450. Limitation of damages agreements

Agreement between seaman and shipowner by which maximum monetary recovery for injuries was stipulated in contract of employment may be unenforceable for want of sufficient consideration where in return for absolute right to recover negligible damages, seaman surrendered substantial right to recover full indemnity for any loss or damage suffered in consequence of unseaworthiness of ship; whenever stipulation is found in shipping articles which limits rights and privileges of seaman, courts of admiralty hold them void unless two things concurred: (1) that nature and operation of clause was fully and fairly explained to seaman; and (2) that additional compensation was allowed, entirely adequate to new restrictions and risks imposed upon them thereby. Blanco v Phoenix Compania De Navegacion, S. A. (1962, CA4 Va) 304 F2d 13, 9 ALR3d 410.

451. Attorney's fees and costs

Where evidence fails to show that shipowner has exhibited callousness and indifference to seaman's plight in denying liability for maintenance and cure, award of attorney's fees cannot stand. Morales v Garijak, Inc. (1987, CA5 Tex) 829 F2d 1355.

In Jones Act case, District Court did not abuse its discretion when it imposed attorney fees against plaintiff's attorney where attorney either refused to comply with or completely ignored court's orders regarding discovery. O'Neill v AGWI Lines (1996, CA5 Tex) 74 F3d 93, 1996 AMC 929.

Where, in addition to claims for maintenance and damages for failure to pay maintenance, libellant alleged and sought to prove that his active tuberculosis was caused by conditions aboard vessel, such latter claim was entirely separate, and plaintiff was not entitled to attorney's fees based on such separate claim as part of damages on former claims. Vaughan v Atkinson (1962, ED Va) 206 F Supp 575.

In personal injury action tried under 46 USCS Appx § 688 for negligence and general maritime law for unseaworthiness, sanction power vested in court by 28 USCS § 1331 to impose costs survived because unseaworthiness claim under general maritime law was pendent to claim under 46 USCS Appx § 688, even though not arising under Constitution, laws or treaties of United States; where plaintiff's verdict in 46 USCS Appx § 688 case was less than jurisdictional amount, court reduced plaintiff's judgment in amount of defendant's costs. McCord v Moore-McCormack Lines, Inc. (1965, SD NY) 242 F Supp 493, 1965 AMC 1837.

In action brought under 46 USCS Appx § 688, sum determined to be reasonable attorney's fee is within discretion of trial court; in case in which wards of court are involved, court has both power and duty to determine attorney's fees irrespective of any fee arrangement, contingent or otherwise, entered into between plaintiffs and their attorneys; local rule requiring court approval of attorney's fees for "incompetent person," does not embrace such fees attributable to seamen and their families per se; in determining reasonableness of attorneys' fees, court should consider attorneys' time, duplication of services and contingent nature of success. Donnarumma v Barracuda Tanker Corp. (1978, CD Cal) 79 FRD 455.

Injured worker is not entitled to payment of additional attorney's fees under New York Work Comp Law § 29(l), where worker was injured on boat leased by employer, worker filed for and received workers' compensation, but also filed Jones Act claim, 46 USCS Appx § 688, against employer, employer and insurance company settled worker's claim, and worker sought waiver of insurance company's lien on previously paid compensation benefits, because Work Comp Law § 29(l) only applies to actions by worker against third party, not to actions by worker against employer, and worker is not entitled to additional attorneys' fees under statute. Turner v Niagara Frontier Transp. Auth. (1994, WD NY) 843 F Supp 847.

452. --Failure to pay maintenance and cure

Seaman was entitled to damages in amount of counsel fees incurred in bringing his action for maintenance and cure against shipowner who wilfully defaulted in its obligation to pay maintenance and cure. Vaughan v Atkinson (1962) 369 US 527, 8 L Ed 2d 88, 82 S Ct 997, 1962 AMC 1131, reh den 370 US 965, 8 L Ed 2d 834, 82 S Ct 1578 and on remand (ED Va) 206 F Supp 575.

Puerto Rican obstinacy rule for award of attorneys' fees has no application to action which is not based on diversity of citizenship. Stephenson v Star-Kist Caribe, Inc. (1979, CA1 Puerto Rico) 598 F2d 676.

While determination of amount of attorney's fees may be similar to costs, or collateral to main dispute in case in some situations, in action for arbitrary and willful failure to pay maintenance and cure, such determination is not collateral to main issues of case but issue relating to substantive component of case. Holmes v J. Ray McDermott & Co. (1982, CA5 La) 682 F2d 1143, 34 FR Serv 2d 985, cert den 459 US 1107, 74 L Ed 2d 956, 103 S Ct 732, later app (CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682 and (disagreed with International Asso. of Bridge, etc. Local Union 75 v Madison Industries, Inc. (CA9 Ariz) 733 F2d 656, 116 BNA LRRM 2422, 101 CCH LC P 11041, 39 FR Serv 2d 368 (disagreed with C.I.T. Corp. v Nelson (CA11 Ala) 743 F2d 774 (disagreed with Morgan v Union Metal Mfg. (CA6 Ohio) 757 F2d 792, 37 BNA FEP Cas 625, 36 CCH EPD P 35090, 1 FR Serv 3d 310 (disagreed with my multiple cases as stated in Crossman v Maccoccio (CA1 RI) 792 F2d 1)) and (disagreed with Exchange Nat. Bank v Daniels (CA7 Ill) 763 F2d 286, reh gr, in part, reh den, in part (CA7 Ill) 768 F2d 140))).

453. Punitive damages

In action brought under 46 USCS Appx § 688, punitive damages may be recovered against owner of vessel where it can be shown that owner authorized or ratified reckless acts of master either before or after their occurrence, or if acts complained of were those of unfit master and owner was reckless in employing him. United States Steel Corp. v Fuhrman (1969, CA6) 407 F2d 1143, 13 FR Serv 2d 1151, 10 ALR Fed 500, cert den 398 US 958, 26 L Ed 2d 542, 90 S Ct 2162 and cert den 398 US 958, 26 L Ed 2d 542, 90 S Ct 2163 and later app (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)).

Where action under DOHSA is joined with Jones Act action, neither statutory scheme may be supplemented by general maritime law or by state law and therefore punitive damages cannot supplement awards for pain and suffering of crew members prior to death. Bergen v F/V St. Patrick (1987, CA9 Alaska) 816 F2d 1345.

Damages recoverable under 46 USCS Appx § 688, are limited to pecuniary loss, but administratrix of decedent's estate was entitled to recover punitive damages under state Wrongful Death Act. McDonald v The 204 (1961, SD Ala) 194 F Supp 383.

In action brought under 46 USCS Appx § 688, claimant was permitted to amend complaint to include demand for punitive damages, since such amendment was not frivolous on its face. Gunnip v Warner Co. (1968, ED Pa) 43 FRD 365, 12 FR Serv 2d 176.

Punitive damages claims in class action asbestosis litigation are dismissed, where plaintiffs seek damages under 46 USCS Appx § 688, because, due to its reference to "railway employees," § 688 consistently has been construed as incorporating rights and remedies of FELA (45 USCS § § 51 et seq.) and it has long been held that punitive damages are not available under FELA. Re Mardoc Asbestos Case Clusters 1, 2, 5, & 6 (1991, ED Mich) 768 F Supp 595, 1991 AMC 1610.

Injured crewmembers may not recover punitive damages based upon general maritime law against shipowner, where crewmembers claimed that owner acted willfully and wantonly in failing to maintain seaworthy vessel, because punitive damages are not available under 46 USCS Appx § 688 and where Congress has legislated in area of maritime law, case-law created remedies must be uniform with such legislation. Re Petition of Cleveland Tankers, Inc. (1992, ED Mich) 791 F Supp 679.

Injured seaman may not recover punitive damages under general maritime law in personal injury action, where Jones Act (46 USCS Appx § 688) specifically applies, since Jones Act limits recoverable damages to pecuniary loss. Jackson v Unisea, Inc. (1992, DC Alaska) 824 F Supp 895.

Claim of seaman against vessel owner and employer, seeking to recover for injuries allegedly received while aboard vessel, is denied summarily, where seaman sought punitive damages under Jones Act on account of unseaworthiness of vessel, because nonpecuniary damages such as punitive damages are not recoverable under Jones Act. Bell v Zapata Haynie, Corp. (1994, WD La) 855 F Supp 152.

Seaman who was statutorily barred from receiving punitive damage award under 46 USCS Appx § 688 could not recover punitive damages against nonemployers in personal injury action alleging negligence and unseaworthiness under general maritime law, absent evidence of wrongdoing. Saudi v S/T Marine Atl. (2000, SD Tex) 159 F Supp 2d 483, 2001 AMC 1289, motion to strike gr, in part (2000, SD Tex) 2000 US Dist LEXIS 20864.

In action under Jones Act (46 USCS Appx § 688), plaintiff is entitled to present issue of punitive damages to jury. Baptiste v Superior Court of Los Angeles County (1980, 2d Dist) 106 Cal App 3d 87, 164 Cal Rptr 789, cert den 449 US 1124, 67 L Ed 2d 110, 101 S Ct 940.

454. --For inadequate maintenance and cure

In action under 46 USCS Appx § 688 by seaman who suffered back injury, finding that employer willfully and arbitrarily refused to pay maintenance and cure justifies special punitive damages award of $ 11,550; there is no merit to defendant's contention that amount of award is excessive because of plaintiff's failure to show that defendant's conduct aggravated his injuries. Holmes v J. Ray McDermott & Co. (1984, CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682.

Punitive damages awards must be grounded on egregious shipowner conduct exhibiting wanton and intentional disregard of seaman's rights, and district court errs in allowing jury to impose punitive damages merely because shipowner pays maintenance rate jury later finds to be inadequate. Harper v Zapata Off-Shore Co. (1984, CA5 La) 741 F2d 87.

In action by seaman against shipowner under 46 USCS Appx § 688 resulting from injuries sustained by seaman from fall occurring on defendant's vessel, jury did not err in awarding $ 100,000 punitive damage award for defendant's willful and capricious failure to provide maintenance and cure to seaman. Hodges v Keystone Shipping Co. (1983, SD Tex) 578 F Supp 620.

Jury properly found employer's failure to pay injured seaman maintenance and cure for over one year arbitrary and capricious and sufficient to justify punitive damages award under 46 USCS Appx § 688, where seaman chose to see doctor other than one chosen by employer, informed employer of that fact, yet received no further payments, because, while seaman's claim for cure may be subject to mitigation, it remains employer's burden to prove that seaman's doctor provided unnecessary treatment or charged unnecessary fees. Turner v Inland Tugs Co. (1988, ED La) 689 F Supp 612.

Summary judgment is granted to employer in injured seaman's action for exemplary damages under 46 USCS Appx § 688, because exemplary damages are not available in personal injury actions under § 688, and although exemplary damages may be available in a maintenance and cure action, which is based on contract rather than on statute, summary judgment is granted to employer because seaman admits that he received and continues to receive maintenance and cure payments, and has pleaded no facts entitling him to exemplary damages. Ortega v Oceantrawl, Inc. (1992, DC Alaska) 822 F Supp 621, 1993 AMC 902.

Vessel owner is denied summary dismissal of injured seaman's claim for attorney's fees and punitive damages, even though owner asserts reliance on doctor's representations that seaman had reached maximum medical improvement in electing to terminate maintenance and cure, because termination decision is almost always precipitated by diagnosis of some physician and that alone does not insure reasonableness of decision. Musielak v Rowan Int'l, Inc. (1993, SD Tex) 814 F Supp 556.

Seaman's claim against vessel owner and employer under 46 Appx USCS § 688, seeking punitive damages for injuries received as result of condition of defendant's unseaworthy vessel, is denied summarily, because concerns for uniformity dictate denial of punitive damages in maintenance and cure actions under Jones Act since such damages are disallowed in wrongful death actions under same Act and because by analogy to actions under Federal Employers' Liability Act in which punitive damages are not recoverable for nonfatal injuries, such damages should be denied. Boyd v Cinmar of Gloucester (1996, ED Va) 919 F Supp 208, 1996 AMC 1805.

455. Mitigation

Remarriage of widow neither bars nor mitigates her pecuniary loss recoverable under 46 USCS Appx § 688 due to wrongful death of husband. Petition of United States (1950, DC NY) 92 F Supp 495.

456. --Duty to seek medical treatment

It is duty of plaintiff in action under 46 USCS Appx § 688 to minimize his damages by submitting to reasonable treatment and test in each case is one of reasonableness to be determined by triers of fact. Ambrose v Norfolk Dredging Co. (1960, CA4 Va) 284 F2d 802.

When seaman was instructed by company doctor to seek private medical care, seaman's duty vis-a-vis his employer to seek free medical help was as matter of law indefinitely suspended, but when employer notified him of its intention to provide free medical care, seaman's duty to mitigate his damages by seeking public hospital facilities was reinstated. Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 958, 13 FR Serv 2d 1116.

457. --Seaman's own fault

Contributory negligence is not defense to suit brought under 46 USCS Appx § 688 but is ground only for apportionment of damage. Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712.

Assumption of risk is not a complete defense in suit brought by seaman under 46 USCS Appx § 688; rule to be applied is that of comparative negligence which operates to reduce recoverable damages. Socony-Vacuum Oil Co. v Smith (1939) 305 US 424, 83 L Ed 265, 59 S Ct 262.

In seaman's personal injury action, all lost earnings and medical expenses are recoverable on negligence count, but under Jones Act (46 USCS Appx § 688) they are subject to reduction by jury if seaman has been contributorily negligent. Fitzgerald v United States Lines Co. (1963) 374 US 16, 10 L Ed 2d 720, 83 S Ct 1646, 7 FR Serv 2d 774, reh den 375 US 870, 11 L Ed 2d 99, 84 S Ct 26 and motion den 376 US 901, 11 L Ed 2d 604, 84 S Ct 655.

Under 46 USCS Appx § 688, contributory negligence is not bar to recovery, but is to be given due weight in arriving at damage recoverable by claimant. The J. H. Hillman (1939, CA3 Pa) 108 F2d 231; Reinhart v United States (1972, CA9 Cal) 457 F2d 151; Scott v Fluor Ocean Services, Inc. (1974, CA5 La) 501 F2d 983.

In action under 46 USCS Appx § 688, further modification of award was not justified since jury had been properly charged to make reduction in damages based on contributory negligence of plaintiff, and court in entering judgment reduced verdict by nearly one half. Herring v Luckenbach S.S. Co. (1943, CA2 NY) 137 F2d 598, 1943 AMC 1215.

Duty which law imposes upon injured person, regardless of any conscious assumption of duty towards wrongdoer is type of contributory negligence which reduces award under 46 USCS Appx § 688. Walker v Lykes Bros. S.S. Co. (1952, CA2 NY) 193 F2d 772.

In action brought under 46 USCS Appx § 688, damages awarded were reduced to reflect plaintiff's own negligence. Andrews v Chemical Carriers, Inc. (1972, CA3 Del) 457 F2d 636, cert den 409 US 874, 34 L Ed 2d 126, 93 S Ct 120.

District Court erred in molding verdict, in case brought by injured diver against her employer, to apply percentage of comparative negligence found by jury with respect to Jones Act claim to unseaworthiness claim where defendant waived issue and where court did not submit issue to jury and later made sua sponte determination. Neely v Club Med Management Servs. (1995, CA3 Pa) 63 F3d 166.

Federal Employers Liability Act, 45 USCS § 53, precludes reduction of damages on ground of comparative fault where vessel on which petitioner was injured was in unexcused violation of Coast Guard safety regulation. Fuszek v Royal King Fisheries (1996, CA9 Wash) 98 F3d 514, 96 CDOS 7787, 96 Daily Journal DAR 12893, 1997 AMC 92.

Amount of damage which seaman sustained which is recoverable under 46 USCS Appx § 688 must be reduced in proportion that his own fault contributed to happening of accident. Davis v Associated Pipe Line Contractors, Inc. (1968, WD La) 305 F Supp 1345, affd (CA5 La) 418 F2d 920, cert den 397 US 988, 25 L Ed 2d 396, 90 S Ct 1119.

If deceased seaman was guilty of negligence contributing to his death, such contributory negligence would not constitute absolute bar to decedent's next of kin in action under 46 USCS Appx § 688 but could only be considered in diminution of damages to which next of kin is entitled. Presley v Upper Mississippi Towing Corp. (1961, La App 1st Cir) 141 So 2d 411.

46 USCS Appx § 688 and accompanying 45 USCS § § 51 et seq. contain no provision as to apportionment equivalent to that in 46 USCS Appx § § 761-767. Re Nelson (1938) 168 Misc 161, 5 NYS2d 398, 1938 AMC 1068.

458. ----Particular circumstances

If injuries sustained by seaman were caused solely by reason of seaman's intoxication and not because of any fault of shipowner, then recovery under 46 USCS Appx § 688 would be denied; however, where intoxication is merely contributing cause of injury sustained, then recovery will be allowed at reduced amount. Cruz v American Export Isbrandtsen Lines, Inc. (1970, SD NY) 310 F Supp 1364.

Damages will be diminished because of seaman's negligence where seaman was negligent when he attempted to repair hose which caused injury rather than returning immediately to base of operations upon discovery of such damage; although damaged hose caused vessel to be unseaworthy, damaged hose of itself did not cause injury where seaman's improper use of seaworthy equipment to repair damaged hose caused accident and consequently seaman may not recover for unseaworthiness under such circumstance. Landry v Oceanic Contractors, Inc. (1982, ED La) 548 F Supp 337, affd (CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.

In action by seaman for personal injuries incurred when he fired Lyle gun on board ship, accident was result of joint and concurrent negligence of plaintiff and defendant, and damages should be apportioned accordingly. Fegan v Lykes Bros. S. S. Co. (1941) 198 La 312, 3 So 2d 632, 1941 AMC 1154.

459. Apportionment of damages among defendants

Although original negligence of shipowner may be in law proximate cause of damages flowing from subsequent maltreatment by ophthalmologist at Public Health Service Facility, there is no reason why ultimate burden of damages should not be distributed between owner and government, with each made to bear portion caused by its own negligent conduct. Penn Tanker Co. v United States (1969, CA5 Tex) 409 F2d 514 on remand (SD Tex) 310 F Supp 613.

Joint and several loss allocating mechanism which serves to provide injured seaman his full judgment is consonant with policy behind Jones Act, to provide protection to seamen who are victims of negligence. Joia v Jo-Ja Service Corp. (1987, CA1 Mass) 817 F2d 908.

Where shipowner and riparian landowners were independently at fault for seaman's injuries caused by ignition of oil floating on river by lighted lantern, but were in fact and in legal contemplation total strangers to each other, there is no relational basis and no legal justification for imposing indemnitor's liability on riparian landowners after shipowner had paid damages for injuries in action under 46 USCS Appx § 688. American Dredging Co. v Gulf Oil Corp. (1959, DC Pa) 175 F Supp 882, affd (CA3 Pa) 282 F2d 73, cert den 364 US 942, 5 L Ed 2d 373, 81 S Ct 460, reh den 365 US 838, 5 L Ed 2d 748, 81 S Ct 746.

In action by seaman to recover under 46 USCS Appx § 688, ultimate burden of damages is to be distributed between guilty parties, with each made to bear that portion of damages caused by its own negligent conduct. Penn Tanker Co. v United States (1970, SD Tex) 310 F Supp 613.

Joinder of Jones Act (46 USCS Appx § 688) claim with product liability claim does not affect application of proportionate fault doctrine except where otherwise insignificant comparative negligence of plaintiff would reduce recovery. Bass v Phoenix Seadrill/78, Ltd. (1983, ED Tex) 562 F Supp 790, amd on other grounds (ED Tex) 573 F Supp 866 and affd in part and revd in part on other grounds (CA5 Tex) 749 F2d 1154.

In injured seaman's action under Jones Act and general principles of maritime law against vessel owner, right of contribution which owner might otherwise have against hospital which treated seaman for portion of recovery against owner not attributable to owner's conduct is barred by seaman's prior settlement of state court malpractice action against hospital by virtue of New York statute providing, with respect to contribution in multi-defendant action when some but not all of jointly liable defendants settle, that settling defendant is relieved of liability for contribution to codefendants and that plaintiff gives up right to recover from codefendants for portion of award attributable to settling defendant's actions. Soto v United States Lines, Inc. (1985, SD NY) 608 F Supp 904.

Jones Act plaintiff who releases one joint tortfeasor but has viable claim against second joint tortfeasor may recover that portion of total damages proportionate to fault of second joint tortfeasor. Complaint of Chevron Transport Corp. (1985, MD Fla) 613 F Supp 1428.

460. Indemnification

In federal maritime case brought under 46 USCS Appx § 688, indemnity shall be permitted by tortfeasor, claiming to be only passively or secondarily liable against joint tortfeasor guilty of active or affirmative negligence even where no contractual relationship exists between parties and rule prohibiting contribution between joint tortfeasors is not bar to indemnification. Tri-State Oil Tool Industries, Inc. v Delta Marine Drilling Co. (1969, CA5 La) 410 F2d 178 (disagreed with Loose v Offshore Navigation, Inc. (CA5 La) 670 F2d 493, 68 ALR Fed 318) as stated in Cities Service Co. v Lee-Vac, Ltd. (CA5 La) 761 F2d 238, CCH Prod Liab Rep P 10526.

In action brought under 46 USCS Appx § 688, vessel owner who was only passively negligent was entitled to total indemnity from actively negligent party, and attorneys' fees would be included in funds to which shipowner would be entitled to as indemnification; actively negligent tortfeasor who was operating vessel would be entitled to reimbursement for attorneys fees where insurance policy existed, and insurance company did not provide counsel when notified of action. Kelloch v S & H Subwater Salvage, Inc. (1973, CA5 La) 473 F2d 767, on remand (ED La) 397 F Supp 738, later op (ED La) 397 F Supp 742.

Vessel owner was not entitled to indemnification from other negligent parties in action brought by seaman under 46 USCS Appx § 688 where conduct on which his liability is based was not sufficiently different in kind or degree to be distinguished from conduct of other tortfeasors, and all were guilty of active misconduct. Re Dearborn Marine Service, Inc. (1974, CA5 Tex) 499 F2d 263, 30 ALR Fed 499, reh den (CA5 Tex) 512 F2d 1061 and cert dismd 423 US 886, 46 L Ed 2d 118, 96 S Ct 163.

Shipowner was entitled to indemnity from wharfinger where breach of warranty of workmanlike performance by wharfinger resulted in loss; shipowner's negligence did not preclude indemnification where negligence did not prevent or hamper wharfinger's performance of its duty in accordance with its warranty of workmanlike service. Oglebay Norton Co. v CSX Corp. (1986, CA6 Ohio) 788 F2d 361.

Shipowner-employer is not entitled to indemnity or contribution from employee for Jones Act (46 USCS Appx § 688) damages paid to other employee where Act was enacted only to create negligence cause of action against vessel owners since to permit owner to sue employee for indemnification would be contrary to Act's history and its purpose of enlarging remedies available to seamen. California Home Brands, Inc. v Ferreira (1989, CA9 Cal) 871 F2d 830.

District Court's denial of contribution and indemnity claim against seaman's employer, brought by vessel against which seaman won damages, was not merely authorized but required by jury's verdict assigning 100 percent negligence against vessel and none against employer. Larue v Joann M. (1996, CA11 Fla) 73 F3d 325, 9 FLW Fed C 772, mod (1996, CA11 Fla) 9 FLW Fed C 948.

In order to obtain contribution or indemnity in action brought under 46 USCS Appx § 688 one defendant must first prove that other defendant was negligent and that its negligence was cause of seaman's injury; degree to which first defendant itself was negligent determines its right to contribution or indemnity, if first defendant was only secondarily or constructively negligent it may recover indemnity and if it was primarily negligent contribution is appropriate recovery. Spualding v Parry Navigation Co. (1950, DC NY) 90 F Supp 567, revd on other grounds (CA2 NY) 187 F2d 257, cert den 342 US 918, 96 L Ed 686, 72 S Ct 362.

Shipowner can seek indemnity or contribution from third party liable over for breach of warranty where shipowner has paid to settle personal injury action brought by seaman employee under 46 USCS Appx § 688, provided that seaman was injured on shipowner's vessel, shipowner was potentially liable to seaman and amount paid in settlement was reasonable. Western Tankers Corp. v United States (1975, SD NY) 387 F Supp 487.

Charterer is not entitled to indemnity from operator of vessel where charterer contributed to fault of injury. Landry v Oceanic Contractors, Inc. (1982, ED La) 548 F Supp 337 affd (CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.

Indemnity by employer is not warranted where contributory negligence of employee would have prevented recovery against third party. Gauthier v Crosby Marine Service, Inc. (1983, ED La) 576 F Supp 681.

Ambiguity in employer's liability insurance policy, consisting of conflict between alternate employer endorsement and definition of "insured" that did not include "alternate employer," created genuine issue of material fact as to policy's coverage of vessel owner in connection with on-board injury to employee, precluding summary judgment on vessel owner's indemnity claim against insurer in connection with employee's suit against employer and vessel owner under 46 USCS Appx § 688. Foster v Subsea Int'l (1998, ED La) 101 F Supp 2d 454.

Barge line which entered into court-sanctioned settlement with its injured employee in action under 46 USCS Appx § 688 to compensate him for injury suffered in accident brought about solely because of negligence of another may recover indemnity from other for sums paid and expenses incurred in settlement; right to indemnity arises without any contractual relationship between parties, where one of parties is guilty of active or affirmative negligence, while other is without actual fault but may be vicarious liable because of technical or passive negligence. Wisconsin Barge Line, Inc. v The Barge Chem 301 (1975, MD La) 390 F Supp 1388, revd on other grounds (CA5 La) 546 F2d 1125, reh den (CA5 La) 550 F2d 41 and reh den (CA5 La) 550 F2d 42.

461. --Between shipowner and stevedoring company

Shipowner who settled claim with employee of stevedoring company injured during course of unloading operations, was not volunteer in this settlement because he was at least potentially liable to claims brought by stevedore and was entitled to indemnity from stevedoring company pursuant to provisions of charter. Ace Tractor & Equipment Co. v Olympic S.S. Co. (1955, CA9 Cal) 227 F2d 274.

Shipowner was entitled to indemnification from stevedoring company following reasonable settlement between shipowner and injured stevedore based upon pre-existing contract between shipowner and stevedoring company. West Coast Terminals Co. v Luckenbach S.S. Co. (1965, CA9 Cal) 349 F2d 568.

Shipowner may recover as indemnity from stevedoring contractor those damages which shipowner has been required to pay longshoremen employed by stevedore for injuries suffered aboard ship, even in absence of expressed agreement of indemnity, since essence of stevedoring contract is stevedore's warranty of workmanlike service; this rule has been extended to include indemnity actions by shipowners against other suppliers of services to ships such as ship repair contractors, and against shipyards; shipowner will not be entitled to indemnity for expenses of defense in the absence of showing breach of duty, either in tort or in contract, by wharfinger. Sims v Chesapeake & O. R. Co. (1975, CA6 Mich) 520 F2d 556.

462. Interest

Judgment on action brought under 46 USCS Appx § 688 should not include interest on verdict from date of death, as neither 46 USCS Appx § 688 nor 45 USCS § § 51 et seq. permit awarding of interest before damages are judicially ascertained. Cortes v Baltimore Insular Line, Inc. (1933, CA2 NY) 66 F2d 526.

Discretionary allowance of interest on award for claim based under 46 USCS Appx § 688, from date of death to date of judgment was not clear error, especially in view of judge's computation of present value of award as of date of judgment. Gardner v National Bulk Carriers, Inc. (1964, CA4 Va) 333 F2d 676.

Unlike collision cases and wrongful death cases, where loss, although unliquidated, occurs at one time and is measurable at that one time, case in which damages awarded by jury included substantial compensation for future pain and suffering and future loss of earnings is not appropriate case for awarding of pre-judgment interest. Barrios v Louisiana Constr. Materials Co. (1972, CA5 La) 465 F2d 1157.

It was within trial court's discretion to award prejudgment interest to plaintiff suing under 46 USCS Appx § 688. Brown v Aggie & Millie, Inc. (1973, CA5 La) 485 F2d 1293.

Shipowner entitled to indemnity from wharfinger in connection with wrongful death of seaman was entitled to prejudgment interest from date that shipowner settled wrongful death claim. Oglebay Norton Co. v CSX Corp. (1986, CA6 Ohio) 788 F2d 361.

District Court erred by awarding prejudgment interest on damages for future pain and suffering, contrary to federal rule prohibiting prejudgment interest on postjudgment losses; however, District Court did not abuse its discretion in awarding prejudgment interest on damages for losses that occurred prior to trial. Pickle v International Oilfield Divers, Inc. (1986, CA5 La) 791 F2d 1237.

Award of prejudgment interest to worker who recovered under 46 USCS Appx § 688 was within discretion of District Court with respect to past damages, but was not permissible with respect to future damages, and, on remand, District Court was to divide judgment into past and future damages and reduce award of prejudgment interest accordingly. Martin v Walk, Haydel & Associates, Inc. (1986, CA5 La) 794 F2d 209.

Where there are no exceptional or extraordinary circumstances which militate against award of prejudgment interest on maritime claim, plaintiff is entitled to have interest included in his recovery. Magee v United States Lines, Inc. (1992, CA2 NY) 976 F2d 821.

In fixing award for pecuniary damages recoverable due to seaman's being lost at sea, plaintiff was not entitled to prejudgment interest. Bednar v United States Lines, Inc. (1973, ND Ohio) 360 F Supp 1313.

Prejudgment interest may not be awarded in action under 46 USCS Appx § 688 which was tried to jury; proper case for awarding pre-judgment interest is one in which there were elements of inordinate delay, or most of damages were sustained prior to judgment. Barton v Zapata Offshore Co. (1975, ED La) 397 F Supp 778.

Only jury may award prejudgment interest to verdict on claims exclusively within province of jury. Parisi v Lady in Blue, Inc. (1977, DC Mass) 433 F Supp 681.

Award under Jones Act to injured seaman consisting of single sum of $ 175,000 for general damages including both past and future harm is amended to $ 125,000 for past harm and $ 50,000 for future harm to avoid Ninth Circuit prohibition on awards of prejudgment interest for postjudgment harm. Ward v American Hawaii Cruises, Inc. (1988, DC Hawaii) 719 F Supp 915, reconsideration den (DC Hawaii) 1989 AMC 930.

Award of prejudgment interest is appropriate at rate of 4.9 percent on seaman's past damages, even though recovery of prejudgment interest is normally not allowed in Jones Act (46 USCS Appx § 688) action at law, because same rule does not apply to Jones Act cases brought under court's admiralty jurisdiction, tried without jury. Bush v Diamond Offshore Co. (1999, ED La) 46 F Supp 2d 515.

Award of prejudgment interest is rule rather than exception under maritime law, and, in practice, well-nigh automatic, and rule applies equally to claims brought under 46 USCS Appx § 688. Motts v M/V Green Wave (1999, SD Tex) 50 F Supp 2d 634.

Injured electrician is awarded 6 percent prejudgment interest on all damages accrued from date of loss through entry of judgment, where no peculiar circumstances would make such award inequitable, because equitable rate of prejudgment interest is usually awarded Jones Act (46 USCS Appx § 688) plaintiff in Fifth Circuit to ensure injured seaman is compensated for use of funds to which he is entitled. Laffitte v Maersk Line, Ltd. (2000, SD Tex) 98 F Supp 2d 793.

In 46 USCS Appx § 688 cases there is no prejudgment interest. Melancon v I. M. C. Drilling Mud (1973, La App 1st Cir) 282 So 2d 532, application den (La) 283 So 2d 769 and application den (La) 283 So 2d 771.

Federal jurisprudence disallowing prejudgment interest on claims under Jones Act (46 USCS Appx § 688) is substantive and therefore controlling on action brought in state court. Morris v Transworld Drilling Co. (1978, La App) 365 So 2d 46.

Allowance of interest on judgments in actions under Jones Act (46 USCS Appx § 688) is matter of federal substantive law; prejudgment interest, although authorized under state statute, was properly denied. Shemman v American S.S. Co. (1979) 89 Mich App 656, 280 NW2d 852.

463. --Where joined with general maritime action

46 USCS Appx § 688, and FELA (45 USCS § § 51 et seq.) does not provide for interest before damages are determined; in admiralty, allowance of interest is discretionary with court. 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.

Prejudgment interest is available in 46 USCS Appx § 688 action tried in admiralty, and allowance of interest rests with trial court's sound discretion. Williamson v Western Pacific Dredging Corp. (1971, CA9 Or) 441 F2d 65, cert den 404 US 851, 30 L Ed 2d 91, 92 S Ct 90.

Pre-judgment interest may not be awarded in action under 46 USCS Appx § 688 at law; pre-judgment interest may be awarded in 46 USCS Appx § 688 action in admiralty, subject to usual admiralty rule of discretion. Doucet v Wheless Drilling Co. (1972, CA5 La) 467 F2d 336, 16 FR Serv 2d 971.

In action under 46 USCS Appx § 688, federal admiralty rule under which award of pre-judgment interest would rest within discretion of trial of facts should be employed; awarding of pre-judgment interest is for jury, and trial court's award of pre-judgment interest violated province of jury and therefore may not stand. Robinson v Pocahontas, Inc. (1973, CA1 Mass) 477 F2d 1048 (disagreed with Incandela v American Dredging Co. (CA2 NY) 659 F2d 11) and (disagreed with Kraljic v Berman Enterprises, Inc. (CA2 NY) 575 F2d 412 (disagreed with Holmes v J. Ray McDermott & Co. (CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682) as stated in Harper v Zapata Off-Shore Co. (CA5 La) 741 F2d 87) as stated in Thyssen, Inc. v S.S. Fortune Star (CA2 NY) 777 F2d 57.

In admiralty case, warrant of prejudgment interest is committed to sound discretion of trial court and, in fact, generally in maritime law, prejudgment interests should be awarded. Curry v Fluor Drilling Services, Inc. (1983, CA5 La) 715 F2d 893.

Where plaintiff seeks recovery under Jones Act and general maritime law for injuries sustained in single accident, trial court may exercise discretion to award prejudgment interest only when pure admiralty item of damage, such as damages caused by unseaworthiness, can be isolated and identified in verdict. Domangue v Penrod Drilling Co. (1984, CA5 La) 748 F2d 999.

When Jones Act (46 USCS Appx § 688) claim is brought under court's admiralty jurisdiction, and case is tried to court and not to jury, allowance of prejudgment interest is within discretion of trial court even if there is no finding of unseaworthiness. Williams v Reading & Bates Drilling Co. (1985, CA5 La) 750 F2d 487.

Seaman bringing unseaworthiness and Jones Act claims is not entitled to prejudgment interest unless jury apportions damages between such claims. McPhillamy v Brown & Root, Inc. (1987, CA5 La) 810 F2d 529.

Plaintiff, who recovered on claims brought under 46 USCS Appx § 688 for general unseaworthiness, and for maintenance and cure, was entitled to interest on jury verdict from date of judgment at rate allowed by state law of forum; only jury may award prejudgment interest to verdict on claims exclusively within province of jury. Parisi v Lady in Blue, Inc. (1977, DC Mass) 433 F Supp 681.

Prejudgment interest could not be awarded where Jones Act negligence and unseaworthiness claims were brought against owner of rig in whose service seaman was working at time of his injury but where jury did not find that rig was unseaworthy. Baum v Transworld Drilling Co. (1985, WD La) 612 F Supp 1555.

464. --Post judgment interest

Interest runs from date of judgment on second verdict where new trial granted on issue of damages since no judgment was ever entered on first verdict. Reinertsen v George W. Rogers Constr. Corp. (1975, SD NY) 403 F Supp 1263.

465. Additur and remittitur

In action under 46 USCS Appx § 688, award made by trial court was increased by appellate court where injuries turned out to be much more serious than initially thought. Stuart v Alcoa S.S. Co. (1944, CA2 NY) 143 F2d 178.

Duty of appellate court in reviewing damage award after remittitur was to examine record to determine whether award exceeded maximum amount that trier of fact could have properly awarded. Knight v Texaco, Inc. (1986, CA5 La) 786 F2d 1296.

Jones Act jury verdict awarding $ 855,000 total damages, of which $ 425,000 was attributed to lost earnings, is excessive and new trial is granted unless plaintiff agrees to remittitur to $ 525,000, where 62-year-old tugboat deck hand, possibly on verge of retirement, injured right elbow in one accident and then ankle and elbow in accident 4 months later, because Jones Act claimant is entitled only to full compensation for, inter alia, pain, suffering, and unexaggerated estimate of lost wages. Earl v Bouchard Transp. Co. (1990, ED NY) 735 F Supp 1167.

State Supreme Court cannot reduce amount of jury's verdict, as such authority would be substantive, not merely procedural and would be contrary to intent of Congress in providing for jury trial in suits under 46 USCS Appx § 688. Hust v Moore-McCormack Lines, Inc. (1947) 180 Or 409, 177 P2d 429.

B. Damages for Personal Injury

1. Elements of Damages

466. Generally

Under 46 USCS Appx § 688, plaintiff is entitled to seek recovery for impairment of future earning capacity, lost wages, medical expenses, and pain and suffering. Wilson v Western Oceanic, Inc. (1982, SD Tex) 540 F Supp 228.

Under general maritime law, punitive damages based on allegations of willful, reckless, and malicious misconduct are recoverable, even where there are no claims of personal injury or unseaworthiness. CEH, Inc. v FV "Seafarer" (1994, DC RI) 153 FRD 491, summary op at (DC RI) 14 R.I.L.W. 871.

Where there was no legal theory which would even arguably allow remand of Jones Act case to federal court, Rule 11 sanctions would be granted against defendant; because defendant did not cite single statute granting it right of removal, its removal petition was patently frivolous and submitted solely to harass. Toups v Archer-Daniels-Midland Co. (1994, SD Tex) 155 FRD 588.

In action brought under 46 USCS Appx § 688, assessment of damages should include consideration of plaintiff's life expectancy, annual salary at time of injury, employment, if any, after injury, disability incurred, susceptibility of injured area to subsequent injury, and consequences of such injury which would permit finding of great pain in future, pain, suffering and disfigurement, and surgical procedures necessary to restore injured area. Baldwin v Huffman Towing Co. (1977, 5th Dist) 51 Ill App 3d 861, 9 Ill Dec 469, 366 NE2d 980.

467. Aggravation of pre-existing injury

Injured seaman is entitled to damages for all injuries occasioned by wrong, though aggravated by his previous maladies. The Jefferson Myers (1930, CA2 NY) 45 F2d 162, 1930 AMC 1911.

Plaintiff-seaman having been twice injured, and defendant not being liable for first injury, measure of damages would be such sum as would fairly and reasonably compensate plaintiff for aggravation of his then existing condition. Pittsburgh S.S. Co. v Palo (1933, CA6 Ohio) 64 F2d 198.

468. Loss of consortium, society, and support

Jones Act (46 USCS Appx § 688) does not allow recovery for loss of society claims based upon negligence, and thus, wife of seamen suing under Act cannot base loss of society claims on negligence under general maritime law. Beltia v Sidney Torres Marine Transport, Inc. (1983, CA5 La) 701 F2d 491.

Wives may not recover damages for loss of society and loss of consortium in their own actions filed under Jones Act. Smith v Trinidad Corp. (1993, CA9 Cal) 992 F2d 996, 93 CDOS 3390, 93 Daily Journal DAR 5842.

Admiralty court may not extend remedies available in unseaworthiness action under general maritime law to include punitive damages or damages for loss of parental or spousal society. Horsley v Mobil Oil Corp. (1994, CA1 Mass) 15 F3d 200, 1994 AMC 1372, summary op at (CA1 Mass) 22 M.L.W. 1148, 14 R.I.L.W. 797.

Loss of consortium is not cognizable under general maritime law. Nichols v Petroleum Helicopters (1994, CA5 La) 17 F3d 119.

Jones Act (46 USCS Appx § 688) provides no cause of action with respect to wife's loss of consortium nor does it provide for recovery by seaman's children for loss of support, society, affection and companionship. Westcott v McAllister Bros., Inc. (1978, SD NY) 463 F Supp 1039.

Parents of injured seaman may not recover for loss of society or consortium under Jones Act, where injury was caused by negligence of ship owners and marine contractors, rather than from unseaworthiness of vessel, and where parents were non-dependent on seaman. Toups v Du-Mar Marine Contractors, Inc. (1985, ED La) 644 F Supp 475.

In action for unseaworthiness, wife is entitled to award for loss of society of seaman who was partially disabled carrying cable on river tugboat where, after injury, seaman was withdrawn, moody, depressed, and affected by intake of alcohol and medication. Burden v Evansville Materials, Inc. (1986, WD Ky) 636 F Supp 1022.

Seaman's wife's claim for recovery for her alleged damages for loss of consortium, services, and society based upon injuries sustained by her husband must be dismissed, despite argument that wife was seaman's dependent unlike nondependent parents denied similar claim in recent Supreme Court case, because Supreme Court clearly indicated by general language that there is no recovery for nonpecuniary damages for injury or death of seamen under 46 USCS Appx § 688 or general maritime law. Turley v Co-Mar Offshore Marine Corp. (1991, ED La) 766 F Supp 501.

Husband of crewmember injured in course of employment as cook on supply vessel has loss of consortium claim dismissed, where no general maritime claim for loss of consortium or society preexisted 46 USCS Appx § 688, because desire for uniformity and deference to legislative environment of times compels conclusion that loss of society or consortium damages must be rejected in context of personal injury and wrongful death unseaworthiness claims. West v Zapata Gulf Marine Corp. (1991, ED La) 766 F Supp 502.

Injured seaman's spouse's claim for loss of consortium, service, and society is dismissed, where nonpecuniary damages such as loss of consortium and society are unavailable under 46 USCS Appx § 688, because, inasmuch as Supreme Court clearly ruled that deceased seaman's spouse has no claim for nonpecuniary damages under either § 688 or general maritime law, jurisprudence has firmly agreed that nonfatally injured seaman's spouse has no such claim either. Donaghey v Ocean Drilling & Exploration Co. (1991, ED La) 766 F Supp 503.

Consortium-type claims for wrongful death of seamen must be dismissed, where estates of seamen killed in steamship fire assert claims for loss of society, loss of consortium, loss of companionship, loss of love and affection, loss of comfort, grief and mental anguish, and punitive damages, because Death or High Seas Act (46 USCS Appx § § 761 et seq.) expressly limits recoverable losses to pecuniary ones, Jones Act (46 USCS Appx § 688) has been interpreted not to cover nonpecuniary claims, and general maritime law also precludes such claims in case such as this, in interest of uniformity. Re Waterman S.S. Corp. (1992, ED La) 780 F Supp 1093, 1992 AMC 1035.

Loss of society and consortium claims must be dismissed, where seaman's wife seeks recovery based on emotional and psychological injuries her husband sustained as captain of government research vessel, because Supreme Court recently restored uniform rule that loss of society is not compensable in wrongful death action under 46 USCS Appx § 688 or general maritime law and it would be inconsistent to afford greater rights to spouse of seaman who survives than to survivor of fatally injured seaman. Nelsen v Research Corp. of University of Hawaii (1992, DC Hawaii) 784 F Supp 770.

Spouse of injured Jones Act seaman may not recover for loss of society and consortium based on general maritime action, where seaman had brought action against employer for personal injuries pursuant to 46 USCS Appx § 688 due to exposure to excessive noise, dust, asbestos, and diesel fuels during his employment, because § 688 limits recovery to pecuniary losses, regardless of whether seaman suffered personal injuries or was killed. Lane v G & C Towing Co. (1992, SD W Va) 798 F Supp 358.

Wife's cause of action for loss of consortium and spousal services is clearly barred, where basis of her claim is her seaman husband's shipboard slip-and-fall injury, because 1990 Supreme Court opinion and even prior Ninth Circuit law held that nonpecuniary losses, such as loss of society in this case, may not be recovered under 46 USCS Appx § 688. McNaughton v Exxon Shipping Co. (1992, ND Cal) 813 F Supp 710, 1993 AMC 92.

Wife of employee who was injured while working on vessel may maintain claim for loss of consortium, where employee was not Jones Act seaman but was arguably Sieracki seaman under general maritime law, because in light of recent developments in area, court is unsure as to Fifth Circuit's position on allowability of claims for nonpecuniary damages; court will allow immediate appeal of this order. Bergeron v Atlantic Pac. Marine (1995, WD La) 899 F Supp 1544.

Wife of injured longshoreman can recover under general maritime law for loss of her husband's society caused by negligence of shipowner or unseaworthiness of ship. American Export Lines, Inc. v Alvez, 446 US 274, 64 L Ed 2d 284, 100 S Ct 1673).

Remedies applicable to seamen under Jones Act applied to injuries suffered by derrick hand on offshore drilling rig; nevertheless, derrick hand's wife could not maintain action under Jones Act for loss of society of husband, in that Act explicitly provides only for pecuniary damages. Gaspard v Transworld Drilling Co. (1985, La App 3d Cir) 468 So 2d 692, cert den (La) 474 So 2d 1304, cert den (US) 89 L Ed 2d 607, 106 S Ct 1382.

469. Loss of earnings

In compensatory action under 46 USCS Appx § 688 for personal injury, both cash value of room and board and medical expenses are provable as part of earnings lost prior to suit. Petition of Oskar Tiedemann & Co. (1966, CA3 Del) 367 F2d 498, supp op (CA3 Del) 367 F2d 505, cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 953 and cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 957, reh den 386 US 1000, 18 L Ed 2d 354, 87 S Ct 1303.

Award of $ 75,000 for back injury cannot be fairly characterized as "grossly excessive" where plaintiff was unable to work for more than three months after injury, and where award was within wide range of arguable appropriateness. Toucet v Maritime Overseas Corp. (1993, CA1 Puerto Rico) 991 F2d 5.

470. Loss of future earnings

Both seaman's wages and cash value of his living allowance are recoverable in negligence action under 46 USCS Appx § 688 as lost earnings, and costs of cure are recoverable as medical expenses and unlike recovery for maintenance and cure under general maritime law, recovery for these items in negligence action is not confined to immediate and definitely ascertainable needs, nor, ultimately, to period of maximum cure. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 4 ALR3d 517.

Injured seaman is entitled to reimbursement for any impairment of earning capacity in suit under 46 USCS Appx § 688; if injuries are permanent in nature and result in impairment of earning capacity, seaman is entitled to reimbursement for such impairment including, but not limited to, probable loss of future earnings measured on basis of life expectancy at time of injury. Downie v United States Lines Co. (1966, CA3 Pa) 359 F2d 344, cert den 385 US 897, 17 L Ed 2d 130, 87 S Ct 201.

In action under 46 USCS Appx § 688, impairment of earning capacity was factor to be considered in determining award for damages. Stafford v Perini Corp. (1973, CA1 Mass) 475 F2d 507.

Jury failure to make award for loss of future earnings was not inconsistent with "special findings" that included loss of wages to trial date, where seaman lost useful vision in one eye after contracting gonnorrhea after engaging in sexual intercourse in foreign port. Ressler v States Marine Lines, Inc. (1975, CA2 NY) 517 F2d 579, cert den 423 US 894, 46 L Ed 2d 126, 96 S Ct 193.

Loss of future earning capacity element of damages under 46 USCS Appx § 688 must be projected from date of trial and union contract rates in effect at that time are reliable source of data on prevailing wage rate and use of contract rates in effect at time of trial does not introduce inflation element because seaman's future earning capacity is frozen for purposes of these calculations at base year rate. Davis v Hill Engineering, Inc. (1977, CA5 Tex) 549 F2d 314, reh den (CA5 Tex) 554 F2d 1065 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).

Jury award for future lost wages of injured roustabout was supported by record where there was testimony that hourly wage rate figure used was paid by major oil companies for such work and that below-market discount rate used was appropriate. Knight v Texaco, Inc. (1986, CA5 La) 786 F2d 1296.

District Court did not abuse its discretion in ignoring evidence of injured diver's pulmonary condition which allegedly would have limited his future as diver where District Court found that diver would have been employed as diving supervisor when his diving career ended. Pickle v International Oilfield Divers, Inc. (1986, CA5 La) 791 F2d 1237.

Standards of Federal Employers' Liability Act apply under Jones Act to determine whether back injury suffered by seaman in carrying cable on river tug rendered seaman "disabled"; where seaman is unable to sit, stand, climb, balance, or stoop for extended periods of time or to do heavy lifting, he is "disabled" from performing usual occupation of riverboat deckhand or harbor pilot but not from all gainful employment and, thus, it is proper to reduce seaman's future earnings as harbor pilot by: (1) amount he could earn working at sedentary or light job he is able to do, and (2) $ 25,000 to compensate for "intangible factors" such as possible aggravation of injury by hunting trip and sneezing episode, realistic possibilities of securing and maintaining full-time pilot position in depressed shipping economy, and seaman's degenerative disc disease, prior back injury, lack of tangible skills, limited formal education, and past work history of 13 jobs in 13 years. Burden v Evansville Materials, Inc. (1986, WD Ky) 636 F Supp 1022.

Any alleged error by seaman's expert in calculation of seaman's entitlement to future lost income under 46 USCS Appx § 688 was harmless, where proper base figure for computation of such recovery is seaman's gross earnings at time of accident, because jury's award of $ 195,000 was clearly based on calculation by barge line and towage company's expert, which equaled $ 194,090.75. Turner v Inland Tugs Co. (1988, ED La) 689 F Supp 612.

471. --Seaman earning more after accident

Award of future earnings is not excessive because injured seaman is now employed at salary in excess of amount he received when he sustained injury where court based its award for loss of future earnings on loss of employment opportunities as opposed to actual reduction in earnings. Wood v Diamond M Drilling Co. (1982, CA5 Tex) 691 F2d 1165, cert den 460 US 1069, 75 L Ed 2d 947, 103 S Ct 1523.

Impairment of earning capacity is determined by impairment of particular employment at time of injury and it is immaterial that seaman was earning more in wages after accident. Faudree v Iron City Sand & Gravel Co. (1962, WD Pa) 201 F Supp 447, affd (CA3 Pa) 315 F2d 647.

 

472. Medical expenses

Recovery of medical expenses in action under 46 USCS Appx § 688 is not prohibited as long as plaintiff is not permitted additional recovery for same expenses under count for maintenance and cure. Butwinski v Pennsylvania R. Co. (1957, CA2 NY) 249 F2d 644.

In action under 46 USCS Appx § 688, seaman is entitled to recover for medical expenses which have been or are likely to be incurred. Downie v United States Lines Co. (1966, CA3 Pa) 359 F2d 344, cert den 385 US 897, 17 L Ed 2d 130, 87 S Ct 201.

Rig owner's obligation to continue payments for maintenance and cure to injured seaman ended on date when medical evidence indicated that seaman had reached maximum cure. Thomas v Diamond M Drilling Co. (1978, CA5 La) 569 F2d 926.

In action by injured seaman under 46 USCS Appx § 688, jury erred in awarding maintenance and cure beyond point at which medical expert testified that plaintiff reached maximum medical recovery. Holmes v J. Ray McDermott & Co. (1984, CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682.

Seaman accidentally soaked with toxic chemicals was entitled to recover for continuing expense of periodic medical checkups to insure early detection and treatment of possible cancerous condition. Hagerty v L & L Marine Services, Inc. (1986, CA5 La) 788 F2d 315.

In action to recover damages under 46 USCS Appx § 688, judge may award damages without specifically detailing basis for arriving at figure; medical and funeral expenses would be in addition to general, undifferentiated award. Williamson v Western-Pacific Dredging Corp. (1969, DC Or) 304 F Supp 509, affd (CA9 Or) 441 F2d 65, cert den 404 US 851, 30 L Ed 2d 91, 92 S Ct 90.

It is now well established that injured seaman can recover in damages under 46 USCS Appx § 688 for medical expenses. Martinez v Star Fish & Oyster Co. (1974, SD Ala) 386 F Supp 560.

Seaman, injured carrying cable on river tugboat, is entitled under Jones Act to full medical expenses from date of injury to date of "maximum recovery" as part of "cure and maintenance" but medical expenses incurred after date of "maximum recovery" and future medical expenses are not part of cure and are subject to reduction based on seaman's contributory negligence. Burden v Evansville Materials, Inc. (1986, WD Ky) 636 F Supp 1022.

473. Mental anguish

Award for damages for personal injury may include element of mental anguish. Blanco v Phoenix Compania De Navegacion, S. A. (1962, CA4 Va) 304 F2d 13, 9 ALR3d 410.

Mental pain and anguish of decedent's beneficiaries is not compensable in wrongful death action under Jones Act (46 USCS Appx § 688); but mental pain and suffering of decedent is compensable injury in such action under § 688 where accompanied by injury of physical nature. Cook v Ross Island Sand & Gravel Co. (1980, CA9 Or) 626 F2d 746.

Seaman accidentally soaked with toxic chemicals was entitled to recover damages for fear or anxiety due to possibility of contracting cancer as aspect of mental anguish; with or without physical injury or impact, plaintiff is entitled to recover damages for serious mental distress arising from fear of developing cancer where fear is reasonable and causally related to defendant's negligence. Hagerty v L & L Marine Services, Inc. (1986, CA5 La) 788 F2d 315.

Bystander seaman cannot recover under Jones Act, where he was not personally in danger, but witnessed injuries to another person, his half-brother, who was crushed to death between 2 vessels; liability under Act for emotional injury to bystander cannot be sustained because such construction would represent major departure from existing jurisprudence, as well as vast extension of potential employer exposure to damages. Gaston v Flowers Transp. (1989, CA5 La) 866 F2d 816.

Although a seaman may recover under Jones Act for purely emotional injury, recovery will not be allowed where injury was not reasonably foreseeable consequence of negligence. Plaisance v Texaco, Inc. (1991, CA5 La) 937 F2d 1004.

Psychiatric treatment of tugboat captain, who aided rescue of worker on towed barge, for posttraumatic stress syndrome, was not reasonably foreseeable consequence of defendant's negligence and therefore does not support claim under Jones Act. Plaisance v Texaco, Inc. (1992, CA5 La) 966 F2d 166.

Mere witnessing of accident, without physical contact, is insufficient to permit suit for mental anguish. Ainsworth v Penrod Drilling Corp. (1992, CA5 La) 972 F2d 546.

Where cause of action has been pleaded without particularity and with lack of attention, court will not accept invitation to clarify issue of whether physical injury is necessary to award damages for emotional distress under Jones Act. Ellenwood v Exxon Shipping Co. (1993, CA1 Me) 984 F2d 1270, 1 ADD 414, 2 AD Cas 415, 8 BNA IER Cas 364, 60 CCH EPD P 41964, cert den 508 US 981, 125 L Ed 2d 682, 113 S Ct 2987 .

Sailor could not recover damages for alleged mental anguish due to being left by ship in foreign port, since there was no personal injury. Sellers v United States Lines Co. (1949, DC Cal) 89 F Supp 254.

In action under 46 USCS Appx § 688, element of mental anguish as part of award for damages is proper. Zanca v Delta S.S. Lines, Inc. (1965, ED La) 246 F Supp 127.

Seaman's claim under Jones Act (46 USCS Appx § 688) is denied, where seaman claims he suffers from post-traumatic stress disorder sustained from witnessing death of his half-brother who slipped from seaman's grasp and was crushed between barges due to alleged negligence of vessel's captain, but sets forth no evidence to support his claim, because no circuit courts have addressed this issue to date and even though Supreme Court has indicated Jones Act court may refer to state law to decide new issues concerning recovery for wholly emotional injuries, seaman has not presented facts sufficient to survive motion for directed verdict. Gaston v Flowers Transp. (1987, ED La) 675 F Supp 1036.

Employer is granted summary judgment in seaman's action seeking recovery for emotional injuries incurred from witnessing accident in which fellow crew member was killed, since seaman does not claim that he was physically injured or believed he was in physical danger, and there is no cause of action under 46 Appx USCS § 688 for purely emotional injuries incurred from witnessing injury to another. Kiffe v Neches-Gulf Marine, Inc. (1989, ED Tex) 709 F Supp 743.

Tugboat captain's claim for emotional injury under 46 USCS Appx § 688 must fail, even though captain witnessing fire in vicinity of his tugboat perceived himself to be in actual danger, where fire was extinguished, boat was not damaged, no one was injured, and other persons even found safe haven on captain's boat, because subjective belief that seaman was in danger, standing alone, is insufficient to give rise to cause of action for emotional injury. Plaisance v Texaco, Inc. (1990, ED La) 735 F Supp 686.

Crane operator may proceed with Jones Act (46 USCS Appx § 688) claim for purely emotional injuries suffered on isolated, self-supporting jackup rig unit after 2 severe explosions rudely awakened him at 3 a.m. and he realized and saw that he was within 50 to 75 feet of flames fueled by open gas leak, because whether he was within "zone of danger" is question of fact for jury. Anselmi v Penrod Drilling Corp. (1993, ED La) 813 F Supp 436, 1993 AMC 1617.

Claim for intentional infliction of emotional distress by former crew member against vessel owner under 46 USCS Appx § 688, for injuries sustained as result of excessive, mandated overtime and abuse and harassment by superior officers and other crew members, is denied summarily, because allegations of mistreatment on board vessel, assuming they are true, fail to rise to level necessary to raise genuine issue of intentional infliction of emotional distress. Yballa v Sea-Land Servs. (1995, DC Hawaii) 919 F Supp 1428, 1996 AMC 283.

474. Pain and suffering

Damage award under 46 USCS Appx § 688 may include element of pain and suffering if it is 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.

In action under 46 USCS Appx § 688, seaman is entitled to recover for pain, suffering, discomfort and inconvenience. Downie v United States Lines Co. (1966, CA3 Pa) 359 F2d 344, cert den 385 US 897, 17 L Ed 2d 130, 87 S Ct 201.

In action under 46 USCS Appx § 688, damage award may include element of pain and suffering. Stevens v Seacoast Co. (1969, CA5 Miss) 414 F2d 1032.

Jury is entitled to award plaintiff full tort damages under either 46 USCS Appx § 688 count, maintenance and cure count, or both, as long as it does not award double recovery for any element of damages where jury could reasonably have concluded that plaintiff, on number of occasions, suffered pain, nausea, and other symptoms of decompression sickness, reported symptoms to defendant, yet was unreasonably denied treatment in recompression tank. Gaspard v Taylor Diving & Salvage Co. (1981, CA5 La) 649 F2d 372, reh den (CA5 La) 656 F2d 700 and cert den 455 US 907, 71 L Ed 2d 445, 102 S Ct 1252.

Award of $ 300,000 to injured roustabout for pain, suffering, and disability did not shock conscience or exceed maximum amount that reasonable jury could award where roustabout suffered crushed foot requiring surgery to correct nerve disorder and bone displacement, had 35 to 40 percent permanent disability, was unable to stand for more than 3 or 4 hours without suffering from soreness, swelling, and burning sensations, and doctors testified that arthritis was developing in foot, that it would get worse, and that there would be more pain and disability. Knight v Texaco, Inc. (1986, CA5 La) 786 F2d 1296.

Award of $ 459,559.96 for predeath pain and suffering of seaman was excessive, where record revealed that seaman suffered no acute distress until 5 days before his death. De Centeno v Gulf Fleet Crews, Inc. (1986, CA5 La) 798 F2d 138.

Court refuses to adopt per se rule to effect that where personal injury award reflects exact amount of plaintiff's out-of-pocket losses, verdict establishes on its face that jury failed and refused to award compensation for pain and suffering and for disability, and refusal of trial court to grant new trial amounts to abuse of discretion. Milone v Moceri Family, Inc. (1988, CA1 Mass) 847 F2d 35.

When seaman experiences pain, suffering and inconvenience caused by accident, items are recoverable under 46 USCS Appx § 688 based on negligence but not under general maritime action for maintenance and cure. Haywood v Jones & Laughlin Steel Corp. (1952, DC Pa) 107 F Supp 108.

In action to recover for damages under 46 USCS Appx § 688, general damages may be awarded to compensate seaman for pain, distress and discomfort. Yarbough v American Mail Line, Ltd. (1954, DC Cal) 119 F Supp 776.

It is now well established that injured seaman can recover damages under 46 USCS Appx § 688 for pain and suffering. Martinez v Star Fish & Oyster Co. (1974, SD Ala) 386 F Supp 560.

Award for physical pain, mental anguish, and loss of enjoyment of life under Jones Act to seaman partially disabled when his back was injured carrying cable on river tugboat is $ 80,000, subject to reduction on basis of contributory negligence, where, although seaman has serious condition, multiple surgical techniques have been performed by numerous physicians, and seaman has endured both mental anguish and physical pain, many of his complaints of pain are believed to be product of depression created by his inactivity over 5 years since injury and court's observations of seaman over 4 day trial do not support claim of continuing, untreatable pain. Burden v Evansville Materials, Inc. (1986, WD Ky) 636 F Supp 1022.

Seaman's award of $ 100,000 for future pain and suffering will not be disturbed, even though life expectancy tables or other evidence of expected duration of seaman's life are nevertheless relevant to determination of future pain and suffering and court is troubled by absence of such evidence, because, unlike pecuniary damages, noneconomic damages may be largely supportable on testimony from seaman concerning his pain and suffering and loss of enjoyment of life after accident together with evidence that injuries are permanent and chronic. McKeown v Woods Hole (1998, DC Mass) 9 F Supp 2d 32, 49 Fed Rules Evid Serv 883.

475. Miscellaneous

Although shortening of one's life expectancy is not per se compensable element of damages in action for personal injury under 46 USCS Appx § 688, fair and just results can be achieved by resort to rules of damages usually applied in tort actions which allow award and damages commensurate with nature and extent of injuries. Downie v United States Lines Co. (1966, CA3 Pa) 359 F2d 344, cert den 385 US 897, 17 L Ed 2d 130, 87 S Ct 201.

Allowance for future damage under 46 USCS Appx § 688 must take into account earning power of money awarded over term for which it compensates plaintiff. 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.

Award of $ 240,000 is not excessive where it is based on some $ 30,000 in lost wages, $ 5,000 of anticipated medical expenses, loss of future earnings between $ 155,000 and $ 304,000 and on excrutiating pain and suffering for a short time. Allen v Seacoast Products, Inc. (1980, CA5 La) 623 F2d 355, 6 Fed Rules Evid Serv 536 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).

Award for loss of life's enjoyment will not be disturbed although such was submitted as separate and simultaneous submission for pain, suffering, and mental anguish where employer's counsel failed to object to such submissions. Wood v Diamond M Drilling Co. (1982, CA5 Tex) 691 F2d 1165, cert den 460 US 1069, 75 L Ed 2d 947, 103 S Ct 1523.

Jones Act does not authorize recovery for loss of consortium in personal injury cases. Lollie v Brown Marine Serv., Inc. (1993, CA11 Fla) 995 F2d 1565, 7 FLW Fed C 589.

Heart attacks are compensable under Jones Act when they are negligently caused by physical stress or extraordinary nonphysical stress, but heart attacks caused by ordinary nonphysical workplace stress are not compensable. Szymanski v Columbia Transp. Co. (1997, CA6 Ohio) 107 F3d 371, 1997 FED App 63P, vacated, reh, en banc, gr (1997, CA6) 1997 US App LEXIS 10389.

In action under 46 USCS Appx § 688, seaman's "found," which is his room and board while on ship, could be included in his recovery for personal injuries. Jones v Atlantic Refining Co. (1944, DC Pa) 55 F Supp 17, 1944 AMC 787.

2. Deductions From Award

476. Insurance benefits

In action to recover damages under 46 USCS Appx § 688, insurance policy which provides for weekly payments during period of nonoccupational disability are similar to accumulated leave time payments, and form of deferred compensation; they are designed to replace lost wages, not to provide room and board and medical treatment, and benefits have nothing to do with vessel owner's separate maintenance obligation; credit against that obligation, with respect to maintenance and cure, would be inappropriate. Shaw v Ohio River Co. (1975, CA3 Pa) 526 F2d 193, 33 ALR Fed 521.

Standard provisions of municipality's maritime insurance policy did not cover liability for accident where vessel borrowed from Navy, and on which crewman from one of municipality's ships was injured, was owned by Navy and was not one of vessels listed in policy. City & County of San Francisco v Underwriters at Lloyds (1998, CA9 Cal) 141 F3d 1371, 98 CDOS 2895, 98 Daily Journal DAR 3982, 1998 AMC 1617.

In action under 46 USCS Appx § 688, award made to widow of seaman must be reduced by sum paid to her under liability insurance policy taken out by shipowner, and on which shipowner had paid all premiums. Petition of Gulf Oil Co. (1963, DC RI) 221 F Supp 1000.

477. Statutory compensation payments

Benefits received by injured seaman under state unemployment disability benefits were not deductible from recovery under 46 USCS Appx § 688. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 1963 AMC 175, 4 ALR3d 517.

In action under 46 USCS Appx § 688, if plaintiff seaman, injured in course of employment on vessel, succeeds in this action and ultimately in his suit, shipowner may recoup amounts already paid by compensation carrier by deducting them when satisfying judgment; if compensation was paid by one insurer and judgment becomes payable by another, employer as legal debtor in both instances may retain from settlement of judgment sums necessary to reimburse compensation carrier; compensation and suit, are thus made complementary. Biggs v Norfolk Dredging Co. (1966, CA4 Va) 360 F2d 360.

Injured seaman's pension benefits are not, for purposes of 45 USCS § 55, received "on account of his injury," but rather as fringe benefit of his employment; thus, with respect to damages, there could be no setoff of pension benefits. Russo v Matson Navigation Co. (1973, CA9 Cal) 486 F2d 1018.

In action under 46 USCS Appx § 688, payments provided under Social Security Act cannot be considered in ascertaining pecuniary loss to widow and children, and cannot be deducted from award. Gardner v National Bulk Carriers, Inc. (1963, ED Va) 221 F Supp 243, affd (CA4 Va) 333 F2d 676.

Workmen's compensation award by Deputy Commissioner does not bar employee's recovery as seaman of damages for physical injury under 46 USCS Appx § 688 on theory of res judicata or collateral estoppel where Deputy Commissioner has failed to make any finding as to jurisdictional facts; if plaintiff recovers under 46 USCS Appx § 688 in addition to receiving workmen's compensation benefits, he would not receive double payment because proper credit would be given for compensation payments. Smith v Service Contracting, Inc. (1964, ED La) 236 F Supp 492.

State employees' compensation fund is not entitled to lien on seaman and wife's settlement with state university/higher education board, where seaman was injured in 2 accidents aboard university research vessel, received medical services and compensation from fund, and then settled subsequent legal claims through negotiations which took into account medical services and compensation previously paid, because post-settlement lien would take away seaman and wife's right to damages received under Jones Act. Benders v Board of Governors (1990, DC RI) 728 F Supp 839.

478. --Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.)

If seaman succeeds in action under 46 USCS Appx § 688, employer may recoup amounts already paid in previous action brought by seaman under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) by deducting them when satisfying judgment and in event compensation was paid by one insurer and judgment becomes payable by another, employer as legal debtor in both instances may retain from settlement of judgment sums necessary to reimburse compensation carrier. Biggs v Norfolk Dredging Co. (1966, CA4 Va) 360 F2d 360.

Payments made directly to injured seaman on behalf of his employer pursuant to Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) whose purpose was to compensate at least to degree, pecuniary loss as sustained by employee from injury received in course of employment are not subject to repayment when it was found that action should have been brought under 46 USCS Appx § 688 but rather is to be credit against damages ultimately recovered under § 688 action. Massey v Williams-McWilliams, Inc. (1969, CA5 La) 414 F2d 675, cert den 396 US 1037, 24 L Ed 2d 681, 90 S Ct 682 and on remand (ED La) 317 F Supp 37.

Damage award under Jones Act (46 USCS Appx § 688) would be reduced by amount of benefits paid to plaintiff by defendant under LHWCA (33 USCS § § 901 et seq.). Cheuvront v Pittsburgh & L. E. R. Co. (1979, WD Pa) 477 F Supp 193.

479. Miscellaneous

Seaman's recovery for maintenance and care would not be reduced by amount he earned during period in which he had not reached maximum recovery. Vaughan v Atkinson (1962) 369 US 527, 8 L Ed 2d 88, 82 S Ct 997, 1962 AMC 1131, reh den 370 US 965, 8 L Ed 2d 834, 82 S Ct 1578 and on remand (ED Va) 206 F Supp 575.

Jones Act settlement between seaman and employer specifically excluding any claims arising out of his employee benefit plan prevented employer from setting off Jones Act settlement against benefits due under benefit plan. Jones v Sonat, Inc. (1993, CA5 La) 997 F2d 113, 16 EBC 2793.

Where money advanced to injured diver was presented to jury for consideration in its determination of past wages, there was no error in trial court's decision not to reduce damage award by stipulated amount. Hughes v International Diving & Consulting Servs. (1995, CA5 La) 68 F3d 90, reh den (1995, CA5 La) 1995 US App LEXIS 38407.

Defendant in action under 46 USCS Appx § 688 should be permitted to show substantial voluntary advances made to plaintiff to aid him when helpless in his injured condition as set-off and counterclaim. Royle v Standard Fruit & S. S. Co. (1944) 184 Misc 348, 50 NYS2d 351, mod 184 Misc 348, 52 NYS2d 407, affd 269 App Div 762, 54 NYS2d 778.

C. Damages For Wrongful Death

1. Elements of Damages

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 § 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 § 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 § 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 § 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 § 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 § 688; loss of decedent's society is not recognizable element of damages under 46 USCS Appx § 688 because it represents nonpecuniary loss; survivors suing under 46 USCS Appx § 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 § 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 § § 51 et seq.)

46 USCS Appx § 688, which incorporates by reference 45 USCS § § 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 § § 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 § 688, measure of damages for death of seaman as result of personal injury in course of employment is that provided in 45 USCS § 51. Petition of Gulf Oil Corp. (1963, DC RI) 221 F Supp 1000.

Survivor may recover under 46 USCS Appx § 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 § 688; loss of decedent's society is not recognizable element of damages under 46 USCS Appx § 688 because it represents nonpecuniary loss; survivors suing under 46 USCS Appx § 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 § 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 § 688; however, recovery under § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 688), Death on High Seas Act (46 USCS Appx § § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 688) or DOHSA (46 USCS Appx § § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 688 action to recover damages resulting from seaman's death. Standard Products, Inc. v Patterson (1975, Miss) 317 So 2d 376.

2. Computation of Award

498. Net or gross earnings

In computing loss of future earnings to disabled seaman under Jones Act (46 USCS Appx § 688), gross earnings should not be used; unless amounts worker would have been required to pay in income taxes and social security taxes is negligible or should, for some articulated reason, be disregarded, lost income stream must be computed after deducting income taxes and social security taxes worker would have paid had he continued to work. Madore v Ingram Tank Ships, Inc. (1984, CA5 Tex) 732 F2d 475.

Child's loss of support in action under 46 USCS Appx § 688 is not measured by his father's net earnings at time of death, but by gross earnings. 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).

499. Wage increases and decreases

In action brought under 46 USCS Appx § 688, contention that damages should be reduced because of likelihood of wage reduction, may be offset by evidence of possibility that had decedent survived, it would reasonably have been expected that he would have received promotions. Pollard v Seas Shipping Co. (1945, CA2 NY) 146 F2d 875.

In action brought under 46 USCS Appx § 688 and general maritime law by representative of decedent, expert testimony with respect to future wage increases which might have occurred due to decedent's developing skill and experience should be admitted. 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.

In action under 46 USCS Appx § 688, court erred in allowing parties to introduce evidence of wage increases seaman would have received as result of factors other than inflation. Ober v Penrod Drilling Co. (1984, CA5 La) 726 F2d 1035.

Claim for wages lost to date of trial in wrongful death action brought under 46 USCS Appx § 688 will be disallowed where pecuniary loss is determined according to life expectancy as of date of death, such allowance for wage loss between death and date of trial would be duplicitous. Trexler v Tug Raven (1968, ED Va) 290 F Supp 429, revd on other grounds (CA4 Va) 419 F2d 536, cert den 398 US 938, 26 L Ed 2d 271, 90 S Ct 1843.

Under 46 USCS Appx § 688, Death on High Seas Act (46 USCS Appx § § 761 et seq.), and general maritime law, dependent survivors of each of decedents killed at sea due to helicopter crash were entitled to recover damages for loss of contributions and support they would have received out of accrued and future gross earnings of decedents had they lived. 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).

Posthumous child's loss of support is measured by decedent's gross earnings at time of death, plus probable future increased earnings, and damages caused 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).