Ella Mae Dubois Dore, Individually and As Natural Tutrix of and for and on Behalf of Her Minor Children, Rodney James Dore, Vickie Ann Dore and Jo Ella Dore, Appellants, v. the Link Belt Company, et al., Appellees, 391 F.2d 671 (5th Cir. 1968)

The issue with which we are concerned is whether the Death on the High Seas Act, 46 U.S.C. § 761 et seq.,¹  is the exclusive remedy of claimants in an action growing out of the death of an oil field worker which occurred on a stationary offshore drilling platform on the outer Continental Shelf of the Gulf of Mexico beyond a marine league from the Louisiana shore. Plaintiffs, who are the surviving wife and children of the deceased worker, contend that the Act, which provides for recovery only for the pecuniary loss sustained, should be supplemented by Louisiana statutory law which provides a broader remedy for damages.² 

Pursuant to motions to dismiss of defendants, The Link Belt Company and Road Equipment Company, the district court entered judgment against plaintiffs, limiting them to a claim in Admiralty for pecuniary loss under the Death on the High Seas Act.³ 

Plaintiffs appealed from the judgment and specify the following errors:

"The lower court erred in holding that the plaintiffs, Ella Mae Dubois Dore, individually and as natural tutrix of the minors, Rodney James, Vickie Ann and Jo Ella Dore, had no standing in court; and in holding that the exclusive remedy for the death of Joseph Dore was for `pecuniary losses' only under the Death on the High Seas Act, 46 U.S.C.A., Section 761, et seq., in striking from the complaint all items of damage other than `pecuniary loss' and in directing that this case be removed to the Admiralty side of the Court and that plaintiffs would not have a right to trial by jury."

Decedent, Joseph Dore, an oil field worker, was killed while working on a stationary offshore drilling platform on the outer Continental Shelf in the Gulf of Mexico south of the State of Louisiana, approximately fifty miles seaward from Marsh Island, when a crane which he was operating and which it is alleged was "sold, manufactured, supplied and installed" by defendants, The Link Belt Company and Road Equipment Company, collapsed and fell more than sixty feet.⁴  The widow of decedent instituted a civil action on her behalf and that of the minor Dore children, alleging negligence by defendants⁵  under the General Maritime Laws, Death on the High Seas Act, 46 U.S.C. § 761 et seq., and Article 2315 of the Revised Civil Code of Louisiana, claiming damages for "loss of love and affection, loss of support and inheritance, loss of material aid and services, loss of parental guidance, loss of society and companionship, pain and suffering, anguish and shock."

Appellants contend that under the "savings-to-suitors" clause, 28 U.S.C. § 1333,⁶  and under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq.,⁷  state remedies are available to them in addition to the remedy provided by the Death on the High Seas Act, 46 U.S. C. § 761 et seq.

Under the Death on the High Seas Act, when wrongful death occurs beyond a marine league from the shore of any state, a remedy is provided in Admiralty in the United States courts. Under the Outer Continental Shelf Lands Act, the laws of the United States are extended to the subsoil, seabed, artificial islands and fixed structures on the outer Continental Shelf. Laws of adjacent states, to the extent that they are applicable and not inconsistent with the Outer Continental Shelf Act or other federal laws, are under that Act declared to be the law of the United States. The site of decedent's death, fifty miles south of Marsh Island, Louisiana, on the Shelf, is in an area encompassed by both the Death on the High Seas Act and the Outer Continental Shelf Lands Act.

Appellants contend that the language of the Outer Continental Shelf Lands Act which makes applicable the laws of the adjacent state under certain circumstances requires an interpretation that the law of Louisiana is applicable.

Necessarily, Louisiana law must not be inconsistent with federal law to warrant this interpretation. Several inconsistencies between federal law and the law of Louisiana are apparent; for example, the law of Louisiana, which provides inter alia for broad remedies for wrongful death, such as loss of love and affection, etc., limits the time to one year within which an action may be brought and bars recovery because of contributory negligence. In contrast, the provisions of the Death on the High Seas Act provide for pecuniary loss only, a two-year period in which an action may be brought, and mere diminution of damages in the event of comparative negligence.

Determination of which law is to apply to cases involving death of a maritime worker on the outer Continental Shelf presents a question of first impression for this Court. In the present case the death occurred beyond a marine league from shore. We have had several occasions, however, to resolve disputes centered around the question of whether federal or state law is applicable to torts, in which a maritime worker suffered personal injuries, occurring on the outer Continental Shelf. We have uniformly held that federal law is the applicable law. Loffland Brothers Company v. Roberts, 5 Cir., 1967, 386 F.2d 540, cert. denied 389 U.S. 1040, 88 S. Ct. 778, 19 L. Ed. 2d 830 (1968); Ocean Drilling & Exp. Co. v. Berry Bros. Oilfield Service, 5 Cir., 1967, 377 F.2d 511; Pure Oil Co. v. Snipes, 5 Cir., 1961, 293 F.2d 60.⁸  In Loffland, the defendant urged that Louisiana law was applicable on the Continental Shelf, under which law recovery for physical injury would have been barred because of plaintiff's contributory negligence, as opposed to diminution of damages under the maritime concept of comparative negligence. In rejecting defendant's argument, we said (386 F.2d at 545):

"In Pure Oil Co. v. Snipes, 293 F.2d 60 (5 Cir. 1961) this Court carefully reviewed the Outer Continental Shelf Lands Act and concluded that Congress deemed the hazards presented by the offshore drilling platforms to be maritime in nature. We therefore held that under the Act federal maritime law was to apply to torts occurring on these offshore platforms. That decision has been consistently followed by this Court."

In Pure Oil plaintiff fell through an open space in a platform located on the outer Continental Shelf into the ocean below and suffered severe injuries. Defendants argued that plaintiff's right to recover had prescribed under the one-year Louisiana statute. We disagreed and said that federal and not state law was pertinent. We said (293 F.2d at 64):

"In every sense of the word this happened on the high seas. It did not happen in Louisiana. Nor did it happen in waters which Louisiana could regard as within her territorial boundaries. * * *

"We think that a consideration of both intrinsic and extrinsic factors requires the conclusion that it was the intention of Congress that (a) this occurrence be governed by Federal, not State, law, and (b) that the Federal law thereby promulgated would be the pervasive maritime law of the United States. In connection with the latter phase — the choice by Congress of maritime law — it is again important to keep in mind that we are in an area in which Congress has an almost unlimited power to determine what standards shall comprise the Federal law."

While it is true that Loffland, Pure Oil Co. and Ocean Drilling & Exp. Co. relate to injuries sustained by workmen and not to their death, we do not regard this distinction as decisive. The rationale of these opinions is equally and logically applicable to torts which result in death of a worker.

Appellants' further contention that their state remedies are preserved under the "savings-to-suitors" clause of 28 U.S.C. § 1333 is not tenable. We know of no theory in law under which a site in the Gulf of Mexico more than fifty miles from the shore of Louisiana can be considered as part of the State.⁹  The conclusion is clear that there is no remedy to save under 28 U.S.C. § 1333. Cf, Jennings v. Goodyear Aircraft Corporation, D.C., D. Del., 1964, 227 F. Supp. 246.

No right or remedy existed for the death on the high seas of a non-seaman maritime worker prior to the enactment of the Death on the High Seas Act. The maritime law provided no cause of action for wrongful death. The Harrisburg, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358 (1886). Where Congress had remained silent, state death statutes were recognized and enforced by Admiralty courts in claims arising from torts on the high seas. The Hamilton, 207 U.S. 398, 28 S. Ct. 133, 52 L. Ed. 264 (1907). With the passage of the Death on the High Seas Act, it is pertinent to inquire whether state statutes allowing for recovery for wrongful death are pre-empted by the Act. The issue is a novel one for this Court, and the United States Supreme Court has made no pronouncement in this regard.

The legislative history indicates that when Congress passed the Death on the High Seas Act it intended the remedy it provided to be an exclusive one. In Higa v. Transocean Airlines, 9 Cir., 1955, 230 F.2d 780, 783, 784, the Court set forth the following colloquy which occurred during the debate in the House of Representatives:

"`Mr. Igoe. Does not the gentleman think that he should inform the gentleman from Ohio (Mr. Ricketts) that this proceeding will be in admiralty and that there will be no jury, so that no Member of the House may have any misunderstanding about it? That question was thrashed out and it was decided best not to incorporate into this bill a jury trial because of the difficulties in admiralty proceedings.' (Page 4482. Emphasis added.)

"`Mr. Moore of Virginia. * * * The purpose of this bill, as I understand it, is to give exclusive jurisdiction to the admiralty courts where the accident occurs on the high seas.

"`Mr. Volstead. That is it.' (Page 4483.) Congressional Record, Volume 59, Part V."

The Ninth Circuit concluded, "Construing the Act's words, if Higa's diversity proceeding at common law were permitted by the High Seas Act it would make superfluous its words `in admiralty.'"¹⁰ 

Appellants call our attention to several federal district court decisions which give effect to state wrongful death statutes in addition to remedies under the Death on the High Seas Act.¹¹  However, there are other federal district courts whose holdings are to the contrary.¹²  The two United States Supreme Court cases cited by appellants, Just v. Chambers, 312 U.S. 383, 61 S. Ct. 687, 85 L. Ed. 903 (1941) and Kernan v. American Dredging Company, 355 U.S. 426, 78 S. Ct. 394, 2 L. Ed. 2d 382 (1958), are inapposite to the present case. Both cases are concerned with torts occurring within state territorial waters, not on the high seas. In Just v. Chambers, supra, a yacht owner who subsequently died attempted to limit his liability in claims for injuries sustained by passengers as a result of his alleged negligence on navigable waters within the territorial limits of the State of Florida. In reversing the Fifth Circuit and affirming the district court's finding that under a statute of Florida the claimants' causes of action survived the owner's death, the Supreme Court recognized the "authority of the States to create rights and liabilities with respect to conduct within their borders, when the state action does not run counter to federal laws or the essential features of an exclusive federal jurisdiction." The Court held that it saw "no reason why, under this test, the Florida rule in providing for the survival of a cause of action against a deceased tort-feasor for injuries occurring on navigable waters within the limits of the State should not be applied." (312 U.S. at 391, 61 S. Ct. at 693.) Kernan v. American Dredging Company, supra, is a limitation proceeding in which a claim for damages was filed as the result of the death of a seaman who lost his life on a tug in the Schuylkill River in Philadelphia. Apparently the language to which appellants refer is that contained at page 430 in footnote 4 of 355 U.S., page 397 of 78 S. Ct., where the Supreme Court in dictum says, "Presumably any claims, based on unseaworthiness, for damages accrued prior to the decedent's death would survive, at least if a pertinent state statute is effective to bring about a survival of the seaman's right." That a state death statute will be enforced in Admiralty where death occurs as the result of tortious conduct occurring upon navigable waters of a state within that state's boundaries is of course a basic principle recognized in the savings clause of 28 U.S.C. § 1333, and the uniformity of maritime law is not offended by such enforcement. See The M/V "Tungus" v. Skovgaard, 358 U.S. 588, 79 S. Ct. 503, 508, 3 L. Ed. 2d 524 (1959). However, this is not to say that such a state statute would be effective where death occurs not on the territorial waters of a state, not within a marine league from its shores, but more than fifty miles seaward of the shores of that state.

We hold, therefore, that the Death on the High Seas Act provides the exclusive remedy in this case.¹³ 

Affirmed.