Ford v. American Original Corp.

• Decision Date: 04 June 1979
• Docket Number: Civ. A. No. 78-637-N.
• Citation: 475 F. Supp. 10
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Nettie FORD, Administratrix of the Estate of George D. Ford, Jr., Deceased, Plaintiff, v. The AMERICAN ORIGINAL CORPORATION, and Trawler Shinnecock, Inc., Defendants.

475 F. Supp. 10

Nettie FORD, Administratrix of the Estate of George D. Ford, Jr., Deceased, Plaintiff, v. The AMERICAN ORIGINAL CORPORATION, and Trawler Shinnecock, Inc., Defendants.

Civ. A. No. 78-637-N.

United States District Court, E. D. Virginia, Norfolk Division.

June 4, 1979.

John H. Klein, Breit, Rutter & Montagna, Norfolk, Va., for plaintiff.

Carter B. S. Furr, Jett, Berkley, Furr & Price, Norfolk, Va., for defendants.

OPINION AND ORDER

CLARKE, District Judge.

Plaintiff administratrix, brought suit for wrongful death of the decedent ship repair yard worker, who died in an accident on board the Trawler SHINNECOCK on the navigable waters of Virginia. Through discovery it became apparent that claim was being made not only for the mother of the decedent, but also for a woman, Yvonne Spady (Ford), unrelated to the decedent through blood or marriage. Defendants have moved for summary judgment to the effect that the alleged beneficiary Spady is not entitled to recover any damages from the defendants.

For purposes of this motion, the following facts are taken as true. Decedent was killed while performing repair work on a vessel on the navigable waters of Virginia. Prior to his death, decedent had lived with Spady and her five children for several years. Decedent was divorced and had not remarried. Spady was not and is not married. There is no dispute that Spady received some support from the decedent prior to his death. The children, however, were not decedent's children, received no support from him, and no claim has been asserted on their behalf. There is also no contention that Spady was formally married or a relative of the decedent.

Defendants contend that under these circumstances Spady is entitled to no recovery in a wrongful death action under general maritime law or under the wrongful death statute of Virginia.

Prior to 1970, the established principle was that there could be no recovery in the admiralty courts for wrongful death under general maritime law in the absence of a statute allowing such recovery. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886). Thus, suitors had to look to state wrongful death statutes for a right of action.

In 1920, Congress acted to furnish a remedy for deaths beyond the jurisdiction of any state by passing two statutes. The first was the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 761-768. DOHSA provides a remedy in death situations occurring at sea more than a maritime league from shore. The second was the Jones Act, 46 U.S.C. § 688, which, by extending to seamen the protection of the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq., provided a right of recovery against the employer for negligence where the death of a seaman results from a personal injury suffered in the course of his employment.

Between 1920 and 1970, deaths on the high seas gave rise to federal suits under DOHSA, while those in territorial waters were largely governed by state wrongful death statutes. The exception to this rule was an action for the death of a seaman by his employer's negligence under the Jones Act no matter where the wrong took place. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 2013, 56 L.Ed.2d 581 (1978).

Finally in 1970, the Supreme Court in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), overruled The Harrisburg and held that a federal remedy for wrongful death does exist under general maritime law. In Moragne, plaintiff brought suit, alleging both negligence and unseaworthiness, against a shipowner for the wrongful death of a longshoreman aboard a vessel on the navigable waters of Florida. The case was removed to a federal court where the claim was dismissed on the basis that the state wrongful death statute provided no recovery for unseaworthiness.

The anomalies presented by such a ruling were clear:

(a) The shipowner was liable for the personal injury of a harborworker within territorial waters, but frequently not for his death;

(b) Death caused by an unseaworthy vessel outside the three-mile limit imposed liability under the Death on the High Seas Act footnote omitted but not within the territorial waters of a State whose wrongful death statute excluded unseaworthiness claims; and

(c) That a "true" seaman covered by the Jones Act is provided no remedy for death caused by unseaworthiness within territorial waters, while a harborworker does have such a remedy when allowed by a State statute. footnote omitted

1 Norris, The Law of Maritime Personal Injuries § 133 (1975).

Recognizing these difficulties the Supreme Court in Moragne overruled The Harrisburg and held "that an action does lie under general maritime law for death caused by violation of maritime duties." 398 U.S. at 409, 90 S.Ct. at 1792.

The Moragne court, however, expressly left various subsidiary questions concerning the nonstatutory death remedy—including the schedule of beneficiaries entitled to recover in such actions—for "further sifting through the lower courts in future litigation." 398 U.S. at 408, 90 S.Ct. at 1792. The Court noted that the lower "courts will not be without persuasive analogy for guidance. Both the Death on the High Seas Act and the numerous state wrongful-death acts have been implemented with success for decades." Id.

Thus, following Moragne federal courts were left with a variety of sources from which to select beneficiaries qualified to recover for the wrongful death of a decedent under general maritime law—DOHSA, Jones Act, state wrongful death statutes and the Longshoremen's and Harbor Workers' Compensation Act.¹

Initially, we note that we do not agree with the defendants that the recent decision in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010 (1978), demands that the proper beneficiaries set out in DOHSA apply to Moragne suits. It is true that the Higginbotham Court stated that "DOHSA should be the courts' primary guide as they refine the nonstatutory death remedy, both because of the interest in uniformity and because Congress' considered judgment has great force in its own right." 436 U.S. at 624, 98 S.Ct. at 2014-15. Nevertheless, the Court also noted that in the process of answering the questions left open in the Moragne decision at least in cases occurring on territorial waters, the courts for policy reasons may look to sources other than DOHSA. 436 U.S. at 622, 98 S.Ct. at 2013-14. The Higginbotham decision held only that in other cases, such as an action expressly falling under DOHSA, where Congress has specifically spoken to a particular question, the courts are not free to ignore the legislative mandate for reasons of judicial policy.

Under the facts of the present dispute, we need not conclusively select one of the respective lists of beneficiaries from among the several choices. It is clear that under any of the possible statutory lists of qualified beneficiaries Spady may not recover.² Beneficiaries under the several statutes are as follow:

DOHSA 46 U.S.C. § 761—"decedent's wife, husband, parent, child, or dependent relative."

Jones Act 46 U.S.C. § 688, 45 U.S.C. § 51—"surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee."

Virginia Wrongful Death Act Va. Code 8.01-53—"(i) the surviving spouse, children, and grandchildren of the deceased, or (ii) if there be none such, then to the parents, brothers, and sisters of the deceased, or (iii) if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, then . . . to the surviving spouse and such parent or parents."

It has been previously held that those beneficiaries entitled to recover under the Jones Act and DOHSA are entitled to recover under a nonstatutory wrongful death action under Moragne. Mungin v. Calmar Steamship Corp., 342 F.Supp. 479 (D.C.Md. 1972).

Under the facts of this case, however, we hold that Spady would not be entitled to recover as a beneficiary under any of the three statutes. Initially, Spady cannot recover as a "dependent relative" under DOHSA or as "next of kin dependent" under the Jones Act. It is conceded that Spady was not a relative of the decedent and dependency alone is not sufficient. Under DOHSA, the right conferred "is not for the benefit of all dependents but only for dependent relatives." McPherson v. Steamship South African Pioneer, 321 F.Supp. 42, 49 (E.D.Va.1971), quoting Lawson v. United States, 192 F.2d 479, 481 (2d Cir. 1951), cert. denied, 343 U.S. 904, 72 S.Ct. 635, 96 L.Ed. 1323 (1952). Similarly, we are not inclined to ignore the words "next of kin" in the Jones Act. Thus, in order for Spady to recover as a beneficiary, she must qualify as a "decedent's wife" (DOHSA), "surviving widow" (Jones Act), or "surviving spouse" (Virginia statute).

The Fourth Circuit has held that in interpreting the term "surviving widow" in the Jones Act, admiralty courts must look to the domestic relations law of the domiciliary state. Bell v. Tug Shrike, 332 F.2d 330 (4th Cir. 1964), cert, denied, 379 U.S. 844, 85 S.Ct. 84, 13 L.Ed.2d 49 (1964). There is no question that the law of Virginia does not recognize common law marriages. E. g., Offield v. Davis, 100 Va. 250, 40 S.E. 910 (1902); Heflinger v. Heflinger, 136 Va. 289, 118 S.E. 316 (1923); Bell, supra, 332 F.2d at 331. Thus, the court in Bell held that a woman could qualify as a "surviving widow" under the Jones Act only through a lawful marriage. Accord McPherson v. Steamship South African Pioneer, 321 F.Supp. 42 (E.D.Va.1971).

Similarly, under DOHSA the term "decedent's wife" is to be interpreted as legal wife. The Second Circuit has held:

The common meaning of "wife" is legal wife . . . and we see nothing to suggest that the legislature used the word in other than its normal meaning . . .

Lawson v. United States, 192 F.2d 479, 480 (2d Cir. 1951), cert. denied, 343...