Favaloro v. S/S GOLDEN GATE

• Decision Date: 27 November 1987
• Docket Number: C-86-6531 MHP and C-87-0010 MHP.,No. C-86-3068 MHP,C-86-3075 MHP,C-86-6530 MHP,C-86-6516 MHP,C-86-3068 MHP
• Citation: 687 F. Supp. 475
• Parties: Juanita FAVALORO, etc., et al., Plaintiffs, v. S/S GOLDEN GATE, etc., et al., Defendants.
• Court: U.S. District Court — Northern District of California

687 F. Supp. 475

Juanita FAVALORO, etc., et al., Plaintiffs, v. S/S GOLDEN GATE, etc., et al., Defendants.

Nos. C-86-3068 MHP, C-86-3075 MHP, C-86-6516 MHP, C-86-6530 MHP, C-86-6531 MHP and C-87-0010 MHP.

United States District Court, N.D. California.

November 27, 1987.

COPYRIGHT MATERIAL OMITTED

John F. Meadows, Russell P. Brown, Meadows, Smith & Brown, San Francisco, Cal., for United Nat. Ins. Co.

Quentin L. Kopp, William F. Fitzgerald, Kopp & Di Franco, San Francisco, Cal., for Favaloro, Tom Lazio Fish Co., Inc.

Charles S. Donovan, Peter A. Lindh, Walsh, Donovan, Lindh & Keech, San Francisco, Cal., for Peter Leib.

George W. Nowell, John S. Covell, Law Offices of George W. Nowell, San Francisco, Cal., for K. Delancey, Ramon P. Mairaya, James Longley.

Robert C. Chiles, Hall, Henry, Oliber & McReavy, A Professional Corporation, San Francisco, Cal., for David Hilger.

Perry D. Litchfield, John Starbuck, Law Offices of Perry D. Litchfield, San Rafael, Cal., for Ingargiolas.

David Luis Haist, Hayward, Cal., in pro per.

Elizabeth Susan Stanley Hayes, Hayward, Cal., in pro per.

Jeffrey R. Walsh, Henning, Walsh & Ritchie, San Francisco, Cal., for Favaloro et al.

Mark O. Kasanin, Jack G. Knebel, Andrew I. Port, Pecos Bill Field, McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for Keystone Tankship Corp., Keystone Shipping Co.

ORDER

PATEL, District Judge.

This case consolidates several actions filed as a result of the sinking of the Jack Jr. fishing boat on May 26, 1986. Plaintiffs are survivors of the boat's skipper and of a crew member and the Tom Lazio Fish Company, Inc., an owner of the Jack Jr.¹ They assert several causes of action, including wrongful death, pain and suffering, property damages, fraud and spoliation of evidence. Defendants include various officers and crew members of the S.S. Golden Gate, a tanker that allegedly collided with the Jack Jr. and caused its demise, as well as the companies that own and operate the tanker.

Defendants move to dismiss the complaints on several grounds: (1) the wrongful death claims must be brought by each decedent's personal representative, but neither personal representative is a named plaintiff; (2) plaintiffs failed to allege an ownership interest in the Jack Jr. to support a claim for property damage; (3) the state claims are preempted by the Death on the High Seas Act ("DOHSA"), 46 U.S.C. App. §§ 761-768, and general maritime law; (4) even if all state claims are not preempted they must fail for lack of jurisdiction since diversity—although alleged— does not exist; (5) punitive damages are not available under DOHSA; (6) a jury trial is not available for maritime claims; and (7) plaintiffs lack standing to bring an action regarding the United States Coast Guard investigation of defendants with respect to the sinking of the Jack Jr. In the alternative to dismissal, defendants move to strike or for more particularity in the pleading. Defendants also make a motion to stay the proceedings until the statute of limitations expires for criminal charges that may be filed against them or until the disposition of such charges, if ever filed, become final.

Although plaintiffs concede that some of their claims must be amended and ask for leave to do so, they contest complete preemption by maritime law and claim they have a right to sue for fraud upon the Coast Guard and related spoliation of evidence.

Based on the numerous defects in the existing complaints, the court grants the motions to strike and for more definite statement as to several claims and orders the consolidated amendment of the complaints, all in accordance with this order. The motion to stay the proceedings is denied as defendants have failed to demonstrate sufficient prejudice to support such a drastic measure at this time.

FACTS

Early on the foggy evening of May 26, 1986, Jack Favaloro, skipper of the Jack Jr., was fishing with his two-man crew approximately seven miles west of Point Reyes, California. Plaintiffs allege that the S.S. Golden Gate collided with and sank the Jack Jr. while it was floating still in the water as the crew was bringing in a fishing net. Plaintiffs allege that the tanker's crew failed to keep a safe distance from the Jack Jr., even though they knew of the fishing boat's location by radar and radio contact. Plaintiffs further allege that the S.S. Golden Gate continued on its northbound course after the collision and only returned to look for survivors forty-five minutes after the incident and upon request of the Coast Guard and another fishing boat.

Plaintiffs charge defendants with violating various rules under the International Regulations for Preventing Collisions at Sea, 1972, 33 U.S.C. foll. § 1602 and other rules promulgated for navigation safety.

Although the Coast Guard has investigated the circumstances of the collision, the court has not seen any results of the investigation. With respect to this investigation, plaintiffs allege that defendants acted fraudulently by concealing evidence and thereby damaged plaintiffs by limiting the information they could use in this action.

Procedurally, this litigation involves several actions by the various plaintiffs and two limitation actions. These actions have been consolidated for disposition before this court.

DISCUSSION

Defendants make several motions challenging the sufficiency of the complaints filed in this case. In ruling on the motion to dismiss, "the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id., quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

While the complaints suffer from numerous infirmities, some conceded by the plaintiffs, dismissal is not justified at this stage of the proceedings. The facts alleged could, if properly pleaded, state several claims for relief. The complaints however, must be amended as set forth in this order to strike each claim that the law does not support and to sufficiently allege the remaining claims. The court directs the plaintiffs to jointly file and serve their amended complaint within 30 (thirty) days of the date of this order.

I. Wrongful Death Claims.

State and general maritime law wrongful death actions are preempted by DOHSA if the death occurs beyond a marine league (three nautical miles) from the shore of any state. See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 2491, 91 L.Ed.2d 174 (1986); Mobil Oil Corp. v. Higgenbotham, 436 U.S. 618, 620, 98 S.Ct. 2010, 2012, 56 L.Ed.2d 581 (1978). For this reason, plaintiffs cannot state a claim for relief for wrongful death other than in accordance with DOHSA. DOHSA, by its terms, requires that a wrongful death action be brought solely by the personal representative of the decedent's estate. 46 U.S.C.App. § 761. Plaintiffs must accordingly amend their complaint to conform with this explicit requirement.

Additionally, the Supreme Court has strictly interpreted the remedy under DOHSA to permit only pecuniary damages. Higgenbotham, 436 U.S. at 623, 98 S.Ct. at 2013; see also 46 U.S.C. § 762. Plaintiffs argue that although Congress did not provide for punitive damages for negligent conduct resulting in death, it did not preempt imposition of punitive damages for willful or grossly negligent conduct under general maritime law. This argument, however, is in direct conflict with both principles enunciated in Higgenbotham, which cautioned against adding to the explicit remedies provided in DOHSA, id. at 625, 98 S.Ct. at 2015; and the law now adopted by this circuit. Bergen v. F/V St. Patrick, 816 F.2d 1345, 1347-49 (9th Cir.1987). Accordingly, plaintiffs must strike their claims for punitive damages for wrongful death.

II. The Survival of Pain and Suffering Actions.

While DOHSA preemption of wrongful death actions is complete, other questions remain: whether an action for pre-death pain and suffering is preempted; if not, whether the action survives; and whether it is an action under state law or general maritime law.

It is clear that the Supreme Court did not intend to reach the preemption issue in Offshore Logistics. In footnote 1 the court stated:

DOHSA does not include a survival provision authorizing recovery for pain and suffering before death. We do not address the issue whether the DOHSA recovery for the beneficiaries' pecuniary loss may be "supplemented" by a recovery for the decedent's pain and suffering before death under the survival provision of some conceivably applicable state statute that is intended to apply on the high seas.

106 S.Ct. at 2491 n. 1 (citations omitted).

Two recent Ninth Circuit cases shed some light on all three questions, but answer them only in part. Some background, however, is necessary to an understanding of these cases. DOHSA covers only wrongful death actions. It does not speak to pre-death pain and suffering resulting from the same accident that ultimately causes death, and it has been held that pain and suffering are not elements of damages in a DOHSA action. Barbe v. Drummond, 507 F.2d 794, 797 (1st Cir.1974) (and cases cited therein). Thus, courts have spoken of a "gap" in DOHSA's coverage. Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893 (5th Cir.1984) (cited in Evich v. Morris, 819 F.2d 256, 258 (9th Cir., cert. denied, ___ U.S. ___, 108 S.Ct. 261, 98 L.Ed.2d 218 (1987)). Prior to Moragne v. States Marine Lines, 398 U.S. 375, 387, 90 S.Ct. 1772, 1780, 26 L.Ed.2d 339 (1970), which recognized a general maritime action for wrongful death in state territorial waters, courts relied on state survival statutes to fill the "gap." See Azzopardi, 742 F.2d at 893. Post-Moragne courts...