Earl Warren: Mr. Mahoney, you may continue.
Felix Frankfurter: Mr. Mahoney, I asked you (Inaudible) what was the last thing?
Lawrence J. Mahoney: I said I thought it was, Your Honor.
Felix Frankfurter: Well, it specifically said, it wasn't.
Lawrence J. Mahoney: I was in error then, Your Honor.
Felix Frankfurter: Are these the questions of your being in error (Inaudible) what problems that Justice Brennan put to you (Inaudible)
Lawrence J. Mahoney: Well, if I may say so, Your Honor, I don't --
Felix Frankfurter: But it said that typically, it isn't diversity in theory and (Inaudible) there's nothing to (Inaudible)
Lawrence J. Mahoney: I don't think that our problem is necessarily one of diversities. I think it's one of our --
Felix Frankfurter: It can't be if -- if jurisdiction would sustain there when it's not derived from diversity and (Inaudible) to say there was no diversity in fact.
Lawrence J. Mahoney: Well, in my opinion, it doesn't matter whether it's in admiralty, whether it's on the civil side.
Felix Frankfurter: Very well. I -- I can follow that argument. But it does make a difference in the analogies whether on (Inaudible) or whether the cause of action to derive approximately, and then the question, if I may say so, put by my Brother (Inaudible) a question that has to be faced or met, namely, to -- in the federal court because of admiralty jurisdiction may you have to answer the question.
Lawrence J. Mahoney: Well, if I may say so, the -- the question, I believe, was answered in the Garrett case by Mr. Justice Black when --
Felix Frankfurter: I'm not suggesting if not -- they're not capable of answering when we put tough questions (Inaudible) They're capable so it must be answered.
Hugo L. Black: I thought his question was based on the assumption that the Garrett case did not have.
Lawrence J. Mahoney: Well, I must --
Hugo L. Black: And I say it wasn't.
Lawrence J. Mahoney: Well, I -- I must respectfully defer, Your Honor. In my whole approach to this, I haven't felt that diversity or the basis for bringing the case into either an admiralty or civil court was germane to the issue.
Felix Frankfurter: So the claim wouldn't stop with that proposition otherwise we'll get lost because we got very different considerations if it is -- if they're addressed to the problem in the cases.
Lawrence J. Mahoney: Well, as -- as I understand the proposition, it is -- that if the Court is considering the right and the rules that are to be applied in determining it, it -- then -- I don't want to be redundant, but it must be decided in accordance with the law of the jurisdiction in which that right originated. And that works both ways, in my -- not only in my opinion, but in the opinion of Mr. Justice Black. And not to oversimplify it, but I -- I think that that states the problem and answers it.
Hugo L. Black: It does if you accept the word, rooted in -- creating -- rooted in the state law or rooted in the other --
Lawrence J. Mahoney: Right.
Hugo L. Black: -- as meaning that admiralty, a case which is enforceable and that rises on the high seas is rooted in the state law, rather than the federal. As I understood his question, if we base on the assumption that there might be a difference, maybe I'm wrong, since here, what admiralty has done was to abolish its or to withdraw away from his whole idea in some instances that admiralty would not enforce a death claim, that it would enforce a death claim. Therefore, the question is, if it doesn't enforce a death claim because it is allowed in the State, does it enforce it with all the limitations of state law, does it enforce it, but only in -- with such limitations only, as in accordance with and harmony with general principles of admiralty law.
Lawrence J. Mahoney: Well -- well, isn't it so, Your Honor, that the existence of the Death on the High Seas Act indicates an intention to leave to the various States the determination of a Wrongful Death Act where it happens within the confines of the State. Now --
Hugo L. Black: I was -- I wasn't arguing -- asking, I'm trying to tell you what I was thought was -- was a question --
Lawrence J. Mahoney: Well, I think also --
Hugo L. Black: (Inaudible)
Lawrence J. Mahoney: -- if I may say so, the Death on the High Seas Act is appropriate to your question, Your Honor. In -- in the time that I have left, I have to completely skip over my second point, because it's in common with this Skovgaard case, which immediately follows, and that's the argument that the Death Act of New Jersey doesn't include or encompass unseaworthiness at all. And I'll have to leave that one to Mr. O'Neil because of the time. Now, I would like to take a few moments on our third question which is the one in which the Government has joined as friend of the Court and also the one which elicited Mr. -- rather Judge Lumbard's strong dissent in the Second Circuit, and that is whether the -- the nature of the employment of this decedent, completely apart from any of other considerations, entitles him to unseaworthiness. Now, in my brief, I've gone through Sieracki and Pope & Talbot against Hawn, we have no time for that now. I can only say this about Halecki's work. He was a shoreside electrician. Most of his work was ashore. He was employed by a subcontract, hired by the repair yard, which was not itself equipped to do the very specialized work that he had to do. His work can only be done when the vessel was out of operation. This ship had been a dead vessel for about two weeks. The very nature of the work cleaning generators could only be done while the vessel's power was bought. It was work, as far as we know that no seaman could ever do. Seaman employed in cruise as electricians, do only maintenance work. This was -- work so specialized that they had to take the seamen off the vessel, take the repair yard men off the vessel, in order to have it done.
William J. Brennan, Jr.: Well, was his work connected though of -- with furthering the use of the vessel or its operation is a going instrument of navigation (Voice Overlap) --
Lawrence J. Mahoney: I would say not, Your Honor.
William J. Brennan, Jr.: It was not?
Lawrence J. Mahoney: I would say it was not in this respect. The Government has raised that issue in its brief and --
William J. Brennan, Jr.: Well, this was the propulsion machinery, right?
Lawrence J. Mahoney: That's correct, Your Honor, but this was in the nature of extensive overhauling and repairs, not incident to the voyage in the same way that cleaning cargo tanks for example, or cleaning pitch from a cargo compartment. We maintain that this was not incident to the vessel and that the equipment itself, I may -- if I may take 30 seconds, the equipment, itself, was not the type of equipment that was considered in the Patterson case.
William J. Brennan, Jr.: tWill did I -- this issue go to the jury?
Lawrence J. Mahoney: I beg your pardon?
William J. Brennan, Jr.: This issue went to the jury?
Lawrence J. Mahoney: Unseaworthiness went to the jury.
William J. Brennan, Jr.: Well, I mean this particular part of element.
Lawrence J. Mahoney: Only in general terms. They were permitted to consider the concept of unseaworthiness over the objections of the defendant.
William J. Brennan, Jr.: Well, with this as an element of that concept?
Lawrence J. Mahoney: No, Your Honor. It was merely submitted to them in a general way and the charge in the trial judge.
Felix Frankfurter: Was there any -- on this question, on the first thing that -- that's run by dissent, this was not the vessel. This was not -- that's right. There couldn't be unseaworthiness regarding this -- this vessel. Was there any -- is that disputed or the fact about that disputed in the record?
Lawrence J. Mahoney: I -- I don't understand (Inaudible).
Felix Frankfurter: Judge Lumbard and you're arguing, the Government argues that the vessel was -- was out of the -- out of the water that were --
Lawrence J. Mahoney: There's no question they have used.
Felix Frankfurter: Now, what I want to know is whether the fact on which such a determination maybe made, assuming it's relevant, are in controversy.
Lawrence J. Mahoney: No dispute. The vessel was in navigable waters without of operation. Thank you.
Earl Warren: Thank you. Mr. Baker, you may proceed.
Nathan Baker: Mr. Chief Justice -- please the Court. A desire, if I may, at the outset, set forth some of the pertinent facts, not the detailed facts, but some of the pertinent facts which may be involved in the legal discussions which I expect to make shortly. First, I'd like to bring to the Honors' attention that this vessel was in the waters, at a dock, in the State of New Jersey. That aboard this vessel, when it's undisputed, at least, the facts supported, was the captain and four or five deck men, there was a full compliment of the engine crew and there, those men were doing maintenance work at the same time that this maintenance or overhauling work was being done by the shipyard men, during the entire time. I'd like to bring also to, Your Honors' attention that the specification of repairs which is set forth on page 2 of my brief, sets forth that the crew, meaning the ship's crew, was to remove and replace the eight cylinder heads from -- for the port and start with generators. That the very generators which were to be cleaned by this plaintiff, this Halecki, the very generator was removed and replaced by the ship's crew and then it provided in that specifications which spray clean with carbon tetrachloride. In other words, the work to be done by this Halecki, the shore-side electrician, was to spray clean with carbon tetrachloride, so set forth in the specification repairs of this defendant, the vessel, and so ordered and directed by this defendant. And it was known that it was a dangerous substance in confined spaces and it was for use in the engine room. And not only was it known, but the chief engineer in consultation with the foreman of the deceased, agreed to have the work done on a day when the members of the crew won't be present. And that was just suddenly when this occurrence occurred. And they cleared the vessel of the members of the crew from doing all the work and they just had a watchman, a ship's watchman aboard, and they started to do this work.
Felix Frankfurter: Mr. Baker is that --
Nathan Baker: Yes.
Felix Frankfurter: Can anyone say one way or the other, whether the -- in any sense that has concrete unambiguous meaning, this vessel was laid up for overhauling?
Nathan Baker: I would call it laid up, Your Honor. And not when the ship's crew -- in other words, if you've timed the word laid up, where the ship's crew was off, there are cases where the ship's crew is off, the vessel is out of commission; there's nothing being done except shipyard work, is not this case.
Felix Frankfurter: But why is this -- this vessel not tied-up to the overhaul and repair and not next week or the week thereafter, to be in operation?
Nathan Baker: Well it was the overhauled, so in preparation, preferred operation.
Felix Frankfurter: Now what I want to know is whether the law is clear. But if there is law about which one can be definite, that if a vessel is laid up for overhauling and repair is taking out of service for overhauling and repair and tied up to a dock, is it that -- does adopting of seaworthiness can apply to a vessel in that situation?
Nathan Baker: Well, I -- I don't think --
Felix Frankfurter: I just want to know what the law is.
Nathan Baker: I don't think the law is clear on that. I don't think the law is clear. It's still considered a vessel. As long as it's considered a vessel --
Felix Frankfurter: So, what's the vessel, I mean that, is it a vessel if it's taken out of operation for purposes of admiralty law?
Nathan Baker: Well, I would say that I understand that it's still considered a vessel while it's still in the -- in the -- under water.
William J. Brennan, Jr.: Well, Mr. Baker, you don't mean there aren't cases in this Court on this question? What about Desper and Seneca and (Voice Overlap) --
Nathan Baker: Oh, well, those --
William J. Brennan, Jr.: -- and all the rest of them.
Nathan Baker: -- are cases dealing with the Jones Act cases.
William J. Brennan, Jr.: I know, but --
Nathan Baker: And (Voice Overlap) --
William J. Brennan, Jr.: -- quite a problem of whether in navigation or not I think.
Nathan Baker: Yes. Well in the Jones Act --
Felix Frankfurter: Were they taking out of navigation?
Nathan Baker: Those cases are desperate cases, Your Honors, it's where the vessel was taken out of navigation and was there held that it was not a vessel for the purpose of Jones Act cases.
William J. Brennan, Jr.: Well, aren't they relevant to this question?
Nathan Baker: Well, I -- I -- this is not a Jones Act case.
William J. Brennan, Jr.: It may not be, but the problem whether this was in navigation (Voice Overlap)
Nathan Baker: Well, I'm really -- I -- I don't -- we don't reach the problem in our case. I -- I submit to Your Honor that this is not a case where the vessel was taken out and that it's similar to the (Voice Overlap) --
William J. Brennan, Jr.: You mean on the facts there.
Nathan Baker: On the facts.
Felix Frankfurter: But the doctrine of seaworthiness applies --
Nathan Baker: Not on the facts. We don't come within that.
Felix Frankfurter: Correct me if I'm wrong that the doctrine of seaworthiness not apply only to a vessel in operation? If a vessel is tied up and is not to be in operation to be overhauled, changed, repaired, a new solution and whatnot, is -- is the doctrine of seaworthiness apply to a vessel?
Nathan Baker: I would say yes. And I would say -- I will explain why. If a vessel was tied up and there's a member of the crew aboard that vessel, while it's tied up doing whatever they're doing even if they're just sleeping there, if that member of the crew was injured aboard the vessel, even though it's tied up for repairs, and extensive repairs even, and that member of the crew is injured, I submit to Your Honor that it's still amply covered in the maritime law. Otherwise, what would you say that that member of the crew was not entitled to any recovery, I'm -- as to my tougher question. This is not entitled to any recovery, what does he get, only compensation?
Felix Frankfurter: If a vessel is --
Nathan Baker: And that's my (Voice Overlap) --
Felix Frankfurter: -- if a vessel is tied up for six months, not to go -- a vessel has been in the Mediterranean voyage and tied up here for extensive repairs, but the crew was allowed to sleep on board. You say that all the admiralty law affecting members of the crew apply?
Nathan Baker: I would say so, Your Honor. I don't know of any such decision of this Court that says that, but that's what I say.
Potter Stewart: I might say that some 15 years ago I was assigned to a ship without any engines at all and I do receive pay from the Government. And I ought to give back.[Laughter]
Nathan Baker: Well, I hope -- I hope, Your Honor, would agree with me then that you would have a seaworthy vessel.
Felix Frankfurter: Without any proof that Justice Stewart was seaworthy.[Laughter]
Nathan Baker: Now, I -- I'd like to also to bring to the attention of the Court that Thompson, the watchman, testified and when they asked him what his work was, he says it was general overhaul and minor repairs. I just bring it to Your Honors' attention to the purpose of any of the factual question that maybe raised. Now, I submit to Your Honor, that it is unnecessary for me, I think, to discuss the negligence aspect of this case, the question of the negligence of the vessel which was submitted to the jury. The fact the trial judge submitted to the jury on the two points, one is negligence; one is unseaworthiness. And I'd like to bring to Your Honors' attention, which has not been brought out yet, that there was two cause of action here. The first cause of action was the survival action, namely, for the rights of the deceased up to the time of his death. And then in that action the jury bought in $2500. And the second cause of action is the death action. The right of the representatives, the widow and children in this case or the death of the deceased and that action the jury board in $62,500 and that's the verdicts in those cases. And I submit to Your Honor that the evidence which is submitted on the negligence and the -- was sustained by a jury and that it be unnecessary for me to go into the question on negligence. In fact the dissenting opinion by Judge Lumbard, also agreed that the question of negligence was one probably submitted to the jury. Now, I submit to Your Honor, that the first question to be determined and that I'd like to argue before Your Honors, is, was the deceased in his lifetime entitles to the warranty of seaworthiness on this vessel? That's the first question -- in his lifetime. And I submit to Your Honor, that this man was a shore-side electrician. And that, no electrician is certainly considered as members of the ship's crew. And that under the Sieracki case, mean even though the work was puzzled out to other people, that the puzzling out of this work for a shore-side electrician does not deprive him of the warranty of seaworthiness. So that -- and two reasons, first this electrician which I don't think it needs any extensive argument to indicate electricians are members of the ship's crew. And secondly, the work that he was doing was maintenance work -- cleaning -- so what he was doing was cleaning these generators in the engine room. And certainly cleaning, the maintenance work is essentially ship's work, and I submit to Your Honor that it's work not only traditionally, but actually performed by seamen up to present time. I have included in my briefs some extracts of coast guard proceedings which I think, Your Honor, may take judicial notice where it indicates that this type of work is described to be done by the seamen that talks about use of carbon tetrachloride, the dangers involved and so forth. And I brought it to Your Honors' attention in my brief.
William J. Brennan, Jr.: Mr. Baker, doesn't the -- doesn't the exhibit in which you -- in which you referred us a few minutes ago and which is quoted on page 2 of your brief, isn't that rather inconsistent with your position that says the crew is to do is to remove and replace the eight cylinder heads and so on, but that the contractor is to do this work --
Nathan Baker: That's right.
William J. Brennan, Jr.: -- doesn't that create a very dichotomy anyway against what you're arguing?
Nathan Baker: No, Your Honor, the -- if I may say, the crew is the ship's crew. There's no question about it.
William J. Brennan, Jr.: I understand that and that it is so much. But then the contractor --
Nathan Baker: The contractor is the shipyard's contractor.
William J. Brennan, Jr.: Yes.
Nathan Baker: They would do this work and they --
William J. Brennan, Jr.: By whom Sieracki was employed?
Nathan Baker: Was he -- he was not employed by the --
William J. Brennan, Jr.: Well by a subcontractor.
Nathan Baker: -- with the subcontractor. And that was his work to do, that's right. And his work was to do the cleaning. Now, the question is the cleaning and the maintenance work that he's done, had to do in this. Would that -- and now it gets to seamen's duties, and I submit, Your Honor, that its general maintenance work which is now the seaman's duties and I think that he comes within the --
Hugo L. Black: (Voice Overlap) general maintenance work. Apparently, isn't it fair to say on this record that there wasn't anyone qualified in the ordinary ship's crew to do the kind of work that he had to do?
Nathan Baker: Well, the -- the record has found that for that. I would say that.
William J. Brennan, Jr.: Well, I say it's not a fair inference that they employed this contract to do this kind of work, because there wasn't anyone qualified to do it just the way that he did it?
Nathan Baker: Well, I -- I would say, Your Honor, that the tariff and -- is it all of this in the traditional situation --
William J. Brennan, Jr.: I'm not suggesting it makes your argument any weaker, but that's the fact, is it?
Nathan Baker: Well, I would say not, Your Honor. I would say this that in the past years, and even at the present time, even if you look at the Coast Guard procedures, they're still cleaning their own engines and their own generators with these various substances. Now, if they use this carbon tetrachloride they're warned about the dangers of it. Now, it happened in this case, they decided to delegate that work to a general contractor namely, the shipyards workers. And the shipyard work is still sub-delegated again to the electrical company who had this Halecki do the work. And I submit, to Your Honor, that meaning that he was doing the work traditionally done by seamen -- well, actually today is done by seamen, may I bring out as kind of an illustration a decision which my judge --
William J. Brennan, Jr.: Wasn't this subcontractor a specialist in doing this kind of cleaning with this --
Nathan Baker: Well, that's the argument made, but I say no. I think that the Court may work --
William J. Brennan, Jr.: -- (Voice Overlap) fair entrance to be made from this record?
Nathan Baker: I would say no. There is no real specialization of this type of work. I would submit to Your Honor that this kind of work, the cleaning of -- of generators is done by all seamen.
William J. Brennan, Jr.: I gather this didn't go specific to the jury as a specially submitted fact.
Nathan Baker: No.
Potter Stewart: All of their adversary said all of these just went under the general submission of the issuance of seaworthiness.
Nathan Baker: Of seaworthiness and negligence. I submit to Your Honors an illustration, a case decision by Judge Wright in a case of a shore-based plumber-machinist, where he's repairing a small pipe in a laboratory. And in that case, Judge Wright indicated on page 22 of my brief, I may just read a few lines, the top of page 23. "If the warranty of seaworthiness applies to landsmen aboard a vessel, performing work historically performed by seamen, it should certainly be applied to landsmen aboard performing work currently performed by seamen and I submit to our case is analogous that he's a plumber -- plumber fixing a pipe and he was his electrician not repairing, just -- just cleaning a mechanism. And Judge Learned Hand has indicated in his decision in the court below and I think he can say it in much better language than I can, that he sees no distinction between the work being done by Halecki and the work being done by Hawn, in the Hawn Pope & Talbot case. And he thinks that the test is whether the work is of trying to traditionally the crew is in the (Inaudible) and as to that, it makes no difference that the means employed have changed with time. And he therefore, felt that since the deceased would clean the ship, he was within the doctrine of Pope & Talbot and Hawn, and he entitled to seaworthy vessel. Now, our case or my counsel has not gone into, although he didn't agree -- gone at this very hill and a few other cases. Our case can be distinguished from those cases. First, we're not the driver. Second, we were not in major repairs and no structural change was being made with just minor repairs and overhauling. And in that case, in those cases, the crew was discharged. In our case, the crew was on board, performed the work and not discharged. And I submit that none of these factors appear, if they're material in our case, which would justify any decision contrary to our argument here. And I go into my, the next point, if I may, on the question of the right to recover by the representatives of the deceased for the wrongful death. Namely, here we have a situation where under the Hawn case, Pope & Talbot against Hawn, if the person was alive and Halecki was alive, it's undisputed under that case, a decision by Justice Black, that he would have two rights of recovering, namely one, for negligence and two, for unseaworthiness, and I might add in there that contributory negligence would not be a bar, but the admiralty rule of comparative negligence would apply. But here we have not a -- personally the case, but a death case. And in order to recover under the maritime law, which is silent as to recovery for death, the wrongful death and the Court was required to adopt the Wrongful Death Act of the State of New Jersey, where this acts occurred. And in adopting it, it then gave this cause of action. And I submit to Your Honor that in looking at the New Jersey Act, which has been adopted under the maritime law so as to give it force and effect, we look at New Jersey Act, I submit to Your Honor that the Act has a referral clause in it. In other words, it refers back to the rights which the deceased would have had if he had lived. And that's on page 29 of my brief. "When a death of a person is caused by a wrongful act, neglect or default, such as would if death had not ensued, have entitled the person to sue." Now, referring to that such as clause as we termed them refers to the rights which the deceased would have had if he had lived. We look at the Pope & Talbot-Hawn case, the deceased would have had the right of -- abhor the rights of negligence and the right of cause of action on seaworthiness. And I submit that under that recall clause, the representative of the deceased, the widow and children, are entitled to the same two cause of action, which includes this action for unseaworthiness. Now then, the question arises is the Death Act of New Jersey, which is silent in using the word, unseaworthiness. Have we say that unseaworthiness comes under the term, wrongful act neglect or default. And I submit to Your Honor without arguing in great detail, that certainly, it means more than neglect because neglect is the negative cause of action and that the wrongful act for the fault can be and must be to construe to include the term, unseaworthiness.
Felix Frankfurter: Who determines -- who would finally can determine whether unseaworthiness does or doesn't come within New Jersey legislation.
Nathan Baker: Well --
Felix Frankfurter: This Court.
Nathan Baker: It has not been determined by any --
Felix Frankfurter: Did this Court -- did this Court has the last saying on that?
Nathan Baker: I would say that it does.
Felix Frankfurter: Suppose the judge in the Supreme Court next week, holds that it's outside of New Jersey Death statute?
Nathan Baker: Well, I think, in the Court would take that consideration, but I have another argument which I'm going to contend --
Felix Frankfurter: I just want to substitute -- stop a minute.
Nathan Baker: I will.
Felix Frankfurter: Could New Jersey Supreme Court say, our statute doesn't include under the Government?
Nathan Baker: Sure, they could.
Felix Frankfurter: And if a case then came up here, we have to follow New Jersey code?
Nathan Baker: I don't think so.
Felix Frankfurter: You don't think so.
Nathan Baker: I'm going to come into that argument later, Your Honor. I'll -- I'll come right into it. Now, under the Jersey Act, we submit to Your Honor that it's a remedial statute. And -- and there is a -- and there's a little construction impended of that statute and certainly it does not intend, we submit, to give to the deceased, the -- the representative, widow and children of the deceased, less right than the persons would've had, if he lived and the little construction of the statute which permits this recovery for unseaworthiness by the representative of the deceased.
Potter Stewart: Mr. Baker, hasn't this Court held or am I mistaken that the liability for unseaworthiness is essentially liability without any reference to neglect or fault, is liability without fault.
Nathan Baker: That's right, Your Honor.
Potter Stewart: Well isn't your New Jersey statute limited by the first -- very first clause that you read. It -- it's limited death caused by a wrongful act, neglect or default, not by something that's not unconnected with fault.
Nathan Baker: Well, I would say, Your Honor, that a reading of the statute, it won't block the default, is a -- that unseaworthiness is a tort, a maritime tort. And that -- and I was just about to come to the next point in discussing the Justin case in New Jersey which Justice Brennan at that time was judge of the Supreme Court. In that case, he argued and submitted an opinion that the construction of the -- this Death Act, in deciding the point which is of issue, was a construction that it included not only negligence, but all torts including breach of warranty. And under that construction and -- and I think unseaworthiness which can -- it to be considered as a --- as a breach of warranty and therefore, would come under the unseaworthy -- would come under that Act of New Jersey. I might say further and I quoted two -- in my brief, two English decisions which we all know that the Lord Campbell's Act was an English act and our New Jersey Act, many other acts have fashioned after it, and in the Zinc's (ph) the Court might be -- it indicates that each warranty is included within the recovery under the Lord Campbell's Act, which uses the same language. So I think that under that theory and including Judge Learned Hand's decision below, that unseaworthiness comes within the Death Act of New Jersey, even though not mentioned in that -- in that language.
Felix Frankfurter: (Voice Overlap) seaworthy? Is the cause of action for unseaworthiness, the cause of action for a breach of warranty?
Nathan Baker: It's -- it's considered the nature, I submit, of the breach of warranty. In other words --
Felix Frankfurter: (Voice Overlap) it could -- it could -- as because I have nothing to do with a warrant or doesn't warrant. The law says you must supply a ship that's seaworthy.
Nathan Baker: It was.
Felix Frankfurter: I don't care what you are.
Nathan Baker: As I understand it's a warranty of seaworthiness. It warrants it that it's seaworthy and its warrant irrespective of fault. As I (Voice Overlap) --
Felix Frankfurter: But they warrant it or not, it must be seaworthy. Is that right?
Nathan Baker: As I understand what we call warranty of seaworthiness and that's the reason we viewed that term.
Potter Stewart: Very close to a breach of an implied warranty.
Nathan Baker: I think so. I think it's almost identical.
Potter Stewart: (Voice Overlap) --
Nathan Baker: I'm just --
Felix Frankfurter: Telling the owner that ship (Inaudible) this is warrant and warranty stepped out of it.
Nathan Baker: Well, I do have to --
Felix Frankfurter: Can the owner of the vessel say I don't want -- I don't warrant this ship to be seaworthy?
Nathan Baker: I don't think so.
Felix Frankfurter: So that --
Nathan Baker: I think that's the legal obligation.
Felix Frankfurter: (Voice Overlap) nothing to do with the vessel?
Nathan Baker: Well, it's -- you might say is implied warranty, does express it to the fact that owns a ship is warranted that it's seaworthy.
Felix Frankfurter: Well, you might say anything, but the point is that the law says we don't care what -- you as owner warrant or don't warrant, if certain things happen --
Nathan Baker: I see.
Felix Frankfurter: Remember that something is happened?
Speaker: Can I ask you a question?
Nathan Baker: Yes, Your Honor.
Speaker: Assuming in your view, we can have the last word and say New Jersey law is that we were to come to conclusion that the unseaworthiness is not embraced in the Lord Campbell's -- New Jersey Lord Campbell's Act. Have you still got a cause of action for unseaworthiness?
Nathan Baker: I didn't quite get that, Your Honor.
Speaker: Supposing we concluded that the New Jersey statute, the New Jersey Wrongful Death statute did not -- did not embrace claims for unseaworthiness, where does that leave you on your cause of action for unseaworthiness?
Nathan Baker: I -- I slip to Your Honor that irrespective of the construction of the New Jersey Death Act under the arguments I'm about to make if I have the time, that maritime law covers. In other words, inasmuch as this Acts -- and occurred a ship, that maritime law is the paramount law in governance. And that the only reason that it accepts the New Jersey Death Act is because there's a void in the maritime law given him the right of recovery for that, either by negligence or unseaworthiness. And it fills it. It adopts into the maritime law the state laws, so as to give this cause of action. And I submit to, Your Honor, that when it does so and adopts it even without this referral nature which is not necessary in our case, but we have the referral nature of our case and we say that refers back to the rights you would have had, if he had lived. But even irrespective of such a referral statute that we have to go that far, we don't have in our case, I submit to, Your Honor, that as it absorbs or adopts the Death Act, it becomes a part of the maritime law and it's still maritime law, which governs the case.
Speaker: Supposing a New Jersey statute had said in terms, under our Wrongful Death statute, which gives all kinds of causes of actions towards -- but not unseaworthiness claims --
Nathan Baker: Well, I submit --
Speaker: -- supposing you said that specifically --
Nathan Baker: I submit --
Speaker: -- would you then say that you still had the cause of action?
Nathan Baker: I'd say yes for this reason -- for this reasons, I may say under the case of Just against Chambers, a decision by Chief Justice Hughes, he indicated that respect to maritime tort, we have held that the State may modify or supplement the maritime law by creating liability which a court of admiralty will recognize and enforce when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation.
Felix Frankfurter: But Mr. Baker, maritime law excludes the recovery for damage.
Nathan Baker: But maritime law in all the cases of this Court --
Felix Frankfurter: The characteristic of maritime law is not to give a recovery for damage.
Nathan Baker: But under the maritime law, in order to give the recovery and to take the place of this void in the law, they adopt to the State Death Act in order to give this recovery.
Felix Frankfurter: But you can adopt something that the State doesn't give.
Nathan Baker: Well, you can adopt the part of this which gives the remedy and the right and where it's repugnant to maritime law, for instance, if there was such a clause or if there was a clause in the -- in the statute which says that -- that contribute their negligence apply, doesn't pay here. I submit to Your Honor that being there it's -- with hostile, the characteristic feature of maritime law, it will adopt the part which becomes a part of maritime law and not adopt the part that's hostile to maritime law.
William J. Brennan, Jr.: Mr. Baker, let me say if this doesn't come down to --
Nathan Baker: Our case doesn't have to go that far.
William J. Brennan, Jr.: No, but in answer to Justice Harlan's question, are you in effect suggesting this all that you're looking to the state laws for is to determine whether it provides an action for wrongful death. And if it does under wrongful death is a death actionable in any event to which the maritime -- general maritime law might apply. The shape of the remedy depends upon federal law and not upon state law.
Nathan Baker: (Voice Overlap) --
William J. Brennan, Jr.: And so all you look to the state statute for is the naked fact does the State or does it not provide an action for wrongful death and ignore everything else.
Nathan Baker: That's my contention.
Felix Frankfurter: Let me see, if I could help you out some more.
Nathan Baker: (Voice Overlap) --
Felix Frankfurter: After you did the recovery for death (Inaudible) shall exclude death as admiralty -- admiralty situation. You will wipe that out because the State can't discriminate against giving recovery for admiralty situation, is that right?
Nathan Baker: And I just as much don't like, I lost your question on the side.
Felix Frankfurter: If a State gives a recovery for death into the common law, Lord Campbell's Act, but qualifies it and as this part of it qualifies, so as not to apply for death resulting from unseaworthiness, that's an unfair discrimination against the admiralty law and that would drop out in the rest of the Lord Campbell's Act instead. That's your position?
Nathan Baker: I think so. It says solely in this case of Just versus Chambers, and it indicates that it's repugnant and half of the characteristic features of maritime law. And I submit to Your Honor that that doesn't apply in our particular case Halecki because under (Inaudible) cause of action under (Inaudible) the -- of the -- under the state act, it gets the same cause of action as the deceased would've had if he had lived and the representatives, the widow and children, would have the same cause of action, namely, the right of action for negligence and the right of action on seaworthiness and that contributory negligence would not be a bar, but the comparative negligence rule would apply. Now, I don't know how much time I have, but I'd like to talk a little bit if I have time on the comparative negligence feature. I submit to Your Honor that the -- the --
William J. Brennan, Jr.: Well, now it's clear, isn't it, that in an ordinary united Jersey lawyers, I think, can agree upon this? In the ordinary automobile death action, in the -- under New Jersey statute, there's no rule of comparative negligence.
Nathan Baker: Oh, no.
William J. Brennan, Jr.: That contributory negligence --
Nathan Baker: Under land cases --
William J. Brennan, Jr.: (Voice Overlap) barred all recovery --
Nathan Baker: And the land cases contribute to make an absolute bar. And if the contention which is made here on the defense, namely, that there is two rules to be applied in the case of the party, if he's alive on the Hawn case and the party to represent the widow and children case of a death case that we have here, we would have the judge charging the jury in this case, where there's one cause of action for the -- the survivor cause of action where the jury would pay $250. He have to say to the jury, “This cause of action is on to this Hawn case.” And it's a personal injury cause of action the same as if he would have to be alive and I'll have to charge the jury in this case, the recovery can be held only for negligence. And contributory negligence in that case is not a bar, but comparative negligence rule. But on the second cause of action with the death case, where the innocent wife and children who were not guilty of any negligence as far as they're concerned, his charge of the jury would be that being that it's under the Death Act of New Jersey --
William J. Brennan, Jr.: Yes, but the charge which the Court of Appeals sustained in this case that it was comparative --
Nathan Baker: Comparative negligence.
William J. Brennan, Jr.: -- negligence and not negligence as a bar.
Nathan Baker: That's right.
William J. Brennan, Jr.: It's certainly contrary to New Jersey lawyers.
Nathan Baker: Further no question about it.
Felix Frankfurter: Could you brought this action in a Jersey court, Jersey state court?
Nathan Baker: If you could get jurisdiction of these parties.
Felix Frankfurter: Well, do you mean, if you could've serve them?
Nathan Baker: You couldn't serve them, Your Honor.
Felix Frankfurter: You couldn't, but assuming you could have serve them, you could then have brought this --
Nathan Baker: Oh, yes.
Felix Frankfurter: (Voice Overlap) New Jersey court. And I take it from your answers of the Jersey court, couldn't apply its own law.
Nathan Baker: I think they would have to apply maritime law.
Felix Frankfurter: They'd have the maritime law, although the statute says what Justice Harlan implied that you can't recover from unseaworthiness.
Nathan Baker: I would like to say that you might have to say anything more.
Earl Warren: You may finish your thought that you have there.
Nathan Baker: All right. I might say that on the theory of uniformity that Justice Brennan has mentioned and which appeared from his decision in the McAllister against Magnolia Petroleum, I submit to Your Honor that on the theory of uniformity in order to get uniform law to have one law where the man is alive and another law where he is dead and the -- and the -- and where the representatives had sworn and to say that contributory negligence is a bar in one case and comparative negligence is another case, would certainly not lead to any uniformity. And I submit to Your Honor that the Hawn case, written by Justice Black, which applies to personal injury case, should also apply to a death case, the same principles of law.
Earl Warren: Very well.


Earl Warren: Robert F. Nolan, Administrator, et al., Petitioners, versus Transocean Air Lines. Mr. Dwyer, you may continue your argument.
Robert A. Dwyer: Mr. Chief Justice, may it please the Court. I'd like to conclude my argument with a brief summary of the facts which I feel presents a very harsh result, a result that has left a three months old child without her day in Court. I'd like to summarize briefly the salient facts as we see them. The father of this child died March 20, 1953. At that time, this child was three months of age. The wife was slightly over 16 years of age. The court below in dismissing this cause of action, both -- I feel both causes of action when the wife reached -- reached the age 19. At that time, this child was three years of age. In fact at the present time, the child is just little over eight years of age. Now, California gave that child a cause of action with the death of the father. That cause of action did not belong to the mother, it belonged to the child. True, California considered it a joint cause of action but only in the sense that one cause of action should be brought by all heirs. But that child nevertheless had a cause of action which has been barred. And it has been barred, I say, because that child was a citizen of South Carolina. I say that the result in this case is a clear violation of Article 4 Section 2 of the Constitution. If this child had been a resident of New York, there can be no question that she's still be in court today, and she would've been heard. But because she was a resident of South Carolina, she is out of court.
Hugo L. Black: Why do you say there'd be no question?
Robert A. Dwyer: Sir, under -- under the laws of New York, if she had been a resident of New York, and had sued on the California Wrongful Death Statute, she would have had until at least age 21 to bring the action and beyond. And in fact, New York has a statute for its own Wrongful Death Statute as of two-year Statute of Limitations but that only applies to the New York Wrongful Death Statute. A cause of action on a Wrongful Death Statute in another State -- well, I cite a case in one of my footnotes, James against Sackman in which the federal court in New York reasoned that -- that New York would probably apply at least their six-year Statute of Limitations for causes of action based on a statute. They -- they looked at the New York law. They saw that the limitation period of two years on the New York Wrongful Death Statute only applied to the New York statute, and that, they looked elsewhere in the Statute of Limitations for applicable law and they held that it would be as -- at least a six-year Statute of Limitations in New York. There has been no serious dispute in the courts below as -- as to that factors, that facet of a case.
Earl Warren: Mr. Nolan, would it be that clear if the child was a citizen of California?
Robert A. Dwyer: If the child was a citizen of California, our argument is based on this reasoning that the Court should've applied the rule of the domicile. If you mean the child had been a resident of California, I would say that no doubt, the California court would apply its own -- own law, Section 25. As to the spouse, we still quarrel with the lower court's determination that the infant would be barred even in California. We say even -- even as to one of its own residents in California, that under the more recent cases, including two in the Supreme Court of California, that the courts would no longer consider the infant barred when the mother was barred, certainly, if -- if a mother -- resident's -- if the mother in this case had been contributory negligent and have been barred. Now, clearly under the California statute -- decisions, including two in the Supreme Court of California, that still would not have barred the child.And we say that by the same reason, the bar of the Statute of Limitations, assuming that it applied to the mother, certainly, should not have been applied to the infant.
Earl Warren: Are you referring to the Emery case?
Robert A. Dwyer: The Emery and Deason cases --
Earl Warren: Isn't that a little --
Robert A. Dwyer: Port --
Earl Warren: Isn't that a little different?
Robert A. Dwyer: I beg your pardon. Your Honor, I was not referring to the Emery and Deason cases on that point. I should have referred to Bowler against Roos and Flores against Brown.
Earl Warren: Those are in your brief?
Robert A. Dwyer: Those are in our brief. And those concern the contributory negligence rule in California, and they are the cases we say more recent cases that indicate -- even in California, even a local matter including, you know -- that would involved merely a local accident, a local residence and so forth that they would not follow those old cases that were applied in this case. And we say that -- I'd like to stress again that I will feel strongly that -- that the cases and the statute -- statutes, and Rule 17 (b) have been construed in such a way as to clearly violate the Constitution.
Felix Frankfurter: What -- what would -- what prevail you the Constitution?
Robert A. Dwyer: I say, Your Honor Article 4 Section 2, privileges and immunities.
Felix Frankfurter: Of whom?
Robert A. Dwyer: Of -- of the --
Felix Frankfurter: What's --
Robert A. Dwyer: -- mother and her child.
Felix Frankfurter: What's the constitutional provision?
Robert A. Dwyer: That -- the constitutional provision on -- on the privileges and immunities.
Felix Frankfurter: Of whom? Privileges and immunities, whose privileges and Immunities?
Robert A. Dwyer: I'd say of the wife and child, Your Honor.
Felix Frankfurter: Yes but what -- the Constitution doesn't says the wife and child. The Constitution -- give you some class. Well, what is the class?
Robert A. Dwyer: Citizen, Your Honor.
Felix Frankfurter: Well, but the New York statute doesn't differentiate between citizens and non-citizens.
Robert A. Dwyer: I would say --
Felix Frankfurter: It differentiates between residents and non-residents.
Robert A. Dwyer: I -- I acknowledge the distinction that has been made in the cases, Your Honor. I say to that, that that distinction as a practical matter, as between resident and -- residents and citizenship applied in -- to this statute from the circumstances of this case, is a distinction without a difference, that it's a practical matter. I -- I can't see New York, in other words, applying this rule to a citizen of its State who happens to be a non-resident at the time of the accident.
Felix Frankfurter: Well, why not? But that's exactly what the statute says and that put lots of statute differentiate between residents and citizens so that a citizen of New York, not a resident is not within this New York Statute of Limitations. We have no rules of any case, wouldn't it?
Robert A. Dwyer: We would have, yes, Your Honor. I -- I believe it should be applied in -- in many cases. It hasn't been.
Felix Frankfurter: Well, but we would have to overrule a lot of case -- not a lot, several cases which -- which point out the distinction that a State makes between applying a Statute of Limitations or other right as to resident, whether it's old resident, whether it's own citizens or not and as to residents whether the citizenship from another State or not. So, how did it come within the privileges and immunities for citizenship cause?
Robert A. Dwyer: Well, I say Your Honor that as a practical matter, this case would be applied 999 times out of a thousand to a non-citizen of the State of New York.
Felix Frankfurter: And then we should delete the word "citizen" from the constitution, is that --
Robert A. Dwyer: I -- I propose Your Honor respectfully that -- that we should look beyond the use of its terminology.
Felix Frankfurter: Well, but the Constitution says citizens, and the citizen is a definite legal conception and a resident maybe a resident and citizen, or a resident and a non-citizen.
Robert A. Dwyer: Yes, that's true. It may be that. But I say -- I would go back to my original proposition Your Honor that in this -- as applied to this statute that -- well as far as I'd looked to see if New York had ever applied the statute in this -- in the circumstances of a citizen of a State will have to be (Inaudible) at the time and I found none.
Felix Frankfurter: Well, how can you say you didn't find any? There are thousands of cases that are tried in the trial court in the City of New York and the so-called Supreme Court of that State, it never get beyond the Supreme Court. They're on trial there. How -- how can anybody tell what happens in those courts when they don't reach the Appellant Division, get along to Court of Appeals?
Robert A. Dwyer: Well, I say to that Your Honor that -- that certainly, I have to be guided by the recorded opinions.
Felix Frankfurter: And the Constitution which makes the distinction between citizens and residents.
Robert A. Dwyer: Your Honor, I believe there has been some -- have been some cases in this Court. They have ignored that distinction.
Felix Frankfurter: Alright.
Robert A. Dwyer: I submit -- submit a --
Felix Frankfurter: But you're asking us to ignore the very basic distinction which the Constitution made as in equality of treatment of citizens but not equality of treatment of residents and non-residents.
Robert A. Dwyer: I would say I'm asking this Court to look behind the wording -- to -- to the actuality to the situation. And I believe it's important not only in this case but many, many states have a borrowing type of statute. And I believe that when an infant gets caught in some very harsh -- very, very hard legalistic reasoning based on this borrowing statute. I respectfully submit that the Court should look very closely into this -- this situation and as it had been applied in this case.
Earl Warren: Mr. Junkerman.
William J. Junkerman: Mr. Chief Justice, may it please the Court. Petitioners and respondent are in basic agreement that the lower courts were required to apply the New York law including its conflict of law's rule and its Statute of Limitations. Under the New York conflict of law's rule, any substantive right which the petitioners may have for the alleged wrongful death or their decedent, is governed the law of California. Under borrowing provisions of the New York Statute of Limitations, this action cannot be enforced in the courts of New York if it is barred by the statutes of California. The basic question presented to the lower courts therefore, as petitioners point out at page 11 of their brief was whether petitioners would have been barred in California if their suit had been brought there instead of in New York. Now, under Section 25, the California Civil Code, "Any female who has contracted a lawful marriage and thereafter reaches the age of 18 years shall upon reaching the age of 18 years, be of the age of majority and be deemed an adult person for the purpose of entering into any transaction, respecting property, the same as if she were 21 years of age." That particular statute has been before the California courts a number of times and we respectfully submit that there were four cases directly in point, four California cases directly in point. They are District Court of Appeal cases. They are not of this Supreme Court of California. The question never got to the Supreme Court of California. The first of the cases that we referred to is Sears against Major -- Majors that's 104 Cal.App. 60. It was a 1930 decision decided in our brief. It involved a decedent who let him surviving a wife of full age and a son 15 years of age. The Court held that since the action was barred to the mother, it was also barred to the son. Now, in Haro against Southern Pacific, 17 CA 2d 594, that was in 1936 case. This is a case are all force. There, the widow was 19 at the time of her husband's death. She left one child, who was one year old and another who was less than three months old at the time of his death. The action was started one -- more than one year after Haro's death but before the widow reached the age of 21. The Court ruled that the action was barred as to the widow. And since it was a joint action, the bar of the statute as to the widow plaintiff was also a barred to the action by the infant children. I respectfully submit that is -- that is directly in point. But what the petitioners say to that? They say, "Oh, we recognize those decisions." But they're asking this Court to disregard and they say they're old cases. Well, I don't think that 1930 or 1936 are necessarily old but if they'd be old, California has answered that too and said in two other cases. And the first to those is Gates against Wendling Nathan Co. 27 CA 2d 307. That was decided in 1938. And in that case, I'm reading from page 20 of our brief, is what the Court said, "The further contention that the statute has not run because one of the plaintiffs is a minor. It's squarely answered by the opinion of the Court in Haro v. Southern Pacific Railroad following Sears v. Majors 104 Cal.App. 60." Those are the two cases I've just referred to. Here in 1938, same California Appellate Court is risk -- is -- is making -- it's basing its decision on exactly those two cases which petitioners say are -- are old cases. Then again, we have another, if that's -- 1938 is too late, we have another case in 1956, the case of Caraway against Burns 143 CA 2d 328. Now, this was an action by a -- by a married woman for personal injuries. The Court ruled that her action was barred before she became 21 because as a married woman, she was of the age of majority when she reached the age of 18 years, and that her action was barred by the one-year Statute of Limitations. The Court's rule was specifically based upon the Haro case which the petitioner said it's an old case. Here, it is again, reinstated in 1956. Now, in that particular Caraway against Burns case, again the Court said and it referred to an earlier case. It said that, "A woman of 18 years of age and being married is an adult." So that, we have the situation clearly that the woman 18 is an adult and in California. Now, as to --
Earl Warren: Was the application for a hearing in the Supreme Court in any of those cases?
William J. Junkerman: Yes, Your Honor. There were in two of them and in the Sears case, that Sears against Majors and on the Haro case. Petitions of the appellants to have their cases heard and the Supreme Court of California were denied. In the -- in their official report in Sears -- Sears against Majors, there's a footnote showing as the -- the addendum rather showing if that happened. In the Haro case, we find that in the reference of Caraway -- Caraway against Burns which we quoted in -- in our brief on page 12. Yes, that's right. See here in Caraway against Burns that the Court is saying, "The point was decided against plaintiff's contention in Haro v. Southern Pacific. A wrongful death action by a widow 19 years old when her husband died, instituted more than one year after his death but before she reached the age of 21." The Court held that the phrase, "transaction respecting property" in Civil Code Section 25 includes the bringing of an action for wrongful death. That she, therefore, was under no disability preventing her to bring the action at anytime during the year following his death and that at the end of that year, the action was barred by the statute. The Supreme Court denied a hearing. Appellant's attacks on this decision and her contention that has lost authority because of an amendment made in 1953 in Section 25 supra are without merit. So, to that California court obviously would've said petitioner's argument here that they were out of date which without marriage. Now, as to whether an intermediate court's opinion, rather the Supreme Court should be recognized in the case of this kind. Well, this Court has said that it should in -- in Fidelity Union Trust Company against Field, 311 U.S. 169. Mr. Justice Hughes in delivering the opinion of the Court said, "An intermediate state court in declaring and applying the state law, is acting as an organ of the state, and its determination in the absence of more convincing evidence of what the state law is, should be followed by a federal court in deciding a state question." I haven't cited that case in our brief but I had just made a note of it. Now, as to --
Hugo L. Black: What was that case?
William J. Junkerman: That case is Fidelity Union Trust Company v. Field 311 U.S. 169, at pages 177-178. Now, petitioners placed great reliance on the case of Emery against Emery and Deason against Jones are in the first place. I -- I would like to respectfully point out that in both of those cases, the reason California -- the reason California by the law of its -- the domicile was that the domicile in that case was California and they did it for a very special reason. In the first place, the Emery case was a suit by a mother and two daughters brought against the father and his son, arising out of an automobile accident in Idaho. The father was the owner of the car. The son was the driver of the car. Now, the question arose as to whether or not situation like that -- that involved a family relationship, there was the key to the whole question. That involved a family relationship whether or not California was going to apply Idaho law or its own law.
Hugo L. Black: How did it involve to family relationship?
William J. Junkerman: The fact that of -- the fact of a mother and two children was suing the father and a daughter -- and a son whether or not --
Hugo L. Black: What was --
William J. Junkerman: -- that was against --
Hugo L. Black: What was the --
William J. Junkerman: -- public policy.
Hugo L. Black: What was Idaho law (Inaudible)?
William J. Junkerman: Well the -- the Idaho law would not have let them do it. Whereas in --
Hugo L. Black: What did it provide? Do they should not have the capacity to bring the suit against him (Inaudible)?
William J. Junkerman: I believe that's what it was. I -- I believe it was entirely questioned advice. And -- and California said, "This whole family domiciled in California." They said, "Therefore, because of the -- and that this is -- this is taken right from the decision. They said, "We think that disabilities to sue and immunities from suit because of a family relationship are more properly determined by reference to the law of the state of the family domicile." And I'm quoting from page 13 of petitioners' brief. They quoted that length. I -- I think that that's the key to the whole decision on Emery against Emery. And they also pointed out that if you -- if you didn't consider capacity from a -- from a family relationship in that sense, if every time -- every time that a family were driving from state to state, the question of family relationship so forth might be changed. Now, that was the -- a sense about Emery decision and I don't think it has anything to do with what were faced with here.
Felix Frankfurter: What was the state of the Emery decision in relation to the decision that you're relying?
William J. Junkerman: State of the Emery decision?
Felix Frankfurter: Is it early or later?
William J. Junkerman: I believe it's later Your Honor. No ever, it's -- it's 1955 so that it's -- it's earlier than the Caraway case because Caraway was 1956.
Felix Frankfurter: Whichever -- whichever decision or accept that decision. It's earlier or later than the other decisions. It's either one or the other forced to choose. But the earlier decision referred to --
William J. Junkerman: No, that's in --
Felix Frankfurter: -- either in the family relation decision --
William J. Junkerman: No --
Felix Frankfurter: -- it's an earlier decision?
William J. Junkerman: No, they were not --
Felix Frankfurter: (Voice Overlap)
William J. Junkerman: They were not Your Honor. In this Emery case, they didn't refer to any of those cases that I referred to. It was Court of Appeals cases and the later case that they refer to the Emery case.
Felix Frankfurter: They couldn't have referred to them unless you tell me that they're earlier.
William J. Junkerman: Well, two of our cases were earlier --
Felix Frankfurter: Alright.
William J. Junkerman: -- Your Honor and -- and three of our cases were early and one was later.
Felix Frankfurter: Alright.
William J. Junkerman: That's what I mean.
Felix Frankfurter: They could've referred to the earlier ones, did they?
William J. Junkerman: They did not.
Felix Frankfurter: Is the later case referred to the Emery case?
William J. Junkerman: No, it did not Your Honor.
Felix Frankfurter: So they believed that in the different case of each one has separate ways in California?
William J. Junkerman: That's right. They didn't consider -- I don't think that -- I don't think that thought the Emery case related to this particular statute with the --
Hugo L. Black: (Voice Overlap) --
Felix Frankfurter: Well, I thought --
Hugo L. Black: What court decided the Emery case?
William J. Junkerman: Pardon?
Hugo L. Black: What court decided the Emery case?
William J. Junkerman: Well, that was the California Supreme Court.
Hugo L. Black: What court decided your case?
William J. Junkerman: The California Court of Appeals, all -- all four.
Hugo L. Black: One of them decided that the law of the domicile would govern as to the right of the children to sue (Inaudible), law of the domicile which -- would govern, isn't it?
William J. Junkerman: I don't think that --
Hugo L. Black: Oh while suit was brought (Inaudible).
William J. Junkerman: No, I -- I think Your Honor this Emery case -- the -- the question I -- I think it was more or less a question of capacity to sue based on a family relationship --
Hugo L. Black: I understand it was a capacity to sue based on one point.
William J. Junkerman: Yes.
Hugo L. Black: A capacity to sue here is based on another point, another ground --
William J. Junkerman: Well, I think the --
Hugo L. Black: -- (Voice Overlap) I believe the capacity to sue, isn't it?
William J. Junkerman: I think these other four cases was not a question of capacity to sue. It was a whether a cause of action existed.
Hugo L. Black: That's right. Where -- where the --
William J. Junkerman: And whether the cause of action was barred. And I think that's somewhat different.
Hugo L. Black: In connection with the different situation.
William J. Junkerman: For instancy, I -- I mean like, take this case of Deason against Jones, the second case which they referred to. The -- in that case -- in that case, Oklahoma, originally, this infant had been domiciled and was a resident of Oklahoma. And while he was there, he was authorized and empowered to transact business as though he was over the age of majority. Then he moved to California and before he was 21, he and California made a contract to purchase him property. And apparently, this didn't turn out so well. So when he was sued respect to it, he disaffirmed the contract. He was still an infant. And the California Court said, "Here now, he's a resident, the citizen domiciled in California. He's no longer in Oklahoma." They said, "In that case, we will apply our own law because he's domiciled here, because the contract is made here and everything pertained to it."
Hugo L. Black: They applied the law of the domicile in both of those cases, did they not?
William J. Junkerman: Yes, they -- they did.
Hugo L. Black: On the basis that the law of the domicile determined in those two cases, in reference to those two things the capacity to sue?
William J. Junkerman: In those two -- yes, Your Honor, that's correct. Now, there was also and -- and seeing the way California, I suppose it's a community property state California or is a pioneer in that -- in that -- with that court, and they have slightly different conceptions of thing. For instance, in (Inaudible) case that cited by petitioners. This is a California Appellate Court decision. Now, that -- that brought up this question, there -- the husband -- there was a husband and wife who were domiciled in Ontario, and they were driving an automobile in California and there was an accident. And the question that came up was whether California incidentally had a -- a rule that if one other parties was guilty of contributory negligence the -- that negligence would be imputed to the spouse. And therefore, they wouldn't -- and the reason for was that in California, a husband would have an interest in the wife's recovery, and the wife would have an interest in a -- in a husband's recovery. But there the California court looked to see what the law was in the domicile, in Ontario, and they found that Ontario didn't have any such rule. And so, they said that therefore, they would not apply California's rule and impute to negligence of the one to the other. But the Court conceded that had they been domiciled in California, the result would be different. Now, that's what that case stands for. And again, I -- I submit that it does not touch upon -- not one of those three cases touch upon the problem of which -- which we are concerned here.
Felix Frankfurter: What's the latest case that you have found in the Supreme Court of California that may fairly be said to deal with this problem, in which the Supreme Court of California gave some -- some substantial manifestation of its mind on this problem?
William J. Junkerman: We have not found any case. We have not cited any nor have petition. There isn't a single case. The only one -- the only cases that -- that have been decided in California on a subject are those four Court of Appeals cases and the fact that the Supreme Court of California twice denied appeals on the questions.
Felix Frankfurter: Does that -- does that imply that both counsels had -- (Inaudible) so that implied of both counsel have resorted with the conventional way of finding out what opinions has been written by Supreme Court of a state in a case which is essentially a problem of state law?
William J. Junkerman: Yes Your Honor. I would say so. Now, contrast with the California cases relied on by petitioners that were just referred to. There are cases, Smith versus Shepler which is a Court of Appeals case and Biewend versus Biewend, that's 17 CA 2d 108. In the Smith case, the appellate court said, "It is true as to procedure and pleading the foreign plaintiff appearing in our courts must follow the California law. He is subject to the period of our Statute of Limitations regardless of the period of similar statutes in his jurisdiction." And in the Biewend case, the California Supreme Court said, "It is a principle of conflict of laws recognized in California that the barring of a claim by the Statute of Limitations is a procedural matter governed by the law before them, regardless of where the cause of action arose." Now, as to Rule 17 (b), which petitioners have relied upon, it seems to me that the argument made there and of course that part of their argument is that 17 (b) first sentence, "The capacity of an in -- individual, other than one acting in a representative capacity to sue or be sued shall be deter -- determined by the law of his domicile." Well, you see that question and a diversity of cases has been before this Court on several occasions. And I think that was the answer to -- in Guaranty Trust Company v. York. And in -- not only in Guaranty Trust Company against York but there was a -- a much closer analogy to the rule question here in Ragan v. Merchant's Transfer Co., 337 U.S. 530. Now, that was a -- a case that particularly brought up the --- the question of whether in a diversity case, Federal Rule of Civil Procedure Number 4 was to govern or whether the -- whether a Kansas statute was to govern as to when an action was commenced. Under Rule 4, an action has commenced in a District Court by the filing of a complaint. And under the Kansas statute, it's commenced by the service of the summons. And in this particular Ragan case, the summons was served -- the complaint was filed before the Statute of Limitations had expired, but the summons was served after the statute had expired. And this Court, in an opinion by Mr. Justice Douglas ruled that the state statute was controlling, and it also ruled that filing a complaint did not toll the statute. And let me just quote briefly from the opinion there, at page 534, Justice Douglas said, "It is argued that the Kansas statute and question is not an edictal part of the Kansas Statute of Limitations. But the Court of Appeals, on a careful Kansas -- of Kansas law has held to the contrary. We ordinarily accept the determination of local law by the Court of Appeals, and we will not disturb it here." Now, I respectfully submit that you could really substitute the Court of Appeals for the Second Circuit, and what they did in this Nolan case into that last paragraph, and it would apply completely and answer completely the question with respect to where the 17 (b) applies. Now, as to last the point that petitioners raised as to the question of the constitutionality of -- of Section 13 of the New York Civil Practice Act, I just like to say that the New York Court of Appeals consider that question I think back at 1917, and rule that it was not a discrimination against non-resident. And furthermore, in a somewhat analogous case, I'll admit there was an infancy involved but somewhat analogous case would be the Canadian Northern Railway against Eggen 252 U.S. 553, where this Court upheld that -- a constitutionality of a similar statute, similar Minnesota statute. So, I respectfully submit that the authorities seem to be clearly against petitioners here and the Second Circuit, the District Court and the Second Circuit certainly carefully looked into New York law, carefully looked into California law before they arrived at the decision. And I submit Your Honor that is correct.
Hugo L. Black: From this point, may I ask you one or two questions of that to get clearly if I can the law you've given? Suppose this lady and her little child had lived in New York, from residence from New York, her father and husband has been in killed in California as he was. And a suit had been brought in New York under those circumstances. What would have happened?
William J. Junkerman: I would -- it will bar to the mother. It would be barred to the child. The Statute -- the Statute of Limitations apply to the mother, it will be considered joint --
Hugo L. Black: Well, what about the --
William J. Junkerman: -- a joint action.
Hugo L. Black: What about the New York law, if she had been a resident of New York at the time of the accident, the time of the suit was filed?
William J. Junkerman: Well, if -- if the Statute of Limitations in New York -- if she brought her action after the statute, New York ran against her --
Hugo L. Black: I'm not talking -- when would the statute have right against her as a -- she was a resident now. She didn't live in South Carolina but lived in New York now.
William J. Junkerman: You mean ordinarily they're normal New York stat (Voice Overlap) --
Hugo L. Black: If this suit and she filed this particular suit in the State of New York or this particular death, what would have been the Statute of Limitation?
William J. Junkerman: And if she had been a resident of New York?
Hugo L. Black: That's right.
William J. Junkerman: Well, they would have applied I believe the -- instead of the one-year statute, they would have applied the two-year Statute of Limitations, Your Honor. Pardon?
Earl Warren: Beginning at what time? 18 or 21?
William J. Junkerman: Well, it wouldn't -- it would be -- as far as -- I mean, as far as the mother is concern, as far as the mother is concern if she were -- if she were a resident of New York, it would be start to run when became 21.
Hugo L. Black: When she became 21.
William J. Junkerman: Yes, Your Honor.
Hugo L. Black: Would been filed in time.
William J. Junkerman: Oh yes, it would have been filed, yes indeed.
Hugo L. Black: Yes. Suppose instead of that, she had lived in New York and had appointed -- an administrator had been appointed, (Inaudible) or whatever you call it, in your state in South Carolina, and he had filed decisions. What would have been the Statute of Limitations?
William J. Junkerman: If she were a resident of New York, the accident happened in California --
Hugo L. Black: That's right.
William J. Junkerman: And to summary, Your Honor, she --
Hugo L. Black: -- an administrator who lives in South Carolina, her father (Inaudible). What would have been the Statute of Limitation?
William J. Junkerman: I don't think that the -- I don't know Your Honor but I don't think that the appointment of this administrator down there would make any difference.
Hugo L. Black: In other words, if this lady lived in New York the time their suit was drawn. The laws of New York would have permitted her to file this action and would not have been barred with the Statute of Limitations.
William J. Junkerman: Yes, if you'll look at Section 13 of the New York Civil Practice Act, that is exactly what it says. It gives -- in other words, it says that --
Hugo L. Black: Well, that's why I asking that (Voice Overlap) --
William J. Junkerman: -- which -- whichever is the long -- yes, the statute says that, whichever is the longer and I think the -- I think that Minnesota borrowing statute had somewhat analogous provisions.
Hugo L. Black: What has the Supreme Court of New York held or the Highest Court of New York held when a -- a resident of New York is the administrator of an estate of a person like this and filed suit? What Statute of Limitations applied?
William J. Junkerman: You mean where the person is arrested in South Carolina now?
Hugo L. Black: That's right.
William J. Junkerman: Well, in this --
Hugo L. Black: Accident is happened in California.
William J. Junkerman: Yes, in this particular case, there was the administrator point. It was a New York resident who was appointed administrator in South Carolina?
Hugo L. Black: What has the Supreme Court or your highest court of your State held with reference to that type of suit under the Statute of Limitations?
William J. Junkerman: I don't know Your Honor that I commence that offhand. It didn't come up in this case thus far.
Hugo L. Black: Well, I notice -- I thought it did come and that -- that was raised and -- that the court below said that the Supreme -- the Courts of New York had never passed on that question.
William J. Junkerman: Yes, I've -- and Judge Friendly in his opinion below, I think he's pointed out that neither side, I mean, there was no point raised by petitioners on that subject in the court below.I think that --
Hugo L. Black: (Voice Overlap)
William J. Junkerman: -- in his opinion raised it himself. He raised it himself I believe in his opinion.
Hugo L. Black: And he said there had been no decisions on it, did he not?
William J. Junkerman: I don't recall whether he said that there had no decision in that but he -- he did decide on the merits of the question that it wouldn't have made any difference.
Hugo L. Black: Have you read the case of Clay against the Sun Life Assurance Company?
William J. Junkerman: I don't know at all apparent, Your Honor.
Hugo L. Black: Have you in your way of telling us of any opinion of the Supreme Court in the State of New York or any opinion of any lower court of the trial of any lawsuit in the lowest court?
William J. Junkerman: Well, the --
Hugo L. Black: The law of New York bars under the statute, under which you claim now, bars the suit filed by a non-resident administrator or non-resident plaintiff?
William J. Junkerman: I can't think of one offense Your Honor. And unfortunately, since that hadn't been raised by the other side, I didn't prepare myself on that particular quote -- point.
Hugo L. Black: Well, that was the part of the opinion of the court, of that point were.
William J. Junkerman: Yes, I -- I mean petitioners made no point of it here. And so I didn't expect to be confronted with that.
Hugo L. Black: Have you any New York cases that -- that show what New York would decide on this particular case or kinds of case, if it found the law of California in doubt?
William J. Junkerman: If it found that the law of California in doubt, what would New York do?
Hugo L. Black: Yes, what would it do with reference to apply to the Statute of Limitations?
William J. Junkerman: It's very difficult.
Hugo L. Black: Do you know?
William J. Junkerman: It would be difficult to me to say that Your Honor but I don't think that -- I don't think that California law is in doubt.
Hugo L. Black: Well, there seems to be quite an argument here what it is.
William J. Junkerman: Well, I -- I just rely in the California cases that are right directly in point on the Statute of Limitations.
Hugo L. Black: Do you know whether or not the courts would attempt to apply the policy that the state recognizes there from the residents under 18, under 21?
William J. Junkerman: I can -- I can say this, Your Honor. I just thought of it. I had a case in New York, since you're asking for a case. It involved the Warsaw Convention where the Warsaw Convention had a limitation an action had to be brought within two years. It was an accident in Brazil, and the mother was suing in New York on behalf of herself and on behalf of her infant child. I was -- I representing Pan American Airways moved for summary judgment, came on before Judge Stoyer (ph) and he granted summary judgment. He said the action was barred to be -- the widow was to be barred to the infant child. An appeal was taken to the Appellate Division First Department and they unanimously affirmed. The title of that action is Bochory, B-O-C-H-O-R-Y.
Hugo L. Black: How do you spell it?
William J. Junkerman: B-O-C-H-O-R-Y against Pan American World Airways. I don't remember the citation but I can get it and leave it with the clerk of the Court --
Hugo L. Black: I appreciate that (Voice Overlap) --
William J. Junkerman: -- before I leave here today. It was my -- yes, I -- I remember that very distinctly because that argument was a -- but there again, it shows the -- and -- and Judge Stoyer (ph) as I remember the opinion of the lower court. He referred to the law of New York on that subject, so that in that sense, as far as the action being joint, the divisible is the same in New York as it would be in -- as what in California, as expressed in the Haro case.
Earl Warren: Mr. Dwyer.
Robert A. Dwyer: Your Honor, I -- I believe there's been some confusion in the Flores case. The Flores case merely borrowed -- barred the spouse. It did not -- or -- or the Caraway case, merely -- well, the question of barring -- barring a spouse, it did not involve an infant child. I believe that the side of this -- and it rather confused matter here that may confuse the problem. On the question of the barring of the child, only the Sears, Haro and Gates cases relate to that question. So that the Caraway case involved, we say, a domicile of California. We don't question the fact that in California, the law is fairly well settled that a domicile -- quite domiciled in that State would be barred at A -- AJP. But it didn't pertain to the question as to whether or not a non -- of course not domiciled in California would have Section 25 applied to her or not. And that's where we say the Emery -- Emery case is burden, Emery and Deason cases.I believe the question has been raised as to the administrator and we did not raise that in the District Court, we did not raise it in the Circuit Court of Appeals. The reason we did -- as you note, we did commence the action, originally with an administrator.
John M. Harlan II: (Inaudible)
Robert A. Dwyer: We were in doubt about that. The New York statute Section 13 uses the phrase, "originally approved to a resident". We construe that to mean that under California law, this cause of action originally accrued to the wife and her child, widow and her child. And that under the New York law, the expressions originally accruing would've applied strictly as of the time the accident accrued to the -- the widow and child, so that the appointment of an administrator would not have made any difference. But I must be frank to say that -- that we looked into the case to some extent. I don't recall offhand. I don't have them with me. Recalling from memory, there were some lower court decisions indicating that they would look back the appointment of administrator in this type of a situation.
Hugo L. Black: Could -- could you leave those to the clerk?
Robert A. Dwyer: I -- if I have them Your Honor I will. Is there any way I could arrange to -- to get them to the Court, if I don't them today?
Earl Warren: You may get them to the clerk, just as -- as soon as you can, if you don't have them here.
Robert A. Dwyer: Thank you.
Hugo L. Black: The California Death Statute, is it cited in either one of your briefs?
Robert A. Dwyer: Yes, Your Honor it's --
Hugo L. Black: I -- I mean is it quoted?
Robert A. Dwyer: Yes, yes, Your Honor.
Hugo L. Black: Which one is quoted?
Robert A. Dwyer: We'll see. It's page 3 of respondent's brief and it's page 2 of petitioners' brief, pertinent parts of it.
Hugo L. Black: Yes, I see it. Thank you.
Earl Warren: Mr. Dwyer, you would of course serve -- served those cases on. Mr. Junkerman, if -- if you submit it to the Court and if you wish to make it short memo in reply, you may do so, Mr. Junkerman.
William J. Junkerman: Thank you very much.