Cunningham v. Rederiet Vindeggen A/S

• Decision Date: 18 June 1964
• Docket Number: No. 125,Docket 27832.,125
• Citation: 333 F.2d 308
• Parties: Ethel CUNNINGHAM, as Administratrix of the Goods, Chattels and Credits of Roman Cunningham, Deceased, Libelant-Appellant-Appellee, v. REDERIET VINDEGGEN A/S and M/S TROLLEGGEN, Respondents-Appellees-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

333 F.2d 308 (1964)

Ethel CUNNINGHAM, as Administratrix of the Goods, Chattels and Credits of Roman Cunningham, Deceased, Libelant-Appellant-Appellee, v. REDERIET VINDEGGEN A/S and M/S TROLLEGGEN, Respondents-Appellees-Appellants.

No. 125, Docket 27832.

United States Court of Appeals Second Circuit.

Argued November 4, 1963.

Decided June 18, 1964.

COPYRIGHT MATERIAL OMITTED

Fuchsberg & Fuchsberg, New York City (Jacob D. Fuchsberg, New York City, of counsel), for libelant-appellant-appellee.

Haight, Gardner, Poor & Havens, New York City (David P. H. Watson, Thomas F. Molanphy, Robert K. Marzik, New York City, of counsel), for respondents-appellees-appellants.

Before WATERMAN, MOORE and SMITH, Circuit Judges.

WATERMAN, Circuit Judge.

On January 29, 1959, the vessel M/S Trolleggen stood moored in New York's North River, on the south side of Pier No. 7, while her cargo was being unloaded. During the unloading operations, one Roman Cunningham, a fifty year old longshoreman working on the vessel, was killed when he was struck by a two ton hatch boom which fell on him without warning. His wife and administratrix, Ethel Cunningham (hereinafter libelant), his sole survivor, subsequently instituted this admiralty suit in the United States District Court for the Southern District of New York against the M/S Trolleggen and her owner Rederiet Vindeggen A/S (hereinafter respondent) to recover damages for the wrongful death of her husband.

Trial was had before the court, Levet, J., sitting without a jury. Since the accident which caused decedent's death occurred while the M/S Trolleggen was moored in New York territorial waters, libelant's rights in this action depended upon New York's Wrongful Death Act,¹ and the doctrine that "where death * * * results from a maritime tort committed on navigable waters within a State whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given." Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210 (1921), quoted in The Tungus v. Skovgaard, 358 U.S. 588, 591, 79 S.Ct. 503, 506, 3 L.Ed.2d 524 (1959). The court below found that the hatch boom which struck and killed decedent had fallen because of its unseaworthy condition² and the negligent operation by the M/S Trolleggen's crew members of certain machinery connected to the boom, and that libelant was entitled to damages of $41,461.32, together with interest. Libelant has appealed on the ground that the damages awarded were inadequate, and respondent has cross-appealed on the ground that an error by the court below resulted in an award that was excessive. No issue was raised on this appeal concerning the liability of the respondent under the law of New York, and the only problem we are concerned with is the correctness of the amount of damages awarded.

We shall first discuss the issues raised by libelant's appeal. Libelant argues that the trial court committed five separate errors in computing damages, each of which served to reduce the award below its proper level. The five claimed errors are as follows: (1) the refusal to evaluate at more than $100 per year certain special services performed by decedent for his wife; (2) the limiting of decedent's work expectancy to age 65; (3) the failure to find that decedent had contributed to libelant more than half his income; (4) the failure to increase the award of damages to allow for inflation over the course of future years; (5) the computation of decedent's future lost earnings on the basis of his net income after the deduction of predicted federal and state income taxes rather than on the basis of his gross income. We find no merit in the first four points raised by libelant but we hold that the trial court committed an error in its treatment of the fifth point which requires us to reverse and remand for recomputation of damages in accord with this opinion.

The first three claimed errors cited by libelant call into question findings which the trial court made on the basis of evidence introduced on the issue of damages. These are findings of fact, and it is clear that a trial court's findings as to damages are to be accorded just as much weight on review as other findings of fact, e. g., Lukmanis v. United States, 208 F.2d 260 (2 Cir. 1953) (per curiam); Carroll v. United States, 133 F.2d 690 (2 Cir. 1943); and, in suits in admiralty as well as in other cases, a reviewing court may not overturn a lower court's finding of fact unless the reviewing court is convinced that the finding is "clearly erroneous." McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954); M. W. Zack Metal Co. v. S.S. Birmingham City, 311 F.2d 334 (2 Cir. 1962), cert. denied, 375 U.S. 816, 84 S.Ct. 50, 11 L.Ed.2d 51 (1963). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

We have examined carefully the record in this case, we have considered the evidence upon which the lower court based its findings of fact as to these elements of damages, and, while we would perhaps have arrived at figures a bit more generous to libelant had we been sitting as the trier of fact, we cannot say that the lower court committed clear error in making the assessment it did.

As to the value of the various special services which it was claimed decedent had performed for libelant, libelant testified in a general way as to the nature of the services and the approximate frequency with which they had been performed. When one recognizes, however, the difficulty of estimating accurately the money value of those services where the libelant failed to introduce evidence as to their money value, the $100 per year figure arrived at by the trial court, while perhaps near the lower end of the permissible range of estimation, cannot be called clearly erroneous. As to the finding that decedent shared his income with his wife on a fifty-fifty basis, a great deal of testimony was adduced from libelant on direct and cross-examination dealing with the particular types of expenditures she and decedent usually made, and we cannot characterize as clearly erroneous the trial court's conclusion that a synthesis of this testimony established a pattern that decedent's income was shared equally by husband and wife. Finally, though there was evidence that the average age of retirement for social security applicants is currently 67 years, the trial court could legitimately conclude that, in view of the demanding nature of decedent's work as a longshoreman, it was more probable that he would have retired at age 65 had he lived.

Libelant characterizes her fourth claim of error, that dealing with the lower court's refusal to increase the damage award to compensate for future inflation, as one involving an alleged mistake in the application of New York law. But we feel that it only involves, as do libelant's other claims of error already discussed, dissatisfaction with one of the lower court's findings of fact. While there is some lower court authority in New York to the effect that the trier of facts, in computing damages, may make allowance for the factor of inflation, Lucivero v. Long Island R.R. Co., 22 Misc.2d 674, 200 N.Y.S.2d 728, 730 (Sup. Ct., Kings County 1960); Neddo v. State, 194 Misc. 379, 85 N.Y.S.2d 54, 63 (Ct. of Claims 1948), aff'd, 275 App. Div. 492, 90 N.Y.S.2d 650 (3d Dep't, aff'd mem., 300 N.Y. 533, 89 N.E.2d 253 (1949), the only evidence introduced by libelant on the issue of an inflationary trend was the rather equivocal testimony of one expert witness, and the lower court was not clearly in error in refusing to be persuaded by it.

We now come to a consideration of libelant's contention that the trial court erred in computing decedent's future lost earnings on the basis of net income after taxes. The court, after estimating decedent's projected income for each of the remaining years of his work expectancy, deducted from the income figure for each year a sum for federal and state income taxes computed at current withholding rates. The resulting figures were then used to compute the lump sum due libelant as compensation for the loss of her share of decedent's future income, the court also crediting libelant with the anticipated future income tax on the portion of the award that was discounted for present enjoyment. We agree with libelant that the trial court erred in adjusting her award so as to take into account future income taxes so estimated.

Our decision here would be simple indeed if the courts of New York had as yet ruled on whether to use a decedent's gross or net income when computing the damages resulting from a wrongful death, for, as the court below correctly noted, when an admiralty court adopts a state's right of action for wrongful death, the court is obliged to enforce that right subject to whatever conditions and limitations the state has attached to it. The Tungus v. Skovgaard, supra, 358 U.S. at 592, 79 S.Ct. at 506. As we are unable to find any New York decision ruling on whether gross or net income is to be used in damage computations under New York's Wrongful Death Act, we are constrained to follow our own court's dictum in McWeeney v. New York, N. H. & H. R. R., 282 F.2d 34, 39 (2 Cir.), cert. denied, 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed.2d 93 (1960), later recognized in this court's holding in Montellier v. United States, 315 F.2d 180 (2 Cir. 1963), which indicates that a federal court should use the gross income measure where applicable state law is silent as to any standard to use.

Respondent argues, however, that the applicable state law is not really silent on this issue. Our...