Motts v. M/V Green Wave

• Decision Date: 09 May 2000
• Docket Number: No. 99-40681,99-40681
• Citation: 210 F.3d 565
• Parties: (5th Cir. 2000) NEVILLE MOTTS; ET AL Plaintiffs, DANNA MOTTS, Individually and as Personal Representative of the Estate of Neville Motts, Plaintiff-Appellee, v. M/V GREEN WAVE, Its Engine, Tackle, In Rem; ET AL, Defendants, CENTRAL GULF LINES, INC.; LMS SHIPMANAGEMENT, INC.,also known as Lash Marine Services, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 565

210 F.3d 565 (5th Cir. 2000)

NEVILLE MOTTS; ET AL Plaintiffs, DANNA MOTTS, Individually and as Personal Representative of the Estate of Neville Motts, Plaintiff-Appellee, v. M/V GREEN WAVE, Its Engine, Tackle, In Rem; ET AL, Defendants, CENTRAL GULF LINES, INC.; LMS SHIPMANAGEMENT, INC.,also known as Lash Marine Services, Defendants-Appellants.

No. 99-40681

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

May 9, 2000

Appeal from the United States District Court for the Southern District of Texas

Before DAVIS, CYNTHIA HOLCOMB HALL,^* and SMITH, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

An unfortunate sea accident and the tragic events that followed it require us to consider the relationship between general federal admiralty jurisdiction and the Death on the High Seas Act ("DOHSA"). We hold that DOHSA applies where the decedent is injured on the high seas, even if a party's negligence is entirely land-based and begins subsequent to that injury.

I.

The decedent, Neville Motts, joined the M/V Green Wave as Chief Engineer on January 10, 1998, for its voyage to McMurdo Station in Antarctica. The Green Wave's mission was to resupply the American scientific research center in McMurdo. The Green Wave arrived at McMurdo but encountered engine difficulties on its return voyage. Specifically, the No. 2 piston broke, causing the entire engine to fail.

The ship's Captain, Peter Stalkus, ordered Motts to repair the engine. Motts, assisted by the second and third assistant engineers, attempted to repair the No. 2 piston. The three engineers removed the 3000-pound cylinder head and laid it on its headstand. Before they had a chance to secure the cylinder head to the headstand, the ship experienced an unforeseeable, dramatic roll. This roll caused the cylinder head to slide off its headstand, knocking Motts down and pinning him against a platform rail. Motts suffered a badly crushed pelvis and hip as a result. Motts's treating physician, who has performed over 2,000 hip surgeries, testified that Motts's was one of the most severe injuries he had ever treated.

Motts was examined by Captain Stalkus and the Chief Mate, in preparation for a telephone consultation with a physician at George Washington University Hospital ("GWU"). GWU's Maritime Medical Access Unit provides medical advice to ships at sea. GWU's doctor initially diagnosed a soft-tissue injury, but recommended that Motts be x-rayed as soon as possible, so that a more serious injury could be ruled out. Although Motts told Captain Stalkus that he had a history of vascular problems and cardiovascular surgeries, Stalkus did not relay this information to GWU's personnel.

Appellant Central Gulf Lines, Inc. ("CGL") owns and operates the Green Wave. Appellant LMS Ship Management, Inc. ("LMS") is a Louisiana corporation that serves as the management company for the Green Wave. As part of its contract with CGL, LMS is to ensure adequate and timely medical attention to injured or ill seamen on CGL's vessels. LMS had no employees aboard the Green Wave; LMS's health care officers all work in its New Orleans office. Captain Stalkus informed LMS's officers of the nature of Motts's injuries and of Motts's vascular problems and history of cardiovascular surgeries.

For the next two days, the Green Wave drifted on the high seas while the crew labored unsuccessfully to repair the vessel's engine. The Green Wave requested and received prompt assistance from the Polar Star, a Coast Guard cutter. The Polar Star began towing the Green Wave toward Christchurch, New Zealand. Over the next two weeks, while the vessel was being towed to port, Motts was bed-ridden in his quarters and mattress on the floor of his ship's office. Over that time his condition did not improve, and he remained in severe pain, causing Captain Stalkus to suspect that Motts had in fact suffered a very serious injury, not a soft-tissue injury. LMS's personnel officer testified that he knew the type of injury Motts had could result in Motts's death. Despite the fact that the Polar Star was equipped with an x-ray machine and staffed by a nurse practitioner, neither Stalkus nor LMS ever requested that Motts be examined or treated on the Polar Star. Indeed, Coast Guard personnel were informed, misleadingly, that the Chief Engineer had suffered only a "minor injury." Nor did LMS ever ask the Coast Guard to use one of the helicopters aboard the Polar Star to evacuate Motts, even though such an evacuation was feasible and safe. Similarly, neither Stalkus nor LMS informed GWU that the Green Wave was being towed by a vessel with such medical facilities. The district court found LMS's conduct to be "utterly negligent and downright inhumane." The district court also found that LMS's failure to have in place any plan for evacuating injured seamen constituted "conscious indifference to the rights and safety or welfare of injured seamen on GCL's vessels, and in particular Neville Motts." Motts v. M/V Green Wave, 50 F. Supp.2d. 634, 642 (S.D. Tex. 1999).

Neville Motts first received appropriate medical attention when the Green Wave arrived in New Zealand on March 1, 1998, two weeks after his injury. LMS provided him with the option of undergoing hip replacement surgery in New Zealand or in Houston. Motts opted to have the operation in Houston. The surgery was performed on March 10, 1998. Ten days later, Motts suffered a fatal heart attack. The district court held that the delays in Motts's receiving treatment proximately caused Motts's death. See id. at 645. Motts's risk of death was at least doubled by the fact that the hip replacement surgery was not performed within 48 hours of the injury. See id. at 644. Specifically, the delays placed Motts at an increased risk of pulmonary embolism and cardiac problems. See id. The three-week interval between the injury and the surgery made the operation ten times more difficult to perform than it would have been had the surgery been done within two days of the injury. See id. at 644-45. The court determined that although Motts's decision not to undergo surgery in New Zealand delayed his operation, the desire to undergo surgery in the United States was normal and reasonable under the circumstances. See id. at 645.

Motts filed suit against CGL and LMS in federal court prior to his death. After his death, Appellee Danna Motts, Neville Motts's widow, was substituted as the plaintiff. Appellee sued CGL under the Jones Act and general maritime law for negligence and unseaworthiness. Appellee sued LMS under Texas state law, or in the alternative, general maritime law. LMS argued that DOHSA provides the exclusive remedy for any suit against it by Appellee. The district court granted in part and denied in part LMS's motion for partial summary judgment in a published opinion, holding DOHSA to be inapplicable. See Motts v. M/V Green Wave, 25 F. Supp.2d. 771 (S.D. Tex. 1998). After a bench trial the court found in Appellee's favor against both Appellants, again in a published opinion. See Motts, 50 F. Supp.2d at 634. Because certain non-pecuniary damages are not available under the Jones Act but are available under Texas state law, such damages were assessed only against LMS. See id. at 646.

II.

We review the district court's determination that DOHSA does not apply de novo. See Bailey v. Carnival Cruise Lines, Inc., 774 F.2d 1577, 1578 (11th Cir. 1985). We examine the district court's factual determinations that Motts was not contributorily negligent and that CGL failed to render adequate and timely cure for clear error. See Couch v. Cro-Marine Transp., Inc., 44 F.3d 319, 327 (5th Cir. 1995).

III.

As a threshold matter, the district court determined that DOHSA does not govern Appellee's claims against LMS. Because DOHSA does not permit the award of non-pecuniary damages, see 46 U.S.C. § 762, and preempts all wrongful death actions under state law where it applies, see Dooley v. Korean Air Lines Co., 524 U.S. 116, 123 (1998), Appellee can recover punitive and other non-pecuniary damages only if DOHSA is inapplicable.

DOHSA provides, in pertinent part, that "[w]henever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas . . . the personal representative of the decedent may maintain a suit for damages in the district courts of the United States." 46 U.S.C. § 761. At first glance, the plain text of this statutory provision seems to indicate that DOHSA is implicated only when the wrongful act precipitating death occurs on the high seas. See Lacey v. L.W. Wiggins Airways, Inc., 95 F. Supp. 916, 918 (D. Mass. 1951) ("It appears that the phrase 'occurring on the high seas' . . . is adjectival of 'wrongful act, neglect, or default', rather than of 'death'. . . . The statute is taken to mean, therefore, that the wrongful act, neglect or default which caused the death must have occurred on the high seas if a right of action is to exist.").

As subsequent courts have interpreted DOHSA, however, the statute's application is not limited to negligent acts that actually occur on the high seas. The Supreme Court has repeatedly noted that when the death itself occurs on the high seas, DOHSA applies. See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218 (1986) ("Here, admiralty jurisdiction is expressly provided under DOHSA because the accidental deaths occurred beyond a marine league from shore."); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 271 n.20 (1972) ("Of course, under the Death on the High Seas Act, a wrongful-death action arising out of an airplane crash on the high seas beyond a marine league from the shore of a State may clearly be brought in a federal admiralty court.")¹; Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 620 (1978) (noting that DOHSA creates "a remedy in admiralty for wrongful deaths more than three miles from shore"). In those cases, unlike in the instant case, the...