Curry v. Fred Olsen Line

• Decision Date: 18 November 1966
• Docket Number: No. 20182.,20182.
• Citation: 367 F.2d 921
• Parties: Madeline CURRY, etc., Appellant, v. FRED OLSEN LINE, etc., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

367 F.2d 921 (1966)

Madeline CURRY, etc., Appellant, v. FRED OLSEN LINE, etc., Appellee.

No. 20182.

United States Court of Appeals Ninth Circuit.

October 10, 1966.

Rehearing Denied November 18, 1966.

Dorsey Redland, Van H. Pinney, Redland & Pinney, San Francisco, Cal., for appellant.

Graydon S. Staring, H. Donald Harris, Jr., Lillick, Geary, Wheat, Adams & Charles, San Francisco, Cal., for appellee.

Before CHAMBERS, MERRILL and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

Appellant Madeline Curry, in her capacity as administratrix of the estate of her deceased husband Jack Curry, brought this wrongful death action against the appellees as owners of the S.S. BATAAN. Federal jurisdiction is predicated upon diversity of citizenship. Her complaint contained three causes of action, the first based upon appellees' negligence, the second based upon the unseaworthiness of the vessel, and the third based upon appellees' wilful and wanton misconduct. The court granted a motion for partial summary judgment as to the unseaworthiness count. This is the only ruling here assigned as error.¹ We reverse.

No affidavits were filed in support of or in opposition to the motion for partial summary judgment. The sole question presented was one of law: May an action predicated upon the California wrongful death statute be maintained where the sole cause of death is claimed to be unseaworthiness of the vessel?²

The California Statute, Code of Civil Procedure Section 377, provides, in pertinent part:

"When the death of a person not being a minor * * * is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death * * *. In every action under this section, such damages may be given as under all the circumstances of the case, may be just, but shall not include damages recoverable under Section 573 of the Probate Code. The respective rights of the heirs in any award shall be determined by the court."

The relevant operative language of this statute has remained unchanged since its enactment in 1872. (See note to West's Ann.Code of Civil Procedure § 377.)

It is settled in California that this statute is not one providing for survival of the decedent's cause of action, but creates a new and independent cause of action in favor of the heirs of the decedent in which they recover the damages that they have suffered by reason of their ancestor's death.³ The present California survival statute is Probate Code § 573, as amended in 1961. It limits damages

"to such loss or damage as the decedent sustained or incurred prior to his death, * * * and shall not include damages for pain, suffering or disfigurement."

Similar limitations appear in the predecessor statute, Civil Code § 956, which was repealed in 1961 (Cal.Stats.1961, C. 657, p. 1867, § 1).⁴

Decisions of the United States Supreme Court have settled certain pertinent rules. First, there was no right to recover damages for wrongful death under the maritime law.⁵ Second, a state may, by its wrongful death or survival statute give or preserve a cause of action for death resulting from a maritime tort, assuming that the state otherwise has jurisdiction of the tort,⁶ and such a cause of action may be enforced in admiralty as well as in the state court. Whether the state statute does give such a cause of action is a question of state law. Third, "* * * 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 * * *. The policy expressed by a State Legislature in enacting a wrongful death statute is not merely that death shall give rise to a right of recovery, nor even that tortious conduct resulting in death shall be actionable, but that damages shall be recoverable when conduct of a particular kind results in death. It is incumbent upon a court enforcing that policy to enforce it all; it may not pick or choose."⁷ This rule is equally applicable whether the action is in admiralty in a federal court, or at law in a state court, or at law, under diversity jurisdiction, in a federal court. In the last type of case, a federal court must apply the appropriate state law, under the rule in Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

This court has previously applied the third rule.⁸ Appellant, however, points to disagreements among the Justices of the Supreme Court, appearing in the opinions in The Tungus v. Skovgaard, supra, n. 6; United N. Y. & N. J. Sandy Hook Pilots Assn. v. Halecki, 1959, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541; Goett v. Union Carbide Co., supra, n. 6, and Hess v. United States, supra, n. 6, as to whether, once a right of action created by a state appears, the state's limitations upon it should also apply. Appellant suggests that it is likely that the Supreme Court will adopt the views expressed by Mr. Justice Brennan, dissenting in The Tungus, supra, that once the state affords a remedy in a general way for wrongful death then the right is governed by the general maritime law rather than state law. The foregoing decisions, however, are to the contrary, and it is not our function to guess that the Supreme Court may overrule them and then to apply our guess instead of the rules announced in those decisions. We therefore hold that the third rule is applicable here.

It is not here urged that the California statute does not give a cause of action for wrongful death resulting from a maritime but local tort occurring within California waters.⁹ Our question is narrower: does that statute give such a cause of action where the sole basis asserted for liability is unseaworthiness not caused by negligence? That is a question of California law. No California appellate court has passed upon that question. Under these circumstances, we must construe the statute in the light of such California decisions as may be helpful, in an endeavor to determine what the California courts would hold.¹⁰

Appellant asks us to construe the law of 1872 to meet the needs of 1965, to apply a "bold" approach to its construction, to give the statute a generous construction to achieve results consistent not only with the remedial purpose of the statute but also with the like purpose of the admiralty itself. Whatever we may think our duty to be when we are construing an act of Congress, we think that where a California statute is involved such exhortations are not properly addressed to us. They would be more appropriately addressed to the courts or to the legislature of California.¹¹ We do not make California law, even interstitially; we have a more modest function, to attempt to apply it as it is to a particular case.

The key language in the California Statute is "death * * * caused by the wrongful act or neglect of another." What the statute does not say is emphasized by appellees. It does not speak of "wrongful act, neglect or default," as many statutes do, or give a cause of action for a wrong for which the decedent could have recovered had he lived, or mention maritime torts, or injuries on ships, or anything similar.

The California Supreme Court has ruled comparatively recently, in the Buckley case,¹² that contributory negligence is a defense under the statute. There the court said that "it is to be strongly presumed that the Legislature acted in the light of the contemporary construction of Lord Campbell's Act, including * * * the English decisions pertinent to the application of the law." In 1872, when the statute was enacted, the doctrine of unseaworthiness had not yet been defined by the United States Supreme Court. It began with The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760. And it did not come into full flower until many years later.¹³ The Buckley case lends some support to appellees' position.

The California courts have also construed the operative words of the Act: "wrongful act," and "neglect." In Burk v. Arcata & Mad River R. R., 1899, 125 Cal. 364, 57 P. 1065, the Court said: "The act causing the death must be willful or negligent." (125 Cal. at 369, 57 P. at 1066.)¹⁴ Here, neither wilfulness nor negligence is charged. Unseaworthiness gives rise to liability without fault, and while it is now characterized as a species of tort,¹⁵ its genesis is said to be in warranty, arising out of the seaman's contract of service.¹⁶ Appellees urge that the California courts would hold that such a tort is not embraced within the language of Code of Civil Procedure Section 377.

Appellees say that it has been held that Code of Civil Procedure § 377 does not give a cause of action for breach of contract, citing the cases listed in note 14, supra, and Willey v. Alaska Packers Assn., N.D.Cal., 1926, 9 F.2d 937, affirmed 9 Cir., 1927, 18 F.2d 8. Willey involved a claimed breach of the duty of maintenance and cure. The trial court held that the duty was contractual, and not covered by Code Civ.Proc. § 377, and alternatively, that the action was barred by a prior judgment in a California court, and that in any event, no breach of duty was proved. This court affirmed, but solely upon the third ground. The case is weak authority at best. Moxon v. County of Kern, supra, n. 14, was a wrongful death action against a hospital, based upon negligence and breach of warranty. Decedent, while he was in the hospital, was killed by an insane fellow patient. The court held that the negligence claim was barred by Cal.Gov. Code § 854.8, and that the breach of warranty claim sounded in contract, not tort, and so did not come within Code Civ.Proc. § 377. It is noteworthy, however, that the court cited Prosser's statement that the wrongful death statute covers torts, including intentional and negligent torts and strict liability.¹⁷

In Hinds v. Wheadon, supra, n. 14, the District Court of Appeal held that an action for breach of express warranty...