Futch v. Midland Enterprises, Inc.

Decision Date22 June 1972
Docket NumberCiv. A. No. 71-4.
PartiesJohn FUTCH, Individually and as Personal Representative of Cecil Futch v. MIDLAND ENTERPRISES, INC., et al.
CourtU.S. District Court — Middle District of Louisiana

James A. George, Wendell G. Lindsay, George, Lindsay & Seago, Ltd., Baton Rouge, La., for plaintiff.

George B. Matthews, Donald R. Abunza, Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, New Orleans, La., for defendants.

E. GORDON WEST, District Judge:

On January 9, 1969, the M/V THERESA F, a 145 foot vessel owned by the defendant, Midland Enterprises, Inc., and under bareboat charter at the time to the defendant, Red Circle Transport Company, capsized while towing the barge FREEPORT I. The FREEPORT was owned by the defendant, Ohio River Company. Cecil Futch, plaintiff's son, who was a member of the crew of the THERESA F, was drowned when the vessel capsized. Plaintiff, John Futch, claiming in his original complaint to be the personal representative of his deceased son, brings this suit under the Jones Act, 46 U.S.C.A. § 688, the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq., and under the General Maritime Law of the United States. The defendants have answered alleging that (1) plaintiff is not the personal representative of the deceased Cecil Futch; (2) the deceased, Cecil Futch, left a surviving widow, Mrs. Ann Futch, who is the duly qualified personal representative of the deceased, and (3) the said Mrs. Ann Futch, as the duly qualified personal representative of the deceased, was paid the sum of $75,000 by the defendants, for which she gave her receipt and release, which, by its terms, does release, remise, and forever discharge the defendants,

"* * * of and from any and all liability or claims for damages, whether now known or hereafter discovered, arising either directly or indirectly out of the death of Cecil M. Futch as aforesaid including, without limitation, claims for pain and suffering, funeral expenses, under the Jones Act, 46 U.S.C. § 688, the Death on the High Seas Act, 46 U.S.C. § 761, the General Maritime Law or under any State or Federal Statute or otherwise, it being the intent of the undersigned to completely release and discharge any and all claims which she in her aforesaid capacities may have for damages or otherwise as a result of the matters aforesaid."

The defendants contend that since Mrs. Ann Futch is the duly qualified personal representative of the deceased, the plaintiff, John Futch, has no standing to bring this suit, and that therefore defendants are entitled to a summary judgment dismissing this suit. Plaintiff answers this contention by conceding that he is not the duly qualified personal representative of the deceased, and that therefore he is barred from bringing this suit under the Jones Act or the Death on the High Seas Act, but he asserts that in light of the decision of the United States Supreme Court in Moragne v. States Marine Lines, Inc., 398 U. S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), he has a right of action for wrongful death under general maritime law entirely different in nature and apart from that asserted by the decedent's widow in her capacity of personal representative of the deceased. Therefore, the question before the Court on defendants' motion for summary judgment is whether or not, under the cause of action for wrongful death under maritime law recognized by Moragne, someone other than the personal representative of the deceased may bring an action.

While there are many unanswered questions as to the exact nature of the so-called Moragne-type general maritime cause of action, if indeed any such "new" right of action was in fact created, the Court here is only concerned with the question of whether or not this particular plaintiff has standing to bring this particular suit. We conclude that he does not.

Other than establishing some guidelines, the only definitive holdings in Moragne were that The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886) was overruled and that "An action does lie under general maritime law for death caused by violation of maritime duties." 90 S.Ct. at 1792. In response to the argument that overruling The Harrisburg would require the manufacturing of much law by lower courts to fill the void left by the absence of The Harrisburg, the Court said:

"We believe these fears are exaggerated, because our decision does not require the fashioning of a whole new body of federal law, but merely removes a bar to access to the existing general maritime law." 90 S.Ct. at 1790.

Later, in the same decision, the Court said:

"* * * the difficulties should be slight in applying accepted maritime law to actions for wrongful death." 90 S.Ct. at 1791.

When the Court, in Moragne, addressed itself to the question of who could be the beneficiaries in a so-called Moragne wrongful death action, it merely established some guidelines without expressly answering the question. The Court suggested that it might be proper to look at what Congress has done in connection with wrongful death actions under the Death on the High Seas Act, the Jones Act, and the Longshoremen's and Harbor Workers' Act, 33 U.S.C.A. § 909, in order to determine who should be beneficiaries in case of wrongful death under the general maritime law. While the Supreme Court in Moragne did not attempt to answer this question, they did suggest that uniformity should be a consideration.

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4 cases
  • Ivy v. Security Barge Lines, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 4, 1978
    ...375, 90 S.Ct. 1772, 26 L.Ed.2d 339. See, e. g., Savoie v. Nolty J. Theriot, Inc., E.D.La.1972, 396 F.Supp. 973; Futch v. Midland Enterprises, Inc., M.D.La.1972, 344 F.Supp. 324, Aff'd, 5 Cir. 1973, 471 F.2d 1195. In the few cases in which courts have allowed wrongful death suits to be maint......
  • Higginbotham v. Mobil Oil Corporation
    • United States
    • U.S. District Court — Western District of Louisiana
    • June 25, 1973
    ...51, 59; 46 U.S.C.A. §§ 761, 762; Lindgren v. United States, supra; Moragne v. States Marine Lines, Inc., supra; Futch v. Midland Enterprises, Inc., 344 F.Supp. 324 (M.D.La.1972), aff'd Jan. 8, 1973, unreported (No. 72-2900, 5th Cir.). The personal representative of each of the decedents may......
  • Savoie v. Nolty J. Theriot, Inc., Civ. A. No. 72-1178.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • August 2, 1972
    ...plaintiffs herein have no right to bring the Moragne death action, if in fact such an action exists.7 Accord, Futch v. Midland Enterprises, Inc., 344 F.Supp. 324 (1972 M.D.La.). Accordingly, the motion of the defendant for summary judgment should be, and the same is hereby, 1 See Exhibit A ......
  • Futch v. Midland Enterprises, Inc., 72-2900 Summary Calendar.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 8, 1973
    ...Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). In granting summary judgment, the court below, 344 F.Supp. 324, concluded that the father had no standing to sue for Moragne-type damages, since he was not the personal representative of the decedent. ......

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