480. Generally
Measure of damages is compensation for deprivation of reasonable expectation of pecuniary benefits that would have resulted from continued life of deceased. Sabine Towing Co. v Brennan (1936, CA5 Tex) 85 F2d 478, cert den 299 US 599, 81 L Ed 441, 57 S Ct 191, reh den 299 US 624, 81 L Ed 459, 57 S Ct 234.
In action brought under 46 USCS Appx section 688, primary element of pecuniary loss to families of deceased seaman is loss of decedent’s earning capacity for remainder of decedent’s work-life expectancy. Sweeney v American S.S. Co. (1974, CA6 Ohio) 491 F2d 1085.
In action for wrongful death on high seas under Jones Act, deceased seaman’s survivors are limited to recovering damages of pecuniary nature. Do Carmo v F.V. Pilgrim I. Corp. (1979, CA1 Mass) 612 F2d 11, 5 Fed Rules Evid Serv 422, cert den 446 US 956, 64 L Ed 2d 815, 100 S Ct 2928.
General federal maritime survival action pre-empts state law and although Jones Act does not provide recovery for future economic loss in survival actions, future economic loss, punitive damages, and prejudgment interest may be recovered in such action. Evich v Morris (1987, CA9 Wash) 819 F2d 256.
Jones Act and Death on the High Seas Act do not permit survival claims brought by estates of seamen for lost future earnings, and such damages will not be awarded under general maritime law. Davis v Bender Shipbuilding & Repair Co. (1994, CA9 Alaska) 27 F3d 426, 94 CDOS 4626, 94 Daily Journal DAR 8580, 1994 AMC 2587, cert den (1994, US) 130 L Ed 2d 418.
Damages to be awarded under claim for decedent seaman under 46 USCS Appx section 688 are equivalent to compensation for depreciation of reasonable expectation of pecuniary benefits that would have resulted from continued life of deceased. Otis v State (1944, Ct Cl) 47 NYS2d 755.
In action under 46 USCS Appx section 688 amount of pecuniary contribution of decedent seaman to his wife and consequent financial loss to wife or widow must in turn be divided into two distinct periods: (1) time from death of deceased to time of ascertainment of damages, and is amount receivable at present time based upon determination of payments from death to date of ascertainment of damages, and would not be subject to ascertainment of present worth of such sum; (2) future financial loss widow would reasonably be expected to suffer based upon reasonable expectancy of life. Holliday v Pacific Atlantic S.S. Co. (1953, DC Del) 117 F Supp 729, affd (CA3 Del) 212 F2d 206.
Measure of recovery under 46 USCS Appx section 688 is pecuniary loss sustained by beneficiaries; amount of money that beneficiary might reasonably have expected to receive if decedent had lived cannot be determined with perfect accuracy; basic questions to be considered are how much money would decedent have had available for contribution to his beneficiaries, and how much of that amount would he have contributed to them; decedent’s earning capacity is of primary importance; elements of decedent’s earning capacity are actual earnings of decedent during period before his death, his health, diligence and work habits in general, prospects for advancement, and economic conditions of industry in which he was employed, life expectancy and work expectancy. Petition of Risdal & Anderson, Inc. (1968, DC Mass) 291 F Supp 353.
Survivors of decedent, killed in collision on territorial waters while employed as seaman, may recover both pecuniary and nonpecuniary damages under Jones Act and general maritime law. Re Farrell Lines, Inc. (1971, ED La) 339 F Supp 91.
Survivor may recover under 46 USCS Appx section 688 for actual financial contributions decedent would have made during his normal anticipated lifespan; proper measure of damages for such loss of support is reasonable pecuniary expectancy of each survivor over remainder of life expectancy of decedent or survivor, whichever is shorter; spouse and child survivors may recover upon proper showing for loss of prospective inheritance which might have been received if decedent had not died prior to his anticipated life expectancy; court must determine: (1), whether decedent, if he had lived normal life expectancy, would have amassed inheritable estate, and (2) whether each survivor-claimant would continue to be natural object of his affection and beneficence if he lived out his expectancy; proper focus is on financial loss suffered by each survivor with reference to decedent’s history of earnings and contributions and anticipated future earning potential as means of establishing maximum monetary amount available for distribution as such financial losses are proved; children of decedent are entitled to recovery for pecuniary loss of nurture, guidance and training occasioned by death of their parent; in determining amount of loss suffered by children, court should take into account evidence that decedent periodically was absent from his home for employment purposes and that similar absences could be anticipated in future; loss of decedent’s services is recoverable under 46 USCS Appx section 688; loss of decedent’s society is not recognizable element of damages under 46 USCS Appx section 688 because it represents nonpecuniary loss; survivors suing under 46 USCS Appx section 688 cannot recover damages for nonpecuniary losses such as mental anguish and grief. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
Pecuniary loss or reasonable expectation of such loss is only element of damage that may be considered in awarding verdict in action for wrongful death under 46 USCS Appx section 688. American Barge Line Co. v Leatherman’s Adm’x. (1947) 306 Ky 284, 206 SW2d 955.
481. Relation to Federal Employer’s Liability Act (45 USCS section section 51 et seq.)
46 USCS Appx section 688, which incorporates by reference 45 USCS section section 51 et seq., allows for recovery of damages equivalent to compensation for deprivation of reasonable expectation of pecuniary benefits that would have resulted from continued life of deceased seaman and amount of contribution by decedent during lifetime to claimed beneficiary has direct bearing on issue of reasonable expectation. Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622.
Administrator of estate in action for death of plaintiff’s decedent, crew member of tug, who was drowned as result of collision between tug and wooden float owned by railroad which it was towing, was not entitled to recover economic value of decedent’s life for period of his probable life expectancy since issue was governed by provisions of 45 USCS section section 51 et seq. Hickman v Taylor (1948, CA3 Pa) 170 F2d 327, cert den 336 US 906, 93 L Ed 1071, 69 S Ct 485, reh den 336 US 921, 93 L Ed 1083, 69 S Ct 636.
No recovery could be had for economic value of balance of decedent’s unexpired normal expectancy of life. Holliday v Pacific Atlantic S.S. Co. (1953, DC Del) 117 F Supp 729, 1954 AMC 784, affd (CA3 Del) 212 F2d 206, 1954 AMC 792; Downie v United States Lines Co. (1964, ED Pa) 231 F Supp 192, 1964 AMC 2289, revd on other grounds (CA3 Pa) 359 F2d 344, cert den 385 US 897, 17 L Ed 2d 130, 87 S Ct 201.
In action for wrongful death of unmarried seaman leaving parents surviving him, damages to be awarded are equivalent to compensation for the depreciation of reasonable expectation of pecuniary benefits that would have resulted from the continued life of deceased, and need not be apportioned. Tate v C. G. Willis, Inc. (1957, DC Va) 154 F Supp 402; Otis v State (1944, Ct Cl) 47 NYS2d 755.
Under 46 USCS Appx section 688, measure of damages for death of seaman as result of personal injury in course of employment is that provided in 45 USCS section 51. Petition of Gulf Oil Corp. (1963, DC RI) 221 F Supp 1000.
Survivor may recover under 46 USCS Appx section 688 for actual financial contributions decedent would have made during his normal anticipated lifespan; proper measure of damages for such loss of support is reasonable pecuniary expectancy of each survivor over remainder of life expectancy of decedent or survivor, whichever is shorter; in calculating decedent’s future earnings over his work-life expectancy, from which support contributions would have been made, any future inflationary effect on wages is not to be considered survivor’s future pecuniary loss must be discounted to present value for purposes of present payment by employing appropriate interest rate prevailing at time and place of trial; spouse and child survivors may recover upon proper showing for loss of prospective inheritance which might have been received if decedent had not died prior to his anticipated life expectancy; court must determine: (1), whether decedent, if he had lived normal life expectancy, would have amassed inheritable estate, and (2), whether each survivor-claimant would continue to be natural object of his affection and beneficence if he lived out his expectancy; proper focus is on financial loss suffered by each survivor with reference to decedent’s history of earnings and contributions and anticipated future earning potential as means of establishing maximum monetary amount available for distribution as such financial losses are proved; children of decedent are entitled to recovery for pecuniary loss of nurture, guidance and training occasioned by death of their parent; in determining amount of loss suffered by children, court should take into account evidence that decedent periodically was absent from his home for employment purposes and that similar absences could be anticipated in future; loss of decedent’s services is recoverable under 46 USCS Appx section 688; loss of decedent’s society is not recognizable element of damages under 46 USCS Appx section 688 because it represents nonpecuniary loss; survivors suing under 46 USCS Appx section 688 cannot recover damages for nonpecuniary losses such as mental anguish and grief. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
482. Nonpecuniary losses
Widow and children of seaman who fell from submersible oil-drilling barge located on territorial waters and drowned may recover pecuniary damages under Jones Act and nonpecuniary damages under general maritime claim of unseaworthiness. Landry v Two R. Drilling Co. (1975, CA5 La) 511 F2d 138, 19 FR Serv 2d 1461, reh den (CA5 La) 517 F2d 675.
Award of nonpecuniary damages under 46 USCS section 688, for wrongful death, is improper and may not stand. Ivy v Security Barge Lines, Inc. (1978, CA5 Miss) 585 F2d 732, on reh (CA5 Miss) 606 F2d 524, cert den 446 US 956, 64 L Ed 2d 815, 100 S Ct 2927, reh den 448 US 912, 65 L Ed 2d 1173, 101 S Ct 27 and on remand (ND Miss) 89 FRD 322.
Jones Act claim may be joined with wrongful death claim for nonpecuniary damages based on general maritime law where incident does not arise on high seas, and nonpecuniary damages may be recovered under unseaworthiness claim. Hlodan v Ohio Barge Line, Inc. (1980, CA5 Miss) 611 F2d 71.
Plaintiff may recover pecuniary damages under Jones Act and nonpecuniary damages under general maritime law for heart attack death of seaman. Smith v Ithaca Corp. (1980, CA5 Tex) 612 F2d 215, 5 Fed Rules Evid Serv 885.
Survivors cannot recover damages for nonpecuniary losses under 46 USCS Appx section 688; however, recovery under section 688 encompasses nonpecuniary damage elements of general maritime law. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
Family members of seaman under 46 USCS Appx section 688 may recover nonpecuniary damages against nonemployer third-party defendant on products liability theory. Gerdes v G & H Towing Co. (1997, SD Tex) 967 F Supp 943.
Award of nonpecuniary damages to personal representative of seaman who died on ship docked on territorial waters after inhaling hydrogen sulfide fumes is proper, where claims have been made under both Jones Act and general maritime law. Consolidated Machines, Inc. v Protein Products Corp. (1976, MD Fla) 428 F Supp 209.
483. Claims by parents
When beneficiaries in action under 46 USCS Appx section 688 are parents of adult child, pecuniary loss must be alleged and proved in action for death. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224, 1945 AMC 887; Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622, 1949 AMC 151.
In order to make recovery on behalf of father under 46 USCS Appx section 688 for wrongful death of son, it is only necessary to establish that father had reasonable expectation of pecuniary benefit from continued life of son. Wade v Rogala (1959, CA3 Pa) 270 F2d 280, 2 FR Serv 2d 49.
Parents can recover only when seaman is not survived by spouse or children. Sistrunk v Circle Bar Drilling Co. (1985, CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
Parents of seaman drowned following collision of 2 vessels are not entitled to damages under 46 USCS section 688 for pre-death pain and suffering, loss of support and services, loss of inheritance, or loss of society, because although pain and suffering of drowning seaman is compensable injury, parents failed to show decedent was conscious when drowned, evidence of support and services was speculative, parents produced no evidence of “reasonable expectation of pecuniary benefit,” and loss of society are non-pecuniary damages; however, burial and funeral expenses are recoverable as pecuniary damages under 46 USCS section 688. Neal v Barisich, Inc. (1989, ED La) 707 F Supp 862.
Dependency of parent upon decedent for financial assistance is not element of damages in case under 46 USCS Appx section 688; recovery is based on deprivation of pecuniary benefits which beneficiary might have reasonably received if decedent had not died. Presley v Upper Mississippi Towing Corp. (1961, La App 1st Cir) 141 So 2d 411.
In action under 46 USCS Appx section 688 measure of damages is loss of pecuniary benefits reasonably expected to be given to parent by deceased seaman, there can be no recovery for grief, wounded feelings, or loss of society or companionship. Standard Products, Inc. v Patterson (1975, Miss) 317 So 2d 376.
Evidence that 18 year old seaman contributed one-half his earnings of $2,660 to his parents supported jury verdict of $ 4,000 for seaman’s death, and trial court erred in ordering additur of $ 6,000 or alternative new trial. Standard Products, Inc. v Patterson (1975, Miss) 317 So 2d 376.
In death action under 46 USCS Appx section 688 measure of damages is loss of pecuniary benefits reasonably expected to be given to parent by deceased seaman. Standard Products, Inc. v Patterson (1975, Miss) 317 So 2d 376.
484. Nonsupport
The fact that seaman did not contribute to support of his wife during five years immediately preceding his death, and she made no attempt to compel him to do so, did not bar her from recovery, but extent of decedent’s past contributions to his spouse did, however, bear on issue of damages. Orona v Isbrandtsen Co. (1963, CA2 NY) 313 F2d 241, 1963 AMC 588.
In action for wrongful death on high seas premised on Jones Act (46 USCS Appx section 688), deceased seaman’s survivors are limited to recovering damages of pecuniary nature, and jury’s failure to award damages despite finding of liability did not create anomaly since jury was entitled to find on conflicting evidence before it that seaman’s family had suffered no pecuniary loss; that is, based on past practices, seaman likely would have contributed little or nothing to his family in future. Do Carmo v F.V. Pilgrim I. Corp. (1979, CA1 Mass) 612 F2d 11, 5 Fed Rules Evid Serv 422, cert den 446 US 956, 64 L Ed 2d 815, 100 S Ct 2928.
In action brought under 46 USCS Appx section 688, presumption is that seaman’s minor children and widow suffered pecuniary injury by death; this is so even though they did not receive contribution from seaman during life to entitle widow and children to damages; evidence must show reasonable expectation of pecuniary benefit from decedent had he lived. Re Uravic’s Estate (1932) 142 Misc 775, 255 NYS 638.
485. Estrangement
In suit under 46 USCS Appx section 688 to recover damages for death of seaman, court erred in excluding evidence of strained relations between seaman and his wife, since it had bearing on amount of support seaman intended to contribute to his wife. Naylor v Isthmian S.S. Co. (1951, CA2 NY) 187 F2d 538, 1951 AMC 632.
In determining amount of loss suffered by children, court should take into account evidence that decedent periodically was absent from his home for employment purposes and that similar absences could be anticipated in future. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
486. Child’s prospects
In action to recover damages under 46 USCS Appx section 688, for death of seaman, it should be noted that children suffer pecuniary loss from death of father in addition to loss of his support, gifts, and similar financial contributions; that loss is commonly identified as loss of nurture and guidance; in determining pecuniary value of such loss consideration should be given to such factors as education and character of decedent at time and attention he devoted to his children when he was alive; prospects and character of child should also be considered. Petition of Risdal & Anderson, Inc. (1968, DC Mass) 291 F Supp 353.
Where it appears likely from seaman’s child’s environment that he would attend college, he will be allowed compensation for loss of support until 22nd birthday in action under 46 USCS Appx section 688. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 37, 105 S Ct 90).
487. Fringe benefits
In wrongful death action brought under 46 USCS Appx section 688, District Courts, in determining damages, including amount equal to sums that shipowner would have paid into decedent’s pension fund and other fringe benefits over remainder of his work-life expectancy was clearly erroneous. Sweeney v American S.S. Co. (1974, CA6 Ohio) 491 F2d 1085.
In action brought under, inter alia, 46 USCS Appx section 688, fringe benefits are to be included in assessing benefits which would have accrued to children of decedent. Mungin v Calmar S.S. Corp. (1972, DC Md) 342 F Supp 479.
488. Funeral expenses
Widow bringing action under 46 USCS Appx section 688 for death of decedent seaman is not entitled to recover funeral expenses where estate is liable for funeral expenses under state law. Henneberger v United States (1968) 185 Ct Cl 614, 403 F2d 237, reh den 187 Ct Cl 265, 407 F2d 1340.
Funeral expenses of deceased seaman are recoverable under 46 USCS Appx section 688 by person, here common-law wife of decedent, who became legally obligated to pay them. Moore v The O/S Fram (1963, SD Tex) 226 F Supp 816, affd (CA5 Tex) 328 F2d 868.
Funeral expenses are recoverable in wrongful death action under 46 USCS Appx section 688. Ivy v Security Barge Lines, Inc. (1976, ND Miss) 424 F Supp 1154, revd on other grounds (CA5 Miss) 585 F2d 732, on reh (CA5 Miss) 606 F2d 524, cert den 446 US 956, 64 L Ed 2d 815, 100 S Ct 2927, reh den 448 US 912, 65 L Ed 2d 1173, 101 S Ct 27 and on remand (ND Miss) 89 FRD 322.
489. Loss of consortium
For purposes of precluding double recovery, recovery for loss of society precludes recovery for loss of consortium. Skidmore v Grueninger (1975, CA5 La) 506 F2d 716.
Under 46 USCS Appx section 688 there can be no recovery for loss of consortium. Tate v C. G. Willis, Inc. (1957, DC Va) 154 F Supp 402.
Jones Act (46 USCS Appx section 688) does not provide recovery for loss of consortium, measure of damages is actual pecuniary loss sustained by beneficiaries of decedent. Savard v Marine Contracting, Inc. (1969, DC Conn) 296 F Supp 1171.
Seaman’s widow cannot recover on claims for loss of society, companionship and consortium, or for punitive damages, even though widow was dependent on deceased, because Supreme Court has ruled that nonpecuniary losses are not recoverable for wrongful death of seamen under Jones Act (46 USCS Appx section 688), Death on High Seas Act (46 USCS Appx section section 761 et seq.), or general maritime law, and widow’s claims are all nonpecuniary. Haltom v Lykes Bros. S.S. Co. (1991, ED Tex) 771 F Supp 179.
Action under 46 USCS Appx section 688 authorizes recovery by injured seaman’s wife for loss of society consortium. American Export Lines, Inc. v Alvez, 446 US 274, 64 L Ed 2d 284, 100 S Ct 1673.
490. Loss of nurture and guidance
In action brought under 46 USCS Appx section 688 by child of decedent, recoverable pecuniary loss may include compensation for loss of care, counsel, training, and education which child might have reasonably received from parent, and which can only be supplied by service of another for compensation. Sabine Towing Co. v Brennan (1936, CA5 Tex) 85 F2d 478, cert den 299 US 599, 81 L Ed 441, 57 S Ct 191, reh den 299 US 624, 81 L Ed 459, 57 S Ct 234.
Under 46 USCS Appx section 688, award for loss of care and guidance is limited to those cases in which services of decedent constituting such care and advice can be enumerated and their replacement value estimated. Petition of United States Steel Corp. (1970, CA6 Ohio) 436 F2d 1256, cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1649, reh den 403 US 940, 29 L Ed 2d 720, 91 S Ct 2247 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1660, reh den 403 US 924, 29 L Ed 2d 703, 91 S Ct 2227 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1665 and later app (CA6 Ohio) 479 F2d 489, cert den 414 US 859, 38 L Ed 2d 110, 94 S Ct 71 and (disapproved on other grounds Sea-Land Services, Inc. v Gaudet 414 US 573, 39 L Ed 2d 9, 94 S Ct 806, reh den 415 US 986, 39 L Ed 2d 883, 94 S Ct 1582) and (not followed Alfone v Sarno, 87 NJ 99, 432 A2d 857, 26 ALR4th 1237)).
Privation of parental nurture and guidance to minor child is element of pecuniary loss long recognized by federal decisions; its value varies directly with its quality and quantity; tortfeasor would not be able to avoid paying damages in form of beneficiary’s loss of decedents’ services where services of two decedents were deprived and had definite value, although value had not been established to penny; to allow tortfeasor to avoid paying damages because such damages are to some necessary extent imperfectly established would be unjust and unbearable. Higginbotham v Mobil Oil Corp. (1973, WD La) 360 F Supp 1140, affd in part and revd in part on other grounds (CA5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with on other grounds Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).
Children of decedent are entitled to recovery for pecuniary loss of nurture, guidance and training occasioned by death of their parent; in determining amount of loss suffered by children, court should take into account evidence that decedent periodically was absent from his home for employment purposes and that similar absences could be anticipated in future. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
491. Loss of services
In action brought under 46 USCS Appx section 688, decedent’s widow, in her capacity as personal representative for herself and her two minor children, was entitled to recover for loss of support and services. Landry v Two R. Drilling Co. (1975, CA5 La) 511 F2d 138, 19 FR Serv 2d 1461, reh den (CA5 La) 517 F2d 675.
It is reversible error to exclude expert testimony concerning economic value which decedent contributed to family, apart from his wages, by virtue of services performed around home. Morvant v Construction Aggregates Corp. (1978, CA6 Tenn) 570 F2d 626, 2 Fed Rules Evid Serv 994, cert dismd 439 US 801, 58 L Ed 2d 94, 99 S Ct 44.
Loss of decedents’ services is pecuniary loss allowable under 46 USCS Appx section 688, Death on High Seas Act, and general maritime law. Higginbotham v Mobil Oil Corp. (1973, WD La) 360 F Supp 1140, affd in part and revd in part on other grounds (CA5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with on other grounds Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).
Loss of decedent’s services is recoverable under 46 USCS Appx section 688. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
In action under 46 USCS Appx section 688 beneficiaries are entitled to recover for loss of services, such services included painting, plumbing, roofing, carpentry, electrical wiring, lawn mowing and like around the house; however, in considering amount to be awarded for these services, account must be taken of fact that in each instance some portion of husband’s activities reflected hobby interest rather than services of household nature. Petition of Marina Mercante Nicaraguense, S. A. (1965, NY) 248 F Supp 15, mod on other grounds (CA2 NY) 364 F2d 118, 3 ALR Fed 187, cert den 385 US 1005, 17 L Ed 2d 544, 87 S Ct 710, reh den 386 US 929, 17 L Ed 2d 803, 87 S Ct 851.
Recoverable damages under 46 USCS Appx section 688 include those for loss of services of child; jury is properly instructed to take into consideration ages of brothers and sisters of decedent, and whom he supported, as well as supported mother. Presley v Upper Mississippi Towing Corp. (1963, La App 1st Cir) 153 So 2d 416, cert den 244 La 1002, 156 So 2d 56 and cert den 244 La 1003, 156 So 2d 56.
492. Loss of society
46 USCS Appx section 688 permits recovery only for pecuniary loss, which does not include damages by way of recompense for grief or wounded feelings or losses which result from deprivation of society and companionship. Michigan C. R. Co. v Vreeland (1913) 227 US 59, 57 L Ed 417, 33 S Ct 192.
Damages for loss of society may not be recovered by survivor of Jones Act seaman who met death in territorial waters of United States as result of negligence for which his employer was liable. Ivy v Security Barge Lines, Inc. (1979, CA5 Miss) 606 F2d 524, cert den 446 US 956, 64 L Ed 2d 815, 100 S Ct 2927, reh den 448 US 912, 65 L Ed 2d 1173, 101 S Ct 27 and on remand (ND Miss) 89 FRD 322.
Loss of society is not recoverable under Jones Act (46 USCS Appx section 688). Nygaard v Peter Pan Seafoods, Inc. (1983, CA9 Wash) 701 F2d 77 (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd (US) 91 L Ed 2d 174, 106 S Ct 2485) and (disagreed with Curry v Chevron, USA (CA5 La) 779 F2d 272, 19 Fed Rules Evid Serv 1594).
Legislative remedy granted injured seaman under Jones Act (46 USCS Appx section 688) does not include right of spouse of injured seaman to recover her loss of society; neither Act nor case law permits recovery by child for loss of society of living parent. Madore v Ingram Tank Ships, Inc. (1984, CA5 Tex) 732 F2d 475.
Surviving parents of seamen drowned when drilling vessel on which seamen were crew members capsized cannot recover nonpecuniary damages under Jones Act for loss of their sons’ society where seamen were also survived by spouses and some of seamen were also survived by children, since, under 45 USCS section 51, parents can recover only when seaman is not survived by spouse or children. Sistrunk v Circle Bar Drilling Co. (1985, CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
In action brought under 46 USCS Appx section 688 to recover damages for death of son, award included recovery for loss of love and affection by parents. Re Farrell Lines, Inc. (1971, ED La) 339 F Supp 91.
Posthumous child’s damages are measured by loss of his father’s society. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
Parents of deceased seaman, in action under 46 USCS Appx section 688, may recover for loss of society; son of deceased seaman is entitled to claim damages caused by loss of father’s society under 46 USCS Appx section 688 and sum is not to be reduced because child’s mother has married and child has foster father. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
In action under 46 USCS Appx section 688, award should include damages for loss of society not limited solely to dependents of decedent. Hebert v Otto Candies, Inc. (1975, ED La) 402 F Supp 503.
Loss of decedent’s society is not recognizable element of damages under 46 USCS Appx section 688 because it represents nonpecuniary loss. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
Compensation for loss of love and affection is not recoverable as element in wrongful death action under 46 USCS Appx section 688 or Death On High Seas Act. Strickland v Nutt (1972, La App 1st Cir) 264 So 2d 317, cert den 262 La 1124, 266 So 2d 432.
493. –Recovery under general maritime law
Decedent’s dependants, claiming under Jones Act and general maritime law, are entitled to recover nonpecuniary damages for loss of love, affection, companionship, and society under general maritime law. Petition of M/V Elaine Jones (1975, CA5 Miss) 513 F2d 911, cert den 423 US 840, 46 L Ed 2d 60, 96 S Ct 71, and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
General maritime death claim for unseaworthiness may be joined with seaman’s death claim under 46 USCS Appx section 688 to permit recovery of Gaudet damages, including recovery for loss of society. Landry v Two R. Drilling Co. (1975, CA5 La) 517 F2d 675.
Award of nonpecuniary damages under general maritime law for wife and children’s loss of decedent’s society is proper in addition to award for pecuniary damages under Jones Act, where decedent’s death by drowning is result of tug’s unseaworthiness. Morvant v Construction Aggregates Corp. (1978, CA6 Tenn) 570 F2d 626, 2 Fed Rules Evid Serv 994, cert dismd 439 US 801, 58 L Ed 2d 94, 99 S Ct 44.
When death is caused in territorial waters by unseaworthiness, survivors of seaman may recover damages for loss of society under general maritime law in addition to any recovery permitted by Jones Act (46 USCS Appx section 688). Smith v Ithaca Corp. (1980, CA5) 612 F2d 215, 5 Fed Rules Evid Serv 885.
When seaman dies from indivisible injury caused in part by unseaworthiness and inflicted over period during which vessel of which he is member of crew cruised coastal waters and high seas, seaman’s survivors may recover damages for loss of society under general maritime law in addition to any damages recoverable under Jones Act (46 USCS Appx section 688) or DOHSA (46 USCS Appx section section 761 et seq.). Smith v Ithaca Corp. (1980, CA5) 612 F2d 215, 5 Fed Rules Evid Serv 885.
Nonpecuniary damages for loss of society in action based upon general maritime claim in addition to Jones Act claim for pecuniary damages can be recovered in action arising out of death of seaman. Cook v Ross Island Sand & Gravel Co. (1980, CA9 Or) 626 F2d 746.
Recovery under 46 USCS Appx section 688 encompasses nonpecuniary damage elements of general maritime law, particularly loss of society. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
494. Loss of inheritance
In action brought under 46 USCS Appx section 688, there may be no recovery for loss to estate itself; action exists primarily for benefit of individual beneficiaries and general losses to estate are not recoverable; nondependent and collateral relative should not recover for loss of inheritance, based solely upon his legal relationship to deceased as next of kin. Complaint of Cambria S.S. Co., etc. (1974, CA6 Ohio) 505 F2d 517, cert den 420 US 975, 43 L Ed 2d 655, 95 S Ct 1399.
Spouse and child survivors may recover upon proper showing for loss of prospective inheritance which might have been received if decedent had not died prior to his anticipated life expectancy; court must determine: (1), whether decedent, if he had lived normal life expectancy, would have amassed inheritable estate, and (2), whether each survivor-claimant would continue to be natural object of his affection and beneficence if he lived out his expectancy. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
495. Pain and suffering of decedent
46 USCS Appx section 688 does not preclude recovery by decedents estate for decedent seaman’s pain and suffering prior to death. Gillespie v United States Steel Corp. (1964) 379 US 148, 13 L Ed 2d 199, 85 S Ct 308 (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
In action under 46 USCS Appx section 688, element of pain and suffering of decedent may be included in judgment if it shown that injured person, while he lived, underwent compensable physical injury resulting in pain and suffering. Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622.
Those having right of recovery for wrongful death under Federal Employers’ Liability Act or 46 USCS Appx section 688 are entitled to damages for decedent’s conscious pain and suffering between time of injury and time of death; but where injury precedes negligent act, as where negligence is failure to provide reasonable and timely medical treatment, damages for conscious pain and suffering may be awarded only for pain endured between time of treatment and decedent’s death. Holliday v Pacific Atlantic S.S. Co. (1954, CA3 Del) 212 F2d 206.
Generally, damages for mental as well as for physical pain are recoverable, even where there is no physical pain because, for example, decedent was paralyzed before his death. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94.
In action under 46 USCS Appx section 688, parents of decedent seaman may recover damages for decedent’s conscious pain and suffering, calculation of which is largely within sound discretion of fact finder. Grantham v Quinn Menhaden Fisheries, Inc. (1965, CA4 SC) 344 F2d 590.
Under 46 USCS Appx section 688, award for pain and suffering is proper element for damages for recovery of pecuniary loss resulting from death of seaman where it can be shown that decedent experienced such pain before his death. Petition of United States Steel Corp. (1970, CA6 Ohio) 436 F2d 1256, cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1649, reh den 403 US 940, 29 L Ed 2d 720, 91 S Ct 2247 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1660, reh den 403 US 924, 29 L Ed 2d 703, 91 S Ct 2227 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1665 and later app (CA6 Ohio) 479 F2d 489, cert den 414 US 859, 38 L Ed 2d 110, 94 S Ct 71 and (disapproved on other grounds Sea-Land Services, Inc. v Gaudet 414 US 573, 39 L Ed 2d 9, 94 S Ct 806, reh den 415 US 986, 39 L Ed 2d 883, 94 S Ct 1582) and (not followed Alfone v Sarno, 87 NJ 99, 432 A2d 857, 26 ALR4th 1237)).
In action brought inter alia under 46 USCS Appx section 688, recovery was permitted for pain and suffering of decedent for injuries for which there could no doubt have been such pain and suffering; for injuries which could not be established to have occurred prior to death of decedent, no such recovery was permitted. Re Farrell Lines, Inc. (1971, ED La) 339 F Supp 91.
496. –Instantaneous or unconscious death
There can be no recovery under Federal Employers’ Liability Act or 46 USCS Appx section 688 for pain and suffering which is substantially contemporaneous with death. Great N. R. Co. v Capital Trust Co. (1916) 242 US 144, 61 L Ed 208, 37 S Ct 41.
There can be no recovery for decedent’s pain and suffering in death action under Federal Employers’ Liability Act or 46 USCS Appx section 688 where decedent was unconscious between time of injury and time of death. New Orleans & N. R. Co. v Harris (1918) 247 US 367, 62 L Ed 1167, 38 S Ct 535.
Under 46 USCS Appx section 688, decedent’s statutory beneficiaries were not entitled to recover for pain and suffering where decedent was killed instantaneously. Van Beeck v Sabine Towing Co. (1937) 300 US 342, 81 L Ed 685, 57 S Ct 452.
Damages for pain and suffering are recoverable in action under 46 USCS Appx section 688 and where evidence was that deceased was unconscious from time of accident until his death it was within province of jury to infer that deceased experienced no compensable pain or suffering. Dixon v Serodino, Inc. (1964, CA6 Tenn) 331 F2d 668.
Inasmuch as evidence indicated that after boat capsized decedent disappeared and was not seen alive thereafter, only reasonable conclusion to be drawn is that death was instantaneous, and conscious pain, substantially contemporaneous with death, afforded no basis for separate award of damages. Stark v American Dredging Co. (1946, DC Pa) 66 F Supp 296, 1946 AMC 411.
Parents of deceased tugboat mate may recover for mate’s pain and suffering under 46 USCS section 688, where mate had disappeared after going on deck to urinate and was later found in the river, because although there was no evidence whether mate was conscious when he went into river, that mate experienced pain and suffering could reasonably be inferred as there was no evidence of skull fracture or other pre-mortem traumatic injury that would cause unconsciousness. Kline v Maritrans CP, Inc. (1992, DC Del) 791 F Supp 455, different results reached on reh, summary judgment gr (DC Del) 1992 US Dist LEXIS 8321.
497. Anguish and grief of survivors
Survivor of deceased seaman in action under 46 USCS Appx section 688 is not entitled to damages for his own grief. Petition of M/V Elaine Jones (1973, CA5 Miss) 480 F2d 11, amd on other grounds (CA5 Miss) 513 F2d 911, cert den 423 US 840, 46 L Ed 2d 60, 96 S Ct 71, and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
Suitors cannot recover damages for survivor’s grief under 46 USCS Appx section 688, which permits recovery only for pecuniary loss. Petition of M/V Elaine Jones (1973, CA5 Miss) 480 F2d 11, amd (CA5 Miss) 513 F2d 911, cert den 423 US 840, 46 L Ed 2d 60, 96 S Ct 71 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
In action arising out of death of seaman, pain and suffering of decedent’s beneficiaries cannot be compensated for under either Jones Act or general maritime law. Cook v Ross Island Sand & Gravel Co. (1980, CA9 Or) 626 F2d 746.
Survivors cannot recover damages for nonpecuniary losses such as mental anguish and grief under Jones Act. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
There may be no recovery for grief or wounded feelings under 46 USCS Appx section 688 action to recover damages resulting from seaman’s death. Standard Products, Inc. v Patterson (1975, Miss) 317 So 2d 376.