Supreme Court of California Justia
Docket No. S110301
Donaldson v. National Marine

Filed 3/14/05


Plaintiff and Respondent,
Ct.App. 1/1
) A092876
Defendant and Appellant.
Super. Ct. No. 998145

In this case, involving a maritime injury occurring beyond state borders, we
consider whether the trial court had jurisdiction to entertain a wrongful death
claim under the federal Jones Act (46 U.S.C. Appen. § 688 et seq.), legislation that
provides remedies for injury or death to seamen occurring in the course of their
employment. We conclude that indeed our state courts possess concurrent
jurisdiction with federal courts over such Jones Act claims, and that the trial court
properly exercised such jurisdiction in this case.
The following uncontested facts are taken largely from the Court of
Appeal’s decision in this case. National Marine, Inc. (defendant) appeals from a
judgment, entered after a jury trial, awarding Richard Donaldson (plaintiff)
$1,616,400 on an action for the wrongful death of plaintiff’s adoptive father, a
Tennessee resident, Albert Pavolini (decedent). Decedent spent his adult working
life on or around boats and ships. He served in the United States Navy from 1942

until 1964. He worked for Military Sea Transport from 1966 to 1967; he worked
for National Marine (then Cardinal Carriers) from 1967 to 1981; and he worked
for other private shipping companies from 1980 until he retired a few years later.
Decedent’s duties both for the Navy and for the private shipping companies
included installing or repairing insulation around pipes and waterlines, and he was
exposed to asbestos both during his Naval career and later, while working for the
private companies.
Decedent also began smoking at age 16 and smoked until 1984. In May
1997, he was diagnosed with lung cancer. He died in 1998 of complications
resulting from the cancer. These proceedings began before decedent’s death,
when he filed suit against multiple defendants, including several tobacco
companies, on the theory that his lung cancer was caused by a combination of his
use of tobacco and his exposure to asbestos during his naval career and his
employment with the private shipping companies. Although it is unclear from the
record, it appears that the named defendants originally included companies that
manufactured or supplied products containing asbestos to the Navy or to the
private shipping companies. In any event, the parties ultimately stipulated to
orders severing the tobacco defendants from the asbestos defendants for separate
trial, and we are not concerned with those proceedings here.
On September 25, 1999, plaintiff filed suit against defendant as the
successor to Cardinal Carriers, seeking damages for decedent’s death under the
Jones Act, and under the maritime doctrine of unseaworthiness. Defendant moved
to dismiss on the theory that the state court lacked subject matter jurisdiction over
plaintiff’s maritime claims because decedent’s work for Cardinal Carriers took
place outside of California’s territorial waters. The motion was denied, and the
matter went to trial.

At trial, defendant did not dispute that decedent died of lung cancer. It
defended on the theory that the cancer was unrelated to his exposure to asbestos,
and resulted from his history of smoking. Defendant also theorized that even if
exposure to asbestos was a factor in decedent’s lung cancer, tobacco was a greater
factor. Finally, it argued that in any event decedent’s exposure to asbestos during
his naval career was far greater than his exposure to asbestos while working for
Cardinal Carriers.
The jury rejected plaintiff’s unseaworthiness claims, and they are not before
us. It found, however, that defendant was negligent under the Jones Act, and that
its negligence was a cause of decedent’s death. The jury further fixed the damages
at $1,796,000, and apportioned fault between decedent, defendant, the Navy and
the tobacco companies, at 10 percent for decedent, and 30 percent each for
defendant, the Navy and the tobacco companies.
Defendant appealed from the judgment. The trial court later denied
defendant’s motions for a new trial and for judgment notwithstanding the verdict,
but granted plaintiff’s motion to amend the judgment to make defendant liable for
90 percent of the jury’s verdict. The court found that the Navy and the tobacco
companies were immune from these claims, and that defendant, accordingly, was
liable for the full amount of damages, less the 10 percent attributable to decedent’s
fault. The court therefore corrected its judgment to increase the award against
defendant to $1,616,400. Defendant filed a second appeal from the court’s order,
and those appeals were consolidated.
The Court of Appeal ruled in favor of plaintiff on the jurisdictional issue,
concluding that “California’s courts have subject matter jurisdiction over deaths
occurring outside of the state’s territorial limits, although they may be required to
apply the law of the jurisdiction where the wrong occurred. For purposes of this
case, that law is the Jones Act. As the Jones Act recognizes a claim for wrongful

death, the superior court was entitled to hear [plaintiff’s] claims.” We granted
review limited to this jurisdictional issue and will affirm the judgment of the Court
of Appeal.
1. May California Courts Properly Exercise Concurrent Jurisdiction
Over Jones Act Cases?
Initially we consider whether California state courts properly may exercise
concurrent jurisdiction over Jones Act cases. The Jones Act was passed in 1920 as
the Merchant Marine Act to extend the protections of the Federal Employers’
Liability Act (FELA, 45 USC § 51 et seq.) to seamen. The act provides seamen or
their survivors a remedy against employers for negligence resulting in injury or
death in the course of employment. (See 46 U.S.C. Appen. § 688.) Companion
legislation, the Death on High Seas Act (DOHSA, 46 U.S.C. Appen. § 761), was
enacted, also in 1920, to provide the representatives of deceased seamen whose
deaths occurred more than three miles from shore the right to sue in federal court
for wrongful death damages.
As defendant acknowledges, the federal courts have determined that both
the Jones Act and DOHSA are governed by separate “saving to suitors” clauses
that preserve concurrent state court jurisdiction over claims coming under these
statutes. (See, e.g., Offshore Logistics, Inc. v. Tallentire (1986) 477 U.S. 207,
221-223 (Offshore Logistics); Engel v. Davenport (1926) 271 U.S. 33, 37 (Engel).)
With respect to actions brought under the Jones Act, although a statute vests
federal courts with “exclusive” admiralty or maritime jurisdiction, that same
statute “sav[es] to suitors in all cases all other remedies to which they are
otherwise entitled.” (28 U.S.C. § 1333(1).) Additionally, FELA, which is
incorporated by reference into the Jones Act, includes the provision that “[t]he
jurisdiction of the courts of the United States under this act shall be concurrent

with that of the courts of the several States.” (45 U.S.C. § 56, italics added.) The
Engel court concluded that, by reason of the predecessors to the foregoing
statutory provisions, maritime law rights of action may be enforced in either state
or federal courts. (Engel, supra, 271 U.S. at pp. 37-38.)
To support its view that California lacks jurisdiction over Jones Act cases,
defendant relies on a DOHSA case, Chromy v. Lawrance (1991) 233 Cal.App.3d
1521 (Chromy), which held that federal courts have exclusive jurisdiction over
DOHSA wrongful death actions arising outside of territorial waters in the absence
of enabling state statutory provisions. Chromy reasoned that suits under DOHSA
may only be tried in state courts whose states have wrongful death or survivor
statutes expressly applicable to death on the high seas. Chromy relied primarily
on the wording of DOHSA’s own saving clause, preserving state rights of action
or remedies for death under “provisions of any State statute.” (46 U.S.C. Appen.
§ 767.) Because California’s wrongful death statute (former Code Civ. Proc,
§ 377, now § 377.60 et seq.) was silent regarding its extraterritorial effect, Chromy
held that the plaintiff’s suit must be dismissed. (Chromy, 233 Cal.App.3d at pp.
1526-1527; see also Gordon v. Reynolds (1960) 187 Cal.App.2d 472, 477; Hughes
v. Unitech Aircraft Service, Inc. (Fla.Dist.Ct.App. 1995) 662 So.2d 999, 1001.)
We find Chromy and other DOHSA cases to be of little value here. First, as
the Court of Appeal in this case noted, Chromy’s analysis has been seriously
questioned by a more well-reasoned appellate decision holding that, in light of the
need for uniformity of remedy and to facilitate effective and just administration of
DOHSA’s remedies, state court jurisdiction to enforce federal DOHSA claims
does not depend on specific state statutory authority. (Garofalo v. Princess
Cruises, Inc. (2000) 85 Cal.App.4th 1060, 1082.) Second, Chromy, decided under
DOHSA, is inapposite here; DOHSA, with its own saving clause (46 U.S.C.
Appen. § 767), is not governed by the differently worded saving clause and

mandatory concurrent jurisdiction statute applicable in Jones Act/FELA cases (28
U.S.C. § 1333; 45 U.S.C. § 56).
Defendant’s primary position, adopting Chromy’s analysis discussed above,
is that “the ‘saving to suitors’ clause of the Judiciary Act of 1789 ‘saves’ only
those rights of action recognized by state law.” In other words, in defendant’s
view, a state may elect not to provide a forum for recovery under the Jones Act.
Defendant notes that in Offshore Logistics, the high court explained that
“Louisiana had legislative jurisdiction to extend its wrongful death statute to
remedy deaths on the high seas and that Louisiana in fact intended its statute to
have that effect.” (Offshore Logistics, supra, 477 U.S. at p. 211.) By contrast,
according to defendant, California has never expressed such a legislative intent.
Defendant observes that the right to sue for wrongful death is purely statutory, as
it did not exist at common law. (Justus v. Atchison (1977) 19 Cal.3d 564, 572;
Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438-1439.) Accordingly, the
right to sue for wrongful death is limited by the statutory provisions creating the
remedy. (Justus v. Atchison, supra, 19 Cal.3d at pp. 572, 577.)
But plaintiff is not suing for wrongful death under state law. He is seeking to
enforce a federal cause of action under the Jones act. As we have seen, the Jones
Act incorporates by reference a provision of FELA that “[t]he jurisdiction of the
courts of the United States under this act shall be concurrent with that of the
courts of the several States.” (45 U.S.C. § 56, italics added.) The high court cases
interpreting this provision make clear that federal supremacy principles prohibit
state courts of general jurisdiction from refusing to entertain suits under FELA
solely because suit is brought under federal law (McKnett v. St. Louis & San
Francisco R. Co. (1934) 292 U.S. 230, 233-234 (McKnett)) or because
enforcement of the federal right of action is deemed contrary to state policy or apt
to cause inconvenience and confusion because of differing state and federal

standards (Mondou v. New York, N.H. & H.R. Co. (1912) 223 U.S. 1, 57-58
(Mondou)). Thus, the high court has held that states must entertain suits timely
filed under the Jones Act despite state limitation statutes that might otherwise bar
suit. (Engel, supra, 271 U.S. at pp. 37-39.)
A more recent high court case, Howlett v. Rose (1990) 496 U.S. 356, 369-372
(Howlett), confirmed that generally when a statute confers concurrent jurisdiction
over a federal right of action, federal law becomes enforceable in state courts
regardless of contrary state policy. This follows because the federal Constitution’s
supremacy clause makes that law “the supreme Law of the Land” and as binding
on the citizens and courts as state laws. (Id. at p. 367.) As a consequence, the
high court explained, a state having jurisdiction over the parties may not refuse to
enforce a federal right in the absence of a valid excuse consistent with federal law.
(Id. at pp. 369-372, citing Mondou, supra, 223 U.S. at p. 57; and McKnett, supra,
292 U.S. at pp. 230, 233-234.) According to Howlett, a valid excuse for declining
jurisdiction might involve “a neutral rule of judicial administration,” such as a rule
permitting dismissal of claims between nonresidents, or application of a doctrine
such as forum non conveniens. (Howlett, supra, 496 U.S. at pp. 374-375.)
Defendant points to no such valid excuse that would permit California courts to
decline jurisdiction in Jones Act cases. (See also In re Chimenti (6th Cir. 1996) 79
F.3d 534, 537-538 [plaintiff seeking to enforce federal maritime law right of
action may proceed in state or federal court, and action is not subject to removal].)
Plaintiff observes that the California wrongful death statute contains no
provision limiting the right of action to deaths occurring within the state’s
territorial waters. (See Code Civ. Proc., § 377.60, et seq.) Plaintiff also notes the
broad conferral of jurisdiction in the state Constitution and statutes. (See Cal.
Const., art. VI, § 10 [except as otherwise provided, “superior courts have original
jurisdiction in all other causes”]; Code Civ. Proc., § 410.10 [“A court of this state

may exercise jurisdiction on any basis not inconsistent with the Constitution of
this state or of the United States”].) Indeed, plaintiff cites numerous cases in
which California courts have exercised such maritime or Jones Act jurisdiction.
(See, e.g., Gault v. Modern Continental/Roadway Construction Co., Inc. Joint
Venture (2002) 100 Cal.App.4th 991, 997; Hutchins v. Juneau Tanker Corp.
(1994) 28 Cal.App.4th 493, 495, 499; D’Aquisto v. Campbell Industries (1984)
162 Cal.App.3d 1208, 1212-1213; Baptiste v. Superior Court (1980) 106
Cal.App.3d 87, 94.)
For all the reasons expressed above, we see no valid California impediment
or “excuse” to preclude the exercise of state court jurisdiction in Jones Act cases.
2. Did California Courts Properly Exercise Concurrent Jurisdiction in
this Case?
Defendant also argues that, assuming California courts may exercise
concurrent jurisdiction to hear wrongful death claims under the Jones Act,
plaintiff’s suit should have nonetheless been dismissed because California lacked
sufficient jurisdictional interest in this case to adjudicate his Jones Act claim.
Defendant observes that neither decedent Paviolini nor plaintiff, his adoptive son,
were California residents, and the allegedly tortious conduct occurred outside of
California. Although plaintiff’s complaint alleged that defendant is a corporation
regularly doing business in California, defendant complains that plaintiff “has
failed throughout the action to cite facts supporting that contention.” In such
circumstances, according to defendant, California was an improper forum to hear
the case.
Plaintiff responds by observing that this “insufficient contacts” argument
goes more to the question of California’s personal jurisdiction over defendant, an
objection it concededly waived by accepting personal service and making a
general appearance in the case. (Code Civ. Proc., § 410.30, subd. (b); see, e.g.,

People v. Ciancio (2003) 109 Cal.App.4th 175, 192-193; 2 Witkin, Cal. Procedure
(4th ed. 1996) Jurisdiction, § 184, pp. 747-748, and cases cited.) Indeed, the case
on which defendant primarily relies in this regard, Star Aviation, Inc. v. Superior
Court (1977) 73 Cal.App.3d 807, was a personal jurisdiction case arising from a
nonresident corporation’s “motion to quash service of summons upon it for lack of
jurisdiction over its person.” (Id. at p. 810.) The decision was confined to
determining whether the defendant had sufficient presence or contacts in this state
to justify requiring it to submit to jurisdiction here.
Generally, subject matter jurisdiction is the court’s power to hear and resolve
a particular dispute or cause of action, while personal jurisdiction relates to the
power to bind a particular party, and depends on the party’s presence, contacts, or
other conduct within the forum state. (See Greener v. Workers’ Comp. Appeals
Bd. (1993) 6 Cal.4th 1028, 1034-1035; 2 Witkin, Cal. Procedure, supra,
Jurisdiction, §§ 10-11, pp. 555-556; id., §§ 110-111, pp. 648-651.) The issue
before us involves the subject matter jurisdiction of California state courts over
Jones Act claims, not personal jurisdiction over this defendant. In light of the state
Constitution’s broad conferral of jurisdiction (Cal. Const., art. VI, § 10), we see no
fundamental jurisdictional impediment to allowing plaintiff to bring his Jones Act
claim in California courts.
Defendant disclaims any intent to argue that California was an inconvenient
forum under the facts. Such an argument would relate more to venue than subject
matter jurisdiction, and again would have been waived by failing to assert it at
trial. (See Code Civ. Proc., § 396b, subd. (a); People v. Simon (2001) 25 Cal.4th
1082, 1096 [venue is not jurisdictional], 1102 [waiver rule in civil cases]; Cooney
v. Cooney (1944) 25 Cal.2d 202, 207-208).

The judgment of the Court of Appeal is affirmed.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Donaldson v. National Marine, Inc.

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 101 Cal.App.4th 552
Rehearing Granted


Opinion No.

Date Filed: March 14, 2005


County: San Francisco
Judge: James J. McBride


Attorneys for Appellant:

Rushford & Bonotto, Phillip R. Bonotto, Brian M. Taylor, John P. Carty III and Carla L. Johansen for
Defendant and Appellant.


Attorneys for Respondent:

Wartnick, Chaber, Harowitz & Tigerman, The Wartnick Firm, Harry F. Wartnick, Martha A. H. Berman,
Stephen M. Tigerman, Richard A. Brody; Law Offices of Daniel U. Smith and Daniel U. Smith for Plaintiff
and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Phillip R. Bonotto
Rushford & Bonotto
2277 Fair Oaks Blvd., Suite 495
Sacramento, CA 95825
(916) 565-0590

Daniel U. Smith
Law Offices of Daniel U. Smith
Post Office Box 278
Kentfield, CA 94914
(415) 461-5630

Opinion Information
Date:Docket Number:
Mon, 03/14/2005S110301

1National Marine, Inc. (Defendant and Respondent)
Represented by Phillip Richard Bonotto
Rushford & Bonotto
2277 Fair Oaks Blvd., Suite 495
Sacramento, CA

2Donaldson, Richard (Plaintiff and Appellant)
Represented by Daniel U. Smith
Law Office Of Daniel U. Smith
P O Box 278
Kentfield, CA

Mar 14 2005Opinion: Affirmed

Sep 30 2002Petition for review filed
  by counsel for appellant National Marine, Inc.
Sep 30 2002Request for publication filed (petition for review pending)
  by the law firm Brayton & Purcell (non-party). CA1/1 denied request.
Nov 6 2002Received Court of Appeal record
Nov 20 2002Time extended to grant or deny review
  to and including December 27, 2002.
Nov 26 2002Petition for review granted; issues limited (civil case)
  The issue to be briefed and argued shall be limited to whether California's state courts have jurisdiction over appellant's Jones Act (46 U.S.C. ? 688) claim. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Dec 3 2002Certification of interested entities or persons filed
  by counsel for appellant
Dec 10 2002Certification of interested entities or persons filed
  by counsel for respondent
Dec 23 2002Opening brief on the merits filed
  By Appellant {National Marine Inc.}.
Jan 22 2003Request for extension of time filed
  counsel for respondent requests extension to February 21, 2003 to file respondent's brief on the merits.
Jan 23 2003Extension of time granted
  Appellant's time to serve and file the answer brief on the merits is extended to and including February 21, 2003.
Feb 18 2003Request for extension of time filed
  counsel for respondent (R. Donaldson) requests extension to March 10, 2003 to file the respondents brief on the merits.
Feb 20 2003Extension of time granted
  Respondent's time to serve and file the answer brief on the merits is extended to and including March 10, 2003.
Feb 20 2003Filed:
  by counsel for appellant (Nat'l Marine, Inc.) copy of Notice of Filing of Bankruptcy Petition
Mar 7 2003Received letter from:
  Daniel U. Smith, counsel for Donaldson, re bankruptcy proceedings.
Apr 23 2004Received:
  letter from counsel for resp. (National Marine, Inc. et al.) re: Bankruptcy proceedings.
Apr 29 2004Order filed
  The Court, having received notice the automatic stay has been terminated by the bankruptcy court, hereby orders the respondent to serve and file an answer brief on the merits on or before May 19, 2004
May 10 2004Request for extension of time filed
  counsel for aplt. requests extension of time to June 18, 2004, to file the answer brief on the merits.
May 13 2004Extension of time granted
  Appellant's time to serve and file the answer brief on the merits is extended to and including June 18, 2004.
Jun 18 2004Request for extension of time filed
  counsel for appellant requests extension of time to July 31, 2004 to file the answer brief on the merits.
Jun 24 2004Extension of time granted
  Appellant's time to serve and filed the answer brief on the merits is extended to and including August 2, 2004.
Aug 3 2004Answer brief on the merits filed
  by counsel for aplt. (40k)
Aug 20 2004Reply brief filed (case fully briefed)
  by counsel for aplt. (Nat'l Marine, Inc.)
Dec 8 2004Case ordered on calendar
  1/4/05 @1:30pm - San Francisco
Dec 9 2004Filed letter from:
  counsel for respondent dated 12/9/04 regarding settlement of case.
Dec 10 2004Received:
  fax from counsel from appellant dated 12/10/04 regarding settlement of case. (Hard copies to follow.)
Dec 14 2004Filed:
  by counsel for aplt. Request for Continuance (60-90 days) of oral argument scheduled 1-4-05 @1:30.
Dec 15 2004Order filed
  Appellant's request to continue oral argument, filed December 14, 2004, is denied.
Dec 20 2004Filed:
  by counsel for resp. List of cases for Oral Argument.
Jan 4 2005Cause argued and submitted
Jan 6 2005Received:
  letter from counsel for resp. (Donaldson) re: oral argument.
Mar 14 2005Opinion filed: Judgment affirmed in full
  OPINION BY: Chin, J. --- joined by: George, C.J., Kennard, Baxter, Werdegar, Brown, Moreno, JJ.
Apr 14 2005Remittitur issued (civil case)
Apr 21 2005Received:
  receipt for remittitur from CA 1/1

Dec 23 2002Opening brief on the merits filed
Aug 3 2004Answer brief on the merits filed
Aug 20 2004Reply brief filed (case fully briefed)
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