S. S. Helena, Matter of

• Citation: 529 F.2d 744,1976 A.M.C. 2022
• Decision Date: 02 April 1976
• Docket Number: No. 72--2254,72--2254
• Parties: In the Matter of the Complaint of Sincere Navigation Corporation, as owner of the S/S HELENA, for Exoneration from or Limitation of Liability and the Oceanus Mutual Underwriting Association, Ltd. SINCERE NAVIGATION CORPORATION and the Oceanus Mutual Underwriting Association, Ltd., Appellants, v. UNITED STATES of America et al., Appellees. Virginia O'QUINN, Individually and as Administratrix of the Succession of Walton E. O'Quinn and Natural Tutrix of the minor, Cathleen Caprice O'Quinn, Cross-Appellant, v. The OCEANUS MUTUAL UNDERWRITING ASSOCIATION, LTD., et al., Cross-Appellees. UNITED STATES of America, Cross-Appellant, v. S/S HELENA, her engines, etc., in rem and Sincere Navigation Corporation, et al., Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 744

529 F.2d 744

In the Matter of the Complaint of Sincere Navigation

Corporation, as owner of the S/S HELENA, for

Exoneration from or Limitation of

Liability and the Oceanus

Mutual Underwriting Association, Ltd. SINCERE NAVIGATION

CORPORATION and the Oceanus Mutual Underwriting

Association, Ltd., Appellants, v. UNITED STATES of America et al., Appellees.

Virginia O'QUINN, Individually and as Administratrix of the

Succession of Walton E. O'Quinn and Natural Tutrix

of the minor, Cathleen Caprice O'Quinn, Cross-Appellant, v. The OCEANUS MUTUAL UNDERWRITING ASSOCIATION, LTD., et al.,

Cross-Appellees.

UNITED STATES of America, Cross-Appellant,

v.

S/S HELENA, her engines, etc., in rem and Sincere Navigation

Corporation, et al., Cross-Appellees.

No. 72--2254.

United States Court of Appeals Fifth Circuit.

April 2, 1976.

Clarence A. Frost, New Orleans, La., for Sincere & Oceanus.

Jerry G. Jones, J. B. Jones, Jr., Cameron, La., for O'Quinn and DeLoach.

Joseph M. Brush, New York City, Patrick Burke, New Orleans, La., for appellants.

Gerald J. Gallinghouse, U.S. Atty., John R. Schupp, Asst. U.S. Atty., New Orleans, La., Neal D. Hobson, Charles M. Steen, New Orleans, La., Baker & Abbott, Allen van Emmerik, Admiralty & Shipping Section, U.S. Dept. of Justice, Washington, D.C., for United States.

Walter H. Fleischer, Dept. of Justice, Washington, D.C., George A. Frilot, III, E. Jack Green, Jr., New Orleans, La., for Jacks and Lundquist and others.

A. J. McNamara, Metaire, La., for Fregia.

Joe L. Horne, New Orleans, La., for Chas. Morrison, June Morrison and Richard Kraus.

Louis B. Merhige, New Orleans, La., for Campisano.

Raymond A. McGuire, New Orleans, La., for Kapowski.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, CLARK and RONEY, Circuit Judges.

WISDOM, Circuit Judge:

This case presents several questions concerning damages for wrongful deaths occurring in state territorial waters.

The freighter Helena collided with the United States Coast Guard vessel White Alder at about 6:30 p.m. on December 7, 1968, on the Mississippi River near Bayou Goula, Louisiana. Seventeen of the crewmen of the White Alder were killed, and the lives of three were miraculously spared. Two days after the collision, Sincere Navigation Corporation (Sincere), the owner of the Helena, filed a petition for exoneration from or limitation of liability. Claims for damages were filed in that proceeding by two of the surviving crewmembers and by relatives of many of the decedents. Most of these claimants also later filed complaints against Sincere's insurer, the Oceanus Mutual Underwriting Association, Ltd., under the Louisiana Direct Action Statute. ¹

On April 17, 1972, the district judge issued his most recent opinion in this case. ² His judgments awarding damages were immediately appealed. This Court withheld disposition of the case pending issuance of our opinions in Johnson v. Penrod Drilling Company, 5 Cir. 1973, 469 F.2d 897, aff'd en banc, 1975, 510 F.2d 234, which have a direct bearing on the proper elements of damages to be considered in awarding damages to the individual claimants. In the nearly three years that have passed since the district judge's last opinion, the relevant law has undergone substantial change. As a result of these developments, regrettably, we must again delay final disposition of the case by remanding it to the district court for the resolution of certain important issues. ³

I.

Before discussing these issues, it will be necessary to determine what law governs this case. The claimants filed suit in 1968 and 1969, some alleging diversity jurisdiction and others alleging both diversity jurisdiction and the general maritime law. Under either jurisdictional allegation, the governing law would have been the Louisiana wrongful death statute, La.Civ.Code Art. 2315. ⁴ Louisiana courts have held this article permits damages for the mental suffering of surviving relatives. See Cambrice v. Fern Supply Co., Inc., La.App.1973, 285 So.2d 863, 866 n. 5; Robertson v. Town of Jennings, 1911, 128 La. 795, 55 So. 375, 379--80.

In 1970 the Supreme Court created a new cause of action for wrongful death under the general maritime law. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, overruling The Harrisburg, 1886, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358. The Court did not define the measure of damages under this new action, choosing to 'await further sifting through the lower courts in future litigation'. 398 U.S. at 408, 90 S.Ct. at 1792, 26 L.Ed.2d at 361. The district court in the present case held that, after Moragne, damages for wrongful death must be determined according to general maritime law, and that damages may be awarded for the 'emotional distress' suffered by the surviving family members of the decedents. In re Sincere Navigation Corp., E.D.La.1971, 329 F.Supp. 652. The Supreme Court later held, in Sea-Land Services, Inc. v. Gaudet, 1974, 414 U.S. 573, 585 & n. 17, 94 S.Ct. 806, 815, 39 L.Ed.2d 9, 21, that, although damages are recoverable for the loss of the decedent's 'love, affection, care, attention, companionship, comfort, and protection', the 'mental anguish or grief' of Moragne beneficiaries is not compensable under the general maritime wrongful death remedy.

We must first determine whether state law or maritime law governs the damages issues in this case. Two questions are involved in reviewing the district judge's conclusion to apply general maritime law. First, should Moragne be applied retroactively to actions filed before the date of that decision? Second, assuming that Moragne is applied retroactively, does the federal right created by that decision supplant or does it complement the long-recognized right to recover in an admiralty court under a state wrongful death statute for a death occurring in state territorial waters. ⁵

A.

The Supreme Court has held that, in determining whether a nonconstitutional decision should be applied retroactively, 'we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation'. Chevron Oil Co. v. Huson, 1971, 404 U.S. 97, 106--107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306, quoting Linkletter v. Walker, 1965, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601, 608. The primary purpose of Moragne is to 'assure uniform vindication of federal policies, removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts'. 398 U.S. at 401, 90 S.Ct. at 1788, 26 L.Ed.2d at 357. If we held that Moragne must be limited to prospective operation, the claimants in this case would have to rely on the state wrongful death statute. The maritime law of negligence and of unseaworthiness would then have to be enforced through the state remedial statute and the related state law. This is precisely what Moragne was designed to prevent. It would therefore further the purpose of Moragne to apply that decision retroactively to the present case.

The Supreme Court also noted in Huson that, in deciding whether a case should be applied retroactively, courts should consider the injustice or hardship such a holding would produce. 404 U.S. at 107, 92 S.Ct. at 355, 30 L.Ed.2d at 306. The parents of the unmarried decedents, who have recovered only for their emotional distress, have argued that it would be inequitable to apply Moragne (and hence Gaudet) retroactively, eliminating their recovery after they have spent considerable time and money in these proceedings, with a view towards recovering damages to which they were legally entitled at the time of the deaths. It is not clear, however, that Gaudet will deprive these parties of their entire recovery for emotional distress. Moreover, in deciding whether civil rules should be applied retroactively, we think that the purpose of the rule should be given greater weight than the extent to which the parties relied on the law that existed before that rule was announced. ⁶ We therefore hold that, in the present case, Moragne should be applied retroactively to provide a cause of action under the general maritime law for these wrongful deaths. ⁷

B.

Although we have held that the Moragne remedy was available to the claimants at the time of the district court's decisions in this case, it does not necessarily follow that this was the only remedy available. The admiralty courts have long recognized wrongful death actions based on state statutes. See, e.g., Western Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Grigsby v. Coastal Marine Service of Texas, Inc., 5 Cir. 1969, 412 F.2d 1011. The difficult question we now face is whether this state statutory action is still available in admiralty courts after Moragne. ⁸ It is first important to discern the rationale for enforcement in admiralty courts of state wrongful death statutes. We will then consider whether, after Moragne, that rationale continues to have force.

Admiralty courts have been recognizing wrongful death actions based upon state statutes for at least the past century. Before The Harrisburg held that a wrongful death action will not lie in the federal courts under the general maritime law, the admiralty courts were primarily concerned with whether they had the power to recognize the state-created causes of action. The reasoning of The E. B. Ward, Jr., E.D.La.1883, 17 F. 456, 460, is typical of the cases in the pre-Harrisburg period:

(I)f the state laws give such (wrongful death) action, why should not this court hold (following the conceded practice) 'that the cause of action, therefore, existed by force of the territorial statute, and since it constituted a tort, and was upon navigable waters, and occurred in a case of collision, the...