Nygaard v. Peter Pan Seafoods, Inc.

Citation701 F.2d 77
Decision Date04 March 1983
Docket NumberNo. 81-3472,81-3472
PartiesBeverly NYGAARD, as Administratrix of the Estate of Michael Clyde Sullivan, deceased, Plaintiff-Appellant, v. PETER PAN SEAFOODS, INC., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Moshe Judah Genauer, Weckworth, Barer & Meyer, Seattle, Wash., for plaintiff-appellant.

Katherine M. Peters, Michael H. Williamson, Madden, Poliak, MacDougall & Williamson, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before KENNEDY and SKOPIL, Circuit Judges, and JAMESON, * District Judge.

KENNEDY, Circuit Judge:

This action was brought in the district court on behalf of the decedent's estate and his son, Michael Sullivan, Jr. (Mike Jr.), for the death of Michael Sullivan, Sr., a seaman lost from appellee Peter Pan Seafoods, Inc.'s fishing vessel F/V SEVEN SEAS in the Bering Sea. Jurisdiction was based on the Death on the High Seas Act (DOHSA), 46 U.S.C. Secs. 761-768, the Jones Act, 46 U.S.C. Sec. 688, and general maritime law.

The district court ordered bifurcation of the trial, and Peter Pan's liability and the amount of damages for the estate and Mike Jr. were tried in turn to the court. The court found Peter Pan liable, but ruled that recovery should be reduced 50 percent because of Sullivan's contributory negligence. Nygaard v. Peter Pan Seafoods, Inc., 508 F.Supp. 151 (W.D.Wash.1981). This aspect of the judgment has not been appealed. As to damages, the court allowed recovery only for decedent's pain and suffering prior to death, and for Mike Jr.'s loss of support. On appeal the administratrix claims the court erred in holding that damages for Mike Jr.'s loss of society are not recoverable, in finding that loss of inheritance was not established, and in failing to make findings on damages from loss of nurture.

All agree that Sullivan's death is actionable under the Death on the High Seas Act, 46 U.S.C. Secs. 761-768. Congress enacted DOHSA in 1920 for the purpose of overturning the harsh holding of The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), that general maritime law affords no remedy for wrongful death. The act permits recovery for death caused by wrongful act, neglect, or default and occurring on the high seas beyond a marine league (three miles) from shore. 46 U.S.C. Sec. 761. DOHSA limits compensation to recovery for pecuniary loss, 46 U.S.C. Sec. 762, however, thus excluding recovery for loss of society. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 622-23, 98 S.Ct. 2010, 2013-2014, 56 L.Ed.2d 581 (1978); Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 586-87, 94 S.Ct. 806, 815-816, 39 L.Ed.2d 9 (1974).

In contending for loss of society, appellant cannot find support from the two recent Supreme Court cases expanding wrongful death remedies under general maritime law. In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the Court overruled The Harrisburg and held that an action does lie under general maritime law for death caused by violation of maritime duties. Id. at 409, 90 S.Ct. at 1792. In Sea-Land Services, Inc. v. Gaudet, supra, the Court further held that under the maritime wrongful death remedy compensation for loss of society is recoverable. 414 U.S. at 584-90, 94 S.Ct. at 814-817. In Mobil Oil Corp. v. Higginbotham, supra, however, the Court expressly held that on the high seas DOHSA, not general maritime law, determines the compensability of lost society. 436 U.S. at 623, 98 S.Ct. at 2013.

Appellant asserts, however, that loss of society in this case is recoverable under the Jones Act, 46 U.S.C. Sec. 688. Although this precise question has not been addressed by this court, see Cook v. Ross Island Sand and Gravel Co., 626 F.2d 746, 752-53 (9th Cir.1980) (finding no need to address the question in that case), and no Supreme Court authority is expressly on point, we now follow the Fifth Circuit and First Circuit in holding that loss of society is not recoverable.

The Jones Act, amended to its present form shortly after the enactment of DOHSA in 1920, provides a cause of action for personal injuries or death to seamen in the course of their employment. Damages under the Act are expressly governed by federal statutes regulating the rights of action of railway employees (i.e., The Federal Employees' Liability Act, 45 U.S.C. Secs. 51-60). F.E.L.A. was interpreted in Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913), to limit damages in wrongful death actions to pecuniary losses and to exclude recovery for loss of society. As a result, courts faced with the issue historically have held that non-pecuniary losses are not recoverable under the Jones Act. See, e.g., Petition of M/V Elaine Jones, 480 F.2d 11, 32 (5th Cir.1973), reh. granted, 513 F.2d 911, cert. denied, 423 U.S. 840, 96 S.Ct. 71, 46 L.Ed.2d 60 (1975); Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257, 266 (2d Cir.1963), cert. denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964); Cleveland Tankers, Inc. v. Tierney, 169 F.2d 622 (6th Cir.1948).

Appellant asserts that in light of Moragne and Gaudet, both discussed above, the rule should be different. The reinterpretation of the Jones Act to allow recovery for non-pecuniary losses, it is argued, would be more in keeping with the humanitarian policies embodied in the expansion of compensability under general maritime law. Both circuits that have considered this question subsequently to Moragne and Gaudet, however, have declined to take this path.

In Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5th Cir.1979) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980), the Fifth Circuit expressly found that Moragne and Gaudet did not compel a departure from settled Jones Act jurisprudence. Id. at 525. Neither Moragne nor Gaudet involved a Jones Act seaman, the court pointed out, and neither case "intimates even in dicta a change in the Jones Act rule." Id. at 527. Although the court went on to read Higginbotham's silence on the Jones Act as an implicit ruling against recovery for non-pecuniary injury under that act, a proposition rendered less forceful by the subsequent questioning language of the plurality in American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980), the main thrust of the court's argument is adequate to support its conclusion.

In DoCarmo v. F.V. Pilgrim I. Corp., 612 F.2d 11 (1st Cir.1979), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980), the First Circuit followed Ivy even though it placed less reliance on Higginbotham. The court pointed out that Congress must have been conscious of Vreeland when it enacted the relevant portion of the Jones Act in 1920 and suggested that arguments concerning any injustice perpetrated by the rule against recovery for non-pecuniary losses should be addressed to Congress. 612 F.2d at 13 n. 3.

Deference to the First and Fifth Circuits, and the persuasive force of these precedents, lead us to agree. Moragne and Gaudet are authorities simply too oblique to justify a departure from settled law. We hold that non-pecuniary losses, such as loss of society in this case, may not be recovered under the Jones Act. The trial court's ruling to this effect is affirmed.

Appellant argues that recovery for loss of society can be based alternatively on Alaska's wrongful death statute, which appellant asserts applies on the high seas where Sullivan's death occurred. See Alaska Stat. Sec. 44.03.010. That argument is...

To continue reading

Request your trial
26 cases
  • Neal v. Barisich, Inc., Civil A. No. 88-3119.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • 28 Febrero 1989
    ...to consider for such an award). 24 Bergen v. F/V St. Patrick, 816 F.2d 1345, 1351 (9th Cir.1987) (citing Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77, 80 (9th Cir.1983)), amended on other grounds on denial of petition for reh'g, 866 F.2d 318 (9th 25 See Snyder, 839 F.2d at 1085. 26 Ivy,......
  • Tallentire v. Offshore Logistics, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 15 Marzo 1985
    ...Nygaard v. Peter Pan Seafoods We recognize that this holding places us in conflict with the Ninth Circuit. In Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77, 80 (9th Cir.1983), the Ninth Circuit held that maritime uniformity required the conclusion that DOHSA preempts state statutes. The ......
  • Offshore Logistics, Inc v. Tallentire
    • United States
    • U.S. Supreme Court
    • 23 Junio 1986
    ...high seas would be " 'as damaging to uniformity in wrongful death actions as it is illogical.' " Ibid. (quoting Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77, 80 (CA9 1983)). Because the Fifth Circuit's decision creates the potential for disunity in the administration of wrongful death r......
  • Bailey v. Carnival Cruise Lines, Inc.
    • United States
    • Florida District Court of Appeals
    • 27 Marzo 1984
    ...101 S.Ct. 795, 66 L.Ed.2d 611 (1980); Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D.Cal.1954); see also Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77 (9th Cir.1983); Vaz Borralho v. Keydril Co., 696 F.2d 379, 384 n. 6 (5th Cir.1983); Hlodan v. Ohio Barge Line, Inc., 611 F.2d 71 (5th......
  • Request a trial to view additional results
1 books & journal articles
  • Recoverable damages in wrongful death actions governed by the Warsaw Convention.
    • United States
    • Defense Counsel Journal Vol. 62 No. 3, July 1995
    • 1 Julio 1995
    ...at 633. (34.)Snyder v. Whittaker Corp., 839 F.2d 1085, 1093 (5th Cir. 1988); Bergen, 816 F.2d at 135; Nygaard v. Peter Pan Seafoods Inc., 701 F.2d 77, 80 (9th Cir. (35.)Snyder, 839 F.2d at 1093; Tallentire v. Offshore Logistics Inc., 754 F.2d 1274, 1287 (5th Cir. 1985), rev'd on other groun......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT