
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-1664                             JONATHAN C. HORSLEY, et al.,                               Plaintiffs, Appellants,                                          v.                                MOBIL OIL CORPORATION,                                      Appellee.                                                                                      ____________________        No. 93-1736                             JONATHAN C. HORSLEY, et al.,                               Plaintiffs, Appellants,                                          v.                                MOBIL OIL CORPORATION,                                      Appellee.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                                 Cyr, Circuit Judge,                                      _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                                                                      ____________________             Christopher M. Perry,  with whom Brendan J. Perry  and Terance P.             ____________________             ________________      __________        Perry were on brief for appellants.        _____             Brian  P. Flanagan,  with  whom  F. Dore  Hunter  and Flanagan  &             __________________               _______________      ___________        Hunter, P.C. were on brief for appellee.        ____________                                                                                      ____________________                                   February 3, 1994                                                                                      ____________________                    CYR,  Circuit Judge.   We  must  decide whether  either                    CYR,  Circuit Judge.                          _____________          punitive  damages or  damages for  loss  of parental  and spousal          society allegedly caused by a  nonfatal injury to a seaman aboard          a vessel in territorial waters are recoverable in an unseaworthi-          ness action under  the general maritime law.   On plenary review,          see Gaskell v. The Harvard Coop. Soc'y, 3 F.3d 495, 497 (1st Cir.          ___ _______    _______________________          1993), we affirm the summary judgment entered against plaintiffs-          appellants  based on the  analysis required  under Miles  v. Apex                                                             _____     ____          Marine Corp., 498 U.S. 19 (1990).          ____________                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Plaintiffs-appellants Jonathan C. Horsley and his wife,          Elizabeth Horsley, allege that he  sustained a back injury in the          course of his duties aboard a vessel owned  by defendant-appellee          Mobil Oil Corporation  while operating in the  territorial waters          of  the Gulf of  Maine.   Their unseaworthiness  action involves,          inter alia, claims for  punitive damages by Jonathan C.  Horsley;          _____ ____          and damages  for loss of parental society  by their minor son and          loss of spousal society by Elizabeth Horsley.  The district court          entered summary judgment for Mobil on all three claims.1                                        ____________________               1Jurisdiction  over this  interlocutory admiralty  appeal is          based  on  28 U.S.C.  1292  (a)(3). See  Martha's  Vineyard Scuba                                              ___  ________________________          Headquarters, Inc. v. Unidentified, Wrecked, and  Abandoned Steam          __________________    ___________________________________________          Vessel, 833 F.2d 1059, 1064 (1st Cir. 1987).          ______                                          2                                          _                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    The Supreme Court  has decided that damages for loss of          society are not  cognizable in a general maritime  action for the          wrongful death of a  seaman, because "[i]t would be  inconsistent                   _____          with [the  Supreme Court's]  place in  the constitutional  scheme          were  we to  sanction more  expansive  remedies in  a judicially-          created cause of action in  which liability is without fault than          Congress has  allowed in  cases  of death  resulting from  negli-          gence."   Miles, 498  U.S. at 33.   The  Court reasoned  that the                    _____          remedial  limitations  imposed by  Congress in  admiralty actions          predicated  on negligence likewise  restrict an admiralty court's          power  to fashion damages  remedies in actions  under the general          maritime law, such as the present unseaworthiness claim against a          vessel where liability may be imposed without establishing fault.          See  Seas Shipping  Co. v.  Sieracki, 328  U.S. 85,  94-95 (1946)          ___  __________________     ________          (noting unseaworthiness  "is essentially  a species  of liability          without fault").  Thus, the  admiralty court's remedial  autonomy          is "both direct[ed]  and delimit[ed]" by federal  statute, Miles,                                                                     _____          498  U.S. at 27, insofar  as Congress has  spoken directly to the          point in  issue, id.  at 31,  citing Mobil  Oil Corp.  v. Higgin-                           ___          ______ ________________     _______          botham, 436 U.S. 618, 625 (1978).          ______                    Two statutes are directly  relevant to general maritime          claims based on  fatal injury:   the Death on  the High Seas  Act                           _____          (DOHSA), 46  U.S.C.   761, et seq., and  the Jones Act, 46 U.S.C.                                     __ ____            688, both enacted in 1920.  DOHSA makes specific provision only                                          3                                          _          for the  recovery of damages for  pecuniary loss.   See 46 U.S.C.                                            _________         ___            762 ("The recovery . . . shall  be a fair and just compensation          for the pecuniary loss sustained by the persons for whose benefit          the  suit is brought  . . . .").  Notwithstanding  that the fatal          injury at issue in Miles did not take place on the high seas, the                             _____          Supreme Court considered DOHSA indicative of congressional intent          in cases involving fatal injuries to seamen in territorial waters          as well.  Miles, 498 U.S. at 31.                    _____                    Since the  Jones Act does  afford a right of  action to          dependents  of seamen fatally  injured in territorial  waters, it          formed the  principal focus of  inquiry in Miles.   The Jones Act                                                     _____          simply incorporated by reference the remedial  scheme established          twelve years  earlier under  the Federal  Employee Liability  Act          (FELA), 46  U.S.C.   688.   FELA, the  progenitor of  all federal          liability  schemes, simultaneously  afforded a  uniform  cause of          action  for  railroad  workers  and  dispensed  with  traditional          master-and-servant defenses.   See  generally Rogers  v. Missouri                                         ___  _________ ______     ________          Pac.  R. Co., 352 U.S. 500 (1957).   FELA's language is unhelpful          ____________          on  its  face, however,  as  it  simply provides  for  "damages,"          without further elaboration.  45 U.S.C.   51.                    This  seeming  dead-end  is  averted, nevertheless,  by          Congress's adoption and incorporation, in  the Jones Act, of  the          remedial  scheme previously established  under FELA.   The courts                           __________          may assume that  Congress, at the time it enacted  the Jones Act,          was cognizant of  the decisional law developed under  FELA during          the twelve-year  interim between the  enactment of the  two stat-                                          4                                          _          utes.   Miles, 498 U.S. at 32; see generally Cannon v. University                  _____                  ___ _________ ______    __________          of Chicago, 441 U.S. 677,  696-97 (1979) ("It is always appropri-          __________          ate  to assume  that  our  elected  representatives,  like  other          citizens, know the law . . . .").                    The  Miles  Court  relied extensively  on  just  such a                         _____          decision,  see Michigan  Cent. R.  Co. v.  Vreeland, 227  U.S. 59                     ___ _______________________     ________          (1913),  which revealed  yet another  evolutionary  layer in  the          development of wrongful death statutes:                        In  [Vreeland] the  Court explained  that                             ________                    the language of the FELA wrongful death  pro-                    vision  is essentially  identical to  that of                    Lord  Campbell's Act,  9 &  10  Vict. ch.  93                    (1846),  the  first wrongful  death  statute.                    Lord Campbell's  Act also  did not limit  ex-                    ____ __________  ___                    plicitly the "damages"  to be recovered,  but                    that  Act and  the many  state statutes  that                    followed it consistently had been interpreted                                ____________ ___ ____ ___________                    as  providing  recovery  only  for  pecuniary                    __  _________  ________  ____  ___  _________                    loss.                    ____          Miles, 498 U.S. at 32 (emphasis added), citing Vreeland, 227 U.S.          _____                                   ______ ________          at 69-71.   Finally, the Miles Court retraced  the development of                                   _____          wrongful  death statutes  into  the  Twentieth  Century  and  the          meaning of the unelaborated FELA term "damages" became clear:                    When  Congress  passed  the  Jones  Act,  the                    Vreeland gloss on FELA,  and the hoary tradi-                    ________                    tion behind  it, were well  established.  In-                    corporating  FELA  unaltered into  the  Jones                    Act, Congress must have  intended to incorpo-                    rate the  pecuniary limitation on  damages as                    well.   We assume  that Congress is  aware of                    existing  law  when  it  passes  legislation.                    There is no recovery for loss of society in a                    Jones Act wrongful death action.          Id.          ___                    Uniformity  provided  the companion  rationale  for the          Miles decision.   See Moragne  v. States Marine Lines,  Inc., 398          _____             ___ _______     __________________________                                          5                                          _          U.S. 375, 402 (1970) ("admiralty  law should be 'a system  of law          coextensive  with,   and  operating   uniformly  in,   the  whole          country.'"  (quoting The Lottawanna, 88  U.S. (21 Wall.) 558, 575                               ______________          (1875))).  As noted, damages  awarded under DOHSA are  restricted          to pecuniary  loss.   Miles cautions  that  the traditional  gap-                                _____          filling function of  the admiralty court is to  be exercised only          in furtherance of the presumed congressional objective of unifor-          mity:                    We no  longer live in an era  when seamen and                    their loved  ones must look  primarily to the                    courts as a source  of substantive legal pro-                    tection from injury  and death; Congress  and                    the  States  have legislated  extensively  in                    these areas.  In this era, an admiralty court                    should  look primarily  to these  legislative                    enactments for policy guidance.   We may sup-                                                      __ ___ ____                    plement these statutory  remedies where doing                    _______ _____ _________  ________ _____ _____                    so would achieve  the uniform vindication  of                    __ _____ _______  ___ _______ ___________  __                    such policies  consistent with  our constitu-                    ____ ________  __________ ____  ___ _________                    tional mandate, but we must also keep strict-                    ______ _______  ___ __ ____ ____ ____ _______                    ly within the limits imposed by Congress.                    __ ______ ___ ______ _______ __ ________          Miles, 498 U.S. at 27  (emphasis added).  Thus, Miles "restore[d]          _____                                           _____          a uniform rule  applicable to all actions for  the wrongful death          of  a seaman, whether under DOHSA, the  Jones Act, or the general          maritime law[,]" by limiting damages in wrongful death actions to          the amount of pecuniary loss.  Miles, 498 U.S. at 33.                                          _____          A.   Damages in Nonfatal-Injury Cases          A.   Damages in Nonfatal-Injury Cases               ________________________________                    The  district  court  relied  primarily  on  Murray  v.                                                                 ______          Anthony J. Bertucci  Constr. Co., 958 F.2d 127  (5th Cir.), cert.          ________________________________                            ____          denied, 113  S. Ct. 190  (1992), in holding that  Miles precludes          ______                                            _____          punitive damages and damages for  loss of society under the Jones          Act.  See  also Smith v. Trinidad  Corp., 992 F.2d 996  (9th Cir.                ___  ____ _____    _______________                                          6                                          _          1993) (adopting  Murray reasoning)  (per curiam);  and Lollie  v.                           ______                            ___ ______          Brown Marine Serv., Inc., 995  F.2d 1565 (11th Cir. 1993) (same).          ________________________          For the reasons discussed below, we agree.                    Under  the  analysis  obligated  by Miles,  we  inquire                                                        _____          whether Congress has preempted all interpretive discretion on the          part of the  admiralty court    as the  traditional protector and          benefactor of its  wards    in extending damages  relief for non-                                                                       ___          pecuniary  loss in the  present context.  At  the outset, we note          distinctions  pertinent to  our inquiry.   First, since  DOHSA is          inapplicable to nonfatal injuries sustained  by a seaman aboard a          vessel operating in territorial waters, it has no  direct bearing          on the damages remedies presently at issue.  Accordingly, whatev-          er direct  analogic bearing DOHSA  had in Miles is  diminished in                                                    _____          the present context.  Second, as concerns the Jones Act, Vreeland                                                                   ________          is inapposite  to the  availability of  damages for  nonpecuniary                                                               ___          loss in cases involving nonfatal injuries.2  The Miles methodolo-                                  ___                      _____                                        ____________________               2At a time  when wrongful death statutes were  very much the          exception, the Vreeland  Court explicitly distanced its  analysis                         ________          from that involved in nonfatal injury cases:                    This  [wrongful  death]  cause  of action  is                    independent of any cause of action the  dece-                    dent had,  and includes  no damages  which he                    might have recovered for his injury if he had                    survived.   It is  one beyond that  which the                    decedent had    one proceeding on all togeth-                                    ___ __________ __ ___ _______                    er different principles.                    __ _________ __________          Vreeland, 227 U.S.  at 68 (emphasis added).   These "all together          ________          different principles,"  of course,  derived from  Lord Campbell's          Act,  the first wrongful  death statute:  "It  is a liability for          the loss  and damage  sustained by relatives  dependent upon  the          decedent.  It  is therefore a liability for  the pecuniary damage          resulting to them, and for that only."  Id.  In sum, the evidence                                                  ___          directly adduced by the Miles Court is not particularly probative                                  _____                                          7                                          _          gy takes us beyond Vreeland, however.                             ________                    In  Igneri v. Cie.  de Transports Oceaniques,  323 F.2d                        ______    ______________________________          257 (2d Cir.  1963), the Second Circuit inquired  into the avail-          ability of damages  for loss of society  under the Jones  Act and          concluded as follows:                    The  failure of the Jones Act to confer . . .                    a  right   [to  loss   of  society/consortium                    damages]  on the spouse of a seaman cannot be                    dismissed as an inadvertence.   The policy of                    the  Federal  Employees  Liability  Act,  the                    regime which the Jones Act made applicable to                    seamen,  was  that  the new  remedy  for  the                    employee was to be exclusive and that  claims                    of relatives recognized by  state law were to                    be abrogated; the FELA had been thus authori-                                  ___ ____ ___ ____ ____ ________                    tatively construed  before the Jones  Act was                    ________ _________  ______ ___ _____  ___ ___                    passed.                    ______          Igneri, 323 F.2d at 266 (emphasis added), citing New York Cent. &          ______                                    ______ ________________          H. R.R. v. Tonsellito, 244  U.S. 360 (1917) (FELA precludes claim          _______    __________          brought  by father for "loss of services" of minor son injured in          course of employment with railroad).   Finally, the thrust of the          Supreme  Court's holding  in Tonsellito  is that  FELA  affords a                                       __________          remedy to  injured workers    and  only to workers,  not to their          relatives:  "Congress having declared  when, how far, and to whom          carriers shall be liable on account of accidents in the specified          class,  such liability  can  neither  be  extended  nor  abridged          . . . ."  New York Cent. & H. R.R., 244 U.S. 360, 362 (1917); see                    ________________________                            ___          also New York  Cent. R.R. v. Winfield, 244  U.S. 147 (1917); Erie          ____ ____________________    ________                        ____          R.R.  v. Winfield,  244 U.S.  170 (1917).   Thus,  the Tonsellito          ____     ________                                      __________          rationale  ineluctably precludes  the present claims  for damages                                        ____________________          beyond the discrete confines of wrongful death actions.                                          8                                          _          for loss of parental and spousal society.3                     Similarly,  compelling  evidence   precludes  Jonathan          Horsley's claim for punitive damages.  "It has been the unanimous          judgment of  the courts since  before the enactment of  the Jones                                  _____  ______ ___ _________ __  ___ _____          Act  that punitive  damages  are  not  recoverable  under"  FELA.          ___          Miller v. American  President Lines,  Ltd., 989  F.2d 1450,  1457          ______    ________________________________          (6th Cir. 1993) (emphasis added), citing Kozar v. Chesapeake & O.                                            ______ _____    _______________          R. Co.,  449 F.2d 1238,  1240-43 (6th Cir. 1971)  (citing cases).          ______          Once again,  therefore, since  the Supreme  Court's authoritative          interpretation  of FELA  antedated enactment  of  the Jones  Act,          Miles  mandates  the  conclusion that  punitive  damages  are not          _____          available in  an  unseaworthiness action  under general  maritime          law.                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    Under the analysis  prescribed in Miles v.  Apex Marine                                                      _____     ___________          Corp., 498  U.S. 19 (1990), an admiralty court may not extend the          _____          remedies available in an unseaworthiness action under the general          maritime law to  include punitive damages or damages  for loss of          parental or  spousal society.   Accordingly,  the district  court                                        ____________________               3No court of appeals recognizes a claim for loss of parental          society under general maritime law.  Murray, 958 F.2d at 132 n.3,                                               ______          citing De Loach v.  Companhia de Navegacao Lloyd Brasileiro,  782          ______ ________     _______________________________________          F.2d  438 (3d Cir. 1986); and Madore  v. Ingram Tank Ships, Inc.,                                    ___ ______     _______________________          732 F.2d  475 (5th Cir.  1984)).  Moreover, the  cognizability of          such claims in a minority of the states,  Prosser & Keeton, Torts                                                                      _____            125  (5th ed.  1984), would  provide no  basis under  Miles for                                                                  _____          recognizing such  a remedy  in an  action for unseaworthiness              closely akin to  a strict liability claim    where it is not even          widely available in nonadmiralty actions.                                          9                                          _          judgment must be affirmed.                    Affirmed.  The parties shall bear their own costs.                    ________   ______________________________________                    SO ORDERED.                    SO ORDERED.                    __ _______                                          10                                          __
