In re Sincere Navigation Corporation

• Decision Date: 23 June 1971
• Docket Number: 69-2340,69-2535,69-2855,69-2899,69-2924 and 70-40.,Civ. A. No. 68-2254,69-2613,69-2341,69-2628,69-2923,69-2743,69-2854,68-2243,69-2889,68-2250,69-2903,69-2742
• Parties: In the Matter of the Complaint of SINCERE NAVIGATION CORPORATION, as owner of the S/S HELENA, for exoneration from or limitation of liability and Consolidated Cases.
• Court: U.S. District Court — Eastern District of Louisiana

329 F. Supp. 652

In the Matter of the Complaint of SINCERE NAVIGATION CORPORATION, as owner of the S/S HELENA, for exoneration from or limitation of liability and Consolidated Cases.

Civ. A. Nos. 68-2254, 68-2243, 68-2250, 69-2340, 69-2341, 69-2535, 69-2613, 69-2628, 69-2742, 69-2743, 69-2854, 69-2855, 69-2889, 69-2899, 69-2903, 69-2923, 69-2924 and 70-40.

United States District Court, E. D. Louisiana, New Orleans Division.

June 23, 1971.

COPYRIGHT MATERIAL OMITTED

Gerald J. Gallinghouse, U. S. Atty., Allen van Emerik, for the United States.

George Frilot, A. J. McNamara, Joseph Horne, Charles M. Steen, New Orleans, La., Jerry G. Jones, Louis B. Merhige, Raymond A. McGuire, New Orleans, La., David H. Burrow, for individual claimants.

Patrick L. Burke, Joy S. Miller, New Orleans, La., Joseph M. Brush, for Sincere Navigation and its insurers.

RUBIN, District Judge:

Following this court's determination that the collision of the S/S HELENA and the Coast Guard buoy tender WHITE ALDER on December 7, 1969, resulted from the mutual fault of both vessels and that, as to the personal injury and death claimants, neither vessel was entitled to limit liability, a hearing was held to elicit evidence concerning the amount of damages suffered by those claimants who have not entered into a settlement with the HELENA. Two of them are the survivors of the casualty; the others are the beneficiaries of decedents.

Prior to the decision in Moragne v. States Marine Lines, Inc., 1970, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, the assessment of damages would have been determined by Louisiana law since the collision occurred on the Mississippi River, in Louisiana's territorial waters. The Tungus v. Skovgaard, 1959, 358 U. S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524. But when the Supreme Court concluded in Moragne that an action lies under general maritime law for death caused by violation of maritime duties, it in effect overruled The Tungus. See Dennis v. Central Gulf Steamship Corp., E.D. La.1971, 323 F.Supp. 943.

Our first guide to the rules now applicable is the observation in Morange, "If still other subsidiary issues should require resolution, such as particular questions of the measure of damages, the 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. The experience thus built up counsels that a suit for wrongful death raises no problems unlike those that have long been grist for the judicial mill." 90 S. Ct. at 1792.

Considering this problem a few months ago in Dennis, I concluded that many items of damage were properly allowable both under the Death on the High Seas Act and under the rule applied by a majority of state wrongful-death acts. Therefore the following items of damage, usually awarded in both groups of cases, were there allowed:

1. Loss of support

2. The decedent's conscious pain and suffering

3. The decedent's lost wages

4. Funeral expenses

5. Loss of services

I. SURVIVORS' EMOTIONAL DISTRESS

However, the facts in Dennis did not require determination of one of the issues here presented: in a death action, may there be recovery for the emotional distress suffered by the surviving spouse or, in the case of those who died unmarried, the parents of the decedent?

The channel here is as hard to find as the course of the Mississippi River and there is neither custom to follow nor pilot to guide. But is clear that there is no bar in the maritime law to the recovery of damages for emotional injury as such. Personal injury claimants have repeatedly, and as a matter of course, been allowed damages for mental suffering in suits brought under general maritime law¹ and under the Jones Act.² And even in a death action, there can be recovery for the decedent's pain and suffering before death. St. Louis I. M. & S. Ry. v. Craft, 1915, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160; U. S. Steel v. Lamp, 6 Cir. 1970, 436 F.2d 1256.

Since Michigan Central R. R. Co. v. Vreeland, 1913, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, a case involving the Federal Employers' Liability Act, no recovery has been allowed for the emotional distress suffered as a result of the death of another under the FELA, the Jones Act or the Death on the High Seas Act. Relying on the interpretation that British courts had given Lord Campbell's Act, the Supreme Court held in Vreeland that the purpose of the FELA wrongful death action was "compensating certain dependent members of the family for the deprivation, pecuniarily, resulting to them from his wrongful death. * * *" Id. at 195. The same rule was necessarily applied in Jones Act Cases,³ and it is a part of the statutory language of D.O.H.S.A.⁴ See First National Bank in Greenwich v. National Airlines, Inc., 2d Cir. 1961, 288 F.2d 621, 624.

This limitation was early applied in state wrongful death statutes.⁵ However, in Louisiana, perhaps as a result of the civilian influence on its law, the damages allowed for wrongful death have included compensation for survivor's grief at least since the beginning of this century.⁶ That also has been the rule in France.⁷

In recent years there has been a marked tendency in the common law states to expand the concept of damages recoverable for wrongful death to embrace some measure of compensation for the emotional suffering of survivors. To some extent, this tendency may be inferred from the large damage verdicts awarded to the parents of deceased children by juries in states that permit pecuniary losses alone. Since the expenses of raising a child are to be deducted from any monetary benefits he might provide the family, one would expect to find only nominal damages awarded for the death of minor children in such states.⁸ Professor Prosser has commented that juries that make these large awards "have taken the bull by the horns, and in reality have compensated for the prohibited sentimental aspects of the family relation, with the court benevolently winking at a flagrant violation of the rule it has laid down."⁹ In at least one state that awards damages solely for pecuniary losses, the courts rely on a presumption that the death of a child causes the parents a substantial, recoverable injury.¹⁰ The presumption would seem to serve as a mask for awards for emotional deprivation.¹¹

In many states, non-pecuniary damages are explicitly permitted.¹² All but eight states supplement the damages awarded for the loss of monetary contributions with allowances for the loss of intangibles such as the loss of parental services of care, guidance and control.¹³ The three federal statutes also permit this.¹⁴ While a monetary equivalent for such services is more easily determinable than for sentimental losses, the deprivation of these services is not dissimilar from the other psychic injuries caused by the death of a loved one. In addition, twenty-four states presently permit recovery for sentimental loss: the love and affection of the deceased or the mental anguish of the beneficiaries.¹⁵

Human experience, as well as the literature of psychiatry¹⁶ and psychology¹⁷ bear abundant evidence of the debilitating effect of grief and the resultant depression. It is certainly no less real, and no more difficult to appraise, than the "mental and physical pain and suffering" attendant upon personal injury that is awarded those who survive, or the pain and suffering prior to death that is recoverable as part of the death action here. Dennis v. Central Gulf Steamship Corp., E.D.La.1971, 323 F.Supp. 943, 949.¹⁸

In establishing a general maritime right of recovery, Moragne did not so much reject the rationale of The Harrisburg as rely on significant developments in the one hundred fifty years since.¹⁹ With respect to psychic trauma, the original decisions by the English and American Courts seemed rooted in a no longer tenable concept of injury to the person.²⁰ Again the changes in the personal injury laws of the states provide the most persuasive guides to decision. Thus I conclude that recovery will be permitted for the grief of the four survivors. This conclusion may conflict with Moragne's goal of uniformity of recovery for all who perish on navigable waters. Beneficiaries who recover under the Jones Act for the death of seamen may be unable to recover for their grief.²¹ It is enough here to recognize this consideration; whether or not it is to be resolved must be determined when a Jones Act death claim is presented. For today, as in the past, it suffices that, "The admiralty has led, not followed." Judge Brown, concurring in part and dissenting in part, China Union Lines v. A. O. Anderson and Co., 5 Cir. 1966, 364 F.2d 769, 798.

II. DAMAGES TO SURVIVORS

A. RICHARD KRAUS

Mr. Kraus was a Boatswain's Mate, Second Class, midway through his first Coast Guard enlistment, but still undecided about a service career. He is 25 years of age. He was on the WHITE ALDER to get the sea duty he needed for advancement to First Class Boatswain. When the WHITE ALDER sank, his sea duty ended, for he asked for and was given shore assignment.

At the time of the wreck he was lying in his bunk in the berthing compartment. He isn't certain whether he got out of his berth or was thrown out. The ship began to flood within five seconds. As he swam up through the flooded ship, he thought he was going to die. He hit his head as he ascended. Feeling a bulkhead with his right hand, he pushed along. He broke surface about 45 seconds after the impact, facing downstream and saw a buoy. He swam to it and climbed aboard. In about a minute he was joined by Mr. Kapowski, and later by Mr. Miller. They were rescued about 45 minutes later.

Mr. Kraus was hospitalized 4 or 5 days. His eyes were bloodshot for some time. He still is uneasy on the water and thoughts of the disaster recur whenever he sees ships. A retired Warrant Officer who had known Mr. Kraus before the wreck, and saw him...