THE FOUR SISTERS, No. 1119.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: Harry Kisloff, of Boston, Mass., for Weston Ellsworth Esau, administrator, claimant
• Citation: 75 F. Supp. 399
• Parties: THE FOUR SISTERS. Petition of RESEVITZ.
• Docket Number: No. 1119.
• Decision Date: 08 October 1947

75 F. Supp. 399

THE FOUR SISTERS.
Petition of RESEVITZ.

No. 1119.

District Court, D. Massachusetts.

October 8, 1947.

Bingham, Dana & Gould, of Boston, Mass., for petitioner.

Harry Kisloff, of Boston, Mass., for Weston Ellsworth Esau, administrator, claimant.

FORD, District Judge.

On February 8, 1945, Weston Ellsworth Esau, acting as administrator of the estate of Ellsworth Esau, commenced an action at law against Abram H. Resevitz, owner of the fishing vessel Four Sisters, for the death of plaintiff's son while a seaman on a

75 F. Supp. 400

voyage of the Four Sisters. Resevitz filed a petition on February 26, 1945 for limitation of and exoneration from liability; the vessel and pending freight were appraised at $21,225.61; and stipulation of that amount with interest and costs was filed on March 15, 1945. The court restrained the commencement or prosecution of all actions arising from the voyage of the Four Sisters, and appointed a commissioner to receive claims until May 4, 1945 (later extended to June 4, 1945). Weston E. Esau answered the petition on June 4, denying many of the allegations thereof; asking $35,000 for the father, brother, and sister of Ellsworth Esau and asserting a claim for conscious suffering; conceding the limitation of liability; and requesting modification of the monition to permit claimant to proceed at law

Weston E. Esau, as administrator, also filed a claim before the commissioner, reiterating his claim as embodied in the answer to the petition.

On September 11, 1945, Weston E. Esau moved to modify the restraining order to permit him to proceed at law on the civil side of the court. Proctors for the petitioner Resevitz assented, the order was modified, and claimant proceeded with his action before a jury in October, 1945. At the trial, counsel for claimant stated that he would offer proof of pecuniary loss to the father and the sister of decedent. The court ruled that recovery under the Jones Act, 46 U.S.C.A. § 688, when decedent left a parent and a sister surviving him is limited to pecuniary loss to the parent; that pecuniary loss to both the parent and sister was within the measure of damages provided by the Death on the High Seas Act, 46 U.S.C.A. § 761; that jurisdiction under the Death on the High Seas Act was exclusively in admiralty, but that claimant could proceed in law under the Jones Act. When, at the trial, claimant offered proof of pecuniary loss to the sister, upon objection by the petitioner, the evidence was rejected by the court, and plaintiff excepted to the ruling. Claimant had a verdict of $3125 for pecuniary loss to the father and $500 for conscious suffering and judgment was entered. Costs were stipulated and execution issued in the amount of $3861.67, which amount was paid to the claimant.

Claimant now seeks to recover for pecuniary loss to Alice Esau Souza, sister of the decedent, on the admiralty side of the court. Petitioner moves for dismissal of the claim.

The question on this motion to dismiss is whether claimant's recovery under the Jones Act for the father on the law side of this court now bars recovery for the sister under the Death on the High Seas Act in admiralty. I think it does not.

1. Counsel for petitioner Resevitz urge that the personal representative of decedent has no residual claim under the Death on the High Seas Act, after his recovery under the Jones Act, and that "the seaman's representative may not have a double recovery for the same death." This may be true under some circumstances, but is inapropos here. Weston E. Esau does not seek a double recovery for the same death. As administrator of the estate of decedent, he has a cause of action for the benefit of himself as father of decedent under the Jones Act. Pecuniary losses to the sister of decedent are not cognizable under the Jones Act when the father is alive. See 45 U.S.C.A., § 51, which is incorporated by reference into the Jones Act. The personal representative recovers as trustee for the designated survivors, and not for the estate of decedent. If there is no survivor, no action can be maintained for the death. Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686. The group of beneficiaries under the Death on the High Seas Act includes the "decedent's wife, husband,...