THE TUNGUS V. SKOVGAARD

• Decision Date: 24 February 1959
• Citation: 358 U. S. 588
• Court: U.S. Supreme Court

The Tungus v. Skovgaard

No. 43

Argued October 23, 1958

Decided February 24, 1959

358 U.S. 588

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

While oil was being unloaded from a ship in a New Jersey port by an independent contractor engaged by the consignee, one of the contractor's employees went aboard to repair a pump furnished by the contractor, and he slipped on spilled oil and fell to his death. His widow and administratrix brought suit in admiralty against the ship and its owners to recover damages for his death, alleging unseaworthiness of the vessel and negligent failure to provide the decedent with a reasonably safe place to work. The District Court dismissed the suit, but the Court of Appeals set aside that judgment and remanded the case for further proceedings.

Held:

1. Since the decedent was not a seaman and his death did not occur on the high seas, there is no applicable federal statute, and the right of recovery depended entirely on the New Jersey Wrongful Death Act, which may be applied by a court of admiralty. P P. 590-591.

2. When admiralty adopts a State's right of action for wrongful death, it must enforce that right as an integrated whole, with whatever conditions and limitations the creating State has attached. P P. 591-594.

3. The New Jersey Wrongful Death Act embraces a claim for death negligently caused, and the law imposed on the ship and its owners a duty to exercise ordinary care to provide the decedent with a reasonably safe place to carry on his work of repairing the pump. P. 594.

4. In the circumstances of this case, this Court will not disturb the conclusion reached by a majority of the Court of Appeals, sitting en banc, that a claim for unseaworthiness is encompassed by the New Jersey Wrongful Death Act as a matter of state law, notwithstanding the fact that the New Jersey courts have not passed on the question. P P. 595-596.

5. Decedent was within the class protected by the warranty of seaworthiness as developed by federal maritime law. Pope & Talbot, Inc. v. Hawn, 346 U. S. 406. P. 595, n. 9.

252 F.2d 14, affirmed.

Page 358 U. S. 589

MR. JUSTICE STEWART delivered the opinion of the Court.

On the evening of December 5, 1952, the motor vessel Tungus docked at Bayonne, New Jersey, with a cargo of coconut oil in its deeptanks. El Dorado Oil Works had been engaged by the consignee to handle the discharge of this cargo, and, for the next several hours, the work of pumping the oil ashore was carried on by El Dorado employees, using a pump and hoses furnished by their employer. Two officers and two crew members of the Tungus remained aboard, the latter specifically assigned to assist in the discharge operations. Shortly after midnight, the pump became defective, resulting in the spillage of a large quantity of oil over the adjacent deck area. The pump was stopped, and the oil cleaned from its immediate vicinity. Efforts to restore the pump to normal operation were unsuccessful, and Carl Skovgaard, an El Dorado maintenance foreman, was therefore summoned from his home to assist in the repair work. After arriving on board he walked through an area from which the oil had not been removed and, in attempting to step from the hatch beams to the top of the partly uncovered port deep tank, he slipped and fell to his death in eight feet of hot coconut oil.

His widow and administratrix, the respondent here, commenced this suit in admiralty against the ship and its owners to recover damages for his death, alleging unseaworthiness

Page 358 U. S. 590

of the vessel and a negligent failure to provide the decedent with a reasonably safe place to work. [^{Footnote 1}] The District Court dismissed the libel, holding that a wrongful death action for unseaworthiness would not lie, and that the petitioners owed no duty of exercising ordinary care to provide the decedent a safe place to work. 141 F.Supp. 653. The Court of Appeals set aside this decree and remanded the case for further proceedings, a divided en banc court deciding that the New Jersey Wrongful Death Act embraces a claim for unseaworthiness, and also that the District Court had erred with respect to the scope of the petitioners' duty to exercise reasonable care for the decedent's safety. 252 F.2d 14. The court did not decide "what defenses, if any, might be available," leaving that question for the District Court to determine. Certiorari was granted primarily to consider the relationship of maritime and local law in cases of this kind. 357 U.S. 903.

We begin, as did the Court of Appeals, with the established principle of maritime law that, in the absence of a statute, there is no action for wrongful death. The Harrisburg, 119 U. S. 199. Although Congress has enacted legislation, notably the Jones Act [^{Footnote 2}] and the Death on the High Seas Act, [^{Footnote 3}] providing for wrongful death actions in a limited number of situations, [^{Footnote 4}] no federal

Page 358 U. S. 591

statute is applicable to the present case; Skovgaard was not a seaman, [^{Footnote 5}] and his death occurred upon the territorial waters of New Jersey. [^{Footnote 6}] The respondent's rights in this suit depended entirely, therefore, upon the New Jersey wrongful death statute, and the long settled doctrine that,

"where death . . . results from a maritime tort committed on navigable waters within a State whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given."

Western Fuel Co. v. Garcia, 257 U. S. 233, 242.

The primary issue in this case, therefore, as the Court of Appeals unanimously saw it, was whether the New Jersey statute giving a right of action where death is caused "by a wrongful act, neglect or default" is broad enough to encompass an action for death caused by the unseaworthiness of a vessel. [^{Footnote 7}] It was upon this issue -- construction of the state statute -- that the court divided.

The respondent asks us to uphold the interpretation which the majority in the Court of Appeals has put upon the New Jersey statute. Failing that, a much broader alternative argument is advanced -- that a court in a case

Page 358 U. S. 592

such as this may disregard completely the conditions which the State has put upon the right it has created, and may apply instead the full corpus of the maritime law, free of any qualifications imposed by the State. If death occurs upon navigable waters within a State, the argument runs, the law should seize only upon the blunt fact that there is some kind of state statute providing some kind of a right of action for death caused by some kind of tortious conduct. That, it is said, is enough to fill the "void" in the maritime law, which then becomes applicable in all its facets, without further inquiry as to what it is that the State has actually enacted.

This broad argument must be rejected. The decisions of this Court long ago established that, 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. That is what was decided in The Harrisburg, where the Court's language was unmistakable:

". . . [I]f the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence. . . . The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right."

119 U. S. 199, at 119 U. S. 214. That is the doctrine which has been reiterated by the Court through the years. [^{Footnote 8}] See The Hamilton, 207 U. S. 398; La Bourgogne,

Page 358 U. S. 593

210 U. S. 95; Western Fuel Co. v. Garcia, 257 U. S. 233; Levinson v. Deupree, 345 U. S. 648; cf. Just v. Chambers, 312 U. S. 383.

"[A]dmiralty courts, when invoked to protect rights rooted in state law, endeavor to determine the issues in accordance with the substantive law of the State."

Garrett v. Moore-McCormack Co., 317 U. S. 239, 245. 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.

It is manifest, moreover, that acceptance of the respondent's argument would defeat the intent of Congress to preserve state sovereignty over deaths caused by maritime torts within the State's territorial waters. The legislative history of the Death on the High Seas Act discloses a clear congressional purpose to leave "unimpaired the rights under State statutes as to deaths on waters within the territorial jurisdiction of the States." S.Rep. No. 216, 66th Cong., 1st Sess. 3; H.R.Rep. No. 674, 66th Cong., 2d Sess. 3. The record of the debate in the House of Representatives preceding passage of the bill reflects deep concern that the power of the States to create actions for wrongful death in no way be affected by enactment of the federal law. 59 Cong.Rec. 4482-4486.

Page 358 U. S. 594

There is no merit to the contention that application of state law to determine rights arising from death in state territorial waters is destructive of the uniformity of federal maritime law. Even Southern Pacific Co. v. Jensen, which fathered the "uniformity" concept, recognized that uniformity is not offended by "the right given to recover in death cases." 244 U. S. 205, at 244 U. S. 216. It would be an anomaly to hold that a State may create a right of action for death, but that it may not determine the circumstances under which that right exists. The power of a State to create such a right includes,...