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WESTCOTT v. MCALLISTER BROS.

December 29, 1978

Judy WESTCOTT, Individually, and Timothy Westcott, Gary Westcott and Gus Westcott, infants, by Judy Westcott, their parent and natural guardian, Plaintiffs,
v.
McALLISTER BROTHERS INC., Defendant



The opinion of the court was delivered by: SAND

Plaintiff, the wife of an injured seaman, sues for loss of services, society, consortium and support, and, on behalf of the minor children, for loss of services, comfort, care, affection, training, companionship and support. Defendant has moved to dismiss the action for failure to state a claim upon which relief can be granted pursuant to F.R.Civ.P. 12(b)(6) and for judgment on the pleadings pursuant to F.R.Civ.P. 12(c). The motion presents two questions: first, whether a cause of action exists under either the Jones Act or "other law" on behalf of either the wife or the minor children of an injured seaman, and second, whether under the circumstances of this case, such a cause of action would enable plaintiff to obtain a double recovery. Because we conclude that no cause of action exists, we do not reach the issue of double recovery.

I. Factual Background

Plaintiff's husband, Benjamin Westcott, was injured in the course of his employment as a seaman on September 17, 1974. He commenced an action in this Court in September, 1975, alleging negligence under the Jones Act and unseaworthiness under the maritime law. That action was settled on May 6, 1977 before Judge Gagliardi, and Mr. Westcott signed a release "of each and every right or claim which I now have, or may hereafter have, because of any matter or thing which happened before the signing of this paper; and particularly, but not only because of any and all injuries and/or illnesses sustained on September 17, 1974 . . .". On September 13, 1977, defendant forwarded the final installment of the settlement sum to Mr. Westcott. Plaintiff commenced this action on September 15, 1977.

 II. First Cause of Action on behalf of the wife

 The Jones Act, 46 U.S.C. § 688, provides in pertinent part as follows:

 
"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply."

 This provision has been construed as limiting the right of action to the seaman himself and as not providing for a cause of action on behalf of his wife for consortium. See Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257, 266 (2d Cir. 1963), Cert. denied, 376 U.S. 949, 84 S. Ct. 965, 11 L. Ed. 2d 969 (1964).

 Plaintiff argues, however, that such a cause of action exists under the general maritime law. Plaintiff refers first to Igneri, supra ; while the court held that no cause of action exists for loss of consortium on behalf of the wife of an injured longshoreman (and stated in dictum that the wife of an injured seaman also had no right of action), it did refer to the common law:

 
. . . 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 . . . 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 . . . So we turn to the common law. Id. at 260-61.

 Plaintiff argues that, since the common law rule has changed in the fifteen years since Igneri was decided, now giving to the wife of an injured person a right to recovery for loss of consortium, this Court should do likewise. Plaintiff contends that the Court of Appeals for the Second Circuit would today "be obliged to overrule Igneri . . . Since the common law now leans heavily toward allowing the remedy, the question must be asked why should not an admiralty court likewise do so."

 Whether the Second Circuit would today overrule Igneri, however, is not the relevant issue for this Court. Igneri concerned the claim of an injured longshoreman's wife; in the absence of applicable statutory directive, the court looked to other sources of law. This Court is in a considerably different position: the Jones Act is directly applicable, and it precludes recovery for consortium. Moreover, the Court in Igneri did not rest its decision on the common law, although it considered it. The Court relied, rather, on the Jones Act as the proper analogy:

 
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 . . . 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. Id. at 267.

 In sum, we question whether the Court of Appeals for the Second Circuit would today hold that the wife of a longshoreman has a right of action in maritime law for loss of consortium; *fn1" whether or not it would so hold, however, that holding would not govern the case before us.

 We come then to the question of whether, in the face of a statute which limits recovery to the seaman himself, this Court may fashion a remedy for the seaman's wife. In Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978), the Supreme Court considered a similar claim. Under the Death on the High Seas Act (DOHSA), *fn2" the statutory beneficiaries (including the widow) of a person negligently killed on the high seas may bring an action for wrongful death. The Act states that "(t)he recovery . . . shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought . . .". 46 U.S.C. § 762. The Court of Appeals for the Fifth Circuit reversed the decision of the district court which held that the statute did not authorize recovery for loss of society. The ...


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