IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NEVILLE MOTTS; ET AL
DANNA MOTTS, Individually and as Personal
Representative of the Estate of Neville Motts,
M/V GREEN WAVE, Its Engine, Tackle, In Rem;
CENTRAL GULF LINES, INC.; LMS
also known as Lash Marine Services,
Appeal from the United States District Court
for the Southern District of Texas
May 9, 2000
Before DAVIS, CYNTHIA HOLCOMB HALL,(1)
and SMITH, Circuit Judges.
CYNTHIA HOLCOMB HALL, Circuit Judge:
An unfortunate sea accident and the tragic
events that followed it require us to consider the relationship between
general federal admiralty jurisdiction and the Death on the High Seas Act
("DOHSA"). We hold that DOHSA applies where the decedent is injured on
the high seas, even if a party's negligence is entirely land-based and
begins subsequent to that injury.
The decedent, Neville Motts, joined the M/V
Green Wave as Chief Engineer on January 10, 1998, for its voyage to McMurdo
Station in Antarctica. The Green Wave's mission was to resupply the American
scientific research center in McMurdo. The Green Wave arrived at McMurdo
but encountered engine difficulties on its return voyage. Specifically,
the No. 2 piston broke, causing the entire engine to fail.
The ship's Captain, Peter Stalkus, ordered
Motts to repair the engine. Motts, assisted by the second and third assistant
engineers, attempted to repair the No. 2 piston. The three engineers removed
the 3000-pound cylinder head and laid it on its headstand. Before they
had a chance to secure the cylinder head to the headstand, the ship experienced
an unforeseeable, dramatic roll. This roll caused the cylinder head to
slide off its headstand, knocking Motts down and pinning him against a
platform rail. Motts suffered a badly crushed pelvis and hip as a result.
Motts's treating physician, who has performed over 2,000 hip surgeries,
testified that Motts's was one of the most severe injuries he had ever
Motts was examined by Captain Stalkus and
the Chief Mate, in preparation for a telephone consultation with a physician
at George Washington University Hospital ("GWU"). GWU's Maritime Medical
Access Unit provides medical advice to ships at sea. GWU's doctor initially
diagnosed a soft-tissue injury, but recommended that Motts be x-rayed as
soon as possible, so that a more serious injury could be ruled out. Although
Motts told Captain Stalkus that he had a history of vascular problems and
cardiovascular surgeries, Stalkus did not relay this information to GWU's
Appellant Central Gulf Lines, Inc. ("CGL")
owns and operates the Green Wave. Appellant LMS Ship Management, Inc. ("LMS")
is a Louisiana corporation that serves as the management company for the
Green Wave. As part of its contract with CGL, LMS is to ensure adequate
and timely medical attention to injured or ill seamen on CGL's vessels.
LMS had no employees aboard the Green Wave; LMS's health care officers
all work in its New Orleans office. Captain Stalkus informed LMS's officers
of the nature of Motts's injuries and of Motts's vascular problems and
history of cardiovascular surgeries.
For the next two days, the Green Wave drifted
on the high seas while the crew labored unsuccessfully to repair the vessel's
engine. The Green Wave requested and received prompt assistance from the
Polar Star, a Coast Guard cutter. The Polar Star began towing the Green
Wave toward Christchurch, New Zealand. Over the next two weeks, while the
vessel was being towed to port, Motts was bed-ridden in his quarters and
mattress on the floor of his ship's office. Over that time his condition
did not improve, and he remained in severe pain, causing Captain Stalkus
to suspect that Motts had in fact suffered a very serious injury, not a
soft-tissue injury. LMS's personnel officer testified that he knew the
type of injury Motts had could result in Motts's death. Despite the fact
that the Polar Star was equipped with an x-ray machine and staffed by a
nurse practitioner, neither Stalkus nor LMS ever requested that Motts be
examined or treated on the Polar Star. Indeed, Coast Guard personnel were
informed, misleadingly, that the Chief Engineer had suffered only a "minor
injury." Nor did LMS ever ask the Coast Guard to use one of the helicopters
aboard the Polar Star to evacuate Motts, even though such an evacuation
was feasible and safe. Similarly, neither Stalkus nor LMS informed GWU
that the Green Wave was being towed by a vessel with such medical facilities.
The district court found LMS's conduct to be "utterly negligent and downright
inhumane." The district court also found that LMS's failure to have in
place any plan for evacuating injured seamen constituted "conscious indifference
to the rights and safety or welfare of injured seamen on GCL's vessels,
and in particular Neville Motts." Motts v. M/V Green Wave, 50 F.
Supp.2d. 634, 642 (S.D. Tex. 1999).
Neville Motts first received appropriate medical
attention when the Green Wave arrived in New Zealand on March 1, 1998,
two weeks after his injury. LMS provided him with the option of undergoing
hip replacement surgery in New Zealand or in Houston. Motts opted to have
the operation in Houston. The surgery was performed on March 10, 1998.
Ten days later, Motts suffered a fatal heart attack. The district court
held that the delays in Motts's receiving treatment proximately caused
Motts's death. See id. at 645. Motts's risk of death was
at least doubled by the fact that the hip replacement surgery was not performed
within 48 hours of the injury. See id. at 644. Specifically,
the delays placed Motts at an increased risk of pulmonary embolism and
cardiac problems. See id. The three-week interval between
the injury and the surgery made the operation ten times more difficult
to perform than it would have been had the surgery been done within two
days of the injury. See id. at 644-45. The court determined
that although Motts's decision not to undergo surgery in New Zealand delayed
his operation, the desire to undergo surgery in the United States was normal
and reasonable under the circumstances. See id. at 645.
Motts filed suit against CGL and LMS in federal
court prior to his death. After his death, Appellee Danna Motts, Neville
Motts's widow, was substituted as the plaintiff. Appellee sued CGL under
the Jones Act and general maritime law for negligence and unseaworthiness.
Appellee sued LMS under Texas state law, or in the alternative, general
maritime law. LMS argued that DOHSA provides the exclusive remedy for any
suit against it by Appellee. The district court granted in part and denied
in part LMS's motion for partial summary judgment in a published opinion,
holding DOHSA to be inapplicable. See Motts v. M/V Green Wave,
25 F. Supp.2d. 771 (S.D. Tex. 1998). After a bench trial the court found
in Appellee's favor against both Appellants, again in a published opinion.
Motts, 50 F. Supp.2d at 634. Because certain non-pecuniary damages
are not available under the Jones Act but are available under Texas state
law, such damages were assessed only against LMS. Seeid. at 646.
We review the district court's determination
that DOHSA does not apply de novo. See Bailey v. Carnival Cruise
Lines, Inc., 774 F.2d 1577, 1578 (11th Cir. 1985). We examine the district
court's factual determinations that Motts was not contributorily negligent
and that CGL failed to render adequate and timely cure for clear error.
Couch v. Cro-Marine Transp., Inc., 44 F.3d 319, 327 (5th Cir. 1995).
As a threshold matter, the district court
determined that DOHSA does not govern Appellee's claims against LMS. Because
DOHSA does not permit the award of non-pecuniary damages, see 46
U.S.C. § 762, and preempts all wrongful death actions under state
law where it applies, see Dooley v. Korean Air Lines Co.,
524 U.S. 116, 123 (1998), Appellee can recover punitive and other non-pecuniary
damages only if DOHSA is inapplicable.
DOHSA provides, in pertinent part, that "[w]henever
the death of a person shall be caused by wrongful act, neglect, or default
occurring on the high seas . . . the personal representative of the decedent
may maintain a suit for damages in the district courts of the United States."
46 U.S.C. § 761. At first glance, the plain text of this statutory
provision seems to indicate that DOHSA is implicated only when the wrongful
act precipitating death occurs on the high seas. See Lacey v.
L.W. Wiggins Airways, Inc., 95 F. Supp. 916, 918 (D. Mass. 1951) ("It
appears that the phrase 'occurring on the high seas' . . . is adjectival
of 'wrongful act, neglect, or default', rather than of 'death'. . . . The
statute is taken to mean, therefore, that the wrongful act, neglect or
default which caused the death must have occurred on the high seas if a
right of action is to exist.").
As subsequent courts have interpreted DOHSA,
however, the statute's application is not limited to negligent acts that
actually occur on the high seas. The Supreme Court has repeatedly noted
that when the death itself occurs on the high seas, DOHSA applies.
Logistics, Inc. v. Tallentire, 477 U.S. 207, 218 (1986) ("Here, admiralty
jurisdiction is expressly provided under DOHSA because the accidental deaths
occurred beyond a marine league from shore.");
Executive Jet Aviation,
Inc. v. City of Cleveland, 409 U.S. 249, 271 n.20 (1972) ("Of course,
under the Death on the High Seas Act, a wrongful-death action arising out
of an airplane crash on the high seas beyond a marine league from the shore
of a State may clearly be brought in a federal admiralty court.")(2);
Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 620 (1978) (noting
that DOHSA creates "a remedy in admiralty for wrongful deaths more than
three miles from shore"). In those cases, unlike in the instant case, the
decedent perished at the site of the accident. But, as
and several Fifth Circuit decisions have made clear, DOHSA also confers
jurisdiction if the decedent is on the high seas at the time he suffers
his mortal injury. See 477 U.S. at 224 ("The reach of DOHSA's substantive
provisions was explicitly limited to actions arising from accidents on
the high seas . . . ."); Lewis v. Timco, Inc., 716 F.2d 1425, 1428
(5th Cir. 1983) (observing that "DOHSA applies to accidents occurring beyond
a marine league from shore");
Smith v. Pan Air Corp., 684 F.2d 1102,
1111 (5th Cir. 1982) ("[T]he simple fact that Kolb's death occurred as
a result of an aircraft crash into the high seas is alone enough to confer
jurisdiction under the DOHSA. . . . The place where the negligence or wrongful
act occurs is not decisive. The place injury occurs and the function the
injured person was performing are more significant.")(3);
In re Dearborn Marine Serv., Inc., 499 F.2d 263, 272 n.17 (5th Cir.
1974) ("DOHSA has been construed to confer admiralty jurisdiction over
claims arising out of airplane crashes on the high seas though the negligence
alleged to have caused the crash occurred on land."); see also Bergen
v. F/V St. Patrick, 816 F.2d 1345, 1348 (9th Cir. 1987) ("[DOHSA] has
been held to refer to the site of an accident on the high seas, not to
where death actually occurs or where the wrongful act causing the accident
may have originated. It is therefore irrelevant that some of the St. Patrick's
crew may have died in territorial waters. It is also irrelevant that decisions
contributing to the St. Patrick's unseaworthiness may have occurred onshore
or within territorial waters. DOHSA applies to plaintiffs' suits because
the St. Patrick's accident causing death occurred on the high seas.") (citations
modified on other grounds, 866 F.2d 318 (9th Cir. 1989).
Taken together, these cases support the proposition that LMS's actions
here invoke DOHSA jurisdiction even though all of LMS's actions and Motts's
death occurred onshore.
Even if the "accident" is defined, not as
Motts's initial injury, but as LMS's wrongful acts, DOHSA still applies
to the instant action. LMS is accused of a series of omissions that aggravated
Motts's injury from treatable to mortal. One series of decisions - LMS's
failure to develop a plan for evacuating seamen injured on the high seas
- occurred prior to the accident. The others - involving LMS's delays in
securing adequate medical treatment for Motts - occurred while Motts was
on the high seas. LMS's continuing negligence ceased the moment Motts arrived
in New Zealand, where LMS saw to it that Motts received appropriate medical
LMS's negligence in failing to establish an
evacuation plan is akin to an airline's inadequate maintenance of an aircraft
engine that ultimately causes the aircraft to crash into the sea. Even
though the negligence occurred onshore, the fact that the accident occurred
on the high seas implicates DOHSA. See In re Dearborn Marine
Serv., Inc., 499 F.2d at 272 n.17. LMS's negligent delays in seeking
treatment all occurred while Motts was at sea, and transpired because of
an at-sea injury to Motts. Under the case law, these facts also suffice
to render DOHSA Motts's exclusive remedy against LMS.
The district court did not cite
the Fifth Circuit's primary interpretation of DOHSA jurisdiction. Instead,
the district court turned to the wrong body of case law - cases governing
admiralty jurisdiction in the absence of a statute such as DOHSA.(5)
But it should be clear that there is only partial overlap between the universe
of cases in which DOHSA confers federal admiralty jurisdiction and the
universe of cases in which general maritime law confers federal admiralty
jurisdiction. See, e.g., Offshore Logistics, 477 U.S. at
218-19 ("Here, admiralty jurisdiction is expressly provided under DOHSA
because the accidental deaths occurred beyond a marine league from shore.
Even without this statutory provision, admiralty jurisdiction is appropriately
invoked here under traditional principles because the accident occurred
on the high seas and in furtherance of an activity bearing a significant
relationship to a traditional maritime activity."). Instructively, the
Court in Executive Jet, 409 U.S. at 268, noted that the federal
courts are to apply the two-pronged test for admiralty jurisdiction "in
the absence of legislation to the contrary." DOHSA qualifies as "legislation
to the contrary." So even if the two-pronged test for admiralty jurisdiction
has not been met, DOHSA confers federal admiralty jurisdiction where the
injury or accident resulting in death occurred while the decedent was at
In order to determine whether DOHSA governs,
the district court applied
Executive Jet's "locality-plus" test,
which initially calls for a determination of where the wrongful act occurred.
25 F. Supp.2d at 774-75. The district court held that LMS's negligence
"is not of a type that the Court can pinpoint to a specific location on
the high seas." Id. at 775. The district court identified LMS's
injury to Motts as the moment "LMS's negligence aggravated the decedent's
first injury from merely painful and immobilizing to mortal." Id.
It then held that this worsening may have occurred at any moment between
the first injury at sea and decedent's death in Houston. Because making
such a "metaphysical" determination was "beyond a court's abilities" the
district court fixed the moment of fatal worsening at the time of decedent's
death. Id. & n.3. Since Motts died onshore, the district court
held that Motts's injury did not implicate DOHSA under the locality prong
of Executive Jet. But by the time decedent arrived in Houston, LMS's
negligent behavior had ceased. Any LMS negligence must have occurred while
Motts was still at sea or in New Zealand's territorial waters, where DOHSA
would still apply. See Sanchez v. Loffland Bros. Co., 626
F.2d 1228, 1230 & n.4. (5th Cir. Unit A 1980). The district court's
determination that Motts's actionable injury occurred onshore was therefore
This Circuit's precedents look to the location
of the accident in determining whether DOHSA applies. True, none of the
DOHSA cases cited above involve post-accident negligence occurring while
the victim was still at sea.(8) That said,
as long as the decedent is still on the high seas at the time the negligence
begins, DOHSA must apply to post-accident negligence.(9)
Indeed, such a focus on the decedent's location at the time of the injury,
rather than the tortfeasor's location, avoids many of the "metaphysical
uncertainties" that so troubled the district court.
In light of our conclusion that DOHSA applies
to the instant suit, the district court's award of non-pecuniary damages
to Appellee was erroneous.(10)
Appellants argue that the district court clearly
erred by failing to find that Motts was contributorily negligent. Appellants'
argument centers on Motts's alleged use of insufficient assistants in moving
the cylinder head and his failure to secure the cylinder head prior to
the ship's roll.
Appellants submit that Captain Stalkus ordered
Motts to use deck department personnel to assist him with the heavy lifting
that the repair would require. While Stalkus indeed testified to that effect,
the district court obviously did not find his testimony credible, based
on the inconsistencies contained therein. Such a credibility finding was
certainly within the district court's discretion. And it does sound implausible
that Motts, a very experienced and skilled seaman, would have violated
a direct order so brazenly. The district court was therefore free to disregard
Stalkus's testimony and conclude that Motts did not violate a direct order
to utilize additional crew members in the repair. That is precisely what
the district court did when it chose not to believe Stalkus's story, and
found that the "Captain also instructed Mr. Motts to utilize deck department
personnel to assist with the rigging and securing of the head, piston and
liner, if required." 50 F. Supp.2d at 638 (emphasis added). The
district court's factual determination was not clearly erroneous.
Although Appellants presented some credible
evidence suggesting that Motts was negligent by failing to secure the cylinder
head, Appellee's evidence suggesting that Motts was not negligent is strong.
The district court credited the statements of the two surviving witnesses
to the accident, who both stated that the vessel rolled "before the head
could be lashed down," suggesting that Motts was planning to fasten the
cylinder head at the time of the accident. Id. at 638. The court
found the ship's roll unforeseeable, given the weather conditions at the
time. See id. The court reasonably inferred that Motts assumed
the head cylinder's sheer weight would prevent it from sliding in the event
of a roll. See id. And the court credited the expert testimony
of two witnesses, both of whom described Motts's seamanship practices in
glowing terms. See id. at 642. Given this evidence, it was
certainly reasonable for the district court to determine that Motts was
not contributorily negligent. The district court made a difficult judgment
call, but one that was well within the fact finder's discretion.
Appellant CGL takes issue with the district
court's finding that it failed to render timely, adequate cure. Appellant
pins its hopes on the district court's determination that it was reasonable
for CGL to rely on the medical advice dispensed by GWU. GWU did not recommend
that Motts be evacuated from the Green Wave. On the other hand, the district
court found that Captain Stalkus, a CGL agent, knowingly withheld highly
pertinent information from GWU, including information about Motts's prior
cardiovascular difficulties and surgeries, the immediate proximity of a
helicopter-equipped coast guard vessel, and the availability of an x-ray
machine and nurse practitioner on the Polar Star. The district court also
found that Stalkus disregarded GWU's advice that Motts be x-rayed as soon
CGL's argument on this issue does not come
close to warranting a reversal. Given the current state of medical technology,
the diagnosis of a doctor who is assessing a patient's condition from a
location thousands of miles away depends on the accuracy of the information
conveyed to that doctor. When a ship's master withholds known, material,
medical information from a diagnosing physician, it is no defense to say
that the master reasonably relied on the physician's instructions.
For the foregoing reasons, we AFFIRM the judgment
of the district court with respect to CGL, and REVERSE the district court's
award of non-pecuniary damages assessed against LMS.(11)
We REMAND for an entry of judgment consistent with this opinion.
1. Circuit Judge of the
Ninth Circuit, sitting by designation.
2. Executive Jet
was later extended to apply to accidents involving vessels, as well as
accidents involving aircraft. See Foremost Ins. Co. v. Richardson,
457 U.S. 668, 674 (1982).
3. A recent law review
Note concluded that the Smith court's conclusion "that admiralty
jurisdiction could exist under DOHSA without a maritime nexus" is consistent
with DOHSA's framework and purpose. See Russell J. Smith, Note,
Giveth and the Fifth Circuit Taketh Away: Post Executive Jet Viability
of the Admiralty Extension Act, 6 U.S.F. Mar. L.J. 609, 618 (1994).
4. Motts's decision to
seek care in the United States may have been reasonable, as the district
court found, but LMS cannot be held responsible if it was that final delay
in undergoing surgery that proximately caused Motts's death.
5. In Brown v. Eurocopter,
S.A., 38 F. Supp.2d 515 (S.D. Tex. 1999), Judge Kent identified two
competing schools of thought on when DOHSA applies. Either "DOHSA supplies
admiralty jurisdiction independent of any doctrinal test for the existence
of such jurisdiction," id. at 517, or courts are to apply "traditional
maritime [jurisdiction] analysis to determine whether DOHSA applies," id.
at 518. But Brown cites Smith v. Pan Air as its authority
for the latter view, and a careful reading of Smith demonstrates
that it never embraces such a view. Rather, Smith notes that courts
have interpreted DOHSA to apply to some cases outside of 42 U.S.C. §
761's plain meaning, in addition to those cases clearly covered by §
761's text. In any event, the Supreme Court cases cited above certainly
establish that the first school of thought identified in Brown is
the correct view and that the second school of thought identified in Brown
6. While we hold that DOHSA
does expand federal admiralty jurisdiction, we note that DOHSA does not
appear to confer federal question jurisdiction on the courts. SeePain
v. United Techs. Corp., 637 F.2d 775, 781 (D.C. Cir. 1980);
v. Pozos Int'l Drilling Servs., Inc., 682 F. Supp. 94, 100 (S.D. Tex.
1987); William C. Brown, III, Problems Arising from the Intersection
of Traditional Maritime Law and Aviation Death and Personal Injury Liability,
68 Tul. L. Rev. 577, 580 (1994).
7. We do not agree with
the district court's "moment of consummation" approach. As we explain herein,
the district court's attention should have been drawn to Motts's location
when he was injured by the piston, not the moment at which Motts's injury
went from being bad to inevitably fatal.
8. One district court case
concludes that whether the negligence occurs pre- or post-accident is not
relevant. See Moyer v. Klosters Rederi, 645 F. Supp. 620,
628 (S.D. Fla. 1986) (Plaintiff's allegations that Defendants acted negligently
both before and after the snorkeling expedition do not defeat admiralty
jurisdiction. The key operative fact, disputed by none of the parties,
is that decedent's illness commenced . . . while he was on the high seas,
as defined by DOHSA . . . ."). Unfortunately, Moyer proceeds to
make the same mistake made by the district court here, concluding that
Jet's two-pronged test must also be satisfied in order for DOHSA jurisdiction
9. DOSHA is not implicated
by post-accident negligence that begins after the victim leaves the high
seas. For example, had Motts died as the result of medical malpractice
in Houston, Appellee's state-law suit against his doctor would not have
been preempted by DOHSA.
10. Given our conclusion
that Appellee is not entitled to punitive damages as a matter of law, three
issues on appeal raised by Appellants (concerning the propriety of the
district court's decision to hold CGL jointly and severally liable for
punitive damages with LMS, the availability of prejudgment interest on
the punitive damages award, and whether the district court's decision to
award punitive damages was clearly erroneous) become moot.
11. Specifically, we vacate
the awards of $75,000 for Appellee's past mental anguish; $25,000 for past
loss of society; $200,000 for future mental anguish; $75,000 for future
loss of society; and $250,000 in punitive damages. We affirm the awards
of $225,000 for physical pain and mental anguish sustained by Neville
Motts; $50,686 for the past loss of care, maintenance, and support; $400,000
for the future loss of care, maintenance, and support; and the award of
prejudgment interest on the remaining damages. See 50 F. Supp.2d