210 F.3d 209

CYNTHIA HOLCOMB HALL, Senior Circuit Judge, concurring in the judgment:
Over the past three decades, Justice Harlan’s opinion in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), has come to occupy an important place within the Supreme Court’s canon. Generations of law students have studied Moragne for its scholarly discussion of legal process and the role of precedent. But before those students reach these abstract questions, their professors have no doubt tormented them by asking a seemingly simple question that defies a simple answer: What, precisely, is the holding of Moragne?
I.
The majority, which concludes in the first instance that Moragne’s holding is limited to wrongful death unseaworthiness claims, gives what is in many ways a reasonable answer to that thorny question— albeit one with which I cannot concur. And Part III of the majority opinion ultimately reaches the right result by finding a Moragne cause of action on the instant set of facts. The majority’s explanation of why congressional silence and Appellant’s lack of a state-law remedy warrant the creation of a federal admiralty remedy is particularly laudable. Because I would hold that Moragne already covers Appellant’s claim, I find it unnecessary to reach Part Ill’s analysis. But if I were inclined to interpret Moragne as narrowly as the majority does, I would certainly assent to Part Ill’s sound discussion. Those words of explanation having been voiced, I shall explain why, in my view, Moragne itself created a cause of action for negligence-based wrongful death.
II
In The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), the Supreme Court held that general maritime law provided no cause of action for wrongful death. At the time, any successful wrongful death suit would have required the plaintiff to prove that the defendant acted negligently, and negligence was indeed the theory of liability pressed by The Harrisburg plaintiff and the only theory of negligence considered by the Supreme Court. See id. at 204, 7 S.Ct. 140.
Fifty-eight years later the Supreme Court recognized, for the first time, the doctrine of unseaworthiness. See Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944); see also Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 208, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) (“Prior to 1944, unseaworthiness was an obscure and relatively little used liability standard ....”) (internal quotations marks omitted). In contrast to negligence, unseaworthiness is a strict liability theory flowing from the ship’s owner to its crew, longshoreman, or harbor workers aboard the ship. See Ballwanz v. Isthmian Lines, 319 F.2d 457, 461 (4th Cir.1963).
Twenty-six years after Mahnich, the Supreme Court decided Moragne, 398 U.S. at 375, 90 S.Ct. 1772. In Moragne the plaintiff was a longshoreman’s widow who brought an unseaworthiness suit against the owner of a ship on which her husband had perished. Like Appellant, the Mo-ragne plaintiffs loved one had been killed while working aboard a vessel in navigable waters within a state’s territorial waters. See id. at 376, 90 S.Ct. 1772. Although no federal statute authorized recovery for the widow, the Supreme Court nevertheless allowed her suit to proceed. In order to do so, the Supreme Court said it was compelled to overrule The Harrisburg, stare decisis considerations notwithstanding. In broad language, Justice Harlan, writing for a unanimous Court, announced the rule of Moragne: “We accordingly overrule The Harrisburg, and hold that an action does lie under general maritime law for death caused by violation of maritime duties.” Id. at 409, 90 S.Ct. 1772.
Two aspects of the Moragne opinion are of pivotal importance in the case at bar. First, the court explicitly announced that a cause of action exists for a “violation of maritime duties,” not just for “unseaworthiness.” Had the Court sought to limit its holding to unseaworthiness, it could have easily done so. Second, and relatedly, had the Supreme Court sought only to allow the plaintiff to recover in her unseaworthiness-based wrongful death action, it could easily have distinguished The Harrisburg. After all, The Harrisburg held that there was no general maritime law cause of action for negligence-based wrongful death suits, but The Harrisburg said nothing about the presence or absence of a general maritime law cause of action for unseaworthiness-based wrongful death suits, since the unseaworthiness theory of liability did not enter the Supreme Court’s lexicon until fifty-eight years after The Harrisburg was handed down. But the Supreme Court consciously, and with much fanfare, overruled The Harrisburg instead of distinguishing it. In so doing, the Court must have believed that there was no principled basis for distinguishing between negligence-based wrongful- death suits and unseaworthiness-based wrongful death suits under general maritime law. Yet that is precisely the distinction that the majority draws today.
In order to fully understand Moragne, courts have often looked to the three famous “anomalies” that The Harrisburg and pr e-Moragne developments had wrought. See, e.g., Miller v. American President Lines, 989 F.2d 1450, 1458 (6th Cir.1993); Bodden v. American Offshore, Inc., 681 F.2d 319, 323 (5th Cir.1982). The Moragne Court was terribly troubled by these inconsistencies that had emerged in admiralty law, whereby a seaman might recover damages if injured within territorial waters, but not if killed within those same waters; whereby a seaman’s estate could recover in an unseaworthiness action if he was killed on the high seas but not if killed within a state’s territorial waters; and whereby a seaman’s estate could not recover for wrongful death if he were killed within territorial waters, but a longshoreman’s estate could. See id. at 395-96, 90 S.Ct. 1772. By overruling The Harrisburg and removing these anomalies, the Court saw itself as assuring “uniform vindication of federal policies [by] removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts.” Id. at 401, 7 S.Ct. 140.
The majority concludes that Moragne’s three anomalies are not directly implicated by the instant case. I disagree. The purpose of Moragne was to allow individuals who are, for all intents and purposes, equally situated, to obtain equal recoveries in the event of their deaths. In other words, happenstance should not determine whether an individual’s heirs have a cause of action in the event of his untimely death. But, as the majority points out, Appellant’s misfortune here is purely driven by happenstance. Maj. op. at 220-21. Had Garris been a seaman, Appellant would have had a wrongful death cause of action under the Jones Act or general maritime law. But because Garris was a longshoreman, the Jones Act is inapplicable, and Appellant is now unable to bring any suit under general maritime law. Had Garris’s death resulted from the actions of the ship’s owner, Appellant could have recovered under the Longshore & Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 905(b). But because his death allegedly resulted from the actions of subcontractors working aboard the ship, such a remedy is not available to Appellant. I am hardly alone in understanding Mo-ragne ’s anomalies to be directly implicated by the set of facts presented in the instant case. To Grant Gilmore and Charles Black, two of their generation’s towering legal minds, it “clearly follow[ed]” from Moragne that “The Mo-ragne remedy .... provides recovery for deaths caused by negligence as well as for deaths caused by unseaworthiness.” Grant Gilmore & Charles L. Black, Jr. The Law of Admiralty 368 (2d ed.1974).
In 1980, a Ninth Circuit opinion cited page 368 of the Gilmore and Black treatise and largely agreed with those scholars’ reading of Moragne. See Nelson v. United States, 639 F.2d 469, 473 (9th Cir.1980). While observing that no post -Moragne published opinion had decided whether a Moragne suit “could be based on negligence as well as unseaworthiness,” the court expressed sympathy for Gilmore and Black’s view that the obvious implication of Moragne was that negligence suits were covered under the general maritime law. The Court held that the “need for uniformity in maritime wrongful death actions requires extension of Moragne to cover claims based on negligence, to the exclusion of state wrongful death statutes.” Id. The majority reads Nelson as recognizing “that Moragne did not itself create a general maritime law cause of action for wrongful death based upon negligence.” Maj. op. at 217. Although the question is admittedly close, I read no such analysis into Nelson, and believe the majority places too much emphasis on Nelson’s use of the word “extension.” Indeed, Nel son’s invocation of page 368 of Gilmore and Black suggests a contrary view.
As the majority recognizes, the Second Circuit has also held that Moragne created a negligence-based cause of action as well as an unseaworthiness-based cause of action. See Wahlstrom v. Kawasaki Heavy Indus., 4 F.3d 1084 (2d Cir.1993). The Second Circuit correctly held that the Mo-ragne Court “did not limit the new right of recovery to unseaworthiness claims, but instead established a general remedy for wrongful death under maritime law.”- Id. at 1088-89. The majority’s assertion that no court has adopted Wahlstrom’s reasoning is misleading. Wahlstrom is consistent with Nelson, and Wahlstrom was the last circuit court case to consider the issue that is before this Court today.
The majority seeks solace in an Eleventh Circuit case, but that reliance is somewhat misplaced. Admittedly, the Eleventh Circuit has held that Moragne does not create a negligence-based wrongful death cause of action “where a cause of action exists for wrongful death under DOHSA [the Death on the High Seas Act].” Ford v. Wooten, 681 F.2d 712, 716 (11th Cir.1982). But it is undisputed that Appellant has no DOHSA remedy here, because Garris’s injury occurred in territorial waters. In Ford, the Eleventh Circuit premised its opinion upon a balancing of interests where the interest in uniformity favored granting a remedy and “consistency with federal remedial schemes” favored withholding a remedy. The court held that “[a]t least where statutory remedies exist, we deem consistency with the federal remedial schemes to be more important than the somewhat limited loss of uniformity.” Id. (emphasis added). Notably, a general maritime law cause of action would have conflicted with DOHSA because DOHSA “already provides a cause of action for death due to negligence.” Id. Where, as in the case at bar, no federal statute authorizes or bars a recovery from the third party alleged to have caused Garris’s death, there is nothing to balance the interest in uniformity, so Moragne creates a cause of action.
Any lingering doubts about whether Mo-ragne created a negligence-based wrongful death cause of action were laid to rest by the Supreme Court in 1996. In Yamaha Motor Corp., 516 U.S. at 199, 116 S.Ct. 619, the Court held that Moragne did not preempt state law remedies for wrongful death resulting from injuries to nonseamen in territorial waters. But it is one of Yamaha’s footnotes, not its holding, that definitively resolves the instant case. Footnote 11 reads in pertinent part:
While unseaworthiness was the doctrine immediately at stake in Moragne, the right of action, as stated in the Court’s opinion, is “for death caused by violation of maritime duties.” ... See ... Kermarec, 358 U.S. at 630, 79 S.Ct. at 409-410 (negligence). See also G. Gilmore & C. Black, The Law of Admiralty 368 (2d ed.1975).
Id. at 214 n. 11, 116 S.Ct. 619. This footnote is a crucial clue for at least two reasons. First, the Court emphasized that the Moragne cause of action covered something in addition to unseaworthiness causes of action, and the citation to Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959), makes it rather clear that negligence causes of action for wrongful death were part of that “something” encompassed by the broader language “violation of maritime duties.” See Steven F. Friedell, Searching for a Compass: Federal and State Lato Making Authority in Admiralty, 57 La. L.Rev. 825, 835 (1997) (“[T]he holding in Moragne was not limited to unseaworthiness. The Court held that ‘an action does lie under general maritime law for death caused by violation of maritime duties.’ As recognized by the Yamaha Court, this encompasses not only unseaworthiness but also products liability and negligence.”).
Second, and perhaps even more importantly, the Supreme Court cited favorably to the aforementioned page 368 of the Gilmore and Black treatise, where the authors concluded that the Moragne remedy “provides recovery for deaths caused by negligence as well as for deaths caused by unseaworthiness.” Gilmore & Black, supra, at 368. This citation, combined with the text of footnote 11 and the citation to Kermarec, make it clear that the Yamaha Court understood Moragne’s remedy as encompassing claims like Appellant’s. Although footnote 11 is dicta, it deserves special solace from this Court because it clarifies the Supreme Court’s understanding of one of its own opinions. See United States v. City of Hialeah, 140 F.3d 968, 974 (11th Cir.1998) (“Even though that statement by the Supreme Court in Local 93 was dictum, it is of considerable persuasive value, especially because it interprets the Court’s own precedent.”).
III.
Ultimately, the agreement between my view and the majority’s is far more important than our points of contention. It goes without saying that Appellant has a cause of action under either reading of Moragne. I write separately to emphasize that in my view Appellant’s cause of action is not a new ship that has suddenly appeared on the horizon. Rather, Appellant’s cause of action has been lurking just under the surface for quite some time. For the foregoing reasons, I concur in the judgment.
. Justice Harlan's opinion in Moragne devotes seven fascinating pages to the "very weighty considerations” of stare decisis that augured against overruling The Harrisburg. See Moragne, 398 U.S. at 403-09, 90 S.Ct. 1772. Anyone who reads this discussion comes away from it profoundly impressed with Justice Harlan's reverence for precedent and his reluctance to cast aside a controlling precedent in the absence of compelling reasons to do so. Indeed, scholars have long appreciated Justice Harlan’s particularly hardy reverence for precedent, see, e.g., Louis R. Cohen, A Biography of the Second Justice Harlan, 91 Mich. L.Rev. 1609, 1612 (1992) (reviewing Tinsley E. Yarbrough, John Marshall Harlan: Great Dissenter of the Warren Court (1992)), and deep commitment to the principle of judicial restraint, see, e.g., Stephen M. Dane, "Ordered Liberty” and Self-Restraint: The Judicial Philosophy of the Second Justice Harlan, 51 U. Cin. L.Rev. 545 (1982).
The majority today reads Moragne as having created a cause of action for unseaworthiness-based wrongful death suits, but not negligence-based wrongful death suits. Plainly, however, if the Moragne Court had favored such a distinction, Justice Harlan could have simply distinguished The Harrisburg by noting that it involved a negligence-based wrongful death cause of action, whereas Moragne involved an unseaworthiness-based wrongful death cause of action. By doing so, the Court could have avoided the unseemliness involved in overturning a well-established precedent. Two possibilities follow from the majority's holding today: Either Moragne's overruling of The Harrisburg was mere dicta or Justice Harlan and his eight colleagues lacked the capacity to distinguish a case on its facts. I find neither notion plausible. A more satisfying reading of Moragne's treatment of The Hartisburg is that the unanimous Court felt compelled to overrule The Harrisburg's holding that general maritime law did not create a negligence-based wrongful death cause of action, and that the Court saw no logical basis for holding that general maritime law recognizes unseaworthiness-based wrongful death suits, but not negligence-based wrongful death suits.
. The majority contends that Moragne had to overrule The Harrisburg because The Harrisburg 's "rationale was applicable to all forms of wrongful death.” Maj. op. at 15 n.7. In so doing, the majority emphasizes The Harrisburg 's reliance on Insurance Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580 (1877), which held that under the common law, "actions for injuries to the person abate by death,” see id. at 759. I fail to see why Brame alters the analysis. At the time of The Harrisburg, the common law recognized no wrongful death cause of action. Among the possible theories of liability, the only candidate for a wrongful death recovery action would have been negligence because, as I noted above, the slrict-liability theory of wrongful death recovery would not make its way into American admiralty jurisprudence for another fifty-eight years. It is therefore not surprising that The Harrisburg Court considered the question before it in the narrowest of terms: "Can a suit in admiralty be maintained in the courts of the United States to recover damages for the death of a human being on the high seas, or waters navigable from the sea, caused by negligence, in the absence of an act of congress or a statute of a state giving a right of action therefor?” 119 U.S. at 204, 7 S.Ct. 140 (emphasis added). Thus, the majority’s view appears to be that the Moragne Court read The Harrisburg to preclude a cause of action that had not yet been invented.
. When an opinion is obviously applicable to a nearly identical set of facts, it is nevertheless accurate to say that the opinion still must be "extended" to cover the second set of facts. Sometimes, a minimal extension of the prior precedent to a situation clearly controlled by that precedent even warrants the publication of a subsequent opinion. See, e.g., Boulahanis v. Board of Regents, 198 F.3d 633 (7th Cir.1999) (extending Kelley v. Board of Trust ees, 35 F.3d 265 (7th Cir.1994), while recognizing that Kelley plainly controlled the case at bar).
. Both parties invoke the Fifth Circuit’s precedents as supporting their respective readings of Moragne. Surprisingly, both parties appear to be correct. In Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 527 (5th Cir.1979) (en banc), the Fifth Circuit held:
Other reasons, somewhat more complex, appear to preclude interpreting the Jones Act as being supplemented by a Moragne engendered negligence action for damages if (but only if) death occurs in territorial waters or on land. Moragne did not create or even discuss an action for negligence; it dealt only with death occasioned by unseaworthiness. The suggestion that the Jones Act measure of damages can be supplemented by the Moragne cause-of-action-Gaudet-damages rule will not bear analysis....
A decade later, the Fifth Circuit appears to have reversed course, observing that in "Mo-ragne, the Supreme Court recognized a wrongful death action for negligence and unseaworthiness under the general maritime law.” Miles v. Melrose, 882 F.2d 976, 985 (5th Cir.1989), aff’d sub nom. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). Ordinarily, an en banc opinion would trump a panel opinion, but that might not be the case where, as here, the panel opinion post-dates the en banc opinion or where, as here, only the panel opinion was affirmed by the Supreme CourL. The Fifth Circuit thus appears to find itself on both sides of a circuit split.
Nevertheless, the majority opinion cites Ivy as the current Fifth Circuit law. Maj. op. at 217. Assuming, arguendo, the correctness of that assessment, I would emphasize that Ivy 's holding is inapplicable to the case at bar. The Ivy court's analysis was animated by the problem of double recoveries for someone under Moragne and the Jones Act. Appellant, and those similarly situated, are not eligible for such a double recovery, since the Jones Act covers seamen, but not longshoremen. The Longshore & Harbor Workers’ Compensation Act (LHWCA), which covers Garris, does not provided for a wrongful death cause of action against a subcontractor. Hence, there is no risk that Appellant might recover twice, unless one construes funeral benefits from an employer and wrongful death benefits from a third-party subcontractor to be a double recovery.

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