a state law or federal maritime law. There is no discussion or citation to Dugas. Therefore, we hold that Higginbotham is limited to wrongful death actions following a death on the high seas, and Dugas remains the law of the Circuit.
(29) There is a separate basis for our conclusion that an administrator is not barred from pursuing a survival action, as well as a wrongful death action, following a death on the high seas.
(30) The starting point for our analysis is the decision of Moragne v. States Marine Lines, Inc., 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970). Moragne establishes that a cause of action exists under general maritime law for death caused by violation of maritime duties. Moragne overruled The Harrisburg, 119 U.S. 199, 30 L. Ed. 358, 7 S. Ct. 140 (1886) which had held that general maritime law does not afford a cause of action for wrongful death, in the absence of a federal or state statute granting such relief. Consequently, during the post Harrisburg era, federal admiralty courts routinely applied state wrongful death statutes to provide relief. Moragne therefore discarded such an approach. The application of maritime law in general, as opposed to a particular state statute, is evidenced by the Supreme Court's review of English common law, federal statutes, and all the relevant state statutes in Moragne. Id. at 381-383 and 390. Additionally, the Court's subsequent decision in Sealand Services, Inc. v. Gaudet, 414 U.S. 573, 39 L. Ed. 2d 9, 94 S. Ct. 806 (1974), entailed a general discussion of wrongful death statutes as compared to specific state statutes. Id. at 575-583, n.2 and 5-9. Thus, at least one court and commentator have interpreted Moragne and Gaudet as precluding the application of the statute of a particular state, as opposed to applying general maritime law. See Matter of S/S Helena, 529 F.2d 744 (5th Cir. 1976); Benedict on Admiralty, Volume 2, Supplement at page 69. Finally, neither Moragne nor Gaudet hold that a survival action does not exist under general maritime law.
(31) Although Dugas was decided after Moragne, Dugas neither acknowledged nor addressed the rationale of Moragne; namely, that general maritime law provides the remedy rather than the specific state statute. Indeed, one commentator has viewed Dugas as a pre- Moragne decision, since it applied a specific state survival statute, thus ignoring general maritime law. See Smith, A Maritime Survival Rededy: Is There Life After Higginbotham, 6 Maritime Lawyer 185 (1981).
(32) At this juncture, we must determine whether maritime law recognizes a survival action. We find the clear weight of authority teaches that survival actions are well-founded under general maritime law. See, e.g., Barbe v. Drummond, 507 F.2d 794, 799 (1st Cir. 1974); Spiller v. Thomas M. Lowe and Associates, Inc., 466 F.2d 903, 909 (8th Cir. 1972); Greene v. Vantage Steamship Corporation, 466 F.2d 159, 165-167 (4th Cir. 1972); Dennis v. Central Gulf Steamship Corporation, 453 F.2d 137, 140, 141 (5th Cir. 1972).
(33) Defendants assert that DOHSA is the exclusive remedy for deaths occurring on the high seas, thereby precluding a general maritime claim for either a wrongful death or survival action. Defendants cite Mobil Oil Corporation v. Higginbotham, 436 U.S. 618, 56 L. Ed. 2d 581, 98 S. Ct. 2010 (1978). There, the plaintiffs sought to recover damages for loss of society predicated upon a wrongful death claim under general maritime law. The Supreme Court held that Congress spoke directly to the issue of damages for loss of society when it limited recovery to pecuniary loss under DOHSA. Accordingly, DOHSA pre-empted recovery for damages for loss of society, based upon a general maritime law claim. The issue turns, therefore, on whether Congress spoke directly to the issue of a survival action within the parameters of DOHSA. We find that Congress did not.
(34) First, it must be emphasized that a wrongful death action and a survival action are two distinct claims for relief in death cases. A wrongful death action permits beneficiaries of a decedent to recover for their losses resulting from the death. A survival action is brought on behalf of the decedent's estate for any claims the decedent would have had but for the death. American courts have painstakingly distinguished the two causes of action for many years. A case in point is Gaudet at page 575, n.2.
(35) The legislative history of DOHSA is also relevant. It is clear that Congress understood the distinction between the two types of actions and did not excuse survival actions under DOHSA. Representative Volstead, who sponsored the bill, stated as the purpose of the bill as follows:
The object of this bill is to give a cause of action in case of death resulting from negligence or wrongful act occurring on the high seas. Nearly all countries have modified the old rule which did not allow relief in the case of death under such circumstances. Under what is known as Lord Campbell's Act, England, many years ago, authorized recovery in such cases. France, Germany, and other European countries now followed this more humane and enlightened policy and allow dependent parties to recover in case of death of their near relatives upon the high seas.
Congressional Record, 66th Congress, Volume 59, page 4482. These comments deal with dependents, beneficiaries, and the Lord Campbell's Act. Lord Campbell's Act was a wrongful death statute not a survival statute. See Gaudet at page 579. Additionally, survival actions do not involve dependents and beneficiaries, as do wrongful death actions. Not only did Representative Volstead discuss the bill in terms of beneficiaries and dependents, but other representatives did likewise. See Mr. Sonders, page 4485, Congressional Record, 66th Congress, Volume 59.
(36) Notwithstanding this lack of reference to survival actions in the legislative history, defendants here assert that the wording of the statute directly addresses survival actions at Section 765. First, it must be emphasized the statute is devoid of any reference to the words "survival," "survival action," or "survival remedy." Section 765 reads as follows:
If a person dies as the result of such wrongful act, neglect, or default as is mentioned in Section 761 of this title during the pendency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, neglect, or default, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in Section 762 of this title.