Respondent's husband, a longshoreman, was severely injured
aboard petitioner's vessel in Louisiana navigable waters. Shortly
after termination of an action based on unseaworthiness, in which
he recovered damages for past and future wages, pain and suffering,
and medical and incidental expenses, the husband died, and
respondent brought this maritime wrongful death action for damages
suffered by her. The District Court dismissed respondent's suit on
grounds of
res judicata and failure to state a claim. The
Court of Appeals reversed, on the basis of
Morange v. States
Marine Lines, 398 U. S. 375.
Held: Respondent's maritime wrongful death action is
not barred by decedent's recovery in his lifetime for damages for
his personal injuries. Pp.
414 U. S. 575-S95.
(a)
Moragne v. States Marine Lines, supra, created a
true wrongful death remedy that is founded upon the death itself,
and is independent of any action the decedent may have had for his
own personal injuries, and because respondent's suit thus involves
a different cause of action from decedent's, it is not precluded by
res judicata. Pp.
414 U. S. 575-583.
(b) The maritime wrongful death remedy permits a decedent's
dependents to recover damages for loss of support, services, and
society, as well as damages for funeral expenses. Pp.
414 U. S.
583-591.
(c) All but the first of the foregoing elements of damages could
not accrue until the decedent's, death and therefore could not
subject petitioner to double liability. Though there is an apparent
overlap between a decedent's recovery for loss of future wages and
the dependents' subsequent claim for support, the doctrine of
collateral estoppel would bar dependents from recovering for loss
of support to the extent that the decedent had recovered for future
wages. Pp.
414 U. S.
591-595.
463 F.2d 1331, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which
DOUGLAS, WHITE, MARSHALL, and BLACKMUN, JJ., joined. POWELL,
J.,
Page 414 U. S. 574
filed a dissenting opinion, in which BURGER, C.J., and STEWART
and REHNQUIST, JJ., joined,
post, p.
414 U. S.
595.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Moragne v. States Marine Lines, 398 U.
S. 375 (1970), overruling
The Harrisburg,
119 U. S. 199
(1886), held that an action for wrongful death based on
unseaworthiness is maintainable under federal maritime law, but
left the shaping of the new nonstatutory action to future cases.
The question in this case is whether the widow of a longshoreman
may maintain such an action for the wrongful death of her husband
-- alleged to have resulted from injuries suffered by him while
aboard a vessel in navigable waters -- after the decedent recovered
damages in his lifetime for his injuries.
Respondent's husband suffered severe injuries while working as a
longshoreman aboard petitioner's vessel, the S.S.
Claiborne, in Louisiana navigable waters. He recovered
$140,000 for his permanent disability, physical agony, and loss of
earnings in an action based on unseaworthiness, [
Footnote 1] but died shortly after the action
was terminated. Respondent brought this wrongful death action in
the District Court for the Eastern District of Louisiana for
damages suffered by her. Based on her husband's recovery, the
District Court dismissed the widow's suit on grounds of
res
judicata and failure to state a claim. The Court of Appeals
for the Fifth Circuit reversed, holding that
Moragne
gave
"Mrs. Gaudet . . . a compensable
Page 414 U. S. 575
cause of action for Mr. Gaudet's death wholly apart from, and
not extinguished by, the latter's recovery for his personal
injuries. . . ."
463 F.2d 1331, 1332 (1972). We granted certiorari, 411 U.S. 963
(1973), and now affirm.
I
The harshness of the
Harrisburg rule that, in the
absence of a statute, there is no maritime action for wrongful
death, was only partially relieved by enactment of federal and
state wrongful death statutes. [
Footnote 2] The Death
Page 414 U. S. 576
on the High Seas Act, 41 Stat. 537, 46 U.S.C. §§ 761-768,
created a wrongful death action for death outside the three-mile
limit. [
Footnote 3] The Jones
Act, 41 Stat. 1007, 46 U.S.C. § 688, incorporating the Federal
Employers' Liability Act, 35 Stat. 65, 45 U.S.C. §§ 51-60,
established such an action based on negligence for the wrongful
death of a seaman regardless of the situs of the wrong; but
otherwise, wrongful death actions for deaths occurring on navigable
waters within the three-mile territorial waters of a State depended
upon whether the State had enacted a wrongful death statute and, if
so, whether the statute permitted recovery. [
Footnote 4]
Moragne reflected dissatisfaction with this state of
the law that illogically and unjustifiably deprived the dependents
of many maritime death victims of an adequate remedy for their
losses. Three clearly unjust consequences were of particular
concern:
"The first of these is simply the discrepancy produced whenever
the rule of
The Harrisburg holds sway: within territorial
waters, identical conduct violating federal law (here the
furnishing of an unseaworthy vessel) produces liability if the
victim is merely injured, but frequently not if he is killed. . .
."
"The second incongruity is that identical breaches of the duty
to provide a seaworthy ship, resulting in death, produce liability
outside the three-mile
Page 414 U. S. 577
limit -- since a claim under the Death on the High Seas Act may
be founded on unseaworthiness,
see Kernan v. American Dredging
Co., 355 U. S. 426,
355 U. S.
430 n. 4 (1958) -- but not within the territorial waters
of a State whose local statute excludes unseaworthiness claims. . .
."
"The third, and assertedly the 'strangest,' anomaly is that a
true seaman -- that is, a member of a ship's company, covered by
the Jones Act -- is provided no remedy for death caused by
unseaworthiness within territorial waters, while a longshoreman, to
whom the duty of seaworthiness was extended only because he
performs work traditionally done by seamen, does have such a remedy
when allowed by a state statute (footnote omitted)."
398 U.S. at
398 U. S.
395-396.
In overruling
The Harrisburg, Moragne ended these
anomalies by the creation of a uniform federal cause of action for
maritime death, designed to extend to the dependents of maritime
wrongful death victims admiralty's "special solicitude for the
welfare of those men who under[take] to venture upon hazardous and
unpredictable sea voyages."
Id. at
398 U. S. 387.
Our approach to the resolution of the issue before us must
necessarily be consistent with the extension of this "special
solicitude" to the dependents of the seafaring decedent.
Petitioner, Sea-Land Services, Inc. (Sea-Land), would attach no
significance to this extension in shaping the maritime wrongful
death remedy. It argues that the wrongful death remedy should
recognize no loss independent of the decedent's claim for his
personal injuries, and therefore that respondent had a wrongful
death remedy only "in the event Gaudet failed to prosecute [his own
claim] during his lifetime." Brief for Petitioner 6. But
Moragne had already implicitly rejected that argument,
Page 414 U. S. 578
for we there recognized that a single tortious act might result
in two distinct, though related, harms, giving rise to two separate
causes of action:
"in the case of mere injury, the person physically harmed is
made whole for his harm, while, in the case of death, those closest
to him -- usually spouse and children -- seek to recover for their
total loss of one on whom they depended."
Id. at
398 U. S. 382.
Thus,
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. [
Footnote 5] Because the respondent's suit
involves a different cause of action, it is not precluded by
res judicata. For
res judicata operates only to
bar
"repetitious suits involving the same cause of action. [The bar]
rests upon considerations of economy of judicial time and public
policy favoring the establishment of certainty in legal relations.
The rule provides that, when a court of competent jurisdiction
Page 414 U. S. 579
has entered a final judgment on the merits of a cause of action,
the parties to the suit and their privies are thereafter bound"
"not only as to every matter which was offered and received to
sustain or defeat the claim or demand, but as to any other
admissible matter which might have been offered for that
purpose."
"
Cromwell v. County of Sac, 94 U. S.
351,
94 U. S. 352. The judgment
puts an end to the cause of action, which cannot again be brought
into litigation between the parties upon any ground whatever,
absent fraud or some other factor invalidating the judgment.
See Von Moschzisker, 'Res Judicata,' 38 Yale L.J. 299;
Restatement of the Law of Judgments, §§ 47, 48."
Commissioner v. Sunnen, 333 U.
S. 591,
333 U. S. 597
(1948).
To be sure, a majority of courts interpreting state and federal
wrongful death statutes have held that an action for wrongful death
is barred by the decedent's recovery for injuries during his
lifetime. But the bar does not appear to rest in those cases so
much upon principles of
res judicata or public policy as
upon statutory limitations on the wrongful death action. As one
authority has noted,
"[t]he fact that all civil remedies for wrongful death derive
from statute has important consequences. Since the right was
unknown to common law, the legislatures which created the right
were free to impose restrictions upon it."
2 Harper & James § 24.1, p. 1285. Thus, England's Lord
Campbell's Act, [
Footnote 6]
the first wrongful death statute, permits recovery
"whensoever the Death of a
Page 414 U. S. 580
Person shall be caused by [the] wrongful Act . . . [of another]
and the Act . . . is such as would (if Death had not ensued) have
entitled the Party injured to maintain an Action and recover
Damages in respect thereof. . . ."
Early English cases interpreting the Act held that this language
conditioned wrongful death recovery upon the existence of an
actionable cause of the decedent at his death; [
Footnote 7] if the deceased had reduced his claim
to judgment
Page 414 U. S. 581
and settled with or released his tortfeasor, and therefore, up
to the time he died, could not have maintained a further action for
his injuries, his dependents could have no cause of action for his
wrongful death. Since Lord Campbell's Act became the prototype of
American wrongful death statutes, most state statutes contained
nearly identical language, and have been similarly interpreted by
state courts. [
Footnote 8]
Though the federal wrongful death statutes do
Page 414 U. S. 582
not contain the sane controversial language, the FELA, at least,
has been held to be "essentially identical with" Lord Campbell's
Act,
Michigan C. R. Co. v. Vreeland, 227 U. S.
59,
227 U. S. 69
(1913), and therefore similar restrictions have been placed on FELA
wrongful death recovery.
Mellon v. Goodyear, 277 U.
S. 335,
277 U. S. 345
(1928). [
Footnote 9]
Page 414 U. S. 583
Moragne, on the other hand, requires that the shape of
the new maritime wrongful death remedy (not a statutory creation
but judge-made,
see The Tungus v. Skovgaard, 358 U.
S. 588,
358 U. S. 611
(1959) (opinion of BRENNAN, J.)) be guided by the principle of
maritime law that
"certainly it 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,"
The Sea Gull, 21 F. Cas. 909 (No. 12,578) (C.C. Md.
1865), quoted in
Moragne, 398 U.S. at
398 U. S. 387.
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.
[
Footnote 10]
II
Sea-Land argues that, if dependents are not prevented from
bringing a separate cause of action for wrongful death in cases
where the decedent has already received a judgment for his personal
injuries, then necessarily it
Page 414 U. S. 584
will be subject to double liability. In order to evaluate this
argument, it is necessary first to identify the particular harms
suffered by the dependents for which the maritime wrongful death
remedy permits recovery of damages. In identifying these
compensable harms, we are not without useful guides, for, in
Moragne, we recognized that, with respect to
"particular questions of the measure of damages, the courts will
not be without persuasive analogy for guidance. Both the Death on
the High Seas Act and the numerous state wrongful death acts have
been implemented with success for decades. The experience thus
built up counsels that a suit for wrongful death raises no problems
unlike those that have long been grist for the judicial mill."
398 U.S. at
398 U. S. 408.
Our review of those authorities and the policies of maritime law
persuade us that, under the maritime wrongful death remedy, the
decedent's dependents may recover damages for their loss of
support, services, and society, as well as funeral expenses.
Recovery for loss of support has been universally recognized,
[
Footnote 11] and includes
all the financial contributions
Page 414 U. S. 585
that the decedent would have made to his dependents had he
lived. Similarly, the overwhelming majority of state wrongful death
acts [
Footnote 12] and
courts interpreting the Death on the High Seas Act [
Footnote 13] have permitted recovery for
the monetary value of services the decedent provided and would have
continued to provide but for his wrongful death. [
Footnote 14] Such services include, for
example, the nurture, training, education, and guidance that a
child would have received had not the parent been wrongfully
killed. [
Footnote 15]
Services the decedent performed at home or for his spouse are also
compensable. [
Footnote
16]
Compensation for loss of society, however, presents a closer
question. The term "society" embraces a broad range of mutual
benefits each family member receives from the others' continued
existence, including love, affection, care, attention,
companionship, comfort, and protection. [
Footnote 17] Unquestionably, the deprivation of
these
Page 414 U. S. 586
benefits by wrongful death is a grave loss to the decedent's
dependents. Despite this fact, a number of early wrongful death
statutes were interpreted by courts to preclude recovery for these
losses on the ground that the statutes were intended to provide
compensation only for "pecuniary loss," and that the loss of
society is not such an economic loss. [
Footnote 18] Other wrongful death statutes contain
express language limiting recovery to pecuniary losses; [
Footnote 19] for example, the Death
on the High
Page 414 U. S. 587
Seas Act limits recovery to "a fair and just compensation for
the
pecuniary loss sustained by the persons for whose
benefit the suit is brought . . . ," 46 U.S.C. § 762 (emphasis
added), and consequently has been construed to exclude recovery for
the loss of society. [
Footnote
20]
A clear majority of States, on the other hand, have rejected
such a narrow view of damages, and, either by express statutory
provision or by judicial construction, permit recovery for loss of
society. [
Footnote 21] This
expansion of damages recoverable under wrongful death statutes to
include loss of society has led one commentator to observe that
"[w]hether such damages are classified as 'pecuniary' or
recognized and allowed as nonpecuniary, the recent trend is
unmistakably in favor of permitting such recovery."
Speiser 218. Thus, our decision to permit recovery for loss of
society aligns the
Page 414 U. S. 588
maritime wrongful death remedy with a majority of state wrongful
death statutes. [
Footnote
22] 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. [
Footnote 23]
Objection to permitting recovery for loss of society often
centers upon the fear that such damages are somewhat speculative,
and that factfinders will return
Page 414 U. S. 589
excessive verdicts. [
Footnote
24] We were not unaware of this objection in
Moragne,
where we said:
"[O]ther courts have recognized that calculation of the loss
sustained by dependents or by the estate of the deceased, which is
required under most present wrongful death statutes . . . , does
not present difficulties more insurmountable than assessment of
damages for many nonfatal personal injuries."
398 U.S. at
398 U. S.
385.
For example, juries 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. [
Footnote 25]
Page 414 U. S. 590
More recently, juries have been asked to measure loss of
consortium suffered by wives whose husbands have been negligently
harmed. [
Footnote 26]
Relying on this history, the Florida Supreme Court recognized as
early as 1899 that the damages for loss of society recovered by a
wife for the wrongful death of her husband were
"no more fanciful or speculative than the frugality, industry,
usefulness, attention and tender solicitude of a wife [all of which
a husband might recover at common law in an action for consortium],
and the one can be compensated [as easily] by that simple standard
of pecuniary loss . . . as the other."
Florida C. & P. R. Co. v. Foxworth, 41 Fla. 1, 73,
25 So. 338, 348.
We are confident that the measure of damages for loss of society
in a maritime wrongful death action can
"be left to turn mainly upon the good sense and deliberate
judgment of the tribunal assigned by law to ascertain what is a
just compensation for the injuries inflicted."
The City of Panama, 101 U. S. 453,
101 U. S. 464
(1880). As in all damages awards for tortious injury,
"[i]nsistence on mathematical precision would be illusory, and
the judge or juror must be allowed a fair latitude to make
reasonable approximations guided by judgment and practical
experience,"
Whitaker v. Blidberg Rothchild Co., 296 F.2d 554, 555
(CA4 1961). Moreover, appellate tribunals have amply demonstrated
their ability to control excessive awards,
see, e.g.,
Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (CA2
1961);
Dugas v. National Aircraft Corp., 438 F.2d 1386
(CA3 1971).
Page 414 U. S. 591
Finally, in addition to recovery for loss of support, services,
and society, damages for funeral expenses may be awarded under the
maritime wrongful death remedy in circumstances where the
decedent's dependents have either paid for the funeral or are
liable for its payment. A majority of States provided for such
recovery under their wrongful death statutes. [
Footnote 27] Furthermore, although there is a
conflict over whether funeral expenses are compensable under the
Death on the High Seas Act,
compare The Culberson, 61 F.2d
194 (CA3 1932),
with Moore v. The O S Fram, 226 F.
Supp. 816 (SD Tex.1963),
aff'd sub nom. Wilhelm Seafoods,
Inc. v. Moore, 328 F.2d 868 (CA5 1964), it is clear that
funeral expenses were permitted under the general maritime law
prior to
The Harrisburg, \see, e.g., Hollyday v. The David
Reeves, 12 F. Cas. 386 (No. 6,625) (Md. 1879). We therefore
find no persuasive reason for not following the earlier admiralty
rule, and thus hold that funeral expenses are compensable.
[
Footnote 28]
Turning now to Sea-Land's double liability argument, we note
that, in contrast to the elements of damages which we today hold
may be recovered in a maritime wrongful death action, the decedent
recovered damages only for his loss of past and future wages, pain
and suffering, and medical and incidental expenses. Obviously, the
decedent's recovery did not include damages for the dependents'
loss of services or of society, and funeral expenses. Indeed, these
losses -- unique to the decedent's
Page 414 U. S. 592
dependents -- could not accrue until the decedent's death. Thus,
recovery of damages for these losses in the maritime wrongful death
action will not subject Sea-Land to double liability or provide the
dependents with a windfall.
There is, however, an apparent overlap between the decedent's
recovery for loss of future wages and the dependents' subsequent
claim for support. [
Footnote
29] In most instances, the dependents' support will derive, at
least in part, from the decedent's wages. But, when a tortfeasor
has already fully compensated the decedent, during his lifetime,
for his loss of future wages, the tortfeasor should not be required
to make further compensation in a subsequent wrongful death suit
for any portion of previously paid wages. Any potential for such
double liability can be eliminated by the application of familiar
principles of collateral estoppel to preclude a decedent's
dependents from attempting to relitigate the issue of the support
due from the decedent's future wages. [
Footnote 30]
Page 414 U. S. 593
Collateral estoppel applies
"where the second action between the same parties is upon a
different cause or demand. . . . In this situation, the judgment in
the prior action operates as an estoppel not as to matters which
might have been litigated and determined, but 'only as to those
matters in issue or points controverted upon the determination of
which the finding or verdict was rendered.'
Cromwell v. County of
Sac, [
94 U.S.
351,]
94 U. S. 353.
And see
Russell v. Place, 94 U. S. 606;
Southern
Pacific R. Co. v. United States, 168 U. S. 1,
168 U. S. 48;
Mercoid Corp.
v. Mid-Continent Co., 320 U. S. 661,
320 U. S.
671. Since the cause of action involved in the second
proceeding is not swallowed by the judgment in the prior suit, the
parties are free to litigate points which were not at issue in the
first proceeding, even though such points might have been tendered
and decided at that time. But matters which were actually litigated
and determined in the first proceeding cannot later be
relitigated."
Commissioner v. Sunnen, 333 U.S. at
333 U. S.
597-598. And while the general rule is that nonparties
to the first action are not bound by a judgment or resulting
determination of issues,
see Blonder-Tongue v. University
Foundation, 402 U. S. 313,
402 U. S.
320-327 (1971), several exceptions exist. The pertinent
exception here is that nonparties may be collaterally estopped from
relitigating issues necessarily decided in a suit brought by a
party who acts as a fiduciary representative for the beneficial
interest of the nonparties. [
Footnote 31] In such cases,
"the beneficiaries
Page 414 U. S. 594
are bound by the judgment with respect to the interest which was
the subject of the fiduciary relationship; they are . . . bound by
the rules of collateral estoppel in suits upon different causes of
action,"
F. James, Civil Procedure § 11.28, p. 592 (1965).
Under the prevailing American rule, a tort victim suing for
damages for permanent injuries is permitted to base his
recovery
"on his prospective earnings for the balance of his life
expectancy at the time of his injury
undiminished by any
shortening of the expectancy as a result of the injury,"
2 Harper & James § 24.6, pp. 129
1294 (emphasis in original). [
Footnote 32] Thus, when a decedent brings his own
personal injury action during his lifetime and recovers damages for
his lost wages, he acts in a fiduciary capacity to the extent that
he represents his dependents' interest in that portion of his
prospective earnings which, but for his wrongful death, they had a
reasonable expectation of his providing for their support. Since
the decedent's recovery of any future wages will normally be
dependent upon his fully litigating that issue, we need not fear
that applying principles of collateral estoppel to preclude
Page 414 U. S. 595
the decedent's dependents' claim for a portion of those future
wages will deprive the dependents of their day in court.
The judgment of the Court of Appeals is
Affirmed.
[
Footnote 1]
The jury reduced a verdict of $175,000 by 20% because of
decedent's contributory negligence.
[
Footnote 2]
Wrongful death statutes are to be distinguished from survival
statutes. The latter have been separately enacted to abrogate the
common law rule that an action for tort abated at the death of
either the injured person or the tortfeasor. Survival statutes
permit the deceased's estate to prosecute any claims for personal
injury the deceased would have had but for his death. They do not
permit recovery for harms suffered by the deceased's family as a
result of his death.
See Michigan C. R. Co. v. Vreeland,
227 U. S. 59
(1913); Schumacher, Rights of Action Under Death and Survival
Statutes, 23 Mich.L.Rev. 114 (1924) (hereafter Schumacher);
Winfield, Death as Affecting Liability in Tort, 29 Col.L.Rev. 239
(1929); Livingston, Survival of Tort Actions, A Proposal for
California Legislation, 37 Calif.L.Rev. 63 (1949); New York Law
Revision Commission Report 157
et seq. (1935). The
underlying reasons for survival statutes have been summarized by
Professor Harper:
"At early common law, the personal representative could not be
sued for a tort committed by the decedent during his lifetime. From
early notions of the untransmittability of blame -- and the
quasi-criminal nature of early tort law must not be
forgotten -- to the crystalization of the maxim
action
personalis moritur cum persona, the common law was developed
without exception, and the rule was uniform that tort actions died
with the parties, either wrongdoer or injured party. There was,
then, no survival of a right of action either in favor of or
against an executor or administrator until statutes modified
somewhat the rule of dependability upon the lives of the original
parties to the wrong."
F. Harper, Law of Torts 673-674 (1933), quoted in 2 F. Harper
& F. James, Law of Torts § 24.1 n. 2 (1956) (hereafter Harper
& James). Survival statutes, in one form or another, have been
enacted in over one-half the States, and supplement the state
wrongful death statutes,
see W. Prosser, The Law of Torts
§ 126, p. 900 (4th ed.1971) (hereafter Prosser), though, in a small
number of States, the survival statute provides the only death
remedy available,
see 2 Harper & James § 24.2, p.
1288. The Federal Employers' Liability Act, 45 U.S.C. § 59, and the
Jones Act, 46 U.S.C. § 688, but not the Death on the High Seas Act,
46 U.S.C. §§ 761-768, contain survival provisions.
[
Footnote 3]
Kernan v. American Dredging Co., 355 U.
S. 426,
355 U. S. 430
n. 4 (1958).
[
Footnote 4]
The Tungus v. Skovgaard, 358 U.
S. 588 (1959).
[
Footnote 5]
Most wrongful death statutes have also been construed to create
an independent cause of action in favor of the decedent's
dependents,
see F. Tiffany, Death by Wrongful Act § 23 (2d
ed.1913) (hereafter Tiffany); 2 Harper & James § 24.2;
Schumacher 121. Thus, for example, Coleridge, J., said of England's
Lord Campbell's Act,
"[I]t will be evident that this Act does not transfer this right
of action to [the decedent's] representative, but gives to the
representative a totally new right of action, on different
principles,"
Blake v. Midland R. Co., 18 Q.B. (Ad. & E., N. S.)
*93, *110, 118 Eng.Rep. 35, 41 (1852).
See also Seward v. The
Vera Cruz, 10 App.Cas. 59, 70 (Lord Blackburn). Interpreting
the wrongful death provisions of the Federal Employers' Liability
Act, 45 U.S.C. §§ 51-60, this Court described the action as
"independent of any cause of action which the decedent had, and
includes no damages which he might have recovered for his injury if
he had survived. It is one beyond that which the decedent had, --
one proceeding upon altogether different principles. It is a
liability for the loss and damage sustained by relatives dependent
upon the decedent,"
Michigan C. R. Co. v. Vreeland, 227 U.S. at
227 U. S.
68.
[
Footnote 6]
Lord Campbell's Act, 9 & 10 Vict., c. 93, An Act for
compensating the Families of Persons killed by Accidents (Aug. 26,
1846):
"Whereas no Action at Law is now maintainable against a Person
who by his wrongful Act, Neglect, or Default may have caused the
Death of another Person . . . : Be it therefore enacted . . . That
whensoever the Death of a Person shall be caused by wrongful Act,
Neglect, or Default, and the Act, Neglect, or Default is such as
would (if Death had not ensued) have entitled the Party injured to
maintain an Action and recover damages in respect thereof, then and
in every such Case the Person who would have been liable if Death
had not ensued shall be liable to an Action for Damages,
notwithstanding the Death of the Person injured, and although the
Death shall have been caused under such Circumstances as amount in
Law to Felony."
"II. And be it enacted, That every such Action shall be for the
Benefit of the Wife, Husband, Parent, and Child of the Person whose
Death shall have been so caused, and shall be brought by and in the
Name of the Executor or Administrator of the Person deceased; and
in every such Action the Jury may give such Damages as they may
think proportioned to the Injury resulting from such Death to the
Parties respectively for whom and for whose Benefit the Action
shall be brought. . . . "
"III. Provided always, and be it enacted, That not more than One
Action shall lie for and in respect of the same Subject Matter of
Complaint. . . ."
[
Footnote 7]
See, e.g., Read v. Great Eastern R. Co., L.R. 3 Q.B.
555, 558, in which the court held:
"The question turns upon the construction of s. 1 of 9 & 10
Vict. (Lord Campbell's Act), c. 93. Before that statute, the person
who received a personal injury, and survived its consequences,
could bring an action, and recover damages for the injury; but if
he died from its effects, then no action could be brought. To meet
this state of the law, the 9 & 10 Vict. c. 93, was passed,
and"
"whenever the death of a person is caused by a wrongful act, and
the act is such as would, if death had not ensued, have entitled
the party injured to maintain an action, and recover damages in
respect thereof, then . . . the person who would have been liable
if death had not ensued shall be liable for an action for damages
notwithstanding the death of the party injured."
"Here, taking the plea to be true, the party injured could not
'maintain an action in respect thereof,' because he had already
received satisfaction."
[
Footnote 8]
See, e.g., . . . Legg v. Britton, 6 Vt. 652, 24 A. 1016
(1892);
Melitch v. United R. & E. Co., 121 Md. 457, 88
A. 229 (1913). This interpretation has been by no means universal.
A number of courts interpreting Lord Campbell's Act-type state
wrongful death statutes have held that a wrongful death action
could be prosecuted even though before his death the decedent could
not have brought a cause of action for his personal injuries,
because he had already recovered a judgment, settled, or released
his claims. A classic statement of this view is that of the South
Dakota Supreme Court in
Rowe v. Richards, 35 S.D. 201,
215-216, 151 N.W. 1001, 1006 (1915):
"We must confess our inability to grasp the logic of any course
of so-called reasoning through which the conclusion is drawn that
the husband, simply because he may live to suffer from a physical
injury, and thus become vested with a cause of action for the
violation of his own personal right, has an implied power to
release a cause of action -- one which has not then accrued; one
which may never accrue; and one which, from its very nature, cannot
accrue until his death; and one which, if it ever does accrue, will
accrue in favor of his wife and be based solely upon a violation of
a right vested solely in the wife."
The contrary interpretation of the pertinent statutory language
has also been the subject of scholarly criticism. Professor Prosser
argues:
"It is not at all clear, however, that such provisions of the
death acts ever were intended to prevent recovery where the
deceased once had a cause of action, but it has terminated before
his death. The more reasonable interpretation would seem to be that
they are directed at the necessity of some original tort on the
part of the defendant, under circumstances giving rise to liability
in the first instance, rather than to subsequent changes in the
situation affecting only the interest of the decedent."
Prosser § 127, p. 911.
See also Schumacher 120-121;
Fleming, The Lost Years: A Problem in the Computation and
Distribution of Damages, 50 Calif.L.Rev. 598, 608-610 (1962);
Anno., 70 Am.St.Rep. 666, 684 (1898). In States where the limiting
language of Lord Campbell's Act is absent from the wrongful death
statute, the courts have permitted wrongful death actions although
the decedent had already recovered for his own injuries,
see,
e.g., Blackwell v. American Film Co., 189 Cal. 689, 693-694,
209 P. 999, 1001 (1922).
[
Footnote 9]
Beyond the common elements that the FELA may share with Lord
Campbell's Act, express statutory terms peculiar to the FELA lend
additional support for the result reached in
Mellon v.
Goodyear. The Act provides:
"Every common carrier by railroad while engaging in commerce . .
. shall be liable in damages to any person suffering injury while
he is employed by such carrier in such commerce,
or, in
case of the death of such employee, to his or her personal
representative, for the benefit of the surviving widow or husband
and children of such employee; and, if none, then of such
employee's parents; and, if none, then of the next of kin dependent
upon such employee, for such injury or death resulting in whole or
in part from the negligence . . . of such carrier, or by reason of
any defect or insufficiency, due to its negligence. . . . 45 U.S.C.
§ 51 (emphasis added)."
The significant language, of course, is the use of the
disjunctive "or." This language was understood by the Court of
Appeals for the Fifth Circuit in
Seaboard Air Line R. Co. v.
Oliver, 261 F. 1, 2 (1919):
"The two distinct rights of action are given in the alternative
or disjunctively. The language used indicates the absence of an
intention to allow recoveries for the same wrong by both the
injured employee and, in case of his death, by his personal
representative; only one recovery being allowed when the injured
employee dies without having enforced the right of action given to
him. It seems to be a fair inference from that language that the
right of action given to the injured employee's personal
representative was intended to be unenforceable after the
enforcement and satisfaction of the one given to the employee
himself."
[
Footnote 10]
Significantly, the Death on the High Seas Act, 46 U.S.C. §§
761-768, the only federal statute "that deals specifically and
exclusively with actions for wrongful death . . . for breaches of
the duties imposed by general maritime law,"
Moragne v. States
Marine Lines, 398 U. S. 375,
398 U. S. 407
(1970), has not been interpreted, as the FELA has been, to bar
wrongful death recovery in cases where the decedent has already
recovered during his lifetime for his personal injuries.
[
Footnote 11]
See, e.g., Michigan C. R. Co. v. Vreeland, 227 U.S. at
227 U. S. 70;
The S.S. Black Gull, 90 F.2d 619 (CA2 1937) (interpreting
the Death on the High Seas Act);
Dugas v. National Aircraft
Corp., 438 F.2d 1386 (CA3 1971) (interpreting the Death on the
High Seas Act); Tiffany §§ 153, 160; S. Speiser, Recovery for
Wrongful Death § 3.4 (1966) (hereafter Speiser); Prosser § 127, p.
906. Damages for loss of support have also been awarded
consistently in
post-Moragne maritime wrongful death
actions.
See, e.g., Dennis v. Central Gulf S.S.
Corp., 323 F.
Supp. 943 (ED La.1971),
aff'd, 453 F.2d 137 (CA5
1972);
Petition of United States Steel Corp., 436 F.2d
1256 (CA6 1970);
In re Cambria S.S. Co., 353 F.
Supp. 691 (ND Ohio 1973);
Mascuilli v. United
States, 343 F.
Supp. 439 (ED Pa.1972);
In re Sincere Navigation
Corp., 329 F.
Supp. 652 (ED La.1971);
Petition of Canal Barge
Co., 323 F.
Supp. 805 (ND Miss.1971).
[
Footnote 12]
Tiffany §§ 158-164; Speiser §§ 3.36, 3.40.
[
Footnote 13]
Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583
(CA2 1961);
Dugas v. National Aircraft Corp., supra; Carli v.
New London Flying Service, Inc., 1965 AMC 1644 (DC
Conn.1962).
[
Footnote 14]
Such damages have also been recovered in post-
Moragne
maritime wrongful death actions.
See, e.g., Dennis v. Central
Gulf S.S. Corp., supra; Petition of United States Steel Corp.,
supra; In re Cambria S.S. Co., supra; Mascuilli v. United States,
supra; In re Sincere Navigation Corp., supra; Petition of Canal
Barge Co., supra.
[
Footnote 15]
See, e.g., Michigan C. R. Co. v. Vreeland, supra, at
227 U. S. 71;
Moore-McCormack Lines, Inc. v. Richardson, supra; Gaydos v.
Domabyl, 301 Pa. 523, 152 A. 549 (1930).
[
Footnote 16]
See, e.g., Michigan C. R. Co. v. Vreeland, supra, at
227 U. S. 71,
227 U. S. 74;
Carli v. New London Flying Service, Inc., supra; Alden v.
Norwood Arena, Inc., 332 Mass. 267,
124
N.E.2d 505 (1955);
Kroeger v. Safranek, 165 Neb. 636,
87 N.W.2d 221
(1957).
[
Footnote 17]
Loss of society must not be confused with mental anguish or
grief, which is not compensable under the maritime wrongful death
remedy. The former entails the loss of positive benefits, while the
latter represents an emotional response to the wrongful death. The
difference between the two is well expressed as follows:
"When we speak of recovery for the beneficiaries' mental
anguish, we are primarily concerned not with the benefits they have
lost, but with the issue of compensating them for their harrowing
experience resulting from the death of a loved one. This requires a
somewhat negative approach. The fundamental question in this area
of damages is what deleterious effect has the death, as such, had
upon the claimants? In other areas of damage, we focus on more
positive aspects of the injury, such as what would the decedent,
had he lived, have
contributed in terms of support,
assistance, training, comfort, consortium, etc. . . ."
"
* * * *"
"The great majority of jurisdictions, including several which do
allow damages for other types of nonpecuniary loss, hold that the
grief, bereavement, anxiety, distress, or mental pain and suffering
of the beneficiaries may not be regarded as elements of damage in a
wrongful death action."
Speiser § 3.45, p. 223 (emphasis in original) (footnotes
omitted).
[
Footnote 18]
Lord Campbell's Act, which, by its terms, allows the jury to
award "such damages as they may think proportional to the injury,"
was interpreted to permit recovery only for "pecuniary losses,"
Blake v. Midland R. Co., 18 Q.B. (Ad. & E., N.S.) *93,
118 Eng.Rep. 35 (1852). Most American courts, interpreting similar
wrongful death statutes, followed suit,
see, e.g., Michigan C.
R. Co. v. Vreeland, supra, at
227 U. S. 70.
See also Speiser § 3.1.
[
Footnote 19]
A list of the States that have such statutes and reprints of the
individual statutes may be found in Speiser § 3.1, p. 58 n. 5, and
Appendix.
[
Footnote 20]
See, e.g., Middleton v. Luckenbach S.S. Co., Inc., 70
F.2d 326 (CA2 1934);
First Nat. Bank in Greenwich v. National
Airlines, Inc., 288 F.2d 621 (CA2 1961).
[
Footnote 21]
The various state and federal wrongful death statutes have been
closely canvassed and catalogued in Speiser (Supp. 1972) and
Comment, Wrongful Death Damages in North Carolina, 44 N.C.L.Rev.
402 (1966). Those sources indicate that 27 of the 44 state and
territorial wrongful death statutes which measure damages by the
loss sustained by the beneficiaries permit recovery for loss of
society. Alaska, Arkansas, Florida, Hawaii, Kansas, Mississippi,
Nevada, West Virginia, Wisconsin, and Wyoming have statutes
expressly providing for such damages. Arizona, Idaho, Louisiana,
New Mexico, Puerto Rico, South Carolina, Utah, Virginia, and
Washington have equivocal statutory language that has been
judicially interpreted to include recovery for loss of society.
Finally, the wrongful death statutes of California, Delaware,
Michigan, Minnesota, Montana, Pennsylvania, Texas, and the Virginia
Islands, which either expressly or by judicial construction limit
recovery to pecuniary losses, have been judicially interpreted,
nevertheless, to permit recovery for the pecuniary value of the
decedent's society.
[
Footnote 22]
We recognize, of course, that our decision permits recovery of
damages not generally available under the Death on the High Seas
Act. Traditionally, however, "Congress has largely left to this
Court the responsibility for fashioning the controlling rules of
admiralty law,"
Fitzerald v. United States Lines Co.,
374 U. S. 16,
374 U. S. 20
(1963). The scope and content of the general maritime remedy for
wrongful death established in
Moragne is no exception.
After combing the legislative history of the Death on the High Seas
Act, we concluded in
Moragne that Congress expressed
"no intention . . . of foreclosing any nonstatutory federal
remedies that might be found appropriate to effectuate the policies
of general maritime law."
398 U.S. at
398 U. S. 400.
Nothing in the legislative history of the Act suggests that
Congress intended the Act's statutory measure of damages to preempt
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." To the contrary, Congress'
insistence that the Act not extend to territorial waters,
see S.Rep. No. 216, 66th Cong., 1st Sess., 3 (1919);
H.R.Rep. No. 674, 66th Cong., 2d Sess., 3 (1920); 59 Cong.Rec.
4482-4486 (1920), indicates that Congress was not concerned that
there be a uniform measure of damages for wrongful deaths occurring
within admiralty's jurisdiction, for, in many instances, state
wrongful death statutes extending to territorial waters provided a
more liberal measure of damages than the Death on the High Seas
Act.
See Greene v. Vantage S.S. Corp., 466 F.2d 159 (CA4
1972).
[
Footnote 23]
Insofar as
Simpson v. Knutsen, 444 F.2d 523 (CA9 1971),
and
Petition of United States Steel Corp., 436 F.2d 1256
(CA6 1970), are inconsistent with our holding, we disagree.
[
Footnote 24]
Of course, the maritime wrongful death remedy is an admiralty
action ordinarily tried to the court, and not a jury. There are
instances, however, where the admiralty action may be joined with a
civil claim, for example, a claim based upon the Jones Act,
see
Moragne, 398 U.S. at
398 U. S. 396
n. 12;
Peace v. Fidalgo Island Packing Co., 419 F.2d 371
(CA9 1969), or a state survival statute,
see Dugas v. National
Aircraft Corp., 438 F.2d 1386 (CA3 1971);
Petition of Gulf
Oil Corp., 172 F.
Supp. 911 (SDNY 1959);
cf. Kernan v. American Dredging
Co., 355 U. S. 426,
355 U. S. 430
n. 4 (1958), and a jury trial may be requested.
[
Footnote 25]
See, e.g., Young v. Pridd, 3 Cro.Car. 89, 79 Eng.Rep.
679 (Ex.Ch. 1627);
Hyde v. Scyssor, 2 Cro.Jac. 538, 79
Eng.Rep. 462 (K.B. 1619);
Mowry v. Chaney, 43 Iowa 609
(1876);
Guevin v. Manchester St. R., 78 N.H. 289, 99 A.
298 (1916); Holbrook, The Change in the Meaning of Consortium, 22
Mich.L.Rev. 1 (1923); Lippman, The Breakdown of Consortium, 30
Col.L.Rev. 651 (1930); Note, Judicial Treatment of Negligent
Invasion of Consortium, 61 Col.L.Rev. 1341 (1961). Damages 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 (CA3 1912); 1 E. Benedict, Admiralty 366 (6th ed.1940)
("When a personal injury to a wife is maritime by locality, her
husband may recover his damages for loss of her services, loss of
consortium, etc., in admiralty").
But see Igneri v. Cie. de
Transports Oceaniques, 323 F.2d 257 (CA2 1963).
[
Footnote 26]
See, e.g., Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57,
183 F.2d 811 (1950); Prosser § 125, p. 895; Note, Judicial
Treatment of Negligent Invasion of Consortium, 61 Col.L.Rev. 1341
(1961).
[
Footnote 27]
See Speiser § 3.49; Comment, Wrongful Death Damages in
North Carolina, 44 N.C.L.Rev. 402, 419-420 (1966).
[
Footnote 28]
Funeral expenses have been awarded in post-
Moragne
wrongful death actions.
See, e.g., Greene v. Vantage S.S.
Corp., 466 F.2d 159 (CA4 1972);
Dennis v. Central Gulf
S.S. Corp., 323 F.
Supp. 943 (ED La.1971),
aff'd, 453 F.2d 137 (CA5
1972);
Mascuilli v. United States, 343 F.
Supp. 439 (ED Pa.1972);
In re Sincere Navigation
Corp., 329 F.
Supp. 652 (ED La.1971).
[
Footnote 29]
The Court of Appeals below recognized the potential problem of
double recovery and committed
"to the discretion of the trial court the task of making an
appropriate deduction from or accommodation of any judgment to
which Mrs. Gaudet might otherwise be entitled, to insure that no
double recovery results.
Cf. Billiot v. Sewart, 382 F.2d
662 (5th Cir.1967); Prosser, [Law of Torts,] at 934-935,"
463 F.2d at 1333 n. 1. In our view, application of collateral
estoppel principles makes resort to theories of setoff or
recoupment generally unnecessary.
[
Footnote 30]
If the dependents' total support received from the decedent
exceeds the future wages paid to the decedent by the tortfeasor,
the dependents will have an actionable cause for support against
the tortfeasor for the difference. In that circumstance, if a
special verdict was not rendered in the decedent's action
specifying the amount of damages awarded for future wages, it may
become necessary in the dependents' action to determine what
portion of the decedent's lump-sum recovery for his injuries was
attributable to future wages. This in no way conflicts with our
holding that the dependents will be estopped from relitigating the
amount of future wages; it is merely an acknowledgment that the
amount of the wage recovery in the first action may have to be
clarified in the second.
[
Footnote 31]
See Vestal, Preclusion/
Res Judicata Variables:
Parties, 50 Iowa L.Rev. 27, 63-64 (1964); Note, Developments in the
Law --
Res Judicata, 65 Harv.L.Rev. 818, 855-856 (1952);
Restatement of Judgments § 92 (1942) deals expressly with wrongful
death actions and provides that, even in cases where the wrongful
death action is not premised upon the decedent's having an extant
cause of action for personal injuries at the time of his death,
"the rules of
res judicata apply in actions brought
after his death as to issues litigated in an action brought by him
and terminating in a judgment before his death,"
id., comment on subsection (1).
[
Footnote 32]
This rule appears to have been rejected in England in favor of
compensating a personal injury victim on the basis of his life
expectancy
after the accident.
See Oliver v.
Ashman, [1961] 3 W.L.R. 669 (C.A.); Fleming, The Lost Years: A
Problem in the Computation and Distribution of Damages, 50
Calif.L.Rev. 598, 600 (1962). Under the English rule, the accident
victim is not permitted to recover lost wages for the difference in
years between his pre-accident and post-accident life
expectancy.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE REHNQUIST join, dissenting.
The Court today rewrites several areas of the admiralty law of
wrongful death. In holding that a wrongful death action may be
brought although the decedent has previously recovered in his own
suit based on the same wrongful act, the Court disregards a major
body of maritime and state law. The majority opinion also opens up
an area of sentimental damages that has not been allowed under
traditional admiralty doctrine. It hopes to prevent double recovery
through a novel application of collateral estoppel principles,
which rests in turn on the unprecedented concept that a seriously
injured person acts as a fiduciary for an undefined class of
potential beneficiaries with regard to his own recovery in his own
personal injury action. Given the sweep of the majority's approach,
the upshot in many areas will be a nearly total nullification of
the congressional enactments previously governing maritime wrongful
death. Except for a technical joinder of counts to obtain a jury
trial, and thus to maximize the benefits promised by the Court's
opinion, no one entitled to rely on the admiralty doctrine of
unseaworthiness will, after today, seek relief under the federal
maritime wrongful death statutes. Several limitations built into
those congressional enactments have been swept aside by the
majority's decision.
In reaching these results, the majority purports to apply
Moragne v. States Marine
Lines, 398 U.S.
Page 414 U. S. 596
375 (1970). It is true that
Moragne overruled
The
Harrisburg, 119 U. S. 199
(1886), and held that an action for death caused by a violation of
maritime duties would lie under the general law of admiralty. But
Moragne does not support the Court's far-reaching holdings
in this case. Indeed,
Moragne, which was essentially a
response to a gap in maritime remedies for deaths occurring in
state territorial waters, explicitly counsels against the sort of
tabula rasa restructuring of the law of admiralty
undertaken by the majority. Writing for the Court, Mr. Justice
Harlan stressed the need to "assure uniform vindication of federal
policies. . . ." 398 U.S. at
398 U. S. 401.
He eschewed "the fashioning of a whole new body of federal law . .
. ,"
id. at
398 U. S. 405,
believing that the lower courts would have slight difficulty "in
applying accepted maritime law to actions for wrongful death."
Id. at
398 U. S. 406.
He stated that those courts would find "persuasive analogy for
guidance" in the accumulated experiences under the state wrongful
death statutes and the Death on the High Seas Act, 46 U.S.C. § 761
et seq., 398 U.S. at
398 U. S. 408.
He emphasized the consistency of the Court's holding with the
congressional purposes behind the Jones Act, 46 U.S.C. § 688. 398
U.S. at
398 U. S.
400-402.
The Court has now rejected these guidelines so recently laid
down in
Moragne. Disregarding the source of law endorsed
by
Moragne, as well as the concern for uniformity
expressed in that opinion, the Court has fashioned a new
substantive right of recovery in conflict with "accepted maritime
law" and a new body of law with regard to the elements of damages
recoverable in admiralty wrongful death actions. In my view, these
unprecedented extensions of admiralty law exhibit little deference
for
stare decisis or, indeed, for enunciated congressional
policy. I also believe these new doctrines are unsound as a matter
of principle, will create difficulty
Page 414 U. S. 597
and confusion in the litigation of admiralty cases, and are very
likely to result in duplicative recoveries.
I
Long accepted law under the Jones Act, [
Footnote 2/1] one of the two federal maritime wrongful
death statutes, [
Footnote 2/2] does
not countenance the result reached by the majority today. The Jones
Act "created a federal right of action for the wrongful death of a
seaman based on the statutory action under the Federal Employers'
Liability Act [FELA]."
Kernan v. American Dredging Co.,
355 U. S. 426,
355 U. S. 429
(1958). Since the FELA, 45 U.S.C. §§ 51-60, is the "regime which
the Jones Act made applicable to seamen . . . ," [
Footnote 2/3] the "entire judicially developed
doctrine of liability" under the FELA governs a Jones Act case.
Page 414 U. S. 598
Kernan, supra, at
355 U. S. 439.
An uninterrupted line of FELA and Jones Act cases going back a half
century holds that, if the decedent reduces his claim to settlement
or judgment prior to his death, or otherwise extinguishes his right
to pursue the claim, no subsequent wrongful death action may be
brought.
See, e.g., Mellon v. Goodyear, 277 U.
S. 335 (1928);
Flynn v. New York, N.H. & H.R.
Co., 283 U. S. 53
(1931);
Walrod v. Southern Pacific Co., 447 F.2d 930 (CA9
1971);
Seaboard Air Line R. Co. v. Oliver, 261 F. 1 (CA5
1919);
Gilmore v. Southern R. Co., 229 F.
Supp. 198 (ED La.1964);
Purvis v. Luckenbach S.S. Co.,
93 F. Supp. 271 (SDNY 1949).
Mellon and its progeny hold unequivocally that a
judgment, settlement, or similarly conclusive event with regard to
the decedent's own right to seek recovery for his personal injuries
"[precludes] any remedy by the personal representative based upon
the same wrongful act."
Mellon, supra, at
277 U. S. 344.
The Court in
Mellon quoted with approval the following
language from a state court opinion:
""
Whether the right of action is a transmitted right or an
original right, whether it be created by a survival statute or by a
statute creating an independent right, the general consensus of
opinion seems to be that the gist and foundation of the right in
all cases is the wrongful act, and that, for such wrongful act, but
one recovery should be had, and that, if the deceased had received
satisfaction in his lifetime, either by settlement and adjustment
or by adjudication in the courts, no further right of action
existed.'""
277 U.S. at
277 U. S. 345.
(Citation omitted.) The
Mellon rule does not rest on a
disagreement in principle with the majority's view,
ante
at
414 U. S.
577-578, that a single wrong is capable of producing
separate and distinct injuries, those to the decedent and those to
his beneficiaries.
Page 414 U. S. 599
Indeed, the Court in
Mellon explicitly recognized that
distinction. It noted that, although originating in the same
wrongful act, there are two separate and distinct claims, one
assertable by the injured person and the other upon his death by
his personal representative or dependents. 277 U.S. at
277 U. S. 340,
277 U. S. 342.
Nevertheless,
Mellon and uniformly consistent Jones Act
and FELA cases that have followed it hold that, when the decedent
extinguishes his own claim, he simultaneously forecloses any
wrongful death action. As Mr. Justice Holmes put it for a unanimous
Court in
Flynn, supra, the wrongful death action is
"derivative and dependent upon the continuance of a right in the
injured employee at the time of his death." 283 U.S. at
283 U. S. 56
(citation omitted). Thus, the Court's opinion in this case creates
a square conflict with one of the major bodies of maritime law that
Moragne viewed as a source of guidance.
The Court's implication that the Death on the High Seas Act
[
Footnote 2/4] supports its
departure from
Mellon, ante at
414 U. S. 583
n. 10, is, at best, conjectural. In fact, no cases addressing the
situation presented here appear to have arisen under that Act.
Conceivably, such a case could arise, because the High Seas Act, by
its terms, covers deaths caused by injuries inflicted at sea, not
simply deaths occurring on the high seas.
Cf. Lacey v. L. W.
Wiggins Airways, Inc., 95 F.
Page 414 U. S. 600
Supp. 916 (Mass.1951). [
Footnote
2/5] Thus, it would be possible in theory for a person injured
at sea to recover for his personal injuries and, following his
death, for his survivors to attempt to bring suit under the High
Seas Act. But certainly the Act would not be read as allowing the
subsequent action. Such a result would conflict with the
Mellon line of cases under the Jones Act and the FELA,
producing precisely the lack of uniformity normally sought to be
avoided in admiralty. Moreover, the High Seas Act contains a
substitution provision, 46 U.S.C. § 765, that, by implication,
forbids a wrongful death action following a decedent's judgment.
Section 765 provides that, if a person who suffers injuries within
the scope of the Act dies during the pendency of his own personal
injury action,
that action may be transformed by a
personal representative into a wrongful death action countenanced
by the Act. [
Footnote 2/6] Surely
this substitution provision evidences a congressional
recognition
Page 414 U. S. 601
that only one action or the other should be allowed to proceed
to judgment.
The Court's reference in
Moragne to the "strong concern
for uniformity" in admiralty law, 398 U.S. at
398 U. S. 401,
often repeated and often related to congressional policies
underlying the Jones Act and the Death on the High Seas Act,
id. at
398 U. S. 396
n. 12,
398 U. S.
401-402, was not an expression of concern solely for
intellectual consistency.
"Such uniformity not only will further the concerns of both of
the . . . Acts, but also will give effect to the constitutionally
based principle that federal admiralty law should be 'a system of
law coextensive with, and operating uniformly in, the whole
country.'
The Lottawanna, 21 Wall.
558,
88 U. S. 575 (1875)."
398 U.S. at
398 U. S.
401-402. But the lack of uniformity produced by the
majority's holding should be evident. For example, whether a
seaman's injuries occur on land or at sea will be determinative
under the majority's approach. If on land, the seaman will have the
Jones Act as his admiralty-related remedy. [
Footnote 2/7] Under that Act and the
Mellon
line of cases, his own personal injury action will foreclose a
subsequent wrongful death action -- a misfortune that would not
have befallen him and his survivors if only he had been lucky
enough to have been injured at sea. This anomaly is not something,
I suspect, the Court will long abide. Since
"[i]t has been consistently true in this branch of the law that
whatever a seaman can get under one theory he can sooner or later
get under all the others . . . , [
Footnote 2/8]"
the Court's holding undoubtedly portends an express overruling
of
Mellon and its successors, cases that the Court
bypasses today.
Aside from the disunity in the law of admiralty inherent in its
opinion, I fail to see how the Court can square
Page 414 U. S. 602
its sweeping approach with
Moragne's reliance on and
admonition to draw by analogy from the federal statutes.
E.g., 398 U.S. at
398 U. S. 400-402, 408.
Moragne envisioned a
process of accommodation with those statutes, not their abrupt and
near-total forced obsolescence. In this regard, it might be noted
that the Court has still not resolved many of the practical
questions left open in
Moragne, such as how to define the
class of beneficiaries or an appropriate limitation period.
Presumably, in resolving such questions, the lower courts are to
continue to rely on the admiralty wrongful death statutes. Now they
are placed in the interesting position of analogizing to statutes
under which the very claim before them would be blocked.
II
The Court in
Moragne also counseled the lower courts to
draw by analogy from the case law under the state wrongful death
statutes.
Id. at
398 U. S. 408.
Under the great majority of those statutes, whether of survival or
true death act character, Mrs. Gaudet's cause of action would have
been foreclosed by her husband's recovery. [
Footnote 2/9]
Page 414 U. S. 603
The Restatement of Torts is also in direct conflict with the
position taken by the Court:
"Although the death statutes create a new cause of action, both
they and the survival statutes are dependent upon the rights of the
deceased. Hence, where no action could have been brought by the
deceased had he not been killed, no right of action exists.
Likewise, a release by the deceased or a judgment either in his
favor or, if won on the merits, in favor of the defendant, bars an
action after his death. . . . [
Footnote 2/10]"
Because of the likelihood of double recovery and the threat to
repose inherent in the majority's holding, several leading
commentators also favor the majority rule under the state wrongful
death statutes. [
Footnote 2/11]
This is
Page 414 U. S. 604
particularly true where, as here, the deceased, in his own
action, has recovered his loss of earnings over his pre-accident
life expectancy. [
Footnote 2/12]
Even those opposed to the majority position under state law
recognize the "force" of that view in such a case. [
Footnote 2/13]
Page 414 U. S. 605
III
The Court devotes a major portion of its opinion to the elements
of damages recoverable under
Moragne. Ante at
414 U. S.
584-591. In particular, the Court embraces the Court of
Appeals' suggestion, 463 F.2d 1331, 1333 (CA5 1972), that Mrs.
Gaudet is entitled to seek damages for loss of "society," including
love, affection, care, attention, companionship, comfort, and
protection.
Ante at
414 U. S.
585-590. Although I would not otherwise address the
question of damages, because I believe that no cause of action
exists here, I think it important to note that the Court's holding
that loss of society may be recovered is a clear example of the
majority's repudiation of the congressional purposes expressed in
the two federal maritime wrongful death statutes. [
Footnote 2/14] The traditional admiralty view is
that such nonpecuniary damages are not recoverable under the Death
on the High Seas Act and the Jones Act.
The Death on the High Seas Act, by its terms, restricts recovery
to pecuniary losses, [
Footnote
2/15] a restriction the lower
Page 414 U. S. 606
federal courts have consistently read as excluding loss of
consortium and similar nonpecuniary injuries to personal
relationship, affections, and sentiments. [
Footnote 2/16] Because of its relationship to the FELA
and its overlapping coverage with the Death on the High Seas Act,
the Jones Act also has been read as forbidding recovery of the
sentimental losses approved by the Court today. [
Footnote 2/17] Moreover, these well established
damages principles under the to federal maritime wrongful death
statutes, coupled with a concern for uniformity in admiralty law,
have led most lower courts that have taken part in the continuing
development of the
Moragne cause of action to conclude
that the affection-related damages endorsed by the Court are not
recoverable under
Moragne. [
Footnote 2/18] These courts have
Page 414 U. S. 607
heeded
Moragne's admonition not to fashion a whole new
body of law, yet their holdings are disapproved by the majority.
Ante at
414 U. S. 588
n. 23.
IV
The reasons underlying the extensive state and admiralty
precedent contrary to the Court's holding that this action may be
brought are not difficult to discern. The majority's statement that
this precedent rests not so much on policy as on "statutory
limitations on the wrongful death action . . . ,"
ante at
414 U. S. 579,
is erroneous. [
Footnote 2/19]
The
Page 414 U. S. 608
large number of courts that have refused to adopt the majority's
view have done so for very good, practical reasons. The Court has
adopted a rule that will be difficult to administer, that presents
a serious risk of unfairness for those in petitioner's position,
and that fails to foster the law's normal regard for finality.
The majority's position requires it to establish procedures to
prevent a double recovery of the elements of damages awarded Gaudet
in his own lawsuit. This is no easy task, as "[i]t should be
obvious that, as yet, no satisfactory systematic solution to the
whole [double recovery] problem has been found." [
Footnote 2/20] The Court adopts a collateral
estoppel theory, and apparently would implement this by treating
the injured seaman as a "fiduciary" for his dependents.
Ante at
414 U. S.
593-594. Apart from the utter novelty of this extension
of the law of trusts and fiduciary duties, the majority's estoppel
theory is hardly a "satisfactory solution" to the problem of unfair
recoveries. [
Footnote 2/21]
Apparently the Court intends to limit the elements
Page 414 U. S. 609
of proof of damages that may be introduced at the second trial.
But this will in no way guarantee that the second trier of fact
will succeed in compartmentalizing the allowable from the
unallowable elements of damages in the second trial. The highly
conceptualized nature of the parsing of categories of damages
undertaken by the Court suggests how unlikely it is that the
majority's theoretical distinctions will be meaningful in practice.
And control by way of appellate review of the injustices that are
bound to occur will be, practically speaking, an impossible
task.
Mr. Gaudet's judgment was given by a jury. It would be
unrealistic to assume that that verdict was restricted to an
objective measurement of Gaudet's lost earnings plus the "value" of
his pain and suffering. In all likelihood, Gaudet's award reflected
an element of the jury's concern for a permanently disabled working
man. As anyone who has tried jury cases knows, jury sympathy
commonly overcomes a theoretical inability to recover for such
intangibles as loss of society. If Mrs. Gaudet is then allowed to
recover in her subsequent lawsuit the full value, whatever that is,
of her loss of love, attention, care, affection, companionship,
comfort, and protection, she will be given a second opportunity to
benefit from the imprecision built into any award for injuries that
cannot be measured objectively. The Gaudet family may well then
receive substantially more than just compensation for its
injuries.
One expression of jury sympathy is commonplace, despite its
conflict with the damages principles that, in theory control. But
certainly two opportunities for
Page 414 U. S. 610
jury sentiment cross the line between benignity and bonanza and
should not be sanctioned. And it is in those cases where the
decedent's suit and the subsequent
Moragne wrongful death
action are both tried to juries that the majority's procedures for
preventing a windfall are most likely to break down. Since it is an
admiralty action, a
Moragne claim, by itself, will not
entitle the wrongful death claimant to a jury. But there will be
cases in which the claimant will be able to join a state law action
to a
Moragne claim and obtain a jury for both, either in
state or federal court.
See ante at
414 U. S. 589
n. 24. When that happens, those in petitioner's position will be
subjected twice to the vagaries of a jury, the second time on such
wide-open damages concepts as those embraced by the majority.
The Court's approval of a second recovery based on the same
wrong for which decedent already had recovered, compounded by its
rejection of traditional admiralty "pecuniary loss" damage
standards, seems particularly inappropriate given the nature of the
claim relied on by both Gaudets. The maritime concept of
unseaworthiness is not based on fault. The doctrine has evolved
into a judicially created form of strict liability. [
Footnote 2/22] When the law imposes
absolute liability, it often restricts recovery to damages for
those injuries that are clearly ascertainable and susceptible of
monetary compensation.
E.g., Igneri v. Cie. de Transports
Oceaniques, 323 F.2d 257, 268 (CA2 1963),
cert.
denied, 376 U.S. 949 (1964). This reflects the impossibility
of deterrence and the inappropriateness of punishment in many cases
where liability is absolute. The Court has broken with that wise
rule of social policy in this case.
Page 414 U. S. 611
The Court also has ignored the law's normal regard for an end to
duplicative litigation arising from the same transaction. After her
husband's judgment was affirmed on appeal, [
Footnote 2/23] Mrs. Gaudet commenced this action by, in
essence, changing a few lines in her husband's complaint and filing
it again in the same United States District Court as a
Moragne wrongful death action. That court's dismissal of
Mrs. Gaudet's complaint on
res judicata grounds [
Footnote 2/24] is hardly surprising,
given the striking similarities between the two Gaudet complaints.
Both complaints were based on the maritime doctrine of
unseaworthiness, a condition that Mrs. Gaudet alleged was
established as a matter of
res judicata by Mr. Gaudet's
successful lawsuit. App. 2, 5-6. The same facts and injuries were
alleged.
Id. at 1-2, 5. Both sought recovery, in the
amount of $250,000.
Id. at 2, 6. Whereas Mr. Gaudet had
sought recovery for lost earnings,
id. at 2, Mrs. Gaudet
sought compensation for her "severe financial loss."
Id.
at 5. Thus, on the face of the complaints, Mrs. Gaudet apparently
sought recovery solely for elements of damages that had been
encompassed by her husband's judgment. [
Footnote 2/25]
There should be strong reasons of policy to justify such
repetitive suits and to impose on petitioner the attendant doubling
of litigation expenses. The reasons advanced by the majority
opinion do not, in my view, approach that level of persuasion.
Petitioner has already fully litigated, and paid, a large judgment
compensating
Page 414 U. S. 612
Gaudet's estate for the injuries Gaudet incurred on board its
vessel. Ordinarily, petitioner would have been able to consider the
case closed and to order its affairs on the basis of a verdict
affirmed on appeal. Today's result deprives petitioner of that
reliance interest, subjecting it to another round of litigation
with wide-open damages possibilities. The admiralty precedents, the
prevailing weight of state law, and elementary fairness call for
relieving petitioner of that unjustifiable burden.
As noted at the outset of this dissent, the Court has written
new admiralty law as to the right of survivors to recover for
wrongful death, and has expanded significantly the elements of
damages recoverable. In reaching these results, the majority
opinion has discredited, if not in substance overruled, the
unanimous decisions of the Court in the
Mellon and
Flynn cases. In
Moragne, a decision on which I
believe the majority places a mistaken reliance, the Court
emphasized its reluctance to disregard or overrule established
precedent:
"Very weighty considerations underlie the principle that courts
should not lightly overrule past decisions. Among these are the
desirability that the law furnish a clear guide for the conduct of
individuals, to enable them to plan their affairs with assurance
against untoward surprise; the importance of furthering fair and
expeditious adjudication by eliminating the need to relitigate
every relevant proposition in every case; and the necessity of
maintaining public faith in the judiciary as a source of impersonal
and reasoned judgments. The reasons for rejecting any established
rule must always be weighed against these factors."
398 U.S. at
398 U. S. 403.
Mr. Justice Harlan, for the Court, then went on to state with care
the reasons for rejecting
The Harrisburg
Page 414 U. S. 613
rule, described as an "unjustifiable anomaly."
Id. at
398 U. S. 404.
The substantive rule rejected today is no comparable anomaly. It
has been the generally applied doctrine since wrongful death
actions were introduced in this country. It has been the rule of
the relevant federal statutes since their inception, and Congress
has not modified the rule during that entire period. It was the
rule announced in
Mellon and
Flynn, supra, cases
the Court chooses not to follow today. And, unlike the opinion in
Moragne, the majority has not provided, in my view, sound
reasons of precedent or policy for overturning the rule.
[
Footnote 2/1]
46 U.S.C. § 688. The Jones Act provides:
"Any seaman who shall suffer personal injury in the course of
his employment may, at his election, maintain an action for damages
at law, with the right of trial by jury, and in such action all
statutes of the United States modifying or extending the common law
right or remedy in cases of personal injury to railway employees
shall apply; and in case of the death of any seaman as a result of
any such personal injury the personal representative of such seaman
may maintain an action for damages at law with the right of trial
by jury, and in such action all statutes of the United States
conferring or regulating the right of action for death in the case
of railway employees shall be applicable. Jurisdiction in such
actions shall be under the court of the district in which the
defendant employer resides or in which his principal office is
located."
Since the Act employs the terms "in the course of his employment
. . . ," the cause of action it provides "follows from the seaman's
employment status, and is not limited to injury or death occurring
on the high seas."
Moragne v. States Marine Lines,
398 U. S. 375,
398 U. S. 394
(1970). Proof of negligence is a predicate to recovery.
Ibid.
[
Footnote 2/2]
The second such statute, the Death on the High Seas Act, is
discussed below.
See text
infra at
414 U. S.
599-601 and nn.
414
U.S. 573fn2/4|>4-6.
[
Footnote 2/3]
Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257,
266 (CA2 1963),
cert. denied, 376 U.S. 949 (1964).
[
Footnote 2/4]
46 U.S.C. § 761
et seq. The opening section of the
Death on the High Seas Act, 46 U.S.C. § 761, provides:
"Whenever the death of a person shall be caused by wrongful act,
neglect, or default occurring on the high seas beyond a marine
league from the shore of any State, or the District of Columbia, or
the Territories or dependencies of the United States, the personal
representative of the decedent may maintain a suit for damages in
the district courts of the United States, in admiralty, for the
exclusive benefit of the decedent's wife, husband, parent, child,
or dependent relative against the vessel, person, or corporation
which would have been liable if death had not ensued."
[
Footnote 2/5]
But see Pickles v. F. Leyland & Co., 10 F.2d 371
(Mass.1925).
Pickles holds that, if the death occurs on
land, the High Seas Act is not applicable, even though the injuries
ultimately producing death were inflicted at sea.
Id. at
372. If this were the correct view, it would be easy to see why
cases like the instant one had not previously arisen under the High
Seas Act. The Act would simply not allow actions like the present
one. However, the Act says "death . . . caused by wrongful act,
neglect, or default occurring on the high seas . . . ," not "death
occurring on the high seas."
See n.
414
U.S. 573fn2/4|>4,
supra. Pickles,
therefore, is probably an erroneous reading of the Act.
[
Footnote 2/6]
Section 765 reads:
"If a person die as the result of such wrongful act, neglect, or
default as is mentioned in section 761 of this title [
see
414
U.S. 573fn2/4|>n. 4,
supra] during the pendency in
a court of admiralty of the United States of a suit to recover
damages for personal injuries in respect of such act, neglect, or
default, the personal representative of the decedent may be
substituted as a party and the suit may proceed as a suit under
this chapter for the recovery of [pecuniary losses]."
[
Footnote 2/7]
See 414
U.S. 573fn2/1|>n. 1,
supra.
[
Footnote 2/8]
G. Gilmore C. Black, The Law of Admiralty 308 (1957).
[
Footnote 2/9]
E.g., Roberts v. Union Carbide Corp., 415 F.2d 474 (CA3
1969) (New Jersey law);
Schlavick v. Manhattan Brewing
Co., 103 F.
Supp. 744 (ND Ill.1952) (Indiana law). The cases are reviewed
in W. Prosser, The Law of Torts 911-912 (4th ed.1971) (hereafter
Prosser); 2 F. Harper & F. James, The Law of Torts § 24.6 (1956
and Supp. 1968); Fleming, The Lost Years: A Problem in the
Computation and Distribution of Damages, 50 Calif.L.Rev. 598, 599,
608-609 (1962) (hereafter Fleming). The latter commentator notes
that "[a]t least twenty-three jurisdictions . . . have so held in
the clearest terms, and some half a dozen more have so indicated in
dicta."
Id. at 608-609, n. 38. Nine or 10 contrary
jurisdictions constitute a "substantial minority view" according to
Prosser 912 and nn. 35-39. However, Prosser notes that this view is
"largely confined to jurisdictions which do not allow the decedent
to recover for his own curtailed life. . . ."
Id. at 912.
As the Court points out,
ante at
414 U. S.
593-594, the
Moragne cause of action is not
subject to that limitation.
[
Footnote 2/10]
Restatement of Torts, Explanatory Notes § 925, comment a, p. 639
(1939). This position is repeated almost verbatim in the most
recent working draft of the second Restatement.
See
Restatement (Second) of Torts, Explanatory Notes § 925, comment a,
p. 196 (Tent.Draft No.19, Mar. 30, 1973).
See also
Restatement of Torts, Explanatory Notes § 926, comment a, p.
646:
"[In those states with statutes combining the functions of a
death statute and a survival statute] the representatives of the
deceased can recover in a single action both for the damages
preceding death and for those caused by the death. Even in such
States however, a judgment obtained by the deceased or a release of
the cause of action by him terminates the right of action."
Accord, Restatement (Second) of Torts, Explanatory
Notes § 926, comment
a, p. 204.
See also id.
Explanatory Notes § 925, comment
i, p. 199:
"[A] release of his claim by the injured person bars an action
after his death for causing the death, as also does a judgment
either for, or if on the merits, against him given in an action
brought by him for the tort."
[
Footnote 2/11]
E.g., 2 Harper & James,
supra at
1293-1294:
"If . . . deceased recovers before his death, his recovery for
permanent injuries will be based, under the prevailing American
rule, on his prospective earnings for the balance of his life
expectancy at the time of his injury
undiminished by any
shortening of that expectancy as a result of the injury.
Presumably, any settlement would reflect the legal liability under
this rule. The danger of double recovery becomes clear when it is
recalled that any benefits of which the survivors were deprived by
the death would have come out of these very prospective earnings if
deceased had lived. At least in the case of serious and apparently
permanent injuries, therefore, there is real danger of double
recovery if a wrongful death action is allowed after recovery or
release by deceased during his lifetime."
(Emphasis in original; citations omitted.)
See id. at
n. 14: "[Double recovery] is a
theoretical' as well as a
`practical' danger. . . . The prevailing rules . . . seem therefore
to be fully justified." (Citation omitted.) See also
Prosser 911:
"The courts undoubtedly have been influenced by a fear of double
recovery. This is, of course possible, in point of law, not only
under the survival type of death act, but also in any jurisdiction
where the decedent would be allowed to recover for the prospective
earnings lost through his diminished life expectancy."
(Citations omitted.) The latter appears to have been the measure
of Mr. Gaudet's recovery in his personal injury action. 463 F.2d
1331, 1333 n. 1 (CA5 1972); Tr. of Oral Arg. 20-21.
[
Footnote 2/12]
E.g., Duffey, The Maldistribution of Damages in
Wrongful Death, 19 Ohio St.L.J. 264, 273 (1958): in such cases,
"[t]he recovery in the wrongful death action based on the
decedent's future earning capacity is . . . simply a portion or
segment of the larger recovery obtained by the injured person
himself in the personal injury action."
See 414
U.S. 573fn2/11|>n. 11,
supra.
[
Footnote 2/13]
Fleming 610.
"[The fear of duplication of damages] has force . . . whenever
allowance was made for prospective loss of earnings [in the
decedent's own lawsuit], since this would have drawn on, or
depleted, the fund contingently available to satisfy the dependants
for loss of their expectancy of support."
This commentator also states that the minority of state courts
that do not view decedent recovery as a bar to a subsequent
wrongful death action and that are
"content with the bland assertion that no duplication of damages
can arise because the release or recovery by the decedent
could
not have covered the period beyond his death . . ."
are relying on a "protestation of faith, rather than a
conclusion drawn from proven facts. . . ."
Id. at 615
(emphasis in original).
[
Footnote 2/14]
I do not address the correctness of the Court's holding that
Moragne allows the recovery of loss of services,
see,
e.g., Michigan C. R. Co. v. Vreeland, 227 U. S.
59,
227 U. S. 71,
227 U. S. 73
(1913), or funeral expenses.
Compare Cities Service Oil Co. v.
Launey, 403 F.2d 537, 540 (CA5 1968),
with Greene v.
Vantage S.S. Corp., 466 F.2d 159, 167 (CA4 1972).
[
Footnote 2/15]
46 U.S.C. § 762. Section 762 provides:
"The recovery in such suit shall be a fair and just compensation
for the pecuniary loss sustained by the persons for whose benefit
the suit is brought and shall be apportioned among them by the
court in proportion to the loss they may severally have suffered by
reason of the death of the person by whose representative the suit
is brought."
[
Footnote 2/16]
E.g., Igneri v. Cie. de Transports Oceaniques, 323 F.2d
at 266 n. 21;
Middleton v. Luckenbach S.S. Co., 70 F.2d
326, 330 (CA2),
cert. denied, 293 U.S. 577 (1934).
See
Dugas v. National Aircraft Corp., 438 F.2d 1386, 1392 (CA3
1971) ("The amount of recovery under the Death on the High Seas Act
is determined by the actual pecuniary loss sustained by the
beneficiary due to the wrongful death").
[
Footnote 2/17]
E.g., Igneri v. Cie. de Transports Oceaniques, supra,
at 266 ("[I]t is established . . . that the damages recoverable by
a seaman's widow suing for wrongful death under the Jones Act do
not include recovery for loss of consortium").
Cf. Cities
Service Oil Co. v. Launey, supra, at 540.
See Gulf, C.
& S. F. R. Co. v. McGinnis, 228 U.
S. 173,
228 U. S. 175
(1913);
Michigan C. R. Co. v. Vreeland, supra, at
227 U. S. 68,
227 U. S. 70-71;
G. Gilmore & C. Black, The Law of Admiralty 306 (1957):
"Recovery under the High Seas Act like that, under FELA § 51
[and thus the Jones Act] is based on pecuniary loss to the
beneficiaries as a result of the wrongful death. The damage
calculation therefore involves an estimate of what the decedent's
life expectancy would have been, his probable earnings during that
period and the amounts he would have contributed to
beneficiaries."
[
Footnote 2/18]
E.g., Simpson v. Knutsen, 444 F.2d 523 (CA9 1971);
Petition of United States Steel Corp., 436 F.2d 1256, 1279
(CA6 1970),
cert. denied, 402 U.S. 987 (1971);
In re
Cambria S.S. Co., 353 F.
Supp. 691, 697-698 (ND Ohio 1973);
Green v.
Ross, 338 F.
Supp. 365,
367 (SD
Fla.1972);
Petition of Canal Barge Co., 323 F.
Supp. 805, 820-821 (ND Miss.1971). The state courts of
Louisiana, the State where Mr. Gaudet's injuries occurred, have
reached the same result.
Strickland v. Nutt, 264 So. 2d
317, 322 (La.App.),
aff'd sub nom. DeRouen v. Nutt, 262
La. 1123, 266 So. 2d 432 (1972). ("The
Moragne case, with
the desire for uniformity in maritime death actions announced
therein, precludes loss of love and affection as an element of
damage here.")
Only one Fifth Circuit case, other than the instant case, and
two cases from the United States District Court for the Eastern
District of Louisiana have concluded that
Moragne signaled
a break with settled admiralty wrongful death damages rules.
Dennis v. Central Gulf S.S. Corp., 453 F.2d 137,
cert.
denied, 409 U.S. 948 (1972);
In re Farrell Lines,
Inc., 339 F. Supp.
91 (1971);
In re Sincere Navigation
Corp., 329 F.
Supp. 652 (1971). In the latter case, the court candidly
admitted that its decision "may conflict with
Moragne's
goal of uniformity of recovery for all who perish on navigable
waters."
Id. at 657.
[
Footnote 2/19]
The majority's opinion, apparently in an effort to avoid the
force of precedent contrary to its view, contrasts disparagingly
these statutes with the more "humane" judge-made rule of
Moragne. Ante at
414 U. S.
581-583. But the majority ignores the extent to which
the Court in
Moragne expressly identified its holding with
the policy and principles of the very statutes now criticized:
"The policy thus established [by the state and federal wrongful
death statutes] has become itself a part of our law, to be given
its appropriate weight not only in matters of statutory
construction but also in those of decisional law."
398 U.S. at
398 U. S.
390-391. And again:
"Both the Death on the High Seas Act and the numerous state
wrongful death acts have been implemented with success for decades.
The experience thus built up counsels that a suit for wrongful
death raises no problems unlike those that have long been grist for
the judicial mill."
Id. at
398 U. S.
408.
Contrary to the Court's intimations, there is no basis for
suggesting a tension between these statutes and
Moragne.
Indeed, it is clear from the
Moragne opinion that the
Court relied upon the statutes in its analysis, sought only to fill
a narrow gap in the law left by them, and considered that the
statutes afforded "persuasive analogy for guidance" in developing
the
Moragne cause of action.
Ibid.
[
Footnote 2/20]
Prosser 912 (footnote omitted).
[
Footnote 2/21]
The theory probably creates more problems than it resolves. What
are the boundaries of the class of potential beneficiaries who are
estopped to relitigate loss of support? If a seriously injured
person is the fiduciary for an undefined class of potential
beneficiaries, may he be enjoined from wasting his assets or
disinheriting members of his family? There will also be some nice
questions under the majority's approach about whether a particular
item of proof at the second trial is to be introduced with regard
to the forbidden issue of support or the permissible issue of, say,
services.
[
Footnote 2/22]
Moragne v. States Marine Lines, 398 U.S. at
398 U. S. 399.
Cf. Comment, Maritime Wrongful Death After
Moragne: The Seaman's Legal Lifeboat, 59 Geo.L.J. 1411 n.
4 (1971).
[
Footnote 2/23]
Stein v. Sea-Land Services, Inc., 440 F.2d 1181 (CA5
1971). It might be noted that, because Gaudet's death intervened
between the jury verdict and the appeal, his recovery went directly
to his estate, not to him personally.
[
Footnote 2/24]
Pet. for Cert. 17.
[
Footnote 2/25]
Although the majority fails to address the point, presumably its
result means that Mrs. Gaudet must at least amend her complaint
upon remand to the District Court.