United States Court of Appeals,

Fifth Circuit.

No. 92-5133

Summary Calendar.

John R. NICHOLS and Irene Nichols, et al., Plaintiffs,

v.

PETROLEUM HELICOPTERS, INC., et al., Defendants.

Jimmie John MILLER, Jr., and Jolain Miller, Plaintiffs-Appellants,

v.

PETROLEUM HELICOPTERS, INC., et al., Defendants-Appellees.

July 14, 1993.

Appeal from the United States District Court for the Western District of Louisiana.

Before HIGGINBOTHAM, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

In this consolidated case arising in admiralty, Miller brought suit against Petro leum

Helicopters, Inc. (PHI) for injuries allegedly sustained in a helicopter crash in the Gulf of Mexico on

July 14, 1988. Following the defendant's pre-trial stipulation of liability, the only issue at trial was

damages. The sole legal question was whether the plaintiff's wife (Jolain Miller) had a claim for loss

of consortium under general marit ime law. The court held that damages for loss of consortium were

not recoverable under gen eral marit ime law but awarded Miller $12,000 for general damages and

$2,569.13 for economic loss. The Millers appeal the court's awards, the findings of fact upon which

they were based, and its holding that loss of consortium was not cognizable under general marit ime

law. This Court affirms.

I. Background

On June 4, 1988, Jimmie Miller, an employee of Forest Oil Company, was enroute with other

crew members to an oil platform in the Gulf of Mexico. The PHI helicopter they were travelling upon

crashed in Vermilion Block 255B, eighty miles from shore, killing one crew member. Six of thehelicopter occupants filed personal injury actions which were consolidated; only the present one was

litigated.

Prior to trial, PHI stipulated to liabilit y and Miller waived claims for punitive damages. The

issue before the District Court for the Western District of Louisiana wa s t he amount of Miller's

damages for physical and emotional suffering, and for economic los s. Miller claimed the accident

caused two ruptured discs which led to anterior lumbar fusion surgery and which left him

"permanently disabled" from heavy labor.

The court's damage assessment was complicated by two factors. First , Miller had been

employed in an extremely heavy manual lab o r o ccupat io n which had caused a history of physical

problems and had led to repeated medical treatments. Second, there was evidence to show that, as

early as 1983, "hereditary arthritic changes had already begun ... and therefore were not caused by

the accident." As a result, the threshold question was whether the helicopter crash was the sole cause

of Miller's injuries or whether it merely aggravated pre-existing problems. The same causation

analysis was necessary for the emotional suffering claim as Miller had abused both drugs and alcohol

in the past.

The court concluded that the preponderance of the evidence did not show the plaint iff had

suffered a herniated disc as a result of the accident. At worst, the crash caused merely a back strain

and pain due to a pre-existing osteoarthritic condition. The court decided that the pain the plaintiff

had suffered would be adequately compensated by $9,000.

The conclusion that the accident caused a mere back strain was also dispositive of the court's

award for economic loss. The court awarded one month's lost wages because it believed Miller's long

term physician who seemed to have felt Miller could soon return to work. As the court noted, this

evaluation was substantiated by all the orthopedists and neurologists that examined Miller but one.

All these findings and awards were greatly influenced by the court's apparent questioning of Miller's

credibility as a witness.

As to Miller's claim of psychological damage, the court found that the evidence was again far

from clear as to the cause of Mille r's pro blems. The court noted Miller's pre-accident substanceabuse, beginning in high school and continuing while he worked for Forest Oil, and his short stay in

a detoxification program after the accident. Though causation of all Miller's mental problems was

tenuous, the court found that some depression was ind e pendently caused by the accident.

Accordingly, the court awarded $3,000.

II. Damage Findings

We begin by noting that the clearly erroneous standard of review guides our inquiry into all

findings of fact, including damage awards. S ee, Graham v. Milky Way Barge, Inc., 824 F.2d 376,

389 (5th Cir.1987). Such awards will not be disturbed unless "we are convinced that an error has

been commit ted." I

d. at 389-90. S ee, United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct.

525, 542, 92 L.Ed. 746 (1948), reh'g den'd 333 U.S. 869, 68 S.Ct. 788, 92 L.Ed. 1147 (holding that

fact findings are reversed only where "clearly erroneous"). Furthermore, " [ m]ere disagreement with

the district court's analysis of the record is insufficient, and we will not reverse

... [a finding]

"although there is evidence to support it, [unless] the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been committed.' " M ilky Way, at 388 (citing

Gypsum, 333 U.S. at 395, 68 S.Ct. at 542) (emphasis added).

Miller argues, essen t ially, that the court twisted Miller's statements to the doctors out of

context or deliberately ignored the evidence. This charge is evidenced by Miller's dissection and

refutation in his brief of every single finding by the dist rict court. Perhaps, the court m ay have

mislabelled t he crash a "forced landing" and misstated the nature of Miller's injuries in a prior car

accident. In our view, however, the evidence as a who le supports the court's findings and a few

factual errors or omissions does not change that.

With evidence to support the court's findings, we may only revers e if we are left wi th a

"definite and firm conviction" of error. In the present case, the district court concluded that Miller

was not credible in any of his assertions, whether to the court or to the doctors. Miller implies by his

laundry list of factual discrepancies or "omissions" that the court would not have reached this

credi bilit y assessment but for its pervasive errors in findings. As we have said before, "this Court

should be wary of attempting to second guess the district court, which has the decided advantage of1 See, Michel v. Total Transportation, Inc., 957 F.2d 186, 191 (5th Cir.1992); and Murray v.

Anthony J. Bertucci Construction Co., Inc., 958 F.2d 127 (5th Cir.1992).

2 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). Gaudet involved the death of a

longshoreman in territorial waters; and the Supreme Court held that the decedent's wife could

recover for loss of consortium. first hand experience concerning the testimony and evidence presented at trial." M ilky Way, at 388.

Following this sound advice and upon review of the record, this Court cannot s ay that i t has a

"definite and firm conviction" that error has been committed. The district court was under no

obligation to accept Miller's justifications and explanations once it concluded that Miller was not

credible. The evidence does not show that either this assessment o r the fact findings was clearly

erroneous. As a result, the damage awards which were predicated upon these findings cannot be an

abuse of discretion.

III. Loss of Consortium

The recoverability of damages for loss of consortium is a legal question that is reviewable de

novo. Pullman-Standard v. Sw int, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982);

Michel v. Total Transp., Inc., 957 F.2d 186, 191 (5th Cir.1992).

Miller claims that the district court erred in finding general maritime law precluded a claim

for loss of consortium. Miller recognizes that M iles v. Apex Marine Corp., 498 U.S. 19, 32-33, 111

S.Ct. 317, 326, 112 L.Ed.2d 275 (1990), prevents such a claim in a seaman's wrongful death suit and

that this rule has been extended by our Court to apply t o seamen's personal injury suits also. 1 He

argues, however, that in a case involving a non-seaman, or longshoreman such as himself, recovery

for loss of consortium may still be had under Sea-Land Services, Inc. v. Gaudet. 2

Assuming that Miller is a longshoreman, his reading of Gaudet omits one crucial point. After

M iles, longshoremen can recover for loss of consortium only if injured in territoria l waters. The

Supreme Court declared that the "holding in Gaudet applies only in territorial waters, and it applies

only to longshoremen." Miles, 498 U.S. at 31, 111 S.Ct. at 325 (emphasis added). This Court has

concurred and found that Miles limit ed Gaudet to its narrow facts. M urray, 958 F.2d at 130, (" Miles

specifically limit

ed Gaudet

... to its facts"). It is uncontested in this case that the injuries of which3 The helicopter crash occurred outside territorial waters in the Gulf of Mexico. In their brief,

appellants themselves describe the location of the crash as "in the Gulf of Mexico ... in Vermilion

Block 255B, approximately eighty (80) miles from shore." Miller complains were the result of a casualty occurring some 80 m iles off t he Louisiana coast.

Miller's claim fails to satisfy one of the two equally important requirements of Gaudet as limited by

Miles; 3 and it must, therefore, fail.

We therefore find that the district court was not clearly erroneous in its findings on damages

or in its decision to dismiss the loss of consortium claim. We also find no abuse of discretion in the

damage awards.

We AFFIRM.