Gvirtsman v. Western King Co.

• Decision Date: 09 February 1967
• Docket Number: No. 66-1468-IH.,66-1468-IH.
• Citation: 263 F. Supp. 633
• Parties: Helen GVIRTSMAN, as Special Administratrix of the Estate of Masaharu Sato, deceased, Plaintiff, v. WESTERN KING CO., Inc., a Puerto Rican corporation, and Peter Pan Caribe, Inc., a Puerto Rican corporation, Defendants.
• Court: U.S. District Court — Central District of California

263 F. Supp. 633

Helen GVIRTSMAN, as Special Administratrix of the Estate of Masaharu Sato, deceased, Plaintiff, v. WESTERN KING CO., Inc., a Puerto Rican corporation, and Peter Pan Caribe, Inc., a Puerto Rican corporation, Defendants.

No. 66-1468-IH.

United States District Court Central District California.

February 9, 1967.

Ben Margolis, Los Angeles, Cal., for plaintiff.

William Manns, Beverly Hills, Cal., for defendants.

MEMORANDUM OPINION AND ORDER

IRVING HILL, District Judge.

Plaintiff is the administratrix of the estate of a seaman who died as a result of injuries suffered aboard ship on the high seas. By pre-trial motions, Defendant has raised for decision the following questions:

1. Where a seaman has been killed as a result of a shipboard accident on the high seas, may his personal representative file an action based in one count on the Jones Act (46 U.S.C. § 688) and in another count on the Death On The High Seas Act (46 U.S.C. § 761 et seq.), or is the Jones Act the exclusive remedy in such a situation? This question is of importance because unseaworthiness is a basis for recovery under the Death On The High Seas Act, but is not included as a basis for recovery under the Jones Act.

2. Assuming that remedies under both Acts are available to the personal representative and a count under each statute is joined in the same action, is Plaintiff entitled to a jury trial on both counts of the action?

IS THE JONES ACT AN EXCLUSIVE REMEDY?

Defendant points out that the Death On The High Seas Act and the Jones Act were passed at the same session of Congress, the Jones Act being the later enacted. Defendant concedes that the Death On The High Seas Act which provides for an action in admiralty, may have been broad enough to cover a wrongful death action for the death of a seaman aboard ship at sea. But, Defendant argues, the later passage of the Jones Act specifically creating a remedy at law for a seaman's death on the high seas was intended by Congress as a pro tanto repeal of the earlier Death On The High Seas Act insofar as that Act applies to a seaman's death. No prior holdings are cited in support of this position. The Second Circuit, in a persuasive opinion, has held to the contrary, i. e. that both remedies are available and the later statute should not be construed as a repeal of the remedy provided in the earlier statute. Doyle v. Albatross Tanker Corp., 367 F.2d 465 (2d Cir. 1966). I am persuaded by the logic and reasoning of the opinion in Doyle.

There is nothing incongruous about providing alternative remedies, one for unseaworthiness and one for negligence, for seamen's injuries in the line of duty. An injured seaman who does not die as a result of his injuries has both remedies. Romero v. International Terminal Operating Co., 358 U.S. 354, 380, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). The action of Congress in providing the second remedy for the estate of a seaman who suffers a fatal injury at sea, without expressly repealing the other remedy previously provided, and without using words of exclusivity in the second statute, manifest, I think, an intent that both remedies should likewise be available when death results from injuries suffered at sea.

DOES PLAINTIFF HAVE A RIGHT TO JURY TRIAL ON BOTH COUNTS OF THE ACTION?

There appear to be no reported opinions which decide whether Plaintiff has a right to jury trial on both causes of action when a Jones Act death action based on negligence is joined in the same complaint with an action under the Death On The High Seas Act based on unseaworthiness.

However, the answer to the question is foreordained by the decision of the United States Supreme Court in Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). In Fitzgerald, the plaintiff was an injured seaman who did not die of his injuries. His action was in three counts, one under the Jones Act for negligence, one...