SEA-LAND SERVICES, INC. v. GAUDET

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Argument of Stuart A. Mcclendon

Chief Justice Warren E. Burger: We will hear arguments next in 72-1019, Sea-Land Services against Gaudet.

Mr. McClendon.

Mr. Stuart A. Mcclendon: Mr. Chief Justice, may it please the Court.

We are here today for a discussion and hopefully a clarification of the rights of litigants under the general maritime law and under the wrongful-death recovery allowed by the Court in the Moragne case in 1970.

At that time when the Court overruled the Harrisburg and allowed recovery under general maritime law for wrongful-death, the Court did not set any stringent or specific guidelines for future cases but stated that the siftings through the Court would bring about hopefully a consistent law in this area.

In the case before us today, Mr. Gaudet was injured in 1966.

He was a foreman longshoreman.

He was injured aboard a vessel in the Mississippi River in the Port of New Orleans.

He instituted suit in U.S. District Court and brought it to judgment for the amount of $175,000.00.

Ten days after the Jury award which was rendered in the Court of proper jurisdiction, Mr. Gaudet died.

His widow did not come in to those proceedings requesting any damages for his death or any modification of the award.

Post-trial, motions were filed and these were rejected by the Trial Court.

The matter was appealed to the Fifth Circuit and the appeal failed and the judgment was obtained.

Mrs. Gaudet proceeded with a separate suit alleging that she had sustained severe financial loss as a result of the death of her husband.

And after reversing the Trial Court’s rejection of her claim, the Fifth Circuit had rendered the decision stating that the previously received judgment was not a bar to her actions for wrongful-death.

We would like to briefly point out that the Courts have recognized although at times have been confused over the difference between a survival action and a wrongful-death action, survival being purely the right of the survivors of a decedent to recover for the damages which she sustained during his lifetime.

The survival action the damages there terminated to the time of death.

The wrongful-death action on the other hand, is a right of recovery for the decedents for their damages sustained after the death of the individual.

This Court has dealt with these matters in Flynn case and the Mellon versus Goodyear and the Michigan versus Vreeland cases and all of these were FELA cases which took Lord Campbell’s Act which had -- which was referred to in the Moragne decision and said that the right of recovery for wrongful-death is a right which only exist if in the decedent there existed a right at the time of his death.

And we are here today because the Fifth Circuit has said that even though Mr. Gaudet had received a judgment, had obtained a judgment that in some manner, the widow had a right to go file with the claim for wrongful-death.

We submit that the claim for wrongful death is a derivative action and is derived from the initial tort, the initial injury.

We're not dealing of an instantaneous death which was not dealt within these cases.

We're dealing with an injury which results in certain injuries to the individual and then it's some time later there is death, weeks or months or in some of these cases many years later.

And the Courts have held especially under Mellon Case that the right is a derivative right and it derive from the original injury which the injured man sustained at the time he was involved in the accident, and if there is no viable cause of action or right on his part, immediately prior to his death, that his heirs cannot renew their right to claim their damages.

This is the question which -- one of the questions before the Court today, we also submitted on our petition for writs that if the Court should find that -- that the recovery is proper, then the uniformity which is desired in Federal Law and admiralty and maritime matters and which has been consistently followed in the Jones Act in the Death on the High Seas and in the cases since Moragne in 1972 that the Fifth Circuit was departing from this by allowing damages for nonpecuniary loss.

All of the cases under the Jones Act, Death on the High Seas in general maritime law have stated that the claim of the defendant, the damages of the defendant must pay are pecuniary and loss of love and affection, society, companionship, consortium are not recovered.

Since Mrs. Gaudet inherited the judgment of her husband in the amount of a $175,000.00 and eventually collected it, we submit that this is full pecuniary recovery for the damages that were sustained, and that the only recovery which we submit, there should not be any but if the Court should say that in some manner a cause of action exist even though there wasn’t one at the time of death, then, we submit that in order to maintain uniformity that only non -- only pecuniary losses should be allowed and that this have already been paid in this case.

This is the matter before the Court today.

If the Court has any questions, we would be happy to --

Unknown Speaker: Mr. McClendon, you indicated that Mrs. Gaudet inherited the estate of her husband?

Mr. Stuart A. Mcclendon: Yes, sir.

Unknown Speaker: Supposed this were not the case and I take that this could be possible in Louisiana, I do not know, but if this were a child, if there were no widow or something, would it make any difference in your statement of the case?

Mr. Stuart A. Mcclendon: I don’t feel so Your Honor that it -- there was no question that she was the proper representative in a surviving spouse, she did in fact inherit.

Unknown Speaker: Well, I wondered whether there was any legal significance in the fact that she had inherited it.

Mr. Stuart A. Mcclendon: No, Your Honor, except for the fact that we submit that it became a property right which was then inherited by the heirs at the time of death that when the Jury award was rendered that a cause of action ceased to exist and it was merged into a property right which was then inherited by her.

That the cause of action was not pending.

If it had been pending, if there was a pending claim at the time of death, we feel the law is clear that there can be an amendment or a merger of the claim of the decedent for his damages into a wrongful-death action.

But if the claim of the decedent for his damages has been terminated by settlement, by proscription, by statute of limitations or by judgment, then their -- this precludes any right of the heirs, of the –-

Unknown Speaker: I understand your theory, but it seems to me it does not depend on the fact of inheritance.

That's -- this is what I wish to be assured about.

Suppose there were no widows, supposed Mr. Gaudet have -- was a widower, I take it -- in Louisiana, you have wrongful-death of possibilities at least for surviving minor children?

Mr. Stuart A. Mcclendon: Yes, sir and there are minor children, wife and ascendants.

Then suppose they were not -- did not inherit in anyway his estate?

Mr. Stuart A. Mcclendon: If there was --

Unknown Speaker: We’d still have a problem, would we not?

Mr. Stuart A. Mcclendon: Yes, sir.

Unknown Speaker: Alright then.

Mr. Stuart A. Mcclendon: I think so.

Unknown Speaker: Mr. McClendon, I haven’t thought about this for a good many years but I remember there are two different basic kinds of wrongful-death actions.

One is Lord Campbell’s type, the Lord Campbell’s Act type in which the survivors inherit the cause of action that the decedent would've had, and then there is a quite a different kind of statutory action which the survivors have given an independent cause of action for the death of the decedent.

Mr. Stuart A. Mcclendon: Yes sir.

Yes, Your Honor.

Unknown Speaker: Am I right about that?

Mr. Stuart A. Mcclendon: I'm not wanting to --

Unknown Speaker: And then there may be some merged classifications somewhere in between those two theoretical causes of action and wouldn’t it depend here on which -- would the answer to the problem in this case depend upon which kind of wrongful-death action we've -- the Court was talking about in Moragne?

Mr. Stuart A. Mcclendon: Your Honor, I’m not –-

Unknown Speaker: Or Moragne as it sometimes called?

Mr. Stuart A. Mcclendon: I’m not wishing to argue with count -- with the Court but it submitted that the Lord Campbell’s Act actually was a wrongful-death statute which gave to the dependents a right to -- and then to cover that whole --

Unknown Speaker: An independent right of action?

Mr. Stuart A. Mcclendon: An independent right of action which did however depend upon the existence --

Unknown Speaker: Of a right of action by the decedent.

Mr. Stuart A. Mcclendon: Of a right at the time of death, at the time of death.

And in the Carol case which is a case from the Supreme Court, the Court said the two can be merged if the first has not been extinguished, then it can be merged into the claim of the dependents, but they are two separate cause of action.

We prefer for clarity to try to distinguish between a survival action which perhaps half of the States have, which enables the representative of the decedent to carry on the claims that he has sustained during his lifetime.

Unknown Speaker: And that's a survival -- that's the inheritance of the cause of action that the decedent had?

Mr. Stuart A. Mcclendon: Exactly.

But there's –-

Unknown Speaker: But there is another theory.

Mr. Stuart A. Mcclendon: Whereas the wrong -- the true wrongful-death Act which is the Lord Campbell Act (Voice Overlap) in which every state has is the right of the dependents to sue for their damages which have occurred of course after --

Unknown Speaker: For the loss of the decedent by then?

Mr. Stuart A. Mcclendon: For the loss.

Yes, sir.

But the Lord Campbell’s Act which was, you might say the original true wrongful-death Act said that says it is a derivative action which goes back to the initial -- the original tort that in order for the dependents to exercise their cause of action after the death of the decedent, there had to be in existence at the time of death a right on the part of the decedent himself to sue for his damages.

And if he extinguished that right in some manner this extinguishes the separate right of the dependents.

Unknown Speaker: Well, how about the manner of damages?

Now in this -- now in the original action here by the decedent was it shown indisputably that there was total and permanent disability?

Mr. Stuart A. Mcclendon: Yes, sir.

I believe there was and I am sure counsel would bring this out his arguments.

The award was a $175,000.00 and the injury was a back injury.

He’d had surgery.

The psychiatrist did said that it had created emotional problems that he'd become addicted to his own medication.

He was having a drug addiction problem and he was severely emotionally disturbed and he was about 45 year-old man at the time.

Approximate 20-year work life expectancy, evidence was submitted as to his total inability to work for life.

Unknown Speaker: Total and permanent disability?

Mr. Stuart A. Mcclendon: Yes, sir, this was a contention of course, being a Jury award, there was no breakdown in the award as to what portion.

Unknown Speaker: But I suppose the defendant disputed that?

Mr. Stuart A. Mcclendon: Yes, sir, yes, they did.

Unknown Speaker: I'm thinking of a case, let us take a case.

The facts in this case really are not all that -- they're spelled out but state case of a tortuous injury, personal injury that appears at the time of the award by a Jury to the injured party to be partial permanent disability, let’s say?

And then the award is made and then the man a month after the award gets complications which are concededly and directly attributable to this personal injuries, and he then dies in a year.

And now, it is very clear that he is a total loss to his dependents as far his earning power goes, would there be a cause of action then for this wrongful-death under your theory?

Mr. Stuart A. Mcclendon: No, Your Honor.

No sir because of the desire of all the Courts to bring it into litigation and when the matter was -- was the evidence was produced that its initial trial, it anticipated everything that would happen to him.

Now --

Unknown Speaker: To him?

Now, I know that it is very clearly, he couldn't bring any lawsuit to say, well, look the -- i wish the Jury was wrong and the evidence was wrong, I fully understand that that is common place he can’t bring any lawsuit.

His lawsuit is settled, rightly or wrongly.

Mr. Stuart A. Mcclendon: We submit that the claim of the dependent --But now he dies and the impression is to his -- what if any additional cause of action do his dependents have for his wrongful-death attributable to that same tortuous injury.

We submit Your Honor, that since it is a derivative right which goes back to the original tort and must continue in a viable state until the death that the judgment, even though it may have been inadequate,(Inaudible) and the dependents, small children perhaps with many years of dependency are precluded from making any claim.

Unknown Speaker: And how about elements of damage?

In his own lawsuit, of course, he can recover I assume for things like his own pain and suffering.

Mr. Stuart A. Mcclendon: Yes, sir.

Unknown Speaker: Can his dependents in a wrongful-death action recover for his pain and suffering?

Mr. Stuart A. Mcclendon: Well, under the general maritime law, under the law, no, under the statutes, no and the Courts of course have gone into states statutes and gone into the state, wrongful-death and to the state survival statutes.

Unknown Speaker: But they can recover on the other hand for their lawsuit for the widow can recover perhaps -- you say not in maritime law, but that’s the question, but there might be other elements of damage?

Mr. Stuart A. Mcclendon: Yes, sir.

Unknown Speaker: As contrasted to his pain and suffering for which they perhaps could not recover, they could on the other hand recover for their lawsuit, companionship and consortium?

Mr. Stuart A. Mcclendon: Yes, sir and of course loss of support is a very large item of -- in a wrongful-death claim, in the event that death has occurred almost immediately with the accident.

Then the dependents have a very large claim for the loss of support.

Unknown Speaker: Loss of support.

But it should would be less maybe than his own cause of action if he were indeed totally and permanently disabled, his loss of earnings would be greater because they would -- that loss would've had to supported him during the balance of his life, and now he is dead?

Mr. Stuart A. Mcclendon: Yes, sir.

Yes, sir.

This is true.

This is true.

Chief Justice Warren E. Burger: Let me put a question just on the same line and other direction, what if he died on the first day of the trial of this case or at sometime before verdict, how many causes for action would have existed and what would be the elements of damage?

Mr. Stuart A. Mcclendon: There would be two cause of action.

His own cause of action would survive and would --

Chief Justice Warren E. Burger: And the widow?

Mr. Stuart A. Mcclendon: Into the widow or representative.

Chief Justice Warren E. Burger: Representative of the state if there were no widow.

Mr. Stuart A. Mcclendon: And then, there would come into existence at the time of death, a wrongful-death action for the dependents for their loss of the loved one.

There would be two causes of action, but there was only one wrong, the initial accident.

The Courts have not looked, excuse me, at the death as a wrong.

They have looked at it more as an item of damages that flowed from the initial wrong.

And so when the claim of the decedent has been extinguished and so far as it relates to the wrong, the Courts have said that the death does not bring into existence a cause of action -- it's not new tort, it's just an element of damage. (Voice overlap)

Chief Justice Warren E. Burger: Is it two causes of action, two trials also?

Mr. Stuart A. Mcclendon: No, sir, they may be merged and one merged die in the Carol case which is a Supreme Court Case and which are commonly merged.

Commonly merged when death occurs shortly after the accident or simultaneously with it, of course if it is a simultaneous death, an instantaneous death, there would be no survival action.

Yes sir?

If -- say a seaman sues for injuries under the Jones Act and that occurred on the High Seas?

Unknown Speaker: Yes sir?

Unknown Speaker: And then he dies, is there an action to the Death on the High Seas Act there?

Mr. Stuart A. Mcclendon: Yes, sir.

Unknown Speaker: On example of whom?

Mr. Stuart A. Mcclendon: There is a survival -- well, in your question --

Unknown Speaker: In the access, who may recover right?

Mr. Stuart A. Mcclendon: Yes, sir.

Unknown Speaker: Does it also -- what about -- what if the seaman had already recovered from the Death of the High Seas Act?

Mr. Stuart A. Mcclendon: Then we submit that he would have --

Unknown Speaker: Well, you submit but are there holdings?

Mr. Stuart A. Mcclendon: We don’t have holdings on Jones Act, Your Honor.

We don’t.

All of the holdings under FELA.

Unknown Speaker: Well, how about the Death on the High Seas Act not a (Inaudible)?

Mr. Stuart A. Mcclendon: Let’s see, under the Death on the High Seas Act, if he had recovered during his lifetime, there are no cases under Death on the High Seas Act as we see the -- they are all under FELA.

Unknown Speaker: Well, Congress said on Death on the High Seas Act, Congress has not made it a precondition that a cause of action exist at the time of death?

Mr. Stuart A. Mcclendon: Actually on Death on the High Seas Act, the rule is rather harsh.

It says that if the injured man had a suit underway so to speak and he dies, then all of his claims for pain and suffering are extinguished.

It cannot be passed on to his heirs but they do get the wrongful-death claim for their loss, but his funeral expenses and pain and suffering claim --

Unknown Speaker: But what if he’s already recovered?

Got a judgment?

Mr. Stuart A. Mcclendon: We don’t have any cases under Death of the High Seas Act.

But if it is a result of the FELA which is what Death on the High Seas is change from the (Inaudible).

Unknown Speaker: Jones Act incorporates FELA, Death on the High Seas Act is something else?

Mr. Stuart A. Mcclendon: You’re correct, sir.

Unknown Speaker: It does not involve seaman?

Mr. Stuart A. Mcclendon: Then, we do not have cases and we do not know of cases which have dealt with this problem.

Unknown Speaker: But under the Death on the High Seas Act in the event there is an action, the elements of recovery are pecuniary only?

Mr. Stuart A. Mcclendon: Yes, sir.

Unknown Speaker: A survivor, assuming he does have a good Death on the High Seas Act, actually, if the elements who is damaged do not include pain and suffering --

Mr. Stuart A. Mcclendon: Did not include.

Well, no service, the pain and suffering would be the decedents of the claim.

Unknown Speaker: I -- so again, I ask you, does not conclude the damage to the heirs do not include pain and suffering?

Mr. Stuart A. Mcclendon: And also they do not.

Unknown Speaker: Just pecuniary.

Mr. Stuart A. Mcclendon: Just pecuniary loss on the Death on the High Seas.

Unknown Speaker: And the same is true under the --

Mr. Stuart A. Mcclendon: Under the Jones Act.

Unknown Speaker: Under the Jones Act.

Mr. Stuart A. Mcclendon: And under -- in the cases since Moragne except for a Louisiana case, there has been only recovery for pecuniary loss.

We will reserve the rest of our time.

Chief Justice Warren E. Burger: Mr. Reese.

Argument of George W. Reese

Mr. George W. Reese: Mr. Chief Justice and may it please the Court.

I think the questions that we’re asked about -- get my notes -- about the inheritance and the damages of particularly interesting in Louisiana because what happened to this judgment is the lady had a son who is a major and in Louisiana with one child, the surviving widow inherits the community property which has happens to be judgment of a husband as a community property.

She inherits half of the judgment directly and her child who is a major, not dependent and wouldn't have a claim under Moragne by the (Inaudible).

Unknown Speaker: You mean he is a major and not a minor or is he Major in the army?

Mr. George W. Reese: Yes.

[Laughter Attempt]

He is a major not a minor.

Yes, and he therefore would not have pecuniary loss involved in his father’s death and therefore would not have been a claimant under the Moragne decision and he did inherit the -- what we call the -- well his mother inherited a usufruct of his half.

It gets a little complicated depending on the number of children.

If there are more children the mother’s half portion goes down, the children portion goes up, she inherits her share, her portion and I guess they called fee simple in common law and she gets a usufruct and I do not know what the word is in common law part but, she gets to use of it during her lifetime or until she remarry.

Unknown Speaker: Life status.

Mr. George W. Reese: Sir?

Unknown Speaker: Life status, something like that.

Mr. George W. Reese: Yes, I think it is life status, I’ve never taken that --

Unknown Speaker: Yeah, and maybe not, yeah, (Inaudible).

Mr. George W. Reese: Succession.

Well, I thought what was used pretty generally too.

I’m fairly parochial if you don’t mind to.

Succession, it’s -- [Laughter Attempt].

So the answer is that, you know, this is not merely a matter of this lady inheriting this entire judgment.

Louisiana law does not provide for that.

I am assuming there are differences in states all over the union which make the inheritance entirely different.

In most state as I understand it from the right of a dependent to collect money damages for loss.

Chief Justice Warren E. Burger: This is just money in the bank than is it under Louisiana law that it might have come from an inheritance from an uncle in England or some place?

Mr. George W. Reese: Right, yes and has to be distributed under a different set of rules then your decisions in Moragne are going to be.

I mean in the outgrowths of your decisions in Moragne.

Unknown Speaker: But may I ask Mr. Reese, if this judgment which he recovered includes an award for impaired earnings for the rest of his life?

Mr. George W. Reese: Well, I don’t (voice overlap).

I’ll produce evidence that the man would not recover from his condition.

Counsel defending it vociferously defended.

Unknown Speaker: I know but what I’m trying get at is whether they went to the Jury as an element of his damages, an item of an impaired earnings that hereafter instead of earning $200.00 and then hope to earn not more than $50.00 a week for the rest of his life and actuarially his life span is now going to be “X” years?

Mr. George W. Reese: We've produced no actuary at the time.

We did produce medical evidence of the fact that they didn’t think he would recover to be able to perform the same occupation he had performed before.

Unknown Speaker: So that -- so then -- that in terms of his impaired earning ability?

Mr. George W. Reese: Yes sir.

Unknown Speaker: And so there is a misdamage award, an element of a compensation for impaired earning ability.

Mr. George W. Reese: Very practically speaking, i'll say there’s no doubt.

Unknown Speaker: Now, that's a -- well, if that’s true, why doesn’t that take care of the -- any dependent’s claim?

Mr. George W. Reese: Well, let me say that there is a principle involved, you know principle of law involved.

I don’t know and I don’t think any of us here now looking at the Jury’s verdict whether or not that Jury took into consideration.

Unknown Speaker: Well, it went to them as considered, didn’t it?

Mr. George W. Reese: It went to them five years after the man died.

Unknown Speaker: I know, but they were told to consider that element, were they not?

Mr. George W. Reese: Right.

Unknown Speaker: Now, what claim of dependency would his wife and children have?

Mr. George W. Reese: It’s based on -- the child now in this particular case doesn’t have any.

There could be a situation for instance in Louisiana --

Unknown Speaker: Why doesn’t it have?

You mean under Louisiana, it doesn’t have any?

Mr. George W. Reese: Well, no.

I am saying under the Moragne decision because you all said, it was the loss of those loved ones and their particular loss involved.

So, he is a major, would have no pecuniary loss arising out of it, he earns a decent income.

There is a possibility in Louisiana law that a person could have five children or four children and the widow who is the big looser financially might end up only getting 1/4 of this recovery, and the children would get the other -- at least the fee simple of the other -- of the rest of the 3/4 and it definitely then wouldn't cover no matter what the Jury gave him for his future loss.

They would be giving money to four children who don’t need the money.

Whereas the wife who took the pecuniary loss would end up, with a lot -- an awful lot loss after paying a lawyer.

You know, it is a contingent fee proposition.

There are a lot of factors involved in it --

Unknown Speaker: Well, your theory is that, then all the members of the family together can recover more than just what a Jury would award for loss of earnings that they can in effect duplicate that role -- that award in some --

Mr. George W. Reese: Well, I agree with first have of your statement and disagree with the second half.

If that's already being done, when counsel suggests that if a man dies before the thing -- well not really -- no it wouldn’t fair saying that.

But what I am saying is, is that the second Jury would have -- of the second fact finder would have the opportunity to decide which part of a $175,000.00 for instance took credit against what they are going to give her in a trial for her own pecuniary loss, I mean on --

Unknown Speaker: This case hasn’t gone to trial yet in the Court?

Mr. George W. Reese: No, sir.

It was dismissed in the District Court, reversed in the Circuit, and then this Court find --

Unknown Speaker: So, you still have to go to trial, I mean -- are you suggesting now that it might become an issue of how much of a $175,000.00 is to be credited against any case that she establishes of damages as dependents, is it that?

Mr. George W. Reese: I am suggesting it is absolutely no way to avoid it.

Yes, sir.

Definitely, it would become --

Unknown Speaker: How are can going to breakdown a $175,000.00?

Mr. George W. Reese: I think it is a complicated problem which is what we suggested in the brief in the Fifth Circuit but because it is a complicated problem or because it creates some difficulty in the ascertainment of damages.

You know I think that principles still stands, but -- and let me say, I admit I got a fairly big verdict in this thing but the verdict could've been $35,000.00.

You know the Jury could have decided the counsel was right and possibly he hadn’t really been permanently disabled and then died 10 days later and you'd be presented with an entirely different set of facts with a 35-year-old widow and you know, eight minor children.

It could work out that way too.

You know, so what we are talking about I believe is the principle out of Moragne.

You know, we’re talking about sifting down [Laughter Attempt] sifted right back up to you, all I am afraid.

Unknown Speaker: Well, under your theory, I take it that the defendant can be required to pay more by way of loss of earnings then the first jury determined the plaintiff, they were entitled to recover, taking both suits together?

Mr. George W. Reese: Yes sir.

And I am saying that had this man died before the date of judgment that same situation could have existed.

I am saying that -- what I am suggesting, if the rule is worked out that the second Jury who decides the wife’s case is given instructions on crediting, the money the she received -- that she received, now, not that the whole family received, but that she received as a result to this thing, yes, they could end up paying more money, there isn’t any question about it.

Unknown Speaker: Well, how do you get over the analysis in Mellon and Goodyear?

I -- we realize that was a FELA case but the (Inaudible) was a settlement.

Mr. George W. Reese: Yes.

Unknown Speaker: It was held at that barred on the claim with the dependents because the settlement had to be taken to have included any dependency claims.

Well, how is this different?

Mr. George W. Reese: Excuse me, I am sorry [Laughter Attempt] I didn’t mean to interrupt.

Unknown Speaker: That is alright.

Mr. George W. Reese: When counsel was discussing the matter of the various statutes, there aren't just two or three, you know, there is Lord Campbell’s Act which by the way is what the FELA and the Death on the High Seas deal is.

That’s exactly what the language is comes right out of it, and those cases are based the Mellon and those cases are based strictly on an interpretation of those words which say that the claim must be pending at the time of the decedent’s death.

You know, it's in it -- it is an interpretation of legislative intent.

You cannot get around it.

The pure death claims that have been discussed in Wilson versus Masingill, they are cases that say exactly what I am suggesting this Court adopt from Moragne.

I’m not coming up you know with the brand new approach.

I admit I’m coming here with the minority approach, but there were part -- death parts survival action which is a usual thing by the way.

I think that there are very few pure Survival Statutes, Death on the High Seas happens to be one.

Unknown Speaker: So, are you suggesting that for purposes of Moragne and for the people who will get the benefit of the Moragne decision that we not be guided by what the Congress has said.

The rule should be with respect to seaman or with respect to the people having the benefit of the Death on the High Seas Act?

Mr. George W. Reese: Yes, I am suggesting exactly that.

And if you --

Unknown Speaker: And that we should not adopt what Congress’ thought should be available to seaman’s survivors?

Mr. George W. Reese: Right and the reason l am suggesting it is that Congress has adopted some ancient language in connection with the FELA.

Unknown Speaker: Well, I must say though, ordinarily in framing admiralty rules, we have consulted what Congress has done in cognate situations, haven't we?

Mr. George W. Reese: No, I do agree with that and I do agree that what I am suggesting is a minority position and I am agreeing that Congress has in the FELA and the Death on the High Seas Act adopted the Lord Campbell Act.

Unknown Speaker: And there were indications in Moragne also that perhaps the Court should look to those congressional guidance.

Mr. George W. Reese: And other things.

Yes sir.

Unknown Speaker: In -- on this very subject.

Mr. George W. Reese: No doubt about it.

And what I am saying here this after -- well, it is not afternoon, this morning is that there is a certain amount of legislature -- legislation and arbitrating this, you know in the matter of admiralty law that you create in effect, you know like we could look that's clearly in the eye and I think that the conflict probably is between a very harsh rule that you could adopt by using the Congressional language and other language that you all have adopted in previous cases in discussing admiralty and the, you know, type of feeling you ought to have toward the wards of this Court in admiralty matters.

Unknown Speaker: Wouldn’t the -- wouldn't it help your case considerably if the elements of damage under -- for those who can have advantage of Moragne, were not limited to pecuniary loss?

Mr. George W. Reese: Yes, it would help my case and by the way (Voice Overlap).

It has not been determined.

Unknown Speaker: If Mellon and that minor cases, if they haven’t assumed or held or been limited to pecuniary loss, it may be that precondition of cause of action wouldn’t have obtained?

Mr. George W. Reese: Aren’t you also assuming the cases you’re talking about and still come in with the FELA, you still have the opportunity and it has not been decided yet by this Court or any Circuits as far as I know whether Moragne is limited to pecuniary loss.

I understand that.

Mr. George W. Reese: And you know, that is another day and another hour and possibly it might have some effect on your decision in this case.

I think that is basically all I have to answer in connection with counsel’s statement.

I don’t read the Moragne case to indicate anything but that you can’t recover, maybe all wrote it differently and I'm reading it wrong ubt i don't if you all wrote it definitely and I am reading it.

But, I do not know whether there is a pure survival action in Moragne.

It seems to me it is a -- it reads like a pure death claim.

It reads like the type of thing Wilson versus Masingill says the South Carolina statutes like.

Any other questions?

Thank you sir, thank you sir.

Rebuttal of Stuart A. Mcclendon

Mr. Stuart A. Mcclendon: Briefly the --

Chief Justice Warren E. Burger: Mr. McClendon.

Mr. Stuart A. Mcclendon: Yes sir.

The Moragne case was decided to provide a remedy where there was none and where the harshness of the Harrisburg had been in effect made a mockery out of it over the years by various bypass procedures.

And so in Moragne where there was virtually an instantaneous death, a widow and no remedy -- the remedy was supplied but the case before the Court today is not one in which there is no remedy.

The remedy was perceived and the Fifth Circuit points out the problem which will be created by portion one of the damages to go back into the Jury award and try to determine which of these damages where anticipatory of the death or of the loss of income of Mr. Gaudet in the footnote on page 4 of the Fifth Circuit's decision.

Again, we would simply point out that the fact that the right is derivative rather than representative, is in our opinion the crux of the question before the Court. If the original tort give rise to two causes of action potentially, then, the occurrence of the death is not that which creates the right of the dependents to bring their action.

It's the original tort and if this is extinguished by the injured man during his life, the Courts have said that this -- he had received his pecuniary loss and you'are opening a Pandora’s Box to go and in fact to carry it over.

Unknown Speaker: That might make some sense if, as long as you assume that the or as long as you hold that the damages recoverable by the survivor are limited to pecuniary loss?

Now, where did that little -- come from, that the survivors under the Jones Act and Death on the High Seas and FELA if the damages of survivors are limited to pecuniary?

Mr. Stuart A. Mcclendon: It has been in all of the cases Your Honor.

Well, know. NIs that construction of the statute or just --

It was not in the statute -- statute.

No, it was and the statute just set damages --

Unknown Speaker: That's rule of Lord Campbell’s Tom?

Mr. Stuart A. Mcclendon: Yes, sir.

It came through FELA and it's a -- but the statute set damages.

Unknown Speaker: Let us assume for the moment that a widow did could recover for consortium, the loss of consortium?

It wouldn’t make much sense would it -- to say that the recovery by the decedent extinguished the -- would've cause of action -- really what made my attempt was --

Mr. Stuart A. Mcclendon: This is the hiatus.

This is the area where --

Unknown Speaker: Make more sense and make some sense if you talk about the when you talk about pecuniary loss.

Mr. Stuart A. Mcclendon: Yes Sir, and these were the several points --

Unknown Speaker: [Voice Overlap] this consortium.

Mr. Stuart A. Mcclendon: Yes sir, these were several of the points in our brief.

Unknown Speaker: Now Moragne, so we'd feel -- I supposed part of our problem is, what are the elements of damages available under Moragne?

Mr. Stuart A. Mcclendon: Yes, sir, whether to maintain uniformity, you’re going to follow what has been done in the other Act?

Unknown Speaker: And I gather the widow was not a party to his lawsuit alleging a loss of consortium, was she?

Mr. Stuart A. Mcclendon: No, sir, that's (Voice Overlap)

Unknown Speaker: So that's still uncompensated, isn’t it?

Mr. Stuart A. Mcclendon: Yes, sir.

It is a question of compensation.

It is a question of extinguishing the act -- the action before the death occurred.

It’s scenario were -- I do not know if there is a true counterpart or a comparable situation.

Unknown Speaker: What was their relation of the claim for loss of consortium?

Mr. Stuart A. Mcclendon: It is the love, the affection and relationship of the husband and wife.

Unknown Speaker: If common law it could be --

Mr. Stuart A. Mcclendon: Yes, It is.

Unknown Speaker: We are in civil law state by you’re right sir, this is true.

Unknown Speaker: Well of course, in the area, we're dealing with today -- we're framing the Federal admiralty rule.

Mr. Stuart A. Mcclendon: Yes sir.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

Case is submitted.