95 F. 700 | S.D.N.Y. | 1899
Upon the decision in the above matter holding both the fc>f. Johns and the Catskill to blame for the collision (92 Fed. 1010), and the report of the commissioner to assess the damage's to the property and report the evidence as to personal injuries, several questions of interest have arisen which have been elaborately discussed by counsel. The Catskill was very nearly a total loss; and Hie proceeds of the St. Johns are less than half the total damage to the Cal skill and her passengers and cargo.
Her rin mages as reported by the commissioner amount to.........$48,719 60
For baggage lost............................................... 1.071 78
For cargo. ..................................................... 3,675 42
The last two items were paid to the different claimants by the owners of the Catskill, who received from the insurers on baggage and cargo the amount of the last-named items less if 100 particular average; and (he insurers now claim to recover Hie amounts thus paid to the owners.
1. Upon the evidence submitted for personal injuries and loss of life, I award the following sums, namely:
To claimant Nellie McOree, age 23.............................§ 3,553 85
For the death of Mary (.. Morris, age 46...... 3,000 00
For the death of Maria MacDonald, age 75 ...................... 685 00
For the death of the boy A. M. Timmerman, age nearly 5......... 602 00
To Hannah Klein, age 46................. 250 00
To Leonard It. Miller, age 68.................................. 2,500 00
To George F. Cook, age 28..................................... 227 50
$10,818 35
The above sums include the items for baggage of McCree and Gook not yet paid to them, and also the funeral expenses of the deceased, as proved.
The claim for the death of Mary L. Morris is made by her husband, Michael F. Morris, who has been appointed administrator. She left surviving two children, namely, May 16, and Fred 15, years old. The evidence shows that the husband for some time past had abandoned both wife and children, did not livé with them, and contributed nothing to their support. The children were supported by the mother. By the statute of New Jersey, where they resided, the recovery for the death of Mrs. Morris would go to her husband. It is manifest, however, upon the evidence of his abandonment of his family, that he personally suffers but little, if any, pecuniary damage from his wife’s death; and pecuniary damage is all that the statute allows. It is the children who really suffer pecuniary loss through their mother’s death; and their father is legally bound to support them, though he is without responsibility for not doing so.
The net proceeds of the sale of the St. Johns paid into the registry of the court in this proceeding are •$23,944.52. From this amount after deducting the amount of $10,818.35 allowed for personal injuries and deaths, and $4,647.20 for baggage and cargo, there will remain the sum of $8,478.97 only, which is far less than sufficient to make good one-half of the loss on the part of the Catskill, even at her valuation of $48,719.66, as fixed by the commissioner. The insurers on the Catskill having intervened for their interest, after paying in full as for a total loss upon a valued policy of $20,000, have excepted to the commissioner’s report, and contend that her valuation should have been fixed at from $65,000 to $75,000. In view, however, of the small sum remaifling for distribution, it is wholly immaterial whether her value was $48,000 or $75,000 unless the owners of the Catskill and their insurers by subrogation, would-be entitled to share pro rata in the whole fund with the other damage claimants.
2. The Catskill, having been held in fault in this proceeding as well as the St. Johns, is bound jointly with the latter to make good all damage claims; and any amount recoverable from the St. Johns which might otherwise be apportionable to her, on account of her own damage, must be held applicable to make good all outside claims for which she is bound equally with the St. Johns. As between these different claimants the owners of the Catskill are equitably estopped from withdrawing in this proceeding any part of the fund whereby the other damage claimants might lose any part of their demands. The Erinagh, 7 Fed. 235; The Olga, 32 Fed. 329, 331; The Eleanora, 17 Blatchf. 88, Fed. Cas. No. 4,335. This is a priority which falls within the scope of rule 55 of the supreme court in admiralty. The insurers stand by subrogation in the shoes of the owners (of the Catskill, and can claim no more than her owners could claim. •
3. It is further contended, inasmuch as by the law of the states of New York and New Jersey no liens are given for death claims, while a maritime lien does exist for the damages received by the Catskill, that this entitles the Catskill to a priority for her claim over the death claims. I cannot sustain this contention. Section 4284 of the Revised Statutes, providing for the distribution of the proceeds upon a surrender of the vessel, declares that the proceeds shall be distributed among the claimants “in proportion to their respective losses”; and no distinction is made between the different kinds of damage, whether to property or person. . Injuries to person and loss of life are held to be claims within the scope of the statute (In re Long Island North Shore Passenger & Freight Transp. Co., 5 Fed. 599, 624; Butler v. Steamship Co., 130 U. S. 527, 552, 9 Sup.
4. Ao question arises here under the Harter act as respects the liability for baggage or cargo. The claims for both were settled and paid by the owners of the Catskill, who were reimbursed, as above stated, less 8100 particular average, by the insurers on baggage and cargo, and their claim for so much of the loss has been duly proved. The amount of this claim will, therefore, be paid to these insurers, like the oilier damage claims, in priority to tlie claim for the damage -to the Catskill.
5. A question being raised as respects the abandonment of the wreck of the Catskill to her insurers, in accordance with the suggestions on tin; argument, in case any surplus should be found remaining after tlie payment of the other claims, a further order of reference may be taken to report the evidence upon the question of abandonment and as to who is entitled to the balance remaining.