State v. Nabella, Civ. No. 10856.

• Decision Date: 01 October 1959
• Docket Number: Civ. No. 10856.
• Parties: STATE of Maryland, for the use of Hassie C. SMITH, surviving widow of William J. Smith, deceased, Plaintiff v. A/S NABELLA, Defendant and Third-party plaintiff (Nacirema Operating Co., Inc., Third-party defendant). Hassie C. SMITH, Administratrix of the estate of William J. Smith, deceased, Plaintiff v. A/S NABELLA, Defendant and Third-party plaintiff (Nacirema Operating Co., Inc., Third-party defendant).
• Court: U.S. District Court — District of Maryland

176 F. Supp. 668

STATE of Maryland, for the use of Hassie C. SMITH, surviving widow of William J. Smith, deceased, Plaintiff v. A/S NABELLA, Defendant and Third-party plaintiff (Nacirema Operating Co., Inc., Third-party defendant).

Hassie C. SMITH, Administratrix of the estate of William J. Smith, deceased, Plaintiff v. A/S NABELLA, Defendant and Third-party plaintiff (Nacirema Operating Co., Inc., Third-party defendant).

Civ. No. 10856.

United States District Court D. Maryland.

October 1, 1959.

Jerome B. Monfred, Baltimore, Md., for plaintiff.

Southgate L. Morison and David Ross, Baltimore, Md., for defendant, and third-party plaintiff.

Jesse Slingluff and Mathias J. DeVito, Baltimore, Md., for third-party defendant.

THOMSEN, Chief Judge.

This is a civil action brought by (1) State of Maryland, for the use of Hassie C. Smith, surviving widow of William J. Smith, deceased, and (2) Hassie C. Smith, Administratrix of the Estate of William J. Smith, deceased, against A/S Nabella, alleging that the decedent, a longshoreman, was killed as a result of (a) the unseaworthiness of a vessel owned by defendant on which the decedent was working in Baltimore Harbor, and (b) the negligence of defendant, its agents, servants and employees. The action is brought (1) on behalf of the surviving widow under the Maryland Wrongful Death Act (Lord Campbell's Act), Art. 67, Ann.Code of Md., 1957 ed., and (2) on behalf of the administratrix under the Maryland Survival Statute, Art. 93, sec. 112 of the Code. Jurisdiction is based on diversity of citizenship. Defendant has filed a third-party complaint for indemnity against Nacirema, the stevedoring company which employed the deceased.

The case is now before the court on defendant's motion to strike the allegations of unseaworthiness from that portion of the complaint which alleges a claim under the Wrongful Death Act.¹ The motion is based on the contention "that the Maryland Wrongful Death Act does not provide for recovery for nonnegligent unseaworthiness". The right of the administratrix to recover on the ground of "non-negligent unseaworthiness" under the Maryland Survival Statute has not been questioned, and defendants concede "that recovery may be had under the Maryland Wrongful Death Act for negligently (as determined by the Maryland substantive law standards) caused death".

A similar question was presented to this court in State of Maryland, to Use of Gladden v. Weyerhaeuser Steamship Co., D.C.D.Md., 176 F.Supp. 664, and this court held that the alleged failure of the shipowner to provide a seaworthy ship, with appurtenant appliances and equipment, was a "wrongful act, neglect or default" within the meaning of the Maryland Wrongful Death Act (hereinafter called the Maryland statute).

The opinion in Gladden recognized that the question at issue involved the proper construction of a Maryland statute, controlled by Maryland law. The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524; United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed. 2d 541. The opinion noted that there is no Maryland case directly in point²; that the history of the Maryland law had been reviewed by Judge Chesnut in State, to Use of Maines v. A/S Nye Kristianborg, D.C.D.Md., 84 F.Supp. 775; that the propriety of such a suit seems to have been assumed by counsel for the defendant, by Judge Chesnut, and by the Fourth Circuit in State of Maryland for Use of Johnson v. United States, 165 F.2d 911, and that the majority and dissenting opinions of the Third Circuit in Skovgaard, 252 F.2d 14, argue fully the reasons for an affirmative and a negative answer, respectively, to the question at issue. Skovgaard, of course, dealt with the New Jersey law, and the opinion in Gladden discussed the similarities and differences between the New Jersey statute and cases and the Maryland statute and cases. That discussion will not be repeated here, but it is adopted by reference.³ The decision in Gladden is supported by the reasoning of the Fourth Circuit in Holley v. S.S. Manfred Stansfield, 269 F.2d 317, decided July 9, 1959.

The complaint in Gladden alleged that the injury and death in that case were caused by the unseaworthy condition of the starboard runner and port boom, both of which were part of the vessel's own equipment and gear. In the instant case the unseaworthiness is alleged to have resulted from a defective and worn rope attached to a sling which had been brought aboard by the stevedoring contractor as part of its gear. The difference is immaterial, because: (1) both in Gladden and in the case at bar the motion to dismiss was based on the assumption that the unseaworthiness was not coupled with any negligence on the part of the shipowner; and (2) the duty owed by a shipowner to a longshoreman to provide a seaworthy vessel, with appurtenant appliances and equipment, first stated in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, was extended in Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, to cover tackle and gear brought aboard the ship by the stevedoring contractor and used by it in loading or unloading the cargo.

The breach of that duty owed by the shipowner to the longshoreman is a neglect or default on the part of the shipowner which entitles an injured longshoreman to sue the shipowner for damages. In the instant case, if plaintiff's decedent had survived, he could...