The E. B. Ward, Jr

• Decision Date: 01 June 1883
• Citation: 17 F. 456
• Parties: CARLSDOTTER and others v. The E.B. WARD, JR. [1]
• Court: U.S. District Court — Eastern District of Louisiana

17 F. 456

CARLSDOTTER and others v. The E.B. WARD, JR. ^[1]

United States Circuit Court, E.D. Louisiana.

June, 1883

This suit was brought by Christina Carlsdotter, widow of Carl P Peterson; John S. Jonsson and his wife, Charlotta J. Jonsson father and mother of Gustaf L. Jonsson, and Ulrika B. Hohn mother of Eva. M. Hohn, for the recovery of damages suffered by them through the death of said Carl P. Peterson, Gustaf L Jonsson, and Erick A. Hohn, and also for the recovery of the value of certain personal effects belonging to said alleged decedents. The libel avers that said decedents, who were seamen on board of the Swedish bark Hendrick, were killed in consequence of a collision between the said bark and the said steam-ship E. B. Ward, Jr., which collision occurred upon the high seas. The libelants allege that they are the legal heirs of said decedents, and claim (1) $3,000 for the damages suffered by each of said decedents,-- a right of action for which damages, it is claimed, survives in favor of the said libelants under the Civil Code of Louisiana; (2) $3,000 for damages suffered by said libelants by reason of the deprivation of the services, society, and support of said decedents; (3) $184 damages for the loss of personal effects of each of said decedents. The claimants excepted to the said libel upon the ground, among others, that the right of action for the recovery of said items of damages perished with the said decedents, and did not survive in admiralty in favor of said libelants, the alleged heirs of said decedents.

John D. Rouse and Wm. Grant, for libelants.

W. S. Benedict and Andrew J. Murphy, for claimants.

PARDEE J.

The question made in this case is whether an action for damages for the loss of a human life caused by a maritime tort survives in admiralty. Whenever this question has been before the supreme court it has not been necessary to decide it, and, while commenting on it as an open question, the court has clearly left it for decision hereafter when the proper case should be made. See Steamboat Co. v. Chase, 16 Wall. 532; Ex parte Gordon, 104 U.S. 515. The chief justice, in deciding the latter case, states the real position of the question as follows:

'The court of admiralty has jurisdiction of the vessel and the subject-matter of the action, to-wit, the collision. It is competent to try the facts, and, as we think, to determine whether, since the common-law courts in England and to a large extent in the United States are permitted to estimate the damages which a particular person has sustained by the wrongful killing of another, the courts of admiralty may not do the same thing.'

In the several circuit and district courts in this country, sitting in admiralty, many opinions have been rendered going over the entire ground, and apparently exhausting the subject, so far as discussion is concerned. These decisions are to the following effect: (1) That the action does survive; (2) that it does not survive; (3) that when the tort resulting in death was committed on navigable waters within the body of a country where the prevailing state law gave a right of action, the admiralty court would allow the action and enforce the remedy by a proceeding in rem.

First. That the cause of action does survive in admiralty has been hinted and doubted for 50 years. See Plummer v. Webb, 1 Ware, 75. But the first perpendicular decision was rendered by Chief Justice CHASE on the circuit in the case of The Sea Gull, Chase, Dec. 145. The collision in that case may have been within the body of a country, but the report does not show it, nor does that fact cut any figure in the case. In that case the chief justice held that 'the rule that personal actions die with the person is peculiar to the common law, traceable to the feudal system and its forfeitures, and does not obtain in admiralty;' and that 'a husband can recover by a proceeding in rem against the vessel which caused the death of his wife for the injury suffered by him thereby. ' This decision has been cited and followed in the following cases, which I have examined: The Highland Light, Chase, Dec. 150; The Towanda, 23 Int.Rev.Rec. 384; The Garland, 5 F. 924; The Harrisburg, 15 F. 610; The Charles Morgan, 18 Law Reg. 624. See, also, Holmes v. O. & C. Ry. Co. 5 F. 75; In re Long Island Transp. Co. Id. 599.

Second. That the action does not survive has been held expressly in The Sylvan Glen, 9 F. 335, and this present case, (16 F. 255,) which are the only late cases to this effect I have found.

Third. It seems to have been held uniformly that where the tort was committed within the territory of a state which by its laws gave a right of action for the wrongful killing of a person the admiralty courts would take jurisdiction, and by proceedings in rem enforce a lien on the offending vessel. This has been the practice in the courts of this district and circuit. The only case that I have found that takes the contrary view is The Sylvan Glen, supra. Without doubting the correctness of this practice, it does seem that unless the action survives in admiralty, the courts have resurrected a lien in order to furnish a complete remedy. No state statute that I have found gives any lien for the...