The James McGee

• Decision Date: 19 May 1924
• Citation: 300 F. 93
• Parties: THE JAMES McGEE. THE LAKE CITY.
• Court: U.S. District Court — Southern District of New York

300 F. 93

THE JAMES McGEE. THE LAKE CITY.

United States District Court, S.D. New York.

May 19, 1924

William H. McGrann, of New York City, for petitioner.

George B. Covington, of New York City, for one claimant.

LEARNED HAND, District Judge (after stating the facts as above).

(1) In view of the confusion in the cases touching the liability for death on the high seas, it is important at the outset to note exactly what are the facts at bar. On the high seas a ship owned by a New Jersey corporation sinks a ship owned by the United States, and kills some of the latter's crew either on board that ship or in the adjacent waters, by drowning. The New Jersey Law (2 Comp.St. 1910, p. 1907, Sec 7) provides a remedy for death by negligence; the United States has accepted no such liability for the negligence of its officers or agents. While the decisions strike closely about such a situation, none quite reach it, except The Middlesex (D.C.) 253 F. 142. For example, a state statute will cover the death of a member of another ship's crew caused by collision upon navigable waters of the United States, but within the boundaries of the state, when actions are brought in state courts (Steamboat Co. v. Chase, 16 Wall. 522, 21 L.Ed. 369; Sherlock v. Alling, 93 U.S. 99, 23 L.Ed. 819), or libels are filed in the admiralty (The City of Norwalk (D.C.) 55 F. 98, affirmed 61 F. 364; Robinson v. Detroit, etc., Co. (C.C.A. 6) 73 F. 883 20 C.C.A. 86). For an injury occurring on a British ship, a seaman must look to the British law. The Lamington (D.C.) 87 F. 752.

In The Hamilton, 207 U.S. 398, 28 Sup.Ct. 133, 52 L.Ed. 264, the question arose between two Delaware ships, and the death statute of Delaware was applied against the owners of the guilty ship in favor of the victims of a collision in which the other was sunk. The ground of the decision was that the act created a personal obligation against the Delaware owner. In La Bourgogne, 210 U.S. 95, 28 Sup.Ct. 664, 52 L.Ed. 973, which followed closely, claims were allowed under the French law for the death of passengers of the guilty ship, though the local limitation statute was applied. There the collision was between a British and a French ship, and if claims had been filed because of the death of victims from among the British crew the case would have been on all fours. But since no point was made of the domicile of the victims, and the decision turned (page 138 (28 Sup.Ct. 680)), on The Hamilton, supra, the case appears to me in substance the same as that at bar.

In The E. B. Ward, Jr. (C.C.) 17 F. 456, Judge Pardee indicated, though perhaps he did not decide, that such claims as those at bar were good, but in The Middlesex, supra, Judge Morton squarely held the opposite. The Sagamore (C.C.A. 1) 247 F. 743, 159 C.C.A. 601, is not in point. In that case claims for the death of members of a Massachusetts crew were not allowed under Massachusetts law against British owners of the guilty ship. The case does not hold that such claims would not have been good under British law, so far as applicable to the facts.

The petitioner insists that the rule respecting the limitation of liability shows that The Hamilton, supra, depended on the fact that both vessels were owned in Delaware. I cannot find out from the books whether an owner's right to limitation of liability is to be considered to touch the right or the remedy. In Thomassen v. Whitwell, 9 Ben. 403, 406, Fed. Cas. No. 13929, Judge Benedict said that it was not matter of remedy, and though his decision was reversed in The Great Western, 118 U.S. 534, 6 Sup.Ct. 1172, 30 L.Ed. 156, the Supreme Court did not touch that point. But Judge Benedict in The State of Virginia (D.C.) 60 F. 1018, seems to have quite changed his views, or at least it is impossible to see how otherwise he could have reached the result he did. Judge Holt, in the Titanic (D.C.) 209 F. 501, squarely held that the question was of right and not of remedy, while, on the other hand, I read Judge Shipman's decision in Levison v. Oceanic Steam Navigation Co., 15 Fed.Cas. 422, as holding directly the opposite.

The petitioner's chief reliance is the language used in The Scotland, 105 U.S. 24, 29, 30, 26 L.Ed. 1001, when it was said in the case of a collision between an American and a British ship that, where the flags were different, our local limitation statute controlled, because the court would in such cases apply local law, under which in the case at bar there could be no relief. The Harrisburg, 119 U.S. 199, 7 Sup.Ct. 140, 30 L.Ed. 358; The Alaska, 130 U.S. 201, 9 Sup.Ct. 461, 32 L.Ed. 923. I agree that this case cannot be taken as a positive affirmation that the question of limitation is one of remedy, and indeed the qualification that, if the flags had been the same, the law of the flag would control, seems to preclude that idea. Still I cannot quite see how the actual decision can be on any other theory. If the question affects the right, the result of The Scotland, supra, was that the obligation for the tortious act of a British owner on the high seas is to be determined by American law, which had no application either to the place or to the person. Of course, there is no dialectical difficulty in such a conclusion, because no court can in the nature of things apply any law but its own. Yet it contradicts all general conventions accepted in such matters, unless of course the foreign law were positively repellant to our local ethos. I cannot regard the decision as necessarily implying that limitation of liability goes to the right.

The Belgenland, 114 U.S. 355, 5 Sup.Ct. 860, 29 L.Ed. 152, adds nothing to The Scotland, supra. However, a necessary consequence of the decision in La Bourgogne, supra, though not of the ratio decidendi is to foreclose the petitioner from any benefit of the language in The Scotland, supra. As I have said, in that case the validity of the claims was determined by French law, and the right to limit by the lex fori. Now I cannot conceive how it was possible to reach this result, if limitation was a part of the obligation arising from the tort. No attention was paid to the domicile of the victims, nor is there the faintest reason to suppose that the result would have been different, had some member of the Cromartyshire's crew been drowned. Why, then, if limitation be a matter of right, did the court take this inconsistent position, and how does it make a difference, as Judge Holt certainly supposed, whether a foreign ship strikes an iceberg, as in The Titanic, supra, or another ship?

Whatever may be the result as to limitation, I am satisfied that the case is at least open on principle, and that the language of The Scotland, supra, does not form a rule for its decision. I cannot help thinking that much confusion arises from the habit of speaking of a ship on the seas as a part of the territory where she is owned. That is a fiction recognized as such, and the Supreme Court has recently used other language to describe the facts in Cunard S.S. Co. v. Mellon, 262 U.S. 100, 123, 43 Sup.Ct. 504, 507 (67 L.Ed. 894, 27 A.L.R. 1306): 'The jurisdiction which it is intended to describe arises out of the nationality of the ship, * * * and partakes more of the characteristics of personal than of territorial sovereignty.'

See, also, International Mer. Mar. v. Stuart (D.C.) 285 F. 79, 81, 82, which, though reversed, discussed this aspect of the question on the same theory.

In the very nature of things, courts can enforce no obligations which are created elsewhere; when dealing with such obligations, they merely recognize them as the original of the copies which ...