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The court refuses to drown state wrongful death remedies for nonseamen.





A. From The Harrisburg to Moragne

B. Unseaworthiness Becomes a Species of Liability Without Fault

C. Moragne Responds to Resulting Anomalies

D. Court's Uniformity Principle Soon Forgotten

E. Yamaha Consciously Creates Anomaly



"The federalism aspect of the United States Supreme Court's admiralty jurisprudence has long been adrift."(1) The Court's involvement with maritime wrongful death remedies since Me Harrisburg(2) epitomizes inconsistency. Setting the stage for over a decade of contradictions, The Harrisburg court held that general maritime law did not afford an action for wrongful death.(3) In reaching this conclusion, the Supreme Court relied on the traditional common-law rule, which denied any action for wrongful death,(4) and grafted it to maritime law.(5) The Supreme Court, however, did not preclude the application of state statutes to provide a right and remedy for wrongful death.(6) Twenty-one years later, the Court in The Hamilton(7) held that a state statute could be applied to grant wrongful death recovery occurring on the high seas.(8) The harshness of The Harrisburg's rule has often been avoided by federal admiralty courts permitting recovery for wrongful death under state survival and wrongful death statutes.(9) Because of the wide variance in individual state statutes, this practice has led to a lack of uniformity and overall inequity in maritime judgments.

Absent contrary statutory authority, general maritime law was unable to recognize a cause of action for wrongful death.(10) In an effort to achieve desired uniformity and mitigate the impact of The Harrisburg, Congress passed the Death on the High Seas Act (DOHSA)(11) and the Jones Act(12) in 1920.(13) The DOSHA created a cause of action in admiralty for any wrongful death it occurring on the high seas beyond a marine league from the shore of any State ....".(14) The Jones Act, which incorporates provisions of the Federal Employer's Liability Act (FELA),(15) provides a wrongful death claim to the survivors of seaman killed in the course of employment, whether on territorial waters or on the high seas.(16) In its aim for uniformity, DOSHA has clearly missed the mark. The DOSHA has been appropriately labeled "statutory chaos" by one of the most prestigious admiralty treatises.(17)

Attempting to correct this problem, the Court in Moragne v. States Marine Lines(18) overruled The Harrisburg.(19) For almost one hundred years, The Harrisburg decision prevented the Court from shaping a uniform remedy for maritime wrongful death. Instead of clearing the waters, Moragne left it up to the lower courts to navigate the muddied waters without a map. The Court in Moragne held "an action does he under general maritime law for death caused by violation of maritime duties,"(20) but failed to define the remedy it created. Instead, Moragne left the task of defining the parameters of the general maritime law remedy it created to "further sifting through the lower courts in future litigation."(21) Instead of seizing the opportunity to establish uniformity, the Moragne court created more questions than answers.

The latest piece in this "unsolvable puzzle,"(22) Yamaha Motor Corp. v. Calhoun,(23) is the subject of this Note. The question presented in Yamaha is whether state wrongful death and survival statutes have been displaced by Moragne, a federal maritime rule of decision.(24) Yamaha held that the death of a nonseaman in territorial waters is a question to be decided in accordance with state law.(25) The Court reasoned that the motivating force behind Moragne also placed Yamaha beyond its reach.(26) As a result, state remedies may still supplement general maritime law, at least for nonseaman.

This Note will focus particularly on the reasoning employed by the Supreme Court in Yamaha. This note will also discuss the state of the law before and after Moragne and its progeny as a necessary precondition. While Yamaha is important for its specific holding, the opinion provides an important piece to the "unsolvable puzzle"(27) of the maritime wrongful death paradox. The puzzle is further frustrated by the imaginary boundary line between conflicting and nonconflicting state regulation in the maritime context.(28) The Supreme Court recently admitted, "[i]t would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty jurisprudence, or indeed is even entirely consistent within our admiralty jurisprudence."(29)


During a vacation in Puerto Rico with family friends on July 6, 1989, 12-year-old Natalie Calhoun rented a "Wavejammer" jet ski manufactured by Yamaha.(30) While riding the jet ski, she crashed into a vessel anchored in territorial waters and was killed.(31)

Lucien and Robin Calhoun, individually and in their capacities as administrators of their daughter's estate, brought suit in the Eastern District of Pennsylvania.(32) The Calhouns sought recovery under Pennsylvania's wrongful death(33) and survival statutes,(34) alleging negligence, strict liability, and breach of implied warranties.(35) They sought remedies for lost future earnings, loss of society, loss of support and services, funeral expenses, and punitive damages.(36) Jurisdiction was grounded on both diversity of citizenship(37) and admiralty.(38)

The petitioner, Yamaha, moved for partial summary judgment asserting that federal maritime wrongful death law announced in Moragne provided the sole basis for recovery, displacing all state remedies.(39) The district court sided with Yamaha in part and held that general maritime law superseded the state wrongful death and survival claims as recognized in Moragne.(40) Nevertheless, the district court ruled that loss of society and loss of support and services were compensable.(41) Displeased by the district court's decision, both sides sought immediate interlocutory appeal.(42) The district court agreed to certify the order.(43)

The following questions were certified to the Third Circuit: "whether, pursuant to [a federal] maritime cause of action, plaintiffs may seek to recover (1) damages for the loss of the society of their deceased minor child, (2) damages for the loss of their child's future earnings, and (3) punitive damages."(44) The Court of Appeals granted both parties' petitions for interlocutory review.(45) However, the appeal never reached the questions presented in the certified order.(46) Rather, the Third Circuit panel "determined that an anterior issue was pivotal."(47) Specifically, the Third Circuit decided "that general maritime law does not preempt state law wrongful death acts in actions based on the death of a nonseaman in territorial waters, and that such acts therefore govern this case."(48) In other words, the court disposed of the case on preemption grounds, without answering the specific questions certified for appeal.

The Supreme Court granted certiorari(49) and first disposed of all jurisdictional issues.(50) The Court concluded that it was proper for the Courts of Appeals to exercise jurisdiction over any question fairly included within the certified order, without specifically answering the questions certified for appeal.(51) The Supreme Court then proceeded to decide whether "the federal maritime claim for wrongful death recognized in Moragne suppl[ies] the exclusive remedy in cases involving the deaths of nonseafarers in territorial waters?"(52) Ultimately the Supreme Court affirmed, holding that the remedies available are appropriately governed by state law.(53)

In reaching this conclusion, the United States Supreme Court revisited and reviewed the history of maritime wrongful death law beginning with Me Harrisburg.(54) The Court interpreted The Harrisburg to hold that wrongful death actions are statutory in nature and cannot be announced by judicial decree.(55) Following this decision, federal admiralty courts allowed recovery under state wrongful death statutes, softening The Harrisburg's impact.(56) Next, the Court discussed the impact of Congress' actions in passing DOHSA and the Jones Act.(57) "State wrongful death statutes proved an adequate supplement to federal maritime law, until a series of this Court's decisions transformed the maritime doctrine of unseaworthiness into a strict liability rule."(58) Having defined the issue, the Court set the stage for interpreting Moragne.

Moragne held that an action "he[s] under general maritime law for death caused by violation of maritime duties."(59) Yamaha asserted that Moragne's federal maritime wrongful death remedy precluded any action under state statutes for wrongful death.(60 In short, it argued that state remedies were no longer free to augment general maritime law after Moragne.(61) Conceding a primary focus of Moragne was uniformity,(62) the Court claimed the driving force behind Moragne was a push for "uniform access by seafarers to the unseaworthiness doctrine."(63) Restricting Moragne's purpose to the relation of ships, their workers, and the unseaworthiness doctrine,(64) the Yamaha Court concluded that state wrongful death statutes could continue to supplement the general maritime law for deaths of nonseaman in territorial waters.(65)


A. From The Harrisburg to Moragne

In 1886, the United States Supreme Court held in The Harrisburg that the general maritime law, like common law, recognized no cause of action for wrongful death.(66) The Court stated "in the absence of a statute giving the right ... no [wrongful death] action will he in the courts of the United States under the general maritime law."(67) Seizing upon the invitation extended in The Harrisburg,(68) maritime courts looked to wrongful death statutes--the Jones Act, DOHSA, and state statutes--as a basis for allowing recovery to the deceased's survivors.(69) This practice tempered the harshness of The Harrisburg.(70)

After 1920, wrongful death remedies could be summarized as: (1) DOHSA, providing recovery for deaths occurring on the high seas; (2) the Jones Act, providing a remedy for deaths of seaman suffered during the course of employment; and (3) state wrongful death statutes, providing a remedy for deaths in territorial waters.

B. Unseaworthiness Becomes a Species of Liability Without Fault

Regarding unseaworthiness, the shipowner's duty prior to 1944 "was only to use due diligence to provide a seaworthy ship."(71) As a result, unseaworthiness claims were "an obscure and relatively little used remedy."(72) DOSHA, which permits actions in both negligence and unseaworthiness, acted essentially as an extension of state statutes which sounded in negligence.(73) This all changed in 1944 when Mahnich v. Southern Steamship Co.(74) "transformed the warranty of seaworthiness into a strict liability obligation."(75) This transformation was restated two years later by the Court in Seas Shipping Co. v. Sieracki as "essentially a species of liability without fault."(76) As a result of this revolution in the law, unseaworthiness became the primary vehicle of recovery for deaths at sea.(77)

C. Moragne Responds to Resulting Anomalies

With The Harrisburg still afloat, three resulting anomalies had surfaced. First, in territorial waters, general maritime law provided a basis of recovery under unseaworthiness for injury, but frequently not for death.(78) Second, unseaworthiness claims were allowed for deaths on the high seas (under DOHSA), but not within territorial waters when a state's local statute excluded unseaworthiness claims.(79) In other words, identical breaches produce different liability outside territorial waters. Finally, in what Moragne labeled the "strangest" anomaly, in states whose statutes allowed a claim for wrongful death resulting from unseaworthiness, recovery was available for everyone except seaman.(80)

Sensibly, the Supreme Court in Moragne overruled The Harrisburg and recognized a general maritime wrongful death cause of action under federal common law.(81) More significant was the Court's holding "that Congress has given no affirmative indication of an intent to preclude the judicial allowance of a remedy for wrongful death."(82) The court commented

[t]he void that existed in maritime law up until 1920

was the absence of any remedy for wrongful death on

the high seas. Congress, in acting to fill, that void, legislated

only to the three-mile limit because that was the

extent of the problem. The express provision that state

remedies in territorial waters were not disturbed by the

Act ensured that Congress' solution of one problem

would not create another by inviting the courts to find

that the Act pre-empted the entire field, destroying the

state remedies that had previously existed.(83)

Central to the Moragne decision was the Court's belief that the "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."(84) Seemingly, the Court realized that "[f]ederal law, rather than state, is the more appropriate source of a remedy" for violation of a federal maritime duty.(85) At last, the Court had spoken with a voice targeted towards uniformity in maritime law.

D. Court's Uniformity Principle Soon Forgotten

The Third Circuit stated "although the cases often mention uniformity as a guiding principle, the Court's actions belie its importance."(86) Four years after Moragne, in Sea-Land Services, Inc. v. Gaudet,(87) the Court held loss of society was available for a longshoreman killed in territorial waters.(88) The Court consciously noted that DOSHA did not compensate for nonpecuniary loses, but departed from the federal statutory remedy anyway.(89) Just four years later the Court declined to extend Gaudet to deaths occurring on the high seas.(90) The uniformity of remedy previously espoused in Moragne was quickly forgotten.(91)

In Offshore Logistics, Inc. v. Tallentire,(92) the Court held that state wrongful death statutes could not supplement claims covered by DOSHA.(93) More importantly, Tallentire interpreted [sections] 7 of DOSHA94 which was relied upon in deciding Yamaha.(95) According to the Court, "[t]he reach of DOHSA!s substantive provisions was explicitly limited to actions arising from accidents on the high seas so as to 'prevent the Act from abrogating[,] by its own force, the state remedies then available in state waters."'(96) Thus, the Court concluded that [sections] 7 of DOSHA was meant to be a savings clause, preserving state remedies within territorial waters.(97)

E. Yamaha Consciously Creates Anomaly

Yamaha essentially argued that Moragne displaced all state wrongful death remedies.(98) This argument seems strong. After all, both DOHSA and the Jones Act preempt state wrongful death statutes,(99) so why shouldn't Moragne? The Court ultimately agreed with the Circuit court's determination that "Moragne ... showed no hostility to concurrent application of state wrongful death statutes."(100)

Furthermore, Yamaha chose to interpret Moragne asserving a gap-filling purpose, thus providing the floor for wrongful death recovery.(101) In so doing, the Court created another anomaly. In an accident on a ship in which both a nonseaman and a seaman are killed, the nonseaman's survivors--able to sue under more expansive state law--could potentially be entitled to greater remedies. What the Court ultimately did was to interpret Congressional silence on wrongful death remedies for nonseaman in territorial waters as authority for creating chaos. Given that Moragne was expressly intended to advance the principle of uniformity,(102) it seems counterproductive to restrict its rule to maritime workers. The resulting disharmony from the continued application of state tort law to nonseaman claimants renders any inroads toward uniformity merely illusory.


Almost forty years ago Professor Currie attempted to make sense of the Court's admiralty jurisprudence.(103) He concluded:

An examination of the Court's treatment of maritime

cases in the past twenty years leaves little room for any

explanation other than that the Court is seeking the

best of both worlds: it makes use of state law when it

feels that law desirable as a supplement to maritime

law. If the maritime rule is undesirable, the Court is

usually reluctant to change it; often the reason is that

the decision would be "legislative." If the state law

would impair a federal right ... it is never applied. If it

would create a right that is undesirable for other reasons,

it will be ignored .... If it creates a right that is

desirable ... it will be applied; the interest in uniformity

will be ignored, a contrary federal rule win be conveniently

slipped under the rug, the wrongful-death and

home-port hen cases will be earnestly cited, and the

subject will be declared "untouched" by maritime law.

If... state law is not favorable and the old maritime

rule is inadequate, the Court will resort to judicial


However cynical, this statement is still true today. Until the Court commands uniformity with a well defined wrongful death solution, this area of the law will continue to be an "unsolvable puzzle."

(1.) J.B. Ruhl, Finding Federalism in the Admiralty. "The Devil's Own Mess" Revisited, 12 Tul. Mar. L.J. 263, 263 (1988).

(2.) 119 U.S. 199 (1886).

(3.) See id. at 213.

(4.) "[N]o civil action lies for an injury which results in death ...." Insurance Co. v. Brame, 95 U.S. 754, 756 (1877). "In the early period of the common law the death of either the tortfeasor or the claimant terminated the cause of action and abated an action already begun." W. Page Keeton et al., Cases and Materials on Tort and Accident Law 445 (2d ed. 1989).

(5.) See The Harrisburg, 119 U.S. at 213-14.

(6.) See id. at 214.

(7.) 207 U.S. 398 (1907).

(8.) See id. at 407.

(9.) See, e.g., Western Fuel Co. v. Garcia, 257 U.S. 233, 242 (1921) ("[W]here death upon such waters results from a maritime tort committed on navigable waters within a State whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given."). Throughout this Note, for convenience, the terms "wrongful death remedies" or "statutes" include survival statutes.

(10.) See The Harrisburg, 119 U.S. at 213.

(11.) 46 U.S.C. app. [subsections] 761-767 (1994).

(12.) 46 U.S.C. app. [sections] 688 (1994).

(13.) See Robert M. Hughes, Death Actions in Admiralty, 31 Yale L.J. 115, 116-19 (1921) (discussing the developments leading to DOSHA's enactment).

(14.) 46 U.S.C [sections] app. 761 (1994). One marine league equals one-twentieth part of a degree of latitude, or three nautical miles. See Black's Law Dictionary 967 (6th ed. 1990). Texas and Florida have been allowed by the United States to claim territorial waters up to three marine leagues if their state boundaries extended this far when they were admitted into the union in 1845. See United States v. Louisiana, 389 U.S. 155, 160-61 (1967). Texas and Florida are the only two states entitled to claim this extended boundary. See id. at 160 n.2.

(15.) 45 U.S.C. [subsections] 51-60 (1994).

(16.) See 46 U.S.C. app. [sections] 688 (1994).

(17.) See Grant Gilmore & Charles L. Black, JR., The Law of Admiralty [sections] 6-29, at 359 (2d ed. 1975).

(18.) 398 U.S. 375, 1970 AMC 967 (1970) (recognizing an action lies under the general maritime law for wrongful death).

(19.) See id. at 409, 1970 AMC at 993. Justice Harlan's unanimous opinion labeled The Harrisburg "an increasingly unjustifiable anomaly as the law over the years has left it behind Id. at 404, 1970 AMC at 990.

(20.) Id. at 409, 1970 AMC at 993.

(21.) Id. at 408, 1970 AMC at 993.

(22.) Gus A. Schill, Jr., Me Unsolvable Puzzle of Maritime Personal Injury Litigation: One False Move and You're Out, 24 Hous. L. Rev. 635, 635 (1987).

(23.) 116 S. Ct. 619, 1996 AMC 305 (1996) (unanimous decision).

(24.) See 116 S. Ct. at 621-22,1996 AMC at 306-07.

(25.) See id.

(26.) See id. at 627, 1996 AMC at 316. "Moragne, in sum, centered on the extension of relief, not on the contraction of remedies. The decision recalled that `it better becomes the humane and liberal character of proceedings i n admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.'" Id. (quoting Moragne, 398 U.S. at 387, 1970 AMC at 977, quoting The Sea Gull, 21 F. Cas. 909, 910 (C.C.D. Md. 1865) (No. 12,578)).

(27.) See Schill, supra note 22, at 645.

(28.) See American Dredging Co. v. Miller, 510 U.S. 443, 452-53, 1994 AMC 913, 920 (1994); see also Gilmore & Black, supra note 17, [sections] 1-17, at 49-50 (noting that the boundary line between permissible state legislation and state legislation that impairs federal maritime law is too vague to ensure predictability).

(29.) See American Dredging, 510 U.S. at 452, 1994 AMC at 920 (emphasis added).

(30.) See Yamaha, 116 S. Ct. at 622, 1996 AMC at 307.

(31.) See id.

(32.) See id.

(33.) See 42 Pa. Cons. Stat. Ann. [sections] 8301 (1982 & Supp. 1996).

(34.) See 42 Pa. Cons. Stat. Ann. [sections] 8302 (1982).

(35.) See Yamaha, 116 S. Ct. at 622, 1996 AMC at 307.

(36.) See id.

(37.) See id. (citing 28 U.S.C. [sections] 1332 (1994)). The Calhouns were Pennsylvania citizens; Yamaha Motor Corporation, U.S.A., is a California corporation with its principle place of business in California; Yamaha Motor Company, Ltd., is a Japanese Corporation with its principle place of business in Japan. See id. at 622 n. 1, 1996 AMC at 307 n. 1.

(38.) See id. at 622, 1996 AMC at 307 (citing 28 U.S.C. [sections] 1333 (1994)).

(39.) See id.

(40.) See id.

(41.) See id.

(42.) See id.; see also 28 U.S.C. [sections] 1292(b) (1994) (providing guidelines on interlocutory appeals).

(43.) See Yamaha, 116 S. Ct. at 622, 1996 AMC at 307.

(44.) Calhoun v. Yamaha Motor Co., 40 F.3d 622, 626, 1995 AMC 1, 4-5 (3d Cir. 1994), cert. granted, 115 S. Ct. 1998 (1995) (alteration in original).

(45.) See id., 1995 AMC at 5.

(46.) See Yamaha, 116 S. Ct. at 622,1996 AMC at 308.

(47.) See id. The panel questioned the district court's conclusion that recovery would be governed to the exclusion of state law; therefore, they passed on answering the certified questions. See id. at 622-23, 1996 AMC at 308. "Section 1292(b) requires not that we answer the certified question, but that we decide an appeal from an interlocutory order. We therefore are not bound by the district court's formulation of the question, and may address any issue that is necessary to decide the appeal before us." Yamaha, 40 F.3d at 626, 1995 AMC at 5 (emphasis added).

(48.) Yamaha, 40 F.3d at 644,1995 AMC 35.

(49.) See Yamaha, 115 S. Ct. at 1998.

(50.) See Yamaha, 116 S. Ct. at 623, 1996 AMC at 308-09.

(51.) See id. at 623,1996 AMC at 309. "`Under 28 U.S.C. [sections] 1292(b), can the courts of appeals exercise jurisdiction over any question that is included within the order that contains the controlling question of law identified by the district court?' The answer to that question, we are satisfied, is yes." Id. at 623, 1996 AMC at 308-09 (quoting the grant of certiorari, Yamaha, 115 S. Ct. at 1998) (citation omitted). "[I]t is the order that is appealable, and not the controlling question identified by the district court." Id. at 623, 1996 AMC at 309 (quoting 9 James W. Moore & Bernard J. Ward, Moore's Federal Practice [paragraph] 110.25[1], at 300 (2d ed. 1995)).

(52.) Yamaha, 116 S. Ct. at 623,1996 AMC at 309 (footnote omitted).

(53.) See id. at 629, 1996 AMC at 318.

(54.) See id. at 624-25, 1996 AMC at 310-13.

(55.) See id. at 624, 1996 AMC at 310 (stating that The Harrisburg Court relied on common law and failed to question the soundness of this view).

(56.) See id.; see also, e.g., The Hamilton, 207 U.S. 398 (1907) (allowing recovery under state wrongful death statute).

(57.) Yamaha, 116 S. Ct. at 624,1996 AMC at 311.

(58.) See id.

(59.) Moragne v. States Marine Line, Inc., 398 U.S. 375, 409, 1970 AMC 967, 993 (1970). To justify creating a general maritime wrongful death remedy, the Court reiterated the need for "`uniform vindication of federal policies,'" and the "humane and liberal character of proceedings in admiralty." Id. at 387, 401, 1970 AMC at 977, 987 (quoting The Sea Gull, 21 F. Cas. 909, 910 (C.C.D. Md. 1865) (No. 12,578)).

(60.) See Yamaha, 116 S. Ct. at 625, 1996 AMC at 313.

(61.) See id. The Court noted Yamaha's assertion "is not without force; in several contexts, we have recognized that vindication of maritime policies demanded uniform adherence to a federal rule of decision, with no leeway for variation or supplementation by state law." Id. at 625-26, 1996 AMC at 313 (emphasis added).

(62.) While Yamaha correctly argued that uniformity concerns informed the Court's decision, those uniformity concerns did not focus on contraction of remedies. See id. at 626, 627 n.10, 1996 AMC at 313-14, 315 n.10. On the contrary, "Moragne ... showed no hostility to concurrent application of state wrongful death statutes." Id. at 628, 1996 AMC at 316 (alteration in original) (quoting Yamaha, 40 F.3d at 641-42, 1995 AMC at 30).

(63.) Id. at 627 n.10, 1996 AMC at 316 n.10; see also Moragne, 398 U.S. at 396 n. 12, 1970 AMC at 983 n. 12.

(64.) Gilmore & Black, supra note 17, [sections] 6-38, at 383.

(65.) See Yamaha 116 S. Ct. at 628, 1996 AMC at 317-18 (stating that when Congress has spoken, the Court will normally not supplement the statutorily provided remedy; however, where Congress has not prescribed remedies for nonseaman in territorial waters, state remedies will apply).

(66.) See The Harrisburg, 119 U.S. 199, 213 (1886).

(67.) Id.

(68.) The Harrisburg Court did not preclude the use of state statutes in maritime cases. See id. at 214.

(69.) See The Hamilton, 207 U.S. 398, 407 (1907) (permitting the use of a state wrongful death statute in a maritime case). Thus, it is important to note the invitation to apply statutory remedies was initially taken up not by Congress, but by the Court itself.

(70.) See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 212, 1986 AMC 2113, 2117 (1986).

(71.) Miles v. Apex Marine Corp., 498 U.S. 19,25,1991 AMC 1, 5 (1990).

(72.) Gilmore & Black, supra note 17, [sections] 6-38, at 383.

(73.) See Miles, 498 U.S. at 25, 1991 AMC at 5 CDOSHA created a near uniform system of wrongful death recovery.").

(74.) 321 U.S. 96, 1944 AMC 1 (1944).

(75.) Miles, 498 U.S. at 25, 1991 AMC at 5.

[T]he exercise of due diligence does not relieve the owner of his

obligation to the seaman to furnish adequate appliances.

If the owner is liable for furnishing an unseaworthy appliance, even

when he is not negligent, a fortiori his obligation is unaffected by the

fact that the negligence of the officers of the vessel contributed to its


Mahnich, 321 U.S. at 100, 1944 AMC at 5 (citations omitted).

(76.) See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94, 1946 AMC 698, 704 (1946).

(77.) See Moragne, 398 U.S. at 399, 1970 AMC at 986.

(78.) See id. at 395, 1970 AMC at 983. A combination of Supreme Court decisions created this result. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 1959 AMC 597, 599-600 (1959) (holding in nonfatal injury cases, state substantive liability standards are superseded by federal maritime law, allowing unseaworthiness actions); The Tungus v. Skovgaard, 358 U.S. 588, 594, 1959 AMC 813, 818 (1959) (concluding that where a State has provided a remedy for wrongful death, the State could also "determine the circumstances under which the right exists"). If the state statute did not provide for recovery on the basis of unseaworthiness, survivors lack the right to sue under that generous standard of liability. See id.

(79.) See Moragne, 398 U.S. at 395, 1970 A.M. C. at 983.

(80.) See id. at 395-96, 1970 AMC at 983; see also Gillespie v. United States Steel Corp., 379 U.S. 148, 154, 1965 AMC 1, 6 (1964) (stating the Jones Act preempts state law remedies for death of seaman killed in the course of their employment, and wrongful death actions under the Jones Act are limited to negligence).

(81.) See Moragne, 398 U.S. at 409,1970 AMC at 993.

(82.) Id. at 393, 1970 AMC at 981.

(83.) Id. at 398, 1970 AMC at 985 (footnote omitted).

(84.) Id. at 401, 1970 AMC at 987 (emphasis added).

(85.) Id. at 401 n. 15, 1970 AMC at 988 n. 15.

(86.) Calhoun v. Yamaha Motor Co., 40 F.3d 622, 636, 1995 AMC 1, 22 (199 (commenting on emerging trends in post-Moragne jurisprudence).

(87.) 414 U.S. 573, 1973 AMC 2572(1974).

(88.) See id. at 587-88, 1973 AMC at 2583.

(89.) See id. at 588 n.22, 1973 AMC at 2583 n.22.

(90.) See Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 623-25, 1978 AMC 1059, 1063-65 (1978) (reasoning the Court was not able to supplement remedies for death on high seas because Congress has specifically spoken to the issue of damages in DOSHA claims, providing compensation only for pecuniary losses).

(91.) See id. at 626-30, 1978 AMC at 1066-69 (Marshall, J., dissenting) (pointing out that the Court's holding creates a new "anomaly" similar to the second one discussed in Moragne).

(92.) 477 U.S. 207, 1986 AMC 2113 (1986).

(93.) See id. at 233, 1986 AMC at 2134.

(94.) "The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter." 46 U.S.C. [sections] 767 (1994).

(95.) See Tallentire, 477 U.S. at 220-21, 1986 AMC at 2124-25. "This statement N 7 of DOHSA], by its terms, simply stops DOHSA from displacing state law in territorial waters." Yamaha, 116 S. Ct. at 628, 1996 AMC at 318.

(96.) Tallentire, 477 U.S. at 224, 1986 AMC at 2127 (citation omitted) (quoting Higginbotham, 436 U.S. at 622, 1978 AMC at 1062).

(97.) See Id., 477 U.S. at 224-25,1986 AMC at 2127.

(98.) See Yamaha, 40 F.3d at 639, 1995 AMC at 27.

(99.) The preemption argument concerning the Jones Act stems from Gillespie v. United States Steel Corp., 379 U.S. 148, 154, 1965 AMC 1, 6 (1964) and Lindgren v. United States, 281 U.S. 38, 46-47, 1930 AMC 399, 406 (1930), which held that the Jones Act was the exclusive remedy for survivors of seaman killed in territorial waters. As for the DOHSA preemption, see Tallentire, 477 U.S. at 232, 1986 AMC at 2134, and Higginbotham, 436 U.S. at 624-26, 1978 AMC at 1064-66.

(100.) See Yamaha, 116 S. Ct at 628, 1996 AMC at 316 (alteration in original) (quoting Yamaha, 40 F.3d at 641-42, 1995 AMC at 30).

(101.) See id., 1996 AMC at 316-17; see also Miles, 498 U.S. at 31, 1991 AMC at 10 ("Moragne involved gap filling in an area left open by statute; supplementation was entirely appropriate.").

(102.) See Moragne, 398 U.S. at 401, 1970 AMC at 987 ("Our recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies...").

(103.) See generally David P. Currie, Federalism and the Admiralty. 'The Devil's Own Mess," 1960 Sup. CT. Rev. 158, 220 (concluding the Supreme Court should assume a more creative role in making a cohesive maritime law and the Court should pay more attention to the competing policies of the nation and the state).

(104.) Id. at 219.
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Author:Graham, Christopher P.
Publication:Houston Journal of International Law
Article Type:Case Note
Date:Jan 1, 1997
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