COMPLAINT OF EXXON CORP., ETC., 80 Civ. 1814 (RLC).

• Decision Date: 15 September 1982
• Docket Number: No. 80 Civ. 1814 (RLC).,80 Civ. 1814 (RLC).
• Citation: 548 F. Supp. 977
• Parties: In the Matter of the COMPLAINT OF EXXON CORPORATION AS BAREBOAT CHARTERER AND OPERATOR OF the TUG, EXXON OCEAN STATE, for exoneration from or limitation of liability.
• Court: U.S. District Court — Southern District of New York

548 F. Supp. 977

In the Matter of the COMPLAINT OF EXXON CORPORATION AS BAREBOAT CHARTERER AND OPERATOR OF the TUG, EXXON OCEAN STATE, for exoneration from or limitation of liability.

No. 80 Civ. 1814 (RLC).

United States District Court, S. D. New York.

September 15, 1982.

Joseph F. Ryan and Lawrence J. Bowles, Kirlin, Campbell & Keating, New York City, for plaintiff.

Louis Venezia, Venezia & Haber, New York City, for William Austin estate.

Peter Hirsch, pro se.

Stanley Zawacki, Vincent, Berg, Russo, Marcigliano & Zawacki, New York City, for Hartford Fire Ins. Co.

Steve Latham, Twomey, Latham & Schmitt, Riverhead, N. Y., for Roesch claimants and Sobering claimants.

ENDORSEMENT

ROBERT L. CARTER, District Judge.

Claimants in this limitation of liability action move to reargue their motion to transfer the litigation to the courts of New York State. In the order denying the motion, reargument was invited if the claimants were able to stipulate to a reduction in their claims that would adequately protect petitioner and thus eliminate the need for a limitation proceeding. Claimants have amended their claims to an aggregate amount less than the fund established by Exxon. In addition they have proposed an extensive set of stipulations, modeled after the stipulations in Lake Tankers Corp. v. Henn, 354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246 (1957). Exxon contends that the stipulations are inadequate, apparently because surplusage or other ambiguities leave open the possibility of an award in state court that would exceed the size of the limitation fund. In addition, Exxon renews its argument that the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 761-768 (1976), vests this court with exclusive jurisdiction over the claim of the estate of Austin and that this proscription against the transfer of that part of the litigation prevents transfer of any other claims.

In its decision to deny transfer, the court did not rule on the exclusivity of federal court jurisdiction for actions based on deaths that occurred beyond the nation's territorial waters. This question has perplexed the district courts for decades and an answer is less clear today than in 1954, when the landmark decision in Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D. Cal.1954) was rendered.

At the outset, it should be noted that the estate of Austin did not ground this lawsuit on DOHSA, but elected to rely exclusively on remedies provided by the state of New York. Thus, there is no question of whether state courts may adjudicate claims arising under the act. The question on review is whether the estate must press its claim for wrongful death that occurred on the high seas in federal court, or whether it may rely on state remedies that might be available in state court.

Wilson provided a searching examination of the legislative history of DOHSA to support a decision that the act pre-empted any state remedies that might have been available for death on the high seas. See Wilson, supra, 121 F.Supp. at 87-91. The analysis in Wilson apparently was considered dispositive of the exclusivity issue for many years, but the decision recently has been questioned. See Rairigh v. Erlbeck, 488 F.Supp. 865, 866-67 (D.M.D.1980); Lowe v. Trans World Airlines, Inc., 396 F. Supp. 9, 11-12 (S.D.N.Y.1975) (Frankel, J.). Although the discussion in Wilson is powerful, the view expressed in Rairigh and Lowe appears more consistent with modern views of admiralty jurisdiction.

Central to the decision in Lowe, and equally essential to the decision here, are the observations that "`the party who brings a suit is master to decide what law he will rely upon ...' citations omitted and that ... actions for wrongful death were known under the laws of many places before DOHSA." Lowe v. Trans World Airlines, Inc., supra, 396 F.Supp. at 11. The scholarship of Judge Goodman in Wilson does no more than confirm that considerable ambiguity existed in the minds of the legislators who enacted DOHSA and has continued to exist among the courts whether the act was intended to eliminate these traditional, albeit intermittent, remedies. The...