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March 19, 1999


The opinion of the court was delivered by: Pollak, District Judge.


This case arises from the tragic death, in the offshore waters of Puerto Rico, of Natalie Calhoun, the minor daughter of Lucien B. Calhoun and Robin L. Calhoun. In the summer of 1989, Natalie, twelve, who lived with her parents in Pennsylvania, went on a vacation trip to Puerto Rico with a friend and her friend's parents. During their stay at a resort hotel, Natalie rented a "Wavejammer" jet ski. The Wavejammer hit a vessel at anchor near the beach. Natalie was killed.

Invoking Pennsylvania law, Natalie's parents brought a combined wrongful death and survival action in this court against Yamaha Motor Company, Ltd., a Japanese corporation, which is the manufacturer of Wavejammer jet skis, and Yamaha Motor Corporation, U.S.A., a California corporation, which is the American distributor of Wavejammers. (The defendants are hereinafter collectively referred to as "Yamaha"). The complaint alleged defects in the Wavejammer, and attributed liability to Yamaha on the basis of negligence, strict liability, and breach of implied warranties of merchantability and fitness.

Plaintiffs contended that, since the parties were of diverse citizenship, the suit should be treated as a conventional diversity action, to be tried under Pennsylvania law in conformity with the requirements of the Erie doctrine. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Klaxon v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Yamaha contended that, since the suit arose from an accident occurring in the territorial waters of the United States, the suit should, notwithstanding that Natalie was neither a seaman nor a longshoreman (i.e., notwithstanding that she was not a "seafarer"), be regarded as embraced by this court's admiralty jurisdiction. More particularly, Yamaha contended that the suit should, pursuant to Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), be treated as a federal maritime claim. I concluded that Yamaha was correct in arguing that the Calhouns' suit sounded not in diversity but in admiralty. Pursuant to that jurisdictional ruling, I undertook to fashion the cognizable damages claims in conformity with what I determined to be appropriate and uniform federal maritime standards. Specifically, I determined that — contrary to Yamaha's view — the Calhouns could undertake to sue for loss of Natalie's society, but — contrary to the Calhouns' view — they could not sue for Natalie's lost future earnings or for punitive damages. 1993 WL 216238, 1993 U.S. Dist. LEXIS 8267 (E.D.Pa. 1993). At the instance of the parties, these rulings were certified for interlocutory review, pursuant to 28 U.S.C. § 1292(b).

The Court of Appeals, in a detailed and closely reasoned opinion, reversed, 40 F.3d 622 (3d Cir. 1994). Concluding that this court had misconstrued Moragne and other pertinent Supreme Court decisions in holding that a uniform federal remedial regime was intended to govern litigation arising out of allegedly tortious deaths of nonseafarers in territorial waters, the Court of Appeals ruled that state remedial law was to govern the Calhouns' suit against Yamaha. However, the Court of Appeals left it to this court to determine, in the first instance, the choice-of-law question of which jurisdiction's — i.e., Pennsylvania's or Puerto Rico's — remedial regime should apply.

The Supreme Court, on certiorari, affirmed in a unanimous opinion. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). After reviewing its own major cases, including Moragne, and after careful analysis of the interplay between its cases and three major federal statutes — the Death on the High Seas Act, 46 U.S.C. § 761 et seq.; the Jones Act, 46 U.S.C. § 688 et seq.; and the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. — the Court ruled that "[t]aking into account what Congress sought to achieve, we preserve the application of state statutes to deaths within territorial waters." Id. at 216, 116 S.Ct. 619. Then, said the Court, in the final paragraphs of the opinion, "[f]or the reasons stated, we hold that the damages available for the jet ski death of Natalie Calhoun are properly governed by state law." Id.

The Court, in the opinion's closing footnote, pointed out that "[t]he Third Circuit left for initial consideration by the District Court whether Pennsylvania's wrongful-death remedies or Puerto Rico's apply." Id. at 216 n. 14, 116 S.Ct. 619.

The opinion's closing footnote also identified a related question whose disposition the Supreme Court — like the Court of Appeals — felt could be deferred (id.):

  The Court of Appeals also left open, as do we, the
  source — federal or state — of the standards
  governing liability, as distinguished from the rules
  on remedies. We thus reserve for another day
  reconciliation of the maritime personal injury
  decisions that rejected state substantive liability
  standards, and the maritime wrongful-death cases in
  which state law has held sway. Compare Kermarec,
  358 U.S., at 628 [, 79 S.Ct. 406] (personal injury);
  Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409[, 74
  S.Ct. 202, 98 L.Ed. 143] (1953) (same), with Hess v.
  United States, 361 U.S. 314, 319[, 80 S.Ct. 341, 4

  L.Ed.2d 305] (1960) (wrongful death); The Tungus v.
  Skovgaard, 358 U.S. 588, 592-594[, 79 S.Ct. 503, 3
  L.Ed.2d 524] (1959) (same).


As the foregoing recital explains, two questions were remitted to this court by the Court of Appeals and the Supreme Court. The first question is which jurisdiction's remedial regime — that prescribed by the law of remedies of Puerto Rico or that prescribed by the law of remedies of Pennsylvania — frames the damages claims advanced by the Calhouns. The second question is whether the source of the Calhouns' substantive claims is federal maritime law or state law. If the second question yields the answer that state substantive law governs, a further question is presented: Is the applicable substantive law that of Pennsylvania (the home jurisdiction of Natalie Calhoun and of her parents, and the jurisdiction in which this litigation is being conducted), or that of Puerto Rico (the jurisdiction in which Natalie's tragic death occurred).*fn1

The first of these questions was addressed by this court last fall. After briefing and argument I announced a provisional ruling — "provisional" in the sense that it was not then embodied in an order. See Transcript of Oral Argument, Sept. 23, 1998. At a subsequent hearing a week later I stated that, after giving counsel the opportunity to file supplemental briefs, I would (1) reconsider my provisional ruling (a ruling which, as I explain below, was at odds with the position of the Calhouns and with the position of Yamaha) on the question of remedies and (2) rule on the question whether the Calhouns' claims are substantively rooted in federal maritime law or state law. Further, I expressed agreement with the joint view of the parties that my rulings on these two questions (whatever those rulings turned out to be) should be certified to the Court of Appeals pursuant to 28 U.S.C. § 1292(b).


My provisional decision on the question of the applicability of Pennsylvania's or Puerto Rico's remedial regime commenced with a ruling that the question was not one to be decided, Klaxon-wise, by reference to which jurisdiction's remedial provisions would be applied by a Pennsylvania Court of Common Pleas invoking principles of Pennsylvania conflict of laws. Because this case is deemed an admiralty case, not a diversity case, the question of whose remedial regime should be applied was, in my view, a question of federal choice-of-law law, not of state choice-of-law law. It seemed to me that for this court to be guided by how a Pennsylvania tort case involving (a) cognate claims and (b) parties of similarly diverse citizenship would be handled by a Pennsylvania Court of Common Pleas would be an invitation to a species of disuniformity in the management of maritime death claims that the Supreme Court and the Court of Appeals could hardly have intended, since it would mean that, if a ...

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