Gillespie v. US Steel Corporation Court Opinion

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199

. *[379 US 148]
*MABEL GILLESPIE, Administratrix, etc., Petitioner,

v
UNITED STATES STEEL CORPORATION 
379 US 148, 13 L ed 2d 199, 85 S Ct 308 .

[No. 10]
Argued October 13, 1964. Decided December 7, 1964.

. SUMMARY
Petitioner, the mother and administratrix of a seaman who was drowned 

while working on a ship docked in Ohio, sued the shipowner in the United 
States District Court for the Northern District of Ohio, claiming a right 
to recover for her own benefit and for the benefit of the seaman’s dependent 
brother and sisters under the Jones Act for negligence, and under the 
Ohio wrongful death statute for unseaworthiness. She also sought to 
recover for the seaman’s pain and suffering before he died, under the 
Jones Act and general maritime law, which causes of action the petitioner 
asserted survived the seaman’s death by virtue of the Jones Act and the 
Ohio survival statute. The District Court, holding that the Jones Act 
supplied the exclusive remedy, struck all parts of the complaint referring 
to the Ohio statutes or to unseaworthiness and also struck all reference 
to recovery for the benefit of the seaman’s brother and sisters. The 
Court of Appeals for the Sixth Circuit affirmed. (321 F2d 518.)

On certiorari, the Supreme Court of the United States affirmed except 
on the question whether the administratrix could recover for the seaman’s 
pain and suffering prior to death. In an opinion by Black, J., expressing 
the views of six members of the Court, it was held that (1) the Court 
of Appeals did not err in holding that the trial court’s order was “ final” 
and therefore appealable under 28 USC § 1291, because the inconvenience 
and cost of the case would not be greater by deciding the appeal, a delay 
would result from refusing to decide the appeal, and the questions raised 
were fundamental to the further conduct of the case; (2) the Jones Act 
provides an exclusive right of action for the death of a seaman killed in 
the course of his employment by negligence, thus precluding recovery 
for unseaworthiness under the Ohio wrongful death statute; (3) the 
seaman’s brother and sisters were not entitled to damages under the Jones 
Act, which limited recovery to the seaman’s mother; and (4) the Jones 
Act did not; preclude recovery for the seaman’s pain and suffering prior 
to death, and the question whether recovery could be had under the Ohio 
survival statute for his pain and suffering wras improperly decided on 
the pleading.

Harlan, J., dissented as to (1) on the ground that the trial court’s order 
lacked finality.

Stewart, J., agreed with Mr. Justice Harlan that the trial court’s 
order was not appealable, but on the merits he joined in the Court’s 
opinion.

Goldberg, J., while agreeing with the majority as to (1 ), dissented 
as to (2) on the ground that an action should lie in federal court for a 
seaman’s death wdthin territorial waters as a result of unseaworthiness.

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GILLESPIE v UNITED STATES STEEL CORP.
379 US 148, 13 L ed 2d 199, 85 S Ct 308 201

otherwise be- applied to maritime 
deaths and precluding any possible 
recovery for death based on a theory 
of unseaworthiness.
Master and Servant § 55; Seamen § 15 

— seaman’s death — beneficiaries 
of recovery

6. Recovery under the Jones Act 
(46 USC § 688) for the death of a 
seaman depends on § 1 of the Federal 
Employers’ Liability Act (45 USC § 1), 
which limits liability to one of three 
statutory classes of possible benefi­
ciaries and does not create liability 
to the several classes collectively; con­
sequently, the Jones Act does not pro­
vide for damages for a seaman’s death 
for the benefit of the seaman’s brother 
and sisters as well as for his mother.
Seamen § 15 — negligence action — 

survival
7. Through § 9 of the Federal Em­

ployers’ Liability Act (45 USC § 59), 
the Jones Act (46 USC § 688) provides 
for the survival after a seaman’s death 
of his claim based on a theory of neg­
ligence.
Abatement and Revival §9 ; Pleading 

§ 48 — seaman’s right of action — 
pain and suffering

8. A Federal Court of Appeals errs 
in deciding on the basis of an admin­
istratrix’s pleading alone that the 
right of her decedent, a seaman, to 
recover for unseaworthiness causing

pain and suffering before his death did; 
not survive under a state survival 
statute.

[See annotation p. 1013, infra]

Points from Separate Opinion
Appeal and Error § 31 — interlocutory 

orders — statute permitting ap­
peal — purpose

9. The purpose of 28 USC § 1292(b), 
which permits Federal Courts of Ap­
peals to review interlocutory orders 
made under certain circumstances, is 
to permit a Federal District Judge, in 
his discretion, to obtain immediate 
reyiew of an order which might con­
trol the further conduct of the case 
and which normally involves an unset­
tled question of law. [From separate 
opinion of Harlan, J.]
Appeal and Error §1361; Judgment 
I § 71 — dismissal of cause of ac­

tion — merger of claims
10. In a suit for recovery under the 

Jones Act (46 USC § 688) and general 
maritime law, wherein the trial court 
strikes the claim for unseaworthiness 
under general maritime law and the 
cause proceeds to trial, the asserted 
claim for unseaworthiness merges in 
the judgment if at the trial the plain­
tiff wins, and is preserved for appeal 
if at the trial the plaintiff loses on 
the Jones Act claim. [From separate 
opinion of Harlan, J.]

BRIEFS AND APPEARANCES OF COUNSEL 
Jack G. Day argued the cause for petitioner.
Thomas V. Koykka argued the cause for respondent. 
Briefs of Counsel, p 1010, infra.

OPINION OF
*[379 US 149]

*Mr. Justice Black delivered the 
opinion of the Court.

The petitioner, administratrix of 
the estate of her son Daniel Gilles­
pie, brought this action in federal 
court against the respondent ship-

*[379 US 1591
owner-employer to recover ♦dam­
ages for Gillespie’s death, which was

THE COURT
alleged to have occurred when he fell 
and was drowned while working as 
a seaman on respondent’s ship 
docked in Ohio. She claimed a right 
to recover for the benefit of herself 
and of the decedent’s dependent 
brother and sisters under the Jones 
Act, which subjects employers to 
liability if by negligence they cause 
a seaman’s injury or death.1 She

1. 41 st3t 1007, 46 USC § 688 (1958 ed); injury in the course of his employment 
Any seaman who shall suffer personal may, at his election, maintain an action

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201 U. S. SUPREME COURT REPORTS 13 L  ed 2d

also claimed a right of recovery un­
der the Ohio wrongful death stat­
ute8 because the vessel allegedly was 
not seaworthy as required by the 
“ general maritime law.”  The com­
plaint in addition sought damages 
for Gillespie’s pain and suffering be­
fore he died, based on the Jones Act 
and the general maritime law, 
causes of action which petitioner 
said survived Gillespie’s death by 
force of the Jones Act itself and the 
Ohio survival statute,3 respectively. 
The District Judge, holding that the 
Jones Act supplied the exclusive 
remedy, on motion of respondent 
struck all parts of the complaint 
which referred to the Ohio statutes 
or to unseaworthiness. He also 
struck all reference to recovery for 
the benefit of the brother and sis-j 
ters of the decedent, who respond- 

*[379 US 151]
ent had argued, were *not benel 
ciaries entitled to recovery under 
the Jones Act while their mother 
was living.

Petitioner immediately appealed 
to the Court of Appeals. Respond­
ent moved to dismiss the appeal on 
the ground that the ruling appealed 
from Was not a “ final” decision of

the District Court as required by 28 
USC § 1291 (1958 ed).4 Thereupon 
petitioner administratrix, this time 
joined by the brother and sisters, 
filed in the Court of Appeals a peti­
tion for mandamus or other appro­
priate writ commanding the District 
Judge to vacate his original order 
and enter a new one either denying 
the motion to strike or in the alter­
native granting the motion but in­
cluding also “ the requisite written 
statement to effectively render his 
said order appealable within the 
provisions of 28 USCA § 1292 (b ),” 
a statute providing for appeal of 
certain interlocutory orders.6 With­
out definitely deciding whether 
mandamus would have been appro­
priate in this case or deciding the 
“ close” question of appealability, 
the Court of Appeals proceeded to 
determine the controversy “ on the 
merits as though it were submitted 
on an appeal” ;6 this the court said 

*[379 US 152]
it felt free to *do since its resolution 
of the merits did not prejudice re­
spondent in any way, because it 
sustained respondent’s contentions 
by denying the petition for manda­
mus and affirming the District

for damages at law, with the right of trial 
by jury, and in such action all statutes 
of the United States modifying or extend­
ing the common-law right or remedy in 
cases of personal injury to railway em­
ployees shall apply; and in case of the 
death of any seaman as a result of any 
such personal injury the personal repre­
sentative of such seaman may maintain an 
action for damages at law with the right 
of trial by jury, and in such action all 
statutes of the United States conferring 
or regulating the right of action for death 
in the case of railway employees shall be 
applicable. Jurisdiction in such actions 
shall he under the court of the district in 
which the defendant employer resides or 
in which his principal office is located.”

2. Ohio Rev Code § 2125.01.
3. Ohio Rev Code § 2305.21.
4. “The courts of appeals shall have 

jurisdiction of appeals from all final deci­
sions of the district courts of the United

States . . . except where a direct
review may be had in the Supreme Court. ’ 

5. Section 1292(b) provides:
“When a district judge, in making in a 

civil action an order not otherwise appeal­
able under this section, shall be of the 
opinion that such order involves a con­
trolling Question of law as to which there 
is substantial ground for difference of opin­
ion and that an immediate appeal from 
the order may materially advance the ulti­
mate termination of the litigation, ne shall 
so state in writing in such order. The 
Court of Appeals may thereupon, in its 
discretion, permit an appeal to be taken 
from such order, if application is made 
to it within ten days after the entry of 
the order: Provided, however, That appli­
cation for an appeal hereunder shall not 
stay proceedings in the district court un­
less the district judge or the Court of 
Appeals or a judge thereof shall so order.

6. 321 F2d 518, 532.

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GILLESPIE v UNITED STATES STEEL CORP. 203
379 US 148, 13 L ed 

Court’s order.7 321 F2d 518. Peti­
tioner brought the case here, and 
we granted certiorari. 375 US 962, 
11 L ed 2d 413, 84 S Ct 487.

I.
[1-41 In this Court respondent 

joins petitioner in urging us to 
hold that 28 USC § 1291 (1958 ed.) 
does not require us to dismiss this 
case and that we can and should 
decide the validity of the District 
Court’s order to strike. We agree. 
Under § 1291 an appeal may be 
taken from any “ final” order of 
a district court. But as this Court 
often has pointed out, a decision 
“ final” within the meaning of § 
1291 does not necessarily mean the 
last order possible to be made in 
a case. Cohen v Beneficial Indus­
trial Loan Corp. 337 US 541, 545, 
93 L ed 1528, 1535, 69 S Ct 1221. 
And our cases long have recognized 
that whether a ruling is “ final” 
within the meaning of § 1291 is fre­
quently so close a question that 
decision of that issue either way 
can be supported with equally force­
ful arguments, and that it is impos­
sible to devise a formula to resolve 
all marginal cases coming within 
what might well be called the “ twi­
light zone” of finality. Because of 
this difficulty this Court has held 
that the requirement of finality is to 
be given a “practical rather than a 
technical construction.” Cohen v 
Beneficial Industrial Loan Corp., su­
pra, 337 US, at 546, 93 L ed at 1536. 
See also Brown Shoe Co. v United 
States, 370 US 294, 306, 8 L ed 2d 
510, 524, 82 S Ct 1502; Bronson v 
Railroad Co. 2 Black 524, 531, 17 
L ed 347, 360; Forgay v Conrad, 6 
How 201, 203, 12 L ed 404, 405. 
Dickinson v Petroleum Conversion 
Corp. 338 US 507, 511, 94 L ed 299, 
302, 70 S Ct 322, pointed out that in

7. No review is sought in this Court of
the denial of the petition for mandamus.

2d 199, 85 S Ct 308
deciding the question of finality the 
most important competing consid­
erations are “ the inconvenience and 

*[379 US 153]
costs *or piecemeal review on the 
one hand and the danger of denying 
justice by delay on the other.” 
Such competing considerations are 
shown by the record in the case be­
fore us. It is true that the review 
of this case by the Court of Appeals 
could be called “ piecemeal” ; but it 
does not appear that the inconven­
ience and cost of trying this case 
will be greater because the Court 
of Appeals decided the issues raised 
instead of compelling the parties to 
go to trial with them unanswered. 
We cannot say that the Court of 
Appeals chose wrongly under the 
circumstances. And it seems clear 
now that the case is before us that 
the eventual costs, as all the parties 
recognize, will certainly be less if 
we now pass on the questions pre­
sented here rather than send the 
case back with those issues unde­
cided. Moreover, delay of perhaps 
a number of years in having the 
brother’s and sisters’ rights deter­
mined might work a great injustice 
on them, since the claims for recov­
ery for their benefit have been ef­
fectively cut oif so long as the Dis­
trict Judge’s ruling stands. And 
while their claims are not formally 
severable so as to make the court’s 
order unquestionably appealable as 
to them, cf. Dickinson v Petroleum 
Conversion Corp., supra, there cer­
tainly is ample reason to view their 
claims as severable in deciding the 
issue of finality, particularly since 
the brother and sisters were sepa­
rate parties in the petition for ex­
traordinary relief. Cf. Swift & Co. 
Packers v Compania Colombiana Del 
Caribe, S. A., 339 US 684, 688-689, 
94 L ed 1206, 1210, 1211, 70 S Ct 
861, 19 ALR2d 630; Gumbel v Pit­
kin, 113 US 545, 548, 28 L ed 1128, 
1129, 5 S Ct 616. Furthermore, in

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U. S. SUPREME COURT REPORTS 13 Led 2d

United States v General Motors 
Corp. 323 US 373, 377, 89 L ed 311, 
318, 65 S Ct 357, 156 ALR 390, this 
Court contrary to its usual practice 
reviewed a trial court’s refusal to 
permit proof of certain items of 
damages in a case not yet fully 
tried, because the ruling was “ fun­
damental to the further conduct of 
the case.” For these same reasons 
this Court reviewed such a ruling 
in Land v Dollar, 330 US 731, 734, 
note 2, 91 L ed 1209, 1214, 67 S Ct

*[379 US 154]
1009, and Larson v Domestic *& For­
eign Commerce Corp. 337 US 682, 
685, note 3, 93 L ed 1628, 1633, 69 S 
Ct 1457, where, as here, the case 
had not yet been fully tried. And 
see Cohen v Beneficial Industrial 
Loan Corp., supra, 337 US, at 545­
547, 93 L ed at 1535, 1536. We 
think that the questions presented 
here are equally “ fundamental to 
the further conduct of the case.” 
It is true that if the District Judge 
had certified the case to the Court of 
Appeals under 28 USC § 1292(b) 
^1958 ed.), the appeal unquestion­
ably would have been proper; in 
light of the circumstances we be­
lieve that the Court of Appeals 
properly implemented the same pol­
icy Congress sought to promote in 
§ 1292 (b) by treating this obviously 
marginal case as final and appeal­
able under 28 USC § 1291 (1958 
ed.). We therefore proceed to con­
sider the correctness of the Court 
of Appeals’ judgment.

. ^ II.
[ 5 ] In 1930 this Court held in 

Lindgren v United States, 281 US
~ sT se e , e. g., The Tungus v Skovgaard, 
358 US 588, 595, note 9, 3 L ed 2d 524, 
79 S Ct 503, 71 ALR2d 1280; Pope & 
Talbot, Inc. v Hawn, 346 US 406, 98 L ed 
143 74 S Ct 202; Seas Shipping Co. v 
Sieracki, 328 US 85, 90 L ed 1099, 66 S Ct 
872; Mahnich v Southern S.S. Co. 321 US 
96, 88 L ed 561, 64 S Ct 455.

-9. Chelentis v Luekenbach S.S. Co, 247 
US 372, 62 L ed 1171, 38 S Ct. 501, 19

38, 74 L ed 686, 50 S Ct 207, that in 
passing § 33 of the Merchant Ma­
rine Act 1920, now 46 USC § 688 
(1958 ed.), commonly called the 
Jones Act, Congress provided an 
exclusive right of action for the 
death of seamen killed in the course 
of their employment, superseding 
all death statutes which might 
otherwise be applied to maritime 
deaths, and, since the Act gave 
recovery only for negligence, pre­
cluding any possible recovery based 
on a theory of unseaworthiness.
A strong appeal is now made that 
we overrule Lindgren because it 
is said to be unfair and incon­
gruous in the light of some of 
our later cases which have liberal­
ized the rights of seamen and 
nonseamen to recover on a theory 
of unseaworthiness for injuries, 
though not for death.8 No one of 
these cases, however, has cast doubt 
on the correctness of the interpreta- 

*[379 US 155]
tion *of the Jones Act in Lindgren, 
based as it was on a careful study 
of the Act in the context of then- 
existing admiralty principles,  ̂ deci­
sions and statutes. The opinion in 
Lindgren particularly pointed out 
that prior to the Jones Act there 
had existed no federal right of ac­
tion by statute or under the general 
maritime law to recover damages 
for wrongful death of a seaman,9 
though some of the States did by 
statute authorize a right of recov­
ery which admiralty would en­
force.10 Congress, the Lindgren 
Court held, passed the Jones Act in 
order to give a uniform right of 
recovery for the death of every sea-
NCCA 309; The Harrisburg, 119 US 199, 
30 L ed 358, 7 S Ct 140; cf. The Osceola, 
189 US 158, 47 L ed 760, 23 S Ct 483.

10. Great Lakes Dredge & Dock Co. v 
Kierejewski, 261 US 479, 67 L ed 756, 43 
S Ct 418; Western Fuel Co. v Garcia, 25' 
US 233, 66 L ed 210, 42 S Ct 89; cf. Th 
Hamilton, 207 US 398, 52 L ed 264, 2: 
S Ct 133.

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GILLESPIE v UNITED
; 379 US 148, 13 L ed

man. “ It W plain,” the Court went 
on to say, “ that the Merchant Ma­
rine Act is one of general applica­
tion intended to bring about the 
uniformity in the exercise of admi­
ralty jurisdiction required by the 
Constitution, and necessarily super­
sedes the application of the death 
statutes of the several States 
281 US, at 44, 74 L ed at 691. 
Thirty-four years have passed since 
the Lindgren decision, and Congress 
has let the Jones Act stand with 
the interpretation this Court gave 
it. The decision was a reasonable 
one then. It provided the same 
remedy for injury or death for all 
seamen, the remedy that was and 
is provided for railroad workers m 
the Federal Employers’ Liability 
Act.11 Whatever way be this Court s 
special responsibility for fashioning 
rules in maritime affairs,12 we do 
not believe that we should now dis­
turb the settled plan of rights and 
liabilities established by the Jones 
Act

*[379 US 156]
[6] ^Petitioner argues further 

that even if the only available reme­
dy for death is under the Jones Act, 
the District Judge erred in refusing 
to hold that the Jones Act provides 
for damages for death for the bene­
fit of the brother and sisters of 
the decedent as well as for the 
mother. Their right of recovery, if 
any, depends on § 1 of the FELA, 
45 USC § 51 (1958 ed.), which pro­
vides that recovery of damages for 
death shall be: “ for the benefit of 
the surviving widow or husband and 
children of such employee; and, if 
none, then of such employee’s par­
ents; and, if none, then of tne ne^t 
of kin dependent upon such em­
ployee . . .

205STATES STEEL COEP.
2d 199, 85 S Ct 308

In Chicago, B. & Q. R. Co. v Wells- 
Dickey Trust Co. 275 US 161, 163,
72 L ed 216, 217, 48 S Ct 73, 59 ALR 
758, this Court, speaking through 
Mr. Justice Brandeis, held that this 
provision creates “ three classes of 
possible beneficiaries. But the lia­
bility is in the alternative. It is to 
one of the three; not to the several 
classes collectively.” We are asked 
to overrule this case so as to give a 
right of recovery for the benefit of 
all the members of all three classes 
in every case of death. Both courts 
below refused to do so, and we 
agree. It is enough to say that we 
adhere to the Wells-Dickey holding, 
among other reasons because we 
agree that this interpretation of the 
Act is plainly correct. Cf. Poff v 
Pennsylvania R. Co. 327 US 399, 90 
L ed 749, 66 S Ct 603, 162 ALR 719.

[7,8] One other aspect of this 
case remains to be mentioned. The 
complaint sought to recover dam­
ages for the estate because “ dece­
dent suffered severe personaMnju- 
ries which caused him excruciating 
pain and mental anguish prior to 
his death.” Petitioner contends 
that the seaman’s claim for pain and 
suffering survives his death and 
can be brought on a theory of un­
seaworthiness by force of the Ohio 
survival statute. The District 
Judge struck the reference to the 
Ohio survival statute from the com­
plaint, and the Court of Appeals 
held that there was “no substantial 
basis, in this case,” for a claim for 

*[379 US 157]
pain and *suffering prior to death. 
There is, of course, no doubt that 
the Jones Act through §9 of the 
FELA, 45 USC § 59 (1958 ed.).13 
provides for survival after the death 
of the seaman of “ [a]ny right of ac-

— ---------------- ------— -------------- - . . ,  TIgr  13 36 stat 291, 45 USC § 59 (1958 ed):11. 35 Stat 65, as amended, 4o CSC 13. 3b b ^  g.yen by thl8
§§ 51-60 (1958 ed). , , . r)£>rson suffering injury shall12. See Fitzgerald v United States Lines chapter to a_ person suner S rgJ *senta.
Co- 371 US 16. 20-21 10 L «d 2d 20.
72i, 83 S Ct 1646, and cases there cited. tive, ior i

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e A T T p p n  t ?T r - n r v 'n ’T ’ q . L/UlLe;AWx iViJi. UiuO 13 L ed 2 1

tion given by this chapter,” i. e., of 
his claim based on a theory of negli­
gence. And we may assume, as we 
have in the past,14 that after death 
of the injured person a state surviv­
al statute can preserve the cause of 
action for unseaworthiness,16 which 
would not survive under the general 
maritime law.18 In holding that pe­
titioner had not stated a claim en­
titling her to recovery for the 
decedent’s pain and suffering the 
Court of Appeals relied on The Cor­
sair, 145 US 335, 348, 36 L ed 727, 
731, 12 S Ct 949, a case brought in 
a federal court to recover damages 
under a Louisiana survival statute 
for alleged pain and suffering prior 
to death by drowning where there 
was an interval of “ about ten min­
utes”  between the accident and 
death. The Court held such dam­
ages could not be recovered there, 
saying: “ . . . there is no averment 
from which we can gather that these 
pains and sufferings were not sub­
stantially contemporaneous with her 
death and inseparable as matter of 
law from it.”

*[379 US 158]
t ‘ Plainly this Court did not hold in
’ The Corsair that damages cannot

ever be recovered for physical and 
mental pain suffered prior to death 
by drowning. The case held merely 
that the averments of the plain­
tiff there did not justify awarding 
such damages in an action under the 
Louisiana survival statute. The 
Court’s language certainly did not 
preclude allowance of such damages 
in all circumstances under other 
laws, or even under the Louisiana 
statute in a case where pain and 
suffering were “ not substantially 
contemporaneous with . . . death 
and inseparable as matter of law 
from it.” In this day of liberality 
in allowing amendment of pleadings 
to achieve the ends of justice,17 the 
issue whether the decedent’s estate 
could recover here for pain and suf­
fering prior to death should not have 
been decided finally by the Court of 
Appeals on the basis of mere 
pleading. Therefore the question 
whether damages can be recovered 
for pain and suffering prior to death 
on the facts of this case will re­
main open. In all other respects 
the judgment of the Court of Ap­
peals is

Affirmed.

SEPARATE OPINIONS 

Mr. Justice Goldberg, dissenting
in part.

on the merits of the basic question 
presented for decision.

I agree that this case is properly 
here, but disagree with the Court

The precise point at issue in this' 
case is whether a suit in a federal

or husband and children of such employee, 
and, if none, then of such employee’s par­
ents; and, if none, then of the next of 
kin dependent upon such employee, but in 
such cases there shall be only one recovery 
for the same injury.”

14. “Presumably any claims, based on 
unseaworthiness, for damages accrued 
prior to the decedent’s death would sur­
vive, at least if a pertinent state statute 
is effective to bring about a survival of 
the seaman’s right.” Kernan v American 
Dredging Co. 355 US 426, 430, note 4, 2 
L ed 2d 382, 387, 78 S Ct 394. See also

Curtis v A. Garcia y Cia. 241 F2d o0, 
36-37 (CA3d Cir): Holland v Steag, Inc. 
143 F Supp 203, 205-206 (DCD Mass).

15. Cf. Just v Chambers, 312 US 383, 85 
L ed 903, 61 S Ct 687.

16. Cortes v Baltimore Insular Line, Inc. 
287 US 367, 77 L ed 368, 53 S Ct 173.

17. See Fed Rules Civ Proc 15; Foinan 
v Davis, 371 US 187, 9 L ed 2d 222, 83 
S Ct 227; United States v Hougham, 364 
US 310, 5 L ed 2d 8, 81 S Ct 13; cf. Conley 
"  Gibson, 355 US 41, 2 L ed 2d 80, <8 S
Ct 99.

C
R.

sW .1; . „• v .  < -- «• t*. •- ...... U -V v-m -------------------------------------------- -- - ■- . — ->’. j v W ^ r - -  V i --



GILLESPIE v UNITED 
379 US 148, 13 L ed

in no way be affected by enactment 
of tbe federal law. 59 Cong Rec 
4482-4486.”

From this expression of congres­
sional purpose, the Court m Th 
Tungus concluded that a suit in 
admiralty for death of a longshore­
man resulting from unseaworthiness 
of a vessel may be maintained 
against the vessel’s owner where the 
death occurs in the waters of 
State which provides a statutory 
remedy for wrongful death.

It seems to me to strain credulity 
to impute to Congress the intent 
to eliminate state death remedies for 
unseaworthiness where the decedent 

*[379 US 166]
is a seaman while 'refusing to do so 
in cases involving nonseamen. Y 
this is the result oi the Court s fo 
lowing Lindgren,

STATES STEEL CORP. 211
2d 199, 85 S Ct 308
quiring the satisfaction of reason­
able expectations. I should think 
that by allowing a remedy where one 
is needed, by eliminating differences 
not based on reason, while still leav­
ing the underlying scheme of duties 
unchanged, this sense of security 
will not be weakened but strength­
ened. The policies behind stare de­
cisis point toward ignoring Lind­
gren, not following it.

Finally, even though the Lindgren 
dictum has been in existence for 34 
years, no policy of stare decisis mili­
tates against overruling Lindgren.
In refusing to follow Lindgren we 
would not create new duties or 
standards of liability; we would 
merely allow a new remedy. Ship­
owners are currently required to 
maintain a seaworthy ship; seamen 
and longshoremen currently recover 
for death on the high seas and in­
jury suffered anywhere due to an 
unseaworthy vessel. The action of 
a shipowner in maintaining his ves­
sel will not be affected by now al­
lowing recovery for wrongful death 
in territorial water caused by un­
seaworthiness. It is thus difficul 
to find much if any reliance that 
would justify the continuation of a 
legal anomaly which would deny a 
humane and justifiable remeay.

Stare decisis does not mean blind 
adherence to irrational doctrine. 
The very point of stare decisis is to 
produce a sense of security in the
working of the legal system oy re-

I cannot agree that Congress in 
enacting the Jones Act, designed to 
provide liberal recovery for injured 
workers,” intended to create the 
anomaly perpetuated by the Court s 
decision. I would reverse and tree 
the lower federal courts to grant 
relief in these cases—-relief which 
many of them have indicated is just 
and proper “ in terms of general 
principles,” Fall v Esso Standard 
Oil Co., supra, at 417, and which 
they gladly would accord but for the 
unfortunate and unnecessary com­
pulsion of Lindgren.

*[379 US 167]
♦Since petitioner claims that Ohio 

law allows recovery for a wrongful 
death caused by unseaworthmess, 
nothing in either the majority or 
minority opinion in The Tungus v 
Skovgaard, supra, would preclude 
recovery. Only the Lindgren dictum 
stands in the way. I would reject 
this dictum and reverse.

Mr. Justice Harlan, dissenting.
I think that due regard for the 

“ finality”  rule governing the appel­
late jurisdiction of the courts o 
appeals requires that the judgment 
below be vacated and the case re­
manded to the Court of Appeals with 
instructions to dismiss the appea 
because the decision of the District 
Court was not a “ final” one, and 
hence not reviewable by the Court 
of Appeals at this stage of the liti­
gation.

Petitioner sought to recover in

.■ ••  • - . . . .  .

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212 U. S. SUPREME COURT REPORTS 13 Led 2d

this action upon two theories: neg­
ligence under the Jones Act and 
unseaworthiness under the general 
maritime law. The District Court 
dismissed the unseaworthiness claim 
in the complaint, and petitioner ap­
pealed. Although petitioner seemed 
to recognize that the order was not 
appealable,1 the Court of Appeals, 
overruling respondent’s motion to 
dismiss for lack of jurisdiction, af­
firmed on the merits and this Court 
granted certiorari over respondent’s 
showing that the Court of Appeals 
should not have entertained the ap­
peal. The Court substantially af­
firms the judgment of the Court of 
Appeals and the parties are re­
manded to a trial on the merits, but 
only after they have incurred need­
less delay and expense in conse­
quence of the loose practices sanc­
tioned by the Court of Appeals and 
in turn by this Court. This case 
thus presents a striking example of 
the vice inherent in a system which 

*[379 US 168] _
*permits piecemeal litigation of the 
issues in a lawsuit, a vice which 
Congress in 28 USC § 1291 intended 
to avoid by limiting appeals to the 
courts of appeals2 only from “ final 
decisions” of the district courts, 
with exceptions not here relevant.3

1. After the appeal was filed, petitioner 
unsuccessfully sought a writ of mandamus 
to compel the District Court to certify its 
order to the Court of Appeals under 28 
USC § 1292(b), ante, pp. 202, 203.

2. The jurisdictional defect in this case 
arises only from the lack of finality of 
the District Court’s order. In United 
States v General Motors Corp., 323 US 373, 
89 L ed 311, 65 S Ct 357, 156 ALR 390; 
Larson v Domestic & Foreign Commerce 
Corp. 337 US 682, 93 L ed 1628, 69 S Ct 
1457; and Land v Dollar, 330 US 731, 91
L ed 1209, 67 S Ct 1009, all cited in the 
majority opinion, ante, pp. 203, 204, the 
District Court had entered a final judg­
ment, but the Court of Appeals reversed
and remanded the case for further proceed­
ings. Thus the finality question before this
Court was simply whether it should re­
view a nonfinal order of the Court of

Manifestly the decision of the Dis­
trict Court reviewed by the Court 
of Appeals lacked the essential qual­
ity of finality; it involved but in­
terstitial rulings in an action not 
yet tried. The justifications given 
by the Court for tolerating the lower 
court’s departure from the require­
ments of § 1291 are, with all respect, 
unsatisfactory.

[9 ] 1. The Court relies on the dis­
cretionary right of a district court 
to certify an interlocutory order to 
the court of appeals under § 1292 (b) 
when the “ order involves a control­
ling question of law',” but the Dis­
trict Court in its discretion—and 
rightly it turns out—did not make 
such a certification in this case,4 * 

*[379 US 169]
and the Court of Appeals, *equally 
correctly in my judgment, refused 
to order it to do so. The fact that 
Congress has provided some flexi­
bility in the final judgment rule 
hardly lends support to the Court’s 
attempt to obviate jurisdictional re­
strictions whenever a court of ap­
peals erroneously entertains a non­
appealable order and hardship may 
result if the substantive questions 
are not then decided here.6

[TO] 2. Cohen v Beneficial Indus-

Appeals, which of course the Court clearly 
has authority to do under 28 USC § 1254 
(1) (1958 ed.).

3. See 28 USC § 1292 (1958 ed).
[9 ] 4. The purpose of § 1292(b) was to 

permit a district judge, in his discretion, 
to obtain immediate review of an order 
which might control the further conduct 
of the case and which normally involves 
an unsettled question of law. Cf. 28 USC 
§ 1254(3) (1958 ed.). In this case the 
District Court's ruling was controlled by 
Lindgren v United States, 281 US 38, 74 
L ed 686, 50 S Ct 207, and the validity of 
that ruling could only be tested by having 
certiorari issue from this Court. In that 
posture, I think the District Court was 
quite right in not wanting to delay the 
litigation on the chance that this Court 
would re-evaluate its decision in-Lindgren.

5. Compare Sehlagenhauf v Holder, 379



• ■ • • • • a  ■

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A vy &J&**

Vi :■■;.■ i ' " • ■ •-■ ■; i-i ’ ■ , - ; ■ ■■
■

f

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i

GILLESPIE v UNITED STATES STEEL COSP. 213
379 US 148, 13 L ed 2d 199, 85 S Ct 308 

trial Loan Corp. 337 US 541, S3 that1 “ it seems clear now that the 
L ed 1528, 69 S Ct 1221, does not case is before us that the eventual 
support a different result. As the costs, as all the parties recognize, 
Court in that case stated, § 1291 will certainly be less if we now pass

on the questions presented here 
rather than send the case back with

does not permit appeals from de­
cisions “where they are but steps 
towards final judgment in which 
they will merge . . . [and are
not] claims of right separable from, 
and collateral to, rights asserted in 
the action, too important to be 
denied review and too independent 
of the cause itself to require that 
appellate consideration be deferred 
until the whole case is adjudicated.” 
337 US, at 546, 93 L ed at 1536. 
It is clear in this case that had 
petitioner proceeded to trial and won 
on her Jones Act claim, her asserted 
cause of action for unseaworthiness 
would have merged in the judgment. 
See, Baltimore S.S. Co. v Phillips, 
274 US 316, 71 L ed 1069, 47 S Ct 
600. Conversely, her claim would 
have been preserved for appeal had 
she lost on her Jones Act claim. 
Surely the assertion that petitioner 
is entitled to submit her unseaworth­
iness theory to the jury is not col­
lateral to rights asserted in her ac­
tion, so as to entitle her to an 
appeal before trial.

*[379 US 170]
*3. Finally, the Court’s suggestion

those issues undecided,” ante, p. 203, 
furnishes no excuse for avoidance 
of the finality rule. Essentially such 
a position would justify review here 
of any case decided by a court of 
appeals whenever this Court, as it 
did in this instance, erroneously 
grants certiorari and permits coun­
sel to brief and argue the case on 
the merits. That, I believe, is nei­
ther good law nor sound judicial 
administration.* 6

I would vacate the judgment of 
the Court of Appeals and remand the 
case to that court with directions to 
dismiss petitioner’s appeal for lack 
of jurisdiction.

Memorandum of Mr. Justice 
Stewart.

While I agree with Mr. Justice 
Harlan that this case is not properly 
here, the Court holds otherwise and 
decides the issues presented on their 
merits. As to those issues, I join 
the opinion of the Court.

US 104, at 110, 13 L ed 2d 152, at 159, 85 S 
Ct 234. The presence of the brother and 
sisters, ante, p. 203 of the Court’s opinion, 
cannot somehow serve to make the Dis­
trict Court order final. They were parties 
only to the mandamus proceeding, Court’s 
opinion ante, pp. 202, 203, n. 7, their claims 
were not severable from petitioner’s, 
id., p. 203, and the merit of their claims 
likewise depended on a holding that Lind- 
gren was overruled, see n. 4, supra. I can 
see no “ injustice” resulting tG the brother

and sisters by delaying review of the 
order until after final judgment which is 
not also present with respect to petitioner.

6. Understandably counsel for the re­
spondent, as he explained in oral argu­
ment, did not brief the finality point fol­
lowing the grant of certiorari; he assumed 
that the granting of the petition, despite 
his having raised the matter in his re­
sponse thereto, indicated that the Court 
had no interest in the question.

I h

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t | «
. . *

I
EDITOR’S NOTE

An annotation on “ Recovery, in action under Federal Employers’ Liability Act or 
Jones Act for death of employee, of damages for deceased’s pain and suffering between 
injury and death— federal eases" appears p. 1013, infra.

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