Offshore Logistics, Inc. v. Tallentire - Oral Argument

ORAL ARGUMENT OF KEITH A. JONES, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments first this morning in Offshore Logistics, Incorporated v. Tallentire.

Mr. Jones, you may proceed whenever you are ready.

Mr. Jones: Thank you, Mr. Chief Justice, and may it please the Court, this case arises from the crash of a helicopter on the high seas.

The crash occurred in the Gulf of Mexico, approximately 35 miles from land.

All persons on board were killed.

The operator of the helicopter, Offshore Logistics, conceded in the District Court that it is liable for damages under the Federal Death on the High Seas Act, which is known by its acronym DOHSA.

That statute provides for the recovery of pecuniary damages, but it does not allow the award of nonpecuniary or sentimental damages.

The case is here because the Plaintiffs contend and the Court of Appeals held that Offshore Logistics additionally is liable for sentimental damages under state law.

The theory of the Plaintiffs and that of the Court of Appeals is that state law may be invoked and applied as a means of supplementing DOHSA and enlarging the recoveries for wrongful death on the high seas.

We disagree.

Our position is that DOHSA is exclusive, that the availability of a uniform maritime rule of recovery makes the parallel of supplemental enforcement of state law both unnecessary and inappropriate.

The Court of Appeals rejected our position because, it held, that enforcement of state law is required by what it called the clear mandate of Section 7 of DOHSA.

That holding defines the core issue in this case, that is, whether Section 7 actually does mandate enforcement of state law on the high seas.

We submit that Plaintiffs cannot prevail in this case unless Section 7 affirmatively directs federal admiralty courts to enforce state wrongful death statutes on the high seas.

We further submit that Section 7 issues no such directive.

Before I turn to the construction of Section 7, let me begin by assuming that for purposes of argument that Section 7 is merely neutral, that it neither prohibits nor requires the enforcement of state law on the high seas.

In this event, the proper role of state law will be left for judicial determination in accordance with the governing principles of admiralty, and there can be no serious question about the outcome.

Federal courts would not be required to enforce state law on the high seas, and they would not do so.

The courts would not be required to enforce state law because admiralty is a federal common law jurisdiction in which state law does not operate of its own force.

This Court has refused to apply state law even in cases arising on the territorial waters and involving issues on which Congress has not spoken.

It follows a fortiori that admiralty courts have no obligation to enforce state law in cases arising not in the territorial waters but on the high seas and involving issues on which Congress already has spoken by providing a uniform maritime rule.

Unidentified Justice: Mr. Jones, how far in towards the shore does the DOHSA come?

Is it a what, a marine league?

Mr. Jones: One marine league, Your Honor.

Unidentified Justice: Well, how far is that?

Mr. Jones: I understand that's just a little bit more than three geographic miles.

I think it is the equivalent of three nautical miles.

I think the purpose of DOHSA was to define the territorial boundary of the United States or to conform with that boundary.

Not only would federal admiralty courts not be required to enforce state law in those circumstances, it is clear that they would not do so.

The purpose of the constitutional framers in conferring admiralty jurisdiction on the federal courts was to ensure the preservation and development of a coherent and uniform body of maritime law.

Admiralty law historically has been shaped and governed by this constitutional policy of maritime uniformity.

From time to time the courts have borrowed from state law in order to fill a void in maritime law, but that practice has marked the limit of admiralty's tolerance for nonuniformity.

Admiralty courts do not offer diversity when there is a national admiralty rule already at hand.

This is especially true on the high seas where the essential features of an exclusive federal jurisdiction are at issue.

The Plaintiffs appear to suggest that this constitutional policy of maritime uniformity covers only duties of care and that there is no federal interest in uniform remedies.

It is by no means clear that the decision below contemplates only the enforcement of state remedies and not of state duties of care.

But be that as it may, the Plaintiffs' argument is simply wrong.

One of the earliest cases stressing the need for maritime uniformity, Chelentis v. Luckenbach, specifically involved the question of remedy, and in that case this Court held that a state remedy of full indemnification would not and could not be substituted for the more limited general maritime remedy of maintenance and cure.

The doctrine of maritime uniformity plainly embraces remedies as well as duties of care.

Justice O'Connor: Well, are you saying that would be true even if Congress intended that state remedies apply?

Mr. Jones: No, Your Honor, I am still operating under the initial assumption that Section 7 is neutral.

I will get--

Justice O'Connor: Though certainly it doesn't look very neutral on its face, and I think that's the problem you have along with the legislative history.

Mr. Jones: --Well, our basic submission here is that Section 7 does not command the enforcement of state law on the high seas.

Let us turn to the language of Section 7.

It provides, and I quote,

"the provisions of any state statute giving or regulating rights of action or remedies for death shall not be affected. "

Now.

I agree that at first blush this language may appear to be suggestive, but the closer one looks, the less meaningful it appears.

To say that the provisions of state law are not affected is not to say that state law can, let alone that it must, be enforced on the high seas.

And this is no mere gramatical quibble.

In Section 4 of DOHSA Congress expressly directed federal admiralty courts to enforce foreign law on the high seas.

If Congress had intended to issue the same kind of directive with respect to state law, it would have used similar language.

It would have specified in the same manner as in Section 4 that rights of action for wrongful death on the high seas based upon state law may be maintained in admiralty.

But Congress did not do so.

Instead, the language of Section 7 is, as Representative Goodykoontz observed on the floor of the House, and I quote,

"not unlike Mohammed's coffin, suspended between heaven and earth, having no application to anything in particular. "

Unidentified Justice: Well, why should we take Representative Goodykoontz's word as opposed to Congressman Mann's word who apparently drafted the thing?

Mr. Jones: Well, I think that there is a lot to be said about what Representative Mann had in mind, but let me first point out that for 60 years following the enactment of DOHSA, this language of Section 7 has been treated by all leading admiralty commentators as nothing more than a saving clause, as providing nothing more than that state law may be used where federal law, where the federal remedy does not apply.

Unidentified Justice: Like the saving to suitors clause?

Mr. Jones: Well, the saving to suitors clause basically is a provision that permits the use of a state forum.

The saving to suitors clause is somewhat different from this provision, but I think what people understood Section 7 as providing is that where the federal remedy does not apply, the state remedies may still be enforced in admiralty.

Now, it is true that recently the lower court and a handful of other district courts, out of apparent dissatisfaction of DOHSA's limitation of recovery to pecuniary damages, have sought to supplement it with remedies borrowed from state law, but in doing so, they have disregarded this Court's instruction in Mobil Oil v. Higginbotham that, and I quote,

"Congress did not limit DOHSA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of nonpecuniary supplements. "

"And the lower court's departure from Higginbotham is not justified by their vague and cryptic language of Section 7. "

And I don't think it's justified by the legislative history either, either of DOHSA as a whole or Section 7 in particular.

The legislative history of DOHSA as a whole, as set forth in the committee reports, reveals that Congress intended to establish a uniform and exclusive remedy for wrongful death on the high seas, and the bill's sponsor, Representative Montague, explained during floor debate, Section 7 was merely put in out of abundant caution to calm the minds of those who think that rights within the territorial waters will be usurped by the national law.

Now, to be sure, this statement was made before Section 7 was amended on the floor of the House, but that amendment, Representative Mann's amendment, would not have the effect of defeating the original and expressly stated legislative purposes of uniformity and exclusivity.

Justice O'Connor: Would that be true even if he intended to alter the text in the way that his statements indicated?

Mr. Jones: Well, Justice O'Connor, I think no parsing of the floor debate can make crystal clear what either Representative Mann's intention was or the intention of the House as a whole.

Representative Mann offered his amendment out of a confusion of motives.

He wanted to ensure that state law would continue to apply in all territorial waters, whether or not they were within one marine league of shore.

He also wanted to provide for concurrent federal and state court Jurisdiction over actions arising under DOHSA.

Now, those appear to have been his dominant motives, and they do not bear upon this case one way or the other.

Now, Representative Mann's third motive, if indeed he had a third motive, was to preserve existing state court jurisdiction over actions predicated upon state law.

But what was that existing state court jurisdiction?

Representative Mann himself, during the debate on an earlier version of this bill, stated explicitly that state courts have no jurisdiction over accidents on the high seas.

Now, the plaintiffs appear to suggest, and a theme that runs through the decision below, is that the purpose of the amendment was to codify the holding of the Hamilton.

But Representative Mann himself never said so.

And what the court below and the Plaintiffs overlook is that the Hamilton did not approve a direct action for wrongful death under state law.

The holding of the Hamilton is that a federal admiralty court, in the absence of a national admiralty rule, when Congress has not spoken, will apply state wrongful death law, but only in a special set of circumstances, only when the owner of the vessel has invoked the protection of admiralty by initiating a special federal statutory proceeding to limit liability.

The congressional reports, the committee reports on DOHSA noted the narrowness of this holding.

They stated, and I quote,

"The right to affirmative action in the admiralty against ship or owner has never been sustained by the Supreme Court. "

And represented Igoe repeated this point during the floor debate.

The general understanding at the time, as this Court noted in its decision in Moragne, was that state law did not apply beyond state boundaries.

Insofar as deaths on the high seas was concerned, there simply was no existing state court jurisdiction, and there was no direct action for wrongful death under state law to be preserved.

Finally, floor debate on Representative Mann's amendment was repeatedly punctuated by the assertion made by several members of the House that adoption of the amendment would have no effect on the exclusivity of the new federal remedy on the high seas.

One may assume, indeed, one must assume that the amendment was adopted at least in part in reliance upon those representations.

Unidentified Justice: Has it been authoritatively decided whether or not a DOHSA cause of action can be brought in state courts as well as federal?

Mr. Jones: If by that you mean whether this Court has decided it, I don't think the Court has ever had occasion to, but I think it is generally understood that a cause of action can be maintained in state court.

We submit that viewed realistically, the adoption of Representative Mann's amendment did not represent a retreat from the expressly stated legislative purpose of providing a uniform and exclusive remedy for wrongful death on the high seas.

Now, the Plaintiffs argue that--

Unidentified Justice: Let me ask about the... what is the support for the statement that the remedy was to be exclusive?

Mr. Jones: --I'm referring to the committee reports on DOHSA.

Unidentified Justice: Is that the part you quote at page 22 of your brief?

You have a long quote there that I thought that was from a letter rather than the report itself.

That's what I thought.

Mr. Jones: Actually, the committee report consists of nothing but letters.

Unidentified Justice: So it is not really a statement written by the committee itself; it is something they put in the report that had been written by somebody who submitted information to the committee, is that right?

Mr. Jones: The committee reports really contain... really are nothing more than three letters, three or four letters, as I recall.

Unidentified Justice: And this is a quote from one of those letters?

Mr. Jones: That's correct.

Unidentified Justice: Is there anything that the committee itself wrote that supports the proposition that the remedy was to be exclusive there?

Mr. Jones: The committee really said nothing other than that these letters were the basis for its action.

Unidentified Justice: That plus whatever the colloquy is on that that has been quoted in some of the papers, and that doesn't really go to the exclusivity point, as I recall it.

Mr. Jones: Floor debate did not go to the act at large; it only was focusing on Section 7.

Section 7 I think was the only provision that was amended on the floor of the House.

Unidentified Justice: Going back to your original argument, if I may, for a moment, what... you said that if Section 7 were neutral and so forth.

Is it your position that if DOHSA had never been passed at all... let me ask it this way.

If DOHSA hat never been passed at all, what is your position as to the result in this case and Hamilton?

Mr. Jones: If DOHSA had never been passed at all, we would be left with the position that we were in in 1919 where the Supreme Court could either deny a remedy altogether, as it did in the Harrisburg, or it could recognize a general maritime remedy for wrongful death as it subsequently did in Moragne, and extend that remedy to the high seas as it decided it was precluded from doing in Higginbotham.

Or it could adjudicate on a case-by-case basis, determining whether in special circumstances it would give effect to state law in the absence of the federal remedy.

Unidentified Justice: But you would not say that there could not have been recognition of a state remedy if there had never been a DOHSA?

Mr. Jones: Oh, no, oh, no.

Our argument is that the existence of a national uniform admiralty rule precludes the parallel enforcement of state law unless Congress in fact has required admiralty courts to enforce state law.

Unidentified Justice: And in the absence of DOHSA, what would that uniform admiralty rule have been?

We don't know, do we?

Mr. Jones: Well, that would have been up to the Supreme Court to determine.

Unidentified Justice: Well, what about the... what about if there weren't a... if DOHSA wasn't on the books now after Moragne?

Mr. Jones: I assume this Court would extend Moragne to the high seas.

Unidentified Justice: And preclude state law?

Mr. Jones: I think that would preclude state law.

Unidentified Justice: Well, does it preclude state law in territorial waters now?

Mr. Jones: Two Courts of Appeals have so held.

This Court has never ruled on that.

Justice O'Connor: And Moragne apparently would permit the kind of recovery that is being sought here in territorial waters, as I understand it.

It would allow nonpecuniary loss recovery.

Mr. Jones: Under the subsequent decision in Godet, the Moragne remedy would allow nonpecuniary... recovery of certain nonpecuniary damages.

Justice O'Connor: So whatever result we reach results in some anomalies.

I mean, there is just no way to reconcile everything whichever way we go, is there?

Mr. Jones: That is correct.

That is what this Court recognized in its decision in Higginbotham where it pointed out that the result was one national rule for the territorial waters, and a slightly narrower national rule for the high seas.

The Court has explicitly identified that anomaly in Higginbotham.

Let me address one more point with respect to the wording of Section 7.

Plaintiffs point out that that wording before its amendment would have prohibited application of state law on the high seas by what they call negative implication.

If so, the amendment did nothing more than remove a negatively implied prohibition from one provision of the bill without substituting in its place a positive directive to enforce state law.

Consequently, even if the amendment could be portrayed as a retreat from an original intention of actually requiring federal exclusivity on the high seas, it was at most only a partial and tactical retreat to a posture of congressional neutrality.

If adoption of the amendment means anything at all with respect to the role of state law on the high seas, it means no more than that Congress, having been advised that the courts would hold the federal remedy to be exclusive, whether or not Section 7 was amended, decided simply to leave the matter to the courts without itself either prohibiting or requiring enforcement of state law.

Now, as I said earlier, if the matter is left to the courts, it is clear what the courts would decide.

The extension of a hodgepodge of differing and conflicting state laws under the high seas would make a mockery of the notion of maritime uniformity.

As Judge Jolly said in his somewhat reluctant concurring opinion below, application of state law would make a mess in more than a few cases.

It would make a mess.

Application of state law on the high seas would meet with no apparent limiting principle to constrain or define its applicability.

We would be faced with the prospect, the rather bizarre prospect, of Kansas law applying in the Persian Gulf or Arizona law applying on the North Sea.

Such extraterritorial applications of state law is patently anomalous, and even if, even if state law, the adoption of state law were limited to remedies, that would renew tensions and discrepancies that result from the necessity to accommodate state remedial statutes to exclusively federal maritime subsidy concepts, precisely the tensions and discrepancies that this Court tried to bring to an end in its decision in Moragne.

But in fact, the question of engrafting state remedies, of engrafting supplemental remedies onto DOHSA already has been decided, assuming that state law is not mandated by Congress because this Court in its decision in Higginbotham held that state law... I'm sorry, that DOHSA will not be supplemented or displaced even by a uniform, judge-made remedy.

That was the decision in Higginbotham, and the basis for that decision was that federal common law power of rulemaking permits federal courts to devise general maritime rules, would not be exercised when Congress already has provided a uniform maritime rule.

That reasoning applies here with even greater force because the borrowing of state law not only would displace DOHSA but introduce widespread disuniformity as well.

For these reasons, we submit that the governing principles of admiralty, including in particular the constitutional policy of maritime uniformity, preclude supplemental enforcement of state law.

Chief Justice Burger: Mr. Hanemann?

ORAL ARGUMENT OF CHARLES HANEMANN, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. Hanemann: Mr. Chief Justice, and may it please the Court:

I want to launch right into this language of Section 7 which, if you see where the legislative were coming from, is the farthest thing from neutral.

When this bill had been introduced before on numerous occasions, it contained language to the effect that in all cases of death on the high seas, admiralty courts shall have exclusive jurisdiction, and this shall be the exclusive remedy.

Those bills never passed.

They were up for years.

I have cited them in my brief, and they never passed.

Those who militated then for exclusive jurisdiction and an exclusive remedy didn't get away with it.

Justice Rehnquist: Mr. Hanemann, in Section 1 of DOHSA, it says the personal representative of the decedent may maintain a suit for damages in the district courts of the United States in admiralty, and as I glance through the statute here... I would be the first to admit I am not an admiralty lawyer... I don't see anything that seems to authorize a suit in state courts under DOHSA.

Mr. Hanemann: Section 1 is permissive, Justice Rehnquist.

It says may maintain, personal representatives may maintain.

The Constitution creates this federal system that we have, and the savings to suitors clause preserves the right to go to state courts, and this Court recognized in The Hamilton that state courts, state created remedies for wrongful death may be sued upon.

In the subsequent cases--

Unidentified Justice: Did The Hamilton involved the DOHSA?

Mr. Hanemann: --Oh, The Hamilton was 1907--

Unidentified Justice: Before the--

Mr. Hanemann: --Thirteen years before DOHSA.

Unidentified Justice: --So this Court has never held that a state court has jurisdiction over a DOHSA claim.

Mr. Hanemann: No, it has not, but to the best of my knowledge and research, neither has that position ever been advanced to you.

But to come back to Section 7 and what happened to it?

The unsuccessful bills sought to be exclusive just like the Petitioners would have the Court construe those today.

Then in the 1920 bill this language was offered to the House.

The provisions of Section 7, the provisions of any state statute giving or regulating rights of action or remedies for death shall not be affected by this act.

Now, the act that's before you stopped right there.

The one that was before the House went on to say

"as to causes of action accruing within the territorial limits within the state. "

as to causes of action accruing within the territorial waters of the state.

That would have resulted, perhaps, in a result such as the Petitioners argue for because if DOHSA doesn't affect remedies created by state law as to causes of action accruing within the territorial limits of any state, then maybe DOHSA does supplant and preempt state created remedies which, by reason of The Hamilton, would apply on the high seas.

But that's what Mr. Mann's amendment took out.

He took out

"as to causes of action accruing within the territorial limits of any state. "

So now it just says DOHSA won't affect state created remedies, period.

No longer is that savings clause limited to the territorial waters of the state.

That savings clause is all-inclusive.

Boiled down to its simplest terms, the Petitioners' position is that state death acts, which this Court once held in The Hamilton do afford a remedy on the high seas, no longer apply there because DOHSA has preempted them, but the very statute on which they... on which the Petitioner relies saves whatever force state statutes have, and you have already held in The Hamilton that state death acts do apply on the high seas.

Now, we can argue this case for the remainder of the hour, and we have briefed hundreds of pages, but that's what it boils down to.

The Petitioners say that the statute preempts state death remedies on the high seas, and we say the statute saves them.

Justice O'Connor: Mr. Hanemann, how do you account for the fact that other courts have agreed with the Petitioner and that scholarly writers on the subject have generally agreed with the Petitioner all these years?

Mr. Hanemann: I don't think they ever took a good look at the legislative history or Section 7, Justice O'Connor.

In the Nygaard decision out of the Ninth Circuit, which is the case with which the Tallentire decision, our case, conflicts, the Ninth Circuit didn't even cite Section 7.

There was a line of older cases, most exemplary of which is Wilson v. Transocean Airlines in which the District Court I think for the Southern District of New York did address the matter of Section 7 and called it simply an innocuous change in language.

I don't think it's an innocuous change in language.

I think that's a little shallow to approach this, and The Harrisburg was the law from 1874 until you decided the Moragne case, and everybody thought that The Harrisburg precluded a federal death action in admiralty, and you did not let that erroneous view preclude you from reaching a just decision in the Moragne case.

And I would not hold to the view that old error is good error.

Nor would I hold to the view that error is somehow sanctified by the universality of its acceptance, and I think this is a good opportunity for the Court to straighten out the error that has persisted if such it is.

However, the error has not been universal because we cited the Safir case and a number of other cases from the lower courts which hold the opposite view, Rairigh v. Erlbeck, etcetera, which hold the opposite view, and that is that Section 7 does indeed say the state created remedies on the high seas.

Mr. Jones' argument proceeds from the assumption, I think, that one federal statute in a field preempts all state action in the field.

Alexander Hamilton, writing in "The Federalist" certainly would not have shared that view.

According to Mr. Hamilton, federal law is exclusive only in three situations: first of all, where the Constitution in express terms grants an exclusive authority to the state.

That's not the... to the federal government, pardon me.

That certainly is not the case here.

The second case where the federal government... federal legislation, rather excludes state legislation, is where the Constitution expressly grants a power, though perhaps not explicitly exclusive to the federal government, and also says that the state shall not do it.

That is certainly not the case here.

The third situation is, according to Mr. Hamilton, where the Constitution granted an authority to the Union to which a similar authority in the states would be absolutely and totally contradictory and repugnant.

Let me remind you that Justice Charles Evans Hughes, writing in the case of Just v. Chambers said uniformity is required only when the legislation... when the essential features of an exclusive federal jurisdiction are involved, but as admiralty takes cognizance of maritime torts, there is no repugnancy to its characteristic features, either in permitting recovery for wrongful death or in allowing compensation for a wrong to the living to be obtained from a tortfeasor's estate.

Chief Justice Hughes echoed the very words that Mr. Hamilton used in Just v. Chambers with direct reference to a state death action applied on navigable waters.

Now, that... those were navigable waters of a state, I'll grant you, but it's perfectly consistent with what you did in The Hamilton, and if the application of state law on the high seas... rather, on the navigable waters of a state is not repugnant, then I see no conceptual reason why the application of state law on the high seas should be any different.

Justice O'Connor: Well, I suppose that state law applied to accidents on territorial waters has a more local flavor to it than the extension of the application of state law to accidents on the high seas, maybe hundreds or thousands of miles from shore.

Mr. Hanemann: Well, Justice O'Connor, that is not our case, and I don't presume to trace the outer limits of the effect of your decision in this case.

however, I would point out to you that if ever there was a case that is maritime but local, this is it because we have people living in Louisiana, working off Louisiana's coast on the Louisiana offshore platforms, and it is a very highly Louisiana case.

Justice O'Connor: Well, but if the accident with the same parties had occurred in the Gulf of Aqaba, I assume you would be making the same argument, wouldn't you?

Mr. Hanemann: I might be if the Louisiana connections were there like they are in this case, because you held in The Hamilton that a statute... and this is a quote from Justice Holmes... a statute giving damages, meaning a state statute, giving damages for death caused by a tort might be enforced in a state court even though the tort was committed at sea.

Now, at sea has a very broad reach, and I am only... I don't, I don't have any reservations about the applicability of state law in the waters overlying the shelf and perhaps in waters more distant than that.

But I really would not presume to trace just how far, whether it could go to the Gulf of Aqaba or some other place.

If the connections were there, though, I see no reason why they should not, nor did Congress, because Congress said that DOHSA will not affect them wherever they have effect, and we know from The Hamilton that they go at least as far as our case.

Unidentified Justice: Mr. Hanemann, in fact, in the next sentence in Justice Holmes' opinion, he says insofar as the objection is based on the admiralty clause, it would not seem to matter whether the accident happened near the shore or in mid ocean.

So he agrees with Justice O'Connor's proposition that the place isn't all that controlling.

Mr. Hanemann: And so do I.

It's just that I wouldn't presume to draw the... to try to trace the farthest reaches.

To me, if you can apply it four miles, if you can apply the state law four miles off the coast, there seems little conceptual reason why not to apply it 100 or 400 or five.

I don't retreat from that at all.

Now, Mr. Jones made reference to the Higginbotham case, and of course, we cannot escape reference to the Higginbotham case in this discussion.

Let me remind you that no one in the Higginbotham case contended that state law government that was a straight conflict between DOHSA and the general maritime death action announced in Moragne.

You held in the Higginbotham that DOHSA is the national admiralty rule and supplants Moragne, but you also said in Higginbotham... beg your pardon, in Moragne, in Moragne, DOHSA,

"does not by its own force abrogate available state remedies. "

So whatever the... why the people, why the plaintiffs in the Higginbotham case did not militate for the application of state law, I do not know, but the fact is that state law was not advanced by any party in the Higginbotham case, nor was Section 7 of DOHSA relied upon as saving stage law by any party in the Higginbotham case.

Mr.... the Petitioner further advances the proposition that any state... that any state remedy is automatically ousted when there is a federal statute on the point, and relies heavily on Jensen and Knickerbocker, the decisions in both of which were written around 1917, 1920 by Justice McReynolds and also Chelentis v. Luckenbach, which was written by Justice McReynolds.

Well, I don't think I have to remind the Court that as Justice Frankfurter said in Kossick, certainly no more decision in the Court's history has been progenitor of more lasting dissatisfaction and disharmony with a particular area of law than Southern Pacific Company v. Jensen.

It is easily one of the... Jensen and Knickerbocker are easily two of the most widely criticized decisions that this court has ever issues.

This Court as--

Unidentified Justice: But those cases were certainly the legal environment in which the DOHSA was passed, were they not?

Mr. Hanemann: --They were more or less in the same timeframe.

However, efforts to pass DOHSA as an exclusive bill had been going on since the turn of the century, about 1900, and every time it came up exclusive, it was voted down.

Unidentified Justice: But when DOHSA was finally passed, Southern Pacific v. Jensen was on the books as good law.

Mr. Hanemann: It was on the books, but if it was there as good law, it wasn't there for long because it was--

Unidentified Justice: Well, it doesn't matter whether it was there for long or not because DOHSA was passed at a particular moment in time.

Mr. Hanemann: --Yes.

DOHSA was passed in 1920, and Jensen was decided in 1917, but this Court has never applied Jensen or Knickerbocker to preclude the operation of any state statute except a state workmen's compensation statute, and even vis-a-vis state workmen's compensation statute, really, the very next chance you had to do so, you found a way for state workmen's compensation statutes even to apply on navigable waters, and that was Grant Smith-Porter v. Rohde.

So three, four, five years after Jensen, already you were letting state compensation, workmen's compensation statutes apply where Jensen, if you read it strictly, had said they would not.

And in many, many instances you have allowed state laws not dealing with workmen's compensation to apply.

Wrongful death has been applied... state wrongful death has been applied many times since the Jensen decision, Just v. Chambers, Western Fuel v. Garcia, many other cases.

You have let state lien laws apply on navigable waters, state laws for the partitions of ships, state laws on arbitration, state laws on maritime insurance, state unemployment insurance laws, state water pollution laws just recently here in Askew v. American Waterways Operators.

Unidentified Justice: May I ask this question, please?

Were all of the people on this helicopter citizens of Louisiana?

Mr. Hanemann: I cannot remember that.

The citizen... the pilot was a citizen of Florida, as I recall, and I know that some of the other people were citizens of Louisiana.

Unidentified Justice: How many people were on it?

Mr. Hanemann: As memory serves, it was either 12 or 13, and all were killed.

Unidentified Justice: Suppose each of the 13 had come from a different state and each state had different laws?

Would not the recovery by each person differ and perhaps widely, and would that be fair?

Mr. Hanemann: It would certainly be as fair as denying them recovery.

Unidentified Justice: It would be as fair as what?

Mr. Hanemann: It would certainly be as fair as denying them recovery for what the petitioner I think somewhat calls sentimental damages.

I don't think it is fair to deny people certain real damages even though they may have to do with sentiment, but to come back to your specific question, as Justice Brennan pointed out right in the Congress, as I recall, there was... these state wrongful death laws have been applied on navigable waters for many, many years, and there has never been any serious... there has never been any serious difficulty with them.

And if there were any difficulty, I think it would be nothing more than an accustomed exercise in conflicts of laws.

Most jurisdictions now favor a weighing of contexts.

Most courts are very familiar with that process, and the courts can do that, and the courts can reap substantial justice in all cases, I think, by a balancing and a weighing of contacts.

So yes, certainly there would be some differences, but in the Hamilton, too, the Court pointed out, Justice Holmes pointed out that there would be no lamentable lack of uniformity in applying state death actions on the high seas.

In Just v. Chambers, you said there would be no repugnancy to federal law in allowing state death actions to control, and to me, what's more repugnant to bona fide admiralty concepts is to deny these real damages, to--

Unidentified Justice: Are you suggesting there could be no difference in the damages recovered in the hypothetical I suggested for--

Mr. Hanemann: --Well--

Unidentified Justice: --Assume one state provided treble damages and the other state did not.

There would manifestly be a difference if both persons were killed and the same survivors are entitled to sue.

Mr. Hanemann: --Yes, there certainly could be a different measure of damages.

However, you surveyed the law in, as I recall, the Gaudet case, and you relied... you cited Speiser's work on wrongful death, and Speiser's work on wrongful death pointed out that across the country, as a matter of fact, a clear majority of the states allow for this type of law, and if there is one--

Unidentified Justice: You say the clear majority.

Mr. Hanemann: --That's what Speiser said, and that's what you said in writing, in the Gaudet decision.

Unidentified Justice: Yes.

Yes.

That's far less than all.

Mr. Hanemann: Yes, it's less than all.

But that--

Unidentified Justice: And some of the... if some of these people came from people that didn't provide for these kinds of damages, they wouldn't get them under your rule.

Mr. Hanemann: --They can fall back on DOHSA, and they might not get them.

If their states do not accord them... if their states do not accord them those kinds of damages, they do fall back on DOHSA, and I see DOHSA as a guaranteed minimum recovery allowable by federal law which operates even in the event that the states do not allow some sort of recovery.

Justice Rehnquist: In your view, is it a question of the domicile of the individual plaintiff?

Mr. Hanemann: I think no, sir, Justice Rehnquiest.

I don't think that's the sale determinant.

There's a whole body of laws which points out what the relevant contacts are for purposes of balancing contacts in a conflicts of law situation.

Justice Rehnquist: And so, in a case brought in Louisiana, the federal court sitting in Louisiana would apply Louisiana conflicts laws to decide whether a Florida plaintiff would recover under Florida law or, say, Louisiana law?

Mr. Hanemann: I think that's correct.

I think that the forum state is likely to apply its own... at least in Louisiana we would do that... the forum state would apply its conflict laws in order to arrive at the choice of laws, yes.

But I don't... once again, I don't think that's going to be as great a practical problem as the practical problem that results from the Petitioner's petition.

The Petitioner is spouting uniformity, but listen to how his uniformity works.

Picture the map of Louisiana, shaped like a boot, the bottom of the boot is the line between the state and the Gulf of Mexico.

Houma is down... Houma, Louisiana, where these people were heading, is down at the bottom about 20 miles inland, and there's an offshore platform way out there.

Picture four helicopters at the airport.

The first helicopter takes off, crashes within minutes after it takes off.

Those people get loss of love and affection or lost society.

The next one makes it out past the coast but not a marine league past the coast.

It crashes.

Those people get loss of society under your Moragne decision.

The third helicopter gets all the way out to the platform and crashes on the platform.

Those people get loss of love and affection--

Unidentified Justice: But under a different statute, isn't it?

Mr. Hanemann: --Same statute, Louisiana Article 2315.

But extended but a different statute.

Unidentified Justice: Precisely.

Mr. Hanemann: Precisely.

Unidentified Justice: It's... but the disuniformity is what I am pointing out.

Whereas the fourth helicopter, if it lands somewhere between the marine league and the platform in the sea, or crashes, by the Petitioners' position, those people get nothing for their loss of love and affection or loss of society.

Mr. Hanemann: Now--

Unidentified Justice: --Well, you left out one, if it blew up at the platform.

Mr. Hanemann: If it blew up at the platform--

Unidentified Justice: No, not the platform, in Houma.

Mr. Hanemann: --They would get loss of love and affection if it crashed right there.

Unidentified Justice: You left that one out.

I meant, while you're going to do it, why not do it all?

Mr. Hanemann: I missed the question, Mr. Justice.

Unidentified Justice: I say you were covering all the situations.

I just thought you would have covered that one, too.

Mr. Hanemann: I intended to, thank you.

Unidentified Justice: Yes.

Mr. Hanemann: But in all of the situations except the one, that is, between a marine league offshore and the platform itself, by the Petitioners' argument, there would be loss of love and affection and loss of society, and in the middle there, the big gap in the middle, there would be no recovery for that, whereas by our position you would get either loss of love and affection or loss of society in every one of those locations, whether it crashed at home, whether it crashed in the band less than one marine league of the coast, if it crashed on the high seas between that band and the platform, or if it crashed on the platform.

Now, that is uniform--

Unidentified Justice: Or 500 miles out.

Mr. Hanemann: --Pardon me?

Unidentified Justice: Or 500 miles out.

Mr. Hanemann: Or 500 miles out.

Or 500 miles out, yes, and I... I am not ashamed to hold that position because I think it is philosophically consistent with the notions of federal... of application of state law that Hamilton espoused in the Federal Papers, that this Court espoused in the case entitled The Hamilton, and with notions of fairness.

I don't think... and Justice Marshall pointed this out I think very aptly in his dissent in the Higginbotham case.

He pointed out, if you will recall, that there was--

Unidentified Justice: The dissent didn't carry then.

Do you think it will carry now?

Mr. Hanemann: --Well, Section... we never had Section 7 on our side in the Higgibotham case.

So I think maybe, maybe with Section 7 on our side, it will, but the notion is correct.

The notion is that... and I don't think anybody can argue with this... that there's a certain basic unfairness in allowing recovery to be determined... the measure of recovery to be determined by the mere fortuity of the geographical location when everything else is the same.

Now I want to close with just a brief parable which I think portrays the unfairness of the Petitioners' position.

Let us picture ourself in a land of plenty.

There's a little boy standing on the road starving.

A kind nobleman comes along and gives him a loaf of bread.

He's happy.

But right behind him comes the king.

The king takes half the loaf of bread away from him.

The child cries out.

But the king says don't cry, you're still better off than you were before.

So the king goes on a little farther and he sees many children with whole loaves of bread.

So the king has his soldiers go and take the half a loaf of bread away from each of the children with a whole loaf of bread, and the people ask the king why.

And the king says, because in my land I want uniformity.

So somebody points out to the king that when all of the children had whole loaves of bread there was uniformity, and the king answered, that's right, but the only uniformity that I like in my kingdom is the uniformity that comes from me.

And in a word, that is the Petitioners' position.

And I don't think that history is going to be any kinder with that position than they have been with Southern Pacific Company v. Jensen.

Chief Justice Burger: Do you have anything further, Mr. Jones?

ARGUMENT OF KEITH A. JONES, ESQ.

ON BEHALF OF PETITIONERS... REBUTTAL--

Mr. Jones: Yes, thank you, Mr. Chief Justice.

It seems to me that the Plaintiffs fail to recognize that admiralty law is different from conventional interstate commerce law.

State statute do not apply of their own force in admiralty, and preemption does not require a federal statute.

The decision in Chelentis, for example, illustrates this point.

Uniformity in Chelentis is provided by judge-made rules, not by a congressional prohibition, express or implied.

Decisions like Chelentis and Kossick, Pope & Talbot all stand for the proposition that the availability of a uniform national maritime rule itself precludes enforcement of state law.

There need be no congressional prohibition, express or implied.

Let me address a moment the question of The Hamilton again.

Mr. Justice Stevens read an extract from that opinion by Justice Holmes, and that opinion is divided into two parts, as I recall.

In the first part Justice Holmes established that state law is valid, that the state law in question was valid.

But then he went on to consider the question whether that law would be applied in admiralty, and one of the crucial considerations that he discusses in that connection was that this was a case brought in admiralty to limit liability.

It was a special federal statutory proceeding to limit liability, and The Hamilton does not stand Generally for the proposition that state wrongful death statutes could be enforced in admiralty in direct actions.

And that is what the congression... the committee reports pointed out.

Moreover, the first part of The Hamilton may well not have survived the decisions in Jensen and Chelentis that followed it by about ten years.

After those decisions, the Supreme Court confronted once again the question of whether a state wrongful death statute would be applied, this time in territorial waters.

This is the Garcia case.

And in that case, the Court said that because in territorial waters the event was maritime and local in character, state law could apply.

If The Hamilton had decided more generally that state wrongful death statutes applied on the high seas, there would have been no need for the maritime but local in character ruling of Garcia.

Moreover, DOHSA was enacted in the context of Jenson and Chelentis, and in that context, the members of the House recognized that the Supreme Court at that time would hold the federal rule to be exclusive no matter how Section 7 was amended.

With that in mind, Congress amended Section 7, leaving it to the courts under what it assumed to be the governing doctrine of Jensen and Chelentis, of the day.

At bottom, it seems to me that the Plaintiffs want to do away with admiralty as a special, separate federal jurisdiction.

They want to assimilate admiralty to the law of coastal states and the adjacent platforms.

But regardless of the merits of such a suggestion, it just wouldn't work.

There are enormous choice of law problems on the high seas.

Choice of law problems are obviously far more difficult there than in the territorial waters where an event actually occurs within the boundaries of an individual state.

This Court in Lauritzen v. Larsen listed seven factors that bear upon the choice of law in the high seas, even when it's only a matter of choosing which nation's law would apply.

If we were to extend the separate laws of 50 states on the high seas as well, the question of choice of law would be enormously complicated.

I have nothing further, Your Honor.

Chief Justice Burger: --Thank you, gentlemen.

The case is submitted.