Safir v. Compagnie Generale Transatlantique

• Citation: 241 F. Supp. 501
• Decision Date: 12 May 1965
• Docket Number: No. 62 C 595.,62 C 595.
• Parties: Helen SAFIR, as Administratrix of the goods, chattels and credits which were of Jules Safir, deceased, Plaintiff, v. COMPAGNIE GENERALE TRANSATLANTIQUE, Defendant.
• Court: U.S. District Court — Eastern District of New York

241 F. Supp. 501

Helen SAFIR, as Administratrix of the goods, chattels and credits which were of Jules Safir, deceased, Plaintiff, v. COMPAGNIE GENERALE TRANSATLANTIQUE, Defendant.

No. 62 C 595.

United States District Court E. D. New York.

May 12, 1965.

COPYRIGHT MATERIAL OMITTED

Richard A. Hornstein, New York City (Paul L. Klein, New York City, of counsel), for plaintiff.

Thomas H. Healey, New York City (Robert S. Blanc, Jr., and Hill, Betts, Yamaoka, Freehill & Longcope, New York City, of counsel), for defendant.

DOOLING, District Judge.

In a civil action in two counts, one for ante-mortem damages and a second for wrongful death, based on an accident that plaintiff's decedent sustained on the high seas while a passenger aboard defendant's vessel on June 20, 1960, and which resulted in the death of plaintiff's decedent on September 30, 1960, defendant moves under Rules 12(b) and 56 to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted and on the ground that the claims are barred of enforcement by a contract provision that is valid under 46 U.S.C.A. § 183b. Plaintiff served a summons without complaint in the Supreme Court, Queens County, on February 19, 1962; the complaint was served on May 16, 1962; the action was removed to this Court on June 1, 1962; and plaintiff was appointed administratrix of her deceased husband on July 19, 1962; the allegation in the complaint that the plaintiff had been appointed administratrix was not then correct.

It is concluded that the first cause of action, for ante-mortem damages, will lie, but that, if well-founded in law, it is barred of enforcement by virtue of the clause in the passenger contract, sanctioned by 46 U.S.C. § 183b, which provides:

"Suits and actions to recover for claims shall not be maintainable unless instituted within four months of the date of their accrual, or the termination of the voyage, whichever shall first occur, except that suits and actions to recover for the bodily injury or death of passengers shall not be maintainable unless instituted within one year from the day when the death or bodily injury occurred; these limitations shall be applicable although the Carrier be a non-resident or foreign corporation. The requirements of this clause cannot be waived by an agent or employee of the Carrier; they may be waived only by express written agreement of a director of the Carrier having authority in the premises. In any case where the time fixed in this ticket for filing claim is less than allowed by law, such time is hereby extended so as not to exceed the minimum lawful time."

It is further concluded that the second cause of action is maintainable under Section 4 and Section 7, first sentence, of the Death on the High Seas Act (46 U.S.C.A. §§ 764, 767), was removable into this Court as a civil diversity action, was timely brought under that Act (46 U.S. C.A. § 763) and under 46 U.S.C.A. § 183b ("Revised Statutes § 4283A") and is triable in this Court, not as an admiralty but as a civil cause.

Since the action was started in the state court and was an action to redress a maritime tort, it can be considered only as one of the class of cases based on maritime tort that can be initiated as a civil action in the state courts, and it can not be considered as a claim cognizable only in the admiralty. There were and are such cases: maritime tort is remediable in state court actions that apply the maritime law as the national courts develop and expound it or the Congress enacts it. Chelentis v. Luckenbach S. S. Co., 1918, 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Larios v. Victory Carriers, Inc., 2d Cir. 1963, 316 F.2d 63, 65; Riley v. Agwilines, Inc., 1947, 296 N.Y. 402, 73 N.E.2d 718; Amsterdam v. Cia Naviera Estrella de Plata, 2d Dept. 1959, 8 A.D.2d 947, 190 N.Y.S.2d 604. Cf. Spencer Kellogg & Sons v. Hicks, 1932, 285 U.S. 502, 513-514, 52 S.Ct. 450, 76 L.Ed. 903. See Muscelli v. Frederick Starr Contracting Co., 1947, 296 N.Y. 330, 335, 338, 73 N.E.2d 536; Johnsen v. McAllister Lighterage Lines, Inc., 2d Dept. 1959, 8 A.D.2d 831, 190 N.Y.S.2d 117.

The first cause of action, for ante-mortem damages, could have been maintained by the decedent in a state court under the "saving to suitors" clause 28 U.S.C.A. § 1333(1), and could have been removed into this Court as a diversity case although not as a federal-law case. Cf. Romero v. International Terminal Operating Co., 1959, 358 U.S. 354, 371, 79 S.Ct. 468, 3 L.Ed.2d 368. The questions, then, are whether it survived to his estate and whether, if it survived, it is barred by the contract limitation. After early hesitation, it is now usual to treat ante-mortem damage claims as surviving the claimant's death and as being disposed of "substantively" under maritime law where survival of tort claims is the law of the tort-feasant shipowner's nominal domicile (United States v. The S. S. Washington, E.D.Va., 1959, 172 F.Supp. 905, 908-909, aff'd on opinion below sub nom. United States v. Texas Co., 4th Cir. 1959, 272 F.2d 711; Petition of Gulf Oil Corporation, S.D. N.Y.1959, 172 F.Supp. 911, 914-917; Montgomery v. Goodyear Tire & Rubber Co., S.D.N.Y.1964, 231 F.Supp. 447, 451-453), or the domicile of the tort-feasor although he is not the shipowner or operator (Abbott v. United States, S.D.N.Y. 1962, 207 F.Supp. 468, 473-474) or the law of the place of tort and, coincidentally, of the victim's domicile (semble, O'Leary v. United States Line Co., 1st Cir. 1954, 215 F.2d 708, 710-711), or the law of the forum, at least where the alleged tort feasor has substantial contacts with it (Williams v. Moran, Proctor, Mueser & Rutledge, S.D.N.Y.1962, 205 F. Supp. 208, 215-216), or the law of forum that would have been available to claimants had they not become party claimants in a limitation proceeding (46 U.S.C.A. §§ 183, 185) in another forum. Petition of Gulf Oil Corporation, supra, 172 F. Supp. at 917-920. The Death on the High Seas Act is, in all these cases, not treated as displacing the earlier law by any preemptive, exclusivity of enactment. Compare Gillespie v. United States Steel Corporation, 1964, 379 U.S. 148, 154, 156, 85 S.Ct. 308, 13 L.Ed.2d 199. And, as the law invoked as giving the cause of action its being, directly or by something analogous to choice-of-law in the shadow of federal-law supremacy, is the maritime and not local law, the local survival statute is essentially implementive and not rights-creative. Cf. Romero v. International Terminal Operating Co. supra, 358 U.S. at 373-378, 79 S.Ct. at 480-483; Gillespie v. United States Steel Corporation, supra, 379 U.S. at 156 and fn. 14, 85 S.Ct. at 313. See The Tungus v. Skovgaard, 1959, 358 U.S. 588, 594-595 and fn. 9, 79 S.Ct. 503, 3 L.Ed.2d 524. State survival law may limit and straiten the pre-existent maritime claim by the very nature of the survival it contributes to it, but it can hardly be supposed to be the generating source of the right.

While a valid and surviving right of action is presented, it is barred of enforcement by the valid provision requiring suit to be commenced within one year. 46 U.S.C.A. § 183b(a). Schwartz v. S. S. Nassau, S.D.N.Y.1963, 223 F. Supp. 374. It follows that defendant is entitled to summary judgment on the first cause of action, for ante-mortem damages, and it will be so ordered, the judgment to be delayed of entry until the end of the whole case.

The second cause of action, for wrongful death, presents more complex problems. It may be at once said that the claim is not barred by lapse of time because 46 U.S.C.A. § 183b(c) in substance postpones the start of any lawful contractual limitation period until the date on which a legal representative is appointed in wrongful death cases, the Death on the High Seas Act imposes a two year limitation (46 U.S.C.A. § 763), and New York imposes a three year limitation (now N.Y.C.P.L.R. § 214, subd. 5). The action was timely commenced under any view, and the delay in appointing plaintiff as administratrix does not alter the matter. Missouri, Kansas & Texas Ry. v. Wulf, 1913, 226 U.S. 570, 575-577, 33 S.Ct. 135, 57 L.Ed. 355; Fornaris v. American Surety Co., D.P.R. 1960, 183 F.Supp. 339. Cf. Burnett v. New York Central R. R., 1965, 85 S.Ct. 1050.

If plaintiff had sued in the federal court for wrongful death and had assigned the Death on the High Seas Act as the basis of federal jurisdiction, her case would, very likely, have been docketed as an admiralty case since the Act (except as Sections 4 and 7 may be taken to provide otherwise) appears, and has been held, to restrict suitors in the federal court who base their claims on the Act to the admiralty court. Noel v. Lines Aeropostal Venezolana, 2d Cir. 1957, 247 F.2d 677, 66 A.L.R.2d 997; Higa v. Transocean Airlines, 9th Cir. 1956, 230 F.2d 780; Iafrate v. Cie. Generale Transatlantique, S.D.N.Y.1952, 106 F.Supp. 619; Bergeron v. Koninklijke Luchtvaart Maatschappij, N.V., S.D.N.Y.1960, 188 F. Supp. 594; Jennings v. Goodyear Aircraft Corp., D.Del.1964, 227 F.Supp. 246; Cf. Devlin v. The Flying Tiger Lines, Inc., S.D.N.Y.1963, 220 F.Supp. 924. See D'Aleman v. Pan American World Airways, 2d Cir. 1958, 259 F.2d 493, 496. It has, indeed, been explicitly held that where diversity of citizenship exists and is invoked as a basis for claiming in the federal court a civil jury trial, the action must be dismissed because the Act confers only a suit-in-admiralty right. Higa v. Transocean Airlines, Inc. supra.

In the present case, however, plaintiff sued in the state court and did not cite the Death on the High Seas Act to her support. The case was, expressly, removed to this Court as a diversity case; if it had been an admiralty case, it would not have been within the jurisdiction of the state court and, for that reason, could not have been removed. General Inv. Co. v. Lake Shore & M. S. Ry., 1922, 260...