Bailey v. Carnival Cruise Lines, Inc.

• Decision Date: 27 March 1984
• Docket Number: No. 83-422,83-422
• Citation: 448 So.2d 1090
• Parties: Bonnie B. BAILEY, Personal Representative of the Estate of Clarence W. Bailey, deceased, Appellant, v. CARNIVAL CRUISE LINES, INC., and S.Y. Thompson, et al., Appellees.
• Court: Florida District Court of Appeals

Page 1090

448 So.2d 1090

1985 A.M.C. 836

Bonnie B. BAILEY, Personal Representative of the Estate of Clarence W. Bailey, deceased, Appellant, v. CARNIVAL CRUISE LINES, INC., and S.Y. Thompson, et al., Appellees.

No. 83-422.

District Court of Appeal of Florida Third District.

March 27, 1984.

Rehearing Denied May 4, 1984.

Colson, Hicks & Eidson and Dean Colson, Miami, for appellant.

Smathers & Thompson and Rodney Earl Walton, Miami, for appellees.

Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.

BASKIN, Judge.

This appeal from the trial court's order dismissing an action for damages predicated upon negligence on the high seas resulting in death, presents two questions: first, whether the Death on the High Seas Act (DOHSA), 46 U.S.C., section 761 et seq. (1981), provides the exclusive remedy for negligence on the high seas resulting in death and second, whether DOHSA suits must be instituted only in federal admiralty forums. Rejecting appellant's contention that her action may be maintained under state statutes or decided by state courts, we affirm. We hold that in enacting DOHSA Congress provided an exclusive remedy which must be pursued in a federal admiralty forum. Consequently, DOHSA pre-empts the Florida Wrongful Death Act, section 768, Florida Statutes (1981), for negligence on the high seas resulting in death; Florida courts do not have concurrent jurisdiction over DOHSA actions.

Charles Bailey suffered a heart attack during a cruise on a ship operated by Carnival Cruise Lines, Inc. The personal representative of his estate instituted an action in which she contended that Bailey's death was caused by the company's failure to maintain the ship's emergency medical equipment in working condition and by the company's failure to render proper medical care. Finding that it lacked subject matter jurisdiction, the trial court dismissed the cause. This appeal ensued.

We begin our review by focusing our attention on whether DOHSA provides litigants with the only remedy for negligence resulting in death on the high seas. Appellant argues that in enacting DOHSA, Congress intended that states be permitted to apply state laws to wrongful deaths caused by negligence occurring in international waters.

The law is replete with decisions discussing whether section seven of DOHSA pre-empts state laws which provide remedies for wrongful deaths. We believe that the more persuasive cases are those holding that DOHSA constitutes the exclusive remedy for deaths caused by negligence on the high seas. Those cases further the tradition of achieving uniformity in admiralty law. Decisions addressing the issue include: Bodden v. American Offshore, Inc., 681 F.2d 319, 327 (5th Cir.1982); Heyl v. Carnival Cruise Lines, 1981 AMC 2393 (5th Cir.) (per curiam) (marked "Do not publish") ¹, cert. denied, 449 U.S. 1066, 101 S.Ct. 795, 66 L.Ed.2d 611 (1980); Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D.Cal.1954); see also Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77 (9th Cir.1983); Vaz Borralho v. Keydril Co., 696 F.2d 379, 384 n. 6 (5th Cir.1983); Hlodan v. Ohio Barge Line, Inc., 611 F.2d 71 (5th Cir.1980); Renner v. Rockwell International Corp., 587 F.2d 1030 (9th Cir.1978); Jennings v. Goodyear Aircraft Corp., 227 F.Supp. 246 (D.Del.1964); Noel v. United Aircraft Corp., 204 F.Supp. 929 n. 5 (D.Del.1962); Echavarria v. Atlantic & Caribbean Steam Navigation Co., 10 F.Supp. 677 (E.D.N.Y.1935); Touhey v. Ross Fous Medical Group, 111 Cal.App.3d 958, 168 Cal.Rptr. 910 (1980); Cairl v. Boeing Co., 39 Cal.App.3d 137, 113 Cal.Rptr. 925 (1974); Gordon v. Reynolds, 187 Cal.App.2d 472, 10 Cal.Rptr. 73 (1960). Contra In re Red Star Towing & Transportation, 552 F.Supp. 367 (S.D.N.Y.1983); In re Complaint of Exxon, 548 F.Supp. 977 (S.D.N.Y.1982); Alexander v. United Technologies Corp., 548 F.Supp. 139 (D.Conn.1982); Lowe v. Trans World Airlines, 396 F.Supp. 9 (S.D.N.Y.1975); Safir v. Compagnie Generale Transatlantique, 241 F.Supp. 501 (E.D.N.Y.1965).

We agree with the analysis of the issue expressed in Wilson and Higa v. Transocean Airlines, 230 F.2d 780 (9th Cir.1955), recognizing Congress's intention to have DOHSA provide the sole remedy for redress of negligence on the high seas resulting in death. We adopt the rationale of Wilson and Higa as the foundation for our decision on this issue.

Dugas v. National Aircraft Corp., 438 F.2d 1386 (3rd Cir.1971) cited by appellant is inapposite because the action under review involved both a state survival statute and a DOHSA claim; nevertheless, Dugas agrees that DOHSA supersedes state wrongful death statutes for deaths occurring on the high seas. 438 F.2d at 1388. See also Solomon v. Warren, 540 F.2d 777 (5th Cir.), cert. dismissed sub nom Warren v. Serody, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977). But see Nygaard (admiralty pre-empts state remedies even in territorial waters); Nelson v. United States, 639 F.2d 469 (9th Cir.1980) (Moragne ² action applies both to seaworthiness and to negligence).

We turn to the next question: whether a DOHSA action must be brought solely in an admiralty forum. Appellant maintains that section one of the Act supports her contention that state courts may entertain DOHSA actions.

Section 1 of DOHSA provides:

Whenever the death of a person shall be caused by a wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued. (emphasis added)

46 U.S.C. § 761 (1981).

Appellant asserts that the words "the personal representative ... may maintain a suit ...." permit state courts to apply the federal law of DOHSA to suits filed in state courts even though the alleged negligence occurred beyond state territorial waters. We disagree. DOHSA specifies that lawsuits must be brought in admiralty. Bailey's contention that in DOHSA Congress failed to rebut the presumption of concurrent state court jurisdiction lacks merit. Congress clearly announced the appropriate forum for maintaining DOHSA lawsuits, thereby limiting the remedy it had created. Our view is supported by Wilson. In Wilson the court examined the language of DOHSA and observed:

[I]n a single sentence the statute both creates a right of action, which did not previously exist, and stipulates that the right is to be enforced in the federal courts of admiralty. The provision that enforcement is to be in admiralty is a limitation on the right itself.

121 F.Supp. at 94.

The court rejected the assertion that Congress provided admiralty as a forum to complement state court review. The court reasoned that DOHSA provided a right of action where none had previously existed.

The court went on to state:

The use of a mandatory word such as "shall" in this context would have been entirely inappropriate. The remainder of the sentence designating the forum is a qualification of the permission to maintain a suit.

Moreover, the construction offered by plaintiff would render the words "in admiralty" mere surplusage. Yet, as plaintiff, herself, notes, "no rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect shall, if possible, be accorded every word in a statute." No express permission would have been necessary merely to open the courts of admiralty for the enforcement of the maritime right created by the statute. A suit to enforce a maritime right is a case within the admiralty jurisdiction. The District Courts of the United States have original jurisdiction of "any civil case of admiralty or maritime jurisdiction." 28 U.S.C. § 1333.

Other language of the Death on the High Seas Act is also persuasive that suits under the Act are exclusively within the jurisdiction of the admiralty courts. Section 5 of the Act provides that:

"If a person die as the result of such wrongful act, neglect, or default as is mentioned in section 1 during the pendency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, neglect, or default, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in section 2 of this act."

If the Congress contemplated that suits enforcing the right of action given by the Death on the High Seas Act should be maintained in courts of law, there would have been no reason to limit the right of substitution granted in Section 5 of the Act to suits for personal injuries which were pending in the admiralty courts.

121 F.Supp. at 94-95.

Congressional committee reports and the floor debate in the House persuaded the court that Congress intended to vest exclusive jurisdiction over DOHSA actions in the admiralty courts. See Senate Report 216, House Report 674, 66th Congress; Vol. 69 Congressional Record, Part 5, pp. 4482-4486, 66th Congress.

Wilson was followed by Higa. In Higa the court agreed that Congress had created a substantive right to be asserted solely in federal courts, in admiralty:

Here, however, the Death on the High Seas Act creates the right to recover for wrongful death and designates not only the federal court for its enforcement, but a particular jurisdiction of that court. The right is a matter of federal law where state courts would have no special competence. There is more here than "the grant of jurisdiction, of itself * * * " which indicates that jurisdiction was intended to be exclusive.

230 F.2d at 783. See also Kropp v. Douglas Aircraft Co., 329 F.Supp. 447 (...