Potter Stewart

“ Far different is the case when a State purports, as here, to impose a duty which under federal law a person does not bear. Then it can hardly be said that the State is not seeking to regulate conduct within federal maritime jurisdiction. The very purpose of a statute like the one here invoked is to induce those to whom it applies to take the precautions required by it. ”

“ Thus, where the duty imposed by a state death act is no greater than that already existing under federal law, the application of the statute is solely, or nearly so, a reaction to strong, localized state interests, and there is no real encroachment on federal interests. ”

“ Liability was asserted under the general wrongful death statute of Oregon, [2] as well as under another statute of that State, the Employers' Liability Law, [3] which also creates a right to recover for death under certain circumstances.
The wrongful death statute permits recovery for death 'caused by the wrongful act or omission of another,' limits liability to $20,000, and makes the decedent's contributory negligence an absolute bar to recovery. [4] In the limited area where the Employers' Liability Law applies, the road to recovery in a death action is considerably easier. ”

“ See The Tungus, supra, 358 U.S. at pages 592-593, 79 S.Ct. at pages 506 507. When federal law permits the application of state death acts, those on whom the state statute confers a right of action may escape the harsh consequences of that rule. Those whom the state law has declined to benefit are left as they were. Certainly we should not, in the name of 'evenhandedness,' permit a State to exceed constitutional limitations merely because in some instances it may have chosen not to do all it might under the Constitution. ”

“ Although admiralty law itself confers no right of action for wrongful death, The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, yet 'where death * * * results from a maritime tort committed on navigable waters within a state whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given.' Western Fuel Co. ”

“ It is surely fallacious to reason that, because the principle of the supremacy of federal maritime law has been held not to bar a right of action for death caused by a defendant's failure to take reasonable precautions to avoid exposing those to whom the duty is owed to an undue risk of harm, it follows that such principle does not bar a right of action for death caused by failure to 'use every device, care and precaution which it is practicable to use,' Ore.Rev.Stat. ”

“ Where tortious conduct causes death, the decision of a State to provide a right of action in favor of the victim's estate or beneficiaries represents a response to considerations peculiarly within traditional state competence: providing for the victim's family, and preventing pauperism by shifting what would otherwise be a public responsibility to those who committed the wrong. ”

“ Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239, however, demonstrates the pervasive scope given to the same principle of federal supremacy in the application of that Act. There a State was denied power, by characterizing the matter as 'procedural,' to apply its own rules to the question of burden of proof of fraud in the obtaining of a release from an injured seaman. Rather the state court was required to apply the rule adopted by federal maritime law. The case thus manifests the continued vitality of the supremacy principle in this area. ”

“ Put another way, an action for wrongful death is 'local' although, had the victim lived, his action for damages would, by reason of the nature of his activities, not have been 'local.' Thus, it is some characteristic of a wrongful death action itself which permits application of state law.↑ The decision was affirmed as to this ground sub nom. ”

“ We are concerned with constitutional adjudication, not with reaching particular results in given cases. What was said last Term in deciding The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, is controlling here:
'The policy expressed by a State Legislature in enacting a wrongful death statute is not merely that death shall give rise to a right of recovery, nor even that tortious conduct resulting in death shall be actionable, but that damages shall be recoverable when conduct of a particular kind results in death. It is incumbent upon a court enforcing that policy to enforce it all ”

“ But there is a 'void' only in the sense that there is an absence of a right of action in such cases; admiralty does not lack a rule on the subject. It has also been suggested that the Court permits the application of state death acts because it regards such statutes as wiser in this respect than maritime law, although it deems itself unable to alter the disfavored federal rule. ”

“ It is suggested that a contrary decision will lack 'evenhandedness,' apparently for the reason that, since those invoking state death statutes must sometimes bear the burden of comparatively unfavorable provisions, it is only fair that, when more favorable provisions obtain, they be able to enjoy the benefits of such rules. ”

“ They believe that as long as the view of the law represented by that ruling prevails in the Court, it should be applied evenhandedly, despite the contrary views of some of those originally joining it that state law is the measure of recovery when it helps the defendant, as in Tungus, and is not the measure of recovery when it militates against the defendant as it does here. ”

“ Larson then dispatched a group of employees to the area in a tug-and-barge unit. Graham was a member of this working party. Approaching the dam, the tug and barge veered and struck a pier, staving a hole in the barge. ”