Hess v. United States/Opinion of the Court

This action was brought against the United States under the Federal Tort Claims Act to recover for the death of petitioner's decedent, George W. Graham. Graham was drowned in the Columbia River while in the course of his employment as a carpenter foreman for Larson Construction Company, an independent contractor which had undertaken to perform repairs at Bonneville Dam. That structure is owned and operated by the United States.

As a preliminary to the job it had contracted to accomplish, Larson decided to send a working party by boat to the foot of the spillway dam to take soundings. Larson told the government inspector of the plan and asked that the operating personnel of the dam be requested to close two additional spillway gates near the point where the soundings were to be taken. This request was complied with. Larson then dispatched a group of employees to the area in a tug-and-barge unit. Graham was a member of this working party. Approaching the dam, the tug and barge veered and struck a pier, staving a hole in the barge. The unit then was carried northwardly in the river towards that part of the dam where the spillway gates were open. There it capsized in the turbulent water. Grapham and all but one of his fellow employees were killed. Their deaths occurred on navigable waters within the territorial limits of the State of Oregon.

The theory of the petitioner's complaint was that Graham's death had been proximately caused by the failure of operating personnel of the dam to close a sufficient number of spillway gates near the area where the soundings were to be taken. Liability was asserted under the general wrongful death statute of Oregon, as well as under another statute of that State, the Employers' Liability Law, which also creates a right to recover for death under certain circumstances.

The wrongful death statute permits recovery for death 'caused by the wrongful act or omission of another,' limits liability to $20,000, and makes the decedent's contributory negligence an absolute bar to recovery. In the limited area where the Employers' Liability Law applies, the road to recovery in a death action is considerably easier. Under that statute a defendant is liable for failure to 'use every device, care and precaution which it is practicable to use for the protection and safety of life and limb * *  * .' There is no monetary limitation of liability, and the decedent's contributory negligence goes only to mitigate damages.

After trial without a jury, the District Court entered judgment for the United States. Since Graham's death had occurred on navigable waters, the court ruled that the case was one for decision under maritime law, which is this case would apply the general wrongful death act of Oregon. Upon the basis of detailed findings of fact the court concluded that there was no liability under that statute because Graham's death was 'not caused by the negligence of the United States or its employees.' As to the Employers' Liability Law, it was the court's view that 'this Act is not applicable for the reason that the Government was not responsible for the work there being performed, and for the further reason that the high standard of care required under the Act, if applied to these cases, would be unconstitutional.' 1958 A.M.C. 660.

The Court of Appeals affirmed, holding that the trial court had not erred in finding that negligence had not been proved, and agreeing that the Employers' Liability Law 'could not be constitutionally applied to this case.' The appellate court expressly refrained from deciding 'whether the trial court was also correct in ruling that, if that act were applied, the United States would not be liable thereunder because it was not responsible for the work being performed by the decedent.' 9 Cir., 259 F.2d 285, 292. Certiorari was granted to consider a seemingly important question of federal law. 359 U.S. 923, 79 S.Ct. 604, 3 L.Ed.2d 627.

At this case reaches us, the petitioner no longer challenges the finding that the United States was not guilty of such negligence as would make it liable under the wrongful death statute of Oregon. His sole claim here is that he was erroneously deprived of the opportunity to invoke the Employers' Liability Law.

The Federal Tort Claims Act grants the District Courts jurisdiction of civil actions against the United States 'for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b).

Graham's death and the wrongful act or omission which allegedly caused it occurred within the State of Oregon, and liability must therefore be determined in accordance with the law of that place. Since death occurred on navigable waters, the controversy is, as the trial court correctly held, within the reach of admiralty jurisdiction, The Plymouth, 3 Wall. 20, 18 L.Ed. 125; Kermarec v. Compagnie Generale, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550. Oregon would be required, therefore, to look to maritime law in deciding it. Chelentis v. Luckenbach S.S.C.o., 247 U.S. 372, 38 S.Ct. 501; 62 L.Ed. 1171; Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927.

Although admiralty law itself confers no right of action for wrongful death, The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, yet '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. 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; Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319; The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524; United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541. In such a case the maritime law enforces the state statute 'as it would one originating in any foreign jurisdiction.' Levinson v. Deupree, 345 U.S. 648, 652, 73 S.Ct. 914, 916.

This means that in an action for wrongful death in state territorial waters the conduct said to give rise to liability is to be measured not under admiralty's standards of duty, but under the substantive standards of the state law. United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 615, 79 S.Ct. 517, 518. See also Curtis v. A. Garcia y Cia., 3 Cir., 241 F.2d 30; The H.S., Inc., No. 72, 3 Cir., 130 F.2d 341; Klingseisen v. Costanzo Transp. Co., 3 Cir., 101 F.2d 902; Graham v. A. Lusi, Ltd., 5 Cir., 206 F.2d 223; Truelson v. Whitney & Bodden Shipping Co., 5 Cir., 10 F.2d 412; Quinette v. Bisso, 5 Cir., 136 F. 825, 5 L.R.A.,N.S.., 303; Lee v. Pure Oil Co., 6 Cir., 218 F.2d 711; Feige v. Hurley, 6 Cir., 89 F.2d 575; Holley v. The Manfred Stansfield, 4 Cir., 269 F.2d 317. '(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.

Accepting this principle, we find no constitutional impediment to the application, by the maritime law, of Oregon's Employers' Liability Law to a death action in which the statute would otherwise by its terms apply. We are concerned with constitutional adjudication, not with reaching particular results in given cases. What was said last Term in deciding The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, is controlling here:

'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.' 358      U.S. at page 593, 79 S.Ct. at page 507.

'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.' 358 U.S. at page 594, 79 S.Ct. at page     507.

We have open the question whether a state wrongful death act might contain provisions so offensive to traditional principles of maritime law that the admiralty would decline to enforce them. The Oregon statute here in issue presents no such problem. Indeed, as the petitioner points out, the Employers' Liability Law contains many provisions more in consonance with traditional principles of admiralty than the State's general wrongful death statute. We hold, therefore, that the right of action for wrongful death created by the Oregon Employers' Liability Law may be invoked to recover for a maritime death in that State without constitutional inhibition.

Whether the statute by its terms, and as construed by the Oregon Supreme Court, would extend to the present case, and whether, if the statute is applicable, the United States violated the standard of care which it prescribes, are questions which we do not undertake to decide, and upon which we intimate no view. The District Court made an alternative ruling that the statute was inapplicable as a matter of state law. The Court of Appeals did not reach the question. Although this issue has been argued here, we leave its disposition to a court more at home with the law of Oregon.

The judgment is set aside and the case remanded to the United States Court of Appeals for the Ninth Circuit.

So ordered.

The CHIEF JUSTICE, Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice BRENNAN join the opinion of the Court, but solely under compulsion of the Court's ruling in The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524. They believe that as long as the view of the law represented by that ruling prevails in the Court, it should be applied evenhandedly, despite the contrary views of some of those originally joining it that state law is the measure of recovery when it helps the defendant, as in Tungus, and is not the measure of recovery when it militates against the defendant as it does here. However, they note their continued disagreement with the ruling in The Tungus, and reserve their position as to whether it should be overruled, particularly in the light of the controversy application of it has engendered among its original subscribers. See the various separate opinions in this case and in Goett v. Union Carbide Corp., 361 U.S. 340, 80 S.Ct. 357, 359 et seq.

Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER joins, dissenting.

Since The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264, it has been settled law that an action in personam for wrongful death occurring on navigable waters, not available under maritime law, The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, may be brought under a state wrongful death statute. In The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, decided last Term, we held that such an action could be maintained only in accordance with the limitations placed upon it by state law. This case presents the further question, not involved in The Tungus, namely, whether such an action lies when the conduct said to give rise to liability is measured under state law by greater substantive standards of duty than those which would have governed the same conduct under maritime law had death not occurred.

The Court, if I read its opinion aright, holds that when a victim of a maritime tort dies as a result of such conduct the law of the State whose wrongful death statute is invoked wholly governs liability. At the same time the Court leaves open the question whether a state wrongful death act might contain 'provisions so offensive to traditional principles of maritime law that the admiralty would decline to enforce them,' finding that this Oregon statute 'presents no such problem.'

I cannot agree with the view that wrongful death actions growing out of maritime torts are so pervasively controlled by state law, or with the conclusion that this state statute in its substantive provisions is, in any event, not offensive to maritime law. Nor can I subscribe to the intimation that the question which the Court reserves is seriously open to debate. Because of the importance of the issue, a fuller statement of my views is justified than might be appropriate in a case of lesser general concern.

It is surely beyond dispute that the Oregon Employers' Liability Law, Ore.Rev.Stat. § 654.305, imposes a stricter standard of duty than that imposed by maritime law. Under maritime law the basis of liability in cases like this is the failure to use reasonable care in light of the attendant circumstances, that is, negligence. See Kermarec v. Compagnie Generale, 358 U.S. 625, 630, 632, 79 S.Ct. 406, 409, 410, 3 L.Ed.2d 550. The state statute, on the other hand, imposes the duty to use-

'every device, care and precaution which it is practicable to     use for the protection and safety of life and limb, limited      only by the necessity for preserving the efficiency of the *  *  * device, and without regard to      the additional cost of suitable material or safety appliance      (sic) and devices.' Ore.Rev.Stat. § 654.305.

Oregon itself has recognized that this statute imposes a 'much higher degree of care,' Hoffman v. Broadway Hazelwood, 139 Or. 519, 524, 10 P.2d 349, 351, 11 P.2d 814; 83 A.L.R. 1008, than that generally required of defendants in accident cases. See Camenzind v. Freeland Furniture Co., 89 Or. 158, 172-173, 174 P. 139, 144. So much indeed I do not understand the Court to deny.

Had this accident resulted in injuries short of death, it is clear that the United States could not have been held liable except in accordance with the standards of duty imposed by maritime law. This follows from the general constitutional doctrine of federal supremacy in maritime affairs, and more particularly from the rule first unmistakably announced in Chelentis v. Luckenbach S.S.C.o., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171, which rejected the notion that the 'saving clause' of § 9 of the Judiciary Act of 1789, 1 Stat. 77, permitted the application in maritime tort cases of state substantive rules in derogation of maritime law. That case was a maritime tort action brought in a state court by a seaman, seeking compensatory damages for injuries claimed to have been caused by the negligence of his employer. Historically, maritime law recognized no such cause of action. The duty of a shipowner to an injured crewman was only to provide for his maintenance and cure, and that irrespective of negligence; full indemnity was owing only for breach of the warranty of seaworthiness. The Court held, first, that § 20 of the Merchant Marine Act of 1915, 38 Stat. 1185, notwithstanding, such was still the rule. This being so, a state court was not free to apply any other rule to a maritime tort:

'Plainly, we think, under the saving clause a right     sanctioned by the maritime law may be enforced through any      appropriate remedy recognized at common law; but we find      nothing therein which reveals an intention to give the      complaining party an election to determine whether the      defendant's liability shall be measured by common-law      standards rather than those of the maritime law. Under the     circumstances here presented, without regard to the court      where he might ask relief, petitioner's rights were those      recognized by the law of the sea.' Id., 247 U.S. at page 384,      38 S.Ct. at page 504.

This rule was soon reiterated in two subsequent cases. The first was Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927, which, like Chelentis, was a state court action by a crew member against the shipowner. Injury was allegedly caused by mislabeling of a can of gasoline and by the negligent failure to stock a life preserver on board. A judgment for plaintiff was affirmed, but on the ground that the vessel was unseaworthy in the respects named; the existence of a cause of action for negligence was denied. 'The general rules of the maritime law apply whether the proceeding be instituted in an admiralty or common-law court.' Id., 259 U.S. at page 259, 42 S.Ct. at page 477. The second case was Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372, where the action, again in a state court for negligence, was by an employee of an independent contractor against his employer for a shipboard injury. Such a right of action existed in admiralty, Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208, and the question was as to the scope of the defendant's duty. Here too the same principle of federal supremacy was upheld. An instruction permitting the jury to consider the requirements of a state safety statute on the issue of negligence was held erroneous. 'The rights and liabilities of the parties arose out of and depended upon the general maritime law and could not be enlarged or impaired by the state statute.' 266 U.S. at page 457, 45 S.Ct. at page 158.

Largely owing to the passage of the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688, which bound nonadmiralty as well as admiralty courts, the issue was not again raised in litigation here for several decades. Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239, however, demonstrates the pervasive scope given to the same principle of federal supremacy in the application of that Act. There a State was denied power, by characterizing the matter as 'procedural,' to apply its own rules to the question of burden of proof of fraud in the obtaining of a release from an injured seaman. Rather the state court was required to apply the rule adopted by federal maritime law. The case thus manifests the continued vitality of the supremacy principle in this area. 317 U.S. at page 244, note 10, 63 S.Ct. at page 250.

It remained for Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, unmistakably to demonstrate that the principle embodied in the Chelentis, Sandanger, and Robins Dry Dock decisions had not withered with time. There a shore-based carpenter, employed by an independent contractor, sought a recovery against a shipowner based on negligence and unseaworthiness. The Court held that under federal law a right of action was available on both grounds, and that under the maritime rule the effect of plaintiff's contributory negligence was to diminish, but not wholly defeat, his recovery. This being so, a State was debarred from applying another rule.

Finally, when, only last Term, the Court came to consider, in Kermarec v. Compagnie Generale, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550, the scope of a shipowner's duty of care toward a social guest of a crew member, it had no hesitation about the proposition that federal law must govern an action within the jurisdiction of admiralty.

'The District Court was in error in ruling that the governing     law in this case was that of the State of New York. Kermarec     was injured aboard a ship upon navigable waters. It was there     that the conduct of which he complained occurred. The legal     rights and liabilities arising from that conduct were      therefore within the full reach of the admiralty jurisdiction      and measurable by the standards of maritime law. * *  * If      this action had been brought in a state court, reference to      admiralty law would have been necessary to determine the rights and liabilities of the      parties. Carlisle Packing Co. v. Sandanger, 259 U.S. 255,     259, 42 S.Ct. 475, 476, 66 L.Ed. 927. Where the plaintiff     exercises the right conferred by diversity of citizenship to      choose a federal forum, the result is no different, even      though he exercises the further right to a jury trial. Whatever doubt may once have existed on that score was     effectively laid to rest by Pope & Talbot, Inc., v. Hawn, 346      U.S. 406, 410-411, 74 S.Ct. 202, 204 (205-211).' Id., 358     U.S. at page 628, 79 S.Ct. at page 408.

I think it is clear, then, that the supremacy principle established by this line of cases may not be shrugged off as a discredited relic of an earlier day. Indeed, the Court's total disregard of that principle in the present case is not grounded on the view that it is no longer generally viable. Rather, the Court appears to consider it inapplicable in an action for wrongful death. For reasons now to be discussed I think this is a mistaken view.

What I shall address myself to at this point is the reason why maritime law permits resort to state wrongful death statutes. For it is only through an understanding of that reason that light can be shed on the pivotal issue in this case.

Unfortunately such rationalization as has been made of the problem in the wrongful death cases in this Court does not carry us very far. Mr. Justice Holmes in The Hamilton was content to say no more than that permitting state death statutes to be used would not produce 'any lamentable lack of uniformity' in the maritime law. 207 U.S. at page 406, 28 S.Ct. at page 135, 52 L.Ed. 264. Mr. Justice McReynolds in Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, simply observed that the use of such statutes was 'the logical result of prior decisions,' that '(t)he subject is maritime and local in character,' and that the innovation 'will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations.' Id., 257 U.S. at page 242, 42 S.Ct. at page 90.

Other rationalizations of the subject leave much to be desired. It has been said that the application of state wrongful death statutes is permitted to 'fill a void' in maritime law. See, e.g., 41 Va.L.Rev. 251, 252; 34 B.U.L.Rev. 365, 366; cf. The Tungus, supra, 358 U.S. at page 592, 79 S.Ct. at page 506, 3 L.Ed.2d 524. But there is a 'void' only in the sense that there is an absence of a right of action in such cases; admiralty does not lack a rule on the subject. It has also been suggested that the Court permits the application of state death acts because it regards such statutes as wiser in this respect than maritime law, although it deems itself unable to alter the disfavored federal rule. See, e.g., Note, 73 Harv.L.Rev. 84, 148, 149. But if the rule of The Harrisburg is so firmly established that legislation is the only available means of reform, cf. The Tungus, supra, 358 U.S. at pages 590, 599, 79 S.Ct. at pages 505, 509, it is scarcely legitimate to turn, for that very reason, to state law.

I think the fault with such explanations lies in the emphasis given to admiralty's endeavor to find in state law a supplement to its own shortcomings, something which federal power has always been fully competent to remedy internally on its own account. Instead, the proper point of departure is, I believe, to recognize that in permitting use of wrongful death statutes admiralty is endeavoring to accommodate itself to state policies represented by such statutes. That indeed appears to have been the approach of Congress in enacting the Death on the High Seas Act, for as was said in The Tungus the legislative history of that 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" and '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.' 358 U.S. at page 593, 79 S.Ct. at page 507. At the same time there was no suggestion that Congress contemplated that the supremacy of admiralty law should be yielded to the States in maritime death cases. Cf. id., 358 U.S. at pages 607-608, 79 S.Ct. at page 514, separate opinion.

It only confuses things to say, as has sometimes been loosely remarked, that in maritime wrongful death cases admiralty absorbs state law, or that the States have embraced maritime law. State and maritime systems of law stand separately, even though the two may not always be mutually exclusive, and when a conflict arises the latter yields to the former only in face of a superior state interest. This, I think, is what Mr. Justice McReynolds had in mind when he stated in Garcia that a wrongful death statute is a subject both 'maritime and local in character.' The true inquiry thus becomes one involving the nature of the state interest in a wrongful death statute, the extent to which such interest intrudes upon federal concerns, and the basis of the reasoning that led Mr. Justice Holmes to state summarily in The Hamilton that resort to such statutes would not result in 'any lamentable lack of uniformity' in maritime law.

What no lesser authority in admiralty matters than Judge Addison Brown said many years ago in The City of Norwalk, D.C., 55 F. 98, is highly illuminating. He gave these reasons for permitting a state death statute to apply to a maritime tort:

'(1) It is a general law of personal rights, not specially     directed to commerce or navigation, but applying alike on sea      or shore; (2) it is within the police power; for it is 'a      statute intended to protect life,' (Huntington v. Attrill,      146 U.S. 657, 675, 13 S.Ct. 224, (230, 36 L.Ed. 1123))     through one of the most effectual of all sanctions, viz. by     imposing on the offender a liability to pay a pecuniary indemnity; while in the interest of the public, it also      tends to avert the dependency or pauperism of the survivors      by shifting the burden of their support, in part at least,      from the community to the authors of the wrong; (3) it is      local in its scope and interferes in no way with any needful      uniformity in the general law of the seas, or with      international or interstate interests.' Id., 55 F. at page      108.

Where tortious conduct causes death, the decision of a State to provide a right of action in favor of the victim's estate or beneficiaries represents a response to considerations peculiarly within traditional state competence: providing for the victim's family, and preventing pauperism by shifting what would otherwise be a public responsibility to those who committed the wrong. These are matters intimately concerned with the State's interest in regulating familial relationships. Moreover, where the injury is wrongful under maritime law, this is the predominant, if indeed not the sole, purpose of the statute. In such instances the State is not legislating in order to affect the defendant's conduct, since by hypothesis a federally imposed duty already exists. For merely because no federal action lies for wrongful death, one can hardly say that there is no duty not to kill through negligence, but there is a duty not to injure. The tortious conduct is the same in either case, and wrongful under federal law. The state statute therefore makes no meaningful inroads on federal interests. To quote further from Judge Brown:

'The state statute does not create the cause of action. It     does, indeed, create a new right, and liability; but it does      not create a single one of the elements that make up the      fundamental cause of action, that is, the essential grounds      of the demand. All these elements exist independently of the     statute, and are not in the least affected by it. It no more     creates the wrong, or the damage, than it creates the negligence or      the death; nor does it, as in the pilotage and double      wharfage cases, add anything to the damages sustained. It     authorizes no recovery except for 'the pecuniary damages'      already existing. It is apparent, therefore, that, as     suggested by Mr. Justice Clifford in Steamboat Co. v. Chase,      16 Wall. 532 (21 L.Ed. 369), the statute does no more than     'take the case out of the operation of the common-law maxim      that an action for death dies with the person." 55 F. at page      109.

'Before the statute, the case was damnum absque injuria; by     the statute, it became at once a tort in the full legal      sense, and a marine tort by reason of its place, its nature,      and its circumstances *  *  * .' Id., 55 F. at page 110.

Thus, where the duty imposed by a state death act is no greater than that already existing under federal law, the application of the statute is solely, or nearly so, a reaction to strong, localized state interests, and there is no real encroachment on federal interests.

Far different is the case when a State purports, as here, to impose a duty which under federal law a person does not bear. Then it can hardly be said that the State is not seeking to regulate conduct within federal maritime jurisdiction. The very purpose of a statute like the one here invoked is to induce those to whom it applies to take the precautions required by it. In such a case, the mere fact that it is a death act which imposes the duty cannot be thought to render the import of the matter of 'local' concern only. The state interests given expression no longer are predominantly those peculiarly within state concern. By the same token the intrusion into federally regulated interests is no longer minimal.

I can find no justification, consistent with the course of adjudication in this Court, for upholding state power here, without so much as even suggesting the need for an inquiry as to the extent of federal interest in the activity in question.

Nothing in the wrongful death cases on which the Court relies calls for today's holding. None of them involved, as here, the assertion of any local rules of substantive law going beyond those applicable under federal standards. The essential failing in the Court's use of these cases is its view that, because rights asserted under a state death statute are manifestly rights created by the State, no federal element is involved in their assertion. The truth is, however, that, where the tort is maritime and the action is brought under the 'saving clause,' state-created rights may be asserted only by federal permission. That is the premise on which The Hamilton, and its offspring, proceeded. When such a right is asserted, the plaintiff must, however, show more than that a State can give him a right to recover; he must also show that it has done so. Thus, if a State has chosen not to provide a right of action to one who does not sue within a stated period, The Harrisburg, supra; Western Fuel Co. v. Garcia, supra; Levinson v. Deupree, 345 U.S. 648, 651-652, 73 S.Ct. 914, 916; to one who does not have a stated relationship to the decedent, id., 345 U.S. at page 651, 73 S.Ct. at page 916, to one whose decedent's negligence contributed to the fatal injury, United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 615, 79 S.Ct. 517, 518, or to one whose right of action is based on breach of the uniquely maritime duty to provide a seaworthy ship, The Tungus v. Skovgaard, supra, there can be no right of recovery, for neither federal nor state law affords it. For this reason, when asking whether a plaintiff has made out a cause of action under a state death act, the Court approaches the statute 'as it would one originating in any foreign jurisdiction,' Levinson v. Deupree, supra, 345 U.S. at page 652, 73 S.Ct. at page 916, in an 'endeavor to determine the issues in accordance with the substantive law of the State,' Garrett v. Moore-McCormack Co., 317 U.S. at page 245, 63 S.Ct. at page 251. This, because the State having created the right, one must look to state law to 'determine the circumstances under which that right exists.' The Tungus, supra, 358 U.S. at page 594, 79 S.Ct. at page 507, 3 L.Ed.2d 524.

But none of these cases is apposite when the question is not whether a federally permitted state right of action has in fact been conferred by the State, but whether federal maritime law permits the State to create an asserted right of action. It is surely fallacious to reason that, because the principle of the supremacy of federal maritime law has been held not to bar a right of action for death caused by a defendant's failure to take reasonable precautions to avoid exposing those to whom the duty is owed to an undue risk of harm, it follows that such principle does not bar a right of action for death caused by failure to 'use every device, care and precaution which it is practicable to use,' Ore.Rev.Stat. § 654.305. When the Court, in The Hamilton and its successors, held that the federal supremacy principle did not prevent a State from giving any right of action for wrongful death caused by a maritime tort, it did not thereby eschew forever all federal limits on the content of substantive obligations appearing in statutes bearing the label 'wrongful death act.'

It may be that the Court does not intend to go so far. It asserts, albeit almost as an afterthought, that some state doctrines might be constitutionally inapplicable to maritime torts, notwithstanding that they are embodied in a death statute. It then summarily finds the possible reservation inapplicable in this instance on the ground that other provisions of the Oregon Employers' Liability Law, not here involved, resemble some admiralty doctrines, with which also we are not now concerned, more than do comparable provisions in the State's general wrongful death statute, which presumably can be constitutionally applied to a maritime tort. With all deference, I must say that the total irrelevance of that fact seems plain. We are not reviewing the general constitutionally of the Employers' Liability Law; we are concerned only with the constitutionality of the standard-of-care provisions of that law, as applied to an employee of an independent contractor injured on navigable waters and seeking to impose liability upon the owner and operator of a dam. The Court does not find that the federal interest in regulating the conduct of the dam owner is so minimal whether by reason of the fixed situs of the dam or on some other ground-that the federal supremacy principle may reasonably be found inapplicable. Neither does the Court assert, for it could scarcely do so, that the standard of care required by this statute is not significantly greater than that imposed by federal law. Thus, if the principle of the supremacy of maritime law calls for anything more than an empty nod, it calls for a result contrary to that reached today.

It is suggested that a contrary decision will lack 'evenhandedness,' apparently for the reason that, since those invoking state death statutes must sometimes bear the burden of comparatively unfavorable provisions, it is only fair that, when more favorable provisions obtain, they be able to enjoy the benefits of such rules. But, as the Court points out, 'we are concerned with constitutional adjudication, not with reaching particular results in given cases.' Such unevenhandedness as there may be in this area is the consequence of the rule of The Harrisburg, to which this Court has steadfastly adhered for nearly 75 years, and which Congress, when it enacted the Death on the High Seas Act, saw fit to change only in a limited way. See The Tungus, supra, 358 U.S. at pages 592-593, 79 S.Ct. at pages 506 507. When federal law permits the application of state death acts, those on whom the state statute confers a right of action may escape the harsh consequences of that rule. Those whom the state law has declined to benefit are left as they were. Certainly we should not, in the name of 'evenhandedness,' permit a State to exceed constitutional limitations merely because in some instances it may have chosen not to do all it might under the Constitution.

I would affirm.

Memorandum of Mr. Justice WHITTAKER.

Except for its implication, or conclusion if it may be intended to be such, that maritime torts committed on the navigable waters of a State which result in death are governed by the general substantive tort law of the State-not by the general federal maritime law as remedially supplemented only by the State's Wrongful Death Act-which conflicts with my views as expressed in my dissent in Goett v. Union Carbide Corp., 361 U.S. 340, 345, 80 S.Ct. 357, 360, I join my Brother HARLAN'S dissent.