The opinion of the court was delivered by: HANNUM
The plaintiff, Maria E. Floyd, brought this action pursuant to the Death on the High Seas Act, 46 U.S.C. § 761, and the Jones Act, 46 U.S.C. § 688, for the wrongful death of her father and improper disposition of her father's remains. The plaintiff alleges that her father, James H. Floyd, was a member of the crew of the SS Shirley Lykes; that the defendant owned, operated and managed the ship; and that as a result of the defendant's negligence and of the ship's unseaworthiness, Mr. Floyd sustained injuries and illness which caused his death on August 19, 1983. The plaintiff further contends that following the death of Mr. Floyd, the defendant disposed of his body by putting it over the side of the ship and into the sea without obtaining the permission of Mr. Floyd's family.
I. The defendant's motion for summary judgment on the plaintiff's wrongful death claim
In support of the motion for summary judgment on the plaintiff's wrongful death claim, in which the defendant contends that Mr. Floyd's death was due to natural causes, the defendant asserts that Mr. Floyd served as an able-bodied seaman on its vessel, the SS Shirley Lykes, from June 28, 1983 to August 19, 1983. The defendant alleges that it first became aware that Mr. Floyd was unwell when he approached Chief Mate Leslie G. Rathbun, the medical officer on board the SS Shirley Lykes, at 1:00 P.M. on August 19, 1983, and complained of a headache. Chief Mate Rathbun found that Mr. Floyd's temperature, pulse, and rate of respiration were normal and gave Mr. Floyd four aspirin. At 2:30 P.M., Mr. Floyd told Chief Mate Rathbun that the aspirin were working. Chief Mate Rathbun gave sixteen aspirin to Mr. Floyd at 5:00 P.M. and prescribed that he take two every two hours.
The defendant further contends that when Anatolio Martinez, Mr. Floyd's bunkmate, attempted to wake up Mr. Floyd at about 11:30 P.M. for his watch, which began at midnight, he was unable to do so. Mr. Martinez immediately called Captain Edward M. Powell who went to Mr. Floyd's cabin with Chief Mate Rathbun. When they arrived, they noted that Mr. Floyd was lying on his back with the covers pulled up. They saw no signs of foul play. The Captain and Chief Mate conducted an examination of Mr. Floyd's body and allegedly observed the following:
Mr. Floyd's eyes were open and appeared "milky"; Mr. Floyd's head was "thrown back"; Mr. Floyd was not breathing; Mr. Floyd was noted to be cool to the touch; Mr. Floyd's arm was noted to have begun to stiffen; when the Captain tried to palpate a pulse in the right wrist, neck, and chest of Mr. Floyd, there were no pulsations detectable; and when the Captain tried to hear a heart beat by placing his ear to Mr. Floyd's chest, there was no sound audible.
Based upon the examination, which lasted about an hour, both Captain Powell and Chief Mate Rathbun concluded that Mr. Floyd was dead and that nothing could be done to revive him.
The defendant asserts that Mr. Floyd was dead when Captain Powell and Chief Mate Rathbun began their examination of him, that nothing anyone could have done would have restored life to Mr. Floyd, that Mr. Floyd's death was due to natural causes and not caused by the negligence of the defendant or any of its employees, the unseaworthiness of the SS Shirley Lykes, or any breach of the defendant's obligations.
Attached to the defendant's motion is the affidavit of Dr. Marvin E. Aronson, who is board certified in the specialties of anatomic pathology, clinical pathology, and forensic pathology. After reviewing statements and testimony of the Captain and Chief Mater, as well as pages from the ship's log, medical log, and two accident/illness reports, all of which are attached to the motion, Dr. Aronson opined that:
Mr. Floyd was dead at the time of the initial examination by Captain Powell and Chief Mate Rathbun, and . . . that no action that Captain Powell or Chief Mate Rathbun, (or anyone else), could have taken subsequent to their initial examination of Mr. Floyd could have restored life to Mr. Floyd.
The plaintiff does not dispute Dr. Aronson's opinion that nothing anyone could have done could have revived Mr. Floyd. Instead, the plaintiff relies on the testimony of Captain Norman Groebel and the affidavit of Dr. Robert J. Segal
to question the credibility of the Captain and the Chief Mate and to assert that factual questions exist which preclude summary judgment for the defendant.
As the Court related above, the Captain and First Mate asserted that when they examined Mr. Floyd, they observed that Mr. Floyd was cool to the touch, that his arm had begun to stiffen, and that nothing they could have done would have revived Mr. Floyd. Dr. Segal's statement is to the effect that a body would not be cool to the touch within the first two or three hours after death and that there would be no stiffness within two hours after death. The testimony of ...