Bergen v. F/V St. Patrick

Citation816 F.2d 1345
Decision Date07 May 1987
Docket NumberNo. 86-3900,86-3900
Parties, 23 Fed. R. Evid. Serv. 164 Agnes BERGEN, Administratrix of the Estate of Thomas Karl Kauppinen; Shannon Lee Youhas Jobe, Administratrix of the Estate of James E. Jobe; Robert Kidd; P.G. Pair, Administrator of the Estate of Wilson Lee Pair; Frank Romero, Personal Representative of the Estate of Ronnie Newton; Thomas R. Ryker, Personal Representative of the Estate of Randall Ray Ryker; James R. Sandin, Personal Representative of the Estate of Vanessa N. Sandin; Salome B. Smith, Administratrix of the Estate of Charles Wayne Parlett; Willard Gary Stallings, Personal Representative of the Estate of Gary Todd Stallings; Flora B. Stigall and Joel L. Stigall, individually and as Administrators of the Estate of Clifford S. Stigall, Wallace R. Thomas; Robert O. Washburn and Blanche Washburn, dba Marine Transportation, Plaintiffs-Appellees, v. F/V ST. PATRICK; St. Patrick, Inc., Daniel Whorton; Leroy Whorton; and William Wilson, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Gerald W. Markham, Kodiak, Alaska, and James J. Rhodes, Anchorage, Alaska, for plaintiffs-appellees.

Richard A. Nielson, Jr., Anchorage, Alaska, for defendants-appellants.

Appeal from the United States District Court for the District of Alaska.

Before GOODWIN, SCHROEDER and FARRIS, Circuit Judges.

FARRIS, Circuit Judge:

BACKGROUND

In October 1980, Daniel Whorton, Leroy Whorton, and a third investor formed a Virginia corporation to purchase and outfit the fishing vessel St. Patrick for scallop fishing in Alaska. William Wilson purchased the third investor's 50% share in the enterprise in 1981.

The master and mate hired for the St. Patrick had considerable experience in fishing the North Atlantic. In September 1981, after an informal Coast Guard inspection of the boat in Anchorage, the owners were informed that the officers had to be licensed by the Coast Guard to sail outside territorial waters. The owners gave license applications to the vessel's officers, but the forms were never completed. The owners allowed the boat to go scallop fishing anyway. Two fishing operations were successfully completed in October and November 1981.

In late November, the boat's master made a temporary, unexpected departure The district court found the owners liable for negligence and for the unseaworthiness of the vessel. It found that the owners were guilty of "gross, willful and wanton misconduct" in failing to provide a competent, licensed master and mate for the St. Patrick. It awarded punitive damages as well as damages for pre-death pain and suffering, and a separate sum representing damages for loss of support, services, and inheritance to the estates of those crew members who died in the accident. As an alternative to the single sum for loss of support, services, and inheritance, the court gave a figure for loss of services alone, "[i]n the event that it is subsequently determined on any appeal that only a loss of services is recoverable." To the two surviving crew members, the court awarded punitive damages, and damages for pain and suffering, emotional trauma, disability, and loss of future earnings. The owners do not contest liability, nor do they appeal the awards for pre-death pain and suffering under the Jones Act. They appeal the awards of punitive damages, the award for support, services, and inheritance as to all decedents but James Jobe, and the size of the awards to the two survivors.

and the mate became acting master. The owners, aware of the master's absence and that the mate remained unlicensed, allowed the boat to continue fishing outside territorial waters. A storm arose while the St. Patrick was fishing 13 miles from shore. In heavy seas, the acting master kept the boat broadside to the waves despite suggestions from the crew that this was dangerous. A large wave rolled the boat on its side, causing considerable flooding and damage. The acting master ordered the crew to abandon ship. Ten of the crew including the acting mate eventually died from the cold. Two survived, but were badly injured and emotionally scarred. The boat was later found floating near the point of its abandonment.

DISCUSSION
1. PUNITIVE DAMAGES

The trial court concluded as a matter of law that punitive damages were available under the general maritime law to the two survivors and to the estates of the nine decedents. Based on its factual finding that the owners' negligence had been "wanton, willful and intentional," the trial court awarded punitive damages to all plaintiffs. We review de novo the legal conclusion that punitive damages are available. United States ex rel Morgan & Son Earth Moving, Inc. v. Timberland Paving & Const. Co., 745 F.2d 595, 599 (9th Cir.1984). We review for clear error the trial court's factual findings in support of an award of damages. Id.

Only pecuniary damages are available under the Jones Act, 46 U.S.C. Sec. 688, and under the Death on the High Seas Act. 46 U.S.C. Sec. 762; see also Kopczynski v. The Jacqueline, 742 F.2d 555, 561 (9th Cir.1984) (Jones Act), cert. denied, 471 U.S. 1136, 105 S.Ct. 2677, 86 L.Ed.2d 696 (1985); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 623, 98 S.Ct. 2010, 2013, 56 L.Ed.2d 581 (1978) (DOHSA); Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77, 79 (9th Cir.1983) (DOHSA). Punitive damages are non-pecuniary damages unavailable under the Jones Act. Kopczynski, 742 F.2d at 561. Punitive damages are therefore also unavailable under DOHSA.

The issue on appeal, however, is whether punitive damages available under the general maritime law may supplement the remedies available under DOHSA or the Jones Act. 1 In analyzing the availability of

punitive damages, the court did not distinguish between the survivors' actions--which included claims under the Jones Act and the general maritime law--and the decedents' actions--which included claims under the Jones Act, the Death on the High Seas Act, and the general maritime law. The court also failed to clarify whether DOHSA applied to the decedents. To review the trial court's award of punitive damages we must first determine which statute was being supplemented by which punitive damage awards.

A. Punitive Damages for the DOHSA Plaintiffs

The threshold question is whether the Death on the High Seas Act applies at all. The trial court's findings leave this in doubt. Although the trial court stated generally that its jurisdiction arose under DOHSA, as well as under the Jones Act and general maritime law, it did not indicate how DOHSA applied. It concluded that personal injury and death resulted from the operation of the St. Patrick on the high seas. But it also found that most of the decedents died after drifting back within territorial waters and that negligence originating onshore and within territorial waters contributed to the accident. Plaintiffs cite these findings in support of their contention that DOHSA was not the basis for the court's damage awards. We reject this argument.

The Death on the High Seas Act applies "[w]henever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas." 46 U.S.C. Sec. 761. This provision has been held to refer to the site of an accident on the high seas, not to where death actually occurs or where the wrongful act causing the accident may have originated. Lacey v. L.W. Wiggins Airways, Inc., 95 F.Supp. 916, 918 (D.Mass.1951); accord Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 599-600 & n. 5, 94 S.Ct. 806, 822 & n. 5, 39 L.Ed.2d 9 (1974) (Powell, J., dissenting on other grounds). It is therefore irrelevant that some of the St. Patrick's crew may have died in territorial waters. See Touhey v. Ross-Loos Medical Group, 111 Cal.App.3d 958, 168 Cal.Rptr. 910 (1980) (applying DOHSA where decedent was injured aboard ship on the high seas, but died of his injuries more than a year later in a hospital onshore). It is also irrelevant that decisions contributing to the St. Patrick's unseaworthiness may have occurred onshore or within territorial waters. See Chute v. United States, 466 F.Supp. 61, 64 (D.Mass.1978); Wilson v. Trans-Ocean Airlines, 121 F.Supp. 85, 92 (N.D.Cal.1954). DOHSA applies to plaintiffs' suits because the St. Patrick's accident causing death occurred on the high seas.

Where DOHSA applies, its pecuniary remedies cannot be supplemented by non-pecuniary damages available under the general maritime law. Mobil Oil Corp. v. Higginbotham, 436 U.S. at 624-25, 98 S.Ct. at 2014-15 (barring damages for loss of society under the general maritime law). Nor can DOHSA be supplemented by non-pecuniary damages available under state law. Offshore Logistics, Inc. v. Tallentire, --- U.S. ----, 106 S.Ct. 2485, 2498, 91 L.Ed.2d 174 (1986) (barring damages for loss of society under state law). The Supreme Court based these holdings on its view that:

[t]he Death on the High Seas Act ... announces Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages.... The Act does not address every issue of wrongful-death law, ... but when it does speak directly to a question, the courts are not free to "supplement" Congress' answer so thoroughly that the Act becomes meaningless.

Higginbotham, 436 U.S. at 625, 98 S.Ct. at 2015.

Plaintiffs argue that the unique purpose of punitive damages differentiates them from the type of non-pecuniary damages that Higginbotham barred. As the plaintiffs point out, the Supreme Court said that "[t]here is a basic difference between filling a gap left by Congress' silence and Plaintiffs contend that if punitive damages under the general maritime law cannot supplement DOHSA remedies, then punitive damages can supplement the awards they received under the Jones Act for decedents' pain and suffering before death. 2 We reject this argument. Since few...

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