Broere v. TWO THOUSAND ONE HUNDRED THIRTY-THREE DOL., 18417.

• Decision Date: 13 June 1947
• Docket Number: No. 18417.,18417.
• Citation: 72 F. Supp. 115
• Parties: BROERE v. TWO THOUSAND ONE HUNDRED THIRTY-THREE DOLLARS et al.
• Court: U.S. District Court — Eastern District of New York

72 F. Supp. 115

BROERE v. TWO THOUSAND ONE HUNDRED THIRTY-THREE DOLLARS et al.

No. 18417.

District Court, E. D. New York.

June 13, 1947.

Townley, Chanbers & Clare and Walter E. Warner, Jr. all of New York City, for Robert E. Amott as Adm'r of Estate of Charles A. Amott, deceased, appearing specially on this motion.

Edward Goodell, of New York City, for libelant, opposed.

KENNEDY, District Judge.

This libel in rem asserts a claim for salvage. One Robert A. Amott, administrator of the goods and chattels of Charles A. Amott, deceased, intervenes, and moves upon a "special appearance" to dismiss the libel on several grounds. In support of the application, he files affidavits, and libelant replies to these. Of course, this procedure is irregular. But, as will presently appear, that irregularity is not important. The operative facts are not the subject of any dispute. And even were this not so, it is possible to treat the motion as an exception grounded on the contention that, even if true, the allegations of the libel do not together constitute a claim within the admiralty jurisdiction of the court.

On January 3, 1947, Charles A. Amott, who lived in Bayshore, Long Island, commenced a voyage in the waters of the Great South Bay. He was operating a flat bottom boat, 18 feet long and 6 feet in beam, powered by a small gasoline motor. In his pocket he had in United States currency the sum of $2,133. On the same day Amott's boat capsized and he was drowned. More than three months later, April 17, 1947, libelant, while navigating Great South Bay in the vicinity of Fire Island, sighted Amott's body afloat. Libelant attempted to haul the body into his boat but, being unable to do so, he attached a rope to it and towed it to Bayshore where he turned it over to the Police Department of the State of New York. The Police Department, in turn, delivered the currency found on Amott's body to the respondent Grover A. Silliman, Coroner of Suffolk County. It is upon this basis that libelant claims an award of salvage, as the libel makes clear, despite its rather crude form.

Really the attack on the libel is based upon the broad ground that money found on a body floating in navigable waters cannot be the subject of salvage.¹ The intervening claimant has standing thus to challenge the libel, because, as administrator of the goods and chattels of the decedent, he will be entitled to all or part of the monies found.

The intervenor relies heavily upon the case of Cope v. Vallette Dry Dock Co., 1887, 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501. There the supposed subject of salvage was a fixed floating dry dock. After taking proof, the District Court for the Eastern District of Louisiana, D. C., 1882, 10 F. 142, dismissed the libel upon a plea to the jurisdiction. The Circuit Court found as a conclusion of law that there was no jurisdiction, and affirmed the District Court's decree, C.C.La., 1883, 16 F. 924. The Supreme Court, in turn, affirmed the Circuit Court, Mr. Justice Bradley writing a brief opinion. But that very opinion recognizes that the furniture or cargo of a ship or vessel, which come clearly under the heading of wreck, flotsam, jetsam, ligan, or derelict, may be the subject of salvage. The decree of dismissal in the Cope case was affirmed, because the structure salved, being fixed, was not maritime in its nature, i. e., it was not used for the purpose of navigation. The decision, therefore, does not touch the question whether money found on a dead body, which probably comes within the category of derelict, may be the basis for an award to the person responsible for saving it.² There is, at least, one case holding squarely that salvage is proper in such a case. Gardner v. Ninety-Nine Gold Coins, D.C.D.Mass., 1889, 111 F. 552. Judge Lowell, after writing a short opinion, made an allowance to the owners, master, and crew of a fishing schooner, who had found the floating body of a passenger drowned when S. S. Bourgoone was sunk in collision. On the body there was a wallet containing coins and bank notes to the value of $1,050. Judge Lowell calls the case one of salvage of a derelict in the greatest danger of complete loss. And the fact that there was no danger or expense did not deprive the salvors of an award, because offsetting this circumstance was the unusual temptation to appropriate the entire property, something which is obviously true in the case at bar. In support of his exception, the intervenor argues that this case is to be distinguished, because the body in the Gardner case was unidentified, whereas here identity has been established and letters of administration granted on the decedent's estate. But that can hardly be called a controlling fact; Judge Lowell, in the Gardner case, directed that what remained after the execution of his decree should be turned over to the Public Administrator. The intervenor also makes much of a passage in Robinson's Handbook of Admiralty Law in the United States (1939 Ed., p. 712). While recognizing the fact that a box or cask lost overboard from a ship falls into the category of marine property, Professor Robinson takes the position that a train wrecked on the Florida Keys so that some of the cargo is cast into navigable waters would not create a cause of salvage. But the suppositions case last mentioned is not this case, because here Amott, according to the allegations of the libel, clearly embarked on a maritime venture, whereas the shipper of goods on a railroad does not.

A case nearly in point here is The Emblem, D.C.D.Me., 1840, Fed. Cas. No. 4,434, Dav. 61 2 Ware 68. There, a vessel bound for Havana had been wrecked. The crew and passengers were compelled to lash themselves to the wreck, in order that they might not be washed overboard. Many ships passed, and as time went on, one after another of the crew and pasengers drowned, leaving but few survivors. These...