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May 29, 1951


The opinion of the court was delivered by: KAUFMAN

The Court has before it exceptions to the report of the 'Senior-Henderson Proctors Committee' (hereafter the Committee) in the limitation proceedings herein. These proceedings arose out of the collision between the tanker J. H. Senior and the liberty ship J. Inckney Henderson on August 18, 1943 as a result of which 98 crew members lost their lives and 5 suffered personal injuries. In March 1950 a settlement of the claims was agreed upon to the effect that each of the petitioners, the owners of the vessels, would pay $ 325,000 into a fund as complete payment for its respective possible liability, and by stipulation embodied in an order of this district court the Committee was appointed 'to determine the validity and amount of each claim for loss of life, personal injuries and for loss of personal effects which the respective 'Death and Personal Injury Claimants may have against the petitioners; to compute the pro rata share, based on such amounts, of each such Claimant in the Fund'; to report the same to the Court. * * *'

The Committee has filed its report recommending the dividing of the $ 650,000 fund among the claimants. The exceptions can be divided into two groups- (1) a group of 5 claimants who object to the recommendation by the Committee that there be deducted from the pro rata share of these claimants in the settlement fund certain payments made to these claimants, and (2) a group of 3 claimants, two of whom received zero awards, who allege that their awards are insufficient. The other claimants who filed exceptions have indicated to the Court that they intend to waive their exceptions. The second group designated above will be considered at the outset.

 The claimants who were granted zero awards are Lillian Elgin Wright, Administratrix of the estate of James Elgin, and the Administrator of the estate of Knud Moller on behalf of the brothers and sisters of that decedent. Proctor for claimant Wright objects to the use of the Death on the High Seas Act, 46 U.S.C.A. § 761-768, as a guide in determining the validity and value of the claims because he alleges that there is no question of fault here which must be proved under that Act. The question of fault is not in this case because of the settlement agreement. The Committee had to have some guide to determine who can maintain a claim and what the value of the claim should be, and their use of the Death on the High Seas Act as indicated to the Court was proper, since collaterals are given the right to bring suit and the broadest recovery for their pecuniary loss under that Act. If suit had been brought, it would most likely have been brought under that Act; or if so desired under the narrower (in respect to allowable claimants) Jones Act, 46 U.S.C.A. § 688.

 An examination of the files of these claimants and of other collaterals shows that the Committee did consider sisters and brothers as valid claimants in their evaluations even absent a showing of 'dependency', which is in accordance with the more liberal decisions under the Death on The High Seas Act. The test applied by the Committee was loss of pecuniary benefits reasonably to be expected had the deceased lived. This rule is not limited to the Death on the High Seas Act but is the general rule governing recovery in any death case. 'Reasonable expectation' however does not mean mere possibility of benefits. The Committee required that the claimant show contribution from the decedents or at least a promise that contribution would be forthcoming before granting an award.

 The claim of the estate of Knud Moller admits that there is no proof of actual support, and there is no evidence of pecuniary loss of any kind to the brothers and sisters of the decedent. Cf. The Libby Maine, 1943, 1945 A.M.C. 243. In regard to Lillian Wright's claim, there is also lacking any evidence of support or contribution sufficient to justify an award or evidence of any expectation of contribution other than mere hope. The proctors for claimant Wright refer to the award of $ 6000 to one Rosa K. Neathery, an aunt of one of the decedents, to show by comparison that an award should also be made to Lillian Wright. However the file on the Neathery claim indicates that the decedent had made a regular allotment of $ 37 a month to Mrs. Neathery, that she stood in loco parentis to him at the time; that prior to his enlistment in the Navy in 1943 he had contributed at least $ 10 a week to her and that she was unemployed and actually dependent on the decedent at the time of his death. These facts justify the award to Mrs. Neathery and distinguish it from the Wright claim.

 It is apparent that the zero claimants have failed to establish by satisfactory proof loss of pecuniary benefits or expectation of such benefits, and therefore the exceptions of these claimants are overruled and the report of the Committee confirmed as to the awards to these claimants.

 The claimant Louis Pierre excepts to the award to him as being insufficient. He is the father of the decedent Silvester Pierre and was 62 years of age at the time of his son's death. He alleges that his son contributed approximately $ 1000 to him annually and that his loss of pecuniary benefits is $ 9,950. The Committee allowed Louis Pierre an award of $ 5,000. In his affidavit, Louis Pierre apparently has inflated the amount of contribution from his son, in view of the son's meager earnings, and his claims as to support are for the most part unsubstantiated. The decedent's base pay aboard the Henderson was only $ 70 a month. The father's allegation of a $ 50 a month allotment is supported only by a seaman's allotment note from a prior voyage in 1942 on the S.S. Joel Chandler Harris, and there is no record of an allotment while aboard the S.S. J. Pinckney Henderson and no proof as to such allotment was submitted. Further, in addition to the decedent, the claimant has several other adult children who might reasonably be expected to contribute to his support.

 The Committee states in the report that valuations were based in part by a comparison between each case and similar cases. Upon examining such other cases and in view of the flimsy proof offered by the claimant, the Court finds that the award to Louis Pierre was eminently fair. The exceptions of the claimant Louis Pierre are overruled.

 Returning now to the first group of claimants who have excepted to the Committee's report-they are discussed at pages 6-7 of the report. These claimants received certain sums from the Panama Transport Company between November 1944 and April 1946. In return for these payments, which were substantial, each claimant signed a form (Exhibit B in the Committee's report) which could be interpreted either as a general release or a covenant not to sue Panama Transport Company, but reserving all rights against the S.S. J. Pinckney Henderson and its owner, The United States of America.

 The petitioners claim that the payments were voluntary payments by the Panama Transport Company under a 'Disability and Death Benefit Plan.' It appears that the payments were represented as such to the claimants. However, since the Panama Transport Company made these 'voluntary' payments only upon the individual claimant signing the aforementioned form, the Committee contends that the payments were made in settlement of liability.

 The company plan is explained in an affidavit submitted by Walter X. Conner, an attorney associated with the firm representing the Panama Transport Co., in which he states in part:

 'At the time of the collision involved in this suit Panama Transport Co. had a plan for offering accident and death growing out of industrial accidents. However, this plan was not applicable to the members of the crew of the J. H. Senior because they were all aliens. The above five decedents' survivors were Americans and the company decided to extend to these survivors the same benefits which would have accrued to the families if the deceased seamen had been in fact, American seamen.

 'The Plan contemplates a private form of workmen's compensation similar to that applicable to shore injuries in the various states. Indeed, the Plan employs as a yardstick the New Jersey Compensation Act. * * *

 'Under the Plan sums calculated under the New Jersey Compensation Act are offered to the survivor in full settlement of any claim, and the survivor has the choice of accepting them or rejecting them. In the event that the amount is acceptable, the survivor agrees to execute and ...

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