                       REVISED - August 6, 1999

                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit

                     ___________________________

                             No. 98-30248
                     ___________________________


   LINDA JACOBS, as Temporary Administratrix of the Estate of
                     Patrick Daniel Jacobs,

                            Plaintiff-Appellee and Cross-Appellant,

                                VERSUS


NORTHERN KING SHIPPING CO., LIMITED; SUN ENTERPRISES LIMITED, in
                  personam; M/T MARINA, in rem,

                         Defendants-Appellants and Cross-Appellees.

       ___________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
        ___________________________________________________

                            July 27, 1999

Before POLITZ, HIGGINBOTHAM, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     Appellee Linda Jacobs, as Temporary Administratrix of the

Estate of Patrick Jacobs, filed suit against Appellants Northern

King Shipping Co., Ltd., Sun Enterprises, Ltd., and the M/T MARINA,

in rem, (the “vessel interests”) to recover damages arising out of

the accidental death of her husband, Patrick Jacobs (“Jacobs”) in

Colombian waters.    After a bench trial, the district court found

the vessel interests 100 percent at fault for the death of Jacobs

under the Death on the High Seas Act (“DOHSA”) and awarded Appellee

$443,000 in damages, including $200,000 for Jacobs’ conscious pain

and suffering.      The principal issue on appeal relates to the
propriety of this latter award.         For reasons that follow, we

conclude that Jacobs’ relatives cannot recover for the decedent’s

pre-death pain and suffering.     Appellee is limited to the relief

provided in DOHSA, Congress’ comprehensive death act applicable to

Jacobs’ death. DOHSA does not allow recovery for such damages, and

courts are not authorized to supplement DOHSA with the general

maritime law or state law to permit recovery for Jacobs’ pain and

suffering.

                                  I.

     Patrick Jacobs died on March 8, 1997, as a result of the

injuries he sustained while on board the M/T MARINA.         At the time

of his death, Jacobs was employed by MAPCO Petroleum, Inc., the

voyage   charterer   of   the   M/T    MARINA,    as   a   loss   control

representative.    He was engaged to conduct a cargo inspection on

board the M/T MARINA while the vessel was loading in Coveñas,

Colombia.    The M/T MARINA was owned by Northern King Shipping Co.,

Ltd. and managed by Sun Enterprises, Ltd.

     On March 7, 1997, Jacobs traveled to Cartagena, Colombia.

Jacobs then traveled to the vessel-–located in Coveñas--with Relief

Captain Fillipakis who noticed that Jacobs’ face and neck were

flushed and that his hand was trembling.         At approximately 12:30

p.m. on March 8, 1997, Jacobs boarded the M/T MARINA.

     After boarding the vessel, Jacobs checked the vessel’s inner

accommodation spaces and the IG pressure and cargo control console

in the cargo control room.      He then had dinner with the crew,

sitting at the officers’ table.        Chief Engineer Hajimichailakis

noticed that Jacobs’ face was red and that his hand was shaking.


                                  2
After dinner, the chief engineer saw Jacobs leave his cabin, again

appearing red-faced and sweaty.

     At 11:25 p.m. that evening, Jacobs, holding an empty drinking

glass, emerged from his cabin on the starboard side of the vessel

near the cargo control room.           Captain Exameliotis, who was on the

bridge   at   the   time,    saw    Jacobs   and     asked   him   if   he   needed

assistance.    Jacobs responded in the negative and proceeded down

the inner accommodation stairway between the bridge and the next

deck level, the “D” deck.             While descending the stairs, Jacobs

apparently fell.      The captain heard a noise, went to investigate,

and again asked Jacobs if he needed assistance.                     Jacobs again

responded in the negative.

     Jacobs then proceeded through the “D” deck interior alleyway.

Radio Operator Bibudis, who was in the radio room, heard loud

noises and went out into the alleyway to investigate.               There he saw

Jacobs, who appeared to be confused and disoriented.                    The radio

operator asked Jacobs if he needed assistance, but Jacobs mumbled

incoherently in reply.             Jacobs then continued on through the

external port side door, exiting the accommodation structure onto

the vessel’s exterior “D” deck. The radio operator followed Jacobs

onto the deck and saw Jacobs trying to climb the deck railing as if

attempting to jump.        When the radio operator approached Jacobs to

assist him, Jacobs turned around and struck him with the drinking

glass on the forehead over his left eye.             The radio operator’s head

began to bleed, and he immediately turned around and went back to

his cabin     where   he    cleaned    his   wound    for    approximately     four

minutes.


                                         3
      In the meantime, the chief engineer had also heard the noises

Jacobs was making and went to investigate. When the chief engineer

exited the external door to the “D” deck, he saw Jacobs strike the

radio operator.     When the radio operator turned around and went

back to his cabin, the chief engineer told him that he would call

Captain Exameliotis.      The chief engineer then ran to the bridge to

notify the captain and to obtain assistance from the duty officers.

Once on the bridge, the chief engineer and the captain ran out to

the bridge wing, where they should have been able to see Jacobs,

but Jacobs was gone.       The captain ran down through the interior

accommodation stairway where he found Apprentice Deck Officer

Zoupas and told him to help him look for Jacobs.

      The apprentice deck officer found Jacobs on the starboard side

of   the   vessel   on   the   vessel’s   exterior    lower   “A”   deck    at

approximately 11:35 p.m.       Jacobs was lying on his back underneath

the starboard lifeboat, on the opposite side of the vessel and

three decks below where he was last seen.       He was bleeding from his

left thigh and head.      The captain and the apprentice deck officer

lifted Jacobs and brought him into the first empty cabin.                  The

captain then instructed the relief captain to communicate with

agents for ISACOL and the cargo terminal, Floating Storage Unit, to

send a doctor to the vessel immediately.             The captain tied two

tourniquets to stop the bleeding in Jacobs’ left thigh, but Jacobs’

heart soon stopped beating, and he stopped breathing.          Jacobs died

about 15 minutes after his fall. An autopsy confirmed that Jacobs’

death resulted from hemorrhage and broken cervical vertebrae caused

by the fall.


                                     4
     Linda Jacobs, as Temporary Administratrix of Patrick Jacobs’

estate, brought suit against the vessel interests under DOHSA, 46

U.S.C. §§ 761, et seq., the Jones Act, 46 U.S.C. §§ 688, et seq.,

and general maritime law.        She later amended her complaint to add

a claim under the Texas Survival Statute, Tex.Civ.Prac. & Rem.Code

§ 71.021.    Before trial, the district court dismissed Appellee’s

Jones Act claim following        Appellee’s acknowledgment that she had

insufficient facts to sustain a Jones Act action.               The district

court also granted the vessel interests’ pretrial motion for

summary judgment and dismissed Appellee’s claim under the Texas

Survival Statute, holding that a plaintiff may not maintain both a

state and a general maritime law survival action under Thornhill v.

Otto Candies, 1994 WL 532591 (E.D. La. Sept. 27, 1994).               The court

concluded that Appellee’s general maritime law survival action

preempted her survival action under Texas law.          The district court

denied the vessel interests’ summary judgment motion as to all

other claims.

     During a three-day bench trial, the court heard extensive

evidence about Jacobs’ medical history that shed light on Jacobs’

behavior aboard the M/T MARINA.           The evidence showed that Jacobs

suffered    from   a   serious    liver    condition   caused    by    alcohol

consumption and exposure to toxic chemicals.           Jacobs’ confused and

disoriented state on board the M/T MARINA was consistent with

hepatic encephalopathy, a neurological condition related to his

liver condition.       Jacobs had also apparently suffered two such

episodes of confusion and disorientation before he boarded the M/T

MARINA, but no definitive diagnosis of hepatic encephalopathy had


                                      5
been made.

     The   district      court,    after    holding        that   DOHSA     was   the

controlling   statute,     found    the     vessel    interests       100   percent

responsible for the death of Patrick Jacobs.                 The district court

declined to attribute any fault to Jacobs.                 The court found that

although Jacobs was aware of his liver disease, he had consumed no

alcohol in several months and had not been sufficiently warned of

the dangers posed by his condition.            The district court entered

judgment in favor of Appellee and against the vessel interests in

the amount of $443,000.      This award included $35,000 for past loss

of support; $200,000 for future loss of support; $200,000 in

survival damages for Jacobs’ conscious pain and suffering under the

general maritime law; and $8,000 in funeral expenses.                         In an

amended judgment, the district court awarded prejudgment interest

on Appellee’s award of survival damages and past and future loss of

support.     The vessel interests appeal from this judgment, and

Appellee cross-appeals the amount of damages.

                                      II.

                                      A.

     The vessel interests first contend that the district court’s

findings   that   they    were    negligent     and    that       Jacobs    was   not

comparatively negligent are clearly erroneous.                We do not disturb

the district court’s factual findings unless they are clearly

erroneous.     See    Fed.R.Civ.P.    52(a).         “‘A    finding    is   clearly

erroneous when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.’”                    Anderson


                                       6
v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84

L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum

Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed.2d 746 (1948)).

After carefully reviewing the record, we are satisfied that the

evidence taken as a whole supports the district court’s findings.

We therefore decline to disturb the district court’s factual

findings.

                                     B.

      The vessel interests next argue that in light of Dooley v.

Korean Air Lines Co., Ltd., 524 U.S. 116, 118 S.Ct. 1890, 141

L.Ed.2d 102 (1998), the district court erred in awarding Appellee

non-pecuniary survival damages for the decedent’s pre-death pain

and suffering under the general maritime law. The vessel interests

contend that DOHSA is the exclusive remedy for Jacobs’ death and

cannot be supplemented by a general maritime law survival action.

      Where a death occurs on the high seas, DOHSA provides a cause

of   action    for   wrongful   death–-an   action   by   relatives   of   the

decedent to sue for their pecuniary losses.           Id. at __, 118 S.Ct.

at 1892.      DOHSA, however, provides no survival action--the action

the decedent could have brought but for his death.            Id.

      Appellee argued to the district court that she should be

permitted to supplement her DOHSA wrongful death cause of action by

resorting to the general maritime law and thereby be able to

recover survival damages--Jacobs’ pre-death pain and suffering.

The district court accepted this argument and awarded $200,000 to

Appellee for Jacobs’ pre-death pain and suffering.

      After the district court decided this case, the Supreme Court


                                      7
decided Dooley.    In Dooley, the Supreme Court rejected a similar

argument and held that DOHSA was the plaintiffs’ exclusive remedy

and that the decedent’s relatives could not look to the general

maritime law to supplement their DOHSA wrongful death action and

thereby   find   authority   to    assert    a    survival   action   for   the

decedent’s pre-death pain and suffering.            Id. at __, 118 S.Ct. at

1895.

     Now that we have the benefit of the Supreme Court’s decision

in Dooley, it is clear that the district court erred in awarding

survival damages for Jacobs’ pain and suffering under the general

maritime law as a supplemental remedy to DOHSA. Appellee, however,

offers an alternative argument to sustain this award, to which we

turn next.

                                     C.

     Appellee argues alternatively that this Court should uphold

the district court’s award of damages for the decedent’s pre-death

pain and suffering under the Texas Survival Statute.1                 See Gaia

Technologies Inc. v. Recycled Products Corp., 1999 WL 292919, *4

(5th Cir. 1999). Appellee contends that, at most, Dooley addresses

the availability of a survival action under the general maritime

law to supplement DOHSA.          Appellee argues that Dooley does not

preclude a holding that DOHSA may be supplemented by a state

survival statute to recover survival damages. Although Appellee is

correct   that   Dooley   itself    does    not   expressly   foreclose     the

argument that DOHSA may be supplemented by a state survival action,


    1
       As stated above, Appellee’s claim under the Texas Survival
Statute was dismissed as being duplicative of her claim under the
general maritime law.

                                      8
the reasoning of the Supreme Court in a number of decisions

forecloses such a result.       Based on these decisions, we conclude

that the Congressionally authorized wrongful death remedy in DOHSA

may not be supplemented with a survival action under either the

general maritime law or state survival acts.

      Before the enactment of DOHSA in 1920, the general maritime

law did not permit an action for damages arising from a death on

the high seas, although it did permit a person injured by tortious

conduct to recover damages. Jason P. Minkin, United States Supreme

Court Denies Survival Action Under General Maritime Law: Dooley v.

Korean Air Lines Co., 23 Tul.Mar.L.J. 229, 231 (1998).                  See The

Harrisburg, 119 U.S. 199, 213, 7 S.Ct. 140, 146-47, 30 L.Ed.2d 358

(1886).    In 1920, Congress sought to alleviate this harsh feature

of admiralty law by enacting the Death on the High Seas Act.              DOHSA

created a remedy in admiralty for deaths occurring more than three

miles from shore as a result of wrongful act, neglect, or default.

The   action    must     be   brought       by     the     decedent’s   personal

representative “for the exclusive benefit of the decedent’s wife,

husband, parent, child, or dependent relative.”                46 U.S.C. App. §

761 (1988). Furthermore, DOHSA limits recovery to “a fair and just

compensation for the pecuniary loss sustained by the persons for

whose benefit the suit is brought.”              Id. § 762.

      In   1978,   the   Supreme   Court         decided    Mobil Oil Corp. v.

Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978).

In that case, relatives of passengers killed in a helicopter crash

beyond the territorial limits of Louisiana brought a DOHSA/general

maritime law action to recover for the decedent’s wrongful death.


                                        9
The Supreme Court addressed whether the decedent’s survivors could

recover non-pecuniary damages for loss of society under the general

maritime law in addition to the pecuniary damages authorized by

DOHSA.     The Court held that in a case of death on the high seas,

DOHSA rather than the general maritime law governs the recoverable

damages, and thus non-pecuniary damages could not be recovered in

a DOHSA action.        Id. at 625-26, 98 S.Ct. at 2015.

     The Court stated that because Congress has never enacted a

comprehensive maritime code, admiralty courts have often been

called upon to supplement maritime statutes.           Id. at 625, 98 S.Ct.

at 2015.    However, the Court distinguished those statutes from the

Death on the High Seas Act, which “announces Congress’ considered

judgment on such issues as the beneficiaries, the limitations

period, contributory negligence, survival, and damages.”                   Id.

Because the Act addresses the issue of recoverable damages and

limits     them   to    pecuniary   losses,   courts   are   not   “free    to

‘supplement’ Congress’ answer so thoroughly that the Act becomes

meaningless.”     Id.    By enacting a comprehensive death act--DOHSA--

Congress “struck the balance” for the Court by limiting survivors

to recovery of their pecuniary losses.           Id. at 623, 98 S.Ct. at

2014.    The Court declared:

     Congress did not limit DOHSA beneficiaries to recovery of
     their pecuniary losses in order to encourage the creation of
     nonpecuniary supplements.     There is a basic difference
     between filling a gap left by Congress’ silence and rewriting
     rules that Congress has affirmatively and specifically
     enacted. In the area covered by the statute, it would be no
     more appropriate to prescribe a different measure of damages
     than to prescribe a different statute of limitations, or a
     different class of beneficiaries.


Id. at 625, 98 S.Ct. at 2015 (citations omitted).

                                      10
       The   Supreme     Court      again   considered       whether   the   damages

provided in DOHSA could be supplemented in yet another context in

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct.

2485, 91 L.Ed.2d 174 (1986). In that case the decedent’s relatives

sought to recover, in addition to their pecuniary losses authorized

by   DOHSA,    their     non-pecuniary          losses    consisting    of   loss    of

companionship      and      loss    of   love    and     affection.     Because     the

plaintiffs were foreclosed by Higginbotham from claiming these

damages under the general maritime law, they sought to supplement

the allowable damages under DOHSA with the adjacent state death

act.    The Supreme Court rejected the plaintiffs’ arguments that

they were entitled to resort to state death acts to supplement

their DOHSA remedy.              Id. at 232, 106 S.Ct. at 2499.          The Court,

following Higginbotham’s reasoning, held that “‘when DOHSA does

speak    directly      to    a     question,     the   courts   are    not   free    to

“supplement” Congress’ answer . . . .’”                   Id. at 232, 106 S.Ct. at

2499 (quoting Higginbotham, 436 U.S. at 625, 98 S.Ct. at 2015).

The court concluded that where DOHSA applies--as it did in that

case    to   fix   the      wrongful     death    damages--state       statutes     are

preempted. The Court, however, expressly left open the question of

“whether the DOHSA recovery for the beneficiaries’ pecuniary loss

may be ‘supplemented’ by a recovery for the decedent’s pain and

suffering     before     death      under   the    survival     provision    of   some

conceivably applicable state statute that is intended to apply on

the high seas.”     Tallentire, 477 U.S. at 215 n.1, 106 S.Ct. at 2490

n.1.

       In Dooley, the Supreme Court addressed a question closely


                                            11
related to the issue it left open in Tallentire.         The Court

considered whether the plaintiffs could supplement their DOHSA

remedy and recover for the decedent’s pain and suffering under the

general maritime law. The plaintiffs argued that “because DOHSA is

a wrongful death statute--giving surviving relatives a cause of

action for losses they suffered as a result of the decedent’s

death--it has no bearing on the availability of a survival action.”

Dooley, 524 U.S. at __, 118 S.Ct. at 1894.

     The Court rejected the plaintiffs’ arguments in the following

terms:

          We disagree.   DOHSA expresses Congress’ judgment that
     there should be no such cause of action in cases of death on
     the high seas.      By authorizing only certain surviving
     relatives to recover damages, and by limiting damages to the
     pecuniary losses sustained by those relatives, Congress
     provided the exclusive recovery for deaths that occur on the
     high seas. Petitioners concede that their proposed survival
     action would necessarily expand the class of beneficiaries in
     cases of death on the high seas by permitting decedents’
     estates (and their various beneficiaries) to recover
     compensation. They further concede that their cause of action
     would expand the recoverable damages for deaths on the high
     seas by permitting the recovery of non-pecuniary losses, such
     as pre-death pain and suffering. Because Congress has already
     decided these issues, it has precluded the judiciary from
     enlarging either the class of beneficiaries or the recoverable
     damages. . . .

          The comprehensive scope of DOHSA is confirmed by its
     survival provision, which limits the recovery in such cases to
     the pecuniary losses suffered by surviving relatives. The Act
     thus expresses Congress’ “considered judgment,” Mobil Oil
     Corp. v. Higginbotham, on the availability and contours of a
     survival action in cases of death on the high seas. For this
     reason, it cannot be contended that DOHSA has no bearing on
     survival actions; rather, Congress has simply chosen to adopt
     a more limited survival provision. . . .Even in the exercise
     of our admiralty jurisdiction, we will not upset the balance
     struck by Congress by authorizing a cause of action with which
     Congress was certainly familiar but nonetheless declined to
     adopt.

          In sum, Congress has spoken on the availability of a
     survival action, the losses to be recovered, and the

                                12
      beneficiaries in cases of death on the high seas.

Id. at __, 118 S.Ct. at 1895 (citations omitted).

      Although the Court in Dooley did not consider whether DOHSA

could be supplemented by a state survival act to permit the

recovery of survival damages, when read together, the reasoning of

Higginbotham,    Dooley   and   Tallentire    definitively   answers   this

question.2

      In Higginbotham, the Court held that DOHSA is a comprehensive

act   that   governs   allowable   wrongful    death   damages   and   that

plaintiffs cannot look to the general maritime law to supplement

these damages.    Higginbotham, 436 U.S. at 626, 98 S.Ct. at 2015.

Similarly, in Tallentire, the Court held that because DOHSA has

spoken to the question of recoverable wrongful death damages, state

statutes are preempted by DOHSA where it applies.        Tallentire, 477

U.S. at 232, 106 S.Ct. at 2499.          The Court therefore declined to

allow the plaintiffs to look to state wrongful death acts to

supplement their DOHSA wrongful death damages.

      Although the Court in Tallentire left open the question of

whether a plaintiff could look to state survival statutes to

supplement a DOHSA wrongful death remedy, Dooley effectively closed

this gap.    Dooley holds that Congress, in DOHSA, has spoken on the

availability of a survival action and has chosen not to authorize


      2
        See also Zicherman v. Korean Air Lines Co., Ltd., 516 U.S.
217, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996).      In this case, the
Supreme Court considered the availability of loss of society
damages under DOHSA in an action (essentially identical to Dooley)
by the survivors of a passenger killed by the crash of Korean Air
Lines flight KE007 over the Sea of Japan. The Court, consistent
with Higginbotham and Tallentire, held that non-pecuniary damages
for loss of society may not be recovered under the general maritime
law or under state law because DOHSA supplies the exclusive remedy.

                                    13
one.    Dooley, 524 U.S. at __, 118 S.Ct. at 1894-95.             Because

Congress left no gap in the Congressional scheme capable of being

supplemented, the Court declined to authorize a survival cause of

action under the general maritime law.         The Court’s determination

in Dooley that Congress has spoken on the availability of a

survival action also precludes courts from supplementing an action

under DOHSA by resort to state survival acts.         As the Court stated

in   Tallentire,   “the   conclusion    that   the   state   statutes   are

preempted by DOHSA where it applies is inevitable.”           Tallentire,

477 U.S. at 232, 106 S.Ct. at 2499.

       Therefore we conclude that DOHSA is Appellee’s exclusive

remedy for Jacobs’ death, and she cannot look to state law to

support a recovery for Jacobs’ pre-death pain and suffering.            That

part of the district court’s judgment awarding Appellee damages for

Jacobs’ pre-death pain and suffering is vacated.

                                   D.

       The vessel interests next challenge the district court’s grant

of prejudgment interest on Appellee’s future loss of support award.

The award of prejudgment interest in death claims under DOHSA is

discretionary with the trial court.        Solomon v. Warren, 540 F.2d

777, 794 (5th Cir. 1976), cert. dismissed, 434 U.S. 801, 98 S.Ct.

28, 54 L.Ed.2d 59 (1977).     However, it is the rule in this Circuit

that prejudgment interest may not be awarded with respect to future

damages.    Couch, III v. Cro-Marine Transport, Inc., 44 F.3d 319,

328 (5th Cir. 1995).      Contrary to the vessel interests’ argument,

our review of the record reveals that the district court awarded

prejudgment interest on Appellee’s future loss of support award


                                   14
only from the date of trial (January 26, 1998) to the date of the

judgment (February 27, 1998). The district court did not abuse its

discretion   in   awarding    interest    to   this   limited   extent    on

Appellee’s award of future loss of support.

                                    E.

     Appellee cross-appeals and argues that the district court’s

award of damages is insufficient to compensate Appellee and that

the district court erred in calculating the damages for future loss

of support. After carefully reviewing the record, we conclude that

the district court’s award was not clearly erroneous, and we

decline to disturb it.       See Couch, 44 F.3d at 327.

                                   III.

     In sum, we affirm all features of this case except the

district court’s award of survival damages for Jacobs’ pre-death

pain and suffering under the general maritime law. We also decline

to reinstate the award under the Texas Survival Statute.                 The

judgment of the district court is therefore

     AFFIRMED IN PART, REVERSED IN PART and REMANDED for entry of

judgment consistent with this opinion.




                                    15
