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STISSI v. INTERSTATE & OCEAN TRANSP. CO.

July 31, 1984

BARBARA STISSI, Individually, and as Personal Representative of the Estate of RONALD STISSI, Deceased, Plaintiff, against INTERSTATE AND OCEAN TRANSPORT CO. OF PHILADELPHIA, Defendant; In the Matter of the Complaint of INTERSTATE TOWING CO., as Owner of the tug DELAWARE, INTERSTATE MARINE TRANSPORT CO., as Owner of the barge INTERSTATE 36, and INTERSTATE AND OCEAN TRANSPORT CO., as Bareboat Charterer of the barge INTERSTATE 36 and the tug DELAWARE, Plaintiffs, for Exoneration from or Limitation of Liability; JUDITH LAX, as Administratix of the Estate of RUTH CALABRO, Deceased, Plaintiff, against INTERSTATE TOWING CO., as Owner of the tug Delaware, INTERSTATE MARINE TRANSPORT CO., as Owner of the barge INTERSTATE 36, and SONAT MARINE INC., Formerly known as INTERSTATE AND OCEAN TRANSPORT CO., as Bareboat Charterer of the barge INTERSTATE 36 and tug DELAWARE, Defendants; THOMAS J. FUREY, Plaintiff, against INTERSTATE TOWING CO., as Owner of the TUG DELAWARE, INTERSTATE MARINE TRANSPORT CO., as Owner of the BARGE INTERSTATE 36, and SONAT MARINE INC., Formerly known as INTERSTATE and OCEAN TRANSPORT CO., as Bareboat Charterer of the BARGE INTERSTATE 36 and TUG DELAWARE, Defendants.


The opinion of the court was delivered by: NICKERSON

ORDER

NICKERSON, District Judge

 This case is before the court on motions following a jury trial. The jury returned a special verdict in the form of answers to interrogatories. To the extent that any party is not entitled to a jury trial the court treats the verdict as advisory.

 In a memorandum and order dated June 28, 1982, this court denied the petitions of Sonat Marine Inc. (Sonat) and Thomas Furey for exoneration from or limitation of liability, and found Sonat to be 80% at fault and Furey to be 20% at fault for the collision that is the subject of the action.

 The Court of Appeals affirmed that portion of the judgment that denied exoneration from and limitation of liability, but remanded for reconsideration of the apportionment of fault. 717 F.2d 752, 757 (2d Cir. 1983). Familiarity with this court's memorandum and order and with the opinion of the Court of Appeals is assumed.

 In an order dated December 7, 1983, this court consolidated the four cases for trial, rejecting Sonat's contention that Stissi was not entitled to a jury trial, and ruled that to the extent that any other plaintiff was not entitled to a jury trial, the court would deem the verdict advisory. Sonat's petition to the Court of Appeals for a writ of mandamus overruling that order was denied.

 Prior to trial this court ruled that its previous findings that Sonat and Furey were negligent would have res judicata effect at the trial and that the extent of the negligence of each party were issues to be tried and decided anew.

 The jury returned a verdict finding Sonat 94% at fault, Stissi 3% at fault and Furey 3% at fault and found damages to all of the claimants.

 Sonat moves for an order (1) striking damages awarded to decedent Stissi's stepchildren, Mia Terese and Stephanie Depalo; (2) rejecting the advisory verdict and entering findings of fact on the Lax claim, brought by the representative of Ruth Calabro's estate; and (3) reallocating the fault attributed to Sonat, Furey and Stissi. In the alternative, Sonat moves for a new trial on the issues of the Lax claimants' damages and the apportionment of fault.

 Lax moves the court to find inadequate that portion of the verdict awarding $30,000 to the Calabro estate for pain and suffering sustained by the decedent prior to her death and to fix a higher award. Stissi and Lax move for prejudgment interest.

 I

 Sonat contends that the children of decedent Stissi's wife are not entitled to damages under general maritime law. Sonat did not request that the court put to the jury the factual issue of whether the Depalo children were dependent on Ronald Stissi.Therefore, pursuant to Federal Rule of Civil Procedure 49(a), the court will make this finding. Croce v. Kurnit, 737 F.2d 229, slip op. at 4422 (2d Cir. 1984). The children lived in Stissi's household and were supported by him and thus were clearly dependent on him up to the time of his death, whether or not he had a legal obligation to support them.

 In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970), the Supreme Court held that an action lies under general maritime law for wrongful death. Then, in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 584-85, 39 L. Ed. 2d 9, 94 S. Ct. 806 (1974), the Supreme Court held that the decedent's "dependents" could obtain damages under that law for loss of society in addition to loss of support and services.

 The Supreme Court has not yet decided the issue of which "dependents" may sue under general maritime law but has suggested that courts might look for guidance to the Death on the High Seas Act and perhaps to state wrongful-death acts. Moragne v. States Marine Lines, Inc., supra, 397 U.S. at 408. Sonat argues that since most state wrongful-death statutes do not allow stepchildren to recover, they should not do so under general maritime law. Stepchildren, however, may sue under the Death on the High Seas Act as "dependent relatives." 46 U.S.C. § 761; Petition of the United States, 418 F.2d 264, 270-72 (1st Cir. 1969).

 Several courts have allowed stepchildren to recover their pecuniary losses under general maritime law. Spiller v. Thomas N. Lowe, Jr. and Associates, Inc., 466 F.2d 903, 908 (8th Cir. 1972); Green v. Ross, 338 F. Supp. 365, 366 (S.D. Fla. 1972), aff'd, 481 F.2d 102 (5th Cir.), cert. denied, 414 U.S. 1068, 38 L. Ed. 2d 473, 94 S. Ct. 577 (1973). This court agrees with the results reached in those cases. The Death on the High Seas Act provides a more useful analogy in determining the class of beneficiaries than do state wrongful-death statutes. It seems desirable to have a uniform rule ensuring that the beneficiaries will be the same for identical torts. Stissi's stepchildren may have damages for their pecuniary losses, that is, loss of support and services, the latter including parental guidance and nurture. See Sea-Land Services, Inc. v. Gaudet, supra, 414 U.S. at 585.

 The Sea-Land Services case decided that general maritime law afforded a right to recover for loss of society. But apparently since that decision no case seeking damages for stepchildren has been reported. It is true that Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 56 L. Ed. 2d 581, 98 S. Ct. 2010 (1978), pointed out that the Death on the High Seas Act allows damages only for pecuniary losses and refused to supplement the federal statutory remedy by permitting damages for loss of society. But the court recognized that this ruling meant that the measure of damages in coastal waters would differ from that on the high seas. Id. at 624. There thus seems to be no reason to suppose that the Supreme Court would differentiate between dependents in determining the right of recovery for loss of society. Indeed, to do so would be inconsistent with the Supreme Court's stated purpose "to shape the remedy to comport with the humanitarian policy of the maritime law to show "special solicitude" for those who are injured within its jurisdiction." Sea-Land Services, Inc. v. Gaudet, supra, 414 U.S. at 588.

 This spirit appears to have animated the court in Thompson v. Offshore Co., 440 F. Supp. 752 (S.D. Tex. 1977), in deciding that certain financially independent family members could recover for loss of society.The court looked to factors such as the relationship of parent to child, continuous living together, harmonious family relationships, participation of the deceased in family services and his disposition and habit to tender aid, solace and comfort when required. 440 F. Supp. at 764-65. These were all present ...


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