IN RE FARRELL LINES INCORPORATED

• Decision Date: 30 July 1974
• Docket Number: Civ. A. No. 3033.
• Citation: 378 F. Supp. 1354
• Parties: In the Matter of the Complaint of FARRELL LINES INCORPORATED, Owner of the STEAMSHIP AFRICAN NEPTUNE, for limitation of liability.
• Court: U.S. District Court — Southern District of Georgia

378 F. Supp. 1354

In the Matter of the Complaint of FARRELL LINES INCORPORATED, Owner of the STEAMSHIP AFRICAN NEPTUNE, for limitation of liability.

Civ. A. No. 3033.

United States District Court, S. D. Georgia, Savannah Division.

June 13, 1974.

On Petition for Limitation of Liability July 30, 1974.

COPYRIGHT MATERIAL OMITTED

Julian C. Sipple, Gustave R. Dubus, III (Chamlee, Dubus & Sipple), Savannah, Ga., Richard H. Brown, Jr. (Kirlin, Campbell & Keating), New York City, for Farrell Lines Inc.

David B. Kaplan, Boston, Mass., Leon A. Wilson, II and Benjamin Smith, Jr., Waycross, Ga., J. S. Hutto & Associates, Brunswick, Ga., Perry Brannen, Jr., Savannah, Ga., Richard E. Deane, Jacksonville, Fla., A. Blenn Taylor, Jr., Brunswick, Ga., Barnard M. Portman (Smith & Portman), Savannah, Ga., J. Richard Moore, Jacksonville, Fla., for claimants.

PRE-TRIAL ORDER ON MEASURE OF DAMAGES FOR WRONGFUL DEATH IN TERRITORIAL WATERS OF GEORGIA

LAWRENCE, Chief Judge.

On the evening of November 7, 1972, the S.S. "African Neptune" while proceeding down the Brunswick River eastward toward the Atlantic Ocean struck the Sidney Lanier Bridge in Glynn County, Georgia. Ten occupants of vehicles awaiting her passage through the draw span were killed when three sections were knocked from the piers into the river.

In a subsequent proceeding by the owner of the "African Neptune" for limitation of liability, claims for wrongful death were filed by the personal representatives of the decedents. Exoneration from liability has been denied by this Court.

What measure of damage is to be applied in determining the value of the lives of the ten deceased persons?

That question comes before this Court prior to decision on the limitation of liability issue and before the trial of the death and injury claims. Advance resolution of the issue as to elements of recovery will be helpful in permitting evaluation of the claims for purposes of possible settlement.¹ There has been oral argument and briefs have been filed. Counsel for some of the defendants urge the Court not to decide the question of the measure of damage at this stage but to withhold judgment until the trial of the death claims. I do not think that such a course will help matters in this case. My current views as to the law about damages can, if necessary, be changed to accord with subsequent rulings by the Fifth Circuit or the Supreme Court.

The measure-of-damages question is largely disposed of by Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S. Ct. 1772, 26 L.Ed.2d 339 and Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9. The Fifth Circuit offspring of Moragne include Hornsby v. The Fish Meal Company, 431 F.2d 865; Dennis v. Central Gulf Steamship Corporation, 453 F.2d 137; Futch v. Midland Enterprises, Inc., 471 F.2d 1195; Petition of Canal Barge Company, Inc. as Owner and Operator of the M/V Elaine Jones, 480 F.2d 11 and Weeks v. Alonzo Cothron, Inc., 493 F.2d 538. These decisions set forth the elements and the measure of damages applicable to the judicially-created remedy for wrongful death under general maritime law. They enunciate the following principles and standards:

(A) An action can be maintained under general maritime law for wrongful death occurring in state territorial waters. Moragne, overruling The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358.²

(B) The recognition of the right of such an action assures vindication of uniformity in the exercise of the admiralty jurisdiction, "removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts." Moragne, at 401.

(C) In identifying the damages recognized by maritime law in the case of wrongful death, admiralty courts possess analogies for guidance in the Death on the High Seas Act, the Jones Act, the Longshoremen's and Harbor Workers' Act and state wrongful death statutes. See Moragne, at 406-408;³ Petition of M/V Elaine Jones, supra, 480 F.2d at 30.

(D) The cause of action for wrongful death in admiralty is "not dependent on adjacent state law". Hornsby v. The Fish Meal Company, supra.

(E) Survivors may recover damages for loss of support, services, and society of the deceased and funeral expenses. Loss of support includes all the financial contributions the decedent would have made to his dependents had he lived and the monetary value of services he would have provided in the way of nurture, education and guidance his child or children would have received had he not been wrongfully killed. Gaudet, at 585.

(F) Services performed for a spouse are remunerable. See Gaudet, at 585. A widow may be compensated for the reasonable cost of having someone else perform the household tasks her husband would have performed if he had lived. In the Matter of the Complaint of Sincere Navigation Corporation, as Owner of the S/S Helena, 329 F.Supp. 652, 659 (E.D., La.).

(G) The general maritime law as applied in post-Moragne death claims does not look merely to pecuniary loss. See Weeks v. Alonzo Cothron, Inc., supra, 493 F.2d at 542. Prior to Gaudet it was held in some jurisdictions that the general maritime law as applied to wrongful death actions does not recognize loss of consortium as an element of damage. See Petition of M/V Elaine Jones, supra, 480 F.2d at 31; Petition of United States Steel Corporation, 436 F.2d 1256, 1278 (6th Cir.); Green v. Ross, 338 F.Supp. 365 (S.D., Fla.); Simpson v. Knutsen, 444 F.2d 523 (9th Cir.). In Gaudet (note 23) the Supreme Court disapproved that part of Petition of United States Steel Corporation and Simpson v. Knutsen holding that loss of consortium is not a proper element of damage.

(H) The Supreme Court sanctioned in Gaudet the recovery under general maritime law for "loss of society", which, it said, "embraces a broad range of mutual benefits each family member received from the other's continued existence, including love, affection, care, attention, companionship, comfort and protection".⁴ It ruled that the loss of such benefits is the subject of just compensation. In Weeks v. Alonzo Cothron, Inc., supra, 493 F.2d at 542-543 the Fifth Circuit indicated that evidence as to "quantifiable `pecuniary' value" of loss of nurture and guidance was unnecessary. It said (543) that "The District Court should permit proof to be offered on the issue of monetary value of the children's loss of nurture and guidance, if, in the view of the District Judge, such evidence is necessary."⁵ (Italics supplied).

(I) Before Gaudet, the Fifth Circuit had held that under general maritime law recovery for wrongful death does not include the element of "grief" of the family for the loss of a loved one. Canal Barge Company, Inc. v. Griffith, supra; Petition of M/V Elaine Jones, supra, 480 F.2d at 33-34; Hueschen v. Fluor Ocean Services, Inc., supra. The Supreme Court said in Gaudet that mental anguish or grief is distinguishable from loss of society and is not compensable under the maritime wrongful death remedy. See Gaudet, note 17.

(J) In determining the pecuniary earnings of a decedent, his estimated personal expenses had he lived must be ascertained and deducted. In Re Sincere Navigation Corporation, supra, 329 F.Supp. at 659.

(K) Future earnings of the decedent must be reduced to present cash value at a reasonable interest rate over decedent's remaining anticipated worklife. Petition of M/V Elaine Jones, supra, 480 F.2d at 29; Higginbotham v. Mobil Oil Corporation, 360 F.Supp. 1140 (W.D., La.); Weeks v. Alonzo Cothron, Inc., supra, 493 F.2d 538; Johnson v. Penrod Drilling Company, 469 F.2d 897, 903-904 (5th Cir.).

(L) No deduction for income taxes should be made in an award for loss of future earnings where the annual estimated earnings are not clearly above the reach of the middle income scale. Petition of M/V Elaine Jones, supra, at 28.

(M) In Higginbotham, supra, 360 F. Supp. 1140 the District Court did not take into consideration the decreasing purchasing power of the dollar, stating (at 1150) that such an additional award should await the en banc outcome in Johnson v. Penrod Drilling Co., supra. There a panel of the Court of Appeals for this Circuit held that the trial court should not take into account "future inflationary or deflationary trends in computing future lost earnings". I am informed that Johnson v. Penrod was argued en banc last October. No decision has been rendered up to now.

(N) Award of prejudgment interest is in the discretion of the district court. Weeks v. Alonzo Cothron, Inc., supra; Higginbotham v. Mobil Oil Corp. supra, at 1150.

(O) Moragne did not deal with the question of proper parties and beneficiaries. The Supreme Court observed, however, (at 406-407) that courts should look for guidance to the various wrongful death statutes enacted by Congress. Under the Death on the High Seas Act the action shall be brought by the personal representative "for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative".⁶ 46 U.S.C. § 761. The rule that has been established under the general maritime law is that the suit shall be instituted by the personal representative for the benefit of the eligible beneficiaries. Green v. Ross, supra, 338 F. Supp. 365; Futch v. Midland Enterprises, Inc., supra, 471 F.2d 1195. In the present case the claimant is in each instance the personal representative of the deceased.

(P) The federal wrongful death statutes predicate compensation on pecuniary loss to the beneficiaries. See, for example, 46 U.S.C. § 762 (DOHSA); 16 ALR Fed. 679 et seq., § 4. Recovery under general maritime law is more liberal than under those statutes since the elements of compensation as established by the decisions include loss of society and companionship which is non-pecuniary in nature. Up to now, the decisions applying Moragne standards do not deal with the measure of damage in the case of death...