(dissenting).
I find nothing in the Federal Constitution that would prevent the legislature of New York from amending its wrongful death act, Decedent Estate Law, § 130 ,et seq., to include the death in a sister .state of a New York resident travelling on a flight from New York on a ticket purchased in New York, or the courts of New York from now reading its wrongful death act to cover such a case. 'Whether any one of these “contacts” would alone warrant New York in thus .applying its own wrongful death act and refusing any “faith and credit” to the •“public acts” of the sister state, certainly the combination does. So far as con.cerns the issue here, Alaska Packers Ass’n v. Industrial Accident Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044 (1935), and Richards v. United States, 369 U.S. 1, 15, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), indicate that but no more than that. I would agree also that New York is constitutionally free to overrule •decisions that forbid or restrict the personal representatives of a party to a contract of carriage made in New York from .suing, on the contract, for wrongful death wherever it may occur. Our brothers’ fears as to the imposition of inflexible constitutional strictures on the •development of choice of law rules are thus quite needless; the majority seems rather to be supporting itself with ghosts of its own conjuring.
It is common ground that New York has not followed any of the courses just outlined. All seven of the judges of the Court of Appeals in Kilberg repudiated an action ex contractu. The majority likewise disclaimed any idea that recovery might be had, in tort, under New York’s wrongful death act. Chief Judge Desmond said, 9 N.Y.2d 34, 40, 211 N.Y.S.2d 133, 135-136, 172 N.E.2d 526, 528 (1961) , with entire clarity: “We will still require plaintiff to sue on the Massachusetts statute but we refuse on public policy grounds to enforce one of its provisions as to damages” — “We * * * refuse to apply that part of the Massachusetts law”. Moreover, in a subsequent case involving a claim for wrongful death in a sister state, the Court of Appeals underlined what it had said in Kilberg. After stating “We there indicated that the courts of this State were free to award damages in excess of the amount limited by a foreign death statute under which the action was brought * * * ”, it applied a rule of the sister state disallowing pre-judgment interest despite the contrary direction of § 132 of the New York Decedent Estate Law. Davenport v. Webb, 11 N.Y.2d 392, 230 N.Y.S.2d 17, 19, 183 N.E.2d 902, 904 (1962) . New York under the Kilberg doctrine thus gives some faith and credit to the foreign wrongful death act. In Kilberg it enforced the Massachusetts statute, Ann.Laws Mass., c. 229, § 2, (as in effect in 1958) insofar as this decrees that “If the proprietor of a common carrier of passengers * * * by reason of his or its negligence or wilful, wanton or reckless act, or by reason of the unfitness or gross negligence or carelessness, or the wilful, wanton or reckless act, of his or its servants or agents, causes the death of a passenger, he or it shall be liable in damages * * *.” But New York disregards the words immediately following: “in the sum of not less than two thousand nor more than
*565fifteen thousand dollars, to be assessed with reference to the degree of culpability of the defendant or of his or its servants or agents, and recovered and distributed as provided in section one, and to the use of the persons and in the proportions, therein specified.” Although Kilberg did not provide the detail as to just what New York would supply in place of the excised language save only that there would be no limitation on the amount of recovery, our brothers fill the gap; they decide that in New York the amount of recovery under the Massachusetts Act is to be measured by the loss sustained by the dependents without regard to the degree of defendant’s culpability. Appellant contends that the Full Faith and Credit Clause, Art. IY, § 1, and the Due Process Clause of the 14th Amendment forbid this.
A superficially attractive answer is that if New York could validly arrive at the Kilberg i'esult on a theory of contract or through amendment or construction of its own wrongful death act, the Constitution does not demand a different conclusion because New York attains the same goal through excising or altering a provision of the Massachusetts Act. I say “superficially attractive” since the two processes differ not only conceptually— which may not be altogether unimportant in a legal system designed to maintain a certain degree of order among fifty states ■ — but practically as well. Although the primary interest of the framers of the Constitution in the area of intergovernmental relations was doubtless to set boundaries between the new Federal Government and the states, they were concerned also with preventing encroachments by one state upon another. See Ogden v. Saunders, 12 Wheat. 213, 369, 6 L.Ed. 606 (1827). Madison characterized the Full Faith and Credit Clause as among those “which provide for the harmony and proper intercourse among the States.” The Federalist No. 42. Granted that whenever a New York court enters a judgment, it is enforcing New York “law”, and that New York may often make the same rules that govern transactions within New York apply to events in a sister state, it does not follow that when New York looks to a statute of a sister state as the source of a claim enforceable in its courts, the Constitution allows it to decline, in the Supreme Court’s words, “to give full faith and credit to all those substantial provisions of the statute which inhered in the cause of action or which name conditions on which the right to sue depend[s].” Tennessee Coal, Iron & R. R. Co. v. George, 233 U.S. 354, 360, 34 S.Ct. 587, 588, 58 L.Ed. 997 (1914); see Order of United Commercial Travelers of America v. Wolfe, 331 U.S. 586, 625, 67 S.Ct. 1355, 91 L.Ed. 1687 (1947).
An important reason why a forum state may not do this is that it thereby interferes with the proper freedom of action of the legislature of the sister state. The terms and conditions of a claim created by statute inevitably reflect the legislature’s balancing of those considerations that favor and of those that oppose the imposition of liability. The legislature may be quite unwilling to create the claim on terms allowing it to be enforced without limit of amount as most common law rights can be, or for a period bounded only by statutes of limitations ordinarily applicable. The Full Faith and Credit Clause insures that, in making its choice, the legislature creating the claim need not have to weigh the risk that the courts of sister states looking to its “public acts” as a source of rights will disregard substantial conditions which it has imposed — a calculation that would involve variables so numerous and unpredictable as to preclude any intelligent choice. This consideration is inapplicable to instances where the forum, looking solely to its own substantive law, wholly disregards that of the sister state, as the Supreme Court held permissible in Alaska Packers; there nothing turns on whether or not the lawmakers of the sister state have acted or how they have acted. True, conduct in the enacting state has been given consequences diifer-*566ent from what the legislators of that state desired; but that is the inevitable result of the duplicate law-making jurisdiction that can never be wholly avoided even in our federal system — not of action taken by the legislators of the enacting state in the absence of which the forum would not impose liability at all. The increasing scope of statutory liabilities makes it particularly vital that lawmakers of one state should know that'once a transitory right has been created by them, it will receive the uniform enforcement from other states which the Full Faith and Credit Clause contemplated, see Hughes v. Fetter, 341 U.S. 609, 612, 71 S.Ct. 980, 95 L.Ed. 1212 (1951), compare Id. fn. 10, and that they should not be obliged to speculate that other states may take what is liked and reject what is disliked — a prospect that might well discourage or prevent enactments otherwise deemed desirable.
The situation is not altered by the circumstance that we are here dealing with a wrongful death act. If the forum state may disregard limitations on recovery in one type of foreign statute to which it looks as a source of rights, at least when it has as many “contacts” as New York had here, I can see no basis in principle why it may not do so in every other, and the majority appears to hold that view. Indeed, the instant case is a peculiarly weak one for reliance on any special rule relating to wrongful death acts. The Massachusetts statute departs from the norm in its penal character. “[T]he Massachusetts acts are exactly what Lord Campbell’s act is not.” Hudson v. Lynn & Boston R. R. Co., 185 Mass. 510, 519, 71 N.E. 66, 70 (1904). “Their basic theory as to damages is punishment not compensation.” Porter v. Sor-ell, 280 Mass. 457, 462, 182 N.E. 837, 839, 85 A.L.R. 1159 (1932). “The standard of liability under the Massachusetts Death Act is punitive — i. e., ‘with reference to the degree’ of culpability — not compensatory.” Massachusetts Bonding & Ins. Co. v. United States, 352 U.S. 128, 132, 77 S.Ct. 186, 188, 1 L.Ed.2d 189 (1956). Recovery is limited, to be sure, but there is a minimum also, which may be recovered without proof of pecuniary loss, Beatty v. Fox, 328 Mass. 216, 102 N.E.2d 781 (1952), and, if the defendant be sufficiently culpable, the award may outrun the damages sustained, as, for example, in the death of an aged person or an infant. Whether Kilberg means that New York will enforce those provisions of the Massachusetts Act providing a larger recovery than New York would ordinarily allow or that New York will substitute a wholly new standard of liability and damages, as the district judge here thought, 199 F.Supp. 539, 540 (S.D.N.Y.1961), a view which the majority adopts without explanation other than that in the original dissenting opinion,1 the result is for New York to give the Massachusetts statute an application altogether different from what the framers of the latter intended. To allow that is, indeed, a strange way to “provide for the harmony and proper intercourse among the States” which the Full Faith and Credit Clause was intended to promote.
The Kilberg opinion justifies all this, and our brothers approve, on the basis that “It is open to us, therefore, particularly in view of our own strong public policy as to death action damages, to treat the measure of damages in this case as being a procedural or remedial question controlled by our own State policies.” 9 N.Y.2d at 41-42, 211 N.Y.S.2d at 137, 172 N.E.2d at 529. It is true that *567the Full Faith and Credit Clause does not demand that, in enforcing a right given by statute of a sister state, the forum must abandon its own procedural rules. Thus the forum may .and ordinarily will apply its own rules as to such matters as discovery, evidence and mode of trial; it would be free to give a jury trial although the foreign statute provided for trial to a judge, or vice versa, just as it may disregard venue limitations in the statute giving rise to the claim, Tennessee Coal, Iron & R. R. Co. v. George, supra. When the foreign state has not made a period of limitations a qualification on the right, the forum may apply its own longer statute, Bournias v. Atlantic Maritime Co., 220 F.2d 152, 154-158 (2 Cir., 1955). Likewise the forum may enforce a statute of limitations shorter than what the enacting state has “built in” to the right •/ no state can require another to keep its courts open for the enforcement of a claim given by the former’s law which the latter would not enforce if created solely by its own. Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211 (1953).2 However, merely labeling a difference from the foreign law as “procedural” or “remedial” rather than substantive will not defeat application of the Full Faith and Credit Clause, as John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106 (1936), clearly holds. Cf. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 497-498, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).
Although, as the Court of Appeals indicated in Kilberg, there are cases where the issue “whether a given question is one of substance or procedure” may be doubtful, 9 N.Y.2d at 41, 211 N.Y.S.2d at 137, 172 N.E.2d at 529, this is not one. That Massachusetts regards the limit as an essential part of the cause of action created by its legislature is clear beyond peradventure. Not only does the statute tie the words together as closely as possible, but the unique nature of the claim, with $2,000 payable regardless of the damages and with awards above that varying with the degree of culpability, makes it plain that the ceiling is as integral a part of the right as the floor. There is, moreover, other persuasive evidence of Massachusetts’ legislative intent. Effective in 1959, the Massachusetts General Court rewrote the statute completely but declined to abolish either the “degree of culpability” standard or the limitation on the amount recoverable; instead it simply increased the maximum from $15,000 to $20,000. Ann.Laws Mass. c. 229, § 2 (Cum.Supp.1961), Mass.Acts 1958, c. 238, § 1. Just this year the statute was again amended, effective Jan. 1, 1963, with the only change being the raising of the minimum recovery to $3,000 and the maximum to $30,000. Mass.Acts 1962, c. 306.3 Common sense tells us that “The size of a right is a part of *568the right,” Leflar, Conflict of Laws (1959), § 65, at 118. A layman would, indeed, be astonished that anyone could characterize as “merely procedural” a rule of law which may increase a recovery from $15,000 to $160,000 or well beyond that, even though he could appreciate that a rule wholly defeating recovery because of untimeliness in bringing the action was. Until now the law in this area has not departed so far from the common understanding of men. The Supreme Court has said that “the question of the proper measure of damages is inseparably connected with the right of action * * *,” Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 632, 60 L.Ed. 1117 (1916), and this rule applies specifically with reference to claims for wrongful death. See Northern Pac. R. R. v. Babcock, 154 U.S. 190, 197-198, 14 S.Ct. 978, 38 L.Ed. 958 (1894); Slater v. Mexican National Ry. Co., 194 U.S. 120, 24 S.Ct. 591, 48 L.Ed. 900 (1904); Goodrich, Conflict of Laws (3 ed. 1949), § 105; 15 A.L.R.2d 762, 765 (1951). A limit on the amount of recovery on a statutory right bears no resemblance to those “limitations * * * imposed to promote practicality, convenience, and the integrity of local practice”/ which, as this Court has said, are properly denominated “procedure”. Collins v. American Automobile Ins. Co., 230 F.2d 416, 421-422 (2 Cir., 1956).
I find little force in a contention that the distinction between substance and procedure should not be given constitutional significance in the application of the Full Faith and Credit Clause. On the contrary, as was so clearly pointed out by Mr. Justice Brandéis in the John Hancock case, supra, blind acceptance of the characterizations made by state courts would be the surest way to undermine this constitutional guarantee. If. the label affixed by the forum state were conclusive, New York could equally override the Massachusetts limit on recovery when it did not have the contacts that it had in Kilberg or here. In this field of law also, there may be a “twilight zone”, see Sampson v. Channel, 110 F.2d 754, 756-757 (1 Cir.), cert. denied, 310 U.S. 650, 60 S.Ct. 1099, 84 L.Ed. 1415 (1940) ; D’Onofrio Construction Co. v. Recon Co., 255 F.2d 904, 910 (1 Cir., 1958); Iovino v. Waterson, 274 F.2d 41, 48 (2 Cir., 1959), cert. denied, 362 U.S. 949, 80 S.Ct. 860, 4 L.Ed.2d 867 (1960), where a determination by the forum state that a .matter is procedural will be respected even though another court in its independent judgment would regard the issue as substantive. The survival of a claim against a deceased resident defendant, Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944 (1953), cited by the majority, may lie in this zone.4 But the"^ transformation of a penal and limited J statutory liability into a compensatory ‘ and unlimited one goes far beyond the widest concept of “procedure” or “rem- ' edy”. No one would suppose that Con-'" gress, simply by classifying its edict as “procedural”, could constitutionally direct the Federal courts, in diversity ac*569tions, to disregard limitations on the amount of recovery in staté wrongful death acts. If the mere label of “procedure” is thus inadequate to enlarge Federal power beyond constitutional limitations, it is likewise inadequate to enable a state to hurdle the Full Faith and Credit Clause. See also Levinson v. Deupree, 345 U.S. 648, 651-652, 73 S.Ct. 914, 97 L.Ed. 1319 (1953), and The Tungus v. Skovgaard, 358 U.S. 588, 592-593, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959), dealing with “procedure” and “substance” in the application of state wrongful death acts to maritime claims.
There remains only to consider the contention that what New York has done is supported by Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954). That case held that Louisiana could validly subject a liability insurance company which had contracted, outside Louisiana, to pay amounts awarded in judgments or settlements resulting from injuries in Louisiana, to a direct action by the injured person despite a contractual stipulation against such an action in advance of the judgment or settlement. Louisiana was thus permitted to impose upon insurers of risks within its borders a new liability, created by it, wholly independent of the contractual duty to the insured, see Lumbermen’s Mutual Casualty Co. v. Elbert, 348 U.S. 48, 51, 75 S.Ct. 151, 99 L.Ed. 59 (1954), and differing from the latter in many essential respects, see Collins v. American Automobile Ins. Co., supra, 230 F.2d at 419-422; Louisiana did not purport to be enforcing a “public act” of a foreign state and then altering it to suit its pleasure, as New York is doing here. The Watson decision might well be cited as sustaining the power of New York to make defendant’s operations within its borders a basis for applying its own statute to deaths in the course of contracts made or flights commencing in New York; in no way does it uphold New York’s invoking the Massachusetts Act as the source of the right and then transforming the right into one altogether different in nature and amount from what Massachusetts has decreed.
We would reverse the judgment of the District Court, as was done in the decision of the panel written by Judge Swan.
. This was that “the standard of culpability, by its total disregard for the injury actually sustained by the decedent’s dependents, violates the primary purpose of most wrongful death legislation, including that of New York, which is concern for the pecuniary loss of the beneficiaries who remained behind,” 307 F.2d at 147. The primary purpose of the New York legislation, certainly, and of “most” wrongful death acts, probably, see 2 Harper & James, The Law of Torts, § 24.2 at 1288 (1956), but clearly not of the Massachusetts Act to which New York here looks as the source of plaintiff’s claim.
. No case holds that the forum may constitutionally extend the period “where a statute creates a new liability and in the same section or in the same act limits the time within which it can be enforced,” Davis v. Mills, 194 U.S. 451, 454, 24 S.Ct. 692, 694, 48 L.Ed. 1067 (1904). In addition to the Davis case, The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 30 L.Ed. 358 (1886), and Bournias v. Atlantic Maritime Co., supra, indicate it may not do this when it is clear that the state creating the right meant the time limitation to be a condition on it and thus applicable generally.
. In making this change the legislature had before it, and explicitly disapproved, bills which would have removed the recovery ceiling altogether. See Legislative Record at 583, in Commonwealth of Massachusetts, General Court of 1962, Bulletin of Committee Work and Business of the Legislature (Final Ed., 1962 Sess.) (committee states that its recommendation of H. No. 3476, the bill which passed, was based on consideration of three bills, two of which, H. No. 274 and H. No. 2964, would have abolished ceiling); Mass.Judicial Council, 37th Report 45—47 (1961) (“accepted” June 21, 1962) (adverse report on bill to eliminate ceiling).
. Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814 (1959), also cited in the majority opinion, held that the forum would apply the law of the spouses’ domicile, which allowed the action, rather than that of the place of accident, to determine whether one spouse had the right to sue another for tort; in view of the traditional recognition of the law of the domicile as governing marital relations, see Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1956), this decision is hardly pertinent. It should also be observed that both Grant and Haumschild related to common law claims where there was no indication that the state of the accident had the slightest interest in the course followed by another forum when the defense of death or of inter-spouse immunity of the actor was asserted as to one of the latter’s residents; here it is apparent that the interest of the Massachusetts legislature in limiting what could be collected from a common carrier for death in that state was not confined to Massachusetts suits. In the Grant case Judge Traynor expressly distinguished statutory causes of action for wrongful death, 41 Cal.2d 864-865, 264 P.2d 947-948.