below, this court chooses to adopt the approach of the Ninth
Neither the language nor the legislative history of the Act
offers any explicit help in deciding whether the adjacent
state's whole law or only its internal law should apply. Since
probably all of the states in 1928 applied the same choice of
law rule for torts, that is, the place of the tort, it is
likely that the legislators did not consider the issue.
Prior to the enactment of the Act, the rule of lex loci
required that any accident occurring on federal lands be
adjudicated according to federal common law rules that did not
permit recovery for wrongful death. It does not follow that an
Act seeking to correct this problem had a purpose to reject
choice of law rules in favor of the direct application of the
adjacent state's wrongful death statute. The Act when passed
could, if the legislators thought of it, just as easily have
been perceived as incorporating the adjacent state's whole law,
meaning its conflicts of law rules and its substantive law,
with the result that any accident occurring on federal lands
would, under lex loci rules, be governed by the substantive
rules of the adjacent state.
Since Congress did not consider the conflicts of law
question, this court must decide which interpretation of the
Act is most consistent with its purposes. Concededly Congress
passed the legislation to ensure that accidents occurring
inside the federal enclave would be treated the same way as
those occurring just outside.
This interpretation explains why the Act incorporates the
law of the state adjacent to the federal enclave rather than
simply imposing a uniform wrongful death statute on all
federal lands. Other federal enactments had adopted a uniform
statute for accidents involving railway employees, Act of Apr.
22, 1908, c. 149, § 1, 35 Stat. 65 (current version codified at
45 U.S.C. § 51 (1988)), and seamen, Act of Mar. 4, 1915, c.
153, § 20, 38 Stat. 1185 (current version codified at 46 U.S.C.
App. § 688 (1988)). There is, after all, a certain unfairness
in having an injured party's right depend on whether the injury
occurred on or off of the enclave.
This view of the Act is consistent with that of the Court of
Appeals in Vasina. 644 F.2d at 117. The Court of Appeals for
the District of Columbia Circuit, in adopting the Second
Circuit's holding in Vasina, stated in Ferebee v. Chevron
Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984), that "[t]he
federal act was passed in an effort to put tort victims on
federal land on an equal footing with those injured just
outside the boundaries of the federal enclave." Id. at 1534.
Uniform adjudication of cases concerning accidents occurring
inside and outside the federal enclave is best achieved by
interpreting the Act as incorporating the whole law of the
adjacent state. Perfect uniformity is impossible where there
is multistate litigation. But most accidents that occur
outside of federal enclaves in Louisiana will be adjudicated
in Louisiana courts under the whole law of Louisiana,
including its conflicts of law rules.
Plaintiffs point out that if the accident in this case
occurred in Louisiana off the federal enclave, then this court
would have jurisdiction by reason of diversity of citizenship
and would apply New York choice of law rules under the rule
enunciated in Klaxon Co. v. Stentor Electric Manufacturing Co.,
313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). But that
means only that the principle of uniformity in federal and
state courts sitting in the same state prevails over the
different principle of uniformity enacted in the Act. It is
impossible to adopt an interpretation of the Act that would
determine in each case which state rules would apply if the
accident had occurred off of the federal enclave. The best a
court can do is construe the Act to obtain the greatest
uniformity of result. That means adopting the whole law of the
state adjacent to the federal enclave.
The Supreme Court's interpretation of the provision of the
Federal Torts Claims Act (the Tort Claims Act) suggests that
Court would adopt the foregoing interpretation of the Act. The
Tort Claims Act states that United States will be liable for
the torts of federal employees "under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act
or omission occurred." Act of June 25, 1948, c. 646, 62 Stat.
933 (current version codified at 28 U.S.C. § 1346 (1988)).
In Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7
L.Ed.2d 492 (1962), the Court was confronted with the question
of whether the Tort Claims Act incorporates the whole law or
the internal law of the "place where the act or omission
occurred." The Court first noted that the legislative history
of the Act was not "helpful in solving the problem of the law
to be applied in a multistate tort action," since "Congress did
not consider choice-of-law problems during the long period that
the legislation was being prepared for enactment." Id. at 8, 82
S.Ct. at 590. Nevertheless, the Court concluded that the FTCA
"requires application of the whole law of the State where the
act or omission occurred." Id. at 11, 82 S.Ct. at 592.
The Court offered three reasons for this holding. First, it
suggested that when a statute incorporates state law, it
presumptively adopts that state's whole law in the absence of
an indication to the contrary. As the Court said, "[d]espite
the power of Congress to enact for litigation of this type a
federal conflicts-of-law rule independent of the States'
development of such rules, we should not, particularly in the
type of interstitial legislation involved here, assume that it
has done so." 369 U.S. at 13, 82 S.Ct. at 593.
Second, the Court found that its interpretation would best
further the act's goal of "enabl[ing] the federal courts to
treat the United States as an individual would be treated
under like circumstances." Id. at 12, 82 S.Ct. at 592. Finally,
the Court noted that some states were implementing new choice
of law rules, and it could "see no compelling reason to saddle
the Act with an interpretation that would prevent the federal
courts from implementing this policy in choice-of-law rules
where the State in which the negligence occurred has adopted
it." Id. at 12-13, 82 S.Ct. at 592-93.
The language of the Act and the Tort Claims Act, enacted
only 20 years apart, is similar. The Act states that "the
rights of the parties shall be governed by the laws of the
[adjacent] State," 16 U.S.C. § 457, while the Tort Claims Act
makes the United States liable where it, if a private person,
would be liable in accordance with the "law of the place where
the act or omission occurred." 28 U.S.C. § 1346.
Both acts incorporate state law, and both sought to create
uniformity. This court cannot think of any persuasive reason
why the assumption made in Richards that the state's whole law
should be incorporated should not be made here.
Plaintiff suggests that the interpretation of the Outer
Continental Shelf Lands Act (the Shelf Lands Act), Act of Aug.
7, 1953, c. 345, § 3, 67 Stat. 462 (current version codified at
43 U.S.C. § 1332 et seq. (1988)), presents a closer analogy.
That act states that the "civil and criminal laws" of the
coastal states shall apply to the adjacent seabed. Id. at §
In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30
L.Ed.2d 296 (1971), the Court held that this act required
federal courts to apply the internal law and not the conflicts
of law rules of the adjacent state. Id. at 102-03, 92 S.Ct. at
353. The Court's opinion in Chevron is, however, entirely
consistent with its interpretation of the Tort Claims Act in
Richards and this court's view of the Act. The Court offered a
clear reason why in the case of the Shelf Lands Act, the
assumption of whole law incorporation was inappropriate:
Congress also recognized that the "special
relationship between the men working on these
artificial islands and the adjacent shore to
which they commute" favored application of state
law with which these men and their attorneys
would be familiar. . . . If Congress' goal was to
provide a comprehensive and familiar body of law,
it would defeat that goal to apply only certain
aspects of a
state personal injury remedy in federal court.
404 U.S. at 103, 92 S.Ct. at 353 (quoting Rodrigue v. Aetna
Casualty & Surety Co., 395 U.S. 352, 365, 89 S.Ct. 1835, 1842,
23 L.Ed.2d 360 (1969)); see also Wooton v. Pumpkin Air, Inc.,
869 F.2d 848, 851 (5th Cir. 1989) (revisiting the conflicts of
law issue in the Shelf Lands Act and finding policy of
providing familiar law to offshore workers determinative).
No analogous interest exists with respect to the Act. As its
legislative history makes clear, the statute was enacted
primarily with national parks in mind, and people from all
over the country and the world have always visited these
parks. The parties and attorneys involved in litigation
arising from torts on federal lands will only rarely be
familiar with the law of the adjacent state.
For the above reasons, this court finds that the Act
requires application of Louisiana conflicts of law rules to
The court now turns to Louisiana choice of law rules to
determine whether Louisiana or New York substantive law
applies to plaintiff's claims. The laws of the two states
differ concerning the right to recover for loss of consortium,
and the elements of a damage claim in a wrongful death action.
Louisiana permits actions for loss of consortium,
La.Civ.Code Ann. art. 2315 (West Supp. 1990), while New York
does not, Liff v. Schildkrout, 49 N.Y.2d 622, 632-33, 427
N YS.2d 746, 749, 404 N.E.2d 1288, 1291 (1980). Furthermore,
Louisiana appears to be somewhat more expansive in the damages
it permits in wrongful death actions than is New York. Compare
Domangue v. Eastern Airlines, 542 F. Supp. 643, 646 (E.D.La.
1982) (allowing damages for "loss of decedent's love and
affection and the grief and mental and physical anguish
suffered by the survivor") with Fornaro v. Jill Bros.,
42 Misc.2d 1031, 1036, 249 N.Y.S.2d 833, 838 (N.Y. Sup. Ct. 1964)
(excluding damages for "mental anguish, grief, sorrow,
sentiment, or even loss of companionship"). Finally, New York
permits damage awards to be reduced to the extent plaintiff
receives benefits from collateral sources, N.Y.Civ.Prac.L. & R.
§ 4545(c) (McKinney 1990), whereas Louisiana does not.
Louisiana follows the Second Restatement of Conflicts of
Laws which combines a most significant contacts approach with
interest analysis. Lee v. Ford Motor Co., 457 So.2d 193, 194
(La. App.), cert. den., 461 So.2d 319 (La. 1984). Section 145
of the Second Restatement indicates four "contacts" that the
court should evaluate in tort actions:
(a) the place where the injury occurred, (b) the
place where the conduct causing the injury
occurred, (c) the domicil, residence,
nationality, place of incorporation and place of
business of the parties, and (d) the place where
the relationship, if any, between the parties is
Restatement (Second) of Conflicts of Laws § 145. The section
states further that these contacts must be evaluated in terms
of their "relative importance with respect to the particular
issue," and in terms of the principles articulated in § 6 of
the Restatement, which are: