Hess v. United States, 361 U.S. 314 (1960)

Author: Justice Stewart

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Hess v. United States, 361 U.S. 314 (1960)

MR. JUSTICE STEWART delivered the opinion of the Court.

This action was brought against the United States under the Federal Tort Claims Act{1} to recover for the death of petitioner’s decedent, George W. Graham. Graham was drowned in the Columbia River while in the course of his employment as a carpenter foreman for Larson Construction Company, an independent contractor which had undertaken to perform repairs at Bonneville Dam. That structure is owned and operated by the United States.

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

The theory of the petitioner’s complaint was that Graham’s death had been proximately caused by the failure of operating personnel of the dam to close a sufficient number of spillway gates near the area where the soundings were to be taken. Liability was asserted under the general wrongful death statute of Oregon,{2} as well as under another statute of that State, the Employers’ Liability Law,{3} which also creates a right to recover for death under certain circumstances.

The wrongful death statute permits recovery for death "caused by the wrongful act or omission of another," limits liability to $20,000, and makes the decedent’s contributory negligence an absolute bar to recovery.{4} In the limited area where the Employers’ Liability Law applies, the road to recovery in a death action is considerably easier. Under that statute, a defendant is liable for failure to "use every device, care and precaution which it is practicable to use for the protection and safety of life and limb. . . ."{5} There is no monetary limitation of liability, and the decedent’s contributory negligence goes only to mitigate damages.{6}

After trial without a jury, the District Court entered judgment for the United States. Since Graham’s death had occurred on navigable waters, the court ruled that the case was one for decision under maritime law, which, in this case, would apply the general wrongful death act of Oregon. Upon the basis of detailed findings of fact, the court concluded that there was no liability under that statute because Graham’s death was "not caused by the negligence of the United States or its employees." As to the Employers’ Liability Law, it was the court’s view that

this Act is not applicable for the reason that the Government was not responsible for the work there being performed, and for the further reason that the high standard of care required under the Act, if applied to these cases, would be unconstitutional.

1958 Am.Mar.Cas. 660.

The Court of Appeals affirmed, holding that the trial court had not erred in finding that negligence had not been proved, and agreeing that the Employers’ Liability Law "could not be constitutionally applied to this case." The appellate court expressly refrained from deciding

whether the trial court was also correct in ruling that, if that act were applied, the United States would not be liable thereunder because it was not responsible for the work being performed by the decedent.

259 F.2d 285, 292. Certiorari was granted to consider a seemingly important question of federal law. 359 U.S. 923.

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

The Federal Tort Claims Act grants the District Courts jurisdiction of civil actions against the United States

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b).

Graham’s death and the wrongful act or omission which allegedly caused it occurred within the State of Oregon, and liability must therefore be determined in accordance with the law of that place. Since death occurred on navigable waters, the controversy is, as the trial court correctly held, within the reach of admiralty jurisdiction, The Plymouth, 3 Wall. 20; Kermarec v. Compagnie Generale, 358 U.S. 625. Oregon would be required, therefore, to look to maritime law in deciding it. Chelentis v. Luckenbach S.S. Co., 247 U.S. 372; Carlisle Packing Co. v. Sandanger, 259 U.S. 255.{7}

Although admiralty law itself confers no right of action for wrongful death, The Harrisburg, 119 U.S. 199, yet,

where death . . . results from a maritime tort committed on navigable waters within a State whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given.

Western Fuel Co. v. Garcia, 257 U.S. 233, 242. See The Hamilton, 207 U.S. 398; La Bourgogne, 210 U.S. 95; Levinson v. Deupree, 345 U.S. 648; The Tungus v. Skovgaard, 358 U.S. 588; United Pilots Assn. v. Halecki, 358 U.S. 613. In such a case, the maritime law enforces the state statute "as it would one originating in any foreign jurisdiction." Levinson v. Deupree, 345 U.S. 648, 652.

This means that, in an action for wrongful death in state territorial waters, the conduct said to give rise to liability is to be measured not under admiralty’s standards of duty, but under the substantive standards of the state law. United Pilots Assn. v. Halecki, 358 U.S. 613, 615. See also Curtis v. A. Garcia y Cia., 241 F.2d 30 (C.A.3d Cir.); The H.S., Inc., 130 F.2d 341 (C.A.3d Cir.); Klingseisen v. Costanzo Transp. Co., 101 F.2d 902 (C.A.3d Cir.); Graham v. A. Lusi, Ltd., 206 F.2d 223 (C.A. 5th Cir.); Truelson v. Whitney & Bodden Shipping Co., 10 F.2d 412 (C.A. 5th Cir.); Quinette v. Bisso, 136 F. 825 (C.A. 5th Cir.); Lee v. Pure Oil Co., 218 F.2d 711 (C.A. 6th Cir.); Feige v. Hurley, 89 F.2d 575 (C.A. 6th Cir.); Holley v. the Manfred Stansfield, 269 F.2d 317 (C.A.4th Cir.).{8}

[A]dmiralty courts, when invoked to protect rights rooted in state law, endeavor to determine the issues in accordance with the substantive law of the State.

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

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

The policy expressed by a State Legislature in enacting a wrongful death statute is not merely that death shall give rise to a right of recovery, nor even that tortious conduct resulting in death shall be actionable, but that damages shall be recoverable when conduct of a particular kind results in death. It is incumbent upon a court enforcing that policy to enforce it all; it may not pick or choose.

358 U.S. at 593.

Even Southern Pacific Co. v. Jensen, which fathered the "uniformity" concept, recognized that uniformity is not offended by "the right given to recover in death cases." 244 U.S. 205, at 216. It would be an anomaly to hold that a State may create a right of action for death, but that it may not determine the circumstances under which that right exists. The power of a State to create such a right includes of necessity the power to determine when recovery shall be permitted and when it shall not. Cf. Caldarola v. Eckert, 332 U.S. 155.

358 U.S. at 594.

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

Whether the statute, by its terms and as construed by the Oregon Supreme Court, would extend to the present case, and whether, if the statute is applicable, the United States violated the standard of care which it prescribes, are questions which we do not undertake to decide, and upon which we intimate no view. The District Court made an alternative ruling that the statute was inapplicable as a matter of state law. The Court of Appeals did not reach the question. Although this issue has been argued here, we leave its disposition to a court more at home with the law of Oregon.{9}

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

So ordered.

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

1. 28 U.S.C. §§ 1346(b), 2674.

2. Ore.Rev.Stat. § 30.020.

3. Ore.Rev.Stat. § 654.305 et seq.


Action by personal representative for wrongful death. When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the decedent, for the benefit of the surviving spouse and dependents and in case there is no surviving spouse or dependents, then for the benefit of the estate of the decedent, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had he lived, against the wrongdoer for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and damages therein shall not exceed $20,000, which may include a recovery for all reasonable expenses paid or incurred for funeral, burial, doctor, hospital or nursing services for the deceased.

Ore.Rev.Stat. § 30.020.


Protection and safety of persons in hazardous employment generally. Generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance [sic] and devices.

Ore.Rev.Stat. § 654.305.


Who may prosecute damage action for death; damages unlimited. If there is any loss of life by reason of violations of ORS 654.305 to 654.335 by any owner, contractor or subcontractor or any person liable under ORS 654.305 to 654.335, the surviving spouse and children and adopted children of the person so killed and, if none, then his or her lineal heirs and, if none, then the mother or father, as the case may be, shall have a right of action without any limit as to the amount of damages which may be awarded. If none of the persons entitled to maintain such action reside within the state, the executor or administrator of the deceased person may maintain such action for their respective benefits and in the order above named.

Ore.Rev.Stat. § 654.325.

Contributory negligence. The contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing the amount of the damage.

Ore.Rev.Stat. § 654.335.

7. The petitioner argues that "the place where the act or omission occurred" was on the dam itself, an extension of the land, and that therefore this case should be decided in accordance with the law that Oregon would apply to torts occurring on land. It is clear, however, that the term "place" in the Federal Torts Claims Act means the political entity, in this case Oregon, whose laws shall govern the action against the United States "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. There can be no question but that Oregon would be required to apply maritime law if this were an action between private parties, since a tort action for injury or death occurring upon navigable waters is within the exclusive reach of maritime law. The Plymouth, 3 Wall. 20, 35-36. See Magruder and Grout, Wrongful Death Within The Admiralty Jurisdiction, 35 Yale L.J. 395, 404. This case does not involve the question that would be presented if wrongful conduct occurring within the territory of one political entity caused injury or death within a different political entity. Cf. Eastern Air Lines v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62.

8. We are not here concerned with those rights conferred by the Death on the High Seas Act, 41 Stat. 537 et seq., 46 U.S.C. § 761 et seq.; the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688; or the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424 et seq., 33 U.S.C. § 901 et seq.

9. In contending that the statute is applicable, the petitioner refers us to the following Oregon decisions, among others: Byers v. Hardy, 68 Ore. Advance Sheets 557, 337 P.2d 806; Drefs v. Holman Transfer Co., 130 Ore. 452, 280 P. 505; Rorvik v. North Pacific Lumber Co., 99 Ore. 58, 190 P. 331, 195 P. 163; C. D. Johnson Lumber Corp. v. Hutchens, 194 F.2d 574; Coomer v. Supple Investment Co., 128 Ore. 224, 274 P. 302; Myers v. Staub, 201 Ore. 663, 272 P.2d 203; Tamm v. Sauset, 67 Ore. 292, 135 P. 868; Warner v. Synnes, 114 Ore. 451, 230 P. 362, 235 P. 305; Walters v. Dock Commission, 126 Ore. 487, 245 P. 1117, 266 P. 634, 270 P. 778. The United States, in asserting that the statute is inapplicable, cites many of the same Oregon authorities.


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Chicago: Stewart, "Stewart, J., Lead Opinion," Hess v. United States, 361 U.S. 314 (1960) in 361 U.S. 314 361 U.S. 315–361 U.S. 322. Original Sources, accessed February 9, 2023, http://www.originalsources.com/Document.aspx?DocID=8EN5UFPHHWQ3IDB.

MLA: Stewart. "Stewart, J., Lead Opinion." Hess v. United States, 361 U.S. 314 (1960), in 361 U.S. 314, pp. 361 U.S. 315–361 U.S. 322. Original Sources. 9 Feb. 2023. http://www.originalsources.com/Document.aspx?DocID=8EN5UFPHHWQ3IDB.

Harvard: Stewart, 'Stewart, J., Lead Opinion' in Hess v. United States, 361 U.S. 314 (1960). cited in 1960, 361 U.S. 314, pp.361 U.S. 315–361 U.S. 322. Original Sources, retrieved 9 February 2023, from http://www.originalsources.com/Document.aspx?DocID=8EN5UFPHHWQ3IDB.