Moragne v. State Marine Lines, Inc.

• Decision Date: 29 May 1968
• Docket Number: No. 36601,36601
• Citation: 211 So.2d 161
• Parties: Petsonella MORAGNE, as Personal Representative of the Estate of Edward Moragne, Sr., Deceased, and Petsonella Moragne, Individually, Appellants, v. STATE MARINE LINES, INC., et al., Appellees.
• Court: Florida Supreme Court

Page 161

211 So.2d 161

Petsonella MORAGNE, as Personal Representative of the Estate of Edward Moragne, Sr., Deceased, and Petsonella Moragne, Individually, Appellants, v. STATE MARINE LINES, INC., et al., Appellees.

No. 36601.

Supreme Court of Florida.

May 29, 1968.

Rehearing Denied July 3, 1968.

C. J. Hardee, Jr., of Hardee, Ott & Hamilton, Tampa, for appellants.

John W. Boult, Dewey R. Villareal, Jr. and Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, for State Marine Lines, Inc.

David C. G. Kerr, Daniel E. Gallagher and Macfarlane, Ferguson, Allison & Kelly, Tampa, for Gulf Florida Terminal Co.

ROBERTS, Justice.

This cause is before the court for determination of a question of law certified to us by the United States Court of Appeals for the Fifth Circuit pursuant to § 25.031, Fla.Stat., F.S.A., and Rule 4.61, Florida Appellate Rules, 32 F.S.A. Moragne v. State Marine Lines, Inc., et al., opinion and certificate filed August 11, 1967. The question certified reads as follows:

'Does the Florida Death by Wrongful Act Statute give rise to a cause of action under principles of the maritime law of unseaworthiness for the wrongful death of a longshoreman caused by the unseaworthiness of a vessel on the navigable waters of the State of Florida?'

Plaintiff-appellant's decedent was employed as a longshoreman by Gulf Florida Terminal Company, a stevedore of Tampa, Florida. While performing his regular duties as an employee of this company on board the vessel S. S. Palmetto State, a hatch beam became disengaged from its position, allegedly because of a defective locking arrangement, and fell into the hold striking the deceased in the head, killing him instantly.

Suit was filed by his widow, individually, under the Florida Wrongful Death Act, § 768.01, Fla.Stat., F.S.A., and as personal representative of her deceased husband's estate, under the Florida Survival Statute, § 45.11, Fla.Stat., F.S.A., against the defendant-appellee State Marine Lines, Inc., owner of the vessel S. S. Palmetto State, seeking the damages recoverable under these statutes by those entitled thereto. Originally filed in the appropriate state court, the cause was on motion of the defendant removed to the federal court on diversity-of-citizenship grounds.

The plaintiff's complaint was framed in two aspects: one based on the alleged negligence of the defendant-shipowner in failing to keep and maintain the vessel, its equipment and appurtenances, in a safe, sound and proper condition; and another based on the maritime concept of 'unseaworthiness.' The trial judge dismissed the unseaworthiness count as to the cause of action brought by the plaintiff, individually, under the Florida Wrongful Death Act for the reason that such a cause of action was not within the contemplation of the Wrongful Death Act. Leave to appeal this interlocutory order was granted by the Circuit Court of Appeals, and the question of law quoted above was thereafter certified to this court for decision.

As we understand it, 'unseaworthiness' as a basis for liability under maritime law has to do with the absolute non-delegable duty of a shipowner to provide members of the vessel's crew, including longshoremen when engaged in loading, unloading, or stowing the cargo, with a vessel 'sufficient in all respects for the trade in which it is employed,' Lowe v. Vessel Madrid, D.C.Fla.1962, 210 F.Supp. 826, and to prevent their injury by any part of the vessel or equipment used in the ordinary course of their employment. Clark v. Symonette Shipyards, Ltd., 330 F.2d 554 (C.A.5 1964). It contemplates 'liability without fault', Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944), and has been said to be 'a duty likened to implied contractual warranty.' Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099.

It is conceded that, had he lived, the plaintiff's decedent could have filed suit against the defendant-shipowner, in Admiralty, on a cause of action based on unseaworthiness. But this cause of action died with his death under maritime law. Neither the maritime law nor the common law recognized a cause of action for wrongful death. By statute, Congress has provided a remedy for wrongful death on the high seas (the Death on the High Seas Act, enacted in 1920, 46 U.S.C. Sec. 761), and for the death of a seaman (the Jones Act, 46 U.S.C. Sec. 688). But the death of the plaintiff, a non-seaman within the territorial waters of the State of Florida, is not covered by either of these federal statutes. (We note, parenthetically, that even under the Jones Act the plaintiff could not have recovered for the wrongful death of her husband under her cause of action based on unseaworthiness. See Gillespie, Admx. v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), re-affirming Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed.2d 686, decided in 1930.)

It appears that the plaintiff, as the widow of the decedent, is entitled to the benefits prescribed by the Federal Longshoremen's and Harbor Workers' Compensation Act, Title 33, U.S.C.A., Chapter 18, for the death of her husband; however, any additional remedy to that provided by the federal compensation act must be found, if at all, under the Florida Wrongful Death Act, § 768.01, Fla.Stat., F.S.A.

This Act, § 768.01, provides as follows:

'(1) Whenever the death of any person in this state shall be caused by the wrongful act, negligence, carelessness or default of any individual or individuals, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness, or default, of any agent of any corporation, acting in his capacity of agent of such corporation (or by the wrongful act, negligence, carelessness or default of any ship, vessel or boat or persons employed thereon), and the act, negligence, carelessness or default, is such as would, if the death had not ensued, have entitled the party injured thereby to maintain an action (or to proceed in rem against the said ship, vessel or boat, or in personam against the owners thereof, or those having control of her) and to recover damages in respect thereof, then and in every such case the person or persons who, or the corporation (or the ship, vessel or boat), which would have been liable in damages if death had not ensued shall be liable to an action for damages (or if a ship, vessel or boat, to a libel in rem, and her owners or those responsible for her wrongful act, negligence, carelessness or default, to a libel in presonam), notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.

'(2) The right of action as set forth in subsection (1) above shall extend to and include actions ex contractu and ex delicto.'

Since its enactment in 1833, this Act has been treated as restricted in its application to deaths resulting from tortious acts for which the actor would have been liable to the deceased under traditional common-law concepts. See Shiver v. Sessions, 80 So.2d 905 (Fla.1955), and Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591 (Fla.1956).

It is equally well settled that the Florida Act does not preserve the right of action which the deceased, had he lived, could have prosecuted, but creates in behalf of the statutory beneficiaries a totally new right of action for the wrongful death, on different principles. See Florida East Coast Railway Co. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933); Shiver v. Sessions, supra, 80 So.2d 905; Parker v. City of Jacksonville, 82 So.2d 131 (Fla.1955). In the Florida East Coast Railway case the plaintiff sought to recover in a wrongful death action the punitive damages which the decedent, had he lived, could have claimed. In holding that they could not be recovered, this court said:

'The common-law right to recover punitive damages having accrued as an incident to the right of the injured party to recover from the tortious injury inflicted in this case, the death of such injured party caused both the right of action and the incidents to it to die at the same time.'

It was also pointed out that the language of our Wrongful Death Act, requiring the jury to give such damages 'as the party or parties entitled to sue may have sustained by reason of the death of the party killed', clearly implied that punitive damages were to be excluded from consideration in a wrongful death action.

Further illustrating the distinction between the two rights of action--that of the deceased, had he lived, and that of the statutory beneficiaries under the Wrongful Death Act--it was held in each of the other two cases cited above that the statutory beneficiaries could recover the damages sustained by them, even though their decedent's suit, had be lived, would have been barred. Shiver v. Sessions, supra, 80 So.2d 905; Parker v. City of Jacksonville, supra, 82 So.2d 131.

Because of its obligation, in enforcing a state-created right, to 'take the right subject to the limitations which have been made a part of its existence * * *', The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), the Fifth Circuit Court of Appeal held in two cases in accordance with the decisions of this court, supra, that an action for wrongful death based on unseaworthiness was not within the contemplation of the Florida Wrongful Death Act. See Graham v. A. Lusi, Ltd., 206 F.2d 223 (C.A.5, 1953), and Emerson v. Holloway Concrete Products Co., 282 F.2d 271 (C.A.5, 1960).

On the appeal in the instant case, and here, the appellant contends that amendments to the Florida Wrongful Death Act made in 1915 and in 1953 have changed its complexion: That, while originally creating and authorizing death actions only when based on a tort against the plaintiff's decedent, the Act has now been broadened to include causes of action arising Ex contractu as well as...