209 F. Supp. 835 | D. Mass. | 1962
The petitioner, Sandra & Dennis Fishing Corp., has excepted to the claim of Judith Wycherski, a minor daughter of the late Walter Wycherski. Walter Wycherski was a crew member of the fishing vessel BARBARA AND GAIL, owned by petitioner, who drowned as a result of the sinking of the BARBARA AND GAIL.
The exception is based on the provisions of 46 U.S.C.A. § 688, which provides in pertinent part that “in case of the death of any seaman * * * the personal representative of such seaman may maintain an action for damages at law.” The petitioner claims that the cause of action is vested by the statute exclusively in the personal representative, and that not being the personal representative the claimant, Judith Wycherski, has no standing to present her claim save through the agency of the personal representative.
The personal representative of Walter Wycherski is his second wife, who is not the mother of Judith Wycherski, and proctor for Judith Wycherski has represented to the Court that there exists ill-feeling and, therefore, conflict of interest between the personal representative and said Judith Wycherski. This representation has not been seriously challenged by the proctors for petitioner.
I am persuaded that the reasoning of the Supreme Court in Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 531, 76 S.Ct. 946, 100 L.Ed. 1387, directs that in the situation here presented the claimant, Judith Wycherski, should be allowed to maintain her claim independently of the personal representative of decedent, on condition that the claim be presented through a next friend, since the language of the Supreme Court in no way removes the disability of a minor to sue.
Exception overruled.
