Ivy v. Security Barge Lines, Inc.

• Decision Date: 13 November 1979
• Docket Number: No. 76-4130,76-4130
• Citation: 606 F.2d 524,1980 A.M.C. 356
• 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 524

606 F.2d 524

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.

Nov. 13, 1979.

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

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

Harvey J. Lewis, of Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, La., amicus curiae for Louisiana Trials Lawyers Assoc.

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

Before BROWN, Chief Judge, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, and KRAVITCH, Circuit Judges. ^*

ALVIN B. RUBIN, Circuit Judge:

We gathered en banc to consider whether damages for loss of society may be recovered by the survivor of a Jones Act seaman who met death in territorial waters of the United States as a result of negligence for which his employer was liable. The settled Jones Act jurisprudence denying recovery for this and other elements of nonpecuniary loss and the absence of any adequate reason to take a different tack compel us to hold to the charted course and deny recovery for this element of damages.

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 a few miles above Baton Rouge, Louisiana, heading up the Mississippi River.

Decedent's father, Warnie Lee Ivy, instituted this suit under the Jones Act for negligence and the general maritime law for unseaworthiness. In answer to special interrogatories, the jury found that the vessel was not unseaworthy, and that John Ivy died as a result of the negligence of the defendant but was 50% Contributorily negligent himself, and awarded each of his parents $50,000 for loss of support, services, and society. We agreed to hear the case en banc to consider only the issue of whether this award was permissible in the light of the jury's conclusion that recovery was premised solely on the Jones Act.

In The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, the Supreme Court concluded that general maritime law does not create a cause of action on behalf of a seaman for the negligence of his master or fellow crewmen. The Court held that a "seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew" beyond his maintenance and cure, although under general maritime law he may be entitled to consequential damages for unseaworthiness of the vessel. Id. at 175, 23 S.Ct. at 487, 47 L.Ed. at 764. Responding to the decision, Congress in 1915 enacted the Jones Act, 46 U.S.C. § 688, ¹ extending to seamen the remedies made available to railroad workers under the provisions of the Federal Employers' Liability Act, 45 U.S.C. § 51 Et seq. (F.E.L.A.). ² Congress thereby legislatively overruled The Osceola insofar as it denied to a seaman the right to recover damages from his employer for negligence of his co-workers. The Jones Act thus became, and has remained, the sole basis upon which a seaman or his beneficiaries may sue his employer for negligence. ³ Neither the Jones Act nor the F.E.L.A. contains any reference to the items of damage that are recoverable in such a suit. However, in Michigan Central Railroad v. Vreeland, 1913, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, the Supreme Court interpreted the F.E.L.A. to permit recovery only for damages that "flow from the deprivation of the pecuniary benefits which the beneficiaries might have reasonably received if the deceased had not died from his injuries." Id. at 70, 33 S.Ct. at 196, 57 L.Ed. at 421. Thus construed, the act permits recovery for loss of services of the deceased and, when the beneficiary is a child, for the loss of the care, counsel, training and education that it might have reasonably received from the parent. As interpreted by the Court, the act excludes injuries "to the affections and sentiments which arise from the death of relatives, and which, though most painful and grievous to be borne, cannot be measured or recompensed by money. It excludes, also, those losses which result from the deprivation of the society and companionship, which are equally incapable of being defined by any recognized measure of value." Id. at 71, 33 S.Ct. at 196, 57 L.Ed. at 422.

The Court also held that the F.E.L.A. did not embrace survivorship damages, and denied the beneficiaries recovery for the decedent's pain and suffering prior to his death. Congress anticipated this aspect of Vreeland by adopting in 1910, prior to the Supreme Court decision, an amendment to the F.E.L.A., making the decedent's action survive for the benefit of the beneficiaries who would be entitled to wrongful death damages, Act of April 5, 1910, c. 143, § 2, 36 Stat. 291, now 45 U.S.C. § 59.

In the 66 years since the Vreeland decision, its principle that recovery under the F.E.L.A. is limited to pecuniary damages has remained a constant roadbed for railway workers suits. ⁴ The same principle has uniformly been adopted with respect to Jones Act death actions. ⁵

Nothing in this case, or in the jurisprudence, is sufficient to plot a change in the Jones Act course. The only question that can be raised concerning it comes as a result of a trident of death 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 the Death on the High Seas Act, 46 U.S.C. § 761 (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 current 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 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." 398 U.S. at 408, 90 S.Ct. at 1792, 26 L.Ed.2d at 361.

In the wake of Moragne, some circuit courts concluded that the uniformity with which the Supreme Court had been concerned in that case involved uniform bases of liability rather than standard damage recoveries, and held that nonpecuniary damages could be awarded by utilizing state remedies to supplement the new Moragne cause of action. See, e. g., Dennis v. Central Gulf Steamship Corp., 5 Cir. 1972, 453 F.2d 137, Cert. denied, 409 U.S. 948, 93 S.Ct. 286, 34 L.Ed.2d 218; Greene v. Vantage Steamship Corp., 4 Cir. 1972, 466 F.2d 159. Others concluded that the policy of uniformity embodied in Moragne required that the statutory and judicially-developed limitation to pecuniary damages of DOHSA and the Jones Act be extended to claims under general maritime law. See, e. g., Simpson v. Knutsen, 9 Cir. 1971, 444 F.2d 523; In re United States Steel Corp., 6 Cir. 1970, 436 F.2d 1256, Cert. denied, 1971, 402 U.S. 987, 91 S.Ct. 1649, 29 L.Ed.2d 153.

The Supreme Court decided that nonpecuniary damages could be recovered by survivors of a longshoreman for death resulting from unseaworthiness in Sea-Land Services, Inc. v. Gaudet, 1974, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9. There the decedent had, while living, recovered for injuries suffered on state waters, but later died as a result of the same event; his widow sued under Moragne. Although the Court refused to allow double recovery, it did hold the widow entitled to compensation for pecuniary damages, including loss of support, and services, as well as funeral expenses. The Court then turned to the nonpecuniary claim for loss of society and, noting that recovery for this intangible deprivation had been available under the majority of state wrongful death statutes prior to the decision in Moragne, it permitted the award. Id. at 587-90, 94 S.Ct. at 816-17, 39 L.Ed.2d at 22-24.

Neither Moragne nor Gaudet involved a Jones Act seaman. Each of them dealt only with an unseaworthiness claim asserted under general maritime law. Neither of them intimates even in dicta a change in the Jones Act rule. Other reasons, somewhat more complex, appear to preclude interpreting the Jones Act as being supplemented by a Moragne -engendered Negligence action for damages if (but only if) death occurs in territorial waters or on land. Moragne did not create or even discuss an action for negligence; it dealt only with death occasioned by unseaworthiness. The suggestion that the Jones Act measure of damages can be Supplemented by the Moragne -cause-of-action-Gaudet -damages rule will not bear analysis; ⁶ that hybrid could be spawned in but one context, the coupling of unseaworthiness (capable of producing Gaudet ) with a Jones Act claim to give birth to Jones Act damages for negligence. To consider the Moragne-Gaudet result a supplemental remedy to the Jones Act when the suit is for negligence only...