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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here, all claims were filed before November 18, 1949; and by May 2, 1957, all but four claims had been compromised and withdrawn.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One of the three claims referred to the Commissioner was compromised and withdrawn after the reference.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 for the benefit of his estate.

 Some comment may be appropriate, however, on the doctrinal basis for reaching this result. In The James McGee, *fn34" Judge Learned Hand had before him death claims brought by the decedents of crew members of a United States vessel which collided, on the high seas, with a vessel owned by a New Jersey corporation. The crew members had died aboard the Government vessel or in the adjacent waters. Judge Hand granted recovery under a New Jersey statute, now N.J.S.A. 2A:31-1, interpreting The Hamilton *fn35" to teach that the law of the tortfeasor's residence created an obligation to respond in damages to the decedents' dependents, and that the admiralty courts would enforce that obligation. Judge Hand felt that it was an irrelevant fact, in The Hamilton, that the decedents had died aboard a ship belonging to a Delaware resident. *fn36" He rejected the theory that liability was imposed in The Hamilton on the ground that Delaware law followed the ship, on which the deaths took place, to sea, and that, in consequence, liability was imposed because Delaware was fictionally held to be the lex loci delicti. Of course, if Judge Hand's interpretation of The Hamilton is applied, pari passu, to this case, *fn37" Pennsylvania law, the law of the instant tortfeasor's residence, may be applied here to work a survival of the claim for pain and suffering. It would be a short path to the same result, which I reach by a more lengthy route.

 I must add, however, that I have some difficulties with this view. In the first place, it is contrary to the rule applying to torts committed on land, *fn38" although the fact that the high seas are regio nullius may offer a sufficient explanation of this difference. In the second place, there is some internal evidence, in the Court's opinion in The Hamilton, to indicate that the Court did apply Delaware law because it was the lex loci delicti. Thus, the Court referred *fn39" to 'the jurisdiction commonly expressed in the formula that a vessel at sea is regarded as part of the territory of the state * * *.' If the theory were that the law of the tortfeasor shipowner's residence placed an obligation upon him, which followed him when he was outside its territory, it would have been unnecessary to consider whether the vessel was a part of that territory. In addition, the Court cited *fn40" its earlier decision in Slater v. Mexican Nat. R. Co., in which it had said that 'the only source of this obligation (to respond in damages to the decedent's dependents) is the law of the place of the act * * *.' *fn41" This would also indicate that The Hamilton decision turned on a lex loci delicti concept as that term is traditionally understood, and that the place where the decedents died was deemed fictionally to be Delaware territory. Applying this theory of The Hamilton case here, the claim for pain and suffering would not survive, because the place of the act *fn42" was the Cutter Eastwind, and the maritime law, as applied in the federal courts, does not provide for the survival of the action. *fn43"

 There is, however, a theory of the ratio decidendi of The Hamilton which proceeds from the admiralty choice of law principle set forth in The Scotland, *fn44" and reiterated in La Bourgogne, *fn45" the latter case having been decided only a few months after the decision in The Hamilton. This principle is that the rights and liabilities arising from a collision on the high seas, between vessels which belong to different nations, *fn46" having different laws, will be determined by the law of the forum, while the law of the flag will apply if the law of each ship is the same. *fn47" This theory, which has been accepted by the Restatement, *fn48" explains The Hamilton on the basis that both ships involved in that case belonged to Delaware corporations. Application of The Scotland's principle to the present case leads to the result that the question of survival be determined by the law of the forum.

 This might result, therefore, in pointing to a denial of the survival. *fn49" It must be remembered, however, that this is a limitation proceeding, in which the claimants have been forced to litigate their claims here. *fn50" 'Every consideration based on equity and natural justice impels us to hold that it was not the purpose of the limited liability act to enable vessel owners to force claimants into the admiralty, and thus avoid claims which are valid and enforceable at common law. The intent was to limit the liability, not to destroy it.' *fn51" In a limitation proceeding, therefore, the claimant will be permitted to recover if he might have recovered in a common law action in another forum. *fn52" If the petitioner had been sued in the Pennsylvania courts, the rules of The Scotland and The Hamilton would have caused those courts to apply their own law in determining whether the action for pain and suffering survived. Since survival would be permitted under that law, *fn53" the limitation forum will provide the same remedy. It is by this reasoning that I apply Pennsylvania law in this case. *fn54"

 Claimant excepts to the award for pain and suffering on the ground that it is inadequate. Claimant asserts that it should be raised to $ 18,000. The Commissioner found that Williams, for the eight days *fn55" between his injury and his death, 'suffered intense pain and suffering from the severe second degree burns of his face, upper extremities, neck, trunk and scattered areas on the lower extremities. In fact, the cause of death was the extensive second and third degree burns of approximately 75% to 80% of the entire body surface.'

 The Commissioner's report is to be treated as 'presumptively correct.' *fn56" The claimant's argument is that the intense pain and suffering should be valued at $ 2,250 per day, rather than $ 1,000 per day. Such a valuation is not susceptible of precise monetary formulation. *fn57" Under the circumstances, I can find no proper basis for disturbing this award. The Awards for Dependents' Pecuniary Losses

 Each of the parties attacks the Commissioner's awards, under the Death on the High Seas Act, for pecuniary losses suffered by the decedent's dependents. The petitioner asserts that the award of $ 10,000 to the estate of the decedent's mother is excessive and that it should be reduced to $ 2,100. The claimant asserts that the award of $ 2,500 to the decedent's father is inadequate and that it should be increased to $ 17,000.

 Williams, who was 20 at the time of his death, had joined the Coast Guard upon his graduation from high school. Mrs. Williams testified that her son had intended to study engineering upon release from the service. At the time of his death he had a net monthly income of $ 76 which, while he was on sea duty, was increased to $ 92. He had established an allotment to be paid to his mother of $ 35 per month, denominated on Coast Guard records as a savings allotment, and she testified *fn58" that he additionally gave her $ 25 per month for household expenses. She testified that she had cashed the allotment checks at a neighborhood store; but the petitioner introduced documentary evidence before the Commissioner which showed that a $ 35 deposit had been made each month from August, 1947 through December, 1948, in a joint savings account which she maintained with her son. This record does not show any other deposits, with the exception of the opening deposits, a $ 100 deposit in July, 1948, following a $ 100 withdrawal in June, and a $ 40 deposit in September, 1948, the day after a $ 50 withdrawal and a few days after other withdrawals totalling $ 65. In addition to the withdrawals already noted, the account shows scattered withdrawals totalling $ 208.

 Much has been made of the discrepancies between Mrs. Williams' testimony and the bank records, and of calculations based on the amount of the allotment and the additional payments about which she testified. While the contributions actually made are important in determining the pecuniary loss suffered, *fn59" they are not conclusive in attempting to arrive at an 'exact quantum of pecuniary loss arising from wrongful death (which) is at best difficult to estimate.' *fn60" Indeed, an award to parents would be justified in the absence of any evidence of contributions on the basis of the reasonable expectation that a child will, at some time in the future, contribute to the support of his parents. *fn61"

 Mrs. Williams' loss, however, may not be valued according to her life expectancy at the time of her son's death (22.6 years), but according to her actual life span from that time (7 years). *fn62" Nor may interest from the time of death to the time of judgment be allowed. *fn63" Among the elements to be considered in awarding damages are 'the deceased's age, (the possibility that he will marry and thus assume additional responsibilities,) his earning capacity, his surviving beneficiaries, their ages, and his contributions to them, his condition of health, (and) his prospects of advancement * * *.' *fn64"

 Taking all of these factors into account, I have determined that the awards for the benefit of Williams' mother and father *fn65" should be modified so that the award for the benefit of his mother will be decreased to $ 2,000, and the award for the benefit of his father will be increased to $ 10,311.45. *fn66"

 I find that decedent's allotment of $ 35 per month was not intended or used, in whole, for the support of his parents. The discrepancy in Mrs. Williams' testimony in this regard might lead to the conclusion that her testimony should be entirely rejected. I find, however, on the basis of her testimony, that of the decedent's father and aunt, and the family practice, as testified, of turning over to Mrs. Williams the family's earnings for use in running the household, *fn67" that the decedent did contribute $ 25 per month for his parents' support and that this amount was supplemented by a small portion of the funds from the $ 35 allotment checks. Starting with that figure as a base, and considering the prospects that decedent's earning powers would have increased, I have concluded that decedent would have contributed $ 4,000 to the support of his family from the time of his death to the time of his mother's death. Since these contributions were for the support of both his parents, *fn68" I award half this amount, $ 2,000, for the benefit of his mother's estate.

 Williams' father's salary for 1949 was $ 3,766.08. *fn69" At the time his deposition was taken in 1956, his earnings were a little over $ 5,000 per year. *fn70" He was born in 1894 and is, consequently, now 65. He has no savings and is entitled to no pension. *fn71" He does not own his home. *fn72" I find that decedent would have contributed $ 2,000 for his father's support from the time of his death until his mother's death, and an additional $ 750 from that time until the present. In addition, I award $ 400 to decedent's father for lost wages and living expenses incurred while in New York during the last illness of his son. *fn73" The award for past damages to the father is, accordingly, $ 3,150. I further find, on the basis of the factors enumerated above, and especially considering the likelihood of increased contributions to the father in his later years, that decedent would have contributed $ 750 per year for his father's support from the present time forward. Discounting this sum at 3 1/2%, I award $ 7,161.45 to the father for his future loss. *fn74" The total award to the father is, accordingly, $ 10,311.45.

 Kenneth S. King

 The decedent, King, entered the Coast Guard in 1939, and had advanced to the rate of Chief Petty Officer, at the time of his death at age 28, on January 19, 1949. The Commissioner made two awards: *fn75" to King's personal representative for distribution (1) to King's sister in the amount of $ 6,000, and (2) to his nephew in the sum of $ 7,500. These awards were made under the Death on the High Seas Act for 'pecuniary loss sustained.' *fn76" King left no surviving spouse, children, or parents. Petitioner objects to each claim as erroneous as a matter of law, and as excessive. The Estate of King's sister objects to its award as inadequate.

 King's net pay, at the time of his death, was $ 169.65 per month. This figure was increased to $ 202.65 while he was at sea. King allotted $ 50 monthly to his sister who had a rheumatic heart disease and who required constant medical attention and care. He also allotted $ 30 per month *fn77" for his nephew, who had a deformed foot which required serious medical operations, and whom he regarded as a 'favorite.' The Commissioner also found that the decedent wished to assure his nephew's college education.

 The legal objections, raised by the petitioner, attacking these awards, are based on its claims that the beneficiaries were not 'dependent relative(s)' within the meaning of the Act. *fn78" This claim is bottomed on the fact that the sister was married and derived most of her support from her husband, and that the nephew was mainly supported by his father. The Act does not define the term 'dependent relative,' and I find no constructions of it in the reported cases. But I know of no reason to depart here from the general rule, in death cases, that partial dependency is sufficient. *fn79" Petitioner's attack upon the award to the nephew, on the ground that damages for lost educational assistance may not be had under the Act, is not well taken. *fn80"

 Turning to the amounts awarded, and applying the standards which are set forth above in connection with the Williams' claims, *fn81" and particularly, in the case of the sister, the fact that she died seven years after her brother, *fn82" I find that the awards for the benefit of King's sister and nephew should be in the amounts of $ 4,500 and $ 7,400.80, respectively. In the case of the allotment to King's sister, each of the $ 50 checks, from January 31, 1945 through December 31, 1948, was introduced. Almost all of these checks, endorsed by King's sister and, sometimes, her husband also, were then endorsed by the Melrose Trust Co., Melrose, Mass. King's sister maintained two bank accounts, each jointly with King, at that bank. Examination of the records of these accounts, however, shows that only ten $ 50 deposits were made into these accounts during this period. Various large deposits were also made into these accounts during this period. With a few exceptions, however, these deposits cannot be explained as aggregations of the monthly allotments. At least two of the checks (some of the photostats were not clear enough to permit reading the endorsement stamps) were not cashed at the bank. This documentary evidence is, accordingly, consistent with the Commissioner's finding, which I affirm, that King was assisting his sister with her medical expenses. *fn83" In this connection, it should be noted that King's sister's husband's gross income, in 1948, was $ 3,521.52. *fn84" In 1956, after his wife's death, it was approximately $ 5,000. *fn85" In view of the fact, however, that King's sister lived for only seven years after King's death, the award of $ 6,000 appears to be excessive, and it is reduced to $ 4,500.

 Turning to the award to King's nephew, photostats of the allotment checks from May 31, 1947 to December 1948, with two exceptions, indicate that these checks were deposited in one of the banks at which the nephew's father said he was maintaining bank accounts for his son's educational fund. The testimony that King was interested in seeing that his nephew received a college education is wholly credible. It is buttressed by the feelings which this unmarried uncle would be likely to have for his deformed nephew, and for the nephew's father, King's brother, who had looked after their parents in their last years. *fn86" The fact that large deposits were placed in the joint accounts maintained by King and his sister indicates that these were the accounts he maintained for his savings, and that the allotment to his nephew's father, although denominated on Coast Guard records as a 'savings' allotment, was not intended for that purpose. The nephew's father's gross income for the years 1948 through 1955 rose from $ 3,849.92 to approximately $ 5,700. *fn87" King's intention to underwrite his nephew's college education was also confirmed by the testimony of a neighbor and friend of the family. *fn88" King's nephew was a high school sophomore in 1956. *fn89" He would, accordingly, normally be graduated from college in 1962, at which time the support of his uncle would be expected to end. It appears that it would be reasonable to assume that he would have received $ 6,000 for his education and for necessary medical attention to his foot, from his uncle, in the ten years between his uncle's death and the present. I also find that he would have received an additional $ 500 per year for his education *fn90" in the three years between now and 1962. Commuted to its present value, this expectation is worth $ 1,400.80. *fn91" Accordingly, the total award to King's nephew is $ 7,400.80.

 The exceptions are overruled and sustained as indicated above. Settle decree, including taxation of the Commissioner's fee and expenses, *fn92" by April 13, 1959.

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