Hamilton v. Canal Barge Company, Inc.

• Decision Date: 15 May 1975
• Docket Number: Civ. A. No. 74-682.
• Citation: 395 F. Supp. 978
• Parties: Mrs. Betty Jean Lindsey HAMILTON, Individually and as Administratrix of the Succession of Billy Joe Hamilton, Jr. and as a representative for and on behalf of Susan Ann Dunn, and the minor child, Bryan Joseph Hamilton a/k/a Bryan Joseph Dunn, v. CANAL BARGE COMPANY, INC., and Petrolane Offshore Construction Service, Inc.
• Court: U.S. District Court — Eastern District of Louisiana

395 F. Supp. 978

Mrs. Betty Jean Lindsey HAMILTON, Individually and as Administratrix of the Succession of Billy Joe Hamilton, Jr. and as a representative for and on behalf of Susan Ann Dunn, and the minor child, Bryan Joseph Hamilton a/k/a Bryan Joseph Dunn, v. CANAL BARGE COMPANY, INC., and Petrolane Offshore Construction Service, Inc.

Civ. A. No. 74-682.

United States District Court, E. D. Louisiana.

April 2, 1975.

Supplemental Opinion May 15, 1975.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Eldon E. Fallon, Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, La., James O. Ervin, Baton Rouge, La., Edward F. Wegmann, New Orleans, La., for plaintiffs.

Robert M. Contois, Glenn G. Goodier, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for defendant Central Marine.

Lemle, Kelleher, Kohlmeyer & Matthews, B. Ralph Bailey, New Orleans, La., for defendant Petrolane.

Watkins, Watkins & Walker, James C. Walker, Jr., Houma, La., for defendant Bayou Marine.

ALVIN B. RUBIN, District Judge:

Billy Joe Hamilton, Jr., an employee of Petrolane and a member of the crew of its derrick barge OCTOPUS, was killed in the course of his employment on April 26, 1973, when a part of a mooring bitt on a barge being used in connection with the work of the OCTOPUS broke off.

Petrolane had chartered the barge from Bayou Marine, which had in turn chartered it from Central Marine. The plaintiffs sued Petrolane, Bayou Marine, and Central Marine, and the various defendants cross claimed against each other.

For reasons orally assigned at the conclusion of the trial to the court, the decedent was found to have been a member of the crew of both the OCTOPUS and the barge; his death was determined to have resulted from Petrolane's negligence and from the unseaworthiness of the barge. Mr. Hamilton was found not to have been contributorily negligent. The remaining issues in the case concern the persons to whom damages are due, the amount of damages due each of them, the liability of the co-defendants to the plaintiff, and the cross claims among the various defendants.

I. FACTS RELATIVE TO DAMAGES

Mr. Hamilton was 21 years of age at the time of his death. He was survived by his mother and father, with whom he lived. He was engaged to be married to Susan Ann Dunn, who was then 16. The wedding date had been set; the minister had consented to perform the ceremony; the bride had purchased her wedding dress; she and Mr. Hamilton had purchased wedding bands; wedding invitations and napkins for the nuptial reception had been printed; and the couple had rented an apartment. After Mr. Hamilton's death, Ms. Dunn learned from her doctor that she was two months pregnant; the medical and factual testimony leaves no doubt that Mr. Hamilton was the father. The healthy, full-term child who was later born is one of those for whom damages are sought; the others are Mr. Hamilton's fiancee, and his parents.

Mr. Hamilton was a Jones Act seaman. That act confers both an action for his wrongful death and an action by his survivors for any damages he suffered before death. In addition, an action lies under the general maritime law, as set forth in Moragne v. States Marine Lines, 1970, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, for wrongful death as a result of unseaworthiness. As the accident occurred less than three miles from shore, there is no cause of action under the Death on the High Seas Act, 46 U.S.C. §§ 761-768 (hereafter cited as DOHSA).¹

II. PAIN AND SUFFERING OF THE DECEDENT

Mr. Hamilton was struck in the head by a piece of metal from the bitt. A fellow worker who was at his side seconds after he fell to the deck testified Mr. Hamilton was breathing but unconscious. Though he lived for two hours thereafter, there is no evidence that he suffered conscious pain. He was breathing hard, but no one heard him utter a sound. Accordingly, I find no evidence of conscious pain and suffering. Mpiliris v. Hellenic Lines, Ltd., S. D.Tex.1969, 323 F.Supp. 865.

III. PARENTS' CLAIMS

Mr. Hamilton's parents were not supported by him. He lived in his parents' home, together with three of his four brothers. Mr. Hamilton appears to have been an exemplary young man. He assisted with household expenditures from time to time, mowed the pasture, took care of his younger brothers, but he did not pay rent. The family kept no financial accounts; they were loving, close knit and church-going.

The elements of damages claimed by the parents are twofold; their pecuniary loss of whatever the decedent would have contributed in the way of financial aid and in the form of services, and the loss of the society of their son.

No claim may be asserted by the parents under the Jones Act. The Jones Act incorporates the F.E.L.A., the pertinent part of which permits the personal representative of the deceased to maintain an action for damages "for the benefit of the 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 . . .." 45 U.S.C. § 51. Thus, the existence of a preferred class of beneficiaries excludes recovery by the inferior classes, or to put it in less technical language, if the deceased is survived by children, his parents are not permitted to claim damages, no matter how grievous their injury.

The existence of this statutory remedy in favor of certain claims of beneficiaries, however, does not preclude all possibility of recovery by the parents. In Sea-Land Services, Inc. v. Gaudet, 1974, 414 U.S. 573, 94 S.Ct. 806, 39 L. Ed.2d 9, the Supreme Court in holding that the wrongful death action under the general maritime law includes the right to recover for the loss of society, said

After combing the legislative history of the Death on the High Seas Act, we concluded in Moragne that Congress expressed "no intention . . . of foreclosing any nonstatutory federal remedies that might be found appropriate to effectuate the policies of general maritime law." Moragne, 398 U.S., at 400, 90 S.Ct., at 1787. Nothing in the legislative history of the Act suggests that Congress intended the Act's statutory measure of damages to pre-empt any additional elements of damage for a maritime wrongful death remedy which this Court might deem "appropriate to effectuate the policies of general maritime law." 94 S.Ct. at 816 n. 22.

These remarks are addressed to DOHSA; their logic extends to the relationship of the Jones Act to the maritime death action. The Moragne Court understood that its recognition of the cause of action for wrongful death created an issue "that has no precise counterpart in the established law governing nonfatal injuries," that is, "the determination of the beneficiaries who are entitled to recover." 398 U.S. at 406, 90 S. Ct. at 1791. It summarized the government's argument that Moragne actually should borrow the schedule of beneficiaries set forth in DOHSA, and concluded that determination of the issue should "await further sifting through the lower courts in future litigation." 398 U.S. at 408, 90 S.Ct. at 1792. Hence, though DOHSA is not applicable here, we can at least consider the results of its possible application.

The existence of a claim on behalf of certain classes of beneficiaries under the Jones Act has been held not to bar recovery by other classes under DOHSA. The Four Sisters, D.Mass. 1947, 75 F.Supp. 399. See also In re M/V Elaine Jones, 5 Cir. 1973, 480 F.2d 11. Application of the Jones Act schedule of beneficiaries to a Moragne action would once again create geographic boundary problems, as the place of injury would once again determine the rights of the beneficiaries. Thus, the DOHSA schedule would be applicable where death occurred on the high seas, but not where death occurred in state territorial waters. The uniformity sought by Moragne would be defeated. Hence, it appears sound here to borrow from DOHSA and permit the parents' claim notwithstanding the concomitant claim by Mr. Hamilton's posthumous son.

The Supreme Court's decisions in Gillespie v. United States Steel Corp., 1964, 379 U.S. 148, 85 S.Ct. 308, 13 L. Ed.2d 199, and Lindgren v. United States, 1930, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686, which held that the Jones Act precluded the application of state wrongful death provisions, do not compel a different result. Those cases dealt with the preclusion of state law by the Jones Act, not the question whether the Jones Act provided the exclusive federal remedy. Indeed, in Lindgren, the Court said that the general maritime law was inapplicable because no action could be maintained for wrongful death under the general maritime law at that time, and expressly avoided saying that the Jones Act excluded the application of other federal remedies. It is well settled that the Jones Act does not bar the operation of DOHSA; there is no reason for it to exclude the Moragne remedy.

While the existence of a Jones Act remedy in favor of some beneficiaries does not preclude an action under the general maritime law on behalf of others, the recognition of the right of parents to recover even though their son was survived by a child leads to another issue: if the parents were not dependents, but were merely financially affected by the death, may they claim the damages they suffered? Put another way, the issue is whether the persons named in DOHSA as beneficiaries may recover even when they were not dependent on the deceased.

In Gaudet, the Court said, "the decedent's dependents may recover damages for their loss of support, services, and society," 94 S.Ct. at 814 (emphasis supplied), making no mention of the right of non-dependent relatives to recover. Under neither the Jones Act nor DOHSA, however, is dependency required for a parent to recover. In re Risdal & Anderson, D.Mass.1968, 291 F.Supp. 353. This is the clear intent of both statutes,² which, in listing...