author: Mr. Justice Marshall Mr. Justice Blackmun,

text:
    ROBERTSON v. WEGMANN, EXECUTOR, et al.
    No. 77-178.
    Argued March 21, 1978
    Decided May 31, 1978

      MARSHALL, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, Rehnquist, and SteveNS, JJ., joined. BlacKMUN, J., filed a dissenting opinion, in which BreNNan and White, JJ., joined, post, p. 595.

      Malcolm W. Monroe argued the cause for petitioner. With him on the briefs was Eberhard P. Deutsch.

    Respondent Edward F. Wegmann argued the cause and filed a brief pro se.

        Charles A. Bane, Thomas D. Barr, Robert A. Murphy, Richard S. Kohn, William E. Caldwell, and Norman J. Chachkin filed a brief for the Lawyers’ Committee for Civil Rights under Law as amicus curiae urging affirmance.

   Mr. Justice Marshall

delivered the opinion of the Court.

In early 1970, Clay L. Shaw filed a civil rights action under 42 U. S. C. § 1983 in the United States District Court for the Eastern District of Louisiana. Four years later, before trial had commenced, Shaw died. The question presented is whether the District Court was required to adopt as federal law a Louisiana survivorship statute, which would have caused this action to abate, or was free instead to create a federal common-law rule allowing the action to survive. Resolution of this question turns on whether the state statute is “inconsistent with the Constitution and laws of the United States.” 42 U. S. C. § 1988.

I

In 1969, Shaw was tried in a Louisiana state court on charges of having participated in a conspiracy to assassinate President John F. Kennedy. He was acquitted by a jury but within days was arrested on charges of having committed perjury in his testimony at the conspiracy trial. Alleging that these prosecutions were undertaken in bad faith, Shaw’s § 1983 complaint named as defendants the then District Attorney of Orleans Parish, Jim Garrison, and five other persons, including petitioner Willard E. Robertson, who was alleged to have lent financial support to Garrison’s investigation of Shaw through an organization known as “Truth or Consequences.” On Shaw’s application, the District Court enjoined prosecution of the perjury action, Shaw v. Garrison, 328 F. Supp. 390 (1971), and the Court of Appeals affirmed, 467 F. 2d 113 (CA5 1972).

Since Shaw had filed an action seeking damages, the parties continued with discovery after the injunction issued. Trial was set for November 1974, but in August 1974 Shaw died. The executor of his estate, respondent Edward F. Wegmann (hereafter respondent), moved to be substituted as plaintiff, and the District Court granted the motion. Petitioner and other defendants then moved to dismiss the action on the ground that it had abated on Shaw’s death.

The District Court denied the motion to dismiss. It began its analysis by referring to 42 U. S. C. § 1988; this statute provides that, when federal law is “deficient” with regard to “suitable remedies” in federal civil rights actions, federal courts are to be governed by

“the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of [the] civil . . . cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States.”

The court found the federal civil rights laws to be “deficient in not providing for survival.” Shaw v. Garrison, 391 F. Supp. 1353, 1361 (1975). It then held that, under Louisiana law, an action like Shaw’s would survive only in favor of a spouse, children, parents, or siblings. Since no person with the requisite relationship to Shaw was alive at the time of his death, his action would have abated had state law been adopted as the federal rule. But the court refused to apply state law, finding it inconsistent with federal law, and in its place created “a federal common law of survival in civil rights actions in favor of the personal representative of the deceased.” Id., at 1368.

On an interlocutory appeal taken pursuant to 28 U. S. C. § 1292 (b), the United States Court of Appeals for the Fifth Circuit affirmed. The court first noted that all parties agreed that, “if Louisiana law applies, Shaw’s § 1983 claim abates.” 545 F. 2d 980, 982 (1977). Like the District Court, the Court of Appeals applied 42 U. S. C. § 1988, found federal law “deficient” with regard to survivorship, and held Louisiana law “inconsistent with the broad remedial purposes embodied in the Civil Rights Acts.” 545 F. 2d, at 983. It offered a number of justifications for creating a federal common-law rule allowing respondent to continue Shaw’s action: Such a rule would better further the policies underlying § 1983, 545 F. 2d, at 984r-985; would “foste[r] the uniform application of the civil rights laws,” id., at 985; and would be consistent with “[t]he marked tendency of the federal courts to allow actions to survive in other areas of particular federal concern,” ibid. The court concluded that, “as a matter of federal common law, a § 1983 action instituted by a plaintiff prior to his death survives in favor of his estate.” Id., at 987.

We granted certiorari, 434 U. S. 983 (1977), and we now reverse.

II

As both courts below held, and as both parties here have assumed, the decision as to the applicable survivorship rule is governed by 42 U. S. C. § 1988. This statute recognizes that in certain areas “federal law is unsuited or insufficient 'to furnish suitable remedies’ ”; federal law simply does not “cover every issue that may arise in the context of a federal civil rights action.” Moor v. County of Alameda, 411 U. S. 693, 703, 702 (1973), quoting 42 U. S. C. § 1988. When federal law is thus “deficient,” § 1988 instructs us to turn to “the common law, as modified and changed by the constitution and statutes of the [forum] State,” as long as these are “not inconsistent with the Constitution and laws of the United States.” See n. 1, supra. Regardless of the source of the law applied in a particular case, however, it is clear that the ultimate rule adopted under § 1988 “ 'is a federal rule responsive to the need whenever a federal right is impaired.’ ” Moor v. County of Alameda, supra, at 703, quoting Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 240 (1969).

As we noted in Moor v. County of Alameda, and as was recognized by both courts below, one specific area not covered by federal law is that relating to “the survival of civil rights actions under § 1983 upon the death of either the plaintiff or defendant.” 411 U. S., at 702 n. 14. State statutes governing the survival of state actions do exist, however. These statutes, which vary widely with regard to both the types of claims that survive and the parties as to whom survivorship is allowed, see W. Prosser, Law of Torts 900-901 (4th ed. 1971), were intended to modify the simple, if harsh, 19th-century common-law rule: “[A]n injured party’s personal claim was [always] extinguished . . . upon the death of either the injured party himself or the alleged wrongdoer.” Moor v. County of Alameda, supra, at 702 n. 14; see Michigan Central R. Co. v. Vreeland, 227 U. S. 59, 67 (1913). Under § 1988, this state statutory law, modifying the common law, provides the principal reference point in determining survival of civil rights actions, subject to the important proviso that state law may not be applied when it is “inconsistent with the Constitution and laws of the United States.” Because of this proviso, the courts below refused to adopt as federal law the Louisiana survivorship statute and in its place created a federal common-law rule.

Ill

In resolving questions of inconsistency between state and federal law raised under § 1988, courts must look not only at particular federal statutes and constitutional provisions, but also at “the policies expressed in [them].” Sullivan v. Little Hunting Park, Inc., supra, at 240; see Moor v. County of Alameda, supra, at 703. Of particular importance is whether application of state law “would be inconsistent with the federal policy underlying the cause of action under consideration.” Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 465 (1975). The instant cause of action arises under 42 U. S. C. § 1983, one of the “Reconstruction civil rights statutes” that this Court has accorded “ 'a sweep as broad as [their] language.’ ” Griffin v. Breckenridge, 403 U. S. 88, 97 (1971), quoting United States v. Price, 383 U. S. 787, 801 (1966).

Despite the broad sweep of § 1983, we can find nothing in the statute or its underlying policies to indicate that a state law causing abatement of a particular action should invariably be ignored in favor of a rule of absolute survivorship. The policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law. See, e. g., Carey v. Piphus, 435 U. S. 247, 254 (1978); Mitchum v. Foster, 407 U. S. 225, 238-242 (1972); Monroe v. Pape, 365 U. S. 167, 172-187 (1961). No claim is made here that Louisiana’s survivorship laws are in general inconsistent with these policies, and indeed most Louisiana actions survive the plaintiff’s death. See La. Code Civ. Proc. Ann., Art. 428 (West 1960); La. Civ. Code Ann., Art. 2315 (West 1971). Moreover, certain types of actions that would abate automatically on the plaintiff’s death in many States — for example, actions for defamation and malicious prosecution — would apparently survive in Louisiana. In actions other than those for damage to property, however, Louisiana does not allow the deceased’s personal representative to be substituted as plaintiff; rather, the action survives only in favor of a spouse, children, parents, or siblings. See 391 F. Supp., at 1361-1363; La. Civ. Code Ann., Art. 2315 (West 1971); J. Wilton Jones Co. v. Liberty Mutual Ins. Co., 248 So. 2d 878 (La. App. 1970 and 1971) (en banc). But surely few persons are not survived by one of these close relatives, and in any event no contention is made here that Louisiana’s decision to restrict certain survivorship rights in this manner is an unreasonable one.

It is therefore difficult to see how any of § 1983’s policies would be undermined if Shaw’s action were to abate. The goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as the executor of the deceased’s estate. And, given' that most Louisiana actions survive the plaintiff’s death, the fact that a particular action might abate surely would not adversely affect § 1983’s role in preventing official illegality, at least in situations in which there is no claim that the illegality caused the plaintiff’s death. A state official contemplating illegal activity must always be prepared to face the prospect of a § 1983 action being filed against him. In light of this prospect, even an official aware of the intricacies of Louisiana survivorship law would hardly be influenced in his behavior by its provisions.

It is true that § 1983 provides “a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation.” Mitchum v. Foster, supra, at 239. That a federal remedy should be available, however, does not mean that a § 1983 plaintiff (or his representative) must be allowed to continue an action in disregard of the state law to which § 1988 refers us. A state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to lose the litigation. If success of the § 1983 action were the only benchmark, there would be no reason at all to look to state law, for the appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant. But § 1988 quite clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby. Under the circumstances presented here, the fact that Shaw was not survived by one of several close relatives should not itself be sufficient to cause the Louisiana survivorship provisions to be deemed “inconsistent with the Constitution and laws of the United States.” 42 U. S. C. § 1988.

IY

Our holding today is a narrow one, limited to situations in which no claim is made that state law generally is inhospitable to survival of § 1983 actions and in which the particular application of state survivorship law, while it may cause abatement of the action, has no independent adverse effect on the policies underlying § 1983. A different situation might well be presented, as the District Court noted, if state law “did not provide for survival of any tort actions,” 391 F. Supp., at 1363, or if it significantly restricted the types of actions that survive. Cf. Carey v. Piphus, 435 U. S., at 258 (failure of common law to “recognize an analogous cause of action” is not sufficient reason to deny compensation to § 1983 plaintiff). We intimate no view, moreover, about whether abatement based on state law could be allowed in a situation in which deprivation of federal rights caused death. See supra, at 592, and n. 10; cf. Brazier v. Cherry, 293 F. 2d 401 (CA5 1961) (deceased allegedly beaten to death by policemen; state survival law applied in favor of his widow and estate).

Here it is agreed that Shaw’s death was not caused by the deprivation of rights for which he sued under § 1983, and Louisiana law provides for the survival of most tort actions. Respondent’s only complaint about Louisiana law is that it would cause Shaw’s action to abate. We conclude that the mere fact of abatement of a particular lawsuit is not sufficient ground to declare state law “inconsistent” with federal law.

Accordingly, the judgment of the Court of Appeals is

Reversed.

Mr. Justice Blackmun,

with whom Mr. Justice Brennan and Mr. Justice White join,

dissenting.

It is disturbing to see the Court, in this decision, although almost apologetically self-described as “a narrow one,” ante, at 594, cut back on what is acknowledged, ante, at 590, to be the “broad sweep” of 42 U. S. C. § 1983. Accordingly, I dissent.

I do not read the emphasis of § 1988, as the Court does, ante, at 585 and 593-594, n. 11, to the effect that the Federal District Court “was required to adopt” the Louisiana statute, and was free to look to federal common law only as a secondary matter. It seems to me that this places the cart before the horse. Section 1988 requires the utilization of federal law (“shall be exercised and enforced in conformity with the laws of the United States”). It authorizes resort to the state statute only if the federal laws “are not adapted to the object” of “protection of all persons in the United States in their civil rights, and for their vindication” or are “deficient in the provisions necessary to furnish suitable remedies and punish offenses against law.” Even then, state statutes are an alternative source of law only if “not inconsistent with the Constitution and laws of the United States.” Surely, federal law is the rule and not the exception.

Accepting this as the proper starting point, it necessarily follows, it seems to me, that the judgment of the Court of Appeals must be affirmed, not reversed. To be sure, survivor-ship of a civil rights action under § 1983 upon the death of either party is not specifically covered by the federal statute. But that does not mean that “the laws of the United States” are not “suitable” or are “not adapted to the object” or are “deficient in the provisions necessary.” The federal law and the underlying federal policy stand bright and clear. And in the light of that brightness and of that clarity, I see no need to resort to the myriad of state rules governing the survival of state actions.

First. In Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969), a case that concerned the availability of compensatory damages for a violation of § 1982, a remedial question, as here, not governed explicitly by any federal statute other than § 1988, Mr. Justice Douglas, writing for the Court, painted with a broad brush the scope of the federal court’s choice-of-law authority:

“ [A] s we read § 1988, . . . both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. . . . The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired.” 396 U. S., at 240 (emphasis added).

The Court’s present reading of § 1988 seems to me to be hyperlogical and sadly out of line with the precept set forth in that quoted material. The statute was intended to give courts flexibility to shape their procedures and remedies in accord with the underlying policies of the Civil Rights Acts, choosing whichever rule “better serves” those policies (emphasis added). I do not understand the Court to deny a federal court’s authority under § 1988 to reject state law when to apply it seriously undermines substantial federal concerns. But I do not accept the Court’s apparent conclusion that, absent such an extreme inconsistency, § 1988 restricts courts to state law on matters of procedure and remedy. That conclusion too often would interfere with the efficient redress of constitutional rights.

Second. The Court’s reading of § 1988 cannot easily be squared with its treatment of the problems of immunity and damages under the Civil Rights Acts. Only this Term, in Carey v. Piphus, 435 U. S. 247 (1978), the Court set a rule for the award of damages under § 1983 for deprivation of procedural due process by resort to “federal common law.” Though the case arose from Illinois, the Court did not feel compelled to inquire into Illinois’ statutory or decisional law-of damages, nor to test that law for possible “inconsistency” with the federal scheme, before embracing a federal common-law rule. Instead, the Court fashioned a federal damages rule, from common-law sources and its view of the type of injury, to govern such cases uniformly State to State. 435 U. S., at 257-259, and n. 13.

Similarly, in constructing immunities under § -1983, the Court has consistently relied on federal common-law rules. As Carey v. Piphus recognizes, id., at 258 n. 13, in attributing immunity to prosecutors, Imbler v. Pachtman, 424 U. S. 409, 417-419 (1976); to judges, Pierson v. Ray, 386 U. S. 547, 55A-555 (1967); and to other officials, matters on which the language of § 1983 is silent, we have not felt bound by the tort immunities recognized in the particular forum State and, only after finding an “inconsistency” with federal standards, then considered a uniform federal rule. Instead, the immunities have been fashioned in light of historic common-law concerns and the policies of the Civil Rights Acts.

Third. A flexible reading of § 1988, permitting resort to a federal rule of survival because it “better serves” the policies of the Civil Rights Acts, would be consistent with the methodology employed in the other major choice-of-law provision in the federal structure, namely, the Rules of Decision Act. 28 U. S. C. § 1652. That Act provides that state law is to govern a civil trial in a federal court “except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide.” The exception has not been interpreted in a crabbed or wooden fashion, but, instead, has been used to give expression to important federal interests. Thus, for example, the exception has been used to apply a federal common law of labor contracts in suits under § 301 (a) of the Labor Management Relations Act, 1947, 29 U. S. C. § 185 (a), Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957); to apply federal common law to transactions in commercial paper issued by the United States where the United States is a party, Clearfield Trust Co. v. United States, 318 U. S. 363 (1943); and to avoid application of governing state law to the reservation of mineral rights in a land acquisition agreement to which the United States was a party and that bore heavily upon a federal wildlife regulatory program, United States v. Little Lake Misere Land Co., 412 U. S. 580 (1973). See also Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696, 709 (1966): “[S]tate law is applied [under the Rules of Decision Act] only because it supplements and fulfills federal policy, and the ultimate question is what federal policy requires.” (White, J., dissenting.)

Just as the Rules of Decision Act cases disregard state law where there is conflict with federal policy, even though no explicit conflict with the terms of a federal statute, so, too, state remedial and procedural law must be disregarded under § 1988 where that law fails to give adequate expression to important federal concerns. See Sullivan v. Little Hunting Park, Inc., supra. The opponents of the 1866 Act were distinctly aware that the legislation that became § 1988 would give the federal courts power to shape federal common-law rules. See, for example, the protesting remarks of Congressman Kerr relative to § 3 of the 1866 Act (which contained the predecessor version of § 1988):

“I might go on and in this manner illustrate the practical working of this extraordinary measure. . . . [T]he authors of this bill feared, very properly too, that the system of laws heretofore administered in the Federal courts might fail to supply any precedent to guide the courts in the enforcement of the strange provisions of this bill, and not to be thwarted by this difficulty, they confer upon the courts the power of judicial legislation, the power to make such other laws as they may think necessary. Such is the practical effect of the last clause of the third section [of § 1988] ....
“That is to say, the Federal courts may, in such cases, make such rules and apply such law as they please, and call it common law” (emphasis in original). Cong. Globe, 39th Cong., 1st Sess., 1271 (1866).

Fourth. Section 1983’s critical concerns are compensation of the victims of unconstitutional action, and deterrence of like misconduct in the future. Any crabbed rule of survivor-ship obviously interferes directly with the second critical interest and may well interfere with the first.

The unsuitability of Louisiana’s law is shown by the very case at hand. It will happen not infrequently that a decedent’s only survivor or survivors are nonrelatives or collateral relatives who do not fit within the four named classes of Louisiana statutory survivors. Though the Court surmises, ante, at 591-592, that “surely few persons are not survived” by a spouse, children, parents, or siblings, any lawyer who has had experience in estate planning or in probating estates knows that that situation is frequently encountered. The Louisiana survivorship rule applies no matter how malicious or ill-intentioned a defendant’s action was. In this case, as the Court acknowledges, ante, at 586 n. 2, the District Court found that defendant Garrison brought state perjury charges against plaintiff Shaw "in bad faith and for purposes of harassment,” 328 F. Supp. 390, 400, a finding that the Court of Appeals affirmed as not clearly erroneous. 467 F. 2d 113, 122. The federal interest in specific deterrence, when there was malicious intention to deprive a person of his constitutional rights, is particularly strong, as Carey v. Piphus intimates, 435 U. S., at 257 n. 11. Insuring a specific deterrent under federal law gains importance from the very premise of the Civil Rights Act that state tort policy often is inadequate to deter violations of the constitutional rights of disfavored groups.

The Louisiana rule requiring abatement appears to apply even where the death was intentional and caused, say, by a beating delivered by a defendant. The Court does not deny this result, merely declaiming, ante, at 594, that in such a case it might reconsider the applicability of the Louisiana survivor-ship statute. But the Court does not explain how either certainty or federalism is served by such a variegated application of the Louisiana statute, nor how an abatement rule would be workable when made to depend on a fact of causation often requiring an entire trial to prove.

It makes no sense to me to make even a passing reference, ante, at 592, to behavioral influence. The Court opines that no official aware of the intricacies of Louisiana survivorship law would “be influenced in his behavior by its provisions.” But the defendants in Shaw’s litigation obviously have been “sweating it out” through the several years of proceedings and litigation in this case. One can imagine the relief occasioned when the realization dawned that Shaw’s death might — just might — abate the action. To that extent, the deterrent against behavior such as that attributed to the defendants in this case surely has been lessened.

As to compensation, it is no answer to intimate, as the Court does, ante, at 591-592, that Shaw’s particular survivors were not personally injured, for obviously had Shaw been survived by parents or siblings, the cause of action would exist despite the absence in them of so deep and personal an affront, or any at all, as Shaw himself was alleged to have sustained. The Court propounds the unreasoned conclusion, ibid., that the “goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as the executor of the deceased’s estate.” But the Court does not purport to explain why it is consistent with the purposes of § 1983 to recognize a derivative or independent interest in a brother or parent, while denying similar interest to a nephew, grandparent, or legatee.

Fifth. The Court regards the Louisiana system’s structuring of survivorship rights as not unreasonable. Ante, at 592. The observation, of course, is a gratuitous one, for as the Court immediately observes, id., at 592 n. 8, it does not resolve the issue that confronts us here. We are not concerned with the reasonableness of the Louisiana survivorship statute in allocating tort recoveries. We are concerned with its application in the face of a claim of civil rights guaranteed the decedent by federal law. Similarly, the Court’s observation that the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. §§ 908 (d), 909 (d) (1970 ed., Supp. V), and Federal Employers’ Liability Act, 45 U. S. C. § 59, limit survival to specific named relatives or dependents (albeit a larger class of survivors than the Louisiana statute allows) is gratuitous. Those statutes have as their main purpose loss shifting and compensation, rather than deterrence of unconstitutional conduct. And, although the Court does not mention it, any reference to the survival rule provided in 42 U. S. C. § 1986 governing that statute’s principle of vicarious liability, would be off point. There it was the extraordinary character of the liability created by § 1986, of failing to prevent wrongful acts, that apparently induced Congress to limit recovery to widows or next of kin in a specified amount of statutory damages. Cf. Cong. Globe, 42d Cong., 1st Sess., 749-752, 756-763 (1871); Moor v. County of Alameda, 411 U. S., at 710 n. 26.

The Court acknowledges, ante, at 590, “the broad sweep of § 1983,” but seeks to justify the application of a rule of nonsur-vivorship here because it feels that Louisiana is comparatively generous as to survivorship anyway. This grudging allowance of what the Louisiana statute does not give, just because it gives in part, seems to me to grind adversely against the statute’s “broad sweep.” Would the Court’s decision be otherwise if actions for defamation and malicious prosecution in fact did not survive at all in Louisiana? The Court by omission admits, ante, at 591, and n. 6, that that question of survival has not been litigated in Louisiana. See Johnson, Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La. L. Rev. 1, 6 n. 23 (1976). Defamation and malicious prosecution actions wholly abate upon the death of the plaintiff in a large number of States, see ante, at 591, and n. 6. Does it make sense to apply a federal rule of survivorship in those States while preserving a different state rule, stingier than the federal rule, in Louisiana?

Sixth. A federal rule of survivorship allows uniformity, and counsel immediately know the answer. Litigants identically aggrieved in their federal civil rights, residing in geographically adjacent States, will not have differing results due to the vagaries of state law. Litigants need not engage in uncertain characterization of a § 1983 action in terms of its nearest tort cousin, a questionable procedure to begin with, since the interests protected by tort law and constitutional law may be quite different. Nor will federal rights depend on the arcane intricacies of state survival law — which differs in Louisiana according to whether the right is “strictly personal,” La. Code Civ. Proc. Ann., Art. 428 (West 1960); whether the action concerns property damage, La. Civ. Code Ann., Art. 2315, ¶ 2 (West 1971); or whether it concerns “other damages/’ id., ¶ 3. See 37 La. L. Rev., at 52.

The policies favoring so-called “absolute” survivorship, viz., survivorship in favor of a decedent’s nonrelated legatees in the absence of familial legatees, are the simple goals of uniformity, deterrence, and perhaps compensation. A defendant who has violated someone’s constitutional rights has no legitimate interest in a windfall release upon the death of the victim. A plaintiff’s interest in certainty, in an equal remedy, and in deterrence supports such an absolute rule. I regard as unanswered the justifications advanced by the District Court and the Court of Appeals: uniformity of decisions and fulfillment of the great purposes of § 1983. 391 F. Supp., at 1359, 1363-1365; 545 F. 2d, at 983.

Seventh. Rejecting Louisiana’s survivorship limitations does not mean that state procedure and state remedies will cease to serve as important sources of civil rights law. State law, for instance, may well be a suitable source of statutes of limitation, since that is a rule for which litigants prudently can plan. Rejecting Louisiana’s survivorship limitations means only that state rules are subject to some scrutiny for suitability. Here the deterrent purpose of § 1983 is disserved by Louisiana’s rule of abatement.

It is unfortunate that the Court restricts the reach of § 1983 by today’s decision construing § 1988. Congress now must act again if the gap in remedy is to be filled.

       Title 42 U. S. C. § 1988 provides in pertinent part:
      “The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so- far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party -found guilty.”

       The Court of Appeals held that this Court's decision in Younger v. Harris, 401 U. S. 37 (1971), did not bar the enjoining of the state perjury prosecution, since the District Court’s “finding of a bad faith prosecution establishes irreparable injury both great and immediate for purposes of the comity restraints discussed in Younger." 467 F. 2d, at 122.

       See Fed. Rule Civ. Proc. 25 (a)(1). As the Court of Appeals observed, this Rule “does not resolve the question [of] what law of survival of actions should be applied in this case. [It] simply describes the manner in which parties are to be substituted in federal court once it is determined that the applicable substantive law allows the action to survive a party’s death.” 545 F. 2d 980, 982 (CA5 1977) (emphasis in original).

       The dissenting opinion argues that, despite this lack of coverage, “the laws of the United States” are not necessarily “[un] suitable” or “deficient in the provisions necessary.” 42 U. S. C. § 1988; see post, at 595. Both courts below found such a deficiency, however, and respondent here agrees with them. 545 F. 2d, at 983; Shaw v. Garrison, 391 F. Supp. 1353, 1358-1361 (1975); Brief for Respondent 6.
      There is a survivorship provision in 42 U. S. C. § 1986, but this statute applies only with regard to “the wrongs . . . mentioned in [42 U. S. C.] section 1985.” Although Shaw’s complaint alleged causes of action under §§ 1985 and 1986, the District Court dismissed this part of the complaint for failure to state a claim upon which relief could be granted. 391 F. Supp., at 1356, 1369-1371. These dismissals were not challenged on the interlocutory appeal and are not at issue here.

       Section 1988’s reference to “the common law” might be interpreted as a reference to the decisional law of the forum State, or as a reference to the kind of general common law that was an established part of our federal jurisprudence by the time of § 1988’s passage in 1866, see Swift v. Tyson, 16 Pet. 1 (1842); cf. Moor v. County of Alameda, 411 U. S., at 702 n. 14 (referring to the survivorship rule “at common law”). The latter interpretation has received some judicial and scholarly support. See, e. g., Basista v. Weir, 340 F. 2d 74, 85-86, n. 10 (CA3 1965); Theis, Shaw v. Garrison: Some Observations on 42 U. S. C. § 1988 and Federal Common Law, 36 La. L. Rev. 681, 684-685 (1976). See also Carey v. Piphus, 435 U. S. 247, 258 n. 13 (1978). It makes no difference for our purposes which interpretation is the correct one, because Louisiana has a survivor-ship statute that, under the terms of § 1988, plainly governs this case.

       An action for defamation abates on the plaintiff’s death in the vast majority of States, see W. Prosser, Law of Torts 900-901 (4th ed. 1971), and a large number of States also provide for abatement of malicious prosecution actions, see, e. g., Dean v. Shirer, 547 F. 2d 227, 229-230 (CA4 1976) (South Carolina law); Hall v. Wooten, 506 F. 2d 564, 569 (CA6 1974) (Kentucky law). See also 391 F. Supp., at 1364 n. 17. In Louisiana, an action for defamation or malicious prosecution would apparently survive (assuming that one of the relatives specified in La. Civ. Code Ann., Art. 2315 (West 1971), survives the deceased, as discussed in text infra); such an action seems not to fall into the category of “strictly personal” actions, La. Code Civ. Proc. Ann., Art. 428 (West 1960), that automatically abate on the plaintiff’s death. See Johnson, Death on the Calíais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La. L. Rev. 1, 6 n. 23, 52, and n. 252 (1976). See also Official Revision Comment (c) to La. Code Civ. Proc. Ann., Art. 428.

       For those actions that do not abate automatically on the plaintiff’s death, most States apparently allow the personal representative of the deceased to be substituted as plaintiff. See 391 F. Supp., at 1364, and n. 18.

       The reasonableness of Louisiana’s approach is suggested by the fact that several federal statutes providing for survival take the same approach, limiting survival to specific named relatives. See, e. g., 33 U. S. C. § 908 (d) (1970 ed., Supp. V) (Longshoremen’s and Harbor Workers’ Compensation Act); 45 U. S. C. § 59 (Federal Employers’ Liability Act). The approach taken by federal statutes in other substantive areas cannot, of course, bind a federal court in a § 1983 action, nor does the fact that a state survivorship statute may be reasonable by itself resolve the question whether it is “inconsistent with the Constitution and laws of the United States.” 42 U. S. C. § 1988.

       This does not, of course, preclude survival of a § 1983 action when such is allowed by state law, see Moor v. County of Alameda, 411 U. S., at 702-703, n. 14, nor does it preclude recovery by survivors who are suing under § 1983 for injury to their own interests.

       In order to find even a marginal influence on behavior as a result of Louisiana’s survivorship provisions, one would have to make the rather farfetched assumptions that a state official had both the desire and the ability deliberately to select as victims only those persons who would die before conclusion of the § 1983 suit (for reasons entirely unconnected with the official illegality) and who would not be survived by any close relatives.

       In addition to referring to the policies underlying § 1983, the Court of Appeals based its decision in part on the desirability of uniformity in the application of the civil rights laws and on the fact that the federal courts have allowed survival “in other areas of particular federal concern . . . where statutory guidance on the matter is lacking.” 545 F. 2d, at 985; see supra, at 588. With regard to the latter point, however, we do not find “statutory guidance . . . lacking”; § 1988 instructs us to turn to state laws, unless an “inconsistency” with federal law is found. While the courts below found such an inconsistency, we do not agree, as discussed in text supra, and henee the survivorship rules in areas where the courts are free to develop federal common law — without first referring to state law and finding an inconsistency — can have no bearing on our decision here. Similarly, whatever the value of nationwide uniformity in areas of civil rights enforcement where Congress has not spoken, in the areas to which § 1988 is applicable Congress has provided direction, indicating that state law will often provide the content of the federal remedial rule. This statutory reliance on state law obviously means that there will not be nationwide uniformity on these issues.

         Moor v. County of Alameda, 411 U. S. 693 (1973), is not to the contrary. There, the Court held that § 1988 does not permit the importation from state law of a new cause of action. In passing dictum, 411 U. S., at 702 n. 14, the Court noted the approach taken to the survival problem by several lower federal courts. In those cases, because the applicable state statute permitted survival, the lower courts had little occasion to consider the need for a uniform federal rule.

       “The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.”


source: Caselaw Access Project

author: Mr. Justice Marshall

license: Public Domain

text:
    ANDRUS, SECRETARY OF THE INTERIOR v. CHARLESTONE STONE PRODUCTS CO.
    No. 77-380.
    Argued April 18, 1978
    Decided May 31, 1978
    MARSHALL, J., delivered the opinion for a unanimous Court.

      Sara Sun Beale argued the cause for petitioner. With her on the briefs were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Barnett, Carl Strass, and Larry A. Boggs.

      Gerry Levenberg argued the cause for respondent. With him on the brief was Warwick C. Lamoreaux.

      A brief of amici curiae urging reversal was filed for their respective States by Avrum Gross, Attorney General of Alaska; Bruce E. Babbitt, Attorney General of Arizona, and Dale Pontius, Assistant Attorney General; Evelle J. Younger, Attorney General of California, and Roderick Walston, Deputy Attorney General; J. D. MacFarlane, Attorney General of Colorado, and David W. Robbins, Deputy Attorney General; Wayne L. Kidwell, Attorney General of Idaho, and Josephine Beeman, Assistant Attorney General; Michael T. Greely, Attorney General of Montana; Paul L. Douglas, Attorney General of Nebraska, and Steven C. Smith, Assistant Attorney General; Robert List, Attorney General of Nevada, and George Campbell, Deputy Attorney General; Toney Anaya, Attorney General of New Mexico, and Richard A. Simms, Special Assistant Attorney General; Allen I. Olson, Attorney General of North Dakota, and Murray G. Sagsveen, Assistant Attorney General; James A. Redden, Attorney General of Oregon, and Clarence R. Kruger, Assistant Attorney General; William J. Janklow, Attorney General of South Dakota, and Warren R. Neufeld, Assistant Attorney General; Slade Gorton, Attorney General of Washington, and Charles B. Roe, Jr., Senior Assistant Attorney General; and V. Frank Mendicino, Attorney General of Wyoming, and Jack D. Palma II, Special Assistant Attorney General.

        Maurice J. Nelson filed a brief for J. Alan Steele as amicus curiae.

   Mr. Justice Marshall

delivered the opinion of the Court.

Under the basic federal mining statute, which derives from an 1872 law, “all valuable mineral deposits in lands belonging to the United States” are declared “free and open to exploration and purchase.” 30 U. S. C. § 22. The question presented is whether water is a "valuable mineral” as those words are used in the mining law.

I

A claim to federal land containing “valuable mineral deposits” may be “located” by complying with certain procedural requisites; one who locates a claim thereby gains the exclusive right to possession of the land, as well as the right to extract minerals from it. See generally 30 U. S. C. §§ 21-54; 1 American Law of Mining § 1.17 (1973). The claim at issue in this case, known as Claim 22, is one of a group of 23 claims near Las Vegas, Nev., that were located in 1942. In 1962, after respondent had purchased these claims, it discovered water on Claim 22 by drilling a well thereon. This water was used to prepare for commercial sale the sand and gravel removed from some of the 23 claims.

In 1965, the Secretary of the Interior filed a complaint with the Bureau of Land Management, seeking to have all of these claims declared invalid on the ground that the only minerals discovered on them were “common varieties” of sand and gravel, which had been expressly excluded from the definition of “valuable minerals” by a 1955 statute. § 3, 69 Stat. 368, 30 U. S. C. § 611. At the administrative hearing on the Secretary’s complaint, the principal issue was whether the sand and gravel deposits were “valuable” prior to the effective date of the 1955 legislation, in which case the claims would be valid. The Administrative Law Judge concluded after hearing the evidence that respondent had established pre-1955 value only as to Claim 10. On appeals taken by both respondent and the Government, the Interior Board of Land Appeals (IBLA) affirmed the Administrative Law Judge in all respects here relevant. 9 I. B. L. A. 94 (1973) ,

Respondent sought review in the United States District Court for the District of Nevada. The court concluded that the decisions of the Administrative Law Judge and the IBLA were not supported by the evidence and that “at least” Claims 1 through 16 were valid. App. to Pet. for Cert. 26a. The court further held “that access to Claim No. 22 must be permitted so that the water produced from the well on that claim may be made available to the operations on the valid claims.” Ibid. The IBLA’s decision was accordingly vacated, and the case remanded to the Department of the Interior.

On the Government’s appeal, the United States Court of Appeals for the Ninth Circuit affirmed. 553 F. 2d 1209 (1977). It agreed with the District Court as to Claims 1 through 16 and also agreed that respondent was entitled to access to the water on Claim 22. It grounded the latter conclusion, however, “upon a rationale other than that relied upon by the District Court,” id., at 1215, a rationale that had not been briefed or argued in either the District Court or the Court of Appeals. Noting that “[s]ince early times, water has been regarded as a mineral,” ibid., the appellate court stated that it could not assume “that Congress was not aware of the necessary glove of water for the hand of mining and [that] Congress impliedly intended to reserve water from those minerals allowed to be located and recovered,” id., at 1216. Since the water at Claim 22 “has an intrinsic value in the desert area” and has additional value at the particular site “as a washing agent for . . . sand and gravel,” the court ruled that respondent’s “claim for the extraction of [Claim 22’s] water is valid.” Ibid.

The difference between the District Court’s and the Court of Appeals’ rationales for allowing access to Claim 22 is a significant one. The District Court held only that respondent is entitled to use the water on the claim; the Court of Appeals, by contrast, held that the claim itself is valid. If the claim is indeed valid, respondent is not merely entitled to access to the water thereon, but also has exclusive possessory rights to the land and may keep others from making any use of it. By complying with certain procedures, moreover, respondent could secure a “patent” from the Government conveying fee simple title to the land. See 30 U. S. C. §§ 29, 37; 1 American Law of Mining § 1.23 (1973). See generally Union Oil Co. v. Smith, 249 U. S. 337, 348-349 (1919). In view of the significance of the determination that a mining claim to federal land is valid, the Government sought review here of the Court of Appeals’ sua sponte holding regarding Claim 22’s validity. The single question presented in the petition is “[w]hether water is a locatable mineral under the mining law of 1872.” Pet. for Cert. 2.

We granted certiorari, 434 U. S. 964 (1977), and we now reverse.

II

We may assume for purposes of this decision that the Court of Appeals was correct in concluding that water is a “mineral,” in the broadest sense of that word, and that it is “valuable.” Both of these facts are necessary to a holding that a claimant has located a “valuable mineral deposit” under the 1872 law, 30 U. S. C. § 22, but they are hardly sufficient.

This Court long ago recognized that the word “mineral,” when used in an Act of Congress, cannot be given its broadest definition. In construing an Act granting certain public lands, except “mineral lands,” to a railroad, the Court wrote:

“The word 'mineral’ is used in so many senses, dependent upon the context, that the ordinary definitions of the dictionary throw but little light upon its signification in a given case. Thus the scientific division of all matter into the animal, vegetable or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom .... Equally subversive of the grant would be the definition of minerals found in the Century Dictionary: as 'any constituent of the earth’s crust’ . . . .” Northern Pacific R. Co. v. Soderberg, 188 U. S. 526, 530 (1903).

In the context of the 1872 mining law, similar conclusions must be drawn. As one court observed, if the term “mineral” in the statute were construed to encompass all substances that are conceivably mineral, “there would be justification for making mine locations on virtually every part of the earth’s surface,” since “a very high proportion of the substances of the earth are in that sense 'mineral.' ” Rummell v. Bailey, 7 Utah 2d 137, 140, 320 P. 2d 653, 655 (1958). See also Robert L. Beery, 25 I. B. L. A. 287, 294-296 (1976) (noting that "common dirt,” while literally a mineral, cannot be considered locatable under the mining law); Holman v. Utah, 41 L. D. 314, 315 (1912); 1 American Law of Mining, supra, § 2.4, p. 168.

The fact that water may be valuable or marketable similarly is not enough to support a mining claim’s validity based on the presence of water. Many substances present on the land may be of value, and indeed it seems likely that land itself — especially land located just 15 miles from downtown Las Vegas, see 553 F. 2d, at 1211— has, in the Court of Appeals’ words, “an intrinsic value,” id., at 1216. Yet the federal mining law surely was not intended to be a general real estate law; as one commentator has written, “the Congressional mandate did not sanction the disposal of federal lands under the mining laws for purposes unrelated to mining.” 1 American Law of Mining, supra, § 1.18, p. 56; cf. Holman v. Utah, supra (distinguishing mining law from homestead and other agricultural entry laws). In order for a claim to be valid, the substance discovered must not only be a “valuable mineral” within the dictionary definition of those words, but must also be the type of valuable mineral that the 1872 Congress intended to make the basis of a valid claim.

Ill

The 1872 law incorporates two provisions involving water rights that derive from earlier mining Acts. See 17 Stat. 94-95. In 1866, in Congress’ first major effort to regulate mining on federal lands, it provided for the protection of the “vested rights” of “possessors and owners” “to the use of water for mining, agricultural, manufacturing or other purposes,” to the extent that these rights derive from “priority of possession” and “are recognized and acknowledged by the local customs, laws, and the decisions of courts.” 30 U. S. C. § 51. In 1870, Congress again emphasized its view that water rights derive from “local” law, not federal law, making “[a]ll patents granted . . . subject to any vested and accrued water rights ... as may have been acquired under or recognized by [the 1866 provision].” 30 U. S. C. § 52.

In discussing these mining law provisions on the subject of water rights, this Court has often taken note of the history of mining in the arid Western States. In 1879 Mr. Justice Field of California, writing for the Court, described in vivid terms the influx of miners that had shaped the water rights law of his State and its neighbors:

“The lands in which the precious metals were found belonged to the United States, and were unsurveyed Into these mountains the emigrants in vast numbers penetrated, occupying the ravines, gulches and canons, and probing the earth in all directions for the precious metals. . . . But the mines could not be worked without water. Without water the gold would remain for ever buried in the earth or rock. . . . The doctrines of the common law respecting the rights of riparian owners were not considered as applicable ... to the condition of miners in the mountains. . . . Numerous regulations were adopted, or assumed to exist, from their obvious justness, for the security of . . . ditches and flumes, and the protection of rights to water . . . .” Jennison v. Kirk, 98 U. S. 453, 457-458 (1879).

See also Basey v. Gallagher, 20 Wall. 670, 681-684 (1875) (Field, J.); Atchison v. Peterson, 20 Wall. 507, 510-515 (1874) (Field, J.). Over a half century later, Mr. Justice Sutherland set out this same history in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 154-155 (1935). He then explained that the water rights provisions of the 1866 and 1870 laws were intended to

“approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land states, as the test and measure of private rights in and to the non-navigable waters on the public domain.” Id., at 155.

Our opinions thus recognize that, although mining law and water law developed together in the West prior to 1866, with respect to federal lands Congress chose to subject only mining to comprehensive federal regulation. When it passed the 1866 and 1870 mining laws, Congress clearly intended to preserve “pre-existing [water] right[s]." Broder v. Natoma Water & Mining Co., 101 U. S. 274, 276 (1879). Less than 15 years after passage of the 1872 law, the Secretary of the Interior in two decisions ruled that water is not a locatable mineral under the law and that private water rights on federal lands are instead “governed by local customs and laws,” pursuant to the 1866 and 1870 provisions. Charles Lennig, 5 L. D. 190, 191 (1886); see William A. Chessman, 2 L. D. 774, 775 (1883). The Interior Department, which is charged with principal responsibility for “regulating the acquisition of rights in the public lands,” Cameron v. United States, 252 U. S. 450, 460 (1920), has recently reaffirmed this interpretation. Robert L. Beery, 25 I. B. L. A. 287 (1976).

In ruling to the contrary, the Court of Appeals did not refer to 30 U. S. C. §§ 51 and 52, which embody the 1866 and 1870 provisions; to our opinions construing these provisions; or to the consistent course of administrative rulings on this question. Instead, without benefit of briefing, the court below decided that “it would be incongruous ... to hazard that Congress was not aware of the necessary glove of water for the hand of mining.” 553 F. 2d, at 1216. Congress was indeed aware of this, so much aware that it expressly provided a water rights policy in the mining laws. But the policy adopted is a “passive” one, 2 Waters and Water Rights § 102.1, p. 53 (R. Clark ed. 1967); Congress three times (in 1866, 1870, and 1872) affirmed the view that private water rights on federal lands were to be governed by state and local law and custom. It defies common sense to assume that Congress, when it adopted this policy, meant at the same time to establish a parallel federal system for acquiring private water rights, and that it did so sub silentio through laws designed to regulate mining. In light of the 1866 and 1870 provisions, the history out of which they arose, and the decisions construing them in the context of the 1872 law, the notion that water is a “valuable mineral” under that law is simply untenable.

IV

The conclusion that Congress did not intend water to be locatable under the federal mining law is reinforced by consideration of the practical consequences that could be expected to flow from a holding to the contrary.

A

Many problems would undoubtedly arise simply from the fact of having two overlapping systems for acquisition of private water rights. Under the appropriation doctrine prevailing in most of the Western States, the mere fact that a person controls land adjacent to a body of water means relatively little; instead, water rights belong to “[t]he first appropriator of water for a beneficial use,” but only “to the extent of his actual use,” California Oregon Power Co. v. Beaver Portland Cement Co., supra, at 154; see Jennison v. Kirk, supra, at 458; W. Hutchins, Selected Problems in the Law of Water Rights in the West 30-32, 389-403 (1942); McGowen, The Development of Political Institutions on the Public Domain, 11 Wyo. L. J. 1, 14 (1957). Failure to use the water to which one is entitled for a certain period of time generally causes one’s rights in that water to be deemed abandoned. See generally 2 W. Hutchins, Water Rights Laws in the Nineteen Western States 256-328 (1974).

With regard to minerals located under federal law, an entirely different theory prevails. The holder of a federal mining claim, by investing $100 annually in the claim, becomes entitled to possession of the land and may make any use, or no use, of the minerals involved. See 30 U. S. C. § 28. Once fee title by patent is obtained, see supra, at 609, even the $100 requirement is eliminated.

One can readily imagine the legal conflicts that might arise from these differing approaches if ordinary water were treated as a federally cognizable '“mineral.” A federal claimant could, for example, utilize all of the water extracted from a well like respondent’s, without regard for the settled prior appropriation rights of another user of the same water. Or he might not use the water at all and yet prevent another from using it, thereby defeating the necessary Western policy in favor of “actual use” of scarce water resources. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S., at 154. As one respected commentator has written, allowing water to be the basis of a valid mining claim “could revive long abandoned common law rules of ground water ownership and capture, and . . . could raise horrendous problems of priority and extralateral rights.” We decline to effect so major an alteration in established legal relationships based on nothing more than an overly literal reading of a statute, without any regard for its context or history.

B

A final indication that water should not be held to be a locatable mineral derives from Congress’ 1955 decision to remove “common varieties” of certain minerals from the coverage of the mining law. 30 U. S. C. § 611; see supra, at 606-607, and n. 5. This decision was made in large part because of “abuses under the general mining laws by . . . persons who locate[d] mining claims on public lands for purposes other than that of legitimate mining activity.” H. R. Rep. No. 730, 84th Cong., 1st Sess., 5 (1955); see S. Rep. No. 554, 84th Cong., 1st Sess., 4-5 (1955). Apparently, locating a claim and obtaining a patent to federal land were so inexpensive that many “use[d] the guise of mining locations for nonmining purposes,” including the establishment of “filling stations, curio shops, cafes, . . . residencefs] [and] summer camp[s].” H. R. Rep. No. 730, p. 6; see S. Rep. No. 554, p. 5.

Water, of course, is among the most common of the earth’s elements. While it may not be as common in the federal lands subject to the mining law as it is elsewhere, it is nevertheless common enough to raise the possibility of abuse by those less interested in extracting mineral resources than in obtaining title to valuable land. See Robert L. Beery, 25 I. B. L. A., at 296-297. Given the unprecedented nature of the Court of Appeals’ decision, it is hardly surprising that the 1955 Congress did not include water on its list of “common varieties” of minerals that cannot confer validity on a mining claim. But the concerns that Congress addressed in the 1955 legislation indicate that water, like the listed minerals, should not be considered a locatable mineral under the 1872 mining law.

V

It has long been established that, when grants to federal land are at issue, any doubts “are resolved for the Government, not against it.” United States v. Union Pacific R. Co., 353 U. S. 112, 116 (1957). A fortiori, the Government must prevail in a case such as this, when the relevant statutory provisions, their historical context, consistent administrative and judicial decisions, and the practical problems with a contrary holding all weigh in its favor. Accordingly, the judgment of the Court of Appeals is

Reversed.

       Act of May 10, 1872, 17 Stat. 91.

       Title 30 U. S. C. § 22 provides in full:
      “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.”

       Title 30 U. S. C. § 611 provides in pertinent part:
      “No deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders and no deposit of petrified wood shall be deemed a valuable mineral deposit within the meaning of the mining laws of the United States so as to give effective validity to any mining claim hereafter located under such mining laws: Provided, however, That nothing herein shall affect the validity of any mining location based upon discovery of some other mineral occurring in or in association with such a deposit. 'Common varieties’ as used in sections 601, 603, and 611 to 615 of this title does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value . . .

       The question of value has traditionally been resolved by application of “complement[ary]” tests relating to whether “‘a person of ordinary prudence’ ” would have expended “ 'his labor and means’ ” developing the claim at issue and whether the minerals thereon could have been “ ‘extracted, removed and marketed at a profit.’ ” United States v. Coleman, 390 U. S. 599, 600, 602 (1968), quoting decisions of the Secretary of the Interior in Coleman and in Castle v. Womble, 19 L. D. 455, 457 (1894).

       The Administrative Law Judge, in addition to holding that Claim 10 was valid based on its pre-1955 value, held that Claim 9 was valid because it provided reserve material for Claim 10. The IBLA reversed as to Claim 9, holding it invalid. 9 I. B. L. A., at 108.
      The Secretary’s complaint also named two other claims, numbered 12A and 13A, that were located by respondent in 1961. Since location occurred after the relevant 1955 date, the Administrative Law Judge held these claims invalid. His decision regarding Claims 12A and 13A was upheld by both the IBLA, 9 I. B. L. A., at 106, and the District Court, App. to Pet. for Cert. 25a, and was not contested in the Court of Appeals, see 553 F. 2d 1209, 1210 n. 1 (CA9 1977).

       Although the question of the District Court’s subject-matter jurisdiction was not raised in this Court or apparently in either court below, we have an obligation to consider the question sua sponte. See, e. g., Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U. S. 274, 278 (1977); Mansfield, Coldwater, & Lake Michigan R. Co. v. Swan, 111 U. S. 379, 382 (1884). Respondent’s complaint alleged jurisdiction based on the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq.,
        and 28 U. S. C. §§ 1361, 1391 (e). App. 27A. Title 28 U. S. C. § 1391 (e) is a venue statute and cannot itself confer jurisdiction.
      With regard to the APA, while it may have appeared to be a proper basis of jurisdiction in the Ninth Circuit at the time the complaint was filed in 1973, see Brandt v. Hickel, 427 F. 2d 63, 55 (CA9 1970), we have since held that “the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action,” Califano v. Sanders, 430 U. S. 99, 107 (1977). We need not decide whether jurisdiction would lie here under 28 U. S. C. § 1361, because jurisdiction in this action to review a decision of the Secretary of the Interior is clearly conferred by 28 U. S. C. § 1331 (a).
      This general federal-question statute was amended in 1976 to eliminate the amount-in-controversy requirement with regard to actions “brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.” Pub. L. No. 94-574 § 2, 90 Stat. 2721. Hence the fact that in 1973 respondent in its complaint did not allege $10,000 in controversy is now of no moment. See Ralpho v. Bell, 186 U. S. App. D. C. 368, 376-377, n. 51, 569 F. 2d 607, 615-616, n. 51 (1977); Green v. Philbrook, 427 F. Supp. 834, 836 (Vt. 1977). Nor does it matter that the complaint does not in so many words assert § 1331 (a) as a basis of jurisdiction, since the facts alleged in it are sufficient to establish such jurisdiction and the complaint appeared jurisdictionally correct when filed. See Fort Sumter Tours, Inc. v. Andrus, 564 F. 2d 1119, 1123 n. 4 (CA4 1977); Harary v. Blumenthal, 555 F. 2d 1113, 1115 n. 1 (CA2 1977); Fitzgerald v. United States Civil Service Comm’n, 180 U. S. App. D. C. 327, 329 n. 1, 554 F. 2d 1186, 1188 n. 1 (1977).

       In reaching this conclusion, the court correctly noted, 563 F. 2d, at 1216, that water is not listed among the “common varieties” of minerals withdrawn from location by 30 U. S. C. § 611. Hence the fact that respondent did not discover water on Claim 22 until after 1955 is irrelevant to the question of the validity of the claim. See supra, at 606-607, andn. 3. See also infra, at 617.

       By referring to the intent of the 1872 Congress, we do not mean to imply that the only minerals locatable are those that were known to exist in 1872. But Congress’ general conception of what a “valuable mineral” was for purposes of mining claim location is of obvious relevance in construing the 1872 law.

       Title 30 U. S. C. § 51 provides in full:
      “Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but .whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.”

       Title 30 U. S. C. § 52 provides in full:
      “All patents granted, or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by section 51 of this title.”

       The holder of a valid mining claim is generally understood to have an unlimited right to extract minerals from the claim, “even to exhaustion.” Union Oil Co. v. Smith, 249 U. S. 337, 349 (1919). Respondent suggests that this right could be limited in the context of a mining-law claim to water, if the law were construed to require the claimant to respect water rights previously vested under state law. Brief for Respondent 31 n. 8; see id., at 25-26.

       Trelease, Federal-State Problems in Packaging Water Rights, in Water Acquisition for Mineral Development Institute Paper 9, pp. 9-17 n. 47 (Rocky Mt. Min. L. Fdn., 1978).

       The Court of Appeals’ suggestion that a claim to water might be validated simply because of the “intrinsic value” of water “in the desert area,” 553 F. 2d, at 1216, makes abuse particularly likely, since the “intrinsic value” theory would substantially lessen a claimant’s burden of showing the “valuable” nature of his claim. See n. 4, supra.


author: Mr. Justice Stevens Me. Justice Maeshall,

text:
    MOBIL OIL CORP. v. HIGGINBOTHAM, ADMINISTRATRIX, et al.
    No. 76-1726.
    Argued January 10, 11, 1978
    Decided June 5, 1978
    SteveNS, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which BlackmuN, J., joined, post, p. 626. BreNNAN, J., took no part in the consideration or decision of the case.

      Carl J. Schumacher, Jr., argued the cause for petitioner. With him on the brief were E. D. Vickery and Charles C. Gray.

      Jack C. Benjamin argued the cause for respondents. With him on the brief for respondent Shinn was Arthur A. Crais, Jr. Charles M. Thompson, Jr., filed a brief for respondents Higginbotham et al. I. P. Saal, Jr., filed a brief for respondent Nation.
   Mr. Justice Stevens

delivered the opinion of the Court.

This case involves death on the high seas. The question is whether, in addition to the damages authorized by federal statute, a decedent’s survivors may also recover damages under general maritime law. The United States Court of Appeals for the Fifth Circuit, disagreeing with the First Circuit, held that survivors may recover for their “loss of society,” as well as for their pecuniary loss. We reverse.

Petitioner used a helicopter in connection with its oil drilling operations in the Gulf of Mexico about 100 miles from the Louisiana shore. On August 15, 1967, the helicopter crashed outside Louisiana’s territorial waters, killing the pilot and three passengers. In a suit brought by the passengers’ widows, in their representative capacities, the District Court accepted admiralty jurisdiction and found that the deaths were caused by petitioner’s negligence. The court awarded damages equal to the pecuniary losses suffered by the families of two passengers. Although the court valued the two families’ loss of society at $100,000 and $155,000, it held that the law did not authorize recovery for this loss. The Court of Appeals reversed, holding that the plaintiffs were entitled to claim damages for loss of society. We granted certiorari limited to this issue. 434 U. S. 816.

I

In 1877, the steamer Harrisburg collided with a schooner in Massachusetts coastal waters. The schooner sank, and its first officer drowned. Some five years later, his widow brought a wrongful-death action against the Harrisburg. This Court held that admiralty afforded no remedy for wrongful death in the absence of an applicable state or federal statute. The Harrisburg, 119 U. S. 199. Thereafter, suits arising out of maritime fatalities were founded by necessity on state wrongful-death statutes. See, e. g., The Hamilton, 207 U. S. 398.

In 1920, Congress repudiated the rule of The Harrisburg for maritime deaths occurring beyond the territorial waters of any State. It passed the Death on the High Seas Act (hereinafter sometimes DOHSA), creating a remedy in admiralty for wrongful deaths more than three miles from shore. This Act limits the class of beneficiaries to the decedent’s “wife, husband, parent, child, or dependent relative,” establishes a two-year period of limitations, allows suits filed by the victim to continue as wrongful-death actions if the victim dies of his injuries while suit is pending, and provides that contributory negligence will not bar recovery. With respect to damages, the statute declares: “The recovery . . . shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought . . . .”

In the half century between 1920 and 1970, deaths on the high seas gave rise to federal suits under DOHSA, while those in territorial waters were largely governed by state wrongful-death statutes. DOHSA brought a measure of uniformity and predictability to the law on the high seas, but in territorial waters, where The Harrisburg made state law the only source of a wrongful-death remedy, the continuing impact of that decision produced uncertainty and incongruity. The reasoning of The Harrisburg, which was dubious at best in 1886, became less and less satisfactory as the years passed.

In 1970, therefore, the Court overruled The Harrisburg. In Moragne v. States Marine Lines, Inc., 398 U. S. 375, the Court held that a federal remedy for wrongful death does exist under general maritime law. The case concerned a death in Florida’s territorial waters. The defendant argued that Congress, by limiting DOHSA to the high seas, had evidenced an intent to preclude federal judicial remedies in territorial waters. The Court concluded, however, that the reason Congress confined DOHSA to the high seas was to prevent the Act from abrogating, by its own force, the state remedies then available in state waters. Id., at 400.

In Moragne the Court left various subsidiary questions concerning the nonstatutory death remedy — such as the schedule of beneficiaries and the limitations period — for “further sifting through the lower courts in future litigation.” Id., at 408. A few years later, in Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573, the Court confronted some of these questions. Among the issues addressed in Gaudet was the measure of survivors' damages. The Court held that awards could include compensation for loss of support and services, for funeral expenses, and for loss of society, but not for mental anguish or grief. Id., at 583-591. The Court recognized that DOHSA, which compensates only for pecuniary losses, did not allow awards for loss of society. But the accident in Gaudet, like that in Moragne, took place in territorial waters, where DOHSA does not apply. The Court chose not to adopt DOHSA’s pecuniary-loss standard; instead it followed the “clear majority of States” and “the humanitarian policy of the maritime law,” both of which favored recovery for loss of society. 414 U. S., at 587-588. In sum, the Court made a policy determination in.Gaudet which differed from the choice made by Congress when it enacted the Death on the High Seas Act.

II

The Gaudet opinion was broadly written. It did not state that the place where death occurred had an influence on its analysis. Gaudet may be read, as it has been, to replace entirely the Death on the High Seas Act. Its holding, however, applies only to coastal waters. We therefore must now decide which measure of damages to apply in a death action arising on the high seas — the rule chosen by Congress in 1920 or the rule chosen by this Court in Gaudet.

As the divergence of views among the States discloses, there are valid arguments both for and against allowing recovery for loss of society. Courts denying recovery cite two reasons; (1) that the loss is “not capable of measurement by any material or pecuniary standard,” and (2) that an award for the loss “would obviously include elements of passion, sympathy and similar matters of improper character.” 1 S. Speiser, Recovery for Wrongful Death § 3:49 (2d ed. 1974). Courts allowing the award counter: (1) that the loss is real, however intangible it may be, and (2) that problems of measurement should not justify denying all relief. See generally Sea-Land Services, Inc. v. Gaudet, supra, at 588-590.

In this case, however, we need not pause to evaluate the opposing policy arguments. Congress has struck the balance for us. It has limited survivors to recovery of their pecuniary losses. Respondents argue that Congress does not have the last word on this issue — that admiralty courts have traditionally undertaken to supplement maritime statutes and that such a step is necessary iii this case to preserve the uniformity of maritime law. Neither argument is decisive.

We recognize today, as we did in Moragne, the value of uniformity, but a ruling that DOHSA governs wrongful-death recoveries on the high seas poses only a minor threat to the uniformity of maritime law. Damages aside, none of the issues on which DOHSA is explicit have been settled to the contrary by this Court in either Moragne or Gaudet. Nor are other disparities likely to develop. As Moragne itself implied, DOHSA should be the courts’ primary guide as they refine the nonstatutory death remedy, both because of the interest in uniformity and because Congress’ considered judgment has great force in its own right. It is true that the measure of damages in coastal waters will differ from that on the high seas, but even if this difference proves significant, a desire for uniformity cannot override the statute.

We realize that, because Congress has never enacted a comprehensive maritime code, admiralty courts have often been called upon to supplement maritime statutes. The Death on the High Seas Act, however, announces Congress’ considered judgment on such issues as .the beneficiaries, the limitations period, contributory negligence, survival, and damages. See nn. 6-10, supra. The Act does not address every issue of wrongful-death law, see, e. g., n. 15, supra, but when it does speak directly to a question, the courts are not free to “supplement” Congress’ answer so thoroughly that the Act becomes meaningless.

In Moragne, the Court recognized a wrongful-death remedy that supplements federal statutory remedies. But that holding depended on our conclusion that Congress withheld a statutory remedy in coastal waters in order to encourage and preserve supplemental remedies. 398 U. S., at 397-398. Congress did not limit DOHSA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of non-pecuniary supplements. See generally Barbe v. Drummond, 507 F. 2d 794, 801 n. 10 (CA1 1974); Wilson v. Transocean Airlines, 121 F. Supp. 85 (ND Cal. 1954). There is a basic difference between filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and specificallly enacted. In the area covered by the statute, it would be no more appropriate to prescribe a different measure of damages than to prescribe a different statute of limitations, or a different class of beneficiaries. Perhaps the wisdom we possess today would enable us to do a better job of repudiating The Harrisburg than Congress did in 1920, but even if that be true, we have no authority to substitute our views for those expressed by Congress in a duly enacted statute.

Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Me. Justice BreNNAN took no part in the consideration or decision of this case.

Me. Justice Maeshall,

with whom Mr. Justice Black-mun joins,

dissenting.

Just a few years ago, in Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573 (1974), this Court held that, “under the maritime wrongful-death remedy, [a] decedent’s dependents may recover damages for their loss of . . . society . . . .” Id., at 584. The fact that the injury there occurred within three miles of shore, in the territorial waters of a State, had no bearing on the decision at the time it was rendered, as the majority today recognizes, ante, at 622-623. Nor did we place any emphasis on the situs of injury when we first upheld the maritime wrongful-death remedy, as a matter of “general maritime law,” in Moragne v. States Marine Lines, Inc., 398 U. S. 375, 409 (1970). Today the Court takes a narrow and unwarranted view of these cases, limiting them to their facts and making the availability of recovery for loss of society turn solely on a ship’s distance from shore at the time of the injury causing death.

A unanimous Court concluded in Moragne that the distance of a ship from shore is a fortuity unrelated to the reasons for allowing a seaman’s family to recover damages upon his death. See id., at 395-396, 405. These reasons are rooted in the traditions of maritime law, which has always shown “a special solicitude for the welfare of those men who undertake] to venture upon hazardous and unpredictable sea voyages.” Id., at 387. See also Gaudet, supra, at 588 (“humanitarian policy of the maritime law”). In light of this “special solicitude,” Mr. Justice Harlan examined in Moragne a number of “anomalies,” 398 U. S., at 395-396, that had resulted from the earlier rule of The Harrisburg, 119 U. S. 199 (1886), under which the availability of a cause of action for wrongful death at sea depended entirely on the existence of a statutory remedy.

The “anomaly” most relevant for present purposes was that “identical breaches of the duty to provide a seaworthy ship, resulting in death, produce [d] liability outside the three-mile limit — since a claim under the Death on the High Seas Act may be founded on unseaworthiness . . . —but not within the territorial waters of a State whose local statute exclude [d] unseaworthiness claims.” 398 U. S., at 395. The Moragne Court found “much force” in the argument of the United States (appearing as amicus curiae) that this difference in treatment based on location of the injury could not be supported by any “rational policy,” especially since the underlying duty to furnish a seaworthy vessel is a federal one. Id., at 395-396. Accordingly, because of this anomaly and others, the Court in Moragne declined to adhere any longer to “a rule unjustified in reason, which produces different results for breaches of duty in situations that cannot be differentiated in policy.” Id., at 405.

The Court today establishes a rule that, like the pre-Moragne rule, “produces different results ... in situations that cannot be differentiated in policy.” When death arises from injuries occurring within a State’s territorial waters, dependents will be able to recover for loss of society under the “humanitarian” rule of Gaudet. 414 U. S., at 588. But once a vessel crosses the imaginary three-mile line, the seaman’s dependents no longer have a remedy for an identical loss, occasioned by an identical breach of duty. Instead, they may recover only pecuniary losses, which are allowed them by the Death on the High Seas Act (DOHSA), 46 U. S. C. § 762.

The irony implicit in the Court’s result is readily apparent. As in the pr e-Moragne situation, the benefits available to a seaman’s dependents will once again vary depending on whether the injury causing death occurs in state territorial waters or on the high seas. Now, however, more generous benefits will be available if the injury occurs in state waters. We have thus come full circle from Moragne, which was designed to eliminate reliance on an artificial three-mile line as the basis for disparate treatment of dependents of similarly situated seamen. There is undoubtedly a certain symmetry in the Court’s return to the pr e-Moragne anomalies, but it is a symmetry that is both patently unfair to a seaman’s dependents and flatly inconsistent with the spirit of Moragne and Gaudet.

The dictates of fairness and the words of this Court would all be beside the point, of course, if Congress could^be said to have made a determination to disallow any recovery except pecuniary loss with regard to deaths arising on the high seas. But Congress made no such determination when it passed DOHSA. Congress was writing in 1920 against the background of The Harrisburg, under which a remedy for death on the high seas depended entirely on the existence of a statute allowing recovery. This rule left many dependents without any remedy and was viewed as “a disgrace to civilized people.” By enacting DOHSA, Congress sought to “bring our maritime law into line with the laws of those enlightened nations which confer a right of action for death at sea.” S. Rep. No. 216, 66th Cong., 1st Sess., 4 (1919); H. R. Rep. No. 674, 66th Cong., 2d Sess., 4 (1920), quoted in Moragne, supra, at 397.

The Court today uses this ameliorative, remedial statute as the foundation of a decision denying a remedy. It purports to find, in the section of DOHSA that provides for “fair and just compensation for the pecuniary loss sustained,” 46 U. S. C. § 762, a “considered judgment” by Congress that recovery must be limited to pecuniary loss, ante, at 625-, Nothing in this section, however, states that recovery must be so limited; certainly Congress was principally concerned, not with limiting recovery, but with ensuring that those suing under DOHSA were able to recover at least their pecuniary loss. As Representative Montague stated in the House debate, the Act was meant to provide a cause of action “in cases where there is now no remedy.” 59 Cong. Rec. 4486 (1920). See generally S. Rep. No. 216, supra, at 2-5; H. R. Rep. No. 674, supra, at 2-4; 59 Cong. Rec. 4482-4486 (1920). See also Moragne, 398 U. S., at 393 (DOHSA was designed “to furnish [a] remedy denied by the courts”).

Although recognizing that DOHSA was a response to The Harrisburg, ante, at 620, the majority opinion otherwise ignores the legislative history of the Act. The fundamental premise of the opinion — that Congress meant to “limi[t] survivors to recovery of their pecuniary losses,” ante, at 623 — is simply assumed. Today's decision thus stands in sharp contrast to Moragne, where Mr. Justice Harlan carefully surveyed the legislative history and then concluded that “no intention appears that the Act have the effect of foreclosing any non-statutory federal remedies that might be found appropriate to effectuate the policies of general maritime law.” 398 U. S., at 400.

Because there is no congressional directive to foreclose nonstatutory remedies, I believe that maritime law principles require us to uphold the remedy for loss of society at issue here. The general approach that mandates this result was stated over 100 years ago by Mr. Chief Justice Chase, sitting on circuit, in a passage that has since been quoted in both Moragne and Oaudet:

“[CJertainly it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.” The Sea Gull, 21 F. Cas. 909, 910 (No. 12,578) (CC Md. 1865), quoted in 398 U. S., at 387; 414 U. S., at 583.

In the instant case we have no “established and inflexible rule”; we have at most an expression of the minimum recovery that must be available to.the dependents of a seaman who dies on the high seas. When DOHSA is read against the background out of which it arose — rather than as if it had been written after Moragne and Gaudet — it becomes apparent that Congress did not mean to exclude the possibility of recovery beyond pecuniary loss.

The only remaining issue is whether allowing recovery for loss of society would be “appropriate to effectuate the policies of general maritime law.” Moragne, supra, at 400. This issue was resolved in Gaudet, where we stated, without any situs qualifications, that recovery for loss of society is not merely “appropriate to effectuate” maritime law policies but is “compelled” by them. 414 U. S., at 588. I would follow Gaudet in this case and thereby avoid the creation of a new and unfair “anomaly” of the type that Moragne was intended to eliminate.

Accordingly, I dissent.

       Compare Barbe v. Drummond, 507 F. 2d 794, 800-802 (CA1 1974), with Higginbotham v. Mobil Oil Corp., 545 F. 2d 422 (CA5 1977). The members of the Higginbotham panel expressed their agreement with Barbe, swpra, but considered the issue foreclosed in their Circuit by Law v. Sea Drilling Corp., 510 F. 2d 242, on rehearing, 523 F. 2d 793 (CA5 1975). In that case, another Fifth Circuit panel stated that the statutory remedy provided by the Death on the High Seas Act was no longer needed. Id., at 798. See also n. 16, infra.

       357 F. Supp. 1164, 1167 (WD La. 1973). The District Court bottomed admiralty jurisdiction on a finding that the helicopter was the functional equivalent of a erewboat. The ruling has not been challenged in this Court. Cf. Executive Jet Aviation, Inc. v. Cleveland, 409 U. S. 249, 271-272.

       360 F. Supp. 1140 (WD La. 1973). One family received $362,297, the other $163,400. The District Court held that the third passenger’s family could claim benefits only under the Longshoremen’s and Harbor Workers’ Compensation Act. 33 U. S. C. § 901 et seq. The Court of Appeals reversed this ruling. 545 F. 2d, at 431-433.

       The former figure included $50,000 for one widow and $50,000 for her only daughter. The latter figure included $25,000 for the second widow and for each of two minor children, as well as $20,000 for each of four older children. 360 F. Supp., at 114A-1148.

       41 Stat. 537, 46 U. S. C. § 761 et seq.

       § 761.

       § 763.

       § 765.

       § 766. In addition, the statute preserved the applicability of local law on the Great Lakes, in the Panama Canal Zone, and within the States’ territorial waters. § 767. Rights under foreign wrongful-death laws were also preserved. § 764.

       § 762.

       The death of a seaman was an exception to this rule. The Jones Act gives a remedy to the dependents of a seaman killed in the course of employment by his employer’s negligence, no matter where the wrong takes place. § 688.

       In The Tungus v. Skovgaard, 358 U. S. 588, for example, the Court could not definitively determine whether New Jersey law allowed recovery for unseaworthiness or required proof of negligence.

       Three anomalies were identified in Moragne v. States Marine Lines, Inc., 398 U. S. 375. In States with limited wrongful-death remedies, shipowners were liable if their breach of a maritime duty caused injury but not if the breach caused death. Furthermore, deaths due to unseaworthiness had a remedy on the high seas, but often w>ent unremedied inside the three-mile limit. Finally, “true” seamen were denied the benefit of state wrongful-death laws while longshoremen doing seamen’s work could assert claims under state law. Id., at 395-396.

       The Court in The Harrisburg arrived at its conclusion after rejecting arguments founded on nothing more than “good reason,” “natural equity,” and the experience of nations like France and Scotland. 119 U. S., at 212-213.

       The primary issue in Gaudet was whether a decedent’s survivors could bring a Moragne action even though the decedent himself had sued and recovered damages before dying. DOHSA offered no guidance on this issue. 414 U. S., at 683 n. 10. In the course of providing its own answer, the Court addressed the contention that the survivors’ recovery would simply duplicate the decedent’s. The Court outlined the elements of damages under the new maritime-death remedy and noted that several were distinct from those available to the decedent himself.

       As Chief Judge Brown put it in Law v. Sea Drilling Corp., 523 F. 2d 793 (CA5 1975): “It is time that the dead hand of The Harrisburg•— whether in the courts or on the elbow of the congressional draftsmen of DOHSA — follow the rest of the hulk to an honorable rest in the briney deep. ... No longer does one need . . . DOHSA as a remedy. There is a federal maritime cause of action for death on navigable waters — any navigable waters — and it can be enforced in any court.” Id., at 798.

       The award contemplated by Gaudet is especially difficult to compute, for the jury must calculate the value of the lost love and affection without awarding damages for the survivors’ grief and mental anguish, even though that grief is probably the most tangible expression of the survivors’ emotional loss. See Sea-Land Services, Inc. v. Gaudet, 414 U. S., at 585-586, n. 17. See also G. Gilmore & C. Black, Law of Admiralty 372 (2d ed. 1975).

        Moragne proclaimed the need for uniformity in a far more compelling context. When Moragne was decided, fatal accidents on the high seas had an adequate federal remedy, while the same accidents nearer shore might yield more generous awards, or none at all, depending on the law of the nearest State. The only disparity that concerns us today is the difference between applying one national rule to fatalities in territorial waters and a slightly narrower national rule to accidents farther from land.

        Moragne recognized that the courts would need to devise a limitations period and a schedule of beneficiaries for the new death remedy. The Court considered several alternative solutions to these problems. Only DOHSA, however, figured prominently in the discussion of both issues. 398 U. S., at 405-408.

       It remains to be seen whether the difference between awarding loss-of-society damages under Oaudet and denying them under DOHSA has a great practical significance. It may be argued that the competing views on awards for loss of society, see supra, at 623, can best be reconciled by allowing an award that is primarily symbolic, rather than a substantial portion of the survivors’ recovery. We have not been asked to rule on the propriety of the large sums that the District Court would have awarded for loss of society in this case. See n. 4, supra.

      Similarly, there may be no great disparity between DOHSA and Gaudet on the issue of funeral expenses. Gaudet awards damages to dependents who have paid, or will pay, for the decedent’s funeral, evidently on the theory that, but for the wrongful death, the decedent would have accumulated an estate large enough to pay for his own funeral. 414 U. S., at 591. On that theory, the cost of the funeral could also be considered a pecuniary loss suffered by the dependent as a result of the death.