770 F.2d 455 (5th Cir. 1985), 84-3671, Sistrunk v. Circle Bar Drilling Co.

Docket Nº:84-3671.
Citation:770 F.2d 455
Party Name:Karen SISTRUNK, Individually and As Administratrix of the Estate of Michael Glenn Sistrunk, Plaintiff-Appellee, v. CIRCLE BAR DRILLING COMPANY, Defendant-Appellant. Sonya SISTRUNK, Individually and As Administratrix of the Estate of David Brian Sistrunk, Plaintiff-Appellee, v. CIRCLE BAR DRILLING COMPANY, Defendant-Appellant. Betty Mae RUTLAND, Ind
Case Date:September 09, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 455

770 F.2d 455 (5th Cir. 1985)

Karen SISTRUNK, Individually and As Administratrix of the

Estate of Michael Glenn Sistrunk, Plaintiff-Appellee,

v.

CIRCLE BAR DRILLING COMPANY, Defendant-Appellant.

Sonya SISTRUNK, Individually and As Administratrix of the

Estate of David Brian Sistrunk, Plaintiff-Appellee,

v.

CIRCLE BAR DRILLING COMPANY, Defendant-Appellant.

Betty Mae RUTLAND, Individually and As Independent Executrix

and Representative of the Estate of Clifford

Rutland, Plaintiff-Appellee,

v.

CIRCLE BAR DRILLING COMPANY, Defendant-Appellant.

No. 84-3671.

United States Court of Appeals, Fifth Circuit

September 9, 1985

Page 456

Phelps, Dunbar, Marks, Claverie & Sims, Margot Mazeau, Michael H. Bagot, Jr., C. Theodore Alpaugh, III, New Orleans, La., for defendant-appellant.

Kierr, Gainsburg, Benjamin, Fallon & Lewis, Gerald E. Meunier, New Orleans, La., for Sistrunk, et al.

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

Before GOLDBERG, REAVLEY and GARWOOD, Circuit Judges.

REAVLEY, Circuit Judge:

The sole question presented in this appeal is whether parents of seamen can recover nonpecuniary damages in a cause of action under general maritime law for wrongful death where the seamen were killed in territorial waters and were survived by spouses and/or children. The district court held that the parents could recover. We reverse.

I.

On August 8, 1980, Circle Bar Rig No. 8, a drilling vessel owned by Circle Bar Drilling Co., capsized in the territorial waters of the State of Louisiana. Among the crewmembers who drowned were the Sistrunk brothers, Michael Glenn and David Brian, and Clifford Rutland. Michael Sistrunk was survived by a widow, children, and his parents. David Sistrunk was survived by a widow and his parents. Clifford Rutland was survived by his widow, children, and mother.

The widows were appointed as the representatives of their deceased husbands' estates and filed wrongful death actions under the Jones Act, 46 U.S.C. Sec. 688 (1982), for negligence and under general maritime law for unseaworthiness. The parents joined in these actions seeking nonpecuniary damages for the loss of their sons' society. None of the parents were financially dependent on their sons at the time of the casualty.

In denying Circle Bar's motion for summary judgment, the district court held that the parents had a cause of action for loss of society under Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Thereafter, all of the claims of the widows and children were settled. Judgment in favor of the parents was entered after Circle Bar and the parents stipulated that the vessel was unseaworthy and the quantum of damages. 1

II.

The sole cause of action under which the parents may recover is the general maritime law cause of action for wrongful death announced in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Other possible causes of action do not provide a remedy for the parents. The Death on the High Seas Act (DOHSA), 46 U.S.C. Secs. 761-768 (1982), does not apply to deaths occurring, as here, in territorial waters and limits recovery to pecuniary damages, 46 U.S.C. Sec. 762 (1982). The Jones Act, 46 U.S.C. Sec. 688 (1982), is not available, because parents can recover only when the seaman is not survived by a spouse or children, 45 U.S.C. Sec. 51 (1982). Finally, the Louisiana wrongful death statute, La.Civ.Code Ann. art. 2315 (West Supp.1985), is supplanted in

Page 457

maritime wrongful deaths by the general maritime cause of action for wrongful death created in Moragne. Matter of S/S Helena, 529 F.2d 744, 753 (5th Cir.1976).

Because the parents' remedy is exclusively under Moragne, we begin with a discussion of that case. In The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1866), the Supreme Court held that general maritime law did not provide a cause of action for wrongful death. As a result, there was no remedy for death on the high seas caused by the breach of a maritime duty. If the death occurred in territorial waters, federal law allowed the survivors to recover under the adjacent state's wrongful death statute. Moragne, 398 U.S. at 393, 90 S.Ct. at 1784, 26 L.Ed.2d at 352. In an effort to provide seamen with a greater range of remedies, Congress in 1920 enacted DOHSA, ch. 111, Secs. 1-8, 41 Stat. 537 (codified as amended at 46 U.S.C. Secs. 761-768 (1982)), and the Jones Act, ch. 250, Sec. 33, 41 Stat. 1007 (codified as amended at 46 U.S.C. Sec. 688 (1982)). DOHSA, 46 U.S.C. Sec. 761 (1982), creates a maritime cause of action for wrongful death on the high seas, and the Jones Act, 46 U.S.C. Sec. 688 (1982), provides a remedy at law against seamen's employers for seamen injured or killed through the negligence of the employer. In 1964, the Supreme Court held that survivors of seamen killed in territorial waters could sue the deceased seamen's employers only under the Jones Act, to the exclusion of state wrongful death statutes and claims based on unseaworthiness. Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964).

By 1970, under this tripartite statutory scheme, the proper remedy was dependent on the conjuncture of numerous factors: whether the injury occurred on the high seas or in territorial waters; whether the injured person was a seaman; whether the person survived or died from his injury; and whether the adjacent state's wrongful death statute provided a remedy. If an injury on the high seas resulted in the death of any person, DOHSA, 46 U.S.C. Secs. 761-762 (1982), provided that certain named survivors could bring an action in admiralty, with its accompanying bases of liability, to recover pecuniary losses. If an injury occurred in the territorial waters, recovery depended on who was injured. If a seaman were injured, recovery depended in turn on whether the seaman survived. If the seaman survived, he could sue his employer in a court of law for negligence under the Jones Act, 46 U.S.C. Sec. 688 (1982), or in admiralty court for unseaworthiness, see McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 222, 78 S.Ct. 1201, 1203, 2 L.Ed.2d 1272 (1958). If the seaman died from his injuries, the survivor's sole claim was for negligence under the Jones Act. Gillespie, 379 U.S. at 154-55, 85 S.Ct. at 312, 13 L.Ed.2d at 204. If a nonseaman were injured in a state's territorial water, he could recover for negligence. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). If he died from his injuries, the nonseaman's survivors could recover for negligence or unseaworthiness provided that the state wrongful death statute allowed recovery on such theories of liability. The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959).

In Moragne, 398 U.S. at 395-96, 90 S.Ct. at 1785, 26 L.Ed.2d at 353-54, the Supreme Court noted the incongruities inherent in this tripartite scheme. First, within territorial waters, unseaworthiness, a violation of federal law, produced liability if the victim were merely injured but frequently not if he were killed. Second, identical breaches of the duty to provide a seaworthy vessel that result in death produced liability on the high seas but not in territorial waters adjacent to those states that did not recognize unseaworthiness claims. And finally, survivors of seamen had no recourse for deaths in territorial water caused by unseaworthiness while survivors of nonseamen had such a remedy when provided by state law.

In an effort to remedy this unfair and irrational system, the Court in Moragne, id. at 409, 90 S.Ct. at 1792, 26 L.Ed.2d at 361, held that an action lies under general

Page 458

maritime law for death caused by unseaworthiness. The Court recognized that in creating a new cause of action not before recognized by general maritime law and not the product of a comprehensive statutory scheme numerous subsidiary issues could be resolved only after further litigation in the lower courts. Id. at 405-08, 90 S.Ct. at 1790-92, 26 L.Ed.2d at 359-61.

In Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), the court was called upon to give further substance to the new cause of action created in Moragne. The Court held that in Moragne actions survivors were entitled to recover for loss of society, which "embrace[d] a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort, and protection." Id. at 585, 94 S.Ct. at 815, 39 L.Ed.2d at 21.

The last pronouncement in this area by the Supreme Court came in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). In Higginbotham, 436 U.S. at 625, 98 S.Ct. at 2015, 56 L.Ed.2d at 587, the Court held that the exclusive remedy of survivors of persons killed on the high seas is under DOHSA with damages limited to pecuniary losses and, therefore, the survivors could not bring a Moragne cause of action for loss of society.

III.

The question before this court now is whether the loss of society damages awarded in Gaudet may be recovered by parents where they are not dependent on the seamen, and where the seamen were killed in territorial waters and are survived by spouse and/or children. 2 To answer this question, we must be guided by the manner in which the Supreme Court created the cause of action and determined what damages were recoverable. Foremost in the Court's holding were the twin aims of maritime law: achieving uniformity in the exercise of admiralty jurisdiction and providing special solicitude to seamen. See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 386-88, 401, 403, 90 S.Ct. 1772, 1780-81, 1788-89, 26 L.Ed.2d 339 (1970); Sea-Land...

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