ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant’s motion for partial summary judgment as to the claim for loss of consortium by plaintiff Ethel Kiesel came on for hearing before this court on June 16, 1986. Christopher McKenzie appeared on behalf of plaintiffs. Cynthia Fаrias appeared on behalf of defendant and third-party plaintiff Peter Kiewit & Sons’ Co. Rodney Nishida appeared on behalf of third-party defendant Calavar Corp. The court, having considered the motion and thе memoranda filed in support thereof and in opposition thereto, having heard the arguments of counsel, and being fully advised as to the premises herein, finds as follows:
FACTS
The facts relating to this motion are not in dispute. Plaintiff Jоhn Kiesel has brought a suit in admiralty, alleging that he was injured while working in a man-lift which collapsed onto the deck of the Thelma, a clam-shell dredge owned by defendant Peter Kiewit & Sons’ Co. (“Kiewit”). Kiewit has filed a third-party complaint against Calavar Corp., the manufacturer of the man-lift involvеd in the accident. Plaintiff Ethel Kiesel, John Kiesel’s common-law wife of some 20 years’ standing, has filed a claim for loss of consortium.
*1252 The sole issue before this court is whether defendant is entitled to partial summary judgment as to Ethel Kiеsel’s claim, on the grounds that general maritime law affords no recovery for loss of consortium when the claimant was not married to the injured person at the time of the accident.
DISCUSSION
The spouse of an injured seamаn may assert a cause of action for loss of consortium under general, as opposed to statutory, maritime law.
American Export Lines v. Alvez,
Plaintiffs in this case remark that admiralty courts have exhibited an “enlightened” attitude in recognizing that “it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.” American
Export Lines, supra,
Nevertheless, admiralty courts are not free to create remedies at will. Plaintiffs bear the burden of demonstrating that the remedy they seek is one given widespread recognition by the states. This court is not persuaded that the weight of authority backs plaintiffs’ ultimate position in this instant case.
Plaintiffs argue preliminarily that Hawaii courts would permit a cause of action for loss of consortium, even when two individuals are not married, so long as they can demonstrate a cohabitative, “stable and significant” relationship. This court dоes not share plaintiffs’ enthusiasm as to the likely liberality of the state courts. Hawaii law provides that “it shall in no case be lawful for any person to marry in the State without a license for that purpose duly obtained from the agent appointed to grant marriage licenses.” Hawaii Rev.Stat. § 572-1(6).
Plaintiffs admit that theirs is a common-law marriage. Such marriages are invalid in Hawaii. Hawaii Rev.Stat. § 572-1(6);
Parke v. Parke,
The court’s research has revealed no Hawaii opinion addressing this particular issue. Indeed, Hawaii courts have not even stated whether a legitimate spouse may maintain an action for consortium when the other spouse sustains injury immediately prior to their valid marriage. However, the Hawaii intermediate court of appeals, without entering any finding, has indicated surprise that a spouse would аttempt to do so.
See Alt v. Krueger,
Whatever the position of Hawaii in this matter, however, it is clear that general maritime law does not permit the spouse of a seaman injured prior to marriage to maintain a cause of action for loss of consortium.
Gunter, supra,
The only reported opinion allowing loss of consortium recovery for injury to a fiance is
Sutherland v. Auch Inter-Borough Transit Co.,
Furthermore, plaintiffs have identified only two decisions holding that cohabitants, as opposed to betrotheds, may recover for loss of consortium.
Bulloch v. United States,
In addition, this court’s research has uncovered anothеr opinion,
Norman v. General Motors Corp.,
Because the
Norman
case is quite recent, it has not yet drawn any commentary. Both
Butcher
and
Bulloch,
however, have met with sharp criticism, and this court believes that
Norman
will share a similar fate. The court in
Childers v. Shannon, supra,
while dismissing as impractical the “stable and significant” test of
Bulloch,
noted in exasperation that the “marriage [certificate] is the only dependable means by which a relationship — of which consortium is an element — may be defined.”
Indeed, thе lack of adequate legal criteria for distinguishing “stable and significant” relationships from those which present an insufficient basis on which to rest an award for loss of consortium militates against facile acceptance of such a
*1254
test. This court agrees with the reasoning in
Weaver.
Hawaii law dictates that a valid marriage is indispensable to an action for lack of consortium. If modern social conditions are to mandate a different result, it must come from the legislature or the state courts.
See
Plaintiffs argue that Hawaii has a particular interest in protecting “spouse-like relationships.” They point out that Mrs. Kiesel, even in the absence of a valid marriage license, might recover for wrongful death (Hawaii Rev.Stat. § 663-3), emotional distress
(Leong v. Takasaki,
Plaintiffs ultimately contend that “the recognition of a cause of action for loss of consortium should not be based solеly on whether the family unit fortuitously possesses a marriage certificate at the time of injury.” Unfortunately for plaintiffs, the state of the law in an overwhelming majority of the jurisdictions which have considered the issue seems to be еxactly that against which plaintiffs argue. Accordingly, this court has no basis for accepting plaintiffs’ contention that Hawaii courts would permit Ethel Kiesel to maintain an action for loss of consortium.
Moreover, because this court hears the instant case pursuant to its admiralty jurisdiction, and not through diversity, the law of the state where the injury occurred is not controlling. Of greater relevance is whether the majority of states has adoptеd
a given rule of law, such that the general maritime law is likely to fall into line with the majority position. Plaintiffs purport to identify such a trend, allowing unmarried cohabitants to recover for loss of consortium, in the
Bulloch, Butcher,
and
Sutherland
cases. This court finds, nevertheless, that the only discernible “trend” which has developed in recent years in this area is the allowance of recovery for intangible elements in domestic relations, rather than merely for lost “services.”
See General Electric Co. v. Bush,
As this cоurt has already noted, the opinions relied upon by plaintiffs have hitherto met with almost universal scorn. At the present time, it does not appear to this court that the common law has developed to such a pоint that loss of consortium claims by unmarried cohabitants would be accepted throughout the United States. Furthermore, the undesirability of requiring federal courts, sitting in admiralty, to investigate minutely the nature of domestic relationships simрly in order to ascertain “significance” and “stability” is self-evident.
Of necessity, the general federal maritime law lags slightly behind the common law of the individual states. Where the general state of the common law is itself far from settlеd, a federal district court sitting in admiralty should not be quick to apply a questionable legal proposition to the general maritime law. Because this court is persuaded that neither Hawaii nor the majority of other jurisdictions has indicated a willingness to permit the type of claim raised by Mrs. Kiesel, summary judgment in defendant’s favor as to that claim, as made under the general maritime law, is appropriate. Accordingly, IT IS HEREBY ORDERED that the motion for partial summary judgment as to the loss of consortium claim be, and the same is, GRANTED.