Petition of Oskar Tiedemann and Company

Decision Date08 December 1964
Docket Number1765.,No. 1764,1764
Citation236 F. Supp. 895
PartiesPetition of OSKAR TIEDEMANN AND COMPANY for exoneration from or limitation of liability, as owners of the S.S. ELNA II, and Petition of the UNITED STATES of America and Mathiasen's Tanker Industries, Inc., for exoneration from or limitation of liability as owners of the U.S.N.S. MISSION SAN FRANCISCO.
CourtU.S. District Court — District of Delaware

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas E. Byrne, Jr., of Krusen, Evans & Byrne, Philadelphia, Pa., H. James Conaway, Jr., of Morford, Young & Conaway, Wilmington, Del., for petitioner Oskar Tiedemann & Co.

Harold G. Wilson, United States Department of Justice, Washington, D. C., and Alexander Greenfeld, U. S. Atty., Wilmington, Del., for petitioner United States of America, etc.

Abraham E. Freedman, of Freedman, Borowsky & Lorry, Philadelphia, Pa., and Harold Leshem, of Leshem & Rubenstein, Wilmington, Del., for various claimants.

Wilfred J. Smith, Jr., of Smith & Gentile, Wilmington, Del., for Ruth Allen, claimant.

Victor F. Battaglia, of Theisen & Lank, Wilmington, Del., and William Warner, New York City, for Julius Black.

LAYTON, District Judge.

On April 14, 1960, this Court appointed a Commissioner to hear and report findings on a large number of claims for personal injuries and deaths resulting from a collision in the Delaware River on March 7, 1957, between the S. S. Mission San Francisco (Mission) and the Elna II (Elna).

The Commissioner heard and disposed of some fifty odd claims to which the following exceptions have been filed.

THE BLACK CLAIM

Julius Black, Administrator of the Estate of David Black (hereafter called Black) filed two claims, one under the Jones Act, 46 U.S.C. § 688, against Mathiasen's1 as the negligent employer and one against the United States and/or Tiedemann2 under the Delaware Wrongful Death Act. 10 Del.Code Sec. 3704(b).3

The Government excepted to the award against it under the Delaware Death Statute upon the theory that the award in favor of Black against Mathiasen's constituted the exclusive remedy for the wrongful death of seamen. Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686 (1930). It is true that the Jones Act by its terms gives a right of action in favor of a seaman against his employer alone and there can be only one employer within the meaning of the Act. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692 (1949). But although the Act may supersede state-created remedies against the employer, Lindgren v. United States, supra, it does not preclude actions against other tortfeasors, Gardiner v. Agwilines, Inc. (E.D. N.Y. 1939), 29 F.Supp. 348. Compare Petition of Petroleum Tankers Corporation (S.D.N.Y. 1960), 204 F.Supp. 727.

Before the Commissioner, Black took the position that he was not employed by the Government with the result that the Delaware Death Act was the proper remedy against the United States. The Government had full opportunity to contest Black's stand but in the words of the Commissioner:

"The Government has adamantly refused to pay any attention to the Black claim, the Black brief, or the importunities of the Commissioner that an answering brief be filed." Commissioner's Report, P. 26.

Accordingly, the Commissioner without benefit of briefs or argument on the part of the Government, took upon himself the responsibility of deciding the relationship of the United States to Black and concluded that he was employed by Mathiasen's, with the result that he found the Government liable under the Delaware Death Act.

Again, upon exception to the Commissioner's report, the Government had full opportunity to contest his conclusion that Mathiasen's was Black's employer but the Government proctor contented himself with a cursory brief alleging by way of conclusions (a) that both the United States and Mathiasen's were Black's employers or (b) that the Government's liability rested on the principle of respondeat superior. Neither of these propositions has merit. Even a casual reading of the cases would indicate that the question whether the Government or Mathiasen's was Black's employer was the key to this situation. Twice the Government had an opportunity to raise it and twice it failed. Probably the Commissioner answered the question correctly, but in light of the Government's indifferent attitude,4 it will not be given a third opportunity to contest his conclusion. This case is seven years old and there must be an end to this litigation. This ground of exception is overruled.

Secondly, the Government has contested the Black award upon the theory that the claim under the Delaware Death Act was time barred by the provisions of 46 U.S.C. § 745 which reads:

"Suits as authorized by this chapter may be brought only within two years after the cause of action arises * * *."

In their joint petition for exoneration or limitation of liability, both the United States and Mathiasen's alleged that Mission San Francisco was a "Public Vessel." The Public Vessel's Act (46 U.S.C. § 782) specifically provides that suits thereunder shall proceed in accordance with and be subject to the provisions of the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, including the two year statute of limitations contained in Sec. 745. Allen v. United States, 201 F.2d 263 (9th Cir. 1952) cert. denied 345 U.S. 957, 73 S.Ct. 939, 97 L.Ed. 1378 (1953); Phalen v. United States, 32 F.2d 687 (2d Cir. 1929).

The claim was filed well before the expiration of two years after the cause of action arose but it was a single claim referring neither to the Jones Act nor the Delaware Death Act and in no way suggesting that it sought a recovery under both. And it was more than two years after the accident before Black formally notified the United States that he sought a recovery under both the Jones Act and the Delaware Death Act. Thus, at first blush, there would seem to be some merit to the Government's position but closer examination reveals that the argument is only superficially persuasive. In the first place, as previously observed, the Commissioner did not allow a complete recovery under each act. Rather, under the Jones Act, he awarded a sum representing the annual contributions decedent would have made to the support of his parents during the penddency of their lives and under the Delaware Death Act the estimated sum decedent would have left as an estate at his death less, however, all sums he would have spent on himself and the amounts he would have contributed to his family. Thus, there was no duplication of awards.

Moreover, the ancient admiralty teaching is that "`the rules of pleading in the admiralty are exceedingly simple and free from technical requirements'." Archawski v. Hanioti, 350 U.S. 532 (534), 76 S.Ct. 617, 620, 100 L.Ed. 676 (1956). A pleader is not required to name the statute upon which he relies. It is necessary only that he allege facts which would permit recovery under a statute and, if so, he may even name the wrong statute. S. S. Nea Hellis, 116 F.2d 803 (2d Cir. 1941). An admiralty court may take judicial notice of an applicable state death act. Monongahela R. Consol. Coal & Coke Co. v. Schinnerer, 196 F. 375 (6 Cir. 1912). In my judgment, the Black claim, though brief and general in nature, states a cause of action under the Delaware Death Act within the purview of Admiralty Rule 52 and, having been filed within two years of the arising of the cause of action, is not time barred.

The third exception to the Black claim is filed by Mathiasen's. It is based upon the following language of Sec. 745:

"Provided, That where a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States or of any incorporated or unincorporated agency thereof whose act or omission gave rise to the claim: * * *."

Mathiasen's made no point of the possible applicability of the quoted language to this case before the Commissioner who, on his own motion, foresaw the possible problem and disposed of it in this fashion:

"It is possible that had the Government felt so disposed it might have made an argument that the provisions of 46 U.S.C.A., § 741 et seq., particularly § 745, would bar a claim against Mathiasen's if a claim against the United States was involved. However, it is concluded that agency as that concept is embodied in the provisions of 46 U.S. C.A., § 745 has not been interpreted to include a relationship similar to the one established under the present contract." Commissioner's Report, P. 26.

And even thereafter, Mathiasen's5 failed to take an exception, raising the point for the first time by letter in response to a request from the Court for comment on a completely different matter. Mathiasen's will not be heard to raise this contention at this late date for the same reasons which compelled me to deny the United States a hearing on the first issue discussed herein. This ground of exception is also overruled.

The Commissioner's findings in re the claim of Julius Black, Administrator of the Estate of David Black, deceased, are sustained.

Whether Maintenance & Cure for Elna Seamen is solely the liability of Tiedemann, or is the liability of the Elna fund primarily and the United States & Mathiasen's secondarily:

I.

The United States and Mathiasen's have excepted to the Commissioner's report on the ground that the maintenance and cure awards to certain of the Elna seamen6 should provide that they are recoverable against Tiedemann. The Commissioner merely awarded various amounts for maintenance and cure and said nothing about which tortfeasors, the United States, Mathiasen's and Tiedemann, would be liable.

It is my conclusion that the matter cannot be decided here but will have to await the entry of a final decree for the reason that Tiedemann appears to be an...

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