COMPLAINT OF DFDS SEAWAYS (BAHAMAS) LTD.

• Decision Date: 04 December 1987
• Docket Number: No. 85 Civ. 498 (LBS).,85 Civ. 498 (LBS).
• Citation: 684 F. Supp. 1160
• Parties: In the Matter of the Complaint of DFDS SEAWAYS (BAHAMAS) LTD. and Scandinavian World Cruises (Bahamas) Ltd., Inc., as Owner and Operator of the M/V Scandinavian Sun for exoneration from or limitation of Liability.
• Court: U.S. District Court — Southern District of New York

684 F. Supp. 1160

In the Matter of the Complaint of DFDS SEAWAYS (BAHAMAS) LTD. and Scandinavian World Cruises (Bahamas) Ltd., Inc., as Owner and Operator of the M/V Scandinavian Sun for exoneration from or limitation of Liability.

No. 85 Civ. 498 (LBS).

United States District Court, S.D. New York.

October 21, 1987.

As Amended December 4, 1987.

Freehill, Hogan & Mahar, New York City, for petitioners; Patrick J. Bonner, of counsel.

Hoadley & Gavigan, P.A., Thomas A. Hoadley, West Palm Beach, Fla., for respondent Doris Lavoie Hettiger.

James, Zimmerman & Paul, Harlan L. Paul, DeLand, Fla., for respondent Harold S. Lavoie.

OPINION

SAND, District Judge.

In this admiralty limitation proceeding, two of the claimants, Doris Hettiger and Harold Lavoie, are the mother and father of Colleen Skantar, a passenger who died in a fire on board the M/V Scandinavian Sun while it was docked in Fort Lauderdale, Florida. At the time of her death in August 1984, the decedent was married.

Doris Hettiger has asserted claims which, in essence, seek damages for the loss of her daughter's services. Decedent had provided her mother with free labor in her mother's butcher shop for some period of time, up until February or March 1984 when Ms. Hettiger sold the butcher shop. Ms. Hettiger repurchased the butcher shop in 1987. Harold Lavoie seeks recovery for losses best characterized as loss of his daughter's society and emotional damages. The defendant shipowner here moves to dismiss the claims of both parents.

The issues presented on the motion are whether these damage claims lie under the general maritime law as supplemented by either the Florida Wrongful Death Act (Fla.Stat. § 768.16 et seq.) or the Death on the High Seas Act (46 U.S.C. § 761 et seq.), and if these laws differ in this regard, which law governs these claims. We note at the outset that under both of these statutes to which the general maritime law might look for a schedule of beneficiaries, the parents of a decedent may bring wrongful death claims provided they have suffered cognizable damages.

DISCUSSION

In the past, cases involving deaths in state territorial waters were adjudicated under state wrongful death statutes. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 393, 90 S.Ct. 1772, 1783, 26 L.Ed.2d 339 (1970). The Death on the High Seas Act (46 U.S.C. § 761 et seq. hereinafter "DOHSA") was enacted in 1920 to provide a remedy for the survivors of persons killed on the high seas, who had previously had no recourse under American law. Id. at 398, 90 S.Ct. at 1786. It explicitly refrained from pre-empting state law as to wrongful death occurring in territorial waters, applying by its terms only to the seas beyond the three-mile zone. DOHSA, 46 U.S.C. § 761; see also Moragne, supra, 398 U.S. at 398, 90 S.Ct. at 1786.

Fifty years later, in order to increase the uniformity and predictability of admiralty law, the Supreme Court established a new cause of action for wrongful death as part of the general maritime law. Moragne, supra, 398 U.S. at 401-02, 90 S.Ct. at 1788. The details of effectuating the new common law remedy were to be left to the "sifting" process of the lower courts. Id. at 406-08, 90 S.Ct. at 1790-91. Among the details not decided was the schedule of beneficiaries entitled to recover under the new cause of action. Id. at 408, 90 S.Ct. at 1791.

It is well settled that federal maritime law is to be applied to the exclusion of conflicting state law even in state courts. 2 Am.Jur.2d, Admiralty, § 7 at 723, § 92 at 773. In the past, the creation in Moragne of a general maritime cause of action for wrongful death had been held to "preclude recognition in admiralty of state statutes." Matter of S/S Helena, 529 F.2d 744, 753 (5th Cir.1976), later app. 547 F.2d 255 (1977), cert. denied sub nom. Heinrich Schmidt Reederei v. Byrd, 467 U.S. 1252, 104 S.Ct. 3537, 82 L.Ed.2d 842 (1984), and cert. denied sub nom. St. Paul Fire & Marine Ins. Co. v. Culver, 469 U.S. 819, 105 S.Ct. 90, 83 L.Ed.2d 37 (1984); see also Nelson v. United States, 639 F.2d 469, 473 (9th Cir.1980). A recent Supreme Court decision, however, has made clear that when federal maritime law has not specifically provided for a given situation, state law can be used to "supplement" the federal law.

In Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986), the Supreme Court implicitly overruled lower court decisions holding that state law cannot be used to supplement the general maritime law. There the Court ruled that state law cannot be used to supplement DOHSA with respect to wrongful deaths on the high seas. It ruled that DOHSA's savings clause (46 U.S.C. § 767) was intended only as a jurisdictional savings clause as to the high seas but as both a jurisdictional and substantive savings clause as to territorial waters (id., 106 S.Ct. at 2496-97), and it reaffirmed the Higginbotham ruling that "when DOHSA does speak directly to a question, the courts are not free to supplement Congress' answer so thoroughly that the Act becomes meaningless" (id. at 2500, quotations omitted). Thus, under DOHSA's savings clause, state courts can apply their own law as to territorial waters as long as state law does not conflict with federal law. A federal court can enforce a right created by state law as long as the subject matter is properly in the federal tribunal (2 Am. Jur.2d, Admiralty, § 7 at 724-25, § 92 at 773-74).

Although the sources of law most prominently discussed as potential guides in developing the schedule of beneficiaries were federal (see below), the Moragne Court did not rule out the possibility of "borrowing from the law of the relevant coastal State." Moragne, supra, 398 U.S. at 408, 90 S.Ct. at 1791. We must thus consider what the result would be both under Florida's wrongful death statute and under the most relevant federal statute.

FLORIDA WRONGFUL DEATH ACT

The Florida Wrongful Death Act defines the "survivors" who can benefit under the Act as "the decedent's spouse, minor children, parents, and when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters." (Fla.Stat. § 768.18(1) (1986)). It defines "support" as "including contributions in kind as well as money." (§ 768.18(3)). It states that "`services' means tasks, usually of a household nature, regularly performed by the decedent, that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor, and shall be determined under the particular facts of each case." (§ 768.18(4)).

Only "dependent" parents and parents of minor children are potential "survivors" for purposes of the act. See Vildibill v. Johnson, 492 So.2d 1047, 1050 (Fla. 1986). The parents of an adult child cannot recover under this statute for mental pain and suffering. Bassett v. Merlin, Inc., 335 So.2d 273 (Fla.1976). No one has alleged that Ms. Skantar was a "minor child" under the terms of the statute at the time of her death.

Mr. Lavoie has made no allegations of dependency. The facts presented through the petitioners' deposition of Mr. Lavoie suggest that he and his daughter exchanged gifts and telephone calls, but no services or support in any form. Thus, Mr. Lavoie is precluded from recovery under the statute. See Bassett v. Merlin, Inc., supra, 335 So.2d 273 (holding statute constitutional although it precludes parents of adult child from recovery for mental pain and suffering).

Thus the question is whether Ms. Skantar's mother was "dependent" on her for support or services within the meaning of the statute. The status of dependency under the prior statute, and presumably also under the current statute, enacted in 1972, is determinable by factual circumstances existing at death. Wadsworth v. Friend, 201 So.2d 641 (Fla.Dist.Ct.App.1967). We do not find cases providing specific guidance to the measure of dependency required to make parents "survivors" under the statute, and so we must look to decisions as to other relatives.

Ms. Hettiger draws our attention to Owens v. Jackson, 493 So.2d 507 (Fla.Dist.Ct. App.1986), review denied, 503 So.2d 327 (Fla.1987), where the First District determined that the stringent measure of dependency established in Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894) has been superseded by statute.

We note that the facts in Owens provided a particularly strong case for dependency; that the rejection of Duval v. Hunt seems to have been relatively narrow, specifically concerning the requirement of physical and mental limitations; and that the Third District in Guillen v. Kitching, 354 So.2d 900 (Fla.Dist.Ct.App.1978), cert. denied, 361 So.2d 832 (Fla.1978), chose to cite Duval v. Hunt in approving a trial court decision under the same statute interpreting "survivors" as follows:

"That notwithstanding the liberal construction to be applied in accordance with Florida Statutes 768.17, this Court construes a blood relative, partly or wholly dependent on a decedent for support or services, to require actual dependency, though same may be partial, in order to qualify as a `survivor' under the `Florida Wrongful Death Act', and the word `dependent' connotes one who looks to another for aid or support, relies upon same, and one who would not be able to sustain himself without such aid or support...."

Id. at 901, citing Duval v. Hunt, supra, 34 Fla. 85, 15 So. 876 (1984), and Burgh v. Carroll, 217 So.2d 353 (Fla.Dist.Ct.App. 1969).

It appears that Ms. Hettiger's only possible claim would be based upon some understanding entered into with her daughter before her daughter's death, and that if the measure of dependency established under the previous statute is still applicable, Ms. Hettiger would have no cognizable claim under Florida law. See Burgh v. Carroll, 217 So.2d 353 (Fla.Dist.Ct.App.1969) (promise by decedent uncle to provide mortgage payments,...