ON PETITIONS FOR REHEARING
(Opinion March 21, 1975, 5 Cir., 1975, 510 F.2d 242).
Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.
JOHN R. BROWN, Chief Judge:
Defendant Sea Drilling Corporation (Seadrill) has made a substantial attack on our implicit holding that where death occurred due to injuries on the jurisdictional waters of the Death on the High Seas Act Gaudet and Moragne allow recovery for items historically not permit[794] ted under the strictures of DOHSA’s stringent pecuniary loss test.1
In passing on this reprise we take our text from The Sea Gull2 from the pen of Judge Chase:
“[I]t better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.”
Convinced that those “established and inflexible rules” that would deny this recovery cannot stand in the face of Moragne, Gaudet or reason, we adhere.
More particularly, Seadrill’s attack is directed to two items of recovery — conscious pain and suffering, item (7) in our original opinion3 and loss of society, item (8). Their point seems to be that, since in the past neither has been recoverable under DOHSA standing alone, they should not be recoverable now. If DOHSA continued to hold sway as the exclusive remedy for death more than a marine league from shore Seadrill would be right but the High Seas are no longer DOHSA’s Mare Nostrum.
Seadrill’s fundamental objection to item (7) conscious pain and suffering in[795] volves the distinction between survival recovery and recovery for wrongful death.4 Traditionally, conscious pain and suffering has been allowed as an item of recovery only in a survival action as distinguished from an action for wrongful death. This is logical because a survival action compensates the decedent’s estate for damages incurred by him personally while wrongful death recovery compensates the decedent’s dependents and other survivors for the damages they incurred due to the death. Seadrill contends that because DOHSA, by its express terms, creates only a cause of action for wrongful death5 and because DOHSA is the exclusive remedy for death on the High Seas, no recovery can be allowed for pain and suffering.
One answer to this contention is that proposed by the First Circuit Court of Appeals in Barbe v. Drummond, 1 Cir., 1974, 507 F.2d 794. The Barbe Court reasoned that the spirit of Moragne was to insure the uniformity of the maritime law by remedying “the non-existence of a federal cause of action and thereby avoiding] the problem of making plaintiff’s recovery turn on the existence of a state survival statute . . ..’’Id. at 799-800. Therefore, “there is a federal maritime survival action, created by decisional law, for pain and suffering prior to death.” Id. at 799. So far we agree. But where our course diverges from that of the Barbe Court is that we do not hold, as did they, that “the measure of damages for wrongful death provided by DOHSA, namely ‘pecuniary loss’, controls” on the High Seas. This brings us to (7), loss of society.
Loss of society is clearly a wrongful death item of recovery. The loss — and the damages — belongs to the dependents not to the decedent. And yet loss of society is not pecuniary. Therefore, this item has never been recoverable under DOHSA standing alone. Seadrill would have us hold that because DOHSA is the exclusive remedy for wrongful death on the High Seas no non-pecuniary wrongful death item can be recovered within its jurisdictional waters. The Barbe Court would allow conscious pain and suffering under the “federal maritime survival action, created by decisional law” but would deny loss of society for the same reason.
But we, our confidence bolstered by eminent authority,6 read Gaudet less restrictively than the First Circuit or Sea-drill. In upholding the grant of damages for loss of society the Court in Gaudet rejected the pecuniary loss test of DO-HSA as inconsistent with “the humanitarian policy of the maritime law to show ‘special solicitude’ for those who are injured within its jurisdiction.” 414 [796] U.S. at 588, 94 S.Ct. at 816, 39 L.Ed.2d at 23, 1973 AMC at 2584. Nowhere, does the Court indicate that the fact that Gaudet’s injury occurred in territorial waters rather than the High Seas is critical. The dissenters — and it does not seem unfair to assume that they knew from what they were dissenting — clearly indicate their belief that the holding in Gaudet had abrogated the pecuniary loss standard of DOHSA. Id. at 605-07, 94 S.Ct. at 825-826, 39 L.Ed.2d at 32-34, 1973 AMC at 2597-99.
We are encouraged in our view by Gilmore & Black,
Thus Gaudet, if it is to be taken as representing the settled view of the majority of the Supreme Court, amply confirms our comment (written before Gaudet had been decided) that the Moragne case had “reduced both DOHSA and the FELA death provisions incorporated in the Jones Act to the level of nonstatutory Restatements.” Under Gaudet, indeed, all the state statutes seem to have joined the federal statutes on the scrap heap. The maritime law death remedy, as explicated in Gaudet, is now more comprehensive and provides for a greater recovery than had previously been available under the federal death statutes or under most state death statutes.
The Law of Admiralty 369-70 (2d ed., 1975).7 And
From Justice Harlan’s discussion of the “anomalies” which the Moragne decision was designed to avoid, several conclusions clearly follow. The Moragne remedy covers deaths within territorial waters as well as deaths on the high seas. The remedy provides recovery for deaths caused by negligence as well as for deaths caused by unseaworthiness although in the latter case the decedent must have been „ a person (e. g., a Jones Act seaman) entitled to the warranty of seaworthiness. As to deaths within state territorial waters, the question whether a state wrongful death statute affords recovery for unseaworthiness is no longer relevant since the remedy is provided by maritime law.
Id. at 368.
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ON PETITIONS FOR REHEARING
(Opinion March 21, 1975, 5 Cir., 1975, 510 F.2d 242).
Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.
JOHN R. BROWN, Chief Judge:
Defendant Sea Drilling Corporation (Seadrill) has made a substantial attack on our implicit holding that where death occurred due to injuries on the jurisdictional waters of the Death on the High Seas Act Gaudet and Moragne allow recovery for items historically not permit[794] ted under the strictures of DOHSA’s stringent pecuniary loss test.1
In passing on this reprise we take our text from The Sea Gull2 from the pen of Judge Chase:
“[I]t better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.”
Convinced that those “established and inflexible rules” that would deny this recovery cannot stand in the face of Moragne, Gaudet or reason, we adhere.
More particularly, Seadrill’s attack is directed to two items of recovery — conscious pain and suffering, item (7) in our original opinion3 and loss of society, item (8). Their point seems to be that, since in the past neither has been recoverable under DOHSA standing alone, they should not be recoverable now. If DOHSA continued to hold sway as the exclusive remedy for death more than a marine league from shore Seadrill would be right but the High Seas are no longer DOHSA’s Mare Nostrum.
Seadrill’s fundamental objection to item (7) conscious pain and suffering in[795] volves the distinction between survival recovery and recovery for wrongful death.4 Traditionally, conscious pain and suffering has been allowed as an item of recovery only in a survival action as distinguished from an action for wrongful death. This is logical because a survival action compensates the decedent’s estate for damages incurred by him personally while wrongful death recovery compensates the decedent’s dependents and other survivors for the damages they incurred due to the death. Seadrill contends that because DOHSA, by its express terms, creates only a cause of action for wrongful death5 and because DOHSA is the exclusive remedy for death on the High Seas, no recovery can be allowed for pain and suffering.
One answer to this contention is that proposed by the First Circuit Court of Appeals in Barbe v. Drummond, 1 Cir., 1974, 507 F.2d 794. The Barbe Court reasoned that the spirit of Moragne was to insure the uniformity of the maritime law by remedying “the non-existence of a federal cause of action and thereby avoiding] the problem of making plaintiff’s recovery turn on the existence of a state survival statute . . ..’’Id. at 799-800. Therefore, “there is a federal maritime survival action, created by decisional law, for pain and suffering prior to death.” Id. at 799. So far we agree. But where our course diverges from that of the Barbe Court is that we do not hold, as did they, that “the measure of damages for wrongful death provided by DOHSA, namely ‘pecuniary loss’, controls” on the High Seas. This brings us to (7), loss of society.
Loss of society is clearly a wrongful death item of recovery. The loss — and the damages — belongs to the dependents not to the decedent. And yet loss of society is not pecuniary. Therefore, this item has never been recoverable under DOHSA standing alone. Seadrill would have us hold that because DOHSA is the exclusive remedy for wrongful death on the High Seas no non-pecuniary wrongful death item can be recovered within its jurisdictional waters. The Barbe Court would allow conscious pain and suffering under the “federal maritime survival action, created by decisional law” but would deny loss of society for the same reason.
But we, our confidence bolstered by eminent authority,6 read Gaudet less restrictively than the First Circuit or Sea-drill. In upholding the grant of damages for loss of society the Court in Gaudet rejected the pecuniary loss test of DO-HSA as inconsistent with “the humanitarian policy of the maritime law to show ‘special solicitude’ for those who are injured within its jurisdiction.” 414 [796] U.S. at 588, 94 S.Ct. at 816, 39 L.Ed.2d at 23, 1973 AMC at 2584. Nowhere, does the Court indicate that the fact that Gaudet’s injury occurred in territorial waters rather than the High Seas is critical. The dissenters — and it does not seem unfair to assume that they knew from what they were dissenting — clearly indicate their belief that the holding in Gaudet had abrogated the pecuniary loss standard of DOHSA. Id. at 605-07, 94 S.Ct. at 825-826, 39 L.Ed.2d at 32-34, 1973 AMC at 2597-99.
We are encouraged in our view by Gilmore & Black,
Thus Gaudet, if it is to be taken as representing the settled view of the majority of the Supreme Court, amply confirms our comment (written before Gaudet had been decided) that the Moragne case had “reduced both DOHSA and the FELA death provisions incorporated in the Jones Act to the level of nonstatutory Restatements.” Under Gaudet, indeed, all the state statutes seem to have joined the federal statutes on the scrap heap. The maritime law death remedy, as explicated in Gaudet, is now more comprehensive and provides for a greater recovery than had previously been available under the federal death statutes or under most state death statutes.
The Law of Admiralty 369-70 (2d ed., 1975).7 And
From Justice Harlan’s discussion of the “anomalies” which the Moragne decision was designed to avoid, several conclusions clearly follow. The Moragne remedy covers deaths within territorial waters as well as deaths on the high seas. The remedy provides recovery for deaths caused by negligence as well as for deaths caused by unseaworthiness although in the latter case the decedent must have been „ a person (e. g., a Jones Act seaman) entitled to the warranty of seaworthiness. As to deaths within state territorial waters, the question whether a state wrongful death statute affords recovery for unseaworthiness is no longer relevant since the remedy is provided by maritime law.
Id. at 368.
That the Moragne remedy has replaced — or at least augmented — DOHSA seems even more correct to us when the alternative is examined. The Barbe position that the DOHSA standard still carries the day on the High Seas adds another anomaly to the three that Mr. Justice Harlan hoped to lay to rest in Moragne.8 Simply stated, this fourth anomaly is that under the Barbe holding a claimant under substantive maritime [797] law who brought suit at law (either the law side of the federal district court or the state court) under the Savings to Suitors Clause would be entitled to the full panoply of recovery under Moragne while those unfortunates who could not meet the requisites of diversity jurisdiction9 or get personal jurisdiction in either the state or federal court,10 would be restricted to the DOHSA pecuniary loss. This is because as Mr. Justice Harlan suggested in Moragne,11 the widely assumed exclusively of DOHSA does not mean that it is the only remedy. What it does mean is that DOHSA suits must be brought in admiralty — “a suit for damages in the district courts of the United States, in admiralty * * *.” 46 U.S.C.A. § 761.
As Justice Harlan put it, “no intention appears that the Act have the effect of foreclosing any nonstatutory federal remedies that might be found appropriate to effectuate the policies of general maritime law.” 398 U.S. at 400, 90 S.Ct. at 1787, 26 L.Ed.2d at 356, 1970 AMC at 986.
Where this leaves us is that the alternative to our holding is to impose an unwieldy trifid system on recovery for maritime deaths, [i] If the death occurred within territorial waters, recovery could be had under the Moragne wrongful death-survival action, [ii] If the death occurred on the High Seas and the unwary pleader invoked the magical provisions of F.R.Civ.P. 9(h), or in the unlikely event that he could not obtain jurisdiction in any state court, full survival recovery could be had under the decisional law-created federal maritime survival action but wrongful death recovery would be limited to DOHSA’s “pecuniary loss.” And [iii] the legal helmsman with a closer eye on the telltale — for the same death on the High Seas — could file his [798] action at law and under substantive maritime principles would recover all that Moragne and Gaudet allow.
This is not uniformity. It is its lack. And we cannot accept it. It is time that the dead hand of The Harrisburg —whether in the courts or on the elbow of the congressional draftsmen of DO-HSA — follow the rest of the hulk to an honorable rest in the briney deep.
No longer does one need a state remedy. No longer does one need a state court, or The Admiralty as a Court, or DOHSA as a remedy. There is a federal maritime cause of action for death on navigable waters — any navigable waters — and it can be enforced in any court.
Seadrill’s petition for rehearing is denied. The petition for rehearing of Seadrill’s co-defendant, Continental Oil, and of Mrs. Law, the plaintiff, are also denied for the reasons stated in our original opinion.
No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.