398 U.S. 375 (1970), 175, Moragne v. States Marine Lines, Inc.

Docket Nº:No. 175.
Citation:398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339
Party Name:Petsonella MORAGNE, etc., Petitioner, v. STATES MARINE LINES, INC., et al.
Case Date:June 15, 1970
Court:United States Supreme Court

Page 375

398 U.S. 375 (1970)

90 S.Ct. 1772, 26 L.Ed.2d 339

Petsonella MORAGNE, etc., Petitioner,



No. 175.

United States Supreme Court.

June 15, 1970

Argued March 4, 1970.


[90 S.Ct. 1774] Charles Jay Hardee, Jr., Tampa, Fla., for petitioner.

Nathan Baker, Hoboken, N.J., for petitioner, as amicus curiae.

Louis F. Claiborne, Washington, D.C., for United States, as amicus curiae, by special leave of Court.

David B. Kaplan, Boston, Mass., for American Trial Lawyers Ass'n, as amicus curiae.

[90 S.Ct. 1775] Dewey R. Villareal, Jr., and David C. G. Kerr, Tampa, Fla., for respondents.


Mr. Justice HARLAN delivered the opinion of the Court.

We brought this case here to consider whether The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, in which this Court held in 1886 that maritime law does not afford a cause of action

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for wrongful death, should any longer be regarded as acceptable law.

The complaint sets forth that Edward Moragne, a longshoreman, was killed while working aboard the vessel Palmetto State in navigable waters within the State of Florida. Petitioner, as his widow and representative of his estate, brought this suit in a state court against respondent States Marine Lines, Inc., the owner of the Vessel, to recover damages for wrongful death and for the pain and suffering experienced by the decedent prior to his death. The claims were predicated upon both negligence and the unseaworthiness of the vessel.

States Marine removed the case to the Federal District Court for the Middle District of Florida on the basis of diversity of citizenship, see 28 U.S.C. ss 1332, 1441, and there filed a third-party complaint against respondent Gulf Florida Terminal Company, the decedent's employer, asserting that Gulf had contracted to perform stevedoring services on the vessel in a workmanlike manner and that any negligence or unseaworthiness causing the accident resulted from Gulf's operations.

Both States Marine and Gulf sought dismissal of the portion of petitioner's complaint that requested damages for wrongful death on the basis of unseaworthiness. They contended that maritime law provided no recovery for wrongful death within a State's territorial waters, and that the statutory right of action for death under Florida law, Fla.Stat. s 768.01 (1965), F.S.A., did not encompass unseaworthiness as a basis of liability. The District Court dismissed the challenged portion of the complaint on this ground, citing this Court's decision in The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959), and cases construing the state statute, but made the certification necessary under 28 U.S.C. s 1292(b) to allow petitioner an interlocutory appeal to the Court of Appeals for the Fifth Circuit.

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The Court of Appeals took advantage of a procedure furnished by state law, Fla.Stat. s 25.031 (1965), F.S.A., to certify to the Florida Supreme Court the question whether the state wrongful-death statute allowed recovery for unseaworthiness as that concept is understood in maritime law. After reviewing the history of the Florida Act, the state court answered this question in the negative. ,211 So.2d 161 (1968). On return of the case to the Court of Appeals, that court affirmed the District Court's order, rejecting petitioner's argument that she was entitled to reversal under federal maritime law without regard to the scope of the state statute. 409 F.2d 32 (1969). The court stated that its disposition was compelled by our decision in The Tungus. We granted certiorari, 396 U.S. 900, 90 S.Ct. 212, 24 L.Ed.2d 176 (1969), and invited the United States to participate as amicus curiae, id., at 952, 90 S.Ct., at 423, 24 L.Ed.2d 418, to reconsider the important question of remedies under federal maritime law for tortious deaths on state territorial waters.

In The Tungus this Court divided on the consequences that should flow from the rule of maritime law that 'in the absence of a statute there is no action for wrongful death,' first announced in The Harrisburg. All members of the Court agreed that where a death on state territorial waters is left remediless by the general maritime law and by federal statutes, a remedy may be provided under any applicable state law giving a right of action for death by wrongful [90 S.Ct. 1776] act. However, four Justices dissented from the Court's further holding that 'when admiralty adopts a State's right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached.' 358 U.S., at 592, 79 S.Ct. at 506. The dissenters would have held that federal maritime law could utilize the state law to 'supply a remedy' for breaches of federally imposed duties, without regard

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to any substantive limitations contained in the state law. Id., at 597, 599, 79 S.Ct., at 509, 510.

The extent of the role to be played by state law under The Tungus has been the subject of substantial debate and uncertainty in this Court, see Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960); Goett v. Union Carbide Corp., 361 U.S. 340, 80 S.Ct. 357, 4 L.Ed.2d 341 (1960), with opinions on both sides of the question acknowledging the shortcomings in the present law. See 361 U.S., at 314--315, 338--339, 80 S.Ct., at 343, 356. On fresh consideration of the entire subject, we have concluded that the primary source of the confusion is not to be found in The Tungus, but in The Harrisburg, and that the latter decision, somewhat dubious even when rendered, is such an unjustifiable anomaly in the present maritime law that it should no longer be followed. We therefore reverse the judgment of the Court of Appeals.1

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[90 S.Ct. 1777] I

The Court's opinion in The Harrisburg acknowledged that the result reached had little justification except in primitive English legal history--a history far removed from the American law of remedies for maritime deaths.

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That case, like this, was a suit on behalf of the family of a maritime worker for his death on the navigable waters of a State. Following several precedents in the lower federal courts, the trial court awarded damages against the ship causing the death, and the circuit court affirmed, ruling that death by maritime tort 'may be complained of as an injury, and the wrong redressed under the general maritime law.' 15 F. 610, 614 (1883). This Court, in reversing, relied primarily on its then-recent decision in Insurance Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580 (1878), in which it had held that in American common law, as in English, 'no civil action lies for an injury which results in * * * death.' Id., at 756.2 In The Harrisburg, as in Brame, the Court did not examine the justifications for this common-law rule; rather, it simply noted that 'we know of no country that has adopted a different rule on this subject for the sea from that which it maintains on the land,' and concluded, despite contrary decisions of the lower federal courts both before and after Brame, that the rule of Brame should apply equally to maritime deaths. 119 U.S., at 213, 7 S.Ct., at 146.3

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Our analysis of the history of the common-law rule indicates that it was based on a particular set of factors that had, when The Harrisburg was decided, long [90 S.Ct. 1778] since been thrown into discard even in England, and that had never existed in this country at all. Further, regardless of the viability of the rule in 1886 as applied to American land-based affairs, it is difficult to discern an adequate reason for its extension to admiralty, a system of law then already differentiated in many respects from the common law.

One would expect, upon an inquiry into the sources of the common-law rule, to find a clear and compelling justification for what seems a striking departure from the result dictated by elementary principles in the law of remedies. Where existing law imposes a primary duty, violations of which are compensable if they cause injury, nothing in ordinary notions of justice suggests that a violation should be nonactionable simply because it was serious enough to cause death. On the contrary, that rule has been criticized ever since its inception, and described in such terms as 'barbarous.' E.g., Osborn v. Gilliett, L.R. 8 Ex. 88, 94 (1873) (Lord Bramwell, dissenting); F. Pollock, Law of Torts 55 (Landon ed. 1951); 3 W. Holdsworth, History of English Law 676--677 (3d ed. 1927). Because the primary duty already exists,

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the decision whether to allow recovery for violations causing death is entirely a remedial matter. It is true that the harms to be assuaged are not identical in the two cases: in the case of mere injury, the person physically harmed is made whole for his harm, while in the case of death, those closest to him--usually spouse and children--seek to recover for their total loss of one on whom they depended. This difference, however, even when coupled with the practical difficulties of defining the class of beneficiaries who may recover for death, does not seem to account for the law's refusal to recognize a wrongful killing as an actionable tort. One expects, therefore, to find a persuasive, independent justification for this apparent legal anomaly.

Legal historians have concluded that the sole substantial basis for the rule at common law is a feature of the early English law that did not survive into this century--the felony-merger doctrine. See Pollock, supra, at 52--57; Holdsworth, The Origin of the Rule in Baker v. Bolton, 32 L.Q.Rev. 431 (1916). According to this doctrine, the common law did not allow civil recovery for an act that constituted both a tort and a felony. The tort was treated as less important than the offense against the Crown, and was merged into, or pre-empted by, the felony. Smith v. Sykes, 1 Freem....

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