*2 Judge, DENMAN, Chief Before BYRNE, Judge, Dis- BONE, Circuit Judge. trict Judge. DENMAN, Chief appeal from a decision This is for District Court the United States diversity suit District of Hawaii complaint appellant’s dismissed for under the U.S.C.A. § common law determined brought law civil it was as a common Jurisdic- rather than in suit diversity of citizen- tion was ship, based Higa and his admin- the deceased being istrator a Hawaiian Hawaii, plane owned citizens of corporation. a California Higa passenger Takeichi was a on a airplane, Transocean ly admitted- Airlines plane not a to land on or travel the water, which crashed into the Pacific Ocean 300 400 miles Wake Is- flying in land when the direction of Higa’s Appellant Honolulu. admin- brought istrator and he this action alleging Higa’s parents, the benefit Higa’s that Takeichi death was caused crashing plane’s into the ocean. diversity Since this is a suit in the United States District Territory Hawaii, Court ing seek a common law for a death on waters, seas outside territorial appellant required to show that law of Hawaii had created in that court to entertain such a com mon law action. The Hawaiian code statute,1 has but there provision that code or decision making appli Hawaiian courts beyond to death on the cable seas territorial waters. Hawaii, 1. Revised Laws of ' gress, support that is said Southern the exclusive character of There is much admiralty” provision. Jensen, 37 S.Ct.
Pac. Co. v.
Fuel
in Western
1086 and
L.Ed.
argues
further
the words
*3
89,
233,
Garcia,
42
257
S.Ct..
Co.
“may
permissively
maintain”
used
are
wrongful
210,
case for a
66 L.Ed.
tort
állowing
suit
elsewhere
navigable
within the
death on
waters
Congress
and that
would
used the
California,
to war-
of
which seems
State
phrase “shall maintain” if an exclusive
holding
rant our
that the constitutional
remedy was intended. This contention
Congressional
provisions respecting
con-
absurdity
leads to the obvious
that Con-
admiralty jurisdiction, pre-
trol of the
gress imposed duty
to sue on a claim-
Territory,
applying its
vented
from
the
ant, whether or not he so desired. We
liability
tortious
death
statute to such a
“may”
per-
hold that the word
is used
However, we
death
involved.
here
missively
only
permission
but
as a
to sue
prefer
to consider the
on other
in
ground,
than a
since we
constitutional
Higa’s main contention is that
jur-
otherwise lacked
hold that the court
Death'on the
Seas Act creates a
isdiction.
right
Congress
substantive
and that
can-
pertinent portion of
text of
The
right solely
not create such a
in admiral-
is:
Seas Act
ty
prevent
and at the same time
its be-
person
“Whenever the death of a
litigant
sued on at common law a
neg-
act,
shall be caused
having it,
any court,
in
state or federal.
high
occurring
lect, ór default
on the
contention,
“saving
is based on the
league
beyond
from
a marine
seas
to suitors” clause of 28 U.S.C. 1333.
§
* * *
Terri-
shore of
considering
In
this contention it is of
tories
of the United
importance
that the
de-
States,
personal representative
prived no state or federal court of a
of
maintain
the decedent
a suit
existing right.
then
As to the state
in the district courts
courts
provides:
767
of
the United
[Emphasis
Exceptions
*.”
opera-
added.]
Ҥ
chapter.
tion of
provisions
The
Appellant
jurisdic-
contends that the
any
-giving
regu-
State statute
admiralty ju-
confined to the
tion is not
lating rights of action or remedies
risdiction of the United States District
for death
shall not be affected
because
the usé of the word
Court
chapter.”
“may”
phrase “may
maintain”.
Congress
originally drafted,
He
contends that
intended
As
the bill had an
limiting
that
the substantive
created
so
added clause
the state to
acts
“may”
only
reading:
admir-
waters,
be enforced not
its own
“as to causes
alty”
suit,
accruing
law
but
common
civil
within
of action
the territorial
agree
jury
with a
trial.
do
We
not
Representative
limits
state”.
“may”
this construction
the word
striking
offered an
Mann
amendment
including jury trial.
gave
this clause. Mann
out
as his rea-
striking
limiting
of a
trial
son for
out the
clause
This contention
giving
state,
House in the consid- that it was to save
the.
statutes
discussed
enacted
which was
seas
bill
eration
cases.
opposed
they
day,
March
discus- Some
because
wanted the
that
Congres-
covering
pages
agreed
of the
five
Act to be exclusive. Others
sion
day clearly
ground
of that
shows
amendment
record
767
sional
admiralty jurisdiction
passed is exclu- as
be held invalid
on the
ground
Appellant
of the: constitutional
does.
control of
sive.
, n
Congress
Report
Reports,
discussed
Senate
above.
Committee
Report
66th
House
Con-
with Mann
216 and
who offered the
30 L.
risburg,
limitation
S.Ct.
amendment and the
existed
358 thát no such
stricken from the
Ed.
bill.
which lead
federal courts
in mind
Further,
had
Mann
doubt
Seas Act.
holding
cases,
some
of the federal
controlled
that the laws
state
saving
28 U.
to suitors clause
ships
persons
action of
within
41(a)
in 1948
was amended
S.C.A.
their death
and had construed
seas
general
part
as a
U.S.C. §
applying there. Southern
statutes as
avoid
of the federal codes
amendment
Costa, Cir.,
De
Pac. Co. v.
1911,
Valle Da
between suits at
distinction
*4
ty2
689;
Nav. Co.
International
F.
equi
read:
to
475;
Lindstrom, Cir., 1903,
123 F.
have
“The district courts shall
McGee, S.D.N.Y.1924,
F.
James
original
jurisdiction,
of
exclusive
Ward, Jr.,
The E. B.
C.C.E.D.La.
(1)
of the
of:
the courts
Any
F. 456.
admiralty
mari-
of
or
civil case
Congress
Even if
had not
saving
jurisdiction,
time
suitors
interpretation
proponent of
the
of the
other remedies to
in all cases all
amendment,
we
hesitate
the
they are
entitled.”
which
otherwise
exceptive
depriv-
construe the
clause as
[Emphasis added.]
existing juris-
the states of the then
foot-
the
The reviser’s statement
in
the above
dictions shown as exercised in
may mean
well
that the amendment
note
merely
cited cases.
the law
it was be-
restated
as
Congress had
As to the federal courts
High
the
was
fore the Death on
Act
Seas
saving
provision,
enacted the
to suitors
passed, and hence the italicized word
41(3),
depriving
expressly
phrase
they are
in
“to
“are”
the
the district courts of the
* * * entitled”,
a
would foreclose
passengers
over claims of such
as
common law claim such as here asserted.
prior
to the enactment of
the
assuming
However,
1333 refers
that §
Act,
pertinent por-
the
Seas
the
Congress
claims,
subsequent
we think
tions of which road:
admiralty
created a substantive
has
right
Admiralty causes, seizures,
“(3)
solely
asserted
in the federal
prizes.
and
Third. Of all civil
admiralty,
plain
in
the
words
courts
admiralty
causes of
and maritime
of
Seas Act that
the admin-
the
saving
jurisdiction,
in all
to suitors
“may
dam-
istrator
maintain a suit for
the
of a common-law
cases
remedy
ages in
district
of the United
the
courts
*. The
admiralty.”
States, in
ex-
courts
of the district
shall
injur-
arising
question
of
was
in
dis-
causes
out
raised
the
tend to
persons
of the
death of
other than
cussion
Seas bill
to or
ies
crew, House,
passed
where it was
or
of the
after Con-
the master members
gressman Volstead,
compensation
provided
author of the
for which
bill,
compensation
it on
answered
the floor of the
workmen’s
language
Territory,
any State, District,
or House
the affirmative. The
of
of
discussion is:
possession of the
United States.”
supplied.]
[Emphasis
Igoe.
gentle-
“Mr.
Does not the
respecting
think that he
man
should inform the
this statute
the dis-
It
holding
gentleman
(Mr.
in The Har-
courts
Ohio
Rick-
trict
chango
where
reviser’s notes
common
this
law is com-
2. Of
petent
give it.’ The
state:
substituted
section
lan-
simpler
‘saving
guage
expressive
and
to suitors’ clause
said
more
“The
of
changed
41(3)
371(3)
original
intent of
and
and
sections
substituting
‘any
conformity
other rem-
with rule 2
words
of the Federal
edy
abolishing
ishe
otherwise entitled’ for
Rules
Civil
to which
of
Procedure
equity.”
between law
‘the
of
common-law
and
words
distinction
out,3
portion
etts)
mil be in
another
this
admiralty
provides:
will be no
section
and that there
jury,
Member
so that no
plaintiff pending
“Death of
action
may.
misunder-
House
person
“If a
die
result
standing
it? That
about
wrongful act, neglect,
such
or de-
and it was decided
was thrashed out
fault as is mentioned in section 761
incorporate into this bill
best not to
during
pendency
title
this
of the difficul-
trial because
court of
United
admiralty proceedings.”
ties
States of a suit to recover
(Page
Emphasis
personal injuries
respect
Virginia.
act, neglect,
default,
such
“Mr. Moore of
personal representative
bill,
purpose
I under-
this
the dece-
juris-
it,
give
party
dent
stand
exclusive
be substituted
is to
as a
n
may proceed
diction
courts
the suit
as a suit
chapter
recovery
under
occurs on the
where the accident
*5
compensation provided
seas.
30,
section 762 of this
Mar.
title.
That
it.”
“Mr. Volstead.
1920,
Ill,
5,
c.
41 Stat. 537.”
(Page
Congressional
4483.)
Rec-
give specifi-
There would be no need to
ord,
59, Part
Volume
V.
cally
this
of substitution to exist-
Construing
words, if
Act’s
ing tort death cases in the district courts
Higa’s diversity proceeding at common if the Act were intended to cover cases
pages 115, 116, 25 L.Ed.
Act it would
ket Co. v.
vented,
peated innumerable times. Another
nificant.’ This rule has been re-
rule
so construed
so as to make all the
strued in connection with the
shall be
every part of a statute must be con-
Abridgment, 2, it was said that ‘a
nize,
to each.”
tion that
cardinal
any part of
every
shall,
admiralty.”
“We
were
statute
if
equally
word. As
if
are not at
ought, upon
possible,
permitted
superfluous,
rule
Hoffman, 101
possible,
clause, sentence,
make
significance
so as to
that,
its
recognized
As was
statutory
superfluous
language.
early
liberty
if it can be
by
be accorded to
void,
deny
give
parts
as in Bacon’s
stated
782:
whole,
to construe
and effect
construc-
meaning
High
effect to
or word
It is
harmo-
its words
whole,
insig-
pre-
Mar
at
at
&
in an action at common law.
presumption that
ready possessed by them, and under
cising
and determine causes of action cre-
But
added.)
phasis ated
particular way,
the state
implication. And, considering the
be left to the
relation between the Federal and
Ct.
statute which created the
tribunal,
clusive
Connolly,
creating
S. A. R. Co. v.
page 490,
L.Ed.
“ * * * Where
prevent
544, 28
jurisdiction
relies
they
remedy,
Federal statute. Robb v.
111 U.S.
government,
L.Ed.
32 S.Ct.
state courts from exer-
general jurisdiction
had the
strongly
where,
right provides
aggrieved party
remedy given by
Wallace,
to be enforced in a
or before a
is not defeated
[542]
[624], 637,
the Court stated:
power
546.”
there is no
Galveston,
223 U.S.
at
intended
to hear
page 206,
statute
an ex-
right.
(Em-
4 S.
will
al-
by
481,
H.
Concerning the rule of the last sen-
above,
As seen
Seas Act in
Judge
tence,
pointed
as
Goodman has
pro-
Section
amended
the Mann
page
opinion
At
in bis
excellent
Airlines, D.C.,
Wilson v. Transocean
F.Supp. 85.
cognizable
posal,
recognized
jurisdiction
new creation was
ty.
in admiral-
"al-
ready possessed"
It held that where the seaman i~
in New York to enter-
given
employer
to sue his
at
tain suits for death on the
seas.
injuries
respecting
prior
common law for
caused
Hence this case
ex-
negligence,
isting right
expresses
latter's
the fact that the tort
in the state court
regard
was maritime
in character
and that
in its flrs~ sentence what we
customarily
applicable
maritime torts are
admiralty
in the
law here.
jurisdiction, warranted
Higa also relies on United States v.
suing
Here the case is
York,
463, 479,
Bank of New
the exact reverse. There is no
343, 348,
331, 1936,
56 S.Ct.
80 L.Ed.
constitutionality
of the Act. The
proposition
grant
that "the
provides
Seas statute
not,
to one court does
newly
created maritime
is to be
itself, imply
that the
is to be
considered in the federal courts in which
(Emphasis
exclusive."
From
customarily
such torts are
considered.
language
argues
he
the Death
appellee's
The case tends to sustain the
Seas Act should not be
contention.
provide
juris-
construed to
for exclusive
following
admiralty"
pro-
district court cases hold
diction "in
as its text
vides.
an action under the Death on the
in a civil suit
significant phrase
quoted
and that
is not confined to
language is "of itself." There was noth- admiralty.
*6
Sierra
v. Pan American
ing in the Bank of New York case to in-
Airways,
Rico,
World
D.C.D.Puerto
dicate that
was to be ex- 1952,
F.Supp. 519;
107
Batkiewicz v.
clusive other than the fact that 28 U.S.
Shipping Co., D.C.S.D.N.Y.1943,
53
(now
1345) gave jur-
§
C. 41
28 U.S.C.
F.Supp. 802; Choy v. Pan-American
Airways, D.C.S.D.N.Y.1941, 1941 A.M.
isdiction to the district court in all civil
brought by
suits
the United States as
arguments
C. 483. The
contained in
plaintiff.
rights
Often the
analyzed
these cases have been
above.
plaintiff
United States as a
could be bet-
agree
We
with what we said in The
court, especial-
ter determined in a state
Silverpalm,
Cir., 1935,
9
79 F.2d
ly
question
where the
was one of claims
600:
to a fund as was the case in United
“
*
Had the court
fol-
v. Bank of New
States
York.
Admiralty
(28
lowed
Rule 46-1/2
Here, however,
following
723),
IJ.S.C.A.
section
Seas Act creates the
to recover for
process
making findings
mental
designates
only
death and
not
quite likely
suggested
would have
enforcement,
the federal court for its
to it the distinction between a cause
particular
but a
of that
of action based on the British stat-
court. The
is a matter of federal
ute, concerning which its decision
law where state courts would have no might
permitted
a suit other-
competence. There
is more
proceed-
wise than in the limitation
.
grant
jurisdiction,
here than
Mng
muse
aciion
and a
itself
which indicates that
the Unüed Smes
sUtute>
/rom
jurisdiction was intended to
exclu
stage
iitigation,
wMch at
slve‘
rate,
any
should have been con-
at
also relies on Panama R. Co. v.
limitation
to the
fined
any
Johnson,
and,
event,
44
68
for death caused
S.Ct.
considering
L.Ed. 748
46
United States naval vessel out-
Jones
on a
Supreme
jurisdiction,
U.S.C.A.
688. There the
territorial
side state
Furthermore,
frankly
Court
struing
stated that
was con-
in a case
it
impression,
involving
that Act to avoid the constitu-
of first
being
presented,
important question
tional
whether
tort
here
786
writing
opinion in accord-
whether
the case should
dis-
have been
of an
admiralty
prac-
long-established
missed or transferred
with the
ance
enlarge
Generally
may
district
docket.
in this
not
tice
scope
appeal
petition
mind
of an
have concentrated
rehearing.
Jaynes
v. United
on the terms
of the court
Cir.,
367;
in-
F.2d
Mitchell v.
Gree-
United States
nough,
Cir., 1939,
volved,
provision
what-
lines, without fecting appeal. Compagnie Trans Generale Iafrate v. D.C.S.D.N.Y.1952, atlantique, 106 F. We find no reason to de- disturb our Supp. 619. 15, 1955, cision of December re- mains unaltered. disposition case makes un of this Our necessary whether the determination applies airplanes which in; navigating way water are
vessels. judgment, affirm the We clearly de one of the class the case is following language, 223 scribed in the page 490, page at
U.S. at S.Ct. case, Galveston, H. & A. R. Co. S. In the Matter of Howard D. MITCHELL. creating supra, the statute “Where Misc. No. 482. *7 remedy, right provides an exclusive Appeals States Court United particular way, or be be enforced Ninth Circuit. aggrieved tribunal, fore a Oct. given party will be left to right.” which created the Rehearing Petition for On
PER CURIAM. granted
Higa rehearing whether the order of the dis determine dismissing without his case
trict court prejudice action in to file an aside and the case remand be set should admiralty docket of the court ed to the On this court below.1 judge the trial that an ac view of under
tion seq., 761 et could brought only in an action. pe first time in raised for the rehearing tition appro 103 F.2d Kobilkin Pills- This court so remand in Cir., 1939, bury, priate F.2d 667. Twin Harbor Steve case. See doring Tug Marshall, Cir., &. Co. v.