Chromy v. Lawrance, B050102

• Decision Date: 11 September 1991
• Docket Number: No. B050102,B050102
• Citation: 285 Cal.Rptr. 400,233 Cal.App.3d 1521
• Court: California Court of Appeals Court of Appeals
• Parties: , 1992 A.M.C. 1252 Anthony J. CHROMY, as Administrator of the Estate of Ronald Allan Chromy, Deceased, Plaintiff and Appellant, v. Charles LAWRANCE, Mary Jane Lawrance, Defendants and Respondents. Civ.

Page 400

285 Cal.Rptr. 400

233 Cal.App.3d 1521, 1992 A.M.C. 1252

Anthony J. CHROMY, as Administrator of the Estate of Ronald Allan Chromy, Deceased, Plaintiff and Appellant, v. Charles LAWRANCE, Mary Jane Lawrance, Defendants and Respondents.

Civ. No. B050102.

Court of Appeal, Second District, Division 6, California.

Sept. 11, 1991.

Duke L. Peters, Sherman Oaks, for plaintiff and appellant.

Richard G. Flanagan and L.E. Schweiner, Van Nuys, for defendants and respondents.

YEGAN, Associate Justice.

Anthony Chromy, administrator of the Estate of Ronald Allan Chromy, appeals from a defense judgment after a jury rejected his maritime wrongful death and survivor claims based on the Death on the High Seas Act (46 U.S.C.App. § 761, et seq., DOHSA). We vacate the judgment and order the action dismissed because the trial court had no subject matter jurisdiction to try either claim. We reject appellant's argument that Moragne v. States Marine Lines (1970) 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (Moragne ), and Offshore Logistics, Inc. v. Tallentire (1986) 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (Tallentire ), here permits the trial court to exercise concurrent subject matter jurisdiction.

Decedent, Ronald Chromy, fell from respondents' Charles and Mary Jane Lawrance, 27-foot sailboat, the "Scherzo," during an overnight yacht race from Santa Barbara to Redondo Beach. The accident occurred twelve nautical miles southeast of Anacapa Island, more than three nautical miles from any state shoreline, i.e., on the high seas. Respondents radioed a "May Day" signal but were unable to give the United States Coast Guard accurate ship coordinates because of a defect in their Loran navigation system. The Coast Guard search and rescue team never found decedent.

Decedent's heirs and estate filed a DOHSA wrongful death claim and a survivor claim under general maritime law. Liability was predicated on theories of unseaworthiness and negligence. Appellant claimed that respondents' failure to deploy a rescue buoy, competently crew the ship, or give the Coast Guard accurate coordinates breached the maritime duty to rescue decedent.

Respondents filed a general demurrer challenging the court's subject matter jurisdiction. The demurrer was overruled. Respondents did not seek relief by way of a writ. Following a 9-day trial, the jury returned a defense verdict on negligence (9-3) and unseaworthiness (12-0).

In his opening brief, appellant attacked the judgment on several substantial grounds. Respondent, content with the jury verdict, did not raise the issue of subject matter jurisdiction. We raised the issue sua sponte and asked the parties for briefing. (Bachis v. State Farm Mutual Auto. Ins. Co. (1968) 265 Cal.App.2d 722, 724, 71 Cal.Rptr. 486; Gov.Code, § 68081.)

"Lack of jurisdiction in its most fundmental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citation.]" (Abelleira v. District Court of Appeals (1941) 17 Cal.2d 280, 288, 109 P.2d 942; see also Witkin, Cal. Procedure (3d ed. 1985) vol. 2, Jurisdiction, § 9, p. 374.) "[W]here a court is wholly lacking in jurisdiction of the subject matter of an action, jurisdiction may not be conferred by consent, waiver, argument, agreement, or estoppel. [Citations.]" (Schlyen v. Schlyen (1954) 43 Cal.2d 361, 375, 273 P.2d 897.)

The Death on the High Seas Act is codified as 46 United States Code Appendix section 761, et seq. Section 761 states: "Whenever the death of a person shall be caused by 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."

Section 7 of the Act (46 U.S.C.App. § 767) contains a "jurisdictional savings" clause which states in part that, "[t]he provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter...."

DOHSA provides a uniform federal remedy for wrongful deaths occurring more than a marine league (three miles) from shore. (Moragne, supra, 398 U.S. at p. 398, 90 S.Ct. at p. 1786, 26 L.Ed.2d at p. 355; see also 1 Norris, The Law of Maritime Personal Injuries (4th ed. 1990) § 6.5, p. 317; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1200, p. 636.) "DOSHA does not include a survivial provision authorizing recovery for pain and suffering before death." (Tallentire, supra, 477 U.S. at p. 215, fn. 1, 106 S.Ct. at p. 2490, fn. 1, 91 L.Ed.2d at p. 184, fn. 1).

DOSHA jurisdiction attaches to "the site of an accident on the high seas, not to where death actually occurs or where the wrongful act causing the accident may have originated. [Citations.]" (Bergen v. F/V St. Patrick (9th Cir.1987) 816 F.2d 1345, 1348.) "[F]or purposes of federal law, California's territorial claims in the coastal channels and straits are limited to three-mile belts off the mainland shore and surrounding the coastal islands. [Citations.]" (People v. Weeren (1980) 26 Cal.3d 654, 665, 163 Cal.Rptr. 255, 607 P.2d 1279; Hooker v. Raytheon Co. (S.D.Cal.1962) 212 F.Supp. 687, 693-694.)

DOHSA provides that wrongful death claims arising from maritime accidents on the high seas "may" be maintained in federal court. The use of the word "may" has generated confusion and debate in the decisional law since DOHSA's enactment in 1920. The issue is whether DOHSA preempts, i.e., supersedes, state remedies and subject matter jurisdiction. The United States Supreme Court resolved part of the debate by holding that DOHSA establishes a uniform federal remedy for deaths occurring on the high seas. In dicta, the Supreme Court noted that DOHSA was intended to preserve a state's existing subject matter jurisdiction over maritime deaths. (Moragne, supra, 398 U.S. at pp. 400-402, 90 S.Ct. at pp. 1787-1788, 26 L.Ed.2d at pp. 355-357; Tallentire, supra, 477 U.S. at p. 230, 106 S.Ct. at p. 2498, 91 L.Ed.2d at pp. 194-195.)

In Moragne a longshoreman died in Florida territorial waters. The court discussed the problem of state concurrent jurisdiction by noting that "[t]he general understanding was that the statutes of the coastal States, which provided remedies for deaths within territorial waters, did not apply beyond state boundaries. This Court had suggested, in an early case where the plaintiff and defendant were of the same State, that the law of that State could be applied to a death on the high seas, if the State intended its law to have such scope. [Citation.] However, probably because most state death statutes were not meant to have application to the high seas, this possibility did little to fill the vacuum." (Id., 398 U.S. at p. 393, fn. 10, 90 S.Ct. at p. 1784, fn. 10, 26 L.Ed.2d at pp. 352-353, fn. 10 emphasis added.)

In Tallentire two drilling platform workers were killed in a helicopter crash 35 miles off the Louisiana coast on the high seas. Invoking a "Reverse-Erie" doctrine, the court required that state "substantive remedies afforded by the States conform to governing federal maritime standards. [Citations.]" (Id., 477 U.S. at p. 223, 106 S.Ct. at p. 2494, 91 L.Ed.2d at p. 190.) Tallentire held that DOHSA remedies preempted a state's wrongful death remedies where DOHSA applied. (Id., 477 U.S. at p. 232, 106 S.Ct. at p. 2499, 91 L.Ed.2d at p. 190.) Thus, Louisiana state law which allowed recovery for nonpecuinary loss was preempted by DOHSA. Decedent's heirs could not recover damages for nonpecuniary loss. (Id., 477 U.S. at p. 220, 106 S.Ct. at p. 2493, 91 L.Ed.2d at p. 188; see also 14 Wright & Miller,Federal Practice and Procedure (1991, supp.) § 3672, pp. 154-155.) Tallentire concluded that the jurisdictional savings clause found in section 7 of DOHSA "bears a marked similarity to the 'saving to suitors' clause that allows litigants to bring in personam maritime actions in state courts." (Id., 477 U.S. at p. 222, 106 S.Ct. at p. 2494, 91 L.Ed.2d at p. 189.)

The "savings to suitors" clause is found in The Judiciary Act of 1789 and states the district courts of the United States "... shall also have exclusive original cognizance of all civil cases of admiralty and maritime jurisdiction ... saving to suitors, in all cases, the right of a common law remedy where the common law is competent to give it...." (28 U.S.C. § 1333.)

"The common law remedy saved to suitors is the right to proceed in personam against the defendant wherever the common law is competent to give a remedy. Stated another way, one who holds an in personam claim enforceable by a complaint in personam in admiralty, can bring suit at his election in a common law court provided that the jurisdictional requirements of the latter court are met and the remedy sought is one which the common law court had concurrent jurisdiction with admiralty at the time of the adoption of the Constitution." (1 Norris, The Law of Maritime Personal Injuries (4th ed. 1990) § 5.16, p. 290, emphasis added.)

DOHSA actions may only be tried in state courts if the state's wrongful death statute applies to deaths on the high seas. "Tallentire has now clearly established that section 7 of DOHSA expressly provides that claims governed by the substantive provisions of DOHSA may be brought in state court, with state wrongful death statutes providing the jurisdictional basis for exercise of saving clause jurisdiction by the state courts...." (B. Clark, "Removability of High Seas Death Claims Filed In State Court After Tallentire," 12 Tulane Maritime Law Journal (1988) 317, 333-334.) "[S]tate wrongful death statutes...