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COMPLAINT OF CONNECTICUT NAT. BANK

March 16, 1990

IN THE MATTER OF THE COMPLAINT OF THE CONNECTICUT NATIONAL BANK, TRUSTEE, AS OWNER; GENERAL ELECTRIC CREDIT CORPORATION, AS SOLE BENEFICIARY OF GRANTOR TRUST; 660 LEASING COMPANY, AS BAREBOAT CHARTERER; CONNECTICUT TRANSPORT, INC., AS OWNER PRO HAC VICE AND BAREBOAT SUBCHARTERER OF S/S OMI YUKON, FOR EXONERATION FROM OR LIMITATION OF LIABILITY, PLAINTIFFS. HAWAIIAN INDEPENDENT REFINERY, INC., AND PACIFIC RESOURCES, INC., CLAIMANTS AND THIRD-PARTY PLAINTIFFS,
v.
OMI CORP., THIRD-PARTY DEFENDANT. OMI CORP., THIRD-PARTY DEFENDANT AND FOURTH-PARTY PLAINTIFF, AND THE CONNECTICUT NATIONAL BANK, ET AL., PLAINTIFFS AND FOURTH-PARTY DEFENDANTS, V. CALEB BRETT U.S.A. INC., FOURTH-PARTY DEFENDANT.



The opinion of the court was delivered by: Robert L. Carter, District Judge.

On October 25, 1986, the S/S OMI YUKON commenced a voyage from Barber's Point, Hawaii en route to Pusan, Korea. On October 28, 1986, explosions and fires on the vessel killed four crew members and injured others. After being towed to Japan, the vessel was declared a constructive total loss. The vessel was owned by the Connecticut National Bank ("CNB") as trustee for General Electric Credit Corp. ("GECC"), both Connecticut corporations, bareboat chartered to 660 Leasing Corp. ("Leasing"), a Pennsylvania corporation, and sub-bareboat chartered to Connecticut Transport, Inc. ("CTI"), a New York corporation. The above party plaintiffs commenced this proceeding pursuant to 46 U.S.C. App. § 183 (1958 & Supp. 1989) seeking exoneration from, and limitation of, liability for the disaster. Plaintiffs have asserted claims against Hawaiian Independent Refinery, Inc. ("HIF") and Pacific Resources, Inc. ("PRI") for contribution and independent liability. In due course, some 18 personal injury and death claimants filed claims and answers, as have HIRI, PRI and Caleb Brett. All of the personal injury and death claims have been settled, except the claim of Louanna Duffy, individually and as the personal representative of the estate of James W. Duffy, deceased, a former member of the OMI Yukon crew who was killed by the explosion on October 28, 1986.

The Duffy claim under the Death on the High Seas Act, 46 U.S.C. App. § 761 et seq. (1958), was tried to the court on December 18, 1989. The decedent, a qualified member of the engine department ("QMED") was 52 years old at the time of his death, with a life expectancy of 23.4 years*fn1 and a work life expectancy of 10.8*fn2 years. He married in 1963, and the surviving spouse was 67 years of age at the time of trial and in retirement since February, 1987, from employment with the Navy. The decedent earned $25,418 in 1980; $30,423 in 1981; $44,298 in 1982; $64,525 in 1983; $64,727 in 1984; $17,092 in 1985; and $17,550 in 1986. The low earnings in 1985 and 1986 were the result of his being required to stay home to take care of his wife who had broken her hip in 1985, requiring a hip replacement and two hip operations. In addition, Duffy's invalid mother-in-law required care as well.

During the periods when the decedent was employed, he worked 7 days a week 12 hours a day. When steadily employed his schedule was 56 days at sea and 6 days at home. During his periods at home, he cooked and cleaned when his wife worked, did all the electrical work, trimmed hedges, did necessary painting and repaired all the appliances. The Duffys have no children.

Louanna Duffy testified as to the above facts which have not been controverted. In support of the claim an economist, Richard A. Palfin, with a Ph.D degree from the University of Hawaii testified to support a claim for damages in the sum of $586,825. Dr. Palfin is the chief economist for Legal Economics Evaluations, Inc. which he characterized as "the nation's largest consulting firm specializing in litigation-type economics. . . ." (T. 34). There was no other testimony.

My problem with Dr. Palfin's testimony is that he used abstract figures without reference to the actuality of the Duffy's situation. He calculated the decedent's household services based on information supplied by the United States Department of Agriculture for all males in a 1982 publication "Family Economics Review" (T. 80), and without reference to information on the subject supplied by the widow.

The approach to damages in situations such as this is pursuant to an oversimplified formula, but one which seeks to determine what the decedent's earning would have been had he survived in good health, multiplied by decedent's work life expectancy with the resultant dollar figure arrived at, then discounted to the present value. In this case an additional element of damages is an award for loss of services. The decedent performed services — painting, repairing appliances, doing electrical work — which the widow must now pay for. There were no funeral service expenses, and no damages for loss of nurture and guidance since there were no children. While Mrs. Duffy is entitled to the benefit of any inheritance from her husband, no claim for such has been made, other than for loss of income and services since decedent's death.

Decedent has made a claim for pain and suffering. Although the court is sympathetic to that claim, the controlling case law appears to deny such recovery under the circumstances of decedent's death. Great Northern R.R. Co. v. Capital Trust Co., 242 U.S. 144, 147, 37 S.Ct. 41, 42, 61 L.Ed. 208 (1916); St. Louis-Iron Mountain R.R. v. Craft, 237 U.S. 648, 655, 35 S.Ct. 704, 705, 59 L.Ed. 1160 (1915). The explosion which caused Duffy's death occurred in the engine room and according to the National Transportation Safety Board

  it is clear that explosion forces removed the top
  of the engine room casing . . .
  Unfortunately, the time sequence of the
  explosion(s) manifestations could not be
  unequivocally determined from surveys after the
  accident or from the testimony of witnesses.
    However, it is clear that multiple explosions
  (up to three) occurred. Testimony of various crew
  members described the first explosion as a
  rumbling sound low in the engine room similar to
  the sensation of the vessel running aground.
  Another crew member described it as a "whoom"
  rather than a sharp explosion. The "rumbling"
  description is postulated to be the result of the
  flame/explosion propagating through the starboard
  fuel oil storage tank from aft to forward. The
  first step in this process is postulated to have
  been the ignition of vapors venting from the aft
  vent on the starboard fuel oil storage tank.
  Second, the flame propagated back through the
  vent which did not have a flame screen into the
  space above the fuel oil. Inside the storage tank
  in the immediate vicinity of the vent, the fuel
  oil vapors were quite lean leading to the
  rumbling or pressure build-up phase as the
  combustible mixture undergoes a low order
  explosion that propagates forward into a volume
  containing a richer hydrocarbon mixture. The
  flame propagation would simultaneously develop
  more vapors and more energy as it progresses
  forward. The progression of the flame from aft to
  forward in the starboard oil storage tank would
  have led to an increasing pressure build-up that
  rapidly exceeded the capacity of the two vents,
  and an explosion would have occurred which could
  be characterized as a rumbling sound and a
  `whoom' as the tank structure failed and vented
  into the engine room.

Report of the National Transportation Safety Board, Claimant Duffy's Ex. 7, at 44.

In order to recover for pain and suffering there must be evidence that the decedent was actually conscious between the time of his injury and death. Absent such evidence an award for pain and suffering is inappropriate. The Corsair, 145 U.S. 335, 12 S.Ct. 949, 36 L.Ed. 727 (1892).

There is no necessity for eyewitness testimony to validate an award for pain and suffering, Petition of United States Steel Corp., 436 F.2d 1256, 1275 (6th Cir.), cert. denied, 402 U.S. 987, 91 S.Ct. 1660, 29 L.Ed.2d 153 (1970), but there were survivors to describe the "rumbling sound' and a "whoom" which preceded the explosion and inflammation that destroyed the engine room and caused the decedent's death.

Nor do the cases require any particular period of consciousness in order to validate an award for pain and suffering. Stissi v. Interstate & Ocean Transport Co., 590 F. Supp. 1043, 1048-49 (E.D.N.Y. 1984), rev'd in part on other grounds, 765 F.2d 370 (2d Cir. 1985) (an award for pain and suffering prior to cardiopulmonary arrest due to drowning was allowed). In Cook v. Ross Island Sand and Gravel Co., 626 F.2d 746, 750-752 (9th Cir. 1980), an award for pain and suffering was allowed on testimony of a medical expert who testified that since the autopsy produced no evidence of skull fracture, it was probable that the decedent in his fall into the Columbia River was conscious for up to two and one half minutes. There could have been a period of consciousness between the rumbling sound and the whoom before decedent was engulfed in flames, but it is also equally possible the pain and suffering could have been "substantially contemporaneous with death or mere incidents to it," Great Northern R.R. Co. v. Capital Trust Co., 242 U.S. 144, 37 S.Ct. 41, 61 L.Ed. 208 (1916); St. Louis-Iron Mountain R.R. v. Craft, 237 U.S. 648, 655, 35 S.Ct. 704, 705, 59 L.Ed. 1160 (1915), in which case there can be no award ...


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