Higa v. Transocean Airlines

• Decision Date: 25 February 1956
• Docket Number: No. 14592.,14592.
• Citation: 230 F.2d 780
• Parties: Wallace HIGA, Administrator of the Estate of Takeichi Higa, Deceased, Appellant, v. TRANSOCEAN AIRLINES, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

230 F.2d 780 (1955)

Wallace HIGA, Administrator of the Estate of Takeichi Higa, Deceased, Appellant, v. TRANSOCEAN AIRLINES, a corporation, Appellee.

No. 14592.

United States Court of Appeals Ninth Circuit.

December 15, 1955.

Rehearing Denied February 25, 1956.

Shiro Kashiwa, Genro Kashiwa, Honolulu, Hawaii, for appellant.

Jesse H. Steinhart, John J. Goldberg, Neil E. Falconer, San Francisco, Cal., Pratt, Tavares & Cassity, Honolulu, Hawaii, for appellee.

Before DENMAN, Chief Judge, BONE, Circuit Judge, and BYRNE, District Judge.

DENMAN, Chief Judge.

This is an appeal from a decision of the United States District Court for the District of Hawaii in a diversity suit which dismissed appellant's complaint for damages under the Death on the High Seas Act, 46 U.S.C.A. § 761, to be determined by a common law jury since it was brought as a common law civil suit rather than in admiralty. Jurisdiction was based on diversity of citizenship, the deceased Higa and his administrator in a Hawaiian proceeding being citizens of Hawaii, and the plane owned by a California corporation.

Takeichi Higa was a passenger on a Transocean Airlines airplane, admittedly not a plane to land on or travel the water, which crashed into the Pacific Ocean 300 to 400 miles from Wake Island when flying in the direction of Honolulu. Appellant is Higa's administrator and he brought this action for the benefit of Higa's parents, alleging that Takeichi Higa's death was caused by the plane's crashing into the ocean.

Since this is a diversity suit brought in the United States District Court for the Territory of Hawaii, seeking a common law remedy for a death on the high seas outside territorial waters, appellant is required to show that the law of Hawaii had created jurisdiction in that court to entertain such a common law action. The Hawaiian code has a wrongful death statute,¹ but there is no provision of that code or decision of the Hawaiian courts making it applicable to death on the high seas beyond the territorial waters.

There is much that is said in Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 and in Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, a tort case for a wrongful death on navigable waters within the State of California, which seems to warrant our holding that the constitutional provisions respecting Congressional control of the admiralty jurisdiction, prevented the Territory from applying its death liability statute to such a tortious death as is here involved. However, we prefer to consider the appeal on other than a constitutional ground, since we hold that the court otherwise lacked jurisdiction.

The pertinent portion of the text of the Death on the High Seas Act is:

"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 * * * the Territories * * * 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 * * *." Emphasis added.

Appellant contends that the jurisdiction is not confined to the admiralty jurisdiction of the United States District Court because of the use of the word "may" in the phrase "may maintain". He contends that the Congress intended that the substantive right so created "may" be enforced not only "in admiralty" but in a common law civil suit, with a jury trial. We do not agree with this construction of the word "may" as including jury trial.

This contention of a right to jury trial was discussed in the House in the consideration of the bill which was enacted that day, March 30, 1920. The discussion covering five pages of the Congressional record of that day clearly shows that the admiralty jurisdiction is exclusive. Appellant does not question that the Committee Reports, Senate Report 216 and House Report 674, 66th Congress, support the exclusive character of the "in admiralty" provision.

Higa further argues that the words "may maintain" are used permissively allowing suit to be brought elsewhere and that Congress would have used the phrase "shall maintain" if an exclusive remedy was intended. This contention leads to the obvious absurdity that Congress imposed a duty to sue on a claimant, whether or not he so desired. We hold that the word "may" is used permissively but only as a permission to sue in admiralty.

Higa's main contention is that the Death on the High Seas Act creates a substantive right and that Congress cannot create such a right solely in admiralty and at the same time prevent its being sued on at common law by a litigant having it, in any court, state or federal. This contention is based on the "saving to suitors" clause of 28 U.S.C. § 1333.

In considering this contention it is of importance that the High Seas Act deprived no state or federal court of a then existing right. As to the state courts 46 U.S.C.A. § 767 provides:

"§ 767. Exceptions from operation of chapter. The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter."

As originally drafted, the bill had an added clause limiting the state to acts in its own waters, reading: "as to causes of action accruing within the territorial limits of any state". Representative Mann offered an amendment striking out this clause. Mann gave as his reason for striking out the limiting clause that it was to save state statutes giving jurisdiction in high seas death cases. Some opposed because they wanted the Act to be exclusive. Others agreed to the amendment on the ground that § 767 as passed would be held invalid on the ground of the constitutional control of Congress discussed above. Congress agreed with Mann who offered the amendment and the limitation was stricken from the bill.

Further, Mann no doubt had in mind some one of the federal cases, holding that the laws of the state controlled the action of persons within ships on the high seas and had construed their death statutes as applying there. Southern Pac. Co. v. De Valle Da Costa, 1 Cir., 1911, 190 F. 689; International Nav. Co. v. Lindstrom, 2 Cir., 1903, 123 F. 475; The James McGee, S.D.N.Y.1924, 300 F. 93; The E. B. Ward, Jr., C.C.E.D.La. 1883, 17 F. 456.

Even if Congress had not agreed with the interpretation of the proponent of the amendment, we would hesitate to construe the exceptive clause as depriving the states of the then existing jurisdictions shown as exercised in the above cited cases.

As to the federal courts Congress had enacted the saving to suitors provision, 28 U.S.C.A. 41(3), expressly depriving the district courts of the jurisdiction over claims of such passengers as Higa prior to the enactment of the Death on the High Seas Act, the pertinent portions of which read:

"(3) Admiralty causes, seizures, and prizes. Third. Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy * * *. The jurisdiction of the district courts shall not extend to causes arising out of injuries to or death of persons other than the master or members of the crew, for which compensation is provided by the workmen\'s compensation law of any State, District, Territory, or possession of the United States." Emphasis supplied.

It was this statute respecting the district courts and the holding in The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L. Ed. 358 that no such right existed in the federal courts which lead to the Death on the High Seas Act.

The saving to suitors clause of 28 U. S.C.A. 41(a) was amended in 1948 in 28 U.S.C. § 1333 as a part of the general amendment of the federal codes to avoid distinction between suits at law and equity² to read:

"The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." Emphasis added.

The reviser's statement in the footnote well may mean that the amendment merely restated the law as it was before the Death on the High Seas Act was passed, and hence the italicized word "are" in the phrase "to which they are * * * entitled", would foreclose a common law claim such as here asserted.

However, assuming that § 1333 refers to subsequent claims, we think Congress has created a substantive admiralty right to be asserted solely in the federal courts in admiralty, by the plain words of the High Seas Act that the administrator "may maintain a suit for damages in the district courts of the United States, in admiralty."

This question was raised in the discussion of the High Seas bill in the House, where it was passed after Congressman Volstead, the author of the bill, answered it on the floor of the House in the affirmative. The language of the discussion is:

"Mr. Igoe. Does not the gentleman think that he should inform the gentleman from Ohio (Mr. Ricketts) that this proceeding will be in admiralty and that there will be no jury, so that no Member of the House may have any misunderstanding about it? That question was thrashed out and it was decided best not to incorporate into this bill a jury trial because of the difficulties in admiralty proceedings." (Page 4482. Emphasis added.)

"Mr. Moore of Virginia. * * * The purpose of this bill, as I understand it, is to give exclusive jurisdiction to the admiralty courts where the accident occurs on the high seas.

"Mr. Volstead. That is it." (Page 4483.) Congressional Record, Volume 59, Part V.

Construing the Act's words, if Higa's diversity proceeding at common law were permitted by the High Seas Act it would make superfluous its words "in admiralty." As was stated in Market Co. v. Hoffman, 101 U.S. 112, at pages 115, 116, 25 L.Ed. 782:

"We are not at liberty to construe any statute so as to deny effect to any part of its language. It is a

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