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October 14, 1933


The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This case comes before the court on a motion to confirm the report of the special commissioner to whom it had been referred "to ascertain and compute the amounts due to the libellant herein and report thereon with all convenient speed."

The special commissioner properly reports the facts as follows:

 "The suit was brought by G. Plantou Middleton, as administrator of the estates of Gerald Wilson, Constance Lockhart, and Ethel Lockhart, deceased, to recover damages for those entitled thereto arising from the death by drowning of said decedents, caused by a collision on June 19, 1931, between the British schooner Arawak, aboard which the decedents were, and the American steamer Robert Luckenbach. The collision occurred about 40 miles south of Castle Island, British West Indies, on the high seas, beyond a marine league from the shore of any land over which the United States has jurisdiction. The decedents were subjects of Great Britain, domiciled in Ragged Island, Bahamas, a British colony. The master and surviving members of the Arawak were picked up by the Robert Luckenbach and brought to Philadelphia, Pa., where they were cared for by the British Consul General in Philadelphia, who instructed the law firm of Rawle & Henderson of Philadelphia to protect the interests of the families of the deceased persons to the fullest possible extent. On June 30, 1931, upon the petition of G. Plantou Middleton, attorney for said British Consul General, the petitioner was appointed administrator of the estates of said deceased persons by order of William F. Campbell, register for the probate of wills and granting letters of administration in and for the county of Philadelphia, in the commonwealth of Pennsylvania; and on August 17, 1931, he was appointed ancillary administrator by the Surrogate's Court of New York County, N.Y., with authority limited to the prosecution of this suit.

 "At the outset it was the intention of the Philadelphia proctors for the administrator to bring this suit in the United States District Court for the Eastern District of Pennsylvania, but at the request of the general admiralty counsel for the Luckenbach Steamship Company, Inc., in New York, suit was brought in this court as a matter of convenience for the respondent."

 Libelant seeks to recover under the Act of Congress of March 30, 1920 (41 Stat. 537, 46 USCA c. 21 § 761 et seq.), entitled "Death on the High Seas by Wrongful Act."

 The first two sections of the act (46 USCA §§ 761 and 762, provide as follows:

 "§ 761. Right of action; where and by whom brought. Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.

 "§ 762. Amount and apportionment of recovery. The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss they may severally have suffered by reason of the death of the person by whose representative the suit is brought."

 The special commissioner filed an able and exhaustive report herein, and I am in accord with the result at which he arrived with reference to those for whose benefit he found that the suit might be maintained, and it seems to me to be unnecessary to do more than point out wherein I am not in entire accord with the reasoning of that report.

 The special commissioner describes the beneficiaries as follows:

 "The alleged beneficiaries of the decedent Gerald Wilson are his mother, Frances Wilson, of whom he was an illegitimate son; his widow, Ida Lillian Wilson, to whom he was lawfully married; and five children, Walter, Gerald, Frances, Hortense and Geraldine, the eldest, Walter, being the issue of himself and his wife born before their marriage, and the youngest, Geraldine, being a posthumous child.

 "The alleged sole beneficiary of the decedent Constance Lockhart is her mother, Charlotte E. Moxey, of whom she was an illegitimate daughter.

 "The alleged beneficiaries of the decedent Ethel Lockhart are her widower, Anton Lockhart, and an illegitimate ...

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