39 F. 115 | S.D.N.Y. | 1889
On the 19th of March, 1887, as the libelant’s schooner A. W. Thompson was beating to the westward in Long Island sound, against the wind from W. N. W., she was run into by the steam-boat Idlewild, also going west, about a mile this side of Throgg’s Neck, off Whitestone docks, and about a half a mile from shore. The vessels met nearly at right angles. The master, who was at the wheel, was killed by the falling spars, and his body picked up from the water. The above
As respects the claim for the loss of life, I do not find it necessary to consider the question reserved in the cases of The Harrisburg, 119 U. S. 199, 7 Sup. Ct. Rep. 140, and The Alaska, 130 U. S. 201, 9 Sup. Ct. Rep. 461,—whether a libel in rem will lie for a loss of life through negligence under a statute like that of New York, which gives an action for damages not exceeding §5,000 and interest, to be recovered by the personal representatives, in a case like this, where the negligence and the death arose upon navigable waters within the limits of the state. Nor is it necessary to consider whether an act of negligence which by the maritime law of this country, as declared by the supreme court, constitutes no maritime tort as respects the libelant or any survivors of the deceased, can under the United States constitution bo made a maritime tort cognizable in the admiralty by state legislation; or whether, if an action inpersonam were maintainable in the admiralty under such statutes, on the ground that the negligence was thereby made a maritime tort as respects the libelant, the remedy for such a tort in the courts of admiralty might not he in rem also, in accordance with the ordinary course of remedies under the maritime law of this country. Holmes v. Railway Co., 5 Fed. Rep. 81; The Garland, Id. 924; The Clatsop Chief, 8 Fed. Rep. 163; The E. B. Ward, 17 Fed. Rep. 456; The Manhasset, 18 Fed. Rep. 920; The Sylran Glen, 9 Fed. Rep. 335; The Cephalonia, 29 Fed. Rep. 334; Butler v. Steam-Ship Co., 130 U S. ——, 9 Sup. Ct. Rep. 612, 619. The action rests entirely upon the state statute. Any defense, therefore, that would bar recovery in the state courts, with reference to which the statute must be deemed enacted, must be held equally good in the admiralty. Besides this, the very language of the New York statute contains the proviso that the wrongful act, neglect, or default shall bo “such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof.” Laws N. Y. 1847, p. 575, c. 450; 4 Edm. St. 526; 7 Edm. St. 591. As the action rests upon the statute it cannot lie except under the conditions which the statute imposes. The Edith, 94 U. S. 518. The well-settled law of this state at the time the statute was passed, and now, forbids a recovery of damages by a plaintiff chargeable with contributory negligence. In this case the master was at the wheel, and in command. He was personally chargeable with the negligence for which I have held the schooner liable. It therefore follows that the action for loss of life must bo dismissed. Decrees may be taken accordingly.