507 F.2d 794 (1st Cir. 1974), 73-1390, Barbe v. Drummond

Docket Nº:73-1390.
Citation:507 F.2d 794
Party Name:Arthur H. BARBE, Admr., Plaintiff-Appellee, v. David N. DRUMMOND et al., Defendants-Appellees, David N. Drummond, Defendant-Appellant.
Case Date:November 26, 1974
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 794

507 F.2d 794 (1st Cir. 1974)

Arthur H. BARBE, Admr., Plaintiff-Appellee,

v.

David N. DRUMMOND et al., Defendants-Appellees, David N.

Drummond, Defendant-Appellant.

No. 73-1390.

United States Court of Appeals, First Circuit

November 26, 1974

Argued Sept. 5, 1974.

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Henry D. White, Boston, Mass., for David N. Drummond, appellant.

John A. Donovan, Jr., Boston, Mass., with whom Thomas D. Burns and Burns & Levinson, Boston, Mass., were on brief, for Arthur H. Barbe, appellee.

Before McENTEE and CAMPBELL, Circuit Judges, and CLARY, [*] District judge.

McENTEE, Circuit Judge.

This admiralty suit was commenced by the administrator of Janet Barbe's estate to recover for her pain and suffering following the sinking of a motorboat owned and operated by defendant Drummond in which she was a passenger.

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In a nonjury trial the court concluded that Drummond had been negligent and awarded the plaintiff $15,000 plus interest for her conscious pain and suffering and $1,500 plus interest for her funeral expenses. The defendant's appeal raises three issues: whether the evidence warranted a finding of negligence, whether damages for conscious suffering can be awarded under the Death on the High Seas Act (DOHSA) or under general maritime law, and whether funeral expenses can be awarded under DOHSA or the general maritime law.

I

In considering the first issue the standard of review in this court is clear. 'In reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous.' McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954). We can conclude that a finding is clearly erroneous only if after reviewing the entire evidence we are 'left with the definite and firm conviction that a mistake has been committed.' Id. In the instant case it is clear that no mistake has been made in finding Drummon negligent.

On Friday, May 16, 1969, the defendant took possession of a used 26-foot Owens Sea Skiff named 'Diane D' which he had purchased from Boston Boat Sales, Inc. Late in the afternoon of the next day, with Miss Barbe as his guest, he set out from Marshfield, Massachusetts, intending to arrive at Sesuit Harbor in East Dennis, Massachusetts, around 10 o'clock that evening. This course required the craft to go out the North River to Massachusetts Bay and then across to Sesuit Harbor. In passing under the bridge that carries Route 3A across the North River, the defendant hit the bridge pilings. The testimony conflicted as to how many times contact was made and whether both sides of the boat hit the bridge. Two witnesses testified that the boat did not follow the course of the river from that point, but instead crossed over some mussel beds and proceeded erratically outside the channel and forced two other boats to seek safety outside the path of the Diane D. One witness testified that near the mussel beds there were cement blocks that had once been moorings. The defendant stated that he inspected the Diane D for damage both after his passage under the bridge and when he reached the mouth of the river. Near sunset, when the boat was about five miles off Manomet Point, the defendant observed a small quantity of water slopping up over the flooring in the cabin. Recognizing that the boat was flooding, he started the bilge pump, but confused the air vent pipe with the bilge pump and tried to make the air vent pipe reach the water by adding an extension to it. When the engine died almost immediately, he tried to restart it. When that failed, he tried to radio for help, but could get no answer. Since sinking seemed imminent, defendant fashioned a makeshift raft from floatable cushions and an inner tube and launched this with Miss Barbe on it. She died of exposure one to three hours later, but defendant was rescued the next morning.

Examination of the Diane D, which was recovered from the bay, disclosed that it flooded because of a long opening along a seam between two pieces of plywood planking under the hull on the starboard side. Testimony from marine surveyors showed that the opening must have resulted from striking an object such as a lobster buoy or a log. The impact had broken a frame in the area, and the seam could have gradually opened up from driving the boat into the sea. The defendant had heard over the boat radio before leaving the marina that small craft warnings were posted until sunset, and he acknowledged that the Diane D had pounded against the water and banked on the waves. Small craft warnings, in the opinion of one witness, would pertain to any boat under 65 feet long.

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There was testimony from the defendant that he had experience racing sailing boats and running small motor boats, but had never previously owned a power boat. The defendant admitted that he had never used the boat radio to call anyone, and thus had no personal knowledge whether it transmitted. Other testimony indicated that there are increased risks in operating boats at night. The only navigational aids are those buoys which are lighted. Objects floating in the water are more likely to be hit than to be seen and avoided. Rescue is more difficult if trouble develops, and operation of the boat in heavy weather is more difficult when you cannot see the wave formation.

Viewing this and other evidence, the court concluded that negligence and proximate cause were both established:

'Mr. Drummond had no business going out when he did under the conditions that he did, in the light of his inexperience with this type of boat and in the light of his lack of knowledge of the condition of various of its safety devices . . ..

'I find that he was negligent in other respects, each of which were, under the combination of circumstances, proximate causes(:) . . . his disinclination to take additional instructions and a test drive from the Boston Boat Sales people . . .; his confusion as to the method of operation of the bilge pump; his lack of knowledge whether there was or was not a proper grounding of the radio; his poor driving of the craft as it went under the tunnel . . ..

'. . . I consider that it was negligent on his part not to have discovered the water sooner than he did. He discovered the water when there was a film of water on the floor of the craft. The craft had to get a solid smash of which any person aboard would have been very much aware . . .. There was a positive smash such that should have made him inspect the water condition of that hull more often than he did.

'I consider, furthermore, that had he sooner discovered the water, the radio, whether or not it was grounded, could in all probability have been employed to have summoned help.'

After carefully examining the entire transcript, we conclude there was evidence to support each finding of negligence made by the trial court. Not only was there some evidence, but the weight of the evidence supported the trial court's findings. Hence they were definitely not clearly erroneous and must stand.

II

We turn now to appellant's claim that damages for conscious pain and sufferin cannot be awarded to the plaintiff under either DOHSA or the general maritime law. The recovery DOHSA provides is 'a fair and just compensation for the pecuniary loss sustained . . ..' 46 U.S.C. 762 (1970). This language has been held to exclude pain and suffering as an element of damages. Dennis v. Central Gulf S.S. Corp., 453 F.2d 137 (5th Cir.), cert. denied, 409 U.S. 948, 93 S.Ct. 286, 34 L.Ed.2d 218 (1972); Canillas v. Joseph H. Carter, Inc., 280 F.Supp. 48 (S.D.N.Y.1968); Decker v. Moore-McCormack Lines, Inc., 91 F.Supp. 560 (D.Mass.1950). Thus plaintiff cannot sustain any damages for pain and suffering by relying on DOHSA.

But plaintiff advances three possible theories based on the general maritime law to support his recovery of damages for pain and suffering. The first theory is to look to state law for a survival statute and use that to supplement federal maritime law. See Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). 1 It is clear that if Miss Barbe

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had lived, she would have had a federal cause of action in admiralty for the pain and suffering she endured. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). Though she did not live, according to this theory her action can still be maintained by the administrator of her estate if a state survival statute applies. Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941). 2 Since the plaintiff, the defendant, and the victim were all residents of Massachusetts and since the boat was moored there, we look to Massachusetts law and apply its survival statute, Mass.Gen.Laws ch. 228, 1(2)(a) (1958). 3

The advantage of this theory-- and the reason it was accepted in a recent case, Dugas v. National Aircraft Corp., 438 F.2d 1386 (3d Cir. 1971)-- is that it avoids the apparent conflict with DOHSA that results if pain and suffering is held to be an element of damages under the recently recognized federal maritime wrongful death action. See the discussion infra of Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.ed.2d 339 (1970). This reasoning holds that DOHSA did not preempt the separate and distinct remedy given by state survival statutes, and thus it is proper to award damages under the latter statutes. On the other hand, the disadvantages of this theory are twofold. It requires a federal court to divine whether the state survival statute was meant to apply to admiralty claims, which may be difficult enough for torts occurring in state territorial waters but is even more difficult in a case like this where the death occurs on the high seas. Cf. Moragne, supra, at 393 n. 10, 90 S.Ct. 1772. This theory also makes recovery by an admiralty plaintiff...

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