State v. A/S NYE KRISTIANBORG

• Decision Date: 15 July 1949
• Docket Number: No. 3117.,3117.
• Citation: 84 F. Supp. 775
• Parties: STATE, to Use of MAINES et al. v. A/S NYE KRISTIANBORG et al.
• Court: U.S. District Court — District of Maryland

84 F. Supp. 775

STATE, to Use of MAINES et al. v. A/S NYE KRISTIANBORG et al.

No. 3117.

United States District Court D. Maryland.

July 15, 1949.

Sol C. Berenholtz, Baltimore, Md., Louis Silberstein, Baltimore, Md., for libellants.

Robert W. Williams (of Ober, Williams, Grimes & Stinson), Baltimore, Md., for respondents.

CHESNUT, District Judge.

The Maryland Lord Campbell's Act, Maryland Code, art. 67, §§ 1-5 was again amended by chapter 742 of the Maryland Acts of 1949. The amendment, in effect, for the first time imposes liability in rem on a vessel for a wrongful act, neglect or default which causes the death of a person under circumstances where the vessel would have been liable to the person injured if he had survived. The exceptions to the libel in rem in the instant case present the question whether this amendment, which took effect June 1, 1949, is retrospective or only prospective in operating effect. The question now presented arises from the following alleged facts and former proceedings in the case. On October 19, 1948 the tug "Columbia", having in tow a barge known as the "Theodore H. Rhode", was proceeding through the Baltimore North Channel toward the Chesapeake Bay when the tug was struck by the motor vessel "Bowgran" which was likewise then proceeding in the same channel toward the Bay. As a result of this collision the tug sank and David A. Maines, employed as master of the tug, lost his life.

On January 5, 1949 the equitable plaintiffs in this case, the widow and infant son of the deceased, filed a libel based on Lord Campbell's Act to recover damages for the death of the husband and father. The libel asserted liability in personam against the vessel owner, the A/S Nye Kristianborg, a Norwegian corporation, and also against the motor vessel Bowgran in rem. On January 28, 1949 proctors for the owner claimant of the Bowgran filed exceptions to the libel insofar as it asserted liability in rem against the vessel. At the hearing of these exceptions it was substantially agreed by counsel for all the parties that as both the federal and state law then existed there was no liability in rem upon the Bowgran. Consequently the exceptions to the libel, insofar as it asserted liability in rem against the vessel, were sustained with leave, however, to the libellants to amend. From time to time thereafter the time for filing such amendment was extended and finally on June 3, 1949, two days after the amendment to Lord Campbell's Act became effective, an amended libel in rem was filed against the Bowgran, and exceptions to that amended libel were promptly filed by proctors for the vessel. On hearing counsel in support of and against the exceptions it developed that the controlling question is whether the very recent amendment to Lord Campbell's Act in Maryland is retrospective in operation and thus would be applicable to this case where the loss of life occurred on October 19, 1948, about seven months before the effective date of the amendment. The question is obviously one of proper statutory construction and, as the whole case is based on a Maryland statute, it would seem clear enough, even apart from the doctrine of Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, that the first important matter to be considered is what the Maryland Court of Appeals would say, so far as it is possible for me to determine in advance of such actual decision. But before directly coming to that aspect of the subject it will be helpful preliminarily to summarize briefly the federal statutory law and judicial decisions with respect to liability for wrongful deaths occurring on ships on navigable waters.

There is no liability for wrongful death under the general maritime law. This was decided by the Supreme Court in the case of The Harrisburg, 1886, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 overruling some prior trial decisions or intimations to the contrary, including the opinion by Chief Justice Chase sitting in the District of Maryland in the case of The Sea Gull, 1865, Fed.Cas.No. 12,578, p. 909.¹ It was not until 1920 that Congress enacted the Death on the High Seas Act, 46 U.S.C. A. §§ 761-768, which, however, is applicable only where the wrongful act occurs "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 common law gave no civil remedy for an injury which resulted in death. Mobile Life Insurance Company v. Brame, 1877, 95 U.S. 754, 24 L.Ed. 580. This lack was remedied in Maryland in 1852 by the passage of the Maryland Lord Campbell's Act, and as the alleged wrongful act in this case occurred in Maryland territorial waters and not on the high seas the liability in the case at bar must be based upon that Act. To the extent that that Act is applicable it may be enforced in the appropriate federal admiralty court. See Maryland v. Miller, D.C.Md.1910, 180 F. 796, modified on other grounds, 4th Cir., 194 F. 775, certiorari denied 225 U.S. 703, 32 S.Ct. 836, 56 L.Ed. 1265; State v. Hamburg-American Steam Packet Co., D.C.Md.1911, 190 F. 240, affirmed 4th Cir., 193 F. 1019, affirmed 234 U.S. 63, 34 S.Ct. 736, 58 L. Ed. 1213; Western Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; State of Md. for Use of Johnson v. United States, 1948, 4th Cir., 165 F.2d 911; American Stevedores v. Porello, 1947, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011. But the liability cannot be enforced by a proceeding in rem against a vessel for wrongful death unless the State statute expressly or very clearly creates a lien on the ship. The Anglo-Patagonian, 4th Cir., 1916, 235 F. 92, certiorari denied 242 U.S. 636, 37 S.Ct. 19, 61 L.Ed. 539, and Lewis v. Jones, 4th Cir., 1928, 27 F.2d 72, certiorari denied 278 U.S. 634, 49 S.Ct. 34, 73 L.Ed. 551, holding that the Virginia statute did not give the lien, and Vancouver S. S. Co. v. Rice, 1933, 288 U.S. 445, 53 S.Ct. 420, 77 L.Ed. 885. And where the State statute gives no lien no suit in rem can be maintained. The Corsair, 1892, 145 U.S. 335, 12 S.Ct. 949, 36 L.Ed. 727. The English law was to the same effect, it having been held in The Vera Cruz, 10 A.C. 59, that the British Lord Campbell's Act gave no express right in rem and therefore the British admiralty courts were without jurisdiction to enforce liability under the Act by an in rem proceeding.²

It should also be borne in mind that the in rem proceeding is a peculiar feature of admiralty law, and jurisdiction to enforce a maritime lien should not be extended by construction, analogy or inference. The Yankee Blade, 1856, 19 How. 82, 60 U.S. 82, 15 L.Ed. 554; Piedmont & George's Creek Coal Co. v. Seaboard Fisheries Co., 1920, 254 U.S. 1, 41 S.Ct. 1, 65 L. Ed. 97; Osaka Shosen Kaisha v. Pacific Export Lumber Co., 1923, 260 U.S. 490, 43 S. Ct. 172, 67 L.Ed. 364; Plamals v. Pinar Del Rio, 1928, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827. See also Krauss Bros. Lumber Co. v. Dimon S. S. Corp., 1933, 290 U.S. 117, 54 S.Ct. 105, 78 L.Ed. 216.

From this condensed summary of the applicable law it is quite clear and indeed is not now disputed that the libel in rem in this case cannot be sustained unless the Maryland Act of 1949 amending Lord Campbell's Act is to be given retrospective operation, because it is not now even contended that the Maryland Act prior to this last amendment gave a lien on the ship.

Lord Campbell's Act in Maryland was first enacted by the Maryland Act of 1852, ch. 299. The original language imposing liability, which was not substantially changed until 1949, imposed the liability merely upon the person who would have been liable if death had not ensued (or the executor or the administrator of the said person). The effect of the amendment of section 1 of art. 67 merely adds the words "the vessel" to the phrase "person who would have been liable" and further provides "and if death ensues as a result of wrongful act, neglect or default of a vessel, suit may be brought in rem against said vessel in any court of competent jurisdiction.³

The exceptions to the libel are based on the view that the amendment was prospective only in operation, while the proctor for the libellant contends that the statute as amended can and should properly have a retrospective operation to include the occurrence of October 19, 1948.

After consideration of the oral and written arguments of respective counsel, and even more particular review of the Maryland decisions, I reach the conclusion of law that the amendment of 1949 cannot properly be given retroactive effect and therefore the exceptions to the amended libel in rem must be sustained.

There is no Maryland constitutional prohibition of retrospective Acts affecting civil rights or liabilities.⁴ But the Maryland decisions are clear and emphatic to the effect that a statute will not be given a retrospective operation unless its words are so clear, strong, and imperative in their retrospective expression that no other meaning can be attached to them or unless the manifest intention of the Legislature could not otherwise be gratified. The rule has also been stated by the Maryland Court of Appeals to be that in the absence of a clear manifestation of a contrary intent, or unless such a construction would be inconsistent with the purpose and intent of the Legislature, the operation of a statute which adversely affects substantial rights will be assumed to be prospective rather than retrospective. The Maryland cases to the above effect are very numerous, but it will be sufficient to refer to a few of the more recent ones. Kelch v. Keehn, 183 Md. 140, 36 A.2d 544; Tax Commission v. Potomac Electric Power Co., 182 Md. 111, 32 A.2d 382; Diamond Match Co. v. State Tax Commission, supra; Dashiell v. Holland Maide Candy Shops, 171 Md. 72, 188 A. 29; Jones v. Gordy, 169 Md. 173, 180 A. 272; Ireland v. Shipley, 165 Md. 90, 166 A. 593; Savings Bank v....