Petition for Writ of Certiorari — Kidd v. F/V St. Patrick
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88-1762
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QUESTIONS PRESENTED
I. Are Punitive Damages ever recoverable in
Admiralty?
II. Are punitive damages recoverable by
seamen killed due to wrongful acts occurring
on the high seas, (i.e., covered by DOHSA)
when their deaths are preceeded by conscious
pain and suffering before death, (i.e., may
DOHSA be supplemented by a survival action
with a right to punitive damages?)
1. Should OffShore Logistics and
Higginbotham be reversed?
2. May DOHSA be supplemented by:
a- State law?
b. The Jones Act?
c. The general maritime law?
III. Did the 9th Circuit Court of Appeals com-
mit errors of law in its application of the law
of punitive damages or fail to give the District
Court's findings proper deference in its denial
of an award of punitive damages to surviving
seamen injured through gross negligence?
-i-
LIST OF PARTIES
The parties to the proceedings below were
Petitioners surviving seaman Robert Kidd, and
the administrators or personal representatives
of four deceased seamen's estates, P. G. Pair,
Administrator of the Estate of Wilson Lee
Pair, Thomas R. Ryker, Personal Representative
of the Estate of Randall Ray Ryker; Salome B.
Smith, Administratrix of the Estate of Charles
Wayne Parlett; and Flora and Joel L. Stigail,
as the Administrators of the Estate of Clifford
S. Stigall, and Respondants, F/V ST. PATRICK
in rem, St. Patrick, Inc., Daniel Whorton,
Leroy Whorton, and William Wilson, (frequently
referred to herein as "owners").
Also separate Apvpellees in the court of
appeals below were one other surviving seaman,
Wallace Thomas, and the administrators “ per-
sonal representatives of five other deceased sea-
men's estates, Agnes Bergen, Administratrix of
the estate of Thomas Karl Kauppinen, Shannon
Lee Youhas Jobe, Administratrix of the Estate
ye
of James Edward Jobe, Frank Romero, Personal
Representative of the Estate of Ronnie Newton,
James R. Sandin, Personal Representative of
the Estate of Vanessa N. Sandin, Willard Gary
Stallings, Personal Representative of the
Estate of Gary Todd Stallings.
It is Petitioners Kidd et. al.'s under-
Standing that these other Appellees below will
be filing a separate cross-petition for
certiorari.
ss
TABLE OF CONTENTS
QUESTIONS PRESENTED
}-
LIST OF PARTIES He!
TABLE OF AUTHORITIES
OPINION BELOW .
JURISDICTIONAL STATEMENT 2
STATUTES INVOLVED 4
STATEMENT OF THE CASE ?
REASONS FOR GRANTING THE WRIT ll
I. THE PROPRIETY OF AN AWARD OF PUNITIVE
DAMAGES IN ADMIRALTY GENERALLY DUE TO
GROSS NEGLIGENCE RESULTING IN CONDITIONS
OF UNSEAWORTHINESS TO SEAMEN WHO SUFFERED
PAIN BEFORE DEATH 11
II. THE PROPRIETY OF AN AWARD OF PUNITIVE
DAMAGES TO SEAMEN KILLED DUE TO
WRONGFUL ACT ON THE HIGH SEAS WHO
SUFFER PAIN BEFORE DEATH 18
1. OFFSHORE LOGISTICS AND
HIGGINBOTHAM SHOULD BE
REVERSED 18
ho
PUNITIVE DAMAGES PURSUANT
TO A SURVIVAL REMEDY La
a- AN ALASKA STATUTE
PROVIDING FOR A
SURVIVAL REMEDY 20
lv
je THE JONES ACT 22
C
C. A GENERAL MARITIME LAW CAUSE 4
OF ACTION FOR SURVIVAL 2
Wn
ty
i a THE NINTH CIRCUIT COURT OF APPEALS
COMMITTED ERRORS OF LAW AND FAILED TO
GIVE THE TRIAL COURT'S FINDINGS OF
SS NEGLIGENCE PROPER DEFERENCE IN
ITS DENIAL OF PUNITIVE DAMAGES TC EVEN
S
S
| ry
THE SURVIVING SEAMEN 29 f
CONCLUSION 46
Reena .
Apx. A Decision of the United States :
District Court on Liability 2
A B Decision of the United States
District Court on Damages
E
: i Supplemental Findings of Fact
Dy the United States District Court r
: D Opinion of the United States Court
of Appeals for the 9th Circuit .
: E Jrder of the United States Court
of Appeals for the 9th Circuit c
Apx. F: Death on the High Seas Act (DOHSA)
. C
ADx. G: Jones Act -
Apx. H: Federal Employers Liability Act (FELA)
Apx. I Officers' Competency Certificates Act
C
Apx. J: Alaska Survival Statute ?
Apx. K: Alaska-Statutes Applying Alaska Law
iv-a
+ fs aie
ilerican Eagle v. State, 620 P.2d. 657
Ak., 1980), app. dism. 454 US 1130
1982) 21
liable Nancy, The, 16 US (3. Wheat),
46, 4 L.Ed. 456 (1818) 12
iderson v. Bessemer City, 470 US 564,
il, 84 L.Ed.2a. 518, 527, 105 S.Ct.
504 (1985) 33,43,4
‘zopardi v. Ocean Drilling & Exploration
oO. 742 F.2d 890 (5th Cir., 1984) a7
inkers Life & Cas. Co. v. Crenshaw,
US , 408 §.Ct. 1645, 100 L.
d.2d. 62 (1988) 15
iptiste v. Superior Court, 164 Cal. Rpt.
89 (1980) i522
irbe v. Drummond, 507 F.2d. 794, 797-98
‘Ist Cir., 1974) 20
rgen v. St. Patrick, 816 F.2d 1345, 1347 2,14,16,
mod. on reh. 866 F.2d 318 (9th Cir. ,1989) 20,/22,25,29,
30,34, 36, 38,40
rlson v. Green , 446 US 14, 64 L.Ed.2d.
5, 100 S.Ct. 1468 (1986) L3,a0
lurchill v. F/V FJORD, 857 F.2d. 571
Ptr Giles Loan! 26,39
ok v. Ross Island Sand & Gravel, 626
‘.2d. 746, 748-49 (9th Cir., 1980) 23,24
rbin v. State, 672 P.2d 156 (Ak. App.,
983), app. dism., 467 US 1223 (1984) 21
Page
Dick v. New York Life Ins. Co.,
359 US 437, 3 L.Ed. 935, 79 S.Ct. 921
(1959) 33
Doe v. Colligan, 753 P.2d. 144 (Ak., 1988) 33
Dyer v. Merry Shipping Co., 650 F.2d. 622, _ »S
624-25 and n. 9 (5th Cir., 1981) 2,49
Evich v. Morris, 819 F.2d. 256 (9th
Sikes 27er) \9 De
Favaloro v. S/S Golden Gate, 687 FS 475
(ND Cal., 1987) 26
Ferguson v. Moore-McCormack Lines, 352
US Sak, B29) L Wee 4Gs SLL, 5145, 77
S.Ct. 457, 459 (1956) 32
Gillespie v. United States Steel Corp.,
379 US 148, 156-58, 13 L.Ed.2d. 199, ;
205-206, 85 S.Ct. 308, 313-314 (1964) YP by
Graham v. Milky Way Barge Inc., 824 F.2d.
376 (5th Cir., 1988) 26
Guzman v. Pichirilo, 369 US 698, 8
L.EdG.2G. 205, 82 $.Ct. 1095 (1962) 33
Horsford v. Estate of Horsford, 561 P.2d.
Fade. a9 URRee L377) 20
Icicle Seafood Inc. v. Worthington, 475
US 709, 89 L.Ed.2d. 739, 106 S.Ct.
1527 (1986) 34
International Brotherhood of Electrical
Workers v. Foust, 442, US 42, 48, 99 S.Ct.
Zidl, 2h25, 60 L.8@.2da. 696 (1979) 13
Ivy v. Security Barge Lines Inc., 606 F.2d.
524, (5th Circ., 1979) 24
vi
Kopczynski v. The Jacqueline, 742 F.2d.
355, 561 (9th Cir., 1984), cert den
471 US 1136 (1985)
Lakeshore Railway Co. v. Prentice, 146
US 101, 13 S.Ct. 261, 37 L.Ed. 97 (1893)
McAllister v. United States, 348 US 19,
20, 99 L.Ed. 20, 24, 75 S.Ct. 6 (1954)
Marine Sulphur Queen, In Re. 460 F.2d.
89, 105 (2nd Cir., 1972), cert den sub
nom Marine Sulphur Transport Corp. v.
Head, 409 US 982, 93 S.Ct. 318, 34 L.Ed.
2d 246 (1972)
Merry Shipping, In the Complaint of,
650 F.2d. 622, 625 (5th Cir., 1981)
Michigan CR Co. v. Vreeland, 227 US 559,
2? LeEd. 417, 33 $.Ct. 192 (1913)
Mobil Oil V. Higginbotham, 436 US 618,
296 L.Ed.2d. 581, 98 S.Ct. 2910 (1978)
Nygaard v. Peter Pan Seafoods, 701 F.2d.
fi )6 (Sth Cir., 1963)
OffShore Logistics v. Tallentire, 477
US <U7, £15 FR. 1, 9L L.BG:2G. 174, 184
Fn. [4b], 106 S.Ct. 2485 (1986)
Protectus Alpha Nav. Co. v. North Pacific
Grain Growers, 767 F.2d. 1379, 1385 (9th
Cir., L385)
St. Louie IN 6 SR Co. ¥. Craft, 237 wus
648, 59 L.Ed. 1160, 35 §.Ct. 704 (1915)
Silkwood v. Kerr-McGee Corp., 464 US
236, /8 L.Ed.2d. 443, 104 §.ct. 615
(1984)
vil
Page .
24,25,
27,30
31
31
13,14
25,40,41
23,24
19
Pet
13,195,
20,28
12,40,
41,45
asjas
14,28
Smith v. Wade, 461 US 30, 35, 75 L.Ed.2d.
632, 635, 103 S.Ct. 1625 (1983)
State Ex. Rel Northern Inc. v. District
Court, 548 P.2d. 1390 (Mt., 1976)
State v. Bundrant, 546 P.2d. 530 (Ak.,
1976), reh den 547 P.2d. 838 (app. dism.
sub nom)
State v. Sieminski, 556 P.2d. 929 (Ak.,
1976)
Strum Ruger & Co. v. Day, 594 P.2d. 38, 47,
(Ak., 1979), mod. on reh'g. 615 P.2d. 621
(1980), cert den 454 US 894 (1981)
Tommy's Elbow Room v. Kavorkiam, 727 P.2d.
1038, 1048-49 (Ak., 1986)
United States v. Furhman, 407 F.2d. 1143
(6th Civ. , 1.3969)
United States v. US Gypsum Co., 333 US 64,
395, 92 L.Ed. 746, 766, 68 S.Ct. 525 (1948)
Uri v. State, 429 US 806 (1976)
Weason v. Harville, 706 P.2d. 306, 1988
AMC 428 (Ak., 1985)
villi
Page
13,40,
41,45
Fae
ah
26
oh
re
STATUTES AND RULES
AS 05.25.060(b) 39
AS 09.55.570 S20
AS 44.03.010-.040 5
28. U6C. 23254 (i) 4
28 USC 1291 10
28 USC 1916 3
45 usc 59 5 ,.23,e4eo0an
46 USC 185 2
46 USC 224(a) Sites0
46 USC 688 (a) 4,23,24
46 USC 761 et. seq. 4
46 USC 4501 et. seq., 100-424 iy
Supreme Court Rule 17.1(a) 20981930
Supreme Court Rule 47.2 3
LAW REVIEWS
Edelman, Wrongful Death On The High Seas,
Trial, (April, 1987), pg. 59 19
Ferry & Imre, Punitive Damages After Bankers
Life & Cas. Co. v. Crenshaw, For the Defese
LJ, 12 (September, 1988) 16
Nagy, The General Maritime Law Survival
Action: What Are The Elements of Recover-
able Damaaces U. of Hawail, LR 5 (1987) 26
Schoolcraft, The Maritime Survival Action ana
Future Earnings, 18 Jour. of Maritime Law
and Commerce, 1989, (1987) 26
Waddell, Punitive Damages In Admiralty,
19 Jour. Maritime Law & Commerce, 65,
69 (1988) 14
1x
Page
LEGAL COMMENTS AND NOTES
Comment, Maritime Wrongful Death: A Riptide
Develops off the U.S. Coast, 62 Tulane LR
597 (1988) 19
Note, Admiralty-Damages-Punitive Damages
Not Available Under the Jones Act:
Kopezynski v. The Jacqueline, 742 F.2d.
555 (9th Cir., 1984), 16 Seaton Hall
LR 589 (1986) ao
Note, Bergen v. F/V St. Patrick:
Higginbotham Prevails No Punitive Damages
Under Death On The High Seas, 62 Tulane
LR 1139, (1988) 15
Note, Fifth Circuit Allows Coupling of
Survival Actions Under Maritime Law With
DOHSA Claim: Azzoparki v. Ocean Drilling
& Exploration Co., The Maritime Lawyer,
site (i906) 26
TREATISES AND OTHER AUTHORITIES
9 Wright & Miller, Fed. Practice & Procedure,
§2590 (1971) 32
Newsweek, "Smothering The Waters", pg. 43,
April 10, 1989 i i
IN THE SUPREME COURT OF THE UNITED STATES
ROBERT KIDD, P. G. PAIR, )
Administrator of the Es- )
tate of Wilson Lee Pair, )
THOMAS R. RYKER, Personal)
Representative of the
Estate of Randall Ray
Ryker; SALOME B. SMITH,
Administratrix of the
Estate of Charles Wayne
Parlett; and FLORA and
JOEL L. STIGALL, as the
Administrators of the
Estate of Clifford Ss.
Stigall,
Petitioners,
vs.
F/V ST. PATRICK, ST.
PATRICK, INC., DANIEL
WHORTON, LEROY WHORTON,
and WILLIAM WILSON,
Respondants.
eee eee eee eee es eee te
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioners Robert Kidd et. al.
respectfully pray for a writ of certiorari to
issue to review the judgment and opinion of
the United States Court of Appeals fer the
-lj-
9th Circuit entered in the above-entitled
proceedings on May 7, 1987.
OPINION BELOW
The opinion of the Court of Appeals
for the 9th Circuit entered May 7, 1987, is
reported at 816 F.2d 1345 and at 1987 AMC
2024, and is reprinted in Appendix D sereto.
Its opinion of February 22, 1989, granting
rehearing is reported at 866 F.2d LG
and is reprinted in Appendix F hereto.
The decisions of the United States
District Court for the District of Alaska,
(von der Heydt, D.J.) below were not reported.
His decision on liability is reprinted in 7
Appendix A, and his decision on damages, in
Appendix B hereto.
JURISDICTION
This petition for certiorari arises
Out of a petition for limitation of liability
brought by Respondants pursuant to 46 USCA
§185, arising out of a caSualty to the F/V sT.
PATRICK, on November 30, 1981. Petitioners
-2?-
here brought claims in that limitation action.
Petitioner Robert Kidd is a surviving seaman,
alleging damages for personal injuries. 2
Joining Robert Kidd in this petition are the
administrators or personal representatives cd
of the estates of four of nine deceased seamen
who pursued causes of action for survival and
wrongful death actions under the Jones Act,
DOHSA, the general maritime law, and the
law of Alaska, in that limitation action 2
below. Bifrucated trials on liability
and damages on these claims were
Without prepayment of costs pursuant to 28 USC
§ 1916, and Supreme Court Pule 47.2.
P.G. Pair, administrator of the estate of Wilson Lee
Pair, Thamas R. Pyker, personal representative of
the estate of Randall Ray Ryker, Salome B. Smith,
administratrix of the estate of Charles Wayne Par-
lett, and Flora and Joel Stigall, as the acminis-
trators of the estate of Clifford S. Stigall.
Another survivor, Wallace Thomas, and the adminis-
trators or personal representatives of the estates
of the other five deceased seamen who pursued
their claims below, are separately represented.
Petitioners here understand that these parties
intend to file cross-petitions for certYorari,
joining in the arguments of petitioners herein,
and asserting other arguments of their own.
i)
nee)
-3-
held, and decisions thereafter rendered in
findings of fact and conclusions of law en-
tered May 5, 1985 (Apx. A) and April 10, 1986
(Apx. B) respectively, and judgments were
entered in the District Court accordingly.
On Respondants' timely appeals, the
9th Circuit Court of Appeals on May 7, 1987,
entered an opinion and judgment reversing the
District Court's decisions in part and affirm-
ing in part, (Apx. D). On February 2, 1989,
Petitioners here were granted rehearing in
part and the Court of Appeals modified its May
7, 1987, opinion and judgment, (Apx. E).
The jurisdiction of this court to
review the judgment of the 9th Circuit is
invoked under 28 USCA §1254(1).
STATUTES INVOLVED
This case involves consideration of
the Death On The High Seas Act, (DOHSA here-
in), 46 USCA 761 et seq., the Jones Act, 46
USCA §688(a), the Federal Employees Liability
aha
Act, (FELA herein), 45 USCA §59, the Officer
Competency Certificates Act, 46 USCA §224(a),
and Alaska Statutes AS 09.55.570, and 44.03.
010-.040. These statutes are set forth in
Apx. F-K.
STATEMENT OF THE CASE
Petitioner Kidd suffered his injur-
ies and the other petitioners' decedents here
suffered their deaths on November 30, 1981,
when they were ordered by the unlicensed mate
of the scalloper F/V ST. PATRICK, who had just
assumed command in the temporary absence of
the vessel's equally unlicensed captain, to
abandon ship in a storm on the high seas off
Marmot Island near the City of Kodiak, Alaska.
At the time of her abandonment, the vessel was
perceived to be foundering. Ten seamen were
killed in the aftermath. 4 ‘they died after
their surviving shipmates observed them
suffering from the agonies of hypothermia for
2 Including the commanding mate whose estate brought
but then abandoned his claim below.
-5-
varying lengths of time from 15 minutes to up
to 12 hours while they drifted in flotation
devices or survival suits before they were
seen to expire or drift away, some never to
be found. The two surviving crewmen were
separated but eventually washed ashore on
Alaska's uninhabited shores where they separ-
ately suffered in subfreezing temperatures,
wet and unprotected, for approximately 12 more
hours before they were rescued. As a result,
Survivor Robert Kidd suffered severe frost
bite to his feet resulting in their partial
amputations and effective loss of the use of
them both, and resulting permanent disability.
Both Kidd and survivor Wallace Thomas suffered
immense pain, and severe emotional trauma at
the sight of their shipmates'’ death or separa-
tion, resulting in severe and permanent emotion-
al injuries.
Tragically, in one of the classic ironies
of maritime annals, the unmanned F/V ST.
PATRICK survived and was found the next day
-6-
still afloat in no danger of sinking! Ten
men were killed and two severely injured
because the ST. PATRICK's unlicensed acting
master prematurely panicked.
More tragic still is the fact that merely
two months before, another incident had prompted
the U.S. Coast Guard in Anchorage to board the
ST. PATRICK, at which time all her owners were
Made personally aware that the vessel's offi-
cers were discovered to be unlicensed as
required by the Officer Competency Act, 46
USCA §224(a), and that this and other safety
violations prohibited her operation on the
high seas. To keep her operating her owners
made promises to the Coast Guard inspector, a
Lt. Walters, that the vessel would be moved no
further than Homer, Alaska, (a voyage entirely
through inland waters), and that before she
Sailed on the high seas her officers would
qualify for and secure the necessary licenses.
2 The District Court further concluded that the test
_ for these licenses specifically requires an examina-
tion of ship's officers in areas that could have pre-
vented this accident. Apx. A, pg. 34, Conclusion 4.
-7-
But other than take the necessary license
applications from Lt. Walters and hand them to
the vessel's officers, these owners took no
steps whatsoever to comply with the law or
their promise and proceeded to directly take
the vessel past Homer and on to the high seas
repeatedly until her loss, with full knowledge
that her officers remained unlicensed.
Finally on the day before the
tragedy the owners' president personally was
made aware that the unlicensed master departed
the vessel temporarily leaving her in command
of the unlicensed mate who was fishing her on
the high seas, in total violation of the law,
yet he did not order the mate to return the
ST. PATRICK to port.
Petitioners brought claims alledging
negligence under the Jones Act, -and unseaworthi-
ness under the general maritime law, and (in
pertinent part to this petition) that the
aforesaid conduct by Respondants was willful
Or wanton, reckless and indifferent to the
-8-
safety of their seamen and in contemptuous
disregard of the Officers Competency Act
enacted for their seamen's safety, and in
contemptuous breach of their express August
31, 1981, promise to the Coast Guard Inspec-
tion Officer, Lt. Walters, to obey that act.
Petitioners further claimed that this conduct
raised to the level of gross negligence and
amounted to the ST. PATRICK being in a condi-
tion of gross unseaworthiness which was per-
sonally known to her owners. =
After a trial, the United States
District court agreed and expressly and
carefully entered Apx. A, pg. 10-21, 25-27,
Findings 28-51, 63-66, upon competent evidence,
Supporting his decision, and carefully and
accurately applied the law (Apx. A, pg. 33-34,
35-36, Conclusions 3-6, 10-14), to award each
seaman or his estate $200,000 in punitive
damages in addition to compensatory awards for
injuries or predeath suffering and wrongful
death, (Apx. B).
ree eerie
Respondants' timely appealed from
the District Court's judgment to the 9th
Circuit Court of Appeals invoking its jur-
isdiction under 28 USCA §1291 to review
"final decisions" of district courts. Though
the respcndants on their appeal below conceded
the propriety of survival awards to the de-
ceased seamen and further conceded the legal
basis for the award of punitive damages, (Apx.
D, pg. 19, Fn. 3 infra), the 9th Circuit
rejected the express conclusion by the Dis-
trict Court that punitive damages were legally
recoverable for the deceased seamen, whether
that remedy was predicated under Alaska state
law, the Jones Act, the general maritime law,
or DOHSA, despite the existance of pre-death
suffering giving them a survival remedy. The
overall basis of the decision of the court of
appeals was that DOHSA (and the Jones Act) pro-
hibited this result, because they contained
language limiting damages tc "pecuniary loss".
The Court of Appeals then went on to address
-10-
the survivors' injury claims, to find that
despite the aforedescribed facts expressly
found by the district court, for a shipowner
to be liable in punitive damages his conduct
must be "willful" and the facts found by the
district court did not rise to that level, and
hence its award of punitive damages was held
to be clearly erroneous. In all other res-
pects the District Court's decisions were
eventually affirmed, after an intervening re-
mand for further finding by the District Court,
Apx. C, as to the matters collateral to this
petition, Apx. E.
REASONS FOR GRANTING THE WRIT
I. THE PROPRIETY OF AN AWARD OF
PUNITIVE DAMAGES IN ADMIRALTY
GENERALLY DUE TO GROSS NEGLIGENCE
RESULTING IN CONDITIONS OF UNSEA-
WORTHINESS TO SEAMEN WHO SUFFERED
PAIN BEFORE DEATH 6
6 ' — ,
— This argument's consideration is unnecessary to
resolve the claims of the surviving seamen. See
their argument, infra, Section III, pg. 29.
-ll-
}
Prior to embarking upon a voyage into tl
technical statutory and decisional law surrot
ing the award of punitive damages, Plaintiff:
would briefly state that this case presents %
important question of federal law which has
not been, but should be settled by this cour
pursuant to the criteria of Supreme Court Ru.
17.1(a) and (c).
Despite an indication as early as 1818
The Amiable Nancy, 16 US (3. Wheat) 546, 4
L.Ed. 456 (1818), that punitive damages were
available in marine law in a proper case, ks
modernly and only very recently has there eve
been a reported award of punitive damages in
maritime law at the circuit court level,
Protectus Alpha Nav. v. Pacific Grain Grower:
767 F.2d. 1379, 1385 (9th Cir., 1985): Evich
V. Morris, $19 F.24. 256 (Sth Cir., 1987);
Dyer v. Merry Shipping Co., 650 F.2d. 622,
a See also, LakeShore Railway Co. v. Prentice, 146 U
LOL, 13':8.Co. 206i, 3/7 L.bo. 97 (i833).
-|2-
624-625 & n. 9 (5th Cir., 1981); In Re. Marine
Ww
sa- Sulphur Queen, 460 F.2d. 89, 105 (2nd Cir.,
1972), cert den sub nom Marine Sulphur Tranport
Corp. v. Head, 409 US 982, 93 S.Ct. 318, 34
L.Ed.2d. 246 (1972); United States Steel Corn.
vy. Fuhrman, 407 F.24. 1143, i196. (6th Ciz.,
1969).
\V
Modernly, however, this court has repeat-
edly affirmed the principal that punitive
damages may upon a proper showing be recover-
able. See International Brotherhood of Elec-
trical Workers v. Foust, 442 US 42, 48, 99
S.Ct. 2121, 2125, 60 1.Bd.2d. 698 (1979);
Carlson v. Green, 446 US 14, 64 L.Ed.2d. 15,
100 S.Ct. 1468 (1980). And, in Smith v. Wade,
461 US 30, 35, 73 L.Ed@.2c. 632, 638, 103
S.Ct. 1625 (1983), this court affirmed the
principal of punitive damages and its approp-
riate standards most convincingly, stating
society has an interest in deterring and
punishing all intentional or reckless inva-
Sions of the rights of others. 461 US 30,
1 3=
a ian ta as er cenn emee
54, 75 L-Ed.2d 632, 650, 103 S.Ct. 1623. See
also, Silkwood v. Kerr-McGee Corp., 464 US
238, 78 L.Ed.2d 443, 104 S.Ct. 615 (1984).
Nevertheless, despite the recent holding
within its own circuit of Protectus Alpha
Nav. v. N. Pacific Grain Grow, 767 F.2d. 1379
(9th Cir., 1985), (relying on Smith v. Wade)
and that of the other circuit courts, supra,
a different panel of the 9th Circuit in this
case below states, 816 F.2d. 1345, 1347,
(Apx. D, pg. 19).
"Whether or when punitive damages
are avallable under the general mari-
time law is not entirely clear."
(underline added)
The availability of punitive damages in
maritime law has been the current and contin-
ued source of legal scholarly debate. Wad-
dell, Punitive Damages In Admiralty, 19 Jour.
Maritime Law and Commerce, 65, 69 (1988), sets
forth a current and far more comprehensive
analysis of the conflicting state of punitive
damages in admiralty amongst the circuits than
-l14-
space permits in this petition, and provides
an excellent analysis of the 9th Circuit's
opinion below here. Petitioners urge this
court consider this article's argument as
addressing Petitioners' duty under Supreme
Court Rule 17. See also, note, Bergen v. F/V
ST. PATRICK: Higginbotham Prevails - No Puni-
tive Damages Under Death On The High Seas, €2
Tulane LR 1139 (1988); Weason v. Harville, 706
P.2d. 306, 1988 AMC 428 (Ak., 1985), and
Baptiste v. Superior Court, 164 Cal. Rptr.
789 (1980).
Further reasons for the grant of certior-
ari in this case is the decision of this court
in Bankers Life and Cas. Co. v. Crenshaw,
US _, 108 S.Ct. 1645, 100 L.Ed.2d. 62 (1988),
refusing to consider the federal constitution-
al issues to the award of punitive damages.
This decision and the actions of this court in
denying review of a number of other punitive
damages cases decided at the same time has
been generally viewed as a decision by this
-15-
court upholding the general principals of
punitive damages at least until such time as
there may be a through and clear development
in the courts below of the problems with the
concept and a majority concensus of judicial
thinking emerges from this process. Ferry &
Imre, Punitive Damages After Bankers Life &
Cas. Co. v. Crenshaw, For the Defese W, 12
(Sept., 1988). J Only this court of
course knows what future the federal con-
Stitutional attack on punitive damages holds.
Assuming this court is not now predisposed to
hear this issue, Petitioners respectfully sug-
gest that the way which this court tradition-
ally exercises its power to influence the
development of American Common Law generally
is through its power to decide the federal
maritime common law, particularly where as
z This is certainly not such a case to address these
issues; the vessel owners here hav ing conceded all
legal basis for refusing an award of punitive
damages below. 816 F.2d. 1345, 1349, Fn. 3.
(Apx. D, pg. 19, Fn. 3).
-1|15-
here in these seamen injury and survival cases
it has a completely free hand, as Congress has
enacted no legislation whatsoever concerning
a seaman's remedies in unseaworthiness, and
iiceie Bonewentne negligence.
Finally there are definite present nation-
al interest and éapecialiy important reasons
for this court's direct attention to punitive
damages in admiralty. On September 9, 1988,
Congress recognised the need for stronoer
guarantees for fisherman's safety in the
passage of P.L. 100-424, 46 USCA §4501, et.
seq. Then the recent national tragedy of the
Exxon-Valdez, described in Newsweek, "Smother-
ing the Waters", va. 43, April 10, 1989, has
drawn the nation's attention to the apparent
gross negligence of an American supertanker,
resulting in one of America's most pristine
waterways and richest fisheries, becoming
Overnight a vast oil-soaked, smelly wasteland,
having grave implications for all of Alaska
-lj|7-
a
and America for years to come. Such events
focus ¢his nation and this court on the
strong policy reasons that underly the award
of punitive damages in appropriate instances.—
II. THE PROPRIETY OF AN
AWARD OF PUNITIVE DAMAGES TO SEAMEN
KILLED DUE TO WRONGFUL ACT ON THE
HIGH SEAS WHO SUFFER PAIN BEFORE DEATH
1. OFFSHORE LOGISTICS AND
HIGGINBOTHAM SHOULD BE REVERSED
This case returns this court to the issue
expressly left undecided in Offshore Logistics
v. Tallentire, 477 US 207, 215 Fn. l, 91 L.Ed.
2d 174, 184 Fn. [4b], 106 S.Ct 2485 (1986).
Yet Petitioners would be remiss in light of
the close vote on that decision and the new
make-up of this court if they did not ask this
court to again reconsider the lack of uniform-
ity that Offshore Logistics brings to this
z This court may take judicial notice that there are 38
separate Class action suits on behalf of thousands
of victims filed in the Alaska District Court and
more in the Western District of Washington already
(with many more to come), all seeking punitive
damages for the gross negligence of the Exxcn-Valdez.
-18-
important area and suggest this court return
to its analysis of the law's development be-
fore Mobil Oil Corp. v. Higginbotham, 436 US
618, 56 L.Ed.2d 581, 98 S.Ct. 2010 (1978).
See Comment, Maritime Wrongful Death: A Rip-
Tide Develops Off The United States Coast, 62
Tulane LR 597 (1988), and Edelman, Wrong-
ful Death On The High Seas, Trial, (April,
1987), pg. 59, both highly critical of Off-
shore Logistics as were most of the comments
to Higginbotham.
2. PUNITIVE DAMAGES PURSUANT
TO A SURVIVAL REMEDY
In the absence of an award of punitive
damages directly for the decedent's death,
this court may alternatively consider uphold-
ing such an award as an ordinary element of
recovery upon a proper factual showing ina
Survival action for the victim's predeath pain
and suffering. Offshore Logistics, supra. The
source of that remedy may be state law, the
Jones Act or the general maritime law.
-1]|9-
Petitioners will deal with each remedy suc-
cessively.
a. AN ALASKA STATUTE
PROVIDING FOR A SURVIVAL REMEDY
As previously observed, in OffShore Log-
istics at Fn. 1, this court expressly reserved
the issue of whether a specific state statute
applicable to the high seas could provide a
Survival remedy to supplement DOHSA. If it
may, this would provide a remedy for at least
predeath pain and suffering and where appro-
priate, punitive damages.
Alaska 2 statute, AS 09.55.570, provides
a Survival remedy. Horsford v. Estate of Hors-
1° which is the state where the fishing vessel here was
moored and delivering to and just beyond whose
territorial limits the vessel was fishing. Alaska
was the domicile of many cf the seamen victims at
the time of the accicent and of Defendant William
Wilson, the vessel's shoreside manager and the
holder of a 50% interest in the corporation which
the 9th Circuit Court of Appeals affirmed the
Gistrict court's finding was an "artifice and a
sham". Bergen v. F/V St. Patrick, 316 F.2d. 1345,
1351) Apx. D, pg. 28; Compare Barbe v. Dmrm-
mond, 507 F.2d 794, 797-798 (lst Cir., 1974).
-20-
ford, 561 P.2d. 722, 729 (Ak., 1977), which
includes a cause of action for punitive dam-
ages. Doe v. Colligan, 753 P.2d. 144 (Ak.,
1988); Tommy's Elbow Room v. Kavorkiam, 727
P.2d. 1038, 1048-1049, (Ak., 1986), Strum,
Ruger & Co. v. Day, 594 P.2d. 338, 47 (Ak.,
1979), mod. on—-reh'g 615 P.2d. 621 (1980),
cert den 454 US 894 (1981).
Alaska's statutes expressly provide that
all of her laws are to the extent possible
applicable to the high seas. AS 44.03.010-
-040. See also, Nygaard v. Peter Pan Seafoods
701 F.2d. 77 (9th Cir., 1983), and Alaska has
without exception enforced her laws on the
high seas to the fullest extent allowed. Cor-
bin v. State, 672 P.2d. 156 (Ak. App., i983),
app dism 467 US 1223 1984); State v. Bundrant,
546 P.2d. 530 (Ak., 1976) reh den 547 P.2d.
838 app dism sub nom, Uri v. Alaska, 429
US 806 (1976); F/V American Eagle v. State,
620 P.2d. 657 (Ak., 1980), app dism. 454 US
-2\-
1130 (1982), including the regulation of
Scallop fishing at issue here. State v. Sie-
minski, 556 P.2d. 929 (Ak., 1976).
The 9th Circuit below did not extensively
address the applicability of Alaska's survival
Statute here to recover for the deceased
plaintiffs' predeath pain and suffering,
because that award was not contested by res-
pondants, and sustained on the Jones Act,
Apx. D, pg. 17, Fn. 2, (discussed infra). But
the 9th Circuit did expressly address the
issue stating at 816 F.2d. 1345, 1349, Apx.
D, pa. 16%
"We hold that where an action
under DOHSA is joined with a Jones
Act claim neither statutory scheme
may be supplemented by the general
maritime law or by state law."
(underline added for emphasis.)
b. THE JONES ACT
The 9th Circuit's express holding at 816
F.2d 1345, 1347, Apx. D, pg. 11, that puni-
tive damages may not be awarded under the
Jones Act simply fails to be logically consis-
> by
tant with its own analysis in Cook v. Ross
Island Sand & Gravel Co., 626 F.2d. 746, 748-
749 (9th Cir., 1980), wherein it recognized
a cause of action for predeath pain and
suffering and expressly stated:
"Yet while the Jones Act arguably
may apply a pecuniary loss restriction
to the personal losses of a decedent's
beneficiaries, the Act does not apply
a pecuniary loss restriction to the
injuries of a decedent himself."
In so holding Cook relied upon the ex-
press holding of this court to that effect in
Gillespie v. United States Steel Corp., 379
US 148, 156-158, 13 L.Ed.2d. 199, 205-206, 85
S.Ct. 308, 313-314, (1964), and 46 USCA §€88
of the Jones Act which incorporates FELA, 45
USCA §59, by reference. This section express-
ly provides that a cause of action for person-
al injuries before death survives. See also,
Michigan C.R. Co. v. Vreeland, 227 US 559, 57
L.Ed. 417, 33 S.Ct. 192 (1913); and St. Louis
LM. & & RR. Cow Va Cratt. 237 US 648, S39 ©. 8a.
1160, 35 S.Ct. 704 (1915).
-23-
EE
Surrounding Bergen's error below in
this regard and apparently influencing it was
the Court of Appeal's repeated desire to also
remain consistant with its decision in Kopcezy
nski v. The Jacqueline, 742 F.2d. 555, 561
(9th Cir., 1984), cert den, 471 US 1136
(1985), holding that punitive damages are not
recoverable for a seaman's injury. On carefu
analysis however, it can be seen that Kopczyn
Ski an injury case, was simply wrongly decide
As was pointed out in Ivy v. Security
Barge Lines Inc., 606 F.2d. 524 (5th Cir.
1979) relied upon in Cook, the 1908 FELA was
Vreeland to limit recovery for
= 2 |
aqeath to pecuniary loss and to provide no
. 7°75, 1 ~ + = + + cS =| ] :
Survival of an action for pre-death suffering
ork’ a3 ff ar Aa ~ > : =
But in 1910 Congress anticipated Vreeland and
aq FELA to provide an express survival
rin bitin CRO ee, oe ee ee ee ae
PLaCMLe SIF, Wiscn Cnet) LhHCOTpOrTated py
i y
referenc ; +hea Toanec Act ‘aha O16 AG TSCA
reference 1 th ones ct of 1916, 4 CA
Kopezynski is in error because it fails
to recognize this distinction. Noticeably all
of the cases it relies upon to hold that there
is no recovery beyond pecuniary loss for
injury are in fact FELA/Jones Act death cases. it
Kopezynski fails to recognize Gillespie, Craft
and 45 USCA §59, and to the extent it influ-
enced the decision of the court below, places
the 9th Circuit in direct conflict with the
5th Circuit in Merry Shipping and justifies
review under the Supreme Court Rule 17.1l(a).
c. A GENERAL MARITIME LAW
CAUSE OF ACTION FOR SURVIVAL
After the Court of Appeal's decision be-
low, 816 F.2d 1345, Apx. D, another panel of
a5 -. similar error is reached in the poorly researched
case of State Ex. Rel Northern Inc. v. District
Court, 548 P.2d. 1390 (Mt., 1976), the opposite
result is reached in Baptiste v. Superior Court,
164 Cal. Rotr. 789 (1980). An excellent article
comprehensively reviewing the area and critical of
Kopezynski but also failing to discem this point
is Note, Admiralty-Damages-Punitive Damages Not
Available Under The Jones Act. Kopczynski v. The
Jacqueline, 742 F.2d 555 (9th Cir., 1984), 16
Seaton Hall L.R. 589 (1986).
-25-
eo
the 9th Circuit three weeks later decided
Evich v. Morris, 819 F.2d 236 (9th Cir. 198°
cert den 108 S.Ct. 261 (1988). Thereafter
5th Circuit decided Graham v. Milky Way Bart
Inc., 824 F.2d 376 (5th Cir., 1988). See
also, Snyder v. Whittaker Corp., 839 F.2d l1'
(Sth Cir. 1988); Churchiil v. F/V FJORD,
Supra, and Favaloro v. S/S Golden Gate, 687
FS 475 (N.D. Cal., 1987). These cases, rec
nizing a cause of action for predeath suffe:
ing which survives (and those preceeding
Offshore Logistics to the same effect) have
received overall favorable academic aclaim.
Nagy, The General Marine Law Survival Actio:
What Are The Elements of Recoverable Damage
9 U. of Hawaii LR 5 (1987); Schoolcraft, The
Maritime Survival Action and Future Earning:
18 Jour. of Maritime Law and Commerce 89
(1937); note, Fifth Circuit Allows Coupling
Survival Actions Under General Maritime Law
With DOHSA Claim: Azzopardi v. Ocean Drillir
& Exploration Co., 11 The Maritime Lawyer,
(1986).
= 2G us
The decision of Bergen, refusing to
), recognize that petitioners’ claim for punitive
ne damages under a general maritime law survival
claim or anv other survival action under state
law or the Jones Act, puts it in direct con-
B5 flict with Azzopardi v. Ocean Drilling & Ex-
ploration Co., 742 F.2d 890 (5th Cir. 1984)
and every other circuit that has considered
J- the issue thereby justifying review. Supreme
Court Rule 17.1(a).
In Petitioners view this error has per-
vaded the entire 9th Circuit's opinion in
Bergen with the view that punitive damages for
injury be it "predeath" injury or otherwise
are not viewed favorably by this court. This
in turn leads the 9th Circuit below to conclude
that because punitive damages are arguably not
available to the decedents survivors under
Ff DOHSA or the Jones Act, (and under an errone-
ously decided Kopezynski to a personal injury
, victim) they should not be available under any
9 predeath "survival" action. The essence of
=-2J=
the 9th Circuit's error is captured in the
language:
"If all of those actions could be
Supplemented by the genéral maritime la
DOHSA's preemption of maritime law woul
be nullified". 816 F.2d. 1345, 1349.
(Apx. D, pg. 18.)
The error in this analysis is that DOSH
does not preempt maritime law; it only "pre-
empts" (or in the language of this court in
OffShore Logistics at 477 US 207, 216),
"speaks directly" to "death" damages. To
hold otherwise of course is to suggest that
DOHSA intended to address personal injuries,
which it does not, and leads to the absurd
conclusion that it is better to kill a victi
than to merely injure him, which is contrary
to this court's recent ruling in Carlson v.
Green, supra, consider also Silkwood v. Kerr:
McGee, supra. The Jones Act's incorporation
of the FELA §59 express survival remedy
compels the conclusion that Congress never
intended to limit a seaman's recovery for
personal injuries, or "pre-death" suffering.
oF 8
III. THE NINTH CIRCUIT COURT OF
APPEALS COMMITTED ERRORS OF LAW AND
FAILED TO GIVE THE TRIAL COURT'S
FINDINGS OF GROSS NEGLIGENCE
PROPER DEFERENCE IN ITS DENIAL OF
PUNITIVE DAMAGES TO EVEN THE
SURVIVING SEAMEN
Having spent the bulk of its opinion
concerning the legal entitlement of seamen
killed due to negligence and unseaworthiness
under circumstances which give rise to DOHSA,
the 9th Circuit in three brief paragraphs, at
SiG F.2a 1345, 1349, (Apx. D, pg. 18-20), then
proceeds to render all of the far reaching law
it has proclaimed on the subject obiter dictum
when it then proceeds to declare the trial
court's findings supporting the award of
punitive damages to the severely injured but
Surviving crewmen of this terrible casualty to
be clearly erroneous. i2
12 me conduct resulting in awards to the surviving
severely injured seamen was the same conduct that
gave rise to the punitive damages awards to the
Survivors of the deceased seamen. Conversely if this
court were to conclude as a matter of law that no
award of punitive damages was permissible to deceased
seamen, (despite uncontradicted predeath suffering)
it would still be faced with the review of the award
footnote continued pg. 30 29-
An analysis of the district court's find
ings of fact on issue of liability, No. 28-51
63-64, 66; Conclusions 3-6, 11-13, (Apx. A),
and Findings of Fact on Issues of Damages, No
l, (Apx. B), reveals quite clearly that the
9th Circuit's opinion, 816 F.2d. 1345, 1349-
50, (Apx. D, pg. 19), was not true to the
district court's findings. It not only sub-
Stituted its judgment for the district court'
but totally ignored, or grossly mischaracter-
of punitive damages to the surviving seamen when
they bring a cause of action for unseaworthiness
joined with a Jones Act cause. Such an award is nc
prohibited by any act of Congress, and clearly
permissible under the general maritime law. As
noted by the court of appeals below, 816 F.2d 1345,
1349, Fn. 3, Apx. D, pg. 19, the defending vessel
owners conceded there was a legal basis for the
award. A review of the entire 9th Circuit opinion
below leads one to observe that having exhaustive!
reviewed the law in the course of attempting to
demonstrate no basis for the award of punitive
damages for a DOHSA death despite the existance of
substantial pre-death suffering, the 9th Circuit,
rather than face the obnoxious result that punitive
damages may be awarded those who fortuitously sur-
vived (and in the process have to address whether
its holding in Kopdznski was wrongly decided, dis-
cussed supra), chose instead as almost an after-
thought as its only escape fram this philosophical
dilemma to ignore the district court's findings.
-30-
ot
ized the district court's findings and clearly
failed to follow the legal standard of review
mandated by this court. In doing so it artic-
ulated law pertaining to the award of punitive
damages which differs from that of all the
Other circuits, (and decisions within its own
circuit), and the law on punitive damages
generally dicated by this court.
In United States v. United States Gypsum
Co., 333 US 64, 395, 92 L.Ed. 746, 766, 68
S.Ct. 525 (1948), this court first applied the
"Clearly erroneous" standard and defined the
scope of review of a finding by the district
court by the court of appeals as:
"A finding is ‘clearly erroneous'
when although there is evidence to support
it, the reviewing court on the entire
evidence is left with the definite and
firm conviction that a mistake has been
committed."
In McAllister v. United States, 348 US
if, 20, 99 L.8d. 20, 24, 75 $.Ce. 6 (2954),
this court further applied US Gypsum's holding
to findings of a district court upon what is
-3)]-
frequently referred to as the "ultimate"
finding of negligence. See also, 9 Wright &
Miller, Federal Practice & Procedure, §2590
(1971), and equally significant to this case,
announced that though the court of appeals
properly applied the Gypsum standard, this
court would review such a ruling on a petitio
for certiorari when it disagreed with the
court of appeals" result, stating:
"In relation to the district court'
findings, we stand in review in the same
position as the court of appeals."
In reaching this result, this court rejected
strong, and frequently repeated dissent of
Justice Frankfurter, that urged that review c
a court of appeals' decision reversing a
district court's finding as clearly erroneous
was not a proper grounds for a petition for
certiorari. See also, Ferguson v. Moore-
McCormack Lines, 352 US S2di, 324 1 L.EG. 2G:
511, 515, 77 $.Ct. @57, S22 taeeer, ene
Crumady v. "Joachim Hendrik Fisser", 358 US
423, 3-L.-Ed.2d. 413, 79 St. 445 (1959);
-32-
Guzman v. Pichirilo, 369 US 698, 8 L.Ed.2d.
205, 82 S.Ct. 1095 (1962). See also, Dick v.
New York Life Ins. Co., 359 US 437, 3 Lie BGs
935, 79 §.Ct. 921 (1959). 23
More recently in Anderson v. Bessemer
City, 470 US 564, S71, 94 L.Ed.2d. 518, 527,
105 $.Ct. 1504 (1985), this court undertook an
extensive reanalysis of the fact finding
authority of the district court and the func-
tion of a court of appeals in reviewing then,
and reminded the court of appeals that in
applying the clearly erroneous standard to the
findings of a district court sitting without a
jury, appellate courts must consistantly have
in mind that their function is not to decide
factual issues de novo, and that the court of
appeals may not reverse even though convinced
that had it been sitting as the trier of fact,
i These decisions thereby establish this court's auth-
ority to review this issue under Supreme Court Rule
17(a), as a far departure from the accepted and
usual course of judicial proceedings.
-33-
it would have weighed the evidence different
ly, This court then concluded:
"Where there are two permissible
views of the evidence, the fact finder
choice of the evidence cannot be clearl
erroneous."
*
*
*
"This is so even when the district
court's findings do not rest on credi-
bility determinations, but are based
instead on physical or documentary
evidence or inferences from other
facts." 470 US 564, 574, 8 L.Ed.2d.
518, 526.
See also, Icicle Seafood Inc. v. Worthington
475 US 709, 39 L.EG.2€ 739, 1606 §8.Ct. 1527
(1986).
An analysis of the district court's
liability findings (Apx. A) 28-51, 63-64, 66
on this issue, supra, when compared to the 9
Circuit's opinion, demonstrate irreconcilabl
conflict with what the district court found
even with the facts articulated by the 9th
Circuit iteeif, 816 F.24. 1343, 1346, Apx- t
pg. 7. Simply stated the district court did
not as the 9th Circuit suggested, find these
-34-
vessel owners grossly negligent merely because
they "disregarded" the officer Competency Act,
46 USC §224a, which required that this vessel
have licensed officers, but rather the dis-
trict court expressiy found these owners
should have Known of the mandates of this law
well before the Coast Guard ever boarded the
ST. PATRICK on August 31, 1981, and found her
in noncompliance; (Apx. A, Finding 34-35).
And much more significantly, that when follow-
ing her boarding by the Coast Guard, the ST.
PATRICK was detained, Bill Wilson, the Defen-
dants' shoreside manager, officer, and 503%
"owner" of this "sham" corporation, expressly
promised Lt. Walter, the U.S. Coast Guard
officer in charge of the boarding, that if he
would release the vessel, Wilson would take
the vessel no further than Homer, Alaska, (a
passage which required no high seas travel),
and that before the vessel left Homer for the
high seas, a properly licensed officer would
-35-
be put aboard. (Apx. A, Finding 36-37).
Admittedly as the 9th Circuit pointed out at
816 F.2d 1345, 1349, Apx. D, pg. 16, the
testimony of the owners supports they knew t
ST. PATRICK officers had obtained licensing
forms; they obtained them through Wilson whi
the vessel was in Anchorage during the Coast
Guard inspection and its immediate aftermath
(Apx. A, Finding 38)! But the district cour
also found that Wilson not only knew that th
vessel's officers had not obtained the licer
when he shortly thereafter sent the vessel
through high seas waters to Kukak Bay to buy
crab, Finding 41, but that thereafter when i
early October he converted the vessel back t
scalloping and sent her to Kodiak where he
knew she would be operating in high seas
waters, Wilson not merely "disregarded" the
Officer Competency Act, but that he knew he
"was Clearly violating his promise to Lt.
Walter and "willfully, wantonly, competemn-
tuously, and repeatedly disregarding the
-36-
dictates of the Officer Competency Act, Find-
ings 45, comliance with which the Court found
could have prevented this accident, Apx. A,
Conclusion 4. (The vessel after all survived
even after the unlicensed master in panic
ordered the crew to abandon ship.)
The district court further observed that
the act of the owners in permitting the vessel
to proceed on the high seas upon these circum-
stances was "at least impliedly directing the
i vessel to proceed with unlicensed officers",
(Apx. A, Conclusion 13), and was done for
"financial gain" Aox. A, Finding 45, li. 19-
20. The court found similar contemptuous
conduct by LeRoy Whorton, Apx. A, Finding 46,
and Daniel Whorton, Apx. A, Finding 51. LePoy
Whorton, the Defendants’ president, not only
knew the vessel was commanded by unlicensed
officers, but that the vessel's unlicensed
captain had temporarily left the vessel in the
command of the unlicensed mate, and that onlv
=37=
EE —————
the mate was operating her on the high seas ¢&
full day prior to the loss; yet the mate was
never directed to return to port. Apx. A,
Finding 49-50, 63.
Turning from the district court's find-
ings to the court of appeals review thereof,
this court should first address whether the
9th Circuit in Bergen even articulated the
proper standard of law pertaining to gross
negligence, and in failing to do so, created
by its holding a conflict with a decision by
another federal court on the same issue. As
the Bergen court at 316 F.2d 1345, 1349 Apx.
D, pg. 16, appears to view the law, even
though a person willfully violates a law, if
that person makes any step toward compliance
with the law, that act may not constitute
gross negligence?
Petitioners are not, of course, suggest-
ing that the mere violation of a law consti-
tutes gross negligence or even that a knowing
-38-
violation of law must constitute gross negli-
gence. An analysis of the district court's
opinion reflects the district court was well
aware of that principle. Conclusions on
Liability (Apx. A) No. 3-6, 19-14. And the
District Court clearly did not find these
vessel owners grossly negligent mereiy because
they violated the Officer Competency Act or
even because they knowingly did. On the
contrary the proper principal of law is stated
by another panel's review of another decision
concerning punitive damages by the very same
district judge below in Churchill v. F/v
FJORD, 857 F.2d. 571 (9th Cir., 1988), pet.
for reh. pending, wherein despite a finding
that an 18 year old vessel operator was intox-
. _ 4
icated with alcohol and marijuana, = 357
F.2d. 571, 573, the district court found the
i4 In violation of AS 05.25.060(b), which provides:
(b) A person may not operate a watercraft whether for
recreational purposes or any other purpose in viola-
tion of AS 28.35.030 on the waters of the state while
under the influence of any intoxicating liquor, nar-
Cotic drug, barbiturate or marijuana.
-39-
absence of the requisite intent and denied
punitive damages. See also, Protectus Alpha
Nav. Co. v.- North Pacific Grain Growers, 767
F.2d. 1379, 1385 (9th Cir., 1985), which in
turn applies the standards of Smith v. Wade,
461 US 30, 75 L.Ed.2d. 632, 103 &-€t. 1625
(1983).
The district court's liability decision
here did not have the benefit of Protectus
Alpha decided later in 1985, but instead
relied on United States V.- Furhman, 407 F.2d.
1133 (6th Cir-, 1969), which nevertheless
expresses the same proper law as did this
court in Smith v. Wade, and applied it under
circumstances very similar to the facts in
this case. The 9th Circuit here on the other
hand chose to totally ignore Furhman and
Smith v. Wade throughout its opinion and took
the holding of Complaint of Merry Shipping,
680 F.2a. 622, 625 (5th Cir., 1981), out of
context. On the contrary, the Bergen court
appears to hold that the award of punitive
-A40-
damages may only be predicated on a willful
violation of a duty rising to the level of
"sctual malicious intent", which this court
clearly held was unnecessary in Smith v. Wade.
In its holding the Bergen court points the 9th
Circuit on a course that diverges markedly
from the 5th Circuit and 6th Circuit in Merry
Shipping and Fuhrman. See also, In ke. Marine '
Sulphur Queen, 460 F.2d. 89, 105 (2nd Cir.,
1972). 22 As this Court in Smith v. Wade,
supra, recognized, “criminal indifference" is
the proper standard.
In the final analysis whether the 9th
Circuit applied the proper standard or not, pe
was clearly within the district court's dis-
cretion under these facts to find criminal
indifference here. In so holding the district
court was ultimately passing judgment on these
Defendants' state of mind when they committed
= And from the well-reasoned decision of another pan-
el, in its own circuit, Protectus Alpnhus, supra.
atten
+
the violations of the Officers Competency Act
at issue here. The something "more" that the
9th Circuit court required here is clearly
Satisfied by the August 3l, 1981, Coast Guard
boarding of the vessel, the express pointing
out by the Coast Guard of the legal require-
ment for licensed officers, and the express
promise by Defendants' manager, officer and
major stockholder Wilson, as a condition of
the vessel's release from Anchorage that the
vessel would have licensed officers onboard
before the vessel left inland waterg at Homer,
Alaska. In this sense the violation here is
like the case of the drunk driver who is
stopped by police and given a warning, on the
condition he park his car and wait for a cab.
Instead the driver gets back in and drives
down the road to an accident as soon as the
officer leaves the scene.
The district court's adjudication o-. a
State of mind is the type of adjudication that
is particularly due great deference under this
-42-
court's holding in Anderson v. Bessemer City,
supra. The district court after all is present
to see and hear the testimony, and can sense
if the owners are respectful or contemptuous
in their views toward the law. The District
Court is uniquely capable of determining
whether these owners sincerely expected their
officers to get licensed or whether the
delivery of the license applications to their
officers was as futile as tossing the appli-
cations in a corked bottle over the side of
the ship, 26 Petitioners confidentially
assert that if the liability trial transcript
of these owners is brcught before this court
together with the deposition of Lt. Walters,
which constitutes the entire record on this
issue, it will be very short, and its review
= An analysis of the Officer Competency Act and the
regulations promulgated pursuant thereto reveals
these licenses are not merely given by the filling
out of a form; the licenses are earned through sea
time and extensive testing. See Appendix A, Con-
clusion 4.
-43-
will have no semblence of "justification" for
this violation. There was no testimony in the
record that these license violations were
either tacitly excused by the Coast Guard in
its August 31, 1981, boarding, or that any
attempt at compliance other than the mere
handing of the licenses to the officers was
attempted. What little was done, was not done
in good faith. On the contrary, the district
court expressly found the respendants’ con-
duct to be "Contemptuous" of this law, and of
their promise to the Coast Guard. Apx. A,
Findings 45-51. Finally this violation be-
comes particularly onerous when one considers
that not only was no attempt to secure the
licenses attempted, but thereafter the vessel's
unlicensed skipper left the vessel in charge
of the unlicensed and less experienced mate to
operate, and the owners' president (who was
aware no licenses were ever obtained by any
officer, Apx. A, Finding 46), was personally
=~44=
made aware of this abandonment of command by
marine radio one full day prior to the
casualty, but never did he order the vessel
back to port. Apx. A, Finding 49-50. These
additional facts clearly place these owners'
conduct within the express decision of United
States Steel Corp. v. Furhman, Protectus Alpha,
and Smith v. Wade. As this ccurt so clearly
pointed out in Anderson, Supra, this is not a
decision the district court was compelled to
reach, but it was certainly within his prov-
ince, (and one which Petitioners believe many
if not most judges would reach). Having
reached that decision, this decision is not
to be reversed unless both the Court of
Appeals and this Court are left with the
definite and firm conviction that a mistake
has been committed. Since this cannot be
done, this Court should grant certiorari, and
the decision of the 9th Circuit Court of
Appeals should be reversed with instructions
to reinstate the award of punitive damages to
i
the surviving crewmen.
CONCLUSION
The law of punitive damages in admiralty
generally and specifically its applicability to
death on the high seas accompanied by pre-death
pain and suffering and in injuries to seamen
who join causes of action under the Jones Act
for negligence, and the general maritime law
for unseaworthiness, is in disarray. There is
divergance between the circuits and the courts
of several states on these issues. This case
presents an opportunity to resolve these con-
flicts and to announce law on punitive damages
in this court's own special sphere of mari-
time common law that may by its lead give
guidance to all states in their proper sphere
of announcing their common law. Such an
accouncement is of particular national impor-
tance as the public focuses on the proper role
O
rh
punitive damages generally and their role
in admiralty specifically.
-46-
BEST AVAILABLE COPY
Finally, this case presents an opportunity
to carrect the grave injustice done by the Court
of Appeal's misapplication of the proper law
of punitive damages to the facts or its mis-
application of the proper standard of review
to the careful findings of the District Court.
This Court should therefore grant this
Petition for Certiorari, review these decisions
below, reverse the Court of Appeal's denial of
punitive damages to all petitioners, and re-
instate the judgment of the District Court
awarding them punitive damages.
Respectfully Submitted this 2° day of
ioeii, 1989, from Kodiak, Alaska.
JIE
ee Se LE
— ~
Gerald W. Markham
Attorney for Petitioners
-47-
BEST AVAILABLE COPY
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
AGNES BERGEN, Administratrix )
of the Estate of Thomas Karl )
Kauppinen; SHANNON LEE YOUHAS )
JOBE, Administratrix of the )
Estate of James Edward Jobe, )
ROBERT KIDD; R-.G Pair, Admin- )
istrator of the Estate of )
Wilson Lee Pair; FRANK ROMERO,)
Personal Representative of the)
Estate of Tonnie Newton; )
THOMAS R. RYKER, Personal Rep-)
resentative of the Estate of )
RANDALL RAY RYKER; JAMES R. )
SANDIN, Personal Representa- )
tive of the Estate of Vanessa )
R. Sandin; SALOME B. SMITH, )
Administratrix of the Fstate )
of Charles Wayne Parlett; )
WILLARD GARY STALLINGS, Per- )
sonal Representative of the )
Estate of Gary Todd Stallings; )
FLORA B. STIGAL, and JOEL L. )
STIGAL, Individually and as )
Administrators of the Estate )
of Clifford S. Stigal; WALLACE)
R. THOMAS; ROBERT O. WASHBURN )
and BLANCHE WASHBURN, d/b/a )
Marine Transportation, )
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
Vs.
F/V ST. PATRICK, ST. PATRICK
INC., DANIEL WHORTON; LEROY
WHORTON, and WILLIAM WILSON,
Defendants.
A 82-179 CV
A-la-
FINDINGS OF FACT
AND CONCLUSIONS
OF LAW UPON ISSUE
OF LIABILITY
The above cause upon trial of the
issue of liability only, came before the
court on May 29, 30, and 3l, 1984.
Following the close of all the evidence
the court heard final argument of counsel,
whereupon the matter was taken under
advisement by the court. Proposed findi-
ings of fact, conclusions of law and
objections thereto have been considered
by the court.
The court finds by a preponderance
of the evidence the following:
FINDINGS OF FACT
1. On November 29, 1981, at approx-
imately 11:30 P.M., Alaska Standard Time,
the F/V ST. PATRICK O/S No. 293243, having
become beset by weather while operating
in the waters of Marmot Bay, bounderied
by the major islands of Marmot, Afognak
and Kodiak, took large waves on the port
beam, causing damage to said vessel,
A-1b-
Particularly rendering her main engine
inoperative, and confusion and panic
among her crew.
2. Following either a direct order
and/or what was reasonably perceived by
the vessel's crew to be direct orders of
the acting master Cornelius Samuel Green
and/or failure of authoritative leader-
ship, the crew of twelve, including the
master, entered directly into the Alaska
winter water, nine of the crew wore
survival wick eae skves wore only life
preservers. Two of the crew survived,
after suffering exposure to the cold to
varying degrees. Seven crewmen's bodies
were recovered, and three crewmen's
bodies were not, and they have been
judicially presumed dead. .
3. The F/V ST. PATRICK, at the
time of the casualty, was a steel hull
458 gross ton, 240 net ton fishing
vessel, 132.2 feet in length, 27.2 feet
in breadth, and drew 13.8 feet of water,
powered by a 750 horsepower diesel engine.
4. In the year 1980 Daniel and
LeRoy Whorton, fishermen and vessel
owners of substantial experience fishing
on the East Coast, were attracted to
purchase the F/V ST. PATRICK by one John
Doody, a fisherman who had interests in
various vessels, fishing scallops off
the coasts of Oregon and Alaska.
5. According to the Whortons, the
ST. PATRICK was a relatively larger,
heavily powered fishing vessel, capable
of performing the activity of towing
the heavy dredges across the rocky ocean
bottom that is frequently required to
scallop fish in certain areas.
6. A Virginia corporation, St. Pat-
rick, Inc., was formed to purchse the F/V
ST. PATRICK, and its articles of incor-
poration were issued October 2, 1980. The
initial directors listed on file with the
A~3-
State of Virginia were the Whortons and
John Doody.
7. The initial capitalization of the
corporation waS approximately $15,009.00.
8. On or about October 6, 1980, the
corporation purchased the F/V ST. PATRICK
for $310,000.00, and financed the purchase
through a preferred ship's mortage to
C.1I.T. Corporation.
9. Mr. LeRoy Whorton testified that
an Organizational meeting was held, but
despite requests for production served
upon him, he has failed to produce copies
of any organizational minutes or the
minutes of any other corporation meetings
either to claimants or at trial.
10. Mr. Leroy Whorton testifed he
was designated president and Daniel Whor-
ton acted as secretary/treasurer of the
corporation.
ll. AS matters developed, Doody wanted
to retain the vessel in the cod and pollack
A =4-
fishery on the East Coast; the Whortons
wanted to fish the vessel for scallops in
Alaska. As a result, Doody decided to
sell his interests in the vessel to the
Whortons, and this occurred by sale of
Doody's stock to the corporation.
12. This sale was accomplished by a
unanimous consent to action by stockhold-
ers and directors of St. Patrick, Inc.,
Gated March 1, 1981, and agreement of
Said sale.
13. The Whortons then interested
William Wilson of Anchorage, Alaska, in
the F/V ST. PATRICK.
14. Mr. Wilson was a fisherman exper-
ienced with fishing various snecies of
fish in Alaska, including running one of
the larger catcher processcr vessels in the
to
ering Sea king crab fishery; he was in
possession of capital which the Whortons
needed to convert the ST. PATRICK to the
>
scallop fishery.
15. On April 13, 1981, William Wilson
formally purchased 25 shares of stock from
each Leroy and Daniel Whorton, in exchange
for cash, notes and equipment. In addi-
tion, the corporation allegedly purchased
certain equipment from Leroy and Daniel
Whorton, half of which ($42,000 in stated
value) the Whortons asserted they had
acquired from William Wilson, and the
other half of which (42,000) was allegedly
acquired by the corporation directly from
Wilson.
16. The equipment is referred to in
various exhibits not attached to the agree-
ments, but is found at Ex. T, Ryan depo.,
p. 16. In consideration therefore, the
corporation issued 25 shares to Wilson.
Following this series of transactions,
LeRoy and Daniel Whorton each owned 50
Shares of stock in St. Patrick, Inc., and
Mr. Wilson owned 100 shares. Mr. Wilson
A-6-
testified that he could not recall whether
he at any time signed a bill of sale conveying
the agreed equipment to the corporation, and
produced no evidence to support that such
occurred as he testified. Mr. Daniel Whorton
testified he never saw the equipment.
17. It was the agreement of the Whortons
and Wilson that William Wilson would not
simply be a stockholder in the corporation,
but that he would be at least the shoreside
manager in control of the Alaska venture for
the ST. PATRICK, responsible for fishing oper-
ations on the vessel, and eventually, as he
acquired the expertise in scalloping, the
Master of said vessel.
18. It was the agreement of the parties
that Leroy Whorton, Daniel Whorton and William
Wilson be the board of directors for St. Pat-
rick, Inc.
19. The vessel ST. PATRICK, according to
Whorton, underwent repairs and upgrading in
Virginia prior to navigating to the West Coast
A =T-
to participate in the scallop fishery. The
expense for the work performed were paid by
Whorton Brothers Seafoods, which according t
them was reimbursed by St. Patrick, Inc. Th
were no formal promissory notes or agreement
executed memorializing these transactions, n
was any interest charged St. Patrick, Inc. b
the Whorton Brothers for the monies advanced
20. The accounting records of the corpo
ation following the departure of Mr. Doody
from the corporation are incomplete. The on
time accountant of the Whortons and St. Pat-
rick, Inc., waS unaware of any corporate ban
account; and to his knowledge no corporate t.
returns ever were filed.
21. From a financial accounting standpo
the records were incomplete regarding corpor
ate transactions.
22. In late April, 1981, the ST. PATRIC
departed the East Coast, traveled through thi
Panama Canal, and arrived in Los Angeles, wh«
claimant Robert Kidd joined her. The vessel
A-g-
then traveled north and began scalloping off
the coast of Oregon.
23. While scalloping off the coast of
Oregon (and throughout the vessel's voyage
until the casualty), the crew was always paid
in cash.
24. During the time the vessel was fish-
ing off the coast of Oregon, Leroy Whorton
would travel there from Virginia to pick up
the vessel's proceeds of the catch in cash.
25. Although Daniel Whorton testified
that the proceeds of the Oregon deliveries
were deposited in the Virginia National Bank,
Hampton, Virginia, and that the checkbook for
that account and the deposit slips were turned
over to the corporate attorney; the corporat?
attorney testified that he never had posses-
Sion of the corporate checkbook. The check-
bock, stubs, and deposit slips were neither
Produced at the depositions of the corporate
attorney Ryan or at any other time to plain-
tiffs, despite their requests, nor were they
A-9-
produced at trial by defendants. If a cor-
porate bank account were maintained, the cor-
poration could have obtained copies of the
records from the bank to support its claim to
a corporate bank account at trial.
26. In the absence of any documentary or
corraborative evidence to support defendants'
claim to the
account, the
Stances that
existence is
er weight of
existence of a corporate checkin
court finds under the circum-
the defendants' testimony to its
not credible, and that the great
the evidence indicates that the
corporation failed to keep a separate corpor-
ate bank account at any time after its
incorporation.
wii! law n
Gile A
er a time in Oregon the ST. PAT-
RICK was moved to Alaska because of diminish-
ing profits.
28. In Alaska the vessel scalloped off
Kodiak Island, but the vessel was producing
little or no
losing money
revenue, the venture had been
for some time, and a decision
“ ReIe-
was made to install freezer equipment on the
vessel, which was done in Anchorage, Alaska.
29. While in Anchorage on the night of
August 30-31, 1981, the ST. PATRICK broke a
mooring line which caused the intervention of
various other vessels to prevent serrous dam-
ages, and as a result of which the United
States Coast Guard in the person of its agent
Lt. Walters conducted an informal safety in-
spection of said vessel the morning of Aug-
ust 31, 1981.
30. As a result of his inspection Lt.
Walters found the ST. PATRICK to be in viola-
tion of various federal laws, regulations, or
navigational rules, and specifically relevant
to this litigation, that the vessel was not
manned by a requisite Coast Guard licensed
master, chief engineer, and officer of the
watch or licensed mate, as required by 46
USC § 224(a), and that the ST. PATRICK failed
to possess proof of financial responsibility
required by 46 CFR 542.3(b), the latter
A -11-
a
deficiency resulting in the seizure of
Said vessel to insure compliance.
31. As a result of the Coast Guard's
actions, Mr. William Wilson contacted Lt.
Walters on behalf of the ST. PATRICK regard-
ing the deficiencies, and Mr. Wilson met wit.
Lt. Walters in his office in the Coast Guard
offices of the Alaska federal court house an
office building. Also present in Anchorage
was a Mr. Jack Van Divort, who had an intere:
in at least the freezer equipment being moun:
ed on the ST. PATRICK.
32. During the course of this conversa-
tion, Lt. Walter called Norfolk, Virginia, by
Speaker phone, and advised the Virginia Dart}
as he had Mr. Wilson and Mr. Van Divort that
the ST. PATRICK was lawfully required to have
a licensed master, mate and engineer. The
parties stipulated before trial that this ca]
was made to Leroy Whorton. At trial, however
Mr. Wilson and Leroy Whorton testified withor
objection that this conversation was with
A-ié>
Daniel Whorton.
33. The court resolves this factual con-
flict to be that the phone conversation was
with Daniel Whorton. However, this discrepan-
cy is of no significance, as Leroy Whorton
testified that he spoke to Daniel Whorton a
substantial period before the casualty and
Daniel Whorton made him aware of the phone
conversation, and the requirement that the
ST. PATRICK have licensed officers to operate
on the high seas, and that its officers were
not so licensed.
34. Shortly following the August 31, 1981
boarding by Lt. Walter, and well before the
November 30, 1981, casualty, William Wilson,
Leroy Whorton and Daniel Whorton each had per-
sonal knowledge of this legal requirement, and
that the ST. PATRICK would be in violation of
law if operated on the high seas without
licensed officers.
35. The requirement of licensed officers
on larger vessels over 200 ton is well known
A-13-
on the East Coast, and defendants Leroy Whor-
ton, Daniel Whorton and William Wilson, as
experienced owners and operators of fishing
vessels, should have been aware of it without
Lt. Walter's specific advice.
36. By September 2-3, 1981, the vessel's
deficiencies had been corrected to Lt. Walter
Satisfaction except for the licensed officer
requirement, and Mr. Wilson asserted that he
waS quite anxious to move the st. PATRICK
Out Of Anchorage, because it was incurring
expenses there, and the purpose for it being
there (the loading of freezer equipment) had
ended. Mr. Wilson represented that he
desired to move the vessel to Homer, and that
there a properly licensed crew would be on the
vessel before the ST. PATRICK was navigated
upon high seas waters.
37. Lt. Walter concluded that since the
waterway between Anchorage and Homer was not
"high seas", but ° “inland waters" for the
purposes of the vessel manning requirement,
A-14-
that he could not prevent the vessel from
Sailing to Homer with an unlicensed crew.
38. Before leaving Anchorage Mr. Wilson
obtained the applications for the officers:
Licenses tc comply with the Officers Comptency
Act, and also the applications for Z-cards,
which he was advised the seamen themselves
would require if the ST. PATRICK was pro-
cessing rather than fishing.
39. Operating the sT. PATRICK, a vessel
of 458 gross tons, well larger than the 200
gross tons limit of 46 USC §224(a) on the high
seaS was manifestly unsafe without licensed
officers.
40. The ST. PATRICK remained in Homer
for two or three weeks undergoing additional
conversions.
41. While in Homer, Wilson asked the
master Palmer on one occasion if the requisite
licenses had been obtained; Palmer Stated he
was pursuing it, but Wilson was aware that
they were not acquired before the vessel left
A-15-
iii
for Kukak Bay to buy and process dungeness
crab.
42. The re-outfitting of the vessel for
crab processing was completed in Homer, Alask.
Duirng the period of time Mr. Wilson purchase
numerous items for the vessel, using his per-
sonal funds. He did not receive a promisscrv
note from the corporation for these funds, no:
were arrangements made for reimbursement.
43. The crab processing venture proved
unprofitable, and the vessel returned to
Homer in October, 1981, where the freezing
module was removed and the scalloping gear
was placed back on board. The vessel then
departed Homer for Kodiak to fish scallops in
the Kodiak Island area.
44. William Wilson knew that during the
Kodiak scalloping, the yvesselt-would be operat
ing, while scalloping, primarily in high seas
waters as defined in Station Order 27, which
marks the boundary of the high seas for pur-
poses of the Officer Competency Act, 46 USC
A-16-
§224(a), Ex. X, and during this period he had
repeated contact with the vessel and her master
when it delivered in Kodiak, having had contact
recently before che casualty and at no time did
he believe that the vessel's officers had ob-
tained the requisite licenses.
45. In permitting the ST. PATRICK to
travel to Kodiak to engage in scalloping,
having personal knowledge that her crew offi-
cers had not obtained the requisite licenses,
William Wilson was clearly violating his oro-
mise to Lt. Walter, and willfully, wantonly,
contemptuously, and now repeatedly disregard-
ing the dictates of the Officer Competency
Act, 46 USC §224(a), and said act was in
reckless disregard of the safety of the ST.
PATRICK's crew in the pursuit of financial
gain for, among others, himself.
46. Leroy Whorton personally knew that
the ST. PATRICK was required by law to have
licensed officers to comply with the Officer
Competency Act since at least shortly after
A=lLi=
the late August, 1981, phone call to Daniel
Whorton, who in turn advised him of same; he
had also spoken to William Wilson about the
matter, and on several occasions he spoke with
the master Al Palmer and was advised that Pal-
mer himself had not secured the requisite
licenses, but was merely "working on it". And
Leroy Whorton similarly knew that at least
while scalloping in Kodiak, the vessel would
not be operating in inland waters, but rather
in high seas waters, probably beyond sight of
shore. In permitting the ST. PATRICK to trave:
to Kodiak to engage in scalloping, havina per-
sonal knowledge that her officers had not ob-
tainec the requisite licenses, Leroy Whorton,
who was the president and director of this
corporation, and also took much responsibility
for its operations through calls to him in
Virginia, willfully, wantonly and contemptu-
ously disregarded the dictates of the Officer
Competency Act, 46 JSC §224(a), and said act
as in reckless disregard of the safety of the
A -18-
ST. PATRICK's crew in a fishery which he him-
self admitted, "is a dangerous business", in
the pursuit of financial gain for, among
others, himself.
47. Shortly before the casualty, Mr.
Palmer (the master of the vessel) departed
the vessel to attend to a family emergency,
and delivered control to Mr. Green, the
vessel's mate.
48. The evidence is in conflict as tc
whether Leroy Whorton or Daniel Whorton or
William Wilson ever knew Palmer left the
vessel in Green's command before the start of
the voyage on which the casualty occurred.
Because there is ample evidence of willful
and wanton neglect on their behalf in the
repeated failure to see that the veseel's
officers were licensed, it is accordingly
unnecessary to resolve this conflict.
49. As to Leroy Whorton, it is also
unnecessary to resolve this conflict, because
Leroy Whorton admits that he was contacted
A -19-
through the marine operator one day prior to
the casualty by Mr. Green, the vessel's
mate, and advised that Mr. Palmer had left
the vessel, and it was out fishing.
50. At no time during the conversation
did Leroy Whorton direct Green to stop fish-
ing and return to port though he clearly hac
that authority. In permitting the S?. PAT-
RICK to continue to fish under the command of
Mr. Green, the mate, in the absence of the
more experienced (but nevertheeless unlicensec
regular master, Mr. Palmer, with the knowledae
that neither Green nor the engineer, nor whon-
ever would be acting mate had obtained the
requisite licenses, Leroy Whorton was will-
ully, wantonly, and contemptuously disregard-
ing the dictates of the Officer Competency
Act, 46 USC §224(a), in reckless disregard of
the safety of the ST. PATRICK's crew in the
pursuit of financial gain for, among others,
himself.
51. Mr. Daniel Whorton was the secretary
A -20-
treasurer Of St. Patrick, Inc. and on its
board of directors. He had Eeimanded and owned
fishing vessels for many years with his brother
Leroy. Daniel Whorton was expressly advised
of the requirement of licensed officers on the
ST. PATRICK by Lt. Walter's late August, 1981,
phone call. Dan Whorton was the office manager
for the venture, and stayed in the office 993
of the time. Palmer and Wilson called the
Virginia offices frequently; Daniel Whorton
waS aware that the vessel ST. PATRICK had
returned to scallop fishing. [In permitting
the ST. PATRICK to return to scallop fishing
without ascertaining that her officers had
retained the requisite licenses, Daniel Whor-
ton was willfully, wantonly, and contemptuously
disregarding the dictates of the Officer Com-
petency Act, 46 USC §224(a), in reckless dis-
regard of the safety of the ST. PATRICK's crew
in the pursuit of financial gain for, among
Others, himself.
52. At the time of the casualty and the
A-2]-
|
day prior thereto, the ST. PATRICK was clear
operating in high seas waters as defined in
Station Order 27, which makes the boundaries
of high seas waters for purposes of the
Officers Competency Act, 46 USC §224(a), Ex.
X, off Marmot Bay, approximately thirteen
miles southeast of Marmot Island, at the
point marked by Wallace Thomas, Red No. 2,
and where Pete Mineo found its debris, Green
Letter S.
53. Mr. Thomas came on watch at 12:00
noon on November 19, 1981. The vessel con-
tinued fishing although the weather was
deteriorating. A storm warning was received
in the wheelhouse in the presence of Mr.
Jobe, the acting mate or navigator of the
watch on the voyage in the absence of Mr.
Palmer, but the vessel nonetheless continuec
fishing.
- 54. Mr. Green came on watch at 6:09 P.
and instructed the crew to bring the scallor
dredges back on board, because it was too
A-22-
rough to continue fishing. He did not
direct the vessel to return to Kodiak or to
safe harbor, despite the fact that this port
was but a few hours running time away, and
safe harbor was even closer.
95. The casualty was immediately caused
by large waves hitting the port beam, causing
the vessel to roll over to such a point that
water poured into the vessel's air intakes,
flooding the main engine, and causing it to
quit.
96. From the onset of the storm until the
casualty, the fr/V ST. PATRICK was negligently
operated with side to the seas, rather than
bow to the seas, contrary to safe practices.
This failure caused the F/V ST. PATRICK to
roll severely when hit by the large wave Just
described, and was a proximate cause of the
accident.
97. The casualty was compounded by the
failure of the vessel's unlicensed officers
to maintain calm and order among the crew in
A -23-
the crew's reasonable apprehension of danger
immediately proceeding and following these
waves, which rendered the main engine in-
operative.
598. The casualty was further compounded
by the failure of the vessel's owners and
agents to have a survival suit on board for
every crewman, an orderly procedure for
storage of same, and for the donning of same
for giving a distress or May Day, for taking
an emergency locator beacon, and for activat
ing and entering the vessel's life raft, the
lack of which contributed to the crew's con-
fusicn and panic.
599. The casualty was further compounded
by the failure of the vessel's unlicensed
officers to conduct a thorough damage survey
of the vessel before giving the command, or
what was reasonably perceived to be the
command, of the acting master to abandon shi
60. The casualty was further compounded
as to all but Robert Kidd and Clifford Stiga
A-24- -
who had abandoned the ship separately by the
statement in the presence of the unlicensed
engineer that the vessel's batteries would
explode when the water below deck reached
their level.
61. AS a proximate result of each of the
negligences in findings 55-59, the entire
crew (except Kidd and Stigal with respect to
finding 59), of the ST. PATRICK suffered ex-
treme predeath fear and anxiety.
62. Following the abandonment of ship,
these crewmen suffered extreme predeath pain,
suffering, fear and anxiety to various degrees,
nd personal injuries, as will be described
pu
herein, as a proximate result of the negligence
of findings 55-59.
63. The negligence and resulting injur-
les are the direct and proximate result of
the gross negligence of defendants St. Pat-
rick, Inc., William Wilson, Leroy Whorton,
and Daniel Whorton. The lack of properly
Qualified licensed officers rendered the F/vV
A-25- -
ST. PATRICK unseaworthy, and directly con-
tributed to these negligent acts, and was in
all likelihood the primary cause of this dis:
aster. The grossly negligent actions of
Leroy Whorton in not recalling the vessel to
port upon learning of the regular unlicensed
master's departure, was a further proximate
cause of the disaster.
64. Although as the court found as a
matter of law, the failure to properly man t!
F/V ST. PATRICK is negligence per se as such
action violates the Officer Comptency Act,
46 USC §224(a), the court would reach this
finding even were it not required to do so,
and in fact the court finds the negligence
here to be gross and wanton, reckless dis-
regard for the lives of the vessel's crew.
65. Although as the court has found as
a matter of law the violation of the Officer
Competency Act, 46 USC §224(a) would have
required the defendants to prove that their
negligence could not have caused the casualty
A-26-
even if this substantial legal burden was
not placed upon them, but merely the ordinarv
causation standards, the court would find and
would have found that the defendants' acts
were the proximate cause of claimants' deaths
and injuries.
66. The foregoing findings make it un-
necessary to resolve the gross negligence of
the failure of the vessel to carry a proper
survival suit for every crewman.
67. The F/V ST. PATRICK did not sink, but
was located adrift in Ishut Bay, Afoanak Is-
land, November 30, 1981, by a commercial air-
lines pilot, and salvaged by the F/V NELLE
BELLE under the command of Pete Mineo, who
transferred her to a Washburn tua. Had the
crew of the ST. PATRICK been ordered to "stay
with the ship", they would in all probability
have survived.
68. The actions of the crew in abangoning
Ship were not contributorily negligent; they
were either following a direct order, or what
A~27-
they reasonably perceived to be a direct or-
der. It was not their place to question the
command of the acting Captain Green. The fac
that Green himself abandoned ship is the best
evidence that the crew's perception of the
order was reasonable.
69. Nor were the actions of the acting
mate or engineer in remaining on the vessel
without proper licenses comparatively negli-
gent. There is no evidence that these ordin-
ary crewmen knew of the law or that their
ship was large enough to come within it.
70. As a direct and proximate result of
the aforesaid negligence, Todd Stallings,
Randy Ryker, Tom Kauppinen, Clifford Stigal,
James Jobe, Charles Parlett, Wilson Pair,
Ronnie Newton and Vanessa Sandin suffered
for varying periods and died, and Wallace
Thomas and Robert Kidd suffered personal
injuries for which the plaintiffs are
at a second trial thereon.
A -28-
71. The St. Patrick, Inc., a Virginia
corporation, existed in name only, at least by
the time of the departure of John Doody from
the corporation. It was grossly undercapit-
alized; the shareholders used its property as
their own, intermingling personal and_company
funds indiscriminately without executing or
maintaining the proper debt instruments, and
either kept no company bank account, or if
one was kept, their failure to produce same
leads to the conclusion that its existence
would further support comingling and ex-
haustion of the corporate assets. Since the
defendants conducted their transactions in
cash, so far as the court can tell, it is
inferrable that any claim to adeauate capital-
lization that the corporation may have had at
the time of Mr. Doody's departue was quickly
dissipated amonst its three stockholders.
72. Claimants carried their burden of
establishing, by a preponderance of the evi-
dence, that the corporation was an artifice
A °29-
and a sham designed to execute illegitimate
purposes in abuse of the corporate fiction
and the immunities that it carries, and that
its activities in reality were those of Will;
Wilson, Leroy Whorton, and Daniel Whorton.
73. Claimants carried their burden of
establishing by a preponderance of the evi-
dence the failure to observe corporate forma!
ities, the nonpayment of dividends, the inso!]
vency of the corporation at the time of the
accident, siphoning of funds of the corpora-
tion by the dominant stockholders, the non-
functioning of other officers as directors
(other than the Whortons and Wilson), absence
of corporate records of any significance, anc
that the corporation is merely a facade for
the operations of the Whortons and Wilson anc
their mere instrumentality "alter ego".
74. The initial capitalization of the
corporation at $15,000.00 to engage in a
ishery with an extremely large vessel cap-
able of employing the twelve men on board
A-30-
at the time of the casualty and more in what
defendants themselves recognized as a highly
dangerous business, followed by _the losses
the vessel experienced, and the fact that any
profits it had were accounted for only in
cash, a total lack of any corporate records,
the failure to convey equipment allegedly con-
tributed by Wilson, support the previous
finding.
75. There was a unity of interest and
ownership between St. Patrick, Inc., and the
shareholders, such that the two no longer
existed as separate entities. The Whortons
and Wilson totally disregarded that existence
to the point of not depositing the proceeds
of the fishing deliveries in a bank account.
76. The failure to disregard the cor-
poration would result in fraud or injustice.
Young seamen employed on large fishing vessels
such as the ST. PATRICK have a right to ex-
pect (with their limited knowledge of corpor-
ate laws) that the operation is at least suf-
A -31-
ficiently capitalized to insure compliance
with the basic laws for their safety such as
the Officer Competency Act, 46 USC §224(a).
CONCLUSIONS OF LAW
1. This case involves personal injury
and death to American merchant seamen result-
ing from the operation of an American fishing
vessel, the F/V ST. PATRICK, OS No. 293243,
in the high seas waters off Marmot Island and
Afognak Island, near Kodiak, Alaska. The
vessel was at the time of the instigation of
Robert Kidd's suit in rem in this district,
and the vessel owners' petition for limita-
tion of liablity was transferred to the Dis-
trict of Alaska at Anchorage pursuant to
the motion of Robert Kidd, from the United
States District Court for the Eastern Dis-
trict of Virginia.
2. This court has jurisdiction of this
controversy pursuant to 46 USC §688 (Jones
Act), 46 USC §§761-768 (Death on the High
Seas Act), 46 USC §§181-195 (Limitation Act),
A -32-
|
and the general maritime law. Venue is proper
in this court.
3. Vessels over 200 gross ton operating
on the high seas for over a twelve hour period,
as the F/V ST. PATRICK was at the time of this
casualty, as defined by Station Order No. 27,
Claimants' Ex. a, 46 USC §224(a) (12) (2), 33
USC §15l, are required to have a United States
Coast Guard licensed master, mate (or officer
of the watch), and engineer.
4. The test for these licenses specifi-
cally requires an examination of the master,
mate and engineer in areas that could have
prevented this accident. See 46 CFR §10.15-
31(b) (2) (IV), (c) (IV), (e) (2).
5. A vessel operated without the requis-
: x
ite licenses 1S unseaworthy.
* The duty to observe licensing statutes is imperative
and all must respect it whether they approve of its
wisdam or not; but that it is founded upon the highest
considerations of the laws of humanity, looking to the
Safety of life and limb, and the preservation of pro-
perty, goes without saying. The failure to comply
with licensing statutes has frequently received the
severest condemnation of the courts. Rowe v. Brooks,
329 F.2d. 35 (4th Cir., 1964).
A -33-
6. The operation of a vessel without the
requisite licenses, in violation of a safety
statute is negligence per Se.
7. In reaching its findings, the court
has determined that the standard to pierce
the corporate veil in a seaman's maritime
injury and death case is a federal standard,
and apply those guidelines enunciated in Sey-
more v. Hull & Moreland Engineering, 605 F.2d.
1105 (9th Cir., 1975), in resolving this
question.
8. However, were the court to apply the
doctrine of either Alaska or Virginia on
piercing the corporate veil, it would reach
the same conclusions.
9. Regardless of defendants' liability
under a piercing of the corporate veil, it is
the general, if not universal rule that an
officer of a corporation who takes part in
the commission of a tort by the corporation
is personally liable therefore.
A-34-
10. In Kopcezynski v. The Jacaueline, 742
F.2d. 555 (9th Cir., 1984), it is expressly
held that in this circuit punitive damages were
not recoverable for Jones Act negligence, but
the question of their recovery for unseaworthi-
ness under the general damages may properly be
assessed in admiralty in an appropriate case
of unseaworthiness.
ll. A condition precedent to award-
ing punitive damages is a showing by the
Claimants that petitioners St. Patrick, Inc.,
William Wilson, Leroy Whorton, and Daniel
Whorton were guilty of gross negligence or
actual malice or criminal indifference which
is the equivalent of reckless and wanton mis-
conduct.
12. It has specifically been held that
punitive damages may also be recoverable if
the acts complained of were those of an unfit
Master and the owner was reckless in employ-
ing that master. :
. United States Steel Corp. v. Furhman, 407 F.2d. 1143
(6th Cir., 1969).
A~35-
13. The acts of the petitioners in ver-
mitting and at least impliedly directing the
vessel to proceed with unlicensed officers
were done knowing, or having reason to know,
of facts which would lead a reasonable man to
realize not only that their conduct created
an unreasonable risk to the crew, but also
that such risk is reasonably greater than
that which 1s necessary to render their con-
duct negligent.
14. Claimants are entitled to general
and also punitive damages as they may prove
at a trial to be set.
DATED at Anchorage, Alaska, this 7th day
of March, 1985.
(s/) James A von der Heydt
United States District
Judge
A-36~-
IN THE UNITED STATES DISTRICT COURT
FOR-THE DISTRICT OF ALASKA
AGNES BERGEN, Administratrix )
of the Estate of Thomas Karl )
Kauppinen; SHANNON LEE YOUHAS )
JOBE, Administratrix of the )
Estate of James Edward Jobe; )
ROBERT KIDD; P.G. PAIR, Admin-)
istrator of the Estate of )
Wilson Lee Pair; FRANK ROMERO, )
Personal Representative of the)
Estate of Ronnie Newton; )
THOMAS R. RYKER, Personal )
Representative of the Estate )
of RANDALL RAY RYKER; JAMES R.)
SANDIN, Personal Representa- )
tive of the Estate of Vanessa )
N. Sandin; SALOME B. SMITH, )
Administratrix of the Estate )
of Charles Wayne Parlett; )
WILLARD GARY STALLINGS, Per- )
sonal Representative of the )
Estate of Gary Todd Stallings;)
FLORA B. STIGAL and JOEL L. )
STIGAL, individually and as )
Administrators of the Estate )
of Clifford S. Stigal; WALLACE)
R. THOMAS; ROBERT O. WASHBURN
and BLANCHE WASHBURN, d/b/a
Marine Transportation,
Plaintiffs,
VS.
INC.; DANIEL WHORTON; LEROY
WHORTON; and WILLIAM WILSON,
)
)
)
)
)
)
)
F/V ST. PATRICK St. DATRICK )
)
)
)
Defendants. )
)
A 82-170 CIV
FINDINGS
OF FACT AND
CONCLUSIONS
OF LAW UPON
ISSUE OF
DAMA.GES
THIS CAUSE now comes before the court
for entry of its findings of fact and conclu-
sions of law upon the issue of damages. The
court earlier has entered comprehensive find-
inas of fact and conclusions of law upon the
liability issue. Therefore, the court enters
its
FINDINGS OF FACT UPON ISSUES CF DAMAGES
1. The deaths and personal injuries re-
ceived by the plaintiffs and plaintiffs’
decedents in this action were caused by the
negligence, and the gross, willful and wanton
misconduct of each defendant herein named.
2. The descriptions of the deaths and
injuries under the hostile conditions accord-
ing to the evidence adduced in this trial,
leaves no doubt that the crewmen who died
from exposure, hypothermia and drowning, ex-
perienced severe pre-death pain, pre-death
suffering, extreme fear, extreme emotional
and mental trauma, terror and horror in the
knowledge of their impending deaths.
B-2>
3. The court finds that Robert Kidd and
Wallace Thomas, although surviving the ordeal,
nevertheless, suffered serious debilitating,
permanent mental, physical and emotional
trauma, and each suffered and will continue to
suffer from such mental, emotional and physi-
cal trauma in the future.
4. Specifically with regard to Wallace
Thomas, the court finds that Mr. Thomas suf-
fered and continues to suffer from serious
emotional distress, including recurring night-
mares, and bouts of severe depression render-
ing him unable to cope with his daily life
cauSing irrational and unfounded feelings of
quilt.
5. The court further finds that Mr.
Thomas suffered the physical impairment of
Sinusitis as a result of being exposed in the
water for 18 to 20 hours and several hours
thereafter on land.
6. The court finds that the mental,
emotional and physical trauma occurring to
e3-
Mr. Thomas on board the ST. PATRICK and during
the course of his ordeal in the sea, and the
emotional trauma of helplessly watching his
crew mates die including the continuing mental
and emotional strain evident in his life to-
day, as well as the physical impairment, jus-
tifies an award to him for such damages and
injury.
7. The court finds that Robert Kidd
suffered serious mental and emotional harm, as
well as severe, debilitating physical injuries
to his feet and lower legs.
8. The court finds that but for his
injuries Robert Kidd would have continued to
work in the fishing industry as a scallop
fisherman in Alaska where Mr. Kidd could max-
imize his talents as a fisherman and maximize
the monetary gains of his endeavors.
9. The court finds that Mr. Kidd sufferec
and continues to suffer extreme mental and
emotional harm from the ordeal.
B-4-
10. In addition to the extreme mental
and emotional harm suffered during and as a
result of the ordeal, Mr. Kidd also experi-
enced traumatic stress syndrome and mental
and emotional harm by virtue of being deprived
of this long standing desire to earn his
livelihood as a seaman.
li. Decedents Randal Ryker, Todd Stal-
lings and Thomas Kauppinen died beyond three
miles of shore. All others that died expired
within three miles of shore within Alaska's
territorial seas. The deaths and injuries to
all were the result of negligence and unsea-
worthiness that occurred both within and
without Alaska territorial waters as the
vessel was navigated in her fishing endeavors.
12. As to the estate of James Jobe, the
court finds that the decedent, James Jobe,
suffered severe emotional and physical trauma
prior to his death on board ship and while
exposed to the sea water, and, in particular,
his suffering was compounded by observing the
B<-3*
death of his half-brother, Tom Kauppinen.
13. The court also finds that Shannon
Jobe and the Jobe child were dependent upon
James Jobe and would have benefited from his
lifetime earning capacity, society, support,
services, and nurture had he lived.
14. The court determines that the uncon-
troverted economic appraisals of Dr. Solie and
the testimony of Captain Burke are adequate
bases upon which to award damages to the sur-
viving dependents of James Jobe.
15. The court finds that Thomas Kauppin-
en, Gary Stallings and Randy Ryker entered the
water without survival suits upon the orders
of the ship's master.
16. The court finds that each of these
young crewmen suffered severe and agonizing
pre-death fear and terror during the course
of their ordeal until they succumbed to the
final effects of hypothermia.
17. While of relatively short duration,
the court nevertheless finds that the pre-
B-6-
death death pain and suffering, agony, terror,
fear, and emotional distress of each was ex-
treme.
18. As to Vanessa Sandin, Ronnie L. New-
ton, Chuck Parlett, Wilson Pair, and Clifford
Stigal, the court finds that each young crew
member suffered extended periods of agony,
fear, terror, mental and emotional trauma,
and while not as intense as the immediate
intense fear, cold and trauma experienced by
Kauppinen, Stallings and Pair, they each
suffered for many hours until they succumbed
to the cold sea water dnévoedhine through
their survival suits, or as in the case of
Chuck Parlett while attempting to swim to
shore through the breaking surf.
19. With regard to the earning capacity
of Kauppinen, Pair, Newton, Stallings, Ryker,
Parlett, Stigal and Sandin, the court finds
that the earning capacity has been sufficiently
established as awards hereafter are entered,
even though the work life history of the
B-7-
young crew men was not extensive.
20. The court accepts the uncontradicted
Studies offered by Dr. Solie and the testimony
of Captain Burke and adopts the same for pur-
poses of these findings and conclusions.
21. The court finds Mrs. Stigal, the
quadriplegic mother, and Mr. Stigal, the
totally disabled father of Clifford Stigal,
were dependent upon him for their support and
are entitled to the pecuniary value thereof.
22. The court finds the named parents of
all the other deceased discussed herein were
dependent upon their children for services and
future support and are entitled to the pecun-
iary value thereof.
23. Except for pre-death pain and suf-
fering and the pecuniary value of lost ser-
vices to their wrongful death beneficiaries,
the court recognizes that in the absence of
proof of dependency, the law in this circuit
would preclude further award of damages.
24. The cases are in conflict as to the
B-8-
proper measure of damages under maritime death
cases and have by and large departed from the
otherwise clear guidelines provided by Moragne
v. States Marine Lines, 348 U.S. 375 (1970),
as later interpreted by Sealand Services v.
Gaudet, 414 U.S. 573 (1974). The holdings in
those two cases taken together would permit a
recovery in the areas described below. How-
ever, some cases subsequent to Moraqne anad
Sealand have rendered unclear the proper
measure of damages amounts as well as the
propriety of awarding damages to seamen who
die without proof of dependency. Mobile v.
Higgenbothum, 436 U.S. 618 (1978).
25. Therefore, this court determines
that in the interest of justice, findings will
be entered in favor of plaintiffs reconciling
any difference by virtue of the court's long
Standing tradition of giving great deference
to the claims of seamen.
: The court also is aware that the United States Sup-
reme court has granted certiorari in the conflict-
ing circuit cases of Nygaard v. Peter Pan Seafoods
701 F.2d 77 (9th Cir. 1983), and Tallentire v. Off-
Shore Logistics, 754 F.2d 1274 (5th Cir. 198).
B-9-
26. In considering the award of punitive
damages against the defendants, the court care-
fully has considered the further testimony of
defendants in addition to their testimony dur-
ing the trial on liability, and notes that
adequate findings of fact have heretofore been
entered on this issue.
27. Although it is difficult not to be
sympathetic to the causes of these unfortunate
vous people, the court finds that awarded
damages must be reasonable in light of all
the facts and circumstances proven to the
court, and may not be based upon sympathy or
like emotion.
28. As to each plaintiff, the court
finds damages awardable as follows:
A. WALLACE THOMAS is entitled to re-
cover damages as follows:
a. For the terror of the
accident, abandoning
ship at sea, intense
pain and cold, and the
emotional trauma of
5-i10=
Ce
B. JAMES JOBE's estate is entitled to
watching his shipmates
die, fear and anxiety
prior to rescue $200,000.00
For severe long term
debilitating physical,
mental and emotional
damage, including severe
depression rendering him
unable to cope with his
daily life, causing him
irrational and unfounded
feeling of guilt 225,000.09
Punitive damages 200,000.00
TOTAL: $625,000.00
recover damages as follows:
a.
b.
Cs
d.
For conscious pre-
death pain and
suffering: $200,000.
Based upon the
testimony of Dr. Solie
and Captain Phil Burke,
lost support, services
and loss of inheritance
to the wife and child
of James Jobe 2,119,992.
Loss of care, nurture
and training to his
minor child 51,000.
Punitive damages | 290,000.
00
TOTAL: .. $2,570,992.
B-1i=
C. VANESSA SANDIN's estate is entitled
to recover:
a. For conscious pre-
death pain and suffering
$290,000.09
b. I find the loss of
Support, services and
loss of inheritance to
her parents is in the
amount of $160,322. In
the event that it is
subsequently determined
On any appeal, only a
loss of services is
recoverable, I find
$150,000 of this award
is attributable toa
loss of services to
them, $75,000 to each
parent. 169,322.90
c. Punitive damages 200,000.99
TOTAL: $560,322.91
D. GARY TODD STALLINGS' estate is en-
titled to recover:
a. For conscious pre-
death pain and suffering
$200,000.00
b. I find the loss of
Support, services and
loss of inheritance to
his parents is in the
amount of $524,243. In
the event that it is
subsequently determined
B-1l2-
on any appeal that only
a loss of services is
recoverable, I find
$200,000 of this award
is attributable to a
loss of services to
them, $100,000 to
each. $524,243.00
c. Punitive damages: 200,000.00
TOTAL: $924,243.00
E. THOMAS KAUPPINEN's estate is entit-
led to recover:
a- For conscious pre-
death pain and
suffering: $200,000.00
b. I find the loss of
Support, services and
the loss of inheritance
to his mother is in the
amount of $713,339. In
the event that it is
subsequently determined
on any appeal that only
a loss of services is
recoverable, I find
$200,000 of this award
is attributable to a
loss of services to
them, $100,009 to
each parent. #1434339 .00
Cc. Punitive damages 200,000.00
TOTAL: $1,113,339.00
- att UE Sa
F. RONNIE LEE NEWTON's estate is
entitled to
aA-
Cie
recover:
For conscious pre-
death pain and
suffering
I find the loss of
support, services and
loss of inheritance to
his mother is in the
amount of $501,555.
In the event that it is
subsequently determined
that only a loss of
services is recoverable
I find $100,000 of this
$200,000.00
U
award is attributable to
a loss of services
to her.
Punitive damages
TOTAL:
901,555.
200,000.
$901,555.
G. RANDY RYKER's estate is entitled
co recover:
a.
For conscious pre-deat
pain and suffering
I find the loss of
Support, services, and
loss of inheritance to
his parents is in the
amount of $418,290. In
the event that it is
subsequently determined
On any appeal that only
a loss of services is
B-14-
h
$200,000.
Gs
recoverable, I find
$200,000 of this award
is attributable to a
loss of services tc
them, $100,900 to each
parent. $418,290.00
Punitive damages 200,000.00
TOTAL: $818,290.00
H. CHARLES PARLETT's estate is entitled
to recover: :
ae
oie
I. WILSON PAIR;s estate is entitled to
For conscious pre-
death pain and
suffering $200,000.00
I find the loss of
support, services and
loss of inheritance to
his mother is in the
amount of $690,606. In
the event that it is
Subsequently determined
On any appeal that only
a loss of services is
recoverable, I find
$100,000 of this award
is attributable to a
loss of services 690,606.00
Punitive damages 290,000.00
TOTAL $1,990,606.00
recover:
poe LS=
a. For conscious pre-death
pain and suffering $200,900.00
b. I find the loss of
support, services and
loss of inheritance to
his parents is in the
amount of $528,097. In
the event that it is
subsequently determined
on any appeal that only
a loss of services is
recoverable, I find
$200,000 of this award
is attributable to a loss
of services to them, to
each parent. 528,097.00
c. Punitive damages 200,000.00
TOTAL: $928,097.00
J. CLIFFORD STIGALL's estate is
entitled to recover:
a. For conscious pre-death
pain and suffering $200,000.00
b. I find the loss of
support, services and
loss of inheritance to
his parents is in the
amount of $176,233. In
the event that it is
subsequently determined
on any appeal that only
a loss of services is
recoverable, I find
$100,900 of this award
is attributable to a loss
of services to his -quad-
riplegic mother and
B~-1¢<
$50,000 to his father 176,233.00
c. Punitive damages 200,000.00
TOTAL: $576,233.00
K. ROBERT KIDD is entitled to recover
damages as follows:
a. Future foreseeable
Maintenance and cure $50,000.00
b. For the terror of the
accident, abandoning
ship at sea, intense
pain, cold and the
emotional trauma of
seeing his friend Doc
Stigall disappear 209,000.00
c. For the pain and
suffering from rescue
to trial 100,000.90
d. Permanent disability
of the loss of his feet
and their deformity as
testified to by Dr.
Mills 150,000.00
e. Permanently disabled
as a scallcv fisherman
and that had he not been
injured, he would have
been emploved in the
Alaskan scallop fisheries
earning sums comparable
to those which Captain
Burke testified were
predictable today. Due
to his injuries and
B-li-
limited training, he
is almost completely
unable to work, and
after psychological
and vocational training
will be only able to
earn a minimal wage, and
is, therefore, entitled
to past and future lost
income based on Dr.
Solie's analysis. 2,255,837. 00
f. Plaintiff Kidd will
suffer future pain of
future surgeries and
hospitalization, and
I find $100,000 will
compensate him for
this future pain 100,000.00
g- Punitive damages 200,000.00
TOTAL: $3,055,837.00
CONCLUSIONS OF LAW UPON
THE ISSUE OF DAMAGES
1. The court has jurisdiction.
2. Each of the plaintiffs were severely
injured by virtue of the negligent, careless,
wanton, willful and intentional conduct of
the defendants herein. The sums awarded are
supported by the evidence and justified by
the facts and otherwise constitute reasonable
compensation for the individual claimants.
B-18-
3. That the maritime laws of the United
States allow and support the awards indicated.
4. Robert Kidd is entitled to a lien of
first priority to defendants’ limitation and
for the future maintenance and cure and attor-
neys' fees incurred for his cure awarded above.
All other damages shall be satisfied pro rata
from the remainder of the bond, and thereafter
by execution against defendants in personam.
5. That the plaintiffs shall each have
judgment as to the amounts indicated herein
and that such judgment shall bear interest
at the legal rate until paid and satisfied
in full.
6. Plaintiffs are awarded prejudgment
interests and costs as allowed by local
rules.
7. That each plaintiff shall prepare
and submit a judgment indicating the amount
awarded with costs and interest allowed by
these conclusions of law and findings of
p~19=
fact.
8. That execution upon this judgment
may go forth upon the expiration of ten days
following its entry on the docket.
DATED at Anchorage, Alaska, this 10th
day of April, 1986.
(s/) JAMES A. VON DER HEYDT
United States District
Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
AGNES BERGEN, Administratrix )
of the Estate of Thomas Karl )
Kauppinen; SHANNON LEE YOUHAS )
JOBE, Administratrix of the )
Estate of James Edward Jobe; )
ROBERT KIDD; P.G. PAIR, Admin-)
istrator of the Estate of )
Wilson Lee Pair; FRANK ROMERO )
Personal Representative of the)
Estate of Ronnie Newton; )
THOMAS R. RYKER, Personal )
Representative of the Estate )
of Randall Ray Ryker; JAMES R.)
SANDIN, Personal Representa- _)
tive of the Estate of Vanessa )
N. Sandin; SALOMF B. SMITH, )
Administratrix of the Estate )
of Charles Wayne Parlett; )
WILLARD GARY STALLINGS, Per- )
sonal Representative of the )
Estate of Gary Todd Stallings;)
FLORA B. STIGAL and JOEL L. )
STIGAL, individually and as )
Administrators of the Estate )
of Clifford S. Stiqal; WALLACE)
R. THOMAS; ROBERT O. WASHBURN )
and BLANCHE WASHBURN, d/b/a )
Marine Transportation, )
)
Plaintiffs, )
)
vs. )
)
F/V ST. PATRICK; ST. PATRICK, )
INC.; DANIEL WHORTON; LEROY )
WHORTON; and WILLIAM WILSON, )
)
)
)
Defendants.
A 82-170 Civil
SUPPLEMENTAL
FINDINGS
OF FACTS
THIS CAUSE comes before the court on re-
mand from the Court of Appeals "to permit the
district court to amplify its findings with
regard to davendaney and services". The court
has entered eight supplemental findings below
with respect to the seven awards fer lost
support and services that remain in issue.
Plaintiffs have requested additional
findings with respect to the lost inheritance
awards. These matters were not within the
scope of the remand. The court's supplemental
findings relate only to its alternative awards
with respect to lost support and services
alone.
Before the Court of Appeals, defendants
made the remarkable and highly misleading
assertion that certain depositions listed be-
low had not been admitted into evidence. All
parties understood that these depositions
were to be considered by the court. That is
why defendants filed, after the trial, written
C-2-
objections to some of the testimony in the
depositions.
In making its awards for lost support and
services, presently at issue, the court care-
fully read and considered the following depo-
Sitions which were among those filed with the
court 1 (and which remain in the possession
of the court): P.G. Pair, Janice Shields,
Katrina Smith, Thomas R. Ryker, Salome B.
Smith, Jan Romeo, Freddie Lee Pair. The court
noted defendants' objections to portions of
the testimony. It was unnecessary to consider
any of the purportedly objectionable testi-
mony contained in the depositions of Janice
Shields, Katrina Smith, or Jan Romeo. The
Same is true of the purportedly objectionable
testimony of Salome Smith, with the exception
L
All other depositions filed with the court were, of
course, read and considered as well, but not in
connection with the awards presently before the
court.
of the following passages: p-. 25, lines 21-24
(admitted under FRE 894(b)(5)); p-26 lines 6-
ll (not irrelevent); p.29 lines 6-19 and p.29
line 23 to p. 30 line 12 (not irrelevant; hear-
say addmitted under FRE 804(b)(5)); p.68 line
24 to p.69 line 5 (same). The court has not
reread the depositions or reexamined the trial
transcript in preparing these supplement find-
ings, although it has refreshed its recollec-
tion as te certain particulars.
Therefore, the court enters its
SUPPLEMENTAL FINDINGS OF FACT
WITH REGARD TO DEPENDENCY
AND SERVICES
1. The court finds that all of the de-
cedents were young people whose earnings and
Capacity to assist their parents financially
would have increased in future years.
2. The court finds that Charles Parlett
provided invaluable assistance with child-
raising and other services and support to his
mother, that he was an especially family-
C~-q=
oriented person, and that he would have con-
tinued to provide support and services as he
and his mother matured.
3. The court finds that Ronnie Newton
had provided significant services and support
to his family in the past and that he was an
especially responsible person who would have
continued to provide support and services to
his mother in the same and other ways as he
and his mother matured.
4, The court finds that Wilson Lee Pair
had provided valuable support and services to
his parents in the past, including the period
after he left home, and finds that he would
have continued to do so as he and his parents
matured.
5. The court finds that Vanessa Sandin
had contriubted valuable services and Support
to her family in the past and finds that she
waS a generous person who would have continued
to do so in the same and other ways as she and
her parents matured.
C-5-
6. The court finds that Gary Todd Stal-
lings had provided goods and services to his
parents in the past and that he was a generous
person who would have continued to provide
support and services in the same and other
ways as he and his parents matured.
7. The court finds that Thomas Karl
Kauppinen was particularly devoted to his
parents and family, that he had provided val-
uable services and support to them in the
past, and that he would have continued to co
so in the same and other ways as he and his
parents matured.
8. The court finds that Randall Ryker
had provided valuable support and services to
his family in the past, and that he would have
continued to do so in the same and other ways
as he and his parents matured.
DATED at Anchorage, Alaska, this 28th day
of March, 1988.
(s/) JAMES A VON DER HEYD?
United States District Jue
C-6-
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGNES BERGEN, Administratrix )
of the Estate of Thomas Karl )
Kauppinen; SHANNON LEE YOUHAS )
JOBE, Administratrix of the )
Estate of James E. Jobe; )
ROBERT KIDD; P.G. PAIR, Admin-)
istrator of the Estate of Wil-)
son Lee Pair; FRANK ROMERO, )
Personal Representative of the)
Estate of Ronnie Newton; )
THOMAS R. RYKER, Personal )
Representative of the Estate )
of Randall Ray Ryker; JAMES Pp.)
SANDIN, Personal Representa- _ )
tive of the Estate of Vanessa )
N. Sandin; SALOME B. SMITH, )
Administratrix of the Estate )
of Charles Wayne Parlett; )
WILLARD GARY STALLINGS, Per- )
sonal Representative of the )
Estate of Gary Todd Stallings;)
FLORA B. STIGALL and JOEL L. )
STIGALL, Individually ane as _ )
Administrators of the Estate )
of Clifford S. Stigall, )
WALLACE R. THOMAS; ROBERT Oo. )
WASHBURN and BLANCE WASHBURN, )
d/b/a Marine Transportation, )
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs/Appellees,
vs.
F/V ST. PATRICK; ST. PATRICK,
INC., DANIEL WHORTON; LEROY
WHORTON; and WILLIAM WILSON,
Defendants/Appellants.
mL
No. 86-3900
D.C. No.
A-82-170-cV
OPINION
Argued and Submitted
March 5, 1987 - Seattle, Washington
Filed May 7, 1987
Before: Alfred T. Goodwin, Mary M.
Schroeder and Jerome Farris,
Circuit Judges
Opinion by Judge Farris
Appeal from the United States District Court
for the District of Alaska
James A. von der Heydt,
District Judge, Presiding
SUMMARY
Admiralty
Appeal from a district court's decision
in a case arising from the abandonment of a
ship. Affirmed in part, reversed in part.
The appellants are three men who formed a
Virginia corporation to purchase and outfit
the fishing vessel ST. PATRICK for scallop
fishing in Alaska. The master and mate hired
did not have required licenses to Sail outside
territorial waters, and did not fill out
license applications given them by the owners,
who allowed the boat to go fishing anyway.
D=-2=
During the absence of the master, the boat's
mate took the vessel out 13 miles from the
shore, when a large wave rolled the boat on its
side, forcing the crew to abandon ship. Ten
of the crew eventually died from the cold.
Two survived but were injured. The district
court found the owners liable for negligence
and for unseaworthiness. It found that they
were guilty of gross, willful and wanton mis-
conduct in failing to provide a capable master
and mate, and awarded punitive damages as
well as damages for pre-death pain and suffer-
ing, and a separate sum representing damages
for loss of support, services and inheritance
to the estates of those crew members who died
in the accident. To the two survivors, the
court awarded punitive damages, and other
damages.
[1] Only pecuniary damages are available
under the Jones Act or the Death on the High
Seas Act (DOHSA). [2] At issue is whether
3
punitive damages available under the general
Maritime law may supplement the remedies
available under DOHSA or the Jones Act. [3]
The DOHSA applies when the death is caused by
a wrongful act, neglect or default Occurring
on the high seas, defined as the site of an
accident, not the site of the wrongful act.
[4] Where DOHSA applies, its pecuniary rem-
edies cannot be supplemented by nonpecuniary
damages available under the general maritime
law. [5] The plaintiffs argue that DOHSA is
a remedial statute, and that punitive damages
fill a gap left by Congress in this area.
Although punitive damages have nothing to do
with losses suffered, but are for punishment
and deterrence, it is clear Congress intended
DOHSA to preempt anything but pecuniary dam-
ages where DOHSA applies. [6] When an action
under DOHSA is joined with a Jones Act action,
neither statutory scheme may be supplemented
by the general maritime law or by state law.
D=4=
[7] In the case of the two Survivors, the
court's factual findings are not sufficient
to support its punitive damage awards under
general maritime law. Punitive damages can
be granted where a shipowner has willfully
violated the duty to furnish and maintain a
seaworthy vessel. [8] But while it was neg-
ligence per se for the St. Patrick to sail on
the high seas without properly licensed off-
icers, more was required to prove willful
conduct justifying punitive damages. The
award of punitive damages to the two survivors
was clearly erroneous.
[9] Because DOHSA preempts state wrong-
ful death law, claimants are entitled only to
the pecuniary damages for loss of support
available under DOHSA. [10] The court made
specific findings of dependency as to the
wife and child of one decedent and the cuad-
riplegic mother of another, but as to the
parents of the other decedents no evidence of
dependency was introduced. The findings of
b-35~
a
dependency and services for these other
parents were therefore clearly erroneous.
[1l] The awards to parents for loss of inher-
itance similarly find no support in the record.
[12] Although a district court may admit
evidence of the effect of taxation in calcu-
lating damages based on future earnings, the
owners did not raise this issue at trial. [13]
There was no clear error in the court's cal-
culation of a seaman's future earnings as an
Alaska scallop fisherman despite testimony he
had planned to return to Virginia. [14] Evi-
dence supports the court's conclusion that the
owners should be held personally responsible.
[15] Any error in admitting the testimony of
the captain of another vessel on a subject
already ruled inadmissible was harmless and
not prejudicial. [16] The court did not abuse
its discretion in admitting certain earnings
records of the other vessel. [17] The damage
award is modified to reflect this opinion.
D-6-
COUNSEL
Gerald W. Markham, Kodiak, Alaska, and James
J. Rhodes, Anchorage, Alaska, for Plaintiffs-
Appellees
Richard A. Nielson, Jr., Anchorage, Alaska,
for Defendants-Appellants.
OPINION
FARRIS, Circuit Judge:
BACKGROUND
In October 1980, Daniel Whorton, Leroy
Whorton and a third investor formed a Virginia
corporation to purchase and outfit the fishing
vessel St. Patrick for scallop fishing in
Alaska. William Wilson purchased the third
investor's 50% share in the enterprise in
1981.
The master and mate hired for the St.
Patrick had considerable experience in fishing
the North Atlantic. In September 1981, after
an informal Coast Guard inspection of the
boat in Anchorage, the owners were informed
the officers had to be licensed by the Coast
Guard to Sail outside territorial waters.
D-7-
The owners gave license applications to the
vessel's officers, but the forms were never
completed. The owners allowed the boat to go
scallop fishing anyway. Two fishing opera-
tions were successfully completed in October
and November 1981.
In late November, the boat's master made
a temporary, unexpected departure, and the
mate became acting master. The owners, aware
of the master's absence and that the mate re-
mained unlicensed, allowed the boat to con-
tinue fishing outside territorial waters. A
storm arose while the St. Patrick was fishing
13 miles from shore. In heavy seas, the act-
ing master kept the boat broadside to the
waves despite suggestsions from the crew that
this was dangerous. A large wave rolled the
boat on its side, causing considerable flood-
ing and damage. The acting master ordered the
crew to abandon ship. Ten of the crew in-
cluding the acting mate eventually died from
the cold. Two survived, but were badlv
D-8=-
injured and emotionally scarred. The boat
was later found floating near the point of its
abandonment.
The district court found the owners lia-
ble for negligence and for unseaworthiness.
It found that the owners were guilty of "gross,
willful and wanton misconduct" in failing to
provide a competent, licensed master and mate
for the St. Patrick. It awarded punitive
damages as weil as damages for pre-death pain
and suffering, and a separate sum represent-
ing damages for loss of support, services,
and inheritance to the estates of those crew
members who died in the accident. As an al-
ternative to the single sum for loss of
Support, services and inheritance, the court
gave a figure for loss of services alone.
"({iJn the event that it is subsequently deter-
mined on any appeal that only a loss of ser-
vices is recoverable." To the two surviving
crew members, the court awarded punitive
damages, and damages for pain ane suffering,
D-9-
emotional trauma, disability, and loss of
future earnings. The owners do not contest
liability, nor do they appeal the awards for
pre-death pain and suffering under the Jones
Act. They appeal the awards of punitive dam-
ages, the award for support, services, and
inheritance as to all decedents but James
Jobe, and the size of the awards to the two
Survivors.
DISCUSSION
1. PUNITIVE DAMAGES
The trial court concluded as a matter of
law that punitive damages were available under
the general maritime law to the two survivors
and to the estates of the nine decedents.
Based on its factual finding that the owners'
negligence had been "wanton, willful and inten-
tional", the trial court awarded punitive danm-
ages to all plaintiffs. We review de novo the
legal conclusion that punitive damages are
available. United States ex rel Morgan & Son
Earth Moving, Inc. v. Timberland Paving &
D-10-
Const. Co., 745 F.2d. 595, 599 (9th Cir., 1984).
We review for clear error the trial court's
factual findings in support of an award of
damages. Id.
[1] Only pecuniary damages are available
under the Jones Act, 46 U.S.C. §688, and under
the Death on the High Seas Act, 46 U.S.C. §762;
see also, Kopscynski v. The Jacqueline, 742
F.2d. 555, 561 (9th Cir., 1984) (Jones Act),
cert. denied. 471 U.S. 1136 (1985); Mobil
Oil Corp. v. Higginbotham, 436 U.S. 618, 623
(1978) (DOHSA); Nygaard v. Peter Pan Seafoods
Inc., 7/01 F.2d. 77, 79 (9th Cir. 1983) (DOHSA).
Punitive damages are non-pecuniary damages
unavailable under the Jones Act. Kopczynski,
742 F.2d. at 561. Punitive damages are there-
fore also unavailable under DOHSA.
[2] The issue on appeal, however, is
whether punitive damages available under the
general maritime law may supplement the
remedies available under DOHSA or the Jones
D-11-
Act. . In analyzing the availability of puni-
tive damages, the court did not distinguish
between the survivors’ actions - which in-
cluded claims under the Jones Act and the
general maritime law - and the decedents'
actions - which included claims under the
Jones Act, the Death on the High Seas Act, ané
the general maritime law. The court also
' Whether or when punitive damages are avail-
able under the general maritime law is
not entirely clear. In a maritime action.
that included no Jones Act claims, we
held that punitive damages were avail-
able. Protectus Alpha Navigation Co. Ltd
v. North Pacific Grain Growers, Inc., 767
FP.2G 1379, 1385 (Sth Cir. 1965). Only
the Fifth Circuit has held that punitive
Gamages are available when an unseaworth-
iness claim is joined with a Jones Act
Claim. Complaint of Merry Shipping, Inc.
650 F.2a 622, Ga44-27 (5th Cir. i981).
Other circuits have rejected punitive
damages in actions for unseaworthiness.
See Complaint of Cambria S.S. Co., 505
Pati; DA¥> Seay Ms LA (OCR CLF. , £974),
cert. denied, 420 U.S. 975 (1975); In
Re. Marine Sulphur Queen, 450 F.2d. 89,
195 (2d Cir.) cert. denied, 409 U.S.
982 (1972); see also, Note, Punitive
Damages in Admiralty. 18 Hastings L.J.
995 (1967) (punitive damages not then
available in an unseaworthiness action).
viLs=
failed to clarify whether DOHSA applied to the
decedents. To review the trial court's award
of punitive damages we must first determine
which statute was being supplemented by which
punitive damage awards.
A. Punitive Damages for the Decedents
The threshold question is whether the
Death on the High Seas Act applies at all.
The trial court's findings leave this in doubt.
Although the trial court stated generally
that its jurisdiction arose under DOHSA, as
well as under the Jones Act and general mari-
time law, it did not indicate how DOFRSA
applied. It concluded that personal injury
and death resulted from the operation of the
St. Patrick on the high seas. But it also
found that most of the decedents died after
drifting back within territorial waters and
that negligence originating onshore and with-
in territorial waters contributed to the
accident. Plaintiffs cite these findings in
Support of their contention that DOHSA was
D-i3-
not the basis for the court's damage awards.
We reject this argument.
[3] The Death on the High Seas Act applies
"[w]henever the death of a person shall be
caused by wrongful act, neglect, or default
occurring on the high seas". 46 U.S.C. §761.
This provision has been held to refer to the
site of an accident on the high seas, not to
where death actually occurs or where the wronc-
ful act causing the accident may have origin-
ated. Lacey v. L.W. Wiggins Airways, Inc.,
95 F.Supp. 916, 918 (D. Mass. 1951); accord
Sea-Lane Services, Inc. v. Gaudet, 414 U.S.
573, 599-600 & n. 5 (1974) (Powell, J., dis-
senting on other grounds). It is therefore
irrelevant that some of the St. Patrick's
crew may have died in territorial waters.
See Touhey v. Ross-Loos Medical Group, 111
Cal. App. 3d 958, 168 Cal. Rptr. 910 (Cal.
Ct. App. 1980) (applying DOHSA where dece-
dent was injured aboard ship on the hich seas,
but died of his injuries more than a year
D-14- 7
later in a hospital onshore or within terri-
torial waters. See Chute v. United States,
466 F.Supp. 61, 64 (D. Mass. 1978); Wilson v.
Trans-Ocean Airlines, 121 F.Supp. 85, 92 (N.D.
Cal. 1954). DOHSA applies to plaintiffs'
suits because the St. Patrick's accident caus-
ing death occurred on the high seas.
[4] Where DOHSA applies, its pecuniary
remedies cannot be supplemented by non-pecuni-
ary damages available under the general mari-
time law. Mobil Oil Corp. v. Higgenbotham,
436 U.S. at 624-25 (barring damages for loss
of society under the general maritime law).
Nor can DOHSA be supplemented by non-pecuniary
damages available under state law. Offshore
Logistics, Inc. v. Tallentire, 106 S.Ct. 2485,
2498 (1986), (barring damages for loss of
society under state law). The Supreme Court
based these holdings on its view that:
[t]he Death on the High Seas Act...
announces Congress' considered judg-
ment on Such issues as the benefici-
aries, the limitations period, con-
p~15-
tributory negligence, survivial, and
damages... The Act does not address
every issue of wrongful-death law...
but when it does speak directly to a
question, the courts are not free to
"supplement' Congress' answer so
thoroughly that the Act becomes
meaningless.
Higginbotham, 436 U.S. at 625.
[5] Plaintiffs argue that the unique pur-
pose of punitive damages differentiates them
from the type of non-pecuniary damages that
Higginbotham barred. As the plaintiffs point
out, the Supreme Court said that "[t]here is
a basic difference between filling a gap left
by Congress’ silence and rewriting rules that
Congress has affirmatively and specifically
enacted." Id. Plaintiffs argue that DOHSA
is a remedial statute and that punitive dam-
ages have nothing to do with losses suffered.
Their purpose is punishment and deterrence.
Memphis Community School Dist. v. Stachura,
106 §.Ct. 2537, 2542 n. 9 (1986); Protectus
Alpha Navigation Co. Ltd. v. North Pacific
Grain Growers, Inc., 767 F.2d 1379, 1385 (9th
o-i6=
Cir., 1985). Nonetheless, Higginbotham and
Tallentire make it clear that Congress intend-
ed DOHSA to preempt anything but pecuniary dam-
ages where DOHSA applies. "Congress did not
limit DOHSA beneficiaries to recovery of their
pecuniary losses in order to encourage the
creation of non-pecuniary supplements."
Higginbotham, 436 U.S. at 625. The pecuniary
remedies available under DOHSA therefore can-
not be supplemented by punitive damages under
general maritime law.
[6] Plaintiffs contend that if punitive
damages under the general maritime law cannot
Supplement DOHSA remedies, then punitive dam-
ages can supplement the awards they received
under the Jones Act for decedents' vain and
suffering before death. ' We reject this
These awards are not contested by the owners
and are clearly lawful. See Cook v. Ross
Island Sand and Gravel Co., 626 F.2d. 746
748-49 (9th Cir., 1980).
D-17-
argument. Since few deaths at sea are instan-
taneous, many DOHSA plaintiffs qualify for
Jones Act remedies for pre-death pain and
suffering. If all of those actions could be
supplemented by the general maritime law,
Higginbotham's preemption of maritime law
would be nullified. We hold that where an
action under DOHSA is joined with a Jones Act
action, neither statutory scheme may be sup-
lemented by the general maritime law or by
state law.
B. Punitive Damages for the Survivors
[7] The trial court granted the two sur-
vivors punitive damages under the general
maritime law. The owners challenge the fact-
ual rather than the legal basis for those
awards. We review for clear error the trial
court's factual findings in support of a
punitive damages award. United States ex. rel
Morgan & Son Earth Moving, Inc. v. Timberland
Paving & Const. Co., 745 F.2d 595, 599 (9th
Cir., 1984.
D=16=
The trial court's factual findings are
not sufficient to support its punitive damage
awards to the two survivors. If lawfully
available in an unseaworthiness action, puni-
tive damages could be granted where "a ship-
owner has willfully violated the duty to fur-
nish and maintain a seaworthy vessel". Com-
plaint of Merry Shipping, Inc., 650 F.2d 622,
3
S25 (5th Cir., 1981). The trial court found
such willful conduct in the owners' "disre-
gard" of the statutory requirement that the
officers of the St. Patrick be licensed for
operations on the high seas. See, 46 U.S.C.
§224 (a).
? Because the factual basis for the awards is clearly
erroneous, we need not resolve the legal issue of
the availability of punitive damages. To affirm
the awards of punitive damages, of course, we
would have had to review the owners' concession
that there is a legal basis for the awards. "[Wle
are not bound by a party's erroneous view of the
law". Avila v. INS 731 F.2d 616, 620 (9th Cir., 1934),
(quoting Flamingo Pesort Inc. v. United States, 664
F.2d 1387, 1391 n. 5 (9th Cir.) cert denied, 459 US
1036 (1982). We have thus far not followed the
Fifth Circuit in permitting punitive damages under
the general maritime law where, as here, an unsea-
worthiness action is joined to an action uncer the
Jones Act. See Complaint of Merry Shipping, 650
2-i9=
[8] As the trial court found, it was nec-
ligence per se for the St. Patrick to Sail on
the high seas without properly licensed offi-
cers. The record supports the trial court's
findings that the owners knew that the ship
was operating in violation of the licensing
requirement. It also reflects that the owners
knew that the officers had obtained licensing
forms. The trial court did not reject this
evidence. The court could properly conclude
that the lack of licenses proved negligence,
but more was required to prove "willful" con-
duct justifying punitive damages. Nothing
more was shown. We are therefore compelled
to conclude that the trial court's findings
in support of its award of punitive damages
to the two survivors are clearly erroneous.
F.2d at 624-27. As the trial court correctly ob-
served, that issue is left open by our decision in
Kopezynski, 742 F.2d at 560.
D-20-
2. DAMAGES FOR LOSS OF SERVICES,
SUPPORT, AND INHERITANCE
The trial court awarded damages for loss
of services, support, and inheritance to the
wife and child of James Jobe, the onlv married
decedent. To the parents of the other dece-
dents, the court awarded damages for loss of
service, support, and inheritance, with
alternative, smaller awards in case only loss
of services was found to be recoverable. The
court found that Jobe's wife and child were
dependent on him and that "the named parents
of the other deceased... were denendent upon
their children for services and future support
and are entitled to the pecuniary value there-
of." The availability of damaces under a
Statute is a legal question that we review de
novo. United States ex rel Morgan & Son, 745
F.2d at 599. We review for clear error the
trial court's factual findings in support of
an award of lawfully recoverable damages. Id.
D-zZi@-
[9] Because DOHSA preempts state wrongful
death law, Offshore Logistics, Inc. v- Tallen-
tire, 106 S.Ct. 2485, 2500 (1986), claimants
are entitled only to the pecuniary damages
available under DOHSA. Loss of support, ser-
vices, and inheritance are pecuniary damages
available under DOHSA. Sea-Land Services Inc.
v. Gaudet, 414 U.S. at 584-86 (1974) (loss of
support and services); Nygaard v. Peter Pan
Seafoods, Inc., 791 F.2d 77, 830 (9th Cir.,
1983) (loss of inheritance). Any damage
award must be proved and be reasonably certain.
Harmsen v. Smith, 693 F.2d 932, 945 (9th Cir.
1982) cert. denied, 464 U.S. 822 (1983).
"Although damages need not be proved to a
mathematical certainty, ‘sufficient facts
must be introduced so that a court can arrive
at an intelligent estimate without specula-
tion or conjecture'." Id., (quoting Rochez
Brothers v. Rhoades, 527 F.2d 891, 895 (3rée
Cir. 1975)). Recovery under DOHSA for loss
D-22-
of support “includes all the financial con-
tributions that the decedent would have made
to his dependents had he lived". Sea-Land
Services, Inc. v. Gaudet, 414 U.S. 573, 584-
85 (1974). Therefore, as the trial court
recognized, recovery for loss of support re-
quires some showing of dependence on the
deceased or an expectation of support. Dam-
ages for loss of services require proof that
such services were expected and Likely to be
provided, but for the wrongful death. See id.
at 585. Damages for loss of inheritance re-
quire proof that the dececent, but for his
death, would probably have accumlated property
that the wrongful death beneficiary would have
inherited. Nygaard v. Peter Pan Seafoods,
701 F.2d at 80. The factual findings attest-
ing to all such proof must be comprehensive
enough to provide a basis of decision and must
be fairly supported by the record. Clady v.
County of Los Angeles, 770 F.2d 1421, 1433
(9th Cir., 1985), cert. denied, 106 S.Ct. 1516
D-23-
(1986). The record fairly supports only part
of the trial court's awards for loss of sup-
port, services, and inheritance.
[10] The court made specific findings of
dependency as to the wife and child of James
Jobe and as to the quadriplegic mother and
totally disabled father of Clifford Stigall.
As to the parents of the other decednts, the
court made a more general finding that they
"were dependent upon their children for ser-
vices and future support and are entitled to
the pecuniary value thereof". While there is
evidence from which the court could have made
findings regarding parental dependency of the
Stigalls, no evidence was introduced from
which the trial court could find that any of
the other parents were dependent on their
deceased children or expected to receive sig-
nificant services from them. We must there-
fore hold that the other findings of dependency
and services are clearly erroneous. We recod-
nize the parents' tragic loss of love and
D-24-
companionship: from their deceased children.
But loss of society is nonpecuniary and there-
fore not recoverable under DOHSA. Niggin-
botham, 436 U.S. at 624-25.
[11] Similarly, the court's awards to
parents for loss of inheritance find no sup-
port in the record. In the ordinary course,
it is improbable that parents will inherit
from children. See Thompson v. Offshore Co.,
440 F.Supp. 752, 763 (S.D. Tex. 1977). The
trial court made no factual findings that
overcome this improbability. Speculation
cannot Support an award for loss of inheri-
tance. Nygaard v. Peter Pan Seafoods, 701
F.2d at 80. The same inference does not
apply to James Jobe, who had a wife and child.
The record therefore fails to provide a basis
for finding clear error in the trial court's
award of damages for loss of inheritance to
Jobe's wife and child.
D-25-
3. TAXATION ON FUTURE EARNINGS
AND INHERITANCE
The owners contend that any damages for
loss of support, services, or inheritance,
which are based on caluclations of future
earnings, must be reduced to account for tax-
ation of those earnings. As with other fact-
ual aspects of damage awards, we review for
clear error. United States ex rel Morgan &
Son, 745 F.2d at 599.
[12] We have held that a district court
may admit evidence of the effect of taxation
in calculating damages based on future earn-
ings. Rudelson v. United States, 692 F.2d.
1326, 1331 (9th Cir., 1979); Sauers v. Alaska
Barge, 600 F.2d. 238, 247 (9th Cir., 1979).
We have specifically rejected a rule requir-
ing the admission of such evidence. Burlina-
ton Northern, Inc. v. Boxberger, 529 F.2d 284,
294 (9th Cir., 1975). Moreover the owners
did not raise this issue at trial. Other
Circuits have refused to consider this issue
D-26-
on appeal where the appellant did not seek to
introduce evidence relating to taxation at
trial. See Deakle v. John Rk. Graham & Sons,
756 F.2d 821, 830-31 (llth Cir., 1985); Fan-
etti v. Hellenic Lines Ltd., 678 F.2d 424,
432 (2d Cir., 1982); cert. denied, 463 U.S.
1206 (1983). We therefore find no clear
error in'the calculations of future earnings
that are the basis for the damage award to
the family of James Jobe.
4. FUTURE EARNINGS OF DECEDENT
PLANNING TO RETURN TO VIRGINIA
The district court based’its damaae °
awards on estimates of future earnings for
Alaska scallop fishermen. The owners contend
that the award for James Jobe must be adjusted
because of testimony at trial that he had in-
tended to return to Virginia to work in an-
other type of fishing. An award of Gamages
will be overturned only if it is clearly un-
Supported by the evidence. Chalmers v. City
of Los Angeles, 762 F.2d 753, 760 (9th Cir. 1985).
D-2i-
[13] The record established that Jobe had
a wife and child in Virginia, and there was
testimony at trial that he planned to return
there rather than remain in Alaska. Scallop
fishing in Alaska was, however, his job at the
time of his death. The trial court could have
properly concluded that any other evidence
about Jobe's future plans was to speculative
to substantiate a reduction in the: award.
We find no clear error in the court's calcu-
lation of Jobe's future earnings as an Alaska
scallop fisherman.
5. PERSONAL LIABILITY OF THE OWNERS
The trial court held the owners person-
ally liable on two alternative grounds: (1),
they were liable as shareholders because the
St. Patrick corporation was an “artifice and
a sham", and (2) they were liable as corporate
officers because they had participated ina
tort committed by the corporation. Because we
find no clear error in the trial court's
D-28-
disregard of the St. Patrick's corporate
entity, we need not reach the issue of the
owners' liability as officers participating
in corporate torts.
In deciding whether to disregard the
corporate entity and hold shareholders per-
sonally liable for debts of the corporation,
courts consider three factors: the amount of
respect given to the separate identity of the
corporation by its sharehoiders, the degree
of injustice visited on the litigants by
recognition of the corporate entity, and
fraudulent intent in the formation of the
corporation. Laborers Clean-Up Contract
Administration Trust Fund v. Uriarte Clean-
Up Service, Inc., 736 F.2d 516, 524 (9th
Cir. 1984); Seymour v. Hull & Moreland Engin-
eering, 605 F.2d 1105, 1111 (9th Cir., 1979).
We review for clear error the factual find-
ings that underlay the court's piercing of
the corporate veil. Laborers Clean-Up, 736
D-29-
F.2d at 523. 7
[14] The district court found that the
level of capitalization of the corporation was
sufficiently low to constitute fraud. See
Laborers Clean-Up, 736 F.2d at 524. Recog-
nizing the corporate form would work an injus-
tice, the court found, because "[y]Joung sea-
men employed on large fishino vessels such as
the St. Patrick have a right to expect (with
their limited knowledge of corporate laws)
that the operation is at least sufficiently
-
capitalized to insure compliance with the
basic laws for their safety such ie. thé Offi-
cer Competency Act. 46 U.S.C. §224(a)." The
record reflects ‘slieedatinn of personal and
corporate funds, the lack of a company bank
account, the absence of organizational minutes,
. The owners argue that the district court erred as a
matter of law by failing to make any findings on the
issue of fraudulent intent in the formation of St.
Patrick, Inc. But the court's findings that "the
corporation was an artifice and a sham designed to
execute illegitimate purposes” goes to fraudulent
intent.
D-30-
the failure to file corporate tax returns,
and the failure to pay dividends. All of
this supports the court's conclusion that the
corporation's activities "in reality were
those of William Wilson, J. Leroy Whorton,
and Daniel Whorton."
6. EVIDENTIARY MATTERS
A. Testimony of Captain Burke
The owners dispute the admission of cer-
tain testimony by Phillip Burke, captain of
the Pursuit, another scallop boat in Alaska. |,
The trial court has broad discretion to admit
expert testimony, and we will sustain the
court's action unless it is "manifestly erron-
eous”. Taylor v. Burlington Northern R. Co.,
787 F.28. 1309, 1315 (Sth Cir., 1986).
After consideration voir dire, the trial
court ruled that Captain Burke's testimony as
to earnings of other scallop boats was incom-
petent as based on hearsay. It was ordered
O-3i-
disregarded. 3 On cross-examination, however,
counsel for the owners asked whether the earn-
ings of Captain Burke's boat were higher than
other Alaska scallop boats. On redirect,
plaintiffs' attorney asked Burke whether the
earnings of his boat were average or above
average for the industry. Owner's counsel
Objected that the court had already ruled that
Such testimony by Captain Burke was incompe-
tent. The trial court ruled that the testi-
mony could stand on redirect because owner's
counsel had elicited testimony on the same
subject in his cross-examination.
[15] The owners argue on appeal that
It would not have been an abuse of discretion for
the trial court to admit the evidence and them per-
mit an inquiry on cross-examination as to the
reliability of the hearsay upon which Captain Burke
relied in forming his opinion on the earnings of
other fishing boats. "The relative weakness or
Strength of the factual underpinnings of the expert's
opinion goes to weight and credibility, rather than
admissibility." Taenzler v. Burlington Northern,
608 F.2d 796, 798 n. 3 (8th Cir., 1979). “The weak-
ness in the underpinnings of [expert] opinions may
be developed upon cross-examination and such weak-
ness goes to the weight and credibility of the
testimony." Polk v. Ford Motor Co., 529 F.2d 259,
271 (8th Cir.) cert. denied, 426 US 907 (1976).
D=-32-
counsel's questions on cross-examination were
voir dire, probing the basis for Captain
Burke's expert testimony. But the court had
already ruled that Burke's testimony as to the
earnings of other boats would be disregarded,
so there was no need for further voir dire on
that issue. Where counsel elicits inadmiss-
ible evidence in cross-examination, he waives
the right to object to admission of that
evidence on redirect. Burgess v. Premier Corp.
727 F.2d 826, 834 (9th Cir., 1984); see also,
1 J. Weinstein & M. Berger, Weinstein's EPvi-
dence ¥ 103(02), at 14-16 & n. 67 (1986). We
need not decide whether this "opening the door"
principle applies where, as here, the court
had already ruled that certain evidence was
inadmissible. If there was error, it was
harmless. There is ne question that Captain
Burke was competent to testify as to the earn-
ings of his own ship. The record includes
Other evidence besides that of Captain Burke
2 35=
to support the trial court's finding that
earnings of the Pursuit were probative of
expected earnings of the St. Patrick. The
two boats were of similar size and design,
larger and more Powerful than other Alaska
Scallop boats. Captain Burke's brief answers
to questions on redirect were not prejudicial.
B. Earnings Records of the Pursuit
The owners also challenge the admission
at trial of €arnings records for the Pursuit.
They contend that the records were not pro-
perly authenticated. An independent bookkeep-
er prepared the records, but she was not pre-
sent at trial for examination and the expert
witness did not have an independent recollec-
tion of them. The owners Claim that this vio-
lates the hearsay rule. We review the trial
court's evidentiary ruling for abuse of dis-
cretion. Kisor vy. Johns-Manville Corp., 783
F.2d 1337, 1340 (9th Cir., 1986).
[16] The business records exception to
D-34-
the hearsay rule allows the admission of
systematically entered records without the
necessity of locating and Calling as a wit-
ness the individual who kept them. Fed. R.
Evid. 803(6); see €-g-, City of Phoenix vy.
Com/Systems, Inc., 706 F.2d 1033, 1037-38
(9th Cie. , 1983). The record reflects an ade-
quate feendactas for admitting the Pursuit's
earnings records under rule 303(6). We fing
no abuse of discretion in the admission of
those records.
REVISED AWARDS
[17] Consistent with our review, we mod-
ify the trial court's damage awards to the
Plaintiffs as follows:
A. Wallace Thomas is entitled to recover:
For the terror of the accident,
abandoning Ship at sea, intense
Pain and cold, the emotional
trauma of watching his shipmates
die, and fear and anxlety prior
to rescue, $200,000.90
o
b. For severe long term debilitating
Physical, mental and emotional
damage, including severe depression
D=-35-
him unable to cope with his daily
life, causing him irrational and
unfounded feelina of guilt
$225,000.00
TOTAL: $425,009.00
B. James Jobe's estate is entitled to
recover:
a- For conscious pre-death pain
and suffering $200,000.00
b. Lost support, services and loss
of inheritance to the wife and
child of James Jobe
$2,119,992.00
c. Loss of nurture ot his minor child
$51,000.00
TOTAL: $2,370,000.00
C. Vanessa Sandin's estate is entitled
to recover:
a. For conscious pre-death pain and
suffering $200,000.90
TOTAL: $200,909.00
D. Gary Todd Stalling's estate is entit-
led to recover:
a. For conscious pre-death pain ane
suffering $209,900.09
TOTAL: $299,090.09
E. Thomas Kauppinen's estate is entitled
to recover:
D-36-
F.
a. For conscious pre-death pain and
suffering $209,000.00
TOTAL: $200,000.09
Ronnie Lee Newton's estate is entitled
to recover:
G.
a. For conscious pre-death pain and
suffering: $200,000.00
TOTAL: $200,000.00
Randy Ryker's estate is entitled to
recover:
H.
a. For conscious pre-death pain and
suffering $200,000.90
TOTAL: $200,090.00
Charles Parlett's estate is entitled
to recover:
I.
a. For conscious pre-death pain and
suffering: $200,000.00
TOTAL: $200,990.09
Wilson Pair's estate is entitled to
recover:
J.
a- For conscious pre-death pain and
suffering: $200,909.90
TOTAL: $200,000.00
Clifford Stigall's estate is entitled
tO recover:
a. For conscious pre-death pain and
suffering: $200,000.90
D-37-
b. For loss of support and services
to his parents $150,000.00
TOTAL: $350,000.00
K. Robert Kidd is entitled to recover:
a. Future foreseeable maintenance and
cure S$ 50,090.09
b. For the terror of the accident,
abandoning ship at sea, intense
pain, cold and the emotional
trauma of seeing his friend
Doc Stigall disappear
$200,000.00
c. For pain and suffering from
rescue to trial $100,000.90
d. Permanent disability of the loss
of his feet and their deformity
as testified to by Dr. Mills
$150,000.09
e. Past and lost future income
$2, 295-.837-00
f. Future pain from surgeries and
hospitalization $100,000.00
TOTAL: $2,855,837.99
Each party shall bear- its own costs on
appeal.
AFFIRMED IN PART, REVERSED IN PART.
D-38-
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGNES BERGEN, et al.,
No. 86-3900
DefendantSs/ Appellants
)
)
Plaintiffs/Appellees)
ve. D.C. No.
) A82-170 CV
F/V ST. PATRICK et. al. )
ORDER
)
Filed February 2, $989
Before: Alfred T. Goodwin, Mary M.
Schroeder and Jerome Farris, Circuit Judges
ORDER
The appellee's petition for rehearing of
this case asked in part that we reconsider our
reversal of the award of damages for parental
loss of services. We stated in our opinion
filed May 7, 1987, that there was no evidence
in the record to support that award for anv of
appellees other than the Stigalls. Bergen v.
F/V St. Patrick, 816 F.2d 1345, 1350 (9th
Cir. 1987)./‘ We said:
E-1-
While there is evidence from which
the court could have made findings re-
garding parental dependency of the
Stigalls, no evidence was introduced
from which the trial court could find
that any of the other parents were
dependent on their deceased children
or expected to receive significant
services from them. We must there-
fore hold that the other findings
of dependency and services are
clearly erroneous. 816 F.2d 1345,
1350 (9th Cir., 1987).
On rehearing, the appellees maintained,
however, that certain deposition evidence had
been considered by the district court and
provided support for the findings of depend-
ency and services with respect to the parents
other than the Stigalls. Appellant disputed
appellees' contention that the district court
considered such depositions.
The record on appeal indicated that the
district court may have considered deposition
evidence in support of the claims, but was
not clear on the point. We therefore granted
a limited remand of the case in order to
permit the district court to amplify its
faa
~~
amplify its findings with regard to depend-
ency and services.
The district court has now done so, and
on the basis of the district court's supple-
mental memoranda submitted by the parties, we
conclude that the district court did consider
the deposition testimony as evidence support-
ing its findings. The appellants' contentions
in this appeal that the district court did not
consider any such evidence are therefore
incorrect.
Accordingly we grant the appellee's
petition for rehearing in part and modifv our
Original disposition. The award of damages
for parental loss of support and services
entered on behalf of each appellee is hereby
affirmed.
The petition for rehearing is in all
other respects denied.
The full court has been advised of the
Suggestion for rehearing en banc and no judge
E-3-
of the court has requested a vote on the
suggestion for rehearing en banc. Fed. R.
App. P. 35.
Except as provided in this order, the
petition for rehearing is denied and the
suggestion for rehearing en banc is rejected.
APPENDIX F
DFATH ON THE HIGH SEAS ACT
46 U.S.C. §§ 761-767 (1982)
§ 761. Right of actic: “re and by whom
brought.
Whenever the death of a person shall be
caused by wrongful act, neglect, or default
occurring on the high seas beyond a marine
league from the shore of any state, or the
District of Columbia, or the Territories or
dependencies of the United States, the person-
al Representative of the decedent may maintain
a Suit for damages in the district courts of
the United States, in admiralty, for the ex-
Cclusive benefit of the decedent's wife, hus-
band, parent, child, or dependent relative
against the vessel, verson, or corporation
which would have been liable if death had not
ensued.
§ 762. Amount and apportionment of recovery.
The recovery in such suit shall be a fair
and just compensation for the pecuniary loss
r=]
sustained by the persons for whose benefit the
suit is brought and shall be apportioned among
them by the court in proportion to the loss
they may severally have suffered by reason of
the death of the person by whose representa-
tive the suit is brought.
§ 763a. Limitations.
Unless otherwise specified by law, a suit
for recovery of damages for personal injury or
death, or both, arising out of a maritime tort,
shall not be maintained unless commended with-
ing three years from the date the cause of
action accrued.
Qo
§ 764. Rights of action given by laws of
foreign countries.
. Whenever a right of action is granted bv
the law of any foreign State on account of
death by wrongful act, neglect, or default
occurring upen the high seas, such right may
be maintained in an appropriate action in
admiralty in the courts of the United States
without abatement in respect to the amount
<2
for which recovery is authorized, any statute
of the United States to the contrary notwith-
standing.
§ 765. Death of plaintiff pending action.
If a person die[s] as the result of such
wrongful act, neglect, or default as is men-
tioned in section 761 of this title during the
pendency in a court of admiralty of the United
States of a suit to recover damages for per-
sonal injuries in respect of such act, neglect
or default, the personal representative of the
decedent may be substituted as a party and the
Suit may proceed as a suit under this chapter
for the recovery of the compensation provided
in section 762 of this title.
§ 766. Contributory negligence.
In suits under this chapter the fact that
the decedent has been guilty of contributory
negligence shall not bar recovery, but the
court shall take into consideration the degree
of negligence attributable to the decedent and
reg
reduce the recovery accordingly.
§ 767. Exceptions from operation of chapter.
The provisions of any State statute giving
or regulating rights of action or remedies for
death shall not be affected by this chapter.
Nor shall this chapter apply to the Great Lakes
or to any waters within the territorial limits
of any State, or to any navigable waters in
the Panama Canal Zone.
APPENDIX G
JONES ACT
(46 U.S.C. § 688(a))
§ 688(a). Recovery for injury to or death
of seaman.
Any seaman who shall suffer personal in-
jury in the course of his employment may, at
his election, maintain an action for damages
at law, with the right of trial by jury, and
in such action all statutes of the United
States modifying or extending the common-law
right or remedy in cases of personal injury
to railway employees shall apply; and in case
Of the death of any seaman as a result of any
such personal injury the personal representa-
tive or such seaman may maintain an action for
damages at law with the right of trial by jury,
and in such action all statutes of the United
States conferring or regulating the right of
action for death in the case of railway emplov-
ees shall be applicable. Jurisdiction in such
actions shall be under the court of the dis-
trict in which the defendant employer resides
Or in which his principal office is located.
APPENDIX H
FEDERAL EMPLOYERS LIABILITY ACT
(FELA) SURVIVAL STATUTE
(45 C.4.6.°% 59)
§ 59. Survival of right of action of
person injured.
Any right of action given by this act
[45 USCS §§ 51 et seq.] toa person suffering
injury shall survive to his or her personal
representative, for the benefit of the sur-
viving widow or husband or children of such
employee, and, if none, then of such emvlov-
ee's parents; and, if none, then of the next
of kin dependent upon such employee, but in
Such cases there shall be only one recovery
for the same injury.
APPENDIX I
OFFICERS' COMPETENCY
CERTIFICATES CONVENTION, 1936
(46 U.S.C. § 224a)
§ 224a. Officers' Competency Certificates
Convention, 1936
(1) The Officers’ Competency Certificates
Convention, 1936 International Labor Organiza-
tion Draft Convention Numbered 53, "“conerning
the minimum requirement of professional capa-
city for masters and officers on board mer-
chant ship", as ratified by the President on
September 1, 1938, with understandings append-
ed, and this section shall apply to all ves-
sels, however propelled, navigating in the
high seas, which are registered, enrolled and
licensed, or licensed under the laws of the
United States, whether permanently, temporar-
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