text:
    No. 88-1872.
    No. 88-2074.
    No. 88-7318.
    No. 88-7332.
    No. 88-7351.
    No. 88-7629.
    No. 89-189.
    No. 89-453.
    No. 89-1687.
    No. 89-1703.
    No. 89-1783.
    No. 89-5008.
    No. 89-5016.
    No. 89-5146.
    No. 89-5219.
    No. 89-5232.
    No. 89-5346.
    No. 89-5443.
    No. 89-5616.
    No. 89-5635.
    No. 89-5704.
    Rutan et al. v. Republican Party of Illinois et al., Frech et al. v. Rutan et al., Cain v. South Carolina, Jimerson v. Illinois, Walton v. Arizona, Vickers v. Arizona, Lewis, Director, Arizona Department of Corrections, et al. v. Jeffers, Metro Broadcasting, Inc. v. Federal Communications Commission et al., Communications Satellite Corp. v. Federal Communications Commission et al., Snyder v. Lewis, Secretary of the Commonwealth of Pennsylvania, Meyer v. State Bar of Texas; and Meyer v. Lowry, District Judge, 261st Judicial District, Travis County, Texas, et al., Salazar v. Illinois, Libberton v. Arizona, Odle v. Illinois, Young v. Illinois, Phillips v. Illinois, Bradley v. Ohio, Flores v. Illinois, McKinney v. Idaho, Miller v. Tennessee, Allen v. Zant, Superintendent, Georgia Diagnostic and Classification Center, Sawyer v. Smith, Interim Warden, Cartwright v. Oklahoma, Coleman v. Illinois, Owens v. Illinois, Lankford v. Idaho, Holman v. Illinois, Kokoraleis v. Illinois, Knapp v. Maschner et al., Ford et al. v. Rutledge et al., Christopherson et ux. v. Shawano County, Kurtz v. Edmiston, Superintendent, Southern State Correctional Facility, et al., Barrow v. Illinois, Accolla v. Sullivan, Superintendent, Sing Sing Correctional Facility, et al., Curtis v. American Bakeries Co. et al., Isaacs v. Georgia, Mukhtar v. United States,
   ante, p. 62;

ante, p. 62;

ante, p. 1010;

ante, p. 1031;

ante, p. 639;

ante, p. 1033;

ante, p. 764;

ante, p. 547;

ante, p. 1004;

ante, p. 1004;

ante, p. 1026;

ante, p. 1031;

ante, p. 1031;

ante, p. 1031;

ante, p. 1031;

ante, p. 1031;

ante, p. 1011;

ante, p. 1031;

ante, p. 1031;

ante, p. 1031;

ante, p. 1031;

No. 89-5809.

No. 89-5934.

No. 89-6317.

No. 89-6459.

No. 89-6626.

No. 89-6870.

No. 89-6953.

No. 89-7110.

No. 89-7213.

No. 89-7353.

No. 89-7375.

No. 89-7380.

No. 89-7416.

No. 89-7418.

No. 89-7512.

No. 89-7579.

ante, p. 227;

ante, p. 1015;

ante, p. 1032;

ante, p. 1032;

ante, p. 1032;

ante, p. 1032;

ante, p. 1032;

496 U. S. 939;

496 U. S. 910;

ante, p. 1007;

ante, p. 1007;

ante, p. 1011;

ante, p. 1027;

ante, p. 1027;

ante, p. 1032; and

ante, p. 1010. Petitions for rehearing denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 89-1380.
    Crider v. United States,
   495 U. S. 956. Motion of petitioner to defer consideration of petition for rehearing denied. Petition for rehearing denied.


text:
    No. 89-1803.
    Schaefer v. Gallego et al.,
   ante, p. 1026. Motion of petitioner for leave to proceed further herein in forma pauperis granted. Petition for rehearing denied.


text:
    No. 89-7350.
    In re Swentek,
   496 U. S. 904. Motion for leave to file petition for rehearing denied.


author: Justice Marshall,

text:
    August 31, 1990
    No. A-169.
    Gilmore v. Missouri.
   Application for stay of execution of sentence of death, presented to Justice Blackmun, and by him referred to the Court, denied.

Justice Scalia took no part in the consideration or decision of this application.

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gr'egg v. Georgia, 428 U. S. 153, 231 (1976), I would grant the application for stay of execution in order to give the applicant time to file a petition for writ of certio-rari and would grant the petition and vacate the death sentence in this case.


text:
    No. 90-5599 (A-167).
    Gilmore v. Delo, Superintendent, Potosi Correctional Center.
   C. A. 8th Cir. Application for stay of execution of sentence of death, presented to JUSTICE Blackmun, and by him referred to the Court, denied. Certiorari denied. Justice Scalia took no part in the consideration or decision of this application and this petition.

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976), I would grant the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    September 5, 1990
    No. A-178.
    Lockhart, Director, Arkansas Department of Correction v. Fairchild.
   Application of the Attorney General of Arkansas for an order to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit, presented to Justice Blackmun, and by him referred to the Court, denied.


text:
    September 6, 1990
    No. 90-5610 (A-175).
    Fairchild v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Application for stay of execution of sentence of death, presented to Justice Blackmun, and by him referred to the Court, denied. Certiorari denied.

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976), I would grant the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    September 9, 1990
    No. A-192.
    Coleman v. Oklahoma Pardon and Parole Board et al.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

Justice Blackmun took no part in the consideration or decision of this application.

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976), I would grant the application for stay of execution in order to give the applicant time to file a petition for writ of certio-rari and would grant the petition and vacate the death sentence in this case.


text:
    No. 90-5669 (A-191).
    Coleman v. Saffle, Warden.
   C. A. 10th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari denied. Justice Blackmun took no part in the consideration or decision of this application and this petition.

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976), I would grant the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    September 11, 1990
    No. A-193.
    Silagy et al. v. Thompson, Governor of Illinois, et al.
   Application for temporary injunction, presented to Justice Stevens, and by him referred to the Court, denied. Justice Marshall would grant the application.

Justice Blackmun took no part in the consideration or decision of this application.


text:
    September 20, 1990
    No. A-223.
    Hamblen v. Dugger, Secretary, Florida Department of Corrections.
   Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied.

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976), I would grant the application for stay of execution in order to give the applicant time to file a petition for writ of certio-rari and would grant the petition and vacate the death sentence in this case.


text:
    September 21, 1990
    No. A-900 (90-348).
    New Era Publications International, ApS v. Carol Publishing Group.
   C. A. 2d Cir. Application for stay, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. A-140 (90-5723).
    Steeley v. Alabama.
   Ct. Crim. App. Ala. Application for stay, addressed to Justice Scalia and referred to the Court, denied.


text:
    No. A-160.
    Ahmad v. Wigen, Warden.
   C. A. 2d Cir. Application for stay, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. A-170.
    Ivezaj v. Immigration and Naturalization Service et al.
   Application for stay of deportation, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. D-854.
    In re Disbarment of McCallum.
    [For earlier order herein, see 498 U. S. 1053.]
   Disbarment entered.


text:
    No. D-878.
    In re Disbarment of Schwartz.
    [For earlier order herein, see 494 U. S. 1052.]
   Disbarment entered.


text:
    No. D-894.
    In re Disbarment of Ostrowsky.
    [For earlier order herein, see 495 U. S. 902.]
   Disbarment entered.


text:
    No. D-900.
    In re Disbarment of Skevin.
    [For earlier order herein, see 495 U. S. 954.]
   Disbarment entered.


text:
    No. D-901.
    In re Disbarment of Olster.
    [For earlier order herein, see 495 U. S. 955.]
   Disbarment entered.


text:
    No. D-906.
    In re Disbarment of Erickson.
    [For earlier order herein, see 496 U. S. 923.]
   Disbarment entered.


text:
    No. D-912.
    In re Disbarment of Brockmeier.
    [For earlier order herein, see 496 U. S. 934.]
   Disbarment entered.


text:
    No. D-924.
    In re Disbarment of Parker.
   It is ordered that Charles Lionel Parker, of Akron, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-925.
    In re Disbarment of Melaro.
   It is ordered that H. J. M. Melaro, of Silver Spring, Md., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-926.
    In re Disbarment of McBride.
   It is ordered that Willard Carlos McBride, of Hillerest Heights, Md., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-927.
    In re Disbarment of Isaacson.
   It is ordered that Michael Isaacson, of Baltimore, Md., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-928.
    In re Disbarment of Keady.
   It is ordered that Michael Jennings Ready, of Palo Alto, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-929.
    In re Disbarment of Brimberry.
   It is ordered that Robert E. Brimberry, of Brea, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-930.
    In re Disbarment of Hobson.
   It is ordered that Donald L. Hobson, of Detroit, Mich., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-931.
    In re Disbarment of Ryan.
   It is ordered that James P. Ryan, of Fort Lauderdale, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-932.
    In re Disbarment of Bussey.
   It is ordered that Charles L. Bussey, Jr., of St. Louis, Mo., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-933.
    In re Disbarment of Ross.
   It is ordered that Arnold L. Ross, of Agoura Hills, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-934.
    In re Disbarment of Standard.
   It is ordered that R. Michael Standard, of Los Angeles, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-935.
    In re Disbarment of Antico.
   It is ordered that Peter J. Antico, of Jersey City, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-936.
    In re Disbarment of Feldman.
   It is ordered that David Phillip Feldman, of East Amherst, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-937.
    In re Disbarment of Deam.
   It is ordered that William Alan Deam, of Yankton, S. D., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-938.
    In re Disbarment of Ireland.
   It is ordered that Gregory F. Ireland, of Carmel, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    September 26, 1990
    No. 90-5464.
    Rommann v. United States.
   C. A. 6th Cir. Certiorari dismissed under this Court’s Rule 46.


text:
    September 27, 1990
    No. 90-121.
    Pittsburgh Corning Corp. v. Simpson, Individually and as Executrix of Estate of Simpson, Deceased.
   C. A. 2d Cir. Certiorari dismissed under this Court’s Rule 46.


text:
    September 28, 1990
    No. 89-1769.
    Republic of China v. Liu.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 46.


author:
Per Curiam.
      Justice Marshall,

text:
    SHELL v. MISSISSIPPI
    No. 89-7279.
    Decided October 29, 1990
   Per Curiam.

The motion of petitioner for leave to proceed informa pau-peris and the petition for a writ of certiorari are granted. To the extent that the Mississippi Supreme Court relied on the “especially heinous, atrocious, or cruel” aggravating factor in affirming petitioner’s death sentence, its decision is reversed. See Maynard v. Cartwright, 486 U. S. 356 (1988). Although the trial court in this case used a limiting instruction to define the “especially heinous, atrocious, or cruel” factor, that instruction is not constitutionally sufficient. See Godfrey v. Georgia, 446 U. S. 420 (1980); Cartwright v. Maynard, 822 F. 2d 1477, 1489-1491 (CA10 1987) (en banc), aff’d, 486 U. S. 356 (1988). The case is remanded to the Mississippi Supreme Court for further consideration in light of Clemons v. Mississippi, 494 U. S. 738 (1990).

It is so ordered.

Justice Marshall,

concurring.

I concur in the reversal of petitioner’s- death sentence. For the benefit of lower courts confronted with the issue raised in this case, I write separately to clarify what I understand the basis of this disposition to be.

Petitioner was convicted of murder and sentenced to death. He appealed his sentence on the ground that the jury had been improperly instructed to consider whether the charged murder was “especially heinous, atrocious or cruel,” an aggravating factor that we deemed unconstitutionally vague in Maynard v. Cartwright, 486 U. S. 356, 361-364 (1988). The Mississippi Supreme Court affirmed. It reasoned that Maynard was distinguishable because the trial court in this case limited the “especially heinous, atrocious or cruel” factor in its charge to the jury. The instruction in question provided:

“[T]he word heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of[,] the suffering of others.” 554 So. 2d 887, 905-906 (Miss. 1989).

These definitions, the court held, cured any constitutional deficiency in the underlying “heinous, atrocious or cruel” instruction. Id., at 906.

This conclusion was in error. The trial court in Maynard issued a supplemental instruction defining “especially heinous, atrocious or cruel” in terms nearly identical to the “limiting” instruction given in this case:

“ ‘[T]he term “heinous” means extremely wicked or shockingly evil; “atrocious” means outrageously wicked and vile; “cruel” means pitiless, or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others.’” Cartwright v. Maynard, 822 F. 2d 1477, 1488 (CA10 1987) (en banc).

The Tenth Circuit sitting en banc held that this instruction did not cure the constitutional defect in the underlying “heinous, atrocious or cruel” instruction, see id., at 1489-1491, and, in affirming that judgment, this Court implicitly agreed.

The basis for this conclusion is not difficult to discern. Obviously, a limiting instruction can be used to give content to a statutory factor that “is itself too vague to provide any guidance to the sentencer” only if the limiting instruction’s own “definitions are constitutionally sufficient,” that is, only if the limiting instruction itself “provide[s] some guidance to the sentencer.” Walton v. Arizona, 497 U. S. 639, 654 (1990). The trial court’s definitions of “heinous” and “atrocious” in this ease (and in Maynard) clearly fail this test; like “heinous” and “atrocious” themselves, the phrases “extremely wicked or shockingly evil” and “outrageously wicked and vile” could be used by “ ‘[a] person of ordinary sensibility [to] fairly characterize almost every murder.’” Maynard v. Cartwright, supra, at 363 (quoting Godfrey v. Georgia, 446 U. S. 420, 428-429 (1980) (plurality opinion)) (emphasis added). Indeed, there is no meaningful distinction between these latter formulations and the “outrageously or wantonly vile, horrible and inhuman” instruction expressly invalidated in Godfrey v. Georgia, supra.

Nor is it of any consequence that the trial court defined “cruel” in an arguably more concrete fashion than “heinous” or “atrocious.” Cf. Walton v. Arizona, supra, at 655 (approving instruction equating “cruel” with infliction of “mental anguish or physical abuse”). “It has long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction [or verdict] be set aside.” Leary v. United States, 395 U. S. 6, 31-32 (1969); see also Boyde v. California, 494 U. S. 370, 379-380 (1990) (acknowledging principle in capital sentencing context). Even assuming that the trial court permissibly defined “cruel,” the instruction in this case left the jury with two constitutionally infirm, alternative bases on which to find that petitioner committed the charged murder in an “especially heinous, atrocious or cruel” fashion. See Bachellar v. Maryland, 397 U. S. 564, 569-571 (1970) (condemning post hoc speculation as to which alternative ground informed jury verdict).

There is no legally tenable distinction, in sum, between this case and Maynard v. Cartwright.


author: Per Curiam.

text:
    TEMPLE v. SYNTHES CORP., LTD.
    No. 90-295.
    Decided November 5, 1990
   Per Curiam.

Petitioner Temple, a Mississippi resident, underwent surgery in October 1986 in which a “plate and screw device” was implanted in his lower spine. The device was manufactured by respondent Synthes Corp., Ltd. (U. S. A.) (Synthes), a Pennsylvania corporation. Dr. S. Henry LaRocca performed the surgery at St. Charles General Hospital in New Orleans, Louisiana. Following surgery, the device’s screws broke off inside Temple’s back.

Temple filed suit against Synthes in the United States District Court for the Eastern District of Louisiana. The suit, which rested on diversity jurisdiction, alleged defective design and manufacture of the device. At the same time, Temple filed a state administrative proceeding against Dr. LaRocca and the hospital for malpractice and negligence. At the conclusion of the administrative proceeding, Temple filed suit against the doctor and the hospital in Louisiana state court.

Synthes did not attempt to bring the doctor and the hospital into the federal action by means of a third-party complaint, as provided in Federal Rule of Civil Procedure 14(a). Instead, Synthes filed a motion to dismiss Temple’s federal suit for failure to join necessary parties pursuant to Federal Rule of Civil Procedure 19. Following a hearing, the District Court ordered Temple to join the doctor and the hospital as defendants within 20 days or risk dismissal of the lawsuit. According to the court, the most significant reason for requiring joinder was the interest of judicial economy. App. to Pet. for Cert. A-12. The court relied on this Court’s decision in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102 (1968), wherein we recognized that one focus of Rule 19 is “the interest of the courts and the public in complete, consistent, and efficient settlement of controversies.” Id., at 111. When Temple failed to join the doctor and the hospital, the court dismissed the suit with prejudice.

Temple appealed, and the United States Court of Appeals for the Fifth Circuit affirmed. 898 F. 2d 152 (1990) (judgt. order). The court deemed it “obviously prejudicial to the defendants to have the separate litigations being carried on,” because Synthes’ defense might be that the plate was not defective but that the doctor and the hospital were negligent, while the doctor and the hospital, on the other hand, might claim that they were not negligent but that the plate was defective. App. to Pet. for Cert. A-3. The Court of Appeals found that the claims overlapped and that the District Court therefore had not abused its discretion in ordering joinder under Rule 19. A petition for rehearing was denied.

In his petition for certiorari to this Court, Temple contends that it was error to label joint tortfeasors as indispensable parties under Rule 19(b) and to dismiss the lawsuit with prejudice for failure to join those parties. We agree. Synthes does not deny that it, the doctor, and the hospital are potential joint tortfeasors. It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. See Lawlor v. National Screen Service Corp., 349 U. S. 322, 329-330 (1955); Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U. S. 111, 132 (1912). See also Nottingham v. General American Communications Corp., 811 F. 2d 873, 880 (CA5) (per curiam), cert. denied, 484 U. S. 854 (1987). Nothing in the 1966 revision of Rule 19 changed that principle. See Provident Bank, supra, at 116-117, n. 12. The Advisory Committee Notes to Rule 19(a) explicitly state that “a tortfeasor with the usual ‘joint-and-several’ liability is merely a permissive party to an action against another with like liability.” 28 U. S. C. App., p. 595. There is nothing in Louisiana tort law to the contrary. See Mullin v. Skains, 252 La. 1009, 1014, 215 So. 2d 643, 645 (1968); La. Civ. Code Ann., Arts. 1794, 1795 (West 1987).

The opinion in Provident Bank, supra, does speak of the public interest in limiting multiple litigation, but that case is not controlling here. There, the estate of a tort victim brought a declaratory judgment action against an insurance company. We assumed that the policyholder was a person “who, under § (a), should be ‘joined if feasible.’” 390 U. S., at 108, and went on to discuss the appropriate analysis under Rule 19(b), because the policyholder could not be joined without destroying diversity. Id., at 109-116. After examining the factors set forth in Rule 19(b), we determined that the action could proceed without the policyholder; he therefore was not an indispensable party whose absence required dismissal of the suit. Id., at 116, 119.

Here, no inquiry under Rule 19(b) is necessary, because the threshold requirements of Rule 19(a) have not been satisfied. As potential joint tortfeasors with Synthes, Dr. La-Rocca and the hospital were merely permissive parties. The Court of Appeals erred by failing to hold that the District Court abused its discretion in ordering them joined as defendants and in dismissing the action when Temple failed to comply with the court’s order. For these reasons, we grant the petition for certiorari, reverse the judgment of the Court of Appeals for the Fifth Circuit, and remand for further proceedings consistent with this opinion.

It is so ordered.


text:
    UNITED STATES v. LOUISIANA et al. (ALABAMA AND MISSISSIPPI BOUNDARY CASE)
    No. 9,
    Orig.
    Decided May 31, 1960, February 26, 1985, and
    March 1, 1988
    Final Decree Entered December 12, 1960 — Supplemental Decree Entered November 5, 1990
   SUPPLEMENTAL DECREE

By its decision of February 26, 1985, the Court overruled the exception of the United States to the Report of its Special Master herein insofar as it challenged the Master’s determination that the whole Mississippi Sound constitutes historic inland waters, and, to this extent, adopted the Master’s recommendations and confirmed his Report.

On March 1, 1988, the Court resolved the disagreement between the United States and Mississippi as to that portion of the Mississippi coastline at issue in the above-captioned litigation and directed the parties to submit to the Special Master a proposed appropriate decree defining the claims of Alabama and Mississippi with respect to Mississippi Sound. The parties have agreed on and submitted to the Special Master a proposed decree in accordance with the Court’s decision of March 1, 1988.

IT IS ORDERED, ADJUDGED, AND DECREED as follows:

1. For the purposes of the Court’s Decree herein dated December 12, 1960, 364 U. S. 502 (defining the boundary line between the submerged lands of the United States and the submerged lands of the States bordering the Gulf of Mexico), the coastline of the States of Alabama and Mississippi shall be determined on the basis that the whole of Mississippi Sound constitutes state inland waters;

2. For the purposes of said Decree of December 12, 1960, the coastline of Alabama includes a straight line from a point on the western tip of Dauphin Island where X = 238690 and Y = 84050 in the Alabama plane coordinate system, west zone, and X = 659783.79 and Y = 204674.56 in the Mississippi plane coordinate system, east zone, to a point on the eastern tip of Petit Bois Island where X = 215985 and Y = 77920 in the Alabama plane coordinate system, west zone, and X = 637152.89 and Y = 198279.25 in the Mississippi plane coordinate system, east zone, so far as said line lies on the Alabama side of the Alabama-Mississippi boundary.

3. For the purposes of said Decree of December 12, 1960, the coastline of Mississippi includes the following:

(a) That portion of the straight line described in paragraph 2, above, lying on the Mississippi side of Alabama-Mississippi boundary;

(b) The baseline delimiting Petit Bois Island determined by the following points in the Mississippi plane coordinate system, east zone:

E. COORD. N. COORD.

X Y

A POINT AT 636103.06 197409.43

A POINT AT 635730.88 197167.57

A POINT AT 635197.10 196848.81

A POINT AT 634824.92 196606.95

A POINT AT 634494.81 196403.07

A LINE FROM 634116.89 196223.65

633487.70 195977.80 THROUGH

632600.10 195607.60 THROUGH

631541.99 195143.47 THROUGH

E. COORD N. COORD.

X Y

THROUGH 630508.20 194904.30

THROUGH 629479.90 194591.90

THROUGH 628525.00 194321.70

THROUGH 628401.73 194306.69

THROUGH 628036.92 194289.93

THROUGH 627476.60 194182.00

THROUGH 626488.60 193948.10

THROUGH 625932.59 193802.79

THROUGH 625516.00 193766.90

THROUGH 623861.36 193478.53

THROUGH 622820.50 193454.10

THROUGH 621823.80 193356.00

THROUGH 620825.20 193257.90

THROUGH 619847.89 193131.55

THROUGH 618538.77 193268.72

THROUGH 617735.69 193531.82

THROUGH 616497.05 194054.83

THROUGH 615577.50 194348.40

THROUGH 614799.01 194527.45

THROUGH 613600.50 194763.40

THROUGH 612681.90 194895.50

THROUGH 611818.33 195012.55

THROUGH 611021.34 195183.22

THROUGH 610184.77 195530.92

THROUGH 609391.80 195685.30

THROUGH 608419.90 195927.80

THROUGH 607720.29 196127.06

THROUGH 607475.00 196239.30

THROUGH 606247.30 196809.81

THROUGH 605675.10 197160.10

THROUGH 604270.15 197849.15

THROUGH 603527.87 198470.45

TO 603006.58 199221.84;

(c) A straight line from a point on the western tip of Petit Bois Island from X = 602984.74 and Y = 199379.08 in the Mississippi plane coordinate system, east zone, to a point on the eastern tip of Horn Island where X = 586698.88 and Y = 203743.22 in the same coordinate system;

(d) The baseline delimiting Horn Island determined by the following points in the Mississippi plane coordinate system, east zone:

E. COORD. N. COORD.

A POINT AT 586085.00 203413.20

A POINT AT 585408.00 202870.40

A LINE FROM 584539.17 202442.95

THROUGH 583521.30 202226.50

THROUGH 582523.70 201911.10

THROUGH 581217.11 201559.05

THROUGH 580172.00 201476.80

THROUGH 578707.40 201327.16

THROUGH 577716.60 201360.70

THROUGH 576762.47 201326.88

THROUGH 575057.04 201581.88

THROUGH 573405.12 201965.02

THROUGH 571199.22 202261.66

THROUGH 570919.81 202425.88

THROUGH 568628.38 202769.01

THROUGH 566917.90 203142.60

THROUGH 564973.10 203501.30

THROUGH 563121.32 203819.44

THROUGH 560958.00 204028.60

THROUGH 558940.70 204238.50

THROUGH 557048.68 204283.26

THROUGH 554930.20 204403.10

TO 553435.61 204348.41

A LINE FROM 551970.97 204538.74

THROUGH 551379.95 204841.79

E. COORD. N. COORD.

X Y

THROUGH 550663.93 205145.88

THROUGH 549562.53 205270.46

THROUGH 547945.52 205663.99

THROUGH 546875.90 206276.41

THROUGH 545696.10 206670.80

THROUGH 544396.00 207134.79

THROUGH 542861.16 207556.77

THROUGH 540851.48 208393.15

THROUGH 539596.30 208786.30

TO 538818.50 209086.77

A LINE FROM 536831.40 209354.10

THROUGH 535469.11 209055.01

THROUGH 533599.69 208590.63

THROUGH 532440.54 208312.06

THROUGH 530361.80 207949.10

THROUGH 528785.77 207676.76

THROUGH 527430.00 207570.30

THROUGH 526475.92 207467.20

THROUGH 525672.63 207540.27

THROUGH 522928.20 208196.10

THROUGH 521336.78 208496.86

THROUGH 520062.60 208576.80

THROUGH 519137.96 208626.07

TO 518074.58 209136.06;

(e) A straight line from a point on the western tip of Horn Island where X = 517785.04 and Y - 209525.13 in the same coordinate system to a point on the eastern tip of the most easterly segment of Ship Island where X = 486293.70 and Y = 208216.03 in the same coordinate system;

(f) The baseline delimiting the most easterly segment of Ship Island determined by the following points in the Mississippi plane coordinate system, east zone:

E. COORD. N. COORD.

X Y

A LINE FROM 485802.92 207647.85

484179.80 206426.60 THROUGH

482568.66 205272.72 THROUGH

480844.60 204246.60 THROUGH

479440.58 203436.29 THROUGH

478229.70 202788.30 THROUGH

476458.71 201921.54 THROUGH

475542.00 201634.30 THROUGH

475218.46 201529.55; TO

(g) A straight line from a point on the western tip of the easterly segment of Ship Island where X = 474673.81 and Y = 201505.68 in the same coordinate system to a point on the eastern end of the westerly segment of Ship Island where X = 469644.55 and Y = 200646.86 in the same coordinate system;

(h) The baseline delimiting the most westerly segment of Ship Island determined by the following points in the Mississippi plane coordinate system, east zone:

E. COORD. N. COORD.

X Y

A LINE FROM 468942.08 200226.18

468023.27 199707.98 THROUGH

466932.10 198967.80 THROUGH

465591.05 198219.69 THROUGH

464163.11 197420.58 THROUGH

463004.481 196885.896; TO

4. That portion of the Mississippi baseline west of the westerly segment of Ship Island determined above is the subject of a separate decree resolving Mississippi v. United States, Original No. 113.

5. The baseline described in Paragraphs 2 and 3 above shall be, pursuant to stipulation of the parties, fixed as of the date of this decree, and shall from that date no longer be ambulatory.

6. The parties shall bear their own costs of these proceedings; the actual expenses of the Special Master herein and the compensation due him shall be borne half by the United States and half by Mississippi.

7. After his final accounting has been approved and any balance due him has been paid, the Special Master shall be deemed discharged with the thanks of the Court.

8. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as from time to time may be deemed necessary or advisable to effectuate and supplement the decree and the rights of the respective parties.

Justice Marshall took no part in the consideration or formulation of this Supplemental Decree.


text:
    MISSISSIPPI v. UNITED STATES
    No. 113,
    Orig.
    Decided November 5, 1990
   DECREE

On March 1, 1988, this Court granted leave to the State of Mississippi and the United States to file a complaint with the Court setting forth their respective claims to “any undecided portion of Chandeleur Sound.” United States v. Louisiana et al. (Alabama and Mississippi Boundary Case), 485 U. S. 88 (1988). Thereafter, the State of Mississippi filed the above-captioned litigation which was timely answered by the United States.

Pursuant to a stipulation executed by the parties in resolution of the above-styled action, and solely for the purpose of determining the parties’ respective rights under the Submerged Lands Act, 43 U. S. C. § 1301 et seq., in the vicinity of Chandeleur Sound, the parties have agreed to a line which shall permanently mark the base line from which Mississippi’s Submerged Lands Act grant is measured. That line is described in Paragraph 3 below. Accordingly, the parties’ joint motion for entry of decree is granted.

IT IS ORDERED, ADJUDGED, AND DECREED as follows:

1. As against the plaintiff State of Mississippi and all persons claiming under it, the United States has exclusive rights to explore the area of the Continental Shelf reserved to the United States by the Submerged Lands Act, 43 U. S. C. § 1302, and to exploit the natural resources of said area and the State of Mississippi is not entitled to any interest in such lands, minerals, and resources and said State, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources. Solely for the purpose of determining each party’s rights under the Submerged Lands Act, the line described in Paragraph 3 hereof is stipulated by the parties to henceforth represent and permanently mark the line from which Mississippi’s Submerged Lands Act grant is measured.

2. As against the defendant United States and all persons claiming under it, the State of Mississippi has exclusive rights to explore the area of the Continental Shelf as provided by the Submerged Lands Act and to exploit the natural resources of said area, with the exceptions provided by § 5 of the Submerged Lands Act, 67 Stat. 32, 43 U. S. C. § 1313. The United States is not entitled to any interest in such lands, minerals, and resources and the United States, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the State of Mississippi in such lands, minerals and resources. Solely for the purpose of determining each party’s respective rights under the Submerged Lands Act, the line described in Paragraph 3 hereof is stipulated by the parties to henceforth represent and permanently mark the line from which Mississippi’s Submerged Lands Act grant is measured.

3. Solely for the purpose of determining each party’s respective rights under the Submerged Lands Act and in resolution of the above-captioned litigation, the following line is stipulated by the parties to henceforth represent and permanently mark the line from which Mississippi’s Submerged Lands Act grant is measured:

A straight line from a point on the southern shore of the most westerly segment of Ship Island where X = 463004.481 and Y = 196885.896 in the Mississippi plane coordinate system, east zone, and X = 2752646.58 and Y = 568331.88 in the Louisiana plane coordinate system, south zone, to a point near the northern tip of the most northerly of the Chandeleur Islands where X = 2775787 and Y = 513796 in the Louisiana plane coordinate system, south zone, so far as said line lies on the Mississippi side of the Mississippi-Louisiana boundary.

4. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to its previous orders or decrees herein or to this Decree or to effectuate the rights of the parties in the premises.

5. Nothing in this Decree or in the proceedings leading to it sháll prejudice any rights, claims or defenses of the State of Mississippi as to its maritime lateral boundaries with the State of Louisiana, which boundary is not at issue in this litigation. Nor shall the United States in any way be prejudiced hereby as to such matters. Nothing in this Decree shall prejudice any rights, claims or defenses of the United States or the State of Mississippi as to the inland water status of Chandeleur Sound. Nor shall anything in this Decree prejudice or modify the rights and obligations under any contracts or agreements, not inconsistent with this Decree, between the parties or between a party and a third party.


author: Justice O’Connor

text:
    MILES, Individually and as administratrix of the succession of TORREGANO v. APEX MARINE CORP. et al.
    No. 89-1158.
    Argued October 3, 1990
    Decided November 6, 1990

      O’Connor, J., delivered the opinion of the Court, in which all other Members joined, except Souter, J., who took no part in the consideration or decision of the case.

      Allain F. Hardin argued the cause for petitioner. With him on the briefs was A. Remy Fransen, Jr.

      Gerard T. Gelpi argued the cause for respondents. With him on the brief were Randall C. Coleman III, C. Gordon Starling, Jr., and Graydon S. Staring.

   Justice O’Connor

delivered the opinion of the Court.

We decide whether the parent of a seaman who died from injuries incurred aboard respondents’ vessel may recover under general maritime law for loss of society, and whether a claim for the seaman’s lost future earnings survives his death.

I

Ludwick Torregano was a seaman aboard the vessel MW Archon. On the evening of July 18, 1984, Clifford Melrose, a fellow crew member, stabbed Torregano repeatedly, killing him. At the time, the ship was docked in the harbor of Vancouver, Washington.

Mercedel Miles, Torregano’s mother and administratrix of his estate, sued Apex Marine Corporation and Westchester Marine Shipping Company, the vessel’s operators, Archon Marine Company, the charterer, and Aeron Marine Company, the Archon’s owner (collectively Apex), in the United States District Court for the Eastern District of Louisiana. Miles alleged negligence under the Jones Act, 41 Stat. 1007, as amended, 46 U. S. C. App. § 688, for failure to prevent the assault on her son, and breach of the warranty of seaworthiness under general maritime law for hiring a crew member unfit to serve. She sought compensation for loss of support and services and loss of society resulting from the death of her son, punitive damages, and compensation to the estate for Torregano’s pain and suffering prior to his death and for his lost future income.

At trial, the District Court granted Apex’s motion to strike the claim for punitive damages, ruled that the estate could not recover Torregano’s lost future income, and denied Miles’ motion for a directed verdict as to negligence and unseaworthiness. The court instructed the jury that Miles could not recover damages for loss of society if they found that she was not financially dependent on her son.

The jury found that Apex was negligent and that Torre-gano was 7% contributorily negligent in causing his death, but that the ship was seaworthy. After discounting for Torregano’s contributory negligence, the jury awarded Miles $7,254 for the loss of support and services of her son and awarded the estate $130,200 for Torregano’s pain and suffering. The jury also found that Miles was not financially dependent on her son and therefore not entitled to damages for loss of society. The District Court denied both parties’ motions for judgment notwithstanding the verdict and entered judgment accordingly.

The United States Court of Appeals for the Fifth Circuit affirmed in part, reversed in part, and remanded. 882 F. 2d 976 (1989). The court affirmed the judgment of negligence on the part of Apex, but held that there was insufficient evidence to support the contributory negligence finding. Id., at 983-985. Miles was therefore entitled to the full measure of $7,800 for loss of support and services, and the estate was entitled to $140,000 for Torregano’s pain and suffering. The court also found that Melrose’s extraordinarily violent disposition demonstrated that he was unfit and therefore that the Archon was unseaworthy as a matter of law. Id., at 983. Because this ruling revived Miles’ general maritime claim, the court considered two questions concerning the scope of damages under general maritime law. The court reaffirmed its prior decision in Sistrunk v. Circle Bar Drilling Co., 770 F. 2d 455 (1985), holding that a nondependent parent may not recover for loss of society in a general maritime wrongful death action. 882 F. 2d, at 989. It also held that general maritime law does not permit a survival action for decedent’s lost future earnings. Id., at 987.

We granted Miles’ petition for certiorari on these two issues, 494 U. S. 1003 (1990), and now affirm the judgment of the Court of Appeals.

II

We rely primarily on Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970). Edward Moragne was a longshoreman who had been killed aboard a vessel in United States and Florida territorial waters. His widow brought suit against the shipowner, seeking to recover damages for wrongful death due to the unseaworthiness of the ship. The District Court dismissed that portion of the complaint because neither federal nor Florida statutes allowed a wrongful death action sounding in unseaworthiness where death occurred in territorial waters. General maritime law was also no help; in The Harrisburg, 119 U. S. 199 (1886), this Court held that maritime law does not afford a cause of action for wrongful death. The Court of Appeals affirmed.

This Court overruled The Harrisburg. After questioning whether The Harrisburg was a proper statement of the law even in 1886, the Court set aside that issue because a “development of major significance ha[d] intervened.” Moragne, supra, at 388. Specifically, the state legislatures and Congress had rejected wholesale the rule against wrongful death. Every State in the Union had enacted a wrongful death statute. In 1920, Congress enacted two pieces of legislation creating a wrongful death action for most maritime deaths. The Jones Act, 41 Stat. 1007, as amended, 46 U. S. C. App. §688, through incorporation of the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §§ 51-59, created a wrongful death action in favor of the personal representative of a seaman killed in the course of employment. The Death on the High Seas Act (DOHSA), 41 Stat. 537, 46 U. S. C. App. §§761, 762, created a similar action for the representative of anyone killed on the high seas.

These statutes established an unambiguous policy in abrogation of those principles that underlay The Harrisburg. Such a policy is “to be given its appropriate weight not only in matters of statutory construction but also in those of deci-sional law.” Moragne, supra, at 391. Admiralty is not created in a vacuum; legislation has always served as an important source of both common law and admiralty principles. 398 U. S., at 391, 392, citing Landis, Statutes and the Sources of Law, in Harvard Legal Essays 213, 214, 226-227 (R. Pound ed. 1934). The unanimous legislative judgment behind the Jones Act, DOHSA, and the many state statutes created a strong presumption in favor of a general maritime wrongful death action.

But legislation sends other signals to which an admiralty court must attend. “The legislature does not, of course, merely enact general policies. By the terms of a statute, it also indicates its conception of the sphere within which the policy is to have effect.” Moragne, supra, at 392. Congress, in the exercise of its legislative powers, is free to say “this much and no more.” An admiralty court is not free to go beyond those limits. The Jones Act and DOHSA established a policy in favor of maritime wrongful death recovery. The central issue in Moragne was whether the limits of those statutes proscribed a more general maritime cause of action. 398 U. S., at 393.

The Court found no such proscription. Rather, the unfortunate situation of Moragne’s widow had been created by a change in the maritime seascape that Congress could not have anticipated. At the time Congress passed the Jones Act and DOHSA, federal courts uniformly applied state wrongful death statutes for deaths occurring in state territorial waters. Except in those rare cases where state statutes were also intended to apply on the high seas, however, there was no recovery for wrongful death outside territorial waters. See Moragne, supra, at 393, and n. 10. DOHSA filled this void, creating a wrongful death action for all persons killed on the high seas, sounding in both negligence and unseaworthiness. Congress did not extend DOHSA to territorial waters because it believed state statutes sufficient in those areas. 398 U. S., at 397-398.

And so they were when DOHSA was passed. All state statutes allowed for wrongful death recovery in negligence, and virtually all DOHSA claims sounded in negligence. Unseaworthiness was “an obscure and relatively little used remedy,” largely because a shipowner’s duty at that time was only to use due diligence to provide a seaworthy ship. See G. Gilmore & C. Black, The Law of Admiralty 383, 375 (2d ed. 1975). Thus, although DOHSA permitted actions in both negligence and unseaworthiness, it worked essentially as did state wrongful death statutes. DOHSA created a near uniform system of wrongful death recovery.

“The revolution in the law began with Mahnich v. Southern S. S. Co., [321 U. S. 96 (1944)],” in which this Court transformed the warranty of seaworthiness into a strict liability obligation. Gilmore & Black, supra, at 384, 386. The shipowner became liable for failure to supply a safe ship irrespective of fault and irrespective of the intervening negligence of crew members. Mahnich v. Southern S. S. Co., 321 U. S. 96, 100 (1944) (“[T]he exercise of due diligence does not relieve the owner of his obligation to the seaman to furnish adequate appliances. ... If the owner is liable for furnishing an unseaworthy appliance, even when he is not negligent, a for-tiori his obligation is unaffected by the fact that the negligence of the officers of the vessel contributed to the unseaworthiness”). The Court reaffirmed the rule two years later in Seas Shipping Co. v. Sieracki, 328 U. S. 85, 94-95 (1946) (“[Unseaworthiness] is essentially a species of liability without fault”). As a consequence of this radical change, unseaworthiness “[became] the principal vehicle for recovery by seamen for injury or death.” Moragne, 398 U. S., at 399. DOHSA claims now sounded largely in unseaworthiness. “The resulting discrepancy between the remedies for deaths covered by [DOHSA] and for deaths that happen to fall within a state wrongful-death statute not encompassing unseaworthiness could not have been foreseen by Congress.” Ibid.

The emergence of unseaworthiness as a widely used theory of liability made manifest certain anomalies in maritime law that had not previously caused great hardship. First, in territorial waters, general maritime law allowed a remedy for unseaworthiness resulting in injury, but not for death. Second, DOHSA allowed a remedy for death resulting from unseaworthiness on the high seas, but general maritime law did not allow such recovery for a similar death in territorial waters. Finally, in what Moragne called the “strangest” anomaly, in those States whose statutes allowed a claim for wrongful death resulting from unseaworthiness, recovery was available for the death of a longshoreman due to unseaworthiness, but not for the death of a Jones Act seaman. See Moragne, supra, at 395-396. This was because wrongful death actions under the Jones Act are limited to negligence, and the Jones Act pre-empts state law remedies for the death or injury of a seaman. See Gillespie v. United States Steel Corp., 379 U. S. 148, 154-156 (1964).

The United States, as amicus curiae, urged the Moragne Court to eliminate these inconsistencies and render maritime wrongful death law uniform by creating a general maritime wrongful death action applicable in all waters. The territorial limitations placed on wrongful death actions by DOHSA did not bar such a solution. DOHSA was itself a manifestation of congressional intent “to achieve ‘uniformity in the exercise of admiralty jurisdiction.’” Moragne, supra, at 401, quoting Gillespie, supra, at 155. Nothing in that Act or in the Jones Act could be read to preclude this Court from exercising its admiralty power to remedy nonuniformities that could not have been anticipated when those statutes were passed. Moragne, supra, at 399-400. The Court therefore overruled The Harrisburg and created a general maritime wrongful death cause of action. This result was not only consistent with the general policy of both 1920 Acts favoring wrongful death recovery, but also effectuated “the constitutionally based principle that federal admiralty law should be ‘a system of law coextensive with, and operating uniformly in, the whole country.’” Moragne, supra, at 402, quoting The Lottawanna, 21 Wall. 558, 575 (1875).

rH HH

We have described Moragne at length because it exemplifies the fundamental principles that guide our decision in this case. We no longer live in an era when seamen and their loved ones must look primarily to the courts as a source of substantive legal protection from injury and death; Congress and the States have legislated extensively in these areas. In this era, an admiralty court should look primarily to these legislative enactments for policy guidance. We may supplement these statutory remedies where doing so would achieve the uniform vindication of such policies consistent with our constitutional mandate, but we must also keep strictly within the limits imposed by Congress. Congress retains superior authority in these matters, and an admiralty court must be vigilant not to overstep the well-considered boundaries imposed by federal legislation. These statutes both direct and delimit our actions.

Apex contends that Moragne’s holding, creating a general maritime wrongful death action, does not apply in this case because Moragne was a longshoreman, whereas Torregano was a true seaman. Apex is correct that Moragne does not apply on its facts, but we decline to limit Moragne to its facts.

Historically, a shipowner’s duty of seaworthiness under general maritime law ran to seamen in the ship’s employ. See Sieracki, 328 U. S., at 90. In Sieracki, we extended that duty to stevedores working aboard ship but employed by an independent contractor. Id., at 95. As this was Mo-ragne’s situation, Moragne’s widow was able to bring an action for unseaworthiness under general maritime law. In a narrow sense, Moragne extends only to suits upon the death of longshoremen like Moragne, so-called Sieracki seamen. Torregano was a true seaman, employed aboard the Archon. Were we to limit Moragne to its facts, Miles would have no general maritime wrongful death action. Indeed, were we to limit Moragne to its facts, that case would no longer have any applicability at all. In 1972, Congress amended the Longshore and Harbor Workers’ Compensation Act (LHWCA), 86 Stat. 1251, as amended, 33 U. S. C. §§901-950, to bar any recovery from shipowners for the death or injury of a longshoreman or harbor worker resulting from breach of the duty of seaworthiness. See 33 U. S. C. § 905(b); American Export Lines, Inc. v. Alvez, 446 U. S. 274, 282, n. 9 (1980). If Moragne’s widow brought her action today, it would be foreclosed by statute.

Apex asks us not to extend Moragne to suits for the death of true seamen. This limitation is warranted, they say, because true seamen, unlike longshoremen, are covered under the Jones Act. The Jones Act provides a cause of action against the seaman’s employer for wrongful death resulting from negligence that Apex contends is preclusive of any recovery for death from unseaworthiness. See 46 U. S. C. App. §688.

This Court first addressed the preclusive effect of the Jones Act wrongful death provision in Lindgren v. United States, 281 U. S. 38 (1930). Petitioner, who was not a wrongful death beneficiary under the Jones Act, attempted to recover for the negligence of the shipowner under a state wrongful death statute. The Court held that the Jones Act pre-empted the state statute: “[The Jones] Act is one of general application intended to bring about the uniformity in the exercise of admiralty jurisdiction required by the Constitution, and necessarily supersedes the application of the death statutes of the several States.” Id., at 44. The Court also concluded that the Jones Act, limited as it is to recovery for negligence, would preclude recovery for the wrongful death of a seaman resulting from the unseaworthiness of the vessel. Id., at 47-48. In Gillespie v. United States Steel Corp., 379 U. S. 148 (1964), the Court reaffirmed Lindgren and held that the Jones Act precludes recovery under a state statute for the wrongful death of a seaman due to unseaworthiness. 379 U. S., at 154-156.

Neither Lindgren nor Gillespie considered the effect of the Jones Act on a general maritime wrongful death action. Indeed, no such action existed at the time those cases were decided. Moragne addressed the question explicitly. The Court explained there that the preclusive effect of the Jones Act established in Lindgren and Gillespie extends only to state remedies and not to a general maritime wrongful death action. See Moragne, 398 U. S., at 396, n. 12.

The Jones Act provides an action in negligence for the death or injury of a seaman. It thereby overruled The Osceola, 189 U. S. 158 (1903), which established that seamen could recover under general maritime law for injuries resulting from unseaworthiness, but not negligence. The Jones Act evinces no general hostility to recovery under maritime law. It does not disturb seamen’s general maritime claims for injuries resulting from unseaworthiness, Pacific S. S. Co. v. Peterson, 278 U. S. 130, 139 (1928), and it does not preclude the recovery for wrongful death due to unseaworthiness created by its companion statute, DOHSA. Kernan v. American Dredging Co., 355 U. S. 426, 430, n. 4 (1958). Rather, the Jones Act establishes a uniform system of seamen’s tort law parallel to that available to employees of interstate railway carriers under FELA. As the Court concluded in Moragne, the extension of the DOHSA wrongful death action to territorial waters furthers rather than hinders uniformity in the exercise of admiralty jurisdiction. Moragne, supra, at 396, n. 12.

There is also little question that Moragne intended to create a general maritime wrongful death action applicable beyond the situation of longshoremen. For one thing, Moragne explicitly overruled The Harrisburg. Moragne, supra, at 409. The Harrisburg involved a true seaman. The Harrisburg, 119 U. S., at 200. In addition, all three of the “anomalies” to which the Moragne cause of action was directed involved seamen. The “strangest” anomaly — that recovery was available for the wrongful death in territorial waters of a longshoreman, but not a true seaman — could only be remedied if the Moragne wrongful death action extended to seamen. It would be strange indeed were we to read Moragne as not addressing a problem that in large part motivated its result. If there has been any doubt about the matter, we today make explicit that there is a general maritime cause of action for the wrongful death of a seaman, adopting the reasoning of the unanimous and carefully crafted opinion in Moragne.

IV

Moragne did not set forth the scope of the damages recoverable under the maritime wrongful death action. The Court first considered that question in Sea-Land Services, Inc. v. Gaudet, 414 U. S. 673 (1974). Respondent brought a general maritime action to recover for the wrongful death of her husband, a longshoreman. The Court held that a dependent plaintiff in a maritime wrongful death action could recover for the pecuniary losses of support, services, and funeral expenses, as well as for the nonpecuniary loss of society suffered as the result of the death. Id., at 591. Gaudet involved the death of a longshoreman in territorial waters. Consequently, the Court had no need to consider the preclu-sive effect of DOHSA for deaths on the high seas or the Jones Act for deaths of true seamen.

We considered DOHSA in Mobil Oil Corp. v. Higginbotham, 436 U. S. 618 (1978). That case involved death on the high seas and, like Gaudet, presented the question of loss of society damages in a maritime wrongful death action. The Court began by recognizing that Gaudet, although broadly written, applied only in territorial waters and therefore did not decide the precise question presented. 436 U. S., at 622-623. Congress made the decision for us. DOHSA, by its terms, limits recoverable damages in wrongful death suits to “pecuniary loss sustained by the persons for whose benefit the suit is brought.” 46 U. S. C. App. §762 (emphasis added). This explicit limitation forecloses recovery for nonpecuniary loss, such as loss of society, in a general maritime action.

Respondents argued that admiralty courts have traditionally undertaken to supplement maritime statutes. The Court’s answer in Higginbotham is fully consistent with those principles we have here derived from Moragne: Congress has spoken directly to the question of recoverable damages on the high seas, and “when it does speak directly to a question, the courts are not free to ‘supplement’ Congress’ answer so thoroughly that the Act becomes meaningless.” Higginbotham, supra, at 625. Moragne involved gap filling in an area left open by statute; supplementation was entirely appropriate. But in an “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.” Higginbotham, supra, at 625.

The logic of Higginbotham controls our decision here. The holding of Gaudet applies only in territorial waters, and it applies only to longshoremen. Gaudet did not consider the preclusive effect of the Jones Act for deaths of true seamen. We do so now.

Unlike DOHSA, the Jones Act does not explicitly limit damages to any particular form. Enacted in 1920, the Jones Act makes applicable to seamen the substantive recovery provisions of the older FELA. See 46 U. S. C. App. § 688. FELA recites only that employers shall be liable in “damages” for the injury or death of one protected under the Act. 45 U. S. C. §51. In Michigan Central R. Co. v. Vreeland, 227 U. S. 59 (1913), however, the Court explained that the language of the FELA wrongful death provision is essentially identical to that of Lord Campbell’s Act, 9 & 10 Vict. ch. 93 (1846), the first wrongful death statute. Lord Campbell’s Act also did not limit explicitly the “damages” to be recovered, but that Act and the many state statutes that followed it consistently had been interpreted as providing recovery only for pecuniary loss. Vreeland, 227 U. S., at 69-71. The Court so construed FELA. Ibid.

When Congress passed the Jones Act, the Vreeland gloss on FELA, and the hoary tradition behind it, were well established. Incorporating FELA unaltered into the Jones Act, Congress must have intended to incorporate the pecuniary limitation on damages as well. We assume that Congress is aware of existing law when it passes legislation. See Cannon v. University of Chicago, 441 U. S. 677, 696-697 (1979). There is no recovery for loss of society in a Jones Act wrongful death action.

The Jones Act also precludes recovery for loss of society in this case. The Jones Act applies when a seaman has been killed as a result of negligence, and it limits recovery to pecuniary loss. The general maritime claim here alleged that Torregano had been killed as a result of the unseaworthiness of the vessel. It would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence. We must conclude that there is no recovery for loss of society in a general maritime action for the wrongful death of a Jones Act seaman.

Our decision also remedies an anomaly we created in Hig-ginbotham. Respondents in that case warned that the elimination of loss of society damages for wrongful deaths on the high seas would create an unwarranted inconsistency between deaths in territorial waters, where loss of society was available under Gaudet, and deaths on the high seas. We recognized the value of uniformity, but concluded that a concern for consistency could not override the statute. Higgin-botham, supra, at 624. Today we restore a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law.

V

We next must decide whether, in a general maritime action surviving the death of a seaman, the estate can recover decedent’s lost future earnings. Under traditional maritime law, as under common law, there is no right of survival; a seaman’s personal cause of action does not survive the seaman’s death. Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367, 371 (1932); Romero v. International Terminal Operating Co., 358 U. S. 354, 373 (1959); Gillespie, 379 U. S., at 157.

Congress and the States have changed the rule in many instances. The Jones Act, through its incorporation of FELA, provides that a seaman’s right of action for injuries due to negligence survives to the seaman’s personal representative. See 45 U. S. C. § 59; Gillespie, supra, at 157. Most States have survival statutes applicable to tort actions generally, see 1 S. Speiser, Recovery for Wrongful Death 2d §3.2 (1975 and Supp. 1989), 2 id., §§14.1, 14.3, App. A, and admiralty courts have applied these state statutes in many instances to preserve suits for injury at sea. See, e. g., Just v. Chambers, 312 U. S. 383, 391 (1941). See also Kernan v. Ameri can Dredging Co., 355 U. S., at 430, n. 4; Kossick v. United Fruit Co., 365 U. S. 731, 739 (1961); Gillespie, supra, at 157; Comment, Application of State Survival Statutes in Maritime Causes, 60 Colum. L. Rev. 534, 535, n. 11 (1960); Nagy, The General Maritime Law Survival Action: What are the Elements of Recoverable Damages?, 9 U. Haw. L. Rev. 5, 27 (1987). Where these state statutes do not apply, however, or where there is no state survival statute, there is no survival of unseaworthiness claims absent a change in the traditional maritime rule.

Several Courts of Appeals have relied on Moragne to hold that there is a general maritime right of survival. See Spiller v. Thomas M. Lowe, Jr., & Assocs., Inc., 466 F. 2d 903, 909 (CA8 1972); Barbe v. Drummond, 507 F. 2d 794, 799-800 (CA1 1974); Law v. Sea Drilling Corp., 523 F. 2d 793, 795 (CA5 1975); Evich v. Connelly, 759 F. 2d 1432, 1434 (CA9 1985). As we have noted, Moragne found that congressional and state abrogation of the maritime rule against wrongful death actions demonstrated a strong policy judgment, to which the Court deferred. Moragne, 398 U. S., at 388-393. Following this reasoning, the lower courts have looked to the Jones Act and the many state survival statutes and concluded that these enactments dictate a change in the general maritime rule against survival. See, e. g., Spiller, supra, at 909; Barbe, supra, at 799-800, and n. 6.

Miles argues that we should follow the Courts of Appeals and recognize a general maritime survival right. Apex urges us to reaffirm the traditional maritime rule and overrule these decisions. We decline to address the issue, because its resolution is unnecessary to our decision on the narrow question presented: whether the income decedent would have earned but for his death is recoverable. We hold that it is not.

Recovery of lost future income in a survival suit will, in many instances, be duplicative of recovery by dependents for loss of support in a wrongful death action; the support dependents lose as a result of a seaman’s death would have come from the seaman’s future earnings. Perhaps for this reason, there is little legislative support for such recovery in survival. In only a few States can an estate recover in a survival action for income decedent would have received but for death. At the federal level, DOHSA contains no survival provision. The Jones Act incorporates FELA’s survival provision, but, as in most States, recovery is limited to losses suffered during the decedent’s lifetime. See 45 U. S. C. §59; Van Beeck v. Sabine Towing Co., 300 U. S. 342, 347 (1937); St. Louis, I. M. & S. R. Co. v. Craft, 237 U. S. 648, 658 (1915).

This state and federal legislation hardly constitutes the kind of “wholesale” and “unanimous” policy judgment that prompted the Court to create a new cause of action in Moragne. See Moragne, supra, at 388, 389. To the contrary, the considered judgment of a large majority of American legislatures is that lost future income is not recoverable in a survival action. Were we to recognize a right to such recovery under maritime law, we would be adopting a distinctly minority view.

This fact alone would not necessarily deter us, if recovery of lost future income were more consistent with the general principles of maritime tort law. There are indeed strong policy arguments for allowing such recovery. See, e. g., R. Posner, Economic Analysis of Law 176-181 (3d ed. 1986) (recovery of lost future income provides efficient incentives to take care by ensuring that the tortfeasor will have to bear the total cost of the victim’s injury or death). Moreover, Miles reminds us that admiralty courts have always shown a special solicitude for the welfare of seamen and their families. “[Cjertainly it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy.” Moragne, supra, at 387, quoting Chief Justice Chase in The Sea Gull, 21 F. Cas. 909, 910 (No. 12,578) (CC Md. 1865). See also Gaudet, 414 U. S., at 583.

We are not unmindful of these principles, but they are insufficient in this case. We sail in occupied waters. Maritime tort law is now dominated by federal statute, and we are not free to expand remedies at will simply because it might work to the benefit of seamen and those dependent upon them. Congress has placed limits on recovery in survival actions that we cannot exceed. Because this case involves the death of a seaman, we must look to the Jones Act.

The Jones Act/FELA survival provision limits recovery to losses suffered during the decedent’s lifetime. See 45 U. S. C. §59. This was the established rule under FELA when Congress passed the Jones Act, incorporating FELA, see St. Louis, I. M. & S. R. Co., supra, at 658, and it is the rule under the Jones Act. See Van Beech, supra, at 347. Congress has limited the survival right for seamen’s injuries resulting from negligence. As with loss of society in wrongful death actions, this forecloses more expansive remedies in a general maritime action founded on strict liability. We will not create, under our admiralty powers, a remedy that is disfavored by a clear majority of the States and that goes well beyond the limits of Congress’ ordered system of recovery for seamen’s injury and death. Because Torregano’s estate cannot recover for his lost future income under the Jones Act, it cannot do so under general maritime law.

>

Cognizant of the constitutional relationship between the courts and Congress, we today act in accordance with the uniform plan of maritime tort law Congress created in DOHSA and the Jones Act. We hold that there is a general maritime cause of action for the wrongful death of a seaman, but that damages recoverable in such an action do not include loss of society. We also hold that a general maritime survival action cannot include recovery for decedent’s lost future earnings. Accordingly, the judgment of the Court of Appeals is

Affirmed.

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

      As with Moragne, the 1972 amendments to LHWCA have rendered Gaudet inapplicable on its facts. See supra, at 28; 33 U. S. C. § 905(b). Suit in Gaudet was filed before 1972. Gaudet v. Sea-Land Services, Inc., 463 F. 2d 1331, 1332 (CA5 1972).

       In Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 215, n. 1 (1986), we declined to approve or disapprove the practice of some courts of applying state survival statutes to cases involving death on the high seas.

       See Mich. Comp. Laws §§600.2921, 600.2922 (1986); Olivier v. Houghton County St. R. Co., 134 Mich. 367, 368-370, 96 N. W. 434, 435 (1903); 42 Pa. Cons. Stat. §8302 (1988); Incollingo v. Ewing, 444 Pa. 263, 307-308, 282 A. 2d 206, 229 (1971); Wash. Rev. Code § 4.20.060 (1989); Balmer v. Dilley, 81 Wash. 2d 367, 370, 502 P. 2d 456, 458 (1972). See generally 2 S. Speiser, Recovery for Wrongful Death 2d, § 14.7, App. A (1975 and Supp. 1989). Speiser explains that many States do not allow any recovery of lost earnings in survival, and that among those that do, recovery is generally limited to earnings lost from the time of injury to the time of death. Ibid.


text:
    PERRY v. LOUISIANA
    No. 89-5120.
    Argued October 2, 1990
    Decided November 13, 1990

      Keith B. Nordyke argued the cause for petitioner. With him on the brief were June E. Denlinger and Joe Giarrusso, Jr.

      Rene I. Salomon, Assistant Attorney General of Louisiana, argued the cause for respondent. With him on the brief were William J. Guste, Jr., Attorney General, and M. Patricia Jones, Assistant Attorney General.

      Briefs of amici curiae urging reversal were filed by the American Psychiatric Association et al. by Joel L. Klein, Joseph N. Onek, Richard G. Taranto, Carter G. Phillips, and Kirk B. Johnson; and for the Coalition for Fundamental Rights and Equality of Ex-patients by Peter Margulies.

   Per Curiam.

The judgment is vacated and the case is remanded to the 19th Judicial District Court of Louisiana for further consideration in light of Washington v. Harper, 494 U. S. 210 (1990).

It is so ordered.

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


text:
    CAGE v. LOUISIANA
    No. 89-7302.
    Decided November 13, 1990
   Per Curiam.

The motion of petitioner for leave to proceed informa pau-peris and the petition for a writ of certiorari are granted.

In state criminal trials, the Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U. S. 358, 364 (1970); see also Jackson v. Virginia, 443 U. S. 307, 315-316 (1979). This reasonable-doubt standard “plays a vital role in the American scheme of criminal procedure.” Winship, 397 U. S., at 363. Among other things, “[i]t is a prime instrument for reducing the risk of convictions resting on factual error.” Ibid. The issue before us is whether the reasonable doubt instruction in this case complied with Winship.

Petitioner was convicted in a Louisiana trial court of first-degree murder and was sentenced to death. He appealed to the Supreme Court of Louisiana, arguing, inter alia, that the reasonable-doubt instruction used in the guilt phase of his trial was constitutionally defective. The instruction provided in relevant part:

“If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.” 554 So. 2d 39, 41 (La. 1989) (emphasis added).

The Supreme Court of Louisiana rejected petitioner’s argument. The court first observed that the use of the phrases “grave uncertainty” and “moral certainty” in the instruction, “if taken out of context, might overstate the requisite degree of uncertainty and confuse the jury. ” Ibid. But “taking the charge as a whole,” the court concluded that “reasonable persons of ordinary intelligence would understand the definition of ‘reasonable doubt.’” Ibid. It is our view, however, that the instruction at issue was contrary to the “beyond a reasonable doubt” requirement articulated in Winship.

In construing the instruction, we consider how reasonable jurors could have understood the charge as a whole. Francis v. Franklin, 471 U. S. 307, 316 (1985). The charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a “grave uncertainty” and an “actual substantial doubt,” and stated that what was required was a “moral certainty” that the defendant was guilty. It is plain to us that the words “substantial” and “grave,” as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable-doubt standard. When those statements are then considered with the reference to “moral certainty,” rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.

Accordingly, the judgment of the Supreme Court of Louisiana is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

      Similar attempts to define reasonable doubt have been widely criticized by the Federal Courts of Appeals. See, e. g., Monk v. Zelez, 901 F. 2d 885, 889-890 (CA10 1990); United States v. Moss, 756 F. 2d 329, 333 (CA4 1985); United States v. Indorato, 628 F. 2d 711, 720-721 (CA1 1980); United States v. Byrd, 352 F. 2d 570, 575 (CA2 1965); see also Taylor v. Kentucky, 436 U. S. 478, 488 (1978).


text:
    LANGENKAMP, successor trustee of the bankruptcy estates of REPUBLIC TRUST & SAVINGS CO. et al. v. CULP et al.
    No. 90-93.
    Decided November 13, 1990
   Per Curiam.

This case presents the question whether creditors who submit a claim against a bankruptcy estate and are then sued by the trustee in bankruptcy to recover allegedly preferential monetary transfers are entitled to jury trial under the Seventh Amendment. This action was brought by petitioner Langenkamp, successor trustee to Republic Trust & Savings Company and Republic Financial Corporation (collectively debtors). Debtors were uninsured, nonbank financial institutions doing business in Oklahoma. Debtors filed Chapter 11 bankruptcy petitions on September 24, 1984. At the time of the bankruptcy filings, respondents held thrift and passbook savings certificates issued by debtors, which represented debtors’ promise to repay moneys the respondents had invested.

Within the 90-day period immediately preceding debtors’ Chapter 11 filing, respondents redeemed some, but not all, of debtors’ certificates which they held. Thus, upon the bankruptcy filing, respondents became creditors of the now-bankrupt corporations. Respondents timely filed proofs of claim against the bankruptcy estates. Approximately one year after the bankruptcy filing, the trustee instituted adversary proceedings under 11 U. S. C. § 547(b) to recover, as avoidable preferences, the payments which respondents had received immediately prior to the September 24 filing. A bench trial was held, and the Bankruptcy Court found that the money received by respondents did in fact constitute avoidable preferences. In re Republic Trust & Savings Co., No. 84C-01461, Adversary No. 85-0337 (ND Okla., June 26, 1987), App. to Pet. for Cert. A-45; In re Republic Trust & Savings Co., No. 84-01461, Adversary No. 85-0319 (ND Okla., June 26, 1987), App. to Pet. for Cert. A-64. The United States District Court for the Northern District of Oklahoma affirmed. Republic Financial Corp. v. Langenkamp, Nos. 87-C-616-C, 87-C-618-C, 87-C-619-C (June 30, 1988), App. to Pet. for Cert. A-67. On appeal, the United States Court of Appeals for the Tenth Circuit upheld the District Court’s judgment on three grounds, but reversed on the issue of the holders’ entitlement to a jury trial on the trustee’s preference claims. In re Republic Trust & Savings Co., 897 F. 2d 1041 (1990). Relying on our decisions in Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 (1989), and Katchen v. Landy, 382 U. S. 323 (1966), the Tenth Circuit correctly held that “those appellants that did not have or file claims against the debtors’ estates undoubtedly [were] entitled to a jury trial on the issue whether the payments they received from the debtors within ninety days of the latter’s bankruptcy constitute^] avoidable preferences.” 897 F. 2d, at 1046. The Court of Appeals went further, however, concluding:

“Although some of the appellants did file claims against the estates because they continued to have monies invested in the debtors at the time of bankruptcy, ... we believe they likewise are entitled to a jury trial under the rationale of Granfinanciera and Katchen. Despite these appellants’ claims, the trustee’s actions to avoid the transfers, consolidated by the bankruptcy court, were plenary rather than a part of the bankruptcy court’s summary proceedings involving the ‘process of allowance and disallowance of claims.’” Id., at 1046-1047.

Petitioner contends that the Tenth Circuit erred in holding that those creditors of the debtors who had filed claims against the estate were entitled to a jury trial. We agree.

In Granfinanciera we recognized that by filing a claim against a bankruptcy estate the creditor triggers the process of “allowance and disallowance of claims,” thereby subjecting himself to the bankruptcy court’s equitable power. 492 U. S., at 58-59, and n. 14 (citing Katchen, supra, at 336). If the creditor is met, in turn, with a preference action from the trustee, that action becomes part of the claims-allowance process which is triable only in equity. Ibid. In other words, the creditor’s claim and the ensuing preference action by the trustee become integral to the restructuring of the debtor-creditor relationship through the bankruptcy court’s equity jurisdiction. Granfinanciera, supra, at 57-58. As such, there is no Seventh Amendment right to a jury trial. If a party does not submit a claim against the bankruptcy estate, however, the trustee can recover allegedly preferential transfers only by filing what amounts to a legal action to recover a monetary transfer. In those circumstances the preference defendant is entitled to a jury trial. 492 U. S., at 58-59.

Accordingly, “a creditor’s right to a jury trial on a bankruptcy trustee’s preference claim depends upon whether the creditor has submitted a claim against the estate.” Id., at 58. Respondents filed claims against the bankruptcy estate, thereby bringing themselves within the equitable jurisdiction of the Bankruptcy Court. Consequently, they were not entitled to a jury trial on the trustee’s preference action. The decision by the Court of Appeals overlooked the clear distinction which our cases have drawn and in so doing created a conflict among the Circuits on this issue. For this reason we grant the petition for certiorari, reverse the judgment of the Court of Appeals for the Tenth Circuit, and remand for further proceedings consistent with this opinion.

It is so ordered.

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


author: Per Curiam. Justice Marshall,

text:
    PALMER et al. v. BRG OF GEORGIA, INC., et al.
    No. 89-1667.
    Decided November 26, 1990
   Per Curiam.

In preparation for the 1985 Georgia Bar Examination, petitioners contracted to take a bar review course offered by respondent BRG of Georgia, Inc. (BRG). In this litigation they contend that the price of BRG’s course was enhanced by reason of an unlawful agreement between BRG and respondent Harcourt Brace Jovanovich Legal and Professional Publications (HBJ), the Nation’s largest provider of bar review materials and lecture services. The central issue is whether the 1980 agreement between respondents violated § 1 of the Sherman Act.

HBJ began offering a Georgia bar review course on a limited basis in 1976, and was in direct, and often intense, competition with BRG during the period from 1977 to 1979. BRG and HBJ were the two main providers of bar review courses in Georgia during this time period. In early 1980, they entered into an agreement that gave BRG an exclusive license to market HBJ’s material in Georgia and to use its trade name “Bar/Bri.” The parties agreed that HBJ would not compete with BRG in Georgia and that BRG would not compete with HBJ outside of Georgia. Under the agreement, HBJ received $100 per student enrolled by BRG and 40% of all revenues over $350. Immediately after the 1980 agreement, the price of BRG’s course was increased from $150 to over $400.

On petitioners’ motion for partial summary judgment as to the § 1 counts in the complaint and respondents’ motion for summary judgment, the District Court held that the agreement was lawful. The United States Court of Appeals for the Eleventh Circuit, with one judge dissenting, agreed with the District Court that per se unlawful horizontal price fixing required an explicit agreement on prices to be charged or that one party have the right to be consulted about the other’s prices. The Court of Appeals also agreed with the District Court that to prove a per se violation under a geographic market allocation theory, petitioners had to show that respondents had subdivided some relevant market in which they had previously competed. 874 F. 2d 1417 (1989). The Court of Appeals denied a petition for rehearing en banc that had been supported by the United States. 893 F. 2d 293 (1990).

In United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940), we held that an agreement among competitors to engage in a program of buying surplus gasoline on the spot market in order to prevent prices from falling sharply was unlawful, even though there was no direct agreement on the actual prices to be maintained. We explained that “[u]nder the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.” Id., at 223. See also Catalano, Inc. v. Target Sales, Inc., 446 U. S. 643 (1980) (per curiam); National Society of Professional Engineers v. United States, 435 U. S. 679 (1978).

The revenue-sharing formula in the 1980 agreement between BRG and HBJ, coupled with the price increase that took place immediately after the parties agreed to cease competing with each other in 1980, indicates that this agreement was “formed for the purpose and with the effect of raising” the price of the bar review course. It was, therefore, plainly incorrect for the District Court to enter summary judgment in respondents’ favor. Moreover, it is equally clear that the District Court and the Court of Appeals erred when they as-,, sumed that an allocation of markets o.r submarkets by competitors is not unlawful unless the. market, in which the two previously competed is divided between them.

In United States v. Topco Associates, Inc., 405 U. S. 596 (1972), we held that agreements between competitors to allocate territories to minimize competition are .'illegal:

“One of the classic examples of a per se, violation of § 1 is an agreement between .competitors, at the same level of the market structure to allocate territories in orderTo minimize competition. .... This Court has-reiterated time and time again that ‘[hjorizontal territorial limitations . . . are naked restraints of trade, with no.purpose except stifling of competition.’.. Such limitations.are.per se violations of the Sherman Act.” Id., at 608 (citations omitted).

The defendants in Topeo had never competed- in-the-same market, but had simply agreed to allocate markets. Here, HBJ and BRG had previously competed in the Georgia market; under their allocation agreement. BRG received that market, while HBJ received-the remainder. pfnthe United States. Each agreed not to compete in the other,^ territories. Such agreements are anticompetitive regardless of whether the parties split a market within which both do business or whether they merely reserve one market for one and another for the other. Thus, the 1980 agreement between HBJ and BRG was unlawful on its face.

The petition for a writ of certiorari is granted, 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.

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

Justice Marshall,

dissenting.

Although I agree that the limited information before us appears to indicate that the Court of Appeals erred in its decision below, I continue to believe that summary dispositions deprive litigants of a fair opportunity to be heard on the merits and significantly increase the risk of an erroneous decision. See Smith v. Ohio, 494 U. S. 541, 544 (1990) (Marshall, J., dissenting); Pennsylvania v. Bruder, 488 U. S. 9, 11-12 (1988) (Marshall, J., dissenting); Rhodes v. Stewart, 488 U. S. 1, 4-5 (1988) (Marshall, J., dissenting); Buchanan v. Stanships, Inc., 485 U. S. 265, 269-270 (1988) (Marshall, J., dissenting); Commissioner v. McCoy, 484 U. S. 3, 7-8 (1987) (Marshall, J., dissenting). I therefore dissent from the Court’s decision today to reverse summarily the judgment below.

       Section 1 of the Sherman Act, 26 Stat. 209, as amended and set forth in 15 U. S. C. § 1, provides in relevant part:
      “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”
      We do not reach the other claims alleged in petitioners’ nine-count complaint, including violations of § 2 of the Sherman Act, 15 U. S. C. § 2.

       The 1980 agreement contained two provisions, one called a “Covenant Not to Compete” and the other called “Other Ventures.” The former required HBJ not to “directly or indirectly own, manage, operate, join, invest, control, or participate in or be connected as an officer, employee, partner, director, independent contractor or otherwise with any business which is operating or participating in the preparation of candidates for the Georgia State Bar Examination.” Plaintiffs’ Motion for Partial Summary Judgment, Attachment E, p. 10. The latter required BRG not to compete against HBJ in States in which HBJ currently operated outside the State of Georgia. Id., at 15.

       In dissent, Judge Clark explained that in his view HBJ and BRG were capable of engaging in per se horizontal restraints because they had competed against each other and then had joined forces. He believed the District Court’s analysis was flawed because it had failed to recognize that the agreements could be price-fixing agreements even without explicit reference to price and because it had failed to recognize that allocation, rather than subdivision, of markets could also constitute a per se antitrust violation.

       The United States, as amicus curiae, had urged the court to adopt the views of the dissent.

      See Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986) (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor”).

         See Arizona v. Maricopa County Medical Society, 457 U. S. 332, 344, n. 15 (1982) (“division of markets” is per se offense).

         In 1982, in connection with the settlement of another lawsuit, respondents made certain changes in their arrangement. Because the District Court found that the 1980 agreement did not violate § 1 of the Sherman Act, it did not address whether the 1982 modified agreement constituted a withdrawal from, or abandonment of, the conspiracy. In United States v. Kissel, 218 U. S. 601 (1910), we held that antitrust conspiracies may continue in time beyond the original conspiratorial agreement until either the conspiracy’s objectives are abandoned or succeed. Id., at 608-609. Thus, it is an unsettled factual issue whether the conspiratorial objectives manifest in the 1980 agreement between HBJ and BRG have continued in spite of the 1982 modifications.