THE PRINCESS SOPHIA

• Decision Date: 19 December 1929
• Docket Number: No. 4553.,4553.
• Citation: 36 F.2d 591
• Parties: THE PRINCESS SOPHIA. Petition of CANADIAN PAC. RY. CO.
• Court: U.S. District Court — Western District of Washington

36 F.2d 591 (1929)

THE PRINCESS SOPHIA.

Petition of CANADIAN PAC. RY. CO.

No. 4553.

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

December 19, 1929.

Bogle, Bogle & Gates, of Seattle, Wash., for petitioner.

Wm. Martin and Grosscup, Morrow & Wallace, all of Seattle, Wash., for claimants.

NETERER, District Judge.

The claimants petition a rehearing on the ground that the court erred in limiting its jurisdiction in this proceeding, and in that objection could be made to foreign administrator on the hearing and without plea in abatement, and that an answer to the merits on the general issue did not waive the disability to sue, and also that it was error to hold that on failure to file a claim for two years, liability ceased, and also in its conclusion upon the facts and in the assessment of damages; also, petition that local administrators be substituted as plaintiffs for foreign administrators; that the court erred in not allowing interest from date of death.

The claims filed are all in legal effect the same. They allege: That claimant in response to a monition and citation issued for the presentation of claims, does now, as a basis for damages against the Canadian Pacific Railway Company and the steamship Princess Sophia, allege that claimant ____ is a duly appointed and qualified and acting administrator of the estate of the above-named decedent; corporate relation of the railway company; operation of the steamship, a common carrier of passengers for hire; that deceased purchased a ticket and was a regular passenger on the steamship on the fatal day; gives the leaving time of the steamship at port in Alaska, and the date and time when it sank in the waters of Lynn Canal, and the death of the deceased; and on information and belief it is alleged that the sinking of the steamship and the death of the deceased was caused through the negligence and carelessness of the petitioner, etc. Then follows that loss of life of the deceased occurred within the territory and waters of Alaska "and the rights of this claimant are therefore covered by the laws of said territory"; that at the time of the wreck of the Princess Sophia, "Sec. 1185, Chapter 37, of the Code of Civil Procedure, Compiled Laws of Alaska, * * * was a valid law * * * of Alaska." A copy of section 1185 is set out. And it then alleges age of the deceased, condition of health, life expectancy, occupation, annual earnings, and prays for judgment in the sum of $10,000.

Answer was filed denying on information and belief some of the allegations, denying others, admitting the sinking of the ship, etc.

Upon the taking of testimony before the Commissioner, when evidence of the appointment of a foreign administrator was offered, objection was duly made as to his right to sue, improper party, etc. This objection has been urged throughout the entire proceeding.

It is contended at bar that the foreign administrator had a right to sue as the personal representative of deceased, and, in any event, the local administrators have a right to be substituted.

It is also contended that filing the petition for limitation and issuance of monition brought all parties into court, and issuance of injunction extended all rights and remedies to the end of the litigation.

Surrendering the ship and pending freight pursuant to sections 4283-4285, Rev. St. (46 USCA §§ 183-185), and issuing a monition gave the court jurisdiction of the property or fund, but not of the claimants. The limitation is fixed by the statute. The ship, etc., or fund, is held by the court until the rights of the parties who appear and make claim are determined. The limitation statute opens the way where claimants and owner may be brought into concourse (Hartford Acc. & Ind. Co. v. Sou. Pac., 273 U. S. 207, 47 S. Ct. 357, 71 L. Ed. 612), but the court has not jurisdiction of the claimant until he appears and presents his claim. Equity in admiralty may not be administered until claimant appears and states the facts substantially as in a libel showing prima facie right of recovery. In re Davidson S.S. Co. (D. C.) 133 F. 411. See, also, The Pere Marquette 18 (D. C.) 203 F. 127. Hartford Acc. & Ind. Co. v. Sou. Pac., supra, is not to the contrary. The injunction issued merely declared a statutory provision. All other jurisdictions were closed by the statute. "The very nature of the proceeding and the monition has the effect of a statutory injunction. Indeed, that is the express declaration of the statute." Metropolitan Redwood Lumber Co. v. Doe (The San Pedro) 223 U. S. 365, at page 372, 32 S. Ct. 275, 276, 56 L. Ed. 473, Ann. Cas. 1913D, 1221. The claimants could not proceed except in this court by presentation of their claims, but this court was open to them at all times. The limitation and the injunction are provided by the same act. The liability and the remedy are creatures of the same statute (Civil Code of Alaska, supra), and all became a part of and entered into the relation of all parties, and the failure to present the claim within the fixed period (two years) ended the liability. See The Harrisburg, 119 U. S. 199, 7 S. Ct. 140, 30 L. Ed. 358.

On a limited statutory right, liability ends at expiration of the fixed period, while a statute of limitation merely withdraws the remedy, but the right remains. Cases cited by the claimants upon the operation of the statute of limitations are not in point.

It is said that form and procedure is subordinated to substantial justice, administering which claimants pray. Form is said to be the order or method of the legal proceeding. Procedure may be said to be the rules which bring parties into court, and testimony to determine the right, and conclusion upon the evidence admitted. If the pleading is in substance sufficient, lack of form is not fatal, but if the pleading is in good form and barren of substance, it must fail. "`The difference between matter of form and matter of substance, in general, under the statute of Elizabeth, as laid down by Lord Hobak, is that that without which the right doth sufficiently appear to the court is form, but that any defect by reason whereof the right appears not, is a defect in substance.' * * * `If the matter pleaded be in itself insufficient, without reference to the manner of pleading it, the defect is substantial, but, if the only fault is in the form of alleging it, the defect is but formal.'" Quoted in Pierson v. Springfield Fire and Marine Ins. Co., 7 Houst. (Del.) 307, 31 A. 966, 968.

The objection to the foreign administrator could not be made by plea in abatement, as a foreign appointment was not shown in the claim presented, and when first disclosed, on the taking of testimony, objection was made. In Noonan v. Bradley, 76 U. S. (9 Wall.) 394, 400, 19 L. Ed. 757, Justice Field on the right of an administrator appointed in one state, suing in another where laws of the state do not permit it, said: "And upon this question the law is well settled. All the cases on the subject are in one way. * * * All hold that in the absence of such a statute no suit can be maintained by an administrator in his official capacity, except within the limits of the State from which he derives his authority. * * *" And in the same case the court held the objection can be made on a plea to the general issue where the foreign relation is not apparent on the face of the claim. See, also, Dixon's Executors v. Ramsey's Executors, 7 U. S. (3 Cranch) 319, 2 L. Ed. 453; L. & N. R. R. Co. v. Brantley, 96 Ky. 297, 28 S. W. 477, 49 Am. St. Rep. 291; McMicken v. United States, 97 U. S. 204, 24 L. Ed. 947.

The Circuit Court of Appeals, Second Circuit, in Globe & Rutgers Fire Ins. Co. v. Hines (C. C. A.) 273 F. 774, held that the court's jurisdiction depends upon the party to the record, not to the beneficial party. In Ward v. Petrie, 157 N. Y. 301, 51 N. E. 1002, at page 1005, 68 Am. St. Rep. 790, the court says: "The plaintiff claims that, as the defendants did not raise the question of his capacity to sue by demurrer or answer, * * * they thereby waived the right to claim that the receiver cannot maintain this action. There is a difference between capacity to sue, which is the right to come into court, and a cause of action, which is the right to relief in court. * * * The plaintiff was duly appointed receiver, and has a legal capacity to sue as such, and hence could bring the defendants into court by the service of a summons upon them, even if he had no cause of action against them. On the other hand, an infant has no capacity to sue, and hence could not lawfully cause the defendants to be brought into court, even if he had a good cause of action against them. Incapacity to sue is not the same as insufficiency of facts to sue upon. * * *"

Knappen, Circuit Judge, for the appellate court,...