Docarmo v. F. V. Pilgrim I. Corp.

• Decision Date: 28 December 1979
• Docket Number: No. 79-1115,79-1115
• Citation: 612 F.2d 11
• Parties: 5 Fed. R. Evid. Serv. 422 Nuno J. DoCARMO, etc., Plaintiff, Appellant, v. F.V. PILGRIM I. CORP., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 11

612 F.2d 11

5 Fed. R. Evid. Serv. 422

Nuno J. DoCARMO, etc., Plaintiff, Appellant, v. F.V. PILGRIM I. CORP., Defendant, Appellee.

No. 79-1115.

United States Court of Appeals First Circuit.

Argued Nov. 6, 1979.

Decided Dec. 28, 1979.

Ronald B. Horvitz, Boston, Mass., with whom Morris D. Katz and Katz & Horvitz, Boston, Mass., were on brief, for plaintiff, appellant.

Thomas E. Clinton, Boston, Mass., with whom Astrid C. Glynn and Glynn & Dempsey, Boston, Mass., were on brief, for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and WYZANSKI, ^* Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Nuno J. DoCarmo, Jr., a seaman and member of the crew of the F/V PILGRIM I, was injured in the course of his employment on that vessel. The accident occurred on the high seas, more than a marine league from the nearest shore. DoCarmo was transported by Coast Guard helicopter to Cape Code Hospital in Hyannis, Massachusetts, where he was pronounced dead on arrival.

Appellant brought this action as administrator of the deceased's estate for the benefit both of the estate and the deceased's father, mother, and brother. The five count complaint was framed in terms of the Jones Act, 46 U.S.C. § 688; the Death on the High Seas Act (DOHSA), 46 U.S.C. § 761 Et seq.; and general admiralty and maritime law. Appellant has focused his appeal on questions arising under the Jones Act count. Both negligence and unseaworthiness were alleged as causes of the injury and subsequent death of DoCarmo, and the jury, in answer to special interrogatories found liability based on both those theories. Responding, however, to further interrogatories, the jury determined that no recoverable damages had been sustained. In requesting that this court remand the case for a further hearing on the issue of damages, appellant emphasizes in particular the contention, rejected by the district court, that damages for loss of society, including companionship, love and affection, are properly recoverable under the Jones Act in an action brought by the survivors of a seaman wrongfully killed on the high seas. ¹

The Jones Act, unlike DOHSA, ² does not specifically limit recoverable damages to those of a pecuniary nature. The Act does, however, incorporate by reference the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 Et seq., the statute providing compensation for the injury or death of railway workers. Although FELA likewise contains no explicit language limiting an award to pecuniary loss, that statute has from an early time been uniformly interpreted to thus restrict the damages recoverable. Michigan Central R. R. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913); See also cases cited in Ivy v. Security Barge Lines, Inc., 606 F.2d 524 at 526 (5th Cir. 1979) (en banc). Drawing on the limited recovery available under FELA and that statute's incorporation into the Jones Act, courts have also consistently confined Jones Act damage awards to pecuniary loss. E. g., Cleveland Tankers v. Tierney, 169 F.2d 622 (6th Cir. 1948); Igneri v. Cie de Transports Oceaniques, 323 F.2d 257 (2d Cir. 1963), Cert. denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964); See also cases cited in Ivy, supra, slip op. at 1059 n.5. Most recently, the Fifth Circuit, sitting en banc, thoroughly reviewed the relevant authority in considering whether current developments in maritime law warrant a departure from this established rule. The court concluded that the Jones Act "does not permit the recovery in a wrongful death action of damages for loss of society of a seaman." Ivy v. Security Barge Lines, Inc., 606 F.2d 524 at 529 (5th Cir. 1979) (en banc). While we would place less reliance than did that court on the Supreme Court's recent pronouncement in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978) (holding that DOHSA's exclusion of non-pecuniary damages precludes the awarding of such damages under general maritime law in a death action arising on the high seas), we entirely agree with the thrust of Judge Rubin's analysis, and hold that in an action for wrongful death on the high seas premised on the Jones Act, the deceased seaman's survivors are limited to recovering damages of a pecuniary nature. ³ We thus find no error in the district court's rulings and jury instructions so limiting damages.

Appellant raises several other issues which may be dealt with rather briefly. Appellant charges that the jury's failure, after finding liability, to award any damages "creates an anomaly." We disagree. The jury was entitled to find on the conflicting evidence before it that DoCarmo's family had suffered no pecuniary loss as a result of the seaman's death that based on past practices, he likely would have contributed little or nothing to his family in the future. ⁴

Appellant argues further that the parents of a deceased seaman need not establish their dependency on the decedent in order to recover damages under the Jones Act. ⁵ Assuming this to be the law, See Cleveland Tankers v. Tierney, supra, 169 F.2d at 624, the fact remains that the jury was never instructed to the contrary. Had appellant believed the district court's instructions limiting recovery to pecuniary damages somehow implied that a finding of dependency was required (although we are unable to discover any such implication), he should have made the point by way of objection to the charge. Fed.R.Civ.P. 51. He cannot raise the contention for the first time here.

The jury received special interrogatories requesting "yes" or "no" answers to questions concerning negligence, seaworthiness, contributory negligence, damages and prejudgment interest. Sometime after the jury retired to deliberate, it asked the court to clarify a point on the issue of prejudgment interest. ⁶ The record does not indicate any response, but appellee tells us that after consulting with both counsel, the court did supply some kind of an answer. No question as to that procedure is, in any event, before us. Following receipt of the unfavorable verdict on the issue of damages, appellant moved that the district court grant a new trial, arguing among various reasons, that the "failure to make an award of damages in this action after the jury asked a question concerning the applicability of prejudgment interest to any awards they were to make is a patent demonstration that the jury did not understand its function in this case." This motion for new trial was denied; appellant now again voices his contention of jury confusion in arguing that the district court's denial of the motion was incorrect. While the jury's question may indicate some degree of uncertainty on the part of one or more jurors on the issues of prejudgment interest and the potential sources of a damages award, this does not necessarily indicate any similar uncertainty regarding the ultimate finding that no damages were sustained. That the jury might have been considering an award at the time it posed the question on interest reveals little, and is in any case beyond the scope of a court's inquiry. See Fed.R.Evid. 606(b). The district court was well within its discretion in refusing to grant a new trial. See 6A Moore's Federal Practice P 59.15(3).

Appellant also challenges an evidentiary ruling by the district court. Appellee, during the presentation of his case called Officer Robert D. Hobson who testified as to a statement made by DoCarmo's father concerning his son's whereabouts during 1973. This evidence was received, after a lengthy bench conference, specifically as a prior inconsistent statement in order to impeach the father who, while testifying, had made a statement contrary to that offered by Hobson. At the close of appellee's case, appellant proposed to put in some so-called rebuttal evidence to negate the impact of Hobson's testimony. This purported rebuttal, however, did not go to the question of the father's consistency as a...