Bell v. Tug Shrike

• Decision Date: 13 May 1964
• Docket Number: No. 9178.,9178.
• Citation: 332 F.2d 330
• Parties: Mrs. Mary Virginia BELL, individually and as administratrix of the Estate of John Ware Bell, deceased, Appellant, v. TUG SHRIKE, in rem, Southern Transportation Company, Incorporated, a corporation, and Southern Tug Corporation, in personam, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

332 F.2d 330 (1964)

Mrs. Mary Virginia BELL, individually and as administratrix of the Estate of John Ware Bell, deceased, Appellant, v. TUG SHRIKE, in rem, Southern Transportation Company, Incorporated, a corporation, and Southern Tug Corporation, in personam, Appellees.

No. 9178.

United States Court of Appeals Fourth Circuit.

Argued January 15, 1964.

Decided May 13, 1964.

Sidney H. Kelsey, Norfolk, Va., for appellant.

Roy L. Sykes, Norfolk, Va. (R. Arthur Jett, Jr., and Jett, Sykes & Berkley, Norfolk, Va., on brief) for appellees.

Before SOBELOFF, Chief Judge, J. SPENCER BELL, Circuit Judge, and BARKSDALE, District Judge.

SOBELOFF, Chief Judge.

The Jones Act suit brought by Mrs. Mary Virginia Bell for the death of John Ware Bell, a seaman, was settled before trial for an agreed sum; yet this further litigation has been necessary to resolve the validity of her claim as John Ware Bell's "surviving widow."¹ There was and is no problem of competing claimants. The sole issue is whether the District Court properly concluded that Virginia state law applies, and that since, according to that law, she was not legally married to the decedent at the time of his death, she was therefore not his lawful widow entitled to the settlement. Stated differently, this appeal focuses upon the troublesome problem as to whether a federal court sitting in admiralty should be governed by the normally applicable state domestic relations law, or by some other rule which the court may fashion.

It is undisputed that John Ware Bell was married on three different occasions in the course of his lifetime. First, he contracted a marriage in 1940, which was dissolved by divorce in June, 1951. He entered into his second marriage one week later, but he and his second wife were separated in 1954 and this marriage also was ended by divorce, on September 18, 1957. At issue in this case is a ceremonial marriage of the seaman to the appellant in Mathews County, Virginia, on December 13, 1956, when he was still legally married to the second wife. Between the date of the last-mentioned marriage and September 12, 1959, when the Tug SHRIKE capsized in the Chesapeake Bay, causing John Ware Bell's death, he and the appellant lived together in Norfolk, Virginia, and held themselves out to the community as husband and wife. Because of the nature of their relationship, the appellant claims that she is entitled to recognition as the decedent's widow under the Jones Act.

After the appellant brought her action in the District Court as administratrix, a settlement was arranged between all parties concerned whereby the shipowner agreed to pay a total of $60,000, of which sum $15,500 was allotted to the children of the decedent by his first wife, and the remaining $44,500 to the appellant, provided she could establish her right to recover as Bell's widow under the terms of the Jones Act. If she failed in this, the $44,500 was to be retained by the shipowner, there being no other claimant as Bell's widow.

The appellant maintains that, although her marriage to Bell was bigamous, a valid common-law marriage was created once the impediment of the prior existing marriage was removed by divorce in 1957. The District Court disagreed, reasoning that because "there is no admiralty law of domestic relations," a federal court sitting in admiralty must look to state law to define statutory beneficiaries under the Jones Act. Bell v. Tug Shrike, 215 F.Supp. 377, 381 (E.D.Va.1963). Virginia law does not recognize common-law marriages.² On that basis the appellant was denied recognition as the surviving widow.³

Appellant contends, however, that state law should not have been applied because a federal court sitting in admiralty is not bound by the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Appellant maintains that admiralty has a choice of law and that, if the application of state law would undermine a federal right, the court should look to that law which will best effectuate admiralty principles and achieve the national uniformity that is desirable in this area. She urges that these fundamental principles would be better satisfied by accepting her as a common-law wife instead of depriving her of that status by resort to the domestic relations laws of Virginia.

Whether or not the Erie doctrine is limited to diversity cases or also governs where federal judisdiction is grounded in admiralty is a matter very much in dispute.⁴ Mr. Justice Black has commented that Erie "did not answer all questions * * *. For example * * * the extension of the doctrine to admiralty jurisdiction, and the total impact of the principle in cases other than those of diversity of citizenship have not yet been finally determined." 13 Mo.B.J. 173, 175 (1942). To our understanding this question is still unsettled. The Supreme Court appears to have adopted a flexible standard, applying in admiralty cases either maritime principles or state law, depending upon the nature of the case and the problems involved. The determining factor as to which law governs seems to be the availability of an admiralty rule which is generally accepted and clearly defined. Where such a rule exists it will prevail over conflicting local law, regardless of Erie; but where no admiralty rule has been clearly established, an admiralty court will, in the absence of legislation, hesitate to lay down a rule for uniform application in the face of conflicting possible choices.⁵

This approach is best exemplified by comparing Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953), and Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955). In the former the plaintiff asserted a claim for a maritime tort on the civil side of the District Court. There was a jury finding that he had been contributorily negligent. It was urged on appeal that this finding should bar recovery either on the theory that admiralty law, having no rule of its own on the subject, must look to the common law, or on the theory that the state rule on the subject controlled under the Erie doctrine. Mr. Justice Black, writing for himself and four colleagues, stated that "the harsh rule of the common law that recovery is barred by contributory negligence is completely incompatible with modern admiralty policy and practice." He therefore agreed that the established "admiralty doctrine" of comparative negligence should be invoked. As to Erie, the basic principle, according to the Justice, was that plaintiff's rights should not be varied by his choice of forum. 346 U.S. at 410-411, 74 S.Ct. 202.

On the other hand, in Wilburn Boat Justice Black, speaking this time for six members of the Court, held that the problem of a breach of warranty in a maritime insurance policy was not the subject of an established federal maritime rule. Rather than delve into the "number of * * * possible rules from which this Court could fashion one for admiralty," 348 U.S. at 320, 75 S.Ct. at 374 the Court remanded the case for application of the "appropriate state law."

Here too the appellant has been unable to direct us to any admiralty principle or maritime rule which could aid the court in determining the legality of her marital relationship. She merely points to the law of those states, other than Virginia, which recognize common-law marriages as a general family-law principle.⁶ It would at best be illogical to disregard the state law which under accepted principles of conflicts of law would apply, merely because the law of some other place, unrelated to the parties and to the subject matter, happens to afford one in the appellant's position more favorable treatment.⁷ If the court, in the absence of an admiralty rule or policy, is to look to some source other than the law of Virginia, we think that it would have to be the American common law;⁸ but to say that would really not contribute to a practical solution here, since the "common law" has been variously interpreted by judicial decision.

If we inquire into the law of marriage and divorce under "the law of England as it existed at the time of the separation from the mother country," Seaboard Air Line Ry. v. Kenney, 240 U.S. 489, 494, 36 S.Ct. 458, 460, 60 L.Ed. 762 (1916), in an effort to discover a common law which might be applied, the result is no more favorable to appellant than the law of Virginia. According to Kent:

"No person can marry while the former husband or wife is living * * * and the principle of the common law, not only of England, but generally of the Christian world, is, that no length of time or absence, and nothing but death, or the decree of a court confessedly competent to the case, can dissolve the marriage tie." 2 Kent, Commentaries on American Law 79-80 (14th ed. 1896).

And Blackstone, discussing the effect of a prior subsisting marriage, says:

"The first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void * * *." 1 Blackstone, Commentaries 402 (Lewis ed. 1922).⁹

A marriage void because of an existing marriage may in certain circumstances have been converted into a common-law marriage after removal of the impediment,¹⁰ but this could not occur if both parties knew of the existence of the impediment and failed to enter into a new marriage contract after the disability had been removed.¹¹ Thus, the common law, if we have been able to discover it with any precision, does not advance the appellant's cause. Further, if admiralty does indeed favor uniformity, this end is no better achieved in cases like ours by looking to a federal judge's interpretation of the common law than by relying upon the domestic relations laws of the states in which the parties are domiciled.

Because we can perceive no controlling maritime or clear-cut common-law...