Ellen Emerson v. Holloway Concrete Products Company, Inc.

was such one that other of the TUTTLE, Before JONES operated be two batteries but in BROWN, Judges. Circuit operation normal both batteries were not attempted in use at one time. Ross JONES, Judge. Circuit unsuccessfully to start motor with appellee, Holloway Concrete batteries. He then Prod- threw one Company, Inc., ucts battery will herein which cut that be refer- switch out cut Holloway. engaged red It in. It was too the other also weak in the guilty any gross concluded or wanton then start the motor. He together respect Having with found, so hooked Emerson. should both batteries engine running. matter get This was the court determined as jumper of law practice claim of Emerson Mrs. an unusual purpose. appeal kept been This for that established. on board wire was Williamson, urged appeal knew, followed. On it is did R^ss op- question might fly sparks as this whether there is off would or Holloway Starting motor place. to Mrs. Emerson deter- is to be took eration required jumper Florida; mined Em- the law of wire the use but, erson was an people, to hold the wire invitee the boat two one licensee, other whether he poles and the was an invitee of the batteries the Holloway starting duty manipulate him mechanism. owed of reasonable the care; breached; duty that As Ross was assist. asked Emerson to Ross hooking negli- Emerson’s gence explaining method of death resulted the from the was showing agent Holloway’s together employee; him of and and batteries the and spark an process, caused electric should not be denied the an bilge, gas Mrs. explosion the the Emerson. The boat’s court de- in district of petition fire, burned, Holloway Emer- nied the sank. of for limita- boat and took by injuries liability. appeal tion of him. No received us son died from is before respect ruling. with to this by proceedings were initiated Judicial filing Holloway petition by for of a the law re common allowed no liabil- limitation of and for exoneration covery wrongful Pros death. Dean Shipowners’ ity, under Limitation of the observed, the rule ser has stated and seq. Liability Act, 182 et 46 U.S.C.A. § profita “The result was that was more damages to another boat was A claim for plaintiff kill than to scratch ble to the Emerson, of with the claim Ellen listed grievous him, most in and that the of all wrong- Emerson, of for the wife Francis family juries left bereaved of the the Holloway pro- husband. death her ful of destitute, victim, frequently who were boat, convey posed to the then and there- remedy.” Torts, Prosser on water which after at the bottom admiralty, 2d ed. 710. And so discharge sank, a trustee its statute, per the death of a absence liability. Mrs. Emerson answered give action, rise to a son cause did negli- charging unseaworthiness and Norris, Injuries, Maritime Personal Holloway right gence, denied the and 125; Ward, Jr., C.C., seq., E. B. et § the limitation of liabil- to the benefit of remedy England 16 F. 255. The ity. Mrs. Emerson filed a claim by Campbell’s provided Lord Act and negligent Holloway for the death of her has each of states enacted a asserting invitee, he was an husband statute. the area death negligence Holloway’s death, caused his Congress created a cause of ac damages in claimed and $200,000. amount by for the death tion of seamen Holloway claim To this filed Act, remedy Jones 46 U.S.C.A. 688. A § saying objection, its boat was sea- high by provided death on seas is worthy, and that the invitation of Ross a statute known as on Death scope Emerson was not made High Act, seq. Seas U.S.C.A. 761 et § employment of Ross. There was Emerson was not a seaman in and the negligence Holloway a denial and resulting jury his death occurred agents employees. on its water. Neither inland these statutes Ross, The district found that court Mrs. available to Emerson. Nor is agent employee Holloway, an custody had death entitled to she benefits from the boat. It was found Longshoremen’s and Harbor Workers’ voluntarily accompanied Hollo- Emerson Act, Compensation agent way’s boat, U.S.C.A. 901 et Ross § agent Ross, Holloway, seq. on, Bisso, Cir., 1905, 825, L.R.A., or as a Where death occurs F. navigable injuries N.S., 303; Admiralty, result of on received 6th Benedict state, 148; Norris, waters within a here, admiralty jurisdiction was the case Ed. 392 Maritime Per- Injuries, seq. exists en sonal 373 et §§ right force the stat created This is adopted true unless the state law has injured person general ute. concepts Where the survives maritime plaintiff negligence applicable or libellant in ad in the case of miralty governing principles resulting injury, are from a maritime negli- rules of maritime law rather rather than than its own standards of gence liability. state substantive law and the duties of v. Union Goett Carbide shipowner Corp., supra. are not limited the law of the state. From this it follows that The State of Florida has person injured has a a sea many years providing a statute1 for an worthy ship, common law distinc personam by action libel in rem or in tions between licensees are invitees a widow2 for the death of her husband inapplicable. Compagnie Kermarec v. caused of a boat or of Transatlantique, Generate person employed ap thereon. As the 3 L.Ed.2d 550. But where pellant recognized, problem here wrongful the action is for death the lia is to determine what law the courts of although bility, established and enforced Florida would to the facts in this admiralty, by is to be measured state presented if case the case were in the standards, and the issues are to be de courts that state as of an action for termined in accordance with the substan principle death. Such is the Any tive law of state. defenses applied in the case of Graham v. A. which are available under the law of the Lusi, Ltd., supra, where it is held: successfully interposed admiralty proceeding. Goett v. Un applied “The statute must be Co., ion 340, Carbide 361 U.S. 80 S.Ct. admiralty just as if the suit had 357, 4 L.Ed.2d 341. Hess v. United brought courts, been in the state States, U.S. 80 S.Ct. any open defenses which are to the Tungus 305; L.Ed.2d Skovgaard, The v. appellee jurisprudence under the of U.S. 524; 79 S.Ct. 3 L.Ed.2d state, successfully maintained, if Garcia, Western Fuel Co.v. recovery will bar under the libel.” 210; 66 L.Ed. Graham v. A. 206 F.2d 225. Lusi, Limited, Cir., 1953, 206 F.2d In the Graham case the widow of the 223; Graff Co., v. Parker Bros. & sought decedent ing recover a show- Cir., 1953, 705; Quinette injury resulting F.2d in death any person thereof, having the death “Whenever of or those control ers by wrong her) damages this state shall be caused and to recover in re act, negligence, thereof, spect every ful carelessness or de then and in any individuals, person persons who, fault individual or or case the or the by wrongful act, negligence, ship, corporation (or boat), or care vessel or any corporation, damages or default of lessness would have been liable by wrongful act, negligence, ensued, or care death had not shall be lia if lessness, default, any agent (or damages or an action for if ble to a corporation, acting capacity boat, rem, ship, in his or to a vessel libel in agent corporation (or by responsible of such or and her owners those wrongful act, negligence, wrongful act, negligence, carelessness or her careless any ship, default, personam), default vessel or boat or to a libel in ness persons employed thereon), act, notwithstanding person the death negligence, default, although injured, carelessness or is such the death shall would, ensued, if the death had not caused under such circum have been party injured thereby felony.” have entitled the law as amount in stances (or proceed Fla.Stat.1959, 768.01, maintain an action F.S.A. § against ship, in rem the said vessel or personam boat, Fla.Stat.1959, 768.02, or in own F.S.A. by negligently

was caused unseaworthiness. Under ant’s conduct was done similarity warning. law maritime substantive unsea- without The factual given apparent. worthiness the in- to the would have ease before us is jured right person a of action even Florida trial court held could that there though injured plaintiff guilty recovery plaintiff no be merely because the contributory negligence and the de- the defendant licensee to whom greater shipowner fendant no had used due care. owed care than to refrain holding contrary wilfully wantonly causing plaintiff’s him from injury. tentions, Court, case, in the The trial court dismissed the Graham complaint Ap- said: and the District peal affirmed. complete “There is absence of appellant’s attempt merit in avoid courts make a dis foregoing invoking between defenses the duties tinction owed right occupier property action unseaworthi- owner to tres being which, passers, ness licensees of action and invitees. The du the deceased owed ties to each these classes have maintained are set simply opinion injured had he lived, been the court’s forth in Cochran clearly Abercrombie, preserved by supra, by following v. quotation legislative McNulty Hurley, Fla., from enactment under which appellant proceeds.” 185: So.2d “ duty ‘The owed the owner or occupant premises inAs the Graham case to each where unsea- class persons worthiness alone of duty is also distinct. did not allow occupant under the Florida owed the owner or statute and contribu- tory negligence trespasser the could to committing to refrain from asserted as a defense, shipowner so here the or wilful wanton in- defendant jury permitted must be to him with the rule assert be- whatever ing may discovery by distinction softened there after be under the the Flor- duty peril trespasser. ida law to between the landowner Byers the of owed to an in- duty Gunn, Fla.1955, vitee and owed v. the to a So.2d licensee. to questions The answers the state law “ duty ‘The owed licensee is to seem opinion to be found in the recent from refrain wanton or of Appeal District Court of of Florida which wilful misconduct would in- in the case of Cochran Abercrombie, v. jure him, to or refrain from inten- 118 So.2d opinion 637. In its the tionally exposing danger. him precedents to Florida are discussed and the City Mattef, principles Boca Raton v. Fla. of the law of that state which may 91 So.2d 644. There be a control our decision are set forth. There duty alleged further licensee plaintiff warn to the that he went to the him of a defect or condition known residence of the pur- defendant for the occupant to owner or pose discussing to be dan- proposed fishing danger gerous open when such is not trip. request- While there the defendant ordinary by observation the licen- plaintiff step ed the over to the car- [Citing see. authorities.] port purpose looking for the over the “ greater duty motor of the defendant’s ‘A automobile. is owed to an in- and, The defendant raised the hood than while vitee to either the other class leaving plaintiff persons in front of the car above mentioned. The. observing motor, occupant which was not then owner owes an invitee running, opened duty keeping premises the defendant car engaged reasonably condition, door and and, starter of the car safe gear. contends, guard plaintiff in forward which was The car also to injuring plaintiff. against subjecting person lurched forward alleged dangers complaint The defend- that the owner or oc- appellant further one makes cognizant reason- cupant ” negli urging point by [Citing au- there ably foreseen.’ have gence affirmative of Ross which was 118 So.2d thorities.] active a case and that in such court, Cochran in its though no there be had even occasion opinion, had Abercrombie negligence miscon or application wilful or wanton distinguish a and to define “licensee” duct. This doctrine and licensee from an invitee. application it, lack of or rather the said: Florida, and de discussed is also supra. Abercrombie, broadly cided Cochran v. de- “A ‘licensee’has been again quote: opinion upon From that we person who enters fined as ‘a property for his own of another “Many jurisdictions follow convenience, pleasure, or benefit.’ under possessor is rule that the Fla.1953, Co., Stewart v. Texas trespas duty licensees both nor- ‘An invitee is So.2d op ‘active’ as from sers to abstain mally en- considered one who to be negligence. posed ‘passive’ Some premises another ters distinguish clearly of the cases purposes connected with wanton rule from the ‘wilful injury’ occupant of business of owner or combine cases rule. Other City premises.’ of Boca Raton rules, distinction. the two Mattef, Fla., 1956, 91 So.2d support classification of the passive plaintiff was a licen- 647. That negligence the active and de- see has been facts stated plaintiff attention called our this, court, termined trial appears in 156 the annotation which think, supported we is well page the an- where A.L.R. at cases collected in 25 A.L.R.2d decided notator cases has cited notwithstanding the fact that at the Appeal and the the U. S. Courts carrying injury his time of he was California, District Courts of Columbia, Nevada, request out a defendant. The Illinois, Minne- jurisdictions courts of various sota, York, Carolina-and New North held that incidental motives Pennsylvania. guest, visit of purely than a social other have been no Florida cases “While ones, social suffi- will be plaintiff either in the briefs cited cient to characterize the visitor as are facts or defendant where the an ‘invitee’. indi- These cases also case, the instant to those in similar performed cate that minor services Pensacola, case we feel that the guest during host S.S. Co. Andrews Gulf St. & change will visit not be sufficient to Austin, 63 Fla. So. his status from licensee to invitee adopting ‘ac- precludes our or business visitor.” 118 So.2d negligence theory ‘passive’ tive’ and 637-638. urged by plaintiff. which is Although negligence decedent, Emerson, de- case the receiving ‘active’, injury at the classified as time can fendant be although ‘pas- death, carrying resulted in his was out the words ‘active’ and distinguish request performing a of his host not used and sive’ were negli- negligence. him, types minor service for Emerson was nev gence case ertheless in the instant a licensee and not an invitee. involved undoubtedly There be was no wilful or wanton miscon held would adopted danger jurisdictions have duct and no condition which known negligence ‘passive’ to Ross of and the- which he should have ‘active’ warned negligence. ory Fol- ‘active’ Emerson. Under the to be law there can be no reasoning lowing recovery controlling in the Pensa- that law is cola, & S.S. Co. v. our Andrews Gulf decision. St. the law then, case, supra, must decided we Austin juris- altereth adopt the Medes and Persians which decline to from other not, pronounce- ‘passive’ makes the Court then dictions the negligence ‘active’ ment that claim theory.” as was a of unseaworthi- 118 So.2d involving fault, ness without tributory negligence or one 638-639. Since the Florida court has declined statute, decedent, within the Florida neg- adopt “passive” the “active” so status— too in which must be one ligence theory in a we cannot injury Florida licensee—for land-based governed by case which is laws prevent recovery. would that state. My pin- quickly can bewilderment be From what said it follows has been pointed happened : the Flor- what has judgment that the court of the district legislature? ida Is it not the Act—not must be and it is judges say what controls? of it—that Affirmed. My Death view is spelled Statute most un- it out in the Judge BROWN, JOHN R. Circuit mistakable a sur- manner. The test of (dissenting). simple recovery vivor’s death is this cynicism To the Dean natural query: could deceased recov- Prosser quotation: echoed the Court’s And ered had he ? survived sued “The result that it more was was injuries resulting maritime in death profitable plaintiff to kill the than query Florida has more made even him, scratch most specific: could the decedent have recov- grievous injuries of all left be- admiralty proceeding ered in rem family reaved frequently victim, who against personam or in vessel destitute, were without a operator? the owner or it comes When remedy.” question, answer to that the facts say, glaring added another. As he would show and in no sense profitable it is more casualty to kill a man than was the the result of that sort destroy property. For the maritime unseaworthiness — tort Graham, killed Emerson and which fault —considered us in su- brought solely pra. about Emer- because son, pursuant request, doing I. indispensable work, task to Ross’ de- opinion gives quite The Court’s a dif- stroyed nearby yachts seven motor impression. Reading ferent one shipyard. The District Court allowed suppose that there were but two claims $36,384.71 (including $15,- —one Emerson’s other and the 000 in hull subrogation) underwriters damage single so, for to a vessel. More property damage. Holloway, this the opinion merely as to them the reflects petitioner, right was denied the to limit with an almost classic understatement liability neglect because fault the and of peti- that the District Court “denied the Ross privity knowledge was with the and Holloway tion of for limitation lia- of corporate of the owner of the M/Y bility.” variety That could occur from a Overtime. reasons, not least of the approaches way: comply Court be a technical failure to be- with ing statutory requirements time, a maritime on death action we surren- must de- inadequate vessel, say. cide what stip- the der of Florida courts ad interim gotten Having far, ignoring Transport and the like. Oil that ulation and the Do. plain Verret, Cir., words of the Florida Death Stat- ute, proceeds hap- the Court is far from the case. declare, then This What pened District hold, what the was that the Florida courts would denied ground the but the on what this Court on merits that one time said. Tak- the through ing corporate Lusi, shipowner presi- Ltd., Cir., 1953, Graham v. A. its through opinion dent, Williamson, Ross Court’s is accurate and stating negative management way trial the that the the whom M/Y voluntarily ship’s hus- “found that court accompanied Emerson was committed Overtime knowledge Holloway’sagent upon band, privity of the Ross and agent boat, Ross, the Holloway, and the that fault. gross guilty any was not catastrophe. negligence respect This was a substantial wanton Em- with response more,2 restrain- In ing to monition and erson.” But record tells much claims and there seven and and orders were both the evidence uncontradicted petition Judge’s for limita- answers filed to in the District statements liability shipowner’s that explosion besides tion of record reflect that fire These Emerson’s were death. was the result of active3 motor vessels the destruction Ross. “Mike,” Beatty,” the “Rain- “Beltz— “Joyce Ann,” us, bow,” As this was “Dreamgirl,” this record comes to setup. (and a crude dozen occa- On at least a and the “Hilda” subrogation) hull underwriters’ proved sions the inade- batteries had and destruction quate. necessary jump- It to use Boat where the Sanford Works M/Y n Overtimewas president er wire. Even the had wit- kept. trial on After the operation liability right par- nessed the acknowl- non and had vel limit edged sparks including produced. ticipated were Of all claimants course, right sparks Emerson, were in or either the District Court held gasoline bilge explosion over the areas where this fire and privity with the occurred frequently To Holloway, corpo- fumes would accumulate. fault duty seaworthiness, shipowner. those owed rate Exoneration from and Jersey cf. United New York and New to limit All were denied. Sandy Halecki, (save Emerson’s) Hook Pilots Ass’n v. claims re- were then 358 U.S. 3 L.Ed. S.Ct. ferred to Commissioner whose States, 1959, final 2d West United award a decree was entered for $36,384.74 including 4 L.Ed.2d 361 U.S. interest.1 Court, Utilizing start was cal- thus used to motor Rule 23 of this sparks produce C.A., culated to and often did I have examined the entire record capable igniting proceedings sufficient accumu- limitation the Dis gasoline present appeal fumes lation of instant trict Court which the * * * integral part. batteries. The ex- area of the is an addition to the allowed, plosion exempt and fire the result of the final decree claims ignition restraining of accumulated fumes means from the final order sev ed sparks permitting caused the use of late filed thus eral claims Upon Judge jumper proceed wires.” claimants state court danger- this “unsafe concluded vessel owner. actions * * * made the boat method all ous This record included as well ” * * * unseaworthy incorporated testimony formally which “condi- within * * * encouraged but, known to Williamson tion our record our ” * * * “knowledge printed. reducing expense, was with the Rules for petitioner. privity” appeal taken from final An has been by petitioner. My decree comments liability in the sense of with cerning prejudg- I this 3. use a the evidence are not distinguish merely it from in They those fault intended a ment. are as liability without fault in which stances of what the District Court statement especially a breach of the absolute from flow to find view of was entitled warranty I do not use of seaworthiness. case no is fact our attack the exception an to the petitioner of (appellee) sense it the on the evi- made which, as the Court licensees finding rule on of fault. dence rejects out, points in Cochran Abercrombie, Fla.App., findings So. fact formal of the Dis- In 2. pages jumper concerning 638-639. Court, 2d wire trict say: setup, “The method had this legal problem system After ex- deficiencies for decision. such a its known with arguments unseaworthy. sub- But tended counsel on the of made vessel question privity im- knowl- for stantial was condition or one not a static edge, Judge fault, position But as see called for briefs. without underlying briefs, Racer, Inc., he basis Mitchell v. Trawler several he was 4 L.Ed.2d times announced that U.S. negli- holding guilty nondescript caus- that Ross The use method was of this gence damage.5 ing causing unseaworthy proximately in an vessel to only ques- operational legal was, at This left then for briefs as sense as well charged negligence petitioner time, most tion whether was of the same knowledge neg- privity patent with Ross’ sort. ligence.6 gasoline engine impossi- aWith it was leakage resulting ble avoid some II. gasoline optimum mixture of fumes. have, Consequently, one we do not as very highly explo- parts, small this is infer the casual nature of from sive. Two witnesses of unusual technical opinion, damage and death caused qualification experts without testified only by unseaworthiness fault. any contradiction whatsoever damage specific We have due to conduct “bailing sys- jumper use this wire” (chargeable Williamson) of Ross fraught great danger tem was with negli- which Court found be both explosion.4 gent shipowner and a kind Judge expressly And the District personal complicity. had thought negligence, of this in terms of Would Emerson have been entitled to e., specific i. acts of commission omis- recover he lived? The Court almost unqualified sion. His declarations are quite says —but not as much.7 part — much a the record as the for- findings really fact, 2, supra. They mal note But the Court never answers acutely question. place show that All that he was aware this it does is Captain issue; Lemay, say, 4. One was a marine firmative of that sur- cov- is to veyor experience an the boat involved in since 1933 with the accident ering 38,000 “Any unseaworthy over and that vessels. time Ross negligent you you battery” place touch the terminal at the time and un- * * * * “you certainly know that der the circumstances will get ty spark.” seagoing The rule of safe- put way. 6. The Court “But wheth- positive. important It “is in ma- negligence imputable [of Ross] er that safety any sparks rine to have ** * petitioner the Court is bilge.” That means “not prepared not at this time to decide.” absolutely sparks, not, that is the first question That, said, he “is of law” on * * lesson knowledge issue of whether there is “the Thompson, The other was Commander privity * * * petition- on the Inspection Service, office Marine Coast U.S. g0 petitioner as to er make Guard, at Jacksonville. He em- * liable of Ross *.” phasized danger gasoline vapors injured The Court states necessity precaution “Where the and the concerning sparks. extreme plaintiff person survives and is emphatic He was “ * * * principles gov- libellant prac- that “it is not” a safe erning poles are the rules than the state maritime law law hook the of batteries to- tice to gether open rather substantive wire below the deck shipowner the duties of the “you are an inboard boat” because are law of spark” limited the state. gas- and “if the bound to create person From this it follows that vapors right quantity are in the oline injured seaworthy ship, * * * has a explosion.” you will have an distinctions and common law between li- inapplicable. and invitees are censees stated: “Now the issue Compagnie v. Generale Kermarec atlantique, Trans- the issue of of unseaworthiness and/or 625, 358 U.S. 79 S.Ct. of Ross at the on the 406, pre- L.Ed.2d accident, 550.” 282 F.2d 271 at 3 is the Court time finding pared 275. now the af- to make

281 550, great page 2d us in at And on the 553. store8 statement Graham, supra doubt F.2d Emerson comes within the Court’s 225]: [206 declaration. “We owner that hold applied in “The statute must be navigable ship of a to all waters owes admiralty just suit as if the purposes who are inim board brought courts been # # # the state ^ legitimate duty ical his to interests exercising reasonable care under Actually, all. It either test at no circumstances of each case.” 358 U.S. light begs question or 625, page 632, 406, page at 79 S.Ct. at years past few decisions of 410, 550, page 3 L.Ed.2d at 555. wrong. injuries being simply The mari- injuries, For maritime the maritime a Florida court would be time supplies law sole in standard. This law.9 the maritime bound pending cludes cases either in the state thing posi know at least one we And court as a civil action based on di tively. as an invitee licensee Status versity. may “Whatever doubt once to the maritime inso is irrelevant law effectively have existed on that score was injuries are concerned. far as maritime by Pope Talbot, to laid rest & Inc. v. duty shipowner owes the of due care Hawn, 406, 410-411, 346 U.S. 74 S.Ct. precise was the hold each alike. This 202, 204, 98 L.Ed. 143.” Kermerac v. Compagnie ing Kermarec v. Generale Compagnie Transatlantique, Generale Transatlantique, 1959, 625, 358 U.S. 79 supra, 625, page 628, 358 U.S. at 79 406, 408, opin 3 L.Ed.2d 550. The S.Ct. 406, page 409, 550, S.Ct. at 3 L.Ed.2d at first it does no ion demonstrates page 553. good a theoretical make assessment does terms of what would have occurred in a What ? I do would not here try since, if state court the action “had been to fashion a consistent mosaic10 brought court, momentary, shifting, in a state reference from to ad some- miralty necessary among law would have been times conditional concurrences rights several up determine and liabilities Justices which now make parties.” 625, page 358 U.S. at Court’s view.11 The common core is 406, recognition 628, page 408, at 3 79 S.Ct. L.Ed. all that the maritime miralty opinion, supremacy. 282 341, 347, 8. See Court’s F.2d at 275. 80 S.Ct. 305, 4 L.Ed.2d latest, probably last, but Ray 10. See Thibodeaux v. J. McDermott expression no leaves doubt as Hess v. Co., Cir., 1960, 42, & 5 see note States, 1960, 314, United 361 U.S. page 6 at 341, 345, 305, page S.Ct. L.Ed.2d 309, plain. Tungus Skovgaard, 1958, makes “Graham’s death 11. The 588, 503, 524; act or omission which al U.S. 79 S.Ct. 3 L.Ed.2d legedly Jersey Sandy caused it occurred within the United New York and New * * Oregon Halecki, State of 1959, *. Since death Hook Pilots Ass’n navigable waters, 541; occurred on troversy the con U.S. 79 S.Ct. 3 L.Ed.2d is, States, 1960, as the trial court correct Hess v. United 361 U.S. ly held, 305; within the reach of S.Ct. L.Ed.2d Goett * * jurisdiction Oregon Co., 1960, *. v. Union Carbide therefore, required, to look to mari S.Ot. L.Ed.2d 341. * * deciding time prior law And Justice Whittaker now limits his text footnote concurrence to state statutes as a reme- page 310, supplement 4 L.Ed.2d at the Court con dial to the substantive mari- question can tinued. “There be no but time law. Justices Harlan and Frank- Oregon required would be furter think that the substantive mari- controlling maritime law if this were an action be so time law is the states private parties, impose greater tween since a tort ac never burden injury occurring upon tion for or death would the than substantive maritime law. navigable waters is within exclu Stewart and Clark Justices would allow ** provided sive reach of maritime law add states substantive duties dissenting opinion only of Mr. Justice the state innovations are not emphatic admiralty. Harlan is even more on ad offensive And the so-called then, question, the terms ultimately It is a in which the area law controls needed, or, the state where may operate death statute and the extent the states interpretation and construction state substantive the so-called judiciary. guide. by state statute as the standards are to be followed principle present As of moment III. working majority can be musters a Here the Florida Death Statute right effectively briefly. stated plain remarkably precise it is as the and depends recover for on maritime death interpolated in note 12 brackets reflect.12 a state ad- The federal statute. miralty (or parties di- All court civil actions in in is eliminated as doubt versity rights. cases) legally who enforce these are to be held accountable. What those state statute construction by porate proach the courts or adopt rights put upon or, of that state. within its death statute wherever are the state statute depends power necessary, In this to incor- on ap- rate These als, thereon. the statute [Id] ^[16] agents. include ship But corporations, speaks and it is specifically To these is then added even more all in terms persons employed and [la] [lc] refined, individu- corpo- legal principles open substantive maritime law negligence remedies decedent had he specifically survived. right unseaworthiness. If it These include the does, recover, then the will survivors maintain an action to [2a] recov- damages. decedent, admiralty princi- importance, would the ples er Of decisive they court, specifically right whether in a state a federal cover his to [26] diversity action, proceed by admiralty. against civil or the libel in rem vessel Otherwise, against personam if the or operator. in state confinesthe [2c] stand- her or owner equal precision ard to that for situations, speaks non-maritime common With law categories specific terms takes the case of those legal having with all of limitations entries injuries defenses for such interpretation. under op- had death ensued. now time minority view that state shall be caused tices Tungus Whenever mechanism to cate restrictions. or Clark “Bight [Id] [le] ^[15] [la] rights join Black, Douglas concepts in his carelessness carelessness, agent ship, employed thereon), individual or carelessness carelessness corporation, corporation (or to make a of action for death.— (The the death state death statutes Justices alone, consistent with wrongful vessel permit admiralty capacity wrongful act, negligence, wrongful act, negligence, wrongful act, negligence, Chief any under Stewart majority or or boat or or individuals, or corporation, any person Justice regard act, default of default of default of default, compulsion Brennan) agent general are of negligence, and Jus- supply to vindi- to state persons or acting Clark, mari- who any any any notwithstanding have been caused under Florida Stat. stances as which would have been liable in dam- liable to son of, injured and to recover default, ages and the person [3c] [2c] nn [ ] ^[26] [ nn [2a] maintain ] then and in injured, if death had not ensued shall be corporation ship, thereby her owners or those if proceed carelessness for her bel in bel trol of ers ship, is such as ensued, or act, negligence, vessel action amount personam against thereof, persons, ship, vessel or personam), rem, damages her) 768.01, although every have entitled the or vessel or ^[16] in law rem or those action would, boat) death of who damages (or boat, such case the (or F.S.A. default, act, the death shall carelessness or [la,c], respect [Id], such circum- to a boat, (or if the death or having responsible negligence, the own- the said to a li- felony.’' to a li- or there- party per-

283 terms. rerriedies in maritime entitle thing inflicting or erative In each action b, c, gory [la, ery The statute makes a [3c] injured person legal for damages problem in a libel category specific result It remedies available injuries damages specifies injured category d] is in shall be liable personam. causing injuries terms then and or had wrong, person [2a, ^[36] he note is triple defined b, those survived, a libel in unique to c] for for recov- resort rights approach party taken of in redress. [3a.] in cate- rem rem like and or in to and,14 Mississippi,15 with which somewhat death time substantive pending things, other spect edies Revenue S.Ct. [Id], Unfortunately, specific admiralty known [26], it has few statutes. see similar death Acker, 1959, [2c], [36], L.Ed.2d how one looks Commissioner only is rights.17 Except statutes to the counterparts almost (or provisions remedies or mari and [3c]). fortunately for admiralty speak identical, Oregon,16 U.S. Virginia13 dissenting in in terms Internal in state Maryl these (see and de- re no Virginia. person 13. Code of “Article 3. Death “Whenever the death shall by Wrongful wrongful act, neglect, Action be caused 8-633. for § Act. by wrongful any ship vessel, or death default of act. —Whenever or and the act, person neglect, death of a shall be caused or default is such as would wrongful (if act, neglect, any ensued) death had or default of have entitled ship party injured person corporation, action, or or to maintain an proceed act, vessel, neglect, against or or to and the or de- in rem the said ship personam would, vessel, against fault such as death or in if had not or party injured ensued, thereof, having have entitled the owners or those action, proceed her, damages trol maintain an or to in and to recover against respect ship then, thereof, every in rem personam such or vessel or in in such against ship vessel, „ which, case the the owners or had not thereof having ensued, her, death or those control and to would have been liable damages respect thereof, then, damages, to an recover action for or to a libel rem, every case, person owners, who, respon- and and such her or those corporation ship which, negli- or or vessel sible for her gence or or acts defaults or liable, personam, have been if to a libel in would death shall be lia- ensued, damages notwithstanding to an for shall be liable action ble all damages, or, person ship vessel, injured, although or death of if rem, otoners or the death libel her those shall have been caused under responsible her acts or circumstances as amount in law to defaults felony.” personam, (1942) or a libel Miss.Oode § 1565. notwithstanding per- death of the although 16. “Liens on Boats Vessels injured, the death shall son “783.010 Claims for which liens ac- have been caused under such circum- Every corded. or boat vessel used in stances, felony. as amount in law to a navigating the water of this state or con- ” * * * supplied.) (Emphasis structed in this state liable and sub- * * * ject ato lien This out 14. statute is set State v. * * * “(4) damages inju- or Weyerhaeuser Co., D.C.Md.1959, S.S. persons property, ries done to or F.Supp. 664, page 665, see also vessel, damages such boat or and for or 18, infra. This statue note covery allows re- injuries by resulting such boat vessel by wrongful if “caused death is any person.” in the death of Ore.Rev. act, neglect or default” such as (1959) § Stat. See 783.010. also Ore. party injured “have entitled (1959) Rev.Stat. 30.010-30.100. action,” then maintain “the vessel 7, 123; 17. § Ala.Code Tit. person who would have been liable * * * * * (1956) ; * Ariz.R.S. §§ 12-611—12-613 shall be liable and if (1959 Supp.) ; 3 Ark.Stat.Annot. 27-906 ensues as a result of Annot., 14 Calif.Code COP act, neglect §§ vessel, or default of suit (1954); brought in rem said ves- ** 41-1-2; 41-1-1 Md.1957, § Colo.Kev.Stat.1953 Conn.Gen.Stat.1958, § *.” Code art. § sel 52-555; § Annot., (1953); DeLCode Title Judgment ships 105-1309; Ga.Code Ann. 105-1301 “§ §§ — injury. Code, (1948); causing death Idaho to 5-311 §§ vessels for 5-310 history legislative ed one well law." opinion), versed no formal page F.2d 269 can said at But is available. Circuit Florida what Fourth statute signifi Now all of this has decisive Virginia’s. recently That Court said affirmatively negatively. cance both Stansfield, Holley 4 Manfred in v. The recovery* The Florida standard 320, Cir., 1959, 317, that held 269 F.2d proceed death is the vicarious supra, Virginia 13, Act, note under the personam. libel rem or in term finding contributory the trial court’s “libel” is one art for traditional negligence did not bar pleading party seeking A relief. Of statute maritime death.18 admiralty requires libel in rem ei lien remarked, es- “It obvious to Court is too implied pur ther the maritime law or cape statute, the statute draft- suant attention that state or But federal. S.H.A.Ill.Stat., (1959) 1, ; survey 2 §§ ch. 70 18. In 1959 annual of American ; Law, (1959) (1960), 2-404 § Ind.Stat.Annot. 35 N.Y.U.L.Rev. Nicholas 613.11, 635.9, Hoaly, 3rd, Admiralty Shipping, Iowa Annot. J. Code R.C.P. 8, (1950); pages 587-599, pages reports: 58 I.C.A. 597-598 60-3201, 60-3203, Kan.Gen.Stat.1949, “Following Supreme §§ Court’s deci 60-3204; Tungus Skovgaard, sion in The a num Kentucky Rev.Stat.1959, 411.130; quick ber § of lower courts were to hold (1952) ; LSA-C.C. Art. 2315 death statutes Rev.Stat.1954, 165, 9; broadly Ch. § Maine various states were worded enough (1958); Annot. 229:1-11 Mass.Gon.Law to include a cause of action for resulting Mich.Stat. from unseaworthiness.” (1959 Comp. Supp.), appended “See, § 27.711 Annot. To this is footnote 691.581; 1948, Holley g., Stansfield, § Laws e. v. The Manfred ; (1960 Supp.) 317, (4th 573.02 Cir.), Minn.Stat.Annot. 269 § F.2d 1959 AMC 2189 (1959 Supp); Blumenfeld, 537.080 § Mo.Stat.Annot. certiorari denied [Reederei 93-2809, Annot.1947, 154, § Mont.Rev. Code M. H.] G. B. 361 U.S. 883 [80 S.Ct. 93-2810; (1959), interpreting 4 § 119] L.Ed.2d Va. Neb.Rev.Stat.1956, 30-809; (1957); § Code Ann. § [State of] 8-633 12.080, 12.090, 41.080; Maryland Weyerhaeus Nev.Rev.Stat. N.H.Rev.Stat.Annot.1955, ex rel. Gladden v. Co., F.Supp. 664, 556:12 er S.S. 1959 AMC 556:14; (D.Md.1959), interpreting Md.Ann. (1952); 67, (1957).” N.J.Stat. 2A:31-1 § Annot. Code § art. N.M.Stat.Annot„ 1953, 22-20-1; § To these be added McKinney’s Aldrdige Corp. Consolidated Laws of New v. States Marine York, Annotated, 13, Cir., Delaware, 1959, c. 554, Es- Decedent Law, (1949); reversing §§ tate 130-134 which the Ninth Circuit dis- (1959 Supp.) ; complaint ques- N.C.Gen.Stat. 28-173 § 1943, missal of a reserves the 32-2106; contributory negligence N.D.Rev.Code 32-2101 to tion of under the Annot. § 2125.01-§ Ohio Rev.Code 2125.- California Death Statute until trial on (1954); the merits. Okla.Stat.Ann., 12, (1959 Appeals Title § 1053 The Texas Court of Civil Supp.); Vassallo v. Nederl-Amerik Stoomv Maats Holland, 1960, just 12, §§ Purdon’s Pa.Stat.Annot. 1601 to 337 S.W.2d 309 has (1953); act, 4671, held state death Arts. 4672, 10-7-9; R.I.Gen.Laws 10-7-1 to does absorb maritime doc- (1952); comparative 10-1951 fault S.C.Oode trine and contribu- 37.2201, tory complete (1952 Supp.); S.D.Code 37.2203 is a bar. (1959 Jersey Supp.); 20.607 Tenn.Code Annot. Tex.Civ.Stat., The New statute is set out in 4672; Tungus Skovgaard, 1959, Arts. The 588, Const., XVI, 5; § Utah Art. 3 L.Ed.2d S.Ct. 524 at note Vt.Stat.Annot., 1492; the Second and §§ Both Third Circuits (1958); incorporating 4.20 act as Wash.Rev.Code construed this 5477; W.Va.Code the doctrine unseaworthiness and in Supreme (1958); approves Halecki the Wisc.Stat.Annot. 331.03 Wyo.Stat.1957, 1-1065. Second Circuit’s construction that g. principle comparative statutes, e. maritime Some Tcix.Civ. fault specific Stat., contributory would Art. make reference decedent’s negligence. “vessel,” “steamboat,” similar term. instinctively libels, sonam statutory lien, long know been estab broaden, not re- purpose lished, only its was to in admiralt can be enforced rights recovery. strict, y.19 As an im- refer That means sought objective mediate Act ence to contem the vicarious standard great security advantages plated of financial admiralty is of proceedings. This proceed- in rem lien, sup maritime importance crucial since ing, personam ac- flexibility of posed clear proceeding it foreign tions with writ attachment Florida, maritime, substan bonding the cumbersome tive law be would would control. Florida gar- requirements powerless similar under state prescribe any standard proceedings nishment like. And and the liability. Specifically lesser Florida clearly most in mind been the legislation must have not, by judicial could deci maritime law’s historic contribu- sion, admiralty any view on impose com on the tory-comparative invitee, concepts li mon law status sweeping protection concept censee, trespasser, Com Kermarec v. warranty supra, of seaworthiness. pagnie Transatlantique, Generale contributory negligence complete aas As the for maritime death’ dam- test 1953, Pope Talbot, Hawn, bar. & Inc. v. age recovery, Florida statute asks 406, 202, 346 U.S. 143. 74 S.Ct. 98 L.Ed. simple question: injured per- could Having types prescribed distinctive two son have recovered had he in ad- sued admiralty proceedings, it is unreason miralty? equally The is answer sim- contemplated able to assume that Florida ple.20 proceedings, law substantive Florida has therefore exercised the than other maritime would control. The choice allowed the maritime law. anything Constitution would forbid else might apply The “State the substantive as Florida well knew. generally applicable law viewing affirmatively spe- And territory, death cases within its or it admiralty pro- general cific incorporate reference to such choose to ceedings purpose concepts reflects a maritime Florida’s law’s of unseaworthi- negligence.” to extend to survivors ness or whatever v. Union Car- Goett Corp., 1960, benefit 340, the substantive maritime law bide 361 U.S. inju- 357, 358, have 341, page afforded 4 for maritime L.Ed.2d It thing ries. language This was a natural has since done so in unmistakable Florida place judicial extensive maritime inter- which leaves for no inter- anyone enough pretation, ests. And familiar with much less an uncritical ac- distinguish quiescence carefully, as a former 1953 decision does, per- which, this Act between in rem like Goett v. Corp., Union Carbide Black, Admiralty Court, See Gilmore & as §§ a constitutional court of ad- 1-13, (1957); jurisdiction miralty having 9-24 to 9-29 The Moses over Taylor, 1867, 411, 411, proceeding, 4 Pershing Wall. 71 U.S. limitation whole 397; 1867, 18 Trevor, Rentals, L.Ed. Gaffney, Cir., The Hiñe v. Auto Inc. 5 v. 555, 555, 451; 4 Wall. 1960, sitting U.S. 18 L.Ed. 279 F.2d and not Madruga Superior Court, 1954, adjunct courts, mere Brie to state Lev- 290; Deupree, 1953, U.S. S.Ct. L.Ed. inson Pascogoula Dock Station v. & Merchants S.Ct. 97 L.Ed. has held as Bank, Cir., 1959, Marine a matter F.2d maritime substantive law petitioner gave footnote 3. the conduct rise damages to the to recover for the found, The answer is floating not as would maritime tort inflicted usually case, be the a vicarious de- Under vessels. maritime law Emer- termination of what some other court son would fare as well as a vessel. If would might hold. For whatever doubt there different factors would theoretically dispelled by $6,088.20 claim nonmaritime dam- allowing recovery the actual age Works, final decree to Sanford Boat need we property damage. The them District consider here. *** open “any are supra, Appeals defenses the Court decided jurisprudence of 1958, (4 449) under Cir., with- ** * under Tungus will bar out the benefit of Halecki. im- 8, supra. This libel.” See note long Tungus So re- standard judge-made permissible amendment mains, question it is state law. legislation. state law is here found statute. law, cannot

We by make state we nor can Emer- could asks: Florida statute opinions one or a dozen eradicate admiralty? son recovered positive terms the statute. The stat- ques- never answers say damages does ute that death shall tion. brought be allowed “if the suit been in the state dissent. courts” or that I therefore such action

Case Details

Case Name: Ellen Emerson v. Holloway Concrete Products Company, Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 29, 1960

Citation: 282 F.2d 271

Docket Number: 17839_1

Court Abbreviation: 5th Cir.