THE PAN TWO
| Decision Date | 28 March 1939 |
| Citation | 26 F. Supp. 990 |
| Parties | THE PAN TWO. WILLIS v. PAN AMERICAN REFINING CORPORATION et al. |
| Court | U.S. District Court — District of Maryland |
Stewart M. Yeatman, of Baltimore, Md., for plaintiff.
George Forbes and Henry L. Wortche, both of Baltimore, Md., for defendants.
The exceptions to the libel in this case in admiralty present several questions, the most important one of which is whether an Ohio administrator of a deceased seaman may maintain this suit in admiralty in the District Court of the United States for the District of Maryland, under the Merchant Marine Act 1920 (Jones Act) for the alleged negligently caused death of his decedent.
It is alleged in the libel that the seaman, Meredith E. Melvin, was employed as a deckhand on the tug "Pan Two" owned by the Pan American Refining Corporation, and that he was drowned on April 16, 1938 in navigable waters in the State of Louisiana when the tug sank in consequence of alleged negligent navigation whereby the tug came into collision with her tow. The seaman at the time was asleep in his quarters and special emphasis as to negligence is placed on the failure to give him proper warning.
The proceeding is a libel in personam against the Pan American Refining Corporation which has a substantial place of business in Baltimore City, and also in personam against the Pan American Petroleum & Transport Co., Inc.; but in rem against the tug "Pan Two". The exceptions as to the Pan American Petroleum & Transport Co. Inc., relate to the insufficiency of the libel to show any breach of duty by it toward the seaman and for that reason, which is conceded to be correct by counsel for the libellant, the exceptions as to it will be sustained. Exceptions will also be sustained to the libel in rem against the tug "Pan Two" because the suit is under the Jones Act which does not authorize a proceeding in rem. The Pinar Del Rio, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827; The Black Gull, 2 cir. 82 F.2d 758; The Hanley, 2 cir. 29 F.2d 110. This also is conceded by the libellant. No objection is made to the venue.
The more important question in the case is whether the Ohio administrator can maintain the suit here. As to this the libel alleges that Joseph D. Willis was duly appointed administrator of the estate of the deceased seaman, Meredith E. Melvin, by the Probate Court of Lawrence County, State of Ohio, on February 18, 1939, he having shortly theretofore been appointed guardian of the surviving minor child of the seaman, Carol Jean Melvin, by the Court of Common Pleas of Lawrence County, Ohio, in which court on June 29, 1937, the seaman was divorced from his wife, Thelma Willis Melvin.
The respondent's legal objection to the maintenance of the suit by the Ohio administrator is put on the familiar principle that ordinarily an executor or administrator has no extra-territorial powes beyond the State where he is appointed, and therefore may not maintain suits in the courts of other States or of the United States outside of that jurisdiction. Johnson v. Powers, 139 U.S. 156, 11 S.Ct. 525, 35 L.Ed. 112; Wright v. Gilbert, 51 Md. 146, 152. This general principle of the common law has, I think, no proper application to the particular case because the administrator is here suing not as a common law administrator for the purpose of collecting and distributing assets of the decedent, but in the capacity of a trustee for a preferred class of relatives. So much was in effect said by the Supreme Court in Lindgren v. United States, 281 U.S. 38, 41, 50 S.Ct. 207, 209, 74 L.Ed. 686, affirming the decision of the 4 Cir., 28 F.2d 725:
"By this section if the injury to the employee results in death his personal representative— while not given any right of action in behalf of the estate — is invested, solely as trustee for the designated survivors, with the right to recover for their benefit such damages as will compensate them for any pecuniary loss which they sustained by the death".
The Merchant Marine Act 1920, § 33, 46 U.S.C.A. § 688, provides:
"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. * * *"
Prior to this Act there was no right of action against the ship or shipowner for the negligently caused death of a seaman. The new right of action in such a case given by the statute according to its literal wording was "an action for damages at law" with the right of trial by jury; but in Panama R. Co. v. Johnson, 264 U.S. 375, 391, 44 S.Ct. 391, 395, 68 L.Ed. 748, the Supreme Court held that by necessary implication from the nature of the subject matter and the history of admiralty jurisdiction the new right could be exercised by a suit in admiralty in personam as well as on the law side of the court, it being said:
It will be noted that the Merchant Marine Act above quoted gives the right of action to "the personal representative of such seaman" without other description; and makes applicable to the action the provisions of law contained in the federal statutes relating to actions for death in the case of railway employees, known as the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59. Section 51 also gives the right of action in case of death of the employee to the "personal representative" without further description, but "for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death," etc.
It is clear that the beneficiaries of the action are not the estate of the decedent but only the classes of dependents who are named in the statute. In this respect the law is of a kindred nature to actions for negligently caused death under state statutes frequently referred to as Lord Campbell's Act, which involve somewhat different procedural provisions in different States, but generally have the feature in common that the recovery is for the benefit of a prescribed class rather than for the benefit of the decedent's estate. In accordance therewith this court permitted a Virginia administrator to sue at law in this court under the Virginia statute embodying Lord Campbell's Act. Rose v. Phillips Packing Co., Inc., D.C., 21 F.Supp. 485, 488, on the authority of prior federal decisions to that effect. See Stewart v. Baltimore & O. R. Co., 168 U.S. 445, 18 S.Ct. 105, 42 L.Ed. 537; Weissengoff v. Davis, 4 Cir., 260 F. 16; Lauria v. E. I. DuPont De Nemours & Co., D.C., 241 F. 687; 2 Md.Law Review, 168, 170. The Maryland State cases had previously been to the contrary. Ash v. Baltimore & O. R. Co., 72 Md. 144, 19 A. 643, 20 Am.St. Rep. 461; London Guarantee & Acc. Co. v. Balgowan S....
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