Savoie v. Nolty J. Theriot, Inc., Civ. A. No. 72-1178.
| Decision Date | 02 August 1972 |
| Docket Number | Civ. A. No. 72-1178. |
| Citation | 396 F. Supp. 973 |
| Parties | Clarence SAVOIE and wife v. NOLTY J. THERIOT, INC. |
| Court | U.S. District Court — Eastern District of Louisiana |
M. T. Melvin, Larose, La., Frank E. Lamothe, III, New Orleans, La., for plaintiffs.
Francis Emmett, Michael L. McAlpine, New Orleans, La., for defendant.
The motion of the defendant, Nolty J. Theriot, Inc., to dismiss plaintiffs' complaint on grounds that said complaint "fails to state a right or cause of action upon which relief can be granted" was heard on a prior day. The Court, having taken time to consider, is now ready to rule.
Plaintiffs, Clarence Savoie and wife, commenced this action on May 3, 1972, pursuant to 46 U.S.C. § 761, Death on the High Seas Act (DOHSA), and the General Maritime Law to recover damages for the death of their son, Dwight Steven Savoie. On May 6, 1969, Dwight Steven Savoie, while serving as a member of the crew of the M/V PYE THERIOT, lost his life by drowning in the Gulf of Mexico. The place of the accident, Block 63 South Timbalier area, was more than one marine league off the coast of Louisiana.1
Dwight Steven Savoie was survived by his widow and parents only; he left no descendants. His widow, Joyce Ledet Savoie, was appointed and qualified as administratrix of the deceased's succession, No. 8139 of the docket of the 17th Judicial District Court for the Parish of Lafourche, State of Louisiana. Individually and in her capacity as administratrix of the succession and personal representative of the deceased, Joyce Ledet Savoie brought suit against Nolty J. Theriot, Inc., the defendant herein, seeking to recover damages for the pain and suffering and wrongful death of her husband, Dwight Steven Savoie. That complaint, C.A. No. 69-1806 filed in Section G of this Court on August 8, 1969, sought recovery for all elements of damage afforded by virtue of the Jones Act, 46 U.S.C. § 688, and DOHSA.2 Settlement of the widow's claim was effected and her suit was voluntarily dismissed with prejudice.3
Defendant now moves for dismissal of the parents' claim pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, which motion we treat as a motion for summary judgment, on the grounds that: (1) all claims have prescribed; (2) all claims have been disposed of by settlement; (3) plaintiffs lack capacity as personal representatives of the decedent to assert said claims. There being no dispute as to the material facts set out above, this motion is ripe for adjudication.
Counsel for plaintiffs, through memorandum in opposition to the defendant's motion and on oral argument of said motion, has stated that plaintiffs' claims are being asserted under the General Maritime Law, as sanctioned by Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), and that their claims are not based on the Jones Act or DOHSA. As anticipated by counsel for the defendant and now advanced by counsel for the plaintiffs, the crucial issue sought to be made is whether the decision of the United States Supreme Court in Moragne, supra, "that an action does lie under the general maritime law for death caused by violation of maritime duties,"4 provides an additional remedy for the death of a seaman on the high seas where actions under the Jones Act and DOHSA are available.5
While we tend to agree with counsel for the defendant that the wrongful death action under the General Maritime Law authorized by Moragne is inapplicable because of the availability of the Jones Act and DOHSA to the facts of this case,6 we need not so hold since it is clear that even if a Moragne death action did exist, the plaintiffs herein do not possess that right of action.
Though finding that there is an action for wrongful death in the General Maritime Law, the Supreme Court in Moragne left for future litigation the determination of beneficiaries who would be entitled to recover for such deaths. Yet the Moragne court set out in some detail the arguments of the United States and the Petitioner therein that in answering the beneficiary question, guidance can be found in the Congressional expressions contained in DOHSA, the Jones Act and the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. Of these three acts the United States argued that a borrowing of the beneficiary schedule from DOHSA would be most appropriate since that statute applies to any person, not just to a class of workers, and because it bases liability on conduct violative of the General Maritime Law. Borrowing of the schedules of the other acts would be inappropriate, so the argument runs, because the Jones Act applies only to actions with respect to seamen against their employers for violation of a particular standard of negligence and because the principles of recovery of the Longshoremen's Act are foreign to those of the General Maritime Law. And, of course, the borrowing of state beneficiary schedules would detract from rather than contribute to the uniformity desired in the maritime field.
The arguments of the United States are indeed persuasive. Under DOHSA the personal representative, in this case the surviving spouse, would be the proper party to bring the suit. Therefore, if we were to borrow the beneficiary schedule from DOHSA, these plaintiffs would not be entitled to maintain this action. Similarly, under the Jones Act it is the personal representative and under the Longshoremen's Act it is the legal representative who must bring the suit. Even if we were to consider Louisiana Law, Civil Code Article 2315 allows the surviving parent to sue only if the decedent has left no surviving spouse or child. Thus, under whatever beneficiary schedule we might borrow, the plaintiffs herein have no right to bring the Moragne death action, if in fact such an action exists.7 Accord, Futch v. Midland Enterprises, Inc., 344 F.Supp. 324 (1972 M.D.La.).
Accordingly, the motion of the defendant for summary judgment should be, and the same is...
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