Bodden v. American Offshore, Inc.

• Decision Date: 26 July 1982
• Docket Number: No. 81-2081,81-2081
• Citation: 681 F.2d 319
• Parties: Arla BODDEN, et al., Plaintiffs-Appellees, v. AMERICAN OFFSHORE, INC., Defendant, American Operators, Inc., and Zodiac Workboats, S. A., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 319

681 F.2d 319

Arla BODDEN, et al., Plaintiffs-Appellees, v. AMERICAN OFFSHORE, INC., Defendant,

American Operators, Inc., and Zodiac Workboats, S. A.,

Defendants-Appellants.

No. 81-2081.

United States Court of Appeals, Fifth Circuit.

July 26, 1982.

Jack L. Allbritton, Houston, Tex., for defendants-appellants.

Horton, Perse & Ginsberg, Arnold R. Ginsberg, Miami, Fla., for plaintiffs-appellees.

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

Before BROWN, GOLDBERG and GEE, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This case presents for our decision a narrow question of first impression, one for whose answer we must gingerly navigate through the channel left by the Moragne-Gaudet-Higginbotham triumvirate of recent Supreme Court pronouncements on the admiralty. Does the surviving spouse of a seaman have a cause of action for wrongful death based on unseaworthiness pursuant to the Death on the High Seas Act where the decedent prior to his death settled his claim for the injuries? In answering this seemingly simple question, we consult-at some length-the recent decisions in the Supreme Court and this Circuit, lest we unknowingly sail into treacherous waters. After giving careful consideration to the arguments and cases, and anxious to be faithful to the spirit of the admiralty, we conclude that the spouse does have such a cause of action, and so we affirm.

Prologue

Neither of the briefs presents the dispositive facts in clear relief, but piecing together the clues they provide, we find that Arla Bodden's husband, Silbert Bodden, a resident of Honduras, suffered severe injuries in January 1975 while serving as chief engineer on the M/V POLAR 901 in the North Sea. An engine room explosion knocked Bodden unconscious, and he spent a month in a Scotland hospital with scalp lacerations, a concussion, and a fractured jaw. Bodden brought suit against his employer, American Offshore, Inc., the owner of the vessel, Zodiac Work Boats, S.A., and American Operators, Inc., but settled his claim in late 1975. ¹

After his discharge from the hospital, Bodden continued to suffer neck, jaw and facial pain and headaches. From late February until late May 1975, Dr. Turke periodically examined and treated him. He referred Bodden to Dr. Gilbert, a neurologist and psychiatrist, who performed an electroencephalogram (EEG). The EEG revealed permanent brain damage as a result of the concussion. Gilbert continued to treat Bodden for his headaches until June 1975. While believing that they would continue for some time, he felt that Bodden could return to work.

Bodden did return to work, and steadily so, mentioning the headaches only irregularly. The record indicates that Bodden was rather stoic and feared losing his job, so he remained quiet as to the extent of his suffering. He represented himself as fit on job applications and during physical exams. Yet his wife testified that he continued in private to complain about the headaches. In March 1978, Bodden returned home to Honduras for his annual six-week vacation-the only time he saw his family during the year. Arla Bodden testified that he could not sleep and suffered severe daily headaches that left him partially bedridden. Other witnesses confirmed that Bodden complained of headaches during this period.

On April 21, 1978, Bodden was found hanged from a tree by his belt. His death was classified as suicide.

Arla Bodden brought this wrongful death action in the Southern District of Texas, alleging jurisdiction under the Jones Act and general maritime law. The jury, replying to special interrogatories, ² found no negligence but did find that POLAR 901 was unseaworthy and that the unseaworthiness was a legal cause of Bodden's death. ³ It assessed damages of $177,000 for Arla Bodden and her four children. ⁴ The District Court held Zodiac Work Boats and American Operators, Inc. jointly and severally liable for that amount. ⁵ They appeal.

When the Supreme Court Talks ...

We begin by considering the trinity of Supreme Court opinions that have developed the maritime wrongful death action, for these decisions constitute the chart by which we plot our course through sometimes unexplored waters. Indeed, we must pay special heed to the Court's pronouncements because through their pendulum-like approach they have engendered heavy seas in what previously were calm waters. ⁶

In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, 1970 A.M.C. 967 (1970) (territorial waters), overruling The HARRISBURG, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), the Supreme Court created a right to recover for wrongful death under federal general maritime law. ⁷ Edward Moragne, a longshoreman, was killed while working aboard the vessel PALMETTO STATE in Florida navigable waters. His widow, alleging negligence and unseaworthiness, brought an action in state court to recover damages for wrongful death and for her husband's pain and suffering. States Marine removed to federal court on the basis of diversity of citizenship of the parties, then moved to dismiss that portion of Mrs. Moragne's complaint relying upon unseaworthiness. The District Court granted the motion. It held that maritime law provided no recovery for wrongful death within a state's territorial waters and that Florida law did not encompass unseaworthiness as a basis for liability. On appeal, this Court certified to the Florida Supreme Court the question whether state law permitted recovery for unseaworthiness. ⁸ The Supreme Court answered the question in the negative, and we then affirmed the District Court's order, 409 F.2d 32, 1969 A.M.C. 694 (5th Cir. 1969).

The Supreme Court granted certiorari, 396 U.S. 900, 90 S.Ct. 212, 24 L.Ed.2d 176 (1969), and reversed. Referring to the "special solicitude for the welfare of those men who undertook to venture upon hazardous and unpredictable sea voyages," 398 U.S. at 387, 90 S.Ct. at 1780, 26 L.Ed.2d at 349, 1970 A.M.C. at 977, Justice Harlan, writing for a unanimous Court, held that the brethren must exercise their "duty ... to perceive the impact of major legislative innovations and to interweave the new legislative policies with the inherited body of common-law principles...." 398 U.S. at 392, 90 S.Ct. at 1783, 26 L.Ed.2d at 351, 1970 A.M.C. at 980-81. The legislative policy to which he referred was the abrogation of common law rules disfavoring causes of action for wrongful death. ⁹ The rule of Baker v. Bolton, holding that "(i)n a civil Court, the death of a human being could not be complained of as an injury," 1 Camp. 493, 170 Eng.Rep. 1033 (1808), governed both in England and in the United States during the 19th century. ¹⁰ That rule, which derived from the notion of "felony-merger", ¹¹ together with the asserted difficulty of computing damages for the loss of a life, combined to prevent the creation in this country of a common law action for wrongful death. The Court in The HARRISBURG had concluded that the admiralty had to follow the common law.

The "wholesale abandonment" of the rule in the interim, Harlan concluded, coupled with the growing availability of wrongful death causes of action under state law and federal statutes, e.g., Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. (Railroad Employees); Jones Act, 46 U.S.C. § 688 et seq. (merchant seamen); and Death on the High Seas Act (DOHSA), 46 U.S.C. § 761 et seq. (persons on the high seas), so eroded the foundation of The HARRISBURG that, if ever correct, it was so no longer. ¹²

Harlan then examined the DOHSA regime for any indications that Congress intended to preclude judicial allowance of a remedy for wrongful death. Relying upon the legislative history, he unearthed no such intention. Congress enacted DOHSA, he found, to bring the United States in line with "enlightened nations" that recognized an action for wrongful death at sea. It only legislated up to the three-mile limit

because that was the extent of the problem. The express provision that state remedies in territorial waters were not disturbed by the Act ensured that Congress' solution of one problem would not create another by inviting the courts to find that the Act pre-empted the entire field, destroying the state remedies that had previously existed.

398 U.S. at 398, 90 S.Ct. at 1786, 26 L.Ed.2d at 355, 1970 A.M.C. at 985. Not wishing accidentally to destroy a pre-existing state cause of action, Congress dealt only with the high seas-an area into which the states could not constitutionally reach. As Congress "could not have ... foreseen", 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, 1970 A.M.C. at 986, the discrepancy between the remedies for deaths covered by DOHSA and for deaths covered by a state statute that did not include unseaworthiness as a basis of liability, the Court felt obliged to remedy that discrepancy. DOHSA, in other words, was not dumped overboard; it merely did not apply to the situation that confronted the Justices. ¹³

Justice Harlan added that recognition of a wrongful death action under general maritime law would expunge three anomalies of the admiralty which DOHSA perpetuated. Within territorial waters, unseaworthiness produced liability if the victim was injured, but not if he were killed. Identical breaches of the duty to provide a seaworthy ship produced liability outside the three-mile limit ¹⁴ but not within a state's navigable waters unless state law so provided. Finally, what Harlan termed the " 'strangest' anomaly", a true Jones Act seaman lacked any remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, doing the work of a seaman, would have such a remedy. Emphasizing the necessity for uniformity, Harlan stated,

Our recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies, removing the tensions and discrepancies that have...