THE DEVONA

• Decision Date: 03 September 1924
• Docket Number: No. 574.,574.
• Parties: THE DEVONA. JOYCE v. CONVOY S. S. CO., Limited.
• Court: U.S. District Court — District of Maine

1 F.2d 482 (1924)

THE DEVONA.

JOYCE v. CONVOY S. S. CO., Limited.

No. 574.

District Court, D. Maine, S. D.

September 3, 1924.

William H. Gulliver and Wm. B. Mahoney, both of Portland, Me., for claimant.

Nathan W. Thompson and William A. Connellan, both of Portland, Me., for libelant.

HALE, District Judge.

In The Devona, Nos. 572 to 574, the court found both the ship and the libelants to have been in substantial fault contributing to the injury, and held that a case is presented of negligence on the part of certain stevedores, concurring with negligence on the part of the ship, and that damages must be divided. Reference was made to assessors, and the court said that, upon the coming in of the assessors' report, such further action would be taken as the case might require. The Devona (D. C.) 285 Fed. 173, 178.

The report of the assessors is now before the court. No question is found requiring the attention of the court except in this case — No. 574. The assessors have assessed damages for the libelant in the sum of $1,500. The claimant now contends that a finding of contributory negligence on the part of decedent is a bar to recovery, when the court is administering a state death statute. It raises this question by motions that the report of the assessors be rejected and that the libel in No. 574 be dismissed.

The Maine statute relating to this subject is found in R. S. 1916, c. 92, § 9, as follows:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as shall amount to a felony."

The purpose of this statute is clearly to take the case out of the common-law maxim that an action for death dies with the person; when the statute is applied to a maritime tort, as in the case now before the court, the effect of the statute is to attach a new legal right and liability to a purely maritime transaction. Before the statute, the case was damnum absque injuria; by the statute, it became at once a tort in the full legal sense, and a maritime tort by reason of its place, its nature, and its circumstances, within the definition given by Mr. Justice Blatchford in Leathers v. Blessing, 105 U. S. 626, 630, 26 L. Ed. 1192, and as stated, also, in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 394, 12 L. Ed. 465, Steamboat Co. v. Chase, 16 Wall. 522, 532, 21 L. Ed. 369, and The City of Norwalk (D. C.) 55 Fed. 98, 109.

The death statute of Maine is now invoked in a case of instantaneous death resulting from a clearly maritime tort. In Earles v. Howard, 268 Fed. 95, this court has considered some of the questions raised by these motions. I there had occasion to comment upon The Hamilton, 207 U. S. 398, 406, 28 Sup. Ct. 133, 52 L. Ed. 264, in which case the power of a state statute to supplement the maritime law was clearly recognized, and it was said by Mr. Justice Holmes, speaking for the court, that such state law could cause no lack of uniformity of practice in local courts, for "courts constantly enforce rights arising from and depending upon other laws than those governing the local transactions of the jurisdiction in which they sit."

Having reached this conclusion, it is not necessary to go further. But it is contended that a court in admiralty must take the state statute with its limitations, and, if contributory negligence is found, it must dismiss the libel, as a state court would be compelled to do; that the Judicial Code saved to suitors a common-law remedy and not a remedy at common law.

In Southern Pacific Co. v. Jensen, 244 U. S. 205, 214, 37 Sup. Ct. 524, 528 (61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900), in speaking for the Supreme Court, Mr. Justice McReynolds said:

"Article 3, § 2, of the Constitution, extends the judicial power of the United States `to all cases of admiralty and maritime jurisdiction,' and article 1, § 8, confers upon the Congress power `to make all laws which may be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.' Considering our former opinions, it must now be accepted as settled doctrine that in consequence of these provisions Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country. Butler v. Boston & Savannah Steamship Co., 130 U. S. 527; In re Garnett, 141 U. S. 1, 14. And further that in the absence of some controlling statute the general maritime law as accepted by the federal courts constitutes part of our national law applicable to matters within the admiralty and maritime jurisdiction. The Lottawanna, 21 Wall. 558; Butler v. Boston & Savannah Steamship Co., 130 U. S. 527, 557; Workman v. New York City, 179 U. S. 552."

In Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 382, 38 Sup. Ct. 501, 503 (62 L. Ed. 1171), in speaking for the court, the same justice said:

"Under the doctrine approved in Southern Pacific Co. v. Jensen, no state has power to abolish the well-recognized maritime rule concerning measure of recovery and substitute therefor the full indemnity rule of the common law. Such a substitution would distinctly and definitely change or add to the settled maritime law, and it would be destructive of the ...