Appeal from the District Court of the United States for the Eastern District of New York.
Before MANTON, SWAN, and CHASE, Circuit Judges.
In a collision occurring June 19, 1931, 40 miles south of Castle Island, British West Indies, the schooner Arawak was sunk by appellant's vessel Robert Luckenbach, causing the death of appellee's intestates Gerald Wilson, a seaman, Constance Lockhart, the master's sister, and Ethel Lockhart, wife of the schooner's mate. The three who lost their lives were British subjects and were domiciled at Ragged Island, B.W.I.
The Robert Luckenbach picked up the survivors and brought them to Philadelphia, Pa. Appellee, an attorney connected with the British Consul General in Philadelphia, was appointed, in Pennsylvania, administrator of the estate of the three persons thus drowned, and later ancillary letters were issued to him in New York.
Gerald Wilson was the illegitimate son of Frances Wilson. He left surviving his mother, a wife, and five children, the youngest born posthumously. The eldest child was born six months before his parents were married. Constance Lockhart was the illegitimate daughter of Charlotte Moxey who survived her. Ethel Lockhart left a husband and an illegitimate son by another.
The questions presented are (a) Can an illegitimate child recover damages for the death of its mother, and is the mother of such a child entitled to recover damages for its death under sections 1 and 4 of the Federal Death Act? and (b) Is Gerald Wilson's oldest child entitled to an award of damages? 46 USCA §§ 761, 764.
The statute is applicable to deaths due to collision occurring on the high seas. The Buenos Aires, 5 F.2d 425 (C.C.A. 2). See, also, The Scotland, 105 U.S. 24, 26 L. Ed. 1001; The Belgenland, 114 U.S. 355, 5 S. Ct. 860, 29 L. Ed. 152.
Sections 1 and 4 of the Federal Death Act, upon which this action rests, provide:
Section 1. "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 of 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."
Section 4. "Whenever a right of action is granted by the law of any foreign State on account of death by wrongful act, neglect, or default occurring upon the high seas, such right may be maintained in an appropriate action in admiralty in the courts of the United States without abatement in respect to the amount for which recovery is authorized, any statute of the United States to the contrary notwithstanding."
Below the commissioner deemed the law of Ragged Island controlling; and, in the absence of proof of the law of that jurisdiction, the persons to be benefited might look to the law of Pennsylvania, which undertook to afford the remedy to the claimants, and, although the administrator sued in New York, he held that the New York law was not applicable. The court below held that the appellant could recover under the law of New York, the lex fori; there being no proof of the law of any foreign country.
The next of kin of the person meeting an accidental death by wrongful act recovers, not by right of succession, but by statutory provision. Michigan Central Ry. v. Vreeland, 227 U.S. 59, 33 S. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; Stewart v. B. & O.R.R., 168 U.S. 445, 18 S. Ct. 105, 42 L. Ed. 537. Spokane & Inland Empire R.R. v. Whitley, 237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060, L.R.A. 1916F, 736, dealt with a full faith and credit question regarding recovery for death under a statute of Idaho. The deceased was a resident of Tennessee, and the action for his death was controlled by the Idaho death statute (Rev. Codes, § 4100). His wife was appointed administratrix in Tennessee, and his mother brought suit for his death in Idaho. They were both heirs of the deceased under the Idaho law. The mother petitioned the probate court of Tennessee for one-half of the amount which was to be paid to the administratrix under a settlement reached with the railway company, but the petition was refused. The wife brought suit in the state of Washington; the Supreme Court of Idaho having in the meantime rendered a judgment in the mother's favor. 23 Idaho, 642, 132 P. 121. The court held that the laws of Idaho and not of Tennessee governed as to who should recover as the death occurred in Idaho. If the laws of Tennessee where the decedent was domiciled were inapplicable in this case, it would seem to follow that the laws of the Bahamas where the decedents were domiciled were likewise inapplicable.
The District Judge held that the words of the statute "dependent relative" included an illegitimate child or its mother, and said it was unnecessary to decide whether an illegitimate child and its mother were child and parent, respectively, within the act. The act does not define "relative" as there used. Under the principle of Seaboard Air Line v. Kenney, 240 U.S. 489, 36 S. Ct. 458, 460, 60 L. Ed. 762, who were the "next of kin" as used in the Federal Employers' Liability Act (45 USCA § 51 et seq.) must be determined "by the legislation of the various states to whose authority that subject is normally committed." In the Kenney Case, the intestate, a switchman, was killed in North Carolina, on an interstate freight train, and the suit was brought for his next of kin who were three minor children of the mother of the deceased; she having died before the accident. He was an illegitimate child. The state statute (Revisal 1905, § 137) provided that illegitimate children born of the same mother should be considered legitimate as between themselves, and, in the case of the ...