John Marshall Harlan II

“ The third, and assertedly the 'strangest' anomaly is that a true seaman-that is, a member of a ship's company, covered by the Jones Act-is provided no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, to whom the duty of seaworthiness was extended only because he performs work traditionally done by seamen, does have such a remedy when allowed by a state statute. ”

“ Both the Death on the High Seas Act and the numerous state wrongful-death acts have been implemented with success for decades. The experience thus built up counsels that a suit for wrongful death raises no problems unlike those that have long been grist for the judicial mill.
In sum, in contrast to the torrent of difficult litigation that has swirled about The Harrisburg, The Tungus, which followed upon it, and the problems of federal-state accommodation they occasioned, the recognition of a remedy for wrongful death under general maritime law can be expected to bring more placid waters. ”

“ In many cases the scope of a statute may reflect nothing more than the dimensions of the particular problem that came to the attention of the legislature, inviting the conclusion that the legislative policy is equally applicable to other situations in which the mischief is identical. This conclusion is reinforced where there exists not one enactment but a course of legislation dealing with a series of situations, and where the generality of the underlying principle is attested by the legislation of other jurisdictions. ”

“ Justice Holmes did 45 years ago, that the work of the legislatures has made the allowance of recovery for wrongful death the general rule of American law, and its denial the exception. Where death is caused by the breach of a duty imposed by federal maritime law, Congress has established a policy favoring recovery in the absence of a legislative direction to except a particular class of cases. ”

“ Lord Atkin concluded that, while the doctrine barred recognition of a claim in the dependents for the wrongful death of a person, it did not bar recognition of a common-law claim in the decedent himself for 'loss of expectation of life'-a claim that vested in the person in the interval between the injury and death, and thereupon passed, with the aid of a survival statute, to the representative of his estate. ”

“ The only one of these statutes that applies not just to a class of workers but to any 'person,' and that bases liability on conduct violative of general maritime law, is the Death on the High Seas Act. [23] The borrowing of its schedule of beneficiaries, argues the United States, will not only effectuate the expressed congressional preferences in this area but will also promote uniformity by ensuring that the beneficiaries will be the same for identical torts, rather than varying with the employment status of the decedent. ”

“ The United States, participating as amicus curiae, contended at oral argument that these statutes, if construed to forbid recognition of a general maritime remedy for wrongful death within territorial waters, would perpetuate three anomalies of present law. The first of these is simply the discrepancy produced whenever the rule of The Harrisburg holds sway: within territorial waters, identical conduct violating federal law (here the furnishing of an unseaworthy vessel) produces liability if the victim is merely injured, but frequently not if he is killed. ”

“ If we found from the legislative history that Congress imposed exclusive jurisdiction because of a desire to avoid the presentation of wrongful-death claims to juries, that might support an inference that Congress meant to forbid nonstatutory maritime actions for wrongful death, which might come before state or federal juries. ”

“ That action cannot be read as an instruction to the federal courts that deaths in territorial waters, caused by breaches of the evolving duty of seaworthiness, must be damnum absque injuria unless the States expand their remedies to match the scope of the federal duty. ”

“ Further, although the Longshoremen's and Harbor Workers' Compensation Act is applicable to longshoremen such as petitioner's late husband, its principles of recovery are wholly foreign to those of general maritime law like most workmen's compensation laws, it deals only with the responsibilities of employers for death or injury to their employees, and provides standardized amounts of compensation regardless of fault on the part of the employer. ”

“ Respondents argue that overruling The Harrisburg will necessitate a long course of decisions to spell out the elements of the new 'cause of action.' We believe these fears are exaggerated, because our decision does not require the fashioning of a whole new body of federal law, but merely removes a bar to access to the existing general maritime law. In most respects the law applied in personal-injury cases will answer all questions that arise in death cases.
Respondents argue, for example, that a statute of limitations must be devised or 'borrowed' for the new wrongful-death claim. ”

“ Our recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies, removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts. ”

“ We do not regard the rule of The Harrisburg as a closely arguable proposition-it rested on a most dubious foundation when announced, has become an increasingly unjustifiable anomaly as the law over the years has left it behind, and, in conjunction with its corollary, The Tungus, has produced litigation-spawning confusion in an area that should be easily susceptible of more workable solutions. ”

“ It is true that the harms to be assuaged are not identical in the two cases: in the case of mere injury, the person physically harmed is made whole for his harm, while in the case of death, those closest to him-usually spouse and children-seek to recover for their total loss of one on whom they depended. ”

“ That opinion did not cite authority, or give supporting reasoning, or refer to the felony-merger doctrine in announcing that ' (i) n a Civil court, the death of a human being could not be complained of as an injury.' Ibid. Nor had the felony-merger doctrine seemingly been cited as the basis for the denial of recovery in any of the other reported wrongful-death cases since the earliest ones, in the 17th century. ”

“ Very weighty considerations underlie the principle that courts should not lightly overrule past decisions. Among these are the desirability that the law furnish a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise ”

“ Likewise, the remedy under general maritime law that will be made available by our overruling today of The Harrisburg seems to be beyond the preclusive effect of the Jones Act as interpreted in Gillespie. The existence of a maritime remedy for deaths of seamen in territorial waters will further, rather than hinder, 'uniformity in the exercise of admiralty jurisdiction' ”

“ States Marine removed the case to the Federal District Court for the Middle District of Florida on the basis of diversity of citizenship, see 28 U.S.C. §§ 1332, 1441, and there filed a third-party complaint against respondent Gulf Florida Terminal Company, the decedent's employer, asserting that Gulf had contracted to perform stevedoring services on the vessel in a workmanlike manner and that any negligence or unseaworthiness causing the accident resulted from Gulf's operations. ”

“ Throughout the period of this adoption, culminating in this Court's decision in Brame, the courts failed to produce any satisfactory justification for applying the rule in this country.
Some courts explained that their holdings were prompted by an asserted difficulty in computation of damages for wrongful death or by a 'repugnance * * * to setting a price upon human life,' E.g., Connecticut Mut. Life Ins. ”

“ These benefits are made exclusive of any other liability for employers who comply with the Act. The Act does not, however, affect the longshoreman's remedies against persons other than his employer, such as a shipowner, and therefore does not bear on the problem before us except perhaps to serve as yet another example of congressional action to allow recovery for death in circumstances where recovery is allowed for nonfatal injuries.↑ A joint contributor to this last situation, in conjunction with the rule of The Harrisburg, is the decision in Gillespie v. ”

“ Cf. Hill, The Law-Making Power of the Federal Courts: Constitutional Preemption, 67 Col.L.Rev. 1024 (1967) ; Note, The Federal Common Law, 82 Harv.L.Rev. 1512, 1523-1526 (1969) .↑ Respondents purport to find such a preclusive intent in two other federal statutes in related areas, the National Parks Act, 16 U.S.C. § 457, and the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1343. ”