Powell v. FJ O'Hara & Sons, Inc.
| Decision Date | 14 April 1976 |
| Docket Number | Civ. No. 75-60-SD. |
| Citation | 411 F. Supp. 377 |
| Parties | Vera POWELL, Individually and as Administratrix of the Estate of Robert J. Powell, Plaintiff, v. F. J. O'HARA & SONS, INC., Defendant. |
| Court | U.S. District Court — District of Maine |
Michael B. Latti and Joseph P. Flannery, Boston, Mass., Frederick T. McGonagle, Gorham, Maine, for plaintiff.
Thomas R. McNaboe and David P. Cluchey, Portland, Maine, for defendant.
This action seeks damages arising from the "personal injuries and/or illness" and death of plaintiff's husband, a seaman and member of the crew of defendant's fishing vessel Robert F. O'Hara, which occurred on the high seas April 18, 1973. Plaintiff seeks damages both on behalf of decedent's estate for his conscious pain and suffering prior to death and on her own behalf for wrongful death. In her complaint filed May 12, 1975, she asserted two grounds for recovery: defendant's alleged negligence, actionable under the Jones Act, 46 U.S.C. § 688 (1970); and the alleged unseaworthiness of defendant's vessel, actionable under the Death on the High Seas Act, 46 U.S.C. §§ 761-768 (1970), and the general maritime law. In recognition of the two-year statute of limitations applicable to actions brought under the Death on the High Seas Act (DOHSA), 46 U.S.C. § 763, plaintiff has waived her claim for relief predicated on that Act.
Presently before the Court is defendant's motion to dismiss the complaint insofar as it states a claim for relief based on the general maritime law. Defendant argues, first, that a claim for relief for wrongful death on the ground of unseaworthiness lies solely under DOHSA () and is not available under the general maritime law; and, second, that even if such a claim for relief is recognized, the present action was not timely filed. The practical import of defendant's motion is to make it liable to plaintiff only for negligent acts and not also for nonnegligent unseaworthiness. The Court holds that the general maritime law does afford a cause of action to the plaintiff in the instant case, that plaintiff's claim is not time-barred, and that defendant's motion must therefore be denied.
This discussion must begin with a brief history of the right of seamen under the general maritime law to recover damages for personal injuries and death owing to the unseaworthiness of a vessel. Such a right to recover for personal injuries was definitively accepted by the United States Supreme Court only in 1903. The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760, 764 (1903); see G. Gilmore & C. Black, The Law of Admiralty § 6-38 (2d ed. 1975). But the shipowner's obligation to provide his crew a seaworthy vessel is of ancient lineage, and the seaman's corresponding right to recover for unseaworthiness has come to be firmly established in the law of this country. See generally The Arizona v. Anelich, 298 U.S. 110, 120-21 & n.2, 56 S.Ct. 707, 710-11, 80 L.Ed. 1075, 1079-80 (1936); Gilmore & Black, supra, §§ 6-38 to 6-44(c); Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L.Q. 381, 381-403 (1954). The right has been regarded as essential to the contract of employment between seaman and shipowner, see Tetreault, supra, at 389-90, citing Dixon v. The Cyrus, 7 Fed.Cas. 755, 757, No. 3,930 (D.Pa.1789); and it has been expounded in twentieth-century Supreme Court opinions as an expression of public policy strongly protective of seamen. See, e. g., Mahnich v. Southern S.S. Co., 321 U.S. 96, 103-04, 64 S.Ct. 455, 459-60, 88 L.Ed. 561, 566-67 (1944); Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 430-31, 59 S.Ct. 262, 266-67, 83 L.Ed. 265, 269-70 (1939). Most important to the consideration of the present motion, the right to recover for unseaworthiness has belonged exclusively to seamen and a limited number of other workers accorded specially-protected status. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 629-30, 79 S.Ct. 406, 409-10, 3 L.Ed.2d 550, 553-54 (1959); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946).
Against the background of a developing right to recover for unseaworthiness, several additional events germane to the disposition of this motion have taken place. In The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), the Court held that, by analogy to the common law, the general maritime law afforded seamen no remedy for wrongful death. In 1920 Congress enacted both the Jones Act, 46 U.S.C. § 688, which affords seamen wrongful death and survival actions for negligence, and the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 761-768, which affords "any person" an action for death "caused by wrongful act, neglect or default" occurring on the high seas.1 The Jones Act was intended and subsequently interpreted as supplementary of the general maritime law, and it has become customary for an injured seaman to plead both negligence and unseaworthiness and to recover if either is proven. See, e. g., Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963); Gilmore & Black, supra, §§ 6-23 to 6-25.
In a landmark decision, Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the Court reexamined the rule of The Harrisburg in the case of a seaman killed in the course of his employment aboard a vessel located in coastal waters, not on the high seas. The Court overruled The Harrisburg, forcefully criticizing the earlier decision as no longer consonant with the common law and as having led to severe anomalies in the law of seamen's rights. Writing for the Court, Justice Harlan stated, 398 U.S. at 404, 90 S.Ct. at 1790, 26 L.Ed.2d at 359:
We do not regard the rule of The Harrisburg as a closely arguable proposition — it rested on a most dubious foundation when announced, has become an increasingly unjustifiable anomaly as the law over the years has left it behind, and . . . has produced litigation-spawning confusion in an area that should be easily susceptible of more workable solutions.
Meeting respondent's argument that a remedy under the general maritime law for wrongful death in territorial waters was precluded because Congress had limited the effect of DOHSA to the high seas, Justice Harlan stated, id. at 400, 90 S.Ct. at 1787, 26 L.Ed.2d at 356 (footnote omitted):
No intention appears that DOHSA have the effect of foreclosing any non-statutory federal remedies that might be found appropriate to effectuate the policies of general maritime law.
Undoubtedly, the Moragne Court was principally concerned with the gap left by the failure of DOHSA to cover deaths occurring in coastal waters. See id. at 395, 90 S.Ct. at 1785, 26 L.Ed.2d at 353. But the breadth of its criticism of The Harrisburg indicates that Moragne mandates a remedy for wrongful death under the general maritime law whether a seaman is killed in coastal waters or on the high seas. Justice Harlan's statement of the Court's holding contains no qualification that would limit it to deaths in coastal waters, see id. at 408-09, 90 S.Ct. at 1791-92, 26 L.Ed.2d at 361; and virtually all courts and authorities who have since considered the issue have concluded that Moragne affords seamen a right of recovery under the general maritime law for wrongful death on the high seas. Law v. Sea Drilling Corp., 510 F.2d 242, 250, petition for reh. denied, 523 F.2d 793 (5th Cir. 1975); Estate of Kauzlarich v. Exxon Co., U.S.A., 405 F.Supp. 332 (D.S.C.1975); Renner v. Rockwell International Corp., 403 F.Supp. 849, 851 (C.D.Cal.1975); Higginbotham v. Mobil Oil Corp., 357 F.Supp. 1164, 1175 (W.D.La.1973); Sennett v. Shell Oil Co., 325 F.Supp. 1, 7-8 (E.D.La.1971); Gilmore & Black, supra, § 6-32, at 368. Contra, McPherson v. S.S. South African Pioneer, 321 F.Supp. 42, 47 (E.D.Va.1971).
This Court is persuaded to follow the majority interpretation of Moragne. First, this interpretation is the more consistent not only with Moragne itself but also with the Supreme Court's expansive elucidation of the elements of damages cognizable under the general maritime law remedy for wrongful death in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). There, Justice Brennan, writing for the Court, stated, id. at 577, 94 S.Ct. at 811, 39 L.Ed.2d at 17:
In overruling The Harrisburg, Moragne . . . created . . . a uniform federal cause of action for maritime death, designed to extend to the dependents of maritime wrongful-death victims admiralty's "special solicitude for the welfare of those men who undertake to venture upon hazardous and unpredictable sea voyages." 398 U.S., at 387, 90 S.Ct. at 1772. Our approach to the resolution of the issue before us must necessarily be consistent with this "special solicitude" to the dependents of the seafaring decedent.
Second, the majority interpretation follows the pervasive practice in admiralty of construing seamen's remedies under federal statutory and general maritime law as supplementary, not preclusive. See, e. g., McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (1958) (); Doyle v. Albatross Tanker Corp., 367 F.2d 465 (2d Cir. 1966) (). In view of the purpose of Congress in passing DOHSA, which was to expand seamen's remedies in light of the restrictive rule of The Harrisburg, see Moragne v. States Marine Lines, Inc., supra, 398 U.S. at 397-99, 90 S.Ct. at 1785-87, 26 L.Ed.2d at 354-56, it would be anomalous to hold that DOHSA preempts a remedy now available once The Harrisburg has been overruled.
This Court is aware of the decision of the Court of Appeals for the First Circuit in Barbe v. Drummond, 507 F.2d 794 (1st Cir. 1974). There, plaintiff's decedent had been a...
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