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Dugas v. National Aircraft Corp.

decided: February 26, 1971.

XAVIER MAXIME DUGAS, ADMINISTRATOR OF THE ESTATE OF KATHRYN CECILE DUGAS, 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 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. ยงยง 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 ...


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