September 18, 1963
PETER IGNERI AND THERESA IGNERI, PLAINTIFFS-APPELLANTS,
CIE. DE TRANSPORTS OCEANIQUES, DEFENDANT-APPELLEE.
Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.
FRIENDLY, Circuit Judge.
The issue, here presented for the first time in a federal Court of Appeals, is whether the wife of an injured longshoreman can recover for the loss of her husband's consortium caused by negligence of the shipowner or unseaworthiness of the ship. Two other district judges have concluded, as Judge Bartels did here, that she cannot. Bergamaschi v. Isthmian Lines, Inc., 1959 A.M.C. 1862 (S.D.N.Y.); Pruitt v. M. S. Rigoletto, 211 F.Supp. 295 (E.D.Mich.1962). We agree.
Peter and Theresa Igneri, husband and wife, brought this action in the District Court for the Eastern District of New York against Cie. de Transports Oceaniques. Their complaint invoked federal jurisdiction on the basis of diverse citizenship, the Igneris being alleged to be citizens of New York and defendant a foreign corporation. In a "First Cause of Action," Peter Igneri claimed damages for injuries sustained when he was struck by a bale of rubber while working as a longshoreman, in the employ of a stevedoring contractor, aboard defendant's vessel in Brooklyn harbor. The injuries are claimed to be permanent and to include a fracture of the spine with complete paralysis of the lower extremities and bladder; liability was asserted on the bases of negligence by the shipowner and of unseaworthiness of the vessel. In a "Second Cause of Action," Theresa Igneri sought further damages on the ground that "heretofore and for many years prior to this occurrence [she and Peter Igneri] * * * were and still are husband and wife, living together as such and in a happy connubial state * * *" and that as a result of the occurrence she "has been deprived of the services of her husband, Peter Igneri, his companionship, support, love, affection and consortium, as well as all facilities and domiciliary happiness normally enjoyed in normal marriage." Judge Bartels granted defendant's motion to dismiss the second cause of action as failing to state a claim upon which relief could be granted, 207 F.Supp. 236. Subsequently he amended his order to include the statement specified in 28 U.S.C. § 1292(b); we granted a timely application by Mrs. Igneri for leave to appeal, since the appeal presented a question of novel impression which ought be determined at this time so that, in the event of our disagreeing with the district judge, the two claims could be tried together.
(1) We begin by noting our approval of Judge Bartels' overruling an argument by defendant, which indeed has not been seriously pressed in this Court, that Mrs. Igneri's claim must be dismissed because, the action having been brought on the "law side", New York law controls and New York does not recognize a wife's claim for loss of consortium. Kronenbitter v. Washburn Wire Co., 4 N.Y.2d 524, 176 N.Y.S.2d 354, 151 N.E.2d 898 (1958).
Mrs. Igneri's claim is governed not by the law of New York but by the general maritime law. Although she was not aboard ship, it was the impact on her husband, which occurred on navigable waters, that caused the injury to her. Jordan v. States Marine Corp., 257 F.2d 232 (9 Cir., 1958); Pruitt v. M.S. Rigoletto, supra. The same considerations as to the desirability of uniformity that are relevant to the relations between a ship and those who work upon her apply with like force to claims by a worker's wife resulting from an injury to him. Suits by a husband, father, or wife for injury allegedly resulting from a shipboard accident to a family member have uniformly been held to involve maritime torts. New York & Long Branch Steamboat Co. v. Johnson, 195 F. 740 (3 Cir., 1912); Plummer v. Webb, 19 F.Cas. 891, 892-893 (No. 11,233) (C.C. Maine 1827); Pruitt v. M.S. Rigoletto, supra; Westerberg v. Tide Water Associated Oil Co., 304 N.Y. 545, 110 N.E.2d 395 (1953). The wrong to Mrs. Igneri, if any, being maritime, it is unnecessary to do more than cite Garrett v. Moore-McCormack Co., 317 U.S. 239, 244-245, 63 S. Ct. 246, 87 L. Ed. 239 (1942); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-410, 74 S. Ct. 202, 98 L. Ed. 143 (1953); and Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959), for the proposition that if the maritime law recognizes a claim such as that here asserted, this could not be defeated by a contrary New York rule.*fn1
(2) Although New York's denial of a claim by a wife for loss of consortium is thus in no way decisive, it does not follow that reference to the common law generally is without relevance. Maritime law draws on many sources; when there are no clear precedents in the law of the sea, admiralty judges often look to the law prevailing on the land. See Gilmore and Black, Admiralty (1957), § 1-16. At least this much is true. If the common law recognized a wife's claim for loss of consortium, uniformly or nearly so, a United States admiralty court would approach the problem here by asking itself why it should not likewise do so; if the common law denied such a claim, uniformly or nearly so, the inquiry would be whether there was sufficient reason for an admiralty court's nevertheless recognizing one. Compare The Harrisburg, 119 U.S. 199, 213-214, 7 S. Ct. 140, 30 L. Ed. 358 (1886). So we turn to the common law.
It was early held, and still is in the great majority of American states, that one who causes personal injury to a married woman, intentionally or negligently, is subject to liability to her husband for loss of consortium*fn2 as well as for any reasonable expenses incurred by him in providing medical treatment. American Law Institute, Restatement of Torts (1938), § 693; see Prosser, Torts (2d ed. 1955), at 701; Note, Judicial Treatment of Negligent Invasion of Consortium, 61 Colum.L.Rev. 1341, 1348-49 (1961). But until 1950 no decision (save for two that were rather promptly disapproved*fn3) allowed a recovery by a wife for loss of consortium resulting from a negligent injury to her husband. Restatement of Torts, supra, § 695; 1 Harper & James, Torts (1956), at 641; Holbrook, The Change in the Meaning of Consortium, 22 Mich.L.Rev. 1, 2-4 (1923). In that year the Court of Appeals for the District of Columbia Circuit, in Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, rejected the monolithic authority to the contrary and held, under the domestic law of the District,*fn4 that a wife could obtain such a recovery. Since 1950 eight state courts have followed the Hitaffer decision,*fn5 federal courts have interpreted the law of two other states to the same effect,*fn6 and in one state the same result has been achieved by statute.*fn7 As against the 12 American jurisdictions*fn8 which may thus be said to have espoused the Hitaffer result, 19 such jurisdictions,, which have considered the question since Hitaffer, have continued to deny recovery to a wife.*fn9 So also has the House of Lords, Best v. Samuel Fox & Co.,  A.C. 716, without a dissenting voice. However, in a number of these cases the opinions have made it plain, and others have implied, that the court agreed with Hitaffer in principle but felt constrained to leave any "change in the common law" to the legislature.*fn10 The commentator vote has been considerably more favorable to the Hitaffer result than the judicial. We have found only two voices,*fn11 but these notable ones, against the wife's recovery.*fn12
The prime argument for the Hitaffer result is equality between the sexes. Since the husband's cause of action for negligent invasion of consortium is generally recognized, it is said to fly in the face of the modern policy favoring the "emancipation" of married women to deny a corresponding action to the wife, whose "interest in the undisturbed relation with her consort is no less worthy of protection than that of her husband." Prosser, supra, at 704; see Hitaffer v. Argonne Co., supra, 183 F.2d at 819; cf. Bennett v. Bennett, 116 N.Y. 584, 590-91, 23 N.E. 17, 18-19, 6 L.R.A. 553 (1889). The wife's interest in the marital relation having long been accorded legal protection by claims for alienation of affections and similar torts, see Bennett v. Bennett, supra, it is argued that "[relief] is extended to the wife in [these] * * * cases for one basic reason, the interest of society in the protection of the family * * *. If this is the interest to be protected, * * * the law's protection should extend as well to the negligent as to the intentional injury." Montgomery v. Stephan, supra note 5, 101 N.W.2d at 234; see Lippman, supra, 30 Colum.L.Rev. at 668. The "intentional" nature of such torts as alienation of affections is said not to afford a valid reason to "invoke the principle which gives a right of action for an act done malevolently when no right of action would exist if the act were done without malice," since in such torts "there is never that active malevolence toward the plaintiff which is made the gist of the right of action." Holbrook, supra, 22 Mich.L.Rev. at 8.*fn13 Finally, it is urged that the harm done to the wife through serious injury to the husband is undeniably real, if only because "a sick, lame, nervous spouse is less desirable as a companion than a spouse in normal physical condition," Holbrook, supra, 22 Mich.L.Rev. at 8, but more especially when the injury permanently forecloses the wife's opportunity of having sexual relations and bearing children. Hence, it is said, the law should grant the wife such compensation as it can for the harm that she has suffered, and will continue to suffer, through the fault of the defendant.
The opposing arguments begin with the long history of common law authority against the wife's action, see Deshotel v. Atchison, T. & S.F. Ry., supra, 328 P.2d at 451,*fn14 but in no way stop there. It is contended that when the husband sues for his wife's injury, the real basis of his recovery is loss of her services, with the "sentimental" aspects of the recovery being in the nature of "parasitic" damages; since the wife in contrast has no right to her husband's services, but rather is entitled to his reciprocal obligation of support, and since she effectively recovers for this by sharing his own recovery for lost earnings due to his injury, the alleged "discrimination" between the spouses is said to be actually a rational distinction. See Kronenbitter v. Washburn Wire Co., supra, 176 N.Y.S.2d at 355; Best v. Samuel Fox & Co., supra,  A.C. at 735-36 (Lord Reid).*fn15 With loss of services eliminated, the wife's recovery would involve only such elements as the diminution of the value of her husband's society and affection and the deprivation of sexual relations and the attendant loss of child-bearing opportunity - elements which, it is argued, are too personal, intangible, and conjectural to be measured in pecuniary terms by a jury. See Deshotel v. Atchison, T. & S.F. Ry., supra, 328 P.2d at 451; Pound, supra, 14 Mich. L.Rev. at 194, 196. It is feared, moreover, that recognition of a cause of action on behalf of the wife would lead to a "double recovery." The husband in suing for his own injuries may recover not only for lost earnings (part of which recovery presumably goes to support his wife) but also for the impairment of function evidenced by his lost or diminished ability to engage in sexual intercourse, see Jaffe, supra, 18 Law & Contemp.Prob. at 229; cf. Dagnello v. Long Island R.R., 289 F.2d 797, 808 (2 Cir., 1961); Helmstetler v. Duke Power Co., 224 N.C. 821, 824, 32 S.E.2d 611, 613 (1945), and still further, probably, for the value of his wife's nursing services. See McCormick, Damages (1935), § 90. The fear is that in the wife's suit the jury will award duplicative damages to her for some of the same elements of injury. See Jaffe, supra, at 229; Dini v. Naiditch, supra, 170 N.E.2d at 894-896 (Schaefer, C.J., dissenting). It is true that, as Chief Justice Schaefer apparently concedes, see id., 170 N.E.2d at 895, this danger would be minimized where, as in the present case, the husband and wife have joined their claims so that these may be tried to a single jury. But once the wife's cause of action was recognized, the courts would have no power to require such a joinder - see 3 Moore, Federal Practice (1948), at 1808, and 1 Harper & James, supra, at 640 - and it is doubted that the trial court's instructions and its own power, combined with that of the appellate Court, Dagnello v. Long Island R.R., supra, to review verdicts for excessiveness would suffice to remove the danger of double recovery. Other less persuasive arguments are that the harm to the wife through her husband's injury is too "indirect" to warrant recovery, since it was suffered without physical impact or apprehension thereof, Best v. Samuel Fox & Co., supra,  A.C. at 731 (Lord Goddard), and that allowing recovery by the wife would open the door to claims by children of the injured man and others whose "relational interests" were even more attenuated. Neuberg v. Bobowicz, supra note 9, 162 A.2d at 666-67; Best v. Samuel Fox & Co., supra, at 734 (Lord Morton of Henryton). Compare Prosser, supra, at 704.
Finally, in answer to the "equality" argument, it is argued that the husband's recovery for loss of consortium should itself be abrogated. That right is said to be "a fossil from an earlier era," Jaffe, supra, at 229 - an anachronistic remnant of the wife's common law inability to sue and recover damages for her own injuries. Best v. Samuel Fox & Co., supra, at 728, 733, 735 (Lords Porter, Goddard, and Morton of Henryton); Neuberg v. Bobowicz, supra, 162 A.2d at 667. Adopting this view, some states, either by statute or decision, have eliminated the husband's action,*fn16 while others have restricted it to recovery for loss of services.*fn17 Although several commentators approving Hitaffer have indicated that producing "equality" between the sexes in this way would suit them just as well,*fn18 such a solution would be unacceptable to most adherents of that case.
(3) With the common law authorities so conflicting*fn19 and the opposing arguments so nearly in balance, we turn to an inquiry whether the historic common law position or the Hitaffer result comports better with other relevant elements of maritime law.
Defendant contends that the former answer can be rather quickly reached on the basis that the maritime law does not recognize even a husband's right to sue for loss of consortium, so that the "equality" argument is unavailable to the wife. In a District Court opinion in Savage v. New York, N. & H. S.S. Co., adopted by this Court, 185 F. 778, 781 (1911), Judge Hough stated in dictum that "No instance of what is in substance an action per quod consortium amisit has been shown in admiralty." But in the following year in New York & Long Branch Steamboat Co. v. Johnson, supra, 195 F. 740 (3 Cir., 1912), a court created precisely such an "instance * * * in admiralty" by holding that a husband could sue "for the injury sustained by him through said injury to his wife" while a passenger on a steamship; the husband was awarded $1,147, of which $447 was for medical expenses and $700 "for the loss of the aid, comfort and society of his wife * * * including therein probable future deprivation and expenses." (Record on Appeal, p. 237) The decision relied on two authorities, neither entirely relevant. One was the decision by Mr. Justice Story on circuit in Plummer v. Webb, supra, 19 F.Cas. 891, that a father, having a right to the services of his minor children, might sue in admiralty for damages from the tortious abduction of his son while on an ocean voyage. The other, even more dubious, was The Sea Gull, 21 F.Cas. 909 (No. 12,578) (C.C.Md.1865), allowing a husband to recover for his wife's death - a situation in which damages have traditionally been limited to the "pecuniary" loss without the sentimental aspects of consortium, see Michigan Central R.R. Co. v. Vreeland, 227 U.S. 59, 70-74, 33 S. Ct. 192, 57 L. Ed. 417 (1913), Gerardo v. United States, 101 F.Supp. 383, 385 (N.D.Cal.1951), and a decision which was overruled by The Harrisburg, supra, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358. On the other hand, the dismissal of a husband's action for both medical expenses and loss of society as the result of an alleged assault on his wife during a steamship voyage was affirmed, although without any explanation, in Klein v. Munson S.S. Line, 1934 A.M.C. 1310, 242 App.Div. 179, 272 N.Y.S. 704 (1st Dept.1934).*fn20 We have found no maritime cases relating to claims by wives for loss of consortium other than the district court decisions denying such claims by wives of longshoremen which we cited at the outset, and certain decisions denying such claims by wives of seamen which we will discuss below. Our investigation of maritime law generally being thus inconclusive, we turn to the particular bases for recovery here asserted.
(4) We deal first with the claim based on negligence.
If Peter Igneri had been a seaman, it would be altogether clear that his spouse's claim based on negligent injury to him would fail. Prior to the Jones Act, this result would have been readily reached on the basis, severely criticized, see 1 Harper & James, supra, at 640, but nevertheless uniformly followed, that where the person directly injured has no claim, as the seaman did not, The Osceola, supra, 189 U.S. at 175, 23 S. Ct. 483, 47 L. Ed. 760, the spouse also has none. See Savage v. New York, N. & H.S.S. Co., supra, 185 F. at 781; Gustafson v. Swedish American Line, 1940 A.M.C. 86 (N.Y.Sup.Ct. Kings County, 1940); Smither & Co. v. Coles, supra; 1 Harper & James, supra, at 640. When Congress, by the Jones Act, 46 U.S.C. § 688, gave a seaman the right to recover for personal injury caused by the employer's negligence, it did not authorize recovery by the seaman's wife for loss of consortium. As to non-fatal injuries this is plain from the language of the statute, which authorizes only the seaman himself (not his wife) to "maintain an action for damages at law." Westerberg v. Tide Water Associated Oil Co., supra, 304 N.Y. 545, 110 N.E.2d 395; Jordan v. States Marine Corp., supra, 257 F.2d at 233 (by concession). And it is established also that the damages recoverable by a seaman's widow suing for wrongful death under the Jones Act do not include recovery for loss of consortium. Tate v. C.G. Willis, Inc., 154 F.Supp. 402, 403 (E.D.Va.1957); Gerardo v. United States, supra, 101 F.Supp. at 385, and authorities cited; see Michigan Central R.R. v. Vreeland, supra, 227 U.S. at 71.*fn21
It is true that, as a longshoreman, Peter Igneri, unlike a seaman, had a right to recover for personal injury for negligence of the vessel, based on nonstatutory maritime law. Pope & Talbot, Inc. v. Hawn, supra, 346 U.S. at 413, 74 S. Ct. at 207, 98 L. Ed. 143 and cases cited in note 4 (1953). But that does not mean that in considering the novel question whether the spouse of a longshoreman should be allowed to recover for loss of consortium, we should ignore the maritime law denying any such right to the spouse of a seaman. The failure of the Jones Act to confer such a right on the spouse of a seaman cannot be dismissed as an inadvertence. The policy of the Federal Employers' Liability Act, the regime which the Jones Act made applicable to seamen, was that the new remedy for the employee was to be exclusive and that claims of relatives recognized by state law were to be abrogated; the FELA had been thus authoritatively construed before the Jones Act was passed, New York Central & H.R.R. Co. v. Tonsellito, 244 U.S. 360, 37 S. Ct. 620, 61 L. Ed. 1194 (1917); see Louisville & N.R.R. Co. v. Lunsford, 216 Ga. 289, 116 S.E.2d 232 (1960).
If there were evidence that maritime law generally recognized a claim for negligent injury to such an intangible right, or if the common law clearly authorized a wife's recovery, the gravitational pull of such concepts with respect to the wife of a longshoreman might be stronger than that of the analogy to the statute denying such recovery to a seaman's wife. But, with neither of these conditions realized, our duty to avoid capricious differences in treatment between similarly situated persons forbids our fashioning a rule that would place the spouse of a harbor-worker in a different, and better, position than the spouse of a seaman. Perceiving the anomaly in the rule which forbade a seaman, but not a harbor-worker, to recover for negligence against the ship, Congress largely ended the discrimination against seamen by passing the Jones Act; we should not create a new anomaly by giving the harbor-worker's wife a claim denied to the seaman's. Here Congress has utilized its constitutional power "to alter, qualify, or supplement" the maritime law "as experience or changing conditions might require," Panama R.R. Co. v. Johnson, 264 U.S. 375, 386, 44 S. Ct. 391, 393-394, 68 L. Ed. 748 (1924). Its action in doing so "must not be read in a spirit of mutilating narrowness"; the courts must give "'hospitable scope' to Congressional purpose even when meticulous words are lacking." United States v. Hutcheson, 312 U.S. 219, 235, 61 S. Ct. 463, 467-468, 85 L. Ed. 788 (1941). We can think of no reason why Congress, having ruled out a maritime claim against the ship for loss of consortium by the spouse of a negligently injured seaman, would wish the courts to construct one for the spouse of a negligently injured stevedore.
(5) We come finally to the wife's claim based upon a warranty of seaworthiness. That doctrine, as stated in Mr. Justice Brown's much quoted second proposition in The Osceola, 189 U.S. 158, 175, 23 S. Ct. 483, 487, 47 L. Ed. 760 (1903), is "That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship." Nothing was said as to the doctrine's going beyond the seaman so as to include his wife or children. Nor do we find any basis for such an extension in later Supreme Court decisions, of which Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), would be most helpful to the appellant. True, the opinion in that case declared "that contract alone is neither the sole source of the liability [for unseaworthiness] nor its ultimate boundary", and that the warranty of seaworthiness extended beyond seamen to others "who do the work of the sea without benefit of contract with the owner," 328 U.S. at 91, 66 S. Ct. at 876, 90 L. Ed. 1099. But the augmentation thus effected was still limited to persons doing the ship's work - the owner may not nullify his liability for unseaworthiness "by the device of having all who man the ship hired by others willing to furnish men for such service at sea or ashore", 328 U.S. at 91-92, 66 S. Ct. at 876, 90 L. Ed. 1099; the liability extends to cases "where the ship's work is done by others not in such an immediate relation of employment to the owner", 328 U.S. at 93, 66 S. Ct. at 876-877, 90 L. Ed. 1099 "to those who render [the ship's service] with his consent or by his arrangement," 328 U.S. at 95, 66 S. Ct. at 877-878, 90 L. Ed. 1099, to "men intermediately employed to do this work," 328 U.S. at 96, 66 S. Ct. at 878, 90 L. Ed. 1099. Nothing in this would suggest that the warranty of seaworthiness extends to relatives of the maritime worker, of whose very existence the shipowner may be unaware.
We would not be understood as suggesting that the issue of extending the warranty of seaworthiness beyond marine workers was before the Supreme Court in these cases so that the Court's declarations that the warranty existed as to the workers would necessarily preclude its running to their spouses. The point is rather that when the Court has created "a species of liability without fault, analogous to other well known instances in our law," Seas Shipping Co. v. Sieracki, supra, 328 U.S. at 94, 66 S. Ct. at 877, 90 L. Ed. 1099 it should not be lightly assumed that this strict liability runs to other persons not stated to be within its reach. When our law imposes strict liability, it often accompanies this with limitations, not existing in the case of liability based on fault, as to amount, as to persons benefited, or as to both. The considerations justifying absolute liability of shipowners for injury to the person or maritime workers do not necessarily prevail as to the interests of others in their relations with them - interests which, however real, rank lower in their claim for economic protection. Social policy may well require absolute liability for physical injury without imposing similar strict liability on actors and, indirectly, on the community, for damages less susceptible of monetary compensation. Recovery for personal injuries due to unseaworthiness was said by Judge Learned Hand to be "a kind of 'Workmen's Compensation Act'", Grillea v. United States, 232 F.2d 919, 923 (2 Cir., 1956); workmen's compensation acts characteristically exclude suits by spouses or other relatives, see, e.g., the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905; 2 Larson, Workmen's Compensation Law, § 66.20; Smither & Co. v. Coles, supra, overruling the Hitaffer case on this point, and cases cited at pp. 225-26, and Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42, 47 (5 Cir., 1960). As Professor Jaffe has noted, the elimination of fault as the basis of liability deprives the damages award of any punitive or deterrent purpose, and requires consideration whether "the pooled social fund of savings should be charged with sums of indeterminate amount when compensation performs no specific economic function." 18 Law & Contemp.Prob. at 225. Appellant has cited no instance in which our law has allowed recovery for intangible injuries in the absence of fault; indeed, it has been rather slow to extent recovery for such injuries beyond intentional wrongs.*fn22
Beyond all this our conclusion on the unseaworthiness claim is controlled by the negative result we have reached with respect to negligence. It would be anomalous in the last degree to hold that strict liability should have a broader reach than a related liability based upon fault. We can see no sensible basis for saying that although Congress ruled out a claim by the wife of a seaman against a palpably negligent shipowner, the wife of a longshoreman can recover against a shipowner who has been wholly without fault. Our conclusion, it should be emphasized, does not rest on the discrimination between the sexes criticized by Hitaffer and its supporters; we would reach the same result in the rare case of the husband of a seawoman as in the common ones of the wife of a seaman or of the stevedore doing seaman's work. We hold that the scheme of remedies, statutory and judicial, for injury to such maritime workers limits recovery to the person directly injured.