In an action against the United States under the Federal Tort
Claims Act to recover for the wrongful death of an employee of an
independent contractor engaged to perform repairs to the Bonneville
Dam, which is owned and operated by the United States, it appeared
that his death resulted from drowning in navigable waters of the
Columbia River within the State of Oregon.
the right of action for wrongful death created by
the Oregon Employers' Liability Law may be invoked to recover for a
maritime death in that State without constitutional inhibition.
The Tungus v. Skovgaard, 358 U. S. 588
361 U. S.
259 F.2d 285, judgment vacated and cause remanded.
MR. JUSTICE STEWART delivered the opinion of the Court.
This action was brought against the United States under the
Federal Tort Claims Act [Footnote
] to recover for the death of petitioner's decedent, George W.
Graham. Graham was drowned in the Columbia River while in the
course of his employment as a carpenter foreman for Larson
Construction Company, an independent contractor which had
undertaken to perform repairs at Bonneville Dam. That structure is
owned and operated by the United States.
As a preliminary to the job it had contracted to accomplish,
Larson decided to send a working party by boat
Page 361 U. S. 315
to the foot of the spillway dam to take soundings. Larson told
the government inspector of the plan and asked that the operating
personnel of the dam be requested to close two additional spillway
gates near the point where the soundings were to be taken. This
request was complied with. Larson then dispatched a group of
employees to the area in a tug-and-barge unit. Graham was a member
of this working party. Approaching the dam, the tug and barge
veered and struck a pier, staving a hole in the barge. The unit
then was carried northwardly in the river towards that part of the
dam where the spillway gates were open. There, it capsized in the
turbulent water. Graham and all but one of his fellow employees
were killed. Their deaths occurred on navigable waters within the
territorial limits of the State of Oregon.
The theory of the petitioner's complaint was that Graham's death
had been proximately caused by the failure of operating personnel
of the dam to close a sufficient number of spillway gates near the
area where the soundings were to be taken. Liability was asserted
under the general wrongful death statute of Oregon, [Footnote 2
] as well as under another statute
of that State, the Employers' Liability Law, [Footnote 3
] which also creates a right to recover
for death under certain circumstances.
The wrongful death statute permits recovery for death "caused by
the wrongful act or omission of another," limits liability to
$20,000, and makes the decedent's contributory negligence an
absolute bar to recovery. [Footnote
] In the
Page 361 U. S. 316
limited area where the Employers' Liability Law applies, the
road to recovery in a death action is considerably easier. Under
that statute, a defendant is liable for failure to "use every
device, care and precaution which it is practicable to use for the
protection and safety of life and limb. . . ." [Footnote 5
] There is no monetary limitation of
liability, and the decedent's contributory negligence goes only to
mitigate damages. [Footnote
Page 361 U. S. 317
After trial without a jury, the District Court entered judgment
for the United States. Since Graham's death had occurred on
navigable waters, the court ruled that the case was one for
decision under maritime law, which, in this case, would apply the
general wrongful death act of Oregon. Upon the basis of detailed
findings of fact, the court concluded that there was no liability
under that statute because Graham's death was "not caused by the
negligence of the United States or its employees." As to the
Employers' Liability Law, it was the court's view that
"this Act is not applicable for the reason that the Government
was not responsible for the work there being performed, and for the
further reason that the high standard of care required under the
Act, if applied to these cases, would be unconstitutional."
1958 Am.Mar.Cas. 660.
The Court of Appeals affirmed, holding that the trial court had
not erred in finding that negligence had not been proved, and
agreeing that the Employers' Liability Law "could not be
constitutionally applied to this case." The appellate court
expressly refrained from deciding
"whether the trial court was also correct in ruling that, if
that act were applied, the United States would not be liable
thereunder because it was not responsible for the work being
performed by the decedent."
259 F.2d 285, 292. Certiorari was granted to consider a
seemingly important question of federal law. 359 U.S. 923.
As this case reaches us, the petitioner no longer challenges the
finding that the United States was not guilty of such negligence as
would make it liable under the wrongful death statute of Oregon.
His sole claim here is that he was erroneously deprived of the
opportunity to invoke the Employers' Liability Law.
The Federal Tort Claims Act grants the District Courts
jurisdiction of civil actions against the United States
"for injury or loss of property, or personal injury or death
Page 361 U. S. 318
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States,
if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred."
28 U.S.C. § 1346(b).
Graham's death and the wrongful act or omission which allegedly
caused it occurred within the State of Oregon, and liability must
therefore be determined in accordance with the law of that place.
Since death occurred on navigable waters, the controversy is, as
the trial court correctly held, within the reach of admiralty
jurisdiction, The Plymouth,
Wall. 20; Kermarec v. Compagnie Generale, 358 U.
. Oregon would be required, therefore, to look to
maritime law in deciding it. Chelentis v. Luckenbach S.S.
Co., 247 U. S. 372
Carlisle Packing Co. v. Sandanger, 259 U.
Although admiralty law itself confers no right of action for
wrongful death, The Harrisburg, 119 U.
Page 361 U. S. 319
"where death . . . results from a maritime tort committed on
navigable waters within a State whose statutes give a right of
action on account of death by wrongful act, the admiralty courts
will entertain a libel in personam
for the damages
sustained by those to whom such right is given."
Western Fuel Co. v. Garcia, 257 U.
, 257 U. S. 242
See The Hamilton, 207 U. S. 398
La Bourgogne, 210 U. S. 95
Levinson v. Deupree, 345 U. S. 648
The Tungus v. Skovgaard, 358 U. S. 588
United Pilots Assn. v. Halecki, 358 U.
. In such a case, the maritime law enforces the
state statute "as it would one originating in any foreign
jurisdiction." Levinson v. Deupree, 345 U.
, 345 U. S.
This means that, in an action for wrongful death in state
territorial waters, the conduct said to give rise to liability is
to be measured not under admiralty's standards of duty, but under
the substantive standards of the state law. United Pilots Assn.
v. Halecki, 358 U. S. 613
358 U. S. 615
See also Curtis v. A. Garcia y Cia.,
241 F.2d 30 (C.A.3d
Cir.); The H.S., Inc.,
130 F.2d 341 (C.A.3d Cir.);
Klingseisen v. Costanzo Transp. Co.,
101 F.2d 902 (C.A.3d
Cir.); Graham v. A. Lusi, Ltd.,
206 F.2d 223 (C.A. 5th
Cir.); Truelson v. Whitney & Bodden Shipping Co.,
F.2d 412 (C.A. 5th Cir.); Quinette v. Bisso,
136 F. 825
(C.A. 5th Cir.); Lee v. Pure Oil Co.,
218 F.2d 711 (C.A.
6th Cir.); Feige v. Hurley,
89 F.2d 575 (C.A. 6th Cir.);
Holley v. the Manfred Stansfield,
269 F.2d 317 (C.A.4th
Cir.). [Footnote 8
"[A]dmiralty courts, when invoked to protect rights rooted in
state law, endeavor to determine the issues in accordance with the
substantive law of the State."
Garrett v. Moore-McCormack Co., 317 U.
, 317 U. S.
Page 361 U. S. 320
Accepting this principle, we find no constitutional impediment
to the application, by the maritime law, of Oregon's Employers'
Liability Law to a death action in which the statute would
otherwise, by its terms, apply. We are concerned with
constitutional adjudication, not with reaching particular results
in given cases. What was said last Term in deciding The Tungus
v. Skovgaard, 358 U. S. 588
"The policy expressed by a State Legislature in enacting a
wrongful death statute is not merely that death shall give rise to
a right of recovery, nor even that tortious conduct resulting in
death shall be actionable, but that damages shall be recoverable
when conduct of a particular kind results in death. It is incumbent
upon a court enforcing that policy to enforce it all; it may not
pick or choose."
358 U.S. at 358 U. S.
"Even Southern Pacific Co. v. Jensen,
the 'uniformity' concept, recognized that uniformity is not
offended by 'the right given to recover in death cases.'
244 U. S. 244
U.S. 205, at
244 U. S. 216
. It would be
an anomaly to hold that a State may create a right of action for
death, but that it may not determine the circumstances under which
that right exists. The power of a State to create such a right
includes of necessity the power to determine when recovery shall be
permitted and when it shall not. Cf. Caldarola v. Eckert,
332 U. S.
358 U.S. at 358 U. S.
We leave open the question whether a state wrongful death act
might contain provisions so offensive to traditional principles of
maritime law that the admiralty would decline to enforce them. The
Oregon statute here in issue presents no such problem. Indeed, as
the petitioner points out, the Employers' Liability Law contains
many provisions more in consonance with traditional principles of
admiralty than the State's general wrongful death
Page 361 U. S. 321
statute. We hold, therefore, that the right of action for
wrongful death created by the Oregon Employers' Liability Law may
be invoked to recover for a maritime death in that State without
Whether the statute, by its terms and as construed by the Oregon
Supreme Court, would extend to the present case, and whether, if
the statute is applicable, the United States violated the standard
of care which it prescribes, are questions which we do not
undertake to decide, and upon which we intimate no view. The
District Court made an alternative ruling that the statute was
inapplicable as a matter of state law. The Court of Appeals did not
reach the question. Although this issue has been argued here, we
leave its disposition to a court more at home with the law of
Oregon. [Footnote 9
The judgment is set aside, and the case remanded to the United
States Court of Appeals for the Ninth Circuit.
THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and
MR. JUSTICE BRENNAN join the opinion of the Court, but solely under
compulsion of the Court's ruling in The Tungus v.
Skovgaard, 358 U. S. 588
They believe that, as long as the view of the law represented by
that ruling prevails in the Court, it should be applied
Page 361 U. S. 322
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 Tungus,
and is not the
measure of recovery when it militates against the defendant, as it
does here. However, they note their continued disagreement with the
ruling in The Tungus,
and reserve their position as to
whether it should be overruled, particularly in the light of the
controversy application of it has engendered among its original
the various separate opinions in this
case and in Goett v. Union Carbide Corp., post,
361 U. S. 340
28 U.S.C. §§ 1346(b), 2674.
Ore.Rev.Stat. § 30.020.
Ore.Rev.Stat. § 654.305 et seq.
"Action by personal representative for wrongful death.
When the death of a person is caused by the wrongful act or
omission of another, the personal representatives of the decedent,
for the benefit of the surviving spouse and dependents and in case
there is no surviving spouse or dependents, then for the benefit of
the estate of the decedent, may maintain an action against the
wrongdoer, if the decedent might have maintained an action, had he
lived, against the wrongdoer for an injury done by the same act or
omission. Such action shall be commenced within two years after the
death, and damages therein shall not exceed $20,000, which may
include a recovery for all reasonable expenses paid or incurred for
funeral, burial, doctor, hospital or nursing services for the
Ore.Rev.Stat. § 30.020.
"Protection and safety of persons in hazardous employment
Generally, all owners, contractors or
subcontractors and other persons having charge of, or responsible
for, any work involving a risk or danger to the employees or the
public, shall use every device, care and precaution which it is
practicable to use for the protection and safety of life and limb,
limited only by the necessity for preserving the efficiency of the
structure, machine or other apparatus or device, and without regard
to the additional cost of suitable material or safety appliance
] and devices."
Ore.Rev.Stat. § 654.305.
"Who may prosecute damage action for death; damages
If there is any loss of life by reason of
violations of ORS 654.305 to 654.335 by any owner, contractor or
subcontractor or any person liable under ORS 654.305 to 654.335,
the surviving spouse and children and adopted children of the
person so killed and, if none, then his or her lineal heirs and, if
none, then the mother or father, as the case may be, shall have a
right of action without any limit as to the amount of damages which
may be awarded. If none of the persons entitled to maintain such
action reside within the state, the executor or administrator of
the deceased person may maintain such action for their respective
benefits and in the order above named."
Ore.Rev.Stat. § 654.325.
The contributory negligence
of the person injured shall not be a defense, but may be taken into
account by the jury in fixing the amount of the damage."
Ore.Rev.Stat. § 654.335.
The petitioner argues that "the place where the act or omission
occurred" was on the dam itself, an extension of the land, and that
therefore this case should be decided in accordance with the law
that Oregon would apply to torts occurring on land. It is clear,
however, that the term "place" in the Federal Torts Claims Act
means the political entity, in this case Oregon, whose laws shall
govern the action against the United States "in the same manner and
to the same extent as a private individual under like
circumstances." 28 U.S.C. § 2674. There can be no question but that
Oregon would be required to apply maritime law if this were an
action between private parties, since a tort action for injury or
death occurring upon navigable waters is within the exclusive reach
of maritime law. The Plymouth,
Wall. 20, 70 U. S. 35
Magruder and Grout, Wrongful Death Within The
Admiralty Jurisdiction, 35 Yale L.J. 395, 404. This case does not
involve the question that would be presented if wrongful conduct
occurring within the territory of one political entity caused
injury or death within a different political entity. Cf.
Eastern Air Lines v. Union Trust Co.,
95 U.S.App.D.C. 189, 221
We are not here concerned with those rights conferred by the
Death on the High Seas Act, 41 Stat. 537 et seq.,
U.S.C. § 761 et seq.;
the Jones Act, 41 Stat. 1007, 46
U.S.C. § 688; or the Longshoremen's and Harbor Workers'
Compensation Act, 44 Stat. 1424 et seq.,
33 U.S.C. § 901
In contending that the statute is applicable, the petitioner
refers us to the following Oregon decisions, among others:
Byers v. Hardy,
68 Ore. Advance Sheets 557, 337 P.2d
; Drefs v. Holman Transfer Co.,
130 Ore. 452, 280
P. 505; Rorvik v. North Pacific Lumber Co.,
99 Ore. 58,
190 P. 331, 195 P. 163; C. D. Johnson Lumber Corp. v.
194 F.2d 574; Coomer v. Supple Investment
128 Ore. 224, 274 P. 302; Myers v. Staub,
Ore. 663, 272 P.2d
; Tamm v. Sauset,
67 Ore. 292, 135 P. 868;
Warner v. Synnes,
114 Ore. 451, 230 P. 362, 235 P. 305;
Walters v. Dock Commission,
126 Ore. 487, 245 P. 1117, 266
P. 634, 270 P. 778. The United States, in asserting that the
statute is inapplicable, cites many of the same Oregon
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER joins,
Since The Hamilton, 207 U. S. 398
has been settled law that an action in personam
wrongful death occurring on navigable waters, not available under
maritime law, The Harrisburg, 119 U.
, may be brought under a state wrongful death
statute. In The Tungus v. Skovgaard, 358 U.
, decided last Term, we held that such an action
could be maintained only in accordance with the limitations placed
upon it by state law. This case presents the further question, not
involved in The Tungus,
namely, whether such an action
lies when the conduct said to give rise to liability is measured
under state law by greater substantive standards of duty than those
which would have governed the same conduct under maritime law had
death not occurred. [Footnote
The Court, if I read its opinion aright, holds that, when a
victim of a maritime tort dies as a result of such conduct,
Page 361 U. S. 323
the law of the State whose wrongful death statute is invoked
wholly governs liability. [Footnote
] At the same time, the Court leaves open the question
whether a state wrongful death act might contain "provisions so
offensive to traditional principles of maritime law that the
admiralty would decline to enforce them," finding that this Oregon
statute "presents no such problem."
I cannot agree with the view that wrongful death actions growing
out of maritime torts are so pervasively controlled by state law,
or with the conclusion that this state statute, in its substantive
provisions is, in any event, not offensive to maritime law. Nor can
I subscribe to the intimation that the question which the Court
reserves is seriously open to debate. Because of the importance of
the issue, a fuller statement of my views is justified than might
be appropriate in a case of lesser general concern.
It is surely beyond dispute that the Oregon Employers' Liability
Law, Ore.Rev.Stat. § 654.305, imposes a stricter standard of duty
than that imposed by maritime law. Under maritime law, the basis of
liability in cases like this is the failure to use reasonable care
in light of the attendant circumstances, that is, negligence.
See Kermarec v. Compagnie Generale, 358 U.
, 358 U. S. 630
632. The state statute, on the other hand, imposes the duty to use
"every device, care and precaution which it is practicable to
use for the protection and safety of life and limb, limited only by
the necessity for preserving
Page 361 U. S. 324
the efficiency of the . . . device, and without regard to the
additional cost of suitable material or safety appliance
] and devices."
Ore.Rev.Stat. § 654.305. Oregon itself has recognized that this
statute imposes a "much higher degree of care," Homan v.
139 Ore. 519, 524, 10 P.2d 349, 351, 11
P.2d 814, than that generally required of defendants in accident
cases. See Camenzind v. Freeland Furniture Co.,
158, 172-173, 174 P. 139, 144. So much indeed I do not understand
the Court to deny.
Had this accident resulted in injuries short of death, it is
clear that the United States could not have been held liable except
in accordance with the standards of duty imposed by maritime law.
This follows from the general constitutional doctrine of federal
supremacy in maritime affairs, and more particularly from the rule
first unmistakably announced in Chelentis v. Luckenbach S.S.
Co., 247 U. S. 372
which rejected the notion that the "saving clause" of § 9 of the
Judiciary Act of 1789, 1 Stat. 77, permitted the application in
maritime tort cases of state substantive rules in derogation of
maritime law. [Footnote 2/3
Page 361 U. S. 325
case was a maritime tort action brought in a state court by a
seaman, seeking compensatory damages for injuries claimed to have
been caused by the negligence of his employer. Historically,
maritime law recognized no such cause of action. The duty of a
shipowner to an injured crewman was only to provide for his
maintenance and cure, and that irrespective of negligence; full
indemnity was owing only for breach of the warranty of
seaworthiness. [Footnote 2/4
Court held, first, that § 20 of the Merchant Marine Act of 1915, 38
Stat. 1185, [Footnote 2/5
notwithstanding, such was still the rule. This being so, a state
court was not free to apply any other rule to a maritime tort:
"Plainly, we think, under the saving clause a right sanctioned
by the maritime law may be enforced through any appropriate remedy
recognized at common law; but we find nothing therein which reveals
an intention to give the complaining party an election to determine
whether the defendant's liability shall be measured by common law
standards, rather than those of the maritime law. Under the
circumstances here presented, without regard to the court where he
might ask relief, petitioner's rights were those recognized by the
law of the sea."
at 247 U. S.
This rule was soon reiterated in two subsequent cases. The first
was Carlisle Packing Co. v. Sandanger, 259 U.
, which, like Chelentis,
was a state
court action by a crew member against the shipowner. Injury was
allegedly caused by mislabeling of a can of gasoline and
Page 361 U. S. 326
by the negligent failure to stock a life preserver on board. A
judgment for plaintiff was affirmed, but on the ground that the
vessel was unseaworthy in the respects named; the existence of a
cause of action for negligence was denied. "The general rules of
the maritime law apply whether the proceeding be instituted in an
admiralty or common law court." Id.
at 259 U. S. 259
The second case was Robins Dry Dock Co. v. Dahl,
266 U. S. 449
where the action, again in a state court for negligence, was by an
employee of an independent contractor against his employer for a
shipboard injury. Such a right of action existed in admiralty,
Atlantic Transport Co. v. Imbrovek, 234 U. S.
, and the question was as to the scope of the
defendant's duty. Here too the same principle of federal supremacy
was upheld. An instruction permitting the jury to consider the
requirements of a state safety statute on the issue of negligence
was held erroneous.
"The rights and liabilities of the parties arose out of and
depended upon the general maritime law, and could not be enlarged
or impaired by the state statute."
266 U.S. at 266 U. S. 457
Largely owing to the passage of the Jones Act, 46 U.S.C. § 688,
] which bound
non-admiralty as well as admiralty courts, [Footnote 2/7
] the issue was not again raised in
litigation here for several decades. Garrett v. Moore-McCormack
Co., 317 U. S. 239
however, demonstrates the pervasive scope given to the same
principle of federal supremacy in the application of that Act.
There, a State was denied power, by characterizing the matter as
"procedural," to apply its own rules to the question of burden of
proof of fraud in the obtaining of a release from an injured
seaman. Rather, the state court was required to
Page 361 U. S. 327
apply the rule adopted by federal maritime law. The case thus
manifests the continued vitality of the supremacy principle in this
area. 317 U.S. at 317 U. S. 244
It remained for Pope & Talbot, Inc. v. Hawn,
346 U. S. 406
unmistakably to demonstrate that the principle embodied in the
and Robins Dry Dock
decisions had not withered with time. There, a shore-based
carpenter, employed by an independent contractor, sought a recovery
against a shipowner based on negligence [Footnote 2/8
] and unseaworthiness. The Court held that,
under federal law, a right of action was available on both grounds,
and that, under the maritime rule, the effect of plaintiff's
contributory negligence was to diminish, but not wholly defeat, his
recovery. This being so, a State was debarred from applying another
Finally, when, only last Term, the Court came to consider, in
Kermarec v. Compagnie Generale, 358 U.
, the scope of a shipowner's duty of care toward a
social guest of a crew member, it had no hesitation about the
proposition that federal law must govern an action within the
jurisdiction of admiralty.
"The District Court was in error in ruling that the governing
law in this case was that of the State of New York. Kermarec was
injured aboard a ship upon navigable waters. It was there that the
conduct of which he complained occurred. The legal rights and
liabilities arising from that conduct were therefore within the
full reach of the admiralty jurisdiction, and measurable by the
standards of maritime law. . . . If this action had been brought in
a state court, reference to admiralty law would have been
Page 361 U. S. 328
necessary to determine the rights and liabilities of the
parties. Carlisle Packing Co. v. Sandanger, 259 U. S.
, 259 U. S. 259
. Where the
plaintiff exercises the right conferred by diversity of citizenship
to choose a federal forum, the result is no different, even though
he exercises the further right to a jury trial. Whatever doubt may
once have existed on that score was effectively laid to rest by
Pope & Talbot, Inc. v. Hawn, 346 U. S.
, 346 U. S. 410
at 358 U. S.
I think it is clear, then, that the supremacy principle
established by this line of cases may not be shrugged off as a
discredited relic of an earlier day. [Footnote 2/9
] Indeed, the Court's total disregard of
that principle in the present case is not grounded on the view that
it is no longer generally viable. Rather, the Court appears to
consider it inapplicable in an action for wrongful death. For
reasons now to be discussed, I think this is a mistaken view.
What I shall address myself to at this point is the reason why
maritime law permits resort to state wrongful death statutes.
] For it is only
through an understanding
Page 361 U. S. 329
of that reason that light can be shed on the pivotal issue in
Unfortunately, such rationalization as has been made of the
problem in the wrongful death cases in this Court does not carry us
very far. Mr. Justice Holmes, in The Hamilton,
to say no more than that permitting state death statutes to be used
would not produce "any lamentable lack of uniformity" in the
maritime law. 207 U.S. at 207 U. S. 406
Mr. Justice McReynolds, in Western Fuel Co. v. Garcia,
257 U. S. 233
simply observed that the use of such statutes was "the logical
result of prior decisions," that "[t]he subject is maritime and
local in character," and that the innovation
"will not work material prejudice to the characteristic features
of the general maritime law, nor interfere with the proper harmony
and uniformity of that law in its international and interstate
at 257 U. S. 242
Page 361 U. S. 330
Other rationalizations of the subject leave much to be desired.
It has been said that the application of state wrongful death
statutes is permitted to "fill a void" in maritime law. See,
41 Va.L.Rev. 251, 252; 34 B.U.L.Rev. 365, 366; cf.
The Tungus, supra,
358 U. S. 592
. But there is a "void" only in the sense
that there is an absence of a right of action in such cases;
admiralty does not lack a rule on the subject. It has also been
suggested that the Court permits the application of state death
acts because it regards such statutes as wiser in this respect than
maritime law, although it deems itself unable to alter the
disfavored federal rule. See, e.g.,
Note, 73 Harv.L.Rev.
84, 148, 149. But if the rule of The Harrisburg
firmly established that legislation is the only available means of
reform, cf. The Tungus, supra,
at 358 U. S. 590
358 U. S. 599
it is scarcely legitimate to turn, for that very reason, to state
I think the fault with such explanations lies in the emphasis
given to admiralty's endeavor to find in state law a supplement to
its own shortcomings, something which federal power has always been
fully competent to remedy internally on its own account. Instead,
the proper point of departure is, I believe, to recognize that, in
permitting use of wrongful death statutes, admiralty is endeavoring
to accommodate itself to state policies represented by such
statutes. That indeed appears to have been the approach of Congress
in enacting the Death on the High Seas Act, for as was said in
the legislative history of that Act
"discloses a clear congressional purpose to leave 'unimpaired
the rights under State statutes as to deaths on waters within the
territorial jurisdiction of the States,'"
"reflects deep concern that the power of the States to create
actions for wrongful death in no way be affected by enactment of
the federal law."
358 U.S. at 358 U. S. 593
At the same time, there was no suggestion that Congress
contemplated that the
Page 361 U. S. 331
supremacy of admiralty law should be yielded to the States in
maritime death cases. Cf. id.
at 358 U. S.
-608, separate opinion.
It only confuses things to say, as has sometimes been loosely
remarked, that, in maritime wrongful death cases, admiralty absorbs
state law, or that the States have embraced maritime law. State and
maritime systems of law stand separately, even though the two may
not always be mutually exclusive, and, when a conflict arises, the
latter yields to the former only in face of a superior state
interest. This, I think, is what Mr. Justice McReynolds had in mind
when he stated in Garcia
that a wrongful death statute is
a subject both "maritime and local in character." The true inquiry
thus becomes one involving the nature of the state interest in a
wrongful death statute, the extent to which such interest intrudes
upon federal concerns, and the basis of the reasoning that led Mr.
Justice Holmes to state summarily in The Hamilton
resort to such statutes would not result in "any lamentable lack of
uniformity" in maritime law.
What no lesser authority in admiralty matters than Judge Addison
Brown said many years ago in The City of Norwalk,
98, [Footnote 2/12
] is highly
illuminating. He gave these reasons for permitting a state death
statute to apply to a maritime tort:
"(1) It is a general law of personal rights, not specially
directed to commerce or navigation, but applying alike on sea or
shore; (2) it is within the police power; for it is 'a statute
intended to protect life' (Huntington v. Attrill,
146 U. S.
, 146 U. S. 675
. . . ),
through one of the most effectual of all sanctions, viz.,
by imposing on the offender a liability to pay a pecuniary
Page 361 U. S. 332
indemnity; while in the interest of the public, it also tends to
avert the dependency or pauperism of the survivors by shifting the
burden of their support, in part at least, from the community to
the authors of the wrong; (3) it is local in its scope, and
interferes in no way with any needful uniformity in the general law
of the seas, or with international or interstate interests."
Where tortious conduct causes death, the decision of a State to
provide a right of action in favor of the victim's estate or
beneficiaries represents a response to considerations peculiarly
within traditional state competence: providing for the victim's
family, and preventing pauperism by shifting what would otherwise
be a public responsibility to those who committed the wrong. These
are matters intimately concerned with the State's interest in
regulating familial relationships. Moreover, where the injury is
wrongful under maritime law, this is the predominant, if indeed not
the sole, purpose of the statute. In such instances, the State is
not legislating in order to affect the defendant's conduct, since,
by hypothesis, a federally imposed duty already exists. For merely
because no federal action lies for wrongful death, one can hardly
say that there is no duty not to kill through negligence, but there
is a duty not to injure. The tortious conduct is the same in either
case, and wrongful under federal law. The state statute therefore
makes no meaningful inroads on federal interests. To quote further
from Judge Brown:
"The state statute does not create the cause of action. It does,
indeed, create a new right, and liability, but it does not create a
single one of the elements that make up the fundamental cause of
action -- that is, the essential grounds of the demand. All these
elements exist independently of the statute, and are not in the
least affected by it. It no more creates
Page 361 U. S. 333
the wrong, or the damage, than it creates the negligence or the
death; nor does it, as in the pilotage and double wharfage cases,
add anything to the damages sustained. It authorizes no recovery
except for 'the pecuniary damages' already existing. It is
apparent, therefore, that, as suggested by Mr. Justice Clifford in
Steamboat Co. v. Chase,
16 Wall. 532, the statute does no more than 'take the case out of
the operation of the common law maxim that an action for death dies
with the person.'"
55 F. at 109.
"Before the statute, the case was damnum absque
by the statute, it became at once a tort in the full
legal sense, and a marine tort by reason of its place, its nature,
and its circumstances. . . ."
at 110. Thus, where the duty imposed by a state
death act is no greater than that already existing under federal
law, the application of the statute is solely, or nearly so, a
reaction to strong, localized state interests, and there is no real
encroachment on federal interests. [Footnote 2/13
Page 361 U. S. 334
Far different is the case when a State purports, as here, to
impose a duty which under federal law a person does not bear. Then
it can hardly be said that the State is not seeking to regulate
conduct within federal maritime jurisdiction. The very purpose of a
statute like the one here invoked is to induce those to whom it
applies to take the precautions required by it. In such a case, the
mere fact that it is a death act which imposes the duty cannot be
thought to render the import of the matter of "local" concern only.
The state interests given expression no longer are predominantly
those peculiarly within state concern. By the same token, the
intrusion into federally regulated interests is no longer
I can find no justification, consistent with the course of
adjudication in this Court, for upholding state power here, without
so much as even suggesting the need for an inquiry as to the extent
of federal interest in the activity in question. [Footnote 2/14
Nothing in the wrongful death cases on which the Court relies
calls for today's holding. None of them involved, as here, the
assertion of any local rules of substantive law going beyond those
applicable under federal standards. [Footnote 2/15
Page 361 U. S. 335
The essential failing in the Court's use of these cases is its
view that, because rights asserted under a state death statute are
manifestly rights created by the State, no federal element is
involved in their assertion. The truth is, however, that, where the
tort is maritime and the action is brought under the "saving
clause," state-created rights may be asserted only by federal
That is the premise on which The Hamilton and its
offspring proceeded. When such a right is asserted, the plaintiff
must, however, show more than that a State can give
Page 361 U. S. 336
him a right to recover; he must also show that it has done so.
Thus, if a State has chosen not to provide a right of action to one
who does no sue within a stated period, The Harrisburg, supra;
Western Fuel Co. v. Garcia, supra; Levinson v. Deupree,
345 U. S. 648
345 U. S.
-652; to one who does not have a stated relationship
to the decedent, id.
at 345 U. S. 651
to one whose decedent's negligence contributed to the fatal injury,
United Pilots Assn. v. Halecki, 358 U.
, 358 U. S. 615
or to one whose right of action is based on breach of the uniquely
maritime duty to provide a seaworthy ship, The Tungus v.
there can be no right of recovery, for
neither federal nor state law affords it. [Footnote 2/16
] For this reason, when asking whether a
plaintiff has made out a cause of action under a state death act,
the Court approaches the statute "as it would one originating in
any foreign jurisdiction," Levinson v. Deupree, supra,
345 U. S. 652
in an "endeavor to determine the issues in accordance with the
substantive law of the State," Garrett v. Moore-McCormack
317 U.S. at 317 U. S. 245
This because, the State having created the right, one must look to
state law to "determine the circumstances under which that right
exists." The Tungus, supra,
at 358 U. S.
But none of these cases is apposite when the question is not
whether a federally permitted state right of action has, in fact,
been conferred by the State, but whether federal
Page 361 U. S. 337
maritime law permits the State to create an asserted right of
action. It is surely fallacious to reason that, because the
principle of the supremacy of federal maritime law has been held
not to bar a right of action for death caused by a defendant's
failure to take reasonable precautions to avoid exposing those to
whom the duty is owed to an undue risk of harm, it follows that
such principle does not bar a right of action for death caused by
failure to "use every device, care and precaution which it is
practicable to use," Ore.Rev.Stat. § 654.305. When the Court, in
and its successors, held that the federal
supremacy principle did not prevent a State from giving any right
of action for wrongful death caused by a maritime tort, it did not
thereby eschew forever all federal limits on the content of
substantive obligations appearing in statutes bearing the label
"wrongful death act."
It may be that the Court does not intend to go so far. It
asserts, albeit almost as an afterthought, that some state
doctrines might be constitutionally inapplicable to maritime torts,
notwithstanding that they are embodied in a death statute.
] It then summarily
finds the possible reservation inapplicable in this instance on the
ground that other provisions of the Oregon Employers' Liability
Law, not here involved, resemble some admiralty doctrines, with
which also we are not now concerned, more than do comparable
provisions in the State's general wrongful death statute, which
presumably can be constitutionally applied to a maritime tort. With
all deference, I must say that the total irrelevance of that fact
seems plain. We are not reviewing the general constitutionality
Page 361 U. S. 338
of the Employers' Liability Law; we are concerned only with the
constitutionality of the standard of care provisions of that law,
as applied to an employee of an independent contractor injured on
navigable waters and seeking to impose liability upon the owner and
operator of a dam. The Court does not find that the federal
interest in regulating the conduct of the dam owner is so minimal
-- whether by reason of the fixed situs of the dam or on some other
ground -- that the federal supremacy principle may reasonably be
found inapplicable. Neither does the Court assert, for it could
scarcely do so, that the standard of care required by this statute
is not significantly greater than that imposed by federal law.
Thus, if the principle of the supremacy of maritime law calls for
anything more than an empty nod, it calls for a result contrary to
that reached today.
It is suggested that a contrary decision will lack
"evenhandedness," apparently for the reason that, since those
invoking state death statutes must sometimes bear the burden of
comparatively unfavorable provisions, it is only fair that, when
more favorable provisions obtain, they be able to enjoy the
benefits of such rules. But, as the Court points out "[w]e are
concerned with constitutional adjudication, not with reaching
particular results in given cases." Such unevenhandedness as there
may be in this area is the consequence of the rule of The
to which this Court has steadfastly adhered for
nearly 75 years, [Footnote 2/18
and which Congress, when it enacted the Death on the High Seas Act,
saw fit to change only in a limited way. See The Tungus,
at 358 U. S.
-593. When federal law permits the application of
state death acts, those on whom the state statute confers a right
of action may escape the harsh consequences of that rule. Those
whom the state
Page 361 U. S. 339
law has declined to benefit are left as they were. Certainly we
should not, in the name of "evenhandedness," permit a State to
exceed constitutional limitations merely because, in some
instances, it may have chosen not to do all it might under the
Constitution. [Footnote 2/19
I would affirm.
The Court in The Tungus
was concerned only with
possible limitations imposed by New Jersey law on the assertion of
causes of action for unseaworthiness and negligence, both of which
the Court, accepting the views of the Court of Appeals, considered
were embraced by the state wrongful death statute. The case did not
present the question whether such a statute might confer
substantive rights not afforded by maritime
I agree with the Court that the provision of the Federal Tort
Claims Act rendering the United States liable in accordance with
the "law of the place where the act or omission occurred," 28
U.S.C. § 1346(b), manifests no intention to convert a maritime tort
into a land tort, and that this case must be treated as one falling
within maritime jurisdiction. See
p. 361 U. S. 318
and note 7 ante.
While discussions of the current maritime supremacy doctrine
usually commence with Southern Pacific Co. v. Jensen,
244 U. S. 205
case seems a more appropriate point of beginning
in this instance. Jensen
was, of course, a workmen's
compensation case, and might be thought to have rested on the view
that the "common law remedy" preserved by the "saving clause" did
not embrace the compensation remedy, "of a character wholly unknown
to the common law." 244 U.S. at 244 U. S. 218
It remained for later cases to establish that Jensen
reflected a broader principle.
It should be added that, while the results in Jensen
and some of its progeny have been widely criticized, there is
general recognition of the validity of its premise. As Gilmore and
Black put it, The Law of Admiralty, § 1-17:
"If there is any sense at all in making maritime law a federal
subject, then there must be some limit set to the power of the
states to interfere in the field of its working."
Stevens, Erie R.R. v. Tompkins
the Uniform General Maritime Law, 64 Harv.L.Rev. 246.
The classic formulation is that found in The Osceola,
189 U. S. 158
189 U. S.
Providing that "seamen having command shall not be held to be
fellow servants with those under their authority."
the account in Gilmore and Black, op. cit.
See Socony-Vacuum Co. v. Smith, 305 U.
; Beadle v. Spencer, 298 U.
; The Arizona v. Anelich, 298 U.
The cause of action for negligence did not, of course, rest on
the Jones Act, since Hawn as not a seaman, but on the traditional
admiralty doctrine imposing on a shipowner a duty to use reasonable
care to avoid injuring an invitee. See, e.g., The Max
Morris, 137 U. S. 1
Nothing in Caldarola v. Eckert, 332 U.
, may properly be taken as impinging upon the
continued vitality of the supremacy principle as enunciated in the
case and its successors. Cf.
Erie R.R. v. Tompkins
and the Uniform General Maritime
Law, 64 Harv.L.Rev. 246, 263. Nor has this doctrine otherwise
become diluted, as seems to be suggested by Hart and Wechsler, The
Federal Courts and the Federal System, 482-483. Any doubts which
might have existed on this score were "effectively laid to rest by
Pope & Talbot, Inc. v. Hawn, 346 U.
, 346 U. S.
-411." Kermarec v. Compagnie Generale,
at 358 U. S.
Prior to the decision in The Harrisburg, supra,
Court had rejected claims that maritime tort actions in state
courts based upon a local death statute were not within the "saving
clause," Steamboat Co. v.
16 Wall. 522, or were offensive to the
Commerce Clause, Sherlock v. Alling, 93 U. S.
, 93 U. S.
-103. Subsequently, in The Hamilton, supra,
it was with little difficulty held that a plaintiff could assert in
admiralty a right of action grounded on a state wrongful death act.
See also La Bourgogne, 210 U. S. 95
210 U. S. 138
recognized the doctrine of these cases, 244 U.S. at
244 U. S. 216
and, in Western Fuel Co. v. Garcia, 257 U.
, the post-Jensen
Court expressly held
that the rule of The Hamilton
had not been displaced.
See also Great Lakes Co. v. Kierejewski, 261 U.
; Spencer Kellogg Co. v. Hicks,
285 U. S. 502
285 U. S.
The significance of such early cases as Chase
in the history of the uniformity principle has now
become largely academic in view of the twentieth century
This analysis leaves unexplained the sense in which wrongful
death actions are local. That attribute obtains irrespective of the
character of the decedent's activities, although the "maritime but
local" doctrine generally turned on the nuances of exactly that
element. E.g., Grant Smith-Porter Co. v. Rohde,
257 U. S. 469
Robinson, Admiralty 103; 2 Larson, Law of Workmen's
Compensation § 89.22. Put another way, an action for wrongful death
is "local" although, had the victim lived, his action for damages
would, by reason of the nature of his activities, not have been
"local." Thus, it is some characteristic of a wrongful death action
itself which permits application of state law.
The decision was affirmed as to this ground sub nom. The
Transfer No. 4,
61 F. 364, 367-368, certificate dismissed
on motion sub nom. McCullough v. New York, N.H. & H. R.
163 U.S. 693.
This reasoning has found reflection in maritime cases outside
the realm of wrongful death actions. Just v. Chambers,
312 U. S. 383
permitted the application to a maritime tort of a state statute
providing for survival of an action against a deceased tortfeasor.
Here, too, decedent had breached a federal duty for which, had he
lived, he would have had to answer. The State's decision to protect
plaintiffs from loss in this way reflected only local interests,
and made no encroachment on maritime interests.
Red Cross Line v. Atlantic Fruit Co., 264 U.
, a contract action, involved the question of the
validity, as applied to a maritime contract, of a state statute
making agreements to arbitrate specifically enforceable. The
decision proceeded from the premise that arbitration agreements
were valid obligations under maritime law, and that the statute
merely added the remedy of specific performance to the traditional
remedy of damages. See id.
at at 264 U. S.
-125. While there, the state interest in enforcing
such agreements was not as peculiarly local as is true of wrongful
death cases, the fact that admiralty acknowledged the validity of
arbitration clauses in contracts, and recognized a duty to live up
to them, rendered the intrusion into federal interests so minimal
as to justify the result.
It may be that the existence of an overriding federal interest
is not to be inferred solely from the fact that the tort is
maritime in the sense that admiralty has jurisdiction over it.
Cases may be put in which the connection with maritime activities
is so remote or fortuitous that state law should readily be
accepted by admiralty where it is otherwise applicable. The Court
does not purport to treat this case on any such basis.
in this Court: The Harrisburg, supra
("negligence" under Massachusetts and Pennsylvania death statutes);
The Hamilton, supra
("negligence" under Delaware wrongful
death statute); Western Fuel v. Garcia, supra
("negligence" under California wrongful death statute); La
Bourgogne, 210 U. S. 95
("fault" under French wrongful death law); Levinson v.
Deupree, 345 U. S. 648
("negligence or wrongful act" under Kentucky wrongful death
statute); The Tungus v. Skovgaard, supra
neglect or default" under New Jersey wrongful death statute);
United Pilots Assn. v. Halecki, 358 U.
(same New Jersey statute as in The
in the lower federal courts: Curtis v. A.
Garcia y Cia.,
241 F.2d 30 ("unlawful violence or negligence"
under Pennsylvania wrongful death statute); The H.S., Inc., No.
130 F.2d 341 ("wrongful act, neglect or default" under New
Jersey wrongful death statute); Klingseisen v. Costanzo Transp.
101 F.2d 902 (same Pennsylvania wrongful death statute as
in the Curtis
case); Graham v. A. Lusi, Ltd.,
F.2d 223 ("wrongful act, negligence, carelessness or default" under
Florida wrongful death statute); Truelson v. Whitney Bodden
10 F.2d 412 ("wrongful act, neglect,
carelessness, unskillfulness [sic
], or default" under
Texas wrongful death statute); Quinette v. Bisso,
825 ("fault" under Louisiana wrongful death statute); Lee v.
Pure Oil Co.,
218 F.2d 711 ("wrongful act, omission, or
killing" under Tennessee wrongful death statute); Feige v.
89 F.2d 575 ("negligence or wrongful act" under
Kentucky wrongful death statute); Holley v. The Manfred
269 F.2d 317 ("wrongful act, neglect, or default"
under Virginia wrongful death statute).
Thus, in not one of the foregoing cases, either here or in the
lower courts, did the standard of liability under the respective
state laws exceed the standard of liability in admiralty had the
injury not resulted in death.
See also The N.S., Inc., No. 72, supra,
rested on the appellate court's decision that the State whose
wrongful death statute was sought to be made the basis of recovery
imposed liability upon the defendant, in the circumstances there
presented, for the tort of its employee. There was no suggestion
that application of substantive federal maritime standards would
have led to a different result.
The remaining lower court cases relied on by the Court, and
referred to in 361
fn2/15|>note 15, supra,
involved the same
issues as those presented in the Halecki
In such a case, of course, not only would "the admiralty . . .
decline to enforce," ante
p. 361 U. S. 320
the challenged provision, but federal law would inhibit a common
law court, state or federal, from applying it to a maritime tort
cases cited, 361
fn2/15|>note 15, supra.
It ought not to have been necessary to say explicitly that this
opinion rests upon evenhanded application of a rule of
constitutional law which permits the enforcement of state-afforded
substantive rights under state wrongful death statutes only so long
as such rights do not offend those established by the maritime law.
Faithful adherence to that rule, of course, may lead to different
results in different situations, depending upon the extent of the
rights given by state law. In The Tungus,
accorded by state law were permitted to prevail because they were
not offensive to those recognized by maritime law. Here, the
state-created right cannot prevail, because it is flatly opposed to
that existing under maritime law. In short, these opposite results
are not attributable to any differences in the constitutional rule
applicable in the two cases -- a rule which remains the same in all
wrongful death cases -- but to differences in the character of the
substantive rights afforded by the two wrongful death statutes
Memorandum of MR. JUSTICE WHITTAKER.
Except for its implication, or conclusion, if it may be intended
to be such, that maritime torts committed on the navigable waters
of a State which result in death are governed by the general
substantive tort law of the State, not by the general federal
maritime law as remedially supplemented only by the State's
Wrongful Death Act -- which conflicts with my views as expressed in
my dissent in Goett v. Union Carbide Corp.,
p. 361 U. S. 345
I join my Brother HARLAN's dissent.