                 United States Court of Appeals,

                          Fifth Circuit.

                           No. 92-5133.

     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.

                         March 28, 1994.

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

Before POLITZ, Chief Judge and GARWOOD, Circuit Judge, and PARKER*,
District Judge.

     ROBERT M. PARKER, District Judge:

     In this consolidated case arising in admiralty, Plaintiff-

Appellant Jimmie John Miller, Jr. (Miller) filed suit against

Defendant-Appellee Petroleum Helicopters, Inc. (PHI) for injuries

allegedly sustained in a helicopter crash in the Gulf of Mexico on

July 14, 1988. Following PHI's pre-trial stipulation of liability,

the only issue at trial was damages.   The sole legal question was

whether Miller's wife (Jolain Miller) had a claim for loss of

consortium under general maritime law.     The district court held

that damages for loss of consortium were not recoverable under

general maritime law, but awarded Miller $12,000 for general


     *
      Chief Judge of the Eastern District of Texas, sitting by
designation.

                                1
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 the court's holding that loss of consortium is not cognizable

under general maritime law.    We AFFIRM.

                              BACKGROUND

     On July 14, 1988, Jimmie Miller, an employee of Forest Oil

Company, was enroute with other crew members to an oil platform in

the Gulf of Mexico, aboard a PHI helicopter.   Upon takeoff from a

platform on which the helicopter stopped to drop off some of the

crew members, the helicopter crashed in Vermilion Block 255B, some

eighty miles off the shore of Louisiana, killing one of the eight

crew members on board.    Six of the helicopter occupants filed

personal injury actions which were consolidated;   only the present

action was litigated.

     Prior to trial, PHI stipulated to liability and Miller waived

claims for punitive damages.    The issue before the district court

was the amount of Miller's damages for physical and emotional

suffering, and for economic loss.      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 district court's damage assessment was complicated by two

factors.   First, Miller had been employed in an extremely heavy

manual labor occupation 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


                                  2
accident."     As a result, the court was left to determine to what

degree the helicopter crash contributed to Miller's injuries.

Specifically, the threshold question was whether the helicopter

crash caused a herniated disc or whether it merely aggravated

pre-existing problems.         The same analysis was necessary for the

emotional suffering claim as Miller had abused both drugs and

alcohol in the past.

      The district court concluded that the preponderance of the

evidence did not show Miller had suffered a herniated disc as a

result of the accident.        At worst, the crash merely caused a back

strain and pain due to a pre-existing osteoarthritic condition.

The court decided that the pain Miller had suffered would be

adequately compensated by $9,000.

      The conclusion that the accident caused a mere back strain was

also dispositive of the district 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 that Miller

could soon return to work.       As the court noted, its evaluation was

substantiated by all but one of the orthopedists and neurologists

that examined Miller.      The findings and awards were influenced by

the court's view of Miller's credibility as a witness.

      As to Miller's claim of psychological damage, the district

court found that the evidence was again far from clear concerning

the   cause   of    Miller's   problems.         The    court   noted   Miller's

pre-accident       substance   abuse,       beginning   in   high   school   and

continuing while he worked for Forest Oil, and his short stay in a


                                        3
detoxification program after the accident.     Although causation of

Miller's mental problems was tenuous, the court found that some

depression was independently caused by the accident.    Accordingly,

the court awarded Miller $3,000 for his mental suffering.

                            DAMAGE FINDINGS

         The standard of review to apply in our inquiry into all

findings of fact, including damage awards, is a clearly erroneous

standard.    See Graham v. Milky Way Barge, Inc., 824 F.2d 376, 389,

reh'g den'd, 832 F.2d 1264 (5th Cir.1987).    Damage awards will not

be disturbed unless "we are convinced that an error has been

committed."     Id. at 389-90.1   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.' "     Graham v. Milky Way Barge, Inc., 824 F.2d at

388 (citing United States v. Gypsum, 333 U.S. at 395, 68 S.Ct. at

542) (emphasis added).

         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 credibility

assessment but for its pervasive errors in findings.      As we have


     1
      See United States v. Gypsum Co., 333 U.S. 364, 395, 68
S. Ct. 525, 542, 92 L. Ed. 746, reh'g den'd, 333 U.S. 869, 68 S. Ct.
788, 92 L. Ed. 1147 (1948) (holding that fact findings are
reversed only where "clearly erroneous").

                                   4
said before, "this Court should be wary of attempting to second

guess the district court, which has the decided advantage of first

hand experience concerning the testimony and evidence presented at

trial."        Graham v. Milky Way Barge, Inc., 824 donna83@example.net.

Following this sound advice and upon review of the record, this

Court cannot say that it 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 or the fact findings were clearly

erroneous.       As a result, the damage awards which were predicated

upon these findings cannot be an abuse of discretion.

                              LOSS OF CONSORTIUM

         The recoverability of damages for loss of consortium is a

legal question that is subject to de novo review. Pullman-Standard

v. Swint, 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 contends that the district court erred in finding that

general maritime law precludes his claim for loss of consortium.

Although       Miller   recognizes   that   Miles   v.   Apex    Marine   Corp.2

prevents such a claim in a seaman's wrongful death suit, he argues

     2
      498 U.S. 19, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990). This
rule has been extended by this Court to apply to a seaman's
personal injury suit as well. See Michel v. Total Transp., Inc.,
957 F.2d 186, 191 (5th Cir.1992); and Murray v. Anthony J.
Bertucci Const. Co., Inc., 958 F.2d 127, 131-32 (5th Cir.1992),
cert. denied, --- U.S. ----, 113 S. Ct. 190, 121 L. Ed. 2d 134
(1992).

                                       5
that in a case involving a non-seaman, or longshoreman such as

himself, recovery for loss of consortium, established in Sea-Land

Services, Inc. v. Gaudet3, has not been limited.          Miller contends

that the purpose in disallowing seamen a remedy for loss of

consortium in Miles was to bring uniformity between the remedies

available under general maritime law, the Jones Act, and the Death

on the High Seas Act (DOHSA).      Miller argues, however, that because

neither the Jones Act nor DOHSA applies to longshoremen, the

uniformity purpose has no effect.              Therefore, any limitations

imposed by the Supreme Court's decision in Miles have no effect on

a longshoreman's loss of consortium claim.

     In Gaudet, the Supreme Court held that the decedent's wife

could recover for loss of consortium in a maritime wrongful death

action involving a longshoreman.4          Four years later, the Court

limited its holding in Gaudet to deaths occurring in territorial

waters.     Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S. Ct.
2010, 56 L. Ed. 2d 581 (1978).       The Court concluded that in actions

involving    death   on   the   high   seas,    recoverable   damages   were

specifically limited to pecuniary losses under DOHSA.              Thus, a

dependent cannot recover loss of consortium.             This decision in

Higginbotham created an inconsistency between deaths in territorial

waters, where loss of consortium was available under Gaudet, and

     3
      414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974), reh'g
den'd, 415 U.S. 986, 94 S. Ct. 1582, 39 L. Ed. 2d 883 (1974).
     4
      Although the Supreme Court characterized the plaintiff's
claim in Gaudet as a loss of society, this Court interprets a
claim for loss of society to be substantially the same as a claim
for loss of consortium.

                                       6
deaths on the high seas.

     Only two years later, in American Export Lines, Inc. v.

Alvez5, the Supreme Court held that an injured harbor worker's wife

could recover for loss of consortium under general maritime law.

The Court relied on Gaudet in extending the recovery that was

already available to the dependents of longshoremen who were killed

within    the    scope   of   employment   to    injured     longshoremen's

dependents.     American Export Lines, Inc. v. Alvez, 446 U.S. at 281,

100 S.Ct. at 1677.

     The Supreme Court attempted to remedy the anomaly it had

created between Gaudet and Higginbotham through its decision in

Miles by restoring "a uniform rule applicable to all actions for

the wrongful death of a seaman, whether under DOHSA, the Jones Act,

or general maritime law."      Miles v. Apex Marine Corp., 498 U.S. at

32, 111 S.Ct. at 326.     In addition, the Court specifically limited

Gaudet to its facts.      The Court found that the "holding of Gaudet

applies   only   in   territorial   waters,     and   it   applies   only   to

longshoremen."     Miles, 498 U.S. at 31, 111 S.Ct. at 325;          see also

Murray v. Anthony J. Bertucci Const. Co., Inc., 958 donna83@example.net.

This Court later held that the Supreme Court's decision in Miles

also extended the restrictions placed on Gaudet to the holding in

Alvez.    See Murray v. Anthony J. Bertucci Const. Co., Inc., 958
donna83@example.net.

     The Supreme Court's explicit limitation of Gaudet to its

facts, as well as its implicit limitation of Alvez to its facts as

     5
      446 U.S. 274, 100 S. Ct. 1673, 64 L. Ed. 2d 284 (1980).

                                    7
interpreted by this Court, indicates that the Supreme Court did not

intend to overrule Gaudet or Alvez.          As a result, we are unable to

extend the uniformity rule of Miles to longshoremen killed or

injured in territorial waters. Therefore, an inconsistency remains

between deaths and injuries of longshoremen in territorial waters,

where loss of consortium is available under Gaudet and Alvez, and

death and injuries of longshoremen on the high seas.               Until such

time as the Supreme Court resolves this inconsistency with regard

to longshoremen, we must apply the law as it exists today.

     In   applying   the   law   to    the   facts   in   this   case,   it   is

uncontested that the injuries of which Miller complains were the

result of a casualty occurring some eighty (80) miles off the

Louisiana coast, outside territorial waters.6              Because Miller's

injuries occurred outside territorial waters, Miller's claim fails

to satisfy one of the two equally important requirements of Gaudet

and Alvez as limited by Miles;         and it must, therefore, fail.

                                 CONCLUSION

     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.




     6
      Miller testified in trial that the helicopter crashed upon
takeoff from Vermillion 255B, approximately eighty miles
offshore.

                                       8
