George Whitelock's Response to Mellor - Part VI (final part)

To read from the beginning, please see blog entry dated June 9, 2009.
To read Part II, please see blog entry dated June 11, 2009.
To read Part III, please see blog entry dated June 21, 2009.
To read Part IV, please see blog entry dated July 15, 2009.
To read Part V, please see blog entry dated August 8, 2009.

This article may be read in its entirety at George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).

(continued from Part V)

Now the issue of negligence vel non not having been yet adjudicated in America, what then may result to the death claims if the Company presses its petition for limitation of liability under American law? To repeat: A statute has never been adopted by the American Congress for recovery of damages for loss of life by negligence on the high seas, and no present right of recovery therefore exists either by the general maritime law of the United States, or by federal statute. If the fund of $91,805.54 is finally distributed under the petition of the Oceanic Steam Navigation Company, Ltd., the cases of The Hamilton and La Bourgogne will be controlling authority to admit the death claimants to participation therein.

But if, on the other hand, the application to limit the liability of the Company is finally disallowed because of the Company’s own negligence, will there be any redress at all for the death claimants? They cannot, as shown, recover under American law; and the period of time limitation under Lord Campbell’s Act will preclude the institution of new suits in England. Will American Judges relieve the asperity of the law of their own forum by applying for the benefit of such claimants, in direct suits for damages, the law of the flag (that is, of Great Britain), as American Judges applied the law of France to the case of La Bourgogne in proceedings to limit liability? The future can alone determine. Thus far the Supreme Court has dealt only with the remedy; it has said nothing about rights. Its wisdom is indisputable in holding that persons who elect to sue in American Courts are limited in recovery by the American Statute irrespective of foreign enactment.

Two phases of existing law of the United States merit special comment here. First, the omission to provide a clear and direct right of recovery of damages for death by negligence at sea; secondly, the establishment of the present maximum of pecuniary liability as that of the value of salved property plus freight pending. The world disaster of the Titanic throws strong light on both of these propositions, and the necessity of reformatory legislation.

Six years ago I sought to demonstrate the need of a remedial statute by Congress to assimilate the law of the United States to that of Europe in respect of the right of dependants to recover damages for death of a relative by negligence at sea. It is not expedient to repeat my reasons here.

Since my original address was delivered at Buda-Pesth the Maritime Law Association of the United States and the American Bar Association have continued their earnest advocacy of the proposed reform, the arguments for which have been so tragically reinforced by the case of the Titanic. The American Congress seems at last aroused; and it is believed that the Peters Bill introduced on June 17, 1913, in the House of Representatives, and favorably reported with amendments from the Judiciary Committee on December 22, 1913, will be duly enacted as the law of the American Courts of Admiralty. It is entitled “A Bill Relating to the Maintenance of Actions for Death on the High Seas and other Navigable Waters.”

But it is obvious, I think, that neither the foreign law nor an American Statute can do adequate justice in American Courts so long as the standard established by the Act of 1851, furnishes the limit of a shipowner’s liability. The subject of the limitation thereof has been considered in international conference and the draft of an international convention has been already distributed. That draft looks to international unification of the rules relating to the limitation of shipowners’ liability in the case of sea-going vessels; the only method by which justice can be rendered both exact and uniform. In this reform, too, the Maritime Law Association of the United States is actively interesting itself. An able committee was appointed at its last meeting in New York on May 1, 1914, to consider the general subject of limitation of the liability of shipowners with special reference to the proposed draft convention and to report thereon to the Association. This great and salutary reform is at least in posse.

George Whitelock

(The text of the Peters Bill was also included in a footnote.)

George Whitelock's Response to Mellor - Part V

To read from the beginning, please see blog entry dated June 9, 2009.
To read Part II, please see blog entry dated June 11, 2009.
To read Part III, please see blog entry dated June 21, 2009.
To read Part IV, please see blog entry dated July 15, 2009.

This article may be read in its entirety at George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).

(continued from part IV)

But it may be here pertinently observed that while the issue of fact has not yet been determined in the Courts of America, a jury in England has already awarded damages for the death of four of he steerage passengers of the Titanic, having found negligence of the Company. The verdicts were rendered in the cases of Ryan et al. v. Oceanic Steam Navigation Company, brought under the provisions of the English Death Statute, called Lord Campbell’s Act. On review before the Court of Appeal upon application for a new trial, a re-hearing was refused and the appeals were dismissed on February 9, 1914. Lord Justice Vaughan Williams, speaking for the Appellate Court, said: “There was one question common to all these cases – namely, whether the loss of the Titanic was due to negligent navigation; and the jury found that it was.” Considering the question of negligence in fact, his Lordship further said that “there was no doubt that the Captain of the Titanic had diverted his course and adopted anther way of precaution to avoid ice of which he was warned by marconigrams from the Caronia and Baltic, but his Lordship thought it impossible to say that there was no evidence upon which the findings of negligence could be based, and added: “I think that the danger in this case was neither unforeseen or unforeseeable. There was warning, to my mind, of dangerous ice ahead, and the jury might reasonably come to the conclusion that in the circumstances a prudent master ought thereupon to have slowed down, or even to have stopped, and if the master failed to perform this duty he cannot say, ‘I am excused because the state of things which the ship afterwards encountered was unforeseen or unforeseeable,’ as the accident might not have happened if he had slowed down.”

And Lord Justice Kennedy, who also delivered judgment, arrived at the same conclusion that the appeals should be dismissed.

(To be continued in Part VI of George Whitelock’s Response to Mellor.)