Batkiewicz v. Seas Shipping Co.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 53 F. Supp. 802
• Parties: BATKIEWICZ v. SEAS SHIPPING CO., Inc.
• Decision Date: 24 September 1943

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

53 F. Supp. 803

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...