McLaughlin v. Blidberg Rothchild Company

• Decision Date: 12 November 1958
• Citation: 167 F. Supp. 714
• Parties: Reva McLAUGHLIN, individually and as Administratrix of the Estate of Clarence R. McLaughlin, deceased, and Diane Sherry McLaughlin, an infant by Reva McLaughlin, her Guardian ad Litem, Plaintiffs, v. BLIDBERG ROTHCHILD COMPANY, Inc., and States Marine Corporation of Delaware, Defendants.
• Court: U.S. District Court — Southern District of New York

167 F. Supp. 714

Reva McLAUGHLIN, individually and as Administratrix of the Estate of Clarence R. McLaughlin, deceased, and Diane Sherry McLaughlin, an infant by Reva McLaughlin, her Guardian ad Litem, Plaintiffs, v. BLIDBERG ROTHCHILD COMPANY, Inc., and States Marine Corporation of Delaware, Defendants.

United States District Court S. D. New York.

November 12, 1958.

Marvin Schwartz, New York City, for plaintiffs.

Dougherty, Ryan & Mahoney, New York City, for defendant Blidberg Rothchild Co., Inc.

Hill, Betts & Nash, New York City, for impleaded defendant States Marine Corp. of Delaware.

BICKS, District Judge.

On August 29, 1956, Clarence R. McLaughlin, a seaman aboard the S.S. "Northport", a vessel owned, controlled and managed by defendant-respondent Blidberg Rothchild Company, a Delaware corporation, sustained severe injuries which resulted in his death. He left him surviving a wife and infant child.

Based on this unfortunate occurrence the survivors instituted a civil action and a suit in admiralty. This simple set of operative facts has been fragmentized into seven "causes of action". The first "cause of action" in the complaint is for wrongful death under the Jones Act (46 U.S.C.A. § 688); the second, for wrongful death under the general maritime law and the third, for conscious pain and suffering based on both the Jones Act and the general maritime law. As in the complaint, the first "cause of action" pleaded in the libel is for wrongful death under the Jones Act. The second is founded upon the general maritime law and the Death on the High Seas Act (46 U.S.C.A. § 761 et seq.); the third and fourth are for conscious pain and suffering based on negligence and unseaworthiness, respectively.

Blidberg Rothchild has moved to dismiss the causes of action founded upon unseaworthiness on the grounds that (i) a suit for wrongful death based on unseaworthiness does not lie and (ii) a claim for pain and suffering founded on unseaworthiness abates with the death of the injured party.

It is firmly established that, in the absence of statute, there is no remedy for wrongful death under the general maritime law. See Kernan v. American Dredging Co., 1957, 355 U.S. 426, 78 S. Ct. 394, 2 L.Ed.2d 382; Lindgren v. United States, 1929, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686; The Harrisburg, 1886, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358. The "cause of action" set out in the complaint founded solely on the general maritime law fails, therefore, to plead a claim upon which relief can be granted. Nor is the seaman's claim for conscious pain and suffering enforceable, lacking legislative enactment, by his representative after his death. Cortes v. Baltimore Insular Line, 1932, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368. The Jones Act provides a remedy for such claims when they are based upon negligence. There is no federal statute extending a similar remedy when the gravamen of the cause is an injury due to unseaworthiness.¹ Plaintiffs-libellants urge, however, that they may avail themselves of the law of the state of incorporation of the defendant-respondent, to wit, Delaware. Title 10, § 3701 of the Delaware Code provides:

"All causes of action * * * shall survive to and against the executors or administrators of the person to, or against whom, the cause of action accrued * * *"

If under the Delaware law the cause of action for pain and suffering survived then admiralty will respect that right. See Kernan v. American Dredging Co., supra; Skiriotes v. State of Florida, 1941, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193; The Hamilton, 1907, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; Holland v. Steag, Inc., D.C.Mass.1956, 143 F. Supp. 203.

It is reasonably inferrable that the claim set out in the second "cause of action" in the libel, based on the Death on the High Seas Act, is predicated on unseaworthiness alone. Insofar as here material the Act provides "whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas * * * the personal representative of the decedent may maintain a suit for damages * * * in admiralty * * *." Unless a breach of the warranty of seaworthiness is encompassed within the phrase "wrongful act, neglect, or default" libellants cannot be afforded relief on the claim founded...