opinion: GOETT, ADMINISTRATRIX, v. UNION CARBIDE CORP. et al.
  No. 3.
  Argued November 12, 1959.
  Decided January 18, 1960.
  Harvey Goldstein argued the cause for petitioner. With him on. the brief were Ernest Franklin Pauley and S. Eldridge Sampliner.
  Charles M. Love argued the cause and filed a brief for the Union Carbide Corporation, respondent. Homer A. Holt, William T. O’Farrell and David D. Johnson filed a brief for the Amherst Barge Co., respondent.
  Per Curiam.
  This was a libel in admiralty brought against respondent Union Carbide Corporation by petitioner, the adminis-tratrix of Marvin Paul Goett. Goett had been an em- * ployee of respondent Amherst Barge Company, which was engaged in repairing a river barge owned by Union. The decedent was working on the barge when he fell off into the waters of the Kanawha River, and, after- fruitless efforts at rescue, was drowned. The theory of the libel was that, alternatively, Union was negligent in turning over the barge to Amherst without its being equipped with rescue equipment, or that the vessel was unsea-worthy without such equipment; and that the lack of rescue equipment caused the decedent’s death. The accident had taken place in West Virginia waters and that State’s Wrongful Death Act was relied upon. The District Court found that the vessel was in fact unseaworthy and that Union was negligent in the respect charged, causing the death of decedent, and that the decedent was not shown to have been guilty of contributory negligence or to have assumed the risk. The District Court bottomed Union’s liability on negligence, and awarded petitioner . $20,000 in damages, the maximum allowable under the West Virginia Act, though finding that the actual damages were substantially higher; On Union’s appeal to the Court of Appeals, the judgment was reversed. 256 F. 2d 449.
  The Court of Appeals held that, as a- matter of law, Union owed no duty to the employees of Amherst once the vessel had been turned over to the latter. It accordingly reversed the District Court’s finding of negligence. It further held, contrary to the District Court, that the vessel was not unseaworthy at the time of the accident, and that in any event the decedent was not a person to whom the warranty of seaworthiness was owed. In the light of this determination, it did not pass on the question whether unseaworthiness would be in any event available as a groiind for recovery in a. West Virginia wrongful death action involving a maritime tort. We granted certiorari. 359 U. S. 923.
  This case was decided in the lower courts before the decision of this Court in The Tungus v. Skovgaard, 358 U. S. 588, where it was held that it .was a question of state law as to what is the proper substantive law to be applied to maritime torts within the territorial jurisdictions of the States in wrongful death cases. See Hess v. United States, ante, p. 314. Under this holding, in a maritime tort death case, the State might apply the substantive law generally applicable to wrongful death cases within its territory, or it might choose to incorporate the general maritime law’s concepts of unseaworthiness or negligence. Here the Court of Appeals did not decide which standard the West Virginia Act adopted. It did not articulate on .what basis it was applying federal law if in fact it- was; there is no intimation that it believed the West Virginia Act incorporated the maritime law’s negligence standard, and in fact it expressly left open the question whether that Act incorporated the-maritime standard of seaworthiness. It seems more likely to us to have passed on the negligence issue as a matter of federal maritime law; it cited only cases applying the general maritime law’s and the Jones Act’s concepts of negligence, and general treatises; no West Virginia authority was relied upon. The least that can be said is that it is highly doubtful which law the Court of Appeals applied; and so in the absence of any expression by it of which standard the West Virginia Act adopted, we do not believe we can permit its judgment to stand after our intervening decision in The Tungus.
  . Accordingly, so that the Court of Appeals, which is closer than we to matters of local law, may pass upon the questions of West Virginia law involved in the light of this Court’s holding in The fungus, we vacate its judgment and remand the cause to it to determine: (a) Whether the West Virginia Wrongful Death Act, as to this maritime tort, employs the West Virginia or the-general maritime law concept of negligence; and, in the light of its determination, (b) whether the district judge’s finding as to negligence is correct finder the proper substantive law. To facilitate our discretionary review of the Court of Appeals’ findings as to unseaworthiness, it should also determine whether the West Virginia Act incorporates this standard of the general maritime law in death actions involving maritime torts. Cf. Barr v. Matteo, 355 U. S. 171.
  Vacated and remanded.
  For examples of the general maritime law’s concept of negligence, see Kermarec v. Gompagnie Generate Transatlantique, 358 U. S. 625; Pope & Talbot, Inc., v. Hawn, 346 U. S. 406, 409; The Max Morris, 137 U. S. 1, 14-15.
  The respondent here cites West Virginia precedents in an effort to sustain the Court of Appeals’ determination.
  The vie;ws of the dissenting opinions here confirm us in our doubts. Some of the dissents take the view that the Court of Appeals should be affirmed because it undoubtedly decided the point as a matter of state law, while another is of the view that the Court of Appeals should be affirmed because it made sufficiently clear that it decided the point as a matter of federal law. Our views lie between these two.
  While the Court of Appeals declared that “The right to maintain such a suit can be enforced in admiralty only in accordance with the substantive law of the state whose statute is being adopted,” 256 F. 2d, at 453, this discussion seems to us probably to have been in the context of the monetary limitation of the Act. Certainly there was no specific identification of this statement with the discussion of whether the negligence finding was justified. And if the statement is taken to mean that a State cannot adopt the maritime standard, it is not correct.
  The Chief Justice, Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Brennan join this opinion, but solely under compulsion of the Court’s ruling in The Tungus v. Skovgaard, 358 U. S. 588. They believe that as long as the view of the law represented by that ruling prevails in the Court, it should be applied evenhandedly, despite the contrary views of some' of those originally joining it that state law is the measure of recovery when it helps the defendant, as in The Tungus, and is not the measure of recovery when it militates against the defendant, as in Hess v. United States, ante, p. 314. However, they note their continued disagreement with the ruling in The Tungus, and reserve their position as to whether it should be overruled, particularly in the light of the controversy application of it has engendered among its original subscribers. See the various separate opinions in this case and in Hess v. United States, supra.