Jones Act Cases - Seaman Cases, Decisions & Opinions
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Jones Act - Table of Contents
The Jones Act - Cases, Decisions and Opinions
VI. DAMAGES - C. Damages For Wrongful Death - 2. Computation of Award
498. Net or gross earningsIn
computing loss of future earnings to disabled seaman under
Jones Act (46 USCS Appx section 688), gross earnings should not be
used; unless amounts worker would have been required to pay
in income taxes and social security taxes is negligible or
should, for some articulated reason, be disregarded, lost
income stream must be computed after deducting income taxes
and social security taxes worker would have paid had he
continued to work. Madore v Ingram Tank Ships, Inc. (1984,
CA5 Tex) 732 F2d 475.
Child's loss of support in action under 46 USCS
Appx section 688 is not measured by his father's net earnings at
time of death, but by gross 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withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US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 (US) 83 L
Ed 2d 37, 105 S Ct 90).
499. Wage increases and decreasesIn action brought under 46 USCS Appx section 688,
contention that damages should be reduced because of
likelihood of wage reduction, may be offset by evidence of
possibility that had decedent survived, it would reasonably
have been expected that he would have received promotions.
Pollard v Seas Shipping Co. (1945, CA2 NY) 146 F2d
875.
In action brought
under 46 USCS Appx section 688 and general maritime law by
representative of decedent, expert testimony with respect to
future wage increases which might have occurred due to
decedent's developing skill and experience should be
admitted. Morvant v Construction Aggregates Corp. (1978, CA6
Tenn) 570 F2d 626, 2 Fed Rules Evid Serv 994, cert dismd 439
US 801, 58 L Ed 2d 94, 99 S Ct 44.
In action under 46 USCS Appx section 688, court erred
in allowing parties to introduce evidence of wage increases
seaman would have received as result of factors other than
inflation. Ober v Penrod Drilling Co. (1984, CA5 La) 726 F2d
1035.
Claim for wages lost
to date of trial in wrongful death action brought under 46
USCS Appx section 688 will be disallowed where pecuniary loss is
determined according to life expectancy as of date of death,
such allowance for wage loss between death and date of trial
would be duplicitous. Trexler v Tug Raven (1968, ED Va) 290
F Supp 429, revd on other grounds (CA4 Va) 419 F2d 536, cert
den 398 US 938, 26 L Ed 2d 271, 90 S Ct
1843.
Under 46 USCS Appx section
688, Death on High Seas Act (46 USCS Appx section 761 et seq.),
and general maritime law, dependent survivors of each of
decedents killed at sea due to helicopter crash were
entitled to recover damages for loss of contributions and
support they would have received out of accrued and future
gross earnings of decedents had they lived. 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
on other grounds 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 (US) 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).
Posthumous
child's loss of support is measured by decedent's gross
earnings at time of death, plus probable future increased
earnings, and damages caused by loss of his father's
society. 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 (US) 83 L Ed 2d 37, 105 S Ct
90).
500. Deduction for income taxesDeduction of taxes payable on estimated future
earnings from gross income, in determination of damages for
wrongful death in action under 46 USCS Appx section 688, was error
under record showing that estimated annual earnings of
decedents did not exceed $ 11,500. Petition of Marina
Mercante Nicaraguense, S.A. (1966, CA2 NY) 364 F2d 118, 3
ALR Fed 187, cert den 385 US 1005, 17 L Ed 2d 544, 87 S Ct
710, reh den 386 US 929, 17 L Ed 2d 803, 87 S Ct
851.
No deduction for
income taxes should be made where annual estimated earnings
are not above reach of middle income scale. Petition of M/V
Elaine Jones (1973, CA5 Miss) 480 F2d 11, amd on other
grounds (CA5 Miss) 513 F2d 911, cert den 423 US 840, 46 L Ed
2d 60, 96 S Ct 71 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 (US) 83 L Ed 2d 37, 105 S Ct
90).
In determining extent
of loss from future earnings of decedents killed in
helicopter crash at sea court stated that no deduction for
state and federal income taxes should be made where yearly
estimated earnings are not clearly above reach of middle
income scale. 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 on other grounds 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 (US) 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).
501. Personal expenses of decedentIn action under 46 USCS Appx section 688, personal
expenditures of decedent must be deducted from award.
Gardner v National Bulk Carriers, Inc. (1963, ED Va) 221 F
Supp 243, affd (CA4 Va) 333 F2d 676.
Before attempting to ascertain pecuniary loss
to widow and children of deceased seaman, it is first
necessary to allocate and deduct seaman's likely personal
expenditures. Trexler v Tug Raven (1968, ED Va) 290 F Supp
429, revd on other grounds (CA4 Va) 419 F2d 536, cert den
398 US 938, 26 L Ed 2d 271, 90 S Ct
1843.
Damages under 46 USCS
Appx section 688 reflecting decedent's lost wages must be adjusted
to reflect amount decedent would have spent on himself and
as his part of household expenses. Hebert v Otto Candies,
Inc. (1975, ED La) 402 F Supp 503.
502. Actuarial tablesIn
computing damages due disabled seaman under Jones Act (46
USCS Appx section 688), District Court erred in basing award on
work-life expectancy of 30.8 years, presumably because
seaman would reach age 65 at that time, where experts in
action testified that seaman had work-life expectancy of
25.8 years, based on rates compiled by Department of Labor;
rates compiled by Department are not conclusive, but such
rates should be followed absent evidence that particular
person, by virtue of health, occupation, or other factors,
is likely to live and work longer, or shorter period than
average person. Madore v Ingram Tank Ships, Inc. (1984, CA5
Tex) 732 F2d 475.
In action
brought under 46 USCS Appx section 688, mortality tables used in
computing damages are intended as guide; to get value of
reasonably to be expected contribution, earning power of
money must be considered amount which, if capitalized at
reasonable rate of interest, would yield annually same
income person injured might have expected from deceased.
Poindexter v Groves (1951, DC NY) 103 F Supp 657, affd (CA2
NY) 197 F2d 915.
Mortality
and annuity tables are merely guides to assist jury in
reaching verdict and do not furnish rules which jury must
necessarily follow; amount to be awarded for future loss of
pecuniary benefits is not to be arrived at by mere
ascertainment of monthly payments and life expectancy, but
present value of aggregate future payments must be
ascertained and for this purpose annuity figures are
utilized showing different interest calculations upon which
such present value is ascertained. Holliday v Pacific
Atlantic S.S. Co. (1953, DC Del) 117 F Supp 729, affd (CA3
Del) 212 F2d 206.
In action
brought under 46 USCS Appx section 688, mortality and annuity
tables may be considered, but are not fixed rules in
computation of damages. Petition of Southern S.S. Co. (1955,
DC Del) 135 F Supp 358.
503. Effect of inflationTaking
inflationary trends in economy into account in computing
future lost earnings is approved. Johnson v Penrod Drilling
Co. (1972, CA5 Tex) 469 F2d 897, 16 FR Serv 2d 766, on reh
(CA5 Tex) 510 F2d 234, cert den 423 US 839, 46 L Ed 2d 58,
96 S Ct 68, 96 S Ct 69 Culver v Slater Boat Co. (CA5 La) 722
F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537
and cert den (US) 83 L Ed 2d 37, 105 S Ct
90.
In action under 46 USCS
Appx section 688, court may include in damage award adjustment of
damage computation by anticipated annual increase in cost of
living. Petition of M/V Elaine Jones (1973, CA5 Miss) 480
F2d 11, amd on other grounds (CA5 Miss) 513 F2d 911, cert
den 423 US 840, 46 L Ed 2d 60, 96 S Ct 71 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 (US) 83 L
Ed 2d 37, 105 S Ct 90).
It
is not error for trial court to refuse to instruct as to
inflation or present value. Haupt v Atwood Oceanics, Inc.
(1982, CA5 Tex) 681 F2d 1058, CCH Prod Liab Rep P 9370, 10
Fed Rules Evid Serv 1643, reh den (CA5 Tex) 688 F2d 840 and
reh den (CA5 Tex) 688 F2d 840.
504. --Discount of awardIn
action by injured seaman under 46 USCS Appx section 688, in which
it was established that injuries were caused by employer's
breach of duty to furnish seaman with reasonably safe
workplace, District Court erred in applying Alaska Rule in
calculating damages, rather than below-market discount
method, and by allowing parties opportunity to introduce
evidence of wage increases seaman would have received as
result of factors other than inflation. Ober v Penrod
Drilling Co. (1984, CA5 La) 726 F2d
1035.
In computing damages
due disabled seaman under Jones Act (46 USCS Appx section 688),
District Court erred in applying discount rate of 6.56
percent based on 21 year average of rates paid on United
States Treasury bills, rather than on market rates available
at time of judgment. Madore v Ingram Tank Ships, Inc. (1984,
CA5 Tex) 732 F2d 475.
Jury
awards made in action under 46 USCS Appx section 688 are not to be
discounted to present values. Ivy v Security Barge Lines,
Inc. (1976, DC Miss) 424 F Supp 1154, revd on other grounds
(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.
Survivor's
future pecuniary loss must be discounted to present value
for purposes of present payment by employing appropriate
interest rate prevailing at time and place of trial.
Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752
(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 (US) 83 L Ed 2d 37, 105 S Ct 90).
505. Distribution of awardDamages to be awarded for death of seaman in
action brought under 46 USCS Appx section 688 need not be
apportioned. Otis v State (1944, Ct Cl) 47 NYS2d
755.
It is not necessary
for jury to apportion verdict between widow and child in
action under 46 USCS Appx section 688, since better practice is to
instruct jury to bring in verdict in single lump sum,
leaving distribution or administration of fund for
appropriate state court. Tompkins v Pilots Asso. for Bay
& River Delaware (1940, DC Pa) 32 F Supp 439, 1940 AMC
716.
In action under 46
USCS Appx section 688, pecuniary loss is accepted basis for
recovery, and period that such loss will be sustained must
be factor to receive consideration, and apportionment among
several children of decedent should be made depending upon
their different ages and whether they are actually being
supported by spouse. Petition of Southern S.S. Co. (1955, DC
Del) 135 F Supp 358.
Widow's recovery in action brought for recovery
of damages resulting from death of husband under 46 USCS
Appx section 688, is limited to amount her husband might
reasonably have been expected to contribute to her had he
lived; where decedent is survived by widow but not by
children, widow's recovery should be limited to 50 percent
of decedent's lost earnings. Mpiliris v Hellenic Lines, Ltd.
(1969, DC Tex) 323 F Supp 865, affd (CA5 Tex) 440 F2d
1163.
Distribution of
recovery for death of stevedore is governed by 46 USCS Appx
section 688 and not by state law. Re De Martino's Estate (1932)
142 Misc 431, 254 NYS 862.
Recovery for death is to be distributed among
injured parties in proportion to their loss, and death of
injured party before fixing of damages does not defeat
recovery. Re Uravic's Estate (1932) 142 Misc 775, 255 NYS
638.
State court has
jurisdiction under 46 USCS Appx section 688 to determine
apportionment among dependents of seaman. Re Nelson (1938)
168 Misc 161, 5 NYS2d 398, 1938 AMC
1068.
Distribution of award
under 46 USCS Appx section 688 is governed by federal law and not
state law; statute applicable is Federal Employers'
Liability Act (45 USCS section 51 et seq.) incorporated by
reference in 46 USCS Appx section 688. Re Cooperman's Estate
(1955) 208 Misc 234, 143 NYS2d 196.
Seaman's second marriage being illegal, having
taken place less than one year after divorce decree, court
apportioned damages for his death at sea between children of
his first and second marriages. Re Tufts' Estate (1938) 228
Wis 221, 280 NW 309.
506. MiscellaneousMeasure of
damages is compensation for deprivation of reasonable
expectation of pecuniary benefits that would have resulted
from continued life of deceased, and in estimating, earning
power of money must be considered and amount determined
which, capitalized at reasonable rate of interest, would
yield annually same income injured person might have
expected from deceased. Sabine Towing Co. v Brennan (1936,
CA5 Tex) 85 F2d 478, cert den 299 US 599, 81 L Ed 441, 57 S
Ct 191, reh den 299 US 624, 81 L Ed 459, 57 S Ct
234.
District Court
committed reversible error when it admitted into evidence,
over defendant's objections, slide-rule type device called
"Future Damage Calculator" and took notice of plaintiff's
life expectancy as calculated by device, where no foundation
was laid for exhibit and exhibit was hearsay. Crane v Crest
Tankers (1995, CA8 Mo) 47 F3d 292, 41 Fed Rules Evid Serv
351.
Though local law
prohibited assignment of claim for personal injuries,
assignment of proceeds of judgment received as result of
action brought under 46 USCS Appx section 688 was valid. Sperling
v McCarthy (1956, DC NY) 142 F Supp 780.
In claim under 46 USCS Appx section 688 prosecuted
for benefit of widow, of decedent seaman, recovery is based
upon and limited by pecuniary loss sustained by spouse; sums
paid to widow under liability insurance policy taken out by
shipowner and on which he paid all premiums must be deducted
from award. Petition of Gulf Oil Co. (1963, DC RI) 221 F
Supp 1000.
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