The Hamilton
| Decision Date | 22 June 1906 |
| Docket Number | 276-2. |
| Citation | 146 F. 724 |
| Parties | THE HAMILTON. THE SAGINAW. |
| Court | U.S. Court of Appeals — Second Circuit |
Harrington Putnam and Henry E. Mattison, for appellant Old Dominion Steamship Company.
J Parker Kirlin, Howard M. Long, and John M. Woolsey, for claimants Goslee, Morris, and Elam.
Arthur L. Fullman, for claimant Gilmore.
George W. Betts, Jr., for claimants Swanson and Lawson.
On appeal and cross-appeal from a decree of the District Court for the Southern District of New York, granting the petitions of the Old Dominion Steamship Company, owner of the steamship Hamilton, and of the Clyde Steamship Company, owner of the steamship Saginaw, for a limitation of their liability for damages arising out of a collision between said vessels in a dense fog, as a result of which the Saginaw sank, causing loss of life, injury to persons and damage to cargo. The District Court held both vessels in fault for running at excessive speed in a fog. Both vessels were owned by corporations created under the laws of Delaware and, as that state permits a recovery for loss of life, the District Court held that the claimants, representing the passengers and members of the crew who were drowned by the sinking of the Saginaw, were entitled to recover in the admiralty. The opinion of the District Judge, stating all the salient facts and citing the leading authorities bearing upon the questions debated, is reported in 134 F. 95.
A reference to fix the amount of damages was ordered but before the hearing by the commissioner all claims except those for loss of life were compromised and settled, and since the report one of these claims has been settled and withdrawn. The commissioner, after a careful and painstaking examination of the facts and law, sustained the claims and fixed the amount of damages. Exceptions being filed, the District Court reduced the award of damages in each instance and, as so modified, confirmed the report. The opinion of The district Judge setting out in full the report of Commissioner Goodrich is reported in 139 F. 906. The following table shows the names of the deceased persons, the amount of the claims as filed and the amounts allowed respectively by the commissioner and the court:
Name. Claim. Commissioner. Court.
Gilmore passenger ...... $10,200 $3,500 $2,000
Goslee, chief officer .... 20,000 7,500 6,000
Morris, chief steward .... 15,000 4,500 3,000
Swanson, passenger ....... 12,000 4,250 2,750
Sarah Elam, stewardess ... 15,000 2,500 1,500
Page, cook ................ 8,100 4,250 3,000
The questions presented by this appeal are:
First. Does the Delaware statute apply to a claim for death on the high seas arising purely from tort?
Second. Can the representatives of the deceased members of the crew of the Saginaw recover their claims in full against the Hamilton?
Third. Had the court discretion to permit an amendment changing the capacity in which the claimants sued?
Fourth. Shall the awards made by the court be increased or reduced?
Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.
COXE Circuit Judge (after stating the facts).
The three opinions, which have already been delivered in the course of this litigation, so fully and clearly state the facts and the law that little can be said by this court which is not a repetition of what appears in the Reports.
In International Nav. Co. v. Lindstrom, 123 F. 475, 60 C.C.A. 649, this court decided that the sovereignty of a state extends to the vessels of the state upon the high seas, and if the law of the state permits a recovery for damages occasioned by a tortious act actually within the boundaries of the state.
In the recent case of La Bourgogne (C.C.A.) 139 F. 433, 439, we had occasion to reaffirm this doctrine as to death claims growing out of a collision in a fog on the high seas, the Bourgogne being sunk with great loss of life. The law of France permits a recovery in such circumstances and, in a proceeding to limit the liability of the owner, we held that the French law extended to and operated upon the Bourgogne in midocean.
We are informed that the Supreme Court has recently granted a certiorari in the Burgogne Case and, in view of the similarity of the questions involved, it is not improbable, should a petition for a writ be filed, that a similar course may be taken in the case at bar. We see no impropriety in saying that such a result would be gratifying to us.
The facts in hand, of course, are not identical with those in the cases cited, but we are of the opinion that they cannot be successfully distinguished because of these differences.
The right of action provided by the Delaware statutes is not founded on contract but on tort. 'Whenever death shall be occasioned by unlawful violence or negligence' the personal representatives may maintain a suit in every case where the decedent could have maintained it had the injuries not resulted in death. Both vessels belonged to Delaware and those on board, whether passengers or members of the crew, were, in contemplation of law, within the territory of that state.
Assume that the Hamilton had negligently run into and sunk the Saginaw in the harbor of Wilmington, Del., causing the death of the persons in question, can there be a doubt that the claimants here would have a right of action at common law against the Old Dominion Company under the statute of that state? It would be no defense to such an action to show that the owner of the Saginaw was also negligent. One of two joint tort-feasors may not defend an action against himself by showing that the other wrongdoer was equally responsible. Little v. Hackett, 116 U.S. 366, 6 Sup.Ct. 391, 29 L.Ed. 652.
We do not see, either, how the question of negligence of a fellow servant could arise in such an action. The crew of the Saginaw were not fellow servants with the crew of the Hamilton and the persons who were drowned cannot be considered as fellow servants with the master of the Saginaw who, so far as that ship is concerned, was the only person at fault for her excessive speed. No case with which we are familiar has gone to the extent of holding that the captain of a vessel is a fellow servant with the...
To continue reading
Request your trial
-
THE FRIENDSHIP II
... ... Admiralty courts have held that where the law of the country of the ship's flag allows recovery for a wrongful death on land a libel will lie for such a death at sea. The Hamilton (Old Dominion S. S. Co. v. Gilmore), 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264, La Bourgogne (Deslions v. La Compagnie Generale Transatlantique), 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973. The matter is now put under a uniform rule by federal statute. 46 U. S.C.A. §§ 761-768.1 Congress has made no ... ...
-
Deupree v. Levinson, 11104.
... ... A. The S. S. Nea Hellis, 2 Cir., 116 F.2d 803; The Beaconsfield, 158 U.S. 303, 15 S. Ct. 860, 39 L.Ed. 993; Boston Ins. Co. v. City of New York, 2 Cir., 130 F.2d 156. Amendments are permitted in admiralty with much more liberality than at common law. The Hamilton, 2 Cir., 146 F. 724 ... In accordance with these principles it is held that an amendment of a libel dates back to the original filing. Flynn Export Co. v. E.D. 2 Benedict on Admiralty, 562. This is true even though the statute of limitations has intervened. Hanson v. U. S. (The ... ...
-
Petition of Gulf Oil Corporation
... ... The crew members had died aboard the Government vessel or in the adjacent waters. Judge Hand granted recovery under a New Jersey statute, now N.J.S. A. 2A:31-1, interpreting The Hamilton 35 to teach that the law of the tortfeasor's residence created an obligation to respond in damages to the decedents' dependents, and that the admiralty courts would enforce that obligation. Judge Hand felt that it was an irrelevant fact, in The Hamilton, that the decedents had died aboard a ship ... ...
-
The Nyack
... ... The master is not a fellow servant of the ... crew. Fallon v. Cornell Steamboat Co. (C.C.) 162 F ... 329, a case of collision, where the vessel was held liable ... Nor is the master a fellow servant with the cook, the ... stewardess, or other inferior members of the crew. The ... Hamilton, 146 F. 724, 77 C.C.A. 150, affirmed 207 U.S. 398, ... 28 Sup.Ct. 133, 52 L.Ed. 264; Trauffler v. Detroit & ... Cleveland Nav. Co. (D.C.) 181 F. 256. The ship is not ... liable for an injury caused by the negligence of the mate, ... beyond maintenance and cure. The Charles H. Klinck (D.C.) 172 ... ...