Kelly v. Panama Canal Commission

United States Court of Appeals,

Fifth Circuit.

No. 93-3565.

Jeanne M. KELLY, Individually and as personal representative of
the estate of Captain James J. Kelly, and on behalf of her minor
child, James Joseph Kelly, III, Plaintiff-Appellee, Cross-
Appellant,

v.

The PANAMA CANAL COMMISSION, Defendant-Appellant, Cross-Appellee.

July 25, 1994.

Appeals from the United States District Court for the Eastern
District of Louisiana.

Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

The Panama Canal Commission ("Commission") appeals from a

judgment rendered against it by the district court in the wrongful

death action brought by the widow and child of Captain James Kelly.

Jeanne Kelly and her minor son cross-appeal to seek an increase in

the award.

I.

Captain James Kelly, a U.S. Army Officer assigned to Fort

Kobbe in the Republic of Panama, was killed when the mast of the

catamaran he was sailing struck hanging electrical wires. Captain

Kelly and a friend, Master Sergeant Timothy Masterson, were

off-duty for the week-end. They obtained the catamaran from the

Rodman-Marina Sailing Club, which is a civilian-run club located on

the Rodman Naval Station, for a recreational trip.

The Panama Canal Commission's Power Branch is responsible for

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electricity in the Canal area. The Commission is an agency of the

United States.

Pursuant to 22 U.S.C. § 3772, Jeanne Kelly, Captain Kelly's

widow, ("Kelly") filed suit seeking damages for herself and her

minor son for Captain Kelly's wrongful death. The district court

concluded that Kelly's claims were not barred by the Feres doctrine

and that the Commission was negligent in the location of its

electrical lines. Based on Kelly's damage evidence, the court

fixed the award at: 1) $10,000 for Captain Kelly's pain and

suffering; 2) $150,000 to Jeanne Kelly for loss of society and

$170,000 to the minor son for loss of society; and 3) $578,847 to

each for loss of support. The court also assessed sanctions

against the Commission in the amount of $2,150 for intimidation of

a witness.

II.

A.

The Commission argues that the Feres doctrine should be

applied under the Panama Canal Act of 1979 to bar Kelly's claim.

Under the Feres doctrine, "the Government is not liable ... for

injuries to servicemen where the injuries arise out of or are in

the course of activity incident to service." Feres v. United

States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950).

The Court has enunciated three rationales for the doctrine: 1) the

distinctively federal nature of the relationship between the

government and members of its armed forces, which argues against

subjecting the government to liability based on the fortuity of the

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situs; 2) the availability of alternative compensation systems;

and 3) the fear of damaging the military disciplinary structure.

See Stencel Aero Eng. Corp. v. United States, 431 U.S. 666, 671-72,

97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977). The government

bears the burden of proving that Captain Kelly's death arose out of

an "activity incident to service."

The Fifth Circuit considers three factors in determining the

applicability of Feres: 1) duty status, 2) where the injury

occurred, and 3) the activity being performed. Parker v. United

States, 611 F.2d 1007 (5th Cir.1980). After applying these three

factors, we consider the totality of the circumstances to determine

whether the serviceman was acting "incident to service." Id. at

1013.

The duty status of service personnel falls along a spectrum.

Military personnel with only an unexercised right to a pass or

those who are only off duty for the day usually are held to be

acting "incident to service." Parker at 1013. See also, Warner v.

United States, 720 F.2d 837 (5th Cir.1983) (Feres bars claims of an

enlisted man who was given day off and was on personal business on

the base at time of injury). The Feres doctrine does not generally

bar claims of a serviceperson who is on furlough. Harvey v. United

States, 884 F.2d 857 (5th Cir.1989) (medical hold pending

discharge). Captain Kelly worked Monday to Friday. The accident

occurred when he was off-duty for the week-end. Therefore, his

duty status falls along the middle of the spectrum and is not a

strong indicator of whether he was acting incident to service. See

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Elliott By and Through Elliott v. United States, 13 F.3d 1555 (11th

Cir.1994) (where serviceman on leave for two weeks and accident

occurred two days before he was due back, duty status supports

allowing liability).

Next, we look at where the injury occurred to determine if

the location indicates that the activity is service-oriented.

Parker, 611 F.2d at 1014. While there is no bright-line rule,

Feres is more likely to bar recovery when military personnel are

injured on base. Here, Captain Kelly was injured off base, while

sailing in the Canal.

Third, we examine the activity being performed at the time of

the injury to see if it served some military function. Parker, 611

F.2d at 1014. The Commission argues that we should follow the

Ninth Circuit's decision applying the Feres bar in a case in which

a service member was injured when her canoe was struck by a motor

boat near the Navy facility. Bon v. United States, 802 F.2d 1092

(9th Cir.1986). Bon had rented the canoe from the Navy's Special

Services Center and could only rent it by virtue of her status as

a member of the military. Bon was subject to military discipline

for violation of the Special Service rules governing the use of the

facility and its equipment. In addition, the Special Services

Center itself was directly under control of the commanding officer

of the San Diego Naval Training Center. The Ninth Circuit found

the presence of direct military control over the activity

sufficient to establish that the activity was incident to service.

Id. at 1096.

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 This case is distinguishable from Bon. Here, the Commission

has not shown that Kelly was directly subject to military control.

Rather, Kelly was engaged in the purely recreational activity of

sailing a catamaran rented from a civilian-run marina. Unlike the

serviceperson in Bon, Kelly was sailing a privately owned

catamaran, and no special military rules or regulations applied to

govern the conditions of his sailing.1 See also, Elliott, 13 F.3d

at 1563 (Feres does not bar claim of serviceman and his wife for

injuries that occurred due to faulty venting system in a

military-owned apartment in which they resided); Denham v. United

States, 646 F.Supp. 1021 (W.D.Tex.1986); aff'd., 834 F.2d 518 (5th

Cir.1987) (Feres does not bar claims of serviceman who was off-duty

for the day and was injured in a diving accident due to Army Corps

of Engineers' negligent maintenance of swimming area).

Moreover, this is not a situation in which military judgment

or military discipline is called into question. In a recent

discussion of Feres, the Supreme Court emphasized that one

important consideration in determining whether Feres bars a suit is

"whether the suit requires the civilian court to second-guess

military decisions." United States v. Shearer, 473 U.S. 52, 57,

1
The Commission claims that the Panama Canal Treaty and the
fact that Kelly had a sailing license issued by the Navy Rodman
Marina demonstrate military control. However, while the Panama
Canal Treaty applies to navigation, it applies equally to
military and civilian personnel. There is also no evidence that
Kelly needed the sailing qualification card in order to rent the
catamaran, nor is there evidence that only military personnel
qualified for such a license. Under these circumstances, the
Commission has failed to demonstrate military control sufficient
to invoke the Feres bar.

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105 S.Ct. 3039, 3043, 87 L.Ed.2d 38 (1985).

In Shearer, the family member of a serviceman murdered by

another serviceman sued alleging that the military was negligent in

failing to warn about the murderer's past record of violence. The

Court held that this claim was barred by Feres because "it calls

into question basic choices about discipline, supervision, and

control of a serviceman." Id. at 58, 105 S.Ct. at 3043. Kelly's

claim, on the other hand, does not. Captain Kelly was off-duty,

off-base and engaged in a purely leisure activity that served no

military purpose or function. Unlike the situation in Shearer,

Kelly's suit does not affect military discipline or involve

military judgment. Instead, the suit involves the Panama Canal

Commission's negligence in hanging electrical wires in the path of

recreational sailors.

The district court did not err in concluding that the Panama

Canal Commission failed to meet its burden of showing that Captain

Kelly's recreational sailing trip was "an activity incident to

service." The district court correctly refused to apply Feres to

bar Kelly's claim.

B.

Kelly sued under 22 U.S.C. § 3772, which allows recovery of

damages for injuries occurring in areas outside the locks of the

Panama Canal when:

the injury was proximately caused by the negligence or fault
on the part of an officer of employee of the United States
acting in the scope of his employment and in the line of his
duties in connection with the operation of the Canal.

Under § 3776, courts are to apply "the principles of law and rules

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of practice obtaining generally in like cases between a private

party and ... the United States." However, the Panama Canal Act

provides no standard for determining negligence or damages for

personal injury.

The district court found the situation analogous to that of

the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) and

applied the remedy provisions of that act. However, § 5(b) of the

LHWCA was adopted in 1972 to provide a unique remedy for injury or

death of longshoremen. Grant Gilmore & Charles L. Black, Jr., The

Law of Admiralty, 499ff (2d ed. 1975). It was specially designed

to provide a narrow tort remedy to the longshoreman in addition to

a compensation remedy against his employer. In contrast to this

narrow statutory tort remedy afforded by the LHWCA, the general

maritime law governs virtually all non-statutory tort actions

occurring on navigable waters. We are persuaded, therefore, that

the general maritime law is the best source for analogous law to

apply in this case.

Under the general maritime law, non-pecuniary damages are not

available to seamen. The Supreme Court has held that in all

actions for wrongful death of a seaman, whether pursuant to the

Jones Act, the Death on the High Seas Act, or general maritime law,

recovery is limited to pecuniary damages. Miles v. Apex Marine

Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). This

circuit recently extended the rule to the injury of a non-seaman.

We held that non-pecuniary losses are not recoverable by an injured

non-seaman unless he is a longshoreman injured in state territorial

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waters. Nichols v. PHI, 17 F.3d 119 (5th Cir.1994) (wife of

longshoreman injured in nonterritorial waters not entitled to loss

of consortium claim). Because Captain Kelly was a non-seaman and

was not a longshoreman killed in territorial waters, Nichols

requires us to conclude that Kelly is not entitled to recover

non-pecuniary damages.

C.

Both parties dispute the district court's computation of loss

of support. Kelly cross-appeals on damages, arguing that the

district court erred in using Kelly's earnings as a captain as the

basis for its loss of support award. The Commission argues that

the district court erred in computing future earnings based on a

retirement age of 60.

Kelly argues that the district court erred in refusing to

compute Captain Kelly's earnings based on his promotion to major.

The court found that there was insufficient evidence to prove that

Captain Kelly had been promoted at the time of his death. The

district court's factual determination is subject to the clearly

erroneous standard. Griffin v. Box, 910 F.2d 255 (5th Cir.1990).

Kelly argues that all of the evidence available demonstrates

that Captain Kelly had been promoted to major but had not been

appointed as such. Masterson testified that Captain Kelly had been

selected for promotion. Kelly also points to the letter sent by

Lieutenant Murray to the chairman of the Board of Local Inspectors

in which Murray referred to Kelly as "major." However, the

district court found that all other references to Kelly made by

8
Army personnel in conjunction with his death state his rank as that

of captain.

The district court did not err in declining to compute Captain

Kelly's earnings on the basis of a major's pay. The evidence does

not show that Captain Kelly was promoted prior to his death, and

posthumous promotions do not provide a basis for an increase in

pay.2

Next, the Commission argues that as either a captain or a

major, Kelly could not have remained in the military until he was

sixty. The Commission points out that even if Captain Kelly was

not mandatorily discharged for failure to achieve a promotion, and

even if he had secured a term of years as a lieutenant colonel, he

still would have been mandatorily retired after twenty-eight years

of service at age forty-nine.3

The district court has broad discretion to determine the

award of future earnings. Johnson v. Sawyer, 980 F.2d 1490, 1504

(5th Cir.1992). But the award must be supported by record evidence

and the findings must be sufficiently detailed to permit us to

review the award.

It is clear to us that Kelly could not have remained in the

Army as a captain until age sixty. If the district court concluded

2
Captain Kelly was posthumously commissioned as a major.
However, 10 U.S.C. § 1523 provides that "no person is entitled to
any bonus, gratuity, pay, or allowance because of a posthumous
commission or warrant."
3
Under 10 U.S.C. § 632, an officer is subject to discharge
if he is not selected for promotion to the next higher grade on
two occasions. Only an officer who achieves the rank of
lieutenant colonel is entitled to serve a term of years.

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that Kelly would remain in the military until age sixty, the court

should have used earnings based on his probable rank during the

likely progression of his military career. If the district court

concluded that Captain Kelly would have likely departed the

military before age sixty, his earnings as a military officer could

not be used as a wage base for loss of support after his departure.

Our review of the record disclosed no reference to a planned post

military career nor evidence of earnings from such a career. On

remand, the district court should make additional findings to

specify the wage base it used to compute the loss of support item

and, if necessary, conform the award to the evidence. If the

district court determines that some justification exists to reopen

the record to take additional evidence on damages, we leave this to

the court's sound discretion.

D.

The Commission argues that the court erred in imposing and

failing to withdraw its sanctions against the Commission's attorney

for intimidating a witness. Alexander Livingston, a lieutenant in

the fire department of the Panama Canal Commission, was called to

testify for Kelly. In a pre-trial interview with Lt. Livingston,

Mr. Lindberg, one of the Commission's attorneys, threatened Lt.

Livingston with criminal sanctions if he testified. Lindberg

warned Lt. Livingston that "there may be circumstances under which

your testimony might be considered at a later time to be in

violation of 18 U.S.C. § 203 and § 205, which both carry criminal

sanctions of course, and it is in fact the intention of the agency

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to pursue those sanctions." The witness stated that he felt

intimidated and asked if he could be excused from testifying.

These two code sections address compensation to government

officials and activities of government officials. Both sections

exclude from punishment or sanction the giving of testimony under

oath. § 203(f) expressly provides that:

Nothing in this section prevents an individual from giving
testimony under oath or from making statements required to be
made under penalty of perjury.

§ 205(g) is similar; it differs only in the last phrase which is

"under penalty for perjury or contempt."

The court did not abuse its discretion in assessing sanctions

against the Commission's attorney. An attorney who intimidates a

witness commits a serious infraction, and the district court's

sanctions were entirely appropriate.

III.

The district court did not err in rejecting the Commission's

Feres doctrine defense and in finding the Commission liable to

Kelly for Captain Kelly's death. We find no error in the district

court's award of sanctions against the Commission's attorney.

However, we vacate the damages award and remand with instructions

to delete the award of non-pecuniary damages. On remand the court

should make more detailed findings on the future earnings element

of the award and if necessary amend the award to conform to the

evidence. We leave it to the district court to decide whether a

supplemental hearing is necessary. The judgment of the court is

therefore

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 AFFIRMED in part, VACATED in part AND REMANDED for further

proceedings consistent with this opinion.

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