Calhoun v. Yamaha Motor Corp.

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit

11-2-1994

Calhoun v. Yamaha Motor Corp., et al.
Precedential or Non-Precedential:

Docket 93-1736

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________________

NOS. 93-1736 and 93-1737
_____________________

LUCIEN B. CALHOUN; ROBIN L. CALHOUN,
individually and as Administrators of the
Estate of Natalie K. Calhoun, deceased

v.

YAMAHA MOTOR CORPORATION, U.S.A.;
YAMAHA MOTOR CO., LTD.; PALMAS DEL MAR COMPANY;
PALMAS DEL MAR, INC.; PALMAS YACHT CLUB, INC.;
MARINA DE PALMAS YACHT CLUB, INC.; MAXXAM
PROPERTIES, INC.; ABC CORPORATION; XYZ
PARTNERSHIP(S); CANDELERO HOTEL CORPORATION;
MARINA DE PALMAS SHIPYARD, INC.

Yamaha Motor Corporation, U.S.A. and
Yamaha Motor Company, Ltd.,
Appellants in No. 93-1736

LUCIEN B. CALHOUN; ROBIN L. CALHOUN,
individually and as Administrators of the
Estate of Natalie K. Calhoun, deceased,

Appellants in No. 93-1737

v.

YAMAHA MOTOR CORPORATION, U.S.A.;
YAMAHA MOTOR CO., LTD.; PALMAS DEL MAR COMPANY;
PALMAS DEL MAR, INC.; PALMAS YACHT CLUB, INC.;
MARINA DE PALMAS YACHT CLUB, INC.; MAXXAM
PROPERTIES, INC.; ABC CORPORATION; XYZ
PARTNERSHIP(S); CANDELERO HOTEL CORPORATION;
MARINA DE PALMAS SHIPYARD, INC.

_____________________________

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 90-04295)
_____________________________
 Argued: April 13, 1994

Before: BECKER, MANSMANN and SCIRICA, Circuit Judges.

(Filed November 2, l994 )

THOMAS A. MASTERSON, JR., ESQUIRE
(ARGUED)
Manchel, Lundy & Lessin
1600 Market Street
33rd Floor
Philadelphia, PA 19103

WILLIAM J. TAYLOR, JR., ESQUIRE
Taylor & Taylor
1801 Market Street
811 Ten Penn Center
Philadelphia, PA 19103

Attorneys for Appellees/Cross-Appellants
Lucien B. Calhoun and Robin L.
Calhoun

JONATHAN DRYER, ESQUIRE (ARGUED)
WILLIAM R. HOFFMAN, ESQUIRE
Wilson, Elser, Moskowitz,
Edelman & Dicker
The Curtis Center - Suite 830 East
Independence Square West
Philadelphia, PA 19106

Attorneys for Appellants/Cross-Appellees
Yamaha Motor Corporation,
U.S.A.
and Yamaha Motor Company, Ltd.

______________________________

OPINION OF THE COURT
_______________________________

BECKER, Circuit Judge.
 These consolidated interlocutory cross appeals before

us pursuant to 28 U.S.C. § 1292(b) (1993) present an interesting

and important question of maritime law: whether state wrongful

death and survival statutes are displaced by a federal maritime

rule of decision concerning the remedies available for the death

of a recreational boater occurring within state territorial

waters,1 which are explicitly excluded from the reach of the

Death on the High Seas Act, 46 U.S.C.A. § 761 (1975). The

remedies at issue are loss of society, loss of support and

services, loss of future earnings, and punitive damages.

This case arose when Natalie Calhoun, the twelve year

old daughter of plaintiffs Lucien and Robin Calhoun, was killed

in a boating accident in the waters off Puerto Rico. Natalie had

been riding a "Wavejammer," a type of jet ski manufactured by

Yamaha Motor Corporation, U.S.A., and its parent company, Yamaha

Motor Company, Ltd. (collectively referred to as "Yamaha").

Plaintiffs sued Yamaha seeking recovery under the Pennsylvania

wrongful death and survival statutes, 42 PA. CONS. STAT. ANN. §§

8301-8302 (1982 & Supp. 1994). In granting partial summary

judgment for Yamaha on the issue of available damages, the

district court held that federal maritime law displaced both

state remedies, and fashioned a federal common law rule

1
"State territorial waters" refers to waters within the
territorial limits of a state, as well as "the coastal waters
less than three nautical miles from the shore of a state."
William C. Brown, III, Problems Arising from the Intersection of
Traditional Maritime Law and Aviation Death and Personal Injury
Liability, 68 TUL. L. REV. 577, 581 (1994).
applicable to cases involving the death of a non-seaman in

territorial waters under which future earnings and punitive

damages are not recoverable but damages for loss of society or

support are. Each party sought certification to appeal the

portion of the court's ruling that was unfavorable.

We do not reach the question whether the district court

fashioned the proper federal common law remedy, however, because

we conclude that the federal maritime law does not displace state

wrongful death or survival statutes in this context. Rather,

applying traditional admiralty choice of law principles, we hold

that the appropriate rule of decision in this area should be

supplied by state law. Our analysis of the Supreme Court's

maritime wrongful death jurisprudence reveals that there is no

federal substantive policy with which state wrongful death or

survival statutes conflict here. In the absence of a clear

conflict, state law rules of decision should apply. We will

therefore affirm the district court's order denying Yamaha

partial summary judgment, reverse the order granting Yamaha

partial summary judgment, and remand the case for further

proceedings consistent with this opinion. On remand, the

district court will have to determine whether the plaintiffs'

claims are governed by the laws of Pennsylvania or of Puerto

Rico, and how the wrongful death and survival laws of those

Commonwealths bear upon plaintiffs' damages.

I. FACTS, PROCEDURAL HISTORY, AND SCOPE
OF THE INTERLOCUTORY APPEAL
 On July 6, 1989, while vacationing with her parents at

Palmas Del Mar Resort, Humacao, Puerto Rico, Natalie Calhoun

rented a Yamaha "Wavejammer." While she was riding the

"Wavejammer," Natalie slammed into a vessel anchored in the

waters off the hotel frontage and was killed. At the time of her

death, Natalie was twelve years old. Her parents, Lucien and

Robin Calhoun, individually and in their capacities as

administrators for the estate of their daughter, sued Yamaha in

the District Court for the Eastern District of Pennsylvania

seeking recovery under the Pennsylvania wrongful death statute,

42 PA. CONS. STAT. ANN. § 8301 (1982 & Supp. 1994), and the

Pennsylvania survival statute, 42 PA. CONS. STAT. ANN. § 8302

(1982). Their complaint invoked federal jurisdiction both on the

basis of diversity of citizenship, 28 U.S.C.A. § 1332 (1993),2

and admiralty, 28 U.S.C.A. § 1333 (1993). The theories of

recovery alleged in the complaint included negligence, strict

liability, and breach of the implied warranties of

merchantability and fitness for purpose. The complaint sought

damages for lost future earnings, loss of society, loss of

support and services, and funeral expenses. It also requested

punitive damages.

On November 27, 1991, Yamaha moved for partial summary

judgment asserting that the damages recoverable in the action, if

2
The Calhouns are citizens of Pennsylvania; Yamaha Motor
Corporation, U.S.A. is a California corporation, and Yamaha Motor
Company, Ltd. is a Japanese corporation.
any, were governed by the federal admiralty law, and that under

that law the plaintiffs were not entitled to lost future wages,

loss of society, loss of support and services, or punitive

damages.3 In its decision on the motion, the district court:

(1) agreed with Yamaha that the federal common law of admiralty

governed the Calhouns' wrongful death and survival actions; (2)

held that the general maritime wrongful death cause of action

recognized in Moragne v. States Marine Lines, Inc., 398 U.S. 375,

90 S. Ct. 1772 (1970), displaced the Pennsylvania wrongful death

and survival statutes and hence that any available remedy was a

function of federal common law; and (3) held that under this

federal common law remedy, lost future wages and punitive damages

could not be awarded but loss of society and loss of support and

services could be. The court therefore granted Yamaha's motion

for summary judgment on the loss of future earnings and punitive

damages, and denied its motion respecting the claims for loss of

society and loss of support and services.

Yamaha moved the district court to certify for

immediate interlocutory appeal, 28 U.S.C.A. § 1292(b) (1993), the

question whether the plaintiffs should be able to recover damages

for the loss of Natalie's society. Believing that the question

was extremely close, the district court granted the motion and

certified the issue to this court.4 Plaintiffs then requested

3
Yamaha has conceded that funeral expenses are compensable.
4
Section 1292(b) allows for immediate appeal of interlocutory
orders (1) which involve a controlling question of law as to
which there is substantial ground for difference of opinion and
where an immediate appeal will materially advance the ultimate
that the district court amend its certification order to add the

question whether future earnings and punitive damages were

recoverable. The district court agreed, and certified the

following question to this Court:
The questions of law certified to the Court
of Appeals are whether, pursuant to [a
federal] maritime cause of action, plaintiffs
may seek to recover (1) damages for the loss
of the society of their deceased minor child,
(2) damages for the loss of their child's
future earnings, and (3) punitive damages.

Both parties petitioned for permission to appeal pursuant to

Federal Rule of Appellate Procedure 5(a). We granted both

petitions and consolidated the appeals. We have jurisdiction

pursuant to 28 U.S.C.A. § 1292(b) (1993).

The district court's statement in the certification

order is limited to the question of what damages are available

under a federal maritime cause of action. On appeal, however,

the parties have also (properly) briefed the question whether

federal maritime law displaced state wrongful death and survival

statutes. As will appear, the answer to the certified question

depends in large part on the resolution of the displacement

question. We presume that the district court intended this

important question of displacement to be considered. But even if

such were not the case, it would not affect our jurisdiction.

As provided in Section 1292(b), we have before us an

appeal from the challenged order, not just the certified

termination of the litigation and (2) which the Court of Appeals
permits pursuant to Rule 5 of the Federal Rules of Appellate
Procedure. See 28 U.S.C.A. § 1292(b); FED. R. APP. P. 5(a).
question. Section 1292(b) requires not that we answer the

certified question, but that we decide an appeal from an

interlocutory order. We therefore are not bound by the district

court's formulation of the question, and may address any issue

that is necessary to decide the appeal before us. See In re

School Asbestos Litigation, 789 F.2d 996 (3d Cir. 1986). There

the district court certified for appeal an order certifying a

compulsory class under Federal Rule of Civil Procedure

23(b)(1)(A) and (b)(1)(B), but after taking jurisdiction we also

reviewed the court's denial of certification under Rule 23(b)(3).

Id. at 1002. See also Johnson v. Alldredge, 488 F.2d 820, 822-23

(3d Cir. 1973) (stating that appeals court is not bound by

district court's statement of the issue on Section 1292(b)

appeal), cert. denied, 419 U.S. 882, 95 S. Ct. 148 (1974); 9

JAMES W. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 110.25[1], at 300 (2d

ed. 1994) ("[I]t is the order that is appealable, and not the

controlling question identified by the district court. Thus, the

court of appeals may address any issue necessary to decide the

case before it.") (footnote omitted). The displacement question,

which, in our view, is the critical question raised by this

appeal, is therefore appropriately before us, and we turn

immediately to it. The questions are ones of law and our review

is plenary.

II. ADMIRALTY LAW AND DISPLACEMENT OF STATE LAW:
GENERAL PRINCIPLES
 As we have noted, the plaintiffs' complaint alleged

federal jurisdiction on the basis of both diversity of

citizenship, 28 U.S.C.A. § 1332 (1993), and admiralty, 28

U.S.C.A. § 1333 (1993).5 The Supreme Court has instructed us

that "[w]ith admiralty jurisdiction comes the application of

substantive admiralty law." East River S.S. Corp. v.

Transamerica Delaval, 476 U.S. 858, 864, 106 S. Ct. 2295, 2298-99

(1986). But knowing that substantive admiralty law applies does

not really resolve the question whether federal or state law

provides the relevant rule of decision. "Although the corpus of

admiralty law is federal in the sense that it derives from the

5
Since this accident involved the allision of a pleasure
craft (the "Wavejammer") with another vessel on navigable waters,
admiralty jurisdiction appears to have been appropriate. See
Sisson v. Ruby, 497 U.S. 358, 110 S. Ct. 2892, 2898 (1990);
Foremost Ins. Co. v. Richardson, 457 U.S. 668, 677, 102 S. Ct.
2654, 2659 (1982) (collision of two boats, neither of which had
ever been engaged in commercial maritime activity, and where site
of accident was on waters seldom, if ever, used for commercial
activity, was within admiralty jurisdiction). The Calhouns now
argue that admiralty jurisdiction is inappropriate. Although
they are entitled to so argue and have reserved their right to
appeal that question from a final order, we doubt that the
existence or non-existence of admiralty jurisdiction matters to
the question of remedies. Even if this were solely a diversity
case (in which event we would still have subject matter
jurisdiction over these cross-appeals) or the parties were in
state court, a federal maritime rule of decision applicable to
the controversy would still displace a state rule that was in
conflict. Although Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58
S. Ct. 817 (1938), states that there is no general federal common
law, it is well settled that there are areas in which specific
bodies of federal common law operate, particularly admiralty.
And where a federal rule (either statutory or common law)
supplies a rule of decision in a particular case, it applies
regardless of the basis of jurisdiction. That is in part what
the reverse-Erie doctrine tells us. See Offshore Logistics, Inc.
v. Tallentire, 477 U.S. 207, 223, 106 S. Ct. 2485, 2494 (1986).
implications of Article III evolved by the courts, to claim that

all enforced rights pertaining to matters maritime are rooted in

federal law is a destructive oversimplification of the highly

intricate interplay of the States and the National Government."

Romero v. International Terminal Operating Co., 358 U.S. 354,

373-75, 79 S. Ct. 468, 480 (1959). See also American Dredging

Co. v. Miller, 114 S. Ct. 981, 987 (1994) (recognizing the

continued vitality of this principle from Romero).

State and federal authorities jointly exercise

regulatory authority over maritime matters. Romero, 358 U.S. at

375, 79 S. Ct. at 481. As a result, state law can, and often

does, provide the relevant rule of decision in admiralty cases.

See, e.g., Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S.

310, 321, 75 S. Ct. 368, 374 (1955) (state law determines the

effect of breach of warranty in a marine insurance policy).

Indeed, "[i]n the field of . . . maritime torts, the National

Government has left much regulatory power in the States." Id. at

313, 75 S. Ct. at 370.

Whether a state law may provide a rule of decision in

an admiralty case depends on whether the state rule "conflicts"

with the substantive principles of federal admiralty law. As

Judge Aldisert explained in Floyd v. Lykes Bros. S.S. Co., 844
F.2d 1044, 1047 (3d Cir. 1988), "state law may supplement

maritime law when maritime law is silent or where a local matter

is at issue, but state law may not be applied where it would

conflict with [federal] maritime law." See also Askew v.

American Waterways Operators, Inc., 411 U.S. 325, 341, 93 S. Ct.
1590, 1600 (1973) (courts in admiralty cases may reach beyond

maritime precedents and apply state law "absent a clear conflict

with the federal law"); Pope & Talbot, Inc. v. Hawn, 346 U.S.

406, 409-10, 74 S. Ct. 202, 205 (1953) ("[S]tates may sometimes

supplement federal maritime policies . . . ."); Sosebee v. Rath,

893 F.2d 54, 56-57 (3rd Cir. 1990) (maritime law preempts

territorial attorney fees provision that directly conflicts with

federal law). Thus, in the context of this case, the

Pennsylvania wrongful death and survival statutes (or the Puerto

Rico death and survival actions) may apply unless they conflict

with a substantive rule of federal admiralty law.

We view this question as being quite similar, if not

identical, to the preemption analysis articulated in Clearfield

Trust Co. v. United States, 318 U.S. 363, 63 S. Ct. 573 (1943),

and its progeny, see, e.g., United States v. Little Lake Misere

Land Co., 412 U.S. 580, 594, 93 S. Ct. 2389, 2398 (1973); United

States v. Kimbell Foods, Inc., 440 U.S. 715, 728-29, 99 S. Ct.

1448, 1458-59 (1979); Boyle v. United Technologies Corp., 487

U.S. 500, 507 n.3, 108 S. Ct. 2510, 2516 n.3 (1988); O'Melveny &
Myers v. F.D.I.C., 114 S. Ct. 2048, 2053 (1994). These cases

recognize that there are areas of unique federal interest which

are entirely governed by federal law, but where federal law

nevertheless "borrows," see Little Lake Misere, 412 U.S. at 594,

93 S. Ct. at 2398, or "incorporates" or "adopts," see Kimbell

Foods, 440 U.S. at 728-30, 99 S. Ct. at 1458-59, state law except

where a significant conflict with federal policy exists.
 While it is clear that under certain circumstances the

general maritime law -- including the wrongful death rule of

Moragne -- may incorporate state law as its rule of decision, the

Supreme Court has begun to view the distinction between federal

law incorporating state law as a rule of decision and state law

operating of its own force as of theoretical importance only.

See O'Melveny & Myers, 114 S. Ct. at 2048 ("In any event, knowing

whether `federal law governs' in the Kimbell Foods sense -- a

sense which includes federal adoption of state-law rules -- does

not much advance the ball. The issue in the present case is

whether the [state] rule of decision is to be applied . . . or

displaced, and if it is applied it is of only theoretical

interest whether the basis for that application is [the state's]

sovereign power or federal adoption of [the state's]

disposition.") (citation omitted). More precisely, although

drawing such a distinction identifies the sovereign "power" being

exercised, it does not have any real bearing on the practical

question whether the state law rule of decision will apply or be

displaced. See id.6 Thus, because it makes little practical

6
See also Boyle, 487 U.S. at 507 n.3, 108 S. Ct. at 2516 n.3
("We refer here to the displacement of state law, although it is
possible to analyze it as the displacement of federal-law
reference to state law for the rule of decision. [Citing Little
Lake Misere and Kimbell Foods]. We see nothing to be gained by
expanding the theoretical scope of the federal pre-emption beyond
its practical effect, and so adopt the more modest terminology.
If the distinction between displacement of state law and
displacement of federal law's incorporation of state law ever
makes a practical difference, it at least does not do so in the
present case."); Martha Field, Sources of Law: The Scope of
Federal Common Law, 99 HARV. L. REV. 881, 977 & n.408 (1986)
("[The] distinction between state law applying directly and state
difference as to whether the general maritime law has

incorporated state law or whether state law provides a rule of

decision of its own force, we simply refer to the problem as

"displacement of state law."7

In admiralty law, determining whether federal maritime

law conflicts with and thus displaces state law has proven to be

extremely tricky. Although we are told time and again under

maritime preemption doctrine that a conflict exists where state

law prejudices the "characteristic features" of federal maritime

law, or interferes with the "proper harmony and uniformity of

that law," Southern Pac. Co. v. Jensen, 244 U.S. 205, 216, 37

S. Ct. 524, 529 (1917), the Jensen language is little more than a

convenient slogan, providing little guidance on the question

whether there is a conflict. See American Dredging, 114 S. Ct.

at 991 (Stevens, J., concurring) ("The unhelpful abstractness of

[the Jensen language] leaves us without a reliable compass for

navigating maritime pre-emption problems."). Indeed, the lack of

a clearly delineated conflicts inquiry in this area has been

law applying through federal reference is of dubious
relevance.").
7
The correct analytic conclusion, we believe, is that admiralty
law simply has not spoken to the factual situation of this case,
see infra at typescript Error! Bookmark not defined.-Error!
Bookmark not defined., 45-Error! Bookmark not defined., and that
state laws accordingly apply of their own force. Were we to find
federal admiralty law governing wrongful death and survival
actions applicable to the death of a recreational boater
occurring within state territorial waters, however, our analysis
would likely lead us to hold that admiralty law either does not
displace or adopts (or incorporates) state (or territorial) tort
law. See infra at n.Error! Bookmark not defined..
problematic. The Supreme Court has consistently struggled with

setting the boundary between conflicting and non-conflicting

state regulation in the area of maritime affairs, and has

recently admitted,
[i]t would be idle to pretend that the line separating
permissible from impermissible state regulation is
readily discernible in our admiralty jurisprudence, or
indeed is even entirely consistent within our admiralty
jurisprudence. Compare [Kossick v. United Fruit Co.,
365 U.S. 731, 81 S. Ct. 886 (1961)] (state law cannot
require provision of maritime contract to be in
writing), with Wilburn Boat Co. v. Fireman's Fund Ins.
Co., 348 U.S. 310, 75 S. Ct. 368 [(1955)] (state law
can determine effect of breach of warranty in marine
insurance policy).

American Dredging, 114 S. Ct. at 987-88 (parallel citation

omitted). See also GRANT GILMORE & CHARLES L. BLACK, THE LAW OF ADMIRALTY

§ 1-17, at 49 (2d ed. 1975) ("The concepts that have been

fashioned for drawing [the line between state and federal law]

are too vague, as we have seen, to ensure either predictability

or wisdom in the line's actual drawing.").

In our view, however, the maritime preemption doctrine

is not significantly different from the preemption doctrine
applicable to non-maritime contexts. See American Dredging, 114

S. Ct. at 992 (Stevens, J., concurring); Wilburn Boat Co., 348

U.S. at 324, 75 S. Ct. at 376 (Frankfurter, J., concurring)

(maritime preemption analysis factors "are not unlike those

involved when the question is whether a State, in the absence of

congressional action, may regulate some matters even though

aspects of interstate commerce are affected"); id. at 333, 75

S. Ct. at 381 (Reed, J., dissenting) ("Since Congress has power
to make federal jurisdiction and legislation exclusive, the

[preemption] situation in admiralty is somewhat analogous to that

governing state action interfering with interstate commerce.").

Therefore, resort to non-maritime preemption doctrine by way of

analogy may help sharpen the focus of the inquiry.8

Stated succinctly, in the absence of an express

statement by Congress (express preemption), (implied) preemption

could occur either where Congress intended that federal law

occupy the field (field preemption) or where there is an actual

conflict between state and federal law such that: (1) compliance

with both federal and state law is impossible; or (2) state law

stands as an obstacle to the accomplishment and execution of the
8
The analogy is not perfect. In Knickerbocker Ice Co. v.
Stewart, 253 U.S. 149, 40 S. Ct. 438 (1920), and Washington v.
W.C. Dawson & Co., 264 U.S. 219, 44 S. Ct. 302 (1924), the
Supreme Court held that some state regulation of maritime
matters, even where authorized by Congress, was precluded
directly by the Constitution and the uniformity implications of
its grant of federal maritime jurisdiction. See Knickerbocker,
253 U.S. at 163-64, 40 S. Ct. at 441; W.C. Dawson & Co., 264 U.S.
at 227-28, 44 S. Ct. at 302. In Knickerbocker, however, a
congressional enactment authorizing state workers' compensation
laws to govern maritime workers was held unconstitutional
"because their provisions were held to modify or displace
essential features of the substantive maritime law." Red Cross
Line v. Atlantic Fruit Co., 264 U.S. 109, 124, 44 S. Ct. 274, 277
(1924). And in W.C. Dawson & Co., a similar congressional act
was invalidated because it "permit[ted] any state to alter the
maritime law and thereby introduce conflicting requirements."
W.C. Dawson & Co., 264 U.S. at 228, 40 S. Ct. at 305. Although
these cases have not been explicitly overruled by the Court, they
rest on a strong nondelegation doctrine the likes of which has
not been seen since the 1930s. At all events, by contrast to the
situations in Knickerbocker and W.C. Dawson, as we detail below,
here we discern no maritime law governing the plaintiffs'
wrongful death and survival actions and no federal interest whose
uniformity would be unconstitutionally impaired by application of
state law.
full purposes and objectives of Congress. See California v. ARC

America Corp., 490 U.S. 93, 100-01, 109 S. Ct. 1661, 1665 (1989)

(antitrust).9

In non-maritime cases, the determination whether there

is a conflict between state and federal law in large part turns

on the interpretation of federal statutes. See Wallis v. Pan

American Petroleum Corp., 384 U.S. 63, 68, 86 S. Ct. 1301, 1304

(1966) ("Whether latent federal power should be exercised to

displace state law is primarily a decision for Congress.").10 In

9
The full Jensen preemption analysis is contained in the now
famous passage stating that state legislation affecting maritime
commerce is invalid "if it contravenes the essential purpose
expressed by an act of Congress, or works material prejudice to
the characteristic features of the general maritime law, or
interferes with the proper harmony and uniformity of that law in
its international and interstate relations." Jensen, 244 U.S. at
216, 37 S. Ct. at 529. This language seems to include the
express preemption and implied preemption concepts of the non-
maritime preemption doctrines. The language also seems to leave
room for field preemption, although it does not appear to
reference it as clearly. But as the First Circuit has recently
recognized in Ballard Shipping Co. v. Beach Shellfish, 32 F.3d
623, 626-27 (1st Cir. 1994), in American Dredging, 114 S. Ct. at
987, the Supreme Court gave the Jensen "characteristic features"
language a limited meaning. "[I]t rea[d] the phrase to apply --
and apparently only to apply -- to a federal rule that either
`originated in admiralty' or has `exclusive application there.'"
Ballard Shipping, 32 F.3d at 627. Under this restrictive
reading, wrongful death and survival statutes would materially
prejudice no "characteristic feature" of admiralty because the
wrongful death and survival remedies did not originate in or have
exclusive application in admiralty. Because applying these state
remedies would not conflict with any congressional legislation,
see infra at typescript Error! Bookmark not defined.-Error!
Bookmark not defined., 45-Error! Bookmark not defined., the focus
of the inquiry in this case, therefore, is whether the
application of state rules of decision will unduly interfere with
the uniformity of federal maritime principles.
10
Maritime law is not simply a creature of statute but is more
an amalgam of common law and statutory principles. But as we
addition, non-maritime cases employ a presumption against

preemption. That is, a court should construe a federal

substantive rule in such a way that it does not conflict with a

state rule in an area traditionally regulated by the states. See

ARC America, 490 U.S. at 102, 109 S. Ct. at 1665. In admiralty

law a similar presumption is incorporated in the case law by the

requirement that there be a "clear conflict" before state laws

are preempted. See Askew, 411 U.S. at 341, 93 S. Ct. at 1600;

cf. Ballard Shipping v. Beach Shellfish, 32 F.3d 623, 630 (1st

Cir. 1994) (stating that where a state remedy is aimed at a

"great and legitimate state concern," a federal court must act

with caution before finding displacement of state law).

In light of these general principles, the question in

this case -- whether state statutory remedies can provide the

rule of decision when a recreational boater is killed in

territorial waters -- largely reduces to an inquiry into whether

the different substantive admiralty rules articulated in federal

statutes and at common law would be frustrated by the application

of state law. Pope & Talbot, Inc., 346 U.S. at 410, 74 S. Ct. at

205 ("[A] state may not deprive a person of any substantial

discuss in the next section, the development of the federal law
of maritime deaths has become increasingly defined by statute,
and the federal statutory schemes have taken a preeminent role in
shaping the federal maritime death remedies, including those
provided by federal common law. This development, in our view,
brings the federal admiralty preemption doctrine more into line
with the run-of-the-mill preemption case law, where the focus of
the inquiry is in large part on statutory interpretation. Cf.
Ballard Shipping, 32 F.3d at 630-31 (looking to a recently
enacted statute to determine whether a federal common law rule
displaced a state statute).
admiralty right as defined in controlling acts of Congress or by

interpretative decisions of this Court."); Wilburn Boat Co., 348

U.S. at 332, 75 S. Ct. at 381 (Reed, J., dissenting) ("State

power may be exercised where it is complementary to the general

admiralty law. It may not be exercised where it would have the

effect of harming any necessary or desirable uniformity.");

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 228, 106

S. Ct. 2485, 2497 (1986) ("[W]here Congress had spoken, or where

general federal maritime law controlled, the States exercising

concurrent jurisdiction over maritime matters could not apply

conflicting state substantive law.").

But before determining whether the substantive federal

policies concerning maritime deaths would be frustrated, it is

important to know what policies have, and have not, been

articulated. This requires some understanding of the history

behind the development of federal remedies for maritime deaths.

Although the "tortuous development"11 of the federal remedies for

maritime deaths is familiar to many, and has been amply described

elsewhere in the case law,12 it is essential background, and so

we will describe at least the major developments.
11
Tallentire, 477 U.S. at 212, 106 S. Ct. at 2488 ("The
tortuous development of the law of wrongful death in the maritime
context illustrates the truth of Justice Cardozo's observation
that `[death] is a composer of strife by the general law of the
sea as it was for many centuries by the common law of the
land.'") (quoting Cortes v. Baltimore Insular Line, Inc., 287
U.S. 367, 371, 53 S. Ct. 173, 174 (1932)).
12
See Miles v. Apex Marine Corp., 498 U.S. 19, 23-27, 111
S. Ct. 317, 320-23 (1990); Tallentire, 477 U.S. at 212-17, 106
S. Ct. at 2488-91.
 III. THE RELEVANT FEDERAL LAW

A. EARLIER BACKGROUND: FROM THE HARRISBURG TO MORAGNE

In 1886, the Supreme Court held in The Harrisburg, 119

U.S. 199, 7 S. Ct. 140, that in the absence of an applicable

state or federal statute, the general maritime law did not afford

a wrongful death cause of action to the survivors of individuals

killed on the high seas, or waters navigable from the sea. The

harshness of this rule prompted reaction from district and

appeals courts, subsequent Supreme Courts, and Congress.

District and appeals courts began to allow recovery for deaths

within state territorial waters where the state had an applicable

wrongful death statute. See Tallentire, 477 U.S. at 212, 106

S. Ct. at 2489.13 The Supreme Court held in The Hamilton, 207

U.S. 398, 28 S. Ct. 133 (1907), that state wrongful death

statutes could, in limited circumstances, be applied to fatal

accidents occurring on the high seas.14 Most importantly,

13
Tallentire cited, inter alia, City of Norwalk, 55 F. 98, 108
(S.D.N.Y. 1893) (state wrongful death statute may validly be
applied to "maritime affairs within the state limits"), aff'd in
part, rev'd in part on other grounds, 61 F. 364, 367-68 (2d Cir.
1894) (application of state wrongful death statute to accident in
state territorial waters valid "in the absence of any regulation
of the subject by [C]ongress") (citing Steamboat Co. v. Chase, 83
U.S. (16 Wall.) 522 (1873) and Sherlock v. Alling, 93 U.S. (3
Otto) 99 (1876)).
14
Under The Hamilton, state wrongful death statutes could apply
in admiralty on the high seas where (1) the statutes were
intended to apply on the high seas, see Tallentire, 477 U.S. at
213, 106 S. Ct. at 2489, which was not often the case, id. at
213-14, 106 S. Ct. at 2489-90 (quoting Moragne, 398 U.S. at 393
n.10, 90 S. Ct. at 1784 n.10); and either (2) "the vessel upon
which the wrongful act occurred was constructively part of the
Congress, in 1920, enacted (1) the Death on the High Seas Act

("DOHSA") which provided a federal wrongful death remedy for

survivors of all persons, seamen and non-seamen, killed on the

high seas, 46 U.S.C.A. § 761-768 (1975 & Supp. 1994), and (2) the

Jones Act, which gives, among other things, a remedy for the

wrongful death of a seaman resulting from a personal injury

suffered during the course of the seaman's employment, 46

U.S.C.A. § 688 (1975 & Supp. 1994).

These developments, particularly the enactment of DOHSA

and the Jones Act, ensured that a wrongful death remedy would be

available for most people killed in maritime accidents. Thus,

between 1920 and 1970, deaths on the high seas were remedied by

DOHSA, deaths in territorial waters were remedied by state

wrongful-death statutes, and deaths of seamen (whether on the

high seas or in territorial waters) were remedied by the Jones

Act. The Harrisburg, however, remained troublesome. Part of the

trouble stemmed from the development of different theories of

recovery for maritime deaths. Explanation of this difficulty

requires reference to the two basic theories on which a seaman

can recover for personal injuries.

territory of the state," or (3) "the wrongdoer was a vessel or
citizen of the state subject to its jurisdiction even when beyond
its territorial limits," id. at 214, 106 S. Ct. at 2490 (quoting
Wilson v. Transocean Airlines, 121 F. Supp. 85, 88 (N.D. Cal.
1954)). As Tallentire notes, however, the limitations placed on
the operation of state statutes for deaths on the high seas made
The Hamilton of little practical import in allowing recovery for
wrongful death. Tallentire, 477 U.S. at 213-14, 106 S. Ct. at
2489-90.
 First, the seaman can claim that the shipowner or some

other potentially liable party was negligent; that is the basis

for recovery under the Jones Act. Second, the seaman can claim

that the vessel was unseaworthy. The doctrine of unseaworthiness

basically imposes on a shipowner a nondelegable duty to provide

seamen a vessel that is reasonably fit for its purpose;15 it is a

"species of liability without fault." Seas Shipping Co. v.

Sieracki, 328 U.S. 85, 94-95, 66 S. Ct. 872, 877 (1946).16 The

Harrisburg, however, sharply limited the operation of the

doctrine of unseaworthiness when a seaman was killed (as opposed

to just being injured) within territorial waters, in the

following manner.

Under The Harrisburg there was no right to recover for

wrongful death under federal maritime law, either on a negligence

theory or on an unseaworthiness theory. Although DOHSA allowed

recovery based on unseaworthiness for deaths outside the three

mile territorial limit, DOHSA did not apply to injuries within

territorial waters. This meant that a seaman's survivors could

not take advantage of the unseaworthiness doctrine when the
15
"[I]n the case of non-seamen, the only duty owed by ship-
owners is that of exercising due care under the circumstances."
2 BENEDICT ON ADMIRALTY § 81(c), at 7-9 n.18 (7th ed. 1994) (citing
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79
S. Ct. 406 (1959)).
16
Sieracki is better known for its holding that longshore
workers were entitled to a warranty of seaworthiness, id. at 97,
66 S. Ct. at 878, thus creating "Sieracki-seamen." That part of
the case was made obsolete by the 1972 amendments to the
Longshore and Harbor Workers Compensation Act ("LHWCA"), see 33
U.S.C.A. §§ 905(b) (1986), which precluded longshoremen from
taking advantage of the doctrine of unseaworthiness.
seaman was killed in territorial waters unless a state statute

allowed recovery based on such a theory. And although some state

statutes did, see The Tungus v. Skovgaard, 358 U.S. 588, 79

S. Ct. 503 (1959) (allowing wrongful death action based on the

doctrine of unseaworthiness because New Jersey wrongful death

statute was construed to allow such a theory), some did not, see

Moragne v. State Marine Lines, 211 So. 2d 161, 166 (Fla. 1968)

(holding that Florida wrongful death statute did not allow

recovery for unseaworthiness).SUBSEQUENT HISTORY NEEDED?

The Harrisburg also created a complete bar to recovery

for unseaworthiness for "Jones Act seamen" killed in territorial

waters when it was combined with Lindgren v. United States, 281

U.S. 38, 50 S. Ct. 207 (1930), and Gillespie v. United States

Steel Corp., 379 U.S. 148, 85 S. Ct. 308 (1964).17 Lindgren and

Gillespie held that the Jones Act was the exclusive wrongful

death remedy for seamen and could not be supplemented by state

wrongful death actions.18 The result was that, since the Jones

Act allowed recovery only on the basis of negligence, the

doctrine of unseaworthiness was of no aid to a Jones Act seaman

who was killed within territorial waters. See Kernan v. American
Dredging Co., 355 U.S. 426, 428-30, 78 S. Ct. 394, 396-97 (1958).
17
We use the term "Jones Act seamen" in contrast to "Sieracki-
seamen," see supra n.16.
18
It is important to note here that both Lindgren and Gillespie
were limited to the preemptive effect of the Jones Act's wrongful
death remedy on state wrongful death statutes. They did not
challenge the Supreme Court's holding in Mahnich v. Southern S.S.
Co., 321 U.S. 96, 64 S. Ct. 455 (1944), that an injured Jones Act
seaman could invoke the doctrine of unseaworthiness to sue for
injuries, wherever contracted.
 The combination of The Harrisburg, Lindgren, and

Gillespie created disarray in the field of remedies for wrongful

death of seamen, and led to three "anomalies" or "incongruities"

in admiralty law that eventually made the regime intolerable.19

"First, in territorial waters, general maritime law allowed a

remedy for unseaworthiness resulting in injury, but not for

death." Miles v. Apex Marine Corp., 498 U.S. 19, 26, 111 S. Ct.

317, 322 (1990). Second, survivors of seamen killed outside the

three-mile territorial limit could pursue a wrongful death action

based on unseaworthiness, while survivors of those killed inside

territorial waters could not, unless a state wrongful death

statute allowed recovery based on unseaworthiness. Moragne, 398

U.S. at 395, 90 S. Ct. at 1785. Third, survivors of a "Sieracki-

seaman," see supra at n.16, could recover for a death within

territorial waters under applicable state statutes, while

survivors of a Jones Act seaman (a "true" seaman) could not.

Moragne, 398 U.S. at 395-96, 90 S. Ct. at 1785.

In 1970 the Supreme Court decided that enough was

enough, and in Moragne v. States Marine Lines, Inc., 398 U.S.

375, 90 S. Ct. 1772 (1970), the Court overruled The Harrisburg
and recognized a general maritime wrongful death cause of action

under federal common law. Id. at 378, 90 S. Ct. at 1776.

Moragne was, by all accounts, a landmark case. Although its

specific holding merely created a general maritime wrongful death

19
The "anomalies" were explained in Moragne, 398 U.S. 394-96,
90 S. Ct. at 1784-85.
remedy based on the doctrine of unseaworthiness, it has since

been interpreted as creating a wrongful death remedy based on

negligence. See GILMORE & BLACK § 6-33, at 368 ("The remedy

provides recovery for deaths caused by negligence as well as for

deaths caused by unseaworthiness . . . ."); Miles v. Melrose, 882

F.2d 976, 985 (5th Cir. 1989), aff'd sub nom. Miles v. Apex

Marine Corp., 498 U.S. 19, 111 S. Ct. 317 (1990).20 Moragne has,

of course, been the focus of detailed analysis and description in

the case law and commentaries, which we need not repeat here. It

is important, however, to point out that, to justify creating the

general maritime wrongful death remedy, the Court invoked the

20
The case law, however, does not uniformly hold that the
Moragne wrongful death remedy applies to claims based on
negligence. See, e.g., Ford v. Wooten, 681 F.2d 712, 715-16
(11th Cir. 1982) (holding that the Moragne remedy applies only to
unseaworthiness, not negligence); Ivy v. Security Barge Lines,
Inc., 606 F.2d 524, 527 (5th Cir. 1979) (en banc) (same, as
concerns Jones Act seamen).
need for "uniform vindication of federal policies,"21 and the

"humane and liberal character of proceedings in admiralty."22

One aspect of Moragne -- a jurisprudential one -- must

however be related in some detail. Moragne brought to the fore

the importance of federal statutory remedies in determining the

appropriate shape of the general maritime law. At the time

Moragne was decided, DOHSA and the Jones Act both provided

wrongful death remedies in admiralty. The existence of these

statutory schemes left it unclear whether a court could create a

federal common law rule in the area. Although DOHSA and the

Jones Act reflected a strong public policy favoring survivors'

recovery for wrongful deaths, at the same time they also may have

represented a considered legislative judgment that wrongful death

remedies should go no further than those provided for by statute.

21
As Justice Harlan put it:

Our recognition of a right to recover for wrongful death
under general maritime law will assure uniform
vindication of federal policies, removing the tensions
and discrepancies that have resulted from the necessity
to accommodate state remedial statutes to exclusively
maritime substantive concepts. Such uniformity not
only will further the concerns of both of the 1920 Acts
[DOHSA and the Jones Act] but also will give effect to
the constitutionally based principle that federal law
should be a system of law coextensive with, and
operating uniformly in, the whole country.

Moragne, 398 U.S. at 401-02, 90 S. Ct. at 1788 (internal
quotation marks and citations omitted).
22
Id. at 387, 90 S. Ct. at 1780-81 (quoting The Sea Gull, 21
Fed. Cas. 909-10 (C.C.D. Md. 1865) (No. 12,578)). The Moragne
court recognized that the maritime law "included a special
solicitude for the welfare of those men who undertook to venture
upon hazardous and unpredictable sea voyages." Id.
 The undertaking in Moragne, in large part, was to

determine whether the existing statutory remedies were to place a

ceiling or a floor on available remedies for wrongful death.

After searching the federal legislation and the case law, the

Moragne court concluded that "Congress [had] given no affirmative

indication of an intent to preclude the judicial allowance of a

remedy for wrongful death to persons in the situation of [the]

petitioner." Moragne, 398 U.S. at 393, 90 S. Ct. at 1784. In

the absence of such an affirmative indication from Congress, the

Court believed it appropriate to recognize a general maritime

wrongful death cause of action. As we detail below, this aspect

of Moragne -- the importance of federal statutory schemes in

shaping non-statutory remedies -- has been particularly far

reaching in the Court's wrongful death jurisprudence since

Moragne.

B. THE POST-MORAGNE CASES: GAUDET, HIGGINBOTHAM,

TALLENTIRE, AND MILES

Four post-Moragne decisions are particularly important

to our decision: Sea-Land Services, Inc. v. Gaudet, 414 U.S.
573, 94 S. Ct. 806 (1974); Mobil Oil Corp. v. Higginbotham, 436

U.S. 618, 98 S. Ct. 2010 (1978); Offshore Logistics, Inc. v.

Tallentire, 477 U.S. 207, 106 S. Ct. 2485 (1986); and Miles v.

Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317 (1990). These

cases have further refined the federal maritime cause of action

recognized in Moragne and provide some outline of the legal

architecture for maritime death claims. But although they
adumbrate the domains in which federal statutory, federal common

law, and state statutory remedies operate to provide a rule of

decision in maritime death cases, a brief survey of these

decisions shows that significant areas of uncertainty remain.

1. GAUDET

Gaudet addressed the types of damages available for a

longshoreman killed in territorial waters, 414 U.S. at 573, 94

S. Ct. at 806, and concluded that nonpecuniary damages for loss

of society were available. Id. at 587-88, 94 S. Ct. at 816.

Although recognizing that DOHSA did not compensate for

nonpecuniary losses, id. at 588 n.22, 94 S. Ct. at 816 n.22, the

Court studiously ignored the example of DOHSA and followed the

"humanitarian policy of the maritime law" that favored recovery

for loss of society. Id. at 588, 94 S. Ct. at 816. Three

aspects of Gaudet are worth mentioning. First, the decision

recognizes damages for loss of society as being available in a

general maritime wrongful death action. Id. at 587, 94 S. Ct. at

816. Second, on its face, Gaudet appears to approve of the

application of state statutes in maritime death cases.23 See id.

at 587-88, 94 S. Ct. at 816. Third, and perhaps most important,

Gaudet (together with its offspring, American Export Lines, Inc.
v. Alvez, 446 U.S. 274, 100 S. Ct. 1673 (1980)) represents the

first, and last, time that the Court departed from the guidance

23
Gaudet also cited approvingly to a decision of this court,
Dugas v. National Aircraft Corp., 438 F.2d 1386 (3d Cir. 1971),
which joined a state survival statute to a general maritime
wrongful death cause of action. Gaudet, 414 U.S. at 588 n.24, 94
S. Ct. at 817 n.24.
of federal statutory wrongful death remedies in shaping recovery

for wrongful death.24 Cf. Gaudet, 414 U.S. at 601-02, 605, 94

S. Ct. at 823, 825 (Powell, J., dissenting). Indeed, since

Gaudet, the Court, disapproving of that decision but reluctant to

overrule it directly, has narrowed the case to its facts so that

the decision may be, for all intents and purposes, a dead letter.

See Miller v. American President Lines, 989 F.2d 1450, 1458 (6th

Cir. 1993) ("Although Gaudet has never been overruled, its

holding has been limited over the years to the point that it is

virtually meaningless."), cert. denied, 114 S. Ct. 304 (1993).

2. HIGGINBOTHAM

In Higginbotham, 436 U.S. at 618, 98 S. Ct. at 2010,

the Court addressed the question whether survivors of a person

killed on the high seas were entitled to recover damages under

federal maritime law in addition to the damages available under

DOHSA. Of particular interest to the Court was whether the loss

24
In American Export Lines, the Supreme Court held that general
maritime law allowed the wife of a harbor worker to bring an
action for damages for loss of society due to a maritime tort
suffered by her husband. Although DOHSA and the Jones Act did
not themselves provide such non-pecuniary damages, the Court
allowed them, reasoning à la Gaudet that DOHSA was the exclusive
remedy only for "fatal injuries incurred on the "high seas," 446
U.S. at 282, 100 S. Ct. at 1678, and that "the Jones Act does not
exhaustively or exclusively regulate longshoremen's remedies,"
id. at 282-83, 100 S. Ct. at 1678.
Miles v. Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317
(1990), allowed a maritime wrongful death action for the death of
a Jones Act seaman in territorial waters due to unseaworthiness.
Despite the Jones Act's provision of liability only for deaths
due to negligence, the holding in Miles may still be seen as
following congressional guidance in that DOHSA allowed recovery
for deaths occurring on the high seas due to unseaworthiness, and
the Court's holding merely harmonized those two statutes.
of society damages recognized in Gaudet were available where the

death occurred on the high seas notwithstanding the fact that

DOHSA itself did not allow for loss of society damages. The

Court's answer was "no." The reasoning of Higginbotham was

straightforward: Congress had specifically spoken to the issue

of damages in DOHSA and provided damages only for pecuniary

losses, and it was not open to the Court to authorize

supplementary relief that went beyond that authorized by

Congress. Id. at 626, 98 S. Ct. at 2015. Although not explicit

in the decision, Higginbotham drew its inspiration directly from

the statutory analysis in Moragne that we have identified

above.25 The only difference between the analysis in Moragne and

that in Higginbotham is that while Moragne saw a gap in the

statutory scheme, Higginbotham saw none. See id. at 625, 98

S. Ct. at 2015.

3. TALLENTIRE

Eight years later came Tallentire, 477 U.S at 207, 106

S. Ct. at 2485, which involved a claim for damages for a death on

the high seas. This time the question was whether remedies

available under a state wrongful death action could supplement

the remedies available under DOHSA. The Court again said "no,"

holding that the Louisiana wrongful death statute (which allowed

recovery for loss of society) could not apply to a claim governed

by DOHSA. Id. at 233, 106 S. Ct. at 2499. Again, the analysis

25
But see id. at 625, 98 S. Ct. at 2015 (citing Moragne's
discussion of congressional intent concerning DOHSA).
had been foreshadowed by Moragne and Higginbotham: Congress had

spoken directly to the question of damages for deaths on the high

seas in DOHSA, and the Court was not free to supplement the

statutory scheme (with a state law remedy).

The main battle in Tallentire, however, was not over

the applicability of the Higginbotham mode of analysis to a state

wrongful death statute;26 rather, the principal dispute was over

the construction of Section 7 of DOHSA, which provided in

pertinent part that
[t]he provisions of any State statute giving or
regulating rights of action or remedies for death shall
not be affected by this chapter.

46 U.S.C.A. § 767 (1975). A circuit split existed on the

question whether this section preserved the operation of state

wrongful death statutes for deaths on the high seas. In a 5-4

decision, the Court held that the clause was nothing more than a

jurisdictional savings clause which preserved the rights of state

courts to "entertain causes of action and provide wrongful death

remedies both for accidents arising on territorial waters and,

under DOHSA, for accidents occurring more than one marine league

from shore." Tallentire, 477 U.S. at 221, 106 S. Ct. at 2493.
Although the Court justified its result in part by

stressing the advantage of having a uniform remedy for deaths on

the high seas, see id. at 230-31, 106 S. Ct. at 2498-99, the

26
Tallentire also discussed the applicability of the remedies
afforded under the Outer Continental Shelf Lands Act, 43 U.S.C.A.
§ 1331 et. seq. (1986 & Supp. 1994), id. at 217, 106 S. Ct. at
2491, but that discussion is not pertinent here.
Court's reasoning was ultimately grounded on its interpretation

of the legislative history of Section 7 of DOHSA. In surveying

the legislative history of DOHSA, the Court stated that Section 7

was included in the act in order to save state remedies within

territorial waters. According to the Court, "[t]he reach of

DOHSA's substantive provisions was explicitly limited to actions

arising from accidents on the high seas, so as to `prevent the

Act from abrogating by its own force, the state remedies then

available in state waters.'" Id. at 224, 106 S. Ct. at 2495

(quoting Higginbotham, 436 U.S. at 621-22, 98 S. Ct. at 2013)

(internal citation omitted). It concluded that
because DOHSA by its terms extended only to the high
seas and therefore was thought not to displace these
state remedies on territorial waters, [see Moragne], §
7, as originally proposed, ensured that the Act saved
to survivors of those killed on territorial waters the
ability to pursue a state wrongful death remedy in
state court.

Id. at 224-25, 106 S. Ct. at 2495. According to one commentator,

the implication of the Court's decision in Tallentire is that

although survivors of a person killed on the high seas may seek

only the limited recovery provided by DOHSA, "[i]f the same

accident occurs within a marine league from shore, where [DOHSA]

has no effect, the survivors can recover damages under the state

wrongful death statute, including, when provided, reimbursement

for non-economic losses." 14 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE

AND PROCEDURE § 3672, at 295 (Supp. 1994).

4. MILES
 The latest case in the Court's wrongful death

jurisprudence is Miles, 498 S. Ct. at 19, 111 S. Ct. at 317. In

Miles, the mother of a Jones Act seaman killed in territorial

waters pressed a Moragne cause of action based on the doctrine of

unseaworthiness. The Court considered two issues: first,

whether the Jones Act provided the exclusive measure of remedies

for the death of a Jones Act seaman where recovery was premised

on the Moragne cause of action, and second, whether a general

maritime survival action recognized loss of future earnings for a

Jones Act seaman. The Court held that the Jones Act damages were

the exclusive measure of damages allowed to a Jones Act seaman,

regardless of whether the claim was based on Moragne; it then

held that the Jones Act damages controlled any recovery based on

a general maritime survival action for the death of a Jones Act

seaman, and that since the Jones Act did not allow recovery for

future earnings, they were not recoverable under Moragne. Id. at

32-33, 36, 111 S. Ct. at 326, 328.

Miles reflects the preeminence that the Moragne

statutory analysis has achieved in shaping wrongful death

remedies. By the time of Miles, the entire inquiry into remedies
for deaths has been reoriented into an inquiry into what the

relevant statutes had stated.
We have described Moragne at length because it
exemplifies the fundamental principles that guide our
decision in this case. We no longer live in an era
when seamen and their loved ones must look primarily to
the courts as a source of substantive legal protection
from injury and death; Congress and the States have
legislated extensively in these areas. In this era, an
admiralty court should look primarily to these
legislative enactments for policy guidance.
Id. at 27, 111 S. Ct. at 323. But importantly for this appeal,

Miles showed no great hostility to the operation of state

statutes in providing rules of decision in admiralty cases.

The passage quoted above hints that state statutory

schemes have a role to play in admiralty cases. Such a role

received fuller articulation later in the Miles opinion, where

the Court discussed the question whether a general maritime

survival action existed. Although it ultimately declined to

address the issue, the Court's discussion seemed to sanction some

lower courts' practice of applying state survival statutes to

deaths at sea. Id. at 326 ("Most States have survival statutes

applicable to tort actions generally, and admiralty courts have

applied these state statutes in many instances to preserve suits

for injury at sea. . . . Where these state statutes do not

apply, however, or where there is no state survival statute,

there is no survival of unseaworthiness claims absent a change in

the traditional maritime rule.") (internal citations and footnote

omitted).

5. EMERGING TRENDS

Although the trend in the post-Moragne case law can be
explained by reference to the rise in the importance of federal

statutory schemes in shaping maritime remedies, it would be

myopic not to recognize the other forces at work. One trend that

cannot be ignored is that the Court seems to be cutting back on

plaintiffs' rights in maritime actions. Throughout the 1950s and

1960s, the Supreme Court expanded the rights of plaintiffs by

generally allowing plaintiffs the benefit of whichever rule,
state or federal, was more favorable to recovery. See GILMORE &

BLACK § 6-61, at 463-68. Moragne -- or perhaps Gaudet --

represented the apex of the Court's policy of expanding

plaintiffs' rights in admiralty actions. Higginbotham,

Tallentire, and Miles, in contrast, show a tendency on the part

of the Court during the last two decades to reverse its policy of

favoring seamen plaintiffs.

A second trend is the weakness with which the principle

of uniformity, i.e., the notion that Moragne initiated a trend in

the case law to make recovery for maritime deaths more uniform --

which permeates the rhetoric of the case law -- has been actually

applied in these cases. For, although the cases often mention

uniformity as a guiding principle, the Court's actions belie its

importance. Higginbotham, for example, quite consciously created

an anomaly (the unavailability of non-pecuniary damages for

wrongful death at high sea where such damages were available to

longshoremen killed in territorial waters), stating that "a

desire for uniformity cannot override the statute [DOHSA]," 436

U.S. at 624, 98 S. Ct. at 2014. Similarly, Tallentire rejected a

rule that would make DOHSA recoveries consistent with those

available under Moragne for deaths on territorial waters. See

Tallentire, 477 U.S. at 233, 106 S. Ct. at 2499-500. And Miles

viewed the variety of survival actions under state law without

alarm, declining to fashion a uniform federal rule on the matter

that would cover all plaintiffs. See 498 U.S. at 34, 111 S. Ct.
at 326-27.27 We believe that the thrust of these cases suggests

that the concept of uniformity has a good deal less weight than

has been thought, see also Sutton v. Earles, 26 F.3d 903, 917

(9th Cir. 1994) (invoking Gaudet and Higginbotham to reject

uniformity argument untethered to statute), and that it has

significance to the extent that it aids in the "vindication of

federal policies," Moragne, 398 U.S. at 401, 90 S. Ct. at 1788.

C. WRONGFUL DEATH VS. SURVIVAL ACTIONS IN THE SCHEMA

We have discussed this case law at such length because

a thorough understanding of it is critical to our analysis of the

issue presented here. Before we turn to that analysis, however,

we must identify another aspect of the legal background that

often appears to be glossed over in the case law of maritime

27
See also American Dredging, 114 S. Ct. at 987:

"It is true that state law must yield to the needs of a
uniform federal maritime law when this Court finds
inroads on a harmonious system[,] [b]ut this limitation
still leaves the states a wide scope. State created
liens are enforceable in admiralty. State remedies for
wrongful death and state statutes providing for the
survival of actions . . . have been upheld when applied
to maritime causes of action. . . . State rules for
the partition and sale of ships, state laws governing
the specific performance of arbitration agreements,
state laws regulating the effect of a breach of
warranty under contracts of maritime insurance -- all
these laws and others have been accepted as rules of
decision in admiralty cases, even, at times, when they
conflicted with a rule of maritime law which did not
require uniformity."

(quoting Romero, 358 U.S. at 373-74, 79 S. Ct. at 480-81)
(alterations and omissions in American Dredging).
deaths. Throughout the previous discussion of the case law,

reference has been made to wrongful death actions and to survival

actions. Although they are often lumped together without any

distinction, see Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d

1084, 1093 (2d Cir. 1993) (where plaintiffs treated as a single

action a claim for "wrongful death and survivorship benefits"),

they are, in fact, quite distinct. See, e.g., Gaudet, 414 U.S.

at 575 n.2, 94 S. Ct. at 810 n.2 (distinguishing wrongful death

statutes from survival statutes).

A wrongful death cause of action belongs to the

decedent's dependents (or closest kin in the case of the death of

a minor). It allows the beneficiaries to recover for the harm

that they personally suffered as a result of the death, and it is

totally independent of any cause of action the decedent may have

had for his or her own personal injuries. Damages are determined

by what the beneficiaries would have "received" from the decedent

and can include recovery for pecuniary losses like lost monetary

support, and for non-pecuniary losses like loss of society. 2

BENEDICT ON ADMIRALTY § 81(a), at 7-2. A survival action, in

contrast, belongs to the estate of the deceased (although it is

usually brought by the deceased's relatives acting in a

representative capacity) and allows recovery for the injury to

the deceased by the action causing death. Under a survival

action, the decedent's representative recovers for the decedent's

pain and suffering, medical expenses, lost earnings (both past

and future), and funeral expenses. Id.
 The Jones Act (by incorporating the FELA) contains both

a wrongful death provision and a survival provision. Moragne,

414 U.S. at 575 n.2, 576, 94 S. Ct. at 810 & n.2. DOHSA contains

a wrongful death provision, but does not contain a survival

provision. Id. General maritime law contains a wrongful death

action by way of Moragne, but the Supreme Court has not

recognized a survival action. As was mentioned above, both

Tallentire and Miles have stressed that there is as yet no clear

federal rule on the extent to which state survival remedies are

available under DOHSA or Moragne. See Miles, 498 U.S. at 33-34 &

n.2, 111 S. Ct. at 326-27 & n.2; Tallentire, 477 U.S. at 215 n.1,

106 S. Ct. at 2490 n.1 (declining to approve or disapprove of the

application of state survival statutes to cases involving deaths

on the high seas).

With this distinction in mind, we now turn to the

question whether state wrongful death and survival statutes

conflict with the principles articulated in the post-Moragne line

of cases.

IV. CHOICE OF LAW ANALYSIS

As our previous analysis has shown, there is no federal

rule, either statutory or at common law, that explicitly

precludes the operation of state wrongful death or survival

statutes in cases involving recreational boaters killed in

territorial waters. DOHSA applies only to deaths on the high

seas. The Jones Act applies only to seamen. And no Supreme

Court case has explicitly held that Moragne displaces state
wrongful death or survival remedies for non-seamen killed in

territorial waters. Of course, federal law still should displace

the state wrongful death and survival statutes if such statutes

stand as obstacles to the accomplishment and execution of the

clearly expressed policies of federal maritime law. It appears,

however, that neither state survival statutes nor wrongful death

statutes stand as such obstacles.

A. SURVIVAL STATUTES

The question whether federal maritime law displaces

state survival statutes in the context of recreational boaters

killed in territorial waters need not detain us long. As we have

explained above, there does not appear to be any substantive

federal policy addressing survival actions for non-seamen.

Although DOHSA does not contain a survival provision, its absence

does not show that Congress expressed an "affirmative indication

of an intent to preclude," see Moragne, 398 U.S. at 393, 90

S. Ct. at 1784, state survival statutes from operating in

territorial waters for, as Tallentire tells us, Congress

specifically limited the reach of DOHSA "`so as to prevent the

Act from abrogating by its own force the state remedies then

available in state waters.'" Tallentire, 477 U.S. at 224, 106
S. Ct. at 2495 (quoting Higginbotham, 436 U.S. at 621-22, 98

S. Ct. at 2013).28

28
Indeed, as we have mentioned, Tallentire left open the
question whether state survival statutes could provide a rule of
decision even for death on the high seas. See also Miles, 498
U.S. at 34 n.2, 111 S. Ct. at 326-27 n.2; Dugas v. National
 Moreover, although Moragne does not recognize a

survival action, we do not believe that the Court's post-Moragne

case law reflects any intent to preclude survival actions based

on state law. Quite the contrary, in its discussion of the

possible existence of a general maritime survival remedy in

Miles, the Court seemed to endorse (or at least not preclude) the

practice of applying state survival statutes for deaths occurring

within territorial waters. See 498 U.S. at 33-34, 111 S. Ct. at

326.

In light of this case law, we hold that federal

admiralty law, as articulated both by statute and by the federal

common law, does not preempt the application of state survival

statutes for deaths of recreational boaters (non-seamen) within

territorial waters.29 Such a holding, we believe, is the one

most consistent with federal/state conflict of law principles,

particularly the presumption against preemption. See supra at
typescript Error! Bookmark not defined.. In our view, a holding

Aircraft Corp., 438 F.2d 1386 (3d Cir. 1971) (holding that in
lawsuit premised on DOHSA, Pennsylvania survival statute could be
applied concurrently). And the Fifth Circuit has held, in the
wake of the Gaudet, Higginbotham, Tallentire, and Miles quartet,
that DOHSA does not preempt a general maritime survival action.
Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1543 n.2 (5th Cir.
1991), cert. denied, 112 S. Ct. 430 (1991); Graham v. Milky Way
Barge, 824 F.2d 376, 386-87 (5th Cir. 1987).
29
We have alternated in our discussion between the terms
"recreational boaters" and non-seaman, and we mean to use the
terms interchangeably. We do not mean to intimate that crew
members of a racing yacht or some other non-recreational vessel
should be treated differently than someone in Natalie Calhoun's
position. The applicable remedy depends on whether such crew
members fall within the Jones Act as seamen.
contrary to the one we reach would require the conclusion that

federal admiralty law conflicts with state law in an area where

neither Congress nor admiralty law has provided any rule of

decision. Such a holding would ignore traditional conflicts

principles.

We also believe that our result is not inconsistent

with the holding in Miles that future earnings, one of the major

components of survival damages, are not available to a Jones Act

seaman. Unlike DOHSA, the Jones Act does provide for a survival

action, and under the Jones Act, recovery on a survival action is

limited to losses suffered during the decedent's lifetime. See

45 U.S.C.A. § 59 (1986); Miles, 498 U.S. at 35, 111 S. Ct. at

327. As Miles recognized, Congress made the decision in the

Jones Act to place a limit on a seaman's recovery, and hence the

Supreme Court should not disregard "Congress' ordered system of

recovery," id. at 36, 111 S. Ct. at 328, by supplementing

recovery, even if forceful policy arguments favored recovery of

future earnings, id. at 35-36, 111 S. Ct. at 327 ("There are

indeed strong policy arguments for allowing [recovery of future

earnings].").

But the Jones Act applies only to seamen. And Yamaha

has not demonstrated that Congress intended the limitation on

damages in the Jones Act to extend beyond seamen. By its terms,

the act is strictly limited to a certain class of plaintiffs. We

believe that a state statute allowing recovery of future earnings

would not be plainly inconsistent with the federal law, nor would

it frustrate Congress' scheme of compensation for seamen, when it
is applied to people who fall outside the scope of the

congressionally mandated recovery scheme for maritime injuries

and death.30 See also Garner v. Dravo Basic Materials Co., 768

F. Supp. 192, 195 (S.D. W. Va. 1991) (holding that Miles does not

preclude loss of future earnings in death of a non-seaman because

Jones Act does not extend to non-seamen).31 In sum, we hold that

30
The Second Circuit has stated that the Court's language in
Miles did not limit its holding to Jones Act seamen. See
Wahlstrom v. Kawasaki Heavy Indus. Inc., 4 F.3d 1084, 1093 (2d
Cir. 1993). The Second Circuit reached this conclusion by
stating:

The Court's analysis relied heavily upon the decedent's
status as a seaman and the resultant applicability of
the Jones Act, but the announced conclusion of its
opinion (unlike the companion ruling as to loss of
society) was not confined to seamen.

Id. (internal citation omitted). However, the language from the
conclusion in Miles -- "We . . . hold that a general maritime
survival action cannot include recovery for decedent's lost
future earnings," 498 U.S. at 37, 111 S. Ct. at 328 -- clearly
referenced the particular decedent involved in that case. The
language did not say "a decedent" or "any decedent." It simply
said "decedent." We believe that the Second Circuit's reading of
the conclusion is not compelled by the language, and given that
such a reading ignores the Court's rationale for denying future
earnings, we decline to follow it. See also Sutton v. Earles, 26
F.3d 903, 916-17 (9th Cir. 1994) (criticizing Wahlstrom and
declining to follow its denial of loss-of-society damages to non-
dependent parents).
31
Even assuming that the Miles holding extends beyond seamen,
we are not sure that its rule against future earnings would
extend to deny recovery of such earnings in the case at bar. The
rule denying lost future earnings, implied from the exclusivity
of the Jones Act, presupposes that the decedent had a livelihood
and that his dependents would be entitled to damages for loss of
support under the wrongful death provision. Apparently, the
Jones Act denies recovery of lost future earnings only because,
as Miles explained:

Recovery of lost future earnings in a survival suit will, in
many instances, be duplicative of recovery by
general maritime law does not preempt state law survival statutes

in survival actions based on the death of a nonseaman in

territorial waters, and that such statutes consequently govern

the instant case. We turn therefore to the question whether the

federal maritime law displaces state wrongful death remedies.

B. WRONGFUL DEATH STATUTES

Whether federal admiralty law preempts state wrongful

death statutes from applying to accidents to non-seamen in

territorial waters presents a more difficult inquiry. Moragne

apparently creates a federal wrongful death remedy that applies

dependents for loss of support in a wrongful death
action; the support dependents lose as a result of the
seaman's death would have come from the seaman's future
earnings.

Miles, 498 U.S. at 35, 111 S. Ct. at 327. This rationale appears
to be quite suspect when the decedent is someone who is not
employed, especially a child. A child does not typically support
her parents and so loss of support damages will be negligible. A
child's expected future earnings, however, may be considerable.
Allowing for lost future earnings under such circumstances raises
minimal risk of duplicative recovery. In our view, to deny loss
of future earnings under such circumstances gives a windfall to
potential defendants. Thus, even if there is a federal rule
which extends beyond seamen to conflict with a state survival
statute allowing recovery of lost future earnings, we doubt that
the federal rule would extend to deny lost future earnings when
the decedent was a child and loss of support damages would be
negligible. We also doubt its applicability to cases where the
decedent was an adult who, unlike a Jones Act seaman, was
unemployed. This analysis, we add, is not intended to suggest
case-by-case preemption analysis, but rather to demonstrate why,
in policy terms, the construction advanced by Yamaha is flawed
and hence unlikely to have animated the Supreme Court. See
Garner, 768 F. Supp. at 195.
to non-seamen in territorial waters.32 Yamaha argues that

Moragne therefore displaces state wrongful death statutes. But

although we know that Moragne provides a wrongful death remedy,

the precise contours of that remedy are not yet fully defined.33
32
The Moragne remedy might apply only to Jones Act seamen and
to those others, including longshoremen, to whom a federal duty
of seaworthiness or due care is owed. Moragne explicitly
grounded its holding in the propriety of extending a federal
remedy to correspond to the "federally imposed duties of maritime
law," filling a gap left by some state statutes. See Moragne,
398 U.S. at 401 & n.15, 90 S. Ct. at 1788.
33
Even if Moragne did provide a clear rule of decision in this
area, however, the mere existence of a federal wrongful death
cause of action does not necessarily require displacement. Cf.
California v. ARC America Corp., 490 U.S. 93, 101-02, 109 S. Ct.
1661, 1665 (1989) (concurrent application of federal and state
rules of decision are allowed); Tallentire, 477 U.S. at 224, 106
S. Ct. at 2495 ("States could `modify' or `supplement' the
federal maritime law by providing a wrongful death remedy
enforceable in admiralty for accidents on territorial waters.")
(citing Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S. Ct. 89
(1921), and Steamboat Co. v. Chase, 16 Wall. 522, 21 L. Ed. 369
(1873)); GILMORE & BLACK § 1-17, at 49-50 ("All that can be said in
general is that the states may not flatly contradict established
maritime law, but may `supplement' it, to the extent of allowing
maritime recoveries in some cases where the maritime law denies
them . . . ."). Concurrent application of state and federal law
is commonplace, particularly in areas governed by federal common
law. See, e.g., ARC America, 490 U.S. at 101-02, 109 S. Ct. at
1665 (antitrust); Madruga v. Superior Court of California, 346
U.S. 556, 561, 74 S. Ct. 298, 301 (1954) ("Aside from its
inability to provide a remedy in rem for a maritime cause of
action, . . . a state, `having concurrent jurisdiction, is free
to adopt such remedies, and to attach to them such incidents, as
it sees fit' so long as it does not attempt to make changes in
the `substantive maritime law.") (quoting Red Cross Line, 264
U.S. at 124, 44 S. Ct. at 277).
Indeed even where the states may impose liability beyond
that imposed under federal law, there is not necessarily a
conflict, particularly in the absence of a statement from
Congress to the contrary. See ARC America, 490 U.S. at 105, 109
S. Ct. at 1667 ("Ordinarily, state law causes of action are not
pre-empted solely because they impose liability over and above
that authorized by federal law, . . . and no clear purpose of
Congress indicates that we should decide otherwise in this
Unless applying state law would be inconsistent with, or would

frustrate the operation of, a particular federal maritime rule of

decision in this area, Moragne should not displace state law

rules of decision for deaths of non-seamen in territorial

waters.34

Yamaha's argument that Moragne displaces all state

wrongful death statutes as rules of decision is fairly

case.") (citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 257-
58, 104 S. Ct. 615, 626-27 (1989), and California v. Zook, 336
U.S 725, 736, 69 S. Ct. 841, 847 (1949)). In the traditional
concurrent application of state law context, in which there is a
clear federal rule, a legitimate state law may still apply if it
does not impose too great a burden on the uniform vindication of
the federal policy. See, e.g., Ballard Shipping, 32 F.3d at 630
(describing the interest-balancing approach and suggesting that
the inquiry reduces to the "familiar one of burden"). Here, by
contrast, there is no specific federal rule on point, and we thus
need not analyze the question under the rubric of
"incorporation." State law, subject to possible preemption on
grounds we have enumerated, applies of its own force. See, e.g.,
Wilburn Boat Co., 348 U.S. at 316, 75 S. Ct. at 371 ("[The
`literal performance' rule of insurance contracts law] has not
been judicially established as part of the body of federal
admiralty law in this country. Therefore, the scope and validity
of the [maritime insurance] policy provisions here involved and
the consequences of breaching them can only be determined by
state law unless we are now prepared to fashion controlling
federal rules.").
34
And were Moragne to extend to persons in Natalie Calhoun's
circumstances, we might hold that its wrongful death remedy
either does not displace or actually incorporates state (and
territorial) law; "the demand for uniformity is not inflexible
and does not preclude the balancing of the competing claims of
state, national and international interests." Wilburn Boat Co.,
348 U.S. at 323-24, 75 S. Ct. at 376 (Frankfurter, J., concurring
in the result). As our analysis below indicates, Congress has
expressed an affirmative intent, as far as civilians are
concerned, to preserve state law remedies in territorial waters.
See infra at typescript Error! Bookmark not defined.-Error!
Bookmark not defined..
straightforward: both DOHSA and the Jones Act preempt state

wrongful death statutes, so why shouldn't Moragne?35 This

argument, at least on its face, is seductive. Tallentire,

Higginbotham, and Miles are to at least a certain extent the

lineal descendants of Jensen, which introduced the importance of

"uniformity" in admiralty law and stressed the preeminence of

federal maritime law over state law rules of decision. See

Jensen, 244 U.S. at 216, 37 S. Ct. at 529.36

But unlike the situations in Tallentire, Higginbotham,

and Miles, each of which implicated clearly articulated federal

statutory schemes, the Moragne cause of action in this context

35
The rule that the Jones Act preempts state remedies stems
from Lindgren and Gillespie (which held that the Jones Act was
the exclusive remedy for survivors of seamen killed in
territorial waters). These cases may not have survived Moragne,
see GILMORE & BLACK § 6-32, at 368 (saying that Moragne effectively
overruled Lindgren and Gillespie), although in Miles the Court
suggested that at least with respect to the issue of the
preemption of state remedies, Lindgren and Gillespie are still
good law. See Miles, 498 U.S. at 29, 111 S. Ct. at 324 ("[T]he
preclusive effect of the Jones Act established in Lindgren and
Gillespie extends only to state remedies . . . .") (citing
Moragne, 398 U.S. at 396, n.12, 90 S. Ct. at 1785 n.12). At all
events, the premise of Yamaha's argument that the federal
statutes displace all state remedies is not free from doubt, even
where the federal statutes apply.
36
Of course Justice Holmes dissented in Jensen, uttering what
is perhaps his best known statement: "The common law is not a
brooding omnipresence in the sky but the articulate voice of some
sovereign or quasi sovereign that can be identified." 244 U.S.
at 222, 37 S. Ct. at 531 (Holmes, J. dissenting). And Jensen has
since been called the Lochner of the federal maritime law. See
American Dredging, 114 S. Ct. at 991 (Stevens, J. concurring)
("Jensen is just as untrustworthy a guide in an admiralty case
today as Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539 (1905),
would be in a case under the Due Process Clause.") (parallel
citation omitted).
reflects anything but a clearly articulated scheme. Not only has

Congress said nothing about the applicability of particular

remedies, but the Court's common law has not either. And since

Moragne explicitly left open a number of questions about

remedies, application of state remedies remains permissible to

the extent they do not conflict with whatever settled principles

exist.37 This proposition is true whether state laws operate to

plaintiffs' or defendants' benefit. See, e.g., Brockington v.

Certified Elec., Inc., 903 F.2d 1523, 1528-33 (11th Cir. 1990)

(per curiam) (applying exclusivity provisions of Georgia Worker's

37
Although Yamaha has been able to muster considerable support
in the case law for its position that Moragne displaces all state
wrongful death statutes, the case law appears to be split on this
issue. Compare Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d
1084, 1089 (2d Cir. 1993) (citing cases); Nelson v. United
States, 639 F.2d 469, 473 (9th Cir. 1980); Choat v. Kawasaki
Motors Corp., 1994 A.M.C. 2626 (Ala. 1994); Texaco Ref. & Mktg.,
Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61 (Tex. 1991)
(holding that Moragne displaces state wrongful death and survival
statutes), cert. denied, 112 S. Ct. 301 (1991), with Ellenwood v.
Exxon Shipping Co., 984 F.2d 1270, 1280 n.12 (1st Cir. 1993)
("Even today, plaintiffs may invoke state wrongful death statutes
under the saving clause insofar as they involve accidents in
territorial waters and do not conflict with the substantive
principles developed under the maritime wrongful death
doctrine."), cert. denied, 113 S. Ct. 2987 (1993); Lyon v. Ranger
III, 858 F.2d 22, 27 (1st Cir. 1988) (Breyer, J.) (applying
Massachusetts state law as its rule of decision in wrongful death
action brought by survivor of person killed in a scuba accident
within Massachusetts territorial waters). Cf. Favorito v.
Pannell, 27 F.3d 716 (1st Cir. 1994) (applying Rhode Island law
to claims arising from allision of small boat with anchored
vessel within Rhode Island's territorial waters and citing Lyon);
Marine Transp. Serv. v. Python High Performance, 16 F.3d 1133
(11th Cir. 1994) (although recognizing that general maritime law
was applicable to the claim under admiralty jurisdiction,
nevertheless applying principles of Florida equitable estoppel
law in commercial dispute).
Compensation Act to exclude additional recovery under general

federal maritime law to nonmaritime worker injured within

territorial waters), cert. denied, 498 U.S. 1026, 111 S. Ct. 676

(1991).

Prior to Moragne, it was well established that state

wrongful death statutes could apply to maritime deaths occurring

in territorial waters. Lindgren, 281 U.S. at 43-44, 50 S. Ct. at

210 ("[Before the Jones Act], in the absence of any legislation

by Congress, . . . where a seaman's death resulted from a

maritime tort on navigable waters within a State whose statutes

gave a right of action on account of death by wrongful act, the

admiralty courts could entertain a libel in personam for the

damages sustained by those to whom such right was given.");38

Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 245, 63

S. Ct. 246, 251 (1942) ("[A]dmiralty courts, when invoked to

protect rights rooted in state law, endeavor to determine the

issues in accordance with the substantive law of the State.");

The Tungus, 358 U.S. at 590-91, 79 S. Ct. at 505-06 (pre-Moragne

rights of non-seaman killed in state territorial waters depend on

state wrongful death statute).39
38
See also id. at 44, 50 S. Ct. at 210 ("[S]such statutes `were
not a part of the general maritime law' and were recognized only
because Congress had not legislated on the subject.").
39
This aspect of the holding of The Tungus retains vitality
post-Moragne, for the Moragne Court "concluded that the primary
source of the confusion [in the law of maritime wrongful deaths]
is not to be found in The Tungus, but in The Harrisburg,"
Moragne, 398 U.S. at 378, 90 S. Ct. at 1776, only the latter of
which Moragne accordingly overruled. Id. at 409, 90 S. Ct. at
1792.
 Furthermore, Moragne itself showed no hostility to

concurrent application of state wrongful death statutes. Indeed,

to read into Moragne the idea that it was placing a ceiling on

recovery for wrongful death, rather than a floor, is somewhat

ahistorical. The Moragne cause of action was in many respects a

gap filling measure to ensure that seamen (and their survivors)

would all be treated alike. Gaudet, 414 U.S. at 596, 608 n.19,

94 S. Ct. at 820, 826 n.19 (Powell, J., dissenting). The "humane

and liberal" purpose underlying the general maritime remedy of

Moragne was driven by the idea that survivors of seamen killed in

state territorial waters should not have been barred from

recovery simply because the tort system of the particular state

in which a seaman died did not incorporate special maritime

doctrines. It is difficult to see how this purpose can be taken

as an intent to preclude the operation of state laws that do

supply a remedy.

Of course, as we have mentioned above, Moragne also

recognized the importance of federal statutory commands in

shaping the general maritime wrongful death remedy -- both in the

way in which it created a general maritime wrongful death remedy,

and in its suggestion that courts should look to statutes for

guidance in developing the contours of that remedy. And post-

Moragne jurisprudence has given that principle preeminence. But

a proper application of this principle, in our view, shows that

state wrongful death statutes should not be displaced in this

context. Our principal guidance on this issue comes from
Tallentire and its interpretation of DOHSA, the one federal

statute applicable to non-seamen.

Although Tallentire held that DOHSA displaced state

wrongful death statutes for deaths on the high seas, its analysis

of Section 7 of DOHSA is of considerable importance in

understanding the extent to which the DOHSA remedies should not

be treated as the exclusive types of remedies in a Moragne cause

of action. Of decisional importance in Tallentire was the notion

that by enacting Section 7 of DOHSA, Congress intended to

preserve concurrent state jurisdiction for maritime deaths within

state territorial waters. As we have discussed in the previous

section, the Court stressed that the animating purpose of Section

7 was to preserve to the states "jurisdiction to provide wrongful

death remedies under state law for fatalities on territorial

waters," and that "[b]ecause DOHSA by its terms extended only to

the high seas and therefore was thought not to displace [state

wrongful death remedies] on territorial waters, § 7, as

originally proposed, ensured that the Act saved to survivors of

those killed on territorial waters the ability to pursue a state

wrongful death remedy in state court."40 Tallentire, 477 U.S. at

225, 106 S. Ct. at 2495 (internal citation omitted). Tallentire

thus tells us that DOHSA was affirmatively intended to preserve

40
See also id. ("The felt necessity for a DOHSA saving clause,
then, may be traced to the fact that [state] wrongful death
statutes like workmen's compensation schemes were not common law
remedies, and thus may not have been deemed saved to suitors
under the Judiciary Act of 1789, as construed in Jensen.")
(internal quotation marks and citations omitted).
state wrongful death remedies for survivors of people killed in

territorial waters. This intent to preserve state wrongful death

remedies in state territorial waters should not be lightly

disregarded, particularly since Moragne and its progeny say

nothing explicit about abrogating state remedies.

Tallentire's interpretation of DOHSA is also important

for another reason. It suggests that there is a more fundamental

flaw in Yamaha's argument that the incorporation of DOHSA's

provisions into a Moragne cause of action should be treated as

displacing all state wrongful death remedies. If Yamaha is

right, it means that Moragne gives DOHSA preclusive effect in an

area (maritime deaths in state territorial waters) in which

Congress explicitly intended DOHSA to have no such effect. See

The Tungus, 358 U.S. at 608, 79 S. Ct. at 514 ("It is odd to draw

restrictive inferences from a statute whose purpose was to extend

recovery for wrongful death."). So interpreted, Moragne would

thus transform a statute explicitly designed to preserve state

remedies into one that would displace them. In our view, such a

result would cut Moragne loose from its conceptual moorings and

disregard Supreme Court teachings since Moragne that we must look
to congressional statutory commands to determine what remedies

are available for maritime deaths.

But even if DOHSA is not treated as explicitly allowing

state law to operate in this area, at the very least the

legislative history of DOHSA shows no hostility toward the

application of state wrongful death statutes in territorial

waters. See Gaudet, 414 U.S. at 588 n.22, 94 S. Ct. at 816 n.22.
And since a "clear conflict" must exist before state law is

displaced by federal admiralty law, see Askew, 411 U.S. at 325,

93 S. Ct. at 1600, we cannot find that Moragne displaces state

wrongful death remedies for deaths of non-seamen in territorial

waters. Because we see no congressional intent to preclude the

operation of state wrongful death statutes, and, indeed, believe

that DOHSA arguably preserves state wrongful death remedies in

territorial waters, we hold that state wrongful death statutes

provide the rule of decision when a recreational boater is killed

in territorial waters.

We find support for this result in Judge Breyer's

opinion in Lyon v. Ranger III, 858 F.2d 22, 27 (1st Cir. 1988)

(applying Massachusetts state law as its rule of decision in

wrongful death action brought by survivor of person killed in

scuba accident within Massachusetts territorial waters), and the

views of a leading commentator, 14 Charles A. Wright et al.,

Federal Practice and Procedure § 3672 at 295 (2d ed. Supp. 1994)

("If the same accident [one falling within the provisions of

DOHSA] occurs within a marine league from shore, where [DOHSA]

has no effect, the survivors can recover damages under the state

wrongful death statute, including, when provided, reimbursement

for non-economic losses."). Cf. Ballard Shipping, 32 F.3d at 631
(holding that the federal maritime economic loss rule of Robbins

Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927), which denies

recovery for purely economic losses, did not displace a Rhode

Island statute that allowed damages for some economic losses).
 We also believe our holding to be in full accord with

the principle of uniform vindication of federal maritime policies
that, however attenuated, see supra at typescript Error! Bookmark
not defined.-Error! Bookmark not defined., has generally been

considered the hallmark of conflicts jurisprudence in admiralty

law. In terms of the notion of uniformity, Yamaha's claim

basically boils down to the following proposition: state

wrongful death statutes cannot apply to deaths to recreational

boaters in territorial waters because it would raise the

possibility of different remedies depending on the location of

the accident and the citizenship of the parties.41 But Yamaha

"heralds the need for uniformity without an appreciation for the

boundaries of its relevance." Ellenwood v. Exxon Shipping Co.,

984 F.2d 1270, 1279 (1st Cir. 1993). The argument simply proves

too much. "All state laws, if given effect in admiralty cases,

interfere to a degree with the uniformity of admiralty law." 1

BENEDICT ON ADMIRALTY § 112, at 7-36.

41
Yamaha states, in terrorem:

The Calhouns argue against the weight of authority and
against the concept of uniformity; instead they
espouse a different remedy for civilians injured
in territorial waters than that afforded seamen
and maritime workers by Congress and the Supreme
Court. If accepted, their argument would result
in at least 50 different possible measures of
damages for the same cause of action, depending
solely on the citizenship of the decedent and/or
the place of the accident.

Reply/Answering Brief of Appellants/Cross-Appellees at 1-2.
 Perhaps recognizing that its uniformity argument proves

too much, Yamaha advanced a variant of it at oral argument,

suggesting that accepting the Calhouns' position on available

damages would lead to the following allegedly untenable result:

in an accident on a ship in which a non-seaman and a seaman were

each killed, the non-seaman's survivors would potentially be

entitled (depending on the state statute) to higher damages than

those available to the survivors of the seaman. This result,

however, is untenable only if we assume that a person's statutory

status should be irrelevant for purposes of determining recovery

for maritime deaths. But Miles, by denying loss of society

damages to the survivor of a seaman because the seaman was

covered by the Jones Act, has told us that such status does make

a difference. 498 U.S. at 32-33, 111 S. Ct. at 325-26.42

More fundamentally, however, it is fairly common for

tort systems to allow different recoveries based on the injured

party's status. The problem Yamaha poses arises all of the time,

whenever two parties are injured in the same event but one is

covered by worker's compensation and the other is not. Even

within maritime law, differing recoveries based on status occur

all of the time. Longshoremen and seamen can often be injured in

42
The case law is replete with statements that non-seamen
should not be entitled to damages in greater amounts than seaman
because allowing recovery would not foster admiralty's aim of
providing special solicitude to seamen. See, e.g., Wahlstrom, 4
F.3d at 1092. But this argument seems to us to be a non
sequitur, for it is difficult to see how denying recovery to non-
seamen's survivors shows any special solicitude to seamen or
their survivors.
the same event, but a longshoreman covered by LHWCA, 33 U.S.C.A.

§§ 901 et seq. (1986), cannot sue under the doctrine of

unseaworthiness, while a seaman can.

A similar asymmetry exists between non-seamen and

seamen where non-seamen cannot take advantage of the doctrine of

unseaworthiness. See Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625, 629, 79 S. Ct. 406, 409 (1959);

Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 294 n.11

(5th Cir. 1990). For instance, should a non-seaman and a seaman

be injured due to a non-negligent but unseaworthy condition of

the vessel, the seaman would recover and the non-seaman would

not. This analogy has especial importance because in Moragne

itself a negligence theory was at all times still available to

the plaintiff.43

Indeed, this case is, in many respects, the mirror

image of Moragne. Moragne was driven by the realization that the

state wrongful death tort system simply could not be grafted

wholesale onto the regime governing torts affecting seamen. 398

U.S. at 401, 90 S. Ct. at 1788 (stating that its holding would

remove the "tensions and discrepancies that have resulted from

43
It is often a quite reasonable choice for a group of
potential plaintiffs to give up the prospect of huge damages in
return for easier theories of recovery, and vice versa. The
trade-off that the longshoreman received in exchange for losing
the right to sue on an unseaworthiness theory was an increase in
the compensation benefits under the LHWCA and expanded coverage.
See GILMORE & BLACK § 6-53, at 437 & n.339. More specifically, a
trade-off similar to the one made in the context of longshore
workers' injuries seems quite reasonable in the context of this
case.
the necessity to accommodate state remedial statutes to

exclusively maritime substantive concepts"). To accept Yamaha's

position in this case would create the opposite of the problem

faced in Moragne, for we would be grafting a compensation scheme

designed principally for seamen onto cases that fit easily within

the tort systems developed by the states. This case is, at base,

no different than a cause of action arising out of the average

motor vehicle accident.

Finally, we note that states have substantial interests

in policing their territorial waterways and protecting their

citizens through their tort systems. In light of such interests,

we should be loath to displace their statutes under our federal

common law power absent a clear federal rule. See American

Dredging, 114 S. Ct. at 992 (Stevens, J. concurring) (citing

Cippolone v. Liggett Group, Inc., 112 S. Ct. 2608, 2617 (1992)).

Although we recognize that the rule barring state claims if they

conflict with basic maritime principles often requires a delicate

accommodation of federal and state interests, here, in the

absence of a clear federal interest, we think that the balance

tips in favor of allowing state law to apply. In sum, we hold

that general maritime law does not preempt state law wrongful

death acts in actions based on the death of a nonseaman in

territorial waters, and that such acts therefore govern this

case.

V. CONCLUSION
 For reasons we have explained above, before reaching

the question certified by the district court it is necessary to

determine what law governs this dispute, and the bulk of our

opinion has been devoted to resolving that difficult question.

We have concluded that whether loss of society, loss of support

and services, future earnings, or punitive damages are available

for the death of a non-seaman in territorial waters is a question

to be decided in accordance with state law. We do not, however,

reach the question of which state's law -- Pennsylvania's or

Puerto Rico's -- applies. The district court did not consider

that issue, and we decline to do so, preferring to have the

district court address it in the first instance. Accordingly, we

do not answer the certified question in terms. (As explained
earlier, see supra at typescript Error! Bookmark not defined.-
Error! Bookmark not defined., under Section 1292(b) we need not

reach the certified question, but only decide the appeal from the

challenged order.) We have, however, given the district court

sufficient guidance so that it may now do so with facility.
Since the question of which state's law applies is plainly open,

we will affirm the district court's order denying defendant's

motion for summary judgment on loss of society and loss of

support damages, but we will reverse the order granting

defendant's motion for summary judgment on lost future earnings

and punitive damages.

The parties shall bear their own costs.

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