Sabine Towing Co. v. Brennan

• Citation: 85 F.2d 478
• Decision Date: 14 August 1936
• Docket Number: 7977.,No. 7876,7876
• Parties: SABINE TOWING CO., Inc., et al. v. BRENNAN et al. VAN BEECK v. SABINE TOWING CO., Inc., et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

85 F.2d 478 (1936)

SABINE TOWING CO., Inc., et al. v. BRENNAN et al.^*

VAN BEECK v. SABINE TOWING CO., Inc., et al.

Nos. 7876, 7977.

Circuit Court of Appeals, Fifth Circuit.

August 14, 1936.

COPYRIGHT MATERIAL OMITTED

M. A. Grace and Edwin H. Grace, both of New Orleans, La., for Sabine Towing Co., Inc., and others.

M. G. Adams, of Beaumont, Tex., H. C. Hughes and J. W. Lockhart, both of Galveston, Tex., and W. M. Crook, of Beaumont, Tex., for Sophia Brennan and others.

M. G. Adams, of Beaumont, Tex., and H. C. Hughes, of Galveston, Tex., for Charles Van Beeck.

Before FOSTER, SIBLEY, and WALKER, Circuit Judges.

FOSTER, Circuit Judge.

These cases present an appeal and cross-appeal in admiralty from a judgment awarding damages for the death of certain members of the crew of the tugboat Edward F. Coney, owned by appellant, Sabine Towing Co., Inc., hereafter called the company, which vessel foundered in the Gulf of Mexico on January 28, 1930, with the loss of her entire crew of 14. The company filed a petition for limitation of liability which was denied, on the ground that the vessel was lost because unseaworthy, to the knowledge of her owners. (C.C.A.) 72 F.(2d) 490. Claims were filed in that proceeding by personal representatives of 8 members of the crew, hereafter called claimants, and were referred to a Commissioner to take the evidence and recommend the amounts to be recovered. In due course the Commissioner reported. Exceptions to the report were filed by the company, on the ground that the awards were too high. The claimants also excepted to the report on the ground that the awards were too low. All exceptions to the Commissioner's report were overruled and the amounts he recommended were adopted by the court, except as to one claim which was disallowed. Judgment was entered accordingly.

So far as he discussed it, the Commissioner correctly interpreted the law. He reviewed the evidence to some extent in making his report but did not specifically find the facts as to any claim. It is not clearly shown what formula he used in determining the amounts to be awarded.

The law is well settled. The claimants are entitled to recover in admiralty, under the provisions of section 33 of the Merchant Marine Act of June 5, 1920 (46 U.S.C.A. § 688), which incorporates the provisions of the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.) by reference. Lindgren v. U. S., 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686. There may be only one recovery by the personal representative of the deceased for the benefit of all the persons entitled to damages under the act. The measure of damages is compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased. In estimating this the earning power of money must be considered and an amount determined, which, capitalized at a reasonable rate of interest, would yield annually the same income the person injured might have expected from the deceased, using the interest and part of the capital from year to year. To determine this amount standard tables prepared by actuaries may be used. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A.1917F, 367.

Pecuniary loss to be recovered may include damages, "when the beneficiary is a child, for the loss of that care, counsel, training, and education which it might, under the evidence, have reasonably received from the parent, and which can only be supplied by the service of another for compensation." Michigan Central R. Co. v. Vreeland, 227 U.S. 59-71, 33 S.Ct. 192, 196, 57 L.Ed. 417.

There are certain features common to all the claims. Claimants offered an insurance actuary as a witness. He testified as to the joint expectation of life of the deceased and beneficiary. Since there is no evidence in the record to the contrary, we must accept that testimony as part of a reasonable basis for the determination of the amount to be awarded in each case. The actuary also testified as to the present value of money capitalized at 3½ and 4 per cent. per annum interest. On this testimony claimants contend that they should have been awarded damages on the present value of the amount of annual income lost for the joint expectancy of life, capitalized at 3½ per cent.

Six claims were presented for the benefit of the widows of the deceased seamen. Every widow testified, in substance, that her husband was strong and healthy, sober and industrious and devoted to his wife and family; that he turned over his entire wages to her every month and used not over $10 to $15 per month for his personal expenses. However, it also appears that the wives paid all the bills for the support of the family and, in some instances, installments on articles bought on time. Three of these claims were also for the benefit of minor children. There is nothing in the evidence, except the general statement of the widow that the father was devoted to his children and gave them his care and affection when at home, to show the pecuniary value of his services to the children or that another would of necessity have to be employed to furnish the same care.

We must endeavor to do justice between the parties, the company as well as the claimants. There is no mathematical formula for exactly determining the loss. Any amount fixed is of necessity hypothetical. We may not consider what might happen in the future. The earnings of the deceased might have increased or diminished had they lived. Some beneficiaries might squander their recovery in a year or two. Others might preserve it intact for many years, using only the annual interest, or by successful business ventures double it. All this is too speculative to have a place in determining the award.

The legal rate of interest in Texas is 10 per cent. per annum. Doubtless many well-secured loans are made at that rate. United States bonds as a rule do not pay more than 3 per cent., but there are many state bonds and sound industrial securities that pay at least 6 per cent. per annum interest. Courts are not bound to adopt either the highest or the lowest rate of interest in determining the amount to be awarded. In Ramjak v. Austro-American S. S. Co., 186 F. 417, we adopted the rate of 6 per cent. per annum as reasonable in determining the decreased earning capacity of a passenger injured on a vessel. In U. S. v. Boykin, 49 F.(2d) 762, we again adopted the rate of 6 per cent. per annum in awarding damages to a father for the death of his son. We consider that rate just and reasonable.

Assuming the testimony of the widows to be truthful, it is beyond dispute that the husbands, upright, faithful, and devoted, derived as much benefit from the upkeep and happiness of the family as did the wives. We consider it to be a fair estimate to say the family had lost an amount equivalent to one-half of what the husband and father earned.

We may take up the various awards in the order in which they appear in the judgment, allowing recoveries in round figures to conform as near as they may to a fair estimate of the damages suffered.

William Brennan was master of the tug. His wages were $200 per month at the time of his death. His average earnings for thirteen months had been $161.58 per month. A claim was filed for the benefit of his widow, Sophie Brennan, and three minor children, Audrey, aged 8, William aged 6 and Gloria, aged 3. Judgment was rendered for $21,000 in proportions of $15,000 to the widow, $1,500 to Audrey, $2,000 to William and $2,500 to Gloria. Fixing the loss to the widow and children at $1,200 per annum, an amount of $15,250, capitalized at 6 per cent. for the life expectancy, which was 24 years, would fully cover the loss. The statute does not require that the court should apportion the recovery among the beneficiaries, Central Vermont Railway Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252, but it is usually done. Where there are a number of beneficiaries in the class entitled to recover, and the evidence discloses that their expectancies are different, it is proper to do so. In the case of a recovery for the benefit of a widow and her minor children, there is hardly any need to apportion the amount between them. Naturally, the minor children will receive full benefit from any award made to the mother. However, the District Court has seen fit to do so in this case. Appellant has no interest as to this and appellee has made no objection. We do not consider that any distinction should be made between the children because of the difference in their ages. The amount apportioned to them will probably be administered by the mother, as guardian or trustee. The only practical result of the apportionment would be to have the amount set aside to them, to be available when they reach majority. We consider that the apportionment of $1,000 to each of the children would be proper. This will be sufficient to include any theoretical pecuniary recovery for the loss of the father's care and guidance.

Orville Glenn Pyle was chief engineer of the tug. His wages were $190 per month at the time of his death. For 13 months his earnings had averaged $182.31 per month. A claim was filed for the benefit of his widow, Bertha M. Pyle. There were no children, issue of the marriage. Judgment was rendered for $20,000. The life expectancy was 25 years. Whether there be one or many of the class entitled to recover is not material. Fixing her loss at $1,140 annually, she is entitled to an award of $14,750.

Cyrus Durio was steward and cook on the tug. His wages were $85 per month. His average for 13 months was $86.95. A claim was filed for the benefit of his widow, Mrs. Adolphine Durio, and three minor children, Mildred, aged 16, Earline, aged 13, and Joseph, aged 9. Judgment was rendered for $9,000 in proportions of $7,300 to the widow, $400 to Mildred, $500 to Earline and $800 to Joseph. The life...