It is generally accepted law that in all matters relating to the 'internal management or discipline' of a ship the law of the flag controls. Where states, not nations, are involved the law of the domicile of the vessel is equivalent to the law of the flag, but the limitation of the rule is clear and definite and recognized in every case in which the rule has been discussed. If the subject matter of the action arises out of an act within the field of navigation then the rule does not apply because that is a field involving the 'peace, dignity and tranquility' of the state in whose waters the accident occurred. The 'safe place' theory urged by the libellant, even assuming it to be applicable to the Baltimore and Ohio, a third party, must be understood within the limitation of the rule just stated and means a 'safe place' so far as the structure, gear, machinery, etc., of the ship are concerned. Otherwise it would nullify the accepted rule in every collision case. While the accident in the present case was not a violation of any rule of navigation of the State of New Jersey, it was caused by the external management of the vessel in territorial waters and, if not technically a collision in the strictest sense, was actually caused by the violent impact of one vessel upon another.
The special rule of Thompson Towing & Wrecking Ass'n v. M'Gregor, supra, not being applicable, general principles of conflict of laws control. 'The law of the place of wrong governs the right of action for death.' 'The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place.' Restatement, Conflict of Laws, Sections 391 and 377. The 'last event' was the submerging of the forecastle, from which the drowning of Hickman resulted. Rundell v. La Compagnie Generale Transatlantique, 7 Cir., 100 F. 655.
The New Jersey statutes give two separate and distinct causes of action for tort causing death. The death statute, N.J.S.A. 2:47-1 et seq., provides for damages for pecuniary loss resulting to the widow, husband or next of kin. It can be brought only by an administrator ad prosequendum. The present suit is brought by a general administrator but, even if an administrator ad prosequendum could now be substituted, it would not help the plaintiff very much because the measure of damages would be the same as under the Jones Act. The New Jersey survival statute allows a recovery to the estate as distinguished from the beneficiaries only for loss that accrued between the injury and the death. N.J.S.A. 2:26-9. Soden v. Trenton Tract Corporation, 101 N.J.L. 393, 127 A. 558; Prudential Ins. Co. v. Laval, 131 N.J.Eq. 23, 23 A.2d 908, 913. 'It is in the interval between injury and death only that loss can accrue to the estate, and in that alone is the personal representative interested.' Prudential Ins. Co. v. Laval, supra. In the present case there could be no recovery for anything other than pain and suffering. Under the New Jersey survival statute the action is properly brought by the general administrator.
VI. Recovery against Taylor and Anderson is limited to (1) loss to the father and mother of pecuniary benefits and (2) damages for pain and suffering.
As a further fact finding, I fix the damages as follows: Pecuniary loss sustained by the beneficiaries through the death, $ 4,000. Compensation for pain and suffering, $ 1,000. Total, $ 5,000.
VII. The plaintiff is entitled to judgment against the defendant, Taylor and Anderson, in the amount of $ 5,000.
VIII. The defendant, Baltimore and Ohio, is entitled to judgment in its favor.
IX. The petition of the defendant, Taylor and Anderson, to amend their answer to plead the defense of limitation of liability is denied on the grounds of (1) laches and (2) privity.
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