Goett v. Union Carbide Corporation/Dissent Whittaker

Mr. Justice WHITTAKER, dissenting.

I am persuaded that the Court of Appeals has made sufficiently clear that it thought this diversity, admiralty, death case was governed by the general maritime law, as remedially supplemented by the West Virginia Wrongful Death statute, and properly decided it on that basis.

The Court's opinion says that The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, 'decided that it was a question of state law as to what is the proper substantive law to be applied to maritime torts within the territorial jurisdiction of the States in wrongful death cases (and that) (u) nder this holding, in a maritime tort death case, the State might apply the substantive law generally applicable to wrongful death cases within its territory, or it might choose to incorporate the general maritime law's concepts of unseaworthiness or negligence.' I do not understand the Tungus case to so hold, and if such a holding was intended by its author or by any of the Justices who joined it, it does not say so.

It seems to me that the substantive legal rights and liabilities involved in this admiralty case are not in any true sense governed by West Virginia law, but rather, are within the full reach of exclusive admiralty jurisdiction and are to be measured by the standards of the general maritime law, Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 408, 3 L.Ed.2d 550, as remedially supplemented by the West Virginia Wrongful Death statute. See The Tungus, supra, 358 U.S. at page 592, 79 S.Ct. at page 506.

Although state Wrongful Death statutes are not ones of survivorship and are generally spoken of as creating a new cause of action for death, it seems rather clear that the West Virginia Wrongful Death statute, like most others, creates a cause of action only in the sense of providing a remedy for death resulting from an act made wrongful by other laws-whether common, statutory or maritime laws-which would have redressed the wrong 'if death had not ensued.' W.Va.Code, 1955, § 5474(5). And when, in a case encompassed by the terms of the State's Wrongful Death statute, admiralty 'adopts' such statute, it does so only to afford a remedy for a substantive cause of action created by the maritime law which, 'if death had not ensued,' would have redressed it.

It is true that when admiralty 'adopts' a State's Wrongful Death statute 'it must enforce (it) as an integrated whole, with whatever conditions and limitations the creating State has attached.' The Tungus, supra, 358 U.S. at page 592, 79 S.Ct. at page 506. But the West Virginia Wrongful Death statute, like most such state statutes, apart from prescribing who may prosecute the action, the time within which it must be brought, and the measure and limit of recovery, has attached only the condition that the wrongful 'act, neglect or default (be) such as would * *  * have entitled the party injured to maintain an action to recover damages in respect thereof (if death had not ensued).' W.Va.Code, 1955, § 5474(5). Surely this means that the act, neglect or default, must be such as would, under other laws whether common, statutory, or maritime laws-have entitled the party injured to recover damages in respect thereof 'if death had not ensued.'

Adoption by admiralty of such a remedial statute cannot be permitted to, and does not, so expand the essential purposes and characteristic features of the general maritime law as to interfere with its proper nation-wide harmony and uniformity, Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086; Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210. By such adoption, admiralty takes over only the remedy afforded for death by the State's Wrongful Death statute-albeit the whole thereof. It does not thereby abandon the nonconflicting substantive admiralty law which gave rise to the right of action that it would have enforced 'if death had not ensued.' In such a case, the real and substantive right in suit is still the one created by, and-to the extent not conflicting with the adopted State Wrongful Death statute-is governed by, the maritime law.

This is what I understood the Tungus case to mean when I joined it, and re-examination of it confirms that conclusion. I submit there is not a word in it to the contrary. And this conclusion is buttressed by the separate opinion of my Brother BRENNAN in that case. Although this Court has many times and uniformly held that the maritime law creates no cause of action for wrongful death, and that, in circumstances like these, admiralty 'adopts' the State's Wrongful Death Act, the separate opinion in Tungus said, in effect, that admiralty would merely look to see whether the State had enacted a wrongful death statute and, if it had, would not 'adopt' that act but would put it aside and fashion its own remedy for wrongful death, 358 U.S., at pages 608-609, 79 S.Ct. at pages 514-515, which, I thought and still think, is contrary to this Court's cases holding that the maritime law does not create a cause of action for wrongful death and that, in actions for wrongful death arising on the territorial waters of a State, admiralty 'adopts' the State's Wrongful Death Act cum onere.

I believe that the opinion of the Court of Appeals makes reasonably clear that the court regarded this case as governed by, and that it applied, the general maritime law as remedially supplemented by the West Virginia Wrongful Death statute. I also believe that the court correctly concluded that the maritime doctrine of unseaworthiness was not applicable, and that respondent was not guilty of negligence causing or contributing to cause the death of petitioner's decedent, because, as it found, the barge was both withdrawn from navigation for extensive repairs and completely out of respondent's control-points we thoroughly explored and decided only the other day. West v. United States, 361 U.S. 118, 80 S.Ct. 189. I would affirm.