Petition — Ivy v. Security Barge Lines, Inc.

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

NO.

79-1228

WARNIE LEE IVY ET AL., PLAINTIFFS-APPELLEES,

CROSS-APPELLANTS,

SECURITY BARGE LINES,

VS.

Petitioner,

INC., DEFENDANT-

APPELLANT, CROSS-APPELLEE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

February, 1980

MARVIN L. JEFFERS

251 Florida St.

Suite 400

Baton Rouge LA 70801

504/344-3718

JOSHUA A. TILTON

Post Office Box 3356

Baton Rouge LA 70821

504/766-2899

TABLE OF CONTENTS

OPINIONS BELOW ,

JURISDICTION .

QUESTIONS PRESENTED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT:

The Higginbotham Decision

does not approve the Pecuniary

Loss Rule of the Vreeland

Case tee a atl Sg

id.

The Vreeland Rule cannot

withstand analysis under

the standards set out in

Moragne

tT.

The Court of Appeals In-

correctly require an unsea-

worthiness finding to sustain

a claim under General Maritime

Law .

Page

Page TABLE OF AUTHORITIES

CAPR. bk) ele 6 Me ae Ce ome Sle ee Page

APPENDIX "A" - Opinion of United Cases

States Court of Bar an a

Appeals for the Baker v. Bolton

Fifth Circuit, A «ee ee Se ee 24

sitting en banc,

rendered November Barbe v. Drummond

13, 1979, found at ss ae sb OR ak iy 5” 18

Cnt: Pia wee. ee ee

Cities Service Oil Co. v. Launey

APPENDIX "'B" - Opinion of United > Gar, Beees S0a Poae Gals 3 20

States Court of

Appeals for the Cortes v. Baltimore Insular Lines,

Fifth Circuit, snc. , 1932, 267 0.8. 367,: $3

rendered December i ee to Pe x ae SS” SR ° 33

4, 1978, found at

Oe. Pee tee fe se el Edmonds v. Compagnie Generale

Transatlantique, Ue .

APPENDIX "C'' - Memorandum of June 27, 1979, ere ee, Os

PeGaeeee «6 8 ee BO

Garrett v. Moore-McCormack Cc., Inc.

APPENDIX "D'"' - Special Verdict 4992, 22! Use. 239, 63 S.Ct. 246, Pr

with 87 L.Ed. 239 ‘ “Une ar ae oh 26

Interrogatories ... 91

Gillespie v. United States Steel jf

APPENDIX "E" - Final Judgment Corp., 1964, 379 U.S. 148, 85

rendered in the S.Gt. 508, 15 L.Bd.2d 199 . ..30, 35

Northern District

of Mississippi, Igneri v. Cie de Transports

Greenville Division, Oceaniques, 2 Cir. 1963, 323 F.2d

on September 23, 257, cert. denied, 1964, 376 U.S.

ae eae ea eee 949, 84 S.Ct. 965, 11 L.Bd.2d

| a EP oo Gee a te 20

In re: M/V ELAINE JONES

> Cir. 1973, 480 F.2d 11, reh.

granted, 1973, 513 F.2d 911,

cert. denied, 1975, 423 U.S.

S40, 96 S.Ct. 71, 46 L.Ed.2d 60. 20

11ii

Page

Ivy v. Security Barge Lines. Inc.

a Gide Bove, Sees Vian cae cos 14

Ivy v. Security Barge Lines, Inc.

5S Cir. en banc 1979, 606 F.2d

524 peta See I <_ane 2a, 2

Kermarec v. Compagnie Generale

Transatlantique, 1959, 358

U.S. 623, 79 Silt. 866, ‘3

been SOW. 6 ise 8 BI We 22

Lindgren v. U.S.

1929, 261 U.S. 38, at 46, 36

5.0. 207, 74 SiBRc ORO a SRG Sy

ae, SEb us: se ee RR ee ee ee

Michigan Central R.R. v. Vreeland

1913, 227 U.S. SO, @.Ce. 296,

a a te es eo. ae i

4. 2b. Hi. a, th he,

By lg ete Vict ae eee 36

Mobil Oil Corp. v. Higginbotham

1978, 436 U.S. 618, 98 S.Ct.

2010, 36 L. 86.26 SSL ais - By Be,

13, 26, 43, 169 BG Ben See 8 ss

Mobile L. Ins. Co. v. Brame

95 U.S; 756, 86 b.06- Bees a ce

Moragne v. States Marine Lines, Inc.

1970, 398 U.S. 375, 90 S.Ct. 1972,

oe ee eee ee, Oe

0. 23, 23. 26, 38. SS; By Oe

35, ole Ve be. a ee oe

Sea-Land Services, Inc. v. Gaudet

1974, 414 U.S. 573, 94 S.Ct. 806,

39 L.8ad.2¢.9 . ..«- 4, BR, 2h, Sky

$3. 38. 35. 37

The Harrisburg

Rene, 220 U.o. 399, 7 S.Ct.

360, 30 L.Bd. S58... ~ .20,..24,:..25,

The Osceola

beees 2ee 1G. 2085 22 S00. 885,

fg” | ee © mee: Paes Pee

United States v. Boykin

® Cit. seen, 29 F526 762

United States v. Reliable Transfer

Ceaa: Eee. 3975, 421 U.S... 397,

95 S.Ct. 1708, 44 L.Ed.2d 251

Miscellaneous

Pound, R., 13 NACCA L.J. 19,

"Some Thoughts on Stare

Decisis". 1954

Page

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

NO.

WARNIE LEE IVY, ET AL., PLAINTIFFS-APPELLEES,

CROSS-APPELLANTS,

Petitioners,

VS.

SECURITY BARGE LINES, INC., DEFENDANT-

APPELLANT, CROSS-APPELLEE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioners, Warnie Lee Ivy and Jewel

Ivy, plaintiffs below, respectfully pray that

a writ of certiorari issue to review the judg-

ment and opinion of the United States Court

of Appeals for the Fifth Circuit, reversing

the decision of the trial court, the United

States District Court for the Northern Dis-

trict of Mississippi, Greenville Division,

which had entered a judgment on a jury ver-

dict for petitioners. The Court of Appeals'

decision should be reversed due to its re-

fusal to allow recovery of damages for loss

of society for the death of a seaman within

the territorial waters of the United States,

and the action should be remanded for further

proceedings to the District Court.

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Fifth Circuit, sitting en

banc, reported at 606 F.2d 524, appears as

Appendix A to this petition. The original

panels' decision in this case reported at

585 F.2d 732, appears as Appendix B to this

petition. The opinion of the United States

District Court for the Northern District of

Mississippi, Greenville Division, as report-

ed at 424 F.Supp. 1154, appears as Appendix

C to this petition. The jury verdict on

special interrogatories in this case appears

as Appendix D to this petition. The final

jusgment of the United States District Court

for the Northern District of Mississippi,

Greenville Division, appears as Appendix E

to this petition.

JURISDICTION

The judgment of the United States Court

of Appeals for the Fifth Circuit was entered

on November 13, 1979. This petition for

certiorari was filed within 90 days of this

date. This Court's jurisdiction rests on 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether or not this Court's decision

in Mobil Oil Corp. v. Higginbotham approved

the doctrine announced in Michigan Central

R.R. v. Vreeland which limited damages recov-

erable under the F.E.L.A. statute to pecuniary

loss as applicable to actions for wrongful

death of seamen within the territorial waters

of the United States.

2. Whether or not Michigan Central R.R.

v. Vreeland should still be considered as

binding precedent in a Jones Act wrongful

death action.

3. Whether or not a finding of unsea-

worthiness is required to maintain an action

under Moragne v. State Marines Lines, Inc.

and Sea-Land Services, Inc. v. Gaudet.

STATEMENT OF THE CASE

On August 11, 1975, John Ivy was employ-

ed by the respondent, Security Barge Lines,

Inc., as a member of the crew of the vessel,

M/V ISSAQUENA, in the capacity of a deckhand.

At approximately 9:15 P.M., on that night,

Ivy _— engaged in the task of installing a

fathometer on a barge located on the bow of

the vessel's tow. Ivy was performing this

task with the first mate, Bobbie Davis and

another crew member, Charles Glasco. The

vessel and its tow were headed upriver on

the Mississippi near mile 245 a few miles

from Baton Rouge, Louisiana. Charles Glasco's

experience working on the river was limited

to the fifteen days of this voyage immediately

preceding this incident. Glasco had no train-

ing prior to this incident, and he was not

familiar with any of the safety rules of the

company. Also, he was not familiar with any

deckhand manual containing the safety rules

and regulations of the vessel owner or with

certain safety bulletins posted on board the

vessel. Glasco was not aware that the lead

barge on the port side where the fathometer

was being installed was five feet longer than

the barge to its starboard.

It was approximately 1200 feet from the

location where the fathometer was being in-

stalled on the vessel's tow to the vessel it-

self. The only lighting available to the

crew members were ordinary flashlights.

Mate Davis was carrying a walkie-talkie to

be used to communicate with the pilot of the

vessel, Captain Smith.

While installing the fathometer on the

lead barge on the port side, Glasco stepped

into the vacant space on the starboard side

of the lead barge and fell into the river.

When Glasco went overboard, Ivy proceeded

down the tow of the vessel waving his flash-

light in order to communicate to Captain

Smith the fact that a man was overboard.

The vessel owner had established rules con-

cerning rescue operations. These rules

were that the engines should be stopped and

life saving operations should begin immediate-

ly when a man went overboard. Captain Smith

did not follow these rules, but rather he be-

gan backing the vessel and its tow when learn-

ing Glasco was overboard.

Glasco surfaced on the port side of the

tow approximately two barges from the stern

of the tow, and he began screaming for help.

Ivy, who had been proceeding toward the vessel

down one of the middle pathways between the

barges of the tow, heard Glasco's shouts.

Whereupon ivy, realizing Glasco was in great

peril, proceeded to the outside of the barge

where Glasco was in the water. There he was

able to communicate with Glasco, who told Ivy

that he had removed his life jacket in order

to get from under the barges. At this time,

by communicating with his flashlight, Ivy

answered twice to Captain Smith's question

in the affirmative that he had spotted Glasco.

Captain Smith, despite having knowledge

that Glasco had surfaced, continued backing

the vessel and its tow. At this point, the

whell wash created by the 5000 horsepower

engines with ten foot props inside of court

nossels at 790 R.P.M. in full reverse was

great. Any attempt by Ivy to throw the life

jacket to Glasco would have been useless be-

cause of the backwash. Ivy told Glasco he

was going to get him a line, and Ivy proceed-

ed down the outside of the barges to the ves-

sel. Captain Smith saw Ivy fall off the

stern of the vessel's tow, but he still con-

tinued backing for approximately five more

minutes. The next measure taken by Captain

Smith was to come ahead and cross to the

opposite bank before beginning life-saving

operations. It was approximately fifteen

minutes form the time Ivy went overboard

until Captain Smith stopped the ISSAQUENA's

engines and began life saving-operations.

At the time Ivy went overboard, all the

lights on the M/V ISSAQUENA were in use.

This included two high intensity search

lights mounted above the pilot house which

rotated on a 360° axis. At no time during

this incident was there any communication

between Captain Smith and Mate Davis by use

of the walkie-talkies.

As a result of this incident, John Ivy

was lost. After a search by the Coast Guard

and East Baton Rouge Sheriff's Department,

his body was never recovered. Glasco managed

to swin to a bank where he was picked up and

returned to the M/V ISSAQUENA.

This action was brought by petitioners,

for the wrongful d.ath of their son, John

Ivy, pursuant to the Jones Act, 46 U.S.C.

section 688 and General Maritime Law for

unseawothiness, in the Middle District of

Louisiana. The action was transferred to

the Northern District of Mississippi, Green-

ville Division, on motion of the respondents,

Security Barge Lines, Inc.

At trial, in answer to special interroga-

tories, the jury awarded John Ivy's parents

$50,000.00 each for loss of support, services

and society. These awards were reduced by

50% to reflect the contributory negligence

of the decedent. The jury award was based

solely on negligence. There was no finding

of unseaworthiness. (Appendix D) Both

parties appealed.

On December 4, 1978, a panel of the

United States Court of Appeals for the Fifth

Circuit, consisting of Circuit Judges

Coleman, Clark and Rubin, reversed the judg-

ment and remanded for a new trial. The

- judgment was reversed for the following

reasons:

1. Nonpecuniary damages could not be

recovered under the Jones Act.

2. Plaintiffs had no procedural capacity.

3. !scilure of the trial judge to in-

struct the jury on discount to

present value.

4. Insufficiency of the evidence to

support loss of services and support.

5. Some confusion as to an instruction

on negligence.

6. Closing argument by counsel for pet-

itioners contained a reference to

the golden rule argument.

A petition for rehearing en banc was filed

timely by petitioners. An en banc rehearing

was granted and held solely on the issue of

whether or not loss of society could be re-

covered by the survivors of a seaman for a

death occurring within the territorial waters

of the United States when the action was

based solely on negligence. On November 13,

1979, in a decision written by Circuit Judge

Alvin B. Rubin, a majority of the en banc

Fifth Circuit affirmed the decision of the

original panel. Chief Judge John R. Brown,

joined by Circuit Judge Kravitch, filed a

dissenting opinion. The basis of the major-

ity opinion by the en banc Fifth Circuit was

two-fold. First, it relied on The Osceola,

1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed.

760, to maintain the proposition that a

general maritime cause of action based on

Moragne-Gaudet, remedy required an unseawothi-

ness finding. This was despite the express

holding of Lindgren v. U.S., 1929, 281 U.S.

38, at 48, 50 S.Ct. 207, 211, 74 L.Ed. 686,

693, that The Osceola remedy did not apply

to actions for wrongful death. The majority

of the en banc Court failed to realize that

the general maritime action for wrongful

death arose under Moragne v. States Marine

Lanes, Inc. ,:- 1970, 396 U.S. 378, 90 S.Ct.

1772, 26 L.Ed.2d 339, and it was expressly

created with the intent of being beyond the

preclusive effect of the Jones Act. (90

S.Ct. 2765, n.i2)

The second aspect of the opinion relied

upon a mistaken view that Mobil Oil v.

Higginbotham, 1978, 436 U.S. 618, 98 S.Ct.

2010, 56 L.Ed.2d 581, silently approved of

the rule of Michigan Central R.R. v. Vree-

sand, i915, 227 U.S. 59, S35: S.Ct. 392,.-$9

L.Ed.2d 417 limiting damages to pecuniary

loss under the F.E.L.A. as being applicable

to actions for the wrongful death of a sea-

man.

Petitioners submit that the majority of

the en banc Court erred in requiring an un-

seaworthiness finding for the maintenance

of a general maritime action for the wrong-

ful death of a seaman. Also, it is submitted

that the Court below erred in reading

Higginbotham as an approval of the continued

application of the Vreeland rule to actions

brought by the survivors of seamen. Further,

petitioners maintain that the Vreeland rule

can no longer be accepted as valid precedent

in cases concerning the death of seamen.

Due to the national importance of the

issue of whether or not the survivors of

seamen can recover damages for loss of soci-

ety for a death occurring within the territor-

ial waters of the United States, this case

presents a question of sufficient seriousness

in the field of admiralty to warrant and

require a review by this Court.

REASONS FOR GRANTING THE WRIT

Bé

THE HIGGINBOTHAM DECISION DOES

NOT APPROVE THE PECUNIARY

LOSS RULE OF THE VREELAND CASE,

In reaching its decision that loss of

society was not recoverable by the survivors

of a seaman in an action for wrongful death

arising within the territorial waters of

the United States, both the original panel

and the majority of the en banc of the Fifth

Circuit concluded that this Court approved

the pecuniary loss rule of the Vreeland!

case in Mobil Oil Corp. v. Higginbotham,

1978, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d

581. (Ivy v. Security Barge Lines, Inc.,

S Ciri. 2976, $85 Fize 732, 756; Ivy_v. Secur-

ity Barge Lines, Inc., 5 Cir. en banc 1979,

606 F.2d 524, 528). This conclusion was

based on this Court's silence regarding the

Jones Act status of two claimants in Higgin-

botham, 5 Cir. en banc 1977, 545 F.2d 422,

433. All claimants were restricted to pecun-

iary loss under the provisions of DOHSA, 46

U.S.C. 761, regardless of their status or

the basis upon which the cause of action

1. Michigan Central R.R. v. Vreeland,

RP ea UESt UeGs SPg sa ScUS. iPS, - 23

L.Ed.2d 417.

arose. Higginbotham, supra. The Court of

Appeals concluded that the silence as to

Jones Act status should be construed as an

approval of the Vreeland rule fundamentally

misreading the theoretical basis underlying

the Higginbotham decision.

No language in the Higginbotham decision

Supports the conclusion of the Court of

Appeals, nor is there language from which

such a conclusion can be inferred. The

Higginbotham case presented a question of

Statutory construction, and it was decided

solely on that basis:

"Congress did not limit DOHSA bene-

ficiaries to recovery of their pecun-

iary losses in order to encourage

the creation of nonpecuniary supple-

ments." (98 S.Ct. at 2015)

The statutory limitation on damages con-

tained in DOHSA is, where geographically

applicable, binding on the courts regardless

of the status of the claimants or the basis

for the cause of action. Higginbotham's

Silence regarding issues of status is

0s een ar tat laste

reflective of the predominance of DOHSA's

explicit language on damages. The issue of

damages under the Jones Act was not addressed

in Higginbotham, because, within the statu-

torial and judicial scheme of remedies for

maritime wrongful death, Congress had fore-

Closed the issue where DOHSA was geographical-

ly applicable.

"The Act (DOHSA) does not address

every issue of wrongful death, see

e.g., n.15, supra., but when it

does speak directly to a question,

the courts are not free to 'supple-

ment' Congress' answer so thoroughly

that the Act becomes meaningless.

(98 S.Ct. at 2015)

This Court approached the questions

presented in Higginbotham not on the basis

of situs because of the geographical nature

of DOHSA. The explicit language of DOHSA

had a preclusive effect on the claims of all

the parties regardless of status, because

DOHSA was a clear expression of congressional

intent in a remedial field that constitutes

a scheme combining both statutorially and

judicially created remedies. This is be-

cause Congress has never adopted "a compre-

hensive maritime code", (Higginbotham, 98

S.Ct. at 2015); thus, the admiralty courts

have been left the traditional task of

fashioning maritime law in areas where

Congress has not addressed itself. (Edmonds

v. Compagnie Generale Transatl., U.S.

» June 27, 1979, Blackmun, Jr. dissent-

ing » Slip op. p.: 6.)

Higginbotham reflects this Court's re-

fusal to ignore a clear mandate of Congress

even though its traditional rule making

power has been great where Congress has left

voids. Higginbotham relied on the explicit

language of DOHSA regardless of status.

This creates some overlap between DOHSA and

the Jones Act due to the silence of the Jones

Act on the issue. In this manner, Higgin-

botham answers the question reserved in

Lindgren v. U.S., 1929, 281, U.S. 38, at 48,

SO S.Ct. 207, 212, 74 L.Bd: 606, 694, the

a ar te eS a RII Bea RP aa SA. Bice

se ane aa

relationship of DOHSA to the Jones Act.

Higginbotham does not mean that DOHSA

pre-empts the Jones Act on the High Seas.

The two statutes create separate remedies,

but, under Higginbotham, DOHSA's rule on

damages restricts the recovery under the

Jones Act. Where DOHSA is silent or where

the statutes conflict, the two statutes

must be given separate effect. This is true

in regard to jury trial and survival. The

Jones Act provision as to Jury trial con-

flicts with DOHSA, but there is no reason

why this provision should not be given ef-

fect. Nor should the survival provision of

the Jones Act, a subject upon which DOHSA is

silent,? be affected by DOHSA. DOHSA controls

a Within such a scheme of remedies,

DOHSA's silence on survival can be sup-

plemented by a general maritime cause of

action where the Jones Act is not appli-

cable, because there is no congressional

mandate against such a remedy. (Barbe v.

Drummond, 1 Cir. 1974, 507 F.2d 794,

cited favorable in Higginbotham, 98 S.Ct.

at 2035,3

only the single issue of damages for wrong-

ful death on the high seas. On this issue

there is an overlap by the more specific

statute, DOHSA.

It is submitted that the Vreeland rule

on damages was not explicitly or inferential-

ly approved in Higginbotham. Higginbotham

decided the issue of damages as to all clain-

ants regardless of status or basis of remedy

on the same controlling principle, the con-

gressional mandate clearly expressed in

DOHSA. The Vreeland rule must be examined

in it own right not with the aid from

Higginbotham.

THE VREELAND RULE CANNOT WITHSTAND

ANALYSTS UNDER THE STANDARDS

SET OUT IN MORAGNE.

In 1913, the Vreeland Court held that

recovery under the F.E.L.A., 45 U.S.C. 51,

for wrongful death was limited to pecuniary

loss. This decision has been consistently

applied by the Courts of Appeal to cases

sd ny i NN le a a ta

Ne at iclerl ais

arising under the Jones Act, 46 U.S.C. 688.

(In re: M/V ELAINE JONES, 5 Cir. 1973, 480

F.2d 11, reh. granted, 1973, 513 F.2d 911,

cert. denied, 1975, 423 U.S. 840, 96 S.Ct.

71, 46 L.Ed.2d 60; Cities Service Oil Co. v.

Launey, 5 Cir. 1968, 403 F.2d 537; Igneri v.

Cie de Transports Oceaniques, 2 Cir. 1963,

323 F.2d 527, cert. denied, 1964, 376 U.S.

949, 84 S.Ct. 965, 11 L.Ed.2d 969; United

States v. Boykin, 5 Cir. 1931, 49 F.2d 762.)

In Moragne v. States Marine Lines, Inc.,

1970, 598 U.S. 375, 90 S.Ct. 1972, 26 L.Bé.26

339, a unanimous Court overruled The Harris-

burg, 1886, 119 U.S. 199, 7 S.Ct. 140, 30

L.Ed. 358, which had held that there was no

general maritime cause of action for wrongful

death. Speaking through Justice Harlan, the

Opinion recites the various factors which

should be considered in overruling prior

decisions:

"Very weighty considerations under-

lie the principle that courts should

not lightly overrule past decisions.

Among these are the desirability that

the law furnish a clear guide for the

conduct of individuals, to enable them

to plan their affairs with assurance

against untoward surprise; the im-

portance of furthering fair and expe-

ditious adjudication by eliminating

the need to relitigate every relevant

proposition in very case; and the

necessity of maintaining public

faith in the judiciary as a source

of impersonal and reasoned judgments.

The reasons for rejecting any estab-

lished rule must always be weighed

against these factors. (Moragne, 90

$.Ct. at 1772)

Justice Harlan's analysis is a proper

starting point for a consideration of the

continued validity of the Vreeland rule.

To begin such analysis the effect of the

Vreeland rule within the territorial waters

of the United States should be considered.

This effect is that if the negligence of a

vessel owner operates to kill his own Jones

Act seaman and an independant contractor's

longshoreman, different measures of recovery

would result if the incident occurred with-

in territorial waters. Recovery under the

Jones Act would be limited by Vreeland, and

eee ee rn eee

the longshoreman's recovery would be con-

trolled by Sea-Land Services, Inc. v. Gaudet,

1974, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d

9, including loss of society. Also, this

would be true of the survivors of any visitor

or passenger recovering under Kermarec v.

Compagnie General Transatlantique, 1959, 358

U.S. 625, 79.S.Ct. 406, 3 L.Ed.2d 550. This

anomaly brings on even more serious problems

in a situation where a joint tort-feasor is

liable with a vessel owner to the survivors

of Jones Act seamen. Contribution under

United States v. Reliable Transfer Co., Inc.,

19735, 421 U.5.. 397, $5 $.Ct. 1708, 44 L.Ed. 2¢

251, would be avoided, because the survivors

of a seaman would not be limited by Vreeland

in their recovery against the joint tort-

feasor who was not a Jones Act employer.

Presumably, Edmonds v. Compagnie Generale

Transatlantique, supra., would apply to

allow the survivors a full recovery against

the non-employer defendant. Whether or not

such a defendant could seek indemnity on the

basis of proportionate fault against the

J'nes Act employer is a serious question.

Consideration of these issues is demanded

by this case, when it is realized that such

factual situations occur more often within

the territorial waters where the maritime

industry requires regular contact between

the various kinds of activity and endeavors

in ports and rivers than on the high seas.

The decision of the Court of Appeals ignores

these problems, and, if it is allowed to

stand, it will result in endless litigation

to resolve these issues.

The consequences of a continuation of

the Vreeland rule, contrasted to its origin,

raises serious doubt of its present useful-

ness. The Vreeland rule was decided within

. 2 In the original opinion, the panel

noted these problems, 585 F.2d at 738-

739, n.8, but, the majority of the en

banc Court did not address these issues.

AE Ee Re A el eo eb oe

the jurisprudential back drop of The Harris-

burg, supra. The relationship of the two

cases is clear from the following language

from Vreeland.

"In Baker v. Bolton, 1 Campb. 493,

Lord Ellenborough ruled that ‘in a

Civil court, the death of a human

being could not be complained of as

an injury." Mobile L. Ins. Co. v.

Brame, 95 U.S. 7/56, 24 L.ed. 580;

The Harrisburg, 119 U.S. 199, 204,

30 L.ed. 358, 359, 7 Sup. Ct. Rep.

140.

The obvious purpose of Congress

was to save a right of action to cer-

tain relatives dependent upon an

employee wrongfully injured, for the

loss and damage resulting to them

financially by reason of the wrong-

ful death. Thus, after declaring

the liability of the employer to

the injured servant, it adds - ‘or

in the case of the death of such

employee, to his or her personal rep-

resentative, for the benefit of the

Surviving widow or husband and child-

ren of such employee; and, if none,

then of such employee's parents; and,

if none, then of the next of kin dep-

endent upon such employee, for such

injury or death,' etc. There is no

express or implied limitation of the

liability to cases in which the death

was instantaneous.

This cause of action is independent

of any cause of action which the de-

cedent had, and includes no damages

which he might have recovered for his

injury if he had survived. It is one

beyond that which the decedent had,

one proceeding upon altogether dif-

ferent principles. It is a liability

for the loss and damage sustained by

relatives dependent upon the dece-

dent. It is therefore a liability

for the pecuniary damage resulting

to them, and for that only."

(Vreeland, 33 S.Ct. at 195)

Since The Harrisburg was overruled by

Moragne, the present validity of this analy-

sis in Vreeland is doubtful. Vreeland, like

The Harrisburg, was an adoption of the

English rule.

"The word 'pecuniary' did not appear

in Lord Campbell's Act, nor does it

appear in our act of 1908. (The

F.E.L.A.) But the former act and all

those which follow it have been con-

tinuously interpreted as providing

only for compensation for pecuniary

loss." (Vreeland, 33 S.Ct. 196)

As with The Harrisburg, the following

statement by Justice Harlan in Moragne

bears with equal force to Vreeland.

"The most likely reason the English

Rule (The Harrisburg) was adopted

in this country without much question

is simply that it had the blessing

of the age." (Moragne, 90 S.Ct. 1780)

Considering its origin and the anomaly

ee Tepe rene Sen ety Pewee

Ave tte aes ot oe eet

ee ee ee ee eee Lee iat i an * ~

A et lian A ala te eee nD er th cnnhtnsets Rte nat 98 wi oe a ree

i. sn on rs le

it creates, which Justice Harlan considered

strange, (Moragne, 90 S.Ct. 1785), the inhi-

bition of the recovery of the survivors of

Jones Act seamen, when seamen are the tradi-

tional wards of the admiralty courts, Garrett

v. Moore-McCormack Co., Inc., 1942, 317 U.S.

239, 63 S.Ct. 246, 87 L.Ed. 239, the Vreeland

case cannot be said to have the "blessing of

the age". 4

The criteria Moragne established for

overruling prior decisions are met when the

result of the Vreeland rule are considered:

1) A continuation of the Vreeland rule will

promote rather than eliminate litigation of

issues in Jones Act cases; 2) Different

measures of recovery for different claimants

does not provide a clear standard for con-

duct of affairs, the shipowner should not

realistically expect that one consequence

will flow from the death of a Jones Act

4. Gaudet, 94 §.Ct. 816, n.21, stating

that 27 of 44 state and territorial wrong-

ful death statutes allow recovery for loss

of society.

seaman and another from a longshoreman; For these reasons, it is submitted that

3) The different measures of recovery based the Vreeland rule on damages should be over-

on technical rules of status without a ration- ruled, so as to bring the remedies of the

al basis for discrimination does not comport Survivors of seamen into line with the sur-

itself with public faith in reasoned and im- ‘ vivors of other classes of decedents within

the territorial waters of the United States.

personal judgments. As stated by Dean Pound:

"Again stare decisis has no legitimate | This is harmonious with Higginbotham's (98

application to doctrines of the law in

of torts built upon a mistaken foun- S.Ct. at 2015) recognition that there will

dation persisting in books after that

foundation has been undermined, which

are out of accord with general prin-

ciples recognized today. So that

if they are rejected the general law

is clarified rather than unsettled

‘ . Anomalies of this sort ought

not to be protected by stare decisis.

(Pound, R., 13 NACCA L.J. 19, 23

'Some Thoughts on Stare Decisis'."

1954.)

be two measufes of recovery for wrongful

etted —

death, one mandated by Congress on the high

seas, and the other developed by the Courts.

Such a rule should apply to all claims re-

PE ee Se ) At tit 3 Sie.

gardless of the status.

Ba,

The majority of the en banc Court's an-

THE COURT OF APPEALS INCORRECTLY

REQUIRE AN UNSEAWORTHINESS FINDING TO

swer that relief should be sought from Con- - !

SUSTAIN A CLAIM UNDER GENERAL MARITIME LAW

gress, 606 F.2d 529, n.13, is not an adequate ie TER

The decision of the majority of the en

answer to the questions presented by this case: ;

banc Court of Appeals relies on The Osceola,

"This Court, in other appropriate

contexts has not hesitated to over-

rule an earlier decision and settle

a matter of continuing concern, even

though relief might have been obtain- Say ieee a

ed by legislation." 95 S.Ct. at 1715, the finding of an unseaworthy condition or

n.is.

gyee, 259 U.S. 158, 25 S.Ct. 483, 47 L.Be.

760, in enunciating a rule which necessitates

a ne ce ee ee

direct vessel owner negligence to sustain an

action under the general maritime law for

wrongful death. This reliance is misplaced.

In Lindgren v. U.S., 1929, 281 U.S. 38, 47,

50 S.Ct. 207, 211, this Court held that the

general maritime law did not provide an

action for wrongful death on the basis of

unseaworthiness.

"The statement in The Osceola, supra.,

175 of 189 U.S., 23 S.Ct. 483, on

which the administrator relies, re-

lates only to the seaman's own right

to recover for personal injuries oc-

casioned by unseaworthiness of the

vessel, and confers no right whatever

upon his personal representatives to

recover indemnity for this death."

(Lindgren v. U.S., 1929, 50 S.Ct. 211)

The distinctions made in The Osceola re-

garding negligence of co-employees and unsea-

worthiness are not applicable to actions for

wrongful death. Moragne v. States Marine

Lines, Inc., 1970, 398 U.S. 375, 90 S.Ct.

1772, 27 L.Ed.2d 339, created the action for

wrongful death under general maritime law.

Moragne specifically held that this judicial-

ly created remedy was available to seamen and

beyond the preclusive effect of the Jones

Act.

"Likewise, the remedy under general

maritime law that will be made avail-

able by our overruling today of The

Harrisburg, seems to be beyond the _

preclusive effect of the Jones Act

as interpreted in Gillespie. The

existence of a maritime remedy for

deaths of seamen in territorial

waters will further, rather than

hinder, ‘uniformity in the exercise

of admiralty jurisdiction'; and, of

course, no question of preclusion of

a federal remedy was before the Court

in Gillespie or its predecessor,

Lindgren v. United States, 281 U.S.

38, ti S.Ct. 207, 74 L.Ed. 686 (1930),

Since no such remedy was thought to

exist at the time those cases were

decided. See Gilmore § Black, supra.,

at 304; cf. Kernan v. American Dredg-

ing Co., 355 U.S., at 429-430, 78 S$

> at 397." (90 S.Ct. 1785, n.12)

Since The Osceola, supra., does not

establish a requirement of an unseaworthi-

ness finding to maintain an action for wrong-

ful death under the general maritime law,

the purposes of Moragne must be considered

before such a requirement is established.

In holding "that an action does lie under

general maritime law for death caused by

violation of maritime duties" (90 S.Ct. 1792)

this Court meant to bring uniformity to this

area of admiralty law. To require a seaman's

survivor to prove unseaworthiness, when every

other class of maritime claimant has no other

basis for recovery other than negligence,

(cf. 33 U.S.C. 905[b]) would result in a

true lack of uniformity. Such a holding

cannot be reconciled with Moragne. The de-

cedent's in Gaudet and Moragne were both

longshoremen, and, if a Moragne action can-

not be maintained on the basis of negligence,

then the 1972 amendments to the Longshoremen

and Harborworkers Act, 33 U.S.C. 901, et seq.,

must be read as a legislative overruling of

Moragne, since unseaworthiness was eliminat-

ed as a basis for longshoremen recovery.

There is nothing in the legislative history

of the 1972 amendments to suggest that this

was the intent of the amendments.

While petitioners in this case did not

allege an action for negligence under the

anand ttn. we

general maritime law in the district court,

the Court of Appeals thoroughly considered

this issue in its en banc decision,” and

the decision relied primarily on The Osceola®

in requiring the unseaworthiness finding.

As previously stated, this was error. But,

further, the doubt which the dissent in

Gaudet had for enlargement of the tradition-

al damages available on the basis of unsea-

worthiness is not present here. The dissent

in Gaudet was primarily concerned with the

nature of the absolute liability which flow-

ed from an unseaworthiness remedy. The

dissent in Gaudet urged that a remedy based

on absolute liability should have limits

which prevent the possibility of punishment

entering into the award. (Gaudet, 94 S.Ct.

- See. Moragne, 90 S.Ct. at 1776-1777,

n. 1.

6. The Osceola, supra., was based on the

fellow-servant rule which has been re-

jected as even a basis for dimunition

of damages recently by this Court.

Edmonds, supra.

at 827-828, Powell, J., dissenting.) Since

petitioners are relying on negligence in this

action, the same policy considerations which

concerned the dissenters in Gaudet are not

present.

By allowing a recovery under general

maritime law based on negligence, this Court

would recognize that the tie the Jones Act

has to the F.E.L.A. is not absolute. Jones

Act cases have never been absolutely tied

to the F.E.L.A. This has been recognized

by this Court in the rescue doctrine in

seaman's cases. (Cortes v. Baltimore Insu-

lar Lines, Inc., 1932, 287 U.S. 367, 535 S.Ct.

173, 77 L.&d. 368; Also, see Brown, Chief

Judge dissenting, Ivy, 606 F.2d 531, n.3,4,

5S §& 6) The F.E.L.A. does not contain any

clear congressional mandate to justify a

refusal to supplement the Jones Act recovery

with a general maritime action based on neg-

ligence.’

Fe It is submitted that since the only

body of federal law concerning the direct

ail toni

The majority of the en banc Court of

Appeals, in refusing to allow an action

based on negligence for wrongful death,

departed from the dictates of Moragne.

This is shown by the following passage from

the majority opinion:

"These statutes were often unwieldy

and not designed to accommodate mari-

time claims; moreover, because they

varied from state to state, the rep-

resentatives of similarly situated

deceased seamen might be awarded

widely varying sums based on the for-

tuity of whether the accident occur-

red within or without the three-mile

limit and, if it were within that

timit, based on the laws of the par-

ticular state where the casualty

occurred. One of Moragne's objec-

tives was to substitute a uniform

current for these unpredictable

eddies.'' (Emphasis added. Ivy, 606

F.2d 527) nice?

employment of a seaman is found in the

Jones Act cases, in this action the gen-

eral maritime action for negligence should

be co-extensive with the Jones Act case

law. This would prevent the need for

the courts to develop a body of different

substantive rules to cover identical

fact situations, and it would recognize

that longshoremen and passengers rarely

face the same hazzards as seamen.

This statement clearly belies a misunder-

standing of the state of the law prier to

Moragne. The survivors of a seaman could

not take advantage of these varying state

remedies, nor any federal remedy for unsea-

worthiness. The Jones Act had a preclusive

effect as to a state remedy and a federal

remedy was not thought to exist. (Gillespie

v. United States Steel Corp., 1964, 379 U.S.

148, 8S S.Ct. 308, 13 L.Ed.2d 199; Lindgren

v. U.S., supra.) This was the strangest

anomaly which Moragne was meant to correct.

Now, if the Court of Appeals decision is

allowed to stand, a stranger anomaly will

be created. The Moragne-Gaudet remedy will,

if an unseaworthiness finding is required,

be only available to the survivors of sea-

men. This is not unfair to the survivors of

seamen where unseaworthiness can be proved,

but it is a tragic full circle from Moragne.

The only way to provent Moragne from becoming

an anomaly itself is to recognize that a

Moragne action can be maintained on the

basis of negligence, and that such an action

is available to both the survivors-of sea-

men and non-seamen within the territorial

waters of the United States.

CONCLUSION

This case presents issue of exceptional

national importance to the various maritime

interests. A review of the decision of the

en banc Court of Appeals is required due to

the results its decision dictates. There

is no rational basis to distinguish between

the survivors of seamen and non-seamen in

actions arising within the territorial

waters of the United States. Such a distinc-

tion is contrary to the dictates of an unan-;

imous Court in Moragne, and it is not sup-

ported by any express mandate by Congress.

The only basis for such a distinction would

be the Vreeland decision, and Vreeland does

not stand as a bar to a recovery of Gaudet

damages under the general maritime law with-

in the territorial waters of the United

States.

For these reasons, a writ of certiorari

should issue to review the judgment and de-

cision of the United States Court of Appeals

for the Fifth Circuit.

Respectfully Submitted:

_ Marvin L. Jeffers

251 Florida, Suite 400

Baton Rouge, LA 70801

504-344-3718

Joshua A. Tilton

r.0, 2908

Baton Rouge, LA 70821

504-766-2899

February, 1980

I, MARVIN L. JEFFERS, one of the attor-

neys for petitioners herein, and a member of

the Bar of the Supreme Court of the United

States, hereby certify that on the eth

day of February, 1980, I served three copies

of the petition for a writ of certiorari on

respendents by mailing the same, through

the United States mail, to counsel of record

for Security Barge Lines, Inc., Philip

Mansour, Post Office Box 1406, Greenville,

MS 38701, and to Amicus Curiae below,

Louisiana Trial Lawyers Association, through

Harvey J. Lewis, 601 Spain St., Baton Rouge,

LA 70802, first Class, postage pre-paid.

I further certify that all parties required

to be served have been served.

February y » 1980.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

NO.

WARNIE LEE IVY ET AL., PLAINTIFFS-APPELLEES,

CROSS-APPELLANTS,

VS.

SECURITY BARGE LINES, INC., DEFENDANT-

APPELLANT, CROSS-APPELLEE

APPENDIX

APPENDIX "A"

WARNIE LEE IVY ET AL., PLAINTIFFS-APPELLEES,

CROSS-APPELLANTS,

VS.

SECURITY BARGE LINES, INC., DEFENDANT-

APPELLANT, CROSS-APPELLEE

Number 76-4130

United States Court of Appeals

Fifth Circuit

APPEALS FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

MISSISSIPPI

Before BROWN, Chief Judge, COLEMAN,

GOLDBERG, AINSWORTH, GODBOLD, CLARK,

RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN,

VANCE, and KRAVITCH, Circuit Judges.*

ALVIN B. RUBIN, Circuit Judge:

We gathered en banc to consider whether

*Judges Fay, Frank M. Johnson, Jr., Garza,

Henderson, Reavley, Politz, Hatchett, And-

erson, Randall, Tate and Sam D. Johnson

did not participate in the consideration of

ordecision in this case. The case was

taken under submission by the court en banc

on June 5, 1979,

damages for loss of society may be recover-

ed by the survivor of a Jones Act seaman

who met death in territorial waters of the

United States as a result of negligence for

which his employer was liable. The settled

Jones Act jurisprudence denying recovery

for this and other elements of nonpecuniary

loss and the absence of any adequate reason

to take a different tack compel us to hold

to the charted course and deny recovery for

this element of damages.

John Ivy, the decedent, was a member of

the crew of the vessel M/V ISSAQUENA until

he was lost and presumably drowned on the

night of August 11, 1975 as he was attempt-

ing to aid a fellow crewman who had fallen

overboard. The vessel and its tow were

then a few miles above Baton Rouge, Louisi-

ana, heading up the Mississippi River.

Decedent's father, Warnie Lee Ivy, in-

stituted this suit under the Jones Act for

negligence and the general maritime law for

unseaworthiness. In answer to special in-

terrogatories, the jury found that the ves-

sel was not unseaworthy, and that John Ivy

died as a result of the negligence of the

defendant but was 50% contributorily negli-

gent himself, and awarded each of his par-

ents $50,000 for loss of support, services,

and society. We agreed to hear the case

en banc to consider only the issue of

whether this award was permissible in the

light of the jury's conclusion that recov-

ery was premised solely on the Jones Act.

[1] In The Osceola, 1903, 189 U.S.

158, 23 S.Ct. 483, 47 L.Ed.: 760, the Su-

preme Court concluded that general maritime

law does not create a cause of action on

behalf of a seaman for the negligence of

his master or fellow crewmen. The Court

held that a "seaman is not allowed to re-

cover an indemnity for the negligence of

the master, or any member of the crew" be-

yond his maintenance and cure, although

under general maritime law he may be entitl-

ed to consequential damages for unseaworthi-

ness of the vessel. Id. at 175, 23 S.Ct.

at 487, 47 L.Ed. at 764. Responding to the

decision, Congress in 1915 enacted the Jones

Act, 46 U.S.C.§ 688, extending to seamen

the remedies made available to railroad

1. The Jones Act, 46 U.S.C. § 688, provides:

Any seaman who shall suffer personal

injury in the course of his employment

may, at his election, maintain an ac-

tion for damages at law, with the right

of trial by jury, and in such action all

statutes of the United States modifying

or extending the common-law right or

remedy in cases of personal injury to

railway employees shall apply; and in

case of the death of any seaman as a

result of any such personal injury the

personal representative of such seaman

may maintain an action for damages at

law with the right of trial by jury,

and in such action all statutes of the

United States conferring or regulating

the right of action for death in the

case of railway employees shall be ap-

plicable. Jurisdiction in such actions

shall be under the court of the district

in which the defendant employer resides

or in which his principal office is

located.

workers under the provisions of the Federal

Employers' Liability Act, 45 U.S.C. § 51 et

seq. (F.B.L.A.).° Congress thereby legis-

latively overruled The Osceola insofar as

it denied to a seaman the right to recover

damages from his employer for negligence

of his co-workers. The Jones Act thus be-

came, and has remained, the sole basis upon

which a seaman or his beneficiaries may sue

his employer for negligence.”

2. The Federal Employers' Liability Act,

45 U.S.C. § 51, provides in part:

Every common carrier by railroad...

Shall be liable in damages to any per-

son suffering injury while he is employ-

ed by such carrier ... or, in case of

the death of such employee, to his or

her personal representative, for the

benefit of the surviving widow or hus-

band and children of such employee; and,

if none, then of such employee's parents;

and, if none, then of the next of kin

dependent upon such employee, for such

injury or death resulting in whole or

in part from the negligence of any of

the officers, agents, or employees of

such carrier .

Fe The Jones Act imposes liability on

the owner of the vessel for injuries or

death resulting from negligence whether

Neither the Jones Act nor the F.E.L.A.

contains any reference to the items of dam-

age that are recoverable in such a suit.

However, in Michigan Central Railroad v.

Vreeland, 1913, 227 U.S. 59, 33 S.Ct. 192,

57 L.Ed. 417, the Supreme Court interpreted

the F.E.L.A. to permit recovery only for

damages that "flow from the deprivation of

the pecuniary benefits which the benefici-

aries might have reasonably received if the

deceased had not died from his injuries."

of the owner directly, vicariously for

the acts of employees who are not sea-

men, and vicariously for the acts of

the master and members of the crew.

In this case, the pleadings, pretrial

order and interrogatories make it clear

that the negligence on which liability

was predicated arose in the navigation

of the vessel. This case does not,

therefore, involve the question and we

express no opinion concerning, whether,

an action for negligence might be brought

against the owner under general maritime

law if the fault were not with the mas-

ter or a crew member, or whether the

Jones Act is the sole remedy for an

employee whose employer is negligent.

EG. Ot: 70,5. 33. S.Ct. 00-1396; $7. 1.80. et .421.

Thus construed, the act permits recovery

for loss of services of the deceased and,

when the beneficiary is a child, for the

loss of the care, counsel, training and

education that it might have reasonably re-

ceived from the parent. As interpreted by

the Court, the act excludes injuries "to

the affections and sentiments which arise

from the death of relatives, and which,

though most painful and grevious to be

borne, cannot be measured or recompensed by

money. It excludes, also, those losses

which result from the deprivation of the

society and companionship, which are equal-

ly incapable of being defined by any recog-

nized measure of value."" Id. at 71, 33 S.

Ct. BO <296,; 57 &.8¢. at 432:

The Court also held that the F.E.L.A.

did not embrace survivorship damages, and

denied the beneficiaries recovery for the

decedent's pain and suffering prior to his

death. Congress anticipated this aspect of

Vreeland by adopting in 1910, prior to the

Supreme Court decision, an amendment to the

F.E.L.A., making the decedent's action sur-

vive for the benefit of the beneficiaries

who would be entitled to wrongful death

damages, Act of April 5, 1910, c. 143, § 2,

36 Stat. 291, now 45 U.S.C. § 59.

In 66 years since the Vreeland decision,

its principle that recovery under F.E.L.A.

is limited to pecuniary damages has remain-

ed a constant roadbed for railway workers

suits.’ The same principle has uniformly

4. See, e.g., Chesapeake & Ohio Ry. v.

Kelly, 1916, 241 U.S. 485, 36 S.Ct.

630, 60 L.Ed. 1117; American R.R. Co.

v. Didvicksen, 1913, 227 U.S. 145, 33

SoGt. 229, 37 LBA. 656: Stark vy.

Chicago, horth Shore & Milwaukee Ry.,

7 Cir. 1953, 203 F.2d 786; Mobile &

Ohio R.R. v. Williams, 1930, 221 Ala.

402, 129 So. 60; Atlantic Coast Line

R.R. v. Daugherty, 1967, 116 Ga.App.

438, 157 S.E.2d 880; Simmons v. Louisi-

ana Ry. & Wav. Co., 1923, 153 La. 405,

96 So. 12; Torchia v. Burlington North-

ern, Inc., Mont. 1977, 568 P.2d 558,

cert. denied, 1978, 434 U.S. 1035, 98

SoGt. FFU, 3% L.BE.2E 783.

CORINNA os coe

Ce ee ee ate

Te ey as a

been adopted with respect to Jones Act

actions.>

$. See, e.g., In re M/V Elaine Jones,

5 Cir. 1973, 480 F.2d 11, 32 reh. grant-

ed, 513 F.2d 911, cert. denied, 1975,

423 U.S. 840, 96 S.Ct. 71, 46 L.Ed.2d

60; Cities Service Oil Co. v. Launey,

5 Cir. 1968, 403 F.2d 537; Igneri v.

Cie de Transports Qceaniques, 2 Cir.

1963, 323 F.2d 257, cert. denied, 1964,

376 U.S. 9469, 84 &.Ct. 965, 11 L.Ed.2¢4

969; Sabine Towing Co. v. Brennan, 5

Cir. 1936, 85 F.2d 478, cert. denied,

299 U.s. 599, 3? 8.6. 19%, Gh &. 84.

441; United States v. Boykin, 5 Cir.

1931, 49 F.2d 762; Thompson v. Offshore

Co., S.D.Tex.1977, 440 F.Supp. 752;

Petition of Risdal & Anderson, Inc., D.

Mass., 1968, 291 F.Supp. 353; Petition

of Southern Steamship Co., D.Del.1955,

135 F.Supp. 358; American Barge Line Co.

v. Leatherman's Administratrix, 1947,

306 Ky. 284, 206 S.W.2d 955; Standard

Products, Inc. v. Patterson, Miss.1975,

2,7 $0.26 376.

In addition, we have denied damages

for nonpecuniary loss when a seaman is

injured and survives by refusing to

permit his spouse to recover for loss

of consortium. Christofferson v. Halli-

burton Co., 5 Cir. 534 F.2d 1147.

Nothing in this case, or in the juris-

prudence, is sufficient to plot a change in

the Jones Act course. The only question

that can be raised concerning it comes as a

result of a trident of death cases, begin-

ning with Moragne v. States Marine Lines,

anc., 1970, 398 U.S. 375, 90 S.Ct, 1772,

27 L.Ed.2d 339. The Supreme Court there

recognized for the first time a cause of

action for wrongful death based on general

maritime law. Before then death arising

from unseaworthiness could be the basis of

a suit under the Death on the High Seas Act,

46 U.S.C. 761, which is limited to events

occurring outside the territorial waters of

the United States; if the accident occurred

within territorial waters, the plaintiff

was forced to resort to state wrongful death

statutes. These statutes were often un-

weildy and not designed to accommodate mari-

time claims; moreover, because they varied

from state to state, the representatives

of similarly situated deceased seamen might

he awarded widely: varying sums based on the

fortuity of whether the accident occurred

within or without the three-mile limit and,

if it were within that limit, based on the

laws of the particular state where the casu-

alty occurred. One of Moragne's objectives

was to substitute a uniform current for

these unpredictable eddies. The Court left

open the issue of appropriate damages under

this new cause of action, noting, "If still

other subsidiary issues should require reso-

lution, such as particular questions of the

measure of damages, the courts will not be

without persuasive analogy for guidance.

Both the Death on the High Seas Act and the

numerous state worngful-death acts have been

implemented with success for decades." 398

U.S. at 408, 90 S.Ct. at 1792, 26 L.Ed.2d

at 361.

In the wake of Moragne, some circuit

courts concluded that the uniformity with

which the Supreme Court had been concerned

in that case involved uniform bases of lia-

bility rather than standard damage recoveries,

and held that nonpecuniary damages could be

awarded by utilizing state remedies to supple-

ment the new Moragne cause of action. See,

e.g., Dennis v. Central Gulf Steamship Corp.,

§ Cir. 1972, 453 F.2d 137 cert. denied, 409

U.S. 948, 93 S.Ct. 286, 34 L.Bd.2Zd 218;

Greene v. Vantage Steamship Corp., 4 Cir.

1972, 466 F.2d 159. Others concluded that

the policy of uniformity embodied in Moragne

required that the statutory and judicially-

developed limitation to pecuniary damages

of DOHSA and the Jones Act be extended to

claims under general maritime law. See, e.

g-, Simpson v. Knutsen, 9 Cir. 1971, 444 F.

2d 523; In re United States Steel Corp., 6

Cir. 1970, 436 F.2d 1256, cert. denied,

1971, 402 U.S. 987, 91 S.Ct. 1649, 29 L.Bd.

2d 153.

bet RETNA Nas POR TT OEE fet SE ST ee

The Supreme Court decided that nonpecun-

iary damages could be recovered by survivors

of a longshoreman for death resulting from

unseaworthiness in Sealand Services, Inc. v.

Gaudet, 1974, 414 U.S. 573, 94 S.Ct. 806, 39

L.Ed.2d 9. There the decedent had, while

living, recovered for injuries suffered on

State waters, but later died as a result of

the same event; his widow sued under Moragne.

Although the Court refused to allow double

recovery, it did hold the widow entitled to

compensation for pecuniary damages, includ-

ing loss of support, and services, as well

as funeral expenses. The Court then turned

to the nonpecuniary claim for loss of soci-

ety and, noting that recovery for this in-

tangible deprivation had been available

under the majority of state wrongful death

Statutes prior to the decision in Moragne,

it permitted the award. Id. at 587-90, 94

S.Ct. at 816-17, 39 L.Ed.2d at 22-24.

; : bu i ‘

Neither Moragne nor Gaudet involved a t one context, the coupling of unseaworth

| iness (capable of producing Gaudet) with a

Jones Act seaman. Each of them dealt only

; . . J i j ;

with an unseaworthiness claim asserted ones Act claim to give birth to Jones Act

under general maritime law. Neither of | damages for negligence. To consider the

Moragne-Gaudet result a supplemental remedy

them intimates even in dicta a change in

to j j a

the Jones Act rule. Other reasons, some- the Jones Act when the suit is for neg

; ligence i |

what more complex, appear to preclude inter- & only is not to supplement the statute

: , but to al i i i é

preting the Jones Act as being supplemented ter the interpretation it has con

tinuously received.

by Moragne-engendered negligence action

- . W :

for damages if (but only if) death occurs e turn then to the most recent signal

: P P from th i isi i

in territorial waters or on land. Moragne e Supreme Court, its decision in

Mobil Oil Corp. v. Higginbotham, 1978, 436

did not create or even discuss an action for

negligence; it dealt only with death occa- i uU.3. 618, 98 S.G£. 2010, 56 L.Ed.2d 1

sioned by unseaworthiness. The suggestion There suit was brought by several claimants

that the Jones Act measure of damages can seeking recovery for the deaths of their

Pe eee a ee oe

be supplemented by the Moragne-cause-of- husbands in a helicopter crash outside

action-Gaudet-damages rule will not bear United States waters. One of the passengers,

analysis;° that hybrid could be spawned in Shinn, was found by the district court to

tid a PI esa) Bintan atlas re tree ke

be a Jones Act seaman and his widow was

0. See generally Maraist, Maritime |

Wrenatul Death - Wisciabothan Reverses allowed to sue under the Jones Act, DOHSA,

: Trend and Creates New Questions, 39 La.

L.Rev. 81 (1978); Swaim, Requiem For

Moragne: The New Uniformity, 25 Loy.

L.Rev. 1 (1979). Compare Note, 53 Tul.

L.Rev. 254, 263 (1978). 15

and general maritime law. Representatives

EEN AT A OCT NM RTE SOE RENN ERAS RE a” MPR Mae Teme TERE TET ore tnt or rE eM Re

of two other passengers sued under DPHSA

and general maritime law. On appeal, one

of these two passengers, Nations, was also

found to be a Jones Act seaman, and his

widow's claims were remanded to the district

court for a determination of damages under

the Jones Act. Id., 5 Cir. en banc 1977,

S45 F.2d 422, 433. All were awarded damages

premised on Mobil's negligence, including

an amount for loss of society.

The Supreme Court held that the case

was distinguishable from Gaudet because of

the place of the death, and refused to

allow the award for loss of society to

stand. Noting that Congress had specifi-

cally limited damages under DOHSA-to pecun-

iary loss, the Court found the goal of uni-

formity insufficiently compelling to negate

clear legislative intent: "Congress did

not limit DOHSA beneficiaries to recovery

of their pecuniary losses in order to en-

courage the creation of nonpecuniary

supplements."' 436 U.S. at 625, 98 S.Ct.

at 2015, 56 L.Ed.2d at $87. The Court

also commented, "It is true that the

measure of damages in coastal waters will

differ from that on the high seas, but even

if this difference proves significant, a

desire for uniformity cannot override the

statute," id. at 624, 98 S.Ct. at 2015, 56

L.Ed.2d at 587; but expressed the belief

that the difference between a damage award

including loss of society and one without

it could be "primarily symbolic" and that

the disuniformity created by the opinion

may not have "a great practical signifi-

cance." Id. at 624 n.20, 98 S.Ct. at 2015,

56 L.Ed.2d at 587. Thus in Higginbotham,

two claimants, Mrs. Shinn and Mrs. Nation,

whose right to recover was based only on

the Jones Act because recovery was premis-

ed solely upon negligence,’ were denied

vs We note that the negligence proved

was not negligence of a master or crew

member. See n.3, supra.

damages for loss of society. While the

Jones Act issue was not discussed in the

opinion, it was raised squarely by the facts,

and urged on application for rehearing.

[2,3] The Jones Act remedy for negli-

gence remains unaffected by either the

_rules governing damages recoverable for un-

seaworthiness in general maritime law or

by changes in those rules.® The Jones Act

applies in equal force to the death of

8. A seaman may, of course, joint a

claim for unseaworthiness under general

maritime law with his Jones Act claim

for negligence. We do not here reach

the issue of whether after Higginbotham

nonpecuniary damages may be recovered

in such an action if unseaworthiness

is found. Ivy recovered solely for

the negligence of decedent's employer.

General maritime law does not provide

a cause of action for negligence to a»

seaman against his employer supplemen-

tal to that created by the Jones Act;

The Osceola has never been overruled.

Therefore, to the extent that Gaudet

remains seaworthy after Higginbothan,

it can have no impact when, as here,

no general maritime law (Moragne-type)

claim is involved.

a ee eee eee | a

seumen on the high seas, ? in domestic ter-

ritorial waters, 9

waters: and on land if suffered in the

in foreign territorial

course of employment as a seaman. ?? None

can doubt, following Higginbotham, that, if

a seaman dies on the high seas, his surviv-

ors can recover only pecuniary damages.

To adopt the suggestion that, inferential-

ly, the Jones Act has been amended by

Gaudet in respect to death on domestic

a. E.g., Antypas v. Cia Maritima San

Basilo, $.A., 2 Cir. 1976, 541 F:24

307, cert. denied, 1977, 429 U.S. 1098,

97 $.Ct. 3236, 31 L.Bd.2é 545.

10. E.g., Moragne v. States Marine Lines,

inc., 1970, 396 U.S. 3f3, 393 G.i2, FP

$.Ce. 1772, 1765, 26 &.86.28 339, 394.

Ads E.g., Farmer v. Standard Dredging

Corp., D.Del.1958, 167 F.Supp. 381.

2. E.g., O'Donnell v. Great Lakes Dredge

& Dock Co., 2943, 326 Usd. 36; °635 8.Ct.

488, 87 L.Ed. 596; Hopson v. Texaco,

Enc., £966, 383 0.8. 262, 36*8.Ctv: 765,

15 L.Ed.2d 740; Vincent v. Harvey Well

Setv., 3 Cie. 197i, 643 F.2a 266.

territorial waters would be to approve a

different measure of damages under the

same federal statute dependent on where

death occurred. Neither logic nor the

jurisprudence under the gemini Jones Act-

F.E.L.A. can sustain such a result. Al-

_ though many statutes state different rules

to apply to different geographical areas

and courts have, absent legislation, for-

mulated rules that vary territorially in

application, it would be chimerical to

convert a single statute into different

applications in different geographical

areas after it has been applied uniformly

throughout our nation and in all the for-

eign waters to which our ships travel for

two-thirds of a century.

[4] For these reasons, we conclude

that the Jones Act is a vessel designed

for special purposes; it is not certified

for Gaudet cargo, and it does not permit

the recovery in a wrongful death action

of damages for loss of society of a sea-

man.?°

ih There is superficial appeal in the

argument that to award damages for loss

of support would be humanitarian, and

the correlative implication that to

deny it is callous. The same emotive

semantics would characterize as par-

simonious and unfeeling any denial of

any sort of nonpecuniary damage; a-

wards for grief and anguish, for loss

of consortium, for loss of affection

or for any other sort of emotional

distress could be justified by the

same appeal that sentiment should dis-

regard history and jurisprudence.

The Jones Act not only implicitly

limits the kind of damage that may be

recompensed; by incorporating remedies

available under the F.E.L.A., it ex-

pressly permits only certain persons

to receive even redress for pecuniary

losses. A dependent, widowed mother

may receive nothing for the death of

her sole support if her son was married;

a dependent, enfeebled aunt, who was

actually being supported by her nephew,

may recover nothing if her compassionate

relative also had a parent, even a

wealthy and completely self-supporting

one. See 45 U.S.C. § 51. If sheer

compassion alone dictates a change in

the scope of the Jones Act with respect

to items of damage, after more than six

decades of consistent interpretation,

or with respect to beneficiaries, for

whom an even more compelling appeal can

be addressed to Congress, as the author

of the Jones Act, for it is only under

the authority of that statute that the

plaintiff has a right to be in court.

The panel opinion, 5 Cir., 585 F.2d

732, is reinstated as to other matters dis-

cussed in it. The decision is REVERSED and

the case is REMANDED FOR A NEW TRIAL.

JOHN R. BROWN, Chief Judge, with whom

KRAVITCH, Circuit Judge, joins, dissenting:

Today a majority of this Court destroys

the possibility of recovery in a wrongful

death suit for loss of society under the

Jones Act for the death of a seaman in

territorial waters. In so doing, the

Court drains Moragne and Gaudet of their

vitality and make much ado of Higginbotham's

silence. The end result is a decision con-

trary to all humanitarian instincts contin-

uously reflected in the admiralty, with

P 1

the possible exception of The Harrisburg

which took 85 years to scuttle.

1. 1886, 119 U.S. 199, 7 S.Ct. 140,

L.Ed. 358.

The general maritime law was devoid of

a wrongful death remedy for seamen for many

years. Courts wrestled with the lack of

such a remedy, recognizing the inequity

and inhumanity of that void, and developed

a clutter of conflicting exceptions to the

rule. In an effort to correct the anoma-

lies and confusion engendered by this lack

of a wrongful death remedy, the Supreme

Court handed down Moragne v. States Marine

Lines, Inc., 1970, 398 U.S. 375, 90 S.Ct.

1772, 27 L.Ed.2d 339, 1970 AMC 967, over-

ruling its prior, restrictive and ancient

decision in The Harrisburg, 1886, 119 U.S.

199, 7 S.Ct. 140, 30 L.Ed. 358. In Moragne

the Court considered the claim of a widow

of a Sieracki seaman who was killed while

working as a longshoreman aboard an ocean-

going vessel on navigable waters within the

State of Florida. Embracing a modern and

a i Seas Shipping Co. v. Sieracki, 1946,

328 U.S. 85, 66 S.Ct. 872, 90 L.Ed.

1099, 1946 AMC 698.

humane approach, the Court permitted the

widow her claim, recognizing a new cause

of action for recovery under general mari-

time law.

Four years later, in Sea-Land Services,

Inc. v. Gaudet, 1974, 414 U.S. 573, 94 S.Ct.

806, 39 L.Ed.2d 9, 1973 AMC 2572, the Supreme

Court delineated the measure of damages

available in a Moragne maritime recovery.

In Gaudet, as in Moragne, a widow of a

Sieracki seaman killed while working as a

longshoreman on Louisiana navigable waters,

brought a wrongful death action. The

Court held that certain nonpecuniary losses-

including loss of society - could be recov-

ered. Again, taking an openhanded approach,

the Court recognized the propriety of com-

pensation for certain losses of a nonpecun-

iary nature.

Together, Moragne and Gaudet present

an expansive approach to recovery of non-

a Rr Se

pecuniary damages. They recognize the

"humane and liberal character of proceed-

ings in admiralty," The Sea Gull, 21 F.Cas.

909 (No. 12,578) (C.C.Md. 1865), quoted in

Moragne, supra, 398 U.S. at 387, 90 S.Ct.

at 1781, 26 L.Ed.2d at 349, 1970 AMC at

977. And, repeatedly, they underscore the

"special solicitude for the welfare of

those men who [undertake] to venture upon

hazardous and unpredictable sea voyages."

Moragne, supra, at 387, 90 S.Ct. at 1780,

26 L.Ed.2d at 349, 1970 AMC at 977. Gaudet,

supra, 414 U.S. at 577 and 588, 94 S.Ct. at

811l- and 816, 39 L.Ed.2d at 17 and 23, 1973

AMC at 2575 and 2584.

It is this framework that our case must

be analyzed. It is true, as the en banc

Court points out, that in both Moragne and

Gaudet the Supreme Court was primarily con-

cerned with general maritime law and that

neither case specifically involved a Jones

Act seaman. But it is not true, despite

the insistence of the en banc Court, that

Moragne and Gaudet can be pigeonholed wholly

apart from the Jones Act.

Rather, the Supreme Court intended to

apply Moragne and Gaudet to the Jones Act,

encompassing damages for loss of society

within the purview of a wrongful death

Jones Act recovery. Moragne's creation of

a wrongful death remedy was predicated

upon a desire to bring the admiralty law

in line with modern notions of tort com-

pensation. In particular, the states had

enacted wrongful death laws, while the

seaman had no redress for wrongful death

under general maritime law. In Gaudet,

the Court also looked to the modern trend

and to the types of losses recoverable

under state law in deciding the scope of

the Moragne recovery. It is these develop-

ments in the law, and their innate ration-

ality, that led the Supreme Court to de-

. cide Moragne and Gaudet. These very

same concerns should lead the en banc Court

to apply Moragne and Gaudet to the Jones

Act.

Until today, this Court has applied

Moragne and Gaudet to the Jones Act, per-

mitting the recovery of nonpecuniary dam-

ages. In Landry v. Two R. Drilling Co.,

5S Cir., 1975, 511 F.2d 138, 1975 AMC 2137,

rehearing denied, 517 F.2d 675, 1975 AMC

2135, we recognized the propriety of non-

pecuniary Gaudet damages where there is

liability under both a general maritime

claim for unseaworthiness and a Jones Act

claim. And, in Petition of M/V ELAINE

JONES, 5 Cir., 513, F.2d 911, 1975 AMC

2098 (on petition for rehearing), cert.

denied, 1975, 423 U.S. 840, 96 S.Ct. 71,

46 L.Ed.2d 60, involving claims of both

unseaworthiness and the Jones Act, the

Court made no distinction between the two

claims. The panel remanded the case to

allow an award for loss of society. In

remanding, the panel relied upon Gaudet,

indicating that Gaudet very much applies

to Jones Act claims.

This is consistent with the broad pur-

poses of the Jones Act. In enacting the

Jones Act, Congress intended. '"'to provide

liberal recovery for injured workers."

Kernan v. American Dredging Co., Inc. 1958,

355 U.S. 426, 432, 78 S.Ct. 394, 356, ¢

L.Ed.2d 382, 388, 1958 AMC 251, 256. Sea-

men are deemed wards of the admiralty and

the Jones Act is "liberally construed to

carry out its full purpose, which was to

enlarge admiralty's protections to its

wards."' Garrett v. Moore-McCormack Co.,

Inc., 1942, 317 U.S. 239, 248, 63 S.Ct.

246, 252, 87 L.Ed. 239, 248, 1942 AMC 1645,

1652. Indeed, the Jones Act is not a static

remedy, but one to be "developed and en-

larged to meet changing conditions and

changing concepts of industry's duty to-

ward its workers." Kernan, supra, 355 U.S.

at 432, 78 S.Ct. at 3598, 2 L.Bd.24 at. 588,

1958 AMC at 256.

In reaching its decision, the en banc

Court relies heavily on the 1913 decision

in Michigan Central Railroad v. Vreeland,

42? U.S. .59, 335 S.Ct. 192, 57 41.8e. 417,

interpreting the Federal Employers' Liabil-

ity Act, 45 U.S.C.A. § 51, et seq. (FELA).

Such reliance is misplaced. Despite the

statutory tie between FELA and the Jones

Act, 46 U.S.C.A. § 688, the two are not

necessarily nor immutable linked. There

was drift away from Vreeland prior to

Gaudet, but Gaudet surely marked the end

of the anchorage between Jones Act recov-

eries and Vreeland.

To be sure, FELA case law has often

provided a persuasive starting point for

analyzing Jones Act claims.> But in gen-

eral, "The admiralty has led, not

. Kernan v. American Dredging Co.,

supra.

4 The seaman is thought to be

followed."

subject to greater risks and inconvenience

than the railroad worker. Accordingly, the

Jones Act has frequently granted relief

where the FELA has not. Thus the employer's

defense of assumption of risk of the ship-

owner's negligence was eliminated in Jones

Act cases, while the FELA continued to per-

q .

mit this defense.” And in Cox v. Roth,

1955, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed.

260, 1955 AMC 942, the Court went beyond

the FELA to allow a Jones Act recovery

4. China Union Lines, Ltd. v. A. O.

Andersen & Co., 5 Cir., 1966, 364 F.2d

769, 798, 1966 AMC 1653, 1695 (Brown,

J., concurring in part and dissenting

in part) (different context).

De The Arizona et al. v. Anelich, 1936,

298 U.S. 110, 56 S.Ct. 707, 80 L.Ed.

1075, 1936 AMC 627; Beadle v. Spenser,

1936, 298 U.S. 124, 56 S.Ct. Faz, Se

L.Ed. 1082, 1936 AMC 635. Robinson

concludes that these cases “show that

the Supreme Court is not so much trans-

plaintin»s the railroad statute with its

railroad setting as it is growing the

transplanted act in its new admiralty

environment." G. Robinson, Admiralty

314 (West 1939).

against the estate of the deceased employer.

Proceeding specifically to Vreeland, it

is true that for many years courts have

repeated Vreeland's language that only

"pecuniary" damages are permitted. Yet

Jones Act recovery has been, nevertheless,

subtly but effectively expanded. First,

Vreeland's definition of "pecuniary" was

read so as to encompass what were at one

6. Other examples of the consistent

lead which the Jones Act has taken

over FELA include: the extension of a

Jones Act remedy to dock workers - in

contrast to restrictive FELA interpre-

tation of the definition of railroad

workers, Butler v. Whiteman, 1958, 356

U.S. 271, 78 &8.€Ct. 734, 2 L.Bd.2d 754,

2 L.Ed.2d 754, 1959 AMC 2566; survival

of the nonrailroad remedy of maintenance

and cure after passage of the Jones Act,

Cortes v. Baltimore Irsular Line, Inc.,

BUsay SOF Bibs 205 FS B.CO. B73, 77

L.Ed. 368, 1933 AMC 9; and the judicial

creation of a-~Jones Act rescue doctrine,

not found in FELA cases. Cortes v.

Baltimore Insular Line, Inc., Supra

(dictum); Gardner v. National Bulk

Carriers, Inc., 4 Cir., 1962, 310 F.24

284, 1963 AMC 29 (en banc), cert. denied,

Apes. ora Vee. 9143, 83 8:6. 728; 9 L.

Ed.2d 721.

time essentially nonpecuniary losses.’

Second, juries have been permitted to

hear evidence which, although tangentially

related to "pecuniary" losses, is in fact

highly probative of nonpecuniary losses.®

After Moragne was decided, admiralty

decisions drifted much farther from Vree-

land's limitation on damages.” Then came

ua This judicial sleight of hand is

well-demonstrated by the fact that ad-

miralty courts began awarding damages

for the deaths of minor children. E.g.

Complaint of Farrell Lines, Inc., S.D.Ga.,

1975, 389 F.Supp. 194, 1976 AMC 1684.

As In re Sincere Navigation Corp., E.D.

La., 1971, 329 F.Supp. 652, 655 & n.8,

1972 AMC 482, 485 & n.8 (Rubin, J.)

points out, these awards could not come

about unless the courts were awarding

damages for nonpecuniary losses.

8. E.g., Petition of Risdal & Anderson,

Inc., 1968, D.Mass., 29) F.Supp. 353,

358, 1968 AMC 2474, 2479. See generally

W. Prosser, The Law of Torts, §127, at

907-08 (4th ed. 1971) (jury nullification).

9. Indeed, two leading opinions by then

District Judge Rubin come close to repud-

iating Vreeland's principle (although

the cases were not specifically under

the Jones Act). In re Sincere Naviga-

tion, supra; Dennis v. Central Gulf Steam-

shies Corp., &.0.La., i971, 323 F. Supe.

Gaudet, which permitted recovery of the non-

pecuniary loss of society at issue here.

Liability in Gaudet was predicated on un-

seaworthiness, but, as discussed above,

Gaudet necessarily applies to the Jones Act.

Not only does the analysis above show that

Gaudet controls in Jones Act cases involving

loss of society, but a close reading of the

majority and dissenting opinions in Gaudet

makes clear the departure from Vreeland.

See G. Gilmore §& C. Black, The Law of

Admiralty 371-72 (2d ed. 1975).

First, the Gaudet dissenters state:

"Because of its relationship to the FELA

. . « , the Jones Act also has been read

as forbidding recovery of the sentimental

losses approved by the Court today." 414

943, af2 "4, 5 Cée., 432 7,28: 237, i072

AMC 330, cert. denied, 1972, 409 U.S.

948, 93 S.Ct. 286, 34 L.Ed.2d 218. See

also In re Farrell Lines, Inc., E.D.La.,

1971, 339 F.Supp. 91. But see Petition

of M/V ELAINE JONES, 5 Cir., 1973, 480

F.2d 11, 33-34, 1973 AMC 843, 870-71

(modified upon rehearing, after Gaudet

was decided, 513 F.2d 911, 1975 AMC 2098);

p. » Slip op.p. 1059.

U.5. at 606, 94 S.Ct. at 825,.39 L.Ed.24 at

33, 1973 AMC at 2597-98 (Powell, J.) (empha-

Sis supplied). In an accompanying footnote,

the dissenters cite Vreeland. The dissen-

ters cite Vreeland. The dissenters thus

decry the majority's "repudiation" of "(t)he

traditional admiralty view . . . that such

pecuniary damages are not recoverable under

the... . Jones Act." Id, at: G05, :94.8.Ct,

at 825, 39 L.Ed.2d at 32, 1973 AMC at 2597.

Although one does not always necessarily

say what the dissenters say it says, the

dissenting Justices were in an excellent

position to see exactly what the majority

was doing and the consequences to existing

decisions. ?°

10. It is certainly true that the Gaudet

dissenters also felt that the majority

was repudiating the pecuniary loss limi-

tation expressly contained in the Death

on the High Seas Act (DOHSA), and this

portion of the dissent was relied upon

in Law v. Sea Drilling Corp., 5 Cir.,

E9/3, 323 F.2d 793, 796, 1977 Amc 2394,

2397 (on rehearing) (Law II). Higgin-

botham demonstrated that this reliance

Second, the opinion of the Court in

Gaudet itself indicates that Vreeland's linm-

itations are no longer to be followed. The

Gaudet Court explicitly rejects arguments

which caused early English Courts to add a

pecuniary loss limitation to Lord Campbell's-

type Acts. Ibid. at 588-90, 94 S.Ct. at

816-817, 39 L.Ed.2d at 23-24, 1973 AMC at

2584-86. In construing FELA, Vreeland re-

lied upon those early English cases, and

the Gaudet Court expressly recognizes that

fact. Ibid. at 582 § 586 n.18, 94 S.Ct. at

813 §815 n.18, 39 L.Ed.2d at 19 §& 22 n.18,

1973 AMC at 2579 §& 2582 n.18. Thus it can-

not be denied that Gaudet totally rejects

the policies upon which Vreeland was based.

on the Gaudet dissent was misplaced,

since Higginbotham effectively over-

ruled Law II. But because Gaudet in-

volved territorial waters-where DOHSA

could not apply but where the Jones Act

could-and because both the dissent and

majority focused more on the Jones Act

and Vreeland than on DOHSA, reliance

on the Gaudet dissent is appropriate

in this case.

Moreover, Gaudet draws a careful distinction

between judge-made limitations on damages

and those enacted by state or federal leg-

islatures, arguably presaging Higginbotham.

see, e.g., ibid. at 585-88 § n.22, 94 S.Ct.

St: 624-617 @& we. 22, 39 Li Bd. 2d at 21-23 .%

n.22, 1973 AMC at 2582-84 §& n.22. Gaudet

Clearly places the Vreeland limitation into

the judge-made category, which the Court

then proceeds to "shape [in order to] com-

port with the humanitarian policy of the

maritime law . ."" Ibid. at 588, 94 S.Ct.

at 816, 39 L.Ed.2d at 23, 1973 AMC at 2584.

is S

Unlike the en banc Court, I do not be-

lieve the recent but narrow holding in

Mobil Oil Corp. v. Higginbotham, 1978, 436

U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581,

1978 AMC 1059, is controlling here. The

en banc Court makes a mountain of the

Supreme Court's molehill of silence. I

cannot read so much into so little.

In Higginbotham, the Supreme Court

granted Mobil's writ of certiorari on the

sole question of:

Whether the maritime cause of

action for deaths occurring with-

in a state's territorial waters

created by this Court in Moragne

completely replaces the statutory

cause of action for death mandat-

ed by Congress with respect to

deaths occurring within the geo-

graphical scope of the Death on

the High Seas Act.

Mobil Oil's Writ Application. Clearly,

Mobil Oil did not ask the Court to even

consider the question of damages under the

Jones Act.

Nor did the Court depart from the rea-

son it granted certiorari. The Court based

its decision entirely on DOHSA. The entire

opinion is cast in terms of an analysis of

congressional intent under DOHSA. As the

en banc Court itself points out, the Supreme

Court did not even discuss the Jones Act in

the case. P. » slip op.p. 1061.24

Nonetheless, even though Higginbotham

involved the high seas, even though the

opinion was based entirely on DOHSA and

even though the Jones Act was nowhere dis-

cussed in the Supreme Court opinion, the

en banc Court reads in Higginbotham a

holding of the law applicable to the Jones

Act and applicable in territorial waters.

The en banc Court makes this quantum leap

by pointing out that "While the Jones Act

issue was not discussed in the opinion, it

was raised squarely by the facts..."

Peta Ny sis op.p. 1061. Specifically,

the en banc Court adopts the reasoning

of the panel opinion in Ivy, which points

11. See Note, A Post-Higginbotham

Analysis-Ivy v. Security Barge Lines,

Inc., 4 Maritime Lawyer 149, 152 ("(T)

t is noteworthy that nowhere in Higgin-

botham is there any consideration of

the Jones Act status of one of the

victims.").

out that Higginbotham did not affirm as to

the representatives of Shinn, even though

Shinn sued under the Jones Act as well as

under DOHSA. Ivy v. Security Barge Lines,

ee. 3 Che... 207e, Bee Fide ton, Teer

Therefore, the panel reasoned, the Supreme

Court must have held explicitly that non-

pecuniary damages are not recoverable under

the Jones Act.

I think a more reasonable interpreta-

tion of Higginbotham is that the Supreme

Court passed no judgment on the measure of

12 It consid-

damages under the Jones Act.

ered solely the DOHSA issue and then re-

versed and "remanded for further proceed-

ings consistent with this opinion," 436 U.S.

a2. See Maraist, Maritime Wrongful Death-

Higginbotham Reverses Trend and Creates

New Questions, 1979, 39 La.L.Rev. 81,

91-92 ("Nowhere in Higginbotham did the

Supreme Court allude to the Jones Act

status of Shinn and his beneficiaries

- « « « Consequently, the Ivy court

may have read too much into the Court's

silence in Higginbotham.").

at 626, 98 S.Ct. at 2015, thereby leaving 14

has to give way to DOHSA.

open to the Court of Appeals, or on its

The result of the Court's reading of

direction the District Court, the possibili-

Higginbotham is to seriously undermine

ty of Shinn's representatives recovering

13 Gaudet in its application to death on ter-

under the Jones Act. All that the Court

ritorial waters. Despite the en banc

held was that as between Moragne and DOHSA,

Court's claim to the contrary, p. - S229

Congress intended that DOHSA should govern —

; op.p. 1061, the representatives of Shinn

in wrongful death recoveries on the high

recovered not only under DOHSA and the

seas. The fact that the Supreme Court does

: Jones Act, but under the general

not even discuss the Jones Act provides

strong support for this interpretation. 14. Even assuming that the Supreme

Court in Higginbotham did interpret

Alternatively. the most the Court in the Jones Act as it applies to the

high seas, there is still no basis

Higginbotham could have been holding is for extending this holding to a Jones

J Act death arising on territorial navi-

that in a wrongful death action involving gable waters. The en banc Court is no

' doubt concerned about a lack of uni-

a death on the high seas, DOHSA-where ap- formity. Yet in language which the en

. banc Court itself quotes, the Court in .

plicable- is exclusive and the Jones Act . Higginbotham makes clear that "the

measure of damages in coastal waters

will differ from that on the high seas."

The Jones Act death claim was left 436 U.S. at 624, 98 S.Ct. at 2015, 56

initially to the Court of Appeals. On L.Ed.2d at 587, 1978 AMC at 1064-65.

remand this Court simply remanded the Thus it is simply not the case that to

case to the District Court for consid- reach the humanitarian result, it is

eration in light of the Supreme Court's necessary to “disregard history and

mandate. In the District Court the jurisprudence." P. ~ifehh. B1ip op.

case was thereafter settled with no p. 1062, n.13.

Court ever undertaking to determine

whether, or to what extent, the Jones

Act recoveries were subject to an over-

riding DOHSA restriction.

40 in

maritime law as well.

Applying the panel

Court's extrapolation approach regarding

the Jones Act (an approach that is implicit-

ly affirmed by the en banc Court), the

Supreme Court must have heid that nonpecun-

iary damages are not recoverable under gen-

eral maritime law, otherwise it would have

affirmed as to the representatives of Shinn.

Applying this approach to a death on terri-

torial waters, a Court would have to hold

nonpecuniary damages may not be recovered

by the representatives of a Jones Act sea-

man who died on territorial waters when

) §. As the District Court stated:

We hold therefore that. .

there be judgment in favor of

the representatives of Shinn a-

gainst Movil under the Jones Act,

the Death on the High Seas Act

and the General Maritime Law.

Higginbotham v. Mobil-0Oil Corporation,

W.D.La., 1973, 357 F.Supp. 1164, 1178.

The Court of Appeals decision also recog-

nized that the representatives of Shinn

had recovered below under DOHSA, The

Jones Act, and general maritime law.

545 F.2d at 424-25, 1977 AMC at 293.

the claim is expressly brought and recovery

sustained under the general maritime law.

Guadet would thus be consigned to the Briney

deep alongside the Harrisburg.

Moragne takes on some leaks too. For

against the efforts of Moragne to eliminate

the irrational anomalies, Moragne, 398 U.S.

at 395-96, 90 S.Ct. 1772, the en banc Court's

holding introduces a new one. Under Gaudet,

the representatives of a Sieracki seaman,

whose rights are derived from the relation

of ship and seaman, could recover damages

for nonpecuniary losses from an accident in

territorial waters under the general mari-

time law, but the representatives of a Jones

Act seaman in the same situation could not.-!

16. Indeed, the panel opinion in Ivy ex-

plicitly states that Jones Act seaman's

survivors are limited to pecuniary dan-

ages, even when actions are brought under

both the Jones Act and under the general

maritime law. 585 F.2d at 738-39 n.8.

17. See Maritime Lawyer Note, supra,

note 11, at 153-54 (discussing this and

other anomalies).

The en banc Court's reluctance to ap- ' :

recovery due to location of the accident

ply Moragne and Gaudet to the Jones Act is

over the anomaly of allowing representa-

based on a desire for uniform application ’ ; ,

tives of a Sieracki seaman to recover dam-

of the Jones Act, and the result is a uni- ; : ; :

E ages disallowed representatives of a Blue

formity of sorts: the representatives of

Water Jones Act seaman. In short, I would

Jones Act seamen cannot recover nonpecuniary ;

interpret the Jones Act to provide Gaudet

damages regardless of where the death ocur-

nonpecuniary, as well as pecuniary, damages,

St ADE A OE

red. But this uniformity directly conflicts " ss aa

at least as to death claims arising on or

CDT as Bb ee

with Higginbotham's recognition that the

out of territorial navigable waters.

measure of damages in coastal waters will

not be the same as that on the high seas.

No solution to the problem will elimi-

nate all disparities in the law. But the "

Re lS et, RL EI CIE eee ie iD

purpose of the Jones Act emphasized in

Gaudet is "to shape (a) remedy to comport

with the humanitarian policy of the mari-

time law to show 'special solicitude' for

those who are injured within its jurisdic-

,18

tion. I would choose a disparity in

18. 414 U.S. at 588, 94 S.Ct. at 816,

39 L.Ed.2d at 23, 1973 AMC at 2584.

APPENDIX "B"

WARNIE LEE IVY ET AL., PLAINTIFFS-APPELLEES

CROSS-APPELLANTS,

VS.

SECURITY BARGE LINES, INC., DEFENDANT-

APPELLANT, CROSS-APPELLEE

Number 76-4130

United States Court of Appeals

Fifth Circuit

APPEALS FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

MISSISSIPPI

Before COLEMAN, CLARK and RUBIN,

Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

In this case we explore for the first

time since the Supreme Court's decision

an Mobil Oil Corp. v. Higginbotham, 1978,

U.S. » 98 S.Ct. 2010, 56 L.Ed.2d

581, the question whether damages for non-

pecuniary losses may be recovered in a

ih canis 2 catia tha tA REL 5 eS Oils Vt Kcecnctn wine bi emt nse EAD

Jones Act suit for the death of a dece-

dent on the ter1’torial waters of the

United States. We find ourselves compel-

led both by the facts of Higginbotham and

the policy underlying it to conclude that

damages for loss of society may not be

allowed. Defendant Security Barge Lines

has also raised several other alleged

errors. We conclude that the cumulative

effect of these irregularities requires us

to reverse and remand for a new trial.

I. Facts

John Ivy, the decedent, was a member

of the crew of the vessel M/V ISSAQUENA

until he was lost and presumably drowned

on the night of August 11, 1975 as he was

attempting to aid a fellow crewman who had

fallen overboard. The vessel and its tow

were then heading up the Mississippi

River a few miles above Baton Rouge,

Louisiana.

Decedent's father, Warnie Lee Ivy, in-

stituted this suit under the Jones Act for

negligence and the general maritime law for

unseaworthiness. Although plaintiff pro-

fessed to be the personal sepreenicacive

of decedent, his appointment as administra-

tor of John Ivy's estate was revoked before

the cas2 came to trial.

In answer to special interrogatories,

the jury found that John Ivy died as a re-

sult of the negligence of defendant, but

was 50% contributorily negligent himself,

and awarded each of his parents $50,000

for loss of support, services, and society.

"The trial judge refused to instruct the

jury to discount any award made to present

value. The award was reduced by 50% to

/reflect the, contributory negligence of the

decedent, and a judgment was entered.

Both parties appealed. !

zs Plaintiff challenges the jury's

finding that the decedent was 50%

negligent, and that the vessel was

ee ae Seen ee

ee ie eee ny

on eens —

II. Procedural Capacity to Sue

[1] The Jones Act, 46 U.S.C. § 688,

provides in part: "{I]n case of the death

of any seaman as a result of any [personal

injury in the course of his employment]

the personal representative of such seaman

may maintain an action for damages at law

."" (emphasis added). The requirement

that the cause of action be asserted only

by the personal representative of the de-

cedent and not by the beneficiaries of the

claim has been extended by analogy to suits

brought under general maritime law since

Moragne v. States Marine Lines, Inc., 1970,

398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d

339. See, e.g., Savoie v. Nolty J. Theriot,

Inc., E.D.La. 1972, 396 F.Supp. 973; Futch

v. Midland Enterprises, Inc., M.D.La. 1972,

seaworthy. We find both findings

supported by the weight of the evidence,

and plaintiff's motion for judgment n.

o.v. or for a new trial was therefore

properly denied. See Hampton v. Mag-

nolia Towing Co., 5 Cir. ToeL, 338

344 F.Supp. 324, aff'd 5 Cir. 1973, 471

F.2d 1195. In the few cases in which

courts have allowed wrongful death suits to

be maintained by the beneficiaries of the

decedent rather than his personal repre-

sentative the result can be explained

either by the failure of the defendant to

object in a timely fashion as required by

Rule 9(a), Federal Rules of Civil Procedure, ~

see, e.g., Landry v. Two R. Drilling Co., 5

ooo

Cir. 1975, 511 F.2d 138; Summers v. Inter-

state Tractor §& Equipment Co., 9 Cir. 1972,

466 F.2d 42; Marston v. American Employers

Insurance: (O., 1 Cir. 1971, 439 F.2d.1035;

Young v. Pattridge, N.D.Miss. 1966, 40 F.R.D.

2. Rule 9(a), F.R.C.P. requires:

When a party desires to raise an

issue as to the legal existence

of any party or the capacity of

any party to sue or be sued or

the authority of a party to sue

or be sued in a representative

capacity, he shall do so by specif-

ic negative averment, which shall

include such supporting particulars

as are peculiarly within the plead-

er's knowledge.

NS ne

Oe Ee ee EE ETS 0 enn Rae ae ee Soe ae aA ee Ses

376, or by the existence of a possible con-

flict of interest among the beneficiaries

requiring multiple representation, see, e.

g., Smith v. Clark Sherwood 0il Field Con-

tractors, 5 Cir. 3972, 457 F.26 3339 cert.

denied, 1972, 409 U.S. 980, 93 S.Ct. 308,

34 L.Ed.2d 243; Civil v. Waterman Steamship

Corp., 2 Cir. 1954, 217 F.2d 94.

The Supreme Court has likewise inter-

preted similar language in the Federal

Employers’ Liability Act, 45 U.S.C. § 51.

In American Railroad Co. of Porto Rico v.

Birch, 1912, 224 U.S. 547, 32 S.Ct. 603,

56 L.Ed. 879, the widow and son of a de-

ceased railroad worker brought an action

as sole beneficiaries, and the lower court

held that they should’ not be compelled to

have an administrator appointed for pur-

poses of the suit. The Supreme Court re-

versed, although a full jury trial had been

held:

But the words of the act will not

yield to such a liberal construc-

tion. They are too clear to be

other than strictly followed.

They give an action for damages to

the person injured, or, “in case

of his death, .. . to his or her

personal representative."

[Tj]his distinction between the

parties to be benefited by the

suit makes clear the purposes of

Congress. To this purpose we must

yield. Even if we could say, as

we cannot, that it is not a better

provision than to give the cause

of action to those in relation to

the deceased. In the present case

it looks like a useless circumlo-

cution to require an administra-

tion upon the deceased's estate,

but in many cases it might be much

the simpler plan and keep the con-

troversy free from elements but

those which relate to the cause of

action. But we may presume that

all contending considerations

were taken into account and the

purpose of Congress expressed in

the language it used. (224 U.S.

at 357, 32 S.Ct. at 606, 56 L.Ed.

at 882).

See also St. Louis, San Francisco § Texas

Ry. Ws SO@Rse, 19135, 229 U.S. 156, 35 8.Ct.

651, 57 L.Ed. 1129; Troxell v. Delaware,

Lackawanna § Western R.R., 1913, 227 U.S.

434, 33 S.Ct. 274, 57 L.Ed. 586; Missouri

Kansas §& Texas Ry. v. Wulf, 1913, 226 U.S.

o70, as B.0t. 235, $7. 4.88. 355.

The trial judge, therefore, erred in

deciding that the plaintiff had procedural

Capacity to bring this action. Whether

Rule 61, Federal Rules of Civil Procedure,

modifies the result in American Railroad

Co., supra, so that, in the absence of

prejudice to the employer, a new trial would

not result from this error alone, we need

not determine. See United States ex rel.

Harvey Gulf Int'l Marine, Inc. v. Maryland

Cas. Go., 5 Cir. 1976, S73 F.26 2463; ane

opinion of Judge Rubin, concurring in part

and dissenting in part.” Because we are

remanding for a new trial on the basis of

the other errors in the original proceed-

ings, the complaint may there be amended

so that the claim is asserted by the prop-

er party; if this is not promptly done,

the trial court should dismiss the sttion.”

. a Counsel for Security Barge Lines

conceded during oral argument that

defendant had in no way been harmed

by palintiff's lack of procedural cap-

acity.

4. Plaintiff's counsel claimed below

that his client could not secure let-

ters of administration because of his

inability to prove that John Ivy is

dead. However, Mississippi law explic-

itly provides for appointment of a

guardian in cases like this. Under

Miss.Code Ann. § 93-13-161(1):

Whenever a person, hereinafter

Oe POE ea ty eta, Seat Sere aD mea een eee Tere te

III. Award for Loss of Society

The court refused to eliminate from

the damage award the sum allowed as com-

pensation for the parents' loss of society

resulting from their son's death. This

alleged error requires a detailed analysis

of the statutory and judicially-developed

damage remedies for maritime deaths, guided

by the newly lit Higginbotham beacon.

referred to as an absentee, who

. . while serving as a merchant

seaman, has been officially re-

ported or listed as missing :

has an interest in any property in

this state or is a legal resident

of this state and has not appoint-

ed an attorney-in-fact with author-

ity to act in his behalf in regard

to his property or interest, then

the chancery court, or the chancel-

lor in vacation, of the county of

such absentee's legal residence,

or of the county where the absen-

tee's property is situated, upon

petition alleging the foregoing

facts and showing the necessity

for providing care of the property

of such absentee made by any per-

son authorized under law to act as

guardian, giving preference to next

of kin as now provided by law, and

upon good cause being shown, may

appoint a guardian to take charge

of the absentee's estate.

The Death on the High Seas Act (DOHSA),

46 U.S.C. § 761, provides for recovery by

the personal representative of a person

whose death resulted from a wrongful act,

neglect, or default occurring on the high

seas. 46 U.S.C. § 762 specifically limits

damages in such a suit to "ta fair and just

compensation for the pecuniary loss sustain-

ed by the persons for whose benefit the

suit is brought "(emphasis added).

- The Jones Act has no such specific lim-

itation on damages, but does incorporate by

reference the statute governing the death

of railway workers, the Federal Employers'

Liability Act, 45 U.S.C. § S51 et seq. The

Liability provision #@f that statute, 45

U.S.C. § 51, also contains no explicit lim-

itation of damages to pecuniary losses, but

was early interpreted thus to confine the

award. See, e.g., Michigan Central R.R. v.

Vreeland, 1913, 227.U.S.. 59, 33 §.Cte. 192,

57 L.Ed. 417; American Railroad Co. of Porto

os sitar atin .

Rico v. Didricksen, 1913, 227 U.S. 145, 33

S.Ct. 224, 57 L.Ed. 456. Because of the

incorporation of FELA into the Jones Act,

courts have uniformly interpreted Jones Act

damage recoveries as similarly limited to

pecuniary losses. See, e.g., In re'M/V

ELAINE JONES, 5 Cir. 1973, 480 F.2d 11, reh.

granted, 1973, 513 F.2d 911, cert. denied,

1975, 425 U.S. 840, 96 S.Ct. 71, 46 L.Ed.2d

60; Cities Service Oil Co. v. Launey, 5 Cir.

1968, 403 F.2d 537; Igneri v. Cie. de Trans-

ports Oceaniques, 2 Cir. 1963, 323 F.2d 257,

cert. denied, 1964, 376 U.S. 949, 84 S.Ct.

965, 11 L.Ed.2d 969; United States v. Boykin,

> Civ. 293f, 49 F.26@ 762. ;

The present question about continuing

along the course thus charted comes as a

result of another line of cases, beginning

with Moragne v. States Marine Lines, Inc.,

1970, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Bd.2d

339. The Supreme Court there recognized for

the first time a cause of action for wrongful

death based on general maritime law. Be-

fore then death arising from unseaworthi-

ness could be the basis of a suit under

DOHSA, which is limited to events occurring

outside the territorial waters of the United

States; if the accident occurred within

territorial waters, the plaintiff was forc-

ed to resort to state wrongful death statutes.

These statutes were often unwieldy and not

designed to accommodate maritime claims;

moreover, because they varied from state

to state, the representatives of similarly

Situated deceased seamen might be awarded

widely varying sums based on the fortuity

of whether the accident occurred within or

without the trhee-mile limit and, if it

were within that limit, based on the laws

of the particular state where the casualty

occurred. One of Moragne's objectives was

to substitute a uniform rule for these un-

predictable eddies. The Court left open

the issue of appropriate damages under

;

red

;

this new cause of action, noting "If still

other subsidiary issues should require reso-

lution, such as particular questions of the

measure of damages, the courts will not

be without persuasive analogy for guidance.

Both the Death on the High Seas Act and

the numerous state wrongful death acts have

been implemented with success for decases."

398 U.S. at 408, 90 S.Ct. at 1792, 26 L.Ed.2d

at 361.

In the wake of Moragne, some lower

courts concluded that the uniformity with

which the Supreme Court had been concerned

in that case involved uniform bases of

liability rather than standard damage re-

coveries, and held that nonpecuniary damages

could be awarded by utilizing state reme-

dies to supplement the new Moragne cause of

action. See, e.g., Dennis v. Central Gulf

Steamship Corp., 5 Cir. 1972, 453 F.2d 137,

cert. denied, 1972, 409 U.S. 948, 93 S.Ct.

286, 34 L.Ed.2d 218; Greene v. Vantage Steam-

ship Corp., 4 Cir. 1972, 466 F.2d 159. Others

concluded that the policy of uniformity em-

recovery for this intangible deprivation

bodies in Moragne required that DOHSA's limi-

was available under the majority of state

tations to pecuniary damages be extended to

wrongful death statutes, replaced by Moragne.

claims under general maritime law. See, e.g.,

mines It continued:

Simpson v. Knutsen, 9 Cir. 1971, 444 F.2d 523;

We recognize, of course, that our deci-

In re U.S. Steel Corp., 6 Cir. 1970, 436 F.2d

sion permits recovery of damages not

1256, cert. denied, 1971, 402 U.S. 987, 91

generally available under the Death on

S.Ct. 1649, 29 L.Bd.2d 153.

the High Seas Act. Tranditionally,

The Supreme Court added another beacon

however, "Congress has largely left to

to guide lower courts through the unmapped

this Court the responsibility for fash-

seas in Sea-Land Services, Inc. v. Gaudet,

ioning the controlling rules of admiral-

i974, 414 U.S. 573, 94 '&.Ct. 806, 39 L.B4é.28

ty law," . . . The scope and content of

9. There the decedent had recovered for in-

the general maritime remedy for wrongful

juries suffered on state waters, but later

death established in Moragne is no excep-

died as a result of the same event; his

tion. After combing the legislative

widow sued under Moragne. Although the Court

history of the Death on the High Seas

refused to allow double recovery, it did

Act, we concluded in Moragne that Con-

permit the widow to receive compensation for

j gress expressed "no intention... of

pecuniary damages, including loss of support, :

: foreclosing any nonstatutory federal

and services, as well as funeral expenses.

remedies that might be found appropriate

The Court then turned to the nonpecuniary :

to effectuate the policies of general

claim for loss of society, and noted that

maritime law." . . . Nothing in the

legislative history of the Act suggests

that Congress intended the Act's statu-

tory measure of damages to pre-empt any

additional elements of damage for a

maritime wrongful-death rememdy which

this Court might deem "appropriate to

effectuate the policies of general mari-

time law." To the contrary, Congress’

insistence that the Act not extend to

territorial waters indicates

that Congress was not concerned that

there be a uniform measure of damages

[414 U.S. at 588 n.22, 94 S.Ct.

at 816, 39 L.Ed.2d at 23.)

Read boradly, Gaudet would have elimi-

nated the restriction of damages to pecuni-

ary losses, at least so far as a claim for

loss of society is concerned, whenever a

cause of action could be maintained under

general maritime law, whether or not there

was also a claim maintainable under DOHSA

or the Jones Act. Taking that reading of

asia Ki ible asain anil

the wind, the Fifth Circuit sailed with it

following Gaudet. See Law v. Sea Drilling

Corp., 5 Cir. 1975, 523 F.2d 793;° Landry

v. Two R. Drilling Co., 5 Cir, 1975, 511

F.2d 138.°

ie In Law Chief Judge Brown saw the dis-

parity in damage recoveries under the

various causes of action as precisely

the sort of disuniformity that Moragne

was designed to eliminate, and declar-

ed, "It is time that the dead hand of

The Harrisburg - whether in the courts

or on the elbow of the congressional

draftsmen of DOHSA - follow the rest

of the hulk to an honorable rest in

the briny deep . . No longer does

one need . . . DOHSA as a remedy.

There is a federal maritime cause of

action for death on navigable waters -

any navigable waters - and it can be

enforced in any court." 523 F.2d at 798.

6. Claims were made in Landry both on

the basis of general maritime law and

under the Jones Act. The defendant had

urged that nonpecuniary damages were

not recoverable. The court held, how-

ever, that a finding of liability would

support the award for loss of society,

noting, "(W)hile the question of the

proper measure of damages when the re-

covery is solely under the Jones Act

has not been decided by this Circuit,

where, as here, there is liability

under both a Jones Act claim and a gen-

eral maritime claim for unseaworthiness,

this Court has recognized Gaudet damages

are proper." 511 F.2d at

The lower court's decision in this case

was the first reported after Gaudet that con-

fronted the issue of the propriety of award-

ing nonpecuniary damages when a recovery is

premised solely on the Jones Act. Ivy v.

Security Barge Lines, Inc., N.D.Miss. 1976,

424 F.Supp. 1154. The court concluded that

Moragne's special solicitude for men chal-

lenging the seas, combined with Gaudet's

extension of this concern to seamen's de-

pendents, required "that in cases where

the only basis of recovery is the negligence

of the ship or its owner, such as the case

here, dependents of a wrongful-death victim

are not limited to a recovery for pecuniary

loss, but may recover also for lo-s of

services, and society." Id. at 1156.

Since this appeal was filed, however,

the Supreme Court has explained that Gaudet

is to be read in straitened fashion, and

does not negate the statutory limitations

on damages in DOHSA, or the judicially

ee eee

es an Sok

Se ee a)

en At hte i sil. Ah a at i Wich ha en 4) 9

developed restrictions on damages under

the Jones Act, at least when the death oc-

curs beyond the territorial limits of United

States waters. In Mobil Oil Corp. v. Hig -

ginbotham, _—_—iU.S._ —_—si«,:« 98 S.Ct. 2010, 56

L.Ed.2d 581, suit was brought by several

claimants seeking recovery for the death of

their husbands in a helicopter crash outside

United States waters. One of the passenents,

Shinn, was found by the district court to

be a Jones Act seaman and his widow was

allowed to sue under the Jones Act, DOHSA,

and general mari ime law. Representatives

of two other passengers sued under DOHSA

7 All secured a

and general maritime law.

damage award premised on Mobil's negligence,

including an amount for loss of society.

i On appeal, one of these two passen-

gers was also found to be a Jones Act

seaman, and his widow's claims were re-

manded to the district court for a

determination of damages under the

Jones Act. 545 F.2d at 433.

The Supreme Court held that the case

was distinguishable from Gaudet because of

the place of the death, and refused to al-

low the award for loss of society to stand.

Noting that Congress had specifically limit-

ed damages under DOHSA to pecuniary loss,

the Court found the goal of uniformity in-

sufficiently compelling to negate clear

legislative intent; "Congress did not

lirit DOHSA beneficiaries to recovery of

their pecuniary losses in order to en-

courage the creation of nonpecuniary sup-

plements." 98 S.Ct. at 2015, 56 L.Ed.2d at

587. The Court also noted, "It is true

that the measure of damages in coastal

waters will differ from that on the high

seas, but even if this difference proves

Significant, a desire for uniformity can-

not override the statute," id., but expres-

sed the belief that the difference between

a damage award including loss of society

and one without it could be "primarily

symbolic" and that the disuniformity creat-

ed by the opinion may not have “a great

practical significance." 98 S.Ct. at 2015

n.20, 56 L.Ed. at 587.

[2] By deciding that pecuniary dam-

ages could not be recovered by any of the

plaintiffs, including the representative

of Shinn, the Supreme Court decided sub

silentio that a Jones Act seaman's bene-

ficiaries can not recover nonpecuniary dam-

ages for a death occurring on the high seas.

Were nonpecuniary damages available under

the Jones Act, although not under DOHSA,

the Supreme Court would have affirmed as to

Shinn while reversing as to the other plain-

tiffs. We are bound by its failure to do so.

[3] Our sole remaining task, there-

fore, is to consider siekehar this limitation

on Jones Act recoveries extends to deaths

occurring within the territorial limits of

the United States. In failing to differ-

entiate between the Jones Act plaintiff

and those seeking recovery only under DOHSA

and general maritime law, the Court has in-

dicated that, as a policy matter, it will

not distinguish between the statutorily

imposed limitation on damages in DOHSA and

the judicially created restriction on dam-

ages under the Jones Act. To allow the re-

covery of nonpecuniary damages under the

Jones Act merely because the accident occur-

red within territorial waters would not

only be inconsistent with this policy and

negate years of firmly established legal

precedent, but would create two separate

Jones Act rememdies, each applicable only

within its own geographical sphere. It would

be anomalous indeed if we interpreted the |

Supreme Court's opinion to encourage the

creation of needless disuniformity based

solely on the place of the accident, bring-

ing the law full circle from the days prior

to Moragne. We have no authority to change

the course thus set for us, no matter what

star we would have chosen to steer by were

we plotting the voyage.°

8. We are not unaware of the implications

of this result, mandated though it is

by Higginbotham. If an explosion occur-

red aboard a vessel in the Port of New

Orleans, caused by both negligence and

unseaworthiness, resulting in the death

of a passenger, a longshoreman employed

-y a third party stevedore, and a Jones

Act seaman, the recovery by the repre-

sentative of each would be based on a

different standard and be for a different

amount: (a) The passenger's represent-

ative would have an action under Moragne-

Gaudet including damages for loss of

services; query: could they join a

wrongful death action under Louisiana

law, invoking Civil Code Art. 2315 and

also recover for survivor's grief? (b)

The longshoremen's representative would

have a 905(b) action based on land-type

negligence standards. 33 U.S.C. § 905(b).

See Hess v. Upper Mississippi Towing Corp.,

5 Cir. 1977, EEG F.2d 1030, cert. denied,

1978, 435 U.S. 924, 98 S.Ct. 1489, 55

L.Ed.2d 518. The 905(b) claim is ex- |

clusive, but the statute does not state

the measure of damages. Because the

negligence is land-type, would the meas-

ure of damages likewise be land-anal-

ogized and include grief, as allowed

under Civil Code Article 2315? Or does

Higginbotham limit their recovery to

pecuniary loss? (c) Finally, the Jones

Act seaman's survivors receive only re-

imbursement for pecuniary losses. They,

presumably, could not join the state

The award of nonpecuniary damages under

the Jones Act here was improper and cannot

stand.

death claim with their Jones Act claim.

Lindgren v. United States, 1930, 281

‘4 fi 2 50 5.Ge. 207; TZ, L.Ed. 686;

Gillespie v. United States Steel Cor

1964, a U.8. £46, 62 8.Gt. sou.

L.Ed.2d 199; Schlichter v. Port Arthur

Towing Co., 5 Cir. F,

606, cert. ‘denied, 1961, 368 U.S. 828,

Se B.0e.: 30,7 hs Ed.2d 32.

If the passenger's representative

could cumulate a state death action

with the maritime-type action, or the

longshoremen's administrator could re-

cover land-measured damages, then we

would be back to the situation criti-

cized in Moragne in that the recovery

measure would be different if the ex-

plosion occurred in Florida waters.

See 398 U.S. at 401-02, 90 S.Ct. at

1788, 26 L.Ed.2d at 357.

If the deaths of these persons,

each having the same status as one of

the three in the first hypothesis,

were caused by unseaworthiness and neg-

ligence on the: high seas, then similar

questions would arise and like contra-

dictions might ensue.

IV. Failure to Instruct the Jury to

Discount Award to Present Value

Counsel submitted requests for special

charges respecting damages. After the trial

judge had instructed the jury in substantial

accordance with counsel's requests, he afford-

ed counsel, as required by Rule 51, Federal

Rules of Civil Procedure, an opportunity to

object. Then, for the first time, defen-

dant's lawyer asked for a charge that any

sum allowed for loss of future services and

support must be discounted. The trial judge

expressed willingness to give the instruc-

tion to the jury if the attorney would give

him the substance of the request. The law-

yer asked for a recess to return to his

office to prepare such a charge. The judge

refused to permit a delay in the trial and

declined to prepare the instruction him-

self - to "shoot from the hip" as he put

it - and overruled the objection. This

conduct is charged as error.

[4] There can be no doubt that an al-

lowance for future damage must take into

account the earning power of the money a-

warded over the term for which it compen-

sates the plaintiff. Chesapeake § Ohio Ry.

Co. v. Kelly, 1916, 241 U.S. 485, 491, 36

S.Ct. 630, 632, 60 L.Ed. 1117, 1122; In re

United States Steel Corp., 6 Cir. 1970, 436

F.2d 1256, 1280; Sleeman v. Chesapeake §

Ohio Ry. Co., 6 Cir. 1969, 414 F.2d 305,

307; Yodice v. Koninklijke Nederlandsche

Stoomboot Maatschappij, 2 Cir. 1971, 443

F.2d 76, 79, aff'd after remand, 1972, 471

F.2d 705, cert. denied, 1973, 411 U.S. 933,

93 S.Ct. 1902, 36 L.Ed.2d 393. It would

thus have been incumbent on the lower court

to instruct the jury to discount the award

to present value had such instruction been

timely requested. Ball v. Delta Marine

Drilling Co., 5 Cir. 1973, 476 F.2d 287.

Trial judges, however, are not black-

robed computers, equipped to spew forth

jury charges on every point of law at the

prodding of counsel's magical words. Rule

51 contemplates that requests for special

charges shall be submitted in writing "Lal

t the close of the evidence or at such

earlier time during the trial as the court

reasonably directs . .. " This permits

the court to consider the exact charge

counsel desires and also gives opposing

counsel time to object.

[5S] While the trial court does have a

duty to honor counsel's requests for spe-

cial charges timely made, even in instances

where only the substance of the issue is

made known,” there is an obligation on

lawyers, too, who know far better than the

court the issues in the case and its hid-

den complexities, to plan ahead, to give

9. See, e.g., Sharp v. Root, 5 Cir.

1957, 240 5a 510-307 & ni 3; Dunn v.

United States, 5 Cir. 1963, 318 F.2d

589, 93 (requests under Rule 30, F.R.

Ce.F..3.

the judge at least some opportunity to re- 817, 81 S.Ct. 49, 5 L.Ed.2d 48; Turner

flect on requests and te accord to oppos- Construction Co. v. Houlihan, 1 Cir. 1957,

ing counsel an opportunity to respond. 240 F.2d 435, 439-40; Seeraty v. Philadelphia

[6] In this case is was evident long Coca-Cola Bottling Co., 3 Cir. 1952, 198 F.2d

before the trial began that the plaintiff 264, 265; Churchfield v. Paul Snyder, Inc.,

was requesting substantial damages for future M.D.Pa. 1952, 102 F.Supp. 441, 443-44; Paul

losses. Instead. of anticipating the neces- v. Duluth Missabe §& Iron Range Ry., D.Minn.

sity for jury guidance on the question, 1950, 96 F.Supp. 578. See generally Black-

defense counsel waited until the charge mar, Problems of Court and Counsel in Re-

had been completed and the jury was stand- quests and Exceptions: How to Avoid Them,

ing by, ready to begin deliveration. Where, 62 F.R.D. 251 (1974).

as here, a charge was requested orally only | | Now that the issue has been raised, how-

after the jury had been instructed, and ever, on retrial an appropriate instruction

even then only the subject not the content on discounting any damage award for future

of the charge was suggested, it was not losses to present value should be given;

error for the trial judge to refuse to counsel should prepare a draft of the in-

deliver it. See, e.g., Pinto v. States struction he suggests in accordance with

Marine Corp., 2 Cir. 1961, 296 F.2d 1, 4 Rule 51.

n.3, cert. denied, 1962, 369 U.S. 843, 82 V. Insufficiency of Evidence to Support

S.Ct. 874, 7 L.Ed.2d 847; Wilson v. Southern ee Se eee ee ee eee

Farm Bureau Casualty Co., 5 Cir. 1960, 275 BoB Nest tcensad ened danni amines eae

F,2d 819, 822, cert. denied, 1960, 364 U.S. oO Oe ee a eee

ward for loss of support and services, and,

74 | 75

in any case, alleges that the award was

excessive. While our decision to remand

for a new trial obviates the need to rule

on the excessiveness of the award, we re-

view the evidence on lost services and

support to determine whether it was suf-

ficient to sustain an award in order to

provide guidance for the new trial.

The record contains testimony that

John Ivy paid certain utility bills, phone

bills, and otherwise contributed to house-

hold expenses. He also bought gifts for

and gave spending money to his younger

brother. However, he paid nothing for his

room and board. His dervices did not go

beyond yard work and occasional babysitting.

No documentary evidence was introduced

establishing the amount of his financial

contributions to the family, nor were his

services around the house in any way valued.

Under the circumstances, we conclude that

the evidence of support and services was

insufficient to show that the Ivys suffered

any monetary loss for support and services

by their son's death; the net value of his

contribution to the household was offset by

the room an- board furnished him. The trial

judge erred in submitting this issue to the

jury. Our conclusion on this issue is, how-

ever, without prejudice to the right of

the plaintiff to adduce further evidence on

remand if such evidence is available to

support an award.

VI. Instructions on Negligence

[8] The trial court's instructions on

negligence are also assigned as error by

defendant. The court instructed the jury:

In considering whether or not an oper-

ation was negligent, it is not necessary

that the Plaintiff prove that there was

a better or safer method than the method

used. Ail the Plaintiff need to show

in order to prove the existence of a

negligent operation is to show that

the operation was not reasonably safe

under the circumstances.

The court continued sometime later:

Negligence under the Jones Act may con-

sist of a failure to comply with a duty

required by law. Employers of seamen

have a legal duty to provide their

employees with a safe place in which to

work.

These instructions demonstrate a cer-

tain amount of confusion between the abso-

lute duty imposed upon the owner to main-

tain a seaworthy vessel and the qualified

duty imposed by the negligence standard.

The owner of a vessel has an unqualified

duty to furnish a vessel and appurtenances

reasonably safe and fit for their intended

use. See, e€.g., Gutierrez v. Waterman

Steamship Corp., 1963, 373 U.S. 206, 83

S.Ct. 1185, 10 L.Ed.2d 297; Marshall v.

Ove Skou Rederi A/S, 5S Cir. 1967, 378 F.2d

193, cert. denied, 1967, 389 U.S. 828, 88

3 ia er re ae

S.Ct. 86, 19 L.Ed.2d 84; Vickers v. Tumey,

5 Cir. 1961, 290 F.2d 426. However, the

owner is negligent only if he fails to use

reasonable care to maintain a reasonably

safe place to work. Cox v. Esso Shipping

Co., 5 Cir. 1957, 247 F.2d 629, 637, adopted

by the Supreme Court in Michalic v. Cleveland

Tankers, Inc., 1960, 364 U.S. 325, 328, 81

S.Ct. 6, 9-10, 5 L.Ed.2d 20, 23-4. See also

The M/V "'TUNGUS" v. Skovgaard, 1959, 358 U.S.

$88, 79 S.Ct, 503, 3 L.Bé.2¢é 324.

At the conclusion of the new trial on

remand, appropriate insructions should of

course, be given, with special attention

to the distinction between the unseaworthi-

ness and negligence standards.

VII. Improper Closing Argument to Jury

[9] Defendant lastly contends that

plaintiff's counsel made an improper clos-

ing argument to the jury, including blatant

appeals to sympathy. The relevant section

of the argument is set out in full in

footnote. .9

We need only note that counsel

clearly argued the Golden Rule, that the

jurors should put themselves in the shoes

10. "Now, it is a happy situation that

we are not often faced with having to

determine or go to court because of the

loss of a son. This, fortunately, does

not happen very often. And in our sys-

tem of justice the only way that we

have of compensating anyone for a wrong

that was done to thiem, and there is

just no question of the wrong in this

case, the only way we have to compen-

sate them is with money. That is not

adequate, but it is the only thing

they have, and it is the only thing

available. If my son were killed, I

don't know, I don't know what the com-

pensation would be. I think probably

I would have to go to Mandeville, or

some place to the mental institution.

But, at any rate, Johnny Ivy was lost

and his parents are entitled to recover

for his death. Just as you would be

entitiled if your sons were wrongfully

killed, and I would be entitled if my

son were killed. But to put a dollar

value on a son's life, you know-..

What is grief worth? Grief. What is

the permanent lack of a smile? ...

This loss has got to, be adequately com-

pensated. And I can only suggest to

you that when you determine the amount

of damages to be awarded to Mr. and Mrs.

Ivy that you place yourselves in their

position, that you put yourself in their

shoes. And I can only suggest to you

that an award of less than $100,00 per

parent would not be adequate. There is

just no way to adequately compensate

them, but that is the best way we have."

of the plaintiff and do unto his as they

would have him do unto them under similar

circumstances. Such an argument is univers-

11 because it

ally recognized as improper

encourages the jury to depart from neutral-

ity and to decide the case on the basis of

personal interest and bias rather than on

11. See, e.g., Chicago & N.W. Ry. v.

Kelly, 8 Cir. 1936, 84 F.2d 569, 576;

F.W. Woolworth Co. v. Wilson, 5 Cir.

1934, 74 F.2d 439, 442-43; Klein v.

Herring, Fla.Dist.Ct.App. 1977, 347

So.2d 681, 682; Delaware Olds, Inc. v.

Dixon, Del. 1976, 367 A.2d 178, 179;

Colgan v. Raymond, 1966,%275 Minn. 219,

146 N.W.2d 530, 535; Miku v. Olmen, Fla.

Dist.Ct.App. 1966, 193 So.2d 232; Copiah

Dairies, Inc. v. Addkison, 1963, 247

Miss. 327, 153 So.2d 689, 694; Roth v.

Jelden, 1962, 80 S.D. 40, 118 N.W.2d

20, 25; Phillips v. Fulghum, 1962, 203

Ta. 363, TEs SsBcae Bas, S29 s Sraent v.

Wabash R.R., 1961, 31 111.App.2d 337,

176 N.E.2d 13, 14, rev'd on other grounds,

L962« 24. £33,246 341, 162 &.8.2¢ 2613

Jackson v. Southwestern Pub. Serv.Co.,

1960, 66 N.M. 458, 349 P.2d 1029, 1040;

Faught v. Washam, Mo. 1959, 329 S.W.2d

588, 602; Red Top Cab Co. v. Capps,

Tex.Civ.App. 1954, 270 S.W.2d 273,

ato Bids

the evidence. Counsel's remarks at the

conclusion of the new trial on remand must

be confined to appropriate argument.

REVERSED AND REMANDED FOR A NEW TRIAL.

APPENDIX "'C"

Warnie Lee IVY, etc., Plaintiff,

Vv.

SECURITY BARGE LINES, INC.,

Defendant.

No. GC 75-137-S.

United States District Court

N. D. Mississippi,

Greenville Division.

sent. 22, 1976.

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

The jury in response to interrogatories

submitted to it by the court found that the

Issaquena, its gear, crew or appurtenances,

were not unseaworthy; that defendant was

negligent and such negligence played a part

in bringing about or causing the death of

the unmarried seaman John Edward Ivy.

In fixing damages for the parents of

John Edward Ivy the jury found that the

father suffered damages of $20,000 for loss

of support, $10,000 for loss of services

and $20,000 for loss of society. The mother's

damages were fixed in similar amounts.

The jury also found that the seaman

was guilty of negligence which proximately

contributed to his death and fixed the per-

centage at 50 percent.

At the conclusion of the trial the

court requested memoranda from counsel as

to the proper amount. of the judgment to be

entered on the verdict of the jury. The

memoranda have been received and carefully

considered.

Defendant takes the position that the

only award which can be made by virtue of

the verdict is that portion of the award for

damages wwich represents actual pecuniary

loss to plaintiffs, occasioned by the sea-

man's death, citing as authority for the

position, Petition of Canal Barge Co., 323

F.Supp. 805, 820 (N.D.Miss.1971) wherein

Chief Judge Keady said "[t]he personal rep-

resentative may recover for the actual

pecuniary loss occasioned by the seaman's

death. This is the measure of damages under

PoO,UiR. 85 0.8.0. § 52... « “ ATHhIs: held-

ing was affirmed on appeal. Petition of M/V

ELAINE JONES, 480 F.2d 11, 32 (5th Cir. 1973).

Defendant also cites a long line of cases

which hold that in a death action brought

under the Jones Act recovery is restricted

to pecuniary losses only.

The Fifth Circuit, however, on petition

for rehearing, remanded Canal Barge to the

District Court for reexamination of its

findings of general damages in light of the

Gaudet decision;? Petition of M/V ELAINE

JONES, 513 F.2d 911, 913 (Sth Cir. 1975).

In Gaudet the Supreme Court said:

Our review of those authorities, and

the policies of maritime law, persuade

us that, under the maritime wrongful-

death remedy, the decedent's dependents

he Sea-Land Services, Inc. v. Gaudet, 414

U.S. 3573, 94 &.Ct. 306, 39. L.Ed.2d 9

(1974).

may recover damages for their loss of

support, services, and society, as well

as funeral expenses.

414 U.S. at 584, 94 S.Ct. at 814, 39 L.Ed.2d

at 20-21.

[1] The Court cannot find a case where

the Fifth Circuit has considered the question

of the proper measure of damages when the

recovery is solely under the Jones Act. The

issue, however, is settled, at least in this

circuit, where liability is fixed under both

a Jones Act claim and a general maritime

claim for unseaworthiness. In such instances

Gaudet damages are proper. Landry v. Two R.

Drilling Co., 511 F.2d 138, 143 (5th Cir.

1975).

The Supreme Court in Moragne v. States

Marine Lines, Inc., 398 U.S. 375, 90 S.Ct.

1772, 26 L.Ed.2d 339 (1970) held that an

action lies under general maritime law for

death caused by violation of maritime duties

but left the shaping of the new non-statutory

action to future cases.

The question was considered by the

_ Supreme Court in Gaudet, a case which in-

volved an action brought by a widow of a

longshoreman for the wrongful death of her

husband-alleged to have resulted from in-

juries suffered by him while aboard a vessel

in navigable waters-after the decedent re-

covered damages in his lifetime for his in-

juries. The Supreme Court affirmed the

holding of the Fifth Circuit that Moragne

gave "Mrs. Gaudet . . . a compensable cause

of action for Mr. Gaudet's death wholly a-

part from and not extinguished by the latter's

recovery for his personal injuries

Sea-Land Services v. Gaudet, 414 U.S. 573,

574-75, 94 S.Ct. 806, 810, 39 L.Ed.2d 9, 15

(1974), quoting, Gaudet v. Sea-Land Services,

os eee Puee 1338, 13552 (Sth Cir. 1972).

The Court went on to observe, as noted a-

bove, that under the maritime wrongful-

death remedy. the dependents of a decedent

may recover for loss of support, services

and society, as well as funeral expenses.

[2] The appellate courts when consid-

ering the uniform federal cause of action

for maritime death created in Moragne, rea-

son that the action is "designed to extend

to the dependents of maritime wrongful-death

victims admiralty's 'special solicitude for

the welfare of those men who under[take] to

venture upon hazardous and unpredictable

sea voyages.''' Sea-Land Services v. Gaudet,

41@ U.S. at $77, 34 S.Ct. at BE2,°59 L.Ed. 20

at 17, quoting, Moragne v. States Marine

Lines, 398 U.S. 375, 387, 90 S.Ct. 1772, 26

L.Ed.2d 339 (1970). Such reasoning convinces

the court that in cases where the only basis

of recovery is the negligence of the ship

or its owneh, such as the case here, depen-

dents of a wrongful-death victim are not

limited to a recovery for pecuniary loss,

but may recover also for loss of services,

and society. See Law v. Sea Drilling Corp.,

523 F.2d 793 (Sth Cir. 1975).

The Court concludes that judgment should

be entered in favor of each parent against

defendant for the sum of $25,000. (The

aggregate award decreased by the seaman's

negligent contribution to his death.)

[3] Defendant has made the contention

that, in any event, the jury awards must be

discounted to present values, using a dis-

count rate of not less than 4 percent, the

rate used by Judge Keady in Canal Barge.

The cases are not similar. Judge Keady tried

the Canal Barge case without a jury and in

the case at bar, the awards were fixed by

the jury on the evidence and instructions

of the court. It is elementary that a jury

award "need not conform to strict arithmetical

calculations."' McDonald v. Federal Barge

Lines, Inc., 496 F.2d 1376,°:1378 (Sth Cir.

1974). The court in McDonald said:

The jury, as finders of fact, have

the exclusive obligation to compute

damages and that computation need not

conform to strict arithmetical calcu-

lations but may be in the form of a

lump sum award. [Citations omitted]

We review the jury verdict, whether it

be lump sum or itemized, to find if

there is sufficient evidence to support

the award.

496 F.2d at 1378

In the opinion of the court, there was

sufficient evidence in the action sub judice

to support the several awards made by the

jury.

The clerk will enter final judgment in

accordance with the provisions of this deci-

sion.

APPENDIX "D"

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

WARNIE LEE IVY, ETC

VERSUS NO. GC 7§-137-S

SECURITY BARGE LINES, INC.

SPECIAL VERDICT

WITH 7

INTERROGATORIES

We, the jury, having been duly empanel-

led and sworn to try the issues, find our

special verdict as follows:

INTERROGATORY NO. 1

Do you find from a preponderance of

the evidence in the case that John Edward

Ivy lost his life on the occasion in ques-

tion:

ANSWER: Yes

If your answer to this Interrogatory

No. 1 is "No'', do not answer any of the in-

terrogatories which follow, and have the

foreperson to sign and date the verdict form

and return it to the Court as the verdict of

the jury.

If your answer is "Yes", then proceed

to answer the interrogatories which follow

as may be directed.

INTERROGATORY NO. 2

Do you find from a preponderance of

the evidence in the case that the M/V

ISSAQUENA, its gear, crew, or appurtenances

were unseaworthy at any time John Edward Ivy

was e~ ployed by the vessel?

ANSWER No

INTERROGATORY NO. 3

If your answer to Number Two (2) above

is "yes", do you find from a preponderance

of the evidence in the case that the unsea-

worthy condition caused or contributed to

John Edward Ivy's death?

ANSWER

INTERROGATORY NO. 4

Do you find from a preponderance of

the evidence that the defendant, Security

Barge Lines, Inc., or anyone for whose con-

duct defendant was legally responsible, was

negligent?

ANSWER Yes

INTERROGATORY NO. 5

If your answer to Interrogatory No. 4

above is "yes'', do you find from a prepond-

erance of the evidence that such negligence

played any part, no matter how small, in

bringing about or causing John Edward Ivy's

death?

ANSWER Yes

If your answer to Interrogatory No. 5

and Interrogatory No. 3 above is "No", you

shall not answer any of the interrogatories

which follow. In such an event the fore-

person should sign and date the verdict

form and return it to the Court as the

verdict of the jury.

If your answer to Interrogatory No. 5

or Interrogatory No. 3 above is "Yes", con-

tinue with the interrogatories which follow,

as directed.

INTERROGATORY NO. 6

Do you find from a preponderance of

the evidence in the case that John Edward

Tvy was negligent?

ANSWER’ Yes

If your answer to Interrogatory No. 6

is "Yes", answer the following Interroga-

tory No. 7; otherwise, do not do so.

INTERROGATORY NO. 7

Do you find from a preponderance of

the evidence in the case that the negligence

of John Edward Ivy proximately caused or

contributed to his death.

ANSWER Yes

If your answer to this Interrogatory

No. 7 is "Yes'', then answer the Interroga-

tory No. 8 which follows; otherwise, do not

do so.

INTERROGATORY NO. 8

To what extent, stated in terms of

percentage, do you find from a preponderance

of the evidence in the case that John Edward

Ivy's negligence epdteiaated to his own death?

ANSWER 50%

INTERROGATORY NO. 9

What amount. do you find, from a pre-

ponderance of the evidence in the case,

without any reduction for any negligence

which you may find on the part of John Ed-

ward Ivy, will fairly and adequately compen-

sate Warnie Lee Ivy and Jewel Dean Ivy?

Answer separately for each.

A. Warnie Lee Ivy

(1) loss of support $20,000

(2) loss of services $10,000

(3) loss of society $20,000

B. Jewel Dean Ivy

(1) loss of support $20,000

(2) loss of services $10,000

(3) loss of society $20,000 APPENDIX "E"

7/21/76 s/Mrs. Linda Dunn IN THE UNITED STATES DISTRICT COURT

(Date) Foreperson

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

WARNIE LEE IVY and

JEWEL DEAN IVY,

Plaintiffs

vs No. GC 75-137-S

we SECURITY BARGE LINES, INC.,

Defendant

- FINAL JUDGMENT

This action came on for trial before

the Court and a jury, Honorable Orma R.

Smith, District Judge, presiding, and the

issues having been duly tried and the jury

having duly rendered its verdict,

It is Ordered and Adjudged

That the plaintiff, Warnie Lee Ivy,

father of the deceased, John Edward Ivy,

recover of the defendant, Security Barge

Lines, Inc., the sum of $25,000, with

interest thereon from this date until paid

at the rate of 8 per cent as provided by

law and his cost of the action.

That the plaintiff, Jewel Dean Ivy,

mother of the deceased, John Edward Ivy,

recover of the defendant, Security Barge

Lines, Inc., the sum of $25,000, with interest

thereon from this date until paid at the rate

of 8 per cent as provided by law and her cost

of the action.

Dated at Greenville, Mississippi, this

the 23rd day of September, 1976.

NORMAN L. GILLESPIE, Clerk

By: s/Margaret K. Tubbs

Margaret K. Tubbs,

Deputy Clerk

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