William J. Brennan, Jr.

“ The Court's reasoning that the Death on the High Seas Act is somehow dispositive of the question presented today appears to me to continue its confusion between the rights and duties of the parties and the remedial pattern to be followed in enforcing them. No one is contending that the state statutes are to be given no operation in this area; they are an important remedial incident of the right that respondent seeks to assert here. ”

“ Though the individual statutes vary in terminology and to an extent in concept, all the States have wrongful death acts-acts which provide remedies to a decedent's estate, or to certain specified beneficiaries, for the harm done on account of the tortious killing of the decedent. While the course of development of the common law has brought it about that this remedy has always been embodied in a statutory enactment, the existence of such a remedy is now a basic premise of the law of torts administered throughout the country. ”

“ My view is that it is plain that in enforcing the related duty imposed by the obligation not negligently to inflict harm the federal courts must look to state Wrongful Death Acts in the same light as I have indicated it is appropriate to look at them in enforcing the duty to maintain a seaworthy vessel. The basis for the holding that New Jersey law applies is the Court's acceptance of a distinction in primary legal duties in respect to maritime accidents causing fatal as opposed to nonfatal injuries. ”

“ And so they do, in the sense that they give remedies where frequently none existed before, in favor of classes of persons potentially different from the distributees of a decedent's estate, and in the large to an extent designed to furnish redress for the death. And it is further true that not every tort duty imposed by a particular State's law may be afforded a remedy by them. ”

“ The most readily available limitations period for an action making use of a state Wrongful Death Act was the period stated therein, and the Court relied on it rather than the admiralty rule of laches. ”

“ The Court's anomalous result that different systems of law govern in determining the tortious character of conduct, depending on whether it kills or merely injures its victim, is a conscious choice of a nonuniform solution on an essential matter, and as such contrary to one of the basic principles of admiralty law. ”

“ Petitioner contends that, on the respondent's negligence claim, the Court of Appeals improperly applied federal law to the determination of the question whether a duty to furnish a reasonably safe place to work was owed the decedent by the respondent vessel and its owner. On this aspect of the case, the Court of Appeals, citing both New Jersey and federal cases, indicated that such a duty existed and that it would have been tortious for the respondent negligently to have failed to provide a safe place. ”

“ No one would doubt that the federal law gives rise to the substantive standards by which the conduct of the parties here involved would have been judged if Skovgaard's injuries had not been fatal. The question is whether his rights, and those of his representatives in respect to the conduct that injured and killed him, remain rooted in federal law here, where the suit is for damages for his death. ”

“ The New York Court of Appeals held that the State's Wrongful Death Statute, Decedent Estate Law, § 130, afforded only an appropriate remedy for breaches of duties which were to be recognized as essentially federal in their source and uniform in their application: ' (W) e must look to the decisions of the Federal courts to define the liabilities of shipowners for maritime torts, leaving out of consideration decisions of our own courts or statutes of the State which conflict with the rules of liability established in the Federal courts.' Riley v. ”

“ This responsibility places on this Court the duty of assuring that the product of the effort be coherent and rational. Admiralty law is an area where flexibility and creativity have been demonstrated in accomplishing this. Today the Court announces the strange principle that the substantive rules of law governing human conduct in regard to maritime torts vary in their origin depending on whether the conduct gives rise to a fatal or a nonfatal injury. ”

“ It offers no guide for any conclusion as to what substantive law is to apply under the state acts in situations where federally created rights and duties would have prevailed had the injury not been fatal. The only concrete examples of what the Congress was interested in saving to the States given on the floor of the House were the jurisdiction of the state courts, which was dwelt on at length, 59 Cong.Rec. 4484-4485, and the maintenance of the state scheme of beneficiaries, ibid., which is not challenged here. ”