Savard v. Marine Contracting, Inc., Civ. No. 12158.

• Decision Date: 16 January 1969
• Docket Number: Civ. No. 12158.
• Court: U.S. District Court — District of Connecticut
• Parties: Frieda Gust SAVARD, Individually and as Administratrix, et al., Plaintiffs, v. MARINE CONTRACTING, INC., and Perini Corporation, Defendants.

296 F. Supp. 1171

Frieda Gust SAVARD, Individually and as Administratrix, et al., Plaintiffs, v. MARINE CONTRACTING, INC., and Perini Corporation, Defendants.

Civ. No. 12158.

United States District Court D. Connecticut.

January 16, 1969.

COPYRIGHT MATERIAL OMITTED

Morgan P. Ames, of Cummings & Lockwood, Stamford, Conn., for plaintiffs.

Hans C. F. Wriedt, of Goldstein & Peck, Bridgeport, Conn., for defendant Marine Contracting, Inc.

David C. Hadden, of Pouzzner & Hadden, New Haven, Conn., for defendant Perini Corporation.

TIMBERS, Chief Judge.

STATEMENT OF FACTS

On September 23, 1966, decedent, an employee of defendant Marine Contracting, Inc. (Marine) was engaged in diving operations on the barge "Choctaw" for defendant Perini Corporation (Perini). The barge was anchored in the navigable waters of the United States in Narragansett Bay, within the territorial waters of the State of Rhode Island. During the course of a dive, decedent was killed.

This action was commenced by decedent's widow (as administratrix and as an individual) and children, seeking recovery under the Jones Act, 46 U.S.C. § 688 et seq., the general maritime and civil laws of the United States (jurisdiction apparently being premised upon 28 U.S.C. § 1333(1) and 28 U.S.C. § 1332 (a)), and the Death By Wrongful Act statute of Rhode Island.¹

Each defendant has now moved, pursuant to Rule 12(b) (6), Fed.R.Civ.P., to dismiss certain parts of the complaint.

NON-MARITIME CLAIMS

Defendants, as well as the Court, have encountered some difficulty in discerning from the complaint the various theories upon which plaintiffs rely, and the corresponding factual allegations supporting these theories. In order to make its determination of these motions intelligible, the Court will consider plaintiffs' complaint as alleging two distinct, and often inconsistent, theories—one maritime and the other non-maritime. As to the latter "claim", the motions of both defendants are in all respects denied, except that the claim for conscious pain and suffering is dismissed in its entirety. See discussion, infra.

Plaintiffs have attempted to protect themselves against a possible finding that decedent was not a seaman within the meaning of the Jones Act. Should such finding be made, the complexion of the case would shift from one within the unique statutory framework of seamen's maritime claims to one within which plaintiffs might assume a status comparable to that of civil litigants in an ordinary negligence action. Since this result is conceivable, Marine's motion to dismiss, addressed in large part toward plaintiffs' failure to observe the unique statutory requirements of the Jones Act and related maritime laws, must be denied. In accordance with this ruling, the Court orders plaintiffs within 20 days to amend their complaint to state in separate counts their independent "non-maritime" claims for relief.

The Court will now proceed to consider the motions of each defendant addressed to plaintiffs' maritime claims.

MARITIME CLAIMS

(A) As to Marine Contracting, Inc.

(1) Inapplicability of the General Maritime Laws of the United States.

During the hearing on these motions on December 16, 1968, Marine's counsel stated that if the Jones Act were not applicable, decedent's sole recourse against it, as decedent's employer, would be under the Longshoremen's and Harbor Workers' Compensation Act (hereinafter, Longshoremen's Act), 33 U.S.C. § 901, et seq. Under § 905 of the Longshoremen's Act, employees have lost the right independently to recover damages where employer negligence caused the injury; they must seek redress, if at all, under the Act. The relationship of the Longshoremen's Act to the Jones Act is that the former covers all maritime workers except members of the crew and masters, while the latter covers these two categories. Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273 (5 Cir. 1966). The two Acts appear to be mutually exclusive. Swanson v. Marra Bros., 328 U.S. 1, 7 (1946).

The exclusivity provision of § 905 of the Longshoremen's Act does not bar actions by maritime workers² against employers who are also shipowners. See Jackson v. Lykes Bros. S.S. Co., Inc., 386 U.S. 731 (1967), following Reed v. The Yaka, 373 U.S. 410 (1963). See also Scopaz v. S.S. Santa Luisa, 372 F.2d 403 (2 Cir.), cert. denied, 387 U.S. 922 (1967). However, Jackson did not nullify the effect of the exclusivity provision of § 905 when the defendant employer is not the owner or lacks other operational interest in the vessel involved in the litigation. See Watson v. Gulf Stevedore Corp., 374 F.2d 946 (5 Cir.), cert. denied, 389 U.S. 927 (1967). Although a maritime worker can sue a vessel owner in personam or the vessel in rem for injuries caused by the vessel's unseaworthiness, and such owner can seek indemnification against the worker's employer for breach of its warranty of workmanlike service, the maritime worker cannot subrogate himself to the owner's rights in a direct action against the employer. Instead, he must pursue his remedy, as against his employer, solely under the Longshoremen's Act. Watson, supra.

Marine has not attempted to demonstrate that its status was solely that of an employer (without any degree of ownership or operational interest in the vessel), so as to come within the exclusivity interrelationship of the Jones Act and the Longshoremen's Act. In paragraph 4 of their complaint, plaintiffs allege that Perini "had chartered the barge to defendant Marine Contracting, Inc., and defendants jointly and severally were in possession, custody, . . . control, operation and management of the diving barge Choctaw." This allegation remains uncontroverted. If plaintiffs can establish the requisite charterer's interest in Marine, then, assuming the inapplicability of the Jones Act, they would not be barred by § 905 of the Longshoremen's Act from pursuing a claim against Marine as employer-owner under general maritime law. Since this ownership interest cannot be determined on the present state of the record, Marine's motion to dismiss the general maritime claim for relief must be denied.

(2) Inapplicability of the Rhode Island Death By Wrongful Act Statute.

The Jones Act provides an exclusive right of action against an employer for the death of a seaman (member of the crew) killed in the course of his employment. Gillespie v. United States Steel Corp., 379 U.S. 148 (1964), following Lindgren v. United States, 281 U.S. 38 (1930). Notwithstanding the fact that plaintiffs, if it is demonstrated that decedent and Perini were not in an employment relation (as contended by Perini), could proceed against Perini under the Rhode Island Death By Wrongful Act statute as incorporated by general maritime law, Kenney v. Trinidad Corp., 349 F.2d 832, 834 (5 Cir. 1965), cert. denied, 382 U.S. 1030 (1966), the presence of an undisputed employment relationship between decedent and Marine requires dismissal of the Rhode Island wrongful death claim against Marine.

Death on a ship in navigable waters, although within a state's territorial waters, "is a maritime tort, a type of action which the Constitution has placed under the national power to control in its substantive . . . features . . .." Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409 (1953). Asserting that the action is one based upon diversity of citizenship does not affect this conclusion. Id., at 410-11.

Only insofar as plaintiffs are asserting that Savard was not a Jones Act seaman would their arguments be sound, since in that event the unique statutory framework becomes irrelevant.³

The Jones Act, and the Death On The High Seas Act, 46 U.S.C. § 761 et seq., provide federal statutory wrongful death remedies. Beyond that seamen cannot go, even under the doctrine of unseaworthiness. See the excellent discussion of wrongful death in unseaworthiness litigation, Burns v. Marine Transport Lines, Inc., 207 F.Supp. 276, 280-83 (S.D.N.Y.1962).

In short, under the non-maritime count, Marine's motion to dismiss the reference to the Rhode Island statute is denied; in relation to plaintiffs' maritime claim, the allegations concerning Rhode Island law are ordered dismissed.⁴

(3) Inapplicability of Claim for Pain and Suffering.

Marine has made various, and apparently unrelated, claims relying upon the alleged exclusiveness of the Jones Act remedy and ignoring the possibility recognized throughout this opinion that plaintiffs may be unable to fulfill the Jones Act's statutory prerequisites and thus may be relegated to an action under an alternative maritime or non-maritime theory. However, Marine is correct in asserting that under both the general maritime claim of unseaworthiness and in the non-maritime context under the Rhode Island Death By Wrongful Act statute, a cause of action for pain and suffering does not survive. Lopez v. Pan Atlantic Cia Naviera, 247 F.Supp. 281 (D.R.I.1965), and cases cited therein. Thus, the claim for damages based upon pain and suffering is ordered dismissed.

(4) Lack of Capacity of Certain Plaintiffs to Prosecute.

As to the Jones Act claim, the complaint should be amended so as to eliminate the statutory beneficiaries as plaintiffs and retain only decedent's widow in her capacity as his personal representative. Civil v. Waterman S.S. Corp., 217 F.2d 94, 98 (2 Cir. 1954). See 45 U.S.C. §§ 51 and 59. In the count for non-maritime relief, all present plaintiffs may continue as parties.

(5) Inapplicability of Claim for Loss of Love, Consortium and Care.

While it is clearly established that the Jones Act does not provide recovery for loss of consortium, Igneri v. Cie de Transports Oceaniques, 323 F.2d 257 (2 Cir. 1963), cert. denied, 336 U.S. 949 (1964), and the measure of damages is the actual pecuniary loss sustained by plaintiffs, Michigan Central R.R. v. Vreeland, 227 U.S. 59 (1913), no authority has been cited for the non-Jones Act aspects of this litigation. Therefore, as to the...