# The Tungus v. Skovgaard/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Frankfurter
* Dissenting Opinion Brennan
United States Supreme Court
358 U.S. 588
The Tungus v. Skovgaard
Argued: Oct. 23, 1958. --- Decided: Feb 24, 1959
On the evening of December 5, 1952, the motor vessel Tungus docked at Bayonne, New Jersey, with a cargo of coconut oil in its deeptanks. El Dorado Oil Works had been engaged by the consignee to handle the discharge of this cargo, and for the next several hours the work of pumping the oil ashore was carried on by El Dorado employees, using a pump and hoses furnished by their employer. Two officers and two crew members of the Tungus remained aboard, the latter specifically assigned to assist in the discharge operations. Shortly after midnight the pump became defective, resulting in the spillage of a large quantity of oil over the adjacent deck area. The pump was stopped and the oil cleaned from its immediate vicinity. Efforts to restore the pump to normal operation were unsuccessful, and Carl Skovgaard, an El Dorado maintenance foreman, was therefore summoned from his home to assist in the repair work. After arriving on board he walked through an area from which the oil had not been removed, and in attempting to step from the hatch beams to the top of the partly uncovered port deep tank, he slipped and fell to his death in eight feet of hot coconut oil.
His widow and administratrix, the respondent here, commenced this suit in admiralty against the ship and its owners to recover damages for his death, alleging unseaworthiness of the vessel and a negligent failure to provide the decedent with a reasonably safe place to work. The District Court dismissed the libel, holding that a wrongful death action for unseaworthiness would not lie, and that the petitioners owed no duty of exercising ordinary care to provide the decedent a safe place to work. 141 F.Supp. 653. The Court of Appeals set aside this decree and remanded the case for further proceedings, a divided en banc court deciding that the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 et seq., embraces a claim for unseaworthiness, and also that the District Court had erred with respect to the scope of the petitioners' duty to exercise reasonable care for the decedent's safety. 252 F.2d 14. The court did not decide 'what defenses, if any, might be available,' leaving that question for the District Court to determine. Certiorari was granted primarily to consider the relationship of maritime and local law in cases of this kind. 357 U.S. 903, 78 S.Ct. 1146, 2 L.Ed.2d 1154.
We begin as did the Court of Appeals with the established principle of maritime law that in the absence of a statute there is no action for wrongful death. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358. Although Congress has enacted legislation, notably the Jones Act and the Death on the High Seas Act, providing for wrongful death actions in a limited number of situations, no federal statute is applicable to the present case; Skovgaard was not a seaman, and his death occurred upon the territorial waters of New Jersey. The respondent's rights in this suit depended entirely, therefore, upon the New Jersey wrongful death statute, and the long-settled doctrine that 'where death * * * results from a maritime tort committed on navigable waters within a State whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given.' Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210.
The primary issue in this case, therefore, as the Court of Appeals unanimously saw it, was whether the New Jersey statute giving a right of action where death is caused 'by a wrongful act, neglect or default' is broad enough to encompass an action for death caused by the unseaworthiness of a vessel. It was upon this issue-construction of the state statute-that the court divided.
The respondent asks us to uphold the interpretation which the majority in the Court of Appeals has put upon the New Jersey statute. Failing that, a much broader alternative argument is advanced-that a court in a case such as this may disregard completely the conditions which the State has put upon the right it has created, and may apply instead the full corpus of the maritime law, free of any qualifications imposed by the State. If death occurs upon navigable waters within a State, the argument runs, the law should seize only upon the blunt fact that there is some kind of state statute providing some kind of a right of action for death caused by some kind of tortious conduct. That, it is said, is enough to fill the 'void' in the maritime law, which then becomes applicable in all its facets, without further inquiry as to what it is that the State has actually enacted.
This broad argument must be rejected. The decisions of this Court long ago established that when admiralty adopts a State's right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached. That is what was decided in The Harrisburg, where the Court's language was unmistakable: '* * * (I)f the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence. * * * The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right.' 119 U.S. 199, at page 214, 7 S.Ct. 140, at page 147. That is the doctrine which has been reiterated by the Court through the years. See The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; La Bourgogne, 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973; Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319; cf. Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903.
'(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.' Garrett v. Moore-McCormack Co., 317 U.S. 239, 245, 63 S.Ct. 246, 251, 87 L.Ed. 239. The policy expressed by a State Legislature in enacting a wrongful death statute is not merely that death shall give rise to a right of recovery, nor even that tortious conduct resulting in death shall be actionable, but that damages shall be recoverable when conduct of a particular kind results in death. It is incumbent upon a court enforcing that policy to enforce it all; it may not pick or choose.
It is manifest, moreover, that acceptance of the respondent's argument would defeat the intent of Congress to preserve state sovereignty over deaths caused by maritime torts within the State's territorial waters. 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.
There is no merit to the contention that application of state law to determine rights arising from death in state territorial waters is destructive of the uniformity of federal maritime law. Even Southern Pacific Co. v. Jensen, which fathered the 'uniformity' concept, recognized that uniformity is not offended by 'the right given to recover in death cases.' 244 U.S. 205, at page 216, 37 S.Ct. 524, at page 529, 61 L.Ed. 1086. It would be an anomaly to hold that a State may create a right of action for death, but that it may not determine the circumstances under which that right exists. The power of a State to create such a right includes of necessity the power to determine when recovery shall be permitted and when it shall not. Cf. Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968.
We hold, therefore, that the Court of Appeals was correct in viewing the basic question before it as one of interpretation of the law of New Jersey. It is within that frame of reference that we consider the issues presented.
The negligence claim needs little discussion. Obviously the New Jersey wrongful death statute embraces a claim for death negligently caused. The majority in the Court of Appeals pointed out that the officers and crew of the Tungus remained in over-all control of the vessel, and that they were well aware of the existence of the oil spill and of the danger created by it for approximately an hour before Skovgaard arrived on board. Upon these facts it was concluded that the law imposed upon the petitioners a duty of exercising ordinary care to provide Skovgaard with a reasonably safe place to carry on his work of repairing the pump. In reaching this conclusion the court distinguished the New Jersey Supreme Court's decision in Broecker v. Armstrong Cork Co., 128 N.J.L. 3, 24 A.2d 194. We find no reason to question the disposition of this branch of the case.
As to the other issues, a majority of the Court of Appeals concluded that a claim for unseaworthiness is encompassed by the New Jersey Wrongful Death Act as a matter of state law. The three dissenting members of the court reached the opposite conclusion. Apparently because the trial court had made no finding as to the decedent's contributory negligence or assumption of risk, the Court of Appeals refrained from deciding what effect state law would give to such findings, leaving that question to be decided if it arose on retrial.
In a case such as this it is incumbent upon the admiralty to enforce the New Jersey statute just 'as it would one originating in any foreign jurisdiction.' Levinson v. Deupree, 345 U.S. 648, 652, 73 S.Ct. 914, 916, 97 L.Ed. 1319. Yet the fact is that the New Jersey courts have simply not spoken upon the question of whether in a case such as this maritime law or common law is applicable under the State's Wrongful Death Act. In sum, there is no way of knowing whether New Jersey would impose uniform legal standards throughout its jurisdiction, or would apply in this case rules different from those that would govern if, instead of meeting his death aboard the Tungus, Skovgaard had been killed on the adjacent dock. An effort to resolve that question here, no less than the effort of the Court of Appeals, could be nothing but a prediction, a prediction that might tomorrow be proved wrong by the courts of New Jersey, which alone have power to render an authoritative interpretation.
In view of these considerations, it might plausibly be argued that the judgment should be vacated, and the case remanded to the District Court to be held until the parties can secure from the courts of New Jersey a decision upon the controlling and seriously doubtful question of state law. Under traditional principles of equitable abstention this Court has often followed such a course for the limited and obviously wise purpose of avoiding unnecessary resolution of constitutional issues. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; City of Chicago v. Fieldcrest Dairies, 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267. Cf. Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876.
Before deciding to dispose of a case like the present one in that way, however, important and competing jurisdictional considerations would have to be thoroughly evaluated. See Propper v. Clark, 337 U.S. 472, 486-489, 69 S.Ct. 1333, 1341-1343, 93 L.Ed. 1480; Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9. This case has not presented the occasion for full exploration of these jurisdictional questions. The Court of Appeals, en banc, has given careful consideration to the meaning of the state statute. We cannot say that its conclusion is clearly wrong. Therefore, despite the inherent uncertainties involved, we will not disturb that court's interpretation of the New Jersey law. Such a course is consistent with the practice that has been followed in the past. Estate of Spiegel v. Commissioner, 335 U.S. 701, 707-708, 69 S.Ct. 301, 303-304, 93 L.Ed. 330; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 534, 69 S.Ct. 1233, 1235, 93 L.Ed. 1520; General Box Co. v. United States, 351 U.S. 159, 165, 76 S.Ct. 728, 732, 100 L.Ed. 1055.
Affirmed.

## Notes

* ↑ The libel also asserted a claim, presumably under the New Jersey survival statute, N.J.S.A. 2A:15-3, for damages sustained by the decedent prior to his death. This claim has been abandoned.
* ↑ 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688.
* ↑ 41 Stat. 537 et seq., 46 U.S.C. § 761 et seq., 46 U.S.C.A. § 761 et seq.
* ↑ See also the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424 et seq., 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. In the present case, the record shows that the respondent was awarded compensation under the New Jersey compensation act upon a finding that her decedent's death occurred in the 'twilight zone.' See Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246.
* ↑ The Jones Act applies 'in case of the death of any seaman * * *.' 46 U.S.C.A. § 688.
* ↑ The Death on the High Seas Act creates a right of action only for a 'wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State * * *.' 46 U.S.C. § 761, 46 U.S.C.A. § 761.
* ↑ The relevant text of the New Jersey statute is as follows:
* ↑ That this is the law has been generally understood by the other federal courts. Halecki v. United New York and New Jersey Sandy Hook Pilots Ass'n, 2 Cir., 251 F.2d 708, judgment vacated and cause remanded 358 U.S. 613, 79 S.Ct. 517; Continental Casualty Co. v. The Benny Skou, 4 Cir., 200 F.2d 246; Graham v. A. Lusi, Ltd., 5 Cir., 206 F.2d 223; Lee v. Pure Oil Co., 6 Cir., 218 F.2d 711; Klingseisen v. Costanzo Transp. Co., 3 Cir., 101 F.2d 902; The H.S., Inc., No. 72, 3 Cir., 130 F.2d 341; Feige v. Hurley, 6 Cir., 89 F.2d 575; Curtis v. A. Garcia y Cia., 3 Cir., 241 F.2d 30; O'Brien v. Luckenbach S.S.C.o., 2 Cir., 293 F. 170; Quinette v. Bisso, 5 Cir., 136 F. 825, 5 L.R.A., N.S., 303; The A. W. Thompson, D.C.S.D.N.Y., 39 F. 115; but cf. Riley v. Agwilines, Inc., 296 N.Y. 402, 73 N.E.2d 718; Kuhn v. City of New York, 274 N.Y. 118, 8 N.E.2d 300; O'Leary v. United States Line Co., 1 Cir., 215 F.2d 708.
* ↑ The Court of Appeals also determined that the decedent was within the class protected by the warranty of seaworthiness as developed by federal maritime law, which it found the New Jersey statute had incorporated. This subsidiary determination is clearly correct. The decedent's status is practically indistinguishable from that of the plaintiff in Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, the only difference being that the cargo here was oil instead of grain, and was being unloaded instead of loaded.
* ↑ Indeed, such a disposition has not even been suggested by counsel.
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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