District Judge (dissenting):
As a fully land-locked trial judge, I am somewhat reluctant to disagree with my more experienced brethren of the appellate bench on this admiralty matter. I am even more reluctant to express an opinion of what the admiralty law “should be”; however, as noted by the Supreme Court, “ ‘Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law . . . .’ [citation omitted].” Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 588 n. 22, 94 S.Ct. 806, *1152816, 39 L.Ed.2d 9 (1974). Given this license, I believe that it is now time to fully extend the remedy sought by appellant to the wives of injured seaman; and I disagree with the other members of this panel that Gaudet mandates a different result. Therefore, I must respectfully dissent from the decision to affirm the district court’s order of dismissal.
In Sea-Land Services, Inc. v. Gaudet, supra, the seaman had already recovered $140,000.00 from the defendant in a personal injury suit. After his death shortly thereafter, his wife then sued seeking recovery for his wrongful death; but the defendant successfully argued in district court that the maritime wrongful death remedy, as first established in Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), should recognize no loss independent of the decedent’s claim for his personal injuries. The trial court’s dismissal on res judicata grounds was reversed by this court, 463 F.2d 1331 (5th Cir. 1972), and this reversal was affirmed by the Supreme Court. The Court stated that “Moragne created a true wrongful-death remedy — founded upon the death itself and independent of any action the decedent may have had for his own personal injuries,” id. 414 U.S. at 578, 94 S.Ct. at 811; and ruled as follows: “Because the respondent’s suit involves a different cause of action, it is not precluded by res judicata." Id. In reaching this conclusion, the Gaudet Court noted that a majority of the state courts, as well as courts interpreting the FELA, had ruled that an action for wrongful death is barred by the decedent’s recovery for injuries during his lifetime. Nevertheless, the Court concluded that the guiding principle underlying the “new maritime wrongful-death remedy” was derived from the following principle of admiralty law: “ ‘[I]t better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules . .’ [citations omitted].” Id. at 583, 94 S.Ct. at 814. The Court summarized its conclusions regarding the development of the maritime law as follows:
Since the policy underlying the remedy is to insure compensation of the dependents for their losses resulting from the decedent’s death, the remedy should not be precluded merely because the decedent, during his lifetime, is able to obtain a judgment for his own personal injuries. No statutory language or “established and inflexible rules” of maritime law require a contrary conclusion.
Id. (emphasis in original). Thus, the question in the instant case is whether the guiding principles of admiralty law, as expanded in Gaudet and Moragne, should permit a spouse to recover for loss of consortium as a result of injuries to her husband not causing death, or alternatively, whether “established and inflexible rules” of maritime law would preclude such recovery.
After concluding that principles of res judicata would not bar a suit for wrongful death, the Gaudet Court turned to defendant’s argument that allowing recovery in the case would subject it to “double liability.” In considering this argument, the Court found it necessary to identify the specific items of compensable harm encompassed by the maritime wrongful death remedy, ruling that they included the following: “[L]oss of support, services, and society, as well as funeral expenses.” Id. at 584, 94 S.Ct. at 814. Relying on general wrongful death principles, general maritime law, and cases decided under the Death on the High Seas Act, the Court had little difficulty including support, services and funeral expenses within its catalogue of compensable harm; however, the question of whether or not recovery for loss of “society” should be allowed presented a closer question, particularly in light of the fact that recovery for loss of society is not allowed under the Death on the High Seas Act. The Court concluded that the Death on the High Seas Act did not “pre-empt any additional elements of damage for a maritime wrongful-death remedy which this Court might deem ‘appropriate to effectuate the policies of general maritime law.’ ” *1153Id. at 588 n. 22, 94 S.Ct. at 816. The Court went on to say that the decision to permit recovery for loss of society “aligns the maritime wrongful-death remedy with a majority of state wrongful-death statutes,” id. at 587-88, 94 S.Ct. at 816; however, it is clear that the decision to allow such recovery under general maritime law was not predicated merely on adherence to the [questionably] “clear” majority state rule:1
But in any event, our decision is compelled if we are to shape the remedy to comport with the humanitarian policy of the maritime law to show “special solicitude” for those who are injured within its jurisdiction.
Id. at 588, 94 S.Ct. at 816.
As a final matter, relying on cases recognizing a cause of action for loss of consortium of an injured, but living spouse, the Court rejected defendant’s argument that damages for loss of “society” would be unduly speculative and excessive. In fact, the Gaudet Court noted that “[D]amages for loss of consortium have been awarded by courts of admiralty as well. See N. Y. & Long Branch Steamboat Co. v. Johnson, 195 F. 740 (3d Cir. 1912); 1 E. Benedict, Admiralty 366 (6th ed. 1940) . . . But see Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257 (2d Cir. 1963).” Id. at 589 n.25, 94 S.Ct. at 817. Loss of society was defined to include “love, affection, care, attention, companionship, comfort, and protection,” id. at 585, 94 S.Ct. at 815, but to exclude mental anguish and grief. Id. at 585 n.17, 94 S.Ct. at 814. As a result, the Court rejected defendant’s double liability argument, since “decedent[’s recovery] . . . only for his loss of past and future wages, pain and suffering, and medical and incidental expenses . . . [o]bviously . . . did not include damages for the dependents’ loss of services or of society, and funeral expenses.” Id. at 591-92, 94 S.Ct. at 818. The Court ruled, however, that loss of support was arguably included within the decedent’s recovery for loss of future wages, concluding that any resultant potential for double liability can be “eliminated by application of familiar principles of collateral estoppel.” Id.
Obviously, the Gaudet case, coupled with the Moragne case, represents a broad expansion of general principles of maritime law into hitherto uncharted waters. It is equally obvious that the Gaudet Court neither approved nor disapproved allowing recovery for loss of consortium in admiralty under those same “general principles”, given the absence of an established, inflexible contrary rule. See id. at 589 n.25, 94 S.Ct. 806. Although I have difficulty in giving emphasis to the development of the majority rule in the states on this issue, I have more difficulty in basing affirmance of the district court’s opinion on the isolated statement in Gaudet that damages for loss of society “could not accrue until the decedent’s death.” This statement, although incorporated in the Gaudet opinion immediately after the discussion of loss of society, arguably refers more to accrual of the general cause of action for wrongful death itself rather than accrual of the individual items of compensable loss incorporated within that cause of action. Moreover, the Court’s discussion of “loss of society” and decisions recognizing an independent action for “loss of consortium” indicates a clear awareness that the latter cause of action, if otherwise permissible, could clearly arise during the decedent’s lifetime:
[J]uries are often called upon to measure damages for pain and suffering, mental anguish in disfigurement cases, or intentional infliction of emotional harm. In fact, since the 17th century, juries have assessed damages for loss of consortium — which encompasses loss of society— in civil actions brought by husbands whose wives have been negligently injured. More recently, juries have been asked to measure loss of consortium suffered by wives whose husbands have been negligently harmed.
*1154Id. at 589-90, 94 S.Ct. at 817. The recovery for “loss of consortium” referred to clearly arises when husbands or wives are negligently “injured” or “harmed” and not merely when they are negligently killed.
In considering the instant claim, this court is writing on a clean slate. Gaudet and Moragne stand as some indication of the direction of the development of “general maritime law” with respect to extending a remedy to spouses of those injured at sea. If the remedy sought by appellant herein is to be withheld, the decision should be based on more than the isolated statement from Gaudet cited above. And if this court is to retreat from the position it has taken in Skidmore v. Grueninger, 506 F.2d 716 (5th Cir. 1975) (husband may recover for loss of consortium in admiralty wrongful death action), that case should be discussed and distinguished, if possible. The result in Skidmore has been interpreted as extending a cause of action for loss of consortium to the wife of an injured seaman, irrespective of whether the seaman dies or lives:
[S]ince we can perceive no logical, sound or reasonable basis to differentiate between the case where the husband is killed, as contrasted to injured, in respect to the wife’s entitlement to recover for loss of consortium, we conclude that Igneri has been overruled by Sea-Land Services as construed by Skidmore.
Pesce v. Summa Corp., 54 Cal.App.3d 86, 126 Cal.Rptr. 451 (1975). I agree fully with the conclusions of the California court.
In considering the federal opinions, N. Y. & Long Branch Steamboat Co. v. Johnson, supra, apparently stands by itself in recognizing a potential cause of action for loss of consortium under earlier maritime law. Moreover, the trial court in Igneri distinguished Johnson on the ground that it was predicated on the husband’s right to recover damages for loss of his wife’s services under the common law action of per quod consortium amisit, which arose in light of a wife’s general common law disability to sue in her own name. See 207 F.Supp. at 237-38. Apparently, recovery for lost “services” did not include lost “love and affection.” Id. Now, however, the result in Johnson has been reaffirmed by this court in Skidmore; and it may hardly be argued that the Skid-more decision was based on the common law causes of action. Similarly, in Gaudet, the Supreme Court has included “love, affection, care, attention, etc.” within the elements of damages recoverable for “loss of society”, thereby arguably overruling prior cases to the contrary. See, e. g., Canal Barge Co. v. Griffith, 480 F.2d 11, 31 (5th Cir. 1973) (applying Igneri to exclude recovery for “survivor’s grief”, including “lost love and affection”), vacated in part, 513 F.2d 911 (1975) (applying Gaudet).
Given the development of the general maritime law, as explained in Gaudet, coupled with recognition of a cause of action for loss of consortium resulting from maritime injuries by a “clear majority” of the states and by this court in Skidmore, I must disagree with the other members of this panel.2
. At the time of the Gaudet opinion, 27 of 44 states allowing wrongful death recovery included loss of “society” as an element of that recovery. Id. at 587 n.21, 94 S.Ct. 806.
. In reaching this conclusion, I express no opinion on the outcome of this case under the Jones Act and FELA; or whether, in light of Gaudet, the Louisiana courts would join the weight of authority and depart from their prior rule denying recovery for loss of consortium. See, e. g., Hood v. Dun & Bradstreet, Inc., 486 F.2d 25, 31 (5th Cir. 1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1580, 39 L.Ed.2d 882 (1974) (federal courts must adhere to preexisting state law absent a compelling reason to do otherwise).