UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: February 26, 1971.
XAVIER MAXIME DUGAS, ADMINISTRATOR OF THE ESTATE OF KATHRYN CECILE DUGAS, DECEASED
NATIONAL AIRCRAFT CORPORATION AND JAMES HART, ADMINISTRATOR C.T.A. OF THE ESTATE OF THEODORE H. HART, ALSO KNOWN AS THEODORE HENRY HART, III, DECEASED BETTY R. GUISINGER, ADMINISTRATRIX OF THE ESTATE OF CHRISTINA M. HART, DECEASED V. NATIONAL AIRCRAFT CORPORATION AND JAMES HART, ADMINISTRATOR C.T.A. OF THE ESTATE OF THEODORE H. HART, ALSO KNOWN AS THEODORE HENRY HART, III, DECEASED
Biggs, Van Dusen and Rosenn, Circuit Judges.
Author: Van Dusen
VAN DUSEN, Circuit Judge:
This is an appeal from a February 24, 1970, judgment awarding damages under both the federal Death on the High Seas Act*fn1 and the Pennsylvania Survival Act*fn2 for the deaths of two teenage girls resulting from a crash of a private airplane at sea.*fn3
The plane took off during the night from the island of South Caicos in the Bahamas on a flight to San Juan, Puerto Rico, and disappeared along with its pilot and the two passengers, Kathryn Dugas and Christina Hart.
Xavier Maxime Dugas, the father and administrator of the estate of Kathryn Cecile Dugas, along with Betty R. Guisinger, the mother and the administratrix of the estate of Christina M. Hart, filed separate suits, which were consolidated for trial, against National Aircraft Corporation, the owner of the airplane, and James M. Hart, the administrator of the estate of Theodore M. Hart, the aircraft's pilot. Theodore Hart was the father of one of the girls, Christina Hart. Plaintiff's theory was that Mr. Hart, while acting as the agent of National Aircraft, operated the aircraft in a negligent manner, thereby causing the deaths of plaintiffs-decedents. The parties admitted that the accident occurred in international waters and that the applicable federal statute was the Death on the High Seas Act (DOHSA).
At the conclusion of a hearing on defendant's motion for judgment on the pleadings, the district court filed an opinion on June 30, 1969, holding that the DOHSA was not the sole basis for recovery and that any recovery pursuant to the wrongful death provisions of the federal statute could be supplemented by an award under the Pennsylvania Survival Act.
Subsequently, the district court, sitting in admiralty, ruled that Mr. Hart had operated the aircraft in a negligent manner and consequently that the administrator of his estate was liable. Dugas v. National Aircraft Corp., 310 F. Supp. 21, 26 (E.D. Pa. 1970). The court ruled in favor of National Aircraft Corporation because plaintiffs "failed to establish liability against . . . [the company] on the theory of respondeat superior or on any other ground." Id. at 26. Accepting the ruling on the pre-trial motions as the law of the case, the district court, at the conclusion of the trial, awarded damages under both the DOHSA and the Pennsylvania survival statute. Under the federal statute, the court granted $15,000 to Mrs. Virginia Dugas, $6,000 to Mr. Xavier Dugas, and $17,000 to Mrs. Betty Guisinger, along with interest from the date of decedents' deaths to the entry of judgment at six per cent. per annum. Id. at 25. Under the Pennsylvania Survival Act, the court awarded damages of $15,000 to Xavier Dugas for the benefit of the Estate of Kathryn Cecile Dugas and $18,000 to Betty Guisinger for the benefit of the Estate of Christina M. Hart. Id. at 26. In making the awards under the DOHSA, the court proceeded on the theory that the two girls, both aged 16 at the time of the accident, would have made financial contributions to their parents after becoming adults. The administrator of the estate of Theodore M. Hart appeals on two grounds. First, he contends that the DOHSA affords the exclusive remedy for the tort. Second, he claims that the awards under the DOHSA, based as they were on future voluntary contributions, were improperly conjectural.
I. Exclusivity of Remedy under the Death on the High Seas Act
Defendant Hart contends that the DOHSA precludes recovery under a state survival statute and that this position is supported by judicial decisions, by the legislative history of the DOHSA, and by the policy of uniformity in the maritime law.
The DOHSA is framed as a wrongful death statute in that it compensates relatives of the deceased for their loss. Courts have clearly held that the need for uniformity requires that the Act supersede any state wrongful death statute. However, it is not so clear whether the Act preempts the separate and distinct remedy encompassed in state survival statutes*fn4 which preserve in the administrator of the decedent's estate that cause of action for pain and suffering which the decedent had until the moment of her death and for the earnings the decedent would have made in her lifetime, less her probable cost of maintenance, reduced to present worth.*fn5 The DOHSA is silent on the question.
The cases are divided, but the weight of opinion favors the view that relief may be granted under both the state survival statute and the DOHSA.
Although the Supreme Court has not spoken definitively on the problem, dicta in several recent cases suggest that recovery under a state survival statute would not be precluded under the DOHSA. Thus, the Court in Kernan v. American Dredging Co., stated, "Where death occurs beyond a marine league from state shores, the Death on the High Seas Act (1920), 41 Stat. 537, 46 U.S.C. §§ 761-768, provides a remedy for wrongful death. Presumably any claims, based on unseaworthiness, for damages accrued prior to the decedent's death would survive, at least if a pertinent state statute is effective to bring about a survival of the seaman's right." 355 U.S. 426, 430, n. 4, 78 S. Ct. 394, 2 L. Ed. 2d 382 (1958).
Defendant Hart refers us to a number of cases, some cited at page 12 of his brief and some in note 12 of the opinion in Dore v. Link Belt Co., 391 F.2d 671 (5th Cir. 1968), which, he claims, supports his argument that the remedy under the DOHSA is exclusive. We have examined the 14 cases and do not find them as persuasive as defendant does.
A number of these cases are clearly distinguishable from the contention being made here, since they hold or suggest that a state wrongful death act (not a state survival act) could not supplement the recovery provided for in the DOHSA. First National Bank in Greenwich v. National Airlines, Inc., 171 F. Supp. 528, 536 (S.D.N.Y. 1958), aff'd, 288 F.2d 621 (2d Cir.), cert. den., Kessler v. National Airlines, Inc., 368 U.S. 859, 7 L. Ed. 2d 57, 82 S. Ct. 102 (1961); D'Aleman v. Pan American World Airways, 259 F.2d 493, 496 (2d Cir. 1958) (concurring opinion); Jennings v. Goodyear Aircraft Corp., 227 F. Supp. 246, 248 (D. Del. 1964); Montgomery v. Goodyear Tire and Rubber Co., 231 F. Supp. 447, 452 (S.D.N.Y. 1964); King v. Pan American World Airways, 166 F. Supp. 136, 139 (N.D. Cal. 1958), aff'd, 270 F.2d 355 (9th Cir. 1959), cert. denied, 362 U.S. 928, 4 L. Ed. 2d 746, 80 S. Ct. 753 (1960); Wilson v. Transocean Airlines, 121 F. Supp. 85, 90-91 (N.D. Cal. 1954). These cases are not persuasive with regard to the contention that the Pennsylvania Survival Act should not be applied in this instance.*fn6 A group of other opinions contains, at most, language stressing the exclusive nature of the DOHSA, but the opinions do not include any discussion of the applicability of state statutes in cases brought under the DOHSA. See Blumenthal v. United States, 189 F. Supp. 439 (E.D. Pa. 1960), aff'd, 306 F.2d 16 (3d Cir. 1962); Middleton v. Luckenbach S.S. Co., 70 F.2d 326 (2d Cir. 1934); Devlin v. Flying Tiger Lines, Inc., 220 F. Supp. 924 (S.D.N.Y. 1963); Peterson v. United New York Sandy Hook Pilots Ass'n, 17 F. Supp. 676 (E.D.N.Y. 1936); cf. United States v. Gavagan, 280 F.2d 319, 321 (5th Cir. 1960), cert. denied, 364 U.S. 933, 5 L. Ed. 2d 365, 81 S. Ct. 379 (1961) (by implication). In another case, a district court held that the DOHSA did not itself confer upon the beneficiaries of a decedent a cause of action for conscious suffering, but did not face the question of whether such a cause of action under a state statute would be permitted in a suit under the DOHSA. Brown v. Anderson-Nichols & Co., 203 F. Supp. 489 (D. Mass. 1962). The remaining cases lend substantial support to defendant's position. In these DOHSA cases, the courts refused to permit the utilization of state law which would have granted relief under several theories distinct from wrongful death. See Igneri v. C.I.E. de Transports Oceaniques, 323 F.2d 257 (2d Cir. 1963), cert. denied, 376 U.S. 949, 11 L. Ed. 2d 969, 84 S. Ct. 965 (1964) (loss of consortium); Noel v. United Aircraft Corp., 204 F. Supp. 929 (D. Del. 1962), aff'd, in part, rev'd in part, 342 F.2d 232 (3d Cir. 1965) (implied warranty of fitness); Echavarria v. Atlantic & Caribbean Steam Nav. Co., 10 F. Supp. 677 (E.D.N.Y. 1935) (survival provisions of state death statute).
On the other hand, a number of cases cited by plaintiffs hold or clearly state in dicta that recovery under a state survival statute is permissible in a suit based on the DOHSA. United States v. S.S. Washington, 172 F. Supp. 905 (E.D. Va. 1959), aff'd, sub nom. United States v. Texas Co., 272 F.2d 711 (4th Cir. 1959) (holding); Canillas v. Joseph H. Carter, Inc., 280 F. Supp. 48 (S.D.N.Y. 1968) (dictum); Carli v. New London Flying Service, Inc., 1965 A.M.C. 1644 (D. Conn. 1962) (holding); Abbott v. United States, 207 F. Supp. 468 (S.D.N.Y. 1962) (holding); Petition of Gulf Oil Corp., 172 F. Supp. 911 (S.D.N.Y. 1959) (holding); McLaughlin v. Blidberg Rothchild Co., 167 F. Supp. 714 (S.D.N.Y. 1958) (dictum).
The legislators who enacted the DOHSA desired to eliminate the uncertainties accompanying the application of state statutes to deaths on the high seas. However, "there is nothing in the history of the passage of the Act . . . to indicate that the accomplishment of its remedial purposes should be construed to cut off other and distinct remedies." Petition of Gulf Oil Corp., supra, at 917 n. 29.
Defendant Hart argues that since the Jones Act, passed the same year as the DOHSA, specifically provides for a survival remedy, it is a reasonable assumption that the failure to mention a survival remedy in the DOHSA indicates a congressional intent to limit recovery to the wrongful death provisions of the Act. However, it may be that Congress incorporated into the Jones Act the whole of Section 9 of the F.E.L.A. along with its survival provision. See O'Day, Maritime Wrongful Death and Survival Recovery: The Need for Legislative Reform, 64 Colum. L. Rev. 648, 654 (1964); cf. G. Gilmore and C. Black, The Law of Admiralty, § 6-33 (1957).
Defendant Hart's third argument is that the application of a state survival statute in this instance is unconstitutional because it contravenes the policy of the maritime law that federal law shall be supreme in the interests of uniformity.*fn7 The Supreme Court has said that a state statute violates this policy when it "contravenes the essential purpose expressed by an act of Congress or works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations. . . ." Southern Pacific Co. v. Jensen, 244 U.S. 205, 216, 61 L. Ed. 1086, 37 S. Ct. 524 (1917). The Court has recognized that state wrongful death and survival statutes " . . . historically absent from the relief offered by the admiralty, have been upheld when applied to maritime causes of action." Romero v. International Terminal Operating Co., 358 U.S. 354, 373, 3 L. Ed. 2d 368, 79 S. Ct. 468 (1959). More recently the Court stated that the preservation of causes of action by permitting suits under state survival statutes for wrongs "committed within the admiralty jurisdiction and defined by admiralty law, . . . need not bring with it any undesirable disuniformity in the scheme of maritime law." Kossick v. United Fruit Co., 365 U.S. 731, 739-40, 6 L. Ed. 2d 56, 81 S. Ct. 886 (1961).
Moreover, the Supreme Court has recognized a congressional policy "favoring recovery in the absence of a legislative direction to except a particular class of cases." Moragne v. States Marine Lines, Inc., 398 U.S. 375, 393, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970).*fn8 Neither in the legislative history nor in the wording of the DOHSA itself is there any apparent congressional intent to exclude recovery under survival statutes.
The various statements of the Supreme Court and the absence of congressional intent to exclude recovery convince us that the policy of uniformity is not violated.
A refusal to permit an award under the state survival statute will result in a distinction between the recovery which could be had on land and that on the high seas, a distinction which is unreasonable and unnecessary.*fn9 Admiralty has remained flexible so as to be faithful to its tradition of granting the most equitable relief. Kossick v. United Fruit Co., 365 U.S. 731, 739-40, 6 L. Ed. 2d 56, 81 S. Ct. 886 (1961). Faithfulness to that tradition here warrants granting relief under the Pennsylvania Survival Act.
II. Award Under the Death on the High Seas Act
The amount of recovery under the Death on the High Seas Act is determined by the actual pecuniary loss sustained by the beneficiary due to the wrongful death. First National Bank in Greenwich v. National Airlines, Inc., 171 F. Supp. 528 (S.D.N.Y. 1958), aff'd, 288 F.2d 621 (2d Cir.), cert. denied, Kessler v. National Airlines, Inc., 368 U.S. 859, 7 L. Ed. 2d 57, 82 S. Ct. 102 (1961). There must be a "reasonable expectation that such benefits would have occurred to the complainant from the continued life of the decedent." The S.S. Black Gull, 90 F.2d 619, 620 (2d Cir. 1937), cert. denied, Faye v. American Diamond Lines, 302 U.S. 728, 82 L. Ed. 562, 58 S. Ct. 50 (1937); First National Bank in Greenwich v. National Airlines, Inc., supra at 537; see also Chesapeake and Ohio Ry. Co. v. Kelly, 241 U.S. 485, 489, 60 L. Ed. 1117, 36 S. Ct. 630 (1916). In appropriate circumstances, damages may be awarded for the loss of services and earnings of a child during her minority and also for the loss of contributions which a parent might reasonably expect to receive from the child during his lifetime. See Michigan Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 71, 57 L. Ed. 417, 33 S. Ct. 192 (1913);*fn10 First National Bank in Greenwich v. National Airlines, Inc., supra. The district court found that voluntary contributions would have been made by the girls to their parents after they had graduated from college and secured jobs. Accordingly, the district court awarded $15,000 to Mrs. Virginia Dugas and $6,000 to Mr. Xavier Dugas, the parents of Kathryn Dugas, and $17,000 to Mrs. Betty Guisinger, the mother of Christina Hart.*fn11 We approve the careful reasoning of the district court on the elements of damages contemplated by the DOHSA as stated under IV-A and B of its opinion (310 F. Supp. at 26-29).
However, defendant Hart claims that this award was too speculative.*fn12 The problem presented by this damage issue is whether the district court conclusions in the first two paragraphs under IV-D (310 F. Supp. at 29) are legally supported by the evidence in the record and its limited findings made in paragraphs 24-29 of II (310 F. Supp. at 25).
Courts have listed a number of elements to be considered in awarding damages to parents for pecuniary loss resulting from the death of a child, including the deceased's age, health, and earning capacity, her surviving beneficiaries, their ages, health and financial condition, her contributions to them, and her relationship with them. See Wade v. Rogala, 270 F.2d 280 (3d Cir. 1959); Petition of Gulf Oil Corp., 172 F. Supp. 911 (S.D.N.Y. 1959).
The record and the facts found by the judge contain information on some of these points. The district court found*fn13 that these girls were 16 years old, healthy, attractive and intelligent. It found they would have gone to college. Moreover, the court found that they were helpful, well-disciplined and devoted to their parents.
The court found that Betty Guisinger was in relatively good health*fn14 and earned a modest income. She also had a son, three years younger than Christina. Xavier Dugas, the father of Kathryn Dugas, "has suffered major health problems,"*fn15 has four minor children who depend on him,*fn16 and earns a "modest" income and pension. The court found that his wife, Virginia Dugas, enjoyed good health and has been employed as a housewife all her life. After considering the "divorced status of Christina Hart's mother and apparent lack of alimony support from her former husband," and the "fact that Mr. Dugas . . . may in the future become disabled," the court concluded: "In both cases, I believe the decedents would have made substantial voluntary contributions to their parents in the form of money and services in the future." Dugas v. National Aircraft Corp., 310 F. Supp. at 29.
If the parents were ill or destitute and in need of help, the evidence justifies a finding that these girls would not have ignored them.*fn17 However, because of other evidence in the record described below, unless there are additional facts not specifically considered by the court's findings, these awards are so speculative as to be invalid.*fn18
The following items in the evidence were not specifically mentioned in the court's opinion and findings, but are relevant to the district court's conclusion that "the decedents would have made substantial voluntary contributions to their parents."
The parents had adequate incomes even though they were not wealthy. The record shows that the income of Betty Guisinger ranged from $5,327 per annum a few years before trial to $7,400 per annum the year of the trial. She also received $25.00 per month from Mr. Hart for the support of Christina. While her young son was dependent on her for support at the time of the deaths in question, the evidence indicates that he would be in a position to aid her within a few years after his sister reached her majority.
The record shows that Mr. Dugas worked steadily for a salary which ranged from $8,900 per annum in 1964 to $10,777 in 1968, and, in addition, receives a pension of $214.97 per month for his 20 years' service in the Marine Corps. He also has an adult son who had already attended college for one year and was in the armed forces at the time of the trial.
In addition, it is apparent that these girls had years of education and expenses ahead of them before they would have been in a position to contribute to their parents. As defendant Hart points out, there is a distinct possibility that the girls would have married and had children, thereby incurring their own financial burdens. See Moore-McCormack Lines v. Richardson, 295 F.2d 583, 589 (2d Cir. 1961), cert. denied, 368 U.S. 989, 7 L. Ed. 2d 526, 82 S. Ct. 606 (1962).
After careful consideration of the above factors specifically considered by the trial judge and the above-mentioned relevant evidence not referred to by him in making the above awards, we have concluded that the record does not justify such awards (see note 18 above). The inability of counsel to refer to any case under DOHSA or under the F.E.L.A., which awards damages for future voluntary contributions when the decedent had neither a full-time occupation nor a record of past financial contributions to the beneficiaries,*fn19 is an indication of absence of the necessary legal support for the court's damage conclusions on this issue. In five of the seven cases cited by the district court for the proposition that damages may be awarded for the contributions a minor would have made to beneficiaries during his majority, the decedent had a full-time job and had already contributed sums of money to the parents.*fn20 In the seventh case, it is not stated whether or not the decedent had given money to his family, but it seems clear he had a full-time job.*fn21 These girls did not have steady jobs; nor is there any evidence that they had made direct financial contributions to their parents.
This language used in the First National Bank in Greenwich case, supra at p. 624, is applicable to the situation presented by this record: " . . . those who have reached their majority must be very specific to show . . . a pecuniary value . . ." for the alleged loss sustained by them.
Although the awards are not justified without further findings or evidence, we do not hold that there is insufficient evidence in the record, when supplemented by further findings and, if relevant, actuarial as well as present worth data, to support any award. We express no opinion on the conclusion that some award is, or is not, permissible and, if so, its amount, because of lack of an evaluation by the trial judge of the evidence and considerations discussed above at pages 16-17 and the absence of any indication that reduction to present worth was or was not applied in reaching his conclusions on these damage issues.
We can find no indication of what factors in the evidence, not mentioned in the opinion, the court considered or that it reduced whatever contributions it found would be made to present worth. See Cox v. Northwest Airlines, Inc., 379 F.2d 893 (7th Cir. 1967)*fn22 cert. denied, 389 U.S. 1044, 88 S. Ct. 788, 19 L. Ed. 2d 836 (1968).
We will remand the case to the district court for more specific findings on basic facts, such as these, as well as for a discussion of its conclusions showing that all relevant factors have been considered in making any awards which the record, as supplemented, if necessary, may justify:
1. The beneficiaries' ages, life expectancies,*fn23 income and alternative means of support.
2. Annual sums which the children would have contributed at their future ages.*fn24
3. Other future obligations which the children could have been expected to have in addition to their desire to help possibly needy parents.
4. Method of reduction to present worth, including consideration of actuarial and present worth data.
5. Such other factors as the record, as supplemented, may make relevant.
Sections 1-a and 2-a of the February 24, 1970, judgment, being the awards under the DOHSA, will be vacated and the case remanded to the district court for further proceedings in accordance with part II of this opinion.