Petition of Gulf Oil Corporation

• Decision Date: 06 April 1959
• Citation: 172 F. Supp. 911
• Parties: Petition of GULF OIL CORPORATION for Limitation Of or Exoneration From Liability as Owner of THE Tank Vessel GULFSTREAM.
• Court: U.S. District Court — Southern District of New York

172 F. Supp. 911

Petition of GULF OIL CORPORATION for Limitation Of or Exoneration From Liability as Owner of THE Tank Vessel GULFSTREAM.

United States District Court S. D. New York.

April 6, 1959.

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Burlingham, Hupper & Kennedy, New York City, for petitioner, Eugene Underwood and Francis I. Fallon, New York City, of counsel.

Pyne, Brush, Smith & Michelsen, New York City, for claimants, George Garbisi, New York City, of counsel.

PALMIERI, District Judge.

On June 29, 1949, Gulf Oil Corporation filed a petition seeking exoneration from, or limitation of, liability for damages arising out of a collision between its vessel, the Gulfstream, and a United States Coast Guard icebreaker, the Eastwind. The collision, which caused the Eastwind to catch fire, occurred on January 19, 1949, about 45 miles off the coast of New Jersey. With an exception not material here, all claims were filed before November 18, 1949; and by May 2, 1957, all but four claims had been compromised and withdrawn.

On the latter date, and with the consent of the parties then actively interested in the limitation proceeding, the Court ordered, in pertinent part, that limitation of liability be granted, that three of the claimants recover their damages, and that their claims be referred to a commissioner for computation of damages and a report thereon. The fourth claim, that of the United States as owner of the Cutter Eastwind, was disposed of on consent, in the same order.

One of the three claims referred to the Commissioner was compromised and withdrawn after the reference. The Commissioner has filed his Report on the remaining two claims, and the matter is now before me for decision on exceptions to the Report made by each of the claimants¹ and by the petitioner.

Albert P. Williams

The Commissioner assessed damages arising out of the death of Albert P. Williams, a member of the crew of the Cutter Eastwind, in the following sums: (1) To Williams' Estate: $8,000 for the pain and suffering in which Williams languished from the date of his injury, January 19, 1949, until his death on January 27, 1949. (2) To Williams' personal representative,² for distribution to his mother³ for her pecuniary loss, $10,000, and for distribution to his father for his pecuniary loss, $2,500.

The Award for Pain and Suffering

Petitioner has excepted to the award for pain and suffering on the ground that it is erroneous as a matter of law. Petitioner argues that the Death on the High Seas Act⁴ provides the exclusive measure of damages and that an action for pain and suffering may not be maintained under that Act. Petitioner further argues that, if the Act is not exclusive, no award for pain and suffering may be made, for the general maritime law does not provide for the survival of such an action beyond the death of the injured person.

The federal admiralty courts draw upon three sources for the rules of law to be applied in cases brought before them:⁵ the "international law merchant which was impartially administered by the several maritime nations of the world;"⁶ Congressional enactments;⁷ and State law.⁸ Regardless of the source of a particular rule of law, it is federal law in the sense that "it derives its whole and only power in this country from its having been accepted and adopted by the United States."⁹ The federal government's competence in this area, however, does not preclude resort to State law, for "the maritime law was not a complete and perfect system * * * In all maritime countries there is a considerable body of municipal law that underlies the maritime law as the basis of its administration."¹⁰

Recovery for the pain and suffering in which Williams languished before his death may not be had under the Death on the High Seas Act, for recovery under that Act is limited to "pecuniary loss sustained by the persons for whose benefit the suit is brought."¹¹ And while petitioner concedes that the maritime law, as applied by the maritime nations, and adopted in the United States, would grant Williams recovery for his pain and suffering,¹² that law does not recognize the survival of the action for the benefit of his estate.¹³

The Commissioner concluded, however, that the admiralty courts would adopt the law of the state of petitioner's incorporation,¹⁴ Pennsylvania,¹⁵ to permit the action to survive. Such adoption is not unusual. "State remedies for wrongful death and state statutes providing for the survival of actions, both historically absent from the relief offered by the admiralty, have been upheld when applied to maritime causes of action. Federal courts have enforced these statutes."¹⁶

It has been held that a claim for unseaworthiness will survive a seaman's death, if there is a pertinent state statute to effect the survival;¹⁷ and approval for this position has been indicated by the Supreme Court.¹⁸ I can perceive of no meaningful distinction, so far as survival is concerned, between an action for unseaworthiness, and one for negligence.¹⁹ Nor can I perceive of any reason why the beneficent purposes of the survival statutes, which are in force in almost half the states,²⁰ should not be applied by the admiralty courts. These courts will, of course, consider the peculiar circumstances of the seafaring world in determining the law to be applied to it;²¹ but I know of no reason which would suggest that the maritime tortfeasor's liability for pain and suffering should be ended by the injured person's death, while his landlocked counterpart's is not.²²

Finally, I cannot agree with petitioner's argument that the Death on the High Seas Act has preempted the field, and prevents the recovery allowed here. There are two types of liability which may be imposed upon a tortfeasor arising out of a death which his negligent act occasioned. One is for the loss suffered by those who depended upon the decedent for their support. The maritime law recognized no such liability;²³ but the federal admiralty courts recognized such a liability if it was imposed by a pertinent state statute.²⁴ It is that liability which has been unified by the Death on the High Seas Act, so that state statutes may no longer be applied,²⁵ for they would be destructive of the desired federal uniformity.²⁶ But there is a second liability, which is recognized by the maritime law, that is, for damages caused to the injured person himself.²⁷ The question here is whether this liability survives the death of the injured person prior to the institution of suit. On this question, the Death on the High Seas Act is silent,²⁸ and there is no basis for holding that this silence is to be interpreted as denying the survival.²⁹

Nor can I agree with petitioner's argument that the admiralty courts are without power to adopt the rule I am here following. Such action is traditionally taken by the admiralty courts,³⁰ and is in fulfillment of their power "to continue the development of this law within constitutional limits."³¹ And while uniformity in this field, and Congressional action to accomplish it, would be desirable,³² "even Southern Pacific Co. v. Jensen 244 U.S. 205, 37 S.Ct. 524, 61 L. Ed. 1086, which fathered the `uniformity' concept, recognized that uniformity is not offended by `the right given to recover in death cases.'"³³

Accordingly, I confirm the Commissioner's conclusion that Williams' action for pain and suffering survived his death for the benefit of his estate.

Some comment may be appropriate, however, on the doctrinal basis for reaching this result. In The James McGee,³⁴ Judge Learned Hand had before him death claims brought by the decedents of crew members of a United States vessel which collided, on the high seas, with a vessel owned by a New Jersey corporation. The crew members had died aboard the Government vessel or in the adjacent waters. Judge Hand granted recovery under a New Jersey statute, now N.J.S. A. 2A:31-1, interpreting The Hamilton³⁵ to teach that the law of the tortfeasor's residence created an obligation to respond in damages to the decedents' dependents, and that the admiralty courts would enforce that obligation. Judge Hand felt that it was an irrelevant fact, in The Hamilton, that the decedents had died aboard a ship belonging to a Delaware resident.³⁶ He rejected the theory that liability was imposed in The Hamilton on the ground that Delaware law followed the ship, on which the deaths took place, to sea, and that, in consequence, liability was imposed because Delaware was fictionally held to be the lex loci delicti. Of course, if Judge Hand's interpretation of The Hamilton is applied, pari passu, to this case,³⁷ Pennsylvania law, the law of the instant tortfeasor's residence, may be applied here to work a survival of the claim for pain and suffering. It would be a short path to the same result, which I reach by a more lengthy route.

I must add, however, that I have some difficulties with this view. In the first place, it is contrary to the rule applying to torts committed on land,³⁸ although the fact that the high seas are regio nullius may offer a sufficient explanation of this difference. In the second place, there is some internal evidence, in the Court's opinion in The Hamilton, to indicate that the Court did apply Delaware law because it was the lex loci delicti. Thus, the Court referred³⁹ to "the jurisdiction commonly expressed in the formula that a vessel at sea is regarded as part of the territory of the state * * *." If the theory were that the law of the tortfeasor shipowner's residence placed an obligation upon him, which followed him when he was outside its territory, it would have been unnecessary to consider whether the vessel was a part of that territory. In addition, the Court cited⁴⁰ its earlier decision in Slater v. Mexican Nat. R. Co., in which it had said that "the only source of this obligation to respond in damages to the decedent's dependents is the law of the place of the act * * *."⁴¹ This would...