
    CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
    Robert L. Johnson, Executor, etc., et al. v. George S. Walsh and A. Jackson Mason v. Folly Creek Corp.
    January 21, 1997
    Case No. (Law) CL96-2077
   By Judge Jerome B. Friedman

This case arises out of a collision between two motorboats on Folly Creek in Accomack County, Virginia, on September 9,1993. One of the vessels was operated by the defendant George S. Walsh and titled to Folly Creek Corporation. The plaintiffs wife and daughter were on that boat and were killed in the collision. The second vessel was a motorboat operated by the defendant, A. Jackson Mason.

Plaintiff filed a motion for judgment against these defendants alleging that defendants operated their boats in darkness, without lights, at excessive speeds, and failed to maintain proper lookout. A third-party motion for judgment was filed by defendant, A. Jackson Mason, against Folly Creek Corporation alleging that if Mason is liable to plaintiff, then Folly Creek Corporation is liable to Mason by way of indemnity or contribution. Defendants have filed a special plea of the statute of limitations.

Defendants argue that this action is barred by the two-year Virginia statute of limitations for wrongful death actions. Plaintiff maintains that the Virginia statute of limitations does not apply because this is a suit for recovery for death arising out of a maritime tort and that the three-year federal maritime statute of limitations applies. The parties do not dispute that if the two-year statute of limitations applies, this action is time barred; but if the three-year statute of limitations applies, it is not.

The question presented is whether or not there is a substantive federal cause of action that requires application of federal procedure. If there is no federal cause of action, the only remedy for the plaintiff is found in the Virginia Wrongful Death Act. If the only cause of action falls under the Virginia Wrongful Death Act, the court must apply the applicable state statute of limitations.

The arguments of both plaintiff and defendants center on two United States Supreme Court cases, Moragne v. State Marine Lines, 398 U.S. 375 (1970), and Yamaha Motor Corp. v. Calhoun, 116 S. Ct. 619 (1996). Moragne held that an action lies under general maritime law for death caused by violation of maritime duties. Yamaha held that state remedies have not been preempted by the federal maritime wrongful death action recognized in Moragne.

Because the holding in Moragne referred to “maritime duties,” there is a question as to whether Moragne recognized a cause of action under general maritime law for death caused by negligence, or whether Moragne limited the cause of action to death caused by unseaworthiness. Several jurisdictions have held that the Supreme Court intended to create a wide-reaching common law wrongful death action in Moragne that included seafarers and non-seafarers alike and provided a cause of action grounded in unseaworthiness and negligence. See Choat v. Kawasaki Motors, 675 So. 2d 879 (Ala. 1996); Neil v. McGinnis, 716 F. Supp. 996 (E.D. Ky. 1989); Garner v. Dravo Basic Materials, 768 F. Supp. 192 (S.D. W. Va. 1991); and Cantore v. Blue Lagoon Water Sports, Inc., 799 F. Supp. 1151 (S.D. Fla. 1992).

The Supreme Court of Virginia, however, has reached a different conclusion. In Brown v. Brown, 226 Va. 320 (1983), the Virginia Supreme Court concluded that the Moragne remedy only applies to unseaworthiness. According to the Court, there is no federal cause of action for the death of non-seamen in state territorial waters occasioned by negligence. See also Minnick v. United States, 1991 A.M.C. 1284 (E.D. Va. 1990).

The recent United States Supreme Court case, Yamaha Motor Corp. v. Calhoun, 116 S. Ct. 619 (1996), provides yet another wrinkle. In footnote seven, Justice Ginsburg noted:

If Moragne’s wrongful death action did not extend to non-seafarers like Natalie, one could hardly argue that Moragne displaced state law remedies the Calhouns seek. Lower courts have held that Moragne’s wrongful death action extends to non-seafarers. [Cites omitted.] We assume, for the purposes of this decision, the correctness of that position. Similarly, as in prior encounters, we assume without deciding that Moragne also provides a survival action. [Citation omitted.] The question we confront is not what Moragne added to the remedial arsenal in maritime cases, but what, if anything, it removed from admiralty’s stock. [Emphasis added.]

Yamaha at n. 7, 116 S. Ct. at 626.

Plaintiff urges this court to interpret footnote seven of Yamaha as an implicit affirmation of a common law maritime wrongful death action for non-seafarers. This court, however, reads Justice Ginsburg’s footnote as a specific reservation of the issue. It is not a “ruling” that can be found to overrule the Virginia Supreme Court in Brown.

In sum, this court has before it the 1970 Moragne decision that is susceptible to a variety of interpretations, subsequent federal and state court decisions interpreting Moragne as creating a broad remedy, the Virginia Supreme Court decision directly on point rejecting this interpretation, and the subsequent United States Supreme Court decision in Yamaha specifically reserving the question. Plaintiff urges the court to, in effect, rule that if the Virginia Supreme Court were presented with this question today, it would decide differently than it did in Brown. This court cannot do so. As persuasive as the reasoning may be from other jurisdictions, Brown remains the law in Virginia.

Because the Virginia Supreme Court has held that there is no federal cause of action for the death of non-seamen in state territorial waters occasioned by negligence, the plaintiffs only remedy is Virginia law. The plaintiff did not file his motion for judgment within the two-year statute of limitations for wrongful death, thus his claim is barred.

The special plea of the statute of limitation is sustained, and the motion for judgment is dismissed. The third party motion for judgment, being derivative of this claim, is also dismissed.  