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June 15, 1972

In the Matter of the Complaint of INDUSTRIAL TRANSPORTATION CORP., as Owner of the MOTOR VESSEL MICHAEL B and the following other proceedings: 69-C-418, 70-C-783, 69-C-303, 70-C-1086

Costantino, District Judge.

The opinion of the court was delivered by: COSTANTINO


COSTANTINO, District Judge.

 On March 15, 1972 the tank ship Michael B. caught fire and exploded while at dock in the Hess Oil Terminal at Port Reading, New Jersey resulting in the death of Lucien Kempf, a seaman aboard the vessel. *fn1" Nine days after the accident, a limitation proceeding was filed in this court by the owner of the ill-fated vessel. The following month the charterer initiated a similar proceeding. Subsequently, Carol Kempf, widow of the decedent and administratrix of his estate, on her own behalf and on behalf of two infant children of the decedent born to her during their marriage filed claims in both limitation proceedings and then, after joining as a third-party plaintiff in an action against Hess Oil and Chemical Corp., she began a Jones Act suit against Coastal Petroleum Transport Co. seeking damages for the wrongful death of her late husband.

 Discussions among counsel culminated in a settlement agreement on November 19, 1971. While the attorneys for the Michael B. and the Hess Oil and Chemical Corp. awaited client approval of the proposed settlement, the attorneys for the administratrix were advised informally of claims to be asserted on behalf of two alleged illegitimate children of the deceased seaman. After the compromise order was submitted to the court, Lorraine Marion Pierce, mother of the decedent's alleged illegitimate children, presented to the court an order directing the parties to show cause why the court should not order her appointment as guardian ad litem for the children to protect any interest they might have in the limitation proceeding brought by the owner of the Michael B.2

 At the threshold of this petition to intervene the court must decide a fundamental question -- what law is to be applied by an admiralty court in determining the status of a person before it; more specifically what law determines whether a claimant belongs to a class of potential beneficiaries under an act providing for the welfare of seamen and their dependents. *fn3" Then, assuming under the law applied by this court, the two minor children of the intervenor do have an interest to be protected, the court must determine two additional issues: timeliness of the petition and the extent to which a guardian ad litem is necessary to protect the interests of the two minor children.

 Admiralty and Choice of Law

 Maritime law must control all substantive issues in the disposition of maritime claims, regardless of the form or forum of the action. Larios v. Victory Carriers, Inc., 316 F.2d 63, 65 (2d Cir. 1963). The exclusivity of jurisdiction extended to the Federal Government in this area has been thought necessary to "keep the maritime law essentially uniform and harmonious throughout the international and interstate relations of the nation." 1 E. Benedict, The Law of American Admiralty (A. Knauth 6th ed. 1940, Supp. 1971), § 1, at 1 [hereinafter Benedict ]. Even in the area of welfare legislation which has been thought to be peculiarly within the ken of state power, in order to preserve proper harmony and uniformity, state statutes cannot permissibly contravene general maritime law. See Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S. Ct. 524, 61 L. Ed. 1086 (1947); see generally 1 Benedict, supra § 27, at 58-60. On the other hand, situations can arise where admiralty precedents are either inconclusive or nonexistent. In such situations, however, depending on the nature of the case and the particular controversy involved, an admiralty court might be required to apply state law. 1A J. Moore, Federal Practice § 0.322[2], at 3731 (2d ed. 1965). See generally Currie, Federalism and the Admiralty: The Devil's Own Mess, 1960 Sup. Ct. Rev. 158. As Judge Sobeloff concluded after analyzing several Supreme Court decisions in this area:

The determining factor as to which law governs seems to be the availability of an admiralty rule which is generally accepted and clearly defined. Where such a rule exists it will prevail over conflicting local law. . . .; but where no admiralty rule has been clearly established, an admiralty court will, in the absence of legislation, hesitate to lay down a rule for uniform application in the face of conflicting possible choices.

 Bell v. Tug Shrike, 332 F.2d 330, 332 (4th Cir.), cert. denied, 379 U.S. 844, 85 S. Ct. 84, 13 L. Ed. 2d 49 (1964).

 The keystone question presented by this petition, rather than involving a matter traditionally committed to the law of the sea or specifically resolved by federal statute, focuses on a matter normally determined by reference to the law of the state of domicile -- the question of a person's status vis-a-vis his parentage. Where such a vacuum of authority exists, reference must be made to state law. See Murphy v. Houma Well Service, 409 F.2d 804, 811 (5th Cir. 1969); Weyerhaeuser Timber Co. v. Marshall, 102 F.2d 78 (9th Cir. 1939); Ingalls Shipbuilding Corp. v. Neuman, 322 F. Supp. 1229, 1234 (S.D. Miss. 1970), aff'd per curiam, 448 F.2d 773 (5th Cir. 1971). *fn4"

 Still, federal courts have found the question of status to be a peculiarly difficult concept with which to deal. This stems, in part, from the absence of a federal law of domestic relations. DeSylva v. Ballentine, 351 U.S. 570, 580, 76 S. Ct. 974, 100 L. Ed. 1415 (1956) (defining the term "child" under § 24 of the Copyright Act, now codified at 17 U.S.C. § 24 (1970)). More importantly, however, reference to state law makes necessary an analysis of the intent and interests to be advanced by the various provisions of state law that are proffered for incorporation by reference into a federal law that is being construed in order to discover that part of state law that would best further the purpose to be achieved by the federal statute. The ultimate and more problematical question, then, is not whether state law should be applied but which state law should be applied. As the DeSylva Court clearly indicated, in choosing a part of state law to be incorporated by reference into federal law the choice must be governed by the federal purpose embodied in the federal statute, id. at 580-582, 76 S. Ct. 974.

 Consequently, where there is more than one state statute that could potentially give meaning to a vague term of status or class in a federal statute the court after analyzing the federal statute and the various state statutes must choose the state statute that will best achieve the purpose to be furthered by the federal statute. *fn5"

 Proving Filiation Under New York Law

 New York domestic relations law provides a special proceeding through which an illegitimate child can establish the paternity of his putative father. Under the provisions of this law, such a paternity proceeding must be brought in the appropriate Family Court during the lifetime of the father and within two years of the birth of the child. N.Y. Family Law § 517 (McKinney 1963). *fn6" If paternity is established, the Family Court will issue an order of filiation declaring the paternity. An order of filiation once issued will legitimatize the illegitimate child for purposes of New York's inheritance law. See N.Y.E.P.T.L.§ 4-1.2(a)(2) (McKinney 1967). Yet, even if New York law provided that a paternity proceeding be used solely to determine filiation for the purpose of ordering payment of support by the father to his illegitimate child or for purposes of the law of inheritance, it might have been arguable under DeSylva that the filiation statute was at best inapposite to the interests to be advanced by federal maritime law. But, the New York wrongful death statute, N.Y.E.P.T.L. § 5-4.4 (McKinney 1967), by incorporating the inheritance statute's definition of distributee refers to the filiation statute in determining whether an illegitimate child can be a distributee of a decedent in an action against the tortfeasor whose conduct caused the death ...

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