The opinion of the court was delivered by: GOURLEY
This is an admiralty proceeding based on a maritime tort, arising out of an accident occurring June 19, 1957, on the inland waterways of Pennsylvania, instituted on behalf of the widow and three minor children, then ages five, three and two, for the death of the husband and father, who was drowned while performing his duty as a vessel pilot. The right to recover must be based on the Pennsylvania law for pecuniary loss to the wife and children under the Wrongful Death Statute, and for loss to the estate of the deceased under the Survival Statute.
Previous actions were filed in this Court against the owner of the vessel, the employer of the deceased, under the Jones Act based on the doctrine of negligence, and under the admiralty and maritime laws based on the doctrine of unseaworthiness,
and against the owner of the barge based on the doctrine of negligence and unseaworthiness.
The accident and death occurred on June 19, 1957, when the deceased, as a pilot of the vessel, was moving a barge from the wharf or dock of the respondent, which barge had been placed at said site for unloading of merchandise and commodities which were the property of the respondent. While the barge was being unloaded, it was found to be leaking or taking water and a pump was installed by the respondent to remedy the condition, which pump was removed after completion of the unloading. After the barge was unloaded, the respondent notified the owner of the barge that the unloading had been completed, and said owner, in turn, notified the owner of the vessel of which the deceased was the pilot to move the barge from respondent's wharf or dock. While in the act of returning the barge as directed by the owner and due to the barge being filled with water, the pilot was drowned when the barge caused the vessel to overturn.
The instant action was filed four years after the event, the accident having occurred on June 19, 1957, and suit instituted on June 3, 1961. Since the deceased was not employed by the respondent, the provisions of the Jones Act or the doctrine of unseaworthiness would lay no basis for a cause of action against the respondent. Recovery must be based on the legal thesis of a maritime tort in conjunction with statutory authority in the Commonwealth of Pennsylvania since no right of action for death exists in admiralty or the maritime law for a maritime tort.
Pennsylvania provides for an action for wrongful death for the pecuniary loss sustained by the widow and minor children if brought within a year after death. Pa.Stat.Ann. tit. 12, § § 1601-1603.
Pennsylvania has further provided that if death occurs as a result of a tortious act, an action may be filed on behalf of the deceased person for the benefit of his estate if brought within two years from the date of death. Pa.Stat.Ann. tit. 12, § 34; Pa.Stat.Ann. tit. 20, § § 320.601-320.613.
The question posed is: Where the action is not filed for a period of more than four years after the occurrence of the accident and death, is a maritime tort cause of action barred by the statute of limitations and/or the doctrine of laches?
After consideration of the arguments of counsel, the briefs and the pleadings of the parties, including the pleadings in Civil Action Nos. 16200, 16236 and 17666, which have been incorporated as part of the record of this proceeding, and after full and complete hearing in which the parties were afforded the right to present testimony, the Court concludes as follows:
A. The cause of action under the Wrongful Death Statute of Pennsylvania is barred by both the Pennsylvania Statute of Limitations and by the doctrine of laches in admiralty.
B. The cause of action under the Survival Statute is not barred by the Statute of Limitations in Pennsylvania, but is barred by the doctrine of laches in admiralty.
Where a cause of action is created by a state in behalf of those who suffered a pecuniary loss, the Court must enforce the state statute of limitations as an integrated whole, with whatever conditions and limitations the creating State has attached and the right is subject to the limitations which have been made a part of its existence. The liability and the remedy are created by the same statutes and the limitations of the remedy are, therefore, to be treated as limitations of the right. The Tungus v. Skovgoard, 358 U.S. 588, 79 S. Ct. 503, 3 L. Ed. 2d 524 (1959); Western Fuel Co v. Garcia, 257 U.S. 233, 42 S. Ct. 89, 66 L. Ed. 210 (1921).
Since the Pennsylvania Wrongful Death Statute created a new cause of action for surviving heirs of the decedent who suffered pecuniary loss by reason of the tortious death, said cause of action is barred by the Pennsylvania statute of limitations of one year.
Under the Survival Statute, the action is not a new cause of action, but merely continues in the personal representative of the dead person the right of action which accrued to the dead person at common law because of the tort. The damages recoverable are measured by the pecuniary loss occasioned to the dead ...