After filing suit in a New York state court against petitioner
shipowner to recover damages, on grounds of negligence and
unseaworthiness, for personal injuries sustained while working
aboard petitioner's vessel in New York waters, respondent husband
sought leave to amend his complaint to add his spouse as a
plaintiff for loss of society. The trial court denied the motion to
amend, but the Appellate Division of the New York Supreme Court
reversed and granted the motion to amend, reasoning that the case
was controlled by
Sea-Land Services, Inc. v. Gaudet,
414 U. S. 573,
which held that, under the nonstatutory maritime wrongful death
remedy, the widow of a longshoreman mortally injured aboard a
vessel in state territorial waters could recover damages for the
loss of her deceased husband's society. The New York Court of
Appeals affirmed.
Held: The judgment is affirmed. Pp.
446 U. S.
277-286;
446 U. S.
286.
46 N.Y.2d 634, 389 N.E.2d 461, affirmed.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE WHITE, MR. JUSTICE
BLACKMUN, and MR. JUSTICE STEVENS, concluded:
1. The Court of Appeals' judgment upholding the legal tenability
of the wife's claim for loss of society, although not "final" or
within a categorical exception to strict finality when originally
entered, will, as a practical matter, be treated as falling within
such an exception where, after certiorari was granted in this
Court, the case, including the loss of society claim, was tried and
respondent husband prevailed, the appeal from the trial verdict
will not challenge the element thereof awarding damages for loss of
society, and no federal issue other than whether the wife has a
cause of action under general maritime law for loss of society
remains. Pp.
446 U. S.
277-279.
2. General maritime law authorizes the wife of a harbor worker
injured nonfatally aboard a vessel in state territorial waters to
maintain an action for damages for the loss of her husband's
society. Although
Sea-Land Services, Inc. v. Gaudet,
supra, upheld a claim for loss of society in the context of a
wrongful death action, it provides the conclusive decisional
recognition of a right to recover for such loss, there being no
apparent reason to differentiate between fatal and nonfatal
injuries in authorizing the recovery of damages for loss of
society. Nor
Page 446 U. S. 275
is the reach of
Gaudet's principle limited by the fact
that no right to recover for loss of society due to maritime injury
has been recognized by Congress under the Death on the High Seas
Act or the Jones Act. Neither statute embodies an "established and
inflexible" rule foreclosing recognition of a claim for loss of
society by judicially crafted general maritime law. Pp.
446 U. S.
279-286.
MR. JUSTICE POWELL, while believing that
Sea-Land Services,
Inc. v. Gaudet, supra, was decided wrongly, concurred in the
judgment because he saw no rational basis for drawing a distinction
between fatal and nonfatal injuries. P.
446 U. S.
286.
BRENNAN, J., announced the judgment of the Court and delivered
an opinion, in which WHITE, BLACKMUN, and STEVENS, JJ., joined.
BURGER, C.J., concurred in the judgment. POWELL, J., filed an
opinion concurring in the judgment,
post, p.
446 U. S. 286.
MARSHALL, J., filed a dissenting opinion, in which STEWART and
REHNQUIST, JJ., joined,
post, p.
446 U. S.
286.
MR. JUSTICE BRENNAN announced the judgment of the Court and
delivered an opinion, in which MR. JUSTICE WHITE, MR. JUSTICE
BLACKMUN, and MR. JUSTICE STEVENS joined.
Sea-Land Services, Inc. v. Gaudet, 414 U.
S. 573 (1974), held that, under the nonstatutory
maritime wrongful death action fashioned by
Moragne v. States
Marine Lines, 398 U. S. 375
(1970), the widow of a longshoreman mortally injured aboard a
vessel in state territorial waters could recover damages for the
loss of her deceased husband's "society." [
Footnote 1] The
Page 446 U. S. 276
question in this case is whether general maritime law authorizes
the wife of a harbor worker injured nonfatally aboard a vessel in
state territorial waters to maintain an action for damages for the
loss of her husband's society. We conclude that general maritime
law does afford the wife such a cause of action.
I
Respondent Gilberto Alvez lost an eye while working as a lasher
aboard petitioner's vessel, SS Export Builder, in New York waters.
He commenced an action for damages against petitioner in the New
York Supreme Court on grounds of negligence and unseaworthiness.
[
Footnote 2] Leave to amend
respondent's complaint to add his spouse as a plaintiff for loss of
society was denied by the New York Supreme Court, Special Term, on
the authority of
Igneri v. Cie. de Transports Oceaniques,
323 F.2d 257 (CA2 1963),
cert. denied, 376 U.S. 949
(1964), in which the Court of Appeals for the Second Circuit ruled
that an injured longshoreman's wife was not entitled to
compensation for loss of her husband's society. App. to Pet. for
Cert. A1. The Appellate Division of the New York Supreme Court
reversed, and granted Alvez' motion to amend, reasoning that
Gaudet, rather than
Igneri, was controlling
authority. 59 App.Div.2d 883, 399 N.Y.S.2d 673 (1st Dept.1977).
Upon certification (App. to Pet. for Cert. A6-A7), the New York
Court of Appeals agreed that the vitality of
Igneri had
been sapped by
Gaudet and by other developments in the
law, and held that Mrs. Alvez should be permitted to maintain her
claim for loss of society under maritime law. 46 N.Y.2d 634, 389
N.E.2d 461 (1979). [
Footnote 3]
We granted certiorari. 444 U.S. 924 (1979). We affirm.
Page 446 U. S. 277
II
At oral argument, the Court raised,
sua sponte, the
question whether this case fell within the Court's statutory
jurisdiction to review "[f]inal judgments or decrees rendered by
the highest court of a State in which a decision could be had. . .
." 28 U.S.C. § 1257.
The question is a close one. The New York Court of Appeals order
granting leave to amend the complaint was only the predicate to a
decision on the merits of the claim for loss of society; that
order, therefore, is not "final" in the strict sense of a decree
that leaves nothing further to be addressed by the state courts.
Nor does the Court of Appeals judgment, as originally entered,
readily fit into any of the categorical exceptions to strict
finality which the Court has developed in construing § 1257.
See Cox Broadcasting Corp. v. Cohn, 420 U.
S. 469,
420 U. S.
476-487 (1975). [
Footnote 4] Thus, were the case in the posture in which it
stood when the petition for certiorari was filed, we might well
determine that the judgment lacked sufficient characteristics of
finality to warrant an assertion of our appellate jurisdiction.
Since the writ of certiorari was granted, however, this case --
including the claim for loss of society -- has been tried, and
respondent Alvez has prevailed. Tr. of Oral Arg. 7-8. Counsel for
petitioner American Export Lines has informed the Court at oral
argument that petitioner's appeal from the trial verdict against it
will not challenge that element of the verdict which awarded
damages for loss of society to Mrs.
Page 446 U. S. 278
Alvez.
Id. at 10, 41-42. [
Footnote 5] Furthermore, it is conceded that no federal
question, except that which we a.re now asked to resolve, remains
in the litigation.
Id. at 6. [
Footnote 6]
Page 446 U. S. 279
So far as respondent's wife's claim for loss of society is
concerned, it thus appears that
"the federal issue, finally decided by the highest court in the
State, will survive and require decision regardless of the outcome
of future state court proceedings."
Cox Broadcasting, supra at
420 U. S. 480;
see Radio Station WOW v. Johnson, 326 U.
S. 120,
326 U. S.
123-127 (1945). As a practical matter, then, we conclude
that the judgment below upholding the legal tenability of Mrs.
Alvez' claim falls -- at present within a categorical exception to
strict finality. [
Footnote
7]
"[N]ow that the case is before us . . . , the eventual costs, as
all the parties recognize, will certainly be less if we now pass on
the questions presented here, rather than send the case back with
those issues undecided."
Gillespie v. United States Steel Corp., 379 U.
S. 148,
379 U. S. 153
(1964).
III
In
Igneri v. Cie. de Transports Oceaniques, the Court
of Appeals for the Second Circuit rejected the loss-of-society
claim of a longshoreman's wife in a maritime personal injury
Page 446 U. S. 280
action. The
Igneri opinion was carefully constructed
within the framework of then-applicable doctrines governing
maritime remedies. At the time, there was no clear decisional
authority sustaining a general maritime law right of recovery for
loss of society. 323 F.2d at 265-266;
compare Savage v. New
York, N. & H. S. S. Co., 185 F. 778, 781 (CA2 1911)
(adopting opinion of Hough, District Judge) (dictum),
with New
York & Long Branch Steamboat Co. v. Johnson, 195 F 740
(CA3 1912). It was also thought established, as
Igneri
stated, "that the damages recoverable by a
seaman's widow
suing for wrongful death under the Jones Act do not include
recovery for loss of consortium," 323 F.2d at 266 (emphasis added);
see Michigan Central R. Co. v. Vreeland, 227 U. S.
59 (1913). Too, it was far from evident that the rule of
Seas Shipping Co. v. Sieracki, 328 U. S.
85 (1946), entitling a longshoreman to maintain an
action for unseaworthiness, would extend to permit recovery for
loss of society by his spouse. 323 F.2d at 267-268. Thus, the
principles of maritime law prevalent in 1963 militated against,
rather than supported, the creation of a right to recover for loss
of society in
Igneri.
Subsequent developments, however, have altered the legal setting
within which we confront a claim for loss of society due to
personal injury. In 1970,
Moragne v. States Marine Lines,
398 U. S. 375,
overruled
The Harrisburg, 119 U.
S. 199 (1886), and held that an action for wrongful
death based upon unseaworthiness is maintainable under general
federal maritime law.
Moragne itself did not fully define
the new, nonstatutory, cause of action, and its contours were
further shaped some four years later by
Sea-Land Services, Inc.
v. Gaudet, 414 U. S. 573
(1974).
Gaudet held,
inter alia, that the
maritime wrongful death remedy created by
Moragne
encompassed the recovery of damages for loss of society by a
decedent's widow. So it is no longer correct to assume -- as did
Igneri -- that the warranty of seaworthiness affords no relief to
the spouse of a longshoreman. More importantly,
Gaudet
provides the conclusive decisional recognition of a
Page 446 U. S. 281
right to recover for loss of society that
Igneri found
lacking. To be sure,
Gaudet upheld a claim for loss of
society in the context of a wrongful death action. But general
federal maritime law is a source of relief for a longshoreman's
personal injury,
Pope & Talbot, Inc. v. Hawn,
346 U. S. 406,
346 U. S.
412-414 (1953), just as it is a source of remedy for
wrongful death,
Moragne, supra. Within this single body of
judge-formulated law, there is no apparent reason to differentiate
between fatal and nonfatal injuries in authorizing the recovery of
damages for loss of society. The vitality of the longshoreman is
logically irrelevant once we have accepted the principle that
injury suffered by a longshoreman's spouse from loss of society
should be compensable, when proved. Nothing intrinsic to the
Gaudet rule, therefore, should cabin its application to
wrongful death. [
Footnote
8]
Petitioner argues that the reach of
Gaudet's principle
must be limited by the fact that no right to recover for loss of
society due to maritime injury has been recognized by Congress
under § 2 of the Death on the High Seas Act (DOHSA), 46 U.S.C. §
762;
see Mobil Oil Corp. v. Higginbotham, 436 U.
S. 618,
436 U. S. 620
(1978), or the Jones Act, 46 U.S.C. § 688. But it is a settled
canon of maritime jurisprudence that
"'it better becomes the humane and liberal character of
proceedings in
Page 446 U. S. 282
admiralty to give than to withhold the remedy, when not required
to withhold it by established and inflexible rules.'"
Moragne v. States Marine Lines, supra at
398 U. S. 387,
quoting, with approval,
The Sea Gull, 21 F. Cas. 909, 910
(No. 12,578) (CC Md. 1865);
accord, Sea-Land Services, Inc. v.
Gaudet, supra at
414 U. S. 583.
Plainly, neither statute embodies an "established and inflexible"
rule here foreclosing recognition of a claim for loss of society by
judicially crafted general maritime law.
DOHSA comprehends relief for
fatal injuries incurred on
the
high seas, 46 U.S.C. § 761. To be sure,
Mobil Oil
Corp. v. Higginbotham, supra, construed DOHSA to forbid
general maritime law supplementation of the elements of
compensation for which the Act provides. But
Higginbotham
never intimated that the preclusive effect of DOHSA extends beyond
the statute's ambit. To the contrary, while treating the statutory
remedies for wrongful deaths on the high seas as exclusive,
Higginbotham expressly reaffirmed that
Gaudet
governs recoveries for wrongful deaths on territorial waters. 436
U.S. at
436 U. S.
623-625;
see Moragne, supra at
398 U. S.
397-398. And if DOHSA does not preempt general maritime
law where
fatalities occur
within territorial
waters, it follows
a fortiori that the Act does not
exclude federal maritime law as a source of relief for
nonfatal injuries upon the same waters.
Nor do we read the Jones Act as sweeping aside general maritime
law remedies. Notwithstanding our sometime treatment of
longshoremen as pseudo-seamen for certain Jones Act purposes,
International Stevedoring Co. v. Haverty, 272 U. S.
50 (1926);
cf. Seas Shipping Co. v. Sieracki,
supra at
328 U. S.
100-102, [
Footnote
9] the Jones Act does not exhaustively or exclusively
Page 446 U. S. 283
regulate longshoremen's remedies,
see Moragne, 398 U.S.
at
398 U. S.
395-396, and n. 12;
Pope & Talbot, Inc. v. Hawn,
supra at
346 U. S.
413-414;
Igneri, 323 F.2d at 266. [
Footnote 10] Furthermore, the Jones
Act lacks such preclusive effect even with respect to true seamen;
thus, we have held that federal maritime law permits the dependents
of seamen killed within territorial seas to recover for violation
of a duty of seaworthiness that entails a stricter standard of care
than the Jones Act. Moragne,
supra at
398 U. S. 396,
n. 12;
see Gilmore & Black,
supra, n 9, at 367-368.
Apart from the question of statutory preemption, the liability
schemes incorporated in DOHSA and the Jones Act should not be
accorded overwhelming analogical weight in formulating remedies
under general maritime law. The two statutes were enacted within
days to address related problems -- yet they are "hopelessly
inconsistent with each other." Gilmore & Black,
supra,
n 9, at 359;
see id.
at 360-367. The Jones Act itself was not the product of careful
drafting or attentive legislative review,
id. at 277, 327;
assuming that the statute bars damages for loss of society, it does
so solely by virtue of judicial interpretation of the Federal
Employers' Liability Act, 45 U.S.C. § 51
et seq., which
was incorporated into the Jones Act,
see, e.g., Ivy v. Security
Barge Lines, Inc., 606 F.2d 524, 526 (CA5 1979) (en banc),
cert. pending, No. 79-1228. Thus, a remedial omission in
the Jones Act is not evidence of considered congressional
policymaking that should command
Page 446 U. S. 284
our adherence in analogous contexts. And we have already
indicated that
"no intention appears that the [Death on the High Seas] Act have
the effect of foreclosing any nonstatutory federal remedies that
might be found appropriate to effectuate the policies of general
maritime law."
Moragne, supra at
398 U. S. 400;
Gaudet, 414 U.S. at
414 U. S. 588,
n. 22.
Far more persuasive at the present juncture are currently
prevailing views about compensation for loss of society.
Cf.
Sea-Land Services, Inc. v. Gaudet, supra at
414 U. S.
587-588. As the Court of Appeals observed in
Igneri:
"At least this much is true. If the common law recognized a
wife's claim for loss of consortium, uniformly or nearly so, a
United States admiralty court would approach the problem here by
asking itself why it should not likewise do so. . . ."
323 F.2d at 260. At the time
Igneri was decided,
governing law in the relevant jurisdictions was substantially
divided over the wife's right to recover for loss of consortium.
Id. at 260-264. But the state of the law is very different
today. Currently, a clear majority of States permit a wife to
recover damages for loss of consortium from personal injury to her
husband. [
Footnote 11]
Furthermore,
Page 446 U. S. 285
even in
Igneri's day, the generally accepted rule
allowed a
husband to gain damages for loss of consortium
with his tortiously injured
wife, id. at 260; so
"clearly authorized" a common law principle would have been
translated into maritime law by the
Igneri analysis,
id. at 260, 267. And if
Igneri implies that a
husband may collect compensation under maritime law for loss of
consortium with his injured wife, it follows that the same relief
is due the wife who suffers a comparable loss because of wounds
suffered by her husband,
see, e.g., Duncan v. General Motors
Corp., 499 F.2d 835 (CA10 1974);
cf. Orr v. Orr,
440 U. S. 268
(1979).
Admiralty jurisprudence has always been inspirited with a
"special solicitude for the welfare of those men who under[take] to
venture upon hazardous and unpredictable sea voyages."
Moragne
v. States Marine Lines, supra at
398 U. S. 387.
As in
Moragne and
Gaudet,
"[o]ur approach to the
Page 446 U. S. 286
resolution of the issue before us . . . [is] consistent with the
extension of this 'special solicitude' to the dependents of
[seafarers]. . . ."
Gaudet, supra at
414 U. S. 577.
The decision of the New York Court of Appeals is
Affirmed.
THE CHIEF JUSTICE concurs in the judgment.
[
Footnote 1]
"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."
Sea-Land Services, Inc. v. Gaudet, 414 U.S. at
414 U. S.
585.
[
Footnote 2]
Alvez' injury was sustained before the effective date of the
1972 Amendments to the Longshoremen's and Harbor Workers'
Compensation Act, 33 U.S.C. § 901
et seq. Petitioner also
impleaded Alvez' employer, Joseph Vinal Ship Maintenance, Inc., for
indemnification.
[
Footnote 3]
Since
Gaudet, one Federal Court of Appeals has
expressly aligned itself with the
Igneri rule,
Christofferson v. Halliburton Co., 534 F.2d 1147 (CA5),
rehearing en banc denied, 542 F.2d 1174 (1976), and a
number of state and federal district courts have divided on the
issue,
compare, e.g., Pesce v. Summa Corp., 54 Cal. App. 3d
86, 126 Cal. Rptr. 451 (1975),
and Giglio v. Farrell Lines,
Inc., 424 F.
Supp. 927 (SDNY 1977),
appeal denied, No. 77-8014
(CA2, Feb. 17, 1977),
with Davidson v. Schlussel Reederei
KG, 295 So. 2d 700 (Fla.App. 1974),
and Westcott v.
McAllister Bros., Inc., 463 F.
Supp. 1039 (SDNY 1978).
[
Footnote 4]
See Note, The Finality Rule for Supreme Court Review of
State Court Orders, 91 Harv.L.Rev. 1004 (1978).
[
Footnote 5]
"Question: Mr. Carr [attorney for petitioner], what happens if
the appellate division reverses?"
"Mr. Carr: If the appellate division reverses, it would not
reverse on the question of Juanita Alvez's claim for consortium. If
the appellate division reverses, it would probably reverse on --
"
"Question: Correct."
"Mr. Carr: -- instructions to the jury that may have been --
"
"Question: Then the appellate division leaves that intact, the
$50,000, right?"
"Mr. Carr: Yes, sir."
"Question: Could I ask you if the New York court system has
finally disposed of this federal issue of the right of the
wife?"
"Mr. Carr: The New York state court system has finally disposed
of the issue of the right of the wife."
"Question: You have lost at trial?"
"Mr. Carr: Well, I don't like to put it that way."
"Question: Well, judgment has gone against you, your
client?"
"Mr. Carr: There is judgment against my client. . . ."
"Question: Well, on the consortium issue, the judgment has gone
against your client ?"
"Mr. Carr: Yes, indeed it has, Your Honor."
"Question: And that issue has not -- if you want to appeal in
the state court system, the right of the wife is not subject to
relitigation, is it?"
"Mr. Carr: The right of the wife is final as far as the New York
state court system is concerned."
"Question: Except as to amount, I suppose."
"Mr. Carr: Except as to amount."
"Question: Conceivably a reviewing court might reduce it."
"Mr. Carr: With respect to excessiveness, that is so. But as far
as the wife's right of consortium, that right is final in the state
courts and cannot be relitigated in that forum."
"Mr. Carr: The appellate division would say this is
res
judicata, this has been decided by the New York state Court of
Appeals, and does not permit vou to pursue the matter further."
[
Footnote 6]
The dissent argues,
post at
446 U. S. 287,
n. 1, that petitioner's counsel's assertion that the New York
courts would not reverse Mrs. Alvez' trial victory, Tr. of Oral
Arg. 10, is contradicted by statements of respondent Alvez' counsel
indicating or implying that American Export Lines "might find some
grounds for error in the record,"
id. at 21;
see
id. at 20. But respondent Alvez' counsel could have said
nothing else: since he is not representing petitioner American
Export Lines, respondent Alvez' attorney could hardly have conceded
any element of petitioner's case in the state courts. What is
relevant, then, is petitioner's counsel's answer to this Court
that
"the appellate division . . . would not reverse on the question
of Juanita Alvez's claim for consortium. . . . [The New York
courts] would leave it intact."
Id. at 10. Since American Export Lines' counsel was
aware of this Court's concerns, it is fair to read this response as
a concession by counsel -- who was in a position to know his
client's strategy in the state courts -- that Mrs. Alvez' claim was
no longer in jeopardy.
[
Footnote 7]
Our ruling on finality only extends, of course, to Mrs. Alvez'
claim for loss of society, since we do not understand counsel for
petitioner to concede that the other claims tried are beyond
challenge. The fact that these other claims are nonfinal, however,
need not preclude us from considering the final determination as to
Mrs. Alvez' claim.
Cf. Gillespie v. United States Steel
Corp., 379 U. S. 148,
379 U. S. 153
(1964).
[
Footnote 8]
Gaudet's discussion of the issue of double liability
did state:
"[D]ecedent's recovery did not include damages for the
dependents' loss of services or of society, and funeral expenses.
Indeed, these losses -- unique to the decedent's dependents --
could not accrue until the decedent's death."
414 U.S. at
414 U. S.
591-592.
In
Christofferson v. Halliburton Co., 534 F.2d at 1150,
the Court of Appeals for the Fifth Circuit inferred from that
passage an intention to limit
Gaudet to the wrongful death
context. But no such limitation is implicit. As a matter of logic,
Gaudet's statement that double liability is precluded in
wrongful death cases is not equivalent to the proposition that only
wrongful death cases preclude double liability. Moreover, the
Gaudet opinion itself noted that damages may be assessed
for loss of society in personal injury cases, 414 U.S. at
414 U. S.
589-590;
see Christofferson, supra at 1153-1154
(Freeman, J., dissenting).
[
Footnote 9]
Haverty was largely, if not completely, superseded by
the Longshoremen's and Harbor Workers' Compensation Act of 1927, 33
U.S.C. § 901
et seq. See Swanson v. Marra Bros.,
328 U. S. 1 (1946).
But see G. Gilmore & C. Black, The Law of Admiralty
330, 454-455 (2d ed.1975).
Sieracki has been overtaken by
the 1972 Amendments to the Longshoremen's Act.
See Gilmore
& Black,
supra at 449.
[
Footnote 10]
Respondent Joseph Vinal Ship Maintenance, Inc., the interests of
which parallel petitioner's, has advanced the argument that
recovery for loss of society is barred by the Longshoremen's and
Harbor Workers' Compensation Act as applicable at the time of the
injury --
i.e., before the 1972 Amendments. It does not
appear that this contention was raised below; in any event, it has
no merit. Whatever the limitations on recovery against employers
under the pre-1972 LHWCA, longshoremen retained additional rights
based upon the warranty of seaworthiness.
See Seas Shipping Co.
v. Sieracki, 328 U. S. 85
(1946);
cf. Sea-Land Services, Inc. v. Gaudet, supra.
[
Footnote 11]
Forty-one States and the District of Columbia allow recovery by
a wife or couple:
Swartz v. United States Steel Corp., 293
Ala. 439,
304 So. 2d
881 (1974);
Schreiner v. Fruit, 519 P.2d 462
(Alaska 1974);
Glendale v. Bradshaw, 108 Ariz. 582,
503 P.2d
803 (1972);
Missouri Pacific Transp. Co. v. Miller,
227 Ark. 351,
299 S.W.2d
41 (1957);
Rodriguez v. Bethlehem Steel
Corp., 12 Cal. 3d
382, 525 P.2d 669 (1974); Colo.Rev.Stat. § 14-2-209 (1973);
Hopson v. St. Mary's Hospital, 176 Conn.485, 408 A.2d 260
(1979);
Yonner v. Adams, 53 Del. 229,
167 A.2d
717 (1961);
Hitaffer v. Argonne Co., 87 U.S.App.D.C.
57, 183 F.2d 811 (1950);
Gates v. Foley, 247 So. 2d 40
(Fla.1971);
Brown v. Georgia-Tennessee Coaches, Inc., 88
Ga.App. 519,
77 S.E.2d 24
(1953);
Nishi v. Hartwell, 52 Haw. 188,
473 P.2d 116
(1970);
Nichols v. Sonneman, 91 Idaho 199, 418 P.2d 562
(1966);
Dini v. Naiditch, 20 Ill. 2d
406,
170 N.E.2d
881 (1960);
Troue v. Marker, 253 Ind. 284,
252 N.E.2d
800 (1969);
Acuff v. Schmit, 248 Iowa 272,
78 N.W.2d 480
(1956); Kan.Stat.Ann. § 23-205 (Supp. 1979);
Kotsiris v.
Ling, 451
S.W.2d 411 (Ky.1970); Me.Rev.Stat.Ann., Tit.19, § 167-A (Supp.
1979);
Deems v. Western Maryland R. Co., 247 Md. 95, 231
A.2d 514 (1967);
Diaz v. Eli Lilly & Co., 364 Mass.
153,
302
N.E.2d 555 (1973);
Montgomery v. Stephan, 359 Mich.
33,
101 N.W.2d
227 (1960);
Thill v. Modern Erecting Co., 284 Minn.
508,
170 N.W.2d
865 (1969); Miss.Code Ann. § 93-3-1 (1972);
Novak v. Kansas
City Transit, Inc., 365 S.W.2d
539 (Mo.1963);
Duffy v. Lipsman-Fulkerson
Co., 200 F. Supp.
71 (Mont.1961) (applying Montana law);
Luther v.
Maple, 250 F.2d 916 (CA8 1958) (applying Nebraska law)
(
semble);
General Electric Co. v. Bush, 88 Nev.
360,
498 P.2d 366
(1972); N.H.Rev.Stat.Ann. § 507:8-a (1968);
Ekalo v.
Constructive Serv. Corp., 46 N.J. 82,
215
A.2d 1 (1965);
Millington v. Southeastern Elevator
Co., 22 N.Y.2d 498, 239 N.E.2d 897 (1968);
Clouston v.
Remlinger Oldsmobile Cadillac, Inc., 22 Ohio St.2d 65, 258
N.E.2d 230 (1970); Okla.Stat., Tit. 32, § 15 (Supp. 1979);
Ore.Rev.Stat. § 108.010 (1975);
Hopkins v. Blanco, 457 Pa.
90, 320 A.2d 139 (1974);
Mariani v. Nanni, 95 R.I. 153,
185
A.2d 119 (1962);
Hoekstra v. Helgeland, 78 S.D. 82,
98 N.W.2d
669 (1959); Tenn.Code Ann. § 25-109 (Supp. 1979);
Whittlesey v. Miller, 572 S.W.2d 665
(Tex.1978); Vt.Stat.Ann., Tit. 12, § 5431 (Supp. 1979); W.Va.Code §
48-3-19a (1976);
Moran v. Quality Aluminum Casting Co., 34
Wis.2d 542, 150 N.W.2d 137 (1967).
See also Sea-Land Services,
Inc. v. Gaudet, 414 U.S. at
414 U. S. 587;
see generally W. Prosser, Law of Torts 895-896 (4th
ed.1971).
MR. JUSTICE POWELL, concurring in the judgment.
I continue to believe that
Sea-Land Services, Inc. v.
Gaudet, 414 U. S. 573,
414 U. S. 595
(1974) (POWELL, J., dissenting), was decided wrongly, but I
recognize the utility of
stare decisis in cases of this
kind,
id. at
414 U. S. 596.
Since I see no rational basis for drawing a distinction between
fatal and nonfatal injuries, I join in the judgment of the
Court.
MR JUSTICE MARSHALL, with whom MR. JUSTICE STEWART and MR.
JUSTICE REHNQUIST join, dissenting.
After certiorari has been granted, and a case has been briefed
and argued, there is an inevitable pressure to decide it,
especially when the argument for a dismissal is based on the
seemingly technical requirements of finality. In this case,
however, it is plain to me that the decision below is not final,
and that the Court is therefore without jurisdiction to review it
under 28 U.S.C. § 1257.
Respondent Gilberto Alvez brought suit against petitioner in the
New York Supreme Court for injuries incurred during the course of
his employment on petitioner's vessel. He moved to amend the
complaint to add his spouse, Juanita Alvez, as a plaintiff. His
motion was denied. The Appellate Division of the New York Supreme
Court reversed, and the New York Court of Appeals affirmed the
decision of the Appellate Division. This Court granted certiorari
to review the decision of the New York Court of Appeals.
After certiorari had been granted, and while the case was being
briefed in this Court, the litigants proceeded to try the
Page 446 U. S. 287
case in the Nw York Supreme Court. Two weeks before the case was
argued here, Gilberto Alvez received a jury verdict against
petitioner in the sum of $500,000, and Juanita Alvez received
$50,000. In oral argument before this Court, counsel for petitioner
indicated that petitioner is appealing the judgment on grounds of
improper jury instructions. [
Footnote
2/1] If petitioner's appeal is successful, it seems plain that
both verdicts will be reversed.
In these circumstances, I am unable to accept the Court's
conclusion that the decision below is final. Nothing in the record
before us supports the suggestion that "
the federal issue,
finally decided by the highest court in the State, will survive and
require decision regardless of the outcome of future state court
proceedings.'" Ante at 446 U. S. 279,
quoting Cox Broadcasting Corp. v. Cohn, 420 U.
S. 469, 420 U. S. 480
(1975). The federal issue may neither survive nor require decision
if petitioner
Page 446 U. S. 288
is successful in future state court proceedings. Therefore, the
finality requirement of § 1257 precludes us from deciding the case.
Cf. Southern Pacific Co. v. Gileo, 351 U.
S. 493 (1956);
Republic Natural Gas Co. v.
Oklahoma, 334 U. S. 62
(1948).
Even if I were to accept the unfounded premise that the federal
issue will necessarily survive, I would not agree that the order of
the New York Court of Appeals was rendered final by developments
subsequent to the grant of certiorari. The plurality apparently
concedes that, when we granted certiorari, the New York Court of
Appeals' order allowing leave to amend was not appealable.
Ante at
446 U. S. 277.
After that order was entered, the procedural posture of the case
was the same as if the trial court had granted leave to amend in
the first place. Such an order would not, of course, have been
final; in the plurality's own words, it "was only the predicate to
a decision on the merits of the claim for loss of society."
Ibid. If this reasoning is correct, I do not believe that
a subsequent trial -- conducted
after we have granted
certiorari -- can vest jurisdiction in this Court. I have been
unable to find any case, and the plurality points to none, that
supports the apparent adoption of a contrary rule. Indeed, our
cases appear uniformly to assume that finality is determined as of
the time that certiorari is sought.
See Department of Banking
v. Pink, 317 U. S. 264,
317 U. S. 268
(1942). [
Footnote 2/2]
For three reasons, the plurality's conclusion to the contrary
strikes me as fundamentally misguided. First, it sanctions the
practice of granting certiorari to review nonfinal orders, and thus
treats the finality requirement as merely a policy to be considered
in deciding whether we should resolve a dispute.
Page 446 U. S. 289
The finality requirement, of course, is no such thing; it
determines whether we have the power to render a decision.
Jurisdictional prerequisites cannot be disregarded simply because
it seems more economical for the Court to decide the case. Second,
it encourages litigants to seek review of nonfinal judgments in the
hope that subsequent events will render them final. Such a practice
only retards the speedy resolution of disputes and multiplies the
burdens of litigation. Finally, and most disturbing, today's
decision encourages litigants and lower courts to proceed to try a
case in which this Court has granted certiorari and which is
simultaneously being briefed and argued in this Court. That result
cannot easily coexist with one of the basic principles on which our
judicial system is premised, that two courts cannot have
jurisdiction over the same case at the same time.
See 9 J.
Moore, B. Ward, & J. Lucas, Moore's Federal Practice § 203.11
(1975), and cases cited. The necessity for adhering to that rule in
these circumstances is plainly suggested by the waste of judicial
resources that would result if the Court decided to reverse the
Court of Appeals, and thus to render the trial court proceedings
with respect to Juanita Alvez a complete nullity.
It should always be remembered that the
"considerations that determine finality . . . have reference to
very real interests -- not merely those of the immediate parties
but, more particularly, those that pertain to the smooth
functioning of our judicial system."
Republic Natural Gas Co. v. Oklahoma, supra at
334 U. S. 69.
Accordingly, the Court's salutary adoption of a "practical, rather
than a technical, construction" of the finality requirement,
Cohen v. Beneficial Loan Corp., 337 U.
S. 541,
337 U. S. 546
(1949), is not a license for ignoring the requirement entirely, or
for interpreting it without regard for its legitimate underlying
purposes. The finality requirement
"serves several ends: (1) it avoids piecemeal review of state
court decisions; (2) it avoids giving advisory opinions in cases
where there may be no real 'case' or 'controversy' in
Page 446 U. S. 290
the sense of Art. III; (3) it limits review of state court
determinations of federal . . . issues to leave at a minimum
federal intrusion in state affairs."
North Dakota Pharmacy Bd. v. Snyder's Stores,
414 U. S. 156,
414 U. S. 159
(1973).
See also Republic Natural Gas Co. v. Oklahoma, supra;
Radio Station WOW v. Johnson, 326 U.
S. 120,
326 U. S.
123-124 (1945). All of these purposes may be jeopardized
by the decision today. We can have no assurance that there are not
other federal issues in the case that will reach the Court at some
point in the future. The decision the Court announces may be
entirely advisory if the appellate courts in New York rule in favor
of the petitioner. And principles of federalism counsel against
reviewing the decision of the New York courts prematurely, and
without any necessity for doing so.
In my view, the proper disposition in these circumstances would
be to dismiss the writ of certiorari as improvidently granted, and
to permit the state courts to resolve the pending appeal. If the
federal question still survives after the judgment of the highest
state court becomes final, petitioner may again seek a writ of
certiorari to review that judgment. I dissent.
[
Footnote 2/1]
In oral argument, counsel for petitioner stated that the
Appellate Division may "reverse on . . . instructions to the jury.
. . ." Tr. of Oral Arg. 10. I see no basis for the suggestion
that
"petitioner's appeal from the trial verdict against it will not
challenge that element of the verdict which awarded damages for
loss of society to Mrs. Alvez."
Ante at
446 U. S.
277-278. In context, it seems plain that counsel's
comments on the award to Juanita Alvez were designed to indicate
that there was no
separate appeal with respect to the
award on her behalf. But there was no suggestion that petitioner is
not challenging the determination of liability as to Mr. Alvez,
from whose award his spouse's is wholly derivative. The assertion
that Juanita Alvez' award is final is contradicted by the
suggestion of counsel for respondent Alvez that, "if there is a
problem," the parties might "[w]aive any right to appeal as far as
the decision, as far as the judgment for Juanita Alvez is concerned
below." Tr. of Oral Arg. 20. Counsel conceded that, in the absence
of such a waiver, "there is always the possibility that the
defendant in this case might find some grounds for error in the
record."
Id. at 21. The offer of a waiver of appellate
rights and the concession that "some grounds for error" might be
found are difficult to reconcile with the suggestion that further
state court proceedings cannot affect the award to Juanita Alvez.
At the very least, the comments of counsel are highly ambiguous,
and it seems odd for the plurality to indulge in very possibly
incorrect speculations on the point when jurisdictional
prerequisites are at stake.
[
Footnote 2/2]
On occasion, of course, subsequent events can
deprive
the Court of jurisdiction over a case, as for example by rendering
it moot. For reasons discussed in the text, however, I see no
justification, either in precedent or in principle, for the view
that subsequent events can justify a grant of certiorari to review
a decision over which the Court had no jurisdiction in the first
instance.