Jordan v. States Marine Corporation of Delaware

• Decision Date: 15 July 1958
• Docket Number: No. 15830.,15830.
• Citation: 257 F.2d 232
• Parties: Martha JORDAN, Appellant, v. STATES MARINE CORPORATION OF DELAWARE, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

257 F.2d 232 (1958)

Martha JORDAN, Appellant, v. STATES MARINE CORPORATION OF DELAWARE, a Corporation, Appellee.

No. 15830.

United States Court of Appeals Ninth Circuit.

July 15, 1958.

Peterson, Pozzi & Lent, Donald Wilson, Portland, Or., for appellant.

White, Sutherland & White, William F. White, Portland, Or., Graham, James & Rolph, Henry R. Rolph, Francis L. Tetreault, San Francisco, Cal., for appellee.

Before DENMAN, POPE and FEE, Circuit Judges.

DENMAN, Circuit Judge.

Mrs. Jordan, a citizen of Oregon, appeals from a summary judgment dismissing before trial her complaint in a diversity suit against appellee, a Delaware ship-owning corporation, hereafter States Marine. Her complaint seeks recovery for loss of consortium and sexual intercourse resulting from the injury to her sailor husband caused by the States Marine's negligence on the high seas on a voyage from California to Japan while he was a seaman employed on its steamship Cotton State, she then being in Oregon, the place of their marital domicile.

For purposes of the summary judgment ordering dismissal it is assumed that States Marine was negligent and that its negligence was the proximate cause of the damage to Mrs. Jordan. It is stipulated that the injured seaman, Johnnie Jordan recovered the sum of $12,666.75 plus costs in an action in the Oregon State Courts under the Jones Act, 46 U.S.C.A. § 688 and that he has received $14,000.00 in return for signing a full release of any and all additional claims he may have against States Marine arising out of the same injury.

It is not claimed that the above judgment or the above release affects the rights of Mrs. Jordan to recover for damage to her because of the injury to her husband. It is conceded by the appellee that under the statutory law of Oregon,¹ the domicile of the appellant, a wife has "the right of action for loss of consortium of her husband" and this is the basis upon which appellant rests her right to sue.

The court rendered no opinion stating no more than that the complaint and admissions show no genuine issue as to a material fact exists and that as a matter of law defendant is entitled to a judgment.

Mrs. Jordan's briefs concede her cause of action "is predicated neither upon the Jones Act or the General Maritime Law" and that she "is not contending that her cause of action for loss of consortium merely supplements maritime law". Nor does she question that under the maritime law States Marine is not liable to her for the tortiously caused loss of consortium with her husband or that under the law of Delaware, the state of the vessel owners, there is no such liability. To the contrary are Delaware Code Title 13, § 311 and Sobolewski v. German, 1924, 2 W.W.Harr. 540, 32 Del. 540, 127 A. 49.

Her sole contention in briefs and at hearing is that though the acts causing her husband's injury were on the high seas, "the injury she sustained was in the State of Oregon, the place of the parties' marital domicile, which granted her a substantive right to recover for interference with her consortium by third parties." Emphasis added.

Mrs. Jordan's brief cites and relies upon the Restatement of Conflict of Laws, Section 377:

"The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place." Emphasis added.

It will be noted that the words "last event necessary" are used instead of "where the damage was done" or "where the harm ensued". We agree this is the controlling law of torts, where, as here, the tort was committed on the high seas and construe the "last event" to mean the last act on board the vessel causing the injury to the husband. We do not regard the law of Oregon making the wife's injury a recoverable tort there as an event in the chain of causative facts. The harm to Mrs. Jordan was completed on the high seas on the Delaware vessel. That she may not discover her loss until her husband comes home is an afterevent to the chain of causation of the tort.

We are not here concerned with the question of the power of Oregon to create such a new liability for a tort occurring in the territorial waters of the state. That the state cannot make such a tort enforceable extra-territorially on a vessel not owned by an Oregon corporation or in another state is long since decided. The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; Black Diamond S.S. Corp. v. Robert Stewart & Sons, 1949, 336 U.S. 386, 69 S.Ct. 622, 93 L.Ed. 754; Williamson v. Weyerhaeuser Timber Co., 9 Cir., 221 F.2d 5, 11.

In similar actions for wrongful death caused on the high seas the "place of wrong" is held to be on the ship. In Minnie v. Port Huron Terminal Co., 1935, 295 U.S. 647, 55 S.Ct. 884, ...