Burstein v. United States Lines Co., 123.

• Decision Date: 10 February 1943
• Docket Number: No. 123.,123.
• Citation: 134 F.2d 89
• Parties: BURSTEIN v. UNITED STATES LINES CO.
• Court: U.S. Court of Appeals — Second Circuit

134 F.2d 89 (1943)

BURSTEIN v. UNITED STATES LINES CO.

No. 123.

Circuit Court of Appeals, Second Circuit.

February 10, 1943.

Lester Lyons, of New York City (Saul Sperling, of New York City, on the brief), for appellant.

Vernon S. Jones, of New York City (Kirlin, Campbell, Hickox, Keating & McGrann and Raymond Parmer, all of New York City, on the brief), for appellee.

Before L. HAND, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

The question involved herein is whether Rev.Stat. § 4283A, 46 U.S.C.A. § 183b, forbidding the owner of a vessel to require a shorter time than six months for notice of, and one year for suit upon, "claims for loss of life or bodily injury" of its passengers, applies to a claim by a husband for loss of services and medical expenses for injury to his wife.¹ Though the district court held the wife's claim for her own injuries to be within the protection of the statute, it decided otherwise as to the husband's consequential claim for damages and granted a summary judgment dismissing his complaint. The wife's claim was left pending. D.C.S.D.N.Y., 43 F. Supp. 226.

On August 21, 1940, plaintiff's wife, traveling with him on defendant's "S. S. Washington" from Los Angeles to New York, slipped on the stairs on shipboard and sustained injuries for which she and he now claim $25,000 and $5,000 respectively. Their joint action was begun on May 7, 1941, in the state court and was later removed to the district court by defendant. In the complaint appellant stated his claim to be for loss of "the services, society and companionship" of his wife and for expenses of her cure. Defendant pleaded lack of timely notice, as well as of timely suit, as required by the ticket contract, and supported its motion for summary judgment by affidavits, which included a photostatic copy of the ticket. This was a lengthy document signed by the wife, covering passage for both; and on its back appeared a paragraph providing that where § 4283A "shall apply," notice of claims for loss of life or bodily injury might be given within six months and suit started within a year, but that as to all other claims (except for loss of life, which was specially covered), notice must be given within fifteen days and suit begun within six months after landing. There is no dispute as to the essential facts, though appellant does contend that he was not bound by, or chargeable with notice of, the ticket provisions — an issue as to which decision is unnecessary under our view of the statute.

Defendant contends that the statute in any event does not apply to a coastwise voyage, in view of the provision making it applicable to owners of vessels "transporting passengers or merchandise or property from or between ports of the United States and foreign ports." In other words, defendant relies on a quite literal reading of the word "between," which would eliminate or make tautologous the words "from or." But seemingly something more than merely foreign voyages was intended by these additional words, as the Supreme Court pointed out in Knott v. Botany Worsted Mills, 179 U.S. 69, 75, 21 S.Ct. 30, 32, 45 L.Ed. 90, in dealing with the same phrase (except for the omission of "passengers or") in § 1 of the Harter Act of 1893, 46 U.S.C.A. § 190. The Court there said that the phrase was "slightly elliptical; but it appears to us to have exactly the same meaning as if the ellipsis had been supplied by repeating the words `ports of the United States,' so as to read `any vessel transporting merchandise or property from ports of the United States, or between ports of the United States and foreign ports.'" True, the Court's actual decision was only that the Harter Act governed bills of lading for goods shipped in a foreign vessel from a foreign to a domestic port. The quoted statement cannot be considered mere dictum, however, for its reasoning was part of the assumption by which the result was reached. That § 3 of the Harter Act, 46 U.S.C.A. § 192, was differently worded (though §§ 2 and 4, 46 U.S.C.A. §§ 191, 193, are like § 1) was not considered important, just as we do not think it enlightening here that in another statute passed in 1936, Rev.Stat. § 4283B, 46 U.S.C.A. § 183c, Congress avoided the ellipsis. The reading is one which gives sense to the entire expression. See The Tampico, D.C.N.D.Cal., 151 F. 689. When Congress passed the present statute in 1935 employing the language of the Harter Act, we should give it the same reading as that Act has had, particularly as there seems no conceivable reason to except from this reasonable regulation domestic commerce, usually so carefully protected and, at least as to carriage of goods, so fully regulated. Cf. Robinson on Admiralty, 1939, 495-503. Certainly the circumstances under which the statute was passed, as detailed below, suggest no such differentiation.

The more important question, in the light of the decision below, is as to the meaning of "bodily injury" with respect to the husband's claim. These words are at best a metaphorical or shorthand expression for some more complicated idea than is directly revealed by them; obviously no one has a claim for such an injury in the sense that he may demand and receive it, and no one contends for any such purely literal meaning. It must be a claim for something else, for something which a lawsuit will produce, to wit, the money damages which the law accords for the injury. A further natural step is to read "for" as "on account of" or "by reason of," Sharkey v. Skilton, 83 Conn. 503, 77 A. 950, and the whole phrase then becomes "claims for damages legally recoverable by reason of bodily injury sustained by a passenger." Finally it may be easily concluded that all such damages are intended. That, indeed, appears to be conceded so far as the injured passenger's own damages are concerned; but a different result is urged as to those damages, even though flowing in natural consequence from the injury, which are formally sued for by another, no matter how closely identified he is in practical fact with the person injured. Under all the circumstances, balking at this last step may be thought to yield a rather odd limitation on an otherwise broad generalization.

Defendant, however, asserts that the phrase has a technical legal meaning which must control here as being presumably the meaning intended by Congress. But neither branch of the argument seems well founded; indeed, their converse appears the better supported. The statute was in fact enacted under circumstances and with a haste which go far to demonstrate that no such sophisticated precision of meaning could have been in mind. The provision in question is but a part of a more complete statute passed in consequence of the public horror at the loss of life occasioned by the burning of the "Morro Castle," en route from Havana to New York. As stated on the floor of Congress, the Act was designed to give greater redress for losses such as were occasioned by that fire and by the loss of the "Mohawk" a little later. The main features of the Act were two additions to the old limitation of liability statute of 1851: a provision for a minimum liability on the part of the shipowner for "the entire loss of life or personal injuries" caused without the fault or privity of the owner of at least $60 per ton of the vessel's tonnage, and a provision that "in respect of loss of life or bodily injury" the actual privity or knowledge of the master or the superintendent or managing agent should be deemed conclusively the privity or knowledge of the owner. See New York & Cuba Mail S. S. Co. v. Continental Ins. Co., 2 Cir., 117 F.2d 404, certiorari denied 313 U.S. 580, 61 S.Ct. 1103, 85 L.Ed. 1537, and the articles cited at page 408 of 117 F.2d, especially Springer, Amendments to the Federal Law Limiting the Liability of Shipowners, 11 St. John's L.Rev. 14. The original bill dealt only with amending the liability statute. Introduced by Senator Copeland on a Tuesday in August just before the close of the 74th Congress, 1st Session, it reappeared in the Senate on Thursday with amendments including the legislation here involved, was passed there at once by unanimous consent, and by the House in like fashion on Friday, and received the signature of the President on the following Thursday, August 29, 1935. 49 Stat. 960, Rev.Stat. §§ 4283 (as amended), 4283A, 46 U.S.C.A. §§ 183, 183a, 183b; 79 Cong.Rec. 13759, 14109, 14329.²

The next year it was found necessary to amend and clarify the amendment to the limitation statute, to remove the word "actual" appearing before "privity,"³ and to provide new legislation forbidding contracts or regulations which might attempt to relieve the shipowner of liability wholly or partially, "in the event of loss of life or bodily injury," by negligence of his servants or "lessen, weaken, or avoid the right of any claimant to a trial by court of competent jurisdiction." Act of June 5, 1936, 49 Stat. 1479, Rev.Stat. §§ 4283 (as amended) 4283B, 46 U.S.C.A. §§ 183, 183c. While § 4283A was left untouched, considerable annoyance was expressed at the continued practice of shipowners of trying to contract against negligence or to enforce arbitration of all claims and the new legislation was proposed in order to put a stop to the practice. 80 Cong.Rec. 8437, 8438, 8575. Advantage was taken of the occasion to substitute "bodily injury" for "personal injuries" in the limitation provision, thus making the phrase uniform in the seven times in which it is employed in these statutes. No suggestion appears in the debates or from the commentators (above referred to) that this particular rewording meant any change in the limitation statute. Seemingly it meant only additional emphasis of the legislative concern, induced by the "Morro Castle" disaster, for the safety of passengers at sea. Since that concern did not direct itself immediately to property losses, it was quite natural that the legislation...