MR. JUSTICE BRENNAN delivered the opinion of the Court.
Moragne v. States Marine Lines, 398 U.S. 375 (1970), overruling The Harrisburg, 119 U.S. 199 (1886), held that an action for wrongful death based on unseaworthiness is maintainable under federal maritime law, but left the shaping of the new nonstatutory action to future cases. The question in this case is whether the widow of a longshoreman may maintain such an action for the wrongful death of her husband—alleged to have resulted from injuries suffered by him while aboard a vessel in navigable waters—after the decedent recovered damages in his lifetime for his injuries.
Respondent's husband suffered severe injuries while working as a longshoreman aboard petitioner's vessel, the S. S. Claiborne, in Louisiana navigable waters. He recovered $140,000 for his permanent disability, physical agony, and loss of earnings in an action based on unseaworthiness,
The harshness of the Harrisburg rule that in the absence of a statute, there is no maritime action for wrongful death, was only partially relieved by enactment of federal and state wrongful-death statutes.
Moragne reflected dissatisfaction with this state of the law that illogically and unjustifiably deprived the dependents of many maritime death victims of an adequate remedy for their losses. Three clearly unjust consequences were of particular concern:
In overruling The Harrisburg, Moragne ended these anomalies by the creation of a uniform federal cause of action for maritime death, designed to extend to the dependents of maritime wrongful-death victims admiralty's "special solicitude for the welfare of those men who under[take] to venture upon hazardous and unpredictable sea voyages." Id., at 387. Our approach to the resolution of the issue before us must necessarily be consistent with the extension of this "special solicitude" to the dependents of the seafaring decedent.
Petitioner, Sea-Land Services, Inc. (Sea-Land), would attach no significance to this extension in shaping the maritime wrongful-death remedy. It argues that the wrongful-death remedy should recognize no loss independent of the decedent's claim for his personal injuries, and therefore that respondent had a wrongful-death remedy only "in the event Gaudet failed to prosecute [his own claim] during his lifetime." Brief for Petitioner 6. But Moragne had already implicitly rejected that argument;
To be sure, a majority of courts interpreting state and federal wrongful-death statutes have held that an action for wrongful death is barred by the decedent's recovery for injuries during his lifetime. But the bar does not appear to rest in those cases so much upon principles of res judicata or public policy as upon statutory limitations on the wrongful-death action. As one authority has noted, "[t]he fact that all civil remedies for wrongful death derive from statute has important consequences. Since the right was unknown to common law, the legislatures which created the right were free to impose restrictions upon it." 2 Harper & James § 24.1, p. 1285. Thus, England's Lord Campbell's Act,
Sea-Land argues that, if dependents are not prevented from bringing a separate cause of action for wrongful death in cases where the decedent has already received a judgment for his personal injuries, then necessarily it
Recovery for loss of support has been universally recognized,
Compensation for loss of society, however, presents a closer question. The term "society" embraces a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort, and protection.
A clear majority of States, on the other hand, have rejected such a narrow view of damages, and, either by express statutory provision or by judicial construction, permit recovery for loss of society.
Objection to permitting recovery for loss of society often centers upon the fear that such damages are somewhat speculative and that factfinders will return
For example, juries are often called upon to measure damages for pain and suffering, mental anguish in disfigurement cases, or intentional infliction of emotional harm. In fact, since the 17th century, juries have assessed damages for loss of consortium—which encompasses loss of society—in civil actions brought by husbands whose wives have been negligently injured.
We are confident that the measure of damages for loss of society in a maritime wrongful-death action can "be left to turn mainly upon the good sense and deliberate judgment of the tribunal assigned by law to ascertain what is a just compensation for the injuries inflicted." The City of Panama, 101 U.S. 453, 464 (1880). As in all damages awards for tortious injury, "[i]nsistence on mathematical precision would be illusory and the judge or juror must be allowed a fair latitude to make reasonable approximations guided by judgment and practical experience," Whitaker v. Blidberg Rothchild Co., 296 F.2d 554, 555 (CA4 1961). Moreover, appellate tribunals have amply demonstrated their ability to control excessive awards, see, e. g., Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (CA2 1961); Dugas v. National Aircraft Corp., 438 F.2d 1386 (CA3 1971).
Turning now to Sea-Land's double-liability argument, we note that, in contrast to the elements of damages which we today hold may be recovered in a maritime wrongful-death action, the decedent recovered damages only for his loss of past and future wages, pain and suffering, and medical and incidental expenses. Obviously, the decedent's recovery did not include damages for the dependents' loss of services or of society, and funeral expenses. Indeed, these losses—unique to the decedent's
There is, however, an apparent overlap between the decedent's recovery for loss of future wages and the dependents' subsequent claim for support.
And while the general rule is that nonparties to the first action are not bound by a judgment or resulting determination of issues, see Blonder-Tongue v. University Foundation, 402 U.S. 313, 320-327 (1971), several exceptions exist. The pertinent exception here is that nonparties may be collaterally estopped from relitigating issues necessarily decided in a suit brought by a party who acts as a fiduciary representative for the beneficial interest of the nonparties.
Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery "on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury," 2 Harper & James § 24.6, pp. 1293-1294 (emphasis in original).
The judgment of the Court of Appeals is
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST join, dissenting.
The Court today rewrites several areas of the admiralty law of wrongful death. In holding that a wrongful-death action may be brought although the decedent has previously recovered in his own suit based on the same wrongful act, the Court disregards a major body of maritime and state law. The majority opinion also opens up an area of sentimental damages that has not been allowed under traditional admiralty doctrine. It hopes to prevent double recovery through a novel application of collateral estoppel principles, which rests in turn on the unprecedented concept that a seriously injured person acts as a fiduciary for an undefined class of potential beneficiaries with regard to his own recovery in his own personal-injury action. Given the sweep of the majority's approach, the upshot in many areas will be a nearly total nullification of the congressional enactments previously governing maritime wrongful death. Except for a technical joinder of counts to obtain a jury trial and thus to maximize the benefits promised by the Court's opinion, no one entitled to rely on the admiralty doctrine of unseaworthiness will, after today, seek relief under the federal maritime wrongful-death statutes. Several limitations built into those congressional enactments have been swept aside by the majority's decision.
In reaching these results, the majority purports to apply Moragne v. States Marine Lines, 398 U.S. 375
The Court has now rejected these guidelines so recently laid down in Moragne. Disregarding the source of law endorsed by Moragne, as well as the concern for uniformity expressed in that opinion, the Court has fashioned a new substantive right of recovery in conflict with "accepted maritime law" and a new body of law with regard to the elements of damages recoverable in admiralty wrongful-death actions. In my view, these unprecedented extensions of admiralty law exhibit little deference for stare decisis or, indeed, for enunciated congressional policy. I also believe these new doctrines are unsound as a matter of principle, will create difficulty
Long accepted law under the Jones Act,
Mellon and its progeny hold unequivocally that a judgment, settlement, or similarly conclusive event with regard to the decedent's own right to seek recovery for his personal injuries "[precludes] any remedy by the personal representative based upon the same wrongful act." Mellon, supra, at 344. The Court in Mellon quoted with approval the following language from a state court opinion:
The Mellon rule does not rest on a disagreement in principle with the majority's view, ante, at 577-578, that a single wrong is capable of producing separate and distinct injuries, those to the decedent and those to his beneficiaries.
The Court's implication that the Death on the High Seas Act
The Court's reference in Moragne to the "strong concern for uniformity" in admiralty law, 398 U. S., at 401, often repeated and often related to congressional policies underlying the Jones Act and the Death on the High Seas Act, id., at 396 n. 12, 401-402, was not an expression of concern solely for intellectual consistency. "Such uniformity not only will further the concerns of both of the . . . Acts but also will give effect to the constitutionally based principle that federal admiralty law should be `a system of law coextensive with, and operating uniformly in, the whole country.' The Lottawanna, 21 Wall. 558, 575 (1875)." 398 U. S., at 401-402. But the lack of uniformity produced by the majority's holding should be evident. For example, whether a seaman's injuries occur on land or at sea will be determinative under the majority's approach. If on land, the seaman will have the Jones Act as his admiralty-related remedy.
Aside from the disunity in the law of admiralty inherent in its opinion. I fail to see how the Court can square
The Court in Moragne also counseled the lower courts to draw by analogy from the case law under the state wrongful-death statutes. Id., at 408. Under the great majority of those statutes, whether of survival or true death act character, Mrs. Gaudet's cause of action would have been foreclosed by her husband's recovery.
Because of the likelihood of double recovery and the threat to repose inherent in the majority's holding, several leading commentators also favor the majority rule under the state wrongful-death statutes.
The Court devotes a major portion of its opinion to the elements of damages recoverable under Moragne. Ante, at 584-591. In particular, the Court embraces the Court of Appeals' suggestion, 463 F.2d 1331, 1333 (CA5 1972), that Mrs. Gaudet is entitled to seek damages for loss of "society," including love, affection, care, attention, companionship, comfort, and protection. Ante, at 585-590. Although I would not otherwise address the question of damages because I believe that no cause of action exists here, I think it important to note that the Court's holding that loss of society may be recovered is a clear example of the majority's repudiation of the congressional purposes expressed in the two federal maritime wrongful-death statutes.
The Death on the High Seas Act by its terms restricts recovery to pecuniary losses,
The reasons underlying the extensive state and admiralty precedent contrary to the Court's holding that this action may be brought are not difficult to discern. The majority's statement that this precedent rests not so much on policy as on "statutory limitations on the wrongful-death action . . . ," ante, at 579, is erroneous.
The majority's position requires it to establish procedures to prevent a double recovery of the elements of damages awarded Gaudet in his own lawsuit. This is no easy task, as "[i]t should be obvious that as yet no satisfactory systematic solution to the whole [double recovery] problem has been found."
Mr. Gaudet's judgment was given by a jury. It would be unrealistic to assume that that verdict was restricted to an objective measurement of Gaudet's lost earnings plus the "value" of his pain and suffering. In all likelihood, Gaudet's award reflected an element of the jury's concern for a permanently disabled working man. As anyone who has tried jury cases knows, jury sympathy commonly overcomes a theoretical inability to recover for such intangibles as loss of society. If Mrs. Gaudet is then allowed to recover in her subsequent lawsuit the full value, whatever that is, of her loss of love, attention, care, affection, companionship, comfort, and protection, she will be given a second opportunity to benefit from the imprecision built into any award for injuries that cannot be measured objectively. The Gaudet family may well then receive substantially more than just compensation for its injuries.
One expression of jury sympathy is commonplace, despite its conflict with the damages principles that in theory control. But certainly two opportunities for
The Court's approval of a second recovery based on the same wrong for which decedent already had recovered, compounded by its rejection of traditional admiralty "pecuniary loss" damage standards, seems particularly inappropriate given the nature of the claim relied on by both Gaudets. The maritime concept of unseaworthiness is not based on fault. The doctrine has evolved into a judicially created form of strict liability.
There should be strong reasons of policy to justify such repetitive suits and to impose on petitioner the attendant doubling of litigation expenses. The reasons advanced by the majority opinion do not, in my view, approach that level of persuasion. Petitioner has already fully litigated, and paid, a large judgment compensating
As noted at the outset of this dissent, the Court has written new admiralty law as to the right of survivors to recover for wrongful death and has expanded significantly the elements of damages recoverable. In reaching these results, the majority opinion has discredited, if not in substance overruled, the unanimous decisions of the Court in the Mellon and Flynn cases. In Moragne, a decision on which I believe the majority places a mistaken reliance, the Court emphasized its reluctance to disregard or overrule established precedent:
Mr. Justice Harlan, for the Court, then went on to state with care the reasons for rejecting The Harrisburg
"At early common law, the personal representative could not be sued for a tort committed by the decedent during his lifetime. From early notions of the untransmittability of blame—and the quasi-criminal nature of early tort law must not be forgotten—to the crystallization of the maxim actio personalis moritur cum persona, the common law was developed without exception, and the rule was uniform that tort actions died with the parties, either wrongdoer or injured party. There was, then, no survival of a right of action either in favor of or against an executor or administrator until statutes modified somewhat the rule of dependability upon the lives of the original parties to the wrong." F. Harper, Law of Torts 673-674 (1933), quoted in 2 F. Harper & F. James, Law of Torts § 24.1 n. 2 (1956) (hereafter Harper & James). Survival statutes, in one form or another, have been enacted in over one-half the States and supplement the state wrongful-death statutes, see W. Prosser, The Law of Torts § 126, p. 900 (4th ed. 1971) (hereafter Prosser), though in a small number of States the survival statute provides the only death remedy available, see 2 Harper & James § 24.2, p. 1288. The Federal Employers' Liability Act, 45 U. S. C. § 59, and the Jones Act, 46 U. S. C. § 688, but not the Death on the High Seas Act, 46 U. S. C. §§ 761-768, contain survival provisions.
"Whereas no Action at Law is now maintainable against a Person who by his wrongful Act, Neglect, or Default may have caused the Death of another Person . . . : Be it therefore enacted . . . That whensoever the Death of a Person shall be caused by wrongful Act, Neglect, or Default, and the Act, Neglect, or Default is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover damages in respect thereof, then and in every such Case the Person who would have been liable if Death had not ensued shall be liable to an Action for Damages, notwithstanding the Death of the Person injured, and although the Death shall have been caused under such Circumstances as amount in Law to Felony.
"II. And be it enacted, That every such Action shall be for the Benefit of the Wife, Husband, Parent, and Child of the Person whose Death shall have been so caused, and shall be brought by and in the Name of the Executor or Administrator of the Person deceased; and in every such Action the Jury may give such Damages as they may think proportioned to the Injury resulting from such Death to the Parties respectively for whom and for whose Benefit the Action shall be brought . . . .
"III. Provided always, and be it enacted, That not more than One Action shall lie for and in respect of the same Subject Matter of Complaint . . . ."
"The question turns upon the construction of s. 1 of 9 & 10 Vict. (Lord Campbell's Act), c. 93. Before that statute the person who received a personal injury, and survived its consequences, could bring an action, and recover damages for the injury; but if he died from its effects, then no action could be brought. To meet this state of the law the 9 & 10 Vict. c. 93, was passed, and `whenever the death of a person is caused by a wrongful act, and the act is such as would, if death had not ensued, have entitled the party injured to maintain an action, and recover damages in respect thereof, then . . . the person who would have been liable if death had not ensued shall be liable for an action for damages notwithstanding the death of the party injured.' Here, taking the plea to be true, the party injured could not `maintain an action in respect thereof,' because he had already received satisfaction."
"We must confess our inability to grasp the logic of any course of so-called reasoning through which the conclusion is drawn that the husband simply because he may live to suffer from a physical injury and thus become vested with a cause of action for the violation of his own personal right, has an implied power to release a cause of action—one which has not then accrued; one which may never accrue; and one which from its very nature cannot accrue until his death; and one which, if it ever does accrue, will accrue in favor of his wife and be based solely upon a violation of a right vested solely in the wife."
The contrary interpretation of the pertinent statutory language has also been the subject of scholarly criticism. Professor Prosser argues: "It is not at all clear, however, that such provisions of the death acts ever were intended to prevent recovery where the deceased once had a cause of action, but it has terminated before his death. The more reasonable interpretation would seem to be that they are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather than to subsequent changes in the situation affecting only the interest of the decedent." Prosser § 127, p. 911. See also Schumacher 120-121; Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages, 50 Calif. L. Rev. 598, 608-610 (1962); Anno., 70 Am. St. Rep. 666, 684 (1898). In States where the limiting language of Lord Campbell's Act is absent from the wrongful-death statute, the courts have permitted wrongful-death actions although the decedent had already recovered for his own injuries, see, e. g., Blackwell v. American Film Co., 189 Cal. 689, 693-694, 209 P. 999, 1001 (1922).
"Every common carrier by railroad while engaging in commerce. . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence . . . of such carrier, or by reason of any defect or insufficiency, due to its negligence . . . ." 45 U. S. C. § 51 (emphasis added).
The significant language, of course, is the use of the disjunctive "or." This language was understood by the Court of Appeals for the Fifth Circuit in Seaboard Air Line R. Co. v. Oliver, 261 F. 1, 2 (1919): "The two distinct rights of action are given in the alternative or disjunctively. The language used indicates the absence of an intention to allow recoveries for the same wrong by both the injured employé and, in case of his death, by his personal representative; only one recovery being allowed when the injured employé dies without having enforced the right of action given to him. It seems to be a fair inference from that language that the right of action given to the injured employé's personal representative was intended to be unenforceable after the enforcement and satisfaction of the one given to the employé himself."
"When we speak of recovery for the beneficiaries' mental anguish, we are primarily concerned, not with the benefits they have lost, but with the issue of compensating them for their harrowing experience resulting from the death of a loved one. This requires a somewhat negative approach. The fundamental question in this area of damages is what deleterious effect has the death, as such, had upon the claimants? In other areas of damage, we focus on more positive aspects of the injury such as what would the decedent, had he lived, have contributed in terms of support, assistance, training, comfort, consortium, etc. . . .
"The great majority of jurisdictions, including several which do allow damages for other types of nonpecuniary loss, hold that the grief, bereavement, anxiety, distress, or mental pain and suffering of the beneficiaries may not be regarded as elements of damage in a wrongful death action." Speiser § 3.45, p. 223 (emphasis in original) (footnotes omitted).
"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located."
Since the Act employs the terms "in the course of his employment. . . ," the cause of action it provides "follows from the seaman's employment status and is not limited to injury or death occurring on the high seas." Moragne v. States Marine Lines, 398 U.S. 375, 394 (1970). Proof of negligence is a predicate to recovery. Ibid.
"Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued."
"If a person die as the result of such wrongful act, neglect, or default as is mentioned in section 761 of this title [see n. 4, supra] during the pendency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, neglect, or default, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of [pecuniary losses]."
"[In those states with statutes combining the functions of a death statute and a survival statute] the representatives of the deceased can recover in a single action both for the damages preceding death and for those caused by the death. Even in such States, however, a judgment obtained by the deceased or a release of the cause of action by him terminates the right of action."
Accord, Restatement (Second) of Torts, Explanatory Notes § 926, comment a, p. 204. See also id., Explanatory Notes § 925, comment i, p. 199:
"[A] release of his claim by the injured person bars an action after his death for causing the death, as also does a judgment either for, or if on the merits, against him given in an action brought by him for the tort."
"If . . . deceased recovers before his death, his recovery for permanent injuries will be based, under the prevailing American rule, on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury. Presumably any settlement would reflect the legal liability under this rule. The danger of double recovery becomes clear when it is recalled that any benefits of which the survivors were deprived, by the death, would have come out of these very prospective earnings if deceased had lived. At least in the case of serious and apparently permanent injuries, therefore, there is real danger of double recovery if a wrongful death action is allowed after recovery or release by deceased during his lifetime." (Emphasis in original; citations omitted.)
See id., at n. 14: "[Double recovery] is a `theoretical' as well as a `practical' danger. . . . The prevailing rules . . . seem therefore to be fully justified." (Citation omitted.) See also Prosser 911: "The courts undoubtedly have been influenced by a fear of double recovery. This is of course possible in point of law, not only under the survival type of death act, but also in any jurisdiction where the decedent would be allowed to recover for the prospective earnings lost through his diminished life expectancy." (Citations omitted.) The latter appears to have been the measure of Mr. Gaudet's recovery in his personal-injury action. 463 F.2d 1331, 1333 n. 1 (CA5 1972); Tr. of Oral Arg. 20-21.
"The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss they may severally have suffered by reason of the death of the person by whose representative the suit is brought."
"Recovery under the High Seas Act like that under FELA § 51 [and thus the Jones Act] is based on pecuniary loss to the beneficiaries as a result of the wrongful death. The damage calculation therefore involves an estimate of what the decedent's life expectancy would have been, his probable earnings during that period and the amounts he would have contributed to beneficiaries."
Only one Fifth Circuit case, other than the instant case, and two cases from the United States District Court for the Eastern District of Louisiana have concluded that Moragne signaled a break with settled admiralty wrongful-death damages rules. Dennis v. Central Gulf S. S. Corp., 453 F.2d 137, cert. denied, 409 U.S. 948 (1972); In re Farrell Lines, Inc., 339 F.Supp. 91 (1971); In re Sincere Navigation Corp., 329 F.Supp. 652 (1971). In the latter case, the court candidly admitted that its decision "may conflict with Moragne's goal of uniformity of recovery for all who perish on navigable water." Id., at 657.
"The policy thus established [by the state and federal wrongful-death statutes] has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law." 398 U. S., at 390-391. And, again:
"Both the Death on the High Seas Act and the numerous state wrongful-death acts have been implemented with success for decades. The experience thus built up counsels that a suit for wrongful death raises no problems unlike those that have long been grist for the judicial mill." Id., at 408.
Contrary to the Court's intimations, there is no basis for suggesting a tension between these statutes and Moragne. Indeed, it is clear from the Moragne opinion that the Court relied upon the statutes in its analysis, sought only to fill a narrow gap in the law left by them, and considered that the statutes afforded "persuasive analogy for guidance" in developing the Moragne cause of action. Ibid.