# Gillespie v. United States Steel Corporation/Dissent Goldberg

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Goldberg Harlan
United States Supreme Court
379 U.S. 148
Gillespie v. United States Steel Corporation
Argued: Oct. 13, 1964. --- Decided: Dec 7, 1964
Mr. Justice GOLDBERG, dissenting in part.
I agree that this case is properly here, but disagree with the Court on the merits of the basic question presented for decision.
The precise point at issue in this case is whether a suit in a federal court for the death of a seaman resulting from unseaworthiness of a vessel may be maintained against the employer where the death occurs within the waters of a State which provides a statutory remedy for wrongful death.
In deciding this question, the Court today preserves an anomaly in admiralty law which has neither reason nor justification. A seaman who is either injured or killed while on the high seas is given a remedy for either negligence or unseaworthiness, Mahnich v. Southern S.S.C.o., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, Kernan v. American Dredging Co., 355 U.S. 426, 430, 78 S.Ct. 394, 397, 2 L.Ed.2d 382, n. 4; a seaman who is injured in territorial waters may also sue for either negligence or unseaworthiness, McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272, cf. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; an injured seaman may also sue for maintenance and cure and these claims survive his death, see Kernan v. American Dredging Co., supra, 355 U.S. at 430, 78 S.Ct. at 397, n. 4; a nonseaman's death in territorial waters gives rise to an action based upon the applicable state wrongful death statute for both negligence and the general maritime doctrine of unseaworthiness, The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524. Only the family survivors of a seaman are left without a survivors for his death within territorial waters caused by failure to maintain a seaworthy of a seaman are left without a remedy recourse to this rule of absolute liability and relegated to proof of negligence under the Jones Act. This disparity in treatment has been characterized by the lower federal courts as 'deplorable,' 'anomalous,' 'archaic,' 'unnecessary,' and 'hard to understand.' See Fall v. esso Standard Oil Co., 297 F.2d 411, 417 (C.A.5th Cir.) (Wisdom, J.); Mortenson v. Pacific Far East Line, Inc., 148 F.Supp. 71, 73 (D.C.N.D.Cal.); Gill v. United States, 184 F.2d 49, 57 (C.A.2d Cir.) (L. Hand, J., dissenting). I agree with these characterizations.
The Court relies upon Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686, and the doctrine of stare decisis to justify its holding-a holding which, in my view, is at variance with the general congressional intent in enacting the Jones Act 'to provide liberal recovery for injured workers.' Kernan v. American Dredging Co., 355 U.S. 426, 432, 78 S.Ct. 394, 398. I do not feel that stare decisis compels the conclusion reached by the Court, because I believe, first, that the language of the Court in Lindgren is dictum and, second, that even if the language embodied a holding, such a holding should be overruled.
The precise issue before the Court in Lindgren was not whether a state wrongful death statute should be applied to supply a remedy for unseaworthiness-the issue here presented-but rather whether such a statute should be applied to supply a remedy for negligence.
The libel in Lindgren, the Court acknowledged, 'does not allege the unseaworthiness of the vessel and is based upon negligence alone * * *.' 281 U.S., at 47, 50 S.Ct., at 211.
The actual decision in Lindgren of precedential effect is that the Jones Act which provides a remedy for wrongful death due to negligence supersedes state remedies for such negligence. With this precise holding there can be no quarrel. The Jones Act, 41 Stat. 1007, 46 U.S.C. § 688 (1958 ed.), says that 'statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable' to seamen's cases. This Court has held that Congress intended that the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. §§ 51-60 (1958 ed.), replace negligence and related state remedies. New York Central R. Co. v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045. The Court in Lindgren reasonably concluded that the Jones Act, incorporating the standard of the FELA, supersedes and pre-empts state remedies for negligence. It correctly decided that since the wrongful death before it was 'based upon negligence alone' recovery could only be had under the Jones Act and not under the state wrongful death statute. On this precise holding, Lindgren is a valid precedent and should be followed.
The Court in Lindgren, however, went on to say, 281 U.S. at 46-47, 50 S.Ct. p. 211:
'In the light of the foregoing decisions and in accordance with the principles therein announced we conclude that the Merchant Marine Act-adopted by Congress in the exercise of its paramount authority in reference to the maritime law and incorporating in that law the provisions of the Federal Employers' Liability Act-establishes as modification of the prior maritime law a rule of general application in reference to the liability of the owners of vessels for injuries to seamen extending territorially as far as Congress can make it go; that this operates uniformly within all of the States and is as comprehensive of those instances in which by reference to the Federal Employers' Liability Act it excludes liability, as of those in which liability is imposed; and that, as it covers the entire field of liability for injuries to seamen, it is paramount and exclusive, and supersedes the operation of all state statutes dealing with that subject.
'It results that in the present case no resort can be had to the Virginia Death Statute, either to create a right of action not given by the Merchant Marine Act, or to establish a measure of damages not provided by that Act.
'Nor can the libel be sustained as one to recover indemnity for Barford's death under the old maritime rules on the ground that the injuries were occasioned by the unseaworthiness of the vessel. Aside from the fact that the libel does not allege the unseaworthiness of the vessel and is based upon negligence alone, an insuperable objection to this suggestion is that the prior maritime law, as herein above stated, gave no right to recover indemnity for the death of a seaman, although occasioned by unseaworthiness of the vessel.'
It is apparent from this statement itself that the Court's observation that the Jones Act pre-empted state remedies for death resulting from unseaworthiness, as distinguished from negligence, was purely and simply obiter dictum. Cf. The Tungus v. Skovgaard, supra, 358 U.S. at 606-607, 79 S.Ct. at 513-514 (opinion of Mr. Justice Brennan). Even the English courts, which hold to a doctrine of stare decisis more ridig than our own, hold that obiter dicta are in no wise controlling. Surely the rule of stare decisis should not preclude consideration of whether such dicta were originally supported by logic and have withstood the test of time.
In fact, much of the reasoning supporting the Lindgren dictum has been rejected in subsequent decisions of this Court. The Court's rationale in Lindgren for its conclusion that the Jones Act pre-empted remedies for wrongful death resulting from unseaworthiness, as well as negligence, was in part that the Act 'covers the entire field of liability for injuries to seamen, it is paramount and exclusive.' Lindgren v. United States, supra, 281 U.S. at 47, 50 S.Ct. at 211. In Mahnich v. Southern S.S.C.o., supra, however, this Court held that a seaman may recover for injuries sustained from the ship's unseaworthiness notwithstanding his right to a remedy under the Jones Act for negligence. And in Seas Shipping Co. v. Sieracki, supra, the Court held that the same is true of longshoremen. The logic of Judge Learned Hand's comment on the effect of these decisions on the rationale of the Lindgren dicta is inescapable:
'I find it hard to understand why the rationale of Lindgren v. United States * * * ought not to have forbidden recovery in either of these instances. If the Jones Act 'covers the entire field of liability for injuries to seamen' * * * and 'is paramount and exclusive,' why does it not supersede injuries arising from unseaworthiness which do not result in death, as well as those which do?' Gill v. United States, supra, 184 F.2d at 57.
There is, however, an answer to Judge Hand's question. The Court in Lindgren was wrong in its sweeping assertion that the Jones Act covers the entire field of liability for injuries to seamen and is paramount and exclusive. Congress in passing the Jones Act meant to leave certain pre-existing remedies untouched. And Congress did not intend in enacting the Jones Act-a remedial statute-to eliminate the seaman's right to recovery for maintenance and cure or for unseaworthiness. See The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760. The admiralty rule that the vessel and owner are liable to the seaman for 'injury caused by unseaworthiness of the vessel or its appurtenant appliances and equipment, has been the settled law since this Court's ruling to that effect in The Osceola, supra, (189 U.S. 158) 175 (23 S.Ct. 483, 487, 47 L.Ed. 760).' Mahnich v. Southern S.S.C.o., supra, 321 U.S. at 99, 64 S.Ct. at 457.
What Congress did intend in enacting the Jones Act was to provide an additional remedy denied in maritime law, as ruled in The Osceola, supra, 'by way of indemnity beyond maintenance and cure, for the injury to a seaman caused by the mere negligence of a ship's officer or member of the crew.' Ibid. (Emphasis added.) In other words, prior to the Jones Act, 'the maritime law afforded no remedy * * * for * * * injury to a seaman caused by * * * negligence.' Ibid. The Jones Act supplied a maritime remedy for negligence; it pre-empted those purely state remedies related to negligence and it is paramount and exclusive only to that extent. The Act does not supersede, as Mahnich holds, traditional maritime remedies for unseaworthiness.
Traditional maritime law not only recognized the right of a seaman to recover for injuries caused by unseaworthiness, The Osceola, supra, 189 U.S. at 175, 23 S.Ct. at 487; it also recognized a right of action to recover for the death of a seaman resulting from unseaworthiness of a vessel where the death occurs in the navigable waters of a State which provides a statutory remedy for wrongful death. This was recognized in the Lindgren opinion. 281 U.S., at 43, 50 S.Ct., at 209. See also Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210.
Simple logic compels the conclusion that if the Jones Act does not pre-empt a seaman's traditional remedy for injuries caused by unseaworthiness, it similarly does not pre-empt the right of action to recover for the death of a seaman resulting from unseaworthiness to the extent that such a remedy was recognized before the Jones Act in States providing a statutory remedy for wrongful death.
Legislative history as well as logic supports the conclusion that Congress by enacting the Jones Act did not intend to eliminate then-existing remedies for unseaworthiness.
The same Congress which passed the Jones Act providing a remedy for injuries to a seaman resulting from negligence and a remedy for wrongful death caused by negligence where the death occurs in state waters, enacted the Death on the High Seas Act, 41 Stat. 537, 46 U.S.C §§ 761-768 (1958 ed.). This statute gives an admiralty remedy for wrongful death of a seaman or other person occurring on the high seas beyond a marine league from the shore of any State. The Act expressly stipulates 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.' 41 Stat. 538, 46 U.S.C. § 767 (1958 ed.)
In The Tungus v. Skovgaard, supra, 358 U.S. at 593, 79 S.Ct. at 507, Mr. Justice Stewart for the Court said of this exception:
'The legislative history of the Death on the High Seas Act discloses a clear congressional purpose to leave 'unimpaired the rights under State statutes as to deaths on waters within the territorial jurisdiction of the States.' S.Rep.No. 216, 66th Cong., 1st Sess. 3; H.R.Rep.No. 674, 66th Cong., 2d Sess. 3. The record of the debate in the House of Representatives preceding passage of the bill reflects deep concern that the power of the States to create actions for wrongful death in no way be affected by enactment of the federal law. 59 Cong.Rec. 4482-4486.'
From this expression of congressional purpose, the Court in The Tungus concluded that a suit in admiralty for death of a longshoreman resulting from unseaworthiness of a vessel may be maintained against the vessel's owner where the death occurs in the waters of a State which provides a statutory remedy for wrongful death.
It seems to me to strain credulity to impute to Congress the intent to eliminate state death remedies for unseaworthiness where the decedent is a seaman while refusing to do so in cases involving nonseamen. Yet this is the result of the Court's following Lindgren.
Finally, even though the Lindgren dictum has been in existence for 34 years, no policy of stare decisis militates against overruling Lindgren. In refusing to follow Lindgren we would not create new duties or standards of liability; we would merely allow a new remedy. Shipowners are currently required to maintain a seaworthy ship; seamen and longshoremen currently recover for death on the high seas and injury suffered anywhere due to an unseaworthy vessel. The action of a shipowner in maintaining his vessel will not be affected by now allowing recovery for wrongful death in territorial water caused by unseaworthiness. It is thus difficult to find much if any reliance that would justify the continuation of a legal anomaly which would deny a humane and justifiable remedy.
Stare decisis does not mean blind adherence to irrational doctrine. The very point of stare decisis is to produce a sense of security in the working of the legal system by requiring the satisfaction of reasonable expectations. I shoud think that by allowing a remedy where one is needed, by eliminating differences not based on reason, while still leaving the underlying scheme of duties unchanged, this sense of security will not be weakened but strengthened. The policies behind stare decisis point toward ignoring Lindgren, not following it.
I cannot agree that Congress in enacting the Jones Act, designed 'to provide liberal recovery for injured workers,' intended to create the anomaly perpetuated by the Court's decision. I would reverse and free the lower federal courts to grant relief in these cases-relief which many of them have indicated is just and proper 'in terms of general principles,' Fall v. Esso Standard Oil Co., supra, 297 F.2d at 417, and which they gladly would accord but for the unfortunate and unnecessary compulsion of Lindgren.
Since petitioner claims that Ohio law allows recovery for a wrongful death caused by unseaworthiness, nothing in either the majority or minority opinion in The Tungus v. Skovgaard, supra, would preclude recovery. Only the Lindgren dictum stands in the way. I would reject this dictum and reverse.

## Notes

* ↑ Catlett, The Development of the Doctrine of Stare Decisis and the Extent to Which it Should Be Applied. 21 Wash.L.Rev. 158, 162.
* ↑ Moreover, federal courts have borrowed state survival statutes to allow for the survival of claims based upon unseaworthiness for conscious pain and suffering prior to the seaman's death. Holland v. Steag, Inc., 143 F.Supp. 203 (D.C.D.Mass.) cited with approval in Kernan v. American Dredging Co., supra, 355 U.S. at 430, 78 S.Ct. at 397, n. 4; accord: McLaughlin v. Blidberg Rothchild Co., 167 F.Supp. 714 (D.C.S.D.N.Y.); cf. Just v. Chambers, 312 U.S. 383, 668, 61 S.Ct. 687, 85 L.Ed. 903. I see no way to hold under Lindgren that state survival statutes may be applied to rpeserve actions for pain and suffering, yet state wrongful death actions may not be used to allow an action for wrongful death.
* ↑ Even if the analogy with FELA cases were followed exactly, New York Central R. Co. v. Winfield, supra, could require no more than pre-emption of purely state strict liability remedies. A wrongful death action based on unseaworthiness was a mixed state-federal remedy in which maritime courts borrowed a state wrongful death action which in turn was based upon a federal maritime standard of liability. Nothing in Winfield requires a finding that this type of remedy was pre-empted.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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