Feliu v. Grace Line
| Decision Date | 06 February 1951 |
| Citation | 97 F. Supp. 441 |
| Parties | FELIU v. GRACE LINE, Inc. |
| Court | U.S. District Court — Southern District of New York |
Edward Pine, New York City (Renato C. Giallorenzi, New York City, of counsel), for plaintiff.
Kirlin, Campbell & Keating, New York City (James B. Magnor, New York City, of counsel), for defendant.
This is an action under the Jones Act, 46 U.S.C.A. § 688, to recover for the alleged wrongful death of a seaman employed on one of the defendant's vessels. The complaint alleges that the seaman died intestate and that on October 23, 1950, plaintiff, the father of the seaman, became the duly authorized Administrator of his estate under and by virtue of the laws of the Republic of Honduras and the Civil Court of San Pedro Sula. It is then alleged that the seaman left surviving his father, his sole next of kin, and others dependent upon him for support, and that plaintiff brings this action in his representative capacity, on his own behalf as the seaman's dependent parent, and on behalf of other next of kin of the seaman who were dependent upon him for support.
Plaintiff now moves to strike out of the answer, as being insufficient in law, two defenses, (1) assumption of risk, and (2) that plaintiff lacks legal capacity to sue.
The motion to strike the first defense is granted, for it is well settled that in an action under the Jones Act the defense of assumption of risk is not available. Socony Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265; Jacob v. City of New York, 315 U.S. 752, 755, 62 S.Ct. 854, 86 L.Ed. 1166; Norton v. Warner Co., 321 U.S. 565, 570, 64 S.Ct. 747, 88 L.Ed. 430.
The second defense is based upon the claim that an administrator, appointed by a court of a foreign country, lacks capacity to sue in a court of this country without first obtaining ancillary letters of administration here.
The Jones Act, as implemented by § 1 of the Federal Employers' Liability Act, 45 U.S.C.A. § 51, creates, in case of the wrongful death of a seaman, a right of action in his "personal representative", not for the benefit of the seaman's estate, but "for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee".
In Briggs v. Pennsylvania R. Co., 2 Cir., 153 F.2d 841, 163 A.L.R. 1281, it was held that a domiciliary administrator might sue upon a right of action, created by the ...
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Mandell and Wright v. Thomas, B--1214
...Corporation, 237 F.Supp. 689 (W.D.Wash., 1965); Petition of Southern Steamship Co., 135 F.Supp. 358 (D.Del., 1935); Feliu v. Grace Line Inc., 97 F.Supp. 441 (S.D.N.Y., 1951); The Pan Two, 26 F.Supp. 990 (D.C.Md., 1939); Thornton v. Puget Sound Power & Light Co., 49 F.2d 347 (W.D.Wash., The ......
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Iafrate v. Compagnie Generale Transatlantique
...181; Mullen v. Fitz Simons & Connell Dredge & Dock Co., 7 Cir., 172 F.2d 601. 9 The Nea Hellis, 2 Cir., 116 F.2d 803. 10 Feliu v. Grace Line, Inc., D.C., 97 F. Supp. 441; Briggs v. Pennsylvania R. Co., 2 Cir., 153 F.2d 841, 163 A.L.R. 1281; The Pan Two, D.C., 26 F.Supp. 11 Empresa Agricola ......
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COMPLAINT OF COSMOPOLITAN SHIP. CO., SA
...Co., supra; Iafrate v. Compagnie Generale Transatlantique, 106 F.Supp. 619, 622 (S.D.N.Y.1952) (Weinfeld, J.); Feliu v. Grace Line, Inc., 97 F.Supp. 441 (S.D.N.Y. 1951) (Coxe, J.). In Feliu, for example, the court expressly held that a properly appointed foreign administrator from Honduras ......