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
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 ...