United States Court of Appeals,

Fifth Circuit.

No. 91–3044.

David W. MURRAY, Individually and as Administrator of the Estates of his minor children

Desiree Murray, David W. Murray, Jr., Darry Scott Murray, and Sally W. Murray,

Plaintiffs–Appellants,

Sally W. Murray, Plaintiff–Appellant Cross–Appellee,

v.

ANTHONY J. BERTUCCI CONSTRUCTION COMPANY, INC., and Pacific Employers

Insurance Company, Defendants–Appellees Cross–Appellants.

April 16, 1992.

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

Before THORNBERRY, GARWOOD and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

This appeal asks us to consider, for the first time, whether the Supreme Court's decision in

Miles v. Apex Marine Corp.,

––– U.S.

––––, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), bars the spouse

of an injured seaman from recovering loss of society. Cross-appellants Anthony J. Bert ucci

Construction Company and Pacific Employers Insurance Company (collectively "Bertucci") contend

that we should reverse the jury's award to Mrs. Murray for her loss of society in light of M iles.

Because we conclude that M iles, properly extended, precludes an injured seaman's spous e from

recovering loss of society, we vacate the jury's award to Mrs. Murray and remand. We also consider

the Murrays' appeal of the district court's decision to strike the jury's award of loss of society to their

children. We conclude, however, that the court did not err in striking the children's recovery and,

therefore, affirm that decision.

I.

In 1987, David W. Murray suffered a serio u s back injury while working as a deckhand for

Bertucci aboard the M/V BARBARA ANN in Louisiana territorial waters. Following the accident,

Mr. Murray sued Bertucci for negligence under the Jones Act, 46 U.S.C.App. § 688, and forunseaworthiness under the general maritime law. Mr. Murray later amended his suit to add claims

on behalf of his wife and children for their loss of society.

On September 11, 1990, the jury found the M/V BARBARA ANN unseaworthy and Bertucci

negligent and awarded Mr. Murray $662,000. The jury also awarded Mrs. Murray $175,000 and

their children $37,500 each for past and future loss of society. The district court, however, granted

Bertucci's motion to stri ke the children's claims. S ee Murray v. Anthony J. Bertucci Construction

Co., 745 F.Supp. 373 (E.D.La.1990) . The court entered judgment in accordance with the jury's

verdict and its ruling on the children's claims. Aft er the court denied the parties' post-judgment

motions, both sides filed timely appeals.

II.

For the first time on appeal, Bertucci challenges Mrs. Murray's right to recover for her loss

of society in view of the Supreme Court's decision in Miles. Ordinarily, we do not consider issues

that an appellant has not raised previously in the district court. S ee generally Steven Alan Childress

and Martha S. Davis, Sta ndards of Review § 6.3 (1st ed. 1986) (discussing court review of issues

raised for the first time on appeal). This court has recognized, however, that "when a question is one

of pure law, and when refusal to consider it will lead to an incorrect result or a miscarriage of justice,

appellate courts are inclined to con sider questions first raised on appeal." N ilsen v. City of Moss

Point, Mississippi, 674 F.2d 379, 387 n. 13 (5th Cir.1982), rev'd en banc on other grounds, 701 F.2d

556 (5th Cir.1983). See also Empire Life Ins. Co. of America v. Valdak Corp., 468 F.2d 330, 334

(5th Cir.1972). The Supreme Court has characterized the matter of what issues a court of appeals

may consider for the first time on appeal as "one left primarily to the discreti on of

the courts of

appeals, to be exercised on the facts of the individual cases." S ingleton v. Wulff, 428 U.S. 106, 121,

96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).

The particular circumstances in this case persuade us to consider the effect of Miles on Mrs.Murray's right to recover, despite Bertucci's failure to present this question to the district court.

Here, the Supreme Court decided Miles nearly two months after the jury returned its verdict and only

one day before the district court entered judgment. C f. Hegger v. Green, 646 F.2d 22 (2d Cir.1981)

(reversing an award for loss of consortium because an intervening state court decision held that loss

of consortium damages were not recoverable in wrongful death actions).

Moreover, at the time of the district co urt 's decision, the Fifth Circuit recognized loss of

society claims by spouses of seamen injured in territorial waters. See Cruz v. Hendy Int'l Co., 638

F.2d 719 (5th Cir.1981). Any objection to Mrs. Murray's claim would have been in vain because the

district court would have been obliged to overrule it in light of this court's clear authority in Cruz.

As other circuits have recognized, this court should not require a party to object " "when it would

not have produced any results in the trial court because a "solid wall of Circuit autho rity" then

foreclosed the point.' " D avis v. Mason County, 927 F.2d 1473, 1481 (9th Cir.) (quoting Robinson

v. Heilman, 563 F.2d 1304, 1307 (9th Cir.1977), cert. denied, ––– U.S. ––––, 112 S.Ct. 275, 116

L.Ed.2d 227 (1991)).

In fact, even knowledge of the Miles appeal would not necessarily have given Bertucci the

foresight to raise its objection earlier. The Supreme Court granted certiorari in M iles to consider the

Fifth Circuit's decision to reaffirm its prior holding in Sistrunk v. Circle Bar Drilling Co., 770 F.2d

455 (5th Cir.1985), cert. denied, 475 U.S. 1019, 106 S.Ct. 1205, 89 L.Ed.2d 318 (1986). In

Sistrunk, this court held that a nondependent parent could not recover for loss of society in a general

marit ime w rongful death action. M urray, on the other hand, involves an action for personal injuries,

not wrongful death, and claims by a seaman's spouse and children.

Several other factors weigh heavily in favor of considering this question. First, the question

of whether Miles extends to loss of society claims brought by spouses of injured seamen is a "pure

question of law." We need not remand this question to the district court for the determination of anyfactual issues because the facts here are not in dispute. Moreover, as we discuss below, we find that

the proper resolution of this question in Bertucci's favor is beyond any doubt and a contrary decision

would therefore constitute an injustice. S ee Singleton, 428 U.S. at 121, 96 S.Ct. at 2877; Nilsen,

674 F.2d at 387 n. 13.

Consideration of this question for the first t ime o n appeal also does not present us with a

situation where a party has not had an opportuni ty to argue his position. Both parties have addressed

this question fully in their briefs to us and at oral argument . Mrs. Murray , therefore, has had a

sufficient opportuni ty to develop and present her argume nt and wo uld not be prejudiced if we

consider this question. Finally, as the Second Circuit has observed, "[i]t is well settled that on direct

review an appellate court must apply the law in effect at the time it renders its decision, unless doing

so would cause manifest injustice." H egger, 646 F.2d at 26 (citations omitted). S ee also Empire Life

I ns. Co., 468 F.2d at 334 ("Our duty is to enunciate the law on the record facts."). Having

determined that Bertucci's cross-appeal is properly before us, we turn to t he merits of Bertucci's

argument.

III.

In Miles v. Apex Marine Corp., the Supre me Court addressed the questi on of whether a

nondependent parent of a seaman who was kill ed by a fellow crew member could recover loss of

society under the general marit ime law. ––– U.S. ––––, 111 S.Ct. 317, 112 L.Ed.2d 275, 283 (1990).

The Court held first that the general marit ime law recognizes a cause of action for the wrongful death

of a seama n. I

d. at ––––, ––––, 111 S.Ct. at 324, 328, 112 L.Ed.2d at 289, 293–94. The Court

concluded, however, that this general marit ime action for a seaman's wrongful death does not include

recovery for loss of society. Id. at ––––, ––––, 111 S.Ct. at 326, 328, 112 L.Ed.2d at 291, 294.

The present appeal concerns the implications of this sec o nd holding. More particularly,

cross-appellant Bertucci argues that the reasoning the Supreme Court used in M iles in precluding1 As we will discuss in more detail later, unlike Gaudet, who was a longshoreman, the decedent

in Miles and Mr. Murray, in today's case, were seamen. recovery of nonpecuniary damages under the general marit ime law in a wrongful death action also

applies to a seaman's personal injury action. According to Bertucci, that same reasoning will bar the

spouse of an injured seaman from recovering nonpecuniary losses, such as loss of soc iet y. The

Murrays contend that Miles does not apply to an injury case and that we should uphold the j ury 's

award of loss of society to Mrs. Murray under two earlier decisions, American Export Lines, Inc. v.

Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) and Cruz v. Hendy Int'l Co., 638 F.2d

719 (5th Cir.1981). For the reasons that follow, we agree with Bertucci that Miles precludes Mrs.

Murray's recovery for loss of society. To explain our conclusion, however, we must first consider

how the Supreme Court arrived at its holding in Miles.

As the Supreme Court noted in Miles, the Court first addres sed the scope of damages

recoverable in a wrongful death action brought under the general marit ime law in Sea-Land Services,

Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). The decedent in G audet was a

longshoreman who was killed while working in state territorial waters. 1 In G audet, the Court held,

inter alia, that a dependent plaint iff, the decedent's wife, could recover for her loss of society in a

maritime wrongful death action.

Four years later, in Mobil Oil Corp. v. H igginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56

L.Ed.2d 581 (1978), the Court considered the scope of recovery under the Death on the High Seas

Act (DOHSA), 46 U.S.C.App. § 761 e t seq. In declining to award loss of society damages to

Higginbotham's widow, the Court limit ed its ho lding in G audet to deaths occurring in territorial

waters. In H igginbotham, the Court concluded that, where the death occurred on the high seas, a

dependent could no t recover loss of society because the DOHSA specifically limited recoverable

damages to pecuniary losses. The Court refused to supplement the DOHSA damages because

Congress had specified the scope of damages in the act.Nevertheless, in Alvez, a plurality of the Supreme Court, relying on Gaudet, held that an

injured harbor worker's wife could recover loss of society damages under the general marit ime law.

The Court concluded that "[w]ithin this single body of judge-formulated law [i.e., general marit ime

law], there is no apparent reaso n to differentiate between fatal and nonfatal injuries in authorizing

recovery of damages for loss of society." Alvez, 446 U.S. at 281, 100 S.Ct. at 1677.

In Cruz, this court was faced with the spouse of an injured seaman seeking to recover loss

of society damages under the general marit ime law. We had to decide whether Cruz's occupation as

a seaman required us to deny loss of society damages to his wife even though the harbor worker's

wife in Alvez co uld recover those damages. We allowed the wife to recover loss of society. See

Cruz, 638 F.2d at 725. We found "no more reason to distinguish between t he t ypes of workers

whose rights stem from the same integral jurisprudence" than the Alvez court found to differentiate

between degrees of injury. Id. at 724.

The Murrays rely on Alvez and Cruz and argue that Miles has not altered them. We disagree.

First, Miles removed the judicial underpinning of Alvez and Cruz, on which the Murrays' argument

rests. M iles specifically limit ed Gaudet

—the starting point for Alvez and Cruz

— to its facts. The

Court found that the "holding of Gaudet applies only in territorial waters, and it applies only to

longshoremen." M i les, ––– U.S. at ––––, 111 S.Ct. at 325, 112 L.Ed.2d at 290. Consequentl y

,

Miles must have, at least implicit ly, placed the same restriction on Alvez because that opinion merely

extended Gaudet to personal injury actions. In fact, Justice Powell, who cast the deciding vote in

Alvez, wrote that he "continue[d] to believe that [ Gaudet ] was decided wrongly, but [] recognize[d]

the utility of stare decisis in cases of this kind." Alvez, 446 U.S. at 286, 100 S.Ct. at 1680 (Powell,

J., concurring).

Moreover, our decision in Cruz relied on an expansive reading of both Gaudet and Alvez in

holding that an injured seaman's spouse could recover for her loss of society. M iles's holding thatonly survivors of longshoremen killed in territorial waters may recover nonpecuniary damages under

Gaudet has foreclosed, however, such an expansive reading of these two opinions. Therefore, we

find that Miles has so undercut Cruz's foundations as to overrule it or render its precedential value

meaningless.

Second, Miles espoused a strong deference to Congress and federal marit ime legislation. The

Court declared that:

We no longer live in an era when seamen and t heir lo ved ones must look primarily to the

courts as a source of substantive legal protecti on from injury and death; Congress and the

States have legislated extensively in these areas. In this era, an admiralty court should look

primarily to these legislative enactments for policy guidance. We may supplement these

statutory remedies where d o ing so would achieve the uniform vindication of such policies

consistent with our constitutional mandate, but we must also keep strictly within the limit s imposed by Congress.

Miles,

––– U.S. at ––––, 111 S.Ct. at 323, 112 L.Ed.2d at 287. We are required, therefore, to look

to the Jones Act to consider the scope of the damage award for a seaman's injury.

In Miles, the Supreme Court considered the damage scheme Congress contemplated when

it enacted the Jones Act. The Court recognized that while the Jones Act "evinces no general hostility

to recovery under the marit ime law," id. at ––––, 111 S.Ct. at 324, 112 L.Ed.2d at 289, courts

assume that "Congress is aware of existing law when it passes legislation." I d. at ––––, 111 S.Ct. at

325, 112 L.Ed.2d at 291. When Congress enacted the Jones Act, spouses of seamen had no general

marit ime right to recover for loss of society in unseaworthiness claims. S tretton v. Penrod Drilling

Co., 701 F.2d 441, 444 (5th Cir.1983); C hristofferson v. Halliburton Co., 534 F.2d 1147, 1149 (5th

Cir.1976), overruled in part by Cruz, 638 F.2d at 725; B ranton v. Lennard Pipelines, 1991 A.M.C.

1514, 1991 WL 40263 (E.D.La.1991). Congress incorporated the Federal Employers' Liability Act

(FELA), 45 U.S.C. § 51 et seq., unaltered into the Jones Act with this presumed knowledge that no

remedy existed for loss of society or other nonpecuniary damages. Miles concluded that Congress

thereby demonstrated its intent to incorporate the FELA's pecuniary limit at ion on wrongful deathdamages into the Jones Act. S ee Miles,

––– U.S. at ––––, 111 S.Ct. at 325, 112 L.Ed.2d at 290–91.

This reasoning applies with equal force to a seaman's claim for injuries. As a result, the Jones Act

limit s a seaman's recovery for injury to pecuniary losses and precludes any recovery for nonpecuniary

losses, such as loss of society.

The Murrays ask us, therefore, to recognize damages that the general maritime law did not

provide before the Jones Act's enactment and that the Jones Act itself did not sanction. We follow

Miles's reasoning and decline, in this personal injury action, to upset the balance Congress has created

in the Jones Act by allowing the recovery of damages Congress did not i ntend. "It would be

inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies

in a judicially-created cause of action in which liabilit y is without fault than Congress has allowed in

cases of [injury] resulting from negligence." Id. at ––––, 111 S.Ct. at 325, 112 L.Ed.2d at 291.

The Murrays argue next that we should not read Miles as precluding a seaman injured in state

waters from recovering nonpecuniary losses. The Murrays point o ut t he anomaly of allowing the

harbor worker injured in inland waters to recover nonpecuniary losses but barring the same recovery

by the seaman injured at the same location.

We ackno wledge the anomaly. This anomaly results, however, from the Supreme Court's

decision in Miles to limit Gaudet to its facts. M iles makes it clear that the widow of a seaman cannot

recover loss of society whether the death occurs in territorial waters or on the high seas. The same

result must follow in injury cases. It would make no sense to conclude that Congress intended one

damage scheme for injuries occurring to seamen in state waters and another on the high seas. The

Supreme Court's emphasis in Miles on the importance of uniformity in remedies in marit ime death

cases must apply equally to injury actions.

If we recognize Mrs. Murray's loss of society claim, we would create the very sort of anomaly2 In reaching this conclusion, we observe that since Miles a number of district courts have

considered the application of Miles to general maritime injury actions. Almost every court that

has decided this question has held, as we do today, that Miles precludes recovery for loss of

society. See, e.g., Duplantis v. Texaco, Inc., 771 F.Supp. 787 (E.D.La.1991); Dunbar v.

American Commercial Barge Lines Co., 771 F.Supp. 151 (M.D.La.1991); Branton, 1991

A.M.C. 1514; Breland v. Western Oceanic, Inc., 755 F.Supp. 718 (W.D.La.1991); Anglada v.

Tidew ater, Inc., 752 F.Supp. 722 (E.D.La.1990). But see Bourque v. Mallard Workover and

Drilling, Inc., No. 89–1502 (W.D.La. July 9, 1991) (not extending Miles ); Rayborn v. Zapata

Off–Shore Co., No. 90–0467 (W.D.La. May 2, 1991) (same).

3 Even in the absence of Miles, we would not recognize the children's claims. See DeLoach v.

Companhia de Navegacao Lloyd Brasileiro, 782 F.2d 438 (3d Cir.1986); Madore v. Ingram

Tank Ships, Inc., 732 F.2d 475 (5th Cir.1984). Miles sought to avoid. Therefore, we follow the Supreme Court 's lead in M iles and hold that the

spouse of an injured seaman has no cause of action for lo ss o f so ciet y under the general maritime

law. 2

IV.

The Murrays also contend that the district court erred in striking their children's claims for

loss of society. Having already determined that an injured seaman's spouse has no claim for loss of

society, we find no reason to treat a seaman's children differently. As we discuss above, M iles

emphasized the need to develop a uniform maritime law. It would be anomalous, indeed, to allow

an injured seama n's children to recover for the nonpecuniary loss of society but to refuse such

recovery to the seaman's spouse. 3 See R obertson v. Arco Oil and Gas Co., 766 F.Supp. 535, 539

(W.D.La.1991) (holding that, in light of Miles's limitation of Gaudet, a dependent of a longshoreman

injured on the outer continental shelf could not recov e r under the general marit ime law for loss of

society), aff'd on other grounds, 948 F.2d 132 (5th Cir.1991).

V.

Finally, t he Murrays argue that even if we conclude that M iles bars the recovery of Mrs.

Murray and the children we should not apply Miles retroactively under the Supreme Court's test for

retroactivity in Chevron Oil Co. v. Huson, 404 U.S. 97, 106–107, 92 S.Ct. 349, 355–56, 30 L.Ed.2d

296 (1971). This court has recognized recently, however, that the Supreme Court's decision last termin Jam es B. Beam Distilling Co. v. Georgia,

––– U.S.

––––, 111 S.Ct. 2439, 115 L.Ed.2d 481

(1991) ( Jim Beam ), has significant ly altered the retroactivity analysis. S ee In re Luce,

––– F.2d

––––,

–––– No. 91–1069, slip op. at 3427 (5th Cir. Mar. 9, 1992); Sterling v. Block, 953 F.2d 198, 200

(5th Cir.1992). In J

im Beam, the Supreme Court held that "when the Court has applied a rule of law

to t he lit igants in one case it must do so with respect to all others not barred by procedural

requirements or res judicata." Jim Beam, 111 S.Ct. at 2448.

Thus, the threshold question we face in determining whether to give Miles retroactive effect

is whether the Supreme Court applied the rule it enunciated in Miles to the parties in that case. S ee

Sterling, at 200. This court observed in Sterling that:

In order to conclude that the rule was applied to the original parties, the earlier opinion need

not explicitly address the retroactivity issue. Where the court does not explicitly decide the

retroactivity question or reserve the question of whet h er its holding applies to the parties

before it, "it is properly understood to have followed the normal rule of retroac tive

application in civil cases."

Id. (quoting Jim Beam, 111 S.Ct. at 2445).

In Miles, as we discuss above, the Supreme Court held that the general maritime action for

wrongful death of a seaman does not include recovery for loss of society. M iles,

––– U.S. at ––––,

111 S.Ct. at 328, 112 L.Ed.2d at 294. The Supreme Court, however, did not discuss the retroactivity

of its decision or reserve that issue. Nevertheless, the Court affirmed the Fifth Circuit's denial of Mrs.

Miles's recovery for loss of society. Consequently, we conclude that M iles "followed the normal rule

of retroactive application in civil cases" and applied the new rule to the parties before it. J im Beam

dictates therefore that we apply Miles to the parties before us in this case.

For the above reasons, Mrs. Murray's award for loss of society should be stric ken. The

judgment of the district court is affirmed in all other respects. We remand t his case to the district

court for entry of judgment consistent with this opinion.VACATED IN PART, AFFIRMED IN PART, AND REMANDED.