On the issue of damages, Jamaica has almost no interest in having its law applied. That is so because neither party to the action is a resident or citizen of that country.
Defendant contends that Blakesley controls the issue of applicable damage law. However, that case is distinguishable from the present case. In Blakesley, the Third Circuit held that Texas law, not Pennsylvania law, should control the issue of damages in a case where a Pennsylvania resident brought suit against a Texas physician for medical malpractice occurring in Texas. However, crucial to that decision was the holding of the Pennsylvania Supreme Court in Cipolla, which stated, "Inhabitants of a state should not be put in jeopardy of liability exceeding that created by their state's laws just because a visitor from a state offering higher protection decides to visit there." Blakesley, 789 F.2d at 243, quoting, Cipolla, 267 A.2d at 856-57. Since Outboard Marine is not an inhabitant of Jamaica, it cannot claim the protection of Jamaican law under Cipolla.
The interests of Jamaica and Pennsylvania in having their law applied to the issue of damages is best discussed in Griffith. "The state in which the injury occurred, as such, has relatively little interest in the measure of damages to be recovered unless it can be said with reasonable certainty that defendant acted in reliance on that state's rule." Griffith, 203 A.2d at 806. Outboard Marine Corporation did not rely on Jamaican law in this case; indeed, the motor may not have even been sold in Jamaica.
Pennsylvania's interest on the issue of damages is great. Pennsylvania was the domicile of the decedent and it is the domicile of the plaintiff; as such it is "vitally concerned with the administration of the decedent's estate and the well-being of the surviving dependents, to the extent of granting full recovery. . . ." Id. at 807. Since Pennsylvania's interest is greatest, Pennsylvania law shall be applied to all damage issues in this case.
Plaintiff also raises the issue of the applicability of the Death on the High Seas Act to this case. 46 U.S.C. § 761 et seq. If the Death on the High Seas Act applies, it will be the plaintiff's exclusive remedy. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S. Ct. 2485, 2494, 91 L. Ed. 2d 174 (1986).
The Death on the High Seas Act applies to accidents occurring within foreign territorial waters. Jennings v. Boeing Co., 660 F. Supp. 796, 803 (E.D. Pa. 1987); but see Roberts v. United States, 498 F.2d 520, 524 (9th Cir. 1974). Therefore, the Act will control this case if this Court has subject matter jurisdiction in admiralty pursuant to 28 U.S.C. § 1333.
An accident invokes admiralty jurisdiction if two conditions are met: First, the injury must have occurred on navigable waters
; and second, the wrong must bear a significant relationship to traditional maritime activity. Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972). Neither party disputes that the accident in this case occurred on navigable waters. The issue the Court must decide is whether the alleged wrong committed by the defendant has a sufficient nexus to or with traditional maritime activities to invoke admiralty jurisdiction. I hold that it does not.
To determine whether an alleged tort bears a significant relationship to traditional maritime activities, courts in the Third Circuit are directed to examine four factors: (1) the function and role of the parties; (2) the types of vehicles and instrumentalities involved; (3) the causation and nature of the injury suffered; and (4) traditional concepts of the role of maritime law. Eagle-Picher Industries, Inc. v. United States, 846 F.2d 888, 896 (3d Cir. 1988).
An analysis of these factors reveals that the alleged tort in this case does not bear a significant relationship to traditional maritime activities. First, the function and roles of the parties only minimally relate to traditional maritime activities.
I reach the same conclusion after examining the second factor, types of vehicles and instrumentalities involved.
The third factor, causation and the type of injury, suggests that admiralty jurisdiction is not proper. As the plaintiff notes, a collision between a pleasure boat and a swimmer may provide a sufficient nexus with traditional maritime activities when navigational error may exist. "An allegation of navigational error appears to be the key to admiralty jurisdiction when dealing with small pleasure craft." Souther v. Thompson, 754 F.2d 151, 153 (4th Cir. 1985); see also, In re Paradise Holdings, Inc., 795 F.2d 756 (9th Cir. 1986); Medina v. Perez, 733 F.2d 170 (1st Cir. 1984). The plaintiff alleges no navigational error on the part of the defendant. Rather, the wrong alleged is that the defendant failed to design and equip the outboard motors it manufactures and sells with propeller guards.
The last factor the Court must examine is the traditional concepts of the role of maritime law. In Executive Jet, Justice Stewart defined these concepts when he wrote: "The law of the sea knows how to determine whether a particular ship is seaworthy, and it knows the nature of maintenance and cure. It is concerned with maritime liens, the general average, captures and prizes, limitation of liability, cargo damage, and claims for salvage." Executive Jet, 409 U.S. at 270. The issues in this case do not encompass any of the concepts outlined by Justice Stewart.
Because the nexus between the alleged tort and traditional maritime activity is insufficient, the admiralty jurisdiction of this Court will not be invoked, and the Death on the High Seas Act will not be applied.
An appropriate Order follows.
AND NOW, to wit, this 23rd day of June, 1989, upon consideration of the Motion of the defendant, Outboard Marine Corporation ("Outboard Marine"), for an Order Holding that the Substantive Law of the Country of Jamaica Should Apply to the Issues of Liability and Damages, and the response of the plaintiff, Howard Kunreuther, and good cause appearing, IT IS ORDERED that:
1. The laws of Pennsylvania shall be applied to all issues regarding damages and causation; and,
2. The laws of Jamaica shall apply to all other issues regarding liability.