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April 6, 1959

Petition of GULF OIL CORPORATION for Limitation Of or Exoneration From Liability as Owner of THE Tank Vessel GULFSTREAM

The opinion of the court was delivered by: PALMIERI

On June 29, 1949, Gulf Oil Corporation filed a petition seeking exoneration from, or limitation of, liability for damages arising out of a collision between its vessel, the Gulfstream, and a United States Coast Guard icebreaker, the Eastwind. The collision, which caused the Eastwind to catch fire, occurred on January 19, 1949, about 45 miles off the coast of New Jersey. With an exception not material here, all claims were filed before November 18, 1949; and by May 2, 1957, all but four claims had been compromised and withdrawn.

On the latter date, and with the consent of the parties then actively interested in the limitation proceeding, the Court ordered, in pertinent part, that limitation of liability be granted, that three of the claimants recover their damages, and that their claims be referred to a commissioner for computation of damages and a report thereon. The fourth claim, that of the United States as owner of the Cutter Eastwind, was disposed of on consent, in the same order.

One of the three claims referred to the Commissioner was compromised and withdrawn after the reference. The Commissioner has filed his Report on the remaining two claims, and the matter is now before me for decision on exceptions to the Report made by each of the claimants *fn1" and by the petitioner.

 Albert P. Williams

 The Commissioner assessed damages arising out of the death of Albert P. Williams, a member of the crew of the Cutter Eastwind, in the following sums: (1) To Williams' Estate: $ 8,000 for the pain and suffering in which Williams languished from the date of his injury, January 19, 1949, until his death on January 27, 1949. (2) To Williams' personal representative, *fn2" for distribution to his mother *fn3" for her pecuniary loss, $ 10,000, and for distribution to his father for his pecuniary loss, $ 2,500.

 The Award for Pain and Suffering

 Petitioner has excepted to the award for pain and suffering on the ground that it is erroneous as a matter of law. Petitioner argues that the Death on the High Seas Act *fn4" provides the exclusive measure of damages and that an action for pain and suffering may not be maintained under that Act. Petitioner further argues that, if the Act is not exclusive, no award for pain and suffering may be made, for the general maritime law does not provide for the survival of such an action beyond the death of the injured person.

 The federal admiralty courts draw upon three sources for the rules of law to be applied in cases brought before them: *fn5" the 'international law merchant which was impartially administered by the several maritime nations of the world;' *fn6" Congressional enactments; *fn7" and State law. *fn8" Regardless of the source of a particular rule of law, it is federal law in the sense that 'it derives its whole and only power in this country from its having been accepted and adopted by the United States.' *fn9" The federal government's competence in this area, however, does not preclude resort to State law, for 'the maritime law was not a complete and perfect system * * * In all maritime countries there is a considerable body of municipal law that underlies the maritime law as the basis of its administration.' *fn10"

 Recovery for the pain and suffering in which Williams languished before his death may not be had under the Death on the High Seas Act, for recovery under that Act is limited to 'pecuniary loss sustained by the persons for whose benefit the suit is brought.' *fn11" And while petitioner concedes that the maritime law, as applied by the maritime nations, and adopted in THe unitEd states, would graNt williams recovery for his pain and suffering, *fn12" that law does not recognize the survival of the action for the benefit of his estate. *fn13"

 The Commissioner concluded, however, that the admiralty courts would adopt the law of the state of petitioner's incorporation, *fn14" Pennsylvania, *fn15" to permit the action to survive. Such adoption is not unusual. 'State remedies for wrongful death and state statutes providing for the survival of actions, both historically absent from the relief offered by the admiralty, have been upheld when applied to maritime causes of action. Federal courts have enforced these statutes.' *fn16"

 It has been held that a claim for unseaworthiness will survive a seaman's death, if there is a pertinent state statute to effect the survival; *fn17" and approval for this position has been indicated by the Supreme Court. *fn18" I can perceive of no meaningful distinction, so far as survival is concerned, between an action for unseaworthiness, and one for negligence. *fn19" Nor can I perceive of any reason why the beneficent purposes of the survival statutes, which are in force in almost half the states, *fn20" should not be applied by the admiralty courts. These courts will, of course, consider the peculiar circumstances of the seafaring world in determining the law to be applied to it; *fn21" but I know of no reason which would suggest that the maritime tortfeasor's liability for pain and suffering should be ended by the injured person's death, while his landlocked counterpart's is not. *fn22"

 Finally, I cannot agree with petitioner's argument that the Death on the High Seas Act has preempted the field, and prevents the recovery allowed here. There are two types of liability which may be imposed upon a tortfeasor arising out of a death which his negligent act occasioned. One is for the loss suffered by those who depended upon the decedent for their support. The maritime law recognized no such liability; *fn23" but the federal admiralty courts recognized such a liability if it was imposed by a pertinent state statute. *fn24" It is that liability which has been unified by the Death on the High Seas Act, so that state statutes may no longer be applied, *fn25" for they would be destructive of the desired federal uniformity. *fn26" But there is a second liability, which is recognized by the maritime law, that is, for damages caused to the injured person himself. *fn27" The question here is whether this liability survives the death of the injured person prior to the institution of suit. On this question, the Death on the High Seas Act is silent, *fn28" and there is no basis for holding that this silence is to be interpreted as denying the survival. *fn29"

 Nor can I agree with petitioner's argument that the admiralty courts are without power to adopt the rule I am here following. Such action is traditionally taken by the admiralty courts, *fn30" and is in fulfillment of their power 'to continue the development of this law within constitutional limits.' *fn31" And while uniformity in this field, and Congressional action to accomplish it, would be desirable, *fn32" 'even Southern Pacific Co. v. Jensen (244 U.S. 205, 37 S. Ct. 524, 61 L. Ed. 1086), which fathered the 'uniformity' concept, recognized that uniformity is not offended by 'the right given to recover in death cases." *fn33"

 Accordingly, I confirm the Commissioner's conclusion that Williams' action for pain and suffering survived his death ...

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