Ivy v. Security Barge Lines, Inc.

• Decision Date: 04 December 1978
• Docket Number: No. 76-4130,76-4130
• Parties: Warnie Lee IVY et al., Plaintiffs-Appellees, Cross-Appellants, v. SECURITY BARGE LINES, INC., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 732

585 F.2d 732

Warnie Lee IVY et al., Plaintiffs-Appellees, Cross-Appellants, v. SECURITY BARGE LINES, INC., Defendant-Appellant, Cross-Appellee.

No. 76-4130.

United States Court of Appeals Fifth Circuit.

Dec. 4, 1978.

Philip Mansour, Martin A. Kilpatrick, Greenville, Miss., for defendant-appellant, cross-appellee.

Joshua A. Tilton, Marvin L. Jeffers, Baton Route, La., for plaintiffs-appellees, cross-appellants.

Appeals from the United States District Court for the Northern District of Mississippi.

Before COLEMAN, CLARK and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

In this case we explore for the first time since the Supreme Court's decision in Mobil Oil Corp. v. Higginbotham, 1978, 436 U.S 618, 98 S.Ct. 2010, 56 L.Ed.2d 581, the question whether damages for nonpecuniary losses may be recovered in a Jones Act suit for the death of a decedent on the territorial waters of the United States. We find ourselves compelled both by the facts of Higginbotham and the policy underlying it to conclude that damages for loss of society may not be allowed. Defendant Security Barge Lines has also raised several other alleged errors. We conclude that the cumulative effect of these irregularities requires us to reverse and remand for a new trial.

I. Facts

John Ivy, the decedent, was a member of the crew of the vessel M/V ISSAQUENA until he was lost and presumably drowned on the night of August 11, 1975 as he was attempting to aid a fellow crewman who had fallen overboard. The vessel and its tow were then heading up the Mississippi River a few miles above Baton Rouge, Louisiana.

Decedent's father, Warnie Lee Ivy, instituted this suit under the Jones Act for negligence and the general maritime law for unseaworthiness. Although plaintiff professed to be the personal representative of decedent, his appointment as administrator of John Ivy's estate was revoked before the case came to trial.

In answer to special interrogatories, the jury found that John Ivy died as a result of the negligence of defendant, but was 50% Contributorily negligent himself, and awarded each of his parents $50,000 for loss of support, services, and society. The trial judge refused to instruct the jury to discount any award made to present value. The award was reduced by 50% To reflect the contributory negligence of the decedent, and a judgment was entered. Both parties appealed. ¹

II. Procedural Capacity to Sue

The Jones Act, 46 U.S.C. § 688, provides in part: "(I)n case of the death of any seaman as a result of any (personal injury in the course of his employment) The personal representative of such seaman may maintain an action for damages at law . . ." (emphasis added). The requirement that the cause of action be asserted only by the personal representative of the decedent and not by the beneficiaries of the claim has been extended by analogy to suits brought under general maritime law since Moragne v. States Marine Lines, Inc., 1970, 398 U.S. 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 maintained by the beneficiaries of the decedent rather than his personal representative the result can be explained either by the failure of the defendant to object in a timely fashion as required by Rule 9(a), Federal Rules of Civil Procedure, ² See, e. g., Landry v. Two R. Drilling Co., 5 Cir. 1975, 511 F.2d 138; Summers v. Interstate Tractor & Equipment Co., 9 Cir. 1972, 466 F.2d 42; Marston v. American Employers Insurance Co., 1 Cir. 1971, 439 F.2d 1035; Young v. Pattridge, N.D.Miss.1966, 40 F.R.D. 376, or by the existence of a possible conflict of interest among the beneficiaries requiring multiple representation, See, e. g., Smith v. Clark Sherwood Oil Field Contractors, 5 Cir. 1972, 457 F.2d 1339, Cert. denied, 1972, 409 U.S. 980, 93 S.Ct. 308, 34 L.Ed.2d 243; Civil v. Waterman Steamship Corp., 2 Cir. 1954, 217 F.2d 94.

The Supreme Court has likewise interpreted similar language in the Federal Employers' Liability Act, 45 U.S.C. § 51. In American Railroad Co. of Porto Rico v. Birch, 1912, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 879, the widow and son of a deceased railroad worker brought an action as sole beneficiaries, and the lower court held that they should not be compelled to have an administrator appointed for purposes of the suit. The Supreme Court reversed, although a full jury trial had been held:

But the words of the act will not yield to such a liberal construction. They are too clear to be other than strictly followed. They give an action for damages to the person injured, or, "in case of his death, . . . to his or her personal representative." . . . (T)his distinction between the parties to sue and the parties to be benefited by the suit makes clear the purposes of Congress. To this purpose we must yield. Even if we could say, as we cannot, that it is not a better provision than to give the cause of action to those in relation to the deceased. In the present case it looks like a useless circumlocution to require an administration upon the deceased's estate, but in many cases it might be much the simpler plan and keep the controversy free from elements but those which relate to the cause of action. But we may presume that all contending considerations were taken into account and the purpose of Congress expressed in the language it used. (224 U.S. at 557, 32 S.Ct. at 606, 56 L.Ed. at 882.)

See also St. Louis, San Francisco & Texas Ry. v. Seale, 1913, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129; Troxell v. Delaware, Lackawanna & Western R.R., 1913, 227 U.S. 434, 33 S.Ct. 274, 57 L.Ed. 586; Missouri, Kansas & Texas Ry. v. Wulf, 1913, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355.

The trial judge, therefore, erred in deciding that the plaintiff had procedural capacity to bring this action. Whether Rule 61, Federal Rules of Civil Procedure, modifies the result in American Railroad Co., supra, so that, in the absence of prejudice to the employer, a new trial would not result from this error alone, we need not now determine. See United States ex rel. Harvey Gulf Int'l Marine, Inc. v. Maryland Cas. Co., 5 Cir. 1978, 573 F.2d 245, and opinion of Judge Rubin, concurring in part and dissenting in part. ³ Because we are remanding for a new trial on the basis of the other errors in the original proceedings, the complaint may there be amended so that the claim is asserted by the proper party; if this is not promptly done, the trial court should dismiss the action. ⁴

III. Award for Loss of Society

The court refused to eliminate from the damage award the sum allowed as compensation for the parents' loss of society resulting from their son's death. This alleged error requires a detailed analysis of the statutory and judicially-developed damage remedies for maritime deaths, guided by the newly lit Higginbotham beacon.

The Death on the High Seas Act (DOHSA), 46 U.S.C. § 761, provides for recovery by the personal representative of a person whose death resulted from a wrongful act, neglect, or default occurring on the high seas. 46 U.S.C. § 762 specifically limits damages in such a suit to "a fair and just compensation For the pecuniary loss sustained by the persons for whose benefit the suit is brought . . ." (emphasis added).

The Jones Act has no such specific limitation on damages, but does incorporate by reference the statute governing the death of railway workers, the Federal Employers' Liability Act, 45 U.S.C. § 51 Et seq. The liability provision of that statute, 45 U.S.C. § 51, also contains no explicit limitation of damages to pecuniary losses, but was early interpreted thus to confine the award. See, e. g., Michigan Central R.R. v. Vreeland, 1913, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417; American Railroad Co. of Porto Rico v. Didricksen, 1913, 227 U.S. 145, 33 S.Ct. 224, 57 L.Ed. 456. Because of the incorporation of FELA into the Jones Act, courts have uniformly interpreted Jones Act damage recoveries as similarly limited to pecuniary losses. See, e. g., In re M/V Elaine Jones, 5 Cir. 1973, 480 F.2d 11, Reh. granted, 1973, 513 F.2d 911, Cert. denied, 1975, 423 U.S. 840, 96 S.Ct. 71, 46 L.Ed.2d 60; Cities Service Oil Co. v. Launey, 5 Cir. 1968, 403 F.2d 537; Igneri v. Cie. de Transports Oceaniques, 2 Cir. 1963, 323 F.2d 257, Cert. denied, 1964, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969; United States v. Boykin, 5 Cir. 1931, 49 F.2d 762.

The present question about continuing along the course thus charted comes as a result of another line of cases, beginning with Moragne v. States Marine Lines, Inc., 1970, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339. The Supreme Court there recognized for the first time a cause of action for wrongful death based on general maritime law. Before then death arising from unseaworthiness could be the basis of a suit under DOHSA, which is limited to events occurring outside the territorial waters of the United States; if the accident occurred within territorial waters, the plaintiff was forced to resort to state wrongful death statutes. These statutes were often unwieldy and not designed to accommodate maritime claims; moreover, because they varied from state to state, the representatives of similarly situated deceased seamen might be awarded widely varying sums based on the fortuity of whether the accident occurred within or without the three-mile limit and, if it were within that limit, based on the laws of the particular state where the casualty occurred. One of Moragne 's objectives was to substitute a uniform rule for these unpredictable eddies. The Court left open the issue of appropriate damages under this new cause of action, noting "If still other subsidiary issues should require resolution, such as particular questions of the measure of damages, the courts...