MOBIL OIL CORP. v. HIGGINBOTHAM

Argument of Carl J. Schumacher

Chief Justice Warren E. Burger: We will hear arguments next in Mobil Oil against Higginbotham.

Mr. Schumacher you may proceed whenever you are ready.

Mr. Carl J. Schumacher: Thank you, Mr. Chief Justice and may it please the Court.

I appear for Mobil Oil Corporation, the petitioner.

The facts that bring us to this point in this suit are really simple.

Indeed I do not believe that any facts are in dispute at this stage of these proceedings.

On August 15, 1967 four men were killed when a helicopter in which they were riding crashed into the Gulf of Mexico after leaving a fixed platform not official island, and returning toward the shoreline.

The crash occurred some 100 miles off the Louisiana Coast.

The case was tried in the District Court on three theories by the plaintiffs seeking a remedy for death damages based upon Death on the High Seas Act, damages under the Jones Act, and damages under the General Maritime Law.

The issue before this Court and the sole issue is whether or not this Court in Moragne to use Judge Brown's language consigned the Death on the High Seas Act to the briney deep.

Did this Court by Moragne reduce the Death on the High Seas Act to the scrappy or reduce it to the level of a nonstatutory restatement as Professors Gilmore and Black have said, suggested a question.

Our submission is that clearly Justice Harlan in the opinion in Moragne did not intend to do so.

We submit that it is clear beyond any possibility or doubt that this Court in Moragne did not decide more than it had to.

And when Justice Harlan wrote we conclude that the Death on the High Seas Act was not intended to preclude the availability of a remedy for wrongful death under General Maritime Law in situations not covered by the Act.

We specifically decline or this Court specifically decline to, by Moragne, repeal or nullify a circumvent DOHSA.

The case comes before Your Honors because of the conflict in the opinions of the First Circuit in Barbe versus Drummond and of the Fifth Circuit in Law versus Sea Drilling.

Question arises because the Fifth Circuit in the instant case, the Panel of the Fifth Circuit that heard Higginbotham et al. decided that it was precluded from deciding for itself whether or not Moragne nullified the Death on the High Seas Act.

It said it was precluded by its own rules that required it to follow the decision of an earlier panel in the Law case.

In Law, Judge Brown speaking for the Fifth Circuit says no longer does one need a state remedy.

No longer does one need a State Court or the admiralty as a Court or DOHSA as a remedy.

There is a federal maritime cause of action but death on navigable waters -- any navigable waters -- and it can be enforced in any court.

Chief Justice Warren E. Burger: By any navigable waters he was, of course, including the three mile --

Mr. Carl J. Schumacher: He was including Your Honor the three mile limit which clearly there was good authority for him to do so, but the facts in Law involve deaths beyond the three mile limit as did the facts in Barbe versus Drummond.

The First Circuit addressing itself to the identical question, came to just the opposite conclusion.

The Court in Barbe said, "Since DOHSA clearly provides a cause of action for wrongful death in this case, we fail to see how Moragne applies.

We hold that the major of damage for wrongful death provided by DOHSA, namely pecuniary loss, controls in the instant case."

Both the petitioner and the respondent, in the briefs before the Court, have addressed themselves to the intention of the Congress in passing the Death on the High Seas Act.

I submit to Court that the statute itself demonstrates that the Congress intended that the Death on the High Seas Act be the exclusive remedy for death actions occurring or where death occurs more than three miles out of the territorial waters of the State.

It reached whenever the death of a person shall because by wrongful act neglect the default occurring on the high seas beyond the Marine League from shore, the personal representatives of the decedent may maintain a suit for damages.

But the damages provision which is the provision which bars directly on the Higginbotham case provides the recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained, and whether our reading of the congressional record in 1920 is correct and we properly understand the intention of the Congress, or whether that suggested by the respondents is may be debatable, but the language of the statute certainly cannot be debated and the statute says that the major of damages shall be the pecuniary loss.

There is no exception to that command.

I suppose Your Honors that the petitioner's argument really reduces itself to this.

We feel that in Moragne the Court correctly limited itself to consideration of deaths occurring within the three mile limit.

We feel that it did not signal or suggest as the Fifth Circuit in Law guessed that the Moragne decision applied beyond the three mile limit.

On the contrary, we believe that the statute itself mandates that it apply exclusively to Death on the High Seas Act.

But the Moragne Gaudet remedy is to be applied beyond the three mile limit would be to totally emasculate the act of a Congress.

Your Honors that is what I have come here to say if any member of the Court has question of course I would be glad to try to speak to.

Justice John Paul Stevens: I have one question counsel.

You have not talked a great deal about the Gaudet case, as I remmeber the name of it, understandably, when one reads that opinion it seems to read -- it does not seem to be limited in its language to the territorial waters although the whole I know the facts there roles within the territorial waters.

Do you have anything to say about Gaudet before you go home?

Mr. Carl J. Schumacher: Your Honor I believe in Footnote 22 of Gaudet, this Court, speaking through Mr. Justice Brennan, committed error.

I believe the construction placed by the majority in Gaudet on the Death on the High Seas Act was in error.

I do not think that really germane to our case because I think Gaudet should have been limited by rules of interpretation to the facts of Gaudet.

Justice John Paul Stevens: I am assuming it is wrongly decided.

It may be in assuming that it is not in fact in its terms limited.

What am I supposed to do?

I was not here when Gaudet was decided.

Should I -- am I to follow as to my (Inaudible) to this regard.

Justice Byron R. White: Was not the footnote just addressed to whether Death on the High Seas Act foreclosed this extra item of damages within the State's water.

Mr. Carl J. Schumacher: I think not Your Honor.

I think that particular footnote -- it was, and that the case was only limited to the State's water.

Justice Byron R. White: That is right.

Those are the facts.

Chief Justice Warren E. Burger: Are you suggesting this was dictum them?

Mr. Carl J. Schumacher: Such you do not like, certainly Your Honor.

Your Honors, I should say I come from a state where the very first article of Civil Code defines the word 'law' and it defines law as a solemn expression of legislative will.

Coming with -- it was the very first court article I read when I went to the law school.

So coming from that background and reading the Death on the High Seas Act I am knowing that this case involved the deaths that indeed occurred on the high seas as defined by the legislature.

I suppose that, I would say QED, but in effect I do not believe the Gaudet footnote or the Gaudet decision itself is necessary for the decision in this case.

Justice Thurgood Marshall: And the difference as to whehter it is ratio decidendi opinion or dictum as whether it is engaging.

Mr. Carl J. Schumacher: Your Honor.

Mr. Justice Marshall in my para said whose ox is being gored, but it is the same mode of law.

Yes, but the facts again in the Gaudet do not require the Court to decide anything more than territorial water death.

Justice John Paul Stevens: Let me pursue it just a little more in a serious level too.

What part Justice Harlan's rationale in the Moragne case was a desire for uniformity throughout and both parts of the high seas?

Now are we possibly in the position where in order to achieve uniformity we must read Gaudet literally and apply it in the same area that the Death on the High Seas had applied.

But how do we --

Mr. Carl J. Schumacher: Your Honor, certainly if there were to be complete uniformity and all things, there would be no need for courts or lawyers or any administrative process.

aAs I understand it, that is not with the Admiralty and Maritime Laws mean when it speaks of uniformity.

It means uniformity in the matters of liability leading to the decision as set out by the Fifth Circuit in -- quoted at page 20 of our brief.

"The uniformity that is fundamental in Maritime Law has to deal with the basis of liability not with deferring elements of damages that may be recoverable in different circumstances with different classes of beneficiaries."

That comes from the Dennis (ph) case.

Thank you Your Honor.

Chief Justice Warren E. Burger: Very Well.

Mr. Benjamin.

Argument of Jack C. Benjamin

Mr. Jack C. Benjamin: Mr. Chief Justice and may it please the Court.

I wanted to point out to the Court in the very beginning that my client Mrs. Shinn one of the respondents, her decedent was entitled to the benefits of the Jones Act, the Death on the High Seas Act, and the General Maritime Law as found by the District Court and affirmed by the Fifth Circuit, as distinguished from Mrs. Higginbotham whose decedent was not found to be a seaman.

So with regard to the issue presented upon review by this Court and I read, if I may take the time, certiorari was granted on the question, whether the maritime cause of action for death occurring within a State's territorial waters, created by this Court in Moragne, completely replaces the statutory cause of action for death, mandated by Congress with respect to deaths occurring within the geographical scope of the Death on the High Seas Act, may not dispose of the Shinn matter.

What may dispose of the Higginbotham matter.

Now I think it was the intention of the petitioner to ask the Court to consider both the Death on the High Seas Act and the Jones Act in relation to the Moragne cause of action for wrongful death and we have so treated that in our brief, but I really worried to make reference to that to the Court.

Justice Potter Stewart: A case can be -- it says a death occurring within the geographical scope with the Death on the High Seas Act, might or might not be also covered by the Jones Act depending upon whether the decedent was a seaman, right?

Chief Justice Warren E. Burger: That is correct.

Justice Potter Stewart: Both would be within the geographical scope on of the Death on the High Seas Act.

Mr. Jack C. Benjamin: But petitioner if you read the question presented literally it says the statutory cause of action.

It does not say statutory causes of action, and the petitioner, no doubt about it, is addressing itself to Death on the High Seas Act.

(Inaudible) as if may we are not urging this Court not to consider the Jones Act in relation to the Moragne cause of action.

Counsel for the petitioner pointed out and this Court has accepted the question of review as to whether or not the Moragne cause of action replaces completely the Death on the High Seas Act, or whether or not it is necessary to relegate it to the briney deep.

We believe that the real issue is not whether that the Moragne cause of action replaces a statutory Act of Congress but whether or not it can recognize as the Court we think did in Moragne case.

The existence of a cause of action for wrongful death under the General Maritime Law which can augment, complement, and supplement the existing federal statutes, and we ask the Court to consider that its decision in Moragne did just that.

In overruling the Harrisburg, the Court must reflect back.

The Harrisburg a case in the late 80's and 80's was cited for the proposition that there was no cause of action for wrongful death under the General Maritime Law wherever the wrongful death occurred so long as the death occurred within waters under federal jurisdiction, both within and without the three mile limit.

Justice William H. Rehnquist: The Harrisburg was not based on act of Congress.

Mr. Jack C. Benjamin: No sir, it was not that Mr. Justice Rehnquist.

The Harrisburg involved, as I recall it, a collision which occurred off the Coast of Massachusetts, somewhere between the Coast of Massachusetts and Martha's Vineyard.

The question as to whether or not it really was territorial waters on the high seas, but in any event over the years the courts and this Court has held that the Harrisburg has prohibited or had prohibited a cause of action for wrongful death under the Maritime Law.

Justice William H. Rehnquist: Aren't we freer to overrule a judicially created doctrine like the Harrisburg which what you say, was held the prohibited cause of action for wrongful death than we are to overrule a damaged limitation in an act of Congress?

Mr. Jack C. Benjamin: Precisely, I think the petitioner has overstated the problem when petitioner suggested in its brief that this Court has not the right to relegate an act of Congress to the scrappy, petitioner overlooks the fact that this Honorable Court has the right if not the duty to reverse prior decisions of this Honorable Court which it feels are wrong or inappropriate or for whatever reason, and that is all we are asking the Court to do.

Justice Byron R. White: What if that never had been necessary to overrule Harrisburg, suppose that all had been in a wrongful death action on the high seas, and then Congress pass Death on the High Seas Act?

Saying that the Death on the High Seas an act for the death on the high seas shall lie and following damages shall be recoverable?

Mr. Jack C. Benjamin: I think there Mr. Justice White that there would have been a jurisprudential disaster.

Justice Byron R. White: Well, it may be but could the Court go on then say, well, nevertheless we are going to allow recovery of more than pecuniary damages?

Mr. Jack C. Benjamin: Well, Congress certainly has the right to do that by statute, but I would like to address myself to one of the provisions of the Death on the High Seas Act itself because we differ very greatly from the petitioner's interpretation of what Congress intended to do.

Now this Court combed the legislative history of the Death on the High Seas Act in Moragne case, and I do not think it would be appropriate for me to go through all of the ramification, but I really point to what was noted in Section 7 of the Act.

When the petitioner read to you the provisions of the Act, petitioner omitted this portion of the statute which says that the provisions of any state statute giving or regulating rights of action or remedies for death shall not be affected by this chapter and this language resulted after great debate on the floor of the House, where there was some language in this amendment which restricted the state statutes to territorial limits and that language was excluded.

So we believe this Act was passed by Congress.

It was really to confer a jurisdiction in Federal Court which had not existed before 1920.

It was not a grade of exclusive jurisdiction because those statutes, which had been passed by the state which could have applied to the High Seas were still permitted to by the very language in the statute that I just read to the Court.

Now if Your Honors inquired of me which states had such statutes I am afraid I could not answer the question obviously.

There must have been some whic did because there would not have been necessity for the discussion in the House when the legislation was debated.

Justice Potter Stewart: But no state would have had the power, would it, to enact the laws creating liability for injuries of death that occurred outside that state's territory including its territorial waters?

Mr. Jack C. Benjamin: Well, I do not know that that issue had ever been presented to this Court Your Honor, but I am under the impression that some states did have statutes which permitted --

Justice Potter Stewart: Which purported to (Inaudible) of the court as a matter of constitutional power.

Sovereignty only can enact laws applicable within its territorial jurisdiction and the high seas are not within the jurisdiction of anyone of our domestic states.

Mr. Jack C. Benjamin: Well, Mr. Justice Stewart, we know that now I am not so sure the Congress over the years has recognized --

Justice Potter Stewart: We know that, yes.

Unknown Speaker: But the Death on the High Seas Act does expressly limit recovered to pecuniary loss.

Mr. Jack C. Benjamin: So Death on the High Seas Act does limit recovery to pecuniary loss.

Unknown Speaker: So that just is not a judicial limitation on damages.

Mr. Jack C. Benjamin: No, that is a statutory limitation of the Act itself and the Jones Act limitation on damages is limited to pecuniary loss, but the two statutes have never been held to be exclusive.

They have been implementing one another and the Courts have used them to implement one another over the years.

A Jones Act seaman had called upon the provisions of the Death on the High Seas Act when appropriate for a remedy for on sea worthiness.

Justice Byron R. White: Well, the congressional statutes are usually given as much place each of them can, but we are talking here about a judicial rule.

These are the congressional statutes.

Mr. Jack C. Benjamin: Well, Mr. Justice White as we attempted to point up to the Court in our brief.

Fortunately, the maritime law has involved with an interrelationship between statutory law and decisional law, and it has been implemented over the years and delicately sometimes not so delicately woven into a flexible fabric to cover an --

Chief Justice Warren E. Burger: We will resume there at 10 o'clock in the morning.

Mr. Jack C. Benjamin: Thank you sir.

Argument of Jack C. Benjamin

Chief Justice Warren E. Burger: We will resume arguments now in Mobil Oil against Higginbotham and others.

Mr Benjamin you may continue.

Mr. Jack C. Benjamin: Mr. Chief Justice and may it please the Court.

At the recess yesterday, I believe, I was attempting to answer a question from Mr. Justice White.

I was seeking to remind the Court of how the maritime law has evolved over the decades by an interrelationship of both nonstatutory and statutory law, decisional law, augmenting statutory law.

The Jones Act and the Death on the High Seas Act in state statutes have all been complementing one another over a period of years.

Further, I believe this Court has answered that question in the Gaudet case and I have read just briefly from Footnote 22.

I am taking it out of context.

"Nothing in the legislative history of Act suggest that Congress intended the Act's statutory major of damages to preempt any additional elements of damage, for a maritime wrongful death remedy which this Court might mean appropriate to effectuate the policies of general maritime law."

Justice Potter Stewart: What Act is referred to that, Jones Act or --

Mr. Jack C. Benjamin: Death on the High Seas Act sir.

Justice Potter Stewart: Death on the High Seas Act.

Thank you.

Mr. Jack C. Benjamin: One further point about the exclusivity of the Death on the High Seas Act, and I refer the Court --

Justice William H. Rehnquist: But the Death on the High Seas Act had been applicable on the fact situation of Gaudet?

Mr. Jack C. Benjamin: No, Your Honor it would not --

Justice William H. Rehnquist: Then that was dicta that you are just reading, wasn't that?

Mr. Jack C. Benjamin: Yes, it is dicta.

It is not really part of the Ratio decidendi the case yes sir, but it is illustrative of what the Court's feeling was concerning the applicability of the general maritime law beyond territorial limits?

Justice John Paul Stevens: You did take it out of context, didn't you?

Mr. Jack C. Benjamin: I did take out of context.

I said I did so to save the time.

Justice John Paul Stevens: May I ask you some to take you through (Inaudible) Mr. Benjamin?

How could Congress then had been trying preempt the cause of action that had been decided, didn't exists in 1920?

That footnote, as you read it, says that the Congress was not trying to be preclude some additional damage remedy on the High Seas.

Is that right?

Mr. Jack C. Benjamin: It was not intended by Congress.

Justice John Paul Stevens: Couldn't it be intended by Congress?

There was just no cause of action at all and here it covered by the statute, was it?

Mr. Jack C. Benjamin: There was Your Honor before the Harrisburg.

Prior to the Harrisburg --

Justice John Paul Stevens: Yeah, but over the time the statute was enacted Harrisburg had been decided, so there is no cause of action, so how couldn't Congress had been deciding anything about damages except what it puts in the statute, it has been enacting.

I just do not -- I do not quite understand how this footnote even helps you even reading it the way you do.

Might be I have missed something, I do not know.

It was a very confusing area.

Mr. Jack C. Benjamin: I believe the opinion of the Court was dealing with whether or not there was anything inimical in the interest of the maritime law to complementing the Death on the High Seas Act by nonstatutory damages and that is the context in which I believe this footnote is written.

Further, the language of the Act itself may indicate that the Act is not intended to be exclusive because Section 764 reveals that with respect to elements of damages recoverable under the Death on the High Seas Act, by expressed provision the incorporation of foreign law is permitted to supplement the damages recoverable under the Act.

So that if an accident occurred involving a Japanese shipping company, for instance, and the law of Japan permitted the recovery of nonpecuniary losses, a seaman, in those circumstances and his survivors, could then augment the pecuniary losses provided for under the Jones Act and Death on the High Seas Act by the Law of Japan.

Justice John Paul Stevens: Mr. Benjamin let me ask another question?

Supposing you are right we rule it, and then supposing that day after the Court decides you are right, Congress repeal the Death on the High Seas Act, would that affect any change in the law?

(Inaudible) all of that statute if we agree with you?

Any need for it at all.

Mr. Jack C. Benjamin: To answer you on this question Mr. Justice Stevens, I believe that the general maritime law concepts would be broad enough to cover most of the provisions under the Act, except for those which have not been defined by a jurisprudential development, such as statutes of limitations, beneficiaries and alike.

Justice John Paul Stevens: But even on statute limitation if you are right -- that statute of limitation in the Death on the High Seas Act would not necessarily bar a Marine type action, would it?

Mr. Jack C. Benjamin: No it would not.

In my opinion the doctrine of laches would apply to a Marine Type --

Justice William H. Rehnquist: In Congress' serving attempt to this Court, Congress can enact a statue providing for a specific limitation on admiralty or providing for a specific limitation on damages, and this Court can come along and say, "We do not care what Congress said.

We like it this way."

Mr. Jack C. Benjamin: Your Honor's question addresses itself to the separation of powers account for in Constitution, and I respectfully attempt to answer that Mr. Justice Rehnquist by saying that in the maritime field, the courts have filled the void.

Justice William H. Rehnquist: But there is not any void here.

Congress is active.

Mr. Jack C. Benjamin: But Congress' action does not provide an adequate remedy.

Chief Justice Warren E. Burger: But isn't that for Congress rather than this Court to say?

Mr. Jack C. Benjamin: Well, as I thought the Court answered in the Gaudet case there was nothing in the Act, which prevented the Act from being augmented by decisions permitting additional elements of damage.

Chief Justice Warren E. Burger: Is that ordinarily to rule with respect to legislatively created cause of action this time?

Mr. Jack C. Benjamin: Well, the legislative created cause of action, may it please Mr. Chief Justice, was intended to create a jurisdiction, in a jurisdiction only in the Federal Court.

Now, the measure of damages was held to be adequate, was throught to be adequate by the Congress in both the Death on the High Seas Act and the Jones Act, but the maritime law was a constantly moving body of law.

It was a constantly advancing body of law.

Today every state in the Union has wrongful death statutes, and every state in the Union -- I withdraw that -- and the majority of those wrongful death statutes permit the recovery of nonpecuniary losses.

So, it does not offend my sense of justice for the Court to augment statutory elements of damage by nonstatutory elements of damage.

Justice William H. Rehnquist: You say this law was both moving and advancing.

I take it, you mean something more than change.

By the way that what do you mean by advancing?

Mr. Jack C. Benjamin: Well, Mr. Justice Rehnquist, the maritime law has always held a special solicitude for seaman and for those who garb the hazards of the sea and has always sought to give rather than to withhold a remedy.

Justice William H. Rehnquist: Then why is it necessary to advance it all if it is always been this way?

Mr. Jack C. Benjamin: Because time has changed and social concepts changed, and the maritime law --

Chief Justice Warren E. Burger: What the particular change, would you rely on to support your position?

Mr. Jack C. Benjamin: Well, the fact that most of the states, the majority of the states, have provisions in the wrongful death or Acts which allow the recovery of nonpecuniary losses.

Chief Justice Warren E. Burger: Congress surely must be aware of that.

Mr. Jack C. Benjamin: Well, of course the Congress has not acted since 1920 and I am not sure there has been any movement for legislation concerning the Death on the High Seas Act in recent years.

There has been with regard to the Jones Act, I am aware of.

I would like to touch upon another point the petitioner raises.

If this Court restricts the applicability of the maritime law to territorial allowance, the three mile limit, it may then return to what is known as a locality test which was denounced by the Court as a test alone at least for jurisdictional purposes in the Executive Jet case by way of illustration.

A widow of a seaman who was fairly injured as a result of the breach of a maritime duty within the three mile limit could recover nonpecuniary losses and the widow of the seaman who was fairly injured on the high seas as a result of the breach of same maritime duty could not.

This is basically unfair.

It illustrated further those are always aware of the amount of field activity off the coast to Louisiana.

Boats and ships are constantly moving from the shore line and to the high seas.

It would impose a most onerous burden upon litigant.

If he were entitled or, if his survivors were entitled to recover nonpecuniary losses within the three mile limit and the litigants were not positive of where the injury or death occurred.

Louisiana's coastline as Your Honors know from arguments in other cases involving boundaries of meander, islands appear, disappear and reappear, and it is quite difficult to ascertain for a litigant where the boundaries are.

In addition, the locality test is just in basis and unfair and unrealistic test.

Now, I would like to touch just briefly upon the Court's decision in the Barbe case which petitioner brought out.

The Barbe case concerned itself with the survival provisions of the general maritime law.

Barbe court recognized the existence, and I use that language because I believe what this Court did in Moragne was recognized the existence.

It restored what was once known as a cause of action for wrongful death under the general maritime law.

It did not create a cause of action.

The Barbe court recognized the cause of action.

Under the survival provisions of the general maritime law using the same, reasoning the same methodology as this Court did in Moragne and Gaudet.

It allowed recovery for conscious pain and suffering of the decedent, but denied recovery of funeral expenses for some reason which has been categorized as absurd by some on the basis that funeral expenses would have been incurred at some future date anyway and of course if that logic would carry out, there would be no reason for Wrongful Death Acts because people are bound to reach the terminal stage with life.

We think the decision of the Barbe court was completely illogical and would create additional anomalies than those which existed pre Moragne.

Finally, I would like to touch upon the Gaudet decision.

The principal reasons for dissent by some members of the panel of this Court in Gaudet were present in the Gaudet case and do not exist in this case or in these cases.

In first place no suit was brought by the decedent prior to death presumably decedents were killed instantaneously and there is no problem of Res judicata or collateral estoppel.

Secondly, there was no possibility of a double recovery as the Court was concerned with.

Justice John Paul Stevens: Mr. Benjamin, even though those facts are arguably would apply to your reasoning within the whole concept of Gaudet applied in high seas.

Mr. Jack C. Benjamin: It would apply Your Honor yes.

As I said the recovery for losses society -- although not permitted under the provisions of the Jones Act and Death on the High Seas Act or permitted by statutes of most states and consistent with the advance of the maritime law and its special solicitude --

Justice Byron R. White: Had there been any suggestions to Congress that Congress catches the Death on the High Seas Act up to the modern trend?

Mr. Jack C. Benjamin: I did not hear the last part of your question sir.

Justice John Paul Stevens: Had there been any suggestions to Congress that the Congress amended the Death on the High Seas Act as for the times as you would go?

Mr. Jack C. Benjamin: I do not believe they have been Your Honor.

Justice Byron R. White: At least time that has not amended.

Mr. Jack C. Benjamin: In recent years it has not amended.

I would like to conclude by reminding the Court that both Death on the High Seas Act and the Jones Act need not be relegated as the Fifth Circuit said and some of the commentators have said to briney deep not to scrappy or to the level of nonstatutory statements.

They may remain as a basis for recovery for pecuniary losses and may be augmented by the remedy annunciated by this Court in Moragne and Gaudet for the recovery of nonpecuniary losses with substantial uniformity to the law and substantial justice to the litigants.

Thank you.

Justice Byron R. White: I suppose you would say that the statute keeps this Court from reversing itself and utterly doing away with a cause of action for Death on the High Seas Act.

That is at least the function of the statute.

Mr. Jack C. Benjamin: I would not claim that Your Honor.

Chief Justice Warren E. Burger: Veru well Mr. Benjamin.

Mr. Schumacher do not have anything further?

Mr. Jack C. Benjamin: Thank you Your Honor, I choose not to.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.