REVISED - August 6, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 98-30248
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LINDA JACOBS, as Temporary Administratrix of the Estate of
Patrick Daniel Jacobs,
Plaintiff-Appellee and Cross-Appellant,
VERSUS
NORTHERN KING SHIPPING CO., LIMITED; SUN ENTERPRISES LIMITED, in
personam; M/T MARINA, in rem,
Defendants-Appellants and Cross-Appellees.
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
___________________________________________________
July 27, 1999
Before POLITZ, HIGGINBOTHAM, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Appellee Linda Jacobs, as Temporary Administratrix of the
Estate of Patrick Jacobs, filed suit against Appellants Northern
King Shipping Co., Ltd., Sun Enterprises, Ltd., and the M/T MARINA,
in rem, (the “vessel interests”) to recover damages arising out of
the accidental death of her husband, Patrick Jacobs (“Jacobs”) in
Colombian waters. After a bench trial, the district court found
the vessel interests 100 percent at fault for the death of Jacobs
under the Death on the High Seas Act (“DOHSA”) and awarded Appellee
$443,000 in damages, including $200,000 for Jacobs’ conscious pain
and suffering. The principal issue on appeal relates to the
propriety of this latter award. For reasons that follow, we
conclude that Jacobs’ relatives cannot recover for the decedent’s
pre-death pain and suffering. Appellee is limited to the relief
provided in DOHSA, Congress’ comprehensive death act applicable to
Jacobs’ death. DOHSA does not allow recovery for such damages, and
courts are not authorized to supplement DOHSA with the general
maritime law or state law to permit recovery for Jacobs’ pain and
suffering.
I.
Patrick Jacobs died on March 8, 1997, as a result of the
injuries he sustained while on board the M/T MARINA. At the time
of his death, Jacobs was employed by MAPCO Petroleum, Inc., the
voyage charterer of the M/T MARINA, as a loss control
representative. He was engaged to conduct a cargo inspection on
board the M/T MARINA while the vessel was loading in Coveñas,
Colombia. The M/T MARINA was owned by Northern King Shipping Co.,
Ltd. and managed by Sun Enterprises, Ltd.
On March 7, 1997, Jacobs traveled to Cartagena, Colombia.
Jacobs then traveled to the vessel-–located in Coveñas--with Relief
Captain Fillipakis who noticed that Jacobs’ face and neck were
flushed and that his hand was trembling. At approximately 12:30
p.m. on March 8, 1997, Jacobs boarded the M/T MARINA.
After boarding the vessel, Jacobs checked the vessel’s inner
accommodation spaces and the IG pressure and cargo control console
in the cargo control room. He then had dinner with the crew,
sitting at the officers’ table. Chief Engineer Hajimichailakis
noticed that Jacobs’ face was red and that his hand was shaking.
2
After dinner, the chief engineer saw Jacobs leave his cabin, again
appearing red-faced and sweaty.
At 11:25 p.m. that evening, Jacobs, holding an empty drinking
glass, emerged from his cabin on the starboard side of the vessel
near the cargo control room. Captain Exameliotis, who was on the
bridge at the time, saw Jacobs and asked him if he needed
assistance. Jacobs responded in the negative and proceeded down
the inner accommodation stairway between the bridge and the next
deck level, the “D” deck. While descending the stairs, Jacobs
apparently fell. The captain heard a noise, went to investigate,
and again asked Jacobs if he needed assistance. Jacobs again
responded in the negative.
Jacobs then proceeded through the “D” deck interior alleyway.
Radio Operator Bibudis, who was in the radio room, heard loud
noises and went out into the alleyway to investigate. There he saw
Jacobs, who appeared to be confused and disoriented. The radio
operator asked Jacobs if he needed assistance, but Jacobs mumbled
incoherently in reply. Jacobs then continued on through the
external port side door, exiting the accommodation structure onto
the vessel’s exterior “D” deck. The radio operator followed Jacobs
onto the deck and saw Jacobs trying to climb the deck railing as if
attempting to jump. When the radio operator approached Jacobs to
assist him, Jacobs turned around and struck him with the drinking
glass on the forehead over his left eye. The radio operator’s head
began to bleed, and he immediately turned around and went back to
his cabin where he cleaned his wound for approximately four
minutes.
3
In the meantime, the chief engineer had also heard the noises
Jacobs was making and went to investigate. When the chief engineer
exited the external door to the “D” deck, he saw Jacobs strike the
radio operator. When the radio operator turned around and went
back to his cabin, the chief engineer told him that he would call
Captain Exameliotis. The chief engineer then ran to the bridge to
notify the captain and to obtain assistance from the duty officers.
Once on the bridge, the chief engineer and the captain ran out to
the bridge wing, where they should have been able to see Jacobs,
but Jacobs was gone. The captain ran down through the interior
accommodation stairway where he found Apprentice Deck Officer
Zoupas and told him to help him look for Jacobs.
The apprentice deck officer found Jacobs on the starboard side
of the vessel on the vessel’s exterior lower “A” deck at
approximately 11:35 p.m. Jacobs was lying on his back underneath
the starboard lifeboat, on the opposite side of the vessel and
three decks below where he was last seen. He was bleeding from his
left thigh and head. The captain and the apprentice deck officer
lifted Jacobs and brought him into the first empty cabin. The
captain then instructed the relief captain to communicate with
agents for ISACOL and the cargo terminal, Floating Storage Unit, to
send a doctor to the vessel immediately. The captain tied two
tourniquets to stop the bleeding in Jacobs’ left thigh, but Jacobs’
heart soon stopped beating, and he stopped breathing. Jacobs died
about 15 minutes after his fall. An autopsy confirmed that Jacobs’
death resulted from hemorrhage and broken cervical vertebrae caused
by the fall.
4
Linda Jacobs, as Temporary Administratrix of Patrick Jacobs’
estate, brought suit against the vessel interests under DOHSA, 46
U.S.C. §§ 761, et seq., the Jones Act, 46 U.S.C. §§ 688, et seq.,
and general maritime law. She later amended her complaint to add
a claim under the Texas Survival Statute, Tex.Civ.Prac. & Rem.Code
§ 71.021. Before trial, the district court dismissed Appellee’s
Jones Act claim following Appellee’s acknowledgment that she had
insufficient facts to sustain a Jones Act action. The district
court also granted the vessel interests’ pretrial motion for
summary judgment and dismissed Appellee’s claim under the Texas
Survival Statute, holding that a plaintiff may not maintain both a
state and a general maritime law survival action under Thornhill v.
Otto Candies, 1994 WL 532591 (E.D. La. Sept. 27, 1994). The court
concluded that Appellee’s general maritime law survival action
preempted her survival action under Texas law. The district court
denied the vessel interests’ summary judgment motion as to all
other claims.
During a three-day bench trial, the court heard extensive
evidence about Jacobs’ medical history that shed light on Jacobs’
behavior aboard the M/T MARINA. The evidence showed that Jacobs
suffered from a serious liver condition caused by alcohol
consumption and exposure to toxic chemicals. Jacobs’ confused and
disoriented state on board the M/T MARINA was consistent with
hepatic encephalopathy, a neurological condition related to his
liver condition. Jacobs had also apparently suffered two such
episodes of confusion and disorientation before he boarded the M/T
MARINA, but no definitive diagnosis of hepatic encephalopathy had
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been made.
The district court, after holding that DOHSA was the
controlling statute, found the vessel interests 100 percent
responsible for the death of Patrick Jacobs. The district court
declined to attribute any fault to Jacobs. The court found that
although Jacobs was aware of his liver disease, he had consumed no
alcohol in several months and had not been sufficiently warned of
the dangers posed by his condition. The district court entered
judgment in favor of Appellee and against the vessel interests in
the amount of $443,000. This award included $35,000 for past loss
of support; $200,000 for future loss of support; $200,000 in
survival damages for Jacobs’ conscious pain and suffering under the
general maritime law; and $8,000 in funeral expenses. In an
amended judgment, the district court awarded prejudgment interest
on Appellee’s award of survival damages and past and future loss of
support. The vessel interests appeal from this judgment, and
Appellee cross-appeals the amount of damages.
II.
A.
The vessel interests first contend that the district court’s
findings that they were negligent and that Jacobs was not
comparatively negligent are clearly erroneous. We do not disturb
the district court’s factual findings unless they are clearly
erroneous. See Fed.R.Civ.P. 52(a). “‘A finding is clearly
erroneous when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.’” Anderson
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v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84
L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed.2d 746 (1948)).
After carefully reviewing the record, we are satisfied that the
evidence taken as a whole supports the district court’s findings.
We therefore decline to disturb the district court’s factual
findings.
B.
The vessel interests next argue that in light of Dooley v.
Korean Air Lines Co., Ltd., 524 U.S. 116, 118 S.Ct. 1890, 141
L.Ed.2d 102 (1998), the district court erred in awarding Appellee
non-pecuniary survival damages for the decedent’s pre-death pain
and suffering under the general maritime law. The vessel interests
contend that DOHSA is the exclusive remedy for Jacobs’ death and
cannot be supplemented by a general maritime law survival action.
Where a death occurs on the high seas, DOHSA provides a cause
of action for wrongful death–-an action by relatives of the
decedent to sue for their pecuniary losses. Id. at __, 118 S.Ct.
at 1892. DOHSA, however, provides no survival action--the action
the decedent could have brought but for his death. Id.
Appellee argued to the district court that she should be
permitted to supplement her DOHSA wrongful death cause of action by
resorting to the general maritime law and thereby be able to
recover survival damages--Jacobs’ pre-death pain and suffering.
The district court accepted this argument and awarded $200,000 to
Appellee for Jacobs’ pre-death pain and suffering.
After the district court decided this case, the Supreme Court
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decided Dooley. In Dooley, the Supreme Court rejected a similar
argument and held that DOHSA was the plaintiffs’ exclusive remedy
and that the decedent’s relatives could not look to the general
maritime law to supplement their DOHSA wrongful death action and
thereby find authority to assert a survival action for the
decedent’s pre-death pain and suffering. Id. at __, 118 S.Ct. at
1895.
Now that we have the benefit of the Supreme Court’s decision
in Dooley, it is clear that the district court erred in awarding
survival damages for Jacobs’ pain and suffering under the general
maritime law as a supplemental remedy to DOHSA. Appellee, however,
offers an alternative argument to sustain this award, to which we
turn next.
C.
Appellee argues alternatively that this Court should uphold
the district court’s award of damages for the decedent’s pre-death
pain and suffering under the Texas Survival Statute.1 See Gaia
Technologies Inc. v. Recycled Products Corp., 1999 WL 292919, *4
(5th Cir. 1999). Appellee contends that, at most, Dooley addresses
the availability of a survival action under the general maritime
law to supplement DOHSA. Appellee argues that Dooley does not
preclude a holding that DOHSA may be supplemented by a state
survival statute to recover survival damages. Although Appellee is
correct that Dooley itself does not expressly foreclose the
argument that DOHSA may be supplemented by a state survival action,
1
As stated above, Appellee’s claim under the Texas Survival
Statute was dismissed as being duplicative of her claim under the
general maritime law.
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the reasoning of the Supreme Court in a number of decisions
forecloses such a result. Based on these decisions, we conclude
that the Congressionally authorized wrongful death remedy in DOHSA
may not be supplemented with a survival action under either the
general maritime law or state survival acts.
Before the enactment of DOHSA in 1920, the general maritime
law did not permit an action for damages arising from a death on
the high seas, although it did permit a person injured by tortious
conduct to recover damages. Jason P. Minkin, United States Supreme
Court Denies Survival Action Under General Maritime Law: Dooley v.
Korean Air Lines Co., 23 Tul.Mar.L.J. 229, 231 (1998). See The
Harrisburg, 119 U.S. 199, 213, 7 S.Ct. 140, 146-47, 30 L.Ed.2d 358
(1886). In 1920, Congress sought to alleviate this harsh feature
of admiralty law by enacting the Death on the High Seas Act. DOHSA
created a remedy in admiralty for deaths occurring more than three
miles from shore as a result of wrongful act, neglect, or default.
The action must be brought by the decedent’s personal
representative “for the exclusive benefit of the decedent’s wife,
husband, parent, child, or dependent relative.” 46 U.S.C. App. §
761 (1988). Furthermore, DOHSA limits recovery to “a fair and just
compensation for the pecuniary loss sustained by the persons for
whose benefit the suit is brought.” Id. § 762.
In 1978, the Supreme Court decided Mobil Oil Corp. v.
Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978).
In that case, relatives of passengers killed in a helicopter crash
beyond the territorial limits of Louisiana brought a DOHSA/general
maritime law action to recover for the decedent’s wrongful death.
9
The Supreme Court addressed whether the decedent’s survivors could
recover non-pecuniary damages for loss of society under the general
maritime law in addition to the pecuniary damages authorized by
DOHSA. The Court held that in a case of death on the high seas,
DOHSA rather than the general maritime law governs the recoverable
damages, and thus non-pecuniary damages could not be recovered in
a DOHSA action. Id. at 625-26, 98 S.Ct. at 2015.
The Court stated that because Congress has never enacted a
comprehensive maritime code, admiralty courts have often been
called upon to supplement maritime statutes. Id. at 625, 98 S.Ct.
at 2015. However, the Court distinguished those statutes from the
Death on the High Seas Act, which “announces Congress’ considered
judgment on such issues as the beneficiaries, the limitations
period, contributory negligence, survival, and damages.” Id.
Because the Act addresses the issue of recoverable damages and
limits them to pecuniary losses, courts are not “free to
‘supplement’ Congress’ answer so thoroughly that the Act becomes
meaningless.” Id. By enacting a comprehensive death act--DOHSA--
Congress “struck the balance” for the Court by limiting survivors
to recovery of their pecuniary losses. Id. at 623, 98 S.Ct. at
2014. The Court declared:
Congress did not limit DOHSA beneficiaries to recovery of
their pecuniary losses in order to encourage the creation of
nonpecuniary supplements. There is a basic difference
between filling a gap left by Congress’ silence and rewriting
rules that Congress has affirmatively and specifically
enacted. In the area covered by the statute, it would be no
more appropriate to prescribe a different measure of damages
than to prescribe a different statute of limitations, or a
different class of beneficiaries.
Id. at 625, 98 S.Ct. at 2015 (citations omitted).
10
The Supreme Court again considered whether the damages
provided in DOHSA could be supplemented in yet another context in
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct.
2485, 91 L.Ed.2d 174 (1986). In that case the decedent’s relatives
sought to recover, in addition to their pecuniary losses authorized
by DOHSA, their non-pecuniary losses consisting of loss of
companionship and loss of love and affection. Because the
plaintiffs were foreclosed by Higginbotham from claiming these
damages under the general maritime law, they sought to supplement
the allowable damages under DOHSA with the adjacent state death
act. The Supreme Court rejected the plaintiffs’ arguments that
they were entitled to resort to state death acts to supplement
their DOHSA remedy. Id. at 232, 106 S.Ct. at 2499. The Court,
following Higginbotham’s reasoning, held that “‘when DOHSA does
speak directly to a question, the courts are not free to
“supplement” Congress’ answer . . . .’” Id. at 232, 106 S.Ct. at
2499 (quoting Higginbotham, 436 U.S. at 625, 98 S.Ct. at 2015).
The court concluded that where DOHSA applies--as it did in that
case to fix the wrongful death damages--state statutes are
preempted. The Court, however, expressly left open the question of
“whether the DOHSA recovery for the beneficiaries’ pecuniary loss
may be ‘supplemented’ by a recovery for the decedent’s pain and
suffering before death under the survival provision of some
conceivably applicable state statute that is intended to apply on
the high seas.” Tallentire, 477 U.S. at 215 n.1, 106 S.Ct. at 2490
n.1.
In Dooley, the Supreme Court addressed a question closely
11
related to the issue it left open in Tallentire. The Court
considered whether the plaintiffs could supplement their DOHSA
remedy and recover for the decedent’s pain and suffering under the
general maritime law. The plaintiffs argued that “because DOHSA is
a wrongful death statute--giving surviving relatives a cause of
action for losses they suffered as a result of the decedent’s
death--it has no bearing on the availability of a survival action.”
Dooley, 524 U.S. at __, 118 S.Ct. at 1894.
The Court rejected the plaintiffs’ arguments in the following
terms:
We disagree. DOHSA expresses Congress’ judgment that
there should be no such cause of action in cases of death on
the high seas. By authorizing only certain surviving
relatives to recover damages, and by limiting damages to the
pecuniary losses sustained by those relatives, Congress
provided the exclusive recovery for deaths that occur on the
high seas. Petitioners concede that their proposed survival
action would necessarily expand the class of beneficiaries in
cases of death on the high seas by permitting decedents’
estates (and their various beneficiaries) to recover
compensation. They further concede that their cause of action
would expand the recoverable damages for deaths on the high
seas by permitting the recovery of non-pecuniary losses, such
as pre-death pain and suffering. Because Congress has already
decided these issues, it has precluded the judiciary from
enlarging either the class of beneficiaries or the recoverable
damages. . . .
The comprehensive scope of DOHSA is confirmed by its
survival provision, which limits the recovery in such cases to
the pecuniary losses suffered by surviving relatives. The Act
thus expresses Congress’ “considered judgment,” Mobil Oil
Corp. v. Higginbotham, on the availability and contours of a
survival action in cases of death on the high seas. For this
reason, it cannot be contended that DOHSA has no bearing on
survival actions; rather, Congress has simply chosen to adopt
a more limited survival provision. . . .Even in the exercise
of our admiralty jurisdiction, we will not upset the balance
struck by Congress by authorizing a cause of action with which
Congress was certainly familiar but nonetheless declined to
adopt.
In sum, Congress has spoken on the availability of a
survival action, the losses to be recovered, and the
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beneficiaries in cases of death on the high seas.
Id. at __, 118 S.Ct. at 1895 (citations omitted).
Although the Court in Dooley did not consider whether DOHSA
could be supplemented by a state survival act to permit the
recovery of survival damages, when read together, the reasoning of
Higginbotham, Dooley and Tallentire definitively answers this
question.2
In Higginbotham, the Court held that DOHSA is a comprehensive
act that governs allowable wrongful death damages and that
plaintiffs cannot look to the general maritime law to supplement
these damages. Higginbotham, 436 U.S. at 626, 98 S.Ct. at 2015.
Similarly, in Tallentire, the Court held that because DOHSA has
spoken to the question of recoverable wrongful death damages, state
statutes are preempted by DOHSA where it applies. Tallentire, 477
U.S. at 232, 106 S.Ct. at 2499. The Court therefore declined to
allow the plaintiffs to look to state wrongful death acts to
supplement their DOHSA wrongful death damages.
Although the Court in Tallentire left open the question of
whether a plaintiff could look to state survival statutes to
supplement a DOHSA wrongful death remedy, Dooley effectively closed
this gap. Dooley holds that Congress, in DOHSA, has spoken on the
availability of a survival action and has chosen not to authorize
2
See also Zicherman v. Korean Air Lines Co., Ltd., 516 U.S.
217, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996). In this case, the
Supreme Court considered the availability of loss of society
damages under DOHSA in an action (essentially identical to Dooley)
by the survivors of a passenger killed by the crash of Korean Air
Lines flight KE007 over the Sea of Japan. The Court, consistent
with Higginbotham and Tallentire, held that non-pecuniary damages
for loss of society may not be recovered under the general maritime
law or under state law because DOHSA supplies the exclusive remedy.
13
one. Dooley, 524 U.S. at __, 118 S.Ct. at 1894-95. Because
Congress left no gap in the Congressional scheme capable of being
supplemented, the Court declined to authorize a survival cause of
action under the general maritime law. The Court’s determination
in Dooley that Congress has spoken on the availability of a
survival action also precludes courts from supplementing an action
under DOHSA by resort to state survival acts. As the Court stated
in Tallentire, “the conclusion that the state statutes are
preempted by DOHSA where it applies is inevitable.” Tallentire,
477 U.S. at 232, 106 S.Ct. at 2499.
Therefore we conclude that DOHSA is Appellee’s exclusive
remedy for Jacobs’ death, and she cannot look to state law to
support a recovery for Jacobs’ pre-death pain and suffering. That
part of the district court’s judgment awarding Appellee damages for
Jacobs’ pre-death pain and suffering is vacated.
D.
The vessel interests next challenge the district court’s grant
of prejudgment interest on Appellee’s future loss of support award.
The award of prejudgment interest in death claims under DOHSA is
discretionary with the trial court. Solomon v. Warren, 540 F.2d
777, 794 (5th Cir. 1976), cert. dismissed, 434 U.S. 801, 98 S.Ct.
28, 54 L.Ed.2d 59 (1977). However, it is the rule in this Circuit
that prejudgment interest may not be awarded with respect to future
damages. Couch, III v. Cro-Marine Transport, Inc., 44 F.3d 319,
328 (5th Cir. 1995). Contrary to the vessel interests’ argument,
our review of the record reveals that the district court awarded
prejudgment interest on Appellee’s future loss of support award
14
only from the date of trial (January 26, 1998) to the date of the
judgment (February 27, 1998). The district court did not abuse its
discretion in awarding interest to this limited extent on
Appellee’s award of future loss of support.
E.
Appellee cross-appeals and argues that the district court’s
award of damages is insufficient to compensate Appellee and that
the district court erred in calculating the damages for future loss
of support. After carefully reviewing the record, we conclude that
the district court’s award was not clearly erroneous, and we
decline to disturb it. See Couch, 44 F.3d at 327.
III.
In sum, we affirm all features of this case except the
district court’s award of survival damages for Jacobs’ pre-death
pain and suffering under the general maritime law. We also decline
to reinstate the award under the Texas Survival Statute. The
judgment of the district court is therefore
AFFIRMED IN PART, REVERSED IN PART and REMANDED for entry of
judgment consistent with this opinion.
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