Blome v. Aerospatiale Helicopter Corp.

924 F. Supp. 805

Nancy BLOME, individually and as Next Friend of Charles Blome, II, and Katie Blome, Minor Children, and as Personal Representative of the Estate of Charles Blome, Jr., Deceased, v. AEROSPATIALE HELICOPTER CORPORATION, Societe Nationale Industrielle Aerospatiale, Aerospatiale Capital Corporation, American Eurocopter Corporation, Sea Link Helicopters, Inc., Tex-Air Helicopters, Inc., Anthony A. Loague, John Lockwood, and Ann Lockwood.

Civil Action No. G-95-082.

United States District Court, S.D. Texas, Galveston Division.

April 30, 1996.

COPYRIGHT MATERIAL OMITTED

Ernest H. Cannon, Ernest Cannon & Associates, Houston, TX, for plaintiffs.

Michael Vance Powell, Locke Purnell Rain & Harrell, PC, Dallas, TX, William L. Robinson, Lillick & Charles, Long Beach, CA, for Aerospatiale Helicopter Corp., Societe Nationale Industrielle Aerospatiale, Aerospatiale, Inc., Aerospatiale Capital Corporation, American Eurocopter Corporation.

James Lane Ware, McLeod Alexander Powel & Apffel, PC, Galveston, TX, Kenneth H. Laborde, Leo R. McAloon, III, Pulaski Gieger & Laborde, New Orleans, LA, for Tex-Air Helicopters.

James Richard Watkins, Jr., Royston, Rayzor, Vickery & Williams, Galveston, TX, for Nalling Shipping Ltd., Nevis Shipping Ltd., Red Band, defendant.

James Martin Davin, Houston, TX, for R & O Motorship Agencies Texas, Inc.

Harold H. Walker, Jr., Gardere, Wynne, Sewell & Riggs, LLP, Houston, TX, Michael William Kerensky, O'Quinn Kerensky & McAninch, Houston, TX, William J. Clay, Martin E. Rose, Gardere & Wynne, Dallas, TX, for Sea Link Helicopters, Inc., Anthony A. Loague, John Lockwood, Ann Lockwood.

Michael R. McGown, Beaumont, TX, for Charles Blome, Sr.

ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT

KENT, District Judge.

Charles Blome, Jr., an inspector for the United States Coast Guard, was killed when the helicopter transporting him to a vessel to be inspected crashed into the Gulf of Mexico offshore Galveston, Texas. The Plaintiffs, Blome's wife, children, and his estate, sued, among others, Sea Link Helicopters, Inc. (Sea Link), which operated the helicopter, American Eurocopter Corporation (AEC), which leased the helicopter to Sea Link, and Societe Nationale Industrielle Aerospatiale (SNIA), which manufactured the helicopter. Now before the Court is the Motion of AEC and SNIA for Partial Summary Judgment against the Plaintiffs' claims.¹ As will be discussed in detail below, the Motion is DENIED.

I.

The Plaintiffs filed suit against the Defendants in Texas state court, seeking recovery under the Texas wrongful death and survival statutes, Tex.Civ.Prac. & Rem. §§ 71.001-.051.² The action was removed to this Court pursuant to 28 U.S.C. § 1441(b), because one of the Defendants is a foreign state as defined in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1603. In their wrongful death action, the Plaintiffs seek recovery for economic losses, mental pain and anguish, grief, and loss of consortium, as well as punitive damages. In the survival action, the Plaintiffs seek recovery for the decedent's pre-death pain and suffering.

In their Motion for Partial Summary Judgment, AEC and SNIA³ contend the Plaintiffs' wrongful death action is governed by the Death on the High Seas Act, 46 U.S.C. App. §§ 761-67 (DOHSA), which prohibits the Plaintiffs' claims for punitive and nonpecuniary damages.⁴ Therefore, if federal law governs the Plaintiffs' claims, the recovery available to them is substantially less than the recovery available under state law.⁵

DOHSA creates a wrongful death action sounding in admiralty for the death of a person "occurring on the high seas beyond a marine league⁶ from the shore of any State." 46 U.S.C.App. § 761. If DOHSA applies, the remedies it supplies are exclusive and cannot be supplemented with wrongful death remedies under the general maritime law or state law. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 232, 106 S.Ct. 2485, 2499, 91 L.Ed.2d 174 (1986); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 623-25, 98 S.Ct. 2010, 2014-15, 56 L.Ed.2d 581 (1978). The evidence presented to the Court establishes that the crash which killed Blome occurred somewhere between seven and eleven miles offshore Galveston, Texas. Because there is no dispute that the accident occurred more than one league offshore, the Defendants contend that DOHSA applies as a matter of law to the Plaintiffs' wrongful death claims.

The Plaintiffs, however, contend there is a question of fact as to whether DOHSA or state law governs their claim. The territorial boundary of Texas is three marine leagues offshore. Tex.Nat.Resources Code § 11.012. While DOHSA states it applies to deaths occurring more than a marine league offshore, the statute also states that the "provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter. Nor shall this chapter apply ... to any waters within the territorial limits of any State." 46 U.S.C.App. § 767. Because DOHSA does not apply to state territorial waters, the Plaintiffs argue that, as to deaths occurring offshore Texas, DOHSA applies only if the death occurred more than three marine leagues offshore. If the crash occurred eleven miles offshore, it occurred outside Texas territorial waters, and DOHSA is applicable. However, if the crash occurred seven miles offshore, it occurred within Texas territorial waters, and DOHSA does not apply. Accordingly, the Plaintiffs contend that summary judgment cannot be granted, because there is a question of fact that must be resolved before it can be determined whether state or federal law governs.⁷

Thus, disposition of the Defendants' Motion requires the Court to resolve two issues. First, the Court must determine whether state wrongful death and survival statutes can be applied in maritime actions involving the death of a non-seaman on territorial waters. If state law cannot apply, then the Court need go no further. However, if state law can apply in cases involving deaths on territorial waters, the Court must then determine the extent of Texas territorial waters.

II.

Although this case does not involve the vessels or seamen which are characteristic of most maritime cases, the Plaintiffs' claims nonetheless fall within the Court's admiralty jurisdiction. To invoke admiralty tort jurisdiction, the injury or incident must have occurred on navigable waters, and the general character of the activity giving rise to the incident must bear a substantial relationship to traditional maritime activity. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., ___ U.S. ___, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). The helicopter crash occurred in the Gulf of Mexico, thus satisfying the locality requirement. The nexus to traditional maritime activity requirement is likewise satisfied, because, by transporting a Coast Guard inspector from shore to a vessel, the helicopter was performing an activity traditionally performed by vessels. See Tallentire, 477 U.S. at 218-19, 106 S.Ct. at 2492 (admiralty jurisdiction properly invoked in a case involving a helicopter crash "because the accident occurred on the high seas and in furtherance of an activity bearing a significant relationship to a traditional maritime activity. Although the decedents were killed while riding in a helicopter and not a more traditional maritime conveyance, that helicopter was engaged in a function traditionally performed by waterborne vessels: the ferrying of passengers from an `island,' albeit an artificial one, to the shore.") (citation omitted).

Of course, with "admiralty jurisdiction comes the application of substantive admiralty law." East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 2298-99, 90 L.Ed.2d 865 (1986). However, that this case is within the Court's admiralty jurisdiction does not mean, in and of itself, that state law cannot apply. As in other areas governed by federal law, federal courts sitting in admiralty have frequently borrowed or adopted state law as the rule of decision. Calhoun v. Yamaha Motor Corp. U.S.A., 40 F.3d 622, 627-28 (3d Cir. 1994), aff'd, ___ U.S. ___, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). Broadly stated, state law may be applied in admiralty cases unless it conflicts with federal law by "prejudicing the `characteristic features' of federal maritime law, or interfering with the `proper harmony and uniformity of that law.'" Calhoun, 40 F.3d at 628 (quoting Southern Pac. Co. v. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 529, 61 L.Ed. 1086 (1917)).

Since the Supreme Court's decision in Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), which first recognized a wrongful death cause of action under the general maritime law, many courts have concluded that the general maritime law provides the exclusive remedies for maritime deaths, preempting state statutes. See, e.g., Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084, 1087-88 (2d Cir.1993) ("federal maritime law, whether or not it conflicts with state law, applies to actions for wrongful death in state territorial waters"), cert. denied, ___ U.S. ___, 114 S.Ct. 1060, 127 L.Ed.2d 380 (1994); Nelson v. United States, 639 F.2d 469, 473 (9th Cir.1980) (Moragne cause of action applies to exclusion of state wrongful death statutes); In re S/S Helena, 529 F.2d 744, 753 (5th Cir.1976) (Moragne wrongful death remedy precludes recognition of state statutes in admiralty). These decisions were generally grounded upon the belief that the disparate remedies allowed under the state statutes was inconsistent with the desire for uniformity in maritime remedies which guided the Supreme Court's decisions in Moragne and subsequent cases.

However, in Yamaha Motor Corp., U.S.A. v. Calhoun, ___ U.S. ___, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996), the Supreme Court held that a state's wrongful death and survival statutes are not preempted by federal law...