# Petition — Ivy v. Security Barge Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1669%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 956 ## Text 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: a 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 13 19 28 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 ii 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 iv 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 30 27 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 5 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 6 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 9 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 10 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 ll 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 12 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 13 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. 14 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 LS 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 16 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 ay 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 18 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. ee 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 19 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. 20 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 21 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 22 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. 23 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 24 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 25 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. 26 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, es 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 29 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$ t > 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 30 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 31 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. 32 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 33 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 o 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. 34 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 35 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 36 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 37 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 2 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 3 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 5 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 7 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. 8 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 10 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 11 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. 12 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. 13 ; : 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 14 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 16 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. 17 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. 18 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. 19 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 20 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. 21 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. 22 Le 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. 23 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- 24 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 25 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 26 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 27 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. 28 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. 29 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). 30 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. 31 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. 34 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. 33 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 34 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. 35 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. 36 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 37 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."). 38 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."). 39 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. 42 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). 43 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. 45 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 46 Ts 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. 47 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 48 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 49 344 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. 50 NS ne Oe Ee ee EE ETS 0 enn Rae ae ee Soe ae aA ee Ses rs 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: 51 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- 52 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 53 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 54 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. 55 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 ¥ 56 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 57 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 : * wf a ; 2 § red 2 rf % * 4 4 ; < + 58 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 59 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 60 61 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 62 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 63 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 64 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. 65 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 66 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 67 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 68 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 69 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. 70 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. 71 \ [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 72 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. 73 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 j 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 76 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 77 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 78 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 79 footnote. .9 We need only note that counsel clearly argued the Golden Rule, that the jurors should put themselves in the shoes 4 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." 80 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1669%3A1. Public record. Not legal advice.