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NYE v. A/S D/S SVENDBORG

February 21, 1973

Dorris E. NYE, Individually and as Administratrix Ad Prosequendum of the Estate of Charles W. Nye, Deceased, et al., Plaintiffs,
v.
A/S D/S SVENDBORG et al., Defendants. A/S D/S SVENDBORG et al., Defendants and Third-Party Plaintiffs, v. MARINE ENGINE SPECIALTIES CORP., Third-Party Defendant


Gurfein, District Judge.


The opinion of the court was delivered by: GURFEIN

MEMORANDUM

GURFEIN, District Judge.

 This is A Civil Non-jury Action Claiming Unseaworthiness And Negligence As The Cause Of The Death Of Plaintiffs' Deceased husband and father. He was a United States citizen who was a repairer of ship pumps and who was flown from New York to the Canary Islands to repair a pump on the defendant's vessel the tEvelyn Maersk ("Evelyn"), a Spanish flag ship. The Evelyn was equipped with feed pumps manufactured by Pacific Pumps ("Pacific") of Los Angeles, supplied to the vessel by Kockums Mekaniska Verkstad of Malmo, Sweden. ("Kockums"). On her maiden voyage, which made no call at United States ports, a feed pump failed and she put into the Canary Islands. Kockums was called by the vessel's owners and it ordered a new pump to be installed under the supervision of Pacific. In turn Pacific asked Marine Engine Specialties Corporation ("Marine") a U.S. entity and the employer of plaintiff's decedent, Nye, to fly him there to supervise the installation. While ascending a Jacob's ladder drawn over the side of the vessel Nye fell to his death.

 The complaint, originally in the State Supreme Court was removed to this court on the ground of diversity of citizenship. The complaint alleges liability, in the alternative, under the laws of the United States, of Denmark and of the Canary Islands (Spain). The defendant alleged in its answer that the law of Denmark (the law of the flag) applies.

 The defendant then sought to require the plaintiff to elect his choice of law in advance of trial or alternatively, for the court to split the issue of what law governs from the trial of the facts on liability and damages and to determine what law governs in advance of the main trial.

 The defendant now agrees that the plaintiffs need not elect their choice of law in a pleading. See Tsangarakis v. Panama SS. Co., Ltd., 197 F. Supp. 704 (E.D. Pa. 1961). The plaintiffs on the other hand have conceded that the court may properly determine the issue of what law governs in advance of the trial on liability. The parties have also stipulated the facts necessary for a resolution of the choice of law question, and the essential facts contained therein have been related above.

 The court has been reluctant to determine the question of what law governs in the abstract without knowing to what extent such an exercise would effect different results, since there may be only minimal differences in the application of the several "laws". I therefore asked the parties to give me the views of their foreign experts on the following questions:

 1. What is the law of Denmark and Spain on liability for unseaworthiness to a non-crew member?

 2. On liability for negligence to a non-crew member?

 3. On whether contributory negligence results in divided damages?

 4. Who has the burden of proof in contributory negligence?

 5. Is there a difference in the measure of damages?

 6. Does the representative of a deceased plaintiff who is not a crew member have an action for damages for an ...


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