361 U.S. 314 (1960), 5, Hess v. United States

Docket Nº:No. 5
Citation:361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305
Party Name:Hess v. United States
Case Date:January 18, 1960
Court:United States Supreme Court

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361 U.S. 314 (1960)

80 S.Ct. 341, 4 L.Ed.2d 305



United States

No. 5

United States Supreme Court

Jan. 18, 1960

Argued October 15, 1959




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.

Held: 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. Pp. 314-321.

259 F.2d 285, judgment vacated and cause remanded.

STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

This action was brought against the United States under the Federal Tort Claims Act1 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

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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,2 as well as under another statute of that State, the Employers' Liability Law,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.4 In the

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limited area [80 S.Ct. 344] 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. . . ."5 There is no monetary limitation of liability, and the decedent's contributory negligence goes only to mitigate damages.6

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After trial without a jury, the District Court entered judgment for the United States. [80 S.Ct. 342] 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 [80 S.Ct. 345] 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

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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, 3 Wall. 20; Kermarec v. Compagnie Generale, 358 U.S. 625. 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.S. 255.7

Although admiralty law itself confers no right of action for wrongful death, The Harrisburg, 119 U.S. 199, yet,

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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.S. 233, 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.S. 613. 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.S. 648, 652.

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, 615. See also Curtis v. A. Garcia y [80 S.Ct. 346] 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., 10 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.).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.S. 239, 245.

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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, is controlling here:

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 593.

Even Southern Pacific Co. v. Jensen, which fathered the "uniformity" concept, recognized that uniformity is not offended by "the right given to recover in death cases." 244 U.S. 205, at 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. 155.

358 U.S. at 594.

We leave open the question whether a state wrongful death act might contain provisions so...

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