Appeal from an order of summary judgment entered by the United States District Court for the Southern District of New York, dismissing Appellant's wrongful death claim on behalf of her deceased husband under the Death on the High Seas Act, 46 U.S.C. § 761 and related maritime laws. Affirmed. Judge Ward dissenting in a separate opinion.
Before: KAUFMAN and WINTER, Circuit Judges, and WARD, District Judge.*fn*
Eva Ortiz de Cortes ("Mrs. Lobaton"), widow and personal representative of her deceased husband, Jesus Maria Lobaton, appeals from an order of summary judgment dated September 1, 1978, entered by Judge Owen in the United States District Court for the Southern District of New York, dismissing her wrongful death claim under the Death on the High Seas Act, 46 U.S.C. § 761 (1976), and related maritime laws.
On December 11, 1975, the DROSIA, a vessel of Liberian registry owned by Lampsis Navigation, Ltd., capsized and sank off Cape Hatteras, North Carolina. Seventeen crew members were rescued, eight others are presumed lost at sea. Following the loss of the DROSIA, Lampsis' insurer instructed a Mr. R. J. Pitman to pay the deceased seamen's families their accrued wages and benefits and to make "ex gratia payments" (settlements) for loss of life to the seamen's dependents. Pitman, together with a representative of Lampsis, one Paul Santiago,*fn1 attempted to locate the families of the deceased crewmen in their home countries of Honduras, Guatemala, El Salavador and Colombia.
In January, 1976, Pitman and Santiago met with Mrs. Lobaton, a Honduran native, at her home in Colombia to effect a settlement. Although both men were present at the first meeting, Pitman was required to depart for Ecuador before the settlement was concluded. Mrs. Lobaton contends that Santiago told her during the negotiations that she did not need to engage counsel because Lampsis was adequately protecting her interests. In settlement, Santiago paid Mrs. Lobaton her deceased husband's accrued wages and an additional sum of $30,000, in return for which she executed a release before a Notary Public.*fn2 Before signing the release, Santiago specifically asked Mrs. Lobaton whether she fully understood the meaning of the release, to which she replied that she did. The release, which she signed, was written in Spanish and states,
I have read this document carefully and the content has been explained to me for which reason I release and waive any possible rights of legal action in any jurisdiction for this fact.
After the release was signed and payment made, Santiago helped establish trust accounts for Mrs. Lobaton's seven children and explained that the interest on those accounts could be used for the maintenance of the children without invading the principal.
On June 10, 1976, Lampsis initiated the instant action in the District Court for the Southern District of New York to obtain exoneration from or limitation of liability in accordance with Liberian Maritime Law and Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure. Service was made to all known claimants and notice was given in the New York Law Journal.
On July 30, 1976, Mrs. Lobaton filed an answer and a claim for compensatory damages of $750,000 as well as for punitive damages. Lampsis responded by raising the defenses of accord and satisfaction and release and by moving for summary judgment. In a memorandum dated September 1, 1978, Judge Owen granted the motion and Mrs. Lobaton appealed.
In this appeal, she advances three arguments: (i) a release by a relative of a seaman should be as closely scrutinized as a release executed by the seaman himself; (ii) summary judgment was improper because material issues of fact remain in dispute; and (iii) the release was based on a mutual mistake of fact, namely that Lobaton was ...