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Recent Personal Injury and Car Accident News
A new case from the Hawaii Supreme Court recognizes personal injury claims for a viable fetus. This new approach seems consistent with a judicial approach to unborn children that life begins at viability. Castro v. Melchor, SCWC-12-0000753 (March 13, 2018).
JONES ACT - TABLE OF CONTENTS
The Jones Act
II. PERSONS ENTITLED TO RECOVER B. Representatives or Beneficiaries of Seamen
Liability imposed by 46 USCS Appx § 688 for wrongful death of seaman does not abate upon death of beneficiary of cause of action during pendency of suit, but recovery may be had therein for loss suffered by beneficiary up to time of beneficiary's death, damages, when collected to be paid to beneficiary's estate. Van Beeck v Sabine Towing Co. (1937) 300 US 342, 81 L Ed 685, 57 S Ct 452.
46 USCS Appx § 688 confers both action for seaman's wrongful death and action by his survivors for any damages he suffered before death. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90).
Only persons who can share in distribution of moneys recoverable in wrongful death action under 46 USCS Appx § 688 are relatives of decedent who have sustained pecuniary loss as result of his death, and such recovery is directly proportional to loss which each has sustained. Re Uravic's Estate (1932) 142 Misc 775, 255 NYS 638.
201. Personal representatives
Only personal representative, and not beneficiary, has right to sue under Jones Act, 46 USCS Appx § 688. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94.
Cause of action under 46 USCS Appx § 688 may be asserted only by personal representative of decedent and not by beneficiaries of claim. Ivy v Security Barge Lines, Inc. (1978, CA5 Miss) 585 F2d 732, on reh (CA5 Miss) 606 F2d 524, cert den 446 US 956, 64 L Ed 2d 815, 100 S Ct 2927, reh den 448 US 912, 65 L Ed 2d 1173, 101 S Ct 27 and on remand (ND Miss) 89 FRD 322.
Personal representative sues under 46 USCS Appx § 688 for benefit of surviving widow and children. Thornton v Puget Sound Power & Light Co. (1930, DC Wash) 49 F2d 347.
Right of action given by 46 USCS Appx § 688 to personal representative of negligently killed seaman against third person liable for his death is single and indivisible right and cannot be exercised separately and independently both by employee or his dependents and by employer. Terminal Shipping Co. v Branham (1942, DC Md) 47 F Supp 561, 1942 AMC 1435, affd (CA4 Md) 136 F2d 655, 1943 AMC 799.
Personal representative recovers as trustee for designated survivors, and not for estate of decedent; if there is no survivor, no action can be maintained for death under 46 USCS Appx § 688. The Four Sisters (1947, DC Mass) 75 F Supp 399.
In action under 46 USCS Appx § 688 personal representative of deceased seaman does not sue for benefit of estate of deceased nor does any amount recovered or received become asset of deceased's estate, but representative sues by virtue of express designation and holds amount of recovery in nature of trustee for benefit of those persons who are authorized to recover. Petition of Southern S. S. Co. (1955, DC Del) 135 F Supp 358.
In action under 46 USCS Appx § § 688 and 761 et seq. , congressional intent was to vest right of action for maritime death solely in personal representative, whose right to maintain action carries with it by necessary implication sole power to control prosecution of suit and to settle or compromise claim; with two exceptions: (1) that where conflict of interest exists between decedent's personal representatives and beneficiary, beneficiary may intervene in suit instituted by personal representative and therein assert independent claim for wrongful death on his own behalf, (2) that where personal representative actively participates or co-operates with beneficiary in settlement of beneficiary's claim, settlement executed by beneficiary is valid; Benoit v Fireman's Fund Ins. Co. (1978, La) 355 So 2d 892 on remand (La App 3d Cir) 361 So 2d 1332.
202. --Executors or administrators
If mother of deceased seaman, as administratrix, is entitled to recover under Jones Act, 46 USCS Appx § 688, her recovery would not be on behalf of estate but solely as trustee for designated survivers who, in particular case, are widow and minor children of deceased. Hassan v A. M. Landry & Sons, Inc. (1963, CA5 La) 321 F2d 570, cert den 375 US 967, 11 L Ed 2d 416, 84 S Ct 486.
Testamentary executrix of succession of deceased seaman, as personal representative of his estate, has standing to sue for claims arising from his death under 46 USCS Appx § 688. Higginbotham v Mobil Oil Corp. (1973, WD La) 360 F Supp 1140, affd in part and revd in part on other grounds (CA5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).
203. --Procedural considerations
Right of action under Jones Act, 46 USCS Appx § 688, is enforceable solely by personal representative who acts as trustee for beneficiaries designated in Jones Act; however, right to maintain action is not limited to personal representative appointed by court of county and state of decedent's last place of residence. Rowston v Oglebay Norton Co. (1960, DC Ohio) 180 F Supp 803.
Personal representative appointed by state court may prosecute action under Jones Act, 46 USCS Appx § 688, in second state court even though no ancillary administration has been established in second state. Petition of Keystone Tankship Corp. (1965, WD Wash) 237 F Supp 689.
Term "personal representative" requires some designation by court that individual seeking to prosecute wrongful death action is administrator of decedent's estate; contention that claimants would be without capacity to sue under federal wrongful death statutes absent their procurement of letters of administration from New York County Surrogate's Court is without merit, if claimants had received testamentary letters from Italian court; ancillary letters of administration would be required from local court when recovery for pain and suffering under local wrongful death statute is sought. Complaint of Cosmopolitan Shipping Co., S.A. (1978, SD NY) 453 F Supp 265.
Court would not permit widow of plaintiff in Jones Act suit (46 USCS Appx § 688) to be substituted as named plaintiff until she obtains designation by some court that she is administratrix of decedent's estate. Marcano v Offshore Venezuela, C.A. (1980, ED La) 497 F Supp 204, 30 FR Serv 2d 1560.
204. Dependency as requisite to recovery
Non-dependent brothers of seaman killed in maritime accident lack standing to assert wrongful death action under Jones Act (46 USCS Appx § 688). Evich v Connelly (1985, CA9 Wash) 759 F2d 1432.
Any next of kin who seek to avail themselves of benefits conferred by 46 USCS Appx § 688 must be dependent upon decedent at time of his death. Bailey v Baltimore Mail S.S. Co. (1941, DC NY) 43 F Supp 243, 1942 AMC 112.
Surviving spouse, parent or child of decedent need not show dependency upon decedent for recovery under 46 USCS Appx § 688, only claimants who must prove dependency are next of kin and relatives. Petition of Risdal & Anderson, Inc. (1968, DC Mass) 291 F Supp 353.
Dependency is not required for parent to recover under 46 USCS Appx § 688. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90).
It is reasonable expectation of pecuniary benefit which is recoverable under 46 USCS Appx § 688 in action for wrongful death of seaman and it is not necessary for claimant to show dependency on seaman or that claimant needed amount claimed. Presley v Upper Mississippi Towing Corp. (1963, La App 1st Cir) 153 So 2d 416, cert den 244 La 1002, 156 So 2d 56 and cert den 244 La 1003, 156 So 2d 56.
Under general maritime law, spouse of harbor worker injured nonfatally aboard vessel in state territorial waters may maintain action for damages for loss of injured spouse's society. American Export Lines, Inc. v Alvez (1980) 446 US 274, 64 L Ed 2d 284, 100 S Ct 1673.
In case of widow or husband and children or parent, there must exist reasonable expectation of pecuniary benefit from continued life of deceased, irrespectively of dependency. Wade v Rogala (1959, CA3 Pa) 270 F2d 280, 2 FR Serv 2d 49, 1960 AMC 2425.
Rule that spouse of injured seaman is entitled to damages for loss of society will not be given retrospective application where spouse did not institute claim either contemporaneously or closely in time with that of seaman. Nealy v Fluor Drilling Services, Inc. (1981, WD La) 524 F Supp 789, affd (CA5 La) 701 F2d 441.
Injured seaman may not amend her Jones Act (46 USCS Appx § 688) complaint to add her spouse's claim for loss of society, because there can be no recovery for loss of consortium in case involving nonfatal injury to seaman under § 688 or general maritime law. Cater v Placid Oil Co. (1991, ED La) 760 F Supp 568.
Remedies applicable to seamen under Jones Act applied to injuries suffered by derrick hand on offshore drilling rig; nevertheless, derrick hand's wife could not maintain action under Jones Act for loss of society of husband, in that Act explicitly provides only for pecuniary damages. Gaspard v Transworld Drilling Co. (1985, La App 3d Cir) 468 So 2d 692, cert den (La) 474 So 2d 1304, cert den (US) 89 L Ed 2d 607, 106 S Ct 1382.
206. --Estranged or non-supporting seaman
Widow of deceased seaman was entitled to substantial damages under 46 USCS Appx § 688 even though she and decedent had quarreled and separated where it was not shown that decedent intended to leave his wife permanently nor that there was any thought of divorce on either side. Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622.
Lawful widow was entitled to receive damage award under 46 USCS Appx § 688, even though decedent had long ago ceased to support her, where it is clear that under state law widow could at any time have forced decedent to contribute to her support; widow therefore suffered financial loss because of decedent's death, for which she is entitled to substantial damages. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94.
Widow is entitled to recovery under 46 USCS Appx § 688 even though for several years previous to seaman's death, he had not contributed to support of widow or their children and while widow could have compelled such support by legal proceedings, she had not tried to do so, decedent and widow were neither divorced nor legally separated and there was uncontradicted testimony that 3 years before his death, decedent had lived at home with his wife for 2 or 3 weeks and had then promised that he would mend his ways. Diaz v Lykes Bros. S.S. Co. (1956, CA2 NY) 229 F2d 269.
Although decedent did not contribute to support of his wife during 5 years immediately preceding his death and she made no attempt to compel him to do so, she is not barred from recovery under 46 USCS Appx § 688; extent of decedent's past contributions to spouse does bear on issue of damages. Orona v Isbrandtsen Co. (1963, CA2 NY) 313 F2d 241.
In action by seaman against vessel under general maritime law of unseaworthiness to recover for injuries sustained while working aboard vessel, seaman's estranged wife cannot recover for loss of consortium on behalf of herself and children under special bond which was posted to secure lease of foreign vessel from arrest, even though wife concedes priority to husband's claim or that her claim stands or falls with husband's claim. Overstreet v The Water Vessel "Norkong" (1983, CA5 Miss) 706 F2d 641.
Even though widow had long been separated from her husband and had received no allotments or support from him since date of separation she would not be barred from recovery under 46 USCS Appx § 688. Miles v States Marine Lines, Inc. (1971, ED Tex) 325 F Supp 1370.
207. --Putative spouse
Putative wife under law of Louisiana is not beneficiary on whose behalf suit under 46 USCS Appx § 688 may be maintained. Beebe v Moormack Gulf Lines, Inc. (1932, CA5 La) 59 F2d 319, 1932 AMC 925, cert den 287 US 597, 77 L Ed 520, 53 S Ct 22.
Woman who entered into bigamous relationship with seaman was not legal common law widow under state law, which did not recognize common law marriage, and could not recover for death of seaman under 46 USCS Appx § 688 even if she was dependent on seaman and no other woman claimed as widow. Bell v Tug Shrike (1964, CA4 Va) 332 F2d 330, cert den 379 US 844, 13 L Ed 2d 49, 85 S Ct 84.
Unadopted stepchild of deceased seaman and natural children given in adoption by him before his death could not recover under Jones Act (46 USCS Appx § 688) where applicable state law, to which court would look for determination of eligible "children," precluded recovery in wrongful death action by ones in such relationship. Cormier v Williams/Sedco/Horn Constructors (1978, ED La) 460 F Supp 1010.
Claims of improper dispostion of remains of sailor who died at sea made by decedent's mother, brothers and sisters are dismissed but claim by daughter is upheld, because, looking to state law since there is no maritime precedent for assessing liability against vessel owner for burial at sea, law of state of decedent's residence provides that only decedent's daughter can have cause of action. Floyd v Lykes Bros. S.S. Co. (1987, ED Pa) 655 F Supp 380.
Illegitimate children are qualified as beneficiaries of deceased seaman under 46 USCS Appx § 688. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94.
Child born out of wedlock is entitled to recover damages for loss of parent. Hebert v Petroleum Pipe Inspectors, Inc. (1968, CA5 La) 396 F2d 237.
Illegitimate son could recover for death of father under 46 USCS Appx § 688, but action had to be brought by decedent's personal representative, not next friend of son. Re Petition of Risdal & Anderson, Inc. (1967, DC Mass) 266 F Supp 157.
It is well established a child born out of wedlock is entitled to damages for loss of his parent under both Jones Act (46 USCS Appx § 688) and Death on High Seas Act (46 USCS Appx § 761). Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90).
Jones Act (46 USCS Appx § 688) claim for wrongful death benefits brought by grandparents whose deckhand son-in-law drowned when he drove into intracoastal waterway from touring vessel is dismissed only in part, where deckhand was not biological father of granddaughter but married mother when she was pregnant, signed birth certificate as parent and loved and supported after born child as his own, because illegitimate child of deckhand qualifies as Jones Act beneficiary but grandparents do not as they were not "next of kin" to their son-in-law. Re Complaint of Bertucci Constr. Co. (1991, ED La) 771 F Supp 163.
Section 1 of the Federal Employers' Liability Act -45 USCS § 51-, incorporated into 46 USCS Appx § 688, provides for three alternative classes of beneficiaries under 46 USCS Appx § 688, and brother and sister of decedent cannot recover as long as mother is living. Gillespie v United States Steel Corp. (1964) 379 US 148, 13 L Ed 2d 199, 85 S Ct 308, 1965 AMC 1 (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
Although deceased left no wife or children, recovery may be had under 46 USCS Appx § 688 for use of his father who was his sole surviving parent. United States v Boykin (1931, CA5 Fla) 49 F2d 762, 1931 AMC 1056.
Surviving parents of seamen drowned when drilling vessel on which seamen were crew members capsized cannot recover nonpecuniary damages under Jones Act for loss of their sons' society where seamen were also survived by spouses and some of seamen were also survived by children, since, under 45 USCS § 51, parents can recover only when seaman is not survived by spouse or children. Sistrunk v Circle Bar Drilling Co. (1985, CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
Mother of deceased seaman was beneficiary of right of action created by 46 USCS Appx § 688 and only beneficiary entitled to assert claim for damages for wrongful death, and dependent brother of deceased seaman was stranger to action. Clinton v Ingram Corp. (1970, ND Miss) 312 F Supp 539.
Although parents of bargeman killed when mooring bitt broke could not recover for his wrongful death under 46 USCS Appx § 688, where decedent was survived by posthumous illegitimate child, parents could recover under general maritime law, even though not financially dependent upon deceased's earnings. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90).
Parent of deceased unmarried seaman has personal right of action against vessel owner for wrongful death under Jones Act, as well as right to bring action as personal representative of deceased. Gomez Sanchez Vda de Gonzales v Naviero Neptuno S.A. (1986, ED Tex) 641 F Supp 75.
Parent's Jones Act (46 USCS Appx § 688) and general maritime law claims for loss of society of their son will not be summarily dismissed, where seaman son, who performed regular work on parent's dairy farm while living at home, was returning to employer's ship in intoxicated state when death occurred, because material disputes exist as to (1) level of seaman's intoxication, and (2) parents' dependency on son. Ausborn v Scott Chotin, Inc. (1988, ED La) 697 F Supp 251.
Recovery under 46 USCS Appx § 688 for death of seaman depends on § 1 of Federal Employers' Liability Act (45 USCS § 51), which limits liability to one of three statutory classes of possible beneficiaries and does not create liability to several classes collectively; consequently, 46 USCS Appx § 688 does not provide for damages for seaman's death for benefit of seaman's brother and sisters as well as for his mother. Gillespie v United States Steel Corp. (1964) 379 US 148, 13 L Ed 2d 199, 85 S Ct 308 (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
Where decedent's brother and sister were not dependent upon him, they are not entitled to recovery under 46 USCS Appx § 688 as next of kin. Bailey v Baltimore Mail S.S. Co. (1941, DC NY) 43 F Supp 243.
Under 46 USCS Appx § 688, cause of action for pain and suffering of decedent does not survive if only survivor is sister who is not dependent; half sister of decedent is not entitled to award under 46 USCS Appx § 688 if mother was living at time of death of decedent. Petition of United States (1950, DC NY) 92 F Supp 495, 1951 AMC 112.
Fiancee of deceased barge worker had no cause of action for his wrongful death under 46 USCS Appx § 688 or Death on High Seas Act (46 USCS Appx § 761). Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90).
JONES ACT - TABLE OF CONTENTS