United States v. The SS Washington, Civ. No. 780

• Decision Date: 16 January 1959
• Docket Number: 1218-1221.,954,Civ. No. 780,1203,953
• Citation: 172 F. Supp. 905
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, owner of THE U.S.S. RUCHAMKIN, Libellant, v. THE S.S. WASHINGTON, her engines, etc., Texas Company, etc., Respondent. TEXAS COMPANY, owner of The Tanker Washington, Libellant, v. UNITED STATES of America, owner of The U.S.S. Ruchamkin, Respondent. In the Matter of the Petition of TEXAS COMPANY, as owner of The Tanker Washington for exoneration from or limitation of liability. Parley BRIGHT, as Administrator of the Estate of Merton Bright, Deceased, Catherine Bode, as administratrix of the Estate of Ralph J. Bode, Deceased, Barbara Allred, as administratrix of the Estate of Kenneth V. Allred, Deceased, Margaret Fulwiler, as administratrix of the Estate of John T. Fulwiler, Deceased, Libellants, v. TEXAS COMPANY, Respondent.

172 F. Supp. 905

UNITED STATES of America, owner of THE U.S.S. RUCHAMKIN, Libellant, v. THE S.S. WASHINGTON, her engines, etc., Texas Company, etc., Respondent.

TEXAS COMPANY, owner of The Tanker Washington, Libellant, v. UNITED STATES of America, owner of The U.S.S. Ruchamkin, Respondent.

In the Matter of the Petition of TEXAS COMPANY, as owner of The Tanker Washington for exoneration from or limitation of liability.

Parley BRIGHT, as Administrator of the Estate of Merton Bright, Deceased, Catherine Bode, as administratrix of the Estate of Ralph J. Bode, Deceased, Barbara Allred, as administratrix of the Estate of Kenneth V. Allred, Deceased, Margaret Fulwiler, as administratrix of the Estate of John T. Fulwiler, Deceased, Libellants, v. TEXAS COMPANY, Respondent.

Civ. Nos. 780, 953, 954, 1203, 1218-1221.

United States District Court E. D. Virginia, Alexandria Division.

January 16, 1959.

Thomas F. McGovern, Thomas S. Schattenfield, Dept. of Justice, Washington, D. C., A. Andrew Giangreco, and Henry St. J. FitzGerald, Asst. U. S. Attys., Alexandria, Va., for the Government.

Joseph M. Brush (Pyne, Brush, Smith & Michelsen), New York City (George C. Garbesi, New York City, on brief), Francis N. Crenshaw (Baird, Crenshaw & Lanning), Norfolk, Va., for Texas Co., William P. Woolls, Alexandria, Va., Marvin Schwartz, New York City (Betty H. Olchin and Lawrence Drasin, New York City, on brief).

ALBERT V. BRYAN, District Judge.

The questions now before the court, on the remittitur holding The Texas Company also at fault, 4 Cir., 241 F.2d 819, are (a) the amount of damages to be awarded under the Death on the High Seas Act, 46 U.S.C.A. § 761, against Texas in the deaths of four of the soldiers killed aboard the U.S.S. Ruchamkin in her collision with Texas' tanker Washington; (b) whether remarriage of the soldier's widow could be considered in diminution of her pecuniary loss in his death; (c) whether his pain and suffering is an item of the damages; and (d) whether against the admitted right of The Texas Company to reimbursement from the Government for one-half of the death awards as collision damages, the United States may offset the sums paid and payable by the Government to the decedents' dependents as statutory death gratuities, indemnity and compensation.

Only The Texas Company can be looked to for damages, for the soldiers died in the performance of their duties and left no tort action against the United States. Feres v. United States, 1950, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152.

I. Answering the first question, fair and just compensation for the pecuniary losses of the persons for whose benefit the respective suits are brought, as well as a reasonable amount for pain and suffering where appropriate, together with an apportionment of the sums, are now found in these amounts:

                     1. (a) For the death of Ralph J. Bode               $7500.00
                        (b) For his conscious pain and suffering          1500.00
                                                                         ________
                                                                         $9000.00
                

The sum of $7,500 is for his mother and only dependent, Catherine Bode; $1,500 shall be distributed by the personal representative as the appointing court shall direct.

                    2. (a) For the death of John T. Fulwiler           $35,000.00
                       (b) No claim is made for pain and suffering           0.00
                                                                       __________
                                                                       $35,000.00
                

This sum goes to his widow, now Patricia Anne Mencke, for the benefit of both herself and decedent's mother, Margaret Fulwiler, his only dependents, the two having stipulated for a joint payment to them with their own apportionment.

                    3. (a) For the death of Merton A. Bright           $30,000.00
                       (b) For his conscious pain and suffering          3,000.00
                                                                       __________
                                                                       $33,000.00
                

The death award is divided: $10,000 to the decedent's mother, Edna E. Bright and $20,000 to his widow, now Rose Bright Helt. Let the remaining sum be disbursed under the direction of the administrator's court.

                   4. (a) For the death of Kenneth V. Allred         $35,000.00
                      (b) No claim is made for pain and suffering          0.00
                                                                     __________
                                                                     $35,000.00
                

Of this amount $15,000 is allotted to his widow, now Barbara D. Carouthers, and $20,000 to their six-year old son, Danny Kenneth Allred. Michigan Cent. R. Co. v. Vreeland, 1913, 227 U.S. 59, 71, 33 S.Ct. 192, 57 L.Ed. 417; Middleton v. Luckenbach S.S. Co., 2 Cir., 1934, 70 F.2d 326, 330, certiorari denied 293 U.S. 577, 55 S.Ct. 89, 79 L.Ed. 674.

II. Remarriage has not been counted in reckoning up the widow's pecuniary loss. Pro'd and con'd on the score of realism and unrealism, the question is not readily decidable. We follow the majority rule. Seaboard Air Line R. Co. v. Connor, 4 Cir., 261 F.2d 656, note 1; The City of Rome, D.C.S.D.N.Y.1930, 48 F.2d 333; Johns v. Baltimore & O. R. Co., D.C.W.D.Pa.1956, 143 F.Supp. 15, 28, affirmed 3 Cir., 239 F.2d 385. Perhaps unimaginative, but this position at least has statutory, ad verbum certainty.

III. Between their injury and death, soldiers Bode and Bright languished in pain, the former from November 14th to the 16th, his companion until the 23rd. The libels for them count both in personal injuries and in death. At trial the fatality claims were premised upon the Death on the High Seas Act, 46 U.S.C.A. § 761 ff. Primarily the injury claim was too, and secondarily upon general maritime law. Concededly, the action for death is secured in the Act; but it gives no footing to support a case for pain and suffering. Michigan Cent. R. Co. v. Vreeland, supra, 1913, 227 U.S. 59, 71, 33 S.Ct. 192, 57 L.Ed. 417. Its compensation is limited ex vi termini to prospective and material loss for the relief of others than the decedent—to reimbursement for the post-death, "pecuniary" deprivation of his dependents. Decker v. Moore-McCormack Lines, D.C. Mass.1950, 91 F.Supp. 560; Noble v. Moore-McCormack, D.C.Mass.1951, 96 F. Supp. 369, 372. Contra: without discussion Tetterton v. Arctic Tankers, Inc., D.C.E.D.Pa.1953, 116 F.Supp. 429, 432, merely mentions pain and suffering, inter alia, as damages. Of course, as the decedents here were not seamen, or members of the tanker's crew, resort cannot be had to the Jones Act, 46 U.S. C.A. § 688.

Before his death, however, these two soldiers each had a right of action for his injuries, as a tort, by virtue of the general maritime law. Admittedly this action did not survive in admiralty, but it is saved by State law. As The Texas Company is a Delaware corporation and the catastrophe occurred beyond the territorial waters of a State, in the Atlantic some fifty miles off the Virginia shore, the survival statute of Delaware, 1935 Code, sec. 4637, as amended, may be called in to rescue the action. The Hamilton, 1907, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; Just v. Chambers, 1941, 312 U.S. 383, 388, 668, 61 S.Ct. 687, 85 L.Ed. 903; Holland v. Steag, Inc., D.C.Mass.1956, 143 F.Supp. 203, 206; Kernan v. American Dredging Co., 1958, 355 U.S. 426, 430, note 4, 78 S.Ct. 394, 2 L.Ed.2d 382.

Preemption does not bar the operation of the State law. No Act of Congress touches a non-seaman's personal injury suit arising in the oceans beyond a State's jurisdiction. Nor can an opposite implication be found in the Death on the High Seas Act. Its provision of availability when death intervenes during the pendency of a personal injury action, does not deny, but rather avows, the legitimacy of a cause of action for personal tort at sea.

Judgments will go for the decedents' estates against The Texas Company for the amounts stated. They are not to be diminished by any sums due the soldiers' dependents by the Government, whether by way of insurance, pension, gratuities or compensation. Erie Railroad Co. v. Erie & Western Transportation Co., 1907, 204 U.S. 220, 226, 27 S.Ct. 246, 51 L.Ed. 450; The Hamilton, supra, 207 U.S. 398, 406, 28 S.Ct. 133, 52 L.Ed. 264. The opposed suggestion of The Texas Company was prompted, seemingly, by contingent precaution—to protect itself against the possibility, in the contribution adjustment, of the allowance of a credit to the United States for these veteran benefits.

IV. But the court now holds that the Texas Company should be granted judgment against the United States for one-half of the present awards, as a part of Texas' collision damages, without deduction for the veteran benefits. The North Star, 1882, 106 U.S. 17, 20-22, 1 S.Ct. 41, 27 L.Ed. 91; The Chattahoochee, 1899, 173 U.S. 540, 551-555, 19 S.Ct. 491, 43 L.Ed. 801; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 1952, 342 U.S. 282, 284, 72 S.Ct. 277, 96 L.Ed. 318.

The pleadings, the United States faintly intimating aliter, now fully posit Texas' claim for contribution. Thus, in Nos. 953 and 954 wherein The Texas Company is the libelant and the United States the respondent (both involving the same matter and respectively filed, in May and July 1953 in the Southern District of New York and transferred to this court) the damages pleaded include claims for "loss of lives of several...