguable here that the court meant that the Moragne action could not be brought in admiralty. If this was the intended meaning,
the case, for purposes of the present discussion, would be unchanged. It is unclear to the author what was intended by the following remarks:
Our holding does not detract from the viability of DOHSA. Its unique statutory value is that it guarantees a federal forum, albeit an admiralty court, to the personal representative of a person who died by a wrongful act on the high seas regardless of the citizenship of the party, the amount in controversy, or the availability of a vessel to sue.
(252.) See notes 199-207 supra, and accompanying text.
(253.) 440 F. Supp. 752 (S.D. Tex. 1977).
(254.) Id. at 761.
(255.) See Landry v. Two R. Drilling Co., 511 F.2d 138 (5th Cir. 1975). But cf. Addendum:
A Touch of Ivy, pp. 67-70 infra, for a discussion of the recent Fifth Circuit case of Ivy v. Security Barge Lines, Inc., 585 F.2d 732 (1978), rehearing granted, No. 764130 (5th Cir. Mar. 28, 1979) (en banc), in which a Jones Act seaman was denied Gaudet damages in territorial waters.
(256.) See In re Dearborn Marine Serv., Inc., 499 F.2d 263 (5th Cir. 1974); Doyle v. Albatross Tanker Corp., 367 F.2d 465 (2d Cir. 1966); Civil v. Waterman S.S. Corp., 217 F.2d 94 (2d Cir. 1954).
(257.) 436 U.S. 618 (1978).
(258.) Id. (emphasis added).
(259.) Higginbotham v. Mobil Oil Corp., 357 F. Supp. 1164, 1175 (W.D. La. 1973).
(260.) Higginbotham v. Mobil Oil Corp., 360 F. Supp. 1140, 1150 (W.D. La. 1973) (citations omitted).
(261.) Higginbotham v. Mobil Oil Corp., 545 F.2d 422, 435-36 (5th Cir. 1977).
(262.) Id. at 436 n. 19 (original emphasis).
(263.) 436 U.S. at 624 (footnote omitted).
(264.) Id. at 622.
(265.) Id. at 623.
(266.) Id. at 624 (footnote omitted).
(267.) Id. at 625.
(269.) It should be pointed out that a lack of uniformity continues to exist in regard to a seaman's rights in territorial waters. If a seaman is killed on land, his survivors may recover under the Jones Act; if he is killed on the water, his survivors may recover under the Jones Act and under Moragne. This is because the Jones Act is not dependent on locality, whereas the general maritime remedy does depend on a maritime locality. See Note, 5 CalfF. West. Int'l L.J. 446, 454 (1975).
(270.) The dissent in Gaudet accused the majority in that case of violating congressional purpose as expressed clearly in DOHSA and the Jones Act. See notes 152-56 supra, and accompanying text. In fact the Higginbotham majority opinion could have been taken almost verbatim from the Gaudet dissent.
(271.) At one point Justice Stevens said the following: "The Gaudet opinion was broadly written. It did not state that the place where death occurred had an influence on its analysis. Gaudet may be read, as it has been, to replace [DOHSA] entirely.... 436 U.S. at 622-23 (footnote omitted). For this latter proposition the Court cited Chief Judge Brown's opinion in Law. Id. at 623 n.16. Thus the Higginbotham Court was fully aware of the Law case, and, it may be assumed, of the effects its decision would have on that case.
(272.) Id. at 624 (footnote omitted). After discussing the positions for and against the award of nonpecuniary damages, the Court stated: "In this case, however, we need not pause to evaluate the opposing policy arguments. Congress has struck the balance for us. It has limited survivors to recovery of their pecuniary losses." Id. at 623.
(273.) Id. at 624 n.18.
(274.) Id. at 624-25 n.20.
(275.) Id. at 619.
(276.) . Id. at 624-25 n.20. The Court further stated:
It remains to be seen whether the difference between awarding loss-ofsociety damages under Gaudet and denying them under DOHSA has a great practical significance. It may be argued that the competing views on awards for loss of society ... can best be reconciled by allowing an award that is primarily symbolic, rather than a substantial portion of the survivor's recovery. We have not been asked to rule on the propriety of the large sums that the District Court would have awarded for loss of society in this case.... Similarly, there may be no great disparity between DOHSA and Gaudet on them issue of funeral expenses. Gaudet awards damages to dependents who have paid, or will pay, for the decedent's funeral, evidently on the theory that, but for the wrongful death, the decedent would have accumulated an estate large enough to pay for his own funeral.... On that theory, the cost of the funeral could also be considered a pecuniary loss suffered by the dependent as a result of the death. Id. (citations omitted).
(277.) Id. at 625.
(278.) Id. at 625-26.
(279.) Id. at 626.
(280.) Id. (citations omitted).
(281.) Id. at 627 (quoting Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573, 588 (1974)) (citations omitted).
(282.) Id. at 628 (quoting Moragne v. State Marine Lines, Inc., 398 U.S. 375, 397
(283.) 46 U.S.C. [section] 762 (1970).
(284.) 436 U.S. at 629.
(285.) Id. at 630.
(286.) Justice Marshall quoted Chief Justice Chase's famous words: "Certainly it better becomes the humane and liberal character of proceedings in admiralty to gfve than to withhold the remedy, when not required to withhold it by established and inflexible rules." Id. at 629 (quoting The Sea Gull, 21 F. Cas. 909, 910 (C.C.Md. 1865) (No. 12,578)). Justice Marshall went on to say that "[ijn the instant case we have 'no established and inflexible rule;' we have at most an expression of the minimum recovery that must be available to the dependents of a seaman who dies on the high seas." Id. at 630.
(287.) Id. Previously, in his dissenting opinion, Justice Marshall had clearly recognized the basic thrust of the majority opinion:
We have thus come full circle from Moragne, which was designed to eliminate reliance on an artificial three-mile line as the basis for disparate treatment of dependents of similarly situated seamen. There is undoubtedly a certain symmetry in the Court's return to the pre-Moragne anomalies, but it is a symmetry that is both patently unfair to a seaman's dependents and flatly inconsistent with the spirit of Moragne and Gaudet.
Id. at 628.
(288.) The same could also be said about the humanitarian aspect of the cases.
(289.) See notes 67-77 supra, and accompanying text.
(290.) L. Uris, Trinity(1977).
(291.) Id. at 815
(292.) 585 F.2d 732 (1978), rehearing granted, No. 76-4130 (5th Cir. Mar. 28, 1979) (en banc).
(293.) Id. at 738.
(295.) The Ivy holding may not apply in the case of a suit by the personal representative of a seaman killed in territorial waters against a nonemployer shipowner based on unseaworthiness under the general maritime law. Since the seaman was not a Jones Act employee, that statute perhaps would not preclude full Gaudet recovery in such a case. Ivy apparently does not pretend to deal with this situation, and the basic reasoning of Higginbotham and Ivy (congressional intention) would not seem to apply to bar Gaudet damages. The Jones Act is predicated on the basis of a status (relationship) of employer and employee, and in our hypothetical case this status is missing. See Note, 25 Loy. L. Rev. 215 (1979).
(296.) Id. at 738-39 n.8.
(297.) On the facts of Ivy, the jury had found that the vessel was seaworthy, and thus Judge Rubin was concerned only with the Jones Act negligence issue.
(298.) 585 F.2d at 738.
(299.) See pp. 5-12 supra.
Frederick W. Swaim, Jr. 
 Professor of Law, Loyola University School of Law, New Orleans, Louisiana.
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|Title Annotation:||wrongful death in the high seas|
|Author:||Swaim, Frederick W., Jr.|
|Publication:||Loyola Maritime Law Journal|
|Date:||Mar 22, 2009|
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