MILES v. APEX MARINE CORP.

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Argument of Allain F. Hardin

Chief Justice Rehnquist: We'll hear argument now in No. 89-1158, Mercedel W. Miles v. Apex Marine Corporation.

Mr. Hardin.

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

In Moragne v. States Marine Lines this Court recognized the general maritime wrongful death cause of action.

In Sea-Land Services v. Gaudet this Court established the damages allowed thereunder.

In this case the Court has the opportunity to address and define the beneficiaries who may recover under this cause of action.

Additionally, the Court has the opportunity to define what damages are allowed under a general maritime survival action.

Unknown Speaker: xxx.

Mr. Hardin: Correct, Your Honor.

The facts of this case involve the death of a 24-year-old seaman who was horrendously killed off the coast of the State of Washington.

He was survived only by his parents.

There was no issue or wife.

Unseaworthiness was found as a matter of law, and Jones Act negligence was assessed.

The first issue that this Court must address is whether or not a dependency must be established by the parents before they have a claim for loss of society damages.

The second issue is whether or not an estate under a survival action has a claim for decedent's economic loss when not otherwise recovered.

The context of this case must be remembered because in Moragne what the Court did was to bring into the 20th century the maritime wrongful death cause of action.

What it has also done by that case is to foreclose State remedies in the maritime jurisdiction.

Before that wasn't the case.

And this takes on great importance when it comes to deaths that result in territorial waters, because State remedies no longer apply.

In fact, those have been foreclosed.

A case that is of significance in this area is Foremost v. Richardson, where it was held that if two pleasure boats in a collision on the Emite River in the State of Louisiana was held to fall within the maritime jurisdiction.

So that death cases on... in territorial waters, the damages are established by this Court.

Unknown Speaker: You're talking about a lot of different overlaps, Mr. Hardin, aren't you?

The Jones Act, the Death on the High Seas Act, the maritime law.

You're not suggesting that in this case the Court can straighten out all the edges?

Mr. Hardin: No, I think it's impossible, Your Honor, just given the contradictory nature of the various statutes.

The point I was trying to make is that now that there is a Federal wrongful death cause of action in the maritime law, State remedies no longer apply in that area.

And it takes... it is significant.

It is very significant, because in the old days when the Harrisburg was good law, state remedies would apply.

In this particular case we are dealing with a Jones Act seaman, and what I am trying to show, and the first issue I would like to address, is whether parents must establish financial dependency.

The Fifth Circuit says they must.

I submit that that is an incorrect decision, and the basis being first of all--

Unknown Speaker: This is in a wrongful death action?

Mr. Hardin: --Yes, Your Honor.

I am not speaking of the survival action at this point.

Unknown Speaker: Okay.

Well, I suppose we have to decide whether there is such a cause of action.

I think you are kind of jumping over a critical step.

Mr. Hardin: Your Honor, I... I am.

I was getting to the dependency issue first.

But to respond to your question, it's been universally recognized by the courts of appeals; the underlying courts have recognized it also.

Not to recognize it would be devastating to many claims, because when you are talking about nonseamen, you are talking about pain and suffering being done away with, medical expenses prior to death--

Unknown Speaker: Well, why should this Court create such a cause of action if Congress hasn't done so?

Well, what... what are you talking about?

Wrongful death action?

Mr. Hardin: --No, the question was directed to the survival action, and that was what I was addressing.

Congress has not spoken in this area, and that is correct.

But I think this Court is well aware of the authority it has within the admiralty jurisdiction, and it has exercised that jurisdiction before, for example in Moragne and in Gaudet.

To get to the point--

Unknown Speaker: And in Higginbotham.

Mr. Hardin: --And also in Higginbotham, Your Honor.

But to get to the point of the wrongful death on the statutory... that is on the statutory guides that are to be utilized, the point I am making here is that dependency does not have to be established in order to have a claim under DOHSA or under the Jones Act.

Dependency is an adjective, appears before next of kin and relatives.

It does not appear before parents.

And I think Congress had the intention of allowing parents to have a recovery even if they were not dependent.

For example, in this very case Mrs. Miles had an award of $7,800 even though she was not dependent.

The other--

Unknown Speaker: You are talking now about a wrongful death claim, not a survivor claim.

Mr. Hardin: --Correct, Your Honor.

I... I'm in the wrongful death area, not the survival action.

Unknown Speaker: And what is the statutory text you are appealing to now?

Mr. Hardin: Death on the High Seas Act.

Unknown Speaker: Where is it in your brief that you say parents are not--

Mr. Hardin: It's in the appendix, Your Honor.

Unknown Speaker: --Well, why don't you give me a page so I can look at the words?

Mr. Hardin: It's on page A-1, and the Jones Act is referred to on the subsequent pages, and it applies FELA, F-E-L-A.

Unknown Speaker: But where you said... you're relying on the act, on the language

"for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative? "

What language are you relying on--

Mr. Hardin: I am relying on that very language.

What has happened is the lower court has said in order to claim loss of society damages, dependency has to be established.

I represent the parents of a deceased seaman.

My point is that if we are to look to the statutes as a guide, as this Court has held, then you will see that dependency as an adjective only comes after parents.

Unknown Speaker: --You are not talking... you're not saying the Death on the High Seas Act covers your case?

Mr. Hardin: No, not at all.

Unknown Speaker: You are just saying by analogy.

Mr. Hardin: Not at all.

In fact, it has been specifically held in Gaudet the distinction, and in Higginbotham, that the distinction was made, this is territorial water claim as opposed to the death on the high seas claim.

Unknown Speaker: And the Jones Act does not allow loss of society damages for death resulting from negligence, isn't that right?

Mr. Hardin: It does not allow--

Unknown Speaker: It does not.

Mr. Hardin: --nonpecuniary damages for deaths caused by negligence of the ship owner.

That is correct, Your Honor.

Unknown Speaker: And if we were to confine that Gaudet case to its facts, I guess we wouldn't find any basis for liability here.

Mr. Hardin: But you would, Your Honor.

I'm saying that Gaudet, what it did was it recognized the damages of loss of society in the general maritime law.

That action applies to seamen on the unseaworthiness claim, as opposed to his Jones Act claim which comes on the law side of the court.

But I'd also like to point out as far as dependency, I would submit that it's inappropriate to use that as a requirement, since loss of society damages are nonfinancially based.

They don't arise from any financial connection with the decedent.

They are... they speak directly to the bonds that would take place between family members.

They exist--

Unknown Speaker: How much of a family bond is there between an emancipated seaman, 23 or 24 years old, and his adult parents?

Mr. Hardin: --There is some, Your Honor.

Unknown Speaker: Well, how much though?

It's not like having children at home.

Mr. Hardin: Well, if it's a matter to quantify, then that may very well go to the issue of damages, as to the amount, as to what is the relationship between that person and the decedent.

Unknown Speaker: Well, you... you might say that in a particular case one's great aunt was very dear to him, and there was a loss of society there.

But that doesn't mean you create a cause of action for the loss of society of your great aunt.

You draw the line based largely on, as a group is there... does there tend to be a significant loss of society here.

Mr. Hardin: Your Honor, I submit that there is a tremendous loss of society.

This is the youngest child of this lady.

There was a close bond that existed between the two.

When he came back to the city they would... he would stay there.

Your Honor, they are real damages.

I agree that a line has to be drawn, and I am not saying here to extend it to whoever you could make up or include as a person that would have some connection--

Unknown Speaker: What about brothers and sisters?

Mr. Hardin: --They would not be, unless they are dependent.

Because I am saying to apply the statutes, that is DOHSA and the Jones Act, as the guides.

If the brothers and sisters are nondependent, they would not qualify for loss of society damages.

However, parents don't have a dependency requirement.

And I am saying draw the line like Congress drew the line.

That is all I am asking.

I am not here for mothers-in-laws, or brother and... or nondependent brothers and sisters, or aunts and uncles.

In fact I have got a class that I view is more manageable than a dependency.

A mother-in-law could be dependent upon the deceased seaman, and she would have a claim for loss of society damages.

Unknown Speaker: Is it clearly established that nondependent parents may recover for loss of society under Death on the High Seas?

No.

Mr. Hardin: It is clearly established that they may not.

Unknown Speaker: All right.

Just like the Jones Act.

And the same with the Jones Act, correct?

Mr. Hardin: That is correct.

Unknown Speaker: All right.

Mr. Hardin: But there has always been a traditional separation of the general maritime remedies for seamen, and also the Jones Act claim under the law court on the other side.

Unknown Speaker: And yet you urge us to incorporate from the Jones Act by analogy.

You can't have it both ways.

Mr. Hardin: Well, that's the direction that the Court has given, Your Honor, that to use as a guide in formulating your general maritime remedies and damages, to use those that exist on the law side of the court.

And to use that as a guide, the line that is drawn is after parents when it comes to dependencies.

And I can't emphasize enough that I have the restrictive class, because to say that someone is dependent is to say well, it's based upon a financial relationship.

Verdicts are going to be unreasonable, inconsistent, and unfair if that is the criteria upon which loss of society damages are to be awarded.

Unknown Speaker: Well, Mr. Hardin, you can make a sympathetic argument on that point, but unless we're satisfied that loss of society damages can be awarded at all we don't get there.

Mr. Hardin: Your Honor--

Unknown Speaker: And I think that you have a much harder case on that question.

Mr. Hardin: --Your Honor, I think the point that you have... that you are bringing out is that the Jones Act has preempted the general maritime law.

That has specifically been held by this Court, for example in the American Export Lines v. Alvez, that it does not.

That they do not preempt.

That it is better to give the remedy than to foreclose it if there is no inflexible rules--

Unknown Speaker: Has this Court recognized such a cause of action in the circumstances here?

Mr. Hardin: --Not under these exact circumstances, Your Honor.

Unknown Speaker: No.

So you have to persuade us that we should.

Mr. Hardin: Right.

And the point I would make in response to that, Your Honor, is that this is a Jones Act claim on one hand, but it has always been the practice, and it has been what has been taking place in the lower courts, is that there is likewise a general maritime claim based upon unseaworthiness.

And I think the point has to be brought home this way.

The Court, in overruling the Harrisburg, addressed directly that they were applying this new cause of action to seamen.

The Harrisburg involved the death of a seaman in territorial waters.

And the respondents argue, well, then... well, no, in Moragne, by overruling the Harrisburg, only meant to apply to longshoremen and not to seamen.

But why overrule a case that dealt directly with that?

It just doesn't make sense, Your Honor, is what I am pointing out.

Unknown Speaker: Well, there is a wrongful death action, I suppose, isn't there?

We have recognized a wrongful death action--

Mr. Hardin: Yes, you have, Your Honor.

Unknown Speaker: --under the general maritime law.

Mr. Hardin: Yes, you have.

Unknown Speaker: And the court of appeals said well, we won't give you nonpecuniary loss because we think that we ought to hold the same as the Jones Act.

Mr. Hardin: They didn't hold that though.

They didn't... Your Honor, they did not address that issue.

What they said was I didn't show dependency.

Unknown Speaker: Was that we ought to be uniform.

They said we ought to have a uniform... if they... if you... didn't they take some guidance from the Jones Act?

Mr. Hardin: Yes they did.

They spoke in terms of the uniformity.

But--

Unknown Speaker: And DOHSA.

Mr. Hardin: --Yes.

But uniformity in this area cannot be held... cannot be had, given the decision in Higginbotham.

Unknown Speaker: And why would, why would there be, in the court of appeals' view, a recovery for loss of society if the parents were dependent?

Mr. Hardin: Because it... it's under the general maritime law.

That is where it is allowed.

That is Gaudet applying to seamen.

Unknown Speaker: Okay.

Mr. Hardin: Which is what I am arguing here, that it should be applied to seamen, and that it shouldn't be a rule of dependency.

Gaudet... bottom line on the Gaudet case is that in reality it is a seaman's case, even though it was a longshoreman, because it was based upon unseaworthiness.

Unknown Speaker: But... the facts of Gaudet were longshoreman.

Mr. Hardin: That's correct, Your Honor.

But--

Unknown Speaker: It was a 5 to 4 decision.

The Court is not likely to extend it.

Mr. Hardin: --I understand though that it would still be stare decisis as far as the Court is concerned, at least I am hopeful of that.

I can't say what the Court is going to do.

But I say the issue has already been decided.

It is an unseaworthiness claim.

The only reason the longshoreman has the unseaworthiness claim was because he was doing work of a seaman.

So it doesn't make sense not to apply it to seamen, because it was a seaman's remedy that was at issue there.

Unknown Speaker: The longshoreman couldn't have been under the... couldn't have recovered under the Jones Act.

Mr. Hardin: No, he could not.

But he could utilize territorial--

Unknown Speaker: Even if he was doing seamen's work.

Mr. Hardin: --That is correct.

But he could utilize State remedies.

And this... when the Court is fashioning this remedy in terms of the seaman, you must remember that it also applies to the nonseaman alike.

And what I am trying to emphasize is by not allowing, by having no nonpecuniary damages, that is, no loss of society, what the Court will end up doing if dependency is the requirement is for example the case I cited, Neal v. Barisich, which was upheld by the Fifth Circuit in an unpublished opinion.

We had a 19 year old seaman knocked off board a vessel by a collision; his body was found later.

And the only damages that were left in that case were funeral expenses and nothing more, because there was no dependency.

I don't think that's what the admiralty law is all about.

Take it or no--

Unknown Speaker: I don't understand what principle you are appealing to, that somebody has to be able to collect money when somebody wrongfully dies, no matter what?

I mean, if he has no children, no parents, we've got to find somebody to give money to?

Mr. Hardin: --Well, it goes back... in admiralty law it goes back to the old principle that the wrongdoer should not benefit from his own wrong.

That's the principle--

Unknown Speaker: But he shouldn't have to compensate any more than there have been actual damages incurred by that wrong, either.

And if a person has no dependents, the funeral expenses are the actual damages.

Mr. Hardin: --But if there is a loss of society damage that exists in fact--

Unknown Speaker: If there is such a thing.

Mr. Hardin: --why base it upon dependency?

That's not a good rule, that I would submit.

It's not a good rule.

Unknown Speaker: If you are urging loss of society as a reason why we can give compensation to a whole bunch of people that aren't getting it now, I mean, you know, that may appeal to some and not appeal to others.

Mr. Hardin: Your Honor, to bring home the point in the nonseaman area, there are cases... there is a situation where children, that is 17 through 19 years old, are killed by another pleasure boater, that is a 40-foot cigarette boat, and this is a real case, rakes over the top of the vessel.

Impact injuries instantly kill four children on board that vessel.

Under the law, if dependency is the requirement, because they were... clearly did not support their parents, the only damages that would be allowed are the funeral expenses.

State law at least allowed those type of damages, the nonpecuniary damages.

But this Court, by creating the wrongful death remedy, has taken those State remedies out.

Unknown Speaker: Mr. Hardin, can I just stop you right... have we held that, that there are no State remedies in territorial waters?

Mr. Hardin: Your Honor, you have held it in the language that was used in Moragne.

Part of the reason for Moragne was to do away with the conflicting State remedies.

Admiralty law was to be uniform.

The lower Federal courts have interpreted it that way, that you have done away with... it's the reversed Erie doctrine, is what it is.

State courts are required to apply the Federal--

Unknown Speaker: Is it uniformly held in the lower courts that there is no State cause... State wrongful death action in the territorial waters?

Mr. Hardin: --The case... it is uniformly held... all I know is the cases that have been decided.

In the Fifth Circuit, S.S. Helena specifically held that.

The case I cited, Truehart v. Blandon, specifically holds that.

Neal v. Barisich specifically holds that.

And I think the lower courts--

Unknown Speaker: Are they all Fifth Circuit cases?

Mr. Hardin: --Yes.

Unknown Speaker: I just wonder if that is critical to your argument.

I am just not sure it is.

Mr. Hardin: Well, it's not critical to the element of the argument.

I am just, I am trying to bring home the point of the effect of this ruling will have in the general maritime law.

It goes beyond just seamen.

It is the ship owner's position that the pendency was what was required to be shown, as per Gaudet, simply by the use of that term by this Court.

I would point out that in the dissent in Gaudet, there the organ for the Court said that we have yet to decide who the beneficiaries are under this cause of action.

So that Gaudet is not a case that establishes that only dependents can recover this item of damages.

And I have also cited to the Court Cohen v. Virginia, where the general expressions in one opinion do not necessarily control the very point when it comes to issue in another case.

The ship owner also argues that the Jones... that is that the Jones Act preempts.

And I pointed out that in the Harrisburg, that is definitely not the case because it overruled a seaman's case.

And more importantly, in Moragne the Court addressed the third anomaly.

And the third anomaly was that longshoremen, who were relying upon the unseaworthiness claim, which is a seaman's remedy, were granted a wrongful death cause of action by relying upon State remedies in territorial waters, where Jones Act seaman, because it preempted the state law, was not allowed a claim.

If a seaman died strictly from an unseaworthiness condition and not Jones Act negligence, then there would be no recovery in that case.

And the Court in Gaudet, when it was referring to Moragne about the three anomalies, said that Moragne ended these anomalies.

So clearly the Court was saying that the benefit was being provided to seamen.

The same thing is addressed in footnote 12 of Moragne, where it is clear from that--

Unknown Speaker: We were either saying that or we were mistaken.

Mr. Hardin: --It's your call.

Unknown Speaker: Well, we weren't holding that it ended the anomalies, if it in fact didn't.

I mean, that was our interpretation, I suppose, of what the effect of the earlier case was.

But that might have been... might have been an error.

I mean, we didn't report to be holding anything new in that case.

Mr. Hardin: I can only tell you what the Court said in Gaudet, saying that Moragne ended these anomalies.

Unknown Speaker: To me there are still some anomalies around.

I think today's argument... to convince me of it.

Mr. Hardin: Also, in American Export Lines v. Alvez, the issue of statutory preemption was addressed directly, and then it was... and clearly rejected.

The second issue in this case is whether or not an estate has a claim for a decedent's economic loss when not recovered by loss of support.

It's opposition that there is clearly a survival action under the general maritime law.

I am now on that part of it.

Your Honor, I would submit that what the Evich court in this instance was trying to do was to place back the seaman, the basic principle, to the position he would have been had he not been killed.

And by that I mean is that had he lived his normal life there would have been an estate at the end of that life that would have gone to his beneficiaries.

And that is all the Evich court has done, is put that person back where he was before, that there would have been an estate.

We are not talking about substantial damages.

We are talking about actually a small amount.

For example, in Muirhead, the case relied upon in Evich, the total award for a residual estate was $10,000, because it's net earnings offset by consumption to present value.

We are not talking about a significant item in damages.

Unknown Speaker: Well, you're going to tell us next, aren't you, that lost wages should be included?

Mr. Hardin: It forms an element of what was going to be generated by the estate.

But if the rule to be applied is as it was in Muirhead, then we are dealing with the residual estate, which is after consumption, which would have been recovered on a loss of support side.

And I should point out that in an unpublished opinion that decision was followed by the Ninth Circuit in Case No. 87-3984, Lasigne v. Bacon.

Your Honors, I would like to reserve the balance of my time.

Unknown Speaker: Very well, Mr. Hardin.

Mr. Gelpi, we'll hear now from you.

Argument of Gerard T. Gelpi

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

xxx said there was no recovery except for funeral expenses.

To answer the query of Justice Scalia, that was the proper result in that case.

Just because there's an accident or death doesn't automatically mean there is liability.

And just because there is liability doesn't automatically mean there is a person entitled to recover damages.

I was going to be a bit different in my approach to my argument, but there are some things I think I need to say first.

Moragne involved a longshoreman.

At that time a longshoreman had cause of action under State law if it provided him a remedy for unseaworthiness.

And Moragne gave the longshoreman... admittedly Moragne painted with a broad brush, but it was a longshoreman's case, and it gave the longshoreman the right to sue for unseaworthiness in the event of a death case.

Gaudet, some 4 years--

Unknown Speaker: Before you leave Moragne, when you say it painted with a broad brush, I take it you are saying that nothing in the opinion made it seem to turn on the fact the man was a longshoreman.

Mr. Gelpi: --I think there is some language in Moragne that has been seized upon... seized upon is too strong a word, Mr. Justice Brennan... Stevens, is too strong a word which has been interpreted by the lower courts to say that Moragne applied to seamen.

There is no case, to my knowledge, which was given a general maritime law wrongful death benefit, no Supreme Court case--

Unknown Speaker: Right.

Mr. Gelpi: --to a seaman.

Lindgren in 1930 said no, that is not what the Jones Act meant.

Gillespie, 34 years later, said no, that is not what the Jones Act meant.

And I suggest that the reasoning in Your Honors' opinion in Higginbotham and Justice O'Connor's opinion in Tallentire said where Congress has set out a scheme and has entered the field and has preempted the field... you all were both talking about Death on the High Seas Act in those cases.

Where Congress has entered the field and has preempted it, it has struck the balance for us.

It did not create in the Death on the High Seas Act a remedy which required and gave only pecuniary loss to encourage courts to expand or supplement that remedy.

Gaudet in 1974 was a 5 to 4 decision with a vigorous dissent.

It applied to a longshoreman.

Unknown Speaker: By the circuit justice of the Fifth Circuit.

Mr. Gelpi: Sir?

Unknown Speaker: The dissent was by the circuit justice for the Fifth Circuit.

Mr. Gelpi: Is that right?

Unknown Speaker: Yes.

Mr. Gelpi: But even if you apply Gaudet to seamen, I don't think we can extend it that far.

Clearly,--

Unknown Speaker: Wouldn't you have been surprised, be surprised though that the majority in Gaudet, five, or whatever it was, would have come out differently if a seaman had been injured?

Mr. Gelpi: --I think Congress enters the field for the seaman, and I think the answer is yes, Your Honor.

Alvez, an opinion cited by... by--

Unknown Speaker: You mean because of the Jones Act?

Mr. Gelpi: --Yes, sir.

In answer to--

Unknown Speaker: did you make this point in your brief, that there's no wrongful death action at all for the seaman?

Mr. Gelpi: --Yes, sir.

The query posed by Mr. Chief Justice, can we straighten all the edges, this is a very confused field.

Unknown Speaker: But except for the Jones Act, I would suppose that the majority would have come out the same way if it had been for a seaman, because the Jones Act was cited right in their face.

Mr. Gelpi: The Jones Act didn't find Gaudet--

Unknown Speaker: I know, I know.

But they have cited by analogy.

Why should the Jones Act... why should you come out differently than the Jones Act does.

Mr. Gelpi: --Because the Jones--

Unknown Speaker: That was the argument of the dissent.

Mr. Gelpi: --Yes, sir.

The Jones Act struck the balance, to use Mr. Justice Stevens' words, struck the balance.

And he was talking about the Death on the High Seas Act.

But it's a symbol of Federal statute created in... passed in 1920, and supplemented by the Federal Employers' Liability Act of 1908, as amended in 1910, to provide remedies for seamen.

Unknown Speaker: But how about in Moragne?

The same argument could have been made about the Jones Act sort of thing, and that didn't prevent the Court from recognizing a cause of action there.

Mr. Gelpi: Moragne did not deal with the Jones Act.

It dealt with... it was creating a wrongful death remedy for a longshoreman.

Unknown Speaker: Sure, but the same type of argument could have been made there, and the Court recognized a cause of action.

Mr. Gelpi: There would have been... I don't know that that argument was in fact made.

I don't read the opinion as overcoming that argument.

As I said before, I view the opinion as painted with a very broad brush, which I think has been narrowed by the wisdom of this Court in Higginbotham and Tallentire.

Alvez says the Jones Act doesn't regulate longshoremen that strictly.

Of course not.

The Jones Act doesn't regulate longshoremen at all.

It applies to seamen.

Now, it was mention of the third anomaly, and Justice Scalia commented on that a bit.

The third anomaly doesn't exist if we throw out Moragne, because from 1972 on the longshoremen, by the 1972 amendments of the Longshoremen and Harbor Workers Act, has no injury or death remedy for unseaworthiness.

But what this Court has the opportunity to do--

Unknown Speaker: He doesn't need it.

Mr. Gelpi: --Sir?

Unknown Speaker: Doesn't need it.

Mr. Gelpi: Well, whether he does or doesn't, he's got a compensation act.

With the damages he has to prove negligence.

So the anomaly does not exist if we... if we say that general maritime or wrongful death statute doesn't apply in the seaman's case, the true seaman's case.

What this Court can straighten the edges and make uniform the law as it applies to seamen, a particular class for which an act, the Jones Act of 1920, was passed.

The Jones Act was passed to overcome partially the Harrisburg and partially the OSCEOLA, which said the seaman has no cause of action for the negligence of a fellow servant, and no cause of action for the negligence of his employer.

The Jones Act said we are going to change that.

They did not see fit to change the Harrisburg rule to the extent that it allowed a cause of action for death based on unseaworthiness.

Unknown Speaker: Well, I guess all the lower courts have recognized a survival action, haven't they?

Can you think of any that haven't?

Mr. Gelpi: I don't think they have recognized it, except for Evich, in the case of the Jones Act seaman.

And Evich, as I discuss in the brief, we suggest is just a wrong decision.

Evich and the decision of Judge Beaks in Muirhead upon which Evich... Evich II, I'm talking about, treated as a DOHSA, death on the high seas case.

Evich was a seaman as I read the cases, including the original Berg v. Chevron case.

So there was no reason to supplement the Death on the High Seas Act, which provides no survival action.

Since Evich was a seaman, the Jones Act, through section 59 of the FELA, provides a survival action.

And that survival action, if I may discuss that for a moment now, has been interpreted by craft to be that which the decedent would have had available to him but for his death.

And the craft language of 1915 specifically addresses the point raised by petitioner, taking no notice of what he might have become or what he might have earned during his lifetime.

And that was a FELA case which applies to the Jones Act.

Unknown Speaker: Are you arguing that there should be no survival action in this case at all?

Mr. Gelpi: No general maritime law survival action available to the beneficiaries of the seaman.

Unknown Speaker: Well, the Fifth Circuit recognizes such though, doesn't it?

Mr. Gelpi: Not... not in a seaman's case, I don't think.

They disagree--

Unknown Speaker: What... what's involved in this case?

A seaman?

Mr. Gelpi: --This case, the seaman--

Unknown Speaker: I know, but the Fifth Circuit held that in a survival action you can't recover wages.

Mr. Gelpi: --Future lost wages.

But... but--

Unknown Speaker: Well, I know, but why did they get to that if there wasn't a survival action at all?

Mr. Gelpi: --Because they said the position of the petitioner in citing Evich v. Morris, they didn't agree with Evich v. Morris.

And that is where we have a split in the circuits.

The Ninth Circuit said, in that one decision, said that a general maritime law survival action exists which encompasses the future lost wages.

Unknown Speaker: Exactly.

But you don't need to reach that issue if there is no survival action at all.

Mr. Gelpi: I don't think there is in the case of a true seaman, Your Honor.

Unknown Speaker: Well, isn't there a true seaman here?

Mr. Gelpi: Yes, sir.

Unknown Speaker: Well, but the Fifth Circuit didn't hold that there is no survival action at all.

Mr. Gelpi: It didn't give him one.

They gave him the survival action for... they gave the mother, Mrs. Miles, a survival action for conscious pain and suffering under the Jones Act.

The Jones Act has a survival section brought in through the Death on the High Seas Act, section 59.

Unknown Speaker: And he sued under the Jones Act.

Mr. Gelpi: Yes, sir.

And he recovered a verdict, and that verdict was satisfied.

Unknown Speaker: And what was the verdict for?

Mr. Gelpi: Conscious pain and suffering, and loss of support.

Unknown Speaker: During his lifetime?

Mr. Gelpi: Yes, sir.

Unknown Speaker: But you are going farther than the Fifth Circuit.

I mean, they assume, as Justice White says, there is a survival action to recover that kind of damage.

You say, well, there isn't even that, if I read you--

Mr. Gelpi: There is certainly, Mr. Justice Stevens, there is certainly a survival action as provided by the Jones Act, and that is what the Fifth Circuit approved, and that is what we paid.

That part of the case is gone.

The Fifth Circuit said the survival action is under the Jones Act and doesn't contemplate loss of wages.

Unknown Speaker: --Well, that's right, that's right.

But now there's a claim... there's a claim that there is a survival action under the--

--Maritime law.

Mr. Gelpi: General maritime law.

Unknown Speaker: --general maritime law.

Counsel, here is what the Fifth Circuit said just on this point.

I just want to make it clear.

My understanding is that the Fifth Circuit did recognize under general maritime law a survival cause of action, not for the damages that we're discussing here.

Mr. Gelpi: That's correct.

I agree with you.

Unknown Speaker: And then, and Justice O'Connor was correct earlier when she said all of the circuits have agreed, that have addressed this point, that there is a such a survival cause of action for other kinds of damages, not these damages.

Mr. Gelpi: That is correct.

Unknown Speaker: All right.

But you are arguing there isn't one.

Mr. Gelpi: There is one as for a seaman, Your Honor.

Unknown Speaker: I know, but you're saying under the general maritime law there is none.

Mr. Gelpi: Not to a seaman, because his rights are set forth in the Jones Act.

Unknown Speaker: All right.

In this case there is no... under the maritime law he has no cause of action on a survival basis.

Mr. Gelpi: I think that is a correct reading.

Unknown Speaker: Then you are really asking for a greater relief than the Fifth Circuit gave you, and I'd guess you didn't cross-petition, did you?

Mr. Gelpi: On another issue on this.

We cross-petitioned on unseaworthiness as a matter of law.

Unknown Speaker: If we held that there was... there was no survival action under general maritime law in this case, would we do anything other than affirm the judgment of the court of appeals?

Mr. Gelpi: I think you would hold what Higginbotham suggested should be held, and what I think Tallentire did.

Yes, you would affirm it.

There... I think there are decisions which, and I... but I don't think Judge Rubin's decision was one, I think there are decisions where, and I can't quote one to you, Your Honor, where they may have said a Jones Act seaman... Evich v. Morris is a specific one where the Ninth Circuit said a Jones Act seaman has, in addition to whatever he has under the Jones Act, a general maritime law survival action.

Now, the future damages to... that are sought in this case are not survival damages, because they don't accrue to the decedent while he lived.

And as the language of Gaudet, which talked about survival versus wrongful death... in fact it said survival damages are those which the decedent could have recovered but for his death.

These are damages the estate... an inanimate, nondependent estate, I might add, which Judge Rubin found important, would occur... seek... because of his death.

So it is not the but for, it is because of.

The damages sought by the petitioner in this case are not given by any of the Federal statutes involved.

And I can't emphasize often enough how this Court has recognized, in 1978 and again in 1986, that where Congress has struck the balance it did not do so to encourage courses of supplement, specified items of recovery, and theories of recovery.

The decision in Evich v. Morris seems to me to be based on the rather inartfully expressed, I suggest, language that giving... give the estate these survival damages... these damages as survival, because if you don't you award a tort feasor for killing his victim rather than injuring him.

That smacks strongly of punitive damages.

It says so that you don't reward him, let's punish him.

There is somebody who is being punished in this case, as properly should have been.

Clifford Melrose is the murderer, and he is in jail.

The... the jury found--

Unknown Speaker: But we're talking about unseaworthiness generally, and it's recognized in the law of torts that compensation is in part to... in large part to ensure proper conduct on the part of employers.

That's hardly a novel principle.

Mr. Gelpi: --I'm glad Your Honor mentioned the word unseaworthiness, because unseaworthiness in this specific case was found to be liability without fault.

And I think it really strains reason to say where somebody is liable without fault, as Gaudet did and as Evich did, that you give him more damages than the Jones Act, which requires fault.

Congress considered the rights and remedies it wanted to give the seaman.

It passed the Jones Act to overcome some of the problems with the OSCEOLA and the Harrisburg.

That was in 1920.

In 1930 the United States Supreme Court in Lindgren considered whether the decedent beneficiaries had a cause of action under the unseaworthiness claim, and the Court said no.

That is not what Congress did.

34 years later Gillespie considered the same issue and said Congress hasn't amended the statute since then, it still means what it says.

To this date Congress has not amended the statute, despite Moragne.

Congress knows how to amend a statute when they want to.

They... in 1982 they limited the remedies available to Jones Act workers, or people who want to be Jones Act workers in the foreign oil fields, foreign nationals in foreign territorial waters.

The Death on the High Seas Act was amended in about 1980 or 1983 to extend the period of the limitations for 3 years rather than 2.

While it doesn't relate to seamen's rights, Congress acted in 1972 to amend the Longshore and Harbor Workers' Act to take away from Archery Gaudet and Edward Moragne and their beneficiaries.

After 1972, for accidents occurring after 1972, they don't have anymore unseaworthiness remedies.

So Congress knows how to act, and has acted.

The language of Gaudet, if... if we assume... and I am just about finished unless the Court has some more questions... if we assume that Gaudet for some reason should extend to seamen, and I submit earnestly it should not, and that the decision of this Court in Higginbotham, and while slightly different in Tallentire but the principles are the same, that Congress has entered the field for Jones Act--

Unknown Speaker: Again on this point, I just want to be sure I haven't lost track of the case, the Fifth Circuit in this case assumed that the cause of action was available to seamen?

Mr. Gelpi: --Yes, sir, it did.

Unknown Speaker: Assumed that both causes of action were available--

Mr. Gelpi: Yes, sir.

Unknown Speaker: --but did not allow the recovery in both of them.

Mr. Gelpi: Yes, it did.

Unknown Speaker: May I just ask... ask you your own view?

Do you think that the Moragne case preempted any State law causes of action death... for death, death actions in territorial waters?

Mr. Gelpi: It did for a longshoreman, because the Florida Supreme Court gave its opinion that the State death act did not provide a remedy based on unseaworthiness.

And it was, I suggest, to fill that vacuum to give [inaudible] Ella Moragne a remedy to collect for the death of her husband, who didn't have a State law remedy and had no unseaworthiness remedy under the Harrisburg, and had no Federal statute dealing with his remedies against tort feasors, who created that remedy.

And I think they painted with too broad a brush so that some of the district courts and appellate courts have implied... felt that it applied to seamen.

But I think that the language--

Unknown Speaker: Does the Florida case that you mentioned... I don't know, it's probably not cited in the briefs.

But the Florida case, the Florida Supreme Court held that the Federal cause of action prevented the State of Florida as a matter of preemption from having it State law--

Mr. Gelpi: --No, sir.

Florida was... Moragne... Mrs. Moragne sued under the Florida death statute.

Unknown Speaker: --Right.

Mr. Gelpi: And the district court or the court of appeals, and I don't remember which, but it is discussed in the Moragne opinion, certified to the Florida State Supreme Court the question of whether its wrongful death statute encompassed an unseaworthiness remedy.

And the answer was no.

Unknown Speaker: The answer was no, but that was a matter of State law.

But my question... it seems to be everybody understands this except me.

But... but I'm trying to--

Mr. Gelpi: A lot of people don't understand this whole field.

It's very confusing, Your Honor.

Unknown Speaker: --Well, but it's a simple proposition.

The question I am uncertain about, and your opponent seemed to be certain, is that did Moragne have the effect, because it held a maritime cause of action in territorial waters for the... death in territorial waters existed, did that preempt any State attempt to create a State cause of action for death in territorial waters?

Mr. Gelpi: I would think it did for longshoremen, because that's the class of claim that it dealt with.

Unknown Speaker: You think it did, but it really hasn't been... has it been decided, do you know?

Mr. Gelpi: I am not aware of anything.

Unknown Speaker: Okay.

Mr. Gelpi: And there is no court saying that Moragne applies to a seaman, no supreme court saying that.

At the times the issue of a Jones Act seaman's rights to recover for unseaworthiness in a death case have been before this Court in Lindgren and Gillespie, and they said no.

General maritime law survival statute was in Cortes, and they said no, the Jones Act covers it.

And I think the opinions in Higginbotham and Tallentire soundly state the principle why those old decisions, someone said hoary but... but valid, are valid decisions.

Unknown Speaker: But haven't all the lower courts for 20 years read Moragne as indicating there is a general maritime wrongful death act for seamen?

Mr. Gelpi: I wouldn't agree all, but a lot of them have.

Unknown Speaker: Oh, I think pretty... you'd be very hard pressed to find any that haven't.

Mr. Gelpi: The ones in the Fifth Circuit have.

I've had that issue before.

But I think Your Honor's reasoning in Tallentire v.... Offshore Logistics v. Tallentire, and Justice Stevens' reasoning in Higginbotham, while they dealt with Death on the High Seas Act, would apply equally if not more so with respect to the Jones Act, which is to take care of seamen wherever they are.

It was remedial legislation passed to take care of seamen, and to protect them and their dependents.

Dependency is required in the Death on the High Seas Act; pecuniary loss is required.

I suggest that--

Unknown Speaker: But you know, it's entirely consistent with that... of course, they should... they are intended to take care of seamen wherever they are, but they do not necessarily foreclose other remedies that may be provided to seamen by either other statutes, maritime law, State law, whatever it is.

I mean, the fact that it was a general protection for seamen is not quite the same as saying it's the only protection seamen may get, which is what you're arguing, as I understand you.

Mr. Gelpi: --Yes, sir, it is.

And I would adopt your reasoning in Higginbotham, Your Honor, which applied to say that there is no general maritime law remedy available to someone who is subject to Death on the High Seas Act.

Why is that given any more deference than the Jones Act, which is for a specific class of beneficiaries?

Now, the... I'm almost finished, obviously, unless the Court has anymore questions.

A couple more points I would like to make.

If we have a loss-of-society remedy available, and I strongly suggest that the Jones Act precludes that, Moragne said we do not decide who the beneficiary is and we do not decide the remedies.

That is grist for the mills of the lower courts.

But the practical difficulties of deciding what the class of beneficiaries is something that will have to be done.

Gaudet, whether I like the decision or not, whether it applies to seamen or not, used the words "dependent", "dependent upon" so many times that I can't believe Justice Brennan meant anything but dependency as we understand it.

If you have no more questions, I will sit down.

Thank you.

Unknown Speaker: Thank you, Mr. Gelpi.

Mr. Hardin, you have 8 minutes remaining.

Rebuttal of Allain F. Hardin

Mr. Hardin: Justice Stevens, I would only point you to a case, Fifth Circuit, matter of S.S. Helena, 529 F. 2d 744, where it specifically held that a State wrongful death statute was preempted by the Moragne cause of action.

Also in Truehart they referred to a Supreme Court case, East River Steamship, found in 476 U.S.--

What I would respond as far as the loss-of-society damage claim is that the lower courts have in fact recognized a seaman's claim for this item of damages.

It is clearly recognized for injuries.

What we are asking is that it be recognized certainly for wrongful deaths under the general maritime law.

Even this defendant did not raise that issue in the lower court.

It wasn't an issue.

The only issue was dependency, whether or not dependency had to be established before loss of society damages could be had.

Also, the respondent relies upon Gillespie and Lindgren, but the commentators have all pointed out that those cases have been overruled by Moragne through the... the wording used in the language there.

The commentators clearly recognize that.

We as practitioners have recognized it, because we always, when we are dealing with an admiralty case, is link up the general maritime claim on the admiralty side of the court with the Jones Act claim.

The Jones Act was passed in order to expand seamen's remedies, not to limit them.

It certainly wasn't meant by Congress to do away with the general maritime causes of action that a seaman has under that area of the law.

This Court recognizes, no doubt, that seamen are the wards of this Court, that it is better to give the remedy--

Unknown Speaker: Well, now, Mr. Hardin, that statement appears in some cases, that seamen are wards of the court, but that dates from centuries ago, when seamen really were in a tough position.

They have unions now, they make good money.

Don't you think that is a little bit language of the past?

Mr. Hardin: --Your Honor, I disagree.

I respectfully disagree.

A seaman has to go out.

He is under the command of the master at all times that he is on the vessel.

He's subjected to wherever that vessel goes, wherever the captain sends it.

He is subjected to the hazards of the sea, that is the machinery and all of the equipment that is utilized there.

It's not a rule that should be done away with, or a viewpoint that should be done away with.

They are still under the orders of the captain and must do what they are told.

Unknown Speaker: Well, certainly, but that doesn't necessarily mean hardship.

There are statutes that limit what the... limit what the captain can do to them.

Mr. Hardin: Well, they can't walk away from the vessel, Your Honor.

They cannot, without being charged with some criminal conduct that actually the captain has the right to charge them with, on their own.

Unknown Speaker: Maybe they are wards of the captain.

Mr. Hardin: Well, they are wards... in that sense they are, because I think that is what the court is trying to do by saying that, is to impose a burden upon the captain to watch these men.

And that is exactly what the court has done by saying... by stating that.

Unknown Speaker: Do you ever consider the union, the union and the captain?

Does the union run it or does the captain run it?

Mr. Hardin: The captain runs it, Your Honor.

Unknown Speaker: You want to bet?

[Laughter]

Mr. Hardin: Well, when that vessel out there... when that vessel is out there it is the captain that operates the vessel, Your Honor.

Unknown Speaker: xxx.

Mr. Hardin: Well, actually it is interesting because they are saying there is no general maritime cause of action, yet Justice... Judge Rubin recognized that they had a cause of action under general maritime law against the union, despite all of the congressional acts dealing with unions.

And that didn't preempt.

And certainly the Jones Act and DOHSA don't preempt as far as the general maritime claims are concerned.

As far as the estate's claim, I think it's important to recognize that those damages place that estate back to where it would have been.

And what Evich court was saying was going back to the old common law principle that the wrongdoer does not benefit from his wrong.

And for that reason those damages should be allowed.

It may be a peculiar item of damages, but in... under the admiralty law there are other peculiar items.

There is limitation of liability.

There is general average.

There are rules in the admiralty courts that certainly are unusual, and there should be no reason why this element of damages should not be allowed under a survival action, especially given the interpretation that it is better to give the remedy than to deny it, and the humane and generous character of the admiralty law that has long been recognized by this Court.

If there's no further questions, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Hardin.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 89-1158, Miles versus Apex Marine Corporation will be announced by Justice O'Connor.

Argument of Justice O'Connor

Mr. O'Connor: This case comes to us on writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

In the unanimous opinion filed today, we address some questions concerning recovery under general maritime law following the wrongful death of a seaman.

We began by reaffirming the rule announced in Moragne versus State Marine lines that there is a general maritime cause of action for wrongful death.

In defining the scope of recovery, we are guided by the principle that a Federal Court in the exercise of its admiralty powers is not free to expand remedies beyond the well-considered limitations imposed by Congress through statute.

We hold that a beneficiary may not recover loss of society damages in an action for the wrongful death of a seaman.

General maritime law is thus, rendered uniform within the system of recovery for wrongful death that Congress created in the Jones Act and in the Death of the High Seas Act.

We also hold that a seaman's estate may not recover in a general maritime survival action for future earnings loss because of the seaman's death.

This rule is consistent with the Jones Act in which Congress precluded recovery for lost future earnings in survival.

The judgment of the Court of Appeals is affirmed.

Justice Souter took no part in the consideration or decision of this case.