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June 23, 1964

Catharine McLAUGHLIN, Administratrix ad prosequendum of the Estate of Hugh J. McLaughlin, deceased, Libellant,
The DREDGE GLOUCESTER, her engines, tackle and appurtenances, Respondent, and American Dredging Company, Claimant

The opinion of the court was delivered by: COHEN

This is a Libel in Admiralty, in which the chronology is significant. On September 21, 1957, libellant's decedent, while an employed crewmember of respondent dredge 'Gloucester', formerly the 'Queen', sustained personal injuries upon the dredge, when upon the navigable, territorial waters of the State of New Jersey. The seaman's death ensued ashore from these injuries on November 25, 1957.

On June 15, 1959, the present libellant commenced a civil action in the United States District Court for the Eastern District of Pennsylvania against Eastern Engineering Co., Inc. (Eastern), operator of the dredge at the time of the injury, based upon negligence and failure to provide a seaworthy vessel arising out of the foregoing events, which also from the narrative of the first cause of action in the present libel. The aforesaid action resulted in a verdict for the plaintiff in the amount of $ 40,000.00, upon which judgment was entered March 28, 1963.

 The claimant, American Dredging Company, having purchased the offending dredge on August 19, 1960, from Brann and Stewart Co., the owner at the time of the occurrence in question, without notice of any maritime lien, filed exceptions to the libel, making claim for release of its dredge, together with damages, interest and costs for deprivation of use since attachment.

 The claimant now moves this Court to dismiss the libel for failure of its allegations to support this action in admiralty, urging that any maritime lien which may have existed against the respondent dredge was extinguished by the judgment obtained against the former operator Eastern; and further, that any cause of action libellant might have had has been barred by the relevant statutes of limitations, or defeated by the doctrine of laches. The respective contentions, some of which are novel, have been carefully briefed and forcefully presented on oral argument. The Court will endeavor to reach en masse the many points deemed to be essential. The disposition of claimant's motion depends, of necessity, upon a determination of whether the libel is maintainable as a matter of law.

 At the outset, the relief sought lacks specific designation of authoritative source for remedy and, therefore, must be gauged against the avenues of judicial relief afforded on the Admiralty side of this Court. The Constitution of the United States provides that the jurisdictional power of the United States shall extend to all cases of admiralty and maritime jurisdiction. *fn1" Congress in 1789, provided that the District Courts of the United States shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, as well as saving to suitors in all cases such rights, if any, as the common law might be competent to afford. *fn2" This saving of common law remedies by Congress, refers to in personam proceedings against a defendant in admiralty and not merely a remedy in a common law court. *fn3"

 The second source of judicial relief in Admiralty is that provided by Congress in Section 33 of the Merchant Marine Act of June 5, 1920, known as the Jones Act. *fn4" The Jones Act granted to an injured seaman a right of action on the civil side of the federal court, with right of trial by jury; and in the event of death when grounded in negligence, a like right of action to his personal representative on behalf of designated beneficiaries. *fn5"

 The third avenue for relief to which libellant must look in this death action within state navigable, territorial waters, is the pertinent Death by Wrongful Act Statute *fn6" and the Survival Statute of New Jersey. *fn7"

 Being an action in rem, the libel is not maintainable under the provisions of the Jones Act, because not brought by an injured seaman in his lifetime for unseaworthiness of the vessel, which he might have done under general maritime law, as distinguished from negligence in personam, nor instituted by his representative for personal injuries based upon negligence in personam, as distinguished from unseaworthiness of the vessel. *fn8" The application of the foregoing distinction in the instant case warrants its precise positioning within the historical overlay of the laws of seamen from which divergent concepts of rights and remedies have evolved.

 In the early days of sailing ships, the men before the mast were little more than appurtenances to the vessel. *fn9" The protection against harm afforded to them by Admiralty Courts was only that they be provided with safe vessels upon which to serve; and when injured, their rights were vindicated by maritime law to the extent of imposing upon the vessel and her owners the obligation of providing 'maintenance and cure.' However, if the seafarer's injury resulted in his death, under both American and English maritime law, all claims for injury, pain and suffering as well as death, died with the seaman. The Harrisburg, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358 (1866).

 With the passage of time, and the advent of steam navigation involving the use of complicated machinery on vessels, the seaman could no longer gauge his risk by visual inspection of the ship before signing his articles to serve, as he had done with respect to comparatively uncomplicated sailing ships. In meeting the challenge of the increased hazards to which its wards were being exposed, there developed judicially within the Admiralty Courts the doctrine of 'seaworthiness.' This doctrine imposed a maritime duty upon the vessel and her owners to provide a safe and sound vessel and equipment, for breach of which the vessel was conclusively deemed to be 'unseaworthy', rendering both vessel and owner liable in damages for injury to a seaman as a result thereof. The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760 (1903); The State of Maryland, 85 F.2d 944, 945 (4 Cir. 1936), and Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 544, 80 S. Ct. 926, 930, 4 L. Ed. 2d 1941 (1960), in which Mr. Justice Stewart reviews and defines the doctrine of 'unseaworthiness' as it developed in the late Nineteenth Century; see also, mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561 (1944), and Seas Shipping v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). These later authorities not only declare an in rem remedy to be available in maritime law for an injured seaman against the vessel and owner, but refine the legal distinction between in rem liability in Admiralty as a species of absolute liability, or vicarious liability without fault, and an in personam proceeding for negligence, or breach of contract, of a vessel's owners, agents or employees. *fn10"

 While the general maritime law extended humanitarian concern to injured seamen, the Courts of Admiralty terminated their jurisdictional power where death resulted to the seaman, much like the common law before statutory innovations. In The Harrisburg, supra, the Maritime law was declared to be that, in the absence of a Federal or State statute conferring a right of action therefor, damage actions for the death of a seaman caused by negligence could not be maintained in Admiralty in a United States Court; furthermore, in Lindgren v. United States, 281 U.S. 38, 50 S. Ct. 207, 74 L. Ed. 686 (1930), such actions were not maintainable whether the death was occasioned by negligence or unseaworthiness, all claims therefor being foreclosed by the demise of the injured seaman.

 This harsh maritime law was tempered by the Jones Act, supra, in that it continued the in rem cause of action to an injured seaman for personal injury, and created a new cause of action where none had previously existed in marine law for his personal representative to maintain an action on behalf of designated beneficiaries for damages where the seaman's death was the result of negligence. Moreover, where the injury or death was caused, or contributed to, by the violation of a statute or regulation within the doctrine of liability granted to railroad workers under the Federal Employers' Liability Act, the seaman's employer was liable *fn11" by reason of these newly created rights being incorporated within the Jones Act.

 In Kernan, cited in the margin, Mr. Justice Brennan, speaking for the Court, declared that the Jones Act remedy for wrongful death was exclusive and precluded any remedy for wrongful death within territorial waters based upon unseaworthiness whether derived from federal or state law. However, a year later, in The Tungus v. Skovgaard, 358 U.S. 588, 79 S. Ct. 503, 523, 3 L. Ed. 2d 524 (1959), 71 A.L.R.2d 1280, an action for damages for death by reason of alleged unseaworthiness of the vessel, and the alleged negligent failure of its owner to provide a reasonably safe place to work, the court held that in an action based on unseaworthiness for a happening within the territorial waters of New Jersey, a court in admiralty would apply a State Wrongful Death Act as encompassing a claim for uneaworthiness where death was caused to a nonseaman. Tungus is distinguishable from the case sub judice by precise differences in fact and in law. The federal court was applying the law of the situs of the tort. The United States Supreme Court held maritime unseaworthiness to be within the purview of a tort 'caused by a wrongful act, neglect ...

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