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December 9, 1993

DORIS SMALLWOOD and MARLA GLADNEY-SMALLWOOD, individually and as Joint Personal Representatives of the Estate of LLOYD C. SMALLWOOD, Deceased, Plaintiffs,

The opinion of the court was delivered by: MARILYN HALL PATEL

 Plaintiffs, Doris Smallwood and Marla Gladney-Smallwood, on behalf of various alleged heirs and dependents, bring this action for the alleged wrongful death of Lloyd C. Smallwood. Mr. Smallwood was a professional welder who ignited a high pressure hydraulic gas line while working on an oil tanker and died in the ensuing fire. Plaintiffs bring this action under the general maritime law as modified by section 905(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA" or, "the Act"), 33 U.S.C. § 905 (b), against the owner of the oil tanker, defendant, American Trading & Transportation Company ("ATTRANSCO").

 ATTRANSCO filed a cross claim against third party defendant, Pacific Chemical Labs, Inc. ("PCL"), a group of expert marine chemists retained by the Southwest Marine ship repair yard ("SWM"), Mr. Smallwood's employer, to certify that certain areas aboard the vessel were safe for hot work (welding).

 The relevant undisputed facts can be briefly summarized. ATTRANSCO contracted with SWM, an expert ship repair yard and an independent contractor to perform work on a vessel owned by ATTRANSCO, the "American Trader." Work on the vessel commenced at SWM in San Francisco on July 8, 1991 and was completed on August 5, 1991. Lloyd Smallwood was killed on July 18, 1991 while welding in the lower one-third center portion of the forward deep tank when he burned a hole in an unprotected hydraulic pipeline causing the pressurized hydraulic fluid to ignite.

 SWM had hired PCL to certify areas of the ship that were safe for hot work. PCL had not certified the area in which Lloyd Smallwood was working as safe for hot work, but SWM's Competent Person Log for July 13-18 listed that area as safe for such work. In addition, SWM employees mistakenly believed it to be safe despite the fact that the hydraulic pipelines in the forward deep tank were pressurized at the time of the accident.

 The court has previously filed orders granting PCL's motion for summary judgment and denying in part and granting in part ATTRANSCO's motion for summary judgment as to the duties it owed to Lloyd Smallwood. The matter is currently before the court on defendant's motion in limine to exclude evidence supporting a claim for non-pecuniary damages. The court must determine whether plaintiffs may recover non-pecuniary damages for loss of society in a case involving the death of a non-seaman in state territorial waters.

 Having considered the parties' submissions and arguments, the court enters the following Memorandum and Order.


 I. Applicable Law

 Maritime wrongful death law is as uncertain as the "implacable" seas of Herman Melville. Statutory and general maritime law remedies seem to have been crafted independently of, and often in conflict with, each other. In determining the appropriate remedies for survivors of longshore workers who have been injured aboard vessels, this court embarks upon these uncertain waters and attempts to navigate the conflicting currents. *fn1"

 The statutory remedies provided for by Congress include the Jones Act, 46 U.S.C. § 688(a), the Death on the High Seas Act ("DOHSA"), 46 U.S.C. § § 761 et seq., and section 905(b) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b). The judicially-crafted remedies arise from the federal court's well-recognized authority to "legislate" in the arena of admiralty law. See, e.g., Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 96, 67 L. Ed. 2d 750, 101 S. Ct. 1571 (1981) (noting that the constitutional grant of general admiralty jurisdiction to the federal courts is a proper basis for the development of judge-made rules of maritime law).

 With respect to the scope of damages for wrongful death, these remedies often appear to overlap and contradict each other. Indeed, as two leading commentators note, "the perils of the sea, which mariners suffer and shipowners insure against, have met their match in the perils of judicial review." G: Gilmore & C. Black, The Law of Admiralty § 6-1, at 272 (2d ed. 1975).

 The question here is whether compensation for loss of society is available under the general maritime law as modified by section 905(b) of the LHWCA. To answer this question it is necessary to review the tortuous history of negligence and unseaworthiness in admiralty law and the evolution of judicially created and legislatively enacted remedies. Doctrines of negligence and unseaworthiness have developed along two different courses in maritime law. In addition, though remedies for seamen and remedies for longshore workers have evolved separately, they often intertwine.

 A. Historical Development

 The first remedy afforded a seaman against the shipowner for injuries sustained as the result of the negligence of the owner or crew, other than the ancient maritime remedy for maintenance and cure, was the judicially-created remedy of unseaworthiness established by the Supreme Court in The Osceola, 189 U.S. 158, 47 L. Ed. 760, 23 S. Ct. 483 (1903). The Osceola defined the remedy as one for "indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship." Id. at 175. The Court found precedent for this remedy in British and Continental admiralty law, as well as in some lower court decisions from this country. On the other hand, the Court held that seamen are not entitled to "indemnity for the negligence of the master, or any member of the crew" but are limited solely to maintenance and cure. Id.

 Unseaworthiness, though a species of negligence, is a form of strict liability imposed upon the vessel owner for failure to supply a seaworthy vessel and crew. It is also a warranty premised on the theory that a vessel owner warrants to the seaman a seaworthy vessel and crew. Courts have said that this strict liability or warranty is justified by a special solicitude for seamen, who find themselves at sea at the mercy of the condition of the vessel and the experience of the crew. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 387, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970). For the breach of this warranty, federal courts have created a range of remedies since the decision in The Osceola.

 The first federal legislative remedies were created in 1920 when Congress adopted the Jones Act and the Death on the High Seas Act. The Jones Act extends the Federal Employers' Liability Act, 5 U.S.C. § 8101 et seq., to seamen by providing a negligence cause of action and tort damages to seamen injured or killed in the course of their employment. Despite the enactment of the Jones Act, courts have not treated it as the exclusive remedy for seamen, but have continued to allow seamen to assert claims for unseaworthiness under The Osceola doctrine. Thus, it is common for injured seamen to allege claims under both the Jones Act and the warranty of seaworthiness. *fn2" The benefit to the seaman of a claim for unseaworthiness is the higher duty of care required of the vessel owner. The result of these developments is that a seaman has dual claims for the same injury -- one judicially created, the other statutory.

 The Death on the High Seas Act covers the death of any person, seamen as well as non-seamen, caused by "wrongful act, neglect, or default" occurring on the high seas (defined as one marine league, or approximately three miles, from shore). 46 U.S.C. § 761. Unlike the Jones Act, which provides a negligence claim only, DOHSA has been interpreted to include claims for both negligence and unseaworthiness. See Walston v. Lambertsen, 349 F.2d 660 (9th Cir. 1965). Both acts limit recovery to pecuniary loss, DOHSA by its explicit provisions, 46 U.S.C. § 762, and the Jones Act by interpretation. See Lindgren v. United States, 281 U.S. 38, 74 L. Ed. 686, 50 S. Ct. 207 (1930).

 Those who loaded vessels or worked aboard them as longshore workers were not so quick to receive the solicitude bestowed upon seamen. Before 1926, longshore workers had to look to state land-based remedies for injuries they sustained during the course of their employment. In International Stevedoring Co. v. Haverty, 272 U.S. 50, 71 L. Ed. 157, 47 S. Ct. 19 (1926), the Supreme Court extended the benefits of the Jones Act to longshore workers, permitting an action against the employer rather than the shipowner.

 Six months later Congress created a workers' compensation type remedy for longshore workers by enacting the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. The remedy provided was an exclusive one against the employer of the longshore worker, except that if a valid state workers' compensation system was available to the longshore worker he could not resort to the Act. As a result of these provisions longshore workers could no longer bring an action under the Jones Act unless they were members of the crew and, therefore, qualified as seamen. See Swanson v. Marra Bros., 328 U.S. 1, 90 L. Ed. 1045, 66 S. Ct. 869 (1946).

 On the same day the Supreme Court decided Swanson it decided Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90 L. Ed. 1099, 66 S. Ct. 872 (1946). In Sieracki the Supreme Court extended the unseaworthiness benefits under The Osceola to longshore workers. Acknowledging that the LHWCA was established as the exclusive remedy for longshore workers against their employers, the Court held the Act was not exclusive of remedies against others and that "for injuries incurred while working on board the ship in navigable waters the stevedore is entitled to the seaman's traditional and statutory protections, regardless of the fact that he is employed immediately by another than the owner." Id. at 99. Thus, as of 1946, injured longshore workers had a statutory workers' compensation type remedy against their employers and a judicially-created seaman's type remedy for unseaworthiness against the vessel owner.

 Although Sieracki states that a longshore worker working under seamen's conditions has the seaman's "statutory protections," a longshore worker could not sue the vessel owner for Jones Act negligence unless he qualified as a seaman. The Supreme Court framed the question in Sieracki as whether the traditional obligation of seaworthiness ran to a longshore worker. The Jones Act was not in issue, nor was any other theory of statutory or traditional negligence. *fn3"

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