United States Shipping Board Emergency F. Corp. v. Greenwald

• Decision Date: 10 January 1927
• Docket Number: No. 158.,158.
• Citation: 16 F.2d 948
• Parties: UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION et al. v. GREENWALD.
• Court: U.S. Court of Appeals — Second Circuit

16 F.2d 948 (1927)

UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION et al. v. GREENWALD.

No. 158.

Circuit Court of Appeals, Second Circuit.

January 10, 1927.

Emory R. Buckner, U. S. Atty., and Irving L. Evans, both of New York City (Joseph M. Dreyer, of New York City, of counsel), for plaintiffs in error.

Silas B. Axtell, of New York City (Charles A. Ellis, of New York City, of counsel), for defendant in error.

Before MANTON and HAND, Circuit Judges, and CAMPBELL, District Judge.

MANTON, Circuit Judge.

The intestate was a seaman on board the steamship Ogontz, and died at Accra, Gold Coast, Africa, a dependency of the United Kingdom of Great Britain, on the 12th of February, 1919. The allegations of the complaint and the proof tended to show that, while so on board the vessel on the high seas, he became ill from food supplied to him for sustenance; the claim being that the food was "bad, decayed, and rotten." The vessel was owned by the United States Shipping Board Emergency Fleet Corporation, and it was managed and operated by A. H. Bull & Co. The contract showing the relations between the Shipping Board and Bull & Co. named the latter as operator and provides that the Shipping Board shall equip and supply the vessel and pay for all the provisions, and wages and provide other necessary stores. The operator is also referred to as the manager, and it is obliged to exercise due care and diligence in the management of the vessel. The court below submitted the issue of fact, as to neglect in furnishing food, to the jury and held that the right of action for loss of life depended upon the statute of the District of Columbia for the reason that the vessel was under the registry of the corporation organized in and a resident of that district.

The illness of the deceased, as stated in the hospital certificate, was enteritis. There is evidence in the record sufficient to show that food poisoning would cause enteritis, and there was sufficient to require the trial judge to submit the question of the wholesomeness and quality of the food to the jury for their consideration. A contractual duty as well as the natural duty required the shipowner and operator to supply wholesome food to seamen. Billings v. Bausback (C. C. A.) 200 F. 523; United States v. Reed (C. C.) 86 F. 308. It is a criminal offense for an officer or master of a vessel to withhold from seamen suitable food and nourishment. Section 291 of the United States Criminal Code (Comp. Stat. § 10464). This neglect if it exists, is directly chargeable to the agents of the owner as well as the owner, and negligence with respect thereto makes the ship and owner liable for consequent damages. The Iroquois, 194 U. S. 242, 24 S. Ct. 640, 48 L. Ed. 955; The Osceola, 189 U. S. 158, 23 S. Ct. 483, 47 L. Ed. 760; The A. Heaton (C. C.) 43 F. 592.

But it is argued that error was committed below in permitting the defendant in error to amend her complaint and set forth allegations of negligence and failure to furnish the deceased with proper and good food during the voyage. The original complaint alleged the failure to obtain proper medical care and attention after the deceased became sick, and that his illness was greatly aggravated by reason of the negligence of the master and seamen, and "that said illness and death of the deceased were not caused by any negligence or want of care on his part, but wholly and solely by reason of the negligence of the defendants, the master and seamen in their service having command." The amended complaint alleged that the illness and death of the deceased was not caused by any negligence or want of care on his part, but "by reason of the negligence of the defendants, the master and seamen in service having command, particularly in failing to furnish plaintiff with proper and good food during the voyage, and by furnishing bad, improper, decayed, and rotten food, which the plaintiff's intestate was forced to eat or starve."

It is claimed that this amendment sets forth a new and different cause of action than that alleged in the original complaint and that such action is barred by the statute of limitations. The majority of this court are of the opinion that the allegations of the amended complaint are but an amplification of the allegations of the original complaint and do not set forth a new cause of action. Seaboard Air Line v. Koennecke, 239 U. S. 352, 36 S. Ct. 126, 60 L. Ed. 324; N. Y. C. & H. R. R. Co. v. Kinney, 260 U. S. 340, 43 S. Ct. 122, 67 L. Ed. 294; Missouri K. & T. R. Co. v. Wulf, 226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134. Where a defendant had notice from the beginning that the plaintiff sets forth and is trying to enforce a claim against it because of conduct resulting in the illness and death of her intestate, the reasons for the statute of limitations do not exist, and the amplified pleading does not change the cause of action, although the original pleading may have been very general. The allegations of the amended complaint relate back to the inception of the action, and if that be served and filed within the limitation period of the statute, it is sufficient. But there was no objection or exception to the admission of testimony throughout the trial as to the improper food served, and the plaintiffs in error may not now be heard to complain.

The amended pleading set forth a cause of action for loss of life under Lord Campbell's Act, the New York Decedent Estate Law (Consol. Laws, c. 13), the death statute of Pennsylvania, and the death statute of the District of Columbia. The trial judge submitted the case to the jury under the statute of the District of Columbia. He held that the flag of the ship was the lex loci delicti, and further that both defendants were the owners pro hac vice.

The argument of the plaintiffs in error is that the deceased, having died at the Gold Coast, Africa, the right of action for loss of his life is dependent upon the right of recovery of the law of that land. But this merchant ship on the high seas is of the country of the flag she flies, and the law of the flag applies to the right of action which arose on the high...