123 F. 475 | 2d Cir. | 1903
This is a writ of error by the defendant in the court below to review a judgment for the plaintiff entered upon the verdict of a jury. The plaintiff’s intestate took passage upon the steamship St. Paul, which left the port of New York bound for Southampton May 16, 1900, and on the 21st day of that month was washed overboard by a high sea and drowned. The St. Paul was owned by the defendant, a corporation of the state of New Jersey, but was registered at the port of New York. The administrator of the deceased brought the action upon the theory that her death was caused by the negligence of the defendant in allowing her to be on the deck of the vessel without protecting the deck with netting, or warning her of the danger. The assignments of error present the question whether the trial judge erred in not directing a verdict for the defendant on the whole case because the plaintiff was not entitled to recover.
The territorial sovereignty of a state extends to a vessel of the state when it is upon the high seas, the vessel being deemed a part of the territory of the state to which it belongs; and it follows that a state statute which creates a liability or authorizes a recovery for the consequences of a tortious act operates as efficiently upon a vessel of the state when the vessel is beyond its boundaries as it does when it is physically within the state. The inquiry in the present case, therefore, is whether a recovery was authorized by the statute of the state whose territorial sovereignty embraced the steamship. The action was brought upon the theory that the steamship was a vessel of New York, and seems to have been decided at the trial' upon that theory. The complaint alleged that the death of the intestate and the negligence occurred upon a vessel of that state, and that the plaintiff was entitled to recover by virtue of the statute of New York in such case made and provided. Upon the trial the-plaintiff was granted leave to amend the complaint by alleging that a statute of New Jersey provides that the administrator may recover for the benefit of the next of kin “in practically the same manner as the statute of New York,” but leave was not granted to amend by alleging that the steamship was a vessel of New Jersey. The complaint was not formally amended, and the trial judge treated the-case as founded on the statute of New York.
It is plain that the New York statute did not reach the case, because, inasmuch as the steamship belonged to a citizen of New Jersey, it was a vessel of that state, notwithstanding its registry in New York. The Plymouth Rock, 13 Blatchf. 505, Fed. Cas. No. 11,237;. The Havana, 64 Fed. 496, 12 C. C. A. 361; Scudder v. Calais Steamboat Co., 1 Cliff. 370, Fed. Cas. No. 12,565; United States v. Brune, 2 Wall. Jr. 264, Fed. Cas. No. 14,677; Sharp v. United Ins. Co., 14 Johns. 201. It follows that the ruling of the trial judge was erroneous, unless he should have taken judicial notice of the New Jersey statute, and unless under that statute the plaintiff was entitled to maintain the action. By the New Jersey statute it is' essential to a recovery in such an action that the action be commenced within
The judgment is reversed.