286 F. 301 | E.D.N.Y | 1922
(after submission of briefs). The vessel cannot be held liable for any of the conditions shown by the testimony. The stevedores took over the vessel and its appliances, and
The action is brought into this court because of the evident maritime jurisdiction under the law as it existed prior to June 10, 1922 (chapter 216, Laws of 1922 [42 Stat. 634]). Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Chelentis v. Luckenbach, 247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145. State Industrial Commission of State of New York v. Nordenholt Corporation (May 29, 1922) 259 U. S. 263, 42 Sup. Ct. 473, 66 L. Ed.-.
In The A. W. Thompson (D. C.) 39 Fed. 115, and The City of Norwalk (McCullough v. New York & N. Steamboat Co.; D. C.) 55 Fed. 98, Judge Brown has discussed at length the right to recover for death and the application of state laws in applying the remedy in a United States court. His conclusion has been followed in Hurley v. Detroit & C. Steam Nav. Co., 73 Fed. 883, 20 C. C. A. 86, and Quinette v. Bisso, 136 Fed. 825, 69 C. C. A. 503, 5 L. R. A. (N. S.) 303.
In the federal court contributory negligence is a defense, and freedom therefrom need not be alleged in the complaint; but, if proven, it is a complete defense in an action at law. In admiralty, which has drawn its rules from the civil law and equity (The Kalfarli [C. C. A.] 277 Fed. 391), while in form an action at law, contributory negligence may be apportioned.
The difficulty of proving, and the apparent failure of proof in showing, the exact cause of the accident, together with the possibility that the decedent and the cover were merely dragged off by the draft, a risk which the decedent assumed, unless he observed reasonable care to keep out of the way, furnishes additional grounds why the libel must be dismissed.
Decree accordingly.