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DUNN v. WHEELER SHIPBUILDING CORP.

October 21, 1949

DUNN et al.
v.
WHEELER SHIPBUILDING CORPORATION et al. JACKMAN et al. v. WHEELER SHIPBUILDING CORPORATION et al.



The opinion of the court was delivered by: BYERS

Hearing on exceptions to libels in two personam causes; the pleadings are in the same form and the exceptions can be disposed of in one opinion.

The causes are under the Death on the High Seas Act, 46 U.S.C.A. 761, and are based upon the assertion that several members of the crew of the trawler BELLE were lost at sea on January 9, 1947, when she capsized and sank.

 It is alleged that the disaster was due to the fact that the trawler was lacking in sufficient stability to navigate and operate on the high seas in her calling, because of faulty design; that she was built, constructed and sold for use as a trawler upon the high seas, by Wheeler Shipbuilding Corporation, which was part of its corporate purpose. That the trawler was so built 'for the purpose of a sale to any person * * * who might buy the same and with the intent and purpose of having the same operated and navigated upon navigable waters on the high seas by any person * * * into whose possession it might come, no matter through how many intermediate dealers or owners it might pass'.

 The quoted language and later allegations are adapted from the complaint in MacPherson v. Buick Motor Car Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas. 1916C, 440, said to be available under appropriate circumstances in the admiralty. Sieracki v. Seas Shipping Co., et al., 3 Cir., 149 F.2d 98, at page 99, affirmed 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099.

 That Wheeler failed to use due care in 'manufacturing and constructing' the trawler, and failed to use due care in its construction so as to make it stable and seaworthy, etc., but 'manufactured', constructed and delivered it in such condition that it was unstable and unseaworthy, unfit and unsafe to operate as intended; and sold and delivered it knowing its intended use.

 That the trawler, when used as intended, was liable to become a source of damage to persons using it, 'if not carefully and properly constructed'.

 That when the BELLE sank on January 9, 1947, the several intestates for whom libellants were appointed, were members of her crew and lost their lives as stated, and that the cause lies under the said statute.

 A second cause is pleaded against Colley & Maiser, Inc., described as marine architects who designed and prepared the plans and specifications for the building and construction of the BELLE.

 That they were negligent and careless in preparing and designing the plans and specifications, so that when the vessel was constructed in accordance therewith, she was unstable, unseaworthy and unable safely to navigate on the high seas; by reason of which the trawler 'capsized on January 9th, 1947, with the loss of her entire crew and the libellants were damaged' etc.

 Seemingly the naval architects do not appear in behalf of these exceptions.

 Reliance is had by the Wheeler Corporation and its bankruptcy trustee upon the failure 'to allege that said respondents were guilty of any wrongful act, neglect or default on their part within two years prior to the beginning of said action as provided for in said statute (46 U.S.C.A. § 763) and upon the further ground that the libel does not state any date within two years next prior to the institution of this proceeding when the said respondents committed any wrongful act' etc.

 The libel in the first cause was filed on Friday, January 7, 1949, two days prior to the expiration of the two year statutory period, namely, January 9, 1949.

 The second was filed on Monday, January 10, 1949, or one day later, which means that the 9th was a Sunday. Both libels were filed by the same proctor.

 The cited section of the statute reads: 'Suit shall be begun within two years from the date of such wrongful act, neglect, or default, unless during that period there has not been reasonable opportunity for securing jurisdiction of the vessel, person, or corporation sought to be charged; but after the expiration of such period of two years the right of action hereby given shall not be deemed ...


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