Brown v. Anderson-Nichols & Co.

Citation203 F. Supp. 489
Decision Date19 March 1962
Docket NumberNo. 61-48-C.,61-48-C.
PartiesMary A. BROWN, Administratrix of the Estate of Vincent Brown, Deceased, Libellant, v. ANDERSON-NICHOLS & CO., Inc., Respondent.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

Philip A. Tracy, Needham, Mass., Walter J. Hurley, Boston, Mass., for plaintiff.

William A. Phillips, New York City, Warren H. McCredy, Boston, Mass., for defendant.

CAFFREY, District Judge.

This is a libel brought by Mary A. Brown, Administratrix of the Estate of Vincent Brown, against Anderson-Nichols & Co., Inc., a Massachusetts corporation. The action is brought under the Death on the High Seas Act, 46 U.S.C.A. §§ 761 to 768 inclusive, to recover for the conscious suffering and death of libellant's intestate, which occurred on January 15, 1961, when Texas Tower No. 4, located about 84 miles southeast of Coney Island, New York, broke up during a storm, collapsed, and fell into the sea, allegedly causing the conscious suffering and death.

Respondent has excepted to the libel on two grounds. The first exception states:

"The libel fails to state a cause of action for the recovery of conscious pain and suffering."

Section 761 of the Act provides:

"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 relative against the vessel, person, or corporation which would have been liable if death had not ensued."

Section 762 of the Act provides:

"The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss they may severally have suffered by reason of the death of the person by whose representative the suit is brought."

The Death on the High Seas Act does not create or confer upon the statutory beneficiaries of a decedent a cause of action intended to survive the decedent for the benefit of his statutory beneficiaries, and in this respect it contrasts sharply with the provisions of the Jones Act, 46 U.S.C.A. § 688, to the extent that the Jones Act incorporates by reference Section 9 of the Federal Employers' Liability Act, 45 U.S.C.A § 59, which does provide for survival of the count for conscious suffering.

Had Congress intended to create a cause of action for conscious suffering which would survive to the representatives of the decedent or the group of beneficiaries denominated in Section 761, it indicated in the Jones Act that it was well aware of language apt to produce this result. Absent such language in the Death on the High Seas Act, no cause of action for conscious suffering is created thereby. Noble v. Moore-McCormack Lines, 96 F.Supp. 369, 372 (D.Mass. 1951); Decker v. Moore-McCormack Lines, 91 F.Supp. 560, 561 (D.Mass. 1950); Gilmore & Black, The Law of Admiralty, p. 308.

Respondent's first exception is sustained.

The second exception states:

"The libel fails to state a cause of action under the Death on the High Seas Act because suit was not
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8 cases
  • Dugas v. National Aircraft Corporation
    • United States
    • U.S. Court of Appeals — Third Circuit
    • February 26, 1971
    ...question of whether such a cause of action under a state statute would be permitted in a suit under the DOHSA. Brown v. Anderson-Nichols & Co., 203 F.Supp. 489 (D.Mass. 1962). The remaining cases lend substantial support to defendant's position. In these DOHSA cases, the courts refused to p......
  • Law v. Sea Drilling Corp.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 21, 1975
    ...Brown v. Anderson-Nichols Co., D.Mass., 1962, 203 F.Supp. 489, The Culberson, 3 Cir., 1932, 61 F.2d 194.21 Simpson v. Knutsen, O.A.S., 9 Cir., 444 F.2d 523, 525 (loss of consortium); In re United States Steel Corp., 6 Cir., 1970, 436 F.2d 1256, 1278, cert. denied sub nom. Lamp v. United Sta......
  • Hargraves v. Brackett Stripping Machine Company
    • United States
    • U.S. District Court — Eastern District of Tennessee
    • September 11, 1970
    ...Moines Co., 363 Pa. 1, 68 A.2d 517 (1949); Abbott v. United States, 207 F.Supp. 468 (S.D.N.Y.1962); Brown v. Anderson Nichols and Co., 203 F.Supp. 489 (D.Mass.1962); Williams v. Moran, et al. 205 F.Supp. 208 (S.D.N.Y.1962); Arrow Transport Co. v. Fruehauf, 289 F.Supp. 170 (D.Or.1968); Rosen......
  • Azzopardi v. Ocean Drilling & Exploration Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 1, 1984
    ...Steamship Corp., 453 F.2d 137, 140 (5th Cir.), cert. denied, 409 U.S. 948, 93 S.Ct. 286, 34 L.Ed.2d 218 (1972); Brown v. Anderson-Nichols Co., 203 F.Supp. 489 (D.Mass.1962). The legislative history of DOHSA gives no indication that the statute was intended to affect survival actions. See Ku......
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