The President Madison

W.D. Washington

The President Madison

17 F.2d 526, 1926 U.S. Dist. LEXIS 1677, 1927 A.M.C. 149

CourtDistrict Court, W.D. Washington

DecidedDecember 21, 1926

DocketNo. 11074

StatusPublished

Cited by1 cases

This text of 17 F.2d 526 (The President Madison) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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The President Madison, 17 F.2d 526, 1926 U.S. Dist. LEXIS 1677, 1927 A.M.C. 149 (W.D. Wash. 1926).

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Opinion

NETERER, District Judge

(after stating the facts as above). The Washington statute, giving a lien for injuries com-' mitted to person, does not extend to the representative of decedent for wrongful death (The Alaska [D. C.] 225 F. 645), nor could the seaman impress a lien for personal injury for the negligence of the master or [527]*527members of tbe crew. Tbe damage was not done by the ship, but by a portable “gangplank” or “gangway” wrongfully placed by the master and officers of the ship. See The Osceola, 189 U. S. 158, at pages 176, 177, 23 S. Ct. 483, 47 L. Ed. 760. Justice Brown, for the court, at page 172 (23 S. Ct. 485) in the Osceola, supra, said:

“The statutes of the United States contain no provision upon the subject of the liability of the ship or her owners for damages occasioned by the negligence of the captain to a member of the crew; but in all but a few of the more recent cases the analogies of the English and Continental codes have been followed, and the recovery limited to the wages and expenses of maintenance and cure.”

The contention that section 33 of the Marine Act, 1920 (Comp. St. § 8337a), is a survival statute that includes suits in rem cannot obtain. The saving clause of section 24 and section 256, Judicial Code (Comp. St. §§ 991, 1233), does not include suits in rem. The Moses Taylor, 71 U. S. (4 Wall.) 411, 18 L. Ed. 397; So. Pac. Co. v. Jensen, 244 U. S. 205, 218, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900.

In Panama Railroad Co. v. Vasquez, 271 U. S. 557, 46 S. Ct. 596, 70 L. Ed. 1085, June 7, 1926, Justice Yan Devanter for the court, said: “ * * * An action in personam to recover damages for tort is one of the most familiar of the common-law remedies ; and it is such a remedy at law that is contemplated by amended section 20 of the Seaman’s Act. * * * ” Eor full elucidation, see Panama Rd. Co. v. Vasquez, supra.

This being a libel in rem, we are not concerned with the relation of in personam actions in admiralty or at common law with relation to section 33 of the Merchant Marine Act, supra.

The exception is sustained.

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NETERER, District Judge

(after stating the facts as above). The Washington statute, giving a lien for injuries com-' mitted to person, does not extend to the representative of decedent for wrongful death (The Alaska [D. C.] 225 F. 645), nor could the seaman impress a lien for personal injury for the negligence of the master or [527]*527members of tbe crew. Tbe damage was not done by the ship, but by a portable “gangplank” or “gangway” wrongfully placed by the master and officers of the ship. See The Osceola, 189 U. S. 158, at pages 176, 177, 23 S. Ct. 483, 47 L. Ed. 760. Justice Brown, for the court, at page 172 (23 S. Ct. 485) in the Osceola, supra, said:

“The statutes of the United States contain no provision upon the subject of the liability of the ship or her owners for damages occasioned by the negligence of the captain to a member of the crew; but in all but a few of the more recent cases the analogies of the English and Continental codes have been followed, and the recovery limited to the wages and expenses of maintenance and cure.”

The contention that section 33 of the Marine Act, 1920 (Comp. St. § 8337a), is a survival statute that includes suits in rem cannot obtain. The saving clause of section 24 and section 256, Judicial Code (Comp. St. §§ 991, 1233), does not include suits in rem. The Moses Taylor, 71 U. S. (4 Wall.) 411, 18 L. Ed. 397; So. Pac. Co. v. Jensen, 244 U. S. 205, 218, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900.

In Panama Railroad Co. v. Vasquez, 271 U. S. 557, 46 S. Ct. 596, 70 L. Ed. 1085, June 7, 1926, Justice Yan Devanter for the court, said: “ * * * An action in personam to recover damages for tort is one of the most familiar of the common-law remedies ; and it is such a remedy at law that is contemplated by amended section 20 of the Seaman’s Act. * * * ” Eor full elucidation, see Panama Rd. Co. v. Vasquez, supra.

This being a libel in rem, we are not concerned with the relation of in personam actions in admiralty or at common law with relation to section 33 of the Merchant Marine Act, supra.

The exception is sustained.

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17 F.2d 526, 1926 U.S. Dist. LEXIS 1677, 1927 A.M.C. 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-president-madison-wawd-1926.

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