Chute v. United States

• Decision Date: 30 November 1978
• Docket Number: Civ. A. No. 72-3412-F.
• Citation: 466 F. Supp. 61
• Parties: James A. CHUTE, Administrator of the Estate of James L. Chute, and Helen L. Dotteridge, Administratrix of the Estate of Harlan Lincoln Matthews v. UNITED STATES of America.
• Court: U.S. District Court — District of Massachusetts

466 F. Supp. 61

James A. CHUTE, Administrator of the Estate of James L. Chute, and Helen L. Dotteridge, Administratrix of the Estate of Harlan Lincoln Matthews v. UNITED STATES of America.

Civ. A. No. 72-3412-F.

United States District Court, D. Massachusetts.

November 30, 1978.

Joseph G. Abromovitz, Latti & Flannery, Boston, Mass., for plaintiffs.

David V. Hutchinson, U. S. Dept. of Justice, Washington, D. C., Bruce A. Singal, Asst. U. S. Atty., Boston, Mass., for defendant U. S.

OPINION

FREEDMAN, District Judge.

After a trial by this court on the issue of liability in the above entitled action, the defendant, the United States, was held liable for the wrongful deaths of Dr. James L. Chute and Mr. Harlan L. Matthews, guest passengers on the yacht, the AD LIB II, which sank on September 30, 1971 in Nantucket Sound when it struck the wreck of a Navy ship, the PC1203.¹ The plaintiffs, James A. Chute, the son and the administrator of the estate of Dr. Chute, and Helen L. Dotteridge, the daughter and the administratrix of the estate of Mr. Matthews, now seek an award of damages. Specifically, the plaintiffs seek compensation for the pecuniary loss and loss of society resulting from the deaths of Dr. Chute and Mr. Matthews, as well as funeral expenses. The plaintiffs also claim that they are entitled to recover damages for the conscious pain and suffering of the decedents. A non-jury trial on the issue of damages was held on August 14, 1978.

In order to compute the damages award, this court must first determine the proper measure of damages. The court will initially decide whether the Death on the High Seas Act, 46 U.S.C. § 761 et seq. (DOHSA), or the federal general maritime law provides the measure of damages for those items of damages sought by the plaintiffs which are usually compensable in a wrongful death action. Then, the court will ascertain what measure of damages is controlling with respect to the plaintiffs' claim for compensation for the decedents' pain and suffering, an element of damages usually recoverable in a survival action.²

I. Wrongful Death Measure of Damages: DOHSA applies.

Section 1 of the Death on the High Seas Act provides in pertinent part that

whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State . . . the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.

46 U.S.C. § 761. Recovery under DOHSA is limited to a "fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought." 46 U.S.C. § 762. While the statutory remedy created by DOHSA applies by its terms when the wrongful act has occurred on the high seas beyond a marine league from the shore of any state, a federal nonstatutory cause of action for wrongful death under general maritime law was recognized by the United States Supreme Court in the 1970 case of Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), which applies to tortious deaths on state territorial waters. Id. at 377, 90 S.Ct. 1772.³ Although in Moragne the Supreme Court expressly left open "particular questions of the measure of damages," id. at 408, 90 S.Ct. at 1792, in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), a sharply divided Court outlined some of the elements of damages under the new maritime wrongful death remedy. That Court found that recovery may be had for loss of support, services and society,⁴ and that damages for funeral expenses may be awarded "in circumstances where the decedent's dependents have either paid for the funeral or are liable for its payment." Id. at 591, 94 S.Ct. at 818. Most recently, in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978), however, the Supreme Court made it clear that the items of damages permitted in Gaudet did not supplement the damages available in wrongful death actions arising on the high seas which are governed by the DOHSA rule that recovery be limited to pecuniary loss. Id. at 622-626, 98 S.Ct. 2010. It would therefore appear that if the instant action comes within the scope of DOHSA, the damages award for those items usually recoverable in a wrongful death action must be limited to pecuniary loss.

This court concludes that DOHSA, and not the general maritime remedy created in Moragne, provides the measure of damages in this action with respect to those elements of damages ordinarily compensable in a wrongful death action. DOHSA applies where the wrongful act occurred "beyond a marine league from the shore of any state," 46 U.S.C. § 761, that is, 3 miles from shore, Mobil Oil Corp. v. Higginbotham, supra at 620, 98 S.Ct. 2010, measured in nautical miles, or approximately 3.45 statute miles, Hooker v. Raytheon Co., 212 F.Supp. 687, 689 (S.D.Cal.1962). In the instant case, both parties agree that the AD LIB II accident occurred at least 4.5 nautical miles from shore, Tr. at 4, 7 (August 14, 1978), in Nantucket Sound.⁵

While conceding that the AD LIB II went down over a marine league from shore, the plaintiffs argue that DOHSA does not apply for other reasons. This court, however, is not persuaded by the plaintiffs' arguments. First, the plaintiffs contend that the defendant's "wrongful act" was not the failure to adequately mark or remove the wreck, but was rather the decision not to better mark or remove the wreck, which decision was made ashore and not over a marine league from a state's shore. There is authority, however, in this District for the view that "the foundation of the right to recover under DOHSA is a wrongful act or omission taking effect on the high seas." Lacey v. L. W. Wiggins Airways, Inc., 95 F.Supp. 916, 918 (D.Mass.1951) (emphasis supplied). See also Wilson v. Transocean Airlines, 121 F.Supp. 85, 92 (N.D.Cal. 1954). Thus, in the Lacey case, allegations that the respondent had either failed to inspect or negligently inspected a plane or failed to notify the plane's owner of a discovered defect, while the craft was on land, which resulted in the plane's going down more than a marine league from shore, were found to state a cause of action under DOHSA as the wrongful act was consummated wholly upon the water. 95 F.Supp. 917-18. I believe that the analysis employed in Lacey applies to the case at bar. Although the government's decision not to adequately mark or destroy the wreck may have been made ashore, the wrongful act was consummated and, hence, "occurred" within the meaning of the statute over a marine league from shore where the AD LIB II struck the wreck of the PC1203 in the waters of Nantucket Sound.

Secondly, the plaintiffs maintain that the federal general maritime remedy for wrongful death and not DOHSA is controlling because the location of the accident was in Nantucket Sound within the territorial waters of Massachusetts.⁶ Although the plaintiffs have not elaborated upon this argument, this court notes that the Commonwealth of Massachusetts has, by statute, established its marine boundaries so as to embrace all of Nantucket Sound. M.G.L. ch. 1, § 3. That statutory provision states that "the marine boundaries of the commonwealth in the area of Nantucket Sound shall be drawn to include the entire area of Nantucket Sound as territorial waters of the commonwealth." Id. This court also recognizes that DOHSA does not apply to state territorial waters, Mobil Oil Corp. v. Higginbotham, supra at 621, 98 S.Ct. 2010, Moragne v. States Marine Lines, supra, 398 U.S. at 397-98, 90 S.Ct. 1772, and that section 7 of DOHSA is an exception clause which provides that

the provisions of any state statute giving or regulating rights of action or remedies for death shall not be affected by this chapter. Nor shall this chapter apply to the Great Lakes or to any waters within the territorial limits of any state, or to any navigable waters in the Panama Canal Zone.

46 U.S.C. § 767. Consequently, if Nantucket Sound is regarded by this court as state territorial waters or as "waters within the territorial limits" of Massachusetts, DOHSA would be inapplicable to the present case.

Despite the unambiguous language of section 3 of M.G.L. ch. 1, this court declines to rule that Nantucket Sound in its entirety constitutes "state territorial waters" or "waters within the territorial limits of a state" so as to preclude the application of DOHSA to the instant action. Support may be found in the case of Hooker v. Raytheon Co., supra, wherein another federal district court was confronted with a parallel situation. That court held that deaths which resulted when a vessel sank in the waters of Santa Barbara Channel beyond one marine league from the mainland of California and over one marine league from the nearest channel island occurred "on the high seas within the terms and provisions of the Death on the High Seas Act." Id. at 694. Although the California legislature had determined that the seaward boundary of the State of California extended to three nautical miles from the outer sides of the outer-most of the islands off California's coast and, hence, included waters more than three nautical miles from either the Santa Barbara Islands or the California mainland, the District Court also decided that "the waters of the Santa Barbara channel, between a belt one marine league in width from the shore of the mainland and a belt of the same width around each island, were not territorial waters of the State of California," id., for purposes of DOHSA. Id. While the rationale of the District Court's decision in Hooker was not succinctly stated, that court reasoned that a state's...