Rehearing and Rehearing En Banc Denied June 18, 1973.
GODBOLD, Circuit Judge:
This case arises from a collision on October 14, 1969 between the M/V Elaine Jones, a towboat owned and operated
Canal filed a petition seeking exoneration or limitation of liability. In response, Mary Kathryn Griffith, as personal representative of the decedent,
The District Court found that Canal was negligent through its employees, that the Elaine Jones was unseaworthy, that Canal's negligence proximately caused the collision and the unseaworthiness proximately contributed thereto, and that Griffith was not negligent. Accordingly, the court held Canal liable for damages to all claimants. Canal appeals, claiming error with respect to liability and damages, both as to Terminal and to Mrs. Griffith. Mrs. Griffith cross appeals with regard to the amount of damages awarded and elements of damage allegedly omitted. We affirm with respect to Canal's liability to Terminal and to Mrs. Griffith, and with respect to the damages due Terminal. We reverse with respect to damages due Mrs. Griffith and with respect to her husband's contributory negligence.
We focus on four areas of inquiry: (I) liability as between Canal and Terminal; (II) liability as between Canal and Mrs. Griffith; (III) damages due Terminal; (IV) damages due Mrs. Griffith on behalf of George Griffith's beneficiaries designated by pertinent statutory and general maritime law.
We set out the facts needed to understand our disposition.
The Elaine Jones, a 5300 horsepower diesel towboat, was manned by Captain Stroschein, pilot Griffith, and eight support personnel. Stroschein boarded the Elaine Jones as pilot on Sept. 29, 1969. His previous experience included piloting similar towboats of 4300 horsepower, but his regular employment was as master of an 1800 horsepower vessel. When Griffith came aboard on Oct. 7, Stroschein became master and Griffith pilot. The two had never served together before. Griffith regularly piloted a sister vessel of the Elaine Jones, identical in dimension but having 1000 less horsepower.
The Elaine Jones passed northbound through St. Louis Harbor on Oct. 9 when the Mississippi River gauge was 4.7 feet, well below flood stage of 30 feet. It operated north of St. Louis for several days, then proceeded back down-river with seven empty barges. At Wood River, Illinois, just north of St. Louis, while Captain Stroschein was on watch, one empty and two loaded barges were added to the tow and the entire ten-barge tow rearranged. With Captain Stroschein still at the controls, the Elaine Jones departed Wood River heading south pushing the tow. Shortly before noon when Griffith was due to relieve Stroschein at the wheel, the Elaine Jones arrived at Lock 27, located at Mile 185, five miles north of Eads Bridge. Griffith took over from Stroschein at 11:45 a. m. and left Lock 27 five minutes later.
The physical facts concerning St. Louis Harbor, and the effects of high water are well described by the District Court.
323 F.Supp. at 808-809.
Before the towboat's departure from Lock 27, Stroschein spoke briefly to Griffith without issuing any instructions for navigating St. Louis Harbor, and then left the wheelhouse for the galley. Stroschein returned at 12:10 p. m., at which time the head of the tow was more than a mile above Veterans Bridge, or approximately half way between McKinley Bridge, mile 182.5, and Veterans Bridge, mile 180.2. Stroschein noted without comment that Griffith had set the Elaine Jones on the midchannel sailing line, the course to be followed under normal river conditions. At that time the vessel had not yet reached the fail-safe point, that is, the point in the river beyond which correcting the course to a heading proper under the extraordinary conditions would be too late to avoid almost certain mishap. Still the captain said nothing about the river conditions or the course to be followed nor did he assume command. Pilot Griffith continued on the mid-channel sailing line past the fail-safe point and until the head of the tow reached about one-quarter mile north of Veterans Bridge. At this juncture the left hand set in the river was encountered, pushing the vessel and tow violently to the left and toward the left descending channel and the left pier of Veterans Bridge. The pilot took measures to attain a proper heading, but his efforts were to no avail. It was only when the towboat was about 100 feet above Veterans Bridge (at which time most of the tow would have passed under that bridge) that Captain Stroschein first became alarmed.
The Elaine Jones bumped the river pier of Veterans Bridge, causing some of the tow wires to part and the tow to jack-knife. Stroschein abandoned the wheelhouse when he realized a collision with Eads Bridge was unavoidable, but Griffith remained to maneuver the vessel off the Eads Bridge pier toward which it was headed. The towboat missed the pier, but seconds later the wheelhouse struck the bottom portion of Eads Bridge. Griffith left the controls immediately prior to impact but was crushed by falling metal and killed instantly. Everyone else escaped.
I. Liability as between Canal and Terminal.
The District Court correctly held that, in the absence of sufficient proof in rebuttal, presumption of fault attaches to a moving vessel which collides with a fixed object and makes a prima facie case of fault against the vessel. The Oregon, 158 U.S. 186, 15 S.Ct. 804, 39 L.Ed. 943 (1895); Brown & Root Marine Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d 724 (5th Cir. 1967).
Canal attempted to meet its burden in part by showing that Eads Bridge was constructed in such manner as to violate the Act of Congress authorizing its erection,
The District Court correctly held the defense of inevitable accident to be inapplicable.
II. Liability as between Canal and Mrs. Griffith.
Canal was found liable to Mrs. Griffith as personal representative on the basis of the Jones Act, 46 U.S.C. § 688, and the general maritime law, Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).
The findings of negligence on the part of Canal may be quickly dealt with. We review them under the "clearly erroneous" rule, McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954), which requires they be affirmed.
Stroschein, the towboat captain, was found wanting in due care in the following particulars: (a) tendering to his pilot a tow without affording him an opportunity to get the feel of the tow before encountering unusual river conditions which the master knew were hazardous to navigate; (b) failing to inform his pilot of a hazard to navigation of which he had knowledge; (c) failing to instruct his pilot as to the proper method of navigating St. Louis Harbor under known hazardous conditions; (d) failing to take charge when the pilot plainly misgoverned the vessel; (e) abandoning the wheelhouse in the face of danger.
Finding (b) is so obviously correct as to require no comment.
As to (a), on the basis of clear and competent expert testimony, the District Judge found that it takes "some minutes" after the vessel reaches full speed for an experienced pilot to get the feel of a particular tow arrangement. The arrangement had been made up while Captain Stroschein was on watch, and Griffith, handling the tow for the first time, had been piloting for only a few minutes when he came into the difficult passage of St. Louis Harbor. These findings dispose of the contention of Canal that the pilot had the feel of his tow from his prior experience.
Regarding (c), the court found that Stroschein was aware of the hazardous conditions in the harbor, having himself previously piloted vessels safely through the area at high water. Also the court heard testimony that every pilot was familiar with the dangerous condition caused by high water.
There can be no real dispute over conclusion (d), and Canal has not contended otherwise, that the captain was negligent in failing to take charge when the pilot plainly misgoverned the vessel.
Canal questions conclusion (e), Stroschein's negligence in abandoning the wheelhouse, by the unpersuasive argument that since Griffith was not negligent in fleeing seconds after Stroschein, the captain's earlier departure could not have been an act lacking the requisite care. In the interval between the captain's and the pilot's departures, Griffith, by remaining, managed to maneuver the vessel sufficiently to avoid a potentially more serious collision with the pier of the bridge. The court was justified in inferring that the captain's presence might have aided in minimizing the disaster.
The trial court also found Canal negligent because its port captain failed to warn the master and pilot of the navigational hazards of St. Louis Harbor although he had "privity or knowledge" of such hazards. The port captain is located at Canal's shore facility at Natchez, Mississippi, which had twice daily radio
The Elaine Jones was found to be unseaworthy in these respects: "(a) Her master and pilot were unfit to meet the perils reasonably to be anticipated in her voyage through St. Louis Harbor. . . . (b) Her master and pilot were unequal in disposition and seamanship to the ordinary man in the calling under like circumstances. . . ." which unseaworthy condition proximately contributed to the accident. 323 F.Supp. at 820 (citations omitted) (emphasis added). Under the plainly erroneous rule this is to be affirmed.
The findings concerning unseaworthiness, insofar as they relate to Griffith, lead us into discussion of the point most strenuously urged by Canal, which is that Griffith negligently chose his course through St. Louis Harbor, which negligence caused or contributed to the accident, and that findings to that effect are required by the finding that unseaworthiness was predicated in part on Griffith's insufficiency as a pilot. It is perhaps an overstatement that a finding of unseaworthiness requires in all cases a finding of contributory negligence.
This necessary conclusion of negligence on Griffith's part is significant in at least two respects. Canal claims that negligence by Griffith is a basis for recovery over by it, in whole or in part, against Griffith for damages due Terminal from Canal. Additionally, while not a complete defense to the Griffith claim insofar as it is based on unseaworthiness, the finding of contributory negligence is a proper factor to be considered in fixing the amount of recovery. Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94 n. 11, 66 S.Ct. 872, 90 L.Ed. 1099, 1105-1106 n.11 (1946); Manning v. M/V Sea Road, 358 F.2d 615 (5th Cir. 1965); Cox v. Esso Shipping Co., 247 F.2d 629 (5th Cir. 1957). The same is true under the Jones Act.
We turn then to consideration of whether as a matter of law Griffith was chargeable with knowledge, that is, whether he is required to suffer the legal consequences of knowledge although he did not actually possess it. These facts found by the court bear on that determination: "experienced mariners navigating towboats through that section of the Mississippi River" knew that the set occurred when the river gauge was above 20 feet, but Griffith did not know of the set; Griffith had seven years experience in piloting vessels of other towing companies on various rivers, including the Mississippi; Griffith had piloted through St. Louis Harbor southbound at least four times; Griffith had never piloted a vessel through this area at high water, but Stroschein had; a sudden rise in the water increases the severity of the set, a fact known "to persons experienced in navigating St. Louis Harbor during high water." The court entered this conclusion of law:
323 F.Supp. at 822 (emphasis added).
"[T]hose who undertake any work calling for special skill . . . are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability." Prosser, Law of Torts § 32, at 164. In Atlee v. The Nw. Union Packet Co., 88 U.S. (21 Wall.) 389, 22 L.Ed. 619 (1875), a barge collided with a stone pier built into a river, and suit was brought in admiralty by the barge owner for recovery. The District Court found mutual fault on the part of the pier owner and the barge's pilot, but the Court of Appeals reversed in part, finding no fault on the part of the pilot. The Supreme Court reversed and held that the pilot was at fault. It observed: "[T]he pilot of a river steamer . . . is selected for his personal knowledge of the topography through which he steers his vessel. . . . He must know where the navigable channel is . . . . He must also be familiar with all dangers that are permanently located in the course of the river. . . . To do this he must be constantly
Davidson S.S. Co. v. United States, 205 U.S. 187, 27 S.Ct. 480, 51 L.Ed. 764 (1907), was a collision case tried to a jury. The defendant steamship company was found liable for damages to a recently extended government pier in Lake Superior, caused when its ship collided with the pier. The Court viewed the question before it as "whether there was testimony from which the jury might rightfully find the defendant guilty of negligence." Id. at 193, 27 S.Ct. at 482, 51 L.Ed. at 767. The pilot had been on the lake for many years, but he had not been in the particular harbor for over a year. He knew that harbor improvements were being made on the lake and that information circulars were available. The Court said: "[T]here is an obligation on all persons to take the care which, under ordinary circumstances of the case, a reasonable and prudent man would take, and the omission of that care constitutes negligence." Id., 27 S. Ct. at 483. Following this statement of obligation was the passage from Atlee describing the degree of knowledge required of a river pilot. The Court concluded: "His very want of knowledge, when he had the means of ascertaining the facts, could properly be regarded as negligence. Clearly, it could not be held as matter of law not to be so." Id. at 194, 27 S.Ct. at 483, 51 L.Ed. at 767. Negligence thus consisted of the pilot's failure to inform himself when information was available about conditions regarding which an experienced pilot would have reason to desire information.
In The Severance, 152 F.2d 916, (4th Cir. 1945), cert. denied, Stone v. Diamond, 328 U.S. 853, 66 S.Ct. 1344, 90 L. Ed. 1626 (1946), the factual cause of the collision was a freshet in the river, which made the ship take a sudden sheer. The lower court found no neglect by the pilot. The Fourth Circuit reversed, holding:
Id. at 920.
Utility Service Corp. v. Hillman Trans. Co., 244 F.2d 121 (3d Cir. 1957), is factually very similar to the instant case. As a towboat in the Ohio River passed through one of two channels created by the presence of an island in midstream it collided with a stationary barge as a result of a crosscurrent for which the pilot had not compensated. There was evidence from which it could have been found that the opening of a dam upriver increased the current and that this effect was readily noticeable to experienced mariners. Under normal conditions the current deflected slightly at the island, causing crosscurrents that became noticeable as the river's rate of
Id. at 124.
The foregoing authorities, applied to the findings of fact made in the present case, require the conclusion that the pilot was guilty of contributory negligence as a matter of law. He knew of the high water level. The court found that the particular current conditions existing at St. Louis Harbor under circumstances of high water were known to experienced pilots and that Griffith was an experienced pilot. As such, he was required to inform himself of special current conditions arising from circumstances known to him. Atlee v. The Nw. Union Packet Co., supra. Thus, while specifically charging the master with knowledge of all navigational conditions reasonably ascertainable by mariners experienced in navigating St. Louis Harbor at flood stage, the court absolved Griffith of negligence because it considered him not chargeable with the same body of knowledge because he was not experienced in navigating the harbor at flood stage. The foregoing authorities make clear that this was an incorrect conclusion.
Appellee Griffith characterizes the statement of a pilot's duty as a presumption (supported in this to some degree by the District Court's Conclusion of Law, supra) which can be relied upon only where the employer's liability to a third party is in issue, and not between employer and employee. But the facts in Hillman make clear that knowledge is not merely a fact presumed and rebuttable by evidence that the fact was not known. Secondly, it seems to us to make no difference that the failure of duty is asserted by employer against employee. Where the seaman fails to perform his own legal obligation concurrently with other failures of the employer, and as a consequence of the concurrent failures an accident occurs causing injury or death to the seaman, the seaman's failure can be reflected as an offset to his recovery. This is plain vanilla comparative negligence, a result not proscribed by the special status of seamen as wards of admiralty. The particular respect in which the pilot is negligent has no bearing on the determination of who should bear the loss as between negligent pilot and employer. The crucial factor is not that the pilot failed to discover a fact he should have known, as opposed, for example, to his having known all he should but oversteering; it is that the pilot in some manner did not meet his legal duty. Cf. Symonette Shipyards, Ltd. v. Clark, 365 F.2d 464, 470 (5th Cir. 1966), cert. denied, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967).
Canal Barge claims that if Griffith was negligent it is entitled to at least some degree of indemnification from Griffith for damages due to Terminal. Canal appears to be proceeding on a tort indemnity theory rather than an actual or implied contract. Griffith contends as a general proposition that in a collision case in admiralty the employer-shipowner cannot seek indemnity from its employee-pilot for damages caused to a third party and resulting from the pilot's negligence. No admiralty cases are cited to us in which indemnity was either permitted or forbidden in such circumstances. But see Tri-State Oil Tool Indus. Co. v. Delta Marine Drilling Co., 410 F.2d 178 (5th Cir. 1969) a suit in admiralty; Restatement of Restitution § 96 (1937); Restatement of Agency (Second) § 401 (1958), particularly comment d. See also Rodriquez v. United States Lines Co., 181 F.Supp. 95 (S.D.N.Y.1960) and The Providence, 293 F. 595 (D.R.I.1923), in which the substance of the indemnity question was not reached but the court permitted the ship or shipowner to implead its pilot or other employee-crew member whose negligence was claimed to be the sole basis for liability of ship or owner. We reach no conclusion and intimate no views on the indemnity question which must be first considered by the trial court.
III. Damages due to Terminal.
Canal has mounted a broad assault on the damages awarded to Terminal. The damages fall into these categories: (1) loss of toll revenue attributable to automobile traffic across Eads Bridge; (2) loss of revenue from passenger train traffic; (3) additional costs incurred in routing and manning over the city's toll bridge trains normally carried by Eads; (4) Eads repair costs. With respect to the first three categories Canal's objections narrow down with few exceptions to the single assertion that the lower court's findings are clearly erroneous.
(1) Auto tolls. Terminal set out to prove loss of auto tolls by introduction of business records indicating vehicle revenues earned by Eads during comparable periods before and after the accident. See South Carolina State Highway Dept. v. United States, 78 F.Supp. 598 (E.D.S.C.), aff'd, 171 F.2d 893 (4th Cir. 1948). Of course, no two time periods are free of differences that may significantly affect bridge usage. In this case during the entire repair period vehicular traffic over Eads was restricted to two lanes of the four ordinarily available. Also, before Eads resumed full operation, new egresses into downtown St. Louis were opened from a nearby free interstate highway, tending to divert traffic from the bridge. Appellant has referred us to other factors as well that may have caused the estimate
(2) Passenger train revenue. While Eads underwent repairs, passenger trains that normally used it to cross the Mississippi into St. Louis Union Station were shuttled by Terminal over the city's Municipal Bridge. The toll there incurred by Terminal was nearly twice the rate Terminal charged passenger lines for use of its own bridge. Terminal was entitled to the Eads tolls it lost. Canal, however, contends that Terminal was not the real party in interest to press such a claim because it had passed on to the passenger lines the full city tolls. See Fed.R.Civ.P. 17(a). In connection with this real party in interest objection, Canal maintains that the District Court violated the parol evidence rule.
Evidence heard over Canal's objection revealed that unless the railroads themselves made Terminal's usage of Municipal Bridge necessary, Terminal billed, and the railroads expected to pay, the lower Eads toll whether a train crossed Eads or Municipal Bridge. This billing practice was said to be based on a course of dealing between Terminal and the railroads. The practice notwithstanding, Terminal passed on the full Municipal toll to its customers, because it was short of cash while Eads was out of service. The railroads paid under protest and with the expectation that they would be reimbursed the difference between the Eads toll ordinarily paid and the Municipal toll required of them. The evidence of course of dealing did not violate the parol evidence rule. Professor Corbin has stated the substance of the rule, which is one of substantive law and not at all of evidence, as follows:
3 Corbin, Contracts § 573, at 357 (1960). This definition suggests two inquiries, the answers to which lead us to our conclusion that no infringement of the rule occurred: Did the parties assent to a writing as the complete and accurate integration of a contract between them? Regardless of the answer to the first question, is the evidence offered of antecedent understandings or is it of subsequent agreements? For, as Corbin epigrammatically states, "Today may control the effect of what happened yesterday;
Canal asserts that the court erred by permitting Terminal's witnesses to testify about a subsequent course of dealing in an attempt to alter, vary and change the unambiguous terms of the basic operating agreement between Terminal and its customer railroads entered into in writing on October 1, 1889. "Extrinsic evidence may be . . . helpful in deciding whether there has been an integration, and no rule bars `parol evidence' or any other relevant evidence for the purpose of determining whether the parties have agreed upon the writing as a complete and accurate statement of what is agreed upon between them. Farmer v. Arabian American Oil Co., 277 F.2d 46 (2d Cir.), cert. denied, 364 U.S. 824, 81 S.Ct. 60, 5 L.Ed.2d 53 (1960); 3 Corbin §§ 573 & 582; Restatement of Contracts § 228 (1932)." Carolina Metal Products Corp. v. Larson, 389 F.2d 490, 493 (5th Cir. 1968). By concluding that Terminal was obligated to reimburse the railroads for the increased cost of Municipal Bridge that Terminal had passed on to the railroads, the District Court impliedly found as a fact, and we think correctly, that the 1889 agreement was not a complete and accurate integration. We have not discovered any portion of the 1889 agreement that, even by means of contractual interpretation, arguably speaks to the allocation of toll costs between Terminal and the railroads, such allocation being the subject of the testimony to which Canal objected. Whether the course of dealing subsequent to 1889 sufficed to established a new contract supplanting the 1889 agreement or merely supplemented the existing written understanding by supplying a vital but missing term, evidence of it was properly heard and credited in the absence of contradiction. See, e. g., Franklin Research & Development Corp. v. Swift Electrical Supply Co., 340 F.2d 439, 443 n. 3 (2d Cir. 1964); Edward E. Morgan Co. v. United States, 230 F.2d 896 (5th Cir. 1953); Corbin, supra, § 556; cf. Uniform Commercial Code §§ 1-205, 2-202 (applicable to sale of goods).
Due consideration for the evidence of course of dealing compels our conclusion that Terminal was the real party in interest with respect to claims for passenger train tolls. Rule 17(a)'s requirement that "[e]very action . . . be prosecuted in the name of the real party in interest" directs attention to whether the plaintiff has a significant interest in the particular action he has instituted. See 6 Wright & Miller, Federal Practice & Procedure: Civil § 1542, at 639 (1971). Its effect "is that the action must be brought by the person who, according to the governing substantive law, is entitled to enforce the right." Id. § 1543, at 643; see Gagliano ex rel. Gagliano v. Bernsen, 243 F.2d 880 (5th Cir. 1957); Young v. Powell, 179 F.2d 147, 150 n. 10 (5th Cir.), cert. denied, 339 U.S. 948, 70 S.Ct. 804, 94 L.Ed. 1362 (1950). As stated by the Advisory Committee in its Note to the 1966 Amendment to Rule 17(a).
In the testimony concerning prior course of dealing and the explanation of the deviation therefrom, no suggestion emerged that there had been any change in relationship between Terminal and the railroads that would relieve Terminal of ultimate responsibility for the difference between its own and Municipal tolls. On the contrary, Terminal's comptroller testified, in line with the evidence of the past course of dealing, that his company had received protests and demands for repayment from several of the railroads. The evidence indicates a continuing legal obligation of Terminal to reimburse the railroads the difference between the tolls. Thus, Terminal was the party entitled to enforce the right to recovery.
(3) Rerouting expense. Since 1968 Terminal has maintained daily records of its usage of Eads Bridge and Merchants Bridge, both of which it owned, and Municipal Bridge, owned by the city of St. Louis and to which Terminal paid tolls. During the eight months that Eads was out of service, Terminal continued to maintain these records, indicating with an "Eads" notation each freight train which crossed the Mississippi via Municipal but which would have moved via Eads had that facility been available. Summaries of the records for this eight month period and for two comparable pre-accident periods were put in evidence to prove the increased usage of Municipal due to the unavailability of Eads. The District Court awarded losses attributable to freight operations on the record of the post-accident period, the period which produced the smallest award. Finding no fault with the method utilized to compute damages, Canal submits that the records underlying the summaries were inaccurate and thus the award was based on speculation. Bearing in mind what we have stated above regarding the degree of certainty required to prove damages, Canal's objection is not well taken.
Canal attempted to discredit the accuracy of the records by demonstrating that trains in fact moving across Municipal but designated "Eads" on the post-accident records could not have utilized Eads in any event because the locomotives powering them were too large for that bridge. Terminal employees explained to the apparent satisfaction of the trial judge that trains were classified in the freight yards according to the bridge to be used, prior to assignment of a locomotive. Since Eads was shut down, it was unnecessary to assign engines small enough to move via Eads; thus, the fact that a train crossed Municipal under power of a locomotive too large for Eads did not necessarily establish that it was not an "Eads"-designated train.
Canal elicited testimony that even while Eads was open, Terminal's general manager had complained that the company was routing too much traffic over Municipal and had directed that every effort be made to reduce Terminal's usage of that bridge. The general manager explained, however, that the increased use of Municipal did not draw traffic away from Eads but from Merchants,
(4) Repair costs. The award of damages included the cost of repairs to Eads Bridge, without any reduction for depreciation. Findings were made that at the time of the collision the bridge was in sound condition, that it had a remaining useful life of an indefinite number of years, and that it had been fully depreciated in accordance with governing rates. Canal urges that the law requires a reduction of damages to account for depreciation and that the court erred in not trimming recoverable costs accordingly. See, e. g., Patterson Terminals, Inc. v. S.S. Johannes Frans, 209 F.Supp. 705 (E.D.Pa.1962). While we do not differ with Canal's statement of a general principle of damages, the application of that generality to the specific facts of this case requires no reduction for depreciation.
A party suffering injury to his property is entitled to no more than restoration to its condition prior to the wrong. See, e. g., The Baltimore, 75 U. S. (8 Wall.) 377, 19 L.Ed. 463 (1869); Tug June S v. Bordagain Shipping Co., 418 F.2d 306 (5th Cir. 1969); T. H. Browning Steamship Co. v. F. H. Peavey & Co., 235 F.2d 5, 8-9 (8th Cir. 1956). As a practical matter, repair may leave property in a better condition. Depreciation, which in terms of a declining dollar figure reflects the annual depletion of an item's continuing usefulness for a given purpose, then becomes a handy tool to reduce the recovery for repair costs to the level necessary to return the injured party to the economic position in which he was found. Since the repairs neither enhanced the value nor extended the life of Eads, reduction of recoverable repair costs by depreciation previously taken would leave Terminal in a significantly worse economic position than before the accident. The case is similar to U. S. v. Pinckney, 150 F.Supp. 790 (S.D.Ga.1957), where depreciation was applied to reduce recoverable replacement costs of only those components of a demolished marker beacon having an ascertainable life. With respect to the component that the parties agreed had not and would not depreciate, the court made no reduction in recovery. As in Pinckney, no recovery less than the full repair costs will replace in the Eads Bridge value commensurate to its pre-accident worth.
In support of its position Canal has cited to us Brooklyn Waterfront Terminal Corp. v. International Terminal Operating Co., 211 F.Supp. 702 (S.D.N.Y.), aff'd per curiam, 311 F.2d 221 (2d Cir. 1962), Patterson Terminals, Inc. v. S.S. Johannes Frans, supra, and Jemison v. The Duplex, 163 F.Supp. 947 (S.D.Ala. 1958). In each of these cases the court found that the damaged or destroyed property had a definite life span which had partially elapsed at the time of the accident, or that repairs enhanced the structure's value beyond its prior worth, and reduced recovery accordingly. See also Rawls Bros. Contractors, Inc. v. United States, 251 F.Supp. 47 (M.D. Fla.1966); General American Transp. Co. v. The Patricia Chotin, 120 F.Supp. 246 (E.D.La.1954). The specific holdings of none of these cases purport to apply where repairs add no new value to the structure.
IV. Recovery due Mrs. Griffith.
Canal contends that the District Court erred by including in the computation of loss of future earnings a 2% per year cost of living increase, by failing to discount future earnings by taxes to be paid, and by setting the discount rate at 4% instead of a higher figure.
In Cunningham v. Bay Drilling Co., 421 F.2d 1398 (5th Cir. 1970), a suit under the Jones Act and the general maritime law, we held that the court did not err in charging the jury that decreased purchasing power of the dollar is a proper element for consideration in determining the amount of tort award.
No deduction for income taxes should be made where annual estimated earnings are not clearly above the reach of the middle income scale. Blue v. Western Ry., 469 F.2d 487, 492-496 (5th Cir. 1972), petition for cert. filed 410 U.S. 956, 93 S.Ct. 1422, 35 L.Ed.2d 688 (1973) (No. 72-972); In re Marina Mercante Nicaraguense, S.A., 364 F.2d 118 (2d Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 710, 17 L.Ed.2d 544 (1967); McWeeny v. New York, N. H. & H. R. R., 282 F.2d 34 (2d Cir.) (en banc), cert. denied, 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed.2d 93 (1960).
As for the application of a 4% discount rate on future earnings, there was evidence that it would be possible to invest at a higher rate. But also there was evidence that Mrs. Griffith was not a sophisticated investor, and that, given the size of the fund and the need to invade principal periodically, fixed payment annuities (offered by established companies at maximum effective rates of interest of 4½%) would be her best investment. Under Blue v. Western Ry., supra, the applicable discount factor is a reasonable interest rate "over the period of the remaining anticipated work-life of the plaintiff," 469 F.2d at 497 (emphasis deleted), not the current yield on blue-chip corporate securities. The court did not err in choosing the 4% figure.
We reject the claim of Mrs. Griffith as cross appellant that the District Court should have decreased the lost earnings awarded as damages by a factor of 15% instead of 25% because the lesser figure more closely represented the deceased's personal consumption of his earnings. We have reviewed Mrs. Griffith's testimony that her husband's personal upkeep accounted for approximately $150 per month, or approximately 15% of his earnings, against her other testimony detailing the family's expenses by categories. The District Court's finding that his needs accounted for $250 per month, or 25%, is not clearly erroneous.
We turn to the second and far more substantial contention raised on cross appeal. The action maintained for the decedent's survivors derives partially from Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), which overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), and held "that an action does lie under general maritime law for death caused by violation of maritime duties." 398 U.S. at 409, 90 S.Ct. at 1792, 26 L.Ed.2d at 361. Mrs. Griffith contends that damages under the new maritime action for death caused by unseaworthiness include compensation for lost love and affection, which we have called "survivor's grief." Dennis v. Central Gulf S.S. Corp., 453 F.2d 137, 141 (5th Cir. 1972).
Moragne fashioned only the skeletal outline of a federal cause of action for death in state territorial waters caused by breach of general maritime duties. Resolution of ancillary questions, such as the applicable statute of limitations, the beneficiary scheme, and the measure of damages, was left to "await further sifting through the lower courts in future litigation." 398 U.S. at 408, 90 S. Ct. at 1792, 26 L.Ed.2d at 361. Today we articulate in part the elements of this still infant maritime death action. While indeed "[t]he channel here is as hard to find as the course of the Mississippi River," In re Sincere Navigation Corp., 329 F.Supp. 652, 654 (E.D.La. 1971), we are not entirely without markers. As the Moragne Court counselled, its overruling of The Harrisburg "does not require the fashioning of a whole new body of federal law, but merely removes a bar to access to the existing general maritime law" and thus "[i]n most respects the law applied in personal-injury cases will answer all questions that arise in death cases." 398 U.S. at 405-406, 90 S.Ct. at 1790, 26 L.Ed.2d at 360. In discussing questions regarding time limitations on suit and schedules of beneficiaries, the Court noted the possibility of clues in DOHSA, the Jones Act, and the Longshoremen's and Harbor Workers' Compensation Act. See id. at 406-407, 90 S.Ct. 1772, 26 L.Ed.2d at 360-361. For persuasive analogies in resolving "still other subsidiary issues . . . such as particular questions of the measure of damages," the opinion points to DOHSA and "the numerous state wrongful-death acts that have been implemented with success for decades." Id. at 408, 90 S.Ct. at 1792, 26 L.Ed.2d at 361.
Moragne, then, makes clear that both state and federal law are appropriate guides for those lower courts who must fill in the interstices of the general maritime death remedy. In post-Moragne cases this circuit has carefully followed the approach suggested by Moragne. For example, in Gaudet v. Sea-Land Servs., Inc., 463 F.2d 1331 (5th Cir. 1972), petition for cert. filed, 41 U.S.L.W. 3417 (Jan. 22, 1973) (No. 72-1019), we described our function in shaping the Moragne action in the following terms:
Id. at 1332. Dennis v. Central Gulf S.S. Corp., 453 F.2d 137 (5th Cir. 1972), cert. denied, 409 U.S. 948, 93 S.Ct. 286, 34 L.Ed.2d 218, is another example of the approach to be employed. Citing analogies from state and federal law, the court allowed recovery for pain and suffering in a general maritime death action even though these damages are not recoverable under the Death on the High Seas Act.
The policies manifested in those federal laws mentioned by Moragne point toward nonrecoverability of survivor's grief damages. First, under general maritime law, our primary referent, grief damages are not recoverable. Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257 (2d Cir. 1963), cert. denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964), established that in actions under general maritime law to recover for personal injuries caused by both negligence and unseaworthiness, the spouse may not recover for loss of consortium, which was defined as "the mutual right of the marriage partners to each other's society, companionship, and affection, including sexual intercourse." Id. at 260 n. 2. Accord, Simpson v. Knutsen, O.A.S., 444 F.2d 523, 525 (9th Cir. 1971); In re United States Steel Corp., 436 F.2d 1256, 1278 (6th Cir. 1970), cert. denied sub nom. Lamp v. United States Steel Corp., 402 U.S. 987, 91 S.Ct. 1649, 29 L.Ed.2d 153 (1971); Curry v. United States, 338 F.Supp. 1219, 1223 (N.D.Cal.1971); Smith v. Olsen & Ugelstad, 324 F.Supp. 578, 582 (E.D.Mich.1971); Valitutto v. D/S I/D Garonne, 295 F.Supp. 764 (S.D.N. Y.1969); Sanseverino v. Alcoa S.S. Co., 276 F.Supp. 894 (D.Md.1967). Second, suitors under DOHSA may recover only for pecuniary losses, which do not include survivor's grief. Igneri v. Cie. de Transports Oceaniques, supra at 323 F.2d 266 n. 21; Middleton v. Luckenbach S.S. Co., 70 F.2d 326, 330 (2d Cir.), cert. denied, 293 U.S. 577. 55 S.Ct. 89, 79 L.Ed. 674 (1934); Peterson v. United N.Y. Sandy Hook Pilots Ass'n, 17 F.Supp. 676, 678 (E.D.N.Y.1936). Finally, suitors under the Jones Act cannot recover damages for survivor's grief. Igneri v. Cie. de Transports Oceaniques, supra at 323 F.2d 266; Savard v. Marine
The state guideposts to which Moragne refers are not so easily categorized. In In re Sincere Navigation Corp., 329 F.Supp. 652 (E.D.La.1971) (appeal pending, No. 72-2254), the court perceived a trend toward allowing recovery for survivor's grief under state death statutes and concluded that the maritime action for death should also permit such recovery. We are unable to agree that the trend in state law is sufficiently strong to override the policies against recovery manifested in federal law.
The most persuasive state analogies should logically come from those pre-Moragne cases in which state death acts were borrowed to provide a maritime remedy for death caused by unseaworthiness.
We conclude that the current rationales underlying recoverability for survivor's
While not crucial to our decision, we note that other circuits that have considered the issue have uniformly denied grief damages in a general maritime action. See Greene v. Vantage S.S. Corp., 466 F.2d 159 (4th Cir. 1972); Simpson v. Knutsen, O.A.S., 444 F.2d 523 (9th Cir. 1971); In re United States Steel Corp., 436 F.2d 1256 (6th Cir. 1970), cert. denied sub nom. Lamp v. United States Steel Corp., 402 U.S. 987, 91 S.Ct. 1649, 29 L.Ed.2d 153 (1971). District courts have divided on the issue. Compare In re Farrel Lines, Inc., 339 F.Supp. 91 (E.D.La.1971); In re Sincere Navigation Corp., supra, with Mungin v. Calmar S.S. Corp., 342 F.Supp. 479 (D. Md.1972); Curry v. United States, 338 F.Supp. 1219 (N.D.Cal.1971); Green v. Ross, 338 F.Supp. 365 (S.D.Fla.1972).
Affirmed in part; reversed in part; remanded for proceedings not inconsistent with this opinion.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before GODBOLD and RONEY, Circuit Judges and BOYLE, District Judge.
The Petition for Rehearing filed on behalf of Mary K. Griffith, etc. is Denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is Denied.
The petition for rehearing filed on behalf of Canal Barge Company is Denied in all respects except with regard to the issue of whether the District Court erred by including in the computation of loss of future earnings a 2% per year cost of living increase. Action on that issue is withheld pending consideration by the court en banc of Johnson v. Penrod Drilling Company, 478 F.2d 1208 and Starnes v. Penrod Drilling Company, 478 F.2d 1208. The mandate in this case shall be stayed pending the further orders of the court.
The motion of Canal Barge Company to supplement the record in this case by addition of testimony given subsequently and in an unrelated case is Denied.
Prior to revision of Johnson v. Penrod Drilling Co. on petition for rehearing, this court in Crador v. Boh Bros., Inc., 473 F.2d 1040 (5th Cir. 1973), remanded a maritime action for personal injuries for redetermination of damages in light of Penrod and Blue v. Western Ry. The briefs in Crador show that none of the points of error raised on appeal concerned the adjustment of damages to reflect inflationary or deflationary trends. Consequently Crador does not conflict with the law of this circuit established in Cunningham v. Bay Drilling Co.
453 F.2d at 140. As this statement suggests, elements of recovery borrowed from state death acts must be consonant with federal maritime policies. Moragne itself alludes to the importance of using the state experience in only a selective manner:
398 U.S. at 401, 90 S.Ct. at 1788, 26 L.Ed. 2d at 357.
The current area of state law providing the most persuasive clues for effectuation of the maritime duty of unseaworthiness may be the law of strict products liability. Both strict products liability and liability for unseaworthiness are a species of liability without fault. Indeed, at least one commentator has suggested that Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), which extended the shipowner's duty to stevedores, represents acceptance by maritime law of the doctrine of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y.1916), the forerunner of modern products liability law. See Stevens, Erie R.R. v. Tompkins and the Uniform General Maritime Law, 64 Harv. L.Rev. 246, 260 n. 77 (1951). The nature of recovery under state statutes for deaths caused by defective products is, however, as yet ill defined. A majority of states do not permit any recovery in death actions based on a theory of strict products liability. See Prosser, The Law of Torts § 95, at 652 n. 95 (3d ed. 1964). States that have permitted recovery for wrongful death caused by defective products have not yet defined the relationship between strict liability and recovery for mental anguish. See, e. g., Greco v. S.S. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557 (N.Y.1938); Dagley v. Armstrong Rubber Co., 344 F.2d 245 (7th Cir. 1965). See generally Comment, The Application of Breach of Warranty to Wrongful Death Statutes: Conflict Between Archaic Legal Concepts and a Sense of Justice, 22 Baylor L.Rev. 384 (1970). See also Annot., Allowance of Punitive Damages in Products Liability Cases, 29 A.L.R.3d 1021 (1970).