Middleton v. Luckenbach SS Co., 356.

• Decision Date: 09 April 1934
• Docket Number: No. 356.,356.
• Citation: 70 F.2d 326
• Parties: MIDDLETON v. LUCKENBACH S. S. CO., Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

70 F.2d 326 (1934)

MIDDLETON v. LUCKENBACH S. S. CO., Inc., et al.

No. 356.

Circuit Court of Appeals, Second Circuit.

April 9, 1934.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (W. H. McGrann and J. H. Turnure, both of New York City, of counsel), for appellant, Luckenbach S. S. Co., Inc.

Hunt, Hill & Betts, of New York City (John W. Crandall, of New York City, of counsel), for libelant-appellee.

Before MANTON, SWAN, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

In a collision occurring June 19, 1931, 40 miles south of Castle Island, British West Indies, the schooner Arawak was sunk by appellant's vessel Robert Luckenbach, causing the death of appellee's intestates Gerald Wilson, a seaman, Constance Lockhart, the master's sister, and Ethel Lockhart, wife of the schooner's mate. The three who lost their lives were British subjects and were domiciled at Ragged Island, B. W. I.

The Robert Luckenbach picked up the survivors and brought them to Philadelphia, Pa. Appellee, an attorney connected with the British Consul General in Philadelphia, was appointed, in Pennsylvania, administrator of the estate of the three persons thus drowned, and later ancillary letters were issued to him in New York.

Gerald Wilson was the illegitimate son of Frances Wilson. He left surviving his mother, a wife, and five children, the youngest born posthumously. The eldest child was born six months before his parents were married. Constance Lockhart was the illegitimate daughter of Charlotte Moxey who survived her. Ethel Lockhart left a husband and an illegitimate son by another.

The questions presented are (a) Can an illegitimate child recover damages for the death of its mother, and is the mother of such a child entitled to recover damages for its death under sections 1 and 4 of the Federal Death Act? and (b) Is Gerald Wilson's oldest child entitled to an award of damages? 46 USCA §§ 761, 764.

The statute is applicable to deaths due to collision occurring on the high seas. The Buenos Aires, 5 F.(2d) 425 (C. C. A. 2). See, also, The Scotland, 105 U. S. 24, 26 L. Ed. 1001; The Belgenland, 114 U. S. 355, 5 S. Ct. 860, 29 L. Ed. 152.

Sections 1 and 4 of the Federal Death Act, upon which this action rests, provide:

Section 1. "Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued."

Section 4. "Whenever a right of action is granted by the law of any foreign State on account of death by wrongful act, neglect, or default occurring upon the high seas, such right may be maintained in an appropriate action in admiralty in the courts of the United States without abatement in respect to the amount for which recovery is authorized, any statute of the United States to the contrary notwithstanding."

Below the commissioner deemed the law of Ragged Island controlling; and, in the absence of proof of the law of that jurisdiction, the persons to be benefited might look to the law of Pennsylvania, which undertook to afford the remedy to the claimants, and, although the administrator sued in New York, he held that the New York law was not applicable. The court below held that the appellant could recover under the law of New York, the lex fori; there being no proof of the law of any foreign country.

The next of kin of the person meeting an accidental death by wrongful act recovers, not by right of succession, but by statutory provision. Michigan Central Ry. v. Vreeland, 227 U. S. 59, 33 S. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; Stewart v. B. & O. R. R., 168 U. S. 445, 18 S. Ct. 105, 42 L. Ed. 537. Spokane & Inland Empire R. R. v. Whitley, 237 U. S. 487, 35 S. Ct. 655, 59 L. Ed. 1060, L. R. A. 1916F, 736, dealt with a full faith and credit question regarding recovery for death under a statute of Idaho. The deceased was a resident of Tennessee, and the action for his death was controlled by the Idaho death statute (Rev. Codes, § 4100). His wife was appointed administratrix in Tennessee, and his mother brought suit for his death in Idaho. They were both heirs of the deceased under the Idaho law. The mother petitioned the probate court of Tennessee for one-half of the amount which was to be paid to the administratrix under a settlement reached with the railway company, but the petition was refused. The wife brought suit in the state of Washington; the Supreme Court of Idaho having in the meantime rendered a judgment in the mother's favor. 23 Idaho, 642, 132 P. 121. The court held that the laws of Idaho and not of Tennessee governed as to who should recover as the death occurred in Idaho. If the laws of Tennessee where the decedent was domiciled were inapplicable in this case, it would seem to follow that the laws of the Bahamas where the decedents were domiciled were likewise inapplicable.

The District Judge held that the words of the statute "dependent relative" included an illegitimate child or its mother, and said it was unnecessary to decide whether an illegitimate child and its mother were child and parent, respectively, within the act. The act does not define "relative" as there used. Under the principle of Seaboard Air Line v. Kenney, 240 U. S. 489, 36 S. Ct. 458, 460, 60 L. Ed. 762, who were the "next of kin" as used in the Federal Employers' Liability Act (45 US CA § 51 et seq.) must be determined "by the legislation of the various states to whose authority that subject is normally committed." In the Kenney Case, the intestate, a switchman, was killed in North Carolina, on an interstate freight train, and the suit was brought for his next of kin who were three minor children of the mother of the deceased; she having died before the accident. He was an illegitimate child. The state statute (Revisal 1905, § 137) provided that illegitimate children born of the same mother should be considered legitimate as between themselves, and, in the case of the death of any such child, his estate was to be distributed among such persons as would be his next of kin, including his mother, as if all such had been born in lawful wedlock. The court held that the law of the state of North Carolina would determine who were the next of kin.

The rule is quite universal in the state jurisdictions that the word "relative" embraces the persons who would take under a statute of distribution and descent in case of intestacy. Gallagher v. Crooks, 132 N. Y. 338, 30 N. E. 746; Thompson v. Thornton, 197 Mass. 273, 83 N. E. 880; Rauch v. Metz (Mo. Sup.) 212 S. W. 353; In re Trickett's Estate, 197 Cal. 20, 239 P. 406. The law of Pennsylvania permits a mother of an illegitimate child or such illegitimate child to inherit from or through each other. Laws of 1901, Act No. 325, P. L. 639, § 2. The New York Decedents Estate Law (Consol. Laws, c. 13), §§ 89 and 98 (now incorporated in Supplement to the Decedents' Estate Law, § 83) contains similar provisions. Thus, by virtue of the right to take under the statute of distribution and descent in New York, an illegitimate child and its mother are not only relatives, but are parent and child within the meaning of such legislation.

Since the occurrence here was on the high seas, the law of the admiralty controls and rights must be governed by federal law. Prior to the Federal Death Act of 1920 (46 USCA § 761 et seq.), there was no remedy provided by the general maritime law for death on the high seas. Western Fuel Co. v. Garcia, 257 U. S. 233, 42 S. Ct. 89, 66 L. Ed. 210. Recovery here must be predicated upon the act providing the right. Provision is made therein for the recovery by a parent, child, or dependent relative, and we must answer as to whether these words include parents of illegitimate children and illegitimate children. Taken in their ordinary meaning, as distinguished from their legal meaning, they are parent, child, and dependent relative. The word "child" is defined in legal dictionaries as meaning a "legitimate child." Bouvier's Law Dictionary, vol. 1, p. 479. The origin of that construction came from the consideration of wills, deeds, and statutes of inheritance, which differ from the question here under consideration. Other considerations are presented in recovering damages for loss of life. See "The Effect of Statutes Altering the Position of Illegitimate Children on Judicial Construction of Wills," 45 Harvard Law Review, 941. It is argued that, because of such ambiguity and in the absence of legislative definition, to determine the purpose of Congress, we should look to other law, that the purpose of Congress was to leave to the state the law respecting distribution. Seaboard Air Line v. Kenney, 240 U. S. 491, 36 S. Ct. 458, 60 L. Ed. 762. When we consider what law should be applied, difficulties arise. If the common law was not to be applied in Seaboard Air Line Ry. v. Kenney, supra, a fortiori, it is not to be applied in this, an admiralty case. If we apply the New York law as the lex fori, we can only do so by indulging in the presumption that the law of the Bahamas is the same as that of the forum, and, although such a presumption has been made where the law of the forum has been changed by statute, McMillan v. Amer. Express, 123 Iowa, 236, 98 N. W. 629, the more generally accepted doctrine, where the forum has a statute, is to presume that the foreign law is the same as the law of the forum before the statutory change was made. Cuba R. R. Co. v. Crosby, 222 U. S. 473, 32 S. Ct. 132, 56 L. Ed. 274, 38 L. R. A. (N. S.) 40; Commonwealth v. Graham, 157 Mass. 73, 31...