Appendix — Howard v. Crystal Cruises, Inc.

CHAPTER 21—DEATH ON HIGH SEAS BY

WRONGFUL ACT

Sec.

761. Right of action; where and by whom brought.

762. Amount and apportionment of recovery.

- 763. Limitations.

764. Rights of action given by laws of foreign countries.

765. Death of plaintiff pending action.

766. Contributory negligence.

767. Exceptions from operation of chapter.

768. Pending suits.

§ 761. Right of action; where and by whom brought

Whenever the death of a person shall be caused by wrongful act,

neglect, or default occurring on the high seas beyond a marine league

from the shore of any State, or the District of Columbia, or the Terri-

tories or dependencies of the United States, the personal representa-

tive of the decedent may maintain a suit for damages in the district

courts of the United States, in admiralty, for the exclusive benefit

of the decedent’s wife, husband, parent, child, or dependent relative

against the vessel, person, or corporation which would have been liable

if death had not ensued.

Mar. 30, 1920, c. 111, § 1, 41 Stat. 537.

§ 762. Amount and apportionment of recovery

The reccvery in such suit shall be a fair and just compensation for

the pecuniary loss sustained by the persons for whose benefit the

suit is brought and shall be apportioned among them by the court in

proportion to the loss they may severally have suffered by reason

of the death of the person by whose representative the suit is brought.

Mar. 30, 1920, c. 111, § 2, 41 Stat. 537.

§ 763. Limitations

Suit shall be begun within two years from the date of such wrong-

ful act, neglect, or default, unless during that period there has not

been reasonable opportunity for securing jurisdiction of the vessel,

person, or corporation sought to be charged; but after the expira-

tion of such period of two years the right of action hereby given

shall not be deemed to have lapsed until ninety days after a reason-.

able opportunity to secure jurisdiction has offered.

Mar. 30, 1920, ¢. 111, § 3, 41 Stat. 537.

Appendix A-1

§ 764. Rights of action given by laws of foreign countries

Whenever a right of action is granted by the law of any foreign State

on account of death by wrongful act, neglect, or default occurring upon

the high seas, such right may be maintained in an appropriate action

in admiralty in the courts of the United States without abatement in

respect to the amount for which recovery is authorized, any statute

of the United States to the contrary notwithstanding.

Mar. 30, 1920, c. 111, § 4, 41 Stat. 537.

§ 765. Death of plaintiff pending action

If a person die? as the result of such wrongful act, neglect, or de-

fault as is mentioned in section 761 of this title during the pendency

in a court of admiralty of the United States of a suit to recover dam-

ages for personal injuries in respect of such act, neglect, or default,

the personal representative of the decedent may be substituted as a

Party and the suit may proceed as a suit under this chapter for the

recovery of the compensation provided in section 762 of this title.

Mar. 30, 1920, c. 111, § 5, 41 Stat. 537.

2 So in original. Probably should read “dies’’.

§ 766. Contributory negligence

In suits under this chapter the fact that the decedent has been

guilty of contributory negligence shall not bar recovery, but the

court shall take into consideration the degree of negligence attribu-

table to the decedent and reduce the recovery accordingly.

Mar. 30, 1920, c. 111, § 6, 41 Stat. 537.

§ 767. Exceptions from operation of chapter

The provisions of any State statute giving or regulating rights of

action or remedies for death shall not be affected by this chapter.

Nor shall this chapter apply to the Great Lakes or to any waters with-

in the territorial limits of any State, or to any navigable waters in

the Panama Canal Zone.

Mar. 30, 1920, c. 111, § 7, 41 Stat. 538.

Appendix A-2

sat iil

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

vie

Vika L. Howarp, individually and

as Personal Representative of the

ESTATE OF KENNETH JAMES

Howarp, Deceased,

Plaintiff-Appellant, No. 93-15489

and : D.C. No.

RotF Howarp, CV-91-00642-DFL

Plainsiff, OPINION

v.

CrystaL Crutses, INc., a California

corporation,

Defendant-Appellze.

Appeal from the United States District Court

for the Eastern District of California

David F. Levi, District Judge, Presiding

Argued and Submitted

July 14, 1994—San Francisco, Califomia

Filed December 1, 1994

Before: Edward Leavy and Andrew J. Kleinfeld, Circuit

Judges, and Fred van Sickle,* District Judge.

Opinion by Judge Leavy

*The Honorable Fred van Sickle, United States District Judge for the

Eastern District of Washington, sitting by designation.

14719

Appendix A-3

14720 "‘dowarpD v. CrysTaL Cruisgs, Inc.

SUMMARY

Admiralty and Marine/Torts/international Law

The court of appeals affirmed a district court judgment. The

court held that the district court did not err by applying the

Death on the High Seas Act (DOHSA) as the exclusive rem-

edy in an admiralty wrongful death action arising from an

incident that occurred within the territorial waters of a foreign

State.

Appellant Vika Howard took a Mexican vacation cruise

with her husband and their son. Appellee Crystal Cruises, Inc.

(Crystal), a California corporation, operated the vessel. While

disembarking from the vessel as it lay anchored within Mexi-

can territorial waters, Howard’s husband suffered a severe

laceration to his right Achilles tendon. Less than a month after

retuming home, Howard’s husband fell ill and died as a result

of blood clots from the injured area.

Howard filed a wrongful death action in the district court

against Crystal, asserting individual claims on behalf of her-

self, her son, and her mother-in-law, as well as claims on

behalf of her husband’s estate, under the general maritime law

of the United States and the DOHSA. The district court con-

cluded that the provisions of the DOHSA govemed the action.

The court found in favor of the plaintiffs and awarded them

damages.

Howard appealed, contending that the district court erred

by applying the DOHSA rather than the general maritime law,

and by reducing the damages for lost income and services by

30 percent to reflect her husband’s personal consumption.

[1] The DOHSA provides that the personal representative

of a decedent may sue for damages in admiralty in the district

court whenever the death is caused by a wrongful act occur-

ring on the “high seas” beyond a certain distance from the

Appendix A-4

Howarp v. CrystaL Crutses, INc. 14721

shore of a state, the District of Columbia, or United States ter-

ritories or dependencies. [2] The district court did not err by

applying the DOHSA as the exclusive remedy in this case.

There is nothing inherently absurd with the notion of an

American court applying American law to an action filed by

an American plaintiff against an American defendant, particu-

larly when the law in question was expressly designed to

cover wrongful deaths occurring outside the territorial bound-

aries of the United States.

[3] Howard’s own economic expert expressed the concept

of “personal consumption” in terms of a percentage of total

household income, and relied on a chart which showed that

the average head of household in a two-person/two-income

household consumes 30 percent of the total household

income. The district court did not clearly err in finding that

Howard’s testimony concerning her husband’s unusual frugal-

ity was unsupported by the evidence. .

|

:

COUNSEL

Allan S. Haley, Nevada City, California, for the plaintiff- |

appellant. |

;

:

Walter T. Johnson, Lillick & Charles, San Francisco, Califor- |

nia, for the defendant-appellee.

OPINION

LEAVY, Circuit Judge:

This appeal arises out of an admiralty wrongful death

action in which a widow appeals from the district court’s ’

entry of judgment in her favor, arguing that the court erred by

applying a federal statute rather than general maritime law to

Appendix A-5

bitin iaaiaeeadieeniiaeaailie)

14722 Howarpb v. CrystaL Cruises, INc.

her claim, and by miscalculating the economic impact to her

of her husband’s death. We reject these contentions and

affirm.

FACTS AND PRIOR PROCEEDINGS

In September 1990, Kenneth James Howard (“Howard”),

his wife, Vika, and their son, Rolf, took a Mexican vacation

cruise aboard the CRYSTAL HARMONY, a vessel of Baha-

mian registry operated by Crystal Cruises, Inc. (“Crystal”), a

Califormia corporation. While disembarking from the CR YS-

TAL HARMONY as it lay anchored within Mexican territo-

rial waters, Howard suffered a severe laceration to his right

Achilles tendon. He received emergency medical attention

aboard the CRYSTAL HARMONY and underwent surgery in

Acapulco to repair the damaged tendon. Less than a month

after returning home to Sacramento, Howard suddenly fell ill

and died. An autopsy revealed that blood clots from the

injured area had lodged in his pulmonary arteries and fatally

obstructed the flow of blood to his lungs.

Seven months later, Mrs. Howard filed the instant wrongful

death action in federal district court against Crystal, asserting

individual claims on behalf of herself, her son, and her

mother-in-law, as well as claims on behalf of Howard’s

estate, under the general maritime law of the United States

and the Death on the High Seas Act (“DOHSA”), 46 U.S.C.

§§ 761-67. Following a bench trial, the district court found in

favor of the plaintiffs and awarded them damages totalling

$373,379 plus prejudgment interest. Both parties then filed

timely motions to alter or amend the judgment under Fed. R.

Civ. P. 5Xe). The court granted the motions and entered an

amended judgment, again in favor of the plaintiffs, for

$378,794 plus postjudgment interest. Mrs. Howard (hereafter,

“appellant”) has timely appealed from the amended judgment,

arguing that the district court erred by applying DOHSA

rather than the general maritime law, and by reducing the

Appendix A-6

ii i |

Howarp v. CrystaL Cruises, INc. 14723

damages for lost income and services by 30% to reflect How-

ard’s personal consumption.

ANALYSIS

I. DOHSA/General Maritime Law

The district court concluded that the provisions of DOHSA

govemed this action. That determination involves a question

of law subject to de novo review. See Havens v. F/T Polar

Mist, 996 F.2d 215, 217 (9th Cir. 1993) (all legal conclusions

of district court sitting in admiralty examined de novo).

ORE EARNREE OMe,

fey Opener RRR:

[1] Section 1 of DOHSA provides that

[w]henever the death of a person shall be caused by

wrongful act . . . occurring on the high seas beyond

a marine league from the shore of any State, or the

District of Columbia, or the Territories or dependen-

cies of the United States, the personal representative

of the decedent may maintain a suit for damages in

the district courts of the United States, in admiralty

46 U.S.C. § 761.

It is undisputed that Howard died as the result of a wrong-

ful act that occurred “beyond a marine league [i.e., three nau-

tical miles] from the shore of any State, or the District of

Columbia, or the Territories or dependencies of the United

States[.]” See id. Accordingly, and in order to determine

whether the district court correctly applied DOHSA as the

exclusive remedy in this wrongful death action, see Offshore

Logistics, Inc. v. Tallentire, 477 U.S. 207, 232-33 (1986), we

must answer the question of whether something that happens

within the territorial waters of a foreign state occurs on the

“high seas” for purposes of DOHSA.

Appendix A-7

NS EAE emcee ees ef Sm Sa cate

eT me

14724 Howarb v. Crystat Cruises, INc.

We are aware of only two reported decisions from this Cir-

cuit that have touched on the question of the meaning of “high

seas” under DOHSA. In Roberts v. United States, 498 F.2d

520 (9th Cir.), cert. denied, 419 U.S. 1070 (1974), we indi-

cated, without deciding, that DOHSA’s “high seas” could be

read as applying to foreign territorial waters. See id. at 527 n.7

(“Because Congress only has power to fix the extent of terri-

torial waters measured from the shores of its own country it

may well have considered all waters beyond one marine

league from those shores to be ‘high seas’ for purposes of

DOHSA so long as navigable, even though within the territo-

rial waters of a foreign state.”). Nine years later we again dis-

cussed, but did not decide, the issue in Williams v. United

States, 711 F.2d 893, 895 n.3 (9th Cir. 1983) (“It is not clear

whether such tortious acts [i.e., those occurring within the ter-

ritorial waters of foreign states] fall within the purview of the

DOHSA.”) (citing Roberts).

While it is true that we have not previously disposed of this

precise question, the clear weight of authority rejects the

appellant’s position. See, e.g., 2 Ellen M. Flynn, et ai.,

Benedict on Admiralty § 81c, at 7-11 n.20 (7th ed. 1993) (“It

appears to be settled that the term ‘High Seas’ within the

‘meaning of DOHSA is not limited to international waters, but

includes the territorial waters of a foreign nation as long as

they are more than a marine league away from any United

States shore.”); Thomas J. Schoenbaum, Admiralty and Mari-

time Law §7-2, at 238 (1987) (DOHSA applies “even [to]

those killed in foreign territorial waters.”) (foomote omitted).

Accord Sanchez v. Loffland Bros., 626 F.2d 1228, 1230 & n.4

(Sth Cir. 1980) (per curiam) (seaman killed in Venezuela),

cert. denied, 452 U.S. 962 (1981); Public Admin’r of New

York County v. Angela Compania Naviera, S.A., 592 F.2d 5%,

60-61 (2d Cir.) (Greek seaman from Liberian-Panam::::ian

ship died in Greece after sailing in Indian, Pakistani, and ::p-

anese waters), cert. denied, 443 U.S. 928 (1979); Jennings v.

Boeing Co., 660 F. Supp. 796, 803-804 & n.9 (E.D. Pa.) (heli-

copter crash in Scottish waters), as modified on reh’g, 677

Appendix A-8

il |

HowarpD v. CRYSTAL CRUuISES, INC. 14725

F. Supp. 803 (1987), affd, 838 F.2d 1206 (3d Cir. 1988);

Kuntz v. Windjammer “Barefoot” Cruises, Ltd., 573 F. Supp.

1277, 1280 (W.D. Pa. 1983) (scuba diving accident in Baha-

mian waters), aff d, 738 F.2d 423 (3d Cir.), cert. denied, 469

U.S. 858 (1984); First & Merchants Nat'l Bank v. Adams,

1979 A.M.C. 2860, 2863-64 (E.D. Va. 1979) (plane crash in

Canadian waters), affd in part, rev’d in part on other

grounds, 644 F.2d 878 (4th Cir. 1981); Kunreuther v. Out-

board Marine Corp., 757 F. Supp. 633, 634 (E.D. Pa. 1991)

(snorkeling accident in Jamaican waters); Moyer v. Klosters

Rederi, 645 F. Supp. 620, 623-24 (S.D. Fla. 1986) (cruise ship

passenger died after snorkeling in Mexican waters); In re Air

Crash Disaster Near Bombay, 531 F. Supp. 1175, 1182-84

(W.D. Wash. 1982) (plane crash in Indian waters); Cormier

v. Williams/Sedco/Horn Constructors, 460 F. Supp. 1010,

1011-12 (E.D. La. 1978) (seaman drowned in Peruvian river);

Mancuso v. Kimex, Inc., 484 F. Supp. 453, 454-55 (S.D. Fla.

1980) (plane crash in Jamaican waters); Hamill v. Olympic

Airways, S.A., 398 F. Supp. 829, 834 (D. D.C. 1975) (plane

crash in Greek waters) (implicit in dictum).

ee eee

[2] Applying the above authorities to the facts of this case,

we conclude that there is nothing inherently absurd with the

notion of an American court applying American law to an

action filed by an American plaintiff against an American

defendant, particularly when the law in question was

expressly designed to cover wrongful deaths occurring out-

side the territorial boundaries of the United States. Accord-

ingly, we hold that the district court did not err by applying

DOHSA as the exclusive remedy here.’ See Offshore Logis- |

tics, Inc. v. Tallentire, 477 U.S. at 232-33.

‘Citing Miles v. Apex Marine Corp., 498 U.S. 19 (1990), Crystal con-

tends that the general maritime law of the United States would not make

a difference in the outcome of this appeal, even if we were to hold that

DOHSA does not govern this action. While support exists for this posi-

tion, see, e.g., Thomas J. Schoenbaum, Admiralty and Maritime Law

§§ 5-7 at 53, 7-3 at 91 (Supp. 1992) and cases collected thereat, we

decline to reach the merits of this argumeni in the light of our holding.

Appendix A-9

a cee aT aT nen ae

14726 Howarp v. CrystaL Cruises, INc.

Il. 30% Reduction of Damages

After calculating the total amount of damages to be

awarded the appellant for her loss of Howard’s support and

services, the district court reduced those figures by 30% to

reflect that portion of the recovery which the court found

should be attributed to Howard’s personal consumption. The

appellant asserts two challenges to the district court’s calcula-

tions: First, she argues that it was error to apply the 30% fig-

ure to the household income (i.e., both her salary and

Howard’s wages as a grocery clerk) rather than to Howard’s

income alone, because Howard was unusually frugal, and

including her income violates the collateral source rule; and

second, she argues that no reduction should have been taken

against the valuation of Howard’s services, because those ser-

vices (€.g., painting the house and maintaining the car) were

indivisible. We review the district court’s computation of

damages following a bench trial for clear error. See Tonry v.

Security Experts, Inc., 20 F.3d 967, 970 (9th Cir. 1994).

Whether the district court selected the correct legal standard

for computing those damages, however, is a question of law

subject to de novo review. Id. at 972.

Section 2 of DOHSA provides that damages must represent

“a fair and just compensation for the pecuniary loss

sustained[.]” 46 U.S.C. § 762. Accord 1 Martin J. Norris, The

Law of Maritime Personal Injuries § 6:5, at 320 (4th ed.

1990) (“Under the Death on the High Seas Act [a widow] is

entitled to a fair and just compensation for the pecuniary loss

she has suffered by the reason of the death of the decedent.”)

(footmote omitted). As a practical matter, these damages are

limited to two things: loss of support and loss of services. See

2 Martin J. Norris, The Law of Seamen § 29:1, at 307 (4th ed.

1985).

[3] The appellant’s own economic expert expressed the

concept of “personal consumption” in terms of a percentage

of total household income, and relied on a chart (the so-called

Appendix A-10

a

Howarp v. Crystal CRuisEs, INC. 14727

“Cheit Table”) which showed that the average head of house-

hold in a two-person/two-income household consumes 30%

of the total household income. The district court found that

the appellant’s testimony concerning Howard’s unusual fru-

gality was unsupported by the evidence.’ We find no clear

error in this holding, both as to loss of income and loss of per-

sonal services.

As for the argument concerning the collateral source rule,

the appellant cites to no relevant authority for the proposition

that her own income should not be taken into consideration as

a portion of the total household income. Indeed, the clear |

weight of authority indicates that alternative means of support

available to an adult beneficiary (exclusive of remarriage and,

perhaps, insurance) in a DOHSA action may be taken into |

consideration by a court. See, e.g., Joseph E. Edwards, Anno-

tation, “Determination of Amount of Award of Damages

Under Death on the High Seas Act (46 USCS §§ 761-768),”

16 A.L.R. Fed. 679, 725-26 (1973 & Supp. 1993) and authori-

ties collected thereat.

ASA NC NI A

CONCLUSION

We conclude that the district court did not err in its deter-

mination that DOHSA provides the exclusive remedy for the

appellant’s wrongful death action, and we reject the appel-

lant’s contention that the district court erred by reducing her

lost income and services damages by 30% to reflect Howard’s

personal consumption. Because we find no merit to any of the

appellant’s remaining arguments, the decision of the district

court is

AFFIRMED.

eee -

*For example, the district court pointed out that, whatever economies

Howard may have taken in some matters, he and his wife used both

incomes in order to take expensive vacations, as exemplified by the Mexi-

can cruise that cost him his life.

Appendix A-11

FILED

FEB 24 1992

CLERK, U.S. DISTRICT COURT

EASTERN DISTRICT OF CALIFORNLA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VIKA L. HOWARD, individually

and as the personal representative Civ. S-91-642-DFL

of the ESTATE OF KENNETH JAMES

HOWARD, Deceased; and ROLF ORDER

HOWARD,

v.

CRYSTAL CRUISES, INC., a

California corporation,

Defendant.

/

Plaintiff Kenneth Howard was injured while dis-

embarking from a ship owned by defendant Crystal

Cruises. He subsequently died of blood clots that were

allegedly caused by that injury. Howard’s wife and son,

Vika and Rolf Howard, allege that Howard died as a

result of Crystal Cruises’ negligence. The primary issue

presented by the parties’ cross-motions for summary

judgment is whether the Death on the High Seas Act

(“DOHSA”) is applicable here, and if so, whether it pre-

cludes the Howards’ survival action and general mari-

time wrongful death action.

[*2] On its face, DOHSA only applies to deaths occur-

ring on the high seas. The accident here occurred in

foreign territorial waters. Because the court concludes

Appendix A-12

ee

that the primary purpose of DOHSA was to create a

remedy for deaths occurring outside the reach of the

state courts, the court holds that foreign territorial wa-

ters are within the purview of DOHSA. Where DOHSA

applies, general maritime wrongful death claims are

precluded because DOHSA is an exclusive remedy.

However, because DOHSA does not address survival

actions, the court finds that the Howards’ survival claim

can coexist with DOHSA.

The Howards also move to amend their complaint

to add claims for negligent infliction of emotional dis-

tress. The court finds such a claim barred by Supreme

Court precedent as well as DOHSA, and so denies the

motion to amend.

I

FACTS AND PROCEDURAL HISTORY

On September 16, 1990, Kenneth, Vika, and Rolf

Howard were passengers on the s Crystal Harmony, a

cruise ship owned by Crystal Cruises and registered in

the Bahamas. In order to go to the port of Zihuatanejo,

Mexico, the Howards walked down a gangplank to a

floating platform. From the platform, they planned to

board a boat that would take them ashore. Kenneth

Howard was injured when the gangplank slid into the

back of his ankle as he stood on the platform. While in

Mexico, Howard received medical care for the damage to

his Achilles tendon.

[*3] Howard returned to his home in Sacramento and

died approximately three weeks Izter. The cause of death

was a blood clot that travelled to his lungs and obstruc-

ted the flow of blood. The Howards allege that the blood

clot was caused by the ankle injury, and that Crystal

Cruises’s negligence was the proximate cause of death.

Appendix A-13

SS

The Howards bring the following causes of action

against Crystal Cruises: (1) a wrongful death claim un-

der general maritime law; (2) a survival action for Ken-

neth Howard's estate; (3) a wrongful death claim for

unseaworthiness; (4) a claim under DOHSA; and (5) a

claim for “breach of maritime contract/maritime tort.”

The Howards now move to amend their complaint to

add a claim for negligent infliction of emotional distress,

and for partial summary judgment on the question of

whether DOHSA is applicable to their claims. Crystal

Cruises brings its own motion for summary judgment on

the Howards' first, second and third claims, asserting that

those claims are precluded under DOHSA.

II

JURISDICTION

The federal courts have admiralty jurisdiction over

all torts that occur in navigable waters and bear a “sig-

nificant relationship to traditional maritime activity.”

Foremost Ins. Co. v. Richardson, 457 U.S. 668, 672-75 (1982);

Executive Jet v. City of Cleveland, 409 U.S. 249, 268 (1972).

A passenger who [*4]injures his foot while stepping from

a gangway onto a floating platform has suffered an in-

jury within the court's admiralty jurisdiction. Carey v.

Bahama Cruise Lines, 864 F.2d 201, 20607 (1st Cir.1988).

Ul

DOHSA'S PRECLUSIVE EFFECT ON WRONGFUL

DEATH CLAIM

When DOHSA was enacted, there was no remedy

for wrongful death outside the territorial waters of the

United States. See The Harrisburg, 119 U.S. 199 (1886).

DOHSA created a wrongful death action for a person

Appendix A-14

who dies as the result of an act “occurring in the high

seas beyond a marine league from the shore of any State,

or the District of Columbia, or the Territories or depen-

dencies of the United States.” 46 U.S.C. § 761 (1988). i

The Act contains specific and limited statutory remedies. |

The courts have interpreted DOHSA to provide an exclu-

sive remedy where it is applicable, but have allowed

general maritime causes of action to go forward where

DOHSA is inapplicable.

Crystal Cruises asserts that DOHSA applies to the

Howards’ claim and thus that the Howards’ cause of

action for wrongful death under general maritime law

and the estate’s survival action are precluded. The How-

ards argue that DOHSA is inapplicable because Kenneth

Howard’s accident occurred in Mexico’s territorial wa-

ters and not in the international high seas. Resolution of

this issue turns on whether Congress [*5]intended

DOHSA to apply to the high seas outside of all territorial

waters, or whether it was intended to apply more broad-

ly to accidents that occur in areas outside the reach of

state courts.

The Ninth Circuit has specifically reserved the

question of whether DOHSA applies to torts that occur in

foreign territorial waters. Roberts v. United States, 498

F.2d 520, 524 (9th Cir.1974). Although the court disposed

of the case on other grounds, it suggested that DOHSA

was applicable to an accident occurring just off the shore

of Okinawa:

Because Congress only has power to fix the extent

of territorial waters measured from the shores of

its own country it may well have considered all

waters beyond one marine league from those

shores to be "high seas" for purposes of DOHSA so |

long as navigable, even though within the territo- {

Appendix A-15

rial waters of a foreign state.

Id. at 524 n.7. See also Williams v. United States, 711 F.2d

893, 895 n.3 (9th Cir.1983) (applicability of DOHSA in

foreign territorial waters an unresolved question in this

circuit).

Although no federal appellate court has reached

this issue,’ a number of district courts have considered it

and nearly [*6Junanimously found that DOHSA applies

to foreign territorial waters. In Moyer v. Klosters Rederi,

645 F.Supp. 620 (S.D. Fla.1986), the court found nothing

in the legislative history of DOHSA or in the act itself to

indicate that Congress intended to limit the remedies

available under DOHSA to international waters. Id. at

624. Congress’s primary purpose in enacting DOHSA

was to create a uniform federal maritime tort action for

deaths occurring outside the reach of the states. See

Jennings v. Boeing Co., 660 F.Supp. 796, 803 (E.D.Pa.1987),

aff'd, 838 F.2d 1206 (3d Cir.1988). This result would not

be accomplished if deaths occurring in foreign territorial

'The Fifth Circuit briefly considered this issue

in Sanchez v. Loffland Bros. Co., 626 F.2d 1228, 1230 (5th

Cir.1980), cert. denied, 452 U.S. 962 (1981), but disposed

of the case on statute of limitations grounds. The

court found that DOHSA applied to a seaman who

drowned in a lake in Venezuela. Sanchez gives the

court little guidance because the applicability of

DOHSA was apparently not disputed by the parties,

and the court permitted a general maritime wrongful

death claim to proceed after finding DOHSA appli-

cable. In the Ninth Circuit, DOHSA bars general

maritime wrongful death claims.

Appendix A-16

waters were compensated or not according to the tort

recovery provisions of the foreign country where the

death occurred. See also Mancuso v. Kimex, Inc., 484 F.

Supp. 453, 455 (S.D. Fla.1980) (plane crash in Jamaican

territorial waters); Cormier v. Williams/Sedco/Horn Con-

structors, 460 F.Supp. 1010 (E.D. La.1978) (seaman

drowned in Peruvian territorial waters).

The sole case that the Howards cite in which the

court found DOHSA inapplicable, Leano v. States Marine

Lines, 1970 A.M.C. 1694 (C.D. Cal.1969), contains no

reasoning, only a conclusion. The Leano court held that it

lacked jurisdiction over claims arising out of deaths that

occurred in Manila Bay in the Philippines. The court

listed its legal conclusions, one of which was that it

lacked jurisdiction under DOHSA, but gave no analysis.

In view of the numerous and more thoroughly

reasoned cases [*7Jarriving at an opposite result, the

court declines to follow Leano. As the majority of courts

to examine the issue have noted, the purpose of DOHSA

was to create a federal remedy for harms beyond the

reach of state law. See Moragne v. States Marine Lines, 398

U.S. 375, 394 (1970). Its purpose was not to distinguish

between the high seas and foreign territorial waters.

Thus, the use of the term “high seas” in the Act does not

signify an intent by Congress that foreign territorial

waters be excluded from its scope. Moreover, in this

area of law, Congress and the courts have striven to

provide a measure of uniformity. Thus, in Moragne, the

Court implied a federal cause of action for wrongful

death claims within state territorial waters--outside the

reach of DOHSA--in part to prevent the lack of unifor-

mity that would result were plaintiffs left to state law

remedies. Id. at 401 (noting Congress’ “strong concern

for uniformity”). Application of DOHSA to foreign

territorial waters similarly assures “uniform vindication

Appendix A-17

of federal policies.” Id. For these reasons, and consis-

tently with the weight of authority, the court concludes

that DOHSA applies to foreign territorial waters.

If DOHSA applies to the Howards’ claims, the next

inquiry is whether DOHSA precludes the Howards’

general maritime claim for wrongful death. In Bergen v.

F/V St. Patrick, 816 F.2d 1345, 1348 (9th Cir.1987), the

Ninth Circuit held that remedies provided by DOHSA

may not be supplemented by non-statutory remedies.

The court found that DOHSA embodied:

[*8] “Congress’ considered judgment on such issues as

the beneficiaries, the limitations period, contribu-

tory negligence, survival, and damages.... [When

Congress] speaks directly on a question, the courts

are not free to supplement Congress’ answer so

thoroughly that [DOHSA] becomes meaningless.”

Id. (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618,

625 (1978). If DOHSA actions could be supplemented by

general maritime law, then the limitations Congress

placed in DOHSA would be nullified. See Bergen, 816

F.2d at 1349. Accordingly, the Howards’ claim for

wrongful death under general maritime law is precluded

by DOHSA. Crystal Cruises’ summary judgment motion

is granted as to this claim.

IV

PRECLUSIVE EFFECT OF DOHSA ON A SURVIVAL

ACTION

The Howards’ third cause of action requests dam-

ages for predeath pain and suffering, medical and funeral

expenses, and predeath lost wages in a survival action

under the general maritime law. Crystal Cruises argues

that DOHSA’s wrongful death remedy is Howard’s sole

remedy because DOHSA displaces all general maritime

Appendix A-18

law. The Howards assert that DOHSA only displaces

general maritime law in the areas to which it speaks, and

that DOHSA does not address survival claims. Because

DOHSA does not contain survival provisions, the How-

ards argue, DOHSA does not preclude that type of recov-

ery. Although it is a close [*9]question, the court finds

the Howards’ survival claim is not precluded by the

application of DOHSA to their wrongful death claims.

The Supreme Court has not addressed whether

DOHSA preempts survival actions under general mari-

time law or even whether general maritime law permits

of a survival action. Traditional maritime law did not

provide a survival cause of action. Cortes v. Baltimore

Insular Line, 287 U.S. 367, 371 (1932). In Miles v. Apex

Marine Corp., 111 S.Ct. 317 (1990), the Court acknowl-

edged lower court decisions supporting a change in the

general maritime rule barring survival actions, but con-

cluded that the case before it did not require resolution

of this issue.’ The Miles plaintiff sued under both the

*The damages available under a survival cause

of action are those that the decedent could have

recovered had he lived, such as pre-death pain and

suffering, and pre-death lost wages. The plaintiff in a

survival action is the decedent’s estate. In contrast, the

damages available under wrongful death are for the

loss to the surviving family members--primarily the

lost wages that the decedent would have earned had

he not died. The plaintiffs in wrongful death actions

are the surviving family members, not the estate.

°The Supreme Court in Miles stated:

Miles argues that we should follow the Courts

of Appeals and recognize a general maritime

Appendix A-19

Jones Act* and [*10]general maritime law, asking for the

decedent's lost future earnings as survival damages un-

der general maritime law. The Court relied heavily on

Moragne to evaluate the Miles plaintiff's claims:

We have described Morague at length because it

exemplifies the fundamental principles that guide

[the Court's] decision in this case ... an admiralty

court should look primarily to [applicable] legisla-

tive enactments for policy guidance. [The Court]

may supplement these statutory remedies where

doing so would achieve the uniform vindication of

such policies consistent with our constitutional

mandate, but we must also keep strictly within the

limits imposed by Congress. . . .

Miles, 111 S.Ct. at 323.

Based on these principles, the Court held that the

damages provided by the Jones Act survival provisions

were the plaintiff's exclusive remedy. The Jones Act does

not permit recovery of decedent's lost future earnings.

survival right. Apex urges us to reaffirm the

traditional maritime rule and overrule these

decisions. We decline to address the issue,

because its resolution is unnecessary to our

decision on the narrow question presented:

whether the income decedent would have

earned but for his death is recoverable [in a

survival action.] We hold that it is not.

111 S.Ct. at 327.

* “The Jones Act allows a seaman to bring an

injury or death action against the master of his

vessel.” Evich v. Connelly, 759 F.2d 1432, 1433 (9th

Cir.1985) (citing 46 U.S.C. § 688(a) (1982)).

Appendix A-20

Therefore, the Court denied plaintiff's claim for these

damages. The Court did not reach the issue of whether

DOHSA precludes survival damages. Crystal Cruises

claims that the Court's denial of survival damages in

Miles is controlling here. However, because the Court ex-

pressly refused to reach the question of whether survival

actions are precluded by DOHSA, Miles does not control

this case.

The Ninth Circuit also has not spoken directly to

this issue. Crystal Cruises relies on Bergen, in which the

court held that DOHSA precluded recovery of any dam-

ages other than those specifically provided by the statute.

The Bergen [*11]plaintiff brought claims under both the

Jones Act and DOHSA. The court found punitive dam-

ages unavailable, holding that “where an action under

DOHSA is joined with a Jones Act action, neither statu-

tory scheme may be supplemented by the general mari-

time law or by state law.” Bergen, 816 F.2d at 1349.

However, because survival claims are not merely a spe-

cial type of damages, like punitive damages, but are a

separate basis for recovery, Bergen does not control the

present case. The Bergen court held only that DOHSA

may not be supplemented by damages that the statute

does not provide. It did not hold that all general mari-

time causes of action are precluded solely because

DOHSA is also applicable.

The Ninth Circuit did discuss the coexistence of

DOHSA and survival actions in dicta in Evich v. Connelly,

759 F.2d 1432 (9th Cir.1985), in which the court permitted

a general maritime survival action for a death in state

territorial waters. The court rejected the defendants’

assertion that DOHSA provides the exclusive remedy for

maritime death actions. Although DOHSA was not

applicable in Evich because the death occurred in state

Appendix A-21

territorial waters,’ the court noted with approval the

holding [*12]in Azzopardi v. Ocean Drilling & Exploration

Co., 742 F.2d 890 (5th Cir.1984), permitting a general

maritime law survival action to coexist with DOHSA

claims:

The Fifth Circuit has allowed survival actions to

supplement DOHSA actions. We agree [with

Azzopardi], and conclude that there is no bar to

maritime survival actions based on Moragne.

Id. at 1434 (citation omitted).

In Azzopardi, the plaintiff brought a general mari-

time survival action as well as a wrongful death cause of

action under DOHSA. The plaintiff's son was employed

as a diver on an oil rig in the English Channel. After

reviewing both the legislative history of DOHSA and

case law interpreting it, the Fifth Circuit found that

DOHSA’s scope is limited to wrongful death actions and

does not affect survival actions. The court concluded that

DOHSA contained a gap in coverage with regard to

survival claims, and permitted a general maritime sur-

vival action to fill the gap left by DOHSA.

The death in Evich occurred near an island off

the coast of Alaska, inside Alaska's territorial waters.

Because the death did not occur on the high seas,

DOHSA was inapplicable. The Evich defendants

argued that DOHSA provides the sole remedy, and

that no survival actions was available because

DOHSA does not provide survival recovery. The

court relied on Moragne, which permitted a general

maritime law wrongful cause of action in state

territorial waters, in rejecting the defendants’

argument that DOHSA provides the sole remedy for

maritime deaths.

Appendix A-22

As Justice Stevens pointed out in Higginbotham,

“there is a basic difference between filling the gap

left by Congress’ silence, and rewriting rules that

Congress has affirmatively and specifically en-

acted.” 436 U.S. at 625. Since DOHSA is a wrong-

ful death statute which, whether through inadver-

tence or design, does not address survival actions,

it is entirely appropriate that the courts should fill

what would otherwise be a legislative void by

allowing the general maritime law survival action

based on Moragne to supplement DOHSA.

742 F.2d at 894. See Barbe v. Drummond, 507 F.2d 794 (1st

Cir. 1974) (survival damages allowed under general

maritime law because DOHSA does not provide survival

damages); Favaloro v. S/S Golden Gate, 687 F.Supp. 475

(N.D. Cal.1987) (adopting Azzopardi’s gap-filling ap-

proach); Kuntz v. Windjammer [*13]“Barefoot” Cruises, 573

F.Supp. 1277, 1286 (W.D. Penn.1983), aff'd w/o op., 738

F.2d 423 (1984) (Moragne’s reasoning relied upon to per-

mit general maritime law survival action to supplement

DOHSA wrongful death claim).

The court follows Azzopardi, Ninth Circuit dicta,

and the weight of other authority, and holds that

DOHSA is not a bar to survival actions. Although there

is an argument to be made that Congress would have

provided a statutory survival cause of action if it had

intended for plaintiffs to recover for survival damages,

the court is more persuaded by the gap-filling analysis of

Azzopardi. The reasoning in Azzopardi is consistent with

the Supreme Court’s approach in Moragne. Thus, when

Congress fails to provide a statutory recovery, the courts

may look to general maritime law to supplement statu-

tory provisions. On the other hand, when Congress has

provided specific, albeit limited, remedies the courts are

not free to create additional remedies. In this case, Con-

Appendix A-23

gress has not provided a remedy. It has simply left the

area unaddressed. In keeping with Moragne, the court

finds that Congress’ failure to provide any survival rem-

edy in DOHSA does not evince an intent that no such

remedy be provided. For these reasons, and in light of

the clear weight of authority, the court finds that How-

ard's survival action under general maritime law is not

precluded by DOHSA.

[*14] V

WRONGFUL DEATH BASED ON UNSEAWORTHINESS

The doctrine of unseaworthiness, a type of strict

liability that permits recovery for harm suffered as a

result of an unseaworthy vessel, is limited to seaman and

does not extend to passengers. Kermarec v. Compagnie

Generale Transatlantique, 358 U.S. 625, 629 (1959); Craig v.

M/V Peacock, 760 F.2d 953, 955 (9th Cir.1985). Howard

was a passenger, and so cannot recover under this the-

wey

Although the Howards recognize that Kermarec

controls, they argue that this court should deny Crystal

Cruises’ summary judgment motion, permit them to

introduce evidence supporting this theory at trial, and

then allow Crystal Cruises to renew their motion at the

close of evidence. They argue that this theory is ripe for

expansion, and that if the court permits them to proceed

as they propose, they will have a record for appeal that

will ultimately permit the Supreme Court or Congress to

expand liability for unseaworthiness to passengers.

Kermarec controls this case and bars the Howards'

action. There is no hint in recent caselaw that the wind

is blowing toward expansion of the doctrine. To allow

the Howards to present evidence on this issue at trial

would impose an unreasonable burden on Crystal

Appendix A-24

Cruises. Crystal Cruises’ summary judgment motion is

granted as to the third claim.

[“15]

VI

THE HOWARDS’ MOTION TO AMEND

THEIR COMPLAINT

The Howards move to amend their complaint to

add causes of action for themselves for negligent inflic-

tion of emotional distress. Crystal Cruises opposes the

motion, arguing that these claims are barred by the reme-

dies provided by DOHSA.

In Sea-Land Servs. v. Gaudet, 414 U.S. 573, 585 n.17

(1974), the Supreme Court held that emotional distress

was not compensable as part of a general maritime

wrongful death action. The Howards concede that

Gaudet limits the recovery for general maritime wrongful

death claims, but asserts that Gaudet does not preclude a

separate action for emotional distress.° To permit such

an action would allow an end run around the limitation

declared by the Court in Gaudet. A plaintiff bringing a

wrongful death action could simply assert a separate

action for negligent infliction of emotional distress, and

recover damages specifically barred by the Court.

Furthermore, even if such an action were permissi-

°Crystal Cruises asserts that Gaudet is no longer

good law, citing the footnote in Miles stating that

Gaudet is inapplicable on its facts due to amendments

to the Longshore and Harbor Workers’ Compensation

Act. Although Gaudet may no longer apply to long-

shoremen, that does not cast doubt on its holding that

emotional distress is not compensable as part of a

general maritime wrongful death action.

Appendix A-25

ble as a companion to a general maritime wrongful death

action, it is clearly precluded under DOHSA. Congress

has provided specific and limited remedies for wrongful

death under DOHSA. DOHSA is [*16]intended to com-

pensate the families of the decedents, and it has failed to

provide for emotional distress damages. An emotional

distress claim would also compensate the families, and

would circumvent the limitations of DOHSA.

The Howards’ motion to amend their complaint is

denied.

Vil

Crystal Cruises’ motion for summary judgment on

the general maritime wrongful death claim is GRANTED.

Summary judgment on the survival cause of action

is DENIED.

Summary judgment on the unseaworthiness claim

is GRANTED.

The Howards’ motion to amend their complaint to

add a cause of action for negligent infliction of emotional

distress is DENIED.

IT IS SO ORDERED.

Dated: 21 February 1992.

/s/David F. Levi

DAVID F. LEVI, Judge

United States District Court

Appendix A-26

FILED

FEB 11 1993

CLERK, U.S. DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VIKA L. HOWARD, individually

and as the personal representative Civ. S-91-642-DFL

of the ESTATE OF KENNETH JAMES

HOWARD, Deceased; and ROLF AMENDED

HOWARD, ORDER

Plaintiffs,

v.

CRYSTAL CRUISES, INC., a

California corporation,

. Defendant.

/

This case was tried to the court on September 8-10,

1992. A memorandum of decision was issued on Sep-

tember 16, 1992, constituting the court’s findings of fact

and conclusion of law pursuant to Fed. R. Civ. P. 52(a).

Judgment was entered in accordance therewith on Sep-

tember 17, 1992. The parties filed motions to amend the

judgment pursuant to Fed. R. Civ. P. 59(e), and a hearing

was held on those motions on January 29, 1993. Having

considered those motions, all papers submitted in sup-

port thereof, [*2]and the arguments presented by counsel

at the hearing and good cause appearing therefore, the

court enters the following amended memorandum of

Appendix A-27

A ae tilt oe ey Sy

decision.

I.

In September 1990, Kenneth James Howard, his

wife Vika and his son Rolf took a vacation aboard the

cruise ship Crystal Harmony. Defendant Crystal Cruises,

Inc., a California corporation, was the operator of the

cruise ship. On the afternoon of September 16, 1990, the

ship was anchored in the Bay of Zihuatanejo, Mexico. So

that passengers could go ashore if they wished, the ship

had set up its tendering platform from which the tender

would pick up passengers and ferry them to shore. The

tendering platform is a platform suspended by wires and

secured to the hull of the ship. The platform floats on

the water and moves with the action of the water.

To reach the tendering platform, passengers de-

scend an outside gangway known as an accommodation

ladder -- a metal portable stairway of about 15 steps

positioned parallel to the side of the ship. The gangway

rests on the tendering platform. Because the gangway --

which is attached to the ship -- and the tendering plat-

form are subject to the action of the water, sometimes in

different degrees, the bottom of the gangway rests on

wheels. Because of the wheels, and the placement of the

wheel axle, the final step of the gangway is about 12-3/4

inches from the deck of the tendering platform. To les-

sen the effect of this high step, it was the defendant's

practice to place a portable [*3] wooden box step, covered

by artificial turf, at the foot of the gangway, beneath the

final step. The wooden box step is about 6 inches high

and is approximately 2 feet square. The box step is

Appendix A-28

narrower than the width of the gangway, such that the

gangway may roll forward and then backward over the

box step when the ship or platform moves. |

Rolf and Vika Howard descended the gangway

and boarded the tender without incident. When Kenneth

Howard came down the gangway he was asked to wait

at the foot of the gangway by two crewmen who were

stationed at the bottom of the gangway to assist passen-

gers. One of the crewmen, Arturo Espuerta, had been at

the foot of the gangway, assisting passengers, since the

tendering operation had begun. He had observed the

ladder rolling fore and aft with the motion of the ship in

the water. Both Espuerta and tne other crewman were

aware that the gangway rolled over the top of the wood-

en box step. The crewmen asked Howard to wait as

passengers ahead of him boarded the tender. Each of the

crewmen held one of Howard’s hands. Unfortunately,

the crewmen instructed Howard to wait with one foot --

his right foot -- on the wooden step and his other foot on

the gangway.

Just as the crewmen told Howard to go ahead, a

wave -- probably the wake from a powerboat -- caused

the tendering platform to move. The gangway rolled

forward over the wooden step and caught the back of

Kenneth Howard’s right ankle. The bottom edge of the

stairway bit into Howard’s Achilles tendon, cutting his

leg above the ankle and nearly severing the tendon. [*4]

Members of the ship’s crew assisted Howard back

up the gangway, where he was placed in a wheelchair

and taken to the ship’s infirmary. The ship’s doctor

found that the right Achilles tendon had been 75-90%

severed, and that surgery would be necessary. Because

Appendix A-29

there were no surgical facilities aboard the ship, he

stitched and dressed the wound and placed it in a short

cast.

The next day, September 17, the Howards disem-

barked, as scheduled, at Acapulco, the final stop of the

cruise. Crystal Cruises arranged for the Howards to

leave the ship first, with some special assistance for Ken-

neth Howard. Defendant’s port agent arranged for a

driver to take the Howards to an Acapulco hospital for

surgery. At the hospital, a surgeon sutured the wound,

and placed Howard’s leg in a cast. Crystal Cruises paid

for this operation. Foilowing the operation, a driver --

arranged for by Crystal Cruises -- came to the hospital

and took the Howards to the airport for their scheduled

flight back to Sacramento. Upon his return home, How-

ard was treated by his family physician and his orthope-

dist.

Several weeks later, on October 11, 1990, in the

early morning hours, without warning, Kenneth Howard

was stricken. He had been restless and uncomfortable

throughout the night, finding it difficult to sleep. At 4:00

a.m., Vika Howard found him sitting on the edge of the

bed with a glazed look on his face. He was not respon-

sive to her questions. He held his hands out to her for

help without speaking. Mrs. Howard called for her son,

who [*5] telephoned for emergency assistance. Kenneth

Howard regained consciousness briefly during the ambu-

lance trip to the hospital. He asked for water and said

that he needed help breathing. Kenneth Howard died at

the hospital at 5:32 a.m.

Kenneth Howard’s death was caused by blood

clots that had formed at the site of his injured ankle. The

Appendix A-30

clots broke loose and travelled through his heart and into

his pulmonary artery where the clots lodged, blocking

the flow of blood to both lungs. In this way, the ankle

injury was the ultimate cause of his death. There was no

negligence or deficiency in Howard’s medical care. The

possibility of blood clots is a known risk of trauma, but

no medical intervention to prevent blood clots was ap-

propriate in this instance.

UU.

Plaintiff Vika L. Howard brings this lawsuit indi-

vidually, on behalf of the wrongful death beneficiaries of

her husband, and as personal representative of her hus-

band’s estate. Plaintiff Rolf Howard, the decedent’s son,

brings this lawsuit individually. The court has subject

matter jurisdiction over this action under 28 U.S.C. §

1333. Plaintiffs seek recovery on three causes of action.’

First, plaintiffs pray for damages for negligence under the

Death on the High Seas Act (DOHSA), which provides

for “a fair and just compensation for the pecuniary loss

sustained by the [*6] persons for whose benefit the suit is

brought.” See 46 U.S.C. § 762. In this case the wrongful

death beneficiaries are Vika and Rolf Howard, and Selma

Howard, the decedent’s mother. Second, the estate of

‘In an order of February 24, 1992, the court

granted summary judgment for defendant as to

plaintiffs’ cause of action for wrongful death premised

on general maritime law and the doctrine of

unseaworthiness.

Appendix A-31

Kenneth Howard brings a survival action under the

general maritime law seeking damages for Kenneth

Howard’s pain and suffering, funeral and medical ex-

penses. See the court’s February 24, 1992 order; Azzopardi

v. Ocean Drilling & Exploration Co., 742 F.2d 890, 894 (5th

Cir. 1984). Finally, plaintiffs allege that Crystal Cruises

breached a maritime tort in connection with its conduct

after the injury was sustained.

The court first addresses liability and then in the

next session discusses the more vexing issues related to

damages.

A shipowner has a duty of care “in seeing the safe

embarking and disembarking of . . . passengers.” Isham

v. Pacific Far East Line Inc., 476 F.2d 835, 837 (9th Cir.

1973) (citation omitted). In light of the above findings,

the court finds that the injury to Kenneth Howard was

caused by defendant’s negligence. The design of the

gangway was seriously flawed as plaintiffs’ expert testi-

fied. The bottom step was too high, and such a high step

was too high, and such a high step was unnecessary.

Moreover, the defective nature of the design was well

known to Crystal. Indeed, Crystal had attempted to

ameliorate the condition caused by the high bottom step

by placing the wooden box step at the foot of the gang-

way during tendering operations. Unfortunately, the box

was only a partial solution and created the risk of injury

such as occurred here. [*7] The juncture of the box step

and gangway was dangerous and uncertain. At least one

of the photographs taken on the day of the injury during

tendering operations illustrates that the box step could

become out of position, leading to an awkward gap

between the gangway step and the box step. Crew mem-

Appendix A-32

bers were aware that the gangway could roll forward

over the b»x step, and on the day of the accident but

prior to Howard’s injury, had observed the gangway roll

over the box. Although in the brief life of the ship no

other injury had occurred similar to that in this case,

defendant was on notice that a person standing on the

box step during tendering operations was at risk of being

struck by the bottom step of the gangway. The use of

such defective equipment was negligent in itself and

invited injury. But beyond and apart from the negligence

inherent in the decision to use defective equipment, it

was incumbent on the crew to keep disembarking pas-

sengers away from the area in which the gangway would

tend to roll. Kenneth Howard should not have been held

at the bottom of the gangway with one foot on the gang-

way and one foot on the box step. This act of negligence

by crew members in the tendering operation on Septem-

ber 16, 1990, is plain and needs no further elaboration.

See Carey v. Bahama Cruise Lines, 864 F.2d 201 (1st Cir.

1988) (sliding gangway).

It is equally clear that the injury was the ultimate

and legal cause of death. The injury was relatively mi-

nor, and in no way appeared to be life threatening; none-

theless, it was the cause of the blood clotting that led to

death. All of the evidence [*8] suggests that there was no

intervening medical malpractice on the part of any of the

treating doctors.

Accordingly, the court finds liability as to the

plaintiffs’ cause of action under the Death on the High

Seas Act and the survival action under general maritime

law. However, the court does not find a breach of mari-

time contract or a maritime tort concerning Crystal

Appendix A-33

ee

Cruises’ conduct following the injury. The arrangements

made by Crystal Cruises for the care of Kenneth Howard,

and the transportation of the family, were sufficient and

appropriate. The minor rudeness of the port agent and

of hospital personnel in Acapulco while unfortunate does

not constitute breach of contract by Crystal or maritime

tort. Nor did Crystal assume a contractual duty to pay

all medical expenses incurred by Howard in the treat-

ment of his leg once he returned to Sacramento. To the

extent that Kenneth Howard experienced some inconve-

nience and pain during the period after leaving the Crys-

tal Harmony, and until arriving back home, this may be

reflected in the survival action award.

Having found Crystal Cruises negligent, and its

conduct the legal cause of death, the court turns to an

evaluation of damages.

Il.

A. DOHSA DAMAGES

Vika and Rolf Howard, as well as Selma Howard

(Kenneth Howard’s mother), may recover for loss of

services, support and inheritance. Sea-Land Services, Inc.

v. Gaudet, 414 U.S. 573, 584-86 (1974). “Pecuniary loss”

does not include damages for [*9] mental anguish, grief,

or loss of society. See Miles v. Apex Marine Corp., __ U.S.

__, 111 S.Ct. 317 (1980). The parties’ experts take radi-

cally different views of the damages sustained by plain-

tiffs. Their estimations of loss are some $600,000 apart.

There are three principle areas of difference. First, as to

Appendix A-34

Kenneth Howard’s lost earnings, plaintiffs’ expert esti-

mates a loss $210,005 while defendant's expert calculates

$25,625 in losses. Second, as to lost services for Vika

Howard, plaintiffs seek $234,925 in damages whereas

defendant’s expert finds damages of $47,575. Finally as

to lost services for Selma Howard, plaintiffs seek $257,250

in damages while defendant suggests a figure of $33,861.

1. Lost Earnings*

Kenneth Howard was a retail grocery clerk. He

had been employed as such by Raley’s since 1974. He

was a member of the Retail Clerks’ union and was cov-

ered by their pension program. Although the parties

disagree as to whether Howard's final pay check may

have included a payment for accumulated vacation pay,

there is no dispute that at the time of his death Howard

earned $13.78 an hour. He was working full-time at the

time of his injury, and therefore his yearly salary was

$28,662 (2,080 hours x [*10] $13.78 per hour). On Febru-

ary 29, 1992, retail clerks received a .30 per hour pay

raise.

Howard was 55.3 years old at the time of his

death. Using statistics for the national labor force, plain-

tiffs’ expert found that Howard could be expected to

*The court has discretion whether to consider

tax consequences. Here the parties agree that tax

consequences are not significant. Accordingly, the

court does not attempt to calculate possible tax

consequences as to the calculation of any of the

damages plaintiffs seek.

Appendix A-35

work an additional 8.7 years to age 64. Using actuarial

data from the Retail Clerks Pension Trust Fund, defen-

dant’s expert suggests that 61.5 is the average retirement

age for male retail clerks in Northern California. Plain-

tiffs argue that the defendant's average figure is less

accurate because it does not recognize that employees

who are still working at age 55 may have a longer aver-

age employment than those employees who retire earlier.

Defendant responds that the average for retail clerks in

Northern California is more reliable that a national aver-

age for all trades. In addition, defendant argues that

Howard’s health was such that an earlier retirement date

was more likely. Plaintiffs reply that Howard’s health

was sufficiently good that he was able to work full-time

in 1990, and that he had no intent or plan to retire before

age 64.

The medical evidence before the court does dem-

onstrate some past and likely future medical problems.

In the early and mid 1980’s Howard experienced some

back strain from lifting groceries. As a result he missed

some 13% of work in each of two years. In 1987 he fell

at Raley’s and hurt his left knee, eventually requiring an

operation known as meniscectomy. He worked only

about one third of the year in 1987, because of knee and

back [*11] injuries, and just over one half of the year in

1988 for the same reason.

According to Howard’s physician, Dr. Hassan,

Howard’s knee problem was an arthritic condition that

would reoccur. In addition, Howard’s back problems

were also degenerative. These problems were aggravated

by the kind of work that Howard performed which re-

quired standing and some bending and lifting. Dr. Has-

Appendix A-36

san predicted that in 2-3 years from June of 1990, How-

ard would not be able to continue in a job requiring so

much standing.

Dr. Hassan’s deposition testimony is consistent

with the medical records. For example, in a memoran-

dum of June 4, 1990, just 2 1/2 months prior to the ankle

injury, Dr. Hassan noted that Howard had back and neck

pain, and had difficulty turning his head. The memoran-

dum states that “[t]his patient has significant degenera-

tive arthritic change in the cervical and lumbar spine.”

The memorandum concludes: “Hopefully, we can keep

him working another couple of years since he is rela-

tively young; although, he has put 30 years in at his

present occupation.” Exhibit 41.

The court finds that the medical evidence out-

weighs the meager evidence of Howard’s intent to work

until age 64. Moreover the medical evidence is sup-

ported by testimony from defendant’s expert that by age

61.5 Howard would have received a pension within three

to four thousand dollars of his average yearly earnings.

Thus, the court accepts as more reasonable defendant's

contention that Howard would have worked to age 61.5

This is over three years beyond the two to three years

predicted by Dr. [*12] Hassan, but less than the eight

years predicted by national tables.

On the other hand, the court declines to further

reduce Howard’s future work life by predicting some

future work absences due to health problems. The inju-

ries sustained in 1987 and 1988 were unique and were

caused by an accident rather than a degenerative condi-

tion. Howard enjoyed his work and had a reliable work |

history. To the extent that Howard suffered from degen- ;

Appendix A-37

erative health problems, this aspect has been fully consid-

ered in setting his work life expectancy. Moreover, How-

ard was working full-time at the time of his injury.

Thus, the court declines to average the hours worked

over the period from 1985 through 1990, and assume a

similar future work history through age 61.5. Rather, the

court finds that Howard would have retired at age 61.5,

but would have been able to work full-time up to that

time.

The court finds the following in lost earnings:

(a) $40,413 for the period 9/29/90-2/29/92 (1.41

years) at $28,662 per year;

(b) $15,522 for the period 2/29/92-9/8/92 (.53

years) at $14.08 an hour for 1102.4 hours;

(c) $120,665 for the period 9/8/92 to Howard's

projected retirement age of 61.5 years. This is based on

annual earnings of $28,662 x 1.02 ($.30 pay raise) x 4.33

years. The resulting figure is then adjusted for future

wage increases at an average rate of 5.2% per year and a

discount rate of 7.2% per year, based [*13] on the testi-

mony of plaintiff’s expert. Based on this calculation, the

present value of Kenneth Howard's lost future earnings

is $120,665.

Total lost earnings come to $176,630.

The parties dispute by what percentage this total

should be reduced to reflect Kenneth Howard’s consump-

tion. Plaintiffs use a 30% figure based on a table pre-

pared by Earl F. Cheit which is attached to Mr. Goslin’s

report. Exhibits 37 and 38. The Cheit table indicated that

30% is the family head’s consumption expenditure as a

percentage of total family income. Notwithstanding the

fact that the table relates to total family income, plaintiffs

Appendix A-38

suggest that the consumption reduction should be based

only on Howard’s income because Howard was so fru-

gal. Defendant counters that a higher figure than 30% is

appropriate based on national tables and that total house-

hold income is the relevant base.

The court finds that 30% is a fair figure in this

case. The higher figure suggested by defendant does not

adequately reflect that many expenses -- such as mort-

gage and household upkeep -- are fixed without regard

to the number of family members. Surely Vika Howard

should not be required to -- or assumed to -- move resi-

dences as part of the damage calculation. On the other

hand, the evidence of Howard’s frugality is anecdotal

and vague. Mrs. Howard testified that she rarely wrote

checks to Howard from the family checking account. But

this testimony speaks only to Howard’s need for cash

and does not address his overall (*14] consumption. It

appears that both experts normally would deduct a wage

earner’s consumption based on total family income be-

cause total family income dictates the standard of living

for each member of the family. For .xample, the How-

ard’s regularly took expensive cruises and other vacations

that would not have been likely on Howard’s earnings

alone.’ At the time of Howard’s death, Vika Howard

was earning $23,460 per year.

The court calculates an offset for lost consumption

The cruise on the Crystal Harmony cost $1,360

per person or $4,080 for the Howard family.

Appendix A-39

of $97,355, consisting of 30% of total household income.”

‘To derive this figure, the court first determined

the value of total household income to the date of trial

by taking Vika Howard’s income for that period and

adding it to Kenneth Howard's lost income for that

period. Vika Howard’s income for that period is $46,-

136, which is the sum of $1,955/month x 12 months x

1.41 years ($33,079) plus $2,053/ month x 12 months x

53 years ($13,057). Kenneth Howard’s income for the

same period has already been calculated to be $55,935.

Total household income is $102,071 ($55,935 + $46,-

136), and there is no reduction to present value. 30%

of $102,071 is $30,631. Loss of support to the date of

trial is therefore $25,314 ($55,935 - $30,631). To derive

a figure for future loss of support, the court first cal-

culated the value of total future household income to

the date of Kenneth Howard’s projected retirement at

61.5 years. For Vika Howard, the court multiplied her

monthly wage times 4.33 years to obtain a figure of

$106,674 ($2,053/ month x 12 months x 4.33 years).

This figure is then adjusted for future wage increases

and discounted to present value, just as Kenneth

Howard’s future income was adjusted, to obtain a

figure of $101,681. The present value of Kenneth

Howard’s income for the same period has already

been calculated to be $120,665. The present value of

total future household income to the date of Kenneth

Howard’s projected retirement is $222,346 ($101,681 +

$120,665). 30% of this figure is $66,704. Future loss of

| support is therefore $53,961 ($120,665 - $66,704). The

| sum of past and future loss of support to the date of

| Kenneth Howard’s projected retirement is $79,275

($25,314 + $53,961).

Appendix A-40

The total net lost income therefore is $79,275. [*15]

No amount of money is awarded for the alleged

lost monetary value of Howard’s health and welfare pian.

Vika Howard testified that she is still covered by Ken-

neth Howard’s plan. Although there is some confusion

in the evidence as to whether Mrs. Howard should be so

covered under the terms of the decedent’s health plan,

plaintiffs have not met their burden of demonstrating a

loss in this area. Rolf Howard was not covered by How-

ard’s health plan at the time of Howard’s death.

r Lost Pension Benefits

The experts do not differ very greatly as to the

calculation of lost pension benefits. According to plain-

tiffs’ expert, the total loss is $15,855. Using a consump-

tion deduction of 45.1%, defendant’s expert finds an

actual gain of benefits of $4,156 due primarily to Vika

Howard's receipt of widow’s benefits. If defendant's

calculations are refigured using the 30% consumption

figure used above in the lost income calculation, then

defendant’s figures show a loss of $18,575 in pension

benefits. Defendant's higher figure -- higher than plain-

tiffs -- results from the earlier retirement age that defen-

dant projects. The court will round this figure up to

$23,000 because defendant calculated annual benefits

based upon a work rate of only 1,615 hours per year

whereas the court has found that Howard would work a

full work year. :

Total lost pension benefits amount to $23,000. [*16]

Appendix A-41

3 Loss of Services to Selma Howard

Plaintiffs request $119,905 for the loss of future

services for Selma Howard in addition to $39,065 in lost

services accrued to the time of trial for a total of $158,970.

With a minor change, the court finds that this request is

reasonable and supported by a preponderance of the

evidence. Howard was a loyal and dutiful son. He

spent portions of every day caring for his mother, who

suffers from senile dementia and requires 24 hour care.

Since Selma Howard continued to live at home, Howard

assumed responsibility for many of her household chores,

including shopping and minor household repairs. He

would sit with his mother when the caretaker took week-

end days off. He paid bills, cooked, mowed the lawn,

took his mother to the doctor, bathed her, and generally

supervised her care. He managed Selma Howard's prop-

erty, which included real estate as well as financial in-

struments, all of which was also in his name. After his

death, Vika Howard assumed responsibility for Selma

Howard’s care and the management of her household

and assets. In addition, because the property was not in

her name, it was necessary to establish a conservatorship

for Selma Howard.

Based on the conservatorship accounting provided

at exhibit 32A the court concurs in the estimate by plain-

tiffs that some $16,094 must be spent each year as to

Selma Howard's care as a result of Howard's death.

When adjusted for future expenses and [*17] multiplied

Appendix A-42

by Selma Howard’s expected life expectancy,’ and then

reduced to present value, the value of future loss of

services to Selma Howard comes to $119,905. To this

amount the court will add $39,018 for the two years of

expenses prior to trial, for a total of $158,923.

4. Management Services

Plaintiffs seek over $170,000 for loss of investment

management service based on the value of the investment

management provided by Howard. Plaintiffs calcuiate

this figure by comparison to what a full-time financial

advisor might charge for investment advice and manage-

ment. The comparison is neither apt nor fair. Although

Howard had some interest in investment matters, he was

not a trained analyst and did not have a research depart-

ment at his disposal, not any of the various skills and

resources of a professional money manager. The deposi-

tion of his broker demonstrates that Howard’s approach

was conservative and that he did not play to stock mar-

ket or make frequent changes to his account. The sort of

guidance provided by Howard is equally available from

a stock broker at minimal cost. Accordingly, no separate

adjustment is made for loss of investment management

services. In the next section the court will include within

loss of services some time for Howard’s attention to

financial matters which is sufficient to cover all invest-

The court declines to adjust Selma Howard’s

life expectancy. Defendant offered no medical

evidence that a person suffering from advanced

senility has a reduced life expectancy.

Appendix A-43

ment functions. [*18]

3. Lost Services to Vika and Rolf Howard

Plaintiffs seek $196,130 for lost services to the

Howard family. This figure is based on an assumed 15-

20 hours per week of household services for the remain-

der of his life expectancy of 19.5 years. Plaintiffs assume

that the cost of such services will increase and that the

current cost of such services is $12.50 an hour. Plaintiffs

make no deduction for Howard’s consumption of these

services and also assume that Howard would have been

able to provide such a level of services throughout his

remaining life.

The court finds plaintiffs’ figure to be inflated for a

number of reasons. First, given the amount of time

Howard spent caring for his mother -- which the court

has awarded -- the 15 to 20 hours for home services is

implausible. Nor is it supported by any direct evidence.

Vika Howard praised her husband’s attention to house-

hold needs, but no precise evidence was offered as to

how much time a week Howard spent on household

services. Second, it is necessary to deduct a certain por-

tion -- 30% as before -- for Howard’s consumption of his

own services. This is particularly true because certain of

the services, for example car maintenance, would be

directly related to his activities. Third, the court notes

that Howard suffered from knee and back problems. He

could not easily bend or lift objects. These conditions

were degenerative. Thus, it is unlikely that Howard

could have maintained the same level of support

throughout the remainder of his life. Finally, the $12.50

Appendix A-44

hourly wage figure is not supported by direct evidence.

By contrast, defendant estimated that the [*19] same

services could be hired for $9.00 per hour based on a

1991 Sacramento Area Wage Survey from the Bureau of

Labor Statistics. Defendant’s figure seems somewhat low

given that certain of the services provided by Howard

were specialized -- for example, automobile repair and

family bookkeeping. The court will use an average

wage of $10.75 an hour.

The court finds that on average Howard spent 8

hours a week on household matters, including 1.5 hours

for financial matters. For the two year period from the

injury to trial the lost value amount to $8,944 (52 x 2 x 8

x $10.75). This figure must be reduced by 30% to account

for Howard’s own consumption of his services, yielding a

total of $6260. Using plaintiffs’ expert’s calculations, but

using a different figure for time and hourly wage, the

court calculated future lost services as $100,720 (5.6 x

10.75 x 52 x 19.5 x 1.65). The present value of this figure

is $47,803. The total in lost services is $54,063.

6. Loss of Inheritance

Having assumed that all income earned by How-

ard would have been contributed to the support of Vika

and Rolf Howard, the court makes no separate award for

loss of inheritance. There would be double recovery were

such an award made.

Appendix A-45

i Loss of Nurture

Rolf Howard was 19 at the time of his father’s

death. He seeks an award for loss of nurture of $5,000 a

year for the following four years. The parties agree that

DOHSA permits of a loss of nurture award, and that

some courts have permitted such an [*20] award to the

age of 21. Loss of nurture is intended to compensate “for

the loss of that care, counsel, training and education

which [the child] might, under the evidence, have reason-

ably received from the parent, and which can only be

supplied by the service of another for compensation.”

Brown v. United States, 615 F. Supp. 391, 399-400 (D. Mass.

1985) (quoting Michigan Central Railroad v. Vreeland, 227

U.S. 59, 71 (1913). Guidance “in matters material, moral

and spiritual” is compensable. Id. at 400. On the other

hand, “a child’s claim for loss of nurture is limited to the

pecuniary value of the services the deceased parent

would have provided and cannot include damages for

the emotional loss of growing up without a father.” Id.

Rolf Howard continued to live at home after his

graduation from high school in 1989. He had a close

relationship with his father. They discussed Rolf's educa-

tional plans and Howard gave moral direc-ion to his son.

Although he lived at home, Rolf Howard had a part-time

grocery clerk position beginning in April 1990. In the

summers he worked full-time and in the school year he

worked about 20 hours a week. He enrolled in junior

college beginning in the fall of 1990 and is still in college.

Because Rolf Howard was living at home and had

such a close relationship to his father, the court considers

that he was still a dependent child until age 21. Placing

Appendix A-46

a value on the career and other guidance provided by

Howard to his son is difficult. It must be remembered

that the court is not placing a value on the relationship or

on the sorrow Rolf Howard has experienced. The [*21]

court considers that Rolf Howard was becoming indepen-

dent as demonstrated by his part time work and that

most of the guidance that could be provided by a father

to a son had been provided by Howard during the years

of Rolf’s upbringing. The court awards a total of $5,000

in lost nurture for the period from the death of Kenneth

Howard to Rolf Howard’s twenty-first birthday.

8. Vika Howard’s Wage Loss and Medical Expenses

Plaintiffs seek an award for wages ‘ost and medi-

cal expenses incurred by Vika Howard as a result of her

husband’s death. Mrs. Howard testified that after How-

ard’s death she was overwhelmed by her new responsi-

bilities and emotionally upset. She lost work and sought

psychological services. Plaintiffs argue that these losses

and expenses are out-of-pocket pecuniary losses compen-

sable under DOHSA. Defendant argues that the losses

are not compensable because they are occasioned by

grief, which clearly is not compensable, and because

these losses do not reflect loss of funds or services from

the decedent. The parties candidly admit to a paucity of

case law on this issue.

The court holds that these losses are not recover-

able under DOHSA. The losses fall into two categories:

losses caused by grief and losses caused by the assump-

tion of new responsibilities. As to the second category,

the court already has compensated Vika Howard for the

Appendix A-47

loss of services previously provided by Kenneth Howard.

For example, to the extent that she was required to at-

tend to Selma Howard’s affairs because of the death, she

can be and is compensated for this additional time. To

award her damages [*22] for Kenneth Howard’s lost

services and then additional damages when she decided

to perform these services herself would be a form of

double recovery. As to the first category, it is uncon-

tested that grief and emotional suffering may not be

recovered in a wrongful death action under DOHSA. Yet

it would amount to such a recovery could plaintiffs re-

cover the medical costs of diminishing their emotional

suffering.

9. Summary

Under DOHSA, the court awards to Vika Howard

the following: $79,275 in lost earnings; $23,000 in lost

pension benefits; and $54,063 in lost services. The court

awards $158,923 to the conservatorship of Selma Howard.

The court awards $5,000 to Rolf Howard.

B. Survival Action

The estate of Kenneth Howard is entitled to reim-

bursement for funeral expenses, medical expenses, and

pain and suffering. The court awards $8,221.42 in funeral

expenses and $3,486.22 in medical expenses. To the

extent that theses funds have already been paid by Vika

Howard the estate shall reimburse her.

Pain and suffering is more difficult to quantify. It

appears that Howard did not experience great pain at the

Appendix A-48

time of the injury. On the other hand, there is evidence

in the medical records that the cast bothered him and

caused discomfort. There is at least one notation in

medical records that Howard was in pain from the in-

jury. Exhibit 41. Moreover, Howard experienced a medi-

cal procedure in Mexico in less that optimal circum-

stances. [*23] On the night of his death, Howard was

experiencing difficulty sleeping. He eventually lost

awareness as the flow of blood to his lungs was con-

stricted. He regained limited consciousness prior to his

death. On the way to the hospital and upon arriving he

complained of a dry mouth and difficult breathing. But

he was not responsive to questioning. Vika Howard

testified that when she found him in distress, sitting up

in bed and staring at the wall, Howard made a silent

request for help by lifting his arms up to her and then to

his son. The poignancy of this gesture is enhanced be-

cause Kenneth Howard enjoyed life and was devoted to

his family. The court finds that Howard had some

awareness of his impending death and distress in the

early morning hours of October 11, 1990. Given all of the

above factors, the court awards $35,000 in pain and suf-

fering.

The total survivor award is $46,707.

Prejudgment interest is awarded on all amounts

for past damages (damages through the date of trial) at

the rate provided for by 28 U.S.C. § 1961 and Local Rule

590. Prejudgment interest shall accrue on such amounts

from the date of Kenneth Howard’s death, October 11,

1990, to the date judgment was entered, September 17,

1992.

Appendix A-49

IV.

The clerk shall enter an amended judgment for

plaintiffs in the amount of $366,968, plus prejudgment

interest at the rate of 3.41% on damages sustained

through the date of trial, amounting to $8,223, plus costs

in the amount of $3,603, for a total of [*24] $378,794.

Postjudgment interest shall accrue pursuant to 28 U.S.C. §

1961 from the date the original judgment was entered,

September 17, 1992, at the rate then applicable.

IT IS SO ORDERED.

Dated: 10 February 1993

/s/David F. Levi

DAVID F. LEVI

United States District Judge

Appendix A-50