Lewis v. Jones
| Decision Date | 12 June 1928 |
| Docket Number | No. 2717.,2717. |
| Citation | 27 F.2d 72 |
| Parties | LEWIS v. JONES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
David Meade White and Robert H. Talley, both of Richmond, Va., for appellant.
David Nelson Sutton, of West Point, Va. (Lewis & Sutton, of West Point, Va., on the brief), for appellee.
Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.
The libel in this case was filed in the District Court of the United States for the Eastern District of Virginia, at Richmond, by Lewis Jones, administrator of the estate of Tom Chapman, against the Amoy, a Chinese junk, owned by Henry Leroy Lewis, a citizen of the state of Connecticut. The libel alleged that the deceased, Tom Chapman, was fishing in a rowboat with a companion on the York river, a navigable stream near the town of West Point, in Virginia, and that the rowboat was caused to be overturned by the Amoy, and that Chapman was drowned through the default and negligence of the junk. The court below found for the libelant, and by decree gave the administrator judgment for the sum of $3,500 for the death of Chapman, from which holding this appeal was brought.
Two questions are raised on the appeal: (1) That the court did not have jurisdiction; and (2) that the judge below erred in finding the Amoy responsible for the accident.
On the first point it is contended that a libel in rem cannot be maintained against the offending vessel, because, it is said, the Virginia death statute creates no lien upon the vessel which a court of admiralty can enforce. The contention of libelant, on the other hand, is that the statute does create such lien, and that consequently a court of admiralty does have jurisdiction to enforce it. The statute relied upon (section 5786 of the Code of Virginia) is as follows:
"Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, or of any ship or vessel, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, or to proceed in rem against said ship or vessel, or in personam against the owners thereof or those having control of her, and to recover damages in respect thereof, then, and in every such case, the person who, or corporation or ship or vessel which, would have been liable, if death had not ensued, shall be liable to an action for damages, or, if a ship or vessel, to a libel in rem, and her owners or those responsible for her acts or defaults or negligence to a libel in personam, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony."
The same question raised here has been twice passed upon by this court. The Glendale, 81 F. 633; The Anglo-Patagonian, 235 F. 92 (writ of certiorari denied Lord, etc., v. Ledwitch, 241 U. S. 636, 37 S. Ct. 19, 61 L. Ed. 539). Both of these decisions are based upon the same statutes as the one relied upon here, and hold that the Virginia statute creates a lien on the ship in a case of wrongful death, and a full discussion of the points involved will be there found. The question w...
To continue reading
Request your trial
-
State v. A/S NYE KRISTIANBORG
...the ship. The Anglo-Patagonian, 4th Cir., 1916, 235 F. 92, certiorari denied 242 U.S. 636, 37 S.Ct. 19, 61 L.Ed. 539, and Lewis v. Jones, 4th Cir., 1928, 27 F.2d 72, certiorari denied 278 U.S. 634, 49 S.Ct. 34, 73 L.Ed. 551, holding that the Virginia statute did not give the lien, and Vanco......
-
THE SCL NO. 9
...Union Sulphur Co., 9 Cir., 87 F.2d 277, 278; The Piankatank, 4 Cir., 87 F.2d 806, 808; The Mabel, 9 Cir., 61 F.2d 537, 540; Lewis v. Jones, 4 Cir., 27 F.2d 72, 74. Such findings should, therefore, not be set aside on appeal except upon a showing that they are clearly wrong. The Calvert, 4 C......
-
Continental Cas. Co. v. The Benny Skou
...its findings of fact and conclusions of law, the Court will enter a decree dismissing the libel with costs to the respondent. 1 Lewis v. Jones, 4 Cir., 27 F.2d 72, confirms the right to enforce the Virginia death statute by an in rem ...
-
Continental Casualty Co. v. The Benny Skou
...be enforced in a federal court which has admiralty jurisdiction, and only in a federal court. The Glendale, 4 Cir., 81 F. 633, Lewis v. Jones, 4 Cir., 27 F.2d 72. Also, it would seem to be beyond doubt that this right of action with its in rem remedy was created by and depends entirely upon......