Abbott v. United States

• Decision Date: 08 June 1962
• Citation: 207 F. Supp. 468
• Parties: The amended Libels in personam of Alfreda ABBOTT, as Administratrix of the Estate of David W. Abbott, Deceased; et al., Libellants, v. The UNITED STATES of America, et al., Respondents. The Libels in personam of Elizabeth CUDNIK, as Administratrix of the Estate of Chester John Cudnik, Deceased; et al., Libellants, v. The UNITED STATES of America et al., Respondents. The Libel in personam of Mary A. BROWN, as Administratrix of the Estate of Vincent Brown, Deceased; etc., Libellant, v. MORAN, PROCTOR, MUESER & RUTLEDGE, et al., Respondents.
• Court: U.S. District Court — Southern District of New York

207 F. Supp. 468

The amended Libels in personam of Alfreda ABBOTT, as Administratrix of the Estate of David W. Abbott, Deceased; et al., Libellants, v. The UNITED STATES of America, et al., Respondents.

The Libels in personam of Elizabeth CUDNIK, as Administratrix of the Estate of Chester John Cudnik, Deceased; et al., Libellants, v. The UNITED STATES of America et al., Respondents.

The Libel in personam of Mary A. BROWN, as Administratrix of the Estate of Vincent Brown, Deceased; etc., Libellant, v. MORAN, PROCTOR, MUESER & RUTLEDGE, et al., Respondents.

United States District Court S. D. New York.

June 8, 1962.

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George J. Engelman, New York City and Harry Kisloff, Boston, Mass., for libellant Abbott et al.

Whitman, Ransom & Coulson, New York City, Forbes D. Shaw and Paul M. O'Connor, Jr., New York City, of counsel, for respondent Moran, Mueser & Rutledge et al.

Nevius, Jarvis & Pilz, New York City, Macklin, Speer, Hanan & McKernan and Charles J. Carroll, Jr., New York City, of counsel, for respondents J. Rich Steers, Inc. and Morrison Knudsen Co., Inc.

Kuzmier, McKeon, Schmitt & Carberry, New York City, Kreindler & Kreindler and Paul S. Edelman, New York City, of counsel, for libellant Cudnik et al.

Frank J. Amabile, New York City, and Philip A. Tracy, Boston, Mass., for libellant Mary A. Brown.

METZNER, District Judge.

In these three libels, fourteen different libellants seek to recover damages for the wrongful death, bodily injury, and conscious pain and suffering of their decedents, who were drowned on January 15, 1961, when Texas Tower No. 4, an offshore radar station, located about eighty-four miles southeast of Coney Island, collapsed during a storm and fell into the sea. Two of the libels were filed in July 1961 and the third in December 1961. Respondents Moran, Proctor, Mueser & Rutledge (hereinafter referred to as Moran), a partnership, J. Rich Steers, Inc., and Morrison Knudsen Co., Inc. have brought on certain exceptions to the libels.¹

The fourth claim of the Abbott libel, against Moran and the members of the partnership,² alleges that they are architectural and structural engineers; that on or about June 1954 the United States employed these respondents to study the feasibility of erecting an off-shore radar tower in the Atlantic Ocean; that the respondents reported that it would be feasible to erect such a tower at the site ultimately occupied by Texas Tower No. 4; and that respondents were then employed by the United States to prepare designs, plans, and specifications for the design, construction, installation, and erection of the tower. The libel further states that the tower was designed, constructed, installed, and repaired in accordance with the designs of these respondents and under their supervision. Paragraph 32 details acts of negligence allegedly committed by respondents from the time they undertook a feasibility study until November 1957, when the tower was delivered to the Navy, which acts of negligence are asserted to have caused the deaths of the decedents.

The fifth claim of the Abbott libel against Moran and its partners³ charges that from November 1957 until January 15, 1961 the tower developed structural defects and weaknesses, and some of its parts became defective and lost. It alleges that the United States employed Moran to recommend and to make designs for the repair, improvement, and structural integrity of the tower; that Moran made such recommendations and prepared such plans and supervised the repair of the tower. It further alleges that in June 1959 Moran certified to the United States that the tower had been returned to its original design strength, which it had not; that the structural integrity of the tower worsened so that in April 1960 Moran recommended, and later made plans for, further repairs, which were carried out; and that on or about August 10, 1960 Moran certified that the tower had been restored to its original design strength, which it had not. There are further detailed allegations of negligence, and that this negligence caused the deaths of decedents.

The sixth claim of the Abbott libel is against J. Rich Steers and Morrison Knudsen Co., who are construction and structural engineers.⁴ It is alleged that these respondents were employed in November 1955 to construct the tower, that they did so, and turned it over to the Navy in November 1957. The libel asserts that they were negligent, in various ways that are detailed, and that such negligence caused the deaths of decedents.

The claim of each libellant for wrongful death is joined with a claim for conscious pain and suffering. The claims for wrongful death are asserted under the Death on the High Seas by Wrongful Act Statute (hereinafter DHSA), 46 U.S.C.A. §§ 761-68.⁵ The claims for bodily injury and conscious pain and suffering are "based on the General Maritime Law" and are claimed to survive to libellants under the DHSA "and other applicable law."

For purposes of these motions, the allegations of fact contained in the libel are accepted as true. Castillo v. Argonaut Trading Agency, Inc., 156 F. Supp. 398 (S.D.N.Y.1957).

The first set of exceptions to the libels is based on the ground that the claims for wrongful death are barred by the statute of limitations. Moran excepts on the ground that the claims against it are based in whole or in part on alleged wrongful acts occurring more than two years before the institution of suit, and thus are time-barred. Steers and Knudsen interpose similar exceptions, on the ground that the claims against them are based solely on wrongful acts occurring before November 1957, and thus clearly more than two years prior to the institution of suit.

These exceptions are overruled.

The statute of limitations of the DH SA, 46 U.S.C.A. § 763, provides that "suit shall be begun within two years from the date of such wrongful act, neglect, or default * * *." Respondents argue that the language of this section, which differs from that usually found in limitations statutes, compels the conclusion that the statute runs from the date of the act allegedly done by the wrongdoer, rather than from the date of death. To adopt this interpretation would lead to an absurd result. In 1957 Steers and Knudsen performed the last act required of them by their contract. They would be protected against any claim of negligence by an injured person who was first hired more than two years after that date. This person may not have even heard of a Texas Tower, its function or operation in the two-year period. I am sure a manufacturer would be delighted if the law limited his liability for an accident caused directly by his fault to two years after delivery of his product. Such, of course, is not the policy of a statute of limitations, which is to bar stale claims which otherwise would put an onerous burden on one seeking to defend a lawsuit.

The contention made by respondents has been urged in other cases involving this Texas Tower No. 4 disaster and has been overruled. Williams v. Moran, Proctor, Mueser & Rutledge, 205 F.Supp. 208 (S.D.N.Y.1962); Brown v. Anderson-Nichols & Co., 203 F.Supp. 489 (D.Mass. 1962). The wrongful act is the initial injury which here was on the date of death, not the creation of the condition which caused the injury. See Hughes, Death Actions in Admiralty, 31 Yale L.J. 115, 126 (1921); see also dissenting opinion of Judge Frank in Dincher v. Marlin Firearms Co., 198 F.2d 821, 823 (2d Cir. 1952).

The second set of exceptions, in which all respondents join, is to the claims for conscious pain and suffering, on the ground that such claims are not encompassed within the DHSA. The libels allege the claims to be based not only on the DHSA, but also "on the General Maritime Law" and "other applicable law."

It is generally accepted that the DHSA (sections 761 and 762, supra n. 5) does not provide recovery for pain and suffering experienced by the decedent prior to his death. The cited sections by their wording are plainly within the concept of a wrongful death statute, which creates a cause of action in favor of those who have suffered pecuniary loss by a death covered by the Act. It is not a survival statute, which allows suit on claims for physical injury, pain and suffering, and loss of wages arising prior to death which existed in favor of the injured person. Williams v. Moran, Proctor, Mueser & Rutledge, supra; Brown v. Anderson-Nichols & Co., supra; Petition of Gulf Oil Corp., 172 F.Supp. 911, 916-17 (S.D.N.Y.1959); United States v. The S.S. Washington, 172 F. Supp. 905, 908 (E.D.Va.), aff'd on the opinion below, sub nom. United States v. Texas Co., 272 F.2d 711 (4th Cir. 1959); Noble v. Moore-McCormack Lines, Inc., 96 F.Supp. 369, 372 (D.Mass.1951); Decker v. Moore-McCormack Lines, Inc., 91 F.Supp. 560 (D.Mass.1950); see Hughes, supra, 31 Yale L.J. at 119-20; Comment, The Application of State Survival Statutes in Maritime Causes, 60 Colum.L.Rev. 534, 536 n. 16 (1960).

All of these cases deal with sections 761 and 762. However, section 765 provides that if during the pendency of an action by a person for injuries sustained by reason of a wrongful act, he shall die because of such act, his personal representative may be substituted in his stead and the action may proceed "as a suit under this chapter for the recovery of the compensation provided in section 762 of this title." On its face this section would turn a personal injury action into a wrongful death action, and thus there is the implication that the personal injury suit would not survive. See Petition of Gulf Oil Corp., supra, 172 F.Supp. at 916 n. 28.

There is little discussion in the authorities as to the meaning and purpose of section 765. In Pickles v. F. Leyland & Co., 10 F.2d 371 (D.Mass.1925) the court, in dictum, said that under this section "a suit survives which is brought by an injured person who dies after its commencement. This survival, however, is...