Sea-Land Services, Inc. v. Gaudet

414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9, 1974 U.S. LEXIS 43

Opinions

Mr. Justice Brennan

delivered the opinion of the Court.

Moragne v. States Marine Lines, 398 U. S. 375 (1970), overruling The Harrisburg, 119 U. S. 199 (1886), held that an action for wrongful death based on unseaworthiness is maintainable under federal maritime law, but left the shaping of the new nonstatutory action to future cases. The question in this case is whether the widow of a longshoreman may maintain such an action for the wrongful death of her husband — alleged to have resulted from injuries suffered by him while aboard a vessel in navigable waters — after the decedent recovered damages in his lifetime for his injuries.

Respondent's husband suffered severe injuries while working as a longshoreman aboard petitioner’s vessel, the S. S. Claiborne, in Louisiana navigable waters. He recovered $140,000 for his permanent disability, physical agony, and loss of earnings in an action based on unseaworthiness,¹ but died shortly after the action was terminated. Respondent brought this wrongful-death action in the District Court for the Eastern District of Louisiana for damages suffered by her. Based on her husband’s recovery, the District Court dismissed the widow’s suit on grounds of res judicata and failure to state a claim. The Court of Appeals for the Fifth Circuit reversed, holding that Moragne gave “Mrs. Gaudet ... a compen-sable cause of action for Mr. Gaudet’s death wholly apart from and not extinguished by the latter’s recovery for his personal injuries . . . .” 463 F. 2d 1331, 1332 (1972). We granted certiorari, 411 U. S. 963 (1973), and now affirm.

I

The harshness of the Harrisburg rule that in the absence of a statute, there is no maritime action for wrongful death, was only partially relieved by enactment of federal and state wrongful-death statutes.² The Death on the High Seas Act, 41 Stat. 537, 46 U. S. C. §§ 761-768, created a wrongful-death action for death outside the three-mile limit.³ The Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, incorporating the Federal Employers’ Liability Act, 35 Stat. 65, 45 U. S. C. §§ 51-60, established such an action based on negligence for the wrongful death of a seaman regardless of the situs of the wrong; but otherwise, wrongful-death actions for deaths occurring on navigable waters within the three-mile territorial waters of a State depended upon whether the State had enacted a wrongful-death statute and, if so, whether the statute permitted recovery.⁴

Moragne reflected dissatisfaction with this state of the law that illogically and unjustifiably deprived the dependents of many maritime death victims of an adequate remedy for their losses. Three clearly unjust consequences were of particular concern:

“The first of these is simply the discrepancy produced whenever the rule of The Harrisburg holds sway: - within territorial waters, identical conduct violating federal law (here the furnishing of an unseaworthy vessel) produces liability if the victim is merely injured, but frequently not if he is killed. . . .

“The second incongruity is that identical breaches of the duty to provide a seaworthy ship, resulting in death, produce liability outside the three-mile limit — since a claim under the Death on the High Seas Act may be founded on unseaworthiness, see Kernan v. American Dredging Co., 355 U. S. 426, 430 n. 4 (1958)—but not within the territorial waters of a State whose local statute excludes unseaworthiness claims. . . .

“The third, and assertedly the ‘strangest’ anomaly is that a true seaman — that is, a member of a ship’s company, covered by the Jones Act — is provided no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, to whom the duty of seaworthiness was extended only because he performs work traditionally done by seamen, does have such a remedy when allowed by a state statute (footnote omitted).” 398 U. S., at 395-396.

In overruling The Harrisburg, Moragne ended these anomalies by the creation of a uniform federal cause of action for maritime death, designed to extend to the dependents of maritime wrongful-death victims admiralty’s “special solicitude for the welfare of those men who under [take] to venture upon hazardous and unpredictable sea voyages.” Id., at 387. Our approach to the resolution of the issue before us must necessarily be consistent with the extension of this “special solicitude” to the dependents of the seafaring decedent.

Petitioner, Sea-Land Services, Inc. (Sea-Land), would attach no significance to this extension in shaping the maritime wrongful-death remedy. It argues that the wrongful-death remedy should recognize no loss independent of the decedent’s claim for his personal injuries, and therefore that respondent had a wrongful-death remedy only “in the event Gaudet failed to prosecute [his own claim] during his lifetime.” Brief for Petitioner 6. But Moragne had already implicitly rejected that argument; for we there recognized that a single tortious act might result in two distinct, though related harms, giving rise to two separate causes of action: “in the case of mere injury, the person physically harmed is made whole for his harm, while in the case of death, those closest to him- — usually spouse and children — seek to recover for their total loss of one on whom they depended.” Id., at 382. Thus, Moragne created a true wrongful-death remedy- — -founded upon the death itself and independent of any action the decedent may have had for his own personal injuries.⁵ Because the respondent’s suit involves a different cause of action, it is not precluded by res judicata. For res judicata operates only to bar

“repetitious suits involving the same cause of action. [The bar] rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound 'not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.' Cromwell v. County of Sac, 94 U. S. 351, 352. The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. See Von Moschzisker, 'Res Judicata,' 38 Yale L. J. 299; Restatement of the Law of Judgments, §§ 47, 48.” Commissioner v. Sunnen, 333 U. S. 591, 597 (1948).

To be sure, a majority of courts interpreting state and federal wrongful-death statutes have held that an action for wrongful death is barred by the decedent’s recovery for injuries during his lifetime. But the bar does not appear to rest in those cases so much upon principles of res judicata or public policy as upon statutory limitations on the wrongful-death action. As one authority has noted, "[t]he fact that all civil remedies for wrongful death derive from statute has important consequences. Since the right was unknown to common law, the legislatures which created the right were free to impose restrictions upon it.” 2 Harper & James § 24.1, p. 1285. Thus, England’s Lord Campbell’s Act,⁶ the first wrongful-death statute, permits recovery “whensoever the Death of a Person shall be caused by [the] wrongful Act... [of another] and the Act... is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover Damages in respect thereof . . . .” Early English cases interpreting the Act held that this language conditioned wrongful-death recovery upon the existence of an actionable cause of the decedent at his death; ⁷ if the deceased had reduced his claim to judgment and settled with or released his tortfeasor, and therefore up to the time he died could not have maintained a further action for his injuries, his dependents could have no cause of action for his wrongful death. Since Lord Campbell’s Act became the prototype of American wrongful-death statutes, most state statutes contained nearly identical language and have been similarly interpreted by state courts.⁸ Though the federal wrongful-death statutes do not contain the same controversial language, the FELA, at least, has been held to be “essentially identical with” Lord Campbell’s Act, Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 69 (1913), and therefore similar restrictions have been placed on FELA wrongful-death recovery. Mellon v. Goodyear, 277 U. S. 335, 345 (1928).⁹

Moragne, on the other hand, requires that the shape of the new maritime wrongful-death remedy (not a statutory creation but judge-made, see The Tungus v. Skovgaard, 358 U. S. 588, 611 (1959) (opinion of Brennan, J.)) be guided by the principle of maritime law that “certainly it 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,” The Sea Gull, 21 F. Cas. 909 (No. 12,578) (C. C. Md. 1865), quoted in Moragne, 398 U. S., at 387. Since the policy underlying the remedy is to insure compensation of the dependents for their losses resulting from the decedent's death, the remedy should not be precluded merely because the decedent, during his lifetime, is able to obtain a judgment for his own personal injuries. No statutory language or “established and inflexible rules” of maritime law require a contrary conclusion.¹⁰

II

Sea-Land argues that, if dependents are not prevented from bringing a separate cause of action for wrongful death in cases where the decedent has already received a judgment for his personal injuries, then necessarily it will be subject to double liability. In order to evaluate this argument it is necessary first to identify the particular harms suffered by the dependents, for which the maritime wrongful-death remedy permits recovery of damages. In identifying these compensable harms, we are not without useful guides; for in Moragne we recognized that with respect to “particular questions of the measure of damages, the courts will not be without persuasive analogy for guidance. Both the Death on the High Seas Act and the numerous state wrongful-death acts have been implemented with success for decades. The experience thus built up counsels that a suit for wrongful death raises no problems unlike those that have long been grist for the judicial mill.” 398 U. S., at 408. Our review of those authorities, and the policies of maritime law, persuade us that, under the maritime wrongful-death remedy, the decedent’s dependents may recover damages for their loss of support, services, and society, as well as funeral expenses.

Recovery for loss of support has been universally recognized,¹¹ and includes all the financial contributions that the decedent would have made to his dependents had he lived. Similarly, the overwhelming majority of state wrongful-death acts¹² and courts interpreting the Death on the High Seas Act¹³ have permitted recovery for the monetary value of services the decedent provided and would have continued to provide but for his wrongful death.¹⁴ Such services include, for example, the nurture, training, education, and guidance that a child would have received had not the parent been wrongfully killed.¹⁵ Services the decedent performed at home or for his spouse are also compensable.¹⁶

Compensation for loss of society, however, presents a closer question. The term “society” embraces a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort, and protection.¹⁷ Unquestionably, the deprivation of these benefits by wrongful death 4s a grave loss to the decedent’s dependents. Despite this fact, a number of early wrongful-death statutes were interpreted by courts to preclude recovery for these losses on the ground that the statutes were intended to provide compensation only for “pecuniary loss,” and that the loss of society is not such an economic loss.¹⁸ Other wrongful-death statutes contain express language limiting recovery to pecuniary losses;¹⁹ for example, the Death on the High Seas Act limits recovery to “a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought . . . ,” 46 U. S. C. § 762 (emphasis added), and consequently has been construed to exclude recovery for the loss of society.²⁰

A clear majority of States, on the other hand, have rejected such a narrow view of damages, and, either by express statutory provision or by judicial construction, permit recovery for loss of society.²¹ This expansion of damages recoverable under wrongful-death statutes to include loss of society has led one commentator to observe that “[w]hether such damages are classified as 'pecuniary/ or recognized and allowed as non-pecuniary, the recent trend is unmistakably in favor of permitting such recovery.” Speiser 218. Thus, our decision to permit recovery for loss of society aligns the maritime wrongful-death remedy with a majority of state wrongful-death statutes.²² But in any event, our decision is compelled if we are to shape the remedy to comport with the humanitarian policy of the maritime law to show “special solicitude” for those who are injured within its jurisdiction.²³

Objection to permitting recovery for loss of society often centers upon the fear that such damages are somewhat speculative and that factfinders will return excessive verdicts.²⁴ We were not unaware of this objection in Moragne, where we said:

“[O]ther courts have recognized that calculation of the loss sustained by dependents or by the estate of the deceased, which is required under most present wrongful-death statutes . . . does not present difficulties more insurmountable than assessment of damages for many nonfatal personal injuries.” 398 U. S., at 385.

For example, juries are often called upon to measure damages for pain and suffering, mental anguish in disfigurement cases, or intentional infliction of emotional harm. In fact, since the 17th century, juries have assessed damages for loss of consortium — which encompasses loss of society — in civil actions brought by husbands whose wives have been negligently injured.²⁵ More recently, juries have been asked to measure loss of consortium suffered by wives whose husbands have been negligently harmed.²⁶ Relying on this history, the Florida Supreme Court recognized as early as 1899 that the damages for loss of society recovered by a wife for the wrongful death of her husband were “no more fanciful or speculative than the frugality, industry, usefulness, attention and tender solicitude of a wife [all of which a husband might recover at common law in an action for consortium], and the one can be compensated [as easily] by that simple standard of pecuniary loss ... as the other.” Florida C. & P. R. Co. v. Foxworth, 41 Fla. 1, 73, 25 So. 338, 348.

We are confident that the measure of damages for loss of society in a maritime wrongful-death action can “be left to turn mainly upon the good sense and deliberate judgment of the tribunal assigned by law to ascertain what is a just compensation for the injuries inflicted.” The City of Panama, 101 U. S. 453, 464 (1880). As in all damages awards for tortious injury, “[insistence on mathematical precision would be illusory and the judge or juror must be allowed a fair latitude to make reasonable approximations guided by judgment and practical experience,” Whitaker v. Blidberg Rothchild Co., 296 F. 2d 554, 555 (CA4 1961). Moreover, appellate tribunals have amply demonstrated their ability to control excessive awards, see, e. g., Moore-McCormack Lines, Inc. v. Richardson, 295 F. 2d 583 (CA2 1961); Dugas v. National Aircraft Corp., 438 F. 2d 1386 (CA3 1971).

Finally, in addition to recovery for loss of support, services, and society, damages for funeral expenses may be awarded under the maritime wrongful-death remedy in circumstances where the decedent’s dependents have either paid for the funeral or are liable for its payment. A majority of States provided for such recovery under their wrongful-death statutes.²⁷ Furthermore, although there is a conflict over whether funeral expenses are com-pensable under the Death on the High Seas Act, compare The Culberson, 61 F. 2d 194 (CA3 1932), with Moore v. The O S Fram, 226 F. Supp. 816 (SD Tex. 1963), aff’d, sub nom. Wilhelm Seafoods, Inc. v. Moore, 328 F. 2d 868 (CA5 1964), it is clear that funeral expenses were permitted under the general maritime law prior to The Harrisburg, see, e. g., Hollyday v. The David Reeves, 12 F. Cas. 386 (No. 6,625) (Md. 1879). We therefore find no persuasive reason for not following the earlier admiralty rule and thus hold that funeral expenses are compensable.²⁸

Turning now to Sea-Land’s double-liability argument, we note that, in contrast to the elements of damages which we today hold may be recovered in a maritime wrongful-death action, the decedent recovered damages only for his loss of past and future wages, pain and suffering, and medical and incidental expenses. Obviously, the decedent’s recovery did not include damages for the dependents’ loss of services or of society, and funeral expenses. Indeed, these losses — unique to the decedent’s dependents — could not accrue until the decedent’s death. Thus, recovery of damages for these losses in the maritime wrongful-death action will not subject Sea-Land to double liability or provide the dependents with a windfall.

There is, however, an apparent overlap between the decedent’s recovery for loss of future wages and the dependents’ subsequent claim for support.²⁹ In most instances, the dependents’ support will derive, at least in part, from the decedent’s wages. But, when a tortfeasor has already fully compensated the decedent, during his lifetime, for his loss of future wages, the tortfeasor should not be required to make further compensation in a subsequent wrongful-death suit for any portion of previously paid wages. Any potential for such double liability can be eliminated by the application of familiar principles of collateral estoppel to preclude a decedent’s dependents from attempting to relitigate the issue of the support due from the decedent’s future wages.³⁰

Collateral estoppel applies

“where the second action between the same parties is upon a different cause or demand .... In this situation, the judgment in the prior action operates as an estoppel, not as to matters which might have been litigated and determined, but 'only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.' Cromwell v. County of Sac, [94 U. S. 351,] 353. And see Russell v. Place, 94 U. S. 606; Southern Pacific R. Co. v. United States, 168 U. S. 1, 48; Mercoid Corp. v. Mid-Continent Co., 320 U. S. 661, 671. Since the cause of action involved in the second proceeding is not swallowed by the judgment in the prior suit, the parties are free to litigate points which were not at issue in the first proceeding, even though such points might have been tendered and decided at that time. But matters which were actually litigated and determined in the first proceeding cannot later be relitigated.” Commissioner v. Sunnen, 333 U. S., at 597-598.

And while the general rule is that nonparties to the first action are not bound by a judgment or resulting determination of issues, see Blonder-Tongue v. University Foundation, 402 U. S. 313, 320-327 (1971), several exceptions exist. The pertinent exception here is that nonparties may be collaterally estopped from relitigating issues necessarily decided in a suit brought by a party who acts as a fiduciary representative for the beneficial interest of the nonparties.³¹ In such cases, “the beneficiaries are bouhd by the judgment with respect to the interest which was the subject of the fiduciary relationship ; they are . . . bound by the rules of collateral estop-pel in suits upon different causes of action,” F. James, Civil Procedure § 11.28, p. 592 (1965).

Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery “on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury,” 2 Harper & James § 24.6, pp. 1293-1294 (emphasis in original).³² Thus, when a decedent brings his own personal-injury action during his lifetime and recovers damages for his lost wages he acts in a fiduciary capacity to the extent that he represents his dependents' interest in that portion of his prospective earnings which, but for his wrongful death, they had a reasonable expectation of his providing for their support. Since the decedent’s recovery of any future wages will normally be dependent upon his fully litigating that issue, we need not fear that applying principles of collateral estoppel to pre-elude the decedent’s dependents’ claim for a portion of those future wages will deprive the dependents of their day in court.

The judgment of the Court of Appeals is

Affirmed.

1

The jury reduced a verdict of $175,000 by 20% because of decedent’s contributory negligence.

2

Wrongful-death statutes are to be distinguished from survival statutes. The latter have been separately enacted to abrogate the common-law rule that an action for tort abated at the death of either the injured person or the tortfeasor. Survival statutes permit the deceased’s estate to prosecute any claims for personal injury the deceased would have had, but for his death. They do not permit recovery for harms suffered by the deceased’s family as a result of his death. See Michigan C. B. Co. v. Vreeland, 227 U. S. 59 (1913); Schumacher, Rights of Action Under Death and Survival Statutes, 23 Mich. L. Rev. 114 (1924) (hereafter Schumacher); Winfield, Death as Affecting Liability in Tort, 29 Col. L. Rev. 239 (1929); Livingston, Survival of Tort Actions, A Proposal for California Legislation, 37 Calif. L. Rev. 63 (1949); New York Law Revision Commission Report 157 et seq. (1935). The underlying reasons for survival statutes have been summarized by Professor Harper:

“At early common law, the personal representative could not be sued for a tort committed by the decedent during his lifetime. Prom early notions of the untransmittability of blame — and the quasi-criminal nature of early tort law must not be forgotten — to the crystallization of the maxim actio personalis moritur cum persona, the common law was developed without exception, and the rule was uniform that tort actions died with the parties, either wrongdoer or injured party. There was, then, no survival of a right of action either in favor of or against an executor or administrator until statutes modified somewhat the rule of dependability upon the fives of the original parties to the wrong.” F. Harper, Law of Torts 673—674 (1933), quoted in 2 F. Harper & F. James, Law of Torts § 24.1 n. 2 (1956) (hereafter Harper & James). Survival statutes, in one form or another, have been enacted in over one-half the States and supplement the state wrongful-death statutes, see W. Prosser, The Law of Torts § 126, p. 900 (4th ed. 1971) (hereafter Prosser), though in a small number of States the survival statute provides the only death remedy available, see 2 Harper & James § 24.2, p. 1288. The Federal Employers’ Liability Act, 45 U. S. C. § 59, and the Jones Act, 46 U. S. C. § 688, but not the Death on the High Seas Act, 46 U. S. C. §§ 761-768, contain survival provisions.

3

Kernan v. American Dredging Co., 355 U. S. 426, 430 n. 4 (1958).

4

The fungus v. Skovgaard, 358 U. S. 588 (1959).

5

Most wrongful-death statutes have also been construed to create an independent cause of action in favor of the decedent’s dependents, see F. Tiffany, Death by Wrongful Act § 23 (2d ed. 1913) (hereafter Tiffany); 2 Harper & James § 24.2; Schumacher 121. Thus, for example, Coleridge, J., said of England’s Lord Campbell’s Act, “[I]t will be evident that this Act does not transfer this right of action to [the decedent’s] representative, but gives to the representative a totaEy new right of action, on different principles,” Blake v. Midland B. Co., 18 Q. B. (Ad. & E., N. S.) *93, *110, 118 Eng. Rep. 35, 41 (1852). See also Seward v. The Vera Cruz, 10 App. Cas. 59, 70 (Lord Blackburn). Interpreting the wrongful-death provisions of the Federal Employers’ Liability Act, 45 U. S. C. §§ 51-60, this Court described the action as “independent of any cause of action which the decedent had, and includes no damages which he might have recovered for his injury if he had survived. It is one beyond that which the decedent had, — one proceeding upon altogether different principles. It is a liability for the loss and damage sustained by relatives dependent upon the decedent,” Michigan C. R. Co. v. Vreeland, 227 U. S., at 68.

6

Lord Campbell’s Act, 9 & 10 Vict., c. 93, An Act for compensating the Families of Persons killed by Accidents (Aug. 26, 1846):

“Whereas no Action at Law is now maintainable against a Person who by his wrongful Act, Neglect, or Default may have caused the Death of another Person . . . : Be it therefore enacted . . . That whensoever the Death of a Person shall be caused by wrongful Act, Neglect, or Default, and the Act, Neglect, or Default is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover damages in respect thereof, then and in every such Case the Person who would have been liable if Death had not ensued shall be liable to an Action for Damages, notwithstanding the Death of the Person injured, and although the Death shall have been caused under such Circumstances as amount in Law to Felony.

“II. And be it enacted, That every such Action shall be for the Benefit of the Wife, Husband, Parent, and Child of the Person whose Death shall have been so caused, and shall be brought by and in the Name of the Executor or Administrator of the Person deceased; and in every such Action the Jury may give such Damages as they may think proportioned to the Injury resulting from such Death to the Parties respectively for whom and for whose Benefit the Action shall be brought ....

“III. Provided always, and be it enacted, That not more than One Action shall lie for and in respect of the same Subject Matter of Complaint . . .

7

See, e. g., Read v. Great Eastern R. Co., L. R. 3 Q. B. 555, 558, in which the court held :

“The question turns upon the construction of s. 1 of 9 & 10 Viet. (Lord Campbell’s Act), c. 93. Before that statute the person who received a personal injury, and survived its consequences, could bring an action, and recover damages for the injury; but if he died from its effects, then no action could be brought. To meet this state of the law the 9 & 10 Viet. c. 93, was passed, and 'whenever the death of a person is caused by a wrongful act, and the act is such as would, if death had not ensued, have entitled the party injured to maintain an action, and recover damages in respect thereof, then . . . the person who would have been liable if death had not ensued shall be liable for an action for damages notwithstanding the death of the party injured.’ Here, taking the plea to be true, the party injured could not 'maintain an action in respect thereof,’ because he had already received satisfaction.”

8

See, e. g., Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892); Melitch v. United R. & E. Co., 121 Md. 457, 88 A. 229 (1913). This interpretation has been by no means universal. A number of courts interpreting Lord Campbell’s Act-type state wrongful-death statutes have held that a wrongful-death action could be prosecuted even though before his death the decedent could not have brought a cause of action for his personal injuries because he had already recovered a judgment, settled, or released his claims. A classic statement of this view is that of the South Dakota Supreme Court in Rowe v. Richards, 35 S. D. 201, 215-216, 151 N. W. 1001, 1006 (1915):

“We must confess our inability to grasp the logic of any course of so-called reasoning through which the conclusion is drawn that the husband simply because he may live to suffer from a physical injury and thus become vested with a cause of action for the violation of his own personal right, has an implied power to release a cause of action — one which has not then accrued; one which may never accrue; and one which from its very nature cannot accrue until his death; and one which, if it ever does accrue, will accrue in favor of his wife and be based solely upon a violation of a right vested solely in the wife.”

The contrary interpretation of the pertinent statutory language has also been the subject of scholarly criticism. Professor Prosser argues: “It is not at all clear, however, that such provisions of the death acts ever were intended to prevent recovery where the deceased once had a cause of action, but it has terminated before his death. The more reasonable interpretation would seem to be that they are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather than to subsequent changes in the situation affecting only the interest of the decedent.” Prosser § 127, p. 911. See also Schumacher 120-121; Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages, 50 Calif. L. Rev. 598, 608-610 (1962); Anno., 70 Am. St. Rep. 666, 684 (1898). In States where the limiting language of Lord Campbell’s Act is absent from the wrongful-death statute, the courts have permitted wrongful-death actions although the decedent had already recovered for his own injuries, see, e. g., Blackwell v. American Film Co., 189 Cal. 689, 693-694, 209 P. 999, 1001 (1922).

9

Beyond the common elements that the FELA may share with Lord Campbell’s Act, express statutory terms peculiar to the FELA lend additional support for the result reached in Mellon v. Goodyear. The Act provides:

“Every common carrier by railroad while engaging in commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence ... of such carrier, or by reason of any defect or insufficiency, due to its negligence . . . .” 45 U. S. C. § 51 (emphasis added).

The significant language, of course, is the use of the disjunctive “or.” This language was understood by the Court of Appeals for the Fifth Circuit in Seaboard Air Line R. Co. v. Oliver, 261 F. 1, 2 (1919): “The two distinct rights of action are given in the alternative or dis-junctively. The language used indicates the absence of an intention to allow recoveries for the same wrong by both the injured employé and, in case of his death, by his personal representative; .only one recovery being allowed when the injured employe dies without having enforced the right of action given to him. It seems to be a fair inference from that language that the right of action given to the injured employé’s personal representative was intended to be unenforceable after the enforcement and satisfaction of the one given to the employe himself.”

10 Significantly, the Death on the High Seas Act, 46 U. S. C. §§ 761-768, the only federal statute “that deals specifically and exclusively with actions for wrongful death ... for breaches of the duties imposed by general maritime law,” Moragne v. States Marine Lines, 398 U. S. 375, 407 (1970), has not been interpreted, as the FELA has been, to bar wrongful-death recovery in cases where the decedent has already recovered during his lifetime for his personal injuries.

11

See, e. g., Michigan C. R. Co. v. Vreeland, 227 U. S., at 70; The S. S. Black Gull, 90 F. 2d 619 (CA2 1937) (interpreting the Death on the High Seas Act); Dugas v. National Aircraft Corp., 438 F. 2d 1386 (CA3 1971) (interpreting the Death on the High Seas Act); Tiffany §§ 153, 160; S. Speiser, Recovery for Wrongful Death § 3.4 (1966) (hereafter Speiser); Prosser § 127, p. 906. Damages for loss of support have also been awarded consistently in post-Moragne maritime wrongful-death actions. See, e. g., Dennis v. Central Gulf S. S. Corp., 323 F. Supp. 943 (ED La. 1971), aff’d, 453 F. 2d 137 (CA5 1972); Petition of United States Steel Corp., 436 F. 2d 1256 (CA6 1970); In re Cambria S. S. Co., 353 F. Supp. 691 (ND Ohio 1973); Mascuilli v. United States, 343 F. Supp. 439 (ED Pa. 1972); In re Sincere Navigation Corp., 329 F. Supp. 652 (ED La. 1971); Petition of Canal Barge Co., 323 F. Supp. 805 (ND Miss. 1971).

12

Tiffany §§ 158-164; Speiser §§ 3.36, 3.40.

13

Moore-McCormack Lines, Inc. v. Richardson, 295 F. 2d 583 (CA2 1961); Dugas v. National Aircraft Corp., supra; Carli v. New London Flying Service, Inc., 1965 AMC 1644 (DC Conn. 1962).

14

Such damages have also been recovered in post-Moragne maritime wrongful-death actions. See, e. g., Dennis v. Central Gulf S. S. Corp., supra; Petition of United States Steel Corp., supra; In re Cambria S. S. Co., supra; Mascuilli v. United States, supra; In re Sincere Navigation Corp., supra; Petition of Canal Barge Co., supra.

15

See, e. g., Michigan C. R. Co. v. Freeland, supra, at 71; Moore-McCormack Lines, Inc. v. Richardson, supra; Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549 (1930).

16

See, e. g., Michigan C. R. Co. v. Freeland, supra, at 71, 74; Carli v. New London Flying Service, Inc., supra; Alden v. Norwood Arena, Inc., 332 Mass. 267, 124 N. E. 2d 505 (1955); Kroeger v. Safranek, 165 Neb. 636, 87 N. W. 2d 221 (1957).

17

Loss of society must not be confused with mental anguish or grief, which is not compensable under the maritime wrongful-death remedy. The former entails the loss of positive benefits, while the latter represents an emotional response to the wrongful death. The difference between the two is well expressed as follows:

“When we speak of recovery for the beneficiaries’ mental anguish, we are primarily concerned, not with the benefits they have lost, but with the issue of compensating them for their harrowing experience resulting from the death of a loved one. This requires a somewhat negative approach. The fundamental question in this area of damages is what deleterious effect has the death, as such, had upon the claimants? In other areas of damage, we focus on more positive aspects of the injury such as what would the decedent, had he lived, have contributed in terms of support, assistance, training, comfort, consortium, etc. . . .

“The great majority of jurisdictions, including several which do allow damages for other types of nonpecuniary loss, hold that the grief, bereavement, anxiety, distress, or mental pain and suffering of the beneficiaries may not be regarded as elements of damage in a wrongful death action.” Speiser § 3.45, p. 223 (emphasis in original) (footnotes omitted).

18

Lord Campbell’s Act, which, by its terms, allows the jury to award “such damages as they may think proportional to the injury,” was interpreted to permit recovery only for “pecuniary losses,” Blake v. Midland B. Co., 18 Q. B. (Ad. & E., N. S.) *93, 118 Eng. Rep. 35 (1852). Most American courts, interpreting similar wrongful-death statutes, followed suit, see, e. g., Michigan C. R. Co. v. Vreeland, supra, at 70. See also Speiser § 3.1.

19

A list of the States that have such statutes and reprints of the individual statutes may be found in Speiser § 3.1, p. 58 n. 5, and Appendix.

20

See, e. g., Middleton v. Luckenbach S. S. Co., Inc., 70 F. 2d 326 (CA2 1934); First Nat. Bank in Greenwich v. National Airlines, Inc., 288 F. 2d 621 (CA2 1961).

21

The various state and federal wrongful-death statutes have been closely canvassed and catalogued in Speiser (Supp. 1972) and Comment, Wrongful Death Damages in North Carolina, 44 N. C. L. Rev. 402 (1966). Those sources indicate that 27 of the 44 state and territorial wrongful-death statutes which measure damages by the loss sustained by the beneficiaries, permit recovery for loss of society. Alaska, Arkansas, Florida, Hawaii, Kansas, Mississippi, Nevada, West Virginia, Wisconsin, and Wyoming have statutes expressly providing for such damages. Arizona, Idaho, Louisiana, New Mexico, Puerto Rico, South Carolina, Utah, Virginia, and Washington have equivocal statutory language that has been judicially interpreted to include recovery for loss of society. Finally, the wrongful-death statutes of California, Delaware, Michigan, Minnesota, Montana, Pennsylvania, Texas, and the Virgin Islands, which either expressly or by judicial construction limit recovery to pecuniary losses, have been judicially interpreted, nevertheless, to permit recovery for the pecuniary value of the decedent’s society.

22

We recognize, of course, that our decision permits recovery of damages not generally available under the Death on the High Seas Act. Traditionally, however, “Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law,” Fitzgerald v. United States Lines Co., 374 U. S. 16, 20 (1963). The scope and content of the general maritime remedy for wrongful death established in Moragne is no exception. After combing the legislative history of the Death on the High Seas Act, we concluded in Moragne that Congress expressed “no intention ... of foreclosing any nonstatutory federal remedies that might be found appropriate to effectuate the policies of general maritime law.” 398 U. S., at 400. Nothing in the legislative history of the Act suggests that Congress intended the Act’s statutory measure of damages to pre-empt any additional elements of damage for a maritime wrongful-death remedy which this Court might deem “appropriate to effectuate the policies of general maritime law.” To the contrary, Congress’ insistence that the Act not extend to territorial waters, see S. Rep. No. 216, 66th Cong., 1st Sess., 3 (1919); H. R. Rep. No. 674, 66th Cong., 2d Sess., 3 (1920); 59 Cong. Rec. 4482-4486 (1920), indicates that Congress was not concerned that there be a uniform measure of damages for wrongful deaths occurring within admiralty’s jurisdiction, for in many instances state wrongful-death statutes extending to territorial waters provided a more liberal measure of damages than the Death on the High Seas Act. See Greene v. Vantage S. S. Corp., 466 F. 2d 159 (CA4 1972).

23

Insofar as Simpson v. Knutsen, 444 F. 2d 523 (CA9 1971), and Petition of United States Steel Corp., 436 F. 2d 1256 (CA6 1970), are inconsistent with our holding, we disagree.

24

Of course, the maritime wrongful-death remedy is an admiralty action ordinarily tried to the court and not a jury. There are instances, however, where the admiralty action may be joined with a civil claim, for example, a claim based upon the Jones Act, see Moragne, 398 U. S., at 396 n. 12; Peace v. Fidalgo Island, Packing Co., 419 F. 2d 371 (CA9 1969), or a state survival statute, see Dugas v. National Aircraft Corp., 438 F. 2d 1386 (CA3 1971); Petition of Gulf Oil Corp., 172 F. Supp. 911 (SDNY 1959); cf. Kernan v. American Dredging Co., 355 U. S. 426, 430 n. 4 (1958), and a jury trial may be requested.

25

See, e. g., Young v. Pridd, 3 Cro. Car. 89, 79 Eng. Rep. 679 (Ex. Ch. 1627); Hyde v. Scyssor, 2 Cro. Jac. 538, 79 Eng. Rep. 462 (K. B. 1619); Mowry v. Chaney, 43 Iowa 609 (1876); Guevin v. Manchester St. B., 78 N. H. 289, 99 A. 298 (1916); Holbrook, The Change in the Meaning of Consortium, 22 Mich. L. Rev. 1 (1923); Lippman, The Breakdown of Consortium, 30 Col. L. Rev. 651 (1930); Note, Judicial Treatment of Negligent Invasion of Consortium, 61 Col. L. Rev. 1341 (1961). Damages for loss of consortium have been awarded by courts of admiralty as well. See N. Y. & Long Branch Steamboat Co. v. Johnson, 195 F. 740 (CA3 1912); 1 E. Benedict, Admiralty 366 (6th ed. 1940) (“When a personal injury to a wife is maritime by locality, her husband may recover his damages for loss of her services, loss of consortium, etc., in admiralty”). But see Igneri v. Cie. de Transports Oceaniques, 323 F. 2d 257 (CA2 1963).

26

See, e. g., Hitaffer v. Argonne Co., 87 U. S. App. D. C. 57, 183 F. 2d 811 (1950); Prosser § 125, p. 895; Note, Judicial Treatment of Negligent Invasion of Consortium, 61 Col. L. Rev. 1341 (1961).

27

See Speiser § 3.49; Comment, Wrongful Death Damages in North Carolina, 44 N. C. L. Rev. 402, 419-420 (1966).

28

Funeral expenses have been awarded in post-Moragne wrongful-death actions. See, e. g., Greene v. Vantage S. S. Corp., 466 F. 2d 159 (CA4 1972); Dennis v. Central Gulf S. S. Corp., 323 F. Supp. 943 (ED La. 1971), aff’d, 453 F. 2d 137 (CA5 1972); Mascuilli v. United States, 343 F. Supp. 439 (ED Pa. 1972); In re Sincere Navigation Corp., 329 F. Supp. 652 (ED La. 1971).

29

The Court of Appeals below recognized the potential problem of double recovery and committed “to the discretion of the trial court the task of making an appropriate deduction from or accommodation of any judgment to which Mrs. Gaudet might otherwise be entitled, to insure that no double recovery results. Cf. Billiot v. Sewart, 382 F. 2d 662 (5th Cir.1967); Prosser, [Law of Torts,] at 934G935,” 463 F. 2d, at 1333 n. 1. In our view, application of collateral estoppel principles makes resort to theories of setoff or recoupment generally unnecessary.

30

If the dependents’ total support received from the decedent exceeds the future wages paid to the decedent by the tortfeasor, the dependents will have an actionable cause for support against the tortfeasor for the difference. In that circumstance, if a special verdict was not rendered in the decedent’s action specifying the amount of damages awarded for future wages, it may become necessary in the dependents’ action to determine what portion of the decedent’s lump-sum recovery for his injuries was attributable to future wages. This in no way conflicts with our holding that the dependents will be estopped from relitigating the amount of future wages; it is merely an acknowledgment that the amount of the wage recovery in the first action may have to be clarified in the second.

31

See Vestal, Preclusion/Res Judicata Variables: Parties, 50 Iowa L. Rev. 27, 63-64 (1964); Note, Developments in the Law— Res Judicata, 65 Harv. L. Rev. 818, 855-856 (1952); Restatement of Judgments § 92 (1942) deals expressly with wrongful-death actions and provides that, even in cases where the wrongful-death action is not premised upon the decedent’s having an extant cause of action for personal injuries at the time of his death, “the rules of res judicata apply in actions brought after his death as to issues litigated in an action brought by him and terminating in a judgment before his death,” id., comment on subsection (1).

32

This rule appears to have been rejected in England in favor of compensating a personal-injury victim on the basis of his life expectancy after the accident. See Oliver v. Ashman, [1961] 3 W. L. R. 669 (C. A.); Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages, 50 Calif. L. Rev. 598, 600 (1962). Under the English rule, the accident victim is not permitted to recover lost wages for the difference in years between his pre-accident and post-accident life expectancy.

10

Restatement of Torts, Explanatory Notes § 925, comment a, p.639 (1939). This position is repeated almost verbatim in the most recent working draft of the second Restatement. See Restatement (Second) of Torts, Explanatory Notes § 925, comment a, p. 196 (Tent. Draft No. 19, Mar. 30, 1973). See also Restatement of Torts, Explanatory Notes § 926, comment a, p. 646:

"[In those states with statutes combining the functions of a death statute and a survival statute] the representatives of the deceased can recover in a single action both for the damages preceding death and for those caused by the death. Even in such States, however, a judgment obtained by the deceased or a release of the cause of action by him terminates the right of action.”

Accord, Restatement (Second) of Torts, Explanatory Notes § 926, comment a, p. 204. See also id., Explanatory Notes § 925, comment i, p. 199:

“[A] release of his claim by the injured person bars an action after his death for causing the death, as also does a judgment either for, or if on the merits, against him given in an action brought by him for the tort.”