                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-2-1994

Calhoun v. Yamaha Motor Corp., et al.
Precedential or Non-Precedential:

Docket 93-1736




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        UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
            _____________________

           NOS. 93-1736 and 93-1737
            _____________________

     LUCIEN B. CALHOUN; ROBIN L. CALHOUN,
  individually and as Administrators of the
    Estate of Natalie K. Calhoun, deceased

                      v.

       YAMAHA MOTOR CORPORATION, U.S.A.;
YAMAHA MOTOR CO., LTD.; PALMAS DEL MAR COMPANY;
PALMAS DEL MAR, INC.; PALMAS YACHT CLUB, INC.;
   MARINA DE PALMAS YACHT CLUB, INC.; MAXXAM
     PROPERTIES, INC.; ABC CORPORATION; XYZ
  PARTNERSHIP(S); CANDELERO HOTEL CORPORATION;
        MARINA DE PALMAS SHIPYARD, INC.

          Yamaha Motor Corporation, U.S.A. and
               Yamaha Motor Company, Ltd.,
                Appellants in No. 93-1736


     LUCIEN B. CALHOUN; ROBIN L. CALHOUN,
  individually and as Administrators of the
   Estate of Natalie K. Calhoun, deceased,

               Appellants in No. 93-1737

                      v.

       YAMAHA MOTOR CORPORATION, U.S.A.;
YAMAHA MOTOR CO., LTD.; PALMAS DEL MAR COMPANY;
PALMAS DEL MAR, INC.; PALMAS YACHT CLUB, INC.;
   MARINA DE PALMAS YACHT CLUB, INC.; MAXXAM
     PROPERTIES, INC.; ABC CORPORATION; XYZ
  PARTNERSHIP(S); CANDELERO HOTEL CORPORATION;
        MARINA DE PALMAS SHIPYARD, INC.

         _____________________________

On Appeal From the United States District Court
   For the Eastern District of Pennsylvania
            (D.C. Civ. No. 90-04295)
         _____________________________
                        Argued: April 13, 1994

     Before:   BECKER, MANSMANN and SCIRICA, Circuit Judges.

                      (Filed   November 2, l994 )


                            THOMAS   A.   MASTERSON,   JR.,   ESQUIRE
(ARGUED)
                            Manchel, Lundy & Lessin
                            1600 Market Street
                            33rd Floor
                            Philadelphia, PA 19103

                            WILLIAM J. TAYLOR, JR., ESQUIRE
                            Taylor & Taylor
                            1801 Market Street
                            811 Ten Penn Center
                            Philadelphia, PA 19103

                            Attorneys for Appellees/Cross-Appellants
                            Lucien B. Calhoun and         Robin   L.
Calhoun


                            JONATHAN DRYER, ESQUIRE (ARGUED)
                            WILLIAM R. HOFFMAN, ESQUIRE
                            Wilson, Elser, Moskowitz,
                               Edelman & Dicker
                            The Curtis Center - Suite 830 East
                            Independence Square West
                            Philadelphia, PA 19106

                            Attorneys for Appellants/Cross-Appellees
                            Yamaha Motor Corporation,
           U.S.A.
                            and Yamaha Motor Company, Ltd.


                    ______________________________

                          OPINION OF THE COURT
                    _______________________________



BECKER, Circuit Judge.
              These consolidated interlocutory cross appeals before

us pursuant to 28 U.S.C. § 1292(b) (1993) present an interesting

and important question of maritime law:                              whether state wrongful

death and survival statutes are displaced by a federal maritime

rule of decision concerning the remedies available for the death

of   a   recreational         boater      occurring               within   state      territorial

waters,1 which are explicitly excluded from the reach of the

Death    on   the     High    Seas       Act,      46       U.S.C.A.       § 761      (1975).    The

remedies      at    issue    are       loss   of    society,          loss      of    support    and

services, loss of future earnings, and punitive damages.

              This case arose when Natalie Calhoun, the twelve year

old daughter of plaintiffs Lucien and Robin Calhoun, was killed

in a boating accident in the waters off Puerto Rico.                                  Natalie had

been riding a "Wavejammer," a type of jet ski manufactured by

Yamaha Motor Corporation, U.S.A., and its parent company, Yamaha

Motor    Company,      Ltd.       (collectively              referred      to    as    "Yamaha").

Plaintiffs sued Yamaha seeking recovery under the Pennsylvania

wrongful death and survival statutes, 42 PA. CONS. STAT. ANN. §§

8301-8302     (1982    &     Supp.      1994).              In    granting      partial   summary

judgment      for    Yamaha       on    the   issue          of     available        damages,   the

district court held that federal maritime law displaced both

state    remedies,          and    fashioned            a        federal    common      law     rule


1
     "State territorial waters" refers to waters within the
territorial limits of a state, as well as "the coastal waters
less than three nautical miles from the shore of a state."
William C. Brown, III, Problems Arising from the Intersection of
Traditional Maritime Law and Aviation Death and Personal Injury
Liability, 68 TUL. L. REV. 577, 581 (1994).
applicable    to   cases        involving    the   death    of     a    non-seaman     in

territorial      waters    under     which    future     earnings        and      punitive

damages are not recoverable but damages for loss of society or

support   are.      Each    party    sought     certification          to    appeal the

portion of the court's ruling that was unfavorable.

            We do not reach the question whether the district court

fashioned the proper federal common law remedy, however, because

we conclude that the federal maritime law does not displace state

wrongful death or survival statutes in this context.                              Rather,

applying traditional admiralty choice of law principles, we hold

that the appropriate rule of decision in this area should be

supplied by state law.              Our analysis of the Supreme Court's

maritime wrongful death jurisprudence reveals that there is no

federal substantive policy with which state wrongful death or

survival statutes conflict here.                   In the absence of a clear

conflict, state law rules of decision should apply.                               We will

therefore    affirm       the    district    court's       order       denying      Yamaha

partial   summary     judgment,       reverse      the   order     granting        Yamaha

partial   summary     judgment,       and    remand      the     case       for   further

proceedings      consistent       with   this      opinion.        On       remand,   the

district court will have to determine whether the plaintiffs'

claims are governed by the laws of Pennsylvania or of Puerto

Rico, and how the wrongful death and survival laws of those

Commonwealths bear upon plaintiffs' damages.


              I.    FACTS, PROCEDURAL HISTORY, AND SCOPE
                       OF THE INTERLOCUTORY APPEAL
              On July 6, 1989, while vacationing with her parents at

Palmas Del Mar Resort, Humacao, Puerto Rico, Natalie Calhoun

rented    a    Yamaha        "Wavejammer."               While    she     was   riding      the

"Wavejammer,"       Natalie      slammed          into    a    vessel     anchored    in    the

waters off the hotel frontage and was killed.                           At the time of her

death, Natalie was twelve years old.                           Her parents, Lucien and

Robin     Calhoun,       individually             and     in      their    capacities        as

administrators for the estate of their daughter, sued Yamaha in

the    District    Court      for       the    Eastern        District    of    Pennsylvania

seeking recovery under the Pennsylvania wrongful death statute,

42    PA. CONS. STAT. ANN.          §    8301      (1982      &   Supp.    1994),    and    the

Pennsylvania      survival       statute,         42     PA. CONS. STAT. ANN.         §    8302

(1982).    Their complaint invoked federal jurisdiction both on the

basis of diversity of citizenship, 28 U.S.C.A. § 1332 (1993),2

and    admiralty,       28   U.S.C.A.         §   1333    (1993).         The   theories     of

recovery alleged in the complaint included negligence, strict

liability,        and        breach       of       the        implied      warranties        of

merchantability and fitness for purpose.                           The complaint sought

damages    for    lost       future      earnings,        loss    of    society,     loss    of

support and services, and funeral expenses.                             It also requested

punitive damages.

              On November 27, 1991, Yamaha moved for partial summary

judgment asserting that the damages recoverable in the action, if

2
    The Calhouns are citizens of Pennsylvania; Yamaha Motor
Corporation, U.S.A. is a California corporation, and Yamaha Motor
Company, Ltd. is a Japanese corporation.
any, were governed by the federal admiralty law, and that under

that law the plaintiffs were not entitled to lost future wages,

loss   of   society,    loss   of    support   and    services,   or   punitive

damages.3    In its decision on the motion, the district court:

(1) agreed with Yamaha that the federal common law of admiralty

governed the Calhouns' wrongful death and survival actions; (2)

held that the general maritime wrongful death cause of action

recognized in Moragne v. States Marine Lines, Inc., 398 U.S. 375,

90 S. Ct. 1772 (1970), displaced the Pennsylvania wrongful death

and survival statutes and hence that any available remedy was a

function of federal common law; and (3) held that under this

federal common law remedy, lost future wages and punitive damages

could not be awarded but loss of society and loss of support and

services could be.       The court therefore granted Yamaha's motion

for summary judgment on the loss of future earnings and punitive

damages, and denied its motion respecting the claims for loss of

society and loss of support and services.

            Yamaha     moved   the    district       court   to   certify   for

immediate interlocutory appeal, 28 U.S.C.A. § 1292(b) (1993), the

question whether the plaintiffs should be able to recover damages

for the loss of Natalie's society.             Believing that the question

was extremely close, the district court granted the motion and

certified the issue to this court.4              Plaintiffs then requested

3
    Yamaha has conceded that funeral expenses are compensable.
4
   Section 1292(b) allows for immediate appeal of interlocutory
orders (1) which involve a controlling question of law as to
which there is substantial ground for difference of opinion and
where an immediate appeal will materially advance the ultimate
that the district court amend its certification order to add the

question    whether           future      earnings    and   punitive         damages    were

recoverable.            The    district      court     agreed,       and    certified     the

following question to this Court:
          The questions of law certified to the Court
          of Appeals are whether, pursuant to [a
          federal] maritime cause of action, plaintiffs
          may seek to recover (1) damages for the loss
          of the society of their deceased minor child,
          (2) damages for the loss of their child's
          future earnings, and (3) punitive damages.


Both parties petitioned for permission to appeal pursuant to

Federal    Rule        of   Appellate       Procedure     5(a).        We    granted    both

petitions and consolidated the appeals.                         We have jurisdiction

pursuant to 28 U.S.C.A. § 1292(b) (1993).

            The        district      court's      statement     in    the    certification

order is limited to the question of what damages are available

under a federal maritime cause of action.                         On appeal, however,

the parties have also (properly) briefed the question whether

federal maritime law displaced state wrongful death and survival

statutes.       As will appear, the answer to the certified question

depends    in     large       part   on    the    resolution     of    the    displacement

question.         We    presume      that    the     district    court      intended     this

important question of displacement to be considered.                              But even if

such were not the case, it would not affect our jurisdiction.

            As provided in Section 1292(b), we have before us an

appeal     from    the        challenged         order,   not    just       the    certified

termination of the litigation and (2) which the Court of Appeals
permits pursuant to Rule 5 of the Federal Rules of Appellate
Procedure. See 28 U.S.C.A. § 1292(b); FED. R. APP. P. 5(a).
question.         Section    1292(b)   requires       not   that        we   answer     the

certified      question,     but    that    we     decide    an     appeal      from     an

interlocutory order.          We therefore are not bound by the district

court's formulation of the question, and may address any issue

that is necessary to decide the appeal before us.                              See In re

School Asbestos Litigation, 789 F.2d 996 (3d Cir. 1986).                             There

the district court certified for appeal an order certifying a

compulsory        class     under   Federal        Rule     of     Civil       Procedure

23(b)(1)(A) and (b)(1)(B), but after taking jurisdiction we also

reviewed the court's denial of certification under Rule 23(b)(3).

Id. at 1002.       See also Johnson v. Alldredge, 488 F.2d 820, 822-23

(3d   Cir.    1973)    (stating     that    appeals    court       is    not    bound   by

district     court's      statement    of    the    issue     on    Section      1292(b)

appeal), cert. denied, 419 U.S. 882, 95 S. Ct. 148 (1974); 9

JAMES W. MOORE    ET AL.,   MOORE'S FEDERAL PRACTICE ¶ 110.25[1], at 300 (2d

ed. 1994) ("[I]t is the order that is appealable, and not the

controlling question identified by the district court.                         Thus, the

court of appeals may address any issue necessary to decide the

case before it.") (footnote omitted).                The displacement question,

which, in our view, is the critical question raised by this

appeal,      is   therefore     appropriately        before       us,    and    we    turn

immediately to it.          The questions are ones of law and our review

is plenary.


           II.    ADMIRALTY LAW AND DISPLACEMENT OF STATE LAW:
                            GENERAL PRINCIPLES
           As we have noted, the plaintiffs' complaint alleged

federal   jurisdiction       on   the   basis     of    both    diversity    of

citizenship,     28   U.S.C.A.    §   1332   (1993),    and     admiralty,   28

U.S.C.A. § 1333 (1993).5          The Supreme Court has instructed us

that   "[w]ith   admiralty    jurisdiction      comes   the    application   of

substantive      admiralty    law."      East     River       S.S.   Corp.   v.

Transamerica Delaval, 476 U.S. 858, 864, 106 S. Ct. 2295, 2298-99

(1986).   But knowing that substantive admiralty law applies does

not really resolve the question whether federal or state law

provides the relevant rule of decision.           "Although the corpus of

admiralty law is federal in the sense that it derives from the

5
      Since this accident involved the allision of a pleasure
craft (the "Wavejammer") with another vessel on navigable waters,
admiralty jurisdiction appears to have been appropriate.      See
Sisson v. Ruby, 497 U.S. 358, 110 S. Ct. 2892, 2898 (1990);
Foremost Ins. Co. v. Richardson, 457 U.S. 668, 677, 102 S. Ct.
2654, 2659 (1982) (collision of two boats, neither of which had
ever been engaged in commercial maritime activity, and where site
of accident was on waters seldom, if ever, used for commercial
activity, was within admiralty jurisdiction). The Calhouns now
argue that admiralty jurisdiction is inappropriate.      Although
they are entitled to so argue and have reserved their right to
appeal that question from a final order, we doubt that the
existence or non-existence of admiralty jurisdiction matters to
the question of remedies. Even if this were solely a diversity
case (in which event we would still have subject matter
jurisdiction over these cross-appeals) or the parties were in
state court, a federal maritime rule of decision applicable to
the controversy would still displace a state rule that was in
conflict.   Although Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58
S. Ct. 817 (1938), states that there is no general federal common
law, it is well settled that there are areas in which specific
bodies of federal common law operate, particularly admiralty.
And where a federal rule (either statutory or common law)
supplies a rule of decision in a particular case, it applies
regardless of the basis of jurisdiction.    That is in part what
the reverse-Erie doctrine tells us. See Offshore Logistics, Inc.
v. Tallentire, 477 U.S. 207, 223, 106 S. Ct. 2485, 2494 (1986).
implications of Article III evolved by the courts, to claim that

all enforced rights pertaining to matters maritime are rooted in

federal law is a destructive oversimplification of the highly

intricate interplay of the States and the National Government."

Romero v. International Terminal Operating Co., 358 U.S. 354,

373-75, 79 S. Ct. 468, 480 (1959).                      See also American Dredging

Co.    v.   Miller,        114    S. Ct.   981,     987    (1994)       (recognizing     the

continued vitality of this principle from Romero).

                 State     and     federal    authorities           jointly      exercise

regulatory authority over maritime matters.                       Romero, 358 U.S. at

375, 79 S. Ct. at 481.               As a result, state law can, and often

does, provide the relevant rule of decision in admiralty cases.

See, e.g., Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S.

310, 321, 75 S. Ct. 368, 374 (1955) (state law determines the

effect      of    breach    of    warranty   in     a    marine    insurance     policy).

Indeed, "[i]n the field of . . . maritime torts, the National

Government has left much regulatory power in the States."                           Id. at

313, 75 S. Ct. at 370.

                 Whether a state law may provide a rule of decision in

an admiralty case depends on whether the state rule "conflicts"

with the substantive principles of federal admiralty law.                                As

Judge Aldisert explained in Floyd v. Lykes Bros. S.S. Co., 844
F.2d    1044,      1047     (3d    Cir.    1988),       "state    law    may    supplement

maritime law when maritime law is silent or where a local matter

is at issue, but state law may not be applied where it would

conflict         with    [federal]    maritime      law."         See    also    Askew   v.

American Waterways Operators, Inc., 411 U.S. 325, 341, 93 S. Ct.
1590, 1600 (1973) (courts in admiralty cases may reach beyond

maritime precedents and apply state law "absent a clear conflict

with the federal law"); Pope & Talbot, Inc. v. Hawn, 346 U.S.

406, 409-10, 74 S. Ct. 202, 205 (1953) ("[S]tates may sometimes

supplement federal maritime policies . . . ."); Sosebee v. Rath,

893   F.2d    54,     56-57     (3rd    Cir.   1990)     (maritime       law   preempts

territorial attorney fees provision that directly conflicts with

federal      law).       Thus,     in    the     context    of    this     case,   the

Pennsylvania wrongful death and survival statutes (or the Puerto

Rico death and survival actions) may apply unless they conflict

with a substantive rule of federal admiralty law.

             We view this question as being quite similar, if not

identical, to the preemption analysis articulated in Clearfield

Trust Co. v. United States, 318 U.S. 363, 63 S. Ct. 573 (1943),

and its progeny, see, e.g., United States v. Little Lake Misere

Land Co., 412 U.S. 580, 594, 93 S. Ct. 2389, 2398 (1973); United

States v. Kimbell Foods, Inc., 440 U.S. 715, 728-29, 99 S. Ct.

1448, 1458-59 (1979); Boyle v. United Technologies Corp., 487

U.S. 500, 507 n.3, 108 S. Ct. 2510, 2516 n.3 (1988); O'Melveny &
Myers v. F.D.I.C., 114 S. Ct. 2048, 2053 (1994).                          These cases

recognize that there are areas of unique federal interest which

are   entirely       governed    by    federal    law,   but     where    federal law

nevertheless "borrows," see Little Lake Misere, 412 U.S. at 594,

93 S. Ct. at 2398, or "incorporates" or "adopts," see Kimbell

Foods, 440 U.S. at 728-30, 99 S. Ct. at 1458-59, state law except

where a significant conflict with federal policy exists.
            While it is clear that under certain circumstances the

general maritime law -- including the wrongful death rule of

Moragne -- may incorporate state law as its rule of decision, the

Supreme Court has begun to view the distinction between federal

law incorporating state law as a rule of decision and state law

operating of its own force as of theoretical importance only.

See O'Melveny & Myers, 114 S. Ct. at 2048 ("In any event, knowing

whether `federal law governs' in the Kimbell Foods sense -- a

sense which includes federal adoption of state-law rules -- does

not much advance the ball.           The issue in the present case is

whether the [state] rule of decision is to be applied . . . or

displaced,   and   if   it   is    applied    it    is    of   only   theoretical

interest whether the basis for that application is [the state's]

sovereign    power      or   federal     adoption         of    [the    state's]

disposition.")     (citation      omitted).        More   precisely,    although

drawing such a distinction identifies the sovereign "power" being

exercised, it does not have any real bearing on the practical

question whether the state law rule of decision will apply or be

displaced.    See id.6       Thus, because it makes little practical

6
   See also Boyle, 487   U.S. at 507 n.3, 108 S. Ct. at 2516 n.3
("We refer here to the displacement of state law, although it is
possible to analyze it as the displacement of federal-law
reference to state law for the rule of decision. [Citing Little
Lake Misere and Kimbell Foods]. We see nothing to be gained by
expanding the theoretical scope of the federal pre-emption beyond
its practical effect, and so adopt the more modest terminology.
If the distinction between displacement of state law and
displacement of federal law's incorporation of state law ever
makes a practical difference, it at least does not do so in the
present case."); Martha Field, Sources of Law:      The Scope of
Federal Common Law, 99 HARV. L. REV. 881, 977 & n.408 (1986)
("[The] distinction between state law applying directly and state
difference     as   to    whether    the   general     maritime     law   has

incorporated state law or whether state law provides a rule of

decision of its own force, we simply refer to the problem as

"displacement of state law."7

             In admiralty law, determining whether federal maritime

law conflicts with and thus displaces state law has proven to be

extremely tricky.        Although we are told time and again under

maritime preemption doctrine that a conflict exists where state

law prejudices the "characteristic features" of federal maritime

law, or interferes with the "proper harmony and uniformity of

that law," Southern Pac. Co. v. Jensen, 244 U.S. 205, 216, 37

S. Ct. 524, 529 (1917), the Jensen language is little more than a

convenient    slogan,    providing   little   guidance   on   the   question

whether there is a conflict.         See American Dredging, 114 S. Ct.

at 991 (Stevens, J., concurring) ("The unhelpful abstractness of

[the Jensen language] leaves us without a reliable compass for

navigating maritime pre-emption problems.").           Indeed, the lack of

a clearly delineated conflicts inquiry in this area has been

law   applying      through    federal     reference     is   of     dubious
relevance.").
7
   The correct analytic conclusion, we believe, is that admiralty
law simply has not spoken to the factual situation of this case,
see infra at typescript Error! Bookmark not defined.-Error!
Bookmark not defined., 45-Error! Bookmark not defined., and that
state laws accordingly apply of their own force. Were we to find
federal admiralty law governing wrongful death and survival
actions applicable to the death of a recreational boater
occurring within state territorial waters, however, our analysis
would likely lead us to hold that admiralty law either does not
displace or adopts (or incorporates) state (or territorial) tort
law. See infra at n.Error! Bookmark not defined..
problematic.         The Supreme Court has consistently struggled with

setting      the    boundary        between       conflicting      and   non-conflicting

state      regulation        in    the    area       of   maritime    affairs,        and   has

recently admitted,
          [i]t would be idle to pretend that the line separating
          permissible from impermissible state regulation is
          readily discernible in our admiralty jurisprudence, or
          indeed is even entirely consistent within our admiralty
          jurisprudence.   Compare [Kossick v. United Fruit Co.,
          365 U.S. 731, 81 S. Ct. 886 (1961)] (state law cannot
          require provision of maritime contract to be in
          writing), with Wilburn Boat Co. v. Fireman's Fund Ins.
          Co., 348 U.S. 310, 75 S. Ct. 368 [(1955)] (state law
          can determine effect of breach of warranty in marine
          insurance policy).


American      Dredging,           114    S. Ct.      at   987-88     (parallel        citation

omitted).         See also GRANT GILMORE & CHARLES L. BLACK, THE LAW             OF   ADMIRALTY

§ 1-17,      at    49    (2d      ed.    1975)    ("The     concepts     that    have       been

fashioned for drawing [the line between state and federal law]

are too vague, as we have seen, to ensure either predictability

or wisdom in the line's actual drawing.").

              In our view, however, the maritime preemption doctrine

is   not     significantly          different        from    the   preemption         doctrine
applicable to non-maritime contexts.                        See American Dredging, 114

S. Ct. at 992 (Stevens, J., concurring); Wilburn Boat Co., 348

U.S.    at   324,       75   S. Ct.      at    376    (Frankfurter,      J.,    concurring)

(maritime         preemption       analysis       factors     "are    not    unlike     those

involved when the question is whether a State, in the absence of

congressional           action,     may       regulate     some    matters     even     though

aspects of interstate commerce are affected"); id. at 333, 75

S. Ct. at 381 (Reed, J., dissenting) ("Since Congress has power
to   make   federal   jurisdiction    and   legislation   exclusive,     the

[preemption] situation in admiralty is somewhat analogous to that

governing state action interfering with interstate commerce.").

Therefore, resort to non-maritime preemption doctrine by way of

analogy may help sharpen the focus of the inquiry.8

            Stated    succinctly,    in   the   absence   of   an   express

statement by Congress (express preemption), (implied) preemption

could   occur   either   where   Congress   intended   that    federal   law

occupy the field (field preemption) or where there is an actual

conflict between state and federal law such that:          (1) compliance

with both federal and state law is impossible; or (2) state law

stands as an obstacle to the accomplishment and execution of the
8
    The analogy is not perfect.    In   Knickerbocker Ice Co. v.
Stewart, 253 U.S. 149, 40 S. Ct. 438 (1920), and Washington v.
W.C. Dawson & Co., 264 U.S. 219, 44 S. Ct. 302 (1924), the
Supreme Court held that some state regulation of maritime
matters, even where authorized by Congress, was precluded
directly by the Constitution and the uniformity implications of
its grant of federal maritime jurisdiction.    See Knickerbocker,
253 U.S. at 163-64, 40 S. Ct. at 441; W.C. Dawson & Co., 264 U.S.
at 227-28, 44 S. Ct. at 302.       In Knickerbocker, however, a
congressional enactment authorizing state workers' compensation
laws to govern maritime workers was held unconstitutional
"because their provisions were held to modify or displace
essential features of the substantive maritime law." Red Cross
Line v. Atlantic Fruit Co., 264 U.S. 109, 124, 44 S. Ct. 274, 277
(1924).   And in W.C. Dawson & Co., a similar congressional act
was invalidated because it "permit[ted] any state to alter the
maritime law and thereby introduce conflicting requirements."
W.C. Dawson & Co., 264 U.S. at 228, 40 S. Ct. at 305. Although
these cases have not been explicitly overruled by the Court, they
rest on a strong nondelegation doctrine the likes of which has
not been seen since the 1930s. At all events, by contrast to the
situations in Knickerbocker and W.C. Dawson, as we detail below,
here we discern no maritime law governing the plaintiffs'
wrongful death and survival actions and no federal interest whose
uniformity would be unconstitutionally impaired by application of
state law.
full purposes and objectives of Congress.   See California v. ARC

America Corp., 490 U.S. 93, 100-01, 109 S. Ct. 1661, 1665 (1989)

(antitrust).9

          In non-maritime cases, the determination whether there

is a conflict between state and federal law in large part turns

on the interpretation of federal statutes.     See Wallis v. Pan

American Petroleum Corp., 384 U.S. 63, 68, 86 S. Ct. 1301, 1304

(1966) ("Whether latent federal power should be exercised to

displace state law is primarily a decision for Congress.").10   In

9
   The full Jensen preemption analysis is contained in the now
famous passage stating that state legislation affecting maritime
commerce is invalid "if it contravenes the essential purpose
expressed by an act of Congress, or works material prejudice to
the characteristic features of the general maritime law, or
interferes with the proper harmony and uniformity of that law in
its international and interstate relations." Jensen, 244 U.S. at
216, 37 S. Ct. at 529.      This language seems to include the
express preemption and implied preemption concepts of the non-
maritime preemption doctrines. The language also seems to leave
room for field preemption, although it does not appear to
reference it as clearly. But as the First Circuit has recently
recognized in Ballard Shipping Co. v. Beach Shellfish, 32 F.3d
623, 626-27 (1st Cir. 1994), in American Dredging, 114 S. Ct. at
987, the Supreme Court gave the Jensen "characteristic features"
language a limited meaning. "[I]t rea[d] the phrase to apply --
and apparently only to apply -- to a federal rule that either
`originated in admiralty' or has `exclusive application there.'"
Ballard Shipping, 32 F.3d at 627.        Under this restrictive
reading, wrongful death and survival statutes would materially
prejudice no "characteristic feature" of admiralty because the
wrongful death and survival remedies did not originate in or have
exclusive application in admiralty. Because applying these state
remedies would not conflict with any congressional legislation,
see infra at typescript Error! Bookmark not defined.-Error!
Bookmark not defined., 45-Error! Bookmark not defined., the focus
of the inquiry in this case, therefore, is whether the
application of state rules of decision will unduly interfere with
the uniformity of federal maritime principles.
10
   Maritime law is not simply a creature of statute but is more
an amalgam of common law and statutory principles.    But as we
addition,     non-maritime     cases   employ     a    presumption      against

preemption.      That    is,   a   court   should      construe     a   federal

substantive rule in such a way that it does not conflict with a

state rule in an area traditionally regulated by the states.                 See

ARC America, 490 U.S. at 102, 109 S. Ct. at 1665.                 In admiralty

law a similar presumption is incorporated in the case law by the

requirement that there be a "clear conflict" before state laws

are preempted.     See Askew, 411 U.S. at 341, 93 S. Ct. at 1600;

cf. Ballard Shipping v. Beach Shellfish, 32 F.3d 623, 630 (1st

Cir. 1994) (stating that where a state remedy is aimed at a

"great and legitimate state concern," a federal court must act

with caution before finding displacement of state law).

            In light of these general principles, the question in

this case -- whether state statutory remedies can provide the

rule   of   decision    when   a   recreational       boater   is   killed    in

territorial waters -- largely reduces to an inquiry into whether

the different substantive admiralty rules articulated in federal

statutes and at common law would be frustrated by the application

of state law.    Pope & Talbot, Inc., 346 U.S. at 410, 74 S. Ct. at

205 ("[A] state may not deprive a person of any substantial

discuss in the next section, the development of the federal law
of maritime deaths has become increasingly defined by statute,
and the federal statutory schemes have taken a preeminent role in
shaping the federal maritime death remedies, including those
provided by federal common law. This development, in our view,
brings the federal admiralty preemption doctrine more into line
with the run-of-the-mill preemption case law, where the focus of
the inquiry is in large part on statutory interpretation.     Cf.
Ballard Shipping, 32 F.3d at 630-31 (looking to a recently
enacted statute to determine whether a federal common law rule
displaced a state statute).
admiralty right as defined in controlling acts of Congress or by

interpretative decisions of this Court."); Wilburn Boat Co., 348

U.S. at 332, 75 S. Ct. at 381 (Reed, J., dissenting) ("State

power may be exercised where it is complementary to the general

admiralty law.      It may not be exercised where it would have the

effect   of    harming    any    necessary   or   desirable   uniformity.");

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 228, 106

S. Ct. 2485, 2497 (1986) ("[W]here Congress had spoken, or where

general federal maritime law controlled, the States exercising

concurrent jurisdiction over maritime matters could not apply

conflicting state substantive law.").

              But before determining whether the substantive federal

policies concerning maritime deaths would be frustrated, it is

important     to   know   what    policies   have,   and   have   not,   been

articulated.       This requires some understanding of the history

behind the development of federal remedies for maritime deaths.

Although the "tortuous development"11 of the federal remedies for

maritime deaths is familiar to many, and has been amply described

elsewhere in the case law,12 it is essential background, and so

we will describe at least the major developments.
11
     Tallentire, 477 U.S. at 212, 106 S. Ct. at 2488 ("The
tortuous development of the law of wrongful death in the maritime
context illustrates the truth of Justice Cardozo's observation
that `[death] is a composer of strife by the general law of the
sea as it was for many centuries by the common law of the
land.'") (quoting Cortes v. Baltimore Insular Line, Inc., 287
U.S. 367, 371, 53 S. Ct. 173, 174 (1932)).
12
    See Miles v. Apex Marine Corp., 498 U.S. 19, 23-27, 111
S. Ct. 317, 320-23 (1990); Tallentire, 477 U.S. at 212-17, 106
S. Ct. at 2488-91.
                      III.     THE RELEVANT FEDERAL LAW

       A.   EARLIER BACKGROUND:          FROM THE HARRISBURG TO MORAGNE

              In 1886, the Supreme Court held in The Harrisburg, 119

U.S. 199, 7 S. Ct. 140, that in the absence of an applicable

state or federal statute, the general maritime law did not afford

a wrongful death cause of action to the survivors of individuals

killed on the high seas, or waters navigable from the sea.                      The

harshness     of    this    rule   prompted     reaction     from    district   and

appeals     courts,        subsequent     Supreme   Courts,         and   Congress.

District and appeals courts began to allow recovery for deaths

within state territorial waters where the state had an applicable

wrongful death statute.              See Tallentire, 477 U.S. at 212, 106

S. Ct. at 2489.13          The Supreme Court held in The Hamilton, 207

U.S.   398,    28   S. Ct.     133    (1907),   that      state   wrongful    death

statutes could, in limited circumstances, be applied to fatal

accidents     occurring      on    the   high   seas.14      Most     importantly,

13
    Tallentire cited, inter alia, City of Norwalk, 55 F. 98, 108
(S.D.N.Y. 1893) (state wrongful death statute may validly be
applied to "maritime affairs within the state limits"), aff'd in
part, rev'd in part on other grounds, 61 F. 364, 367-68 (2d Cir.
1894) (application of state wrongful death statute to accident in
state territorial waters valid "in the absence of any regulation
of the subject by [C]ongress") (citing Steamboat Co. v. Chase, 83
U.S. (16 Wall.) 522 (1873) and Sherlock v. Alling, 93 U.S. (3
Otto) 99 (1876)).
14
   Under The Hamilton, state wrongful death statutes could apply
in admiralty on the high seas where (1) the statutes were
intended to apply on the high seas, see Tallentire, 477 U.S. at
213, 106 S. Ct. at 2489, which was not often the case, id. at
213-14, 106 S. Ct. at 2489-90 (quoting Moragne, 398 U.S. at 393
n.10, 90 S. Ct. at 1784 n.10); and either (2) "the vessel upon
which the wrongful act occurred was constructively part of the
Congress, in 1920, enacted (1) the Death on the High Seas Act

("DOHSA") which provided a federal wrongful death remedy for

survivors of all persons, seamen and non-seamen, killed on the

high seas, 46 U.S.C.A. § 761-768 (1975 & Supp. 1994), and (2) the

Jones Act, which gives, among other things, a remedy for the

wrongful   death    of   a    seaman   resulting   from   a   personal    injury

suffered   during       the   course   of    the   seaman's   employment,     46

U.S.C.A. § 688 (1975 & Supp. 1994).

           These developments, particularly the enactment of DOHSA

and the Jones Act, ensured that a wrongful death remedy would be

available for most people killed in maritime accidents.                    Thus,

between 1920 and 1970, deaths on the high seas were remedied by

DOHSA,   deaths    in    territorial     waters    were   remedied   by    state

wrongful-death statutes, and deaths of seamen (whether on the

high seas or in territorial waters) were remedied by the Jones

Act.   The Harrisburg, however, remained troublesome.             Part of the

trouble stemmed from the development of different theories of

recovery for maritime deaths.               Explanation of this difficulty

requires reference to the two basic theories on which a seaman

can recover for personal injuries.



territory of the state," or (3) "the wrongdoer was a vessel or
citizen of the state subject to its jurisdiction even when beyond
its territorial limits," id. at 214, 106 S. Ct. at 2490 (quoting
Wilson v. Transocean Airlines, 121 F. Supp. 85, 88 (N.D. Cal.
1954)). As Tallentire notes, however, the limitations placed on
the operation of state statutes for deaths on the high seas made
The Hamilton of little practical import in allowing recovery for
wrongful death.   Tallentire, 477 U.S. at 213-14, 106 S. Ct. at
2489-90.
             First, the seaman can claim that the shipowner or some

other potentially liable party was negligent; that is the basis

for recovery under the Jones Act.                Second, the seaman can claim

that the vessel was unseaworthy.               The doctrine of unseaworthiness

basically imposes on a shipowner a nondelegable duty to provide

seamen a vessel that is reasonably fit for its purpose;15 it is a

"species     of   liability       without   fault."     Seas   Shipping     Co.    v.

Sieracki, 328 U.S. 85, 94-95, 66 S. Ct. 872, 877 (1946).16                        The

Harrisburg,       however,        sharply   limited   the     operation    of     the

doctrine of unseaworthiness when a seaman was killed (as opposed

to    just   being    injured)        within    territorial     waters,    in     the

following manner.

             Under The Harrisburg there was no right to recover for

wrongful death under federal maritime law, either on a negligence

theory or on an unseaworthiness theory.                Although DOHSA allowed

recovery based on unseaworthiness for deaths outside the three

mile territorial limit, DOHSA did not apply to injuries within

territorial waters.          This meant that a seaman's survivors could

not   take   advantage       of    the   unseaworthiness    doctrine      when    the
15
    "[I]n the case of non-seamen, the only duty owed by ship-
owners is that of exercising due care under the circumstances."
2 BENEDICT ON ADMIRALTY § 81(c), at 7-9 n.18 (7th ed. 1994) (citing
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79
S. Ct. 406 (1959)).
16
     Sieracki is better known for its holding that longshore
workers were entitled to a warranty of seaworthiness, id. at 97,
66 S. Ct. at 878, thus creating "Sieracki-seamen." That part of
the case was made obsolete by the 1972 amendments to the
Longshore and Harbor Workers Compensation Act ("LHWCA"), see 33
U.S.C.A. §§ 905(b) (1986), which precluded longshoremen from
taking advantage of the doctrine of unseaworthiness.
seaman was killed in territorial waters unless a state statute

allowed recovery based on such a theory.         And although some state

statutes did, see The Tungus v. Skovgaard, 358 U.S. 588, 79

S. Ct. 503 (1959) (allowing wrongful death action based on the

doctrine of unseaworthiness because New Jersey wrongful death

statute was construed to allow such a theory), some did not, see

Moragne v. State Marine Lines, 211 So. 2d 161, 166 (Fla. 1968)

(holding   that   Florida   wrongful     death   statute    did   not   allow

recovery for unseaworthiness).SUBSEQUENT HISTORY NEEDED?

           The Harrisburg also created a complete bar to recovery

for unseaworthiness for "Jones Act seamen" killed in territorial

waters when it was combined with Lindgren v. United States, 281

U.S. 38, 50 S. Ct. 207 (1930), and Gillespie v. United States

Steel Corp., 379 U.S. 148, 85 S. Ct. 308 (1964).17            Lindgren and

Gillespie held that the Jones Act was the exclusive wrongful

death remedy for seamen and could not be supplemented by state

wrongful death actions.18      The result was that, since the Jones

Act   allowed   recovery    only   on   the   basis   of   negligence,    the

doctrine of unseaworthiness was of no aid to a Jones Act seaman

who was killed within territorial waters.         See Kernan v. American
Dredging Co., 355 U.S. 426, 428-30, 78 S. Ct. 394, 396-97 (1958).
17
    We use the term "Jones Act seamen" in contrast to "Sieracki-
seamen," see supra n.16.
18
   It is important to note here that both Lindgren and Gillespie
were limited to the preemptive effect of the Jones Act's wrongful
death remedy on state wrongful death statutes.      They did not
challenge the Supreme Court's holding in Mahnich v. Southern S.S.
Co., 321 U.S. 96, 64 S. Ct. 455 (1944), that an injured Jones Act
seaman could invoke the doctrine of unseaworthiness to sue for
injuries, wherever contracted.
            The     combination          of    The       Harrisburg,       Lindgren,       and

Gillespie created disarray in the field of remedies for wrongful

death of seamen, and led to three "anomalies" or "incongruities"

in admiralty law that eventually made the regime intolerable.19

"First, in territorial waters, general maritime law allowed a

remedy    for    unseaworthiness         resulting         in    injury,      but   not   for

death."    Miles v. Apex Marine Corp., 498 U.S. 19, 26, 111 S. Ct.

317, 322 (1990). Second, survivors of seamen killed outside the

three-mile territorial limit could pursue a wrongful death action

based on unseaworthiness, while survivors of those killed inside

territorial      waters     could       not,    unless      a    state    wrongful       death

statute allowed recovery based on unseaworthiness.                            Moragne, 398

U.S. at 395, 90 S. Ct. at 1785.                 Third, survivors of a "Sieracki-

seaman," see supra at n.16, could recover for a death within

territorial       waters     under       applicable         state        statutes,       while

survivors of a Jones Act seaman (a "true" seaman) could not.

Moragne, 398 U.S. at 395-96, 90 S. Ct. at 1785.

            In     1970    the    Supreme       Court      decided     that    enough     was

enough, and in Moragne v. States Marine Lines, Inc., 398 U.S.

375, 90 S. Ct. 1772 (1970), the Court overruled The Harrisburg
and recognized a general maritime wrongful death cause of action

under    federal    common       law.         Id.   at    378,    90     S. Ct.     at   1776.

Moragne was, by all accounts, a landmark case.                              Although its

specific holding merely created a general maritime wrongful death


19
    The "anomalies" were explained in Moragne, 398 U.S. 394-96,
90 S. Ct. at 1784-85.
remedy based on the doctrine of unseaworthiness, it has since

been interpreted as creating a wrongful death remedy based on

negligence.   See   GILMORE & BLACK   §   6-33,   at   368   ("The   remedy

provides recovery for deaths caused by negligence as well as for

deaths caused by unseaworthiness . . . ."); Miles v. Melrose, 882

F.2d 976, 985 (5th Cir. 1989), aff'd sub nom. Miles v. Apex

Marine Corp., 498 U.S. 19, 111 S. Ct. 317 (1990).20          Moragne has,

of course, been the focus of detailed analysis and description in

the case law and commentaries, which we need not repeat here.            It

is important, however, to point out that, to justify creating the

general maritime wrongful death remedy, the Court invoked the




20
     The case law, however, does not uniformly hold that the
Moragne wrongful death remedy applies to claims based on
negligence.   See, e.g., Ford v. Wooten, 681 F.2d 712, 715-16
(11th Cir. 1982) (holding that the Moragne remedy applies only to
unseaworthiness, not negligence); Ivy v. Security Barge Lines,
Inc., 606 F.2d 524, 527 (5th Cir. 1979) (en banc) (same, as
concerns Jones Act seamen).
need for "uniform vindication of federal policies,"21 and the

"humane and liberal character of proceedings in admiralty."22

           One aspect of Moragne -- a jurisprudential one -- must

however be related in some detail.         Moragne brought to the fore

the importance of federal statutory remedies in determining the

appropriate shape of the general maritime law.                 At the time

Moragne   was   decided,   DOHSA   and   the   Jones   Act    both   provided

wrongful death remedies in admiralty.            The existence of these

statutory schemes left it unclear whether a court could create a

federal common law rule in the area.            Although DOHSA and the

Jones Act reflected a strong public policy favoring survivors'

recovery for wrongful deaths, at the same time they also may have

represented a considered legislative judgment that wrongful death

remedies should go no further than those provided for by statute.

21
     As Justice Harlan put it:

      Our recognition of a right to recover for wrongful death
           under   general  maritime   law  will   assure  uniform
           vindication of federal policies, removing the tensions
           and discrepancies that have resulted from the necessity
           to accommodate state remedial statutes to exclusively
           maritime substantive concepts.     Such uniformity not
           only will further the concerns of both of the 1920 Acts
           [DOHSA and the Jones Act] but also will give effect to
           the constitutionally based principle that federal law
           should be a system of law coextensive with, and
           operating uniformly in, the whole country.

Moragne, 398 U.S. at 401-02, 90 S. Ct.                 at    1788    (internal
quotation marks and citations omitted).
22
    Id. at 387, 90 S. Ct. at 1780-81 (quoting The Sea Gull, 21
Fed. Cas. 909-10 (C.C.D. Md. 1865) (No. 12,578)).    The Moragne
court recognized that the maritime law "included a special
solicitude for the welfare of those men who undertook to venture
upon hazardous and unpredictable sea voyages." Id.
               The   undertaking      in   Moragne,     in    large    part,   was   to

determine whether the existing statutory remedies were to place a

ceiling or a floor on available remedies for wrongful death.

After searching the federal legislation and the case law, the

Moragne court concluded that "Congress [had] given no affirmative

indication of an intent to preclude the judicial allowance of a

remedy for wrongful death to persons in the situation of [the]

petitioner."         Moragne, 398 U.S. at 393, 90 S. Ct. at 1784.                     In

the absence of such an affirmative indication from Congress, the

Court believed it appropriate to recognize a general maritime

wrongful death cause of action.              As we detail below, this aspect

of Moragne -- the importance of federal statutory schemes in

shaping    non-statutory       remedies      --   has    been     particularly       far

reaching       in    the   Court's    wrongful     death      jurisprudence       since

Moragne.


          B.    THE POST-MORAGNE CASES:           GAUDET, HIGGINBOTHAM,

                              TALLENTIRE, AND MILES

               Four post-Moragne decisions are particularly important

to our decision:           Sea-Land Services, Inc. v. Gaudet, 414 U.S.
573, 94 S. Ct. 806 (1974); Mobil Oil Corp. v. Higginbotham, 436

U.S. 618, 98 S. Ct. 2010 (1978); Offshore Logistics, Inc. v.

Tallentire, 477 U.S. 207, 106 S. Ct. 2485 (1986); and Miles v.

Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317 (1990).                            These

cases have further refined the federal maritime cause of action

recognized      in Moragne      and    provide    some       outline   of   the   legal

architecture         for   maritime    death   claims.          But    although    they
adumbrate the domains in which federal statutory, federal common

law, and state statutory remedies operate to provide a rule of

decision   in   maritime   death   cases,   a     brief   survey   of   these

decisions shows that significant areas of uncertainty remain.

           1.   GAUDET

           Gaudet addressed the types of damages available for a

longshoreman killed in territorial waters, 414 U.S. at 573, 94

S. Ct. at 806, and concluded that nonpecuniary damages for loss

of society were available.         Id. at 587-88, 94 S. Ct. at 816.

Although   recognizing     that    DOHSA    did     not    compensate     for

nonpecuniary losses, id. at 588 n.22, 94 S. Ct. at 816 n.22, the

Court studiously ignored the example of DOHSA and followed the

"humanitarian policy of the maritime law" that favored recovery

for loss of society.        Id. at 588, 94 S. Ct. at 816.               Three

aspects of Gaudet are worth mentioning.              First, the decision

recognizes damages for loss of society as being available in a

general maritime wrongful death action.         Id. at 587, 94 S. Ct. at

816.   Second, on its face, Gaudet appears to approve of the

application of state statutes in maritime death cases.23            See id.

at 587-88, 94 S. Ct. at 816.       Third, and perhaps most important,

Gaudet (together with its offspring, American Export Lines, Inc.
v. Alvez, 446 U.S. 274, 100 S. Ct. 1673 (1980)) represents the

first, and last, time that the Court departed from the guidance

23
    Gaudet also cited approvingly to a decision of this court,
Dugas v. National Aircraft Corp., 438 F.2d 1386 (3d Cir. 1971),
which joined a state survival statute to a general maritime
wrongful death cause of action. Gaudet, 414 U.S. at 588 n.24, 94
S. Ct. at 817 n.24.
of federal statutory wrongful death remedies in shaping recovery

for wrongful death.24           Cf. Gaudet, 414 U.S. at 601-02, 605, 94

S. Ct.   at    823,    825   (Powell,    J.,    dissenting).     Indeed,   since

Gaudet, the Court, disapproving of that decision but reluctant to

overrule it directly, has narrowed the case to its facts so that

the decision may be, for all intents and purposes, a dead letter.

See Miller v. American President Lines, 989 F.2d 1450, 1458 (6th

Cir.   1993)       ("Although   Gaudet    has    never   been   overruled,   its

holding has been limited over the years to the point that it is

virtually meaningless."), cert. denied, 114 S. Ct. 304 (1993).

              2.    HIGGINBOTHAM

              In Higginbotham, 436 U.S. at 618, 98 S. Ct. at 2010,

the Court addressed the question whether survivors of a person

killed on the high seas were entitled to recover damages under

federal maritime law in addition to the damages available under

DOHSA.   Of particular interest to the Court was whether the loss

24
   In American Export Lines, the Supreme Court held that general
maritime law allowed the wife of a harbor worker to bring an
action for damages for loss of society due to a maritime tort
suffered by her husband.   Although DOHSA and the Jones Act did
not themselves provide such non-pecuniary damages, the Court
allowed them, reasoning à la Gaudet that DOHSA was the exclusive
remedy only for "fatal injuries incurred on the "high seas," 446
U.S. at 282, 100 S. Ct. at 1678, and that "the Jones Act does not
exhaustively or exclusively regulate longshoremen's remedies,"
id. at 282-83, 100 S. Ct. at 1678.
     Miles v. Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317
(1990), allowed a maritime wrongful death action for the death of
a Jones Act seaman in territorial waters due to unseaworthiness.
Despite the Jones Act's provision of liability only for deaths
due to negligence, the holding in Miles may still be seen as
following congressional guidance in that DOHSA allowed recovery
for deaths occurring on the high seas due to unseaworthiness, and
the Court's holding merely harmonized those two statutes.
of society damages recognized in Gaudet were available where the

death occurred on the high seas notwithstanding the fact that

DOHSA itself did not allow for loss of society damages.                                The

Court's    answer       was     "no."        The    reasoning    of Higginbotham was

straightforward:            Congress had specifically spoken to the issue

of    damages     in    DOHSA     and    provided      damages    only    for    pecuniary

losses,     and        it   was    not       open    to    the   Court    to     authorize

supplementary          relief     that       went     beyond     that    authorized     by

Congress.       Id. at 626, 98 S. Ct. at 2015.                   Although not explicit

in the decision, Higginbotham drew its inspiration directly from

the    statutory        analysis        in   Moragne      that    we    have    identified

above.25    The only difference between the analysis in Moragne and

that in Higginbotham is that while Moragne saw a gap in the

statutory scheme, Higginbotham saw none.                          See id. at 625, 98

S. Ct. at 2015.

            3.     TALLENTIRE

            Eight years later came Tallentire, 477 U.S at 207, 106

S. Ct. at 2485, which involved a claim for damages for a death on

the high seas.              This time the question was whether remedies

available under a state wrongful death action could supplement

the remedies available under DOHSA.                       The Court again said "no,"

holding that the Louisiana wrongful death statute (which allowed

recovery for loss of society) could not apply to a claim governed

by DOHSA. Id. at 233, 106 S. Ct. at 2499.                         Again, the analysis


25
    But see id. at 625, 98 S. Ct. at 2015 (citing Moragne's
discussion of congressional intent concerning DOHSA).
had been foreshadowed by Moragne and Higginbotham:               Congress had

spoken directly to the question of damages for deaths on the high

seas in DOHSA, and the Court was not free to supplement the

statutory scheme (with a state law remedy).

            The main battle in Tallentire, however, was not over

the applicability of the Higginbotham mode of analysis to a state

wrongful death statute;26 rather, the principal dispute was over

the    construction    of    Section   7   of   DOHSA,   which   provided    in

pertinent part that
          [t]he provisions of any State statute giving or
          regulating rights of action or remedies for death shall
          not be affected by this chapter.


46    U.S.C.A.   §   767    (1975).    A   circuit   split   existed   on   the

question whether this section preserved the operation of state

wrongful death statutes for deaths on the high seas.                In a 5-4

decision, the Court held that the clause was nothing more than a

jurisdictional savings clause which preserved the rights of state

courts to "entertain causes of action and provide wrongful death

remedies both for accidents arising on territorial waters and,

under DOHSA, for accidents occurring more than one marine league

from shore."     Tallentire, 477 U.S. at 221, 106 S. Ct. at 2493.
            Although the Court justified its result in part by

stressing the advantage of having a uniform remedy for deaths on

the high seas, see id. at 230-31, 106 S. Ct. at 2498-99, the


26
    Tallentire also discussed the applicability of the remedies
afforded under the Outer Continental Shelf Lands Act, 43 U.S.C.A.
§ 1331 et. seq. (1986 & Supp. 1994), id. at 217, 106 S. Ct. at
2491, but that discussion is not pertinent here.
Court's reasoning was ultimately grounded on its interpretation

of the legislative history of Section 7 of DOHSA.                       In surveying

the legislative history of DOHSA, the Court stated that Section 7

was included in the act in order to save state remedies within

territorial waters.           According to the Court, "[t]he reach of

DOHSA's substantive provisions was explicitly limited to actions

arising from accidents on the high seas, so as to `prevent the

Act from abrogating by its own force, the state remedies then

available in state waters.'"               Id. at 224, 106 S. Ct. at 2495

(quoting Higginbotham, 436 U.S. at 621-22, 98 S. Ct. at 2013)

(internal citation omitted). It concluded that
          because DOHSA by its terms extended only to the high
          seas and therefore was thought not to displace these
          state remedies on territorial waters, [see Moragne], §
          7, as originally proposed, ensured that the Act saved
          to survivors of those killed on territorial waters the
          ability to pursue a state wrongful death remedy in
          state court.


Id. at 224-25, 106 S. Ct. at 2495.              According to one commentator,

the implication of the Court's decision in Tallentire is that

although survivors of a person killed on the high seas may seek

only    the   limited      recovery    provided   by   DOHSA,     "[i]f     the   same

accident occurs within a marine league from shore, where [DOHSA]

has no effect, the survivors can recover damages under the state

wrongful death statute, including, when provided, reimbursement

for non-economic losses."             14 CHARLES A. WRIGHT   ET AL.,   FEDERAL PRACTICE

AND   PROCEDURE § 3672, at 295 (Supp. 1994).

              4.   MILES
            The     latest    case     in    the    Court's    wrongful    death

jurisprudence is Miles, 498 S. Ct. at 19, 111 S. Ct. at 317.                   In

Miles, the mother of a Jones Act seaman killed in territorial

waters pressed a Moragne cause of action based on the doctrine of

unseaworthiness.        The    Court    considered     two    issues:     first,

whether the Jones Act provided the exclusive measure of remedies

for the death of a Jones Act seaman where recovery was premised

on the Moragne cause of action, and second, whether a general

maritime survival action recognized loss of future earnings for a

Jones Act seaman.      The Court held that the Jones Act damages were

the exclusive measure of damages allowed to a Jones Act seaman,

regardless of whether the claim was based on Moragne; it then

held that the Jones Act damages controlled any recovery based on

a general maritime survival action for the death of a Jones Act

seaman, and that since the Jones Act did not allow recovery for

future earnings, they were not recoverable under Moragne.                 Id. at

32-33, 36, 111 S. Ct. at 326, 328.

            Miles    reflects     the       preeminence   that    the     Moragne

statutory    analysis    has    achieved       in   shaping    wrongful    death

remedies.    By the time of Miles, the entire inquiry into remedies
for deaths has been reoriented into an inquiry into what the

relevant statutes had stated.
          We have described Moragne at length because it
          exemplifies the fundamental principles that guide our
          decision in this case.     We no longer live in an era
          when seamen and their loved ones must look primarily to
          the courts as a source of substantive legal protection
          from injury and death; Congress and the States have
          legislated extensively in these areas. In this era, an
          admiralty   court   should   look primarily  to   these
          legislative enactments for policy guidance.
Id. at 27, 111 S. Ct. at 323.             But importantly for this appeal,

Miles   showed     no   great       hostility   to   the   operation      of   state

statutes in providing rules of decision in admiralty cases.

              The passage quoted above hints that state statutory

schemes have a role to play in admiralty cases.                     Such a role

received fuller articulation later in the Miles opinion, where

the   Court    discussed      the    question   whether    a    general   maritime

survival action existed.              Although it ultimately declined to

address the issue, the Court's discussion seemed to sanction some

lower courts' practice of applying state survival statutes to

deaths at sea.       Id. at 326 ("Most States have survival statutes

applicable to tort actions generally, and admiralty courts have

applied these state statutes in many instances to preserve suits

for injury at sea. . . .               Where these state statutes do not

apply, however, or where there is no state survival statute,

there is no survival of unseaworthiness claims absent a change in

the traditional maritime rule.") (internal citations and footnote

omitted).

              5.   EMERGING TRENDS

              Although the trend in the post-Moragne case law can be
explained by reference to the rise in the importance of federal

statutory     schemes    in    shaping    maritime    remedies,     it    would   be

myopic not to recognize the other forces at work.                 One trend that

cannot be ignored is that the Court seems to be cutting back on

plaintiffs' rights in maritime actions.              Throughout the 1950s and

1960s, the Supreme Court expanded the rights of plaintiffs by

generally     allowing   plaintiffs       the   benefit    of    whichever     rule,
state or federal, was more favorable to recovery.                        See GILMORE &

BLACK   § 6-61,    at   463-68.            Moragne     --   or   perhaps    Gaudet    --

represented       the   apex        of     the    Court's    policy    of    expanding

plaintiffs'       rights       in        admiralty     actions.        Higginbotham,

Tallentire, and Miles, in contrast, show a tendency on the part

of the Court during the last two decades to reverse its policy of

favoring seamen plaintiffs.

               A second trend is the weakness with which the principle

of uniformity, i.e., the notion that Moragne initiated a trend in

the case law to make recovery for maritime deaths more uniform --

which permeates the rhetoric of the case law -- has been actually

applied in these cases.              For, although the cases often mention

uniformity as a guiding principle, the Court's actions belie its

importance.       Higginbotham, for example, quite consciously created

an   anomaly     (the   unavailability            of   non-pecuniary     damages     for

wrongful death at high sea where such damages were available to

longshoremen      killed   in       territorial        waters),    stating    that    "a

desire for uniformity cannot override the statute [DOHSA]," 436

U.S. at 624, 98 S. Ct. at 2014.                  Similarly, Tallentire rejected a

rule    that    would   make    DOHSA       recoveries      consistent      with   those

available under Moragne for deaths on territorial waters.                            See

Tallentire, 477 U.S. at 233, 106 S. Ct. at 2499-500.                         And Miles

viewed the variety of survival actions under state law without

alarm, declining to fashion a uniform federal rule on the matter

that would cover all plaintiffs.                  See 498 U.S. at 34, 111 S. Ct.
at 326-27.27      We believe that the thrust of these cases suggests

that the concept of uniformity has a good deal less weight than

has been thought, see also Sutton v. Earles, 26 F.3d 903, 917

(9th   Cir.    1994)   (invoking   Gaudet   and   Higginbotham    to   reject

uniformity     argument   untethered   to   statute),   and   that     it   has

significance to the extent that it aids in the "vindication of

federal policies," Moragne, 398 U.S. at 401, 90 S. Ct. at 1788.



       C.     WRONGFUL DEATH VS. SURVIVAL ACTIONS IN THE SCHEMA

              We have discussed this case law at such length because

a thorough understanding of it is critical to our analysis of the

issue presented here.       Before we turn to that analysis, however,

we must identify another aspect of the legal background that

often appears to be glossed over in the case law of maritime


27
     See also American Dredging, 114 S. Ct. at 987:

       "It is true that state law must yield to the needs of a
            uniform federal maritime law when this Court finds
            inroads on a harmonious system[,] [b]ut this limitation
            still leaves the states a wide scope.     State created
            liens are enforceable in admiralty. State remedies for
            wrongful death and state statutes providing for the
            survival of actions . . . have been upheld when applied
            to maritime causes of action. . . .    State rules for
            the partition and sale of ships, state laws governing
            the specific performance of arbitration agreements,
            state laws regulating the effect of a breach of
            warranty under contracts of maritime insurance -- all
            these laws and others have been accepted as rules of
            decision in admiralty cases, even, at times, when they
            conflicted with a rule of maritime law which did not
            require uniformity."

(quoting Romero, 358 U.S. at 373-74, 79 S. Ct.                   at    480-81)
(alterations and omissions in American Dredging).
deaths.         Throughout the previous discussion of the case law,

reference has been made to wrongful death actions and to survival

actions.        Although they are often lumped together without any

distinction, see Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d

1084, 1093 (2d Cir. 1993) (where plaintiffs treated as a single

action a claim for "wrongful death and survivorship benefits"),

they are, in fact, quite distinct.                     See, e.g., Gaudet, 414 U.S.

at 575 n.2, 94 S. Ct. at 810 n.2 (distinguishing wrongful death

statutes from survival statutes).

                A     wrongful       death    cause    of   action     belongs    to    the

decedent's dependents (or closest kin in the case of the death of

a minor).           It allows the beneficiaries to recover for the harm

that they personally suffered as a result of the death, and it is

totally independent of any cause of action the decedent may have

had for his or her own personal injuries.                        Damages are determined

by what the beneficiaries would have "received" from the decedent

and can include recovery for pecuniary losses like lost monetary

support, and for non-pecuniary losses like loss of society.                              2

BENEDICT   ON       ADMIRALTY    §   81(a),    at   7-2.     A    survival   action,     in

contrast, belongs to the estate of the deceased (although it is

usually     brought             by   the     deceased's     relatives    acting    in     a

representative capacity) and allows recovery for the injury to

the deceased by the action causing death.                            Under a survival

action, the decedent's representative recovers for the decedent's

pain and suffering, medical expenses, lost earnings (both past

and future), and funeral expenses.                    Id.
             The Jones Act (by incorporating the FELA) contains both

a wrongful death provision and a survival provision.                                     Moragne,

414 U.S. at 575 n.2, 576, 94 S. Ct. at 810 & n.2.                            DOHSA contains

a   wrongful      death    provision,        but     does     not       contain    a     survival

provision.        Id.     General maritime law contains a wrongful death

action     by     way    of    Moragne,        but      the      Supreme    Court        has    not

recognized      a     survival       action.         As    was    mentioned       above,       both

Tallentire and Miles have stressed that there is as yet no clear

federal rule on the extent to which state survival remedies are

available under DOHSA or Moragne.                    See Miles, 498 U.S. at 33-34 &

n.2, 111 S. Ct. at 326-27 & n.2; Tallentire, 477 U.S. at 215 n.1,

106 S. Ct. at 2490 n.1 (declining to approve or disapprove of the

application of state survival statutes to cases involving deaths

on the high seas).

             With       this    distinction        in     mind,     we    now     turn    to the

question    whether        state       wrongful       death       and    survival        statutes

conflict with the principles articulated in the post-Moragne line

of cases.



                              IV.    CHOICE OF LAW ANALYSIS

             As our previous analysis has shown, there is no federal

rule,    either         statutory      or    at      common       law,     that     explicitly

precludes       the     operation      of   state         wrongful       death    or     survival

statutes     in       cases    involving       recreational             boaters     killed      in

territorial waters.                 DOHSA applies only to deaths on the high

seas.     The Jones Act applies only to seamen.                             And no Supreme

Court    case     has    explicitly         held     that     Moragne      displaces        state
wrongful death or survival remedies for non-seamen killed in

territorial waters.       Of course, federal law still should displace

the state wrongful death and survival statutes if such statutes

stand as obstacles to the accomplishment and execution of the

clearly expressed policies of federal maritime law.                 It appears,

however, that neither state survival statutes nor wrongful death

statutes stand as such obstacles.



                           A.     SURVIVAL STATUTES

           The    question      whether    federal   maritime    law    displaces

state survival statutes in the context of recreational boaters

killed in territorial waters need not detain us long.                  As we have

explained above, there does not appear to be any substantive

federal    policy      addressing    survival    actions     for    non-seamen.

Although DOHSA does not contain a survival provision, its absence

does not show that Congress expressed an "affirmative indication

of an intent to preclude,"               see Moragne, 398 U.S. at 393, 90

S. Ct.    at   1784,    state     survival    statutes    from     operating   in

territorial      waters    for,     as    Tallentire     tells   us,    Congress

specifically limited the reach of DOHSA "`so as to prevent the

Act from abrogating by its own force the state remedies then

available in state waters.'"              Tallentire, 477 U.S. at 224, 106
S. Ct. at 2495 (quoting Higginbotham, 436 U.S. at 621-22, 98

S. Ct. at 2013).28

28
     Indeed, as we have mentioned, Tallentire left open the
question whether state survival statutes could provide a rule of
decision even for death on the high seas.    See also Miles, 498
U.S. at 34 n.2, 111 S. Ct. at 326-27 n.2; Dugas v. National
           Moreover,    although     Moragne      does    not   recognize    a

survival action, we do not believe that the Court's post-Moragne

case law reflects any intent to preclude survival actions based

on state law.      Quite the contrary, in its discussion of the

possible   existence    of   a   general   maritime      survival   remedy   in

Miles, the Court seemed to endorse (or at least not preclude) the

practice of applying state survival statutes for deaths occurring

within territorial waters.        See 498 U.S. at 33-34, 111 S. Ct. at

326.

           In   light   of   this   case   law,    we    hold   that   federal

admiralty law, as articulated both by statute and by the federal

common law, does not preempt the application of state survival

statutes for deaths of recreational boaters (non-seamen) within

territorial waters.29        Such a holding, we believe, is the one

most consistent with federal/state conflict of law principles,

particularly the presumption against preemption.                See supra at
typescript Error! Bookmark not defined..           In our view, a holding


Aircraft Corp., 438 F.2d 1386 (3d Cir. 1971) (holding that in
lawsuit premised on DOHSA, Pennsylvania survival statute could be
applied concurrently).   And the Fifth Circuit has held, in the
wake of the Gaudet, Higginbotham, Tallentire, and Miles quartet,
that DOHSA does not preempt a general maritime survival action.
Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1543 n.2 (5th Cir.
1991), cert. denied, 112 S. Ct. 430 (1991); Graham v. Milky Way
Barge, 824 F.2d 376, 386-87 (5th Cir. 1987).
29
     We have alternated in our discussion between the terms
"recreational boaters" and non-seaman, and we mean to use the
terms interchangeably.    We do not mean to intimate that crew
members of a racing yacht or some other non-recreational vessel
should be treated differently than someone in Natalie Calhoun's
position.   The applicable remedy depends on whether such crew
members fall within the Jones Act as seamen.
contrary to the one we reach would require the conclusion that

federal admiralty law conflicts with state law in an area where

neither Congress     nor   admiralty    law   has   provided    any   rule    of

decision.      Such a holding would ignore traditional conflicts

principles.

            We also believe that our result is not inconsistent

with the holding in Miles that future earnings, one of the major

components of survival damages, are not available to a Jones Act

seaman.     Unlike DOHSA, the Jones Act does provide for a survival

action, and under the Jones Act, recovery on a survival action is

limited to losses suffered during the decedent's lifetime.                   See

45 U.S.C.A. § 59 (1986); Miles, 498 U.S. at 35, 111 S. Ct. at

327.   As Miles recognized, Congress made the decision in the

Jones Act to place a limit on a seaman's recovery, and hence the

Supreme Court should not disregard "Congress' ordered system of

recovery,"    id.   at   36,   111   S. Ct.   at    328,   by   supplementing

recovery, even if forceful policy arguments favored recovery of

future earnings, id. at 35-36, 111 S. Ct. at 327 ("There are

indeed strong policy arguments for allowing [recovery of future

earnings].").

            But the Jones Act applies only to seamen.             And Yamaha

has not demonstrated that Congress intended the limitation on

damages in the Jones Act to extend beyond seamen.               By its terms,

the act is strictly limited to a certain class of plaintiffs.                 We

believe that a state statute allowing recovery of future earnings

would not be plainly inconsistent with the federal law, nor would

it frustrate Congress' scheme of compensation for seamen, when it
is   applied   to   people   who   fall   outside   the   scope   of   the

congressionally mandated recovery scheme for maritime injuries

and death.30   See also Garner v. Dravo Basic Materials Co., 768

F. Supp. 192, 195 (S.D. W. Va. 1991) (holding that Miles does not

preclude loss of future earnings in death of a non-seaman because

Jones Act does not extend to non-seamen).31         In sum, we hold that

30
    The Second Circuit has stated that the Court's language in
Miles did not limit its holding to Jones Act seamen.       See
Wahlstrom v. Kawasaki Heavy Indus. Inc., 4 F.3d 1084, 1093 (2d
Cir. 1993).    The Second Circuit reached this conclusion by
stating:

     The   Court's analysis relied heavily upon the decedent's
           status as a seaman and the resultant applicability of
           the Jones Act, but the announced conclusion of its
           opinion (unlike the companion ruling as to loss of
           society) was not confined to seamen.

Id. (internal citation omitted). However, the language from the
conclusion in Miles -- "We . . . hold that a general maritime
survival action cannot include recovery for decedent's lost
future earnings," 498 U.S. at 37, 111 S. Ct. at 328 -- clearly
referenced the particular decedent involved in that case.     The
language did not say "a decedent" or "any decedent." It simply
said "decedent." We believe that the Second Circuit's reading of
the conclusion is not compelled by the language, and given that
such a reading ignores the Court's rationale for denying future
earnings, we decline to follow it. See also Sutton v. Earles, 26
F.3d 903, 916-17 (9th Cir. 1994) (criticizing Wahlstrom and
declining to follow its denial of loss-of-society damages to non-
dependent parents).
31
    Even assuming that the Miles holding extends beyond seamen,
we are not sure that its rule against future earnings would
extend to deny recovery of such earnings in the case at bar. The
rule denying lost future earnings, implied from the exclusivity
of the Jones Act, presupposes that the decedent had a livelihood
and that his dependents would be entitled to damages for loss of
support under the wrongful death provision.      Apparently, the
Jones Act denies recovery of lost future earnings only because,
as Miles explained:

     Recovery of lost future earnings in a survival suit will, in
          many   instances,  be   duplicative   of  recovery   by
general maritime law does not preempt state law survival statutes

in   survival   actions   based   on   the   death   of   a   nonseaman    in

territorial waters, and that such statutes consequently govern

the instant case.    We turn therefore to the question whether the

federal maritime law displaces state wrongful death remedies.



                     B.   WRONGFUL DEATH STATUTES

           Whether federal admiralty law preempts state wrongful

death   statutes   from   applying     to   accidents   to    non-seamen   in

territorial waters presents a more difficult inquiry.               Moragne

apparently creates a federal wrongful death remedy that applies




           dependents for loss of support in a wrongful death
           action; the support dependents lose as a result of the
           seaman's death would have come from the seaman's future
           earnings.

Miles, 498 U.S. at 35, 111 S. Ct. at 327. This rationale appears
to be quite suspect when the decedent is someone who is not
employed, especially a child. A child does not typically support
her parents and so loss of support damages will be negligible. A
child's expected future earnings, however, may be considerable.
Allowing for lost future earnings under such circumstances raises
minimal risk of duplicative recovery. In our view, to deny loss
of future earnings under such circumstances gives a windfall to
potential defendants.    Thus, even if there is a federal rule
which extends beyond seamen to conflict with a state survival
statute allowing recovery of lost future earnings, we doubt that
the federal rule would extend to deny lost future earnings when
the decedent was a child and loss of support damages would be
negligible. We also doubt its applicability to cases where the
decedent was an adult who, unlike a Jones Act seaman, was
unemployed.   This analysis, we add, is not intended to suggest
case-by-case preemption analysis, but rather to demonstrate why,
in policy terms, the construction advanced by Yamaha is flawed
and hence unlikely to have animated the Supreme Court.        See
Garner, 768 F. Supp. at 195.
to   non-seamen   in   territorial   waters.32   Yamaha   argues   that

Moragne therefore displaces state wrongful death statutes.         But

although we know that Moragne provides a wrongful death remedy,

the precise contours of that remedy are not yet fully defined.33
32
    The Moragne remedy might apply only to Jones Act seamen and
to those others, including longshoremen, to whom a federal duty
of seaworthiness or due care is owed.         Moragne explicitly
grounded its holding in the propriety of extending a federal
remedy to correspond to the "federally imposed duties of maritime
law," filling a gap left by some state statutes.     See Moragne,
398 U.S. at 401 & n.15, 90 S. Ct. at 1788.
33
    Even if Moragne did provide a clear rule of decision in this
area, however, the mere existence of a federal wrongful death
cause of action does not necessarily require displacement. Cf.
California v. ARC America Corp., 490 U.S. 93, 101-02, 109 S. Ct.
1661, 1665 (1989) (concurrent application of federal and state
rules of decision are allowed); Tallentire, 477 U.S. at 224, 106
S. Ct. at 2495 ("States could `modify' or `supplement' the
federal maritime law by providing a wrongful death remedy
enforceable in admiralty for accidents on territorial waters.")
(citing Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S. Ct. 89
(1921), and Steamboat Co. v. Chase, 16 Wall. 522, 21 L. Ed. 369
(1873)); GILMORE & BLACK § 1-17, at 49-50 ("All that can be said in
general is that the states may not flatly contradict established
maritime law, but may `supplement' it, to the extent of allowing
maritime recoveries in some cases where the maritime law denies
them . . . ."). Concurrent application of state and federal law
is commonplace, particularly in areas governed by federal common
law. See, e.g., ARC America, 490 U.S. at 101-02, 109 S. Ct. at
1665 (antitrust); Madruga v. Superior Court of California, 346
U.S. 556, 561, 74 S. Ct. 298, 301 (1954) ("Aside from its
inability to provide a remedy in rem for a maritime cause of
action, . . . a state, `having concurrent jurisdiction, is free
to adopt such remedies, and to attach to them such incidents, as
it sees fit' so long as it does not attempt to make changes in
the `substantive maritime law.") (quoting Red Cross Line, 264
U.S. at 124, 44 S. Ct. at 277).
     Indeed even where the states may impose liability beyond
that imposed under federal law, there is not necessarily a
conflict, particularly in the absence of a statement from
Congress to the contrary. See ARC America, 490 U.S. at 105, 109
S. Ct. at 1667 ("Ordinarily, state law causes of action are not
pre-empted solely because they impose liability over and above
that authorized by federal law, . . . and no clear purpose of
Congress indicates that we should decide otherwise in this
Unless applying state law would be inconsistent with, or would

frustrate the operation of, a particular federal maritime rule of

decision in this area, Moragne should not displace state law

rules   of    decision    for   deaths      of   non-seamen   in   territorial

waters.34

             Yamaha's    argument    that    Moragne   displaces    all    state

wrongful     death   statutes       as   rules    of   decision    is     fairly


case.") (citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 257-
58, 104 S. Ct. 615, 626-27 (1989), and California v. Zook, 336
U.S 725, 736, 69 S. Ct. 841, 847 (1949)).     In the traditional
concurrent application of state law context, in which there is a
clear federal rule, a legitimate state law may still apply if it
does not impose too great a burden on the uniform vindication of
the federal policy. See, e.g., Ballard Shipping, 32 F.3d at 630
(describing the interest-balancing approach and suggesting that
the inquiry reduces to the "familiar one of burden"). Here, by
contrast, there is no specific federal rule on point, and we thus
need   not   analyze   the   question   under   the   rubric   of
"incorporation."   State law, subject to possible preemption on
grounds we have enumerated, applies of its own force. See, e.g.,
Wilburn Boat Co., 348 U.S. at 316, 75 S. Ct. at 371 ("[The
`literal performance' rule of insurance contracts law] has not
been judicially established as part of the body of federal
admiralty law in this country. Therefore, the scope and validity
of the [maritime insurance] policy provisions here involved and
the consequences of breaching them can only be determined by
state law unless we are now prepared to fashion controlling
federal rules.").
34
    And were Moragne to extend to persons in Natalie Calhoun's
circumstances, we might hold that its wrongful death remedy
either does not displace or actually incorporates state (and
territorial) law; "the demand for uniformity is not inflexible
and does not preclude the balancing of the competing claims of
state, national and international interests." Wilburn Boat Co.,
348 U.S. at 323-24, 75 S. Ct. at 376 (Frankfurter, J., concurring
in the result).   As our analysis below indicates, Congress has
expressed an affirmative intent, as far as civilians are
concerned, to preserve state law remedies in territorial waters.
See infra at typescript Error! Bookmark not defined.-Error!
Bookmark not defined..
straightforward:      both DOHSA and the Jones Act preempt state

wrongful    death   statutes,   so    why    shouldn't   Moragne?35   This

argument,   at   least   on   its    face,   is   seductive.   Tallentire,

Higginbotham, and Miles are to at least a certain extent the

lineal descendants of Jensen, which introduced the importance of

"uniformity" in admiralty law and stressed the preeminence of

federal maritime law over state law rules of decision.                See

Jensen, 244 U.S. at 216, 37 S. Ct. at 529.36

            But unlike the situations in Tallentire, Higginbotham,

and Miles, each of which implicated clearly articulated federal

statutory schemes, the Moragne cause of action in this context

35
    The rule that the Jones Act preempts state remedies stems
from Lindgren and Gillespie (which held that the Jones Act was
the exclusive remedy for survivors of seamen killed in
territorial waters). These cases may not have survived Moragne,
see GILMORE & BLACK § 6-32, at 368 (saying that Moragne effectively
overruled Lindgren and Gillespie), although in Miles the Court
suggested that at least with respect to the issue of the
preemption of state remedies, Lindgren and Gillespie are still
good law. See Miles, 498 U.S. at 29, 111 S. Ct. at 324 ("[T]he
preclusive effect of the Jones Act established in Lindgren and
Gillespie extends only to state remedies . . . .") (citing
Moragne, 398 U.S. at 396, n.12, 90 S. Ct. at 1785 n.12). At all
events, the premise of Yamaha's argument that the federal
statutes displace all state remedies is not free from doubt, even
where the federal statutes apply.
36
    Of course Justice Holmes dissented in Jensen, uttering what
is perhaps his best known statement: "The common law is not a
brooding omnipresence in the sky but the articulate voice of some
sovereign or quasi sovereign that can be identified." 244 U.S.
at 222, 37 S. Ct. at 531 (Holmes, J. dissenting). And Jensen has
since been called the Lochner of the federal maritime law. See
American Dredging, 114 S. Ct. at 991 (Stevens, J. concurring)
("Jensen is just as untrustworthy a guide in an admiralty case
today as Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539 (1905),
would be in a case under the Due Process Clause.") (parallel
citation omitted).
reflects anything but a clearly articulated scheme.           Not only has

Congress   said   nothing   about     the   applicability   of   particular

remedies, but the Court's common law has not either.             And since

Moragne    explicitly   left   open     a   number   of   questions   about

remedies, application of state remedies remains permissible to

the extent they do not conflict with whatever settled principles

exist.37   This proposition is true whether state laws operate to

plaintiffs' or defendants' benefit.           See, e.g., Brockington v.

Certified Elec., Inc., 903 F.2d 1523, 1528-33 (11th Cir. 1990)

(per curiam) (applying exclusivity provisions of Georgia Worker's


37
    Although Yamaha has been able to muster considerable support
in the case law for its position that Moragne displaces all state
wrongful death statutes, the case law appears to be split on this
issue. Compare Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d
1084, 1089 (2d Cir. 1993) (citing cases); Nelson v. United
States, 639 F.2d 469, 473 (9th Cir. 1980); Choat v. Kawasaki
Motors Corp., 1994 A.M.C. 2626 (Ala. 1994); Texaco Ref. & Mktg.,
Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61 (Tex. 1991)
(holding that Moragne displaces state wrongful death and survival
statutes), cert. denied, 112 S. Ct. 301 (1991), with Ellenwood v.
Exxon Shipping Co., 984 F.2d 1270, 1280 n.12 (1st Cir. 1993)
("Even today, plaintiffs may invoke state wrongful death statutes
under the saving clause insofar as they involve accidents in
territorial waters and do not conflict with the substantive
principles   developed   under   the  maritime   wrongful   death
doctrine."), cert. denied, 113 S. Ct. 2987 (1993); Lyon v. Ranger
III, 858 F.2d 22, 27 (1st Cir. 1988) (Breyer, J.) (applying
Massachusetts state law as its rule of decision in wrongful death
action brought by survivor of person killed in a scuba accident
within Massachusetts territorial waters).       Cf. Favorito v.
Pannell, 27 F.3d 716 (1st Cir. 1994) (applying Rhode Island law
to claims arising from allision of small boat with anchored
vessel within Rhode Island's territorial waters and citing Lyon);
Marine Transp. Serv. v. Python High Performance, 16 F.3d 1133
(11th Cir. 1994) (although recognizing that general maritime law
was applicable to the claim under admiralty jurisdiction,
nevertheless applying principles of Florida equitable estoppel
law in commercial dispute).
Compensation Act to exclude additional recovery under general

federal   maritime   law   to    nonmaritime    worker    injured    within

territorial waters), cert. denied, 498 U.S. 1026, 111 S. Ct. 676

(1991).

           Prior to Moragne, it was well established that state

wrongful death statutes could apply to maritime deaths occurring

in territorial waters.     Lindgren, 281 U.S. at 43-44, 50 S. Ct. at

210 ("[Before the Jones Act], in the absence of any legislation

by   Congress,   . . .   where   a   seaman's   death    resulted   from    a

maritime tort on navigable waters within a State whose statutes

gave a right of action on account of death by wrongful act, the

admiralty courts could entertain a libel in personam for the

damages sustained by those to whom such right was given.");38

Garrett   v.   Moore-McCormack   Co.,   Inc.,   317   U.S.   239,   245,   63

S. Ct. 246, 251 (1942) ("[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.");

The Tungus, 358 U.S. at 590-91, 79 S. Ct. at 505-06 (pre-Moragne

rights of non-seaman killed in state territorial waters depend on

state wrongful death statute).39
38
   See also id. at 44, 50 S. Ct. at 210 ("[S]such statutes `were
not a part of the general maritime law' and were recognized only
because Congress had not legislated on the subject.").
39
    This aspect of the holding of The Tungus retains vitality
post-Moragne, for the Moragne Court "concluded that the primary
source of the confusion [in the law of maritime wrongful deaths]
is not to be found in The Tungus, but in The Harrisburg,"
Moragne, 398 U.S. at 378, 90 S. Ct. at 1776, only the latter of
which Moragne accordingly overruled.   Id. at 409, 90 S. Ct. at
1792.
             Furthermore,     Moragne       itself    showed    no    hostility    to

concurrent application of state wrongful death statutes.                    Indeed,

to read into Moragne the idea that it was placing a ceiling on

recovery for wrongful death, rather than a floor, is somewhat

ahistorical.       The Moragne cause of action was in many respects a

gap filling measure to ensure that seamen (and their survivors)

would all be treated alike.               Gaudet, 414 U.S. at 596, 608 n.19,

94 S. Ct. at 820, 826 n.19 (Powell, J., dissenting).                   The "humane

and liberal" purpose underlying the general maritime remedy of

Moragne was driven by the idea that survivors of seamen killed in

state   territorial        waters    should     not   have     been    barred     from

recovery simply because the tort system of the particular state

in   which   a    seaman   died     did   not   incorporate     special    maritime

doctrines.       It is difficult to see how this purpose can be taken

as an intent to preclude the operation of state laws that do

supply a remedy.

             Of course, as we have mentioned above, Moragne also

recognized       the   importance     of    federal    statutory       commands    in

shaping the general maritime wrongful death remedy -- both in the

way in which it created a general maritime wrongful death remedy,

and in its suggestion that courts should look to statutes for

guidance in developing the contours of that remedy.                       And post-

Moragne jurisprudence has given that principle preeminence.                       But

a proper application of this principle, in our view, shows that

state wrongful death statutes should not be displaced in this

context.         Our   principal     guidance    on   this     issue    comes   from
Tallentire       and   its    interpretation        of   DOHSA,     the   one   federal

statute applicable to non-seamen.

             Although        Tallentire     held    that    DOHSA   displaced     state

wrongful death statutes for deaths on the high seas, its analysis

of     Section    7    of     DOHSA    is    of     considerable      importance     in

understanding the extent to which the DOHSA remedies should not

be treated as the exclusive types of remedies in a Moragne cause

of action.       Of decisional importance in Tallentire was the notion

that    by   enacting        Section   7    of     DOHSA,    Congress     intended   to

preserve concurrent state jurisdiction for maritime deaths within

state territorial waters.              As we have discussed in the previous

section, the Court stressed that the animating purpose of Section

7 was to preserve to the states "jurisdiction to provide wrongful

death remedies under state law for fatalities on territorial

waters," and that "[b]ecause DOHSA by its terms extended only to

the high seas and therefore was thought not to displace [state

wrongful     death      remedies]      on    territorial        waters,     §   7,   as

originally proposed, ensured that the Act saved to survivors of

those killed on territorial waters the ability to pursue a state

wrongful death remedy in state court."40                    Tallentire, 477 U.S. at

225, 106 S. Ct. at 2495 (internal citation omitted).                       Tallentire

thus tells us that DOHSA was affirmatively intended to preserve


40
    See also id. ("The felt necessity for a DOHSA saving clause,
then, may be traced to the fact that [state] wrongful death
statutes like workmen's compensation schemes were not common law
remedies, and thus may not have been deemed saved to suitors
under the Judiciary Act of 1789, as construed in Jensen.")
(internal quotation marks and citations omitted).
state wrongful death remedies for survivors of people killed in

territorial waters.           This intent to preserve state wrongful death

remedies       in    state    territorial           waters    should     not        be    lightly

disregarded,         particularly           since    Moragne      and    its    progeny         say

nothing explicit about abrogating state remedies.

               Tallentire's interpretation of DOHSA is also important

for another reason.           It suggests that there is a more fundamental

flaw    in   Yamaha's        argument        that    the    incorporation           of    DOHSA's

provisions into a Moragne cause of action should be treated as

displacing      all      state     wrongful        death    remedies.          If    Yamaha      is

right, it means that Moragne gives DOHSA preclusive effect in an

area    (maritime         deaths       in   state    territorial        waters)          in   which

Congress explicitly intended DOHSA to have no such effect.                                     See

The Tungus, 358 U.S. at 608, 79 S. Ct. at 514 ("It is odd to draw

restrictive inferences from a statute whose purpose was to extend

recovery for wrongful death.").                      So interpreted, Moragne would

thus transform a statute explicitly designed to preserve state

remedies into one that would displace them.                         In our view, such a

result would cut Moragne loose from its conceptual moorings and

disregard Supreme Court teachings since Moragne that we must look
to congressional statutory commands to determine what remedies

are available for maritime deaths.

               But even if DOHSA is not treated as explicitly allowing

state    law    to       operate       in   this    area,    at    the    very       least     the

legislative         history       of    DOHSA      shows    no    hostility         toward      the

application         of    state    wrongful         death    statutes     in        territorial

waters.      See Gaudet, 414 U.S. at 588 n.22, 94 S. Ct. at 816 n.22.
And since a "clear conflict" must exist before state law is

displaced by federal admiralty law, see Askew, 411 U.S. at 325,

93 S. Ct. at 1600, we cannot find that Moragne displaces state

wrongful death remedies for deaths of non-seamen in territorial

waters.   Because we see no congressional intent to preclude the

operation of state wrongful death statutes, and, indeed, believe

that DOHSA arguably preserves state wrongful death remedies in

territorial waters, we hold that state wrongful death statutes

provide the rule of decision when a recreational boater is killed

in territorial waters.

          We   find   support   for   this   result   in   Judge   Breyer's

opinion in Lyon v. Ranger III, 858 F.2d 22, 27 (1st Cir. 1988)

(applying Massachusetts state law as its rule of decision in

wrongful death action brought by survivor of person killed in

scuba accident within Massachusetts territorial waters), and the

views of a leading commentator, 14 Charles A. Wright et al.,

Federal Practice and Procedure § 3672 at 295 (2d ed. Supp. 1994)

("If the same accident [one falling within the provisions of

DOHSA] occurs within a marine league from shore, where [DOHSA]

has no effect, the survivors can recover damages under the state

wrongful death statute, including, when provided, reimbursement

for non-economic losses.").     Cf. Ballard Shipping, 32 F.3d at 631
(holding that the federal maritime economic loss rule of Robbins

Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927), which denies

recovery for purely economic losses, did not displace a Rhode

Island statute that allowed damages for some economic losses).
                We also believe our holding to be in full accord with

the principle of uniform vindication of federal maritime policies
that, however attenuated, see supra at typescript Error! Bookmark
not defined.-Error! Bookmark not defined., has generally been

considered the hallmark of conflicts jurisprudence in admiralty

law.       In    terms     of   the    notion   of   uniformity,   Yamaha's      claim

basically        boils     down   to    the     following   proposition:         state

wrongful death statutes cannot apply to deaths to recreational

boaters         in    territorial      waters    because    it   would   raise    the

possibility of different remedies depending on the location of

the accident and the citizenship of the parties.41                       But Yamaha

"heralds the need for uniformity without an appreciation for the

boundaries of its relevance."                 Ellenwood v. Exxon Shipping Co.,

984 F.2d 1270, 1279 (1st Cir. 1993).                  The argument simply proves

too much.            "All state laws, if given effect in admiralty cases,

interfere to a degree with the uniformity of admiralty law."                         1

BENEDICT   ON   ADMIRALTY § 112, at 7-36.



41
     Yamaha states, in terrorem:

                The Calhouns argue against the weight of authority and
                     against the concept of uniformity; instead they
                     espouse a different remedy for civilians injured
                     in territorial waters than that afforded seamen
                     and maritime workers by Congress and the Supreme
                     Court.   If accepted, their argument would result
                     in at least 50 different possible measures of
                     damages for the same cause of action, depending
                     solely on the citizenship of the decedent and/or
                     the place of the accident.

Reply/Answering Brief of Appellants/Cross-Appellees at 1-2.
           Perhaps recognizing that its uniformity argument proves

too much, Yamaha advanced a variant of it at oral argument,

suggesting that accepting the Calhouns' position on available

damages would lead to the following allegedly untenable result:

in an accident on a ship in which a non-seaman and a seaman were

each   killed,   the    non-seaman's     survivors   would   potentially      be

entitled (depending on the state statute) to higher damages than

those available to the survivors of the seaman.                    This result,

however, is untenable only if we assume that a person's statutory

status should be irrelevant for purposes of determining recovery

for maritime deaths.         But Miles, by denying loss of society

damages   to   the   survivor   of   a   seaman   because    the    seaman    was

covered by the Jones Act, has told us that such status does make

a difference.     498 U.S. at 32-33, 111 S. Ct. at 325-26.42

           More fundamentally, however, it is fairly common for

tort systems to allow different recoveries based on the injured

party's status.      The problem Yamaha poses arises all of the time,

whenever two parties are injured in the same event but one is

covered by worker's compensation and the other is not.                       Even

within maritime law, differing recoveries based on status occur

all of the time.       Longshoremen and seamen can often be injured in


42
     The case law is replete with statements that non-seamen
should not be entitled to damages in greater amounts than seaman
because allowing recovery would not foster admiralty's aim of
providing special solicitude to seamen. See, e.g., Wahlstrom, 4
F.3d at 1092.     But this argument seems to us to be a non
sequitur, for it is difficult to see how denying recovery to non-
seamen's survivors shows any special solicitude to seamen or
their survivors.
the same event, but a longshoreman covered by LHWCA, 33 U.S.C.A.

§§   901   et   seq.   (1986),   cannot   sue    under   the   doctrine   of

unseaworthiness, while a seaman can.

           A    similar   asymmetry   exists     between   non-seamen     and

seamen where non-seamen cannot take advantage of the doctrine of

unseaworthiness.          See    Kermarec       v.   Compagnie     Generale

Transatlantique, 358 U.S. 625, 629, 79 S. Ct. 406, 409 (1959);

Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 294 n.11

(5th Cir. 1990).       For instance, should a non-seaman and a seaman

be injured due to a non-negligent but unseaworthy condition of

the vessel, the seaman would recover and the non-seaman would

not.   This analogy has especial importance because in Moragne

itself a negligence theory was at all times still available to

the plaintiff.43

           Indeed, this case is, in many respects, the mirror

image of Moragne.      Moragne was driven by the realization that the

state wrongful death tort system simply could not be grafted

wholesale onto the regime governing torts affecting seamen.               398

U.S. at 401, 90 S. Ct. at 1788 (stating that its holding would

remove the "tensions and discrepancies that have resulted from

43
     It is often a quite reasonable choice for a group of
potential plaintiffs to give up the prospect of huge damages in
return for easier theories of recovery, and vice versa.      The
trade-off that the longshoreman received in exchange for losing
the right to sue on an unseaworthiness theory was an increase in
the compensation benefits under the LHWCA and expanded coverage.
See GILMORE & BLACK § 6-53, at 437 & n.339. More specifically, a
trade-off similar to the one made in the context of longshore
workers' injuries seems quite reasonable in the context of this
case.
the     necessity    to    accommodate      state     remedial    statutes     to

exclusively maritime substantive concepts").                 To accept Yamaha's

position in this case would create the opposite of the problem

faced in Moragne, for we would be grafting a compensation scheme

designed principally for seamen onto cases that fit easily within

the tort systems developed by the states.             This case is, at base,

no different than a cause of action arising out of the average

motor vehicle accident.

            Finally, we note that states have substantial interests

in    policing   their    territorial     waterways    and    protecting   their

citizens through their tort systems.              In light of such interests,

we should be loath to displace their statutes under our federal

common law power absent a clear federal rule.                     See American

Dredging, 114 S. Ct. at 992 (Stevens, J. concurring) (citing

Cippolone v. Liggett Group, Inc., 112 S. Ct. 2608, 2617 (1992)).

Although we recognize that the rule barring state claims if they

conflict with basic maritime principles often requires a delicate

accommodation       of   federal    and   state    interests,    here,   in   the

absence of a clear federal interest, we think that the balance

tips in favor of allowing state law to apply.                  In sum, we hold

that general maritime law does not preempt state law wrongful

death acts in actions based on the death of a nonseaman in

territorial waters, and that such acts therefore govern this

case.



                               V.    CONCLUSION
            For reasons we have explained above, before reaching

the question certified by the district court it is necessary to

determine what law governs this dispute, and the bulk of our

opinion has been devoted to resolving that difficult question.

We have concluded that whether loss of society, loss of support

and services, future earnings, or punitive damages are available

for the death of a non-seaman in territorial waters is a question

to be decided in accordance with state law.              We do not, however,

reach the question of which state's law -- Pennsylvania's or

Puerto Rico's -- applies.            The district court did not consider

that issue, and we decline to do so, preferring to have the

district court address it in the first instance.              Accordingly, we

do not answer the certified question in terms.                    (As explained
earlier, see supra at typescript Error! Bookmark not defined.-
Error! Bookmark not defined., under Section 1292(b) we need not

reach the certified question, but only decide the appeal from the

challenged order.)         We have, however, given the district court

sufficient guidance so that it may now do so with facility.
Since the question of which state's law applies is plainly open,

we will affirm the district court's order denying defendant's

motion    for   summary    judgment    on   loss   of   society   and   loss   of

support    damages,       but   we   will   reverse     the   order     granting

defendant's motion for summary judgment on lost future earnings

and punitive damages.



            The parties shall bear their own costs.

                    _______________________________
