Davis v. Bender Shipbuilding and Repair Co., Inc.

• Citation: 27 F.3d 426
• Decision Date: 21 June 1994
• Docket Number: No. 92-36826,92-36826
• Parties: Robert DAVIS Sr., Personal Representative of the Estate of Robert Davis Jr.; Janice Schneider, Personal Representative of the Estate of Matthew Schneider; and John Bauer, Personal Representative of the Estate of John Dieterich, Plaintiffs-Appellants, v. BENDER SHIPBUILDING AND REPAIR CO., INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 426

27 F.3d 426

1994 A.M.C. 2587

Robert DAVIS Sr., Personal Representative of the Estate of

Robert Davis Jr.; Janice Schneider, Personal Representative of the Estate of Matthew Schneider; and John Bauer, Personal Representative of the Estate of John Dieterich, Plaintiffs-Appellants, v. BENDER SHIPBUILDING AND REPAIR CO., INC., Defendant-Appellee.

No. 92-36826.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 31, 1994.

Decided June 21, 1994.

James M. Beard, and John G. Cooper, Stafford, Frey, Cooper & Stewart, Seattle, WA, for plaintiffs-appellants.

Brian P. McCarthy, Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, AL, and Arden E. Page, Burr, Pease & Kurtz, Anchorage, AK, for defendant-appellee.

Appeal from the United States District Court for the District of Alaska, James K. Singleton, District Judge, Presiding.

Before: GOODWIN, SCHROEDER and NORRIS, Circuit Judges.

SCHROEDER, Circuit Judge:

This is an appeal by the estates of seamen who drowned in the Bering Sea after becoming trapped in the hull of a sinking vessel. The estates seek to recover damages for lost future earnings from the ship's builder, Appellee Bender Shipbuilding, under federal general maritime law.

In Evich v. Connelly, 759 F.2d 1432 (9th Cir.1985) (Evich I ), we held that the non-dependant survivors of a deceased seaman could pursue a general maritime survival action against the owner of the seaman's vessel. Following our remand to the trial court in Evich I, we held that lost future earnings is a permissible measure of damages in some general maritime survival actions. Evich v. Morris, 819 F.2d 256 (9th Cir.), cert. denied, 484 U.S. 914, 108 S.Ct. 261, 98 L.Ed.2d 218 (1987) (Evich II ). We now hold that our decision in Evich II, insofar as it bears on the case now before us, is no longer controlling authority because it has been partially overruled by Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990).

I.

The tragic facts of this case are straightforward and undisputed. On March 23, 1990, nine crewmen died after becoming trapped in the hull of the vessel ALEUTIAN ENTERPRISE as it sank in the Bering Sea. The estates of the deceased crewmen brought claims against the owners of the vessel and the employer of the crewmen in federal district court in the Western District of Washington. These claims were settled. Thereafter, the estates of three of the crewmen ("the estates") brought this suit against Bender, the shipbuilder, alleging that Bender's negligence in designing and constructing the vessel caused the death of the crewmen.

The three crewmen died without dependent heirs. Because estates may not pursue wrongful death claims for loss of support or for other personal injuries that could be recovered by heirs, the estates seek to pursue a survival action for the lost future income the crewmen would have received but for Bender's alleged negligence. The estates do not rest their survival claim on any statutory basis. Instead, they invoke the general maritime law. The district court granted Bender's motion to dismiss, finding that the estates' claims were foreclosed by the Supreme Court's decision in Miles v. Apex, 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). The estates appeal.

II.

Recovery for maritime deaths is governed by a patchwork of state law and both federal statutory law and common law. In the early twentieth century, the legislatures of most of the states rejected the common law proscription of wrongful death actions, enacting wrongful death statutes. See Miles, 498 U.S. at 23, 111 S.Ct. at 320-21. Similarly, in 1920, Congress enacted two maritime wrongful death statutes; the Jones Act, codified at 46 U.S.C.App. Sec. 688 (1988), and the Death on the High Seas Act (DOHSA), codified at 46 U.S.C.App. Secs. 761-67 (1988).

The Jones Act creates a cause of action for the wrongful death of seamen. Liability under the Jones Act is determined in accordance with the statutes governing injuries to railroad employees. 46 U.S.C.App. Sec. 688(a); Evich I, 759 F.2d at 1433. Jones Act claims may be pursued by surviving spouses, children or dependent next of kin, 45 U.S.C. Sec. 51 (incorporated through 46 U.S.C.App. Sec. 688(a)); Evich I, 759 F.2d at 1433, and the only proper defendant in a Jones Act action is the seaman's employer. See, e.g., The Norland, 101 F.2d 967, 971 (9th Cir.1939). Negligence is the only basis for liability under the Jones Act.

DOHSA also creates a wrongful death cause of action for maritime deaths. Unlike Jones Act claims, DOHSA claims may be brought by dependent heirs on behalf of anyone who has died at sea, not just seamen. See Miles, 498 U.S. at 24, 111 S.Ct. at 321. In addition, DOHSA claims may be pursued against defendants other than employers. See 46 U.S.C.App. Sec. 761. DOHSA, however, provides a remedy only for death on the high seas, not for death in state territorial waters, the waters within one marine league from shore. Id. ¹

For several years, DOHSA and the Jones Act effectively complemented state wrongful death statutes, ensuring some measure of recovery for almost all wrongful maritime deaths. The Jones Act provided for recovery for the death of seamen, whether killed in state waters or on the high seas. Designated heirs of deceased longshoremen and other civilians could bring suit either under DOHSA or under a state wrongful death statute, depending on whether death occurred on the high seas or in state waters. Miles, 498 U.S. at 24-25, 111 S.Ct. at 321-22. Anomalies developed, however, as federal courts began to recognize "unseaworthiness" as a basis for recovery in DOHSA actions. Id. at 25-26, 111 S.Ct. at 321-22 (discussing Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944) and Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946)). In an unseaworthiness claim, the owner of a vessel is held strictly liable for failing to provide a safe ship. No showing of negligence, or any fault at all, is required. Id. 498 U.S. at 25, 111 S.Ct. at 321-22. As a consequence of the attractiveness of no-fault liability, "unseaworthiness became the principal vehicle for recovery" for maritime deaths. Id. at 25-26, 111 S.Ct. at 321-22 (citing Moragne v. States Marine Lines, Inc., 398 U.S. 375, 399, 90 S.Ct. 1772, 1787, 26 L.Ed.2d 339 (1970)). But because DOHSA does not apply to deaths in territorial waters, unseaworthiness claims were available only when the death occurred on the high seas or the territorial waters of one of the minority of states recognizing such a remedy. See id. 498 U.S at 26-27, 111 S.Ct. at 322-23. In most states, recovery for deaths in territorial waters required a showing of negligence.

This was the problem facing the plaintiff in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). The decedent in Moragne was a longshoreman killed while on board a vessel docked in Florida state waters. The plaintiff, decedent's widow, sought to pursue an unseaworthiness claim but was unable to do so. Florida, like most states at the time, did not recognize unseaworthiness claims under its wrongful death statute, and DOHSA did not apply because the longshoreman had perished in state waters. Overruling The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), the Supreme Court recognized a general maritime unseaworthiness claim. The Court reasoned that there was no longer a valid basis for The Harrisburg 's rejection of general maritime wrongful death claims in light of the universal acceptance of wrongful death by state legislatures and by Congress. Moragne, 398 U.S. at 388-98, 90 S.Ct. at 1781-82.

Of critical importance to the Court in Moragne was a need for uniformity. The Court rejected the notion that DOHSA's application only to death on the high seas evinced a congressional intent to foreclose federal claims brought on behalf of non-seamen who perished in state waters. The Court found that both DOHSA and the Jones Act represent a manifestation of Congress' intent to create uniformity in admiralty jurisdiction by legislation. Id. at 400-01, 90 S.Ct. at 1787-88. In light of the nonuniformities created by the emergence of unseaworthiness claims, the Court found that Congress' preference for uniformity could only be served by recognizing a general maritime unseaworthiness claim for the death of longshoremen in state waters. Miles, 498 U.S. at 26-27, 111 S.Ct. at 322-23 (discussing Moragne, 398 U.S. at 402, 90 S.Ct. at 1788); Barbe v. Drummond, 507 F.2d 794, 800 (1st Cir.1974). The Court in Moragne also strongly suggested that the "humane and liberal character" of proceedings in admiralty favors a liberal extension of remedies for maritime deaths unless such remedies are expressly foreclosed by Congress. Moragne, 398 U.S. at 386-87, 90 S.Ct. at 1780.

In the wake of Moragne, several courts of appeals, including this one, found that Moragne supported recognition of general maritime survival actions in addition to wrongful death claims. E.g., Evich I, 759 F.2d at 1434; Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890 (5th Cir.1984); Barbe, 507 F.2d at 799-800; Spiller v. Thomas M. Lowe, Jr. & Assocs., 466 F.2d 903 (8th Cir.1972). In a survival action, a decedent's estate may recover damages on behalf of the decedent for injuries that the decedent has sustained. In a wrongful death action, by comparison, the decedent's dependents may only pursue claims for personal injuries they have suffered as a result of a wrongful death. Miles v. Melrose, 882 F.2d 976, 985 (5th Cir.1989), aff'd, 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990).

Recognition of the general maritime survival action has provided a remedy to decedents' estates, who otherwise might not have had standing under the Jones Act or DOHSA to bring suit, Evich I, 759 F.2d at 1434, and has expanded the scope of damages recoverable for maritime deaths beyond that...