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CANILLAS v. JOSEPH H. CARTER

February 6, 1968

Brigitte E. CANILLAS, Administratrix of the Estate of Joseph Muise, Deceased, and Elaine M. Pina, Administratrix of the Estate of Henry B. Pina, Deceased, and Veronica J. Naves, Administratrix of the Estate of Eugene M. Naves, Deceased, and Mary Pereira, Administratrix of the Estate of Albino M. Pereira, Jr., Deceased, and Martha E. Hill, Administratrix of the Estate of Ezra Hill, Deceased, Plaintiffs,
v.
JOSEPH H. CARTER, INC., and Harry Kremin, Defendants



The opinion of the court was delivered by: BRYAN

FREDERICK van PELT BRYAN, District Judge:

 Late in December 1962 the fishing vessel Austin W. disappeared on the high seas and all seamen aboard her were lost. *fn1" The present action against defendants Joseph Carter, Inc. and Harry Kremin is brought by the administratrices of five of the deceased seamen. The original complaints were laid under the Jones Act *fn2" and the Death on the High Seas Act. *fn3" Plaintiffs, alleging negligence on the part of the defendants and the unseaworthiness of the vessel, sought damages for wrongful death, for decedents' pain and suffering and for loss of personal property aboard the vessel.

 Defendants now move for summary judgment pursuant to Rule 56, F.R.Civ.P. They contend that they have been discharged from any liability to plaintiffs by reason of general releases executed by plaintiffs in settlement of another suit or suits based on the same disaster.

 Plaintiffs consent to the dismissal of the action as against the individual defendant Kremin. However, they assert that on the basis of recently discovered additional facts which cast new light on the liability of the corporate defendant Joseph Carter, Inc. this defendant is not entitled to summary judgment. To give effect to these newly discovered facts, plaintiffs seek leave to file amended complaints under Rule 15(a), F.R.C.P.

 In the exercise of the court's discretion plaintiffs are granted leave to amend their complaints, and the motion for summary judgment will be decided on the basis of the pleadings as amended.

 I.

 In their amended complaints plaintiffs no longer rely, as they did in their original complaints, on the Jones Act and the Death on the High Seas Act as the bases of liability. Instead they allege a maritime claim for relief in tort under the New York Wrongful Death Statute. *fn4"

 This claim for relief is based on an alleged contractual arrangement between Joseph Carter, Inc. and the vessel Austin W. Plaintiffs claim that under this arrangement Joseph Carter, Inc. had an exclusive option on all fish caught by the vessel in the waters off the New York coast. In turn, the corporate defendant agreed to provide a variety of husbanding services for the vessel, including stores, weather reports and forecasts, and a life boat. It is alleged that the defendant Carter neglected to place aboard the vessel a life boat that had been ordered; that in this and other ways it was negligent in discharging its contractual obligation and that this negligence caused the loss of the vessel Austin W. and the five deceased seamen.

 Defendants' motion for summary judgment is based upon general releases executed by these plaintiffs under the following circumstances.

 Actions against the Austin W. Fishing Corporation, the documented owner of the lost vessel, were pending in the United States District Court of Massachusetts at the time the present action was commenced in New York. In June 1966, following the commencement by the owners of a limitation of liability proceeding in the Massachusetts district court, each of the plaintiffs here signed a general release. The releases provide, in part, that in consideration of money paid on behalf of the Austin W. Fishing Corporation, the owner, and American Universal Insurance Co., the plaintiff named has "released and forever discharged * * * Austin W. Fishing Corp. and American Universal Insurance Company, their officers, directors, agents, successors and assigns, and the vessel AUSTIN W., and the owners, operators, agents, charterers, masters, officers, and crew of said vessel of and from all and all manner of action and actions * * * claims and demands whatsoever in law, Equity or Admiralty, which against the said Austin W. Fishing Corporation and American Universal Insurance Company, their officers, directors, agents, successors and assigns and the vessel AUSTIN W., and the owners, operators, agents, charterers, masters, officers and crew of said vessel * * * [the releasing party in any capacity] * * * ever had, now * * * has * * *, or which * * * [the deceased's] * * * heirs, executors, administrators, successors, or assigns hereafter can, shall or may have. * * *."

 The claims released are spelled out in very broad language which includes almost every conceivable type of claim, suit, cause of action, controversy, contract or demand, and also includes, but is not limited to, all manner of loss or damage arising from the loss of the decedent at sea and any conscious pain and suffering the decedent may have undergone.

 The consideration paid for the five releases totaled $120,500, and ranged from $12,000 to $31,500. The defendant Carter, Inc. did not contribute to the settlements.

 Plaintiffs do not allege any inherent unfairness in the settlements or any fraud or overreaching in connection with them. They simply claim that the damages were greater than the amounts they received.

 Both parties take the position that if defendant Carter is liable at all it is liable as a joint tort feasor and the motion ...


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