FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 JUNE 10, 2003 

 THOMAS K. KAHN 

 CLERK

*Honorable B. Avant Edenfield, United States District Judge for the Southern District of

Georgia, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 02-14991

________________________

D. C. Docket No. 00-00942 CV-CG-L

CHARLES DESMOND TUCKER,

Plaintiff-Appellant,

versus

FRANK EDWARD FEARN, 

JUDY FEARN,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(June 10, 2003)

Before BIRCH and HULL, Circuit Judges, and EDENFIELD*, District Judge.

HULL, Circuit Judge:

In this admiralty case, plaintiff Charles Desmond Tucker seeks to recover
1Specifically, Tucker sought nonpecuniary damages for the loss of love, affection, and

companionship of his deceased minor son and for his grief and anguish over his son’s death. 

2

for the death of his minor son, Charles Justin Tucker, who was killed in a boating

collision. Plaintiff Tucker appeals from the district court’s order precluding him

from recovering loss of society damages in his wrongful death action under

general maritime law. After review and oral argument, we affirm. 

I. BACKGROUND

Charles Justin Tucker was traveling on a 19-foot Wellcraft power boat when

his boat collided with a 36-foot Pearson sailboat operated by defendants Frank and

Judy Fearn (the “Fearns”) in Alabama’s territorial waters. Charles Justin Tucker

died as a result of injuries received in this boating collision. 

Because the collision occurred in territorial waters, plaintiff Charles

Desmond Tucker (“Tucker”) brought this wrongful death action against the Fearns

under general maritime law. Tucker sought to recover nonpecuniary damages, in

the form of loss of society damages, under general maritime law.1 Tucker also

brought state law claims under Alabama’s wrongful death statute, Ala. Code § 6-

5-410. 

The Fearns moved to strike Tucker’s general maritime claim for

nonpecuniary damages because he was not financially dependent on his deceased
2Whether Tucker may recover loss of society damages in a wrongful death action under

general maritime law is a question of law that we review de novo. See King v. Moore, 312 F.3d

1365, 1366 (11th Cir.), cert. denied, 123 S. Ct. 662 (2002). 

3

minor son. The district court entered an order granting the Fearns’ motion to

strike Tucker’s claim for nonpecuniary damages and thereby limiting Tucker’s

potential recovery under general maritime law to pecuniary damages for the loss of

his minor son. Subsequently, the district court certified that “this order involves a

controlling question of law as to which there is substantial ground for difference

of opinion.” On September 13, 2002, this Court granted Tucker’s petition for

interlocutory review under 28 U.S.C. § 1292(b).

In this interlocutory appeal, the only issue is whether Tucker, as a

nondependent parent, may recover loss of society damages for the wrongful death

of his minor child under general maritime law.2

 For the reasons outlined below,

we conclude that the district court correctly determined that loss of society

damages are not recoverable by Tucker in a wrongful death action under general

maritime law.

II. DISCUSSION 

To guide our analysis of this issue, we first consider the fundamental

principles of admiralty law set forth by the Supreme Court in Moragne v. States

Marine Lines, Inc., 398 U.S. 375 (1970), and then in Mobil Oil Corp. v.

Higginbotham, 436 U.S. 618 (1978), and Miles v. Apex Marine Corp., 498 U.S.
3

119 U.S. 199 (1886). In The Harrisburg, the Supreme Court “held that the general

maritime law (a species of judge-made federal common law) did not afford a cause of action for

wrongful death. The Harrisburg Court said that wrongful-death actions are statutory and may not

be created by judicial decree.” Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206 (1996)

(discussing The Harrisburg).

4See In re Amtrack “Sunset Limited” Train Crash in Bayou Canot, Alabama, on

September 22, 1993, 121 F.3d 1421, 1428 (11th Cir. 1997) (noting that “Moragne . . . for the first

time gave an admiralty common law right of action for wrongful death of non-seamen in state

territorial waters”). The deceased in Moragne was a longshoreman. Moragne, 398 U.S. at 376. 

5DOHSA provides a cause of action “whenever the death of a person shall be caused by

wrongful act, neglect, or default occurring on the high seas beyond a marine league from the

shore of any State, or the District of Columbia, or the Territories or dependencies of the United

States.” 46 U.S.C. App. § 761(a). 

4

19 (1990). 

A. Moragne: Wrongful Death under General Maritime Law 

In Moragne, the Supreme Court overruled its earlier decision in The

Harrisburg3

 and created a wrongful death action under general maritime law for

deaths occurring in state territorial waters.4 In doing so, the Supreme Court noted

that Congress had enacted legislation to cover some but not all types of maritime

wrongful deaths. Id. at 397-98. Specifically, the Death on the High Seas Act

(DOHSA) had created a wrongful death action but only for all persons killed on

the high seas.5

 46 U.S.C. App. § 761 et seq. Similarly, the Jones Act provided

only seamen a right of recovery against their employers for negligence resulting in

injury or death. Moragne, 398 U.S. at 394; 46 U.S.C. § 688. The Supreme Court

observed, however, that Congress had not yet provided a statutory right of action
6DOHSA does not cover deaths resulting from incidents occurring within state territorial

waters—that is, deaths resulting from incidents occurring within three-miles of the shore of any

State, or the District of Columbia, or the Territories or dependencies of the United States. See

Moragne, 398 U.S. at 395. Here, the parties do not dispute that the incident resulting in the death

of Tucker’s son occurred in Alabama’s territorial waters. The boats were being operated in the

Inter-Coastal Waterway near Orange Beach, Baldwin County, Alabama. 

5

for wrongful deaths occurring in state territorial waters.6

 Moragne, 398 U.S. at

397-98. The Supreme Court reasoned that this was because Congress saw no need

for such a federal statute because the States historically provided remedies for

deaths occurring in their territorial waters. Id. at 398. Thus, the Supreme Court

concluded that Congress’s “failure to extend [DOHSA] to cover such deaths

primarily reflected the lack of necessity for coverage by a federal statute.” Id. at

397; see also Miles, 498 U.S. at 24-25. 

The Supreme Court in Moragne then discussed at length how a

“transformation” in maritime law had begun in 1944 and that the emergence of the

strict liability claim of “unseaworthiness” in federal maritime law had created

inconsistencies in recovery for deaths on the high seas versus recovery for deaths

on territorial waters under state statutes. See Moragne, 398 U.S. at 399-400. 

Thus, the Supreme Court in Moragne sought to eliminate these inconsistencies and

render maritime wrongful death law uniform by creating a general maritime

wrongful death action applicable in all waters, including state territorial waters. 

See id. at 401-02. 

In doing so in Moragne, the Supreme Court relied to a large extent on its
7For instance, the Supreme Court stated that “the Jones Act was intended to achieve

‘uniformity in the exercise of admiralty jurisdiction’ by giving seamen a federal right to recover

from their employers for negligence regardless of the location of the injury or death.” Moragne,

398 U.S. at 401. 

8

In Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 820 (2001), the

Supreme Court held that “[t]he maritime cause of action that Moragne established for

unseaworthiness is equally available for negligence.” In this case, plaintiff Tucker based his

maritime claim on negligence rather than unseaworthiness. 

6

determination that Congress enacted the Jones Act and DOHSA to further “the

constitutionally based principle that federal admiralty law should be ‘a system of

law coextensive with, and operating uniformly in, the whole country.’”7

 Id. at 402

(citation omitted). The Supreme Court further reasoned that “[o]ur recognition of

a right to recover for wrongful death under general maritime law will assure

uniform vindication of federal policies.”8

 Id. at 401. 

The Supreme Court’s conclusion in Moragne also was motivated, in part, by

the maritime principle that “special solicitude [be given] for the welfare of those

men who undertook to venture upon hazardous and unpredictable sea voyages.” 

Id. at 387. The Supreme Court observed that federal maritime law, as it thenexisted, actually disadvantaged Jones Act seamen. Moragne, 398 U.S. at 395-96. 

Because the Jones Act preempts state law remedies for the death or injury of a

seaman, the Supreme Court remarked that the “‘strangest’ anomaly” in maritime

law was that a Jones Act seamen “is provided no remedy for death caused by

unseaworthiness within territorial waters, while a [nonseaman] . . . does have such
9The current version of 46 U.S.C. App. § 762(a) is identical to § 762 as it existed at the

time Higginbotham was decided. Since Higginbotham, Congress has added subsection (b) to §

762, which provides: “If the death resulted from a commercial aviation accident occurring on the

high seas beyond 12 nautical miles from the shore of any State . . . additional compensation for

nonpecuniary damages for wrongful death of a decedent is recoverable.” 46 U.S.C. App. §

762(b)(1). 

7

a remedy when allowed by a state statute.” Id. at 395-96 (emphasis added). Thus,

the Supreme Court’s recognition of a wrongful death action under general

maritime law served to remedy a disparity for seaman that had existed prior to

Moragne. See Miles, 498 U.S. at 30. In Moragne, the Supreme Court did not set

forth the scope of the remedies available in a wrongful death action under general

maritime law but left such development for future litigation. Moragne, 398 U.S. at

408. 

B. Higginbotham: No Loss of Society Damages under DOHSA

Since Moragne, the Supreme Court has held that loss of society damages are

not recoverable under DOHSA. See Higginbotham, 436 U.S. 618. 

When the Supreme Court decided Higginbotham, DOHSA provided that

“recovery . . . shall be a fair and just compensation for the pecuniary loss sustained

by the persons for whose benefit the suit is brought . . . .” 46 U.S.C. App. § 762

(1975) (emphasis added).9 The issue in Higginbotham was whether the explicit

use of the term “pecuniary loss” implied that nonpecuniary damages were not

available under DOHSA. Higginbotham, 436 U.S. at 619-20. Although the

Supreme Court recognized that DOHSA “does not address every issue of
8

wrongful-death law . . .[,] when it does speak directly to a question, the courts are

not free to ‘supplement’ Congress’ answer so thoroughly that [DOHSA] becomes

meaningless.” Id. at 625. The Supreme Court thus concluded that Congress had

“limited survivors to recovery of their pecuniary losses.” Id. at 623.

C. Miles: No Loss of Society Damages for Seamen Under Jones Act or

General Maritime Law

In Miles, a unanimous Supreme Court also addressed whether recovery for

loss of society damages was available for seamen under the Jones Act (based on

negligence) and in a general maritime action (based on unseaworthiness). To aid

its analysis of these issues, the Supreme Court “described Moragne at length

because it exemplifies the fundamental principles that guide[d] [the Court’s]

decision.” Miles, 498 U.S. at 27. Drawing from Moragne, the Supreme Court in

Miles emphasized the need to look to “legislative enactments for policy guidance”

and “achieve the uniform vindication of such policies[,]” stating as follows:

We no longer live in an area when seamen and their loved ones must

look primarily to the courts as a source of substantive legal protection

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 doing so would achieve the

uniform vindication of such policies consistent with our constitutional

mandate, but we must also keep strictly within the limits imposed by

Congress.

Miles, 498 U.S. at 27 (emphasis added). 

In Miles, the Supreme Court first considered whether loss of society
9

damages were recoverable under the Jones Act. After analyzing the legislative

history of the Jones Act, the Supreme Court determined that “Congress must have

intended to incorporate the pecuniary limitation on damages.” Id. at 32. Thus, the

Supreme Court held that “[t]here is no recovery for loss of society in a Jones Act

wrongful death action.” Id. 

The Miles plaintiff also presented a general maritime claim alleging that the

decedent-seaman “had been killed as a result of the unseaworthiness of the

vessel.” Id. Because this claim was brought under general maritime law, the

Supreme Court’s first determination that loss of society damages were precluded

under the Jones Act did not decide the second issue directly. See id.

Nevertheless, the Supreme Court looked to the Jones Act for policy guidance and

concluded that “[i]t 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 liability is without fault than Congress has allowed in cases of

death resulting from negligence.” Id. at 32-33. The Supreme Court therefore held

that “there is no recovery for loss of society in a general maritime action for the

wrongful death of a Jones Act seaman.” Id. at 33. In reaching this outcome in

Miles, the Supreme Court noted that its decision “restore[d] a uniform rule

applicable to all actions for the wrongful death of a seaman, whether under

DOHSA, the Jones Act, or general maritime law.” Id. (emphasis added). 
10

D. No Loss of Society Damages for Nonseamen

Applying Moragne, Higginbotham, and Miles, we determine that

nondependent survivors, such as Tucker, of nonseamen, such as Tucker’s son,

equally cannot recover loss of society damages in a wrongful death action under

general maritime law. We start our analysis with DOHSA, which the Supreme

Court has recognized as being “the courts’ primary guide as they refine the

nonstatutory death remedy, both because of the interest in uniformity and because

Congress’ considered judgment has great force in its own right.” Higginbotham,

436 U.S. at 624. In looking to DOHSA, we are particularly mindful of the

Supreme Court’s recent statement in Norfolk Shipbuilding Drydock Corp. v.

Garris, 532 U.S. 811 (2001), that “[w]hile there is an established and continuing

tradition of federal common lawmaking in admiralty, that law is to be developed,

insofar as possible, to harmonize with the enactments of Congress in the field.” 

Id. at 820 (internal quotation marks omitted) (“Because of Congress’s extensive

involvement in legislating causes of action for maritime personal injuries, it will

be the better course, in many cases that assert new claims beyond what those

statutes have seen fit to allow, to leave further development to Congress.”). 

Further, DOHSA provides a wrongful death action in favor of anyone killed

on the high seas, but limits recoverable damages in wrongful death suits to

“pecuniary loss sustained by the persons for whose benefit the suit is brought.” 46
11

U.S.C. App. §§ 761(a), 762(a). In light of this limitation, it would be inconsistent

with Congress’s “considered judgment” for this Court to permit the recovery that

plaintiff Tucker seeks in this case under general maritime law. 

Denying recovery to Tucker for loss of society damages is also consonant

with the principle that courts seek a uniform vindication of federal maritime

policies. It would be discordant for this Court to sanction additional remedies for

deaths of nonseamen occurring in a state’s territorial waters than (1) Congress has

permitted under DOHSA for deaths of nonseamen occurring on the high seas,

Higginbotham, 436 U.S. at 623, (2) Congress has permitted for seamen under the

Jones Act, Miles, 498 U.S. at 32, and (3) the Supreme Court has allowed for

seamen under general maritime law, Miles, 498 U.S. at 32-33. 

We are also mindful that our decision comports with the “special solicitude”

that admiralty law displays for seamen. Moragne, 398 U.S. at 398. A strange

anomaly would result if we were to permit the survivors of nonseamen the right to

recover loss of society damages while the survivors of seamen—the traditional

wards of admiralty law—are barred from such recovery under the Jones Act and

general maritime law. Because neither Congress nor the Supreme Court have ever

indicated that admiralty law evinces any particular consideration for nonseamen,

we decline to fashion a rule that would permit their survivors a more liberal

recovery under general maritime law.
12

E. Tucker’s Gaudet arguments

Plaintiff Tucker primarily relies on the Supreme Court’s decision in SeaLand Services, Inc. v. Gaudet, 414 U.S. 573 (1974). In Gaudet, the dependent

widow of a longshoreman sought to recover loss of society damages in a wrongful

death action under general maritime law. Id. at 585-86. The Supreme Court

permitted the recovery of loss of society damages, stating that “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.” Id. at 588. Tucker argues that Gaudet is broadly written and

supports the proposition that loss of society damages are recoverable by

nonseamen. 

One problem for Tucker, however, is that the Supreme Court since has

limited the applicability of Gaudet to its facts. In Miles, the Supreme Court stated

that “[t]he holding of Gaudet applies only in territorial waters, and it applies only

to longshoremen.” Miles, 498 U.S. at 31 (emphasis added). In fact, the Supreme

Court in Miles indicated that Gaudet was no longer even applicable on its facts, in

view of amendments made to the Longshore and Harbor Workers’ Compensation

Act in 1972. Miles, 498 U.S. at 30 n.1. Consequently, as the Sixth Circuit stated

in Miller v. American President Lines, Ltd., 989 F.2d 1450, 1459 (6th Cir. 1993),

“[Gaudet] has therefore been condemned to a kind of legal limbo: limited to its
10On appeal, the parties focus on whether nondependents of nonseamen killed in

territorial waters may recover loss of society damages. There is a strong argument, however, that

the pertinent threshold question is whether any survivors of nonseamen are entitled to recover

loss of society damages and not whether nondependent survivors of nonseamen may recover loss

of society damages. This is because (1) it would still yield an anomalous result for dependent

survivors of nonseamen to have greater recovery than dependent survivors of seamen and (2)

allowing dependent survivors of nonseamen to recover loss of society damages would defeat the

principle of achieving uniformity in admiralty law since loss of society damages are not

recoverable under DOHSA and the Jones Act. Additionally, the argument is made that an

essentially pecuniary standard such as dependency should not provide the dividing line on this

issue, given the nature of loss of society damages. See Gaudet, 414 U.S. at 585 (“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.”). Nonetheless, given that Tucker is a nondependent survivor, we decide today

only that nondependent survivors of nonseamen cannot recover loss of society damages under

general maritime law. 

13

facts, inapplicable on its facts, yet not overruled.”

The second hurdle for Tucker is that the plaintiff is Gaudet was a dependent

widow, whereas Tucker is a nondependent survivor. A number of other federal

circuit courts have held explicitly that nondependent survivors may not recover

loss of society damages in wrongful death actions for a nonseaman’s death in

territorial waters. See, e.g., Wahlstrom v. Kawasaki Heavy Indus., 4 F.3d 1084,

1093 (2d Cir. 1993); Anderson v. Whittaker Corp., 894 F.2d 804 (6th Cir. 1990);

Miles v. Melrose, 882 F.2d 976 (5th Cir. 1989), aff’d sub nom on other grounds,

Miles v. Apex Marine Corp., 498 U.S. 19. But see Sutton v. Earles, 26 F.3d 903

(9th Cir. 1994).10

 

F. Tucker’s Yamaha Motor Arguments

Plaintiff Tucker also asserts that Yamaha Motor Corp. v. Calhoun, 516 U.S.
14

199 (1996), allows for the recovery of loss of society damages in this case. 

However, Yamaha Motor has no application to the issue here because it concerns

the remedies available under a state’s wrongful death statute and not the shape of

the wrongful death action under federal general maritime law. 

In Yamaha Motor, a twelve-year old girl was killed in a recreational jet ski

accident in the territorial waters of Puerto Rico. Id. at 201-02. Her parents

brought suit under Pennsylvania’s wrongful death statute and sought recovery of

loss of society damages. Id. at 202. The Supreme Court concluded that “the

damages available for the jet ski death of [the girl] are properly governed by state

law.” Id. at 216.

Tucker’s reliance on Yamaha Motor is misguided because that decision

does not support the assertion that federal maritime law provides for loss of

society recovery in this case. Rather, the significance of Yamaha Motor is how

the Supreme Court concluded that DOHSA did not displace the application of

state law in territorial waters and “preserve[d] the application of state statutes to

deaths within territorial waters.” Id. at 216, 215 n.13 (“Federal maritime law has

long accommodated the States’ interest in regulating maritime affairs within their

territorial waters.”). As this Court stated in In re Amtrack “Sunset Limited” Train

Crash in Bayou Canot, Alabama, on September 22, 1993, 121 F.3d 1421, 1426

(11th Cir. 1997), “[i]t goes without saying that the State of Alabama has a
11The only restriction on the States’ regulation of maritime affairs within their territorial

waters is that “[p]ermissible state regulation . . . must be consistent with federal maritime

principles and policies.” Yamaha Motor, 516 U.S. at 215 n.13; see In re Amtrack, 121 F.3d at

1427 (concluding that although plaintiff had wrongful death action under Alabama’s statute, “the

federal maritime interests present in this action outweigh Alabama’s interests in having its

wrongful death statute apply in its entirety” and concluding that “applying the Alabama wrongful

death act in this case so as to allow recovery for wrongful death based upon simple negligence

only would deprive the litigants of substantive admiralty rights that must be applied given the

exceedingly commercial nature of this incident”) (emphasis added). It is noteworthy that

Yamaha Motor involved a recreational jet ski accident, whereas In re Amtrack involved a

traditionally commercial maritime incident. Yamaha Motor, 516 U.S. 201; In re Amtrack, 121

F.3d at 1422-23. 

12Tucker’s reliance on American Dredging Co. v. Lambert, 81 F.3d 127 (11th Cir. 1996),

also is misplaced. American Dredging involved the deaths of nonseamen in Florida’s territorial

waters; the collision was between a floating dredge pipeline and a motorboat with four

passengers, three of whom died. Id. at 128. Although the personal representatives of the

deceased nonsemen in American Dredging did file claims under general maritime law, the issue

on appeal focused on whether nonpecuniary damages were recoverable under Florida law. In

American Dredging, this Court permitted recovery of nonpecuniary damages under Florida’s

15

sovereign interest in activities that occur within its territorial waters.” In light of

the State’s interest, a State might offer a remedial scheme independent of, and

more generous than, what federal law provides, so long as it is not in conflict with

federal policies.11

 Yamaha Motor, 516 U.S. at 215 (citing Sun Ship, Inc. v.

Pennsylvania, 447 U.S. 715, 724 (1980)). Thus, Yamaha Motor concerns the

applicability of state wrongful death statutes and does not contradict the Supreme

Court’s concerns in Miles and Moragne that courts achieve a uniform vindication

of federal maritime policies. 

Consequently, Yamaha Motor does not speak to Tucker’s general maritime

claims but would assist Tucker’s separate state law claims only if Alabama’s

wrongful death statute permitted the recovery of loss of society damages.12
wrongful death statutes because “federal maritime law does not displace state wrongful death and

survival statutes permitting non-pecuniary damages in wrongful death actions arising out of

accidents in territorial waters” and “no federal statute or common law precedent precludes the

personal representatives from recovering non-pecuniary damages under Florida law.” Id. at 130-

31. The decision did not outline what nonpecuniary damages were sought. American Dredging

also did not appear to involve punitive damages, which were at issue in In re Amtrack. 

13Tucker’s complaint did seek recovery of punitive damages under Alabama’s wrongful

death statute. However, subsequent to the order at issue in this interlocutory appeal, the district

court granted summary judgment to the defendant Fearns on plaintiff Tucker’s punitive damages

claims under state law. The district court determined that punitive damages under Alabama’s

wrongful death statute were not recoverable in light of this Court’s decision in In re Amtrack,

121 F.3d 1421. The district court’s determination is not before this Court on interlocutory

appeal, and we express no opinion on that issue. 

16

However, such recovery is not provided for by that statute either.13

 See Ala. Code.

§ 6-5-410. 

III. CONCLUSION

For the reasons stated above, we affirm the district court’s order precluding

plaintiff Tucker, a nondependent survivor, from recovering loss of society

damages in his wrongful death action under general maritime law for the death of

his nonseaman son. 

AFFIRMED.