Failure to correct the malfunctioning of the winches and their "deadman" safety feature constituted negligence, triggering liability under the Jones Act, 46 USC App 688, embodying the Federal Employer's Liability Act, 45 USC 51-59. It is not necessary to determine here the level of probability that failure of the "deadman" feature in particular occurred in connection with, or contributed to, the accident. The fact remains that the winches had been earmarked as requiring repair. No reason other than defects could reasonably have led to the disaster which occurred.
Liability for both negligence and unseaworthiness is imposed by the Death on the High Seas Act, 46 USC 761 - 762. See Miles v. Apex Marine Corp, 498 U.S. 19, 112 L. Ed. 2d 275, 111 S. Ct. 317 (1990). This statute is applicable where seamen are killed on the high seas, which the defendant United States agrees is deemed to embrace territorial waters of other nations. First & Merchants Bank v. Adams, 1981 AMC 2592 (4th Cir 1981) (not otherwise reported). The vessel was unseaworthy because of the defects in its winches, leading to the accident at issue. Thus recovery is authorized whether or not negligence were found.
The United States has no direct evidence of contributory negligence by what it concedes was a "very conscientious" ocean worker, but nevertheless asks the court to find that it was inherent in not having others present to assist him. Whether this would have avoided the accident we can never know. What we do know is that the accusation leveled at Meyer was "overzealousness" in performing his duties as a civilian combatant in Operation Desert Storm. The taking of necessary creative risks to get a critical job done can hardly be transmuted into comparative negligence for budgetary reasons; there is no factual basis for assuming that Meyer was negligent rather than courageous.
The Jones Act, incorporating the Federal Employers Liability Act, authorizes payments for monetary loss growing out of negligence to "next of kin dependent upon" the employee. 45 USC 51.
Meyer was 39 at the time he was killed, with a work expectancy estimated at 26 years. He contributed a total of approximately $ 1,100 annually to the support of his four sisters.
Dependency refers to contribution "in whole or in part" in maintaining the manner in which the dependent was living. Hollie v. Korean Airlines, 1994 U.S. Dist. LEXIS 1124, 1994 WL 38785 *2 (SDNY 1994). The amounts involved may be as important to Meyers' three sisters as far larger amounts may be to others or to most institutional entities. To reduce their claims to zero rather than proportionately would run counter to the interests of justice.
The lesser degree of dependency involved here than in most other cases of this type necessarily reduces the award on this claim, but need not eliminate it for another reason: admiralty law generally employs comparative concepts rather than "Yes or No" categories. United States v. Reliable Transfer Co, 421 U.S. 397, 44 L. Ed. 2d 251, 95 S. Ct. 1708 (1975); see also McDermott v. AmClyde, 128 L. Ed. 2d 148, 114 S. Ct. 1461, 1462 (1994); authorities cited, TIAA v. Coaxial Communications, 799 F. Supp. 16 (SDNY 1992).
Taking a conservative approach not seeking to anticipate inflation because of the lesser dependency involved, $ 28,600 is awarded to plaintiff based upon loss of support, to be distributed among deceased's sisters.
Under the Federal Employers' Liability Act (45 USC 51-59), applicable through the Jones Act, any right of action provided by those Acts - including injury under 45 USC § 51 which embraces pain and suffering - "shall survive to his or her personal representative, for the benefit of . . . the next of kin dependent upon such employee . . . ." 45 USC 59. The United States does not contest the applicability of such survival to the negligence claim here. Under general maritime law, embracing unseaworthiness, "elements of damage ordinarily pursued in a survival action [include] pain and suffering inflicted upon the decedent prior to death . . ." Wahlstrom v. Kawasaki Heavy Industries, 4 F.3d 1084, 1093 (2d Cir 1993). While for reasons explained in Wahlstrom, loss of future earnings may not be recovered in such suits, a decedent's beneficaries "may recover damages for [the decedent's] pain and suffering prior to death, to the extent that it can be established at trial." Id.
It is clearly inferable that Meyer, caught by the winch which was grinding him to death, suffered intense pain while also confronting the certainty of death.
It is implausible to suggest that death could have been instantaneous where one is tied up in a mesh of rope and no single instant death-dealing blow appears to have been received. Yet it is equally difficult to determine the exact length of his suffering, although it is doubtful that the suffering lasted for an extended period.
The problem of fixing a monetary award is exacerbated by the fact that pain and suffering can not rationally be given a dollar value. Would any of us willingly endure the pain and suffering experienced by the decedent in return for a substantial monetary payment?
The United States in its discussion of damages cites a case involving pain estimated at five to ten seconds, where $ 85,000 was awarded, In re Inflight Explosion, 778 F. Supp. 625 (EDNY 1991), aff'd 962 F.2d 2 (2d Cir 1992) as well as rulings awarding lesser amounts.
Not surprisingly, plaintiff has selected cases involving more generous awards. Where a similarly horrific experience occurred when a seaman was washed overboard and drowned in Valverde v. US Lines, NYLJ 7/16/91, p 22 col. 2 (Sup Ct NY Co), a jury awarded $ 1,500,000. Five hours of conscious pain and suffering prior to death was held by the appellate court to justify an award of $ 300,000 in Van Norden v. Kliternick, 178 A.D.2d 167, 577 N.Y.S.2d 27 (1st Dept 1991). In a similar situation involving an auto accident, $ 250,000 was held appropriate by the appellate court in Torelli v. City of New York, 176 A.D.2d 119, 574 N.Y.S.2d 5 (1st Dept 1991); see also Johnston v. State, 127 A.D.2d 980, 512 N.Y.S.2d 957 (4th Dept 1987) ($ 250,000 award upheld for victim of landslide unsuccessfully calling for help).
Pursuant to paragraph 2 of the parties' agreement and taking all factors into account, I award $ 50,000 for pain and suffering to plaintiff, to be allocated among Meyers' sisters.
The clerk is directed to enter final judgment in favor of plaintiff against the United States for $ 78,600, to be distributed by plaintiff to Meyer's sisters. Jurisdiction is reserved to resolve any disputes concerning such distribution should they arise.
Because of the importance of enhanced attention to reports of unsafe equipment on governmental vessels, a copy of this memorandum order shall be sent to the Secretary of the Navy.
Dated: White Plains, New York
August 5, 1994
/s/ John S. Martin, Jr., USDJ for VINCENT L. BRODERICK, U.S.D.J.