                  United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 08-3144
                                 ___________

Daniel Doyle; Anne Doyle,              *
                                       *
            Plaintiffs/Appellees,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Leland Graske,                         *
                                       *
            Defendant/Appellant,       *
                                       *
      v.                               *
                                       *
Jason R. Haynes; Caribe Inflatables    *
USA, Inc.; Kirk Marine,                *
                                       *
            Third Party Defendants.    *
                                       *
                                       *
                                  ___________

                            Submitted: April 16, 2009
                               Filed: September 2, 2009
                            Amended: October 21, 2009
                                ___________

Before LOKEN, Chief Judge, HANSEN and COLLOTON, Circuit Judges.
                              ___________

COLLOTON, Circuit Judge.
       Daniel Doyle suffered injuries while he was a passenger on a boat owned and
operated by Leland Graske. Doyle and his wife brought an action in Nebraska state
court, claiming that Graske was negligent in his operation of the boat. Graske
removed the case to federal district court, invoking admiralty jurisdiction. Removal
based on admiralty jurisdiction was improper under 28 U.S.C. § 1441, see Romero v.
International Terminal Operating Co., 358 U.S. 354, 371-72 (1959), but the Doyles
waived their objection to improper removal by failing to seek a remand to state court,
and the district court properly exercised jurisdiction over claims that could have been
brought originally in federal court. See Grubbs v. Gen. Elec. Credit Corp., 405 U.S.
699, 702 (1972); Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1069 (9th Cir.
2001). The district court, sitting without a jury, found that Doyle’s injuries were
caused by Graske’s negligence, and awarded compensatory damages to Doyle, as well
as loss-of-consortium damages to his wife, Anne. We affirm the district court’s
judgment in favor of Daniel Doyle, but reverse its award of loss-of-consortium
damages to Anne Doyle.

                                          I.

         On October 31, 2003, Graske and two friends, Daniel Doyle and Robert Van
Hook, decided to go fishing in the waters off the coast of Grand Cayman Island, where
Graske owned a vacation home. The three set out on Graske’s inflatable boat at
around 10:30 a.m. The boat was fourteen feet long, with a seventy-horsepower engine
and room for six passengers. It featured two seats at the stern (or rear), two more at
midship, and a cushion for two passengers at the bow (or forward end). Both seats at
the stern faced forward and included backrests. The stern seat on the starboard side
(i.e., the right side while looking forward) was known as the “helm seat” because of
its position opposite the boat’s steering wheel, located on a console at midship. The
forward side of the console functioned as a backrest for the starboard midship seat.
The other midship seat (on the port, or left, side) and the bow cushion seats did not
have backrests, and passengers sitting on the latter had to ride facing the rear. An

                                         -2-
inflatable tube formed most of the boat’s hull, and there were hand straps along the
top of the tube for passengers sitting at midship or in the bow.

       From the helm seat, Graske steered the boat slowly through the no-wake zone
– a zone extending two hundred yards from shore in which boats are prohibited from
traveling above five miles per hour. When the boat was past the zone, Graske said,
“Here we go,” or words to that effect, and began accelerating. As the boat came on
plane – that is, reached a speed at which its hull was no longer displacing the water,
but skimming across it – a nylock nut came loose from the boat’s steering system,
causing the system to malfunction and the boat to turn abruptly and sharply to the left.

       Despite the sudden turn, Graske was able to maintain his position behind the
steering wheel. Van Hook, who was sitting on one of the midship seats, managed to
remain on the boat as well. Doyle, however, was thrown overboard. Accounts differ
concerning where Doyle was located when he was ejected. According to Graske,
Doyle was sitting on the inflatable tube, with his feet between the starboard midship
and bow seats, and with at least one hand on a hand strap. According to Van Hook,
Doyle was seated on the bow cushion (having moved there from the tube), and was
not holding any hand strap. Doyle himself cannot remember.

      Wherever he was sitting, Doyle was thrown into the water, and as the boat
continued turning counterclockwise, it struck him in the back and on the head. Graske
immediately put the boat in neutral. Doyle was some distance from the boat, injured
but conscious. Graske brought the boat closer to Doyle, and Van Hook grabbed hold
of him, eventually pulling him onto the inflatable tube.

      Graske guided the boat to shore. From there, Doyle was transported to a local
hospital and then transferred to medical facilities in the United States. Doctors
diagnosed him with a flail chest, his respiration hindered by multiple rib fractures.



                                          -3-
Because of difficulties breathing, Doyle suffered permanent brain injury while
hospitalized.

       Doyle brought an action against Graske in Nebraska state court, claiming
negligence in Graske’s operation of the boat. Graske removed the case to federal
district court, invoking admiralty jurisdiction under 28 U.S.C. § 1333(1). He sought
to implead several third-party defendants, including a mechanic who repaired and
reassembled the boat’s steering system just days before the accident. Graske,
however, was unable to establish personal jurisdiction over the third-party defendants,
and his claims were ultimately dismissed without prejudice. Doyle filed an amended
complaint, adding his wife, Anne, as a plaintiff.

       Following a bench trial, the district court entered judgment in favor of the
Doyles. Applying general maritime law, the court found that Graske was negligent
in his operation of the boat, and that Graske’s negligence was a proximate and
substantial cause of Doyle’s injuries. It also determined that Doyle’s own negligence
contributed to his injuries, because he should have been more aware of the dangers
around him. The court apportioned ninety percent of the fault for Doyle’s injuries to
Graske and potential tortfeasors, including the mechanic, and the remaining ten
percent to Doyle himself. Taking account of Doyle’s comparative negligence, the
court awarded $3,238,153 in compensatory damages to Doyle. It also awarded
$750,000 in damages for loss of consortium to Anne, but that amount did not reflect
any proportional reduction for Doyle’s comparative fault. Graske appeals.

                                           II.

      Graske first challenges the district court’s finding that he was negligent in the
operation of the boat. Because negligence in admiralty is a factual determination, we
may not set aside the district court’s finding unless it is clearly erroneous. McAllister
v. United States, 348 U.S. 19, 20 (1954). “A finding is clearly erroneous when

                                          -4-
although there is evidence to support it, the reviewing court on the entire evidence is
left with a definite and firm conviction that a mistake has been committed.” Id.
(internal quotations omitted).

       Under general maritime law, a boat owner owes a duty of reasonable care to
passengers lawfully aboard his boat.            Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625, 630 (1959). The district court found that Graske
breached this duty by bringing the boat on plane while Doyle was seated in “a position
of danger.” The court acknowledged that according to Graske, Doyle was sitting on
the tube when the accident occurred, whereas according to Van Hook, Doyle was
sitting on the bow cushion. But the court determined that this difference of opinion
was immaterial, because “both the tube and the bow cushion seat are positions of
danger while accelerating a small watercraft on the open ocean.” Given that Doyle
was sitting at either one position or the other, the court reasoned that Graske should
have known that it was unsafe to accelerate. Accordingly, the court concluded that
by bringing the boat on plane, Graske failed to exercise reasonable care for Doyle’s
safety, and was thus negligent in his operation of the boat.1

       Graske does not dispute that his actions were negligent if Doyle was sitting on
the tube. Indeed, various boating experts testified at trial that sitting on the tube was
unsafe while the boat was planing, and there was no testimony to the contrary. Graske
focuses instead on the district court’s finding that his operation of the boat was
negligent if Doyle was sitting on the bow cushion. Graske argues that this finding is
clearly erroneous. We disagree.



      1
       Graske contends that the district court abused its discretion by failing to make
a specific finding of fact as to where Doyle was sitting when the accident occurred.
Because Doyle’s exact seating position is not an ultimate fact necessary to reach a
decision, we reject Graske’s contention. See Allied Van Lines, Inc. v. Small Bus.
Admin., 667 F.2d 751, 753 (8th Cir. 1982).

                                          -5-
       At trial, Michael Sampsel, a mechanical and marine engineer, testified that the
bow cushion was an unsafe position while the boat was on plane. Sampsel noted that
the cushion was naturally subject to greater motion at higher speeds, given its location
in the boat’s bow. According to Sampsel, however, the cushion’s design did not
account for such increased motion. Quite the opposite, he explained, the cushion’s
short height – just 13.5 inches above the deck – meant that passengers would be sitting
in an unusual posture, with their knees higher than normal. He also noted that the lack
of thigh restraints or backrests meant that passengers would be prone to sliding across
the cushion. Sampsel acknowledged the presence of nearby hand straps, but
maintained that they were meant for use in lifting the boat, not for use by passengers.
In Sampsel’s opinion, therefore, the bow cushion’s location and design rendered the
seat unsafe while the boat was on plane, and Graske violated safe boating practices if
he proceeded to accelerate with Doyle sitting there.

      The testimony of two other experts was not inconsistent with Sampsel’s
conclusion. Paul Larson, a marine surveyor and investigator, testified that when the
boat was planing, a seat at midship was “a better and safer position” than one in the
bow. He did not rule out the possibility that if Doyle was seated on the bow cushion
when the accident occurred, then Graske’s operation of the boat was negligent.
According to Larson, whether Graske failed to exercise reasonable care would depend
on the circumstances. Herbert Angell, a boating law administrator for the State of
Nebraska, took a similar position. Like Larson, Angell testified that whether it was
negligent to allow Doyle to sit on the bow cushion would depend on how fast the boat
was traveling and other environmental conditions.

       The only expert witness who stated categorically that sitting in the bow was
safe at planing speed was Robert MacNeill, a boat manufacturing consultant. The
district court noted, however, that MacNeill’s expertise was in designing yachts, not
small recreational vessels. The court therefore declined to credit MacNeill’s
testimony regarding the safe operation of Graske’s fourteen-foot boat. Giving due

                                          -6-
deference to the district court’s determination of credibility, we cannot say that its
refusal to accept MacNeill’s testimony was unreasonable.

       In light of the record as a whole, we conclude that substantial evidence supports
the district court’s conclusion that Graske breached a duty of reasonable care if Doyle
was seated on the bow cushion when the boat came on plane. The definitive
testimony of Sampsel, and the fact-dependent opinions of two other experts, provided
sufficient basis for the court to find that the bow cushion was a position of danger
under the circumstances, such that Graske should have known not to accelerate while
Doyle was seated there. Given that the only other position where Doyle could have
been located was on the tube – a position Graske does not dispute would have been
unsafe – we hold that the district court’s finding of negligence in Graske’s operation
of the boat is not clearly erroneous.

                                          III.

        Graske next challenges the district court’s determination that his negligent
operation of the boat was a proximate and substantial cause of Doyle’s injuries. Issues
of proximate causation in admiralty “involve application of law to fact, which is left
to the factfinder, subject to limited review.” Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S.
830, 840-41 (1996). We may not disturb the district court’s determination unless it
is clearly erroneous. Am. Home Assurance Co. v. L & L Marine Serv., Inc., 875 F.2d
1351, 1354 (8th Cir. 1989).

       Graske invokes the doctrine of superseding cause, arguing that the negligent
repair of the boat’s steering system superseded his negligent operation of the boat,
thereby relieving him of liability for Doyle’s injuries. The allegedly negligent repair
of the boat, however, could not have been a superseding cause of Doyle’s injuries.
The doctrine of superseding cause applies “where the defendant’s negligence in fact
substantially contributed to the plaintiff’s injury, but the injury was actually brought

                                          -7-
about by a later cause of independent origin that was not foreseeable.” Sofec, 517
U.S. at 837 (emphasis added) (internal quotation omitted). Here, the allegedly
negligent repair of the boat occurred before Graske’s negligence, and thus could not
have superseded it. Accordingly, the doctrine of superseding cause is of no avail to
Graske.

       Graske also invokes the doctrine of inevitable accident, arguing that Doyle’s
injuries would have occurred as a result of the failure of the boat’s steering system,
regardless of whether Graske’s operation of the boat was negligent. We doubt that the
doctrine of inevitable accident applies outside the context of collision liability, where
it may be raised as an affirmative defense by vessels accused of causing collisions.
See The Louisiana, 70 U.S. (3 Wall.) 164, 173 (1865); Grant Gilmore & Charles L.
Black, Jr., The Law of Admiralty § 7-2, at 486-88 (2d ed. 1975). But even assuming
that the doctrine does apply in this general context, it would not apply in this case. An
accident cannot be said to have been inevitable if it could have been prevented by
“human skill and precaution, and a proper display of nautical skill.” The Louisiana,
70 U.S. (3 Wall.) at 173. The district court did not clearly err in finding that Doyle’s
injuries could have been prevented if Graske had exercised reasonable care by waiting
to accelerate until Doyle was seated at midship or the stern. After all, Graske and Van
Hook were riding in those areas when the boat suddenly turned, and both were able
to avoid harm. Doyle’s injuries were therefore not the inevitable consequence of the
malfunctioning of the boat’s steering system. The district court’s finding that
Graske’s negligence was a proximate and substantial cause of Doyle’s injuries is not
clearly erroneous.

                                          IV.

      Finally, Graske challenges the district court’s award of loss-of-consortium
damages to Doyle’s wife, Anne. “Loss of consortium” refers to “loss of the benefits
that one spouse is entitled to receive from the other, including companionship,

                                          -8-
cooperation, aid, affection, and sexual relations.” Black’s Law Dictionary 1031 (9th
ed. 2009). In the context of marriage, the terms “loss of consortium” and “loss of
society” are used interchangeably. In re Midland Enters., Inc., 886 F.2d 812, 816 n.4
(6th Cir. 1989). Graske contends that general maritime law does not allow recovery
for loss of consortium by the spouse of a nonseafarer negligently injured beyond the
territorial waters of the United States. A “nonseafarer” is someone, like Doyle, who
is neither a seaman covered by the Jones Act, 46 U.S.C. § 30104, nor a longshore or
harbor worker covered by the Longshore and Harbor Workers’ Compensation Act, 33
U.S.C. § 901 et seq. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205
n.2 (1996). We review de novo the question whether general maritime law allows
recovery for loss of consortium. See In re Am. Milling Co., 409 F.3d 1005, 1013 (8th
Cir. 2005).2

       The Supreme Court’s most recent guidance on how to approach this sort of
problem came in Atlantic Sounding Co. v. Townsend, 129 S. Ct. 2561 (2009). There,
the Court considered “whether an injured seaman may recover punitive damages for
his employer’s willful failure to pay maintenance and cure.” Id. at 2565. The Court
began its analysis by reviewing the history of punitive damages under the common
law generally and federal maritime law specifically. Based on that review, the Court
determined that “punitive damages have long been available at common law,” and that
“the common-law tradition of punitive damages extends to maritime claims.” Id. at
2569. The Court reasoned that because “there is no evidence that claims for
maintenance and cure were excluded from this general admiralty rule,” the only
question remaining was whether the rule had been abrogated by Congress’s enactment
of the Jones Act, which provided seamen a statutory cause of action for negligence.


      2
        The Doyles contend that Graske waived his argument that loss-of-consortium
damages are unavailable under general maritime law by raising it for the first time in
a post-verdict motion. In ruling on that motion, however, the district court considered
and rejected Graske’s argument on the merits. The issue is a purely legal one, and we
proceed to consider it.

                                         -9-
Id. The Court concluded that the rule had survived the Jones Act, because the Act did
not address either maintenance and cure or its remedy. Id. at 2572. Because Congress
had not altered the traditional understanding regarding the availability of punitive
damages in admiralty, the Court held that “such damages for the willful and wanton
disregard of the maintenance and cure obligation should remain available in the
appropriate case as a matter of general maritime law.” Id. at 2575.

       Applying the Townsend approach here, we conclude that there is no well-
established admiralty rule, as there is with respect to punitive damages, authorizing
loss-of-consortium damages as a general matter. In 1963, the question whether
maritime law allowed recovery of loss-of-consortium damages by the wife of a
longshoreman negligently injured in state territorial waters was “presented for the first
time in a federal Court of Appeals.” Igneri v. Cie. de Transports Oceaniques, 323
F.2d 257, 258 (2d Cir. 1963). In an opinion by Judge Friendly, the Second Circuit
noted that common-law authorities regarding a wife’s recovery for loss of consortium
were “conflicting,” id. at 265, and that there were no maritime cases pertaining to the
issue except for two district court decisions denying such recovery. Id. at 265-66.
Against this backdrop, the court rejected the wife’s loss-of-consortium claim. Id. at
267.

       Loss-of-consortium damages were not definitively recognized under general
maritime law in any context until 1974, when the Supreme Court held in Sea-Land
Services, Inc. v. Gaudet, 414 U.S. 573 (1974), that a wife could recover such damages
for the wrongful death of her husband, a longshoreman killed in state territorial
waters. Six years later, in American Export Lines, Inc. v. Alvez, 446 U.S. 274 (1980),
the Court extended Gaudet to personal injury actions, holding that “general maritime
law authorizes the wife of a harbor worker injured nonfatally aboard a vessel in state
territorial waters to maintain an action for damages for the loss of her husband’s
society.” Id. at 276 (plurality opinion); see id. at 286 (Powell, J., concurring in
judgment). The plurality in Alvez explained in its discussion of the Second Circuit

                                          -10-
decision in Igneri that although “the principles of maritime law prevalent in 1963
militated against, rather than supported, the creation of a right to recover for loss of
society,” id. at 280, Gaudet had since provided “the conclusive decisional recognition
of a right to recover for loss of society that Igneri found lacking.” Id. at 280-81.

       The short history of loss-of-consortium damages in admiralty consists almost
entirely of the Supreme Court’s relatively recent decisions in Gaudet and Alvez.
Given the narrow holdings of those decisions, general maritime law on loss-of-
consortium damages remains an area marked by few settled principles. Thus, unlike
the Court in Townsend, which was not asked to “change maritime law in its operation
as an admiralty court,” we cannot simply apply a preexisting general rule left
unaltered by Congress. 129 S. Ct. at 2574 n.11.

        The Court in Alvez recognized a right to recover loss-of-consortium damages
for nonfatal injuries to a spouse in the territorial waters of the United States, but Doyle
was injured nonfatally beyond such waters, off the coast of Grand Cayman Island.
Whether someone in the position of Doyle’s wife may recover loss-of-consortium
damages is an open question in this circuit. Because we are confronted with an issue
of first impression, we must continue the development of general maritime law “in the
manner of a common law court.” Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2619
(2008); see Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 360-61 (1959).

      In exercising this authority, we heed the policy choices made by Congress.
“Admiralty is not created in a vacuum; legislation has always served as an important
source of both common law and admiralty principles.” Miles v. Apex Marine Corp.,
498 U.S. 19, 24 (1990). Where there is no recognized claim under general maritime
law, as there was in Townsend, an admiralty court should look to legislative
enactments governing closely related claims for policy guidance. Id. at 27. After
reviewing the relevant policy pronouncements by Congress, we conclude that
allowing recovery for loss of consortium here would give rise to two serious

                                           -11-
disparities between general maritime law and legislative policies. These anomalies
counsel against recognizing a right to recovery.

       First, the spouses of those injured nonfatally beyond state territorial waters
would be treated differently than the spouses of those injured fatally. Congress
enacted the Death on the High Seas Act (“DOHSA”), 46 U.S.C. § 30301 et seq., to
provide a remedy in admiralty for wrongful deaths occurring more than three miles
from the shore of the United States. Id. § 30302. Under DOHSA, a decedent’s
survivors may recover only for pecuniary loss; damages for loss of society are not
available. Id. § 30303. The Supreme Court has held that DOHSA provides the
exclusive measure of damages in wrongful-death actions arising beyond the three-mile
limit. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 623 (1978). Accordingly, the
spouses of those injured fatally beyond that limit have no claim to loss-of-consortium
damages. To allow recovery of such damages by the spouses of those injured
nonfatally in the same waters would thus give rise to a significant anomaly. Indeed,
the Court confronted just such a disparity in Alvez, and extended the holding of
Gaudet to avoid it. Five Justices agreed that “there is no apparent reason to
differentiate between fatal and nonfatal injuries in authorizing the recovery of
damages for loss of society.” Alvez, 446 U.S. at 281 (plurality opinion); see id. at 286
(Powell, J., concurring in judgment) (“Since I see no rational basis for drawing a
distinction between fatal and nonfatal injuries, I join in the judgment of the Court.”).
Alvez rejected a disparity between fatal and nonfatal injuries within territorial waters,
and there is no reason to think that a disparity of that kind beyond such waters is more
acceptable.

       Second, if the spouses of injured nonseafarers like Doyle could recover loss-of-
consortium damages on claims of negligence, then their rights under general maritime
law would be greater than the rights of the spouses of injured seamen under the Jones
Act. Although the Jones Act provides an action in negligence for injury to seamen,
it does not authorize recovery by the seaman’s spouse for loss of consortium. See

                                          -12-
Miles, 498 U.S. at 32. It would be odd if the relief available to the spouse of a
nonseafarer were more expansive than that which Congress has afforded the spouse
of a seaman. After all, the principles of maritime law have always included “a special
solicitude for the welfare of seamen and their families.” Id. at 36; see also Moragne
v. States Marine Lines, Inc., 398 U.S. 375, 387 (1970) (noting the development under
maritime law of “a special solicitude for the welfare of those men who undertook to
venture upon hazardous and unpredictable sea voyages”). There is no reason to
believe that Congress meant to place the spouses of injured seamen in a worse
position than the spouses of injured nonseafarers. Cf. Igneri, 323 F.2d at 267 (“We
can think of no reason why Congress, having ruled out a maritime claim against the
ship for loss of consortium by the spouse of a negligently injured seaman, would wish
the courts to construct one for the spouse of a negligently injured stevedore.”).

       Given the value of uniformity recognized in Miles, 498 U.S. at 33, we agree
with the Fifth and Ninth Circuits that general maritime law does not allow recovery
of loss-of-consortium damages by the spouses of nonseafarers negligently injured
beyond the territorial waters of the United States. See Chan v. Soc’y Expeditions, Inc.,
39 F.3d 1398, 1408 (9th Cir. 1994); Nichols v. Petroleum Helicopters, Inc., 17 F.3d
119, 122-23 (5th Cir. 1994). It may be argued in reply that this holding creates an
anomaly of its own. Under the rule we establish here, Anne Doyle may not recover
loss-of-consortium damages, because her husband was negligently injured in waters
beyond our nation’s territorial sea. But under the rule set forth in Alvez (assuming that
rule is not limited to the wives of harbor workers), she would have been able to
recover for loss of consortium if the accident had occurred within territorial waters.
This kind of disparity, however, already exists in maritime law: Loss-of-consortium
damages are available under Gaudet when a wrongful death occurs in territorial
waters, but not under Higginbotham and DOHSA when the death occurs on the “high
seas.” See Higginbotham, 436 U.S. at 624 & n.20. We therefore conclude that our
holding best coincides with the congressional policies reflected in DOHSA and the
Jones Act, as well as the Supreme Court’s development of general maritime law.

                                          -13-
                                 *      *       *

      For these reasons, the judgment of the district court is affirmed in part and
reversed in part.
                      ______________________________




                                       -14-
