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RED STAR TOWING & TRANSP. CO. v. THE CARGO SHIP "M

December 3, 1982;

Red Star Towing & Transportation Company, Inc., Plaintiff,
v.
The Cargo Ship "Ming Giant", Yangming Marine Transport Corp., Defendant; In the matter of Complaint of Red Star Towing & Transportation Company, Inc. as owner of the Tug Ocean King for exoneration from or Limitation of Liability; Lorraine Mowen as Administratrix of the Estate of Dennis Mowen, Plaintiff, v. Yangming Marine Transport Corp., and Red Star Towing & Transportation Company, Inc., Defendants



The opinion of the court was delivered by: LEVAL

PIERRE N. LEVAL, U.S.D.J.

 Red Star Towing and Transportation Co. and Yangming Marine Transportation Corp. move for post-verdict relief from an award of damages in favor of claimant Lorraine Mowen. The jury found damages in the amount of $1,964,000 for the death of Dennis Mowen, plaintiff's decedent, assessing 35% against Red Star, 60% against Yangming, and charging 5% responsibility to Mowen for his own death. Defendants *fn1" Red Star and Yangming renew their pre-trial motions to strike Mowen's demand for a jury trial; they also move for judgment notwithstanding the verdict, and to set aside or reduce the verdict.

 The motions to set aside or reduce the verdict are granted by reason of the excessiveness of the jury's award and the willful misconduct of plaintiff's counsel in tampering with the evidence transmitted to the deliberating jury. Unless plaintiff agrees to remit $665,000, the verdict will be set aside.

 The motions opposing jury trial are denied, as are the motions for judgment n.o.v.

 Facts

 The trial lasted over three and a half months and involved proof of over 40 separate contentions of fault on the part of the various actors. A brief sketch of the facts here suffices.

 At about 04:44 hours on May 20, 1978, Red Star's tug, the Ocean King, under the command for that watch of the mate, Dennis Mowen, was towing a barge in an easterly direction across the shipping lanes leading toward New York harbor about 4 miles south of Ambrose Light. Yangming's steamship Ming Giant was sailing northward toward New York harbor. The two ships were in a crossing situation. Under the International Regulations for Preventing Collisions at Sea (the Rules of the Road), 33 U.S.C. foll. § 1602 (1976), the Ocean King was the give-way vessel as she had the Ming Giant on her starboard side. Rule 15. It was the Ocean King's obligation to keep clear, Rule 16, ordinarily by making a timely starboard turn so that the vessels would pass each other port-to-port.

 Mowen put the Ocean King into a starboard turn. There was some evidence that he was late in making the turn so that he crowded close to the Ming Giant's course.

 As the standby vessel, the Ming Giant would ordinarily maintain her course and speed, leaving it to the give-way vessel to keep clear. Rule 17(a)(i). Ming Giant had the option under Rule 17(a)(ii), (c) to alter course to starboard to avoid close calls. She was also permitted, but only under the demands of an emergency, to turn to port. Rule 17(b), (c).

 The captain of the Ming Giant mistakenly believed the Ocean King was crossing his bow. He testified he believed she was sufficiently far ahead that if he maintained course, he would collide with the tow, and if he turned right, he would hit the tug. He therefore chose the in extremis course of turning to port, which he did while the tug was making her turn to starboard. There was evidence that both vessels had failed to sound the required whistle signals until it was too late. The vessels collided. After the collision, Mowen was found to be missing. Two other seamen on the tug suffered minor injuries and both vessels were damaged. There was evidence of fault on the part of both vessels in their failure to take appropriate action to save Mowen.

 Red Star first instituted an action in this court against Yangming for collision damages and indemnification for potential liability. Lorraine Mowen instituted an action in Supreme Court, New York County, for herself and her children, against both Red Star and Yangming. Red Star then petitioned in admiralty for exoneration from or limitation of liability. Mowen's state court action was removed to federal court. I issued the usual injunction under Fed. R. Civ. P. Supplemental Rule F(3) staying the prosecution of suits against Red Star outside the limitation proceeding until its resolution. Mowen, Yangming and the two other injured seamen filed claims against Red Star in the limitation proceeding. Mowen also filed a cross-claim against Yangming. The two injured seamen filed a separate action against Yangming. These seamen settled their claims against Yangming and Red Star before trial in this action.

 Prior to trial, Red Star and Yangming moved to strike Mowen's demand for a jury trial. I reserved decision on the motion until after trial, empaneling a jury whose verdict could be treated as binding, advisory, or surplusage, depending on the eventual resolution of the issue. In rendering its verdict the jury answered a number of interrogatories. It found total damages as follows: loss of support $1,414,000 loss of nurture 550,000 pain and suffering 0 Total 1,964,000 As noted above, the jury allocated responsibility to: Yangming 60% Red Star 35% Mowen 5%

 All of Red Star's liability and 20% of Yangming's share were attributed to the failure to rescue Dennis Mowen after the collision. The jury thus attributed 55% of responsibility for Mowen's death to the failure to rescue and 45% to the collision. Finally, the jury found Red Star management to have had privity or knowledge of the deficiencies on which it had based Red Star's liability.

 Discussion

 I. Motion to Strike Demand for Jury Trial

 Yangming and Red Star, having preserved their position before trial, now move to strike the jury verdict in favor of a court-rendered decision. The motions are denied.

 A. Contentions Based on Red Star's Limitation Action

 Defendants contend that, whatever Mowen's right to a jury trial might be if her claims were litigated apart from Red Star's limitation action, she is not entitled to a jury for this claim since it was tried as a part of a limitation petition in admiralty. They point out that the total claims made in the limitation proceeding far exceed the limitation fund of roughly $35,000. In such a situation, they contend, the issue of the petitioner's right to limitation is for the judge. If limitation is granted, the judge should go on to allocate liability and determine the claimants' pro rata shares of the fund. Red Star Memorandum of July 11, 1980 at 12; Yangming Memorandum of July 11, 1980 at 25. Defendants concede that if the judge determined Red Star was not entitled to limitation of liability, the court would have discretion to dissolve the injunction against other proceedings and permit claimants to pursue their claims outside the limitation proceedings, with jury trials where appropriate. Red Star Memorandum of July 11, 1980 at 12-13; Yangming Memorandum of July 11, 1980 at 26. Plaintiff argues that under Dairy Queen, Inc. v. Wood, 369 U.S. 469, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962), the right to a jury overrides competing interests in adjudication without a jury. See Doughty v. Nebel Towing Co., 270 F. Supp. 957 (E.D. La. 1967).

 Both sides, accordingly, contend that the court has no discretion in the matter but must, according to defendants' view, conduct the proceedings without a jury, and according to plaintiff's view, with a jury.

 I cannot accept the defendants' contention. There is no right, as opposed to a likely expectation, to a non-jury trial in admiralty. Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S. Ct. 1646, 10 L. Ed. 2d 720 (1963), established that a litigant in admiralty is not entitled as a matter of right to a non-jury trial (admiralty action for maintenance and cure heard by jury when joined with Jones Act claim).

 And I need not decide whether Dairy Queen establishes a right to jury trial in this case. Where claims with independent jurisdictional basis normally carrying a jury right, such as plaintiff's Jones Act claim, are joined with admiralty claims arising out of the same transaction or occurrence, all claims may be tried to a jury. See Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 443-47 (2d Cir. 1959) (Jones Act claim), cert. denied, 359 U.S. 1000, 3 L. Ed. 2d 1030, 79 S. Ct. 1138 (1959); Best v. Honeywell, Inc., 491 F. Supp. 269 (D. Conn. 1979) (D.O.H.S.A. and general maritime claims, diversity jurisdiction), aff'd without opinion sub nom. Sikorsky Aircraft Division, United Aircraft Corp. v. Honeywell, Inc., 679 F.2d 874 (2d Cir. 1981); Mattes v. National Hellenic American Line, S.A., 427 F. Supp. 619, 628 (S.D.N.Y. 1977) (Jones Act claim); Parsell v. Shell Oil Co., 421 F. Supp. 1275, 1276 (D. Conn. 1976) (federal question jurisdiction), aff'd sub nom. East End Yacht Club v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977); Oroco Marine, Inc. v. National Marine Service, Inc., 71 F.R.D. 220 (S.D. Tex. 1976) (diversity jurisdiction). I have concluded, assuming the trial judge has discretion in the matter, that the proper exercise of discretion favors jury trial.

 It is beyond dispute and conceded here that, if limitation is denied, the judge is authorized to dissolve the injunction against outside proceedings, freeing the death claimant to pursue her action before a jury. In my view, the circumstances of this case make it more appropriate to exercise that discretion so as to give precedence to plaintiff's jury demand. This is for several reasons: first, the relative weight and importance of the death claim as compared to other claims at issue in the limitation proceeding; second, the fact that a jury was empanelled and its verdict taken in the consolidated limitation proceeding so that no waste or retrial is required to utilize the jury's findings; *fn2" third, both the jury and the judge have concluded independently that limitation must be denied. *fn3" This third factor requires denial of Red Star's petition to limit liability and permits dissolution of the injunction barring plaintiff from pursuing her action in a separate proceeding before a jury. Since such a trial has already been conducted by the parties before a jury, it seems most appropriate, in service of the principles of Dairy Queen (if it is not required as a matter of law), to give effect to the jury trial that has been conducted.

 B. Contentions Based on the Death on the High Seas Act

 Plaintiff's claims against Yangming are pleaded under the Death on the High Seas Act, 46 U.S.C. §§ 761-768 (1976 & Supp. IV 1980) (hereinafter sometimes "DOHSA"), and the general maritime law. Plaintiff contends that she has a cause of action against Yangming under general maritime law, that this court has jurisdiction over that claim by virtue of both admiralty and diversity jurisdiction, that the "saving to suiters" clause of 28 U.S.C. § 1333 permits her to bring her general maritime claim as a civil suit in which she has a right to trial by jury, and that, because her admiralty claim and her civil claim arise out of the same transaction, she is entitled to a jury trial on both claims. Yangming contends that DOHSA, without a jury, is plaintiff's exclusive remedy for death on the high seas; it relies principally on Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978), contending that there is no alternative remedy to DOHSA to be saved by the "saving" clause.

 Whether a general maritime remedy exists independent of DOHSA, carrying the right to jury trial for death in international waters, is a wide open question as to which the Supreme Court's eventual answer can only be guessed at from its arguably conflicting resolution of related questions. The pronouncement of the lower courts are in conflict.

 In 1886, in The Harrisburg, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358 (1886), the Supreme Court held that general maritime law afforded no remedy for wrongful death in the absence of an applicable state or federal statute. Thereafter, although state wrongful death statutes provided remedies for deaths in state territorial waters (and sometimes beyond), see, e.g., The Hamilton, 207 U.S. 398, 28 S. Ct. 133, 52 L. Ed. 264 (1907), no federal remedy existed for deaths on the high seas.

 In 1920, Congress acted to fill this gap by passing the Death on the High Seas Act. DOHSA creates a remedy in admiralty for wrongful deaths more than three miles from shore, i.e., outside state territorial waters. 46 U.S.C. § 761. The act determines a number of details with respect to the cause of action it creates. It limits the class of beneficiaries, 46 U.S.C. § 761, allows suits filed by the victim of an accident to continue if the victim dies of his injuries while his suit is pending, 46 U.S.C. § 765, provides that contributory negligence will not bar recovery, 46 U.S.C. § 766, and limits recoverable damages to pecuniary loss, 46 U.S.C. § 762.

 Prior to 1970, federal courts construing DOHSA held that suits under the Act could be maintained only in admiralty and without juries. In Higa v. Transocean Airlines, 230 F.2d 780 (9th Cir.), cert. dismissed, 352 U.S. 802, 1 L. Ed. 2d 37, 77 S. Ct. 20 (1956), the Ninth Circuit decided that the statutory phrase, "may maintain a suit for damages in the district courts of the United States, in admiralty . . .," ruled out jury trial even if diversity of citizenship existed. In rejecting the contention that the "saving to suiters" clause preserved the right to sue under diversity jurisdiction and thereby obtain a jury trial, the court noted "that the High Seas Act deprived no state or federal court of a then existing right." 230 F.2d at 782. The court relied also on a colloquy on the floor of the House in which it was said that "this proceeding will be in admiralty and that there will be no jury." 230 F.2d at 784 (quoting 59 Cong. Rec. at 4482).

 Between 1920 and 1970, deaths on the high seas gave rise to suits under DOHSA, and those occurring in territorial waters were governed by the various states' wrongful death statutes. This structure resulted in a captious lack of uniformity.

 Then the Supreme Court held in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970), that a federal cause of action did exist under general maritime law for wrongful deaths occurring within territorial waters. Most of the reasoning in the opinion deals with anomalies resulting from the absence of a federal remedy within state territorial waters and has no necessary application to the question of existence of any general maritime remedy in international waters. *fn4" Justice Harlan stated in passing that he found in DOHSA "no expression of policy bearing on" any "desire to avoid the presentation of wrongful death claims to juries. . . ." Id. at 400 n.14, 90 S. Ct. at 1787-88 n.14. The opinion concluded "that the Death on the High Seas Act was not intended to preclude the availability of a remedy for wrongful death under the general maritime law in situations not covered by the Act." 398 U.S. at 402, 90 S. Ct. at 1788. (emphasis supplied)

 Moragne left open a number of subsidiary questions concerning the nonstatutory death remedy that was held to survive DOHSA within territorial waters. One of those arose in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974), which, like Moragne, involved a death inside territorial waters. The Court held that the appropriate measure of damages under the general maritime remedy included damages for loss of society, notwithstanding that these were excluded by DOHSA for deaths on the high seas.

 Some lower courts read Moragne and Gaudet to create a general maritime cause of action for wrongful death surviving DOHSA in international, as well as territorial, waters. See, e.g., Law v. Sea Drilling Corp., 523 F.2d 793 (5th Cir. 1975).

 But so broad a reading of Moragne and Gaudet was, at least to some extent, repudiated in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978), which considered whether damages for loss of society, expressly authorized in Gaudet for deaths occurring in territorial waters, could be recovered for deaths outside the three mile limit. The Court ruled that DOHSA established the exclusive measure of damages for wrongful death on the high seas; loss of society could not be recovered. The majority stated that:

 
the Death on the High Seas Act . . . announces Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages. . . . The Act does not address every issue of wrongful-death law, . . . but when it does speak directly to a question, the courts are not free to "supplement" Congress' answer so thoroughly that the Act becomes meaningless.

 Id. at 625, 98 S. Ct. at 2015.

 The decision does not explicitly answer whether there is a general maritime remedy for death at sea, the question first answered in the negative by The Harrisburg, but later in the affirmative as to territorial waters by Moragne ; whether the survival of any such remedy, if it exists for the high seas, has been pre-empted or cut-off by the express statutory remedy of DOHSA, which it does answer in the affirmative as to aspects of any such general remedy that conflict with express provisions of DOHSA; and finally, if such a remedy exists and survives DOHSA for elements that are not in conflict with DOHSA's provisions, whether DOHSA should be construed to have rejected the availability of a jury trial for deaths on the high seas in diversity cases.

 The decisions of the lower courts since Moragne are in irreconcilable conflict. Compare Best v. Honeywell, Inc., 491 F. Supp. 269 (D. Conn. 1979), (DOHSA not the exclusive remedy; general maritime remedy exists) aff'd without opinion sub nom., Sikorsky Aircraft Division, United Aircraft Corp. v. Honeywell, Inc., 679 F.2d 874 (2d Cir. 1981) and First & Merchants National Bank v. Adams, No. 79-365-N (E.D. Va. Oct. 22, 1979) (same) with Andersen v. Vought Corp., No. 79-1021 (M.D. Fla. May 14, 1980) (DOHSA is exclusive remedy). The Fifth Circuit has held that DOHSA is the exclusive remedy. Heyl v. Carnival Cruise Lines, 1981 AMC 2393 (5th Cir. 1981) (per curiam ; opinion stamped "DO NOT PUBLISH"). The Second Circuit has discussed the issue in dicta. Public Administrator of the County of New York v. Angela Compania Naviera, S.A., 592 F.2d 58, 63 (2d Cir.), cert. dismissed, 443 U.S. 928, 61 L. Ed. 2d 897, 100 S. Ct. 15 (1979). ("The general maritime cause of action is, of course, available to plaintiffs" when the death at issue occurs outside state territorial waters.)

 Because of the procedural posture of this case, these difficult questions need not be answered. For the DOHSA claims here asserted against Yangming do not arise in procedural isolation. They were joined for trial with Mowen's Jones Act and unseaworthiness claims against Red Star. It is surely preferable as a matter of rational procedure for the claims on each leg of the liability and contribution triangle to be tried by the same trier of fact. More is at stake than consistency or aesthetics. Each ruling as to percentage of responsibility is interdependent with the others, and if different triers of fact allocate responsibility differently as between the three parties, one party could end up paying a larger share than either factfinder found appropriate, unable to recover the appropriate share of contribution.

 I have ruled, above, that it is at least preferable as a matter of discretion, and perhaps constitutionally required, that the Jones Act claims be tried by jury. We have therefore a DOHSA claim joined for trial with the same plaintiff's Jones Act claim, which is tried to a jury and involves the same issues of fact. The question is whether DOHSA or the general law of admiralty forbids the more rational procedure of using the Jones Act jury also to decide the DOHSA issues.

 The Supreme Court's Fitzgerald decision seems fairly to imply that the general law of admiralty holds no obstacle and indeed encourages such a procedure. 374 U.S. at 20, 83 S. Ct. at 1650; see Blake v. Farrell Lines, 417 F.2d 264 (3d Cir. 1969) (third-party claim for indemnity may be tried to jury along with longshoreman's diversity suit against defendant/third-party plaintiff); Simko v. C & C Marine Maintenance Co., 594 F.2d 960 (3d Cir.), cert. denied, 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 64 (1979) (admiralty claims may be left to be determined by jury after directed verdict granted in favor of defendant on plaintiff's Jones Act claim); Bergeria v. Marine Carriers, Inc., 341 F. Supp. 1153 (E.D. Pa. 1972) (admiralty ...


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