# Petition for Writ of Certiorari — Kidd v. F/V St. Patrick > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1278%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 871 ## Text 88-1762 IN THE SUPREME COURT OF THE l D + ~a mnorc Pe ek 2S &. , Vv We 7k — /t7 — rT ArT TT SIT r s J - ->» ‘ 4 Y t - — & 24 A ar ee eee ote - 44 > + s A AOA AA aie that: =f = ro See & FS Van 4 Le n MtLanhy ,= es = Pa o' 4 } AZrxRA— » £ _ Ad 4 if | Ken Wray’s Printing, Inc., Anchorag 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 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 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 K=2 § AS 44.03.040. Reconciliation with other statutes. This chapter does not alter the geogra- phic area to which a statute of the state applies if the statute specifies the area precisely in miles or by another numerical designation of distance or position. Nothing in the statute or in this chapter is a waiver Or relinquishment of jurisdiction over or ownership by the state of an area to which jurisdiction or ownership extends under another provision or rule of law. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1278%3A1. Public record. Not legal advice.