THE PRINCESS SOPHIA

• Decision Date: 27 August 1929
• Docket Number: No. 4553.,4553.
• Citation: 35 F.2d 736
• Parties: THE PRINCESS SOPHIA. Petition of CANADIAN PAC. RY. CO.
• Court: U.S. District Court — Western District of Washington

35 F.2d 736 (1929)

THE PRINCESS SOPHIA.^*

Petition of CANADIAN PAC. RY. CO.

No. 4553.

District Court, W. D. Washington, N. D.

August 27, 1929.

Bogle, Bogle & Gates and Lawrence Bogle, all of Seattle, Wash., for petitioner.

William Martin, of Seattle, Wash., for claimants.

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

In the argument before the court and the briefs presented the claimants strongly contend that limitation was unwarranted, and that in the consideration of damages the court should consider the acts of omission and commission leading to the casualty, and that the conscience of the court should assess damages in accordance with right, and that the court is not bound by the strict rules of law with relation to the assessment of damages, and that interest should be charged from date of death.

In considering the commissioner's report and the exceptions, the court has only to determine the sufficiency of the claims which have been filed, whether filed by the proper parties within the period of limitation provided by the Alaska statute and whether proof is submitted to show the loss which the estate of the deceased maintained, and whether interest should be charged on claims allowed. The issue of limitation and total exemption has been disposed of, so far as this court is concerned.

The only parties interested in the fund for distribution by the court are the claimants. As to the apportionment the petitioner has no concern. No objections have been made to any claim by a claimant, and no exceptions have been taken by any claimant party in interest to the findings and conclusions of the commissioner. All of the claims are filed under oath in harmony with the rules of this court and the law, and, so far as the claims to the fund to be apportioned are concerned, the exceptions to each and all are denied.

Exception being taken to the order of the court limiting liability, and appeal being imminent to review the same, and, if reversed, the appellate court as a final tribunal to assess the damages as the law and the proofs warrant, a concise consideration of the exceptions filed follows:

The right of recovery is clearly statutory, predicated upon section 1185 of the Code of Civil Procedure of Alaska: "When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed ten thousand dollars, and the amount recovered, if any, shall be exclusively for the benefit of the decedent's husband or wife and children when he or she leaves a husband, wife, or children, him or her surviving; and when any sum is collected it must be distributed by the plaintiff as if it were unbequeathed assets left in his hands, after payment of all debts and expenses of administration, and when he or she leaves no husband, wife, or children, him or her surviving, the amount recovered shall be administered as other personal property of the deceased person; but the plaintiff may deduct therefrom the expenses of the action, to be allowed by the proper court upon notice, to be given in such manner and to such persons as the court deems proper."

This statute was construed by the Court of Appeals of this circuit in Jennings v. Alaska Treadwell Gold Mining Co., 170 F. 146, 148, and adopted the construction of the Oregon Supreme Court in Perham v. Portland Electric Co., 33 Or. 451, 53 P. 14, 24, 40 L. R. A. 799, 72 Am. St. Rep. 730. Judge Morrow said, in considering the measure of damages: "The Alaska Code of Civil Procedure is substantially the same as the Oregon Code * * * and section 353 (now 1185) of the Alaska Code is identical with section 381 of the Oregon Code * * * with the following exceptions: In the Alaska Code the amount that may be recovered `shall not exceed $10,000.00'; while in the Oregon Code the amount that may be recovered `shall not exceed $5,000.00.'"

And states the rule: "In such case the amount recovered should be administered as other personal property of the deceased person as provided in the Oregon statute; that is to say, the amount received should be for the benefit of the estate, and the damage to the estate would therefore be the value of the life to the estate, measured by the earning capacity, thriftiness, and probable length of the life of the deceased."

There is a distinction in the nature and measure of damages to the injured person, or a right given to the surviving spouse or dependents, or a statutory right for the benefit of the estate. In the first would be included pain, suffering, etc.; and in marine torts admiralty courts sometimes give or withhold damages upon enlarged principles of justice and equity, where the issue bears a personal relation and the injured party was guilty of contributory negligence. Judge Deady in Peterson v. The Chandos (D. C.) 4 F. 645, and also in Holmes v. Oregon Ry. (D. C.) 5 F. 523, and Judge Hughes in The Manhasset (D. C.) 19 F. 430, denied recovery to the injured person where his negligence contributed to his injury, even though the vessel was in fault. Judge Pardee in The Explorer (D. C.) 20 F. 135, and The Wanderer (C. C.) 20 F. 140, said, where the vessel and the injured person were both in fault, in cases of marine torts, courts of admiralty could "exercise a conscientious discretion and give or withhold damages upon enlarged principles of justice and equity," and permitted recovery by the injured party. And the Supreme Court in The Max Morris, 137 U. S. 1-14, 11 S. Ct. 29, 33, 34 L. Ed. 586, said: "Contributory negligence in a case like the present should not wholly bar recovery. There would have been no injury to the libelant but for the fault of the vessel; and, while, on the one hand, the court ought not to give him full compensation for his injury where he himself was partly in fault, it ought not, on the other hand, to be restrained from saying that the fact of his negligence should not deprive him of all recovery of damages. As stated by the district judge in his opinion in the present case, the more equal distribution of justice, the dictates of humanity, the safety of life and limb, and the public good, will be best promoted by holding vessels liable to bear some part of the actual pecuniary loss sustained by the libelant, in a case like the present, where their fault is clear, provided the libelant's fault, though evident, is neither wilful nor gross nor inexcusable, and where the other circumstances present a strong case for his relief. * * * The mere fact of the negligence of the libelant as partly occasioning the injuries to him, when they also occurred partly through the negligence of the officers of the vessel, does not debar him entirely from a recovery." In the second, loss to the beneficiary, which would include loss to the named person by way of contribution, support, including elements which may not be approximated in money, such as love and affection, aside from the financial loss; third, to the estate, where it is made as nearly as may be to the financial returns which could reasonably be expected, what investments or savings have been effected during the lifetime, the reasonable expectancy or certainty of continued savings, and, giving consideration to his age, health, habits, disposition, and capacity to labor and to save, what would he likely have provided for an estate had he lived the life expectancy. See Holmes v. O. & C. Ry. Co., supra; Kelley v. Cent. R. R. of Iowa (C. C.) 48 F. 663; In re California Nav. & Imp. Co. (D. C.) 110 F. 670.

The right of action, being statutory, can continue only during the life of the cause of action. The life of the right to sue is "two years after the death." The statute creates a new legal right and liability, and fixes the time within which it must be asserted. The condition to assert it is attached to the right, and, as stated by Chief Justice Waite in The Harrisburg, 119 U. S. 199, at page 214, 7 S. Ct. 140, 147, 30 L. Ed. 358: "* * * It would seem to be clear that, if the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence. * * * Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right."

In Western Fuel Co. v. Garcia, 257 U. S. 233, 42 S. Ct. 89, 66 L. Ed. 210, the Supreme Court said that a state statute prescribing one year as the period within which a statutory action for death because of wrongful act or negligence shall be brought governs the libel in personam brought in the admiralty courts for the damages sustained by those to whom such right of action is given for a death upon the navigable waters of such state caused by maritime tort committed on such waters. See, also, International Navigation Co. v. Lindstrom (C. C. A.) 123 F. 475, 476; Swanson v. Atlantic, Gulf & Pacific Coast (D. C.) 156 F. 977; Kavanagh v. Folsom (C. C.) 181 F. 401; Williams v. Quebec, etc. (D. C.) 126 F. 591; Denver & Rio Grande R. R. Co. v. United States (C. C. A.) 241 F. 614; Borovitz v. American Hard Rubber Co. (D. C.) 287 F....