Cruz v. Hendy Intern. Co.

• Decision Date: 12 February 1981
• Docket Number: No. 77-2700,77-2700
• Citation: 1981 A.M.C. 816,638 F.2d 719
• Parties: Vilma Tablas CRUZ, Plaintiff-Appellant, v. HENDY INTERNATIONAL CO., and Mutual Life Insurance Company of New York, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 719

638 F.2d 719

Vilma Tablas CRUZ, Plaintiff-Appellant, v. HENDY INTERNATIONAL CO., and Mutual Life Insurance Company of New York, Defendants-Appellees.

No. 77-2700.

United States Court of Appeals Fifth Circuit.

Feb. 12, 1981.

Frank A. Silvestri, Robert McComiskey, New Orleans, La., for plaintiff-appellant.

Charles F. Lozes, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

ON PETITION FOR REHEARING

Before FAY, RUBIN and HATCHETT, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

This circuit decided four years ago that the wife of a seaman who survives after suffering a debilitating personal injury has no claim for the loss of consortium she would have enjoyed had he not been injured. Christofferson v. Halliburton Co., 534 F.2d 1147 (5th Cir. 1976), rehearing en banc denied, 542 F.2d 1174 (5th Cir. 1976). Bound by that decision, we affirmed a district court judgment dismissing a complaint by another seaman's wife. Cruz v. Hendy International Co., No. 77-2700 (5th Cir. Oct. 25, 1979) (unpublished opinion). Thereafter the United States Supreme Court, in American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980), held that general maritime law authorizes the wife of a harbor worker injured nonfatally aboard a vessel in state territorial waters to maintain an action for damages for loss of her husband's society. At the time of the Supreme Court's Alvez decision, Cruz's petition for rehearing en banc was pending before this court. We denied that petition without prejudice and remanded this case to the original panel for a rehearing without oral argument to consider the effect of the Supreme Court's Alvez decision on Christofferson as precedent and on the claim asserted by Mrs. Cruz. Overruling Christofferson in part, we now hold that the spouse of a seaman whose nonfatal injuries are attributable to the unseaworthiness of a vessel has a general maritime law cause of action for loss of his society.

I.

Jose Tito Cruz suffered personal injuries in 1974, while employed as a member of the crew of a vessel, the LOUISIANA BRIMSTONE, working in Louisiana territorial waters. He filed suit asserting claims against the vessel owner for negligence under the Jones Act, 46 U.S.C. § 688, and for unseaworthiness of the vessel under general maritime law. He contended that he had suffered severe brain damage, his personality had been altered drastically, his mental capacity had been greatly impaired and he was totally and permanently disabled. Finding the vessel unseaworthy and the owner negligent, a jury awarded him $350,000 in damages. Because the jury also found Cruz to have been contributorily negligent, the court reduced the jury award and entered judgment in the amount of $280,000. After the judgment had been satisfied, his wife filed this action seeking damages for the loss of consortium, the loss of services and the loss of society of her husband under the Jones Act and general maritime law.

Alvez relied upon the recognition in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), that wrongful death damages may be recovered for loss of society and upon the allowance of recovery for loss of consortium in forty-two states, but did not distinguish these concepts. While the two are similar, consortium ¹ generally includes such pecuniary elements as loss of services and such non-pecuniary components as love, companionship, affection, society, sexual relations, comfort and solace, ² all summed up in Gaudet as "loss of society." Gaudet disallowed recovery for "anguish or grief," Sea-Land Services, Inc. v. Gaudet, 414 U.S. at 585 n. 17, 94 S.Ct. at 815 n. 17, 39 L.Ed.2d at 21 n. 17, ³ and it is not clear whether any of those states allowing recovery for loss of consortium would include this type of emotional distress as an element of damages. Certainly, they must be excluded from consideration as part of the loss of society remedy. Gaudet also mandates that the damages for loss of society be so ascertained as to prevent a second recovery of those pecuniary losses recoverable by the injured spouse in his action.

II.

The shores of the legal area we must navigate have been frequently charted, see generally G. Gilmore & C. Black, The Law of Admiralty 272 et seq., Chapter VI (2d ed. 1975), so we merely sketch its most prominent features. First we inject, however, the ounce of history.

An injured member of the crew of a vessel has a cause of action at law under the Jones Act for damages resulting from negligence ⁴ and a separate cause of action in admiralty, under general maritime law, for damages resulting from unseaworthiness. ⁵ Because the unseaworthiness action is founded solely on general maritime law, it constitutes a claim in admiralty and, absent diversity, there is no right to a jury trial. ⁶ However, the action at law under the Jones Act and the unseaworthiness admiralty claim may be combined in a single suit ⁷ with the right of trial by jury even in the absence of diversity. ⁸ The seaman may thus recover for all of his pecuniary damages including such damages as the cost of employing someone else to perform those domestic services that he would otherwise have been able to render but is now incapable of doing.

The Jones Act by its terms provides no remedy to the spouse of a seaman who survives his injury and it permits no award for non-pecuniary losses. It has been held that, therefore, the spouse of an injured seaman cannot recover under the statute for emotional loss and the other intangible items of damages embraced in the concept of consortium. ⁹ If the seaman dies as a result of his injuries, however, the loss of services that he would have rendered his spouse is recoverable by her in her wrongful death action as part of the damage she suffers as a result of his death whether under the Jones Act, ¹⁰ the Death on the High Seas Act, 46 U.S.C. § 761 et seq. (DOHSA), or under the general maritime law death action created by Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). ¹¹

Loss of society, however, as distinguished from loss of services, is not pecuniary in nature. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 585-87, 94 S.Ct. 806, 815-16, 39 L.Ed.2d 9, 21-22 (1974). In Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5th Cir. 1979) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2927-28, 64 L.Ed.2d 815 (1980), we held that, if the seaman meets death, the settled interpretation of the Jones Act precludes recovery by a surviving spouse for loss of his society. ¹² However, in Ivy we reserved the question whether the spouse of a deceased seaman is entitled to damages for loss of his society if his death results from unseaworthiness. Ivy v. Security Barge Lines, Inc., 606 F.2d at 528 n. 8. Subsequent to our decision in Ivy, we held in two cases in which a Jones Act claim was combined with a claim for unseaworthiness that the widow of a Jones Act seaman might recover for loss of society in a death action brought under the general maritime law unseaworthiness doctrine. Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir. 1980); Hlodan v. Ohio Barge Lines, Inc., 611 F.2d 71 (5th Cir. 1980).

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), held that under the nonstatutory general maritime law wrongful death action shaped by Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the widow of a longshoreman who died as a result of injuries received aboard a vessel in state territorial waters could recover damages for the loss of her deceased husband's society. In American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980), the Supreme Court extended the general maritime law remedy to a spouse for injuries not resulting in the worker's death by permitting recovery of damages for loss of society by the wife of a harbor worker injured nonfatally aboard a vessel in state territorial waters.

In Alvez the complaint asserted both negligence and unseaworthiness as grounds for recovery by Mr. Alvez, the injured harbor worker. Mrs. Alvez sought to join in the suit brought by her husband to assert her claim for loss of society. The decision by the New York Court of Appeals, affirmed by the United States Supreme Court, held that she should be permitted to do so.

The rationale of Alvez does not limit its holding to the precise situation there presented. The Court recognized that the so-called warranty of seaworthiness may be invoked by the spouse of a longshoreman. American Export Lines, Inc. v. Alvez, 446 U.S. at 280, 100 S.Ct. at 1677, 64 L.Ed.2d at 290. ¹³ Because that doctrine of liability without fault was developed by the general maritime law and extends both to crew members and to others who do seaman's work, ¹⁴ it also benefits their spouses under the Alvez doctrine. Within the single body of judge-formulated maritime law "there is no apparent reason to differentiate between fatal and nonfatal injuries in authorizing the recovery of damages for loss of society." American Export Lines, Inc. v. Alvez, 446 U.S. at 281, 100 S.Ct. at 1677, 64 L.Ed.2d at 291. There is no more reason to distinguish between the types of workers whose rights stem from that same integral jurisprudence.

Alvez drew no line at the marine league. Recognizing that Congress had not conferred a right to recover for damages for loss of society in the Death on the High Seas Act (DOHSA), ¹⁵ 46 U.S.C. § 761, et seq., or in the Jones Act U.S.C. § 688, the court noted that "neither statute embodies an 'established and inflexible' rule here foreclosing recognition of a claim for loss of society by judicially crafted general maritime law." Id. at 282, 100 S.Ct. at 1678, 64 L.Ed.2d at 291 (emphasis added).

While DOHSA's "preclusive effect" forbids "supplementation of the...