(dissenting).
My only difference with my brothers is upon whether Yeiser’s death caused an abatement of the action in personam against him. Both by statute and by the common law of Florida,1 personal injury actions arising in that state do not abate. Congress has not chosen to enact any law relative to the survival of actions in personal injury cases arising on navigable waters of a state. The answer to the case is to be found in traditional principles of maritime law accepted from the English High Court of Admiralty by the federal courts under the constitutional grant of power, or in the common law, and for this case the law of the state in whose waters the injury occurred is the common law for there is no general common law. I conclude that the traditional common law rule was that a personal right of action abated upon the death of either party and that following that traditional common law rule, there are admiralty precedents to the same effect. On the authority of The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 146, 30 L.Ed. 358, I deny that there is any traditional maritime law to apply to this case, and point out that since admiralty in this matter merely follows the common law, there is no basis here for the ^holding that in admiralty the cause abates.
It is the crux of the appellant’s argument that the common law principle “actio personalis moritur cum persona” has been adopted as a part of the general maritime law. The Supreme Court, in The Harrisburg, supra, cited by the appellant, denies this. The suit was for wrongful death, and the argument was made that the maritime law itself afforded such a right of action, but Mr. Chief Justice Waite, observing that “the maritime law, as accepted and received by maritime nations generally, leaves the matter untouched,” chose, in the absence of a state statute to the contrary, to follow the common law, because no country should adopt “a different rule on this subject for the sea from that which it maintains on the land.” 119 U.S. 199, at 213, 7 S.Ct. 140, at 146, 30 L.Ed. 358. In re Statler, D.C.N.Y., 31 F.2d 767, involving death claims under the Seamen’s Act of 1920, 46 U.S.C.A. § 688, is to the same effect. There, the alleged tort-feasor died before the trial. It was held that the action-abated because the statute must be interpreted in the light of the traditional common law rule of survival which was the rule in that state.
The import of these decisions and of those that follow is that the common law and not an independently existing system of maritime law furnishes the applicable principles relative to survival of actions in admiralty. The fact is that the maritime law, as applied either in the federal courts or by the old High Court of Admiralty in England, has never been considered as a complete and all-inclusive body of substantive law distinct from and coextensive with the common law itself. The maritime law may be, and, as a matter of practice is, often supplemented by the common law which can only be the law of the state; “there is no federal general common law.” Erie R. Co. v. Tompkins, 304 U.S. 64, at 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188, 114 A.L.R. 1487.
*110Accordingly, admiralty courts have uniformly given effect to the wrongful death statutes of the various states without regard to whether the action was originally brought in the state court at common law (American Steamboat Co. v. Chase, 16 Wall. 522, 21 L.Ed. 369, Sherlock v. Alling, 93 U.S. 99, 23 L.Ed. 819) or in the federal court in admiralty. The Hamilton (Old Dominion S. S. Co. v. Gilmore), 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; La Bourgogne (Deslions v. La Compagnie Generale Transatlantique), 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973; see The Corsair, 145 U.S. 335, 12 S.Ct. 949, 36 L.Ed. 727. Some of these early decisions have been superseded-'by the Death on the High Seas Act of March 30, 1920, c. Ill, 46 U.S.C.A., §§ 761-768, but the principle they represent has never been repudiated. The act does not alter the prior law insofar as the Great Lakes and the territorial waters of the states are concerned. The law of the state where the injury occurs determines whether or not the claim for damages survives. Ormsby v. Chase, 290 U.S. 387, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499; Restatement of Conflict of Laws, Sec. 390. That this law is declared by the highest court in a decision rather than by the legislature in a statute is not a matter of federal concern. Erie R. Co. v. Tompkins, supra. Therefore, the decision of the Supreme Court of Florida in the Waller case should be determinative of the issue here in controversy, unless the case is within the scope of the doctrine of uniformity of admiralty law in its characteristic features.
With respect to those activities which are directly cdnnected with commerce and navigation in their interstate and international aspects, it has been held, though in the opinion of the writer, with doubtful wisdom and logic, that the law must be uniform throughout the United States, and the laws of the various states are not compel tent to modify or vary it. Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, L.R.A.1918C, 451, Ann.Cas. 1917E, 900; Clyde S. S. Co. v. Walker, 244 U.S. 255, 37 S.Ct. 545, 61 L.Ed. 1116; Peters v. Veasey, 251 U.S. 121, 40 S.Ct. 65, 64 L.Ed. 180; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834, 11 A.L.R. 1145. The rationale of the cases holding invalid the application of state workmen’s compensation laws to maritime employees is that a state law cannot affect a maritime contract or matters incidental thereto. But, illustrating the narrow and tenuous authority of these cases, is ■the well settled rule that though the contract is maritime if it is local in character and has no direct relationship to navigation, state compensation laws are applicable to determine rights and liabilities, and to regulate the method of seeking relief, because they do not interfere with any characteristic feature of the maritime law. Grant Smith-Porter Co. v. Rhode, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008; Miller’s Indemnity Underwriters v. Braud, 270 U.S. 59, 46 S.Ct. 194, 70 L.Ed. 470; Carlin Const. Co. v. Heaney, 299 U.S. 41, 57 S.Ct. 75, 81 L.Ed. 27.
A tort action for wrongful death has no relationship to navigation, no characteristic features of maritime laws are distorted thereby, and there is no necessity for uniformity. Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210. With regard to its effect upon any characteristic feature of maritime law, there is, there can be, no distinction between a death act and a survival statute. To modify and supplement by a state statute or by the common law of a state in whose waters the injury occurs, the rule applied in admiralty courts when following the common law does not prejudice the uniform administration of maritime law, 257 U.S. 233, at 242, 42 S.Ct. 89, 66 L.Ed. 210, and since in matters of survival of actions admiralty follows the common law, there is no need for uniformity. The early case of Crapo v. Allen, Fed.Cas.No.3,360, though correctly decided on its facts,2 represents in its general statements, á view' contrary to that herein expressed, that “the right of action, by the general maritime law, dies with the person injured” and that the right of survival of actions for torts, created by Massachusetts local law, should not be enforced. Subsequent cases have not sustained those general views. No valid distinction from the point of view of uniformity can be made between a survival action and an action of wrongful death of which the books are full. Here the injury occurred in the territorial waters of Florida and there can be no doubt that had a common law action been brought in Florida, it could have been *111maintained. 2 C.J.S., Admiralty, § 62, page 124.
It is certainly, I think, unreasonable to say that though the action would have survived if brought at law, appellees may, by an injunction out of Admiralty, be prevented from asserting their right either at law or in admiralty.
In The Hamilton, 2 Cir., 146 F. 724, 727, the court said of a death action: “We cannot doubt that had suits been brought for these deaths in the courts of Delaware the plaintiffs would have succeeded. By the action of the petitioners they are enjoined from prosecuting their claims in the home forum and are compelled to present them here. F.very consideration based on equity and natural justice impels us to hold that it was not the purpose of the limited liability act to enable vessel owners to force claimants into the admiralty, and thus avoid claims which are valid and enforceable at common law. The intent was to limit the liability, not to destroy it.”
This decision and its reasoning was affirmed in the Supreme Court, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264, which also adequately disposes of the concern of the majority over interference with uniformity. 'Said the court in effect: Enforcement of the death statute would not produce any lamentable lack of uniformity. Courts everywhere must enforce the laws which govern the transaction, even if they are different from those governing the local transactions of the jurisdiction in which they sit. Finally, I see no breach of admiralty uniformity here ,at all. All admit that the cause of action against the yacht is not affected by the -death of its owner3 and that there was a cause of action against Yeiser in his lifetime. There is no effort as there is in the «death cases, to introduce into admiralty a new and strange kind of cause of action. There is merely an effort to have admiralty continue, notwithstanding the death of the tort-feasor, to enforce the cause of action which it, as well as the common law of Florida, gave the plaintiff and it, following the common law of Florida, may continue to give him.
Tt seems perfectly clear to me that admiralty should not here follow the traditional common law rule of an action abating with the death of the wrongdoer in view of its almost universal disapproval in and disappearance from the jurisprudence of American states and particularly in view of the fact, that there is now no general federal common law but only the common law of the state where the particular court is sitting. Particularly should we not follow this ancient and discredited rule, in the face of the considerations of humanity, of reason and of common sense, together with the current of authority which now runs in favor of its abolition.
The District Judge was correct in refusing limitation of liability. Having once acquired jurisdiction, the admiralty court was competent to give claimants full affirmative relief. The judgment should be affirmed.
I respectfully dissent from the reversal.
See Secs. 4211, 7047, 7048, C.G.L., 1927; Waller v. First Savings & Trust Co., 1931, 103 Fla. 1025, 138 So. 780; Granat v. Biscayne Trust Co., 1933, 109 Fla. 485, 147 So. 850; Penn v. Pearce, 1935, 121 Fla. 3, 163 So. 288; International Shoe Co. v. Hewitt, 1936, 123 Fla. 587, 167 So. 7; and State v. Parks, 1937, 129 Fla. 50, 175 So. 786.
The injury sued for occurred not in the territorial waters of Massachusetts hut on the high seas, and there was no proof as in The Hamilton, that Massachusetts was the state of the ship’s flag,
“A maritime Hen arising from personal injury is a right of property in the vessel and therefore does not die with the person. The Ticeline, 2 Cir., 221 F. 409, affirming, D.C., 208 F. 670; The Lafayette, 2 Cir., 269 F. 917, 927. In Crapo v. Allen, Fed. Cas. No. 3360, 1 Spr. 184, the action held to have abated was in personam. In The City of Belfast, D.C., 135 F. 208, decision was based on a State statute as allowing survival of the action. Cf. The Student, D.C., 238 F. 936, affirmed, 4 Cir., 243 F. 807.” Benedict, 5th Edition, Volume 1, page 23.