Graham v. The Novarchos Koundouriotis

• Decision Date: 15 August 1951
• Docket Number: No. 106.,106.
• Parties: GRAHAM v. THE NOVARCHOS KOUNDOURIOTIS.
• Court: U.S. District Court — Southern District of Florida

99 F. Supp. 450

GRAHAM v. THE NOVARCHOS KOUNDOURIOTIS.

No. 106.

United States District Court S. D. Florida, Jacksonville D.

August 15, 1951.

Chester Bedell and Bedell & Bedell, all of Jacksonville, Fla., Johnson & Cleveland, Jacksonville, Fla., for libellant.

Scott M. Loftin, Harold B. Wahl, Jacksonville, Fla., for respondent.

SIMPSON, District Judge.

By my Order of April 13, 1951 in this case, I struck the respondent's defenses, Second to Sixth, inclusive, upon libellant's motion. These defenses raise the defenses of contributory negligence, the negligence of the employer of plaintiff's decedent, Strachan Shipping Company, and the due care on the part of the vessel, its owner and master, in providing safe equipment and inspecting the same. Upon rehearing granted and full reargument, I am convinced that the striking of these defenses was error, and that they should be reinstated and made available to the respondent. An Order to this effect will be entered.

The suit is in rem by the widow of a stevedore who was killed while employed by Strachan Shipping Company in unloading the vessel in the Port of Jacksonville, Florida. It is brought under the Florida Death by Wrongful Act Statute, section 768.01, Florida Statutes Annotated, under which the widow is given the right to sue and the further right to proceed in rem for death occasioned by the wrongful act, negligence, carelessness or default of any ship, vessel or boat or person employed thereon. The libel asserts both the negligence of the vessel's owners in providing unsafe equipment and also that the death of libellant's husband resulted proximately from the unseaworthiness of the vessel. Upon the claim of unseaworthiness the libellant's position is that the right of a longshoreman, extended him by Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, to recover for injuries suffered from the ship's unseaworthiness, descends to his widow in the event of his death under the Florida Statute, section 768.01, supra. Since this liability to provide a seaworthy vessel is absolute and without fault, the defenses of contributory negligence and reasonable care would not be applicable. By my former ruling, I sustained this theory of the libellant's right of action in striking these defenses.

A reexamination of the principles and cases involved convinces me that the defenses should be allowed to stand and that the libellant in the trial of this case should be limited to her asserted cause of action by reason of the negligence of the vessel, her owners and crew.

It is the undoubted present holding of the United States Supreme Court, by its five to three decision in the Sieracki case, supra, that the liability of the vessel and her owner to indemnity for the injuries caused by unseaworthiness of the vessel (set forth at page 175 of 189 U.S., at page 487 of 23 S.Ct., 47 L.Ed. 760, in The Osceola), is available to longshoremen as well as to seamen. Plaintiff's decedent, if he had lived, could have maintained such an action for injuries. But see Lindgren v. U. S., 281 U.S. 38, at page 47, 50 S.Ct. 207, at page 211, 74 L.Ed. 686, where the statement is made: "* * * the prior maritime law * * * gave no right to recover indemnity for the death of a seaman, although occasioned by unseaworthiness of the vessel. The statement in The Osceola, supra, 175, of 189 U.S., 23 S.Ct. 483, on which the administrator relies, relates only to the seaman's own right to recover for personal injuries occasioned by unseaworthiness of the vessel, and confers no right whatever upon his personal representatives to recover indemnity for his death."

The right to recover on behalf of the widow arises solely under the Florida Statute, section 768.01, F.S.A. In numerous admiralty cases the Court of Appeals for the Fifth Circuit has held that suits brought under various Death by Wrongful Act Statutes of the several states are subject to all the defenses available under the jurisprudence of the...