Azzopardi v. Ocean Drilling & Exploration Co.

• Decision Date: 01 October 1984
• Docket Number: No. 83-2483,83-2483
• Citation: 742 F.2d 890
• Parties: , 40 Fed.R.Serv.2d 143 H. AZZOPARDI, Individually and as personal representative of the Estate of Paul Azzopardi, deceased, Plaintiff-Appellant, v. OCEAN DRILLING & EXPLORATION CO., et al., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 890

742 F.2d 890

1986 A.M.C. 434, 40 Fed.R.Serv.2d 143

H. AZZOPARDI, Individually and as personal representative of the Estate of Paul Azzopardi, deceased, Plaintiff-Appellant, v. OCEAN DRILLING & EXPLORATION CO., et al., Defendant-Appellee.

No. 83-2483.

United States Court of Appeals Fifth Circuit.

Oct. 1, 1984.

Opinion Rehearing Nov. 19, 1984.

Newton B. Schwartz, Houston, Tex., for plaintiff-appellant.

Robert A. Chaffin, Chairman, Paul Miller, TTLA Committee on Admiralty Law, Houston, Tex., for amicus Texas Trial Lawyers Ass'n.

Charles D. Kennedy, Houston, Tex., for Ocean.

Frank E. Caton, Robert F. Maher, Houston, Tex., for Comex.

Randy J. McClanahan, Houston, Tex., for Comex Marine.

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

Before JOHNSON, HIGGINBOTHAM and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

I.

In October 1977, Paul Azzopardi, a British citizen, was killed while working as a diver off the Zephyr I, a semi-submersible drilling rig located in the English Channel. In June 1979, Azzopardi's father brought this suit against Ocean Drilling and Exploration Company (ODECO), a Delaware corporation with its principal place of business in Louisiana, in the 215th Judicial District Court for Harris County, Texas. Azzopardi's suit for damages arising out of his son's death alleged causes of action under the Jones Act, 46 U.S.C. Secs. 688 et seq., the Death on the High Seas Act (DOHSA), 46 U.S.C. Secs. 761 et seq., and the General Maritime Law. ODECO's insurer failed to retain defense counsel until July 17, 1979, one day after the time prescribed by Texas law for answering the complaint had expired, and Azzopardi had an interlocutory default order entered against ODECO. ODECO immediately removed the suit to the United States District Court for the Southern District of Texas and answered.

In the district court, Azzopardi filed an amended complaint stating the same claims and adding as defendants Comex Services, S.A., Comex Diving, Ltd., Comex, S.A., Comex Marine Services, Inc. and Comex Seal, U.S. (hereafter referred to as the Comex defendants). Service of process was never perfected on Comex Seal. Comex Marine Services was dismissed from the action in September 1980. Comex Diving, Comex Marine Services, and Comex Services all fall under the corporate umbrella of Comex, S.A. Comex Marine is a Delaware corporation with its principal place of business in Houston, Texas, Comex Diving is a British corporation, and Comex Services and Comex, S.A. are French corporations. Azzopardi later amended his complaint to allege that the Zephyr I was actually owned by two Danish corporations, but they were never made parties to the action.

After considerable discovery was taken, the Comex defendants each moved to have the action dismissed on the grounds of forum non conveniens, Azzopardi moved to have the action remanded to state court, and ODECO moved to have the interlocutory default judgment against it set aside. On July 28, 1983, the district court denied Azzopardi's motion and granted those of the Comex defendants and ODECO. The district court also held that the federal courts have exclusive jurisdiction of DOHSA claims, and since the state court was without original jurisdiction of the DOHSA claim, there was no derivative jurisdiction of that claim on removal. Apparently reasoning that no colorable Jones Act or general maritime law claim against ODECO was presented, the district court dismissed the entire action against ODECO.

In this appeal, Azzopardi urges that the district court erred in a number of respects: (1) holding that a DOHSA claim may be brought only in federal court; (2) dismissing his claims against the Comex defendants on forum non conveniens grounds; and (3) setting aside the interlocutory default judgment against ODECO. ¹

II. DOHSA JURISDICTION

We need not decide whether a DOHSA claim may be brought in state as well as federal court. Even assuming that the state court was without jurisdiction of the DOHSA claim, and the district court could thus acquire no jurisdiction of it on removal, ² Azzopardi's survival claim under the general maritime law was properly removed. Azzopardi's amended district court complaint restated his DOHSA claim against ODECO as well as the Comex defendants thus bringing the DOHSA claim properly before the district court.

Since Azzopardi seeks wrongful death damages under DOHSA and survival damages under the general maritime law, we confront a question of first impression for this circuit: whether the Supreme Court decision in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978), precludes the use of a general maritime law survival action to supplement the recovery allowed under DOHSA. We conclude that it does not.

The seminal proposition in our analysis is that a wrongful death action and a survival action are two distinct types of claims. In simplest terms, the wrongful death action is to recover damages to beneficiaries resulting from the decedent's death, the survival action to recover damages the decedent could have recovered but for his death. See Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 575 n. 2, 94 S.Ct. 806, 810 n. 2, 39 L.Ed.2d 9, 15 n. 2 (1974); Michigan C.R. Co. v. Vreeland, 227 U.S. 59, 67-68, 33 S.Ct. 192, 194-95, 57 L.Ed. 417, 421 (1913); W. Prosser, Handbook of the Law of Torts 898-901. DOHSA is a wrongful death statute and contains no survival provision. Sea-Land Services, Inc. v. Gaudet, 414 U.S. at 575-76, 575 n. 2, 94 S.Ct. at 810-11, 810 n. 2, 39 L.Ed.2d at 15-16, 15 n. 2.

Section 762 of DOHSA states that damages allowed under the statute "shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought ..." 46 U.S.C. Sec. 762. It has been consistently held that this provision does not allow recovery for a decedent's pain and suffering, damages generally available by way of survival statutes. See, e.g., Dugas v. National Aircraft Corp., 438 F.2d 1386, 1389-90 (3d Cir.1971); Dennis v. Central Gulf Steamship Corp., 453 F.2d 137, 140 (5th Cir.), cert. denied, 409 U.S. 948, 93 S.Ct. 286, 34 L.Ed.2d 218 (1972); Brown v. Anderson-Nichols Co., 203 F.Supp. 489 (D.Mass.1962). The legislative history of DOHSA gives no indication that the statute was intended to affect survival actions. See Kuntz v. Windjammer "Barefoot" Cruises, Ltd., 573 F.Supp. 1277, 1285 (W.D.Pa.1983).

This leaves, in effect, a gap in the coverage provided by DOHSA. Prior to 1970, federal courts filled this gap by "borrowing" state survival of action statutes. See, e.g., Dennis v. Central Gulf Steamship Corp., 453 F.2d at 140; Montgomery v. Goodyear Tire & Rubber Co., 231 F.Supp. 447, 452 (S.D.N.Y.1964); United States v. The S/S WASHINGTON, 172 F.Supp. 905 (E.D.Va.), aff'd sub nom. United States v. Texas Company, 272 F.2d 711 (4th Cir.1959); Petition of Gulf Oil Corp., 172 F.Supp. 911 (S.D.N.Y.1959). See generally Gilmore & Black, supra, at 365. The Supreme Court's decision in Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 17, 26 L.Ed.2d 339 (1970), recognizing the existence of a wrongful death action based on the general maritime law, opened up another avenue for filling this gap. After Moragne, numerous decisions of this and other circuits have recognized that under the principles announced in that decision, the general maritime law includes a survival action permitting recovery of a decedent's pre-death damages. See Law v. Sea Drilling Corp., 523 F.2d 793, 795 (5th Cir.1975); Barbe v. Drummond, 507 F.2d 794, 799-800 (1st Cir.1974); Spillar v. Thomas M. Lowe, Jr. & Assoc., Inc., 466 F.2d 903, 909-10 (8th Cir.1972); Greene v. Vantage Steamship Corp., 466 F.2d 159, 161-67 (4th Cir.1972); In re Merry Shipping Co., Inc., 650 F.2d 622, 623 (5th Cir.1981).

The validity of the cases establishing the general maritime law survival action is not in question. The question we face is whether the construction of DOHSA set forth by the Supreme Court in Higginbotham prevents the use of this survival action in actions for deaths occurring in DOHSA's domain.

In Higginbotham, the district court ordered damages for pecuniary losses as authorized by DOHSA, but declined to award damages for loss of society. On appeal, we reversed and held that the general maritime law wrongful death remedy established in Moragne could be used to supplement DOHSA and obtain non-pecuniary damages. Higginbotham v. Mobil Oil Corp., 545 F.2d 422, 435-36 (5th Cir.1977). The Supreme Court granted certiorari to decide whether in addition to the damages explicitly authorized by DOHSA, the Moragne wrongful death remedy could be used in a DOHSA suit to recover non-pecuniary damages. The Court held that DOHSA was intended to be the exclusive wrongful death remedy in its area of coverage, and therefore the Moragne action could not be coupled with a DOHSA action to recover damages for wrongful death. 436 U.S. at 625, 98 S.Ct. at 2015, 56 L.Ed.2d at 587. The limited nature of this holding must be emphasized. Like DOHSA itself, Higginbotham treats solely wrongful death and wrongful death damages; it does not address survival actions. Given this, Higginbotham cannot be read as authority for the proposition that DOHSA precludes a survival action in the case of deaths occurring on the high seas.

As Justice Stevens pointed out in Higginbotham, "there is a basic difference between filling the gap left by Congress' silence and rewriting rules that Congress has affirmatively and specifically enacted." 436 U.S. at 625. Since DOHSA is a wrongful death statute which, whether through inadvertence or design, does not address survival of actions, it is entirely appropriate that the courts should fill what would otherwise be a legislative void by allowing the general maritime law survival action based on Moragne to supplement DOHSA. All of the post-Higginbotham decisions on this...