dissenting:
Today a majority of this Court destroys the possibility of recovery in a wrongful death suit for loss of society under the Jones Act for the death of a seaman in territorial waters. In so doing, the Court drains Moragne and Gaudet of their vitality and makes much ado of Higginbotham’s silence. The end result is a decision contrary to all humanitarian instincts continuously reflected in the admiralty, with the possible exception of The Harrisburg1 which took 85 years to scuttle.
I.
The general maritime law was devoid of a wrongful death remedy for seamen for many years. Courts wrestled with the lack of such a remedy, recognizing the inequity and inhumanity of that void, and developed a clutter of conflicting exceptions to the rule. In an effort to correct the anomalies and confusion engendered by this lack of a wrongful death remedy, the Supreme Court handed down Moragne v. States Marine Lines, Inc., 1970, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, 1970 AMC 967, overruling its prior, restrictive and ancient decision in The Harrisburg, 1886, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358. In Moragne the Court considered the claim of a widow of a Sieracki2 seaman who was killed while working as a longshoreman aboard an ocean-going vessel on navigable waters within the state of Florida. Embracing a modern and humane approach, the Court permitted the widow her claim, recognizing a new cause *530of action for recovery under general maritime law.
Four years later, in Sea-Land Services, Inc. v. Gaudet, 1974, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9, 1973 AMC 2572, the Supreme Court delineated the measure of damages available in a Moragne maritime recovery. In Gaudet, as in Moragne, a widow of a Sieracki seaman killed while working as a longshoreman on Louisiana navigable waters, brought a wrongful death action. The Court held that certain nonpecuniary losses — including loss of society— could be recovered. Again, taking an openhanded approach, the Court recognized the propriety of compensation for certain losses of a nonpecuniary nature.
Together, Moragne and Gaudet present an expansive approach to recovery of non-pecuniary damages. They recognize the “humane and liberal character of proceedings in admiralty,” The Sea Gull, 21 F.Cas. 909 (No. 12,578) (C.C.Md.1865), quoted in Moragne, supra, 398 U.S. at 387, 90 S.Ct. at 1781, 26 L.Ed.2d at 349, 1970 AMC at 977. And, repeatedly, they underscore the “special solicitude for the welfare of those men who [undertake] to venture upon hazardous and unpredictable sea voyages.” Moragne, supra, at 387, 90 S.Ct. at 1780, 26 L.Ed.2d at 349, 1970 AMC at 977. Gaudet, supra, 414 U.S. at 577 and 588, 94 S.Ct. at 811 and 816, 39 L.Ed.2d at 17 and 23, 1973 AMC at 2575 and 2584.
It is in this framework that our case must be analyzed. It is true, as the en banc Court points out, that in both Moragne and Gaudet the Supreme Court was primarily concerned with general maritime law and that neither case specifically involved a Jones Act seaman. But it is not true, despite the insistence of the en banc Court, that Moragne and Gaudet can be pigeonholed wholly apart from the Jones Act.
Rather, the Supreme Court intended to apply Moragne and Gaudet to the Jones Act, encompassing damages for loss of society within the purview of a wrongful death Jones Act recovery. Moragne's creation of a wrongful death remedy was predicated upon a desire to bring the admiralty law in line with modern notions of tort compensation. In particular, the states had enacted wrongful death laws, while the seaman had no redress for wrongful death under general maritime law. In Gaudet, the Court also looked to the modern trend and to the types of losses recoverable under state law in deciding the scope of the Moragne recovery. It is these developments in the law, and their innate rationality, that led the Supreme Court to decide Moragne and Gaudet. These very same concerns should lead the en banc Court to apply Moragne and Gaudet to the Jones Act.
Until today, this Court has applied Moragne and Gaudet to the Jones Act, permitting the recovery of nonpecuniary damages. In Landry v. Two R. Drilling Co., 5 Cir., 1975, 511 F.2d 138, 1975 AMC 2137, rehearing denied, 517 F.2d 675, 1975 AMC 2135, we recognized the propriety of nonpecuniary Gaudet damages where there is liability under both a general maritime claim for unseaworthiness and a Jones Act claim. And, in Petition of M/V ELAINE JONES, 5 Cir., 513 F.2d 911, 1975 AMC 2098 (on petition for rehearing), cert. denied, 1975, 423 U.S. 840, 96 S.Ct. 71, 46 L.Ed.2d 60, involving claims of both unseaworthiness and the Jones Act, the Court made no distinction between the two claims. The panel remanded the case to allow an award for loss of society. In remanding, the panel relied upon Gaudet, indicating that Gaudet very much applies to Jones Act claims.
This is consistent with the broad purposes of the Jones Act. In enacting the Jones Act, Congress intended “to provide liberal recovery for injured workers.” Kernan v. American Dredging Co., Inc., 1958, 355 U.S. 426, 432, 78 S.Ct. 394, 398, 2 L.Ed.2d 382, 388, 1958 AMC 251, 256. Seamen are deemed wards of the admiralty and the Jones Act is “liberally construed to carry out its full purpose, which was to enlarge admiralty’s protections to its wards.” Garrett v. Moore-McCormack Go., Inc., 1942, 317 U.S. 239, 248, 63 S.Ct. 246, 252, 87 L.Ed. 239, 248,1942 AMC 1645,1652. Indeed, the Jones Act is not a static remedy, but one to be “developed and enlarged to meet chang*531ing conditions and changing concepts of industry’s duty toward its workers.” Kernan, supra, 355 U.S. at 432, 78 S.Ct. at 398, 2 L.Ed.2d at 388, 1958 AMC at 256.
In reaching its decision, the en banc Court relies heavily on the 1913 decision in Michigan Central Railroad v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, interpreting the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. (FELA). Such reliance is misplaced. Despite the statutory tie between FELA and the Jones Act, 46 U.S.C.A. § 688, the two are not necessarily nor immutably linked. There was drift away from Vreeland prior to Gaudet, but Gaudet surely marked the end of the anchorage between Jones Act recoveries and Vreeland.
To be sure, FELA case law has often provided a persuasive starting point for analyzing Jones Act claims.3 But in general, “The admiralty has led, not followed.”4 The seaman is thought to be subject to greater risks and inconvenience than the railroad worker. Accordingly, the Jones Act has frequently granted relief where the FELA has not. Thus the employer’s defense of assumption of risk of the shipowner’s negligence was eliminated in Jones Act cases, while the FELA continued to permit this defense.5 And in Cox v. Roth, 1955, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260,1955 AMC 942, the Court went beyond the FELA to allow a Jones Act recovery against the estate of the deceased employer.6
Proceeding specifically to Vreeland, it is true that for many years courts have repeated Vreeland’s language that only “pecuniary” damages are permitted. Yet Jones Act recovery has been, nevertheless, subtly but effectively expanded. First, Vreeland’s definition of “pecuniary” was read so as to encompass what were at one time essentially nonpecuniary losses.7 Second, juries have been permitted to hear evidence which, although tangentially related to “pecuniary” losses, is in fact highly probative of nonpecuniary losses.8
After Moragne was decided, admiralty decisions drifted much farther from Vreeland’s limitation on damages.9 Then came *532Gaudet, which permitted recovery of the nonpecuniary loss of society at issue here Liability in Gaudet was predicated on unseaworthiness, but, as discussed above, Gaudet necessarily applies to the Jones Act. Not only does the analysis above show that Gaudet controls in Jones Act cases involving loss of society, but a close reading of the majority and dissenting opinions in Gaudet makes clear the departure from Vreeland. See G. Gilmore & C. Black, The Law of Admiralty 371-72 (2d ed. 1975).
First, the Gaudet dissenters state: “Because of its relationship to the FELA . ., the Jones Act also has been read as forbidding recovery of the sentimental losses approved by the Court today.” 414 U.S. at 606, 94 S.Ct. at 825, 39 L.Ed.2d at 33, 1973 AMC at 2597-98 (Powell, J.) (emphasis supplied). In an accompanying footnote, the dissenters cite Vreeland. The dissenters thus decry the majority’s “repudiation” of “[t]he traditional admiralty view . that such nonpecuniary damages are not recoverable under the . . . Jones Act.” Id. at 605, 94 S.Ct. at 825, 39 L.Ed.2d at 32, 1973 AMC at 2597. Although one is cautioned that a majority opinion does not always necessarily say what the dissenters say it says, the dissenting Justices were in an excellent position to see exactly what the majority was doing and the consequences to existing decisions.10
Second, the opinion of the Court in Gaudet itself indicates that Vreeland’s limitations are no longer to be followed. The Gaudet Court explicitly rejects arguments which caused early English Courts to add a pecuniary loss limitation to Lord Campbell’s-type Acts. Ibid, at 588-90, 94 S.Ct. at 816-817, 39 L.Ed.2d at 23-24, 1973 AMC at 2584-86. In construing FELA, Vreeland relied upon those early English cases, and the Gaudet Court expressly recognizes that fact. Ibid. at 582 & 586 n.18, 94 S.Ct. at 813 & 815 n.18, 39 L.Ed.2d at 19 & 22 n.18, 1973 AMC at 2579 & 2582 n.18. Thus it cannot be denied that Gaudet totally rejects the policies upon which Vreeland was based. Moreover, Gaudet draws a careful distinction between judge-made limitations on damages and those enacted by state or federal legislatures, arguably presaging Higginbotham. See, e. g., ibid. at 585-88 & n.22, 94 S.Ct. at 814-817 & n.22, 39 L.Ed.2d at 21-23 & n.22, 1973 AMC at 2582-84 & n.22. Gaudet clearly places the Vreeland limitation into the judge-made category, which the Court then proceeds to “shape [in order to] comport with the humanitarian policy of the maritime law . . . ” Ibid. at 588, 94 S.Ct. at 816, 39 L.Ed.2d at 23, 1973 AMC at 2584.
II.
Unlike the en banc Court, I do not believe the recent but narrow holding in Mobil Oil Corp. v. Higginbotham, 1978, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581, 1978 AMC 1059, is controlling here. The en banc Court makes a mountain of the Supreme Court’s molehill of silence. I cannot read so much into so little.
In Higginbotham, the Supreme Court granted Mobil’s writ of certiorari on the sole question of:
Whether the maritime cause of action for deaths occurring within a state’s territorial waters created by this Court in Moragne completely replaces the statutory cause of action for death mandated by *533Congress with respect to deaths occurring within the geographical scope of the Death on the High Seas Act.
Mobil Oil’s Writ Application. Clearly, Mobil Oil did not ask the Court to even consider the question of damages under the Jones Act.
Nor did the Court depart from the reason it granted certiorari. The Court based its decision entirely on DOHSA. The entire opinion is cast in terms of an analysis of congressional intent under DOHSA. As the en banc Court itself points out, the Supreme Court did not even discuss the Jones Act in the case. P. 528.11
Nonetheless, even though Higginbotham involved the high seas, even though the opinion was based entirely on DOHSA, and even though the Jones Act was nowhere discussed in the Supreme Court opinion, the en banc Court reads in Higginbotham a holding of law applicable to the Jones Act and applicable in territorial waters. The en banc Court makes this quantum leap by pointing out that “While the Jones Act issue was not discussed in the opinion, it was raised squarely by the facts. . . . ” P. 528. Specifically, the en banc Court adopts the reasoning of the panel opinion in Ivy, which points out that Higginbotham did not affirm as to the representatives of Shinn, even though Shinn sued under the Jones Act as well as under DOHSA. Ivy v. Security Barge Lines, Inc., 5 Cir., 1978, 585 F.2d 732, 738. Therefore, the panel reasoned, the Supreme Court must have held explicitly that nonpecuniary damages are not recoverable under the Jones Act.
I think a more reasonable interpretation of Higginbotham is that the Supreme Court passed no judgment on the measure of damages under the Jones Act.12 It considered solely the DOHSA issue and then reversed and “remanded for further proceedings consistent with this opinion,” 436 U.S. at 626, 98 S.Ct. at 2015, 56 L.Ed.2d at 587, 1978 AMC at 106-65 thereby leaving open to the Court of Appeals, or on its direction the District Court, the possibility of Shinn’s representatives recovering under the Jones Act.13 All that the Court held was that as between Moragne and DOHSA, Congress intended that DOHSA should govern in wrongful death recoveries on the high seas. The fact that the Supreme Court does not even discuss the Jones Act provides strong support for this interpretation.
Alternatively, the most the Court in Higginbotham could have been holding is that in a wrongful death action involving a death on the high seas, DOHSA — where applicable — is exclusive and the Jones Act has to give way to DOHSA.14
The result of the Court’s reading of Higginbotham is to seriously undermine Gaudet in its application to death on territorial waters. Despite the en banc Court’s claim to the contrary, p. 528, the representatives of Shinn recovered not only under DOHSA *534and the Jones Act, but under the general maritime law as well.15 Applying the panel Court’s extrapolation approach regarding the Jones Act (an approach that is implicitly affirmed by the en banc Court), the Supreme Court must have held that nonpecuniary damages are not recoverable under general maritime law, otherwise it would have affirmed as to the representatives of Shinn. Applying this approach to a death on territorial waters, a Court would have to hold nonpecuniary damages may not be recovered by the representatives of a Jones Act seaman who died on territorial waters when the claim is expressly brought and recovery sustained under the general maritime law.16 Gaudet would thus be consigned to the briney deep alongside the Harrisburg.
Moragne takes on some leaks too. For against the efforts of Moragne to eliminate the irrational anomalies, Moragne, 398 U.S. at 395-96, 90 S.Ct. at 1784-85, 26 L.Ed.2d at 353-54,1970 AMC at 983, the en banc Court’s holding introduces a new one. Under Gaudet, the representatives of a Sieracki seaman, whose rights are derived from the relation of ship and seaman, could recover damages for nonpecuniary losses from an accident in territorial waters under the general maritime law, but the representatives of a Jones Act seaman in the same situation could not.17
The en banc Court’s reluctance to apply Moragne and Gaudet to the Jones Act is based on a desire for uniform application of the Jones Act, and the result is a uniformity of sorts: the representatives of Jones Act seamen cannot recover nonpecuniary damages regardless of where the death occurred. But this uniformity directly conflicts with Higginbotham’s recognition that the measure of damages in coastal waters will not be the same as that on the high seas.
No solution to the problem will eliminate all disparities in the law. But the purpose of the Jones Act emphasized in Gaudet is “to shape [a] remedy to comport with the humanitarian policy of the maritime law to show ‘special solicitude’ for those who are injured within its jurisdiction.”18 I would choose a disparity in recovery due to location of the accident over the anomaly of allowing representatives of a Sieracki seaman to recover damages disallowed representatives of a Blue Water Jones Act seaman. In short, I would interpret the Jones Act to provide Gaudet nonpecuniary, as well as pecuniary, damages, at least as to death claims arising on or out of territorial navigable waters.
. 1886, 119 U.S. 199, 7 S.Ct. 140, 30
. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, 1946 AMC 698.
. Kernan v. American Dredging Co., supra.
. China Union Lines, Ltd. v. A. O. Andersen & Co., 5 Cir., 1966, 364 F.2d 769, 798, 1966 AMC 1653, 1695 (Brown, J., concurring in part and dissenting in part) (different context).
. The Arizona et al. v. Anelich, 1936, 298 U.S. 110, 56 S.Ct. 707, 80 L.Ed. 1075, 1936 AMC 627; Beadle v. Spenser, 1936, 298 U.S. 124, 56 S.Ct. 712, 80 L.Ed. 1082, 1936 AMC 635. Robinson concludes that these cases “show that the Supreme Court is not so much transplanting the railroad statute with its railroad setting as it is growing the transplanted act in its new admiralty environment.” G. Robinson, Admiralty 314 (West 1939).
. Other examples of the consistent lead which the Jones Act has taken over FELA include: the extension of a Jones Act remedy to dock workers — in contrast to restrictive FELA interpretation of the definition of railroad workers, Butler v. Whiteman, 1958, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754, 1959 AMC 2566; survival of the nonrailroad remedy of maintenance and cure after passage of the Jones Act, Cortes v. Baltimore Insular Line, Inc., 1932, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368, 1933 AMC 9; and the judicial creation of a Jones Act rescue doctrine, not found in FELA cases. Cortes v. Baltimore Insular Line, Inc., supra (dictum); Gardner v. National Bulk Carriers, Inc., 4 Cir., 1962, 310 F.2d 284, 1963 AMC 29 (en banc), cert. denied, 1963, 372 U.S. 913, 83 S.Ct. 728, 9 L.Ed.2d 721.
. This judicial sleight of hand is well-demonstrated by the fact that admiralty courts began awarding damages for the deaths of minor children. E. g. Complaint of Farrell Lines, Inc., S.D.Ga., 1975, 389 F.Supp. 194, 1976 AMC 1684. As In re Sincere Navigation Corp., E.D. La., 1971, 329 F.Supp. 652, 655 & n.8, 1972 AMC 482, 485 & n.8 (Rubin, J.) points out, these awards could not come about unless the courts were awarding damages for nonpecuniary losses.
. E. g., Petition of Risdal & Anderson, Inc., 1968, D.Mass., 291 F.Supp. 353, 358, 1968 AMC 2474, 2479. See generally W. Prosser, The Law of Torts, § 127, at 907-08 (4th ed. 1971) (jury nullification).
. Indeed, two leading opinions by then District Judge Rubin come close to repudiating Vreeland’s principle (although the cases were not specifically under the Jones Act). In re Sincere Navigation, supra; Dennis v. Central Gulf Steamship Corp., E.D.La., 1971, 323 F.Supp. 943, aff’d, 5 Cir., 453 F.2d 137, 1972 AMC 330, cert. denied, 1972, 409 U.S. 948, 93 S.Ct. 286, 34 L.Ed.2d 218. See also In re Farrell Lines, *532Inc., E.D.La., 1971, 339 F.Supp. 91, But see Petition of M/V ELAINE JONES, 5 Cir., 1973, 480 F.2d 11, 33-34, 1973 AMC 843, 870-71 (modified upon rehearing, after Gaudet was decided, 513 F.2d 911, 1975 AMC 2098); p. 527.
. It is certainly true that the Gaudet dissenters also felt that the majority was repudiating the pecuniary loss limitation expressly contained in the Death on the High Seas Act (DOHSA), and this portion of the dissent was relied upon in Law v. Sea Drilling Corp., 5 Cir., 1975, 523 F.2d 793, 796, 1977 AMC 2394, 2397 (on rehearing) (Law II). Higginbotham demonstrated that this reliance on the Gaudet dissent was misplaced, since Higginbotham effectively overruled Law II. But because Gaudet involved territorial waters — where DOHSA could not apply but where the Jones Act could — and because both the dissent and majority focused more on the Jones Act and Vreeland than on DOHSA, reliance on the Gaudet dissent is appropriate in this case.
. See Note, A Post-Higginbotham Analysis— Ivy v. Security Barge Lines, Inc., 4 Maritime Lawyer 149, 152 (1979) (“[I]t is noteworthy that nowhere in Higginbotham is there any consideration of the Jones Act status of one of the victims.”).
. See Maraist, Maritime Wrongful Death— Higginbotham Reverses Trend and Creates New Questions, 39 La.L.Rev. 81, 91-92, 1979 (“Nowhere in Higginbotham did the Supreme Court allude to the Jones Act status of Shinn and his beneficiaries. . . . Consequently, the Ivy court may have read too much into the Court’s silence in Higginbotham.”).
. The Jones Act death claim was left initially to the Court of Appeals. On remand this Court simply remanded the case to the District Court for consideration in light of the Supreme Court’s mandate. In the District Court the case was thereafter settled with no Court ever undertaking to determine whether, or to what extent, the Jones Act recoveries were subject to an overriding DOHSA restriction.
. Even assuming that the Supreme Court in Higginbotham did interpret the Jones Act as it applies to the high seas, there is still no basis for extending this holding to a Jones Act death arising on territorial navigable waters. The en banc Court Is no doubt concerned about a lack of uniformity. Yet in language which the en banc Court itself quotes, the Court in Higginbotham makes clear that “the measure of damages in coastal waters will differ from that on the high seas.” 436 U.S. at 624, 98 S.Ct. at 2015, 56 L.Ed.2d at 587, 1978 AMC at 1064-65. Thus it is simply not the case that to reach the humanitarian result, it is necessary to “disregard history and jurisprudence.” P. 529, n.13.
. As the District Court stated:
We hold therefore that there be judgment in favor of . the representatives of Shinn against Mobil under the Jones Act, the Death on the High Seas Act and the General Maritime Law.
Higginbotham v. Mobil Oil Corporation, W.D. La., 1973, 357 F.Supp. 1164, 1178. The Court of Appeals decision also recognized that the representatives of Shinn had recovered below under DOHSA, the Jones Act, and general maritime law. 545 F.2d at 424-25, 1977 AMC at 293.
. Indeed, the panel opinion in Ivy explicitly states that a Jones Act seaman’s survivors are limited to pecuniary damages, even when actions are brought under both the Jones Act and under the general maritime law. 585 F.2d at 738-39 n.8.
. See Maritime Lawyer Note, supra, note 11, at 153-54 (discussing this and other anomalies).
. 414 U.S. at 588, 94 S.Ct. at .816, 39 L.Ed.2d at 23, 1973 AMC at 2584.