Batkiewicz v. Seas Shipping Co.

• Decision Date: 24 September 1943
• Citation: 53 F. Supp. 802
• Parties: BATKIEWICZ v. SEAS SHIPPING CO., Inc.
• Court: U.S. District Court — Southern District of New York

53 F. Supp. 802

BATKIEWICZ v. SEAS SHIPPING CO., Inc.

District Court, S. D. New York.

September 24, 1943.

Paul C. Matthews, of New York City (Archibald F. McGrath, of New York City, of counsel), for plaintiff.

Frank V. Barns, of New York City, for defendant.

HULBERT, District Judge.

This civil action was brought to recover damages resulting from the alleged death of a seaman who, in May 1941 sailed from New York as a member of the crew of the S/S Robin Moor which, on or about May 21, 1941, was torpedoed and sunk.

Plaintiff's alleged intestate spent 12 or 13 days in an open lifeboat, was then picked up by an English vessel and taken to Cape Town, South Africa, from whence he sailed on June 28, 1941, as a passenger on board the S/S Robin Locksley.

It is alleged that by reason of his experience, at the time the ship, in whose service he was engaged, was torpedoed, and thereafter, his mind became unbalanced and that, through the negligence of the Master of the Robin Locksley, he disappeared during the night of June 29 or the early morning of June 30, under such circumstances that plaintiff presumes that he was lost overboard.

Plaintiff, the mother of the seaman, and ten other children, filed her bill of complaint in this court on September 10, 1941, and issue was joined on November 12, 1941, by the service of the defendant's answer, in which it admits operation and employment of the plaintiff's alleged intestate at the time of and prior to the torpedoing of the Robin Moor and the operation, and transportation of the plaintiff's intestate as a passenger, on the Robin Locksley.

In her complaint, plaintiff states: "Eleventh: Plaintiff elects to maintain this action under the provision of Section 33 of the Merchant Seamen's Act of June 5, 1920, c. 250, 41 Stat. 1007, otherwise known as the Jones Act."

The depositions of some witnesses were taken at the instance of the plaintiff. On May 8, 1942, the defendant sought to remove the case from the calendar by reason of its inability to secure the testimony of various members of the crew who had since engaged in the pursuit of their respective employments on other vessels and their whereabouts were uncertain or unknown.

Five successive postponements were had at the instance of the defendant, for similar reasons.

In June 1943 plaintiff's attorney joined in a request to adjourn the case until the October 1943 Term because a doubt had arisen in his mind in the meantime whether the Jones Act or the Death on the High Seas Act is applicable and he desired to bring on this motion for an order amending paragraph Eleventh of the complaint to read as follows: "Eleventh: Plaintiff elects to maintain this action under the provision of Section 33 of the Merchant Seamen's Act of June 5, 1920, c. 250, 41 Stat. 1007, otherwise known as the Jones Act, or under the Death on the High Seas Act of March 30, 1920, c. 111, 41 Stat. 537, or under the statute appropriate to the facts as outlined in this case," and permitting the plaintiff, in the event the requested amendment is allowed, to proceed at common law under the Death on the High Seas Act, and in the event the requested amendment is not allowed, to use the depositions and testimony already taken in this case in a suit between the same parties commenced on the admiralty side of this Court (index number Ad. 127—294/1943).

The statute, commonly known as Death on the High Seas Act of March 30, 1920, provides as follows: "Section 761. Right of action; where and by whom brought. 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, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relatives against the vessel, person, or corporation which would have been liable if death had not ensued. (Mar. 30, 1920, c. 111, § 1, 41 Stat. 537)" 46 U.S.C.A. § 761.

Both the Jones Act (Section 688) and the Death on the High Seas Act (Section 761) 46 U.S.C.A., authorize the maintenance of an action by the personal representative of the deceased seaman. The Jones Act states the qualification "for damages at law, with the right of trial by jury", whereas the Death on the High Seas Act contains the language "may maintain a suit for damages in the district courts of the United States, in admiralty."

The defendant contends:

1. That by this motion the plaintiff attempts to set up a new cause of action of which only a court of admiralty has jurisdiction.

2. Since it is claimed that plaintiff's alleged intestate lost his life on or about June 30, 1941, the cause of action is barred by the statutory two year limitation. 46 U.S. C.A. § 763.

The first question thus presented is whether any claim which the plaintiff may have under the Death on the High Seas Act is barred.

Plaintiff is seeking to amend her complaint only to the extent of basing her claim upon an additional statutory provision. It is not a new suit upon other facts, but merely presents to the trial court for consideration and determination whether, upon the same facts, she has a cause of action under the Death on the High Seas Act, as well as the Jones Act, either, or both.

While it is true that she has...