Dugas v. National Aircraft Corporation, No. 18873

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBIGGS, VAN DUSEN and ROSENN, Circuit
Citation438 F.2d 1386
Decision Date26 February 1971
Docket Number18874.,No. 18873
PartiesXavier Maxime DUGAS, Administrator of the Estate of Kathryn Cecile Dugas, Deceased, v. NATIONAL AIRCRAFT CORPORATION, James Hart, Administrator C.T.A. of the Estate of Theodore H. Hart, also known as Theodore Henry Hart, III, Deceased, James Hart, Administrator C.T.A. of the Estate of Theodore H. Hart, also known as Theodore Henry Hart, III, Deceased, Appellant in No. 18873. Betty R. GUISINGER, Administratrix of the Estate of Christina M. Hart, Deceased v. NATIONAL AIRCRAFT CORPORATION, James Hart, Administrator C.T.A. of the Estate of Theodore H. Hart, also known as Theodore Henry Hart, III, Deceased, James Hart, Administrator C.T.A. of the Estate of Theodore H. Hart, also known as Theodore Henry Hart, III, Deceased, Appellant in No. 18874.

438 F.2d 1386 (1971)

Xavier Maxime DUGAS, Administrator of the Estate of Kathryn Cecile Dugas, Deceased,
v.
NATIONAL AIRCRAFT CORPORATION, James Hart, Administrator C.T.A. of the Estate of Theodore H. Hart, also known as Theodore Henry Hart, III, Deceased,
James Hart, Administrator C.T.A. of the Estate of Theodore H. Hart, also known as Theodore Henry Hart, III, Deceased, Appellant in No. 18873.

Betty R. GUISINGER, Administratrix of the Estate of Christina M. Hart, Deceased
v.
NATIONAL AIRCRAFT CORPORATION, James Hart, Administrator C.T.A. of the Estate of Theodore H. Hart, also known as Theodore Henry Hart, III, Deceased,
James Hart, Administrator C.T.A. of the Estate of Theodore H. Hart, also known as Theodore Henry Hart, III, Deceased, Appellant in No. 18874.

Nos. 18873, 18874.

United States Court of Appeals, Third Circuit.

Argued November 6, 1970.

Decided February 26, 1971.


438 F.2d 1387

Sidney L. Wickenhaver, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for appellant.

Milton M. Borowsky, Freedman, Borowsky & Lorry, Philadelphia, Pa., for appellees.

Before BIGGS, VAN DUSEN and ROSENN, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal from a February 24, 1970, judgment awarding damages under both the federal Death on the High Seas Act1 and the Pennsylvania Survival Act2 for the deaths of two teenage girls resulting from a crash of a private airplane at sea.3

The plane took off during the night from the island of South Caicos in the Bahamas on a flight to San Juan, Puerto Rico, and disappeared along with its pilot and the two passengers, Kathryn Dugas and Christina Hart.

438 F.2d 1388

Xavier Maxime Dugas, the father and administrator of the estate of Kathryn Cecile Dugas, along with Betty R. Guisinger, the mother and the administratrix of the estate of Christina M. Hart, filed separate suits, which were consolidated for trial, against National Aircraft Corporation, the owner of the airplane, and James M. Hart, the administrator of the estate of Theodore M. Hart, the aircraft's pilot. Theodore Hart was the father of one of the girls, Christina Hart. Plaintiff's theory was that Mr. Hart, while acting as the agent of National Aircraft, operated the aircraft in a negligent manner, thereby causing the deaths of plaintiffs-decedents. The parties admitted that the accident occurred in international waters and that the applicable federal statute was the Death on the High Seas Act (DOHSA).

At the conclusion of a hearing on defendant's motion for judgment on the pleadings, the district court filed an opinion on June 30, 1969, holding that the DOHSA was not the sole basis for recovery and that any recovery pursuant to the wrongful death provisions of the federal statute could be supplemented by an award under the Pennsylvania Survival Act.

Subsequently, the district court, sitting in admiralty, ruled that Mr. Hart had operated the aircraft in a negligent manner and consequently that the administrator of his estate was liable. Dugas v. National Aircraft Corp., 310 F. Supp. 21, 26 (E.D.Pa.1970). The court ruled in favor of National Aircraft Corporation because plaintiffs "failed to establish liability against * * * the company on the theory of respondeat superior or on any other ground." Id. at 26. Accepting the ruling on the pre-trial motions as the law of the case, the district court, at the conclusion of the trial, awarded damages under both the DOHSA and the Pennsylvania survival statute. Under the federal statute, the court granted $15,000. to Mrs. Virginia Dugas, $6,000. to Mr. Xavier Dugas, and $17,000. to Mrs. Betty Guisinger, along with interest from the date of decedents' deaths to the entry of judgment at six per cent. per annum. Id. at 25. Under the Pennsylvania Survival Act, the court awarded damages of $15,000. to Xavier Dugas for the benefit of the Estate of Kathryn Cecile Dugas and $18,000. to Betty Guisinger for the benefit of the Estate of Christina M. Hart. Id. at 26. In making the awards under the DOHSA, the court proceeded on the theory that the two girls, both aged 16 at the time of the accident, would have made financial contributions to their parents after becoming adults. The administrator of the estate of Theodore M. Hart appeals on two grounds. First, he contends that the DOHSA affords the exclusive remedy for the tort. Second, he claims that the awards under the DOHSA, based as they were on future voluntary contributions, were improperly conjectural.

I. Exclusivity of Remedy under the Death on the High Seas Act

Defendant Hart contends that the DOHSA precludes recovery under a state survival statute and that this position is supported by judicial decisions, by the legislative history of the DOHSA, and by the policy of uniformity in the maritime law.

The DOHSA is framed as a wrongful death statute in that it compensates relatives of the deceased for their loss. Courts have clearly held that the need for uniformity requires that the Act supersede any state wrongful death statute. However, it is not so clear whether the Act preempts the separate and distinct remedy encompassed in state survival statutes4 which preserve in the administrator of the decedent's estate that cause of action for pain and suffering which the decedent had until the moment of her death and for the earnings the decedent would have made in her lifetime,

438 F.2d 1389
less her probable cost of maintenance, reduced to present worth.5 The DOHSA is silent on the question

The cases are divided, but the weight of opinion favors the view that relief may be granted under both the state survival statute and the DOHSA.

Although the Supreme Court has not spoken definitively on the problem, dicta in several recent cases suggest that recovery under a state survival statute would not be precluded under the DOHSA. Thus, the Court in Kernan v. American Dredging Co., stated, "Where death occurs beyond a marine league from state shores, the Death on the High Seas Act (1920), 41 Stat. 537, 46 U.S.C. §§ 761-768, provides a remedy for wrongful death. Presumably any claims, based on unseaworthiness, for damages accrued prior to the decedent's death would survive, at least if a pertinent state statute is effective to bring about a survival of the seaman's right." 355 U.S. 426, 430, n. 4, 78 S.Ct. 394, 397, 2 L.Ed.2d 382 (1958).

Defendant Hart refers us to a number of cases, some cited at page 12 of his brief and some in note 12 of the opinion in Dore v. Link Belt Co., 391 F.2d 671 (5th Cir. 1968), which, he claims, support his argument that the remedy under the DOHSA is exclusive. We have examined the 14 cases and do not find them as persuasive as defendant does.

A number of these cases are clearly distinguishable from the contention being made here, since they hold or suggest that a state wrongful death act (not a state survival act) could not supplement the recovery provided for in the DOHSA. First National Bank in Greenwich v. National Airlines, Inc., 171 F. Supp. 528, 536 (S.D.N.Y. 1958), aff'd, 288 F.2d 621 (2d Cir.), cert. den. Kessler v. National Airlines, 368 U.S. 859, 82 S. Ct. 102, 7 L.Ed.2d 57 (1961); D'Aleman v. Pan American World Airways, 259 F. 2d 493, 496 (2d Cir. 1958) (concurring opinion); Jennings v. Goodyear Aircraft Corp., 227 F.Supp. 246, 248 (D.Del. 1964); Montgomery v. Goodyear Tire and Rubber Co., 231 F.Supp. 447, 452 (S.D.N.Y. 1964); King v. Pan American World Airways, 166 F.Supp. 136, 139 (N. D.Cal. 1958), aff'd, 270 F.2d 355 (9th Cir. 1959), cert. denied, 362 U.S. 928, 80 S.Ct. 753, 4 L.Ed.2d 746 (1960); Wilson v. Transocean Airlines, 121 F.Supp. 85, 90-91 (N.D.Cal. 1954). These cases are not persuasive with regard to the contention that the Pennsylvania Survival Act should not be applied in this instance.6 A group of other opinions contains, at most, language stressing the exclusive nature of the DOHSA, but the opinions do not include any discussion of the applicability of state statutes in cases brought under the DOHSA. See Blumenthal v. United States, 189 F.Supp. 439 (E.D.Pa. 1960), aff'd, 306 F.2d 16 (3d Cir. 1962); Middleton v. Luckenbach S. S. Co., 70 F.2d 326 (2d Cir. 1934); Devlin v. Flying Tigers Inc., 220 F.Supp. 924 (S.D.N.Y. 1963); Peterson v. United New York Sandy Hook Pilots Ass'n, 17 F.Supp. 676 (E.D.N.Y. 1936); cf. United States v. Gavagan, 280 F.2d 319, 321 (5th Cir. 1960), cert. denied, 364 U.S. 933, 81 S.Ct. 379, 5 L.Ed.2d 365 (1961) (by implication). In another case, a district court held that the DOHSA did not itself confer upon the beneficiaries of a decedent a cause of action for conscious suffering, but did not

438 F.2d 1390
face the question of whether such a cause of action under a state statute would be permitted in a suit under the DOHSA. Brown v. Anderson-Nichols & Co., 203 F.Supp. 489 (D.Mass. 1962). The remaining cases lend substantial support to defendant's position. In these DOHSA cases, the courts refused to permit the utilization of state law which would have granted relief under several theories distinct from wrongful death. See Igneri v. C. I. E. 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) (loss of consortium); Noel v. United Aircraft Corp., 204 F.Supp. 929 (D.Del. 1962), aff'd, in part, rev'd in part, 342 F.2d 232 (3d Cir. 1965) (implied warranty of fitness); Echavarria v. Atlantic & Caribbean Steam Nav. Co., 10 F.Supp. 677 (E.D.N.Y. 1935) (survival provisions of state death statute)

On the other hand, a number of cases cited by plaintiffs hold or clearly state in dicta that recovery under a state survival statute is permissible in a suit based on the DOHSA. United States v. S. S. Washington, 172 F.Supp. 905 (E.D. Va. 1959), aff'd, sub nom. United States v. Texas Co., 272 F.2d 711 (4th Cir. 1959) (holding); Canillas v. Joseph H. Carter, Inc., 280 F.Supp. 48 (S.D.N.Y. 1968) (dictum); Carli v. New London Flying Service, Inc., 1965...

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39 practice notes
  • Himmler v. United States, Civ. A. No. 75-2136.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 14 Agosto 1979
    ...the control of 91L. The defendant cites Dugas v. National Aircraft, 310 F.Supp. 21 (E.D.Pa.1970) (Dugas I) aff'd in part, vac. in part, 438 F.2d 1386 (3d Cir. 1971) (Dugas II), and 340 F.Supp. 324 (E.D.Pa.1972) (Dugas III). Dugas II and III are not pertinent since they deal with the questio......
  • Calhoun v. Yamaha Motor Corp., U.S.A., No. 93-1736
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 7 Diciembre 1994
    ...and unpredictable sea voyages." Id. 23 Gaudet also cited approvingly to a decision of this court, Dugas v. National Aircraft Corp., 438 F.2d 1386 (3d Cir.1971), which joined a state survival statute to a general maritime wrongful death cause of action. Gaudet, 414 U.S. at 588 n. 24, 94 S.Ct......
  • Stoddard v. Ling-Temco-Vought, Inc., No. CV-72-1294-PGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 27 Enero 1981
    ...F.Supp. 439, aff'd. 306 F.2d 16 (3rd Cir. 1962); Dugas v. National Aircraft Corp., 310 F.Supp. 21 (Pa.1970) aff'd. and vacated in part 438 F.2d 1386, remand D.C., 340 F.Supp. 324; Trihey v. Transocean Air Lines, 255 F.2d 824 (9th Cir. 1958); Haasman v. Pacific Alaska Air Express, 100 F.Supp......
  • In re Dearborn Marine Service, Inc., No. 72-2704.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 22 Agosto 1974
    ...death the decedent had for pain and suffering and would have been able to enforce had he survived, see Dugas v. National Aircraft Corp., 438 F.2d 1386 (CA3 1971), or on a theory based upon Dennis v. Central Gulf Steamship Corp., 453 F.2d 137 (CA5 1972), cert. denied, 409 U.S. 948, 93 S.Ct. ......
  • Request a trial to view additional results
39 cases
  • Himmler v. United States, Civ. A. No. 75-2136.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 14 Agosto 1979
    ...the control of 91L. The defendant cites Dugas v. National Aircraft, 310 F.Supp. 21 (E.D.Pa.1970) (Dugas I) aff'd in part, vac. in part, 438 F.2d 1386 (3d Cir. 1971) (Dugas II), and 340 F.Supp. 324 (E.D.Pa.1972) (Dugas III). Dugas II and III are not pertinent since they deal with the questio......
  • Calhoun v. Yamaha Motor Corp., U.S.A., No. 93-1736
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 7 Diciembre 1994
    ...and unpredictable sea voyages." Id. 23 Gaudet also cited approvingly to a decision of this court, Dugas v. National Aircraft Corp., 438 F.2d 1386 (3d Cir.1971), which joined a state survival statute to a general maritime wrongful death cause of action. Gaudet, 414 U.S. at 588 n. 24, 94 S.Ct......
  • Stoddard v. Ling-Temco-Vought, Inc., No. CV-72-1294-PGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 27 Enero 1981
    ...F.Supp. 439, aff'd. 306 F.2d 16 (3rd Cir. 1962); Dugas v. National Aircraft Corp., 310 F.Supp. 21 (Pa.1970) aff'd. and vacated in part 438 F.2d 1386, remand D.C., 340 F.Supp. 324; Trihey v. Transocean Air Lines, 255 F.2d 824 (9th Cir. 1958); Haasman v. Pacific Alaska Air Express, 100 F.Supp......
  • In re Dearborn Marine Service, Inc., No. 72-2704.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 22 Agosto 1974
    ...death the decedent had for pain and suffering and would have been able to enforce had he survived, see Dugas v. National Aircraft Corp., 438 F.2d 1386 (CA3 1971), or on a theory based upon Dennis v. Central Gulf Steamship Corp., 453 F.2d 137 (CA5 1972), cert. denied, 409 U.S. 948, 93 S.Ct. ......
  • Request a trial to view additional results

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