Wilson v. Transocean Airlines, 33081.

• Citation: 121 F. Supp. 85
• Decision Date: 15 April 1954
• Docket Number: No. 33081.,33081.
• Court: U.S. District Court — Northern District of California
• Parties: WILSON v. TRANSOCEAN AIRLINES et al.

121 F. Supp. 85

WILSON v. TRANSOCEAN AIRLINES et al.

No. 33081.

United States District Court N. D. California, S. D.

April 15, 1954.

Spencer & Bourke, Oakland, Cal., for plaintiff.

Jesse H. Steinhart, John J. Goldberg, San Francisco, Cal., for defendant Transocean Air Lines, Inc.

GOODMAN, District Judge.

On July 11, 1953, a Transocean airliner flying the vast expanse of the Pacific from Guam to Oakland, California, crashed into the sea some 325 miles east of Wake Island. All 58 persons aboard were killed.

What law affords the right of action for these deaths upon the high seas? In what forum must a remedy be sought? These are the puzzling questions tendered by this and similar suits now before this court. Questions which strangely have not yet been set at rest.

The plaintiff in this action, the widow of George Wilson, a passenger on the airliner, sought redress for loss of his companionship and support in the Superior Court of the State of California in and for the County of Alameda. Defendant removed the action to this court in reliance upon the statutory privilege to remove from the State courts any civil action of which the district courts of the United States have original jurisdiction. 28 U.S.C. § 1441. Defendant asserts that this action is within this court's original jurisdiction because the action seeks damages in excess of $3,000 and is founded upon a right arising under a statute of the United States, the Death on the High Seas Act, 41 Stat. 537, 46 U.S.C.A. §§ 761-767.

Plaintiff has moved to remand the cause to the State court, claiming that her action is founded upon a right afforded by the Wrongful Death Statute of California, California Code of Civil Procedure § 377, rather than upon a right given by the Death on the High Seas Act. Defendant in turn has moved to dismiss the action upon the ground that the sole right of action for the death of plaintiff's husband is afforded by the Death on the High Seas Act which requires suit to be brought by his personal representative. Both motions thus raise an identical question of law. Is there a right of action for the death of plaintiff's husband under the Wrongful Death Statute of California or is the sole right of action afforded by the federal Death on the High Seas Act?

The clues to the answer to this question lie in the history of the action for wrongful death at sea. In the early judicial history of the United States, a few courts of admiralty, moved by humanitarian considerations, recognized in the general maritime law a right of action for wrongful death.¹ But, in 1886, the decision of the Supreme Court in The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, established that such right did not exist in the general maritime law as administered in the courts of the United States, except as created by a state or federal statute.

At that time there was no federal statute granting a right of action for wrongful death at sea. But many of the states had enacted statutes modifying the common law by granting a right of action for wrongful death generally. The state² common-law courts had already resorted to these state statutes to afford redress for wrongful deaths occurring on state territorial waters. The Supreme Court had sustained the power of the states to create a right of action for wrongful death upon their territorial waters, in the absence of conflicting federal legislation, and the jurisdiction of the common-law courts to enforce it.³ A few of the lower federal courts had also held that such a right might be enforced in admiralty.⁴

The Court of Appeals of New York in 1879, had gone so far as to apply the New York Wrongful Death Act to permit recovery for death on the high seas aboard a vessel registered in New York and owned by citizens of that state. McDonald v. Mallory, 77 N.Y. 546, 547. And, the Federal Circuit Court for the Eastern District of Louisiana had stated in 1883, as an alternative ground for overruling exceptions to a libel, that a court of admiralty might entertain a libel founded on the Louisiana Death Act for wrongful death on the high seas against a vessel owned by citizens of Louisiana and maintaining her home port in New Orleans. The E. B. Ward, Jr., 17 F. 456.

In 1907, in The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264, the Supreme Court confirmed the power of a state to create an enforceable right of action for death upon the high seas. In that case, the Supreme Court held that the right of action given by the Delaware Wrongful Death Statute was properly recognized by an admiralty court in a limitation of liability proceeding arising out of the collision on the high seas of two vessels owned by Delaware corporations.

The power of a state to afford a right of action for deaths occurring on the high seas, as well as on territorial waters, was thus established. But the value of such a state-created right of action for death on the high seas was another matter. For the power of a state to create a corresponding liability for a death on the high seas was of course limited to those vessels, persons, and corporations over whom the state had legislative jurisdiction.⁵ Legislative jurisdiction to impose a liability for a wrongful act at sea beyond the boundaries of the state had to rest upon one of two theories: either (1) that the vessel upon which the wrongful act occurred was constructively part of the territory of the state; or (2) that the wrongdoer was a vessel or citizen of the state subject to its jurisdiction even when beyond its territorial limits. Neither theory sufficed for every situation.⁶

The theory that a ship is part of the territory of the country to which it belongs is a strained fiction even when applied to sovereign nations. When applied to states of the Union it is even more inappropriate. For an American ship does not actually fly the flag of any particular state but is part of the merchant marine of the United States. A ship may be said to belong to a particular state if it maintains its home port there or if its owners reside there. Thus uncertainty is injected into the task of assigning a ship to a particular state if its home port is in one state and its owners reside in another, and the task is further complicated if the ship is jointly owned by persons or corporations residing in different states.

Both theories for determining the state which has legislative jurisdiction to impose liability for a wrongful act at sea are inadequate to guide the choice of the state law to apply in cases of collision on the high seas between vessels of different states, particularly when both vessels are at fault. The difficulties inherent in this situation are well illustrated by the decision in The Middlesex, D.C.Mass.1916, 253 F. 142, in which the court concluded that there could be no recovery under any of three possibly applicable state wrongful death statutes.

This decision in The Middlesex in 1916 increased the agitation which had commenced as early as 1899 for a federal statute affording a right of action for wrongful death occurring within the admiralty jurisdiction.⁷ The earliest bills submitted to the Congress provided a uniform and exclusive federal right of action for all navigable waters.⁸ Since local practitioners felt that their own state statutes should govern actions for death occurring on state waters, these bills met with a luke-warm reception. The next group of bills considered by the Congress provided a uniform federal right of action for death on all navigable waters, to be exclusive on the high seas, but to displace state-created rights on territorial waters only at the election of suitors.⁹ But again considerable opposition arose to a federal statute which would to any extent displace the state statutes on territorial waters.¹⁰

To avoid further opposition of this nature, the Maritime Law Association, which had been one of the principal advocates of the federal statute, in 1915, prepared a bill providing a uniform federal right of action solely for the high seas, and leaving the operation of state statutes unimpaired on territorial waters.¹¹ This bill was introduced in the House and Senate in the 64th Congress.¹² While it was before the Congress the decision in Middlesex was handed down and called to the attention of the committees considering the bill.¹³ The bill was favorably reported in both houses,¹⁴ but did not reach a vote.

The same bill was reintroduced in the House on the opening day of the 65th Congress.¹⁵ But since the United States entered World War I four days later, no action was taken on the bill during that Congress. Following World War I, the bill was introduced in the 66th Congress.¹⁶ The bill was passed by the Senate with an amendment not material here. The bill then provided, in Section 1, a right to maintain a suit in admiralty for wrongful death upon the high seas. Section 7 of the bill provided that "the provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this Act as to causes of action accruing within the territorial limits of any state."¹⁷ At this point it was clear both from the language of the bill and from the reports of both the Senate and House Judiciary Committees to which the bill had been referred,¹⁸ that it was intended that the federal right of action should be exclusive for deaths upon the high seas and that the state wrongful death statutes should supply the right of action for deaths upon state territorial waters.

Then an event occurred which rendered the Congressional intent in this respect uncertain. During the course of debate upon the bill in the House,¹⁹ Representative Mann of Illinois offered an amendment striking from the quoted sentence of Section 7, the concluding clause "as to causes of action accruing within the territorial limits of any state." This amendment left the sentence reading, as it does in the Act, that "The provisions of any State statute...