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.
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 III)
(We left off with a quote by Justice Holms and now continue with Whitelock’s response.)
The far-reaching significance to the Oceanic Steam Navigation Company of this preliminary victory will be appreciated when it is noted that the application of the British standard of limitation of liability – fifteen pounds per gross ton – would have provided for distribution among claimants a fund of $2,500,000, as against the trivial sum of $91,805.54, thus determined to be the limit of liability if the owner of the Titanic is in fact entitled to limit its responsibility – an issue not yet decided by the American Courts, and whose determination depends on proofs to be hereafter adduced. Thus far the Supreme Court has merely sustained the Company’s contention that the American statute and not the British will furnish the gauge of the amount for distribution, provided the Company is not precluded by the conditions of the American law from availing itself of the right of limitation. It is to be borne in mind that the right of a shipowner to limit liability under the Act of Congress is predicated on the fact that the negligent act committed was done without his privity or knowledge. In the case of a corporation, the privity or knowledge of the president, or other high officer, would of course be the privity or knowledge of the corporation itself, and would defeat its right to the exemption. Here the Company has appropriately alleged in its petition that “the collision aforesaid and the loss, damage, injury and destruction resulting therefrom were due to inevitable accident, and were not caused or contributed to by any negligence or fault on the part of the petitioner, or of those in charge of the steamship Titanic, and were occasioned and incurred without the privity or knowledge of the petitioner.” But if it be ultimately established that the Compnay itself was at fault, and that the accident in fact occurred with its privity and knowledge, then the Company’s petition must be dismissed, and in such event its liability will be unlimited. The press of New York is authority for the statement of one of counsel for the claimants, made since the decision at Washington, that the claimants will contend that there was not only negligence in the navigation of the Titanic, but that J. Bruce Ismay, the executive head of the Company, knew of the dangers, was privy to them and nevertheless permitted the vessel to continue her course and speed. It is hardly necessary to say that the Company, on the other hand, expressly “claims exemption from liability, as owner of the steamship Titanic, for the losses, damages, injuries, and destruction occasioned or incurred by the collision and sinking aforesaid, and for the claims for damages that have been made, or hereafter may be made, and it alleges that it has valid defenses thereto on the facts and under the provisions of the contracts for the carriage of the cargo and of the passengers and their baggage.”
(To be continued in Part V of George Whitelock’s Response to Mellor.)
Wednesday, July 15, 2009
Sunday, June 21, 2009
George Whitelock's Response to Mellor - Part III
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.
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 II)
Mr. Justice Holmes said in the course of a luminous and scholarly judgment delivered by him on behalf of the Supreme Court (Mr. Justice McKenna alone dissenting) that:
“It is true that the Act of Congress does not control or profess to control the conduct of a British ship on the high seas. It is true that the foundation for a recovery upon a British tort is an obligation created by British law. But it also is true that the laws of the forum may decline altogether to enforce that obligation on the ground that it is contrary to the domestic policy, or may decline to enforce it except within such limits as it may impose. It is competent, therefore, to Congress to enact that in certain matters belonging to admiralty jurisdiction parties resorting to our Courts shall recover only to such extent or in such way as it may mark out. The question is not whether the owner of the Titanic by this proceeding can require all claimants to come in and can cut down rights vested under English law, as against, for instance, Englishmen living in England who do not appear. It is only whether those who do see fit to sue in this country are limited in their recovery irrespective of the English law. That they are so limited results in our opinion from the decisions of the Court.
It is not necessary to consider whether the Act of Congress may not limit the rights of shippers or American vessels to recover for injuries in our waters or on the high seas, so that if they sued in a foreign court they could not be allowed to recover more than the Act allows if our construction of the law were followed. A law that limits a right in one case may limit a remedy in another. This statute well might be held to announce a general policy, governing both obligations that arise within the jurisdiction and suits that are brought in the Courts of the United States. It clearly limits the remedy, as we have shown, in cases where it has nothing to say about the rights.
We see no absurdity in supposing that if the owner of the Titanic were sued in different countries, each having a different rule affecting the remedy there, the local rule would be applied in each case. It can be imagined that in consequence of such diverse proceedings, the owner might not be able to comply with the local requirements for limitation, as it also is conceivable that if it sought the advantage of an alien law it might as a condition have to pay more than its liability under the law of its flag in some cases. But the imagining of such possible difficulties is no sufficient reason for not applying the statute as it has been construed; on the whole, it would seem with good effect.”
(To be continued in Part IV of Whitelock's Response to Mellor.)
To read Part II, please see blog entry dated June 11, 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 II)
Mr. Justice Holmes said in the course of a luminous and scholarly judgment delivered by him on behalf of the Supreme Court (Mr. Justice McKenna alone dissenting) that:
“It is true that the Act of Congress does not control or profess to control the conduct of a British ship on the high seas. It is true that the foundation for a recovery upon a British tort is an obligation created by British law. But it also is true that the laws of the forum may decline altogether to enforce that obligation on the ground that it is contrary to the domestic policy, or may decline to enforce it except within such limits as it may impose. It is competent, therefore, to Congress to enact that in certain matters belonging to admiralty jurisdiction parties resorting to our Courts shall recover only to such extent or in such way as it may mark out. The question is not whether the owner of the Titanic by this proceeding can require all claimants to come in and can cut down rights vested under English law, as against, for instance, Englishmen living in England who do not appear. It is only whether those who do see fit to sue in this country are limited in their recovery irrespective of the English law. That they are so limited results in our opinion from the decisions of the Court.
It is not necessary to consider whether the Act of Congress may not limit the rights of shippers or American vessels to recover for injuries in our waters or on the high seas, so that if they sued in a foreign court they could not be allowed to recover more than the Act allows if our construction of the law were followed. A law that limits a right in one case may limit a remedy in another. This statute well might be held to announce a general policy, governing both obligations that arise within the jurisdiction and suits that are brought in the Courts of the United States. It clearly limits the remedy, as we have shown, in cases where it has nothing to say about the rights.
We see no absurdity in supposing that if the owner of the Titanic were sued in different countries, each having a different rule affecting the remedy there, the local rule would be applied in each case. It can be imagined that in consequence of such diverse proceedings, the owner might not be able to comply with the local requirements for limitation, as it also is conceivable that if it sought the advantage of an alien law it might as a condition have to pay more than its liability under the law of its flag in some cases. But the imagining of such possible difficulties is no sufficient reason for not applying the statute as it has been construed; on the whole, it would seem with good effect.”
(To be continued in Part IV of Whitelock's Response to Mellor.)
Thursday, June 11, 2009
George Whitelock's Response to Mellor - Part II
To read from the beginning, please see blog entry dated June 9, 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 I)
When the Titanic sank at sea in collision with an iceberg, the vessel had never been in a port of the United States. In such circumstances, the Court of first instance at New York denied all right of the Company to limit its liability under American law. The point had been taken by claimants at the very outset that upon the facts shown in the petition itself, the petitioner’s right of limitation, if it existed at all, was that granted by the terms of the British statute conferring a right of limitation and not by the American. And on April 21, 1913, Judge Holt then sitting, it was held below that three universal principals were decisive against the limitation claimed by the British Company under American law. Those principles were, the Judge said: (1) The rule that the law of no nation has any extra-territorial effect; (2) The rule that a ship on the high seas is a part of the country to which she belongs; (3) The rule that liability for a tort is governed by the lex loci delicti.
The Supreme Court of the United States has reached in its recent decision an entirely different conclusion than Judge Holt, the Court of final appeal holding that the owner of a British vessel can legally maintain such proceedings under American law in case of disaster upon the high seas where only that vessel is concerned, although there are claimants of many different nationalities; and further ruling that this right of limitation exists where there is nothing before the American Court to show what, if any, is the British law, touching the owner’s liability for the disaster, as well as where it affirmatively appears in such a case that the British law makes a provision for limitation of liability on terms and conditions different from those afforded by the American statutes.
In consequence of these views it was decided that the Courts of the United States will in such proceedings to limit the owner’s liability, enforce the American law and will not enforce the law of Great Britain.
(To be continued in Part III of George Whitelock’s Response to Mellor.)
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 I)
When the Titanic sank at sea in collision with an iceberg, the vessel had never been in a port of the United States. In such circumstances, the Court of first instance at New York denied all right of the Company to limit its liability under American law. The point had been taken by claimants at the very outset that upon the facts shown in the petition itself, the petitioner’s right of limitation, if it existed at all, was that granted by the terms of the British statute conferring a right of limitation and not by the American. And on April 21, 1913, Judge Holt then sitting, it was held below that three universal principals were decisive against the limitation claimed by the British Company under American law. Those principles were, the Judge said: (1) The rule that the law of no nation has any extra-territorial effect; (2) The rule that a ship on the high seas is a part of the country to which she belongs; (3) The rule that liability for a tort is governed by the lex loci delicti.
The Supreme Court of the United States has reached in its recent decision an entirely different conclusion than Judge Holt, the Court of final appeal holding that the owner of a British vessel can legally maintain such proceedings under American law in case of disaster upon the high seas where only that vessel is concerned, although there are claimants of many different nationalities; and further ruling that this right of limitation exists where there is nothing before the American Court to show what, if any, is the British law, touching the owner’s liability for the disaster, as well as where it affirmatively appears in such a case that the British law makes a provision for limitation of liability on terms and conditions different from those afforded by the American statutes.
In consequence of these views it was decided that the Courts of the United States will in such proceedings to limit the owner’s liability, enforce the American law and will not enforce the law of Great Britain.
(To be continued in Part III of George Whitelock’s Response to Mellor.)
Tuesday, June 9, 2009
George Whitelock's Response to Mellor - Part I
In Oceanic Steam Navigation Company, Limited, as Owner of the Steamship Titanic v. Mellor, the Supreme Court answered the following three questions certified to the Court by the United States Court of Appeals for the Second Circuit – 1) whether an owner of a vessel of British nationality, involved in a collision that gave rise to claimants of many different nationalities, was entitled to maintain a proceeding to limit its liability, 2) whether the owner was able to maintain such a proceeding in the United States if the law of the foreign country to which the vessel belonged made provision for limitation upon different terms, and 3) if the answer to the second question was in the affirmative, whether the courts of the United States enforced the law of the United States or of the foreign country. The Supreme Court answered “yes” to the first two questions. Regarding the third question, the Court answered that the laws of the United States were to be enforced because limitation of the owner’s liability was considered to be remedial in nature.
Oceanic Steam Navigation Company, Limited, as Owner of the Steamship Titanic v. Mellor, 233 U.S. 718 (1914).
In upcoming blog entries, beginning with this one, I’ll transcribe George Whitelock’s response to the decision, first published in the American Law Review in 1915. George Whitelock served as Chairman of the Special Committee to Present Bills to Congress Relating to Courts of Admiralty. (I’ll be transcribing one of the Committee’s recommendations in an upcoming blog entry.)
George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).
Damages For Death By Negligence At Sea – The Titanic
A recent decision of the Supreme Court of the United States (May, 1914) concerning the loss of the Titanic (233 U.S. 718) induces an extension of my remarks on recovery of damages for death by negligence at sea submitted to the International Law Association six years ago. The profound and universal interest in that awful tragedy is the justification for additional comment.
It will be recalled that the existing law of the United States confers no right of civil recovery for loss of life by negligence on the high seas. Derived from the common law of England, the archaic principle that there can be no pecuniary recompense for the death of a human being still prevails, unless abrogated by statute, in all jurisdictions in which that system of law is operative. Decisions by the United States Supreme Court in 1907 and 1908 caused a statement of my views on such damages to the meeting at Buda-Pesth [sic]. The cases in point were The Hamilton (207 U.S. 398), an American steamer, and La Bourgogne (210 U.S. 95), a French vessel. Each case arose out of a surrender by the shipowner of the remains of his property after collision, together with the freight pending, the purpose of the suits being a limitation of the shipowner’s liability under the provisions of the Act of 1851 of the American Congress. These decisions were a definite advance in the application of extra-territorial law to extra-territorial marine torts. But death claimants having been merely admitted to participation in funds voluntarily paid into Court by shipowners under statutory proceedings to limit their liability, the cases are not authority for the maintenance of direct suit to recover for death by negligence at sea.
Litigation in America concerning the loss of the Titanic on April 14, 1912, has now assumed the same form as the litigation concerning The Hamilton and the litigation concerning La Bourgogne, in which the above mentioned decisions were respectively rendered. The Oceanic Steam Navigation Company, Limited, owner of the Titanic, and a British corporation, has undertaken by petition in the American admiralty to limit its liability under American law to $91, 805.54, an amount representing the aggregate of salved property and freight pending, the claims asserted against the Company in actions for loss of life and personal injuries in the Courts of America running into the millions. By the Company’s own petition it is asserted that the steamship Titanic was a total loss, and that nothing was saved from the wreck except 13 lifeboats, together with their equipment, and one collapsible boat, which was subsequently picked up by the steamship Oceanic and brought to New York.
(To be continued in Part II of George Whitelock’s Response to Mellor)
Oceanic Steam Navigation Company, Limited, as Owner of the Steamship Titanic v. Mellor, 233 U.S. 718 (1914).
In upcoming blog entries, beginning with this one, I’ll transcribe George Whitelock’s response to the decision, first published in the American Law Review in 1915. George Whitelock served as Chairman of the Special Committee to Present Bills to Congress Relating to Courts of Admiralty. (I’ll be transcribing one of the Committee’s recommendations in an upcoming blog entry.)
George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).
Damages For Death By Negligence At Sea – The Titanic
A recent decision of the Supreme Court of the United States (May, 1914) concerning the loss of the Titanic (233 U.S. 718) induces an extension of my remarks on recovery of damages for death by negligence at sea submitted to the International Law Association six years ago. The profound and universal interest in that awful tragedy is the justification for additional comment.
It will be recalled that the existing law of the United States confers no right of civil recovery for loss of life by negligence on the high seas. Derived from the common law of England, the archaic principle that there can be no pecuniary recompense for the death of a human being still prevails, unless abrogated by statute, in all jurisdictions in which that system of law is operative. Decisions by the United States Supreme Court in 1907 and 1908 caused a statement of my views on such damages to the meeting at Buda-Pesth [sic]. The cases in point were The Hamilton (207 U.S. 398), an American steamer, and La Bourgogne (210 U.S. 95), a French vessel. Each case arose out of a surrender by the shipowner of the remains of his property after collision, together with the freight pending, the purpose of the suits being a limitation of the shipowner’s liability under the provisions of the Act of 1851 of the American Congress. These decisions were a definite advance in the application of extra-territorial law to extra-territorial marine torts. But death claimants having been merely admitted to participation in funds voluntarily paid into Court by shipowners under statutory proceedings to limit their liability, the cases are not authority for the maintenance of direct suit to recover for death by negligence at sea.
Litigation in America concerning the loss of the Titanic on April 14, 1912, has now assumed the same form as the litigation concerning The Hamilton and the litigation concerning La Bourgogne, in which the above mentioned decisions were respectively rendered. The Oceanic Steam Navigation Company, Limited, owner of the Titanic, and a British corporation, has undertaken by petition in the American admiralty to limit its liability under American law to $91, 805.54, an amount representing the aggregate of salved property and freight pending, the claims asserted against the Company in actions for loss of life and personal injuries in the Courts of America running into the millions. By the Company’s own petition it is asserted that the steamship Titanic was a total loss, and that nothing was saved from the wreck except 13 lifeboats, together with their equipment, and one collapsible boat, which was subsequently picked up by the steamship Oceanic and brought to New York.
(To be continued in Part II of George Whitelock’s Response to Mellor)
Sunday, May 31, 2009
So Many (Valid) Interests . . . So Little Time
Below, you’ll find a link to the transcript of the hearing held before the Committee on Merchant Marine and Fisheries, held on October 29, 1985, on the issue of the R.M.S. Titanic Memorial Act. I found it interesting that the chairman felt the need to hold a separate hearing due to the fact that the wreck of the Titanic was of “ . . . such unique significance as to merit its own hearing.” The Committee heard arguments from a variety of people, both “pro-salvage” and “anti-salvage”. Among the persons testifying were Dr. Robert Ballard who, along with scientists and engineers on a joint expedition which included the United States and France, discovered the wreck in 1985; Jon Hollis of the Titanic Historical Society, Mrs. Louis Pope (survivor), Jack Grimm, William B.F. Ryan, John P. Lee, Nancy Foster (NOAA), Brian J. Hoyle (U.S. Dept. of State), and Frank L. Wiswall, Jr. (admiralty attorney). (Also included in the transcript is a rather lengthy statement by Captain W.F. Searle, Jr., USN (Retired), Chairman, Searle Consultants, Ltd., which I have not read.) It’s a bit dry in places, depending on your interests, but an interesting read overall.
Dr. Ballard’s testimony focused on the research that led to the development of the instruments/instrument systems that were used in locating the wreck, his initial focus when engaging in underwater exploration, the difficulties one faces when exploring the deep sea, the technology utilized to find the wreck, strategy used when searching for the wreck, how the effort was funded, the scientific importance of the discovery of the wreck, and the effect the Titanic has had on him personally. He also talked about the first passes over the ship, which was interesting. In his statement, he makes clear his feelings that the wreck should not be salvaged (although he is in favor of the recovery of artifacts outside the hull of the ship), gives credit to the French for their contributions, and suggests that it is France that should be the first nation approached in establishing an international agreement with other nations concerning the Titanic, among other suggestions.
Jon Hollis begins by presenting the history of the Titanic Historical Society, benefits to members, its goals, and the number and variety of projects in which it is involved. Mr. Hollis considers the site a graveyard, and asks on behalf of the Titanic Historical Society that the Committee decree the site a memorial site. He presented to the committee a number of letters from a commercial salvager who, despite being a salvager, feels that the Titanic should not be salvaged, as well as letters from noted marine authors and maritime artifact collectors and sellers, and survivors and families of victims. (Letters from Peter Gimbel, Joan and Ted Hindmarsh, Robert Cambrola, George Thomas – survivor, Marilyn Powers for Caroline Horvath – survivor, John Malcolm Brinnin, and Becky McElroy are included in the transcript.) He suggests that an amendment be added to the bill to prevent the commercial sale of any artifact retrieved from the wreck site, as well as the retrieval of artifacts for personal collection or gain. He asks how one would feel if it were their relative who had died in the sinking, which I found to be quite thought provoking and an interesting read.
Mrs. Louis Pope, a survivor of the sinking from Milwaukee, Wisconsin, testified next. She was four years old at the time of the sinking, and what she knows of it is what her mother told her. All she remembers was the cotton blanket and the shoes on her feet. Her testimony is very short, but interesting nonetheless.
Jack Grimm testified next. Grimm, along with his associates, were in favor of the bill with the exception of one part – that is the portion of the bill restricting access to the wreck without prior government approval. Grimm begins his testimony by talking about his contribution to ocean sciences and the government. He also talked a bit about his trips to the wreck site, which was interesting.
William B.F. Ryan, who is an associate professor at Columbia University and who has worked closely with Grimm, testified as to the activities of the Texas corporations with regard to the Titanic, and pointed out that they had paid careful attention to the legal jurisdictional issues involved. In his report, he questions whether a bill of Congress enacted into law is “ . . . the appropriate vehicle for establishment of a sanctuary status.” He gives a number of reasons for this argument that are worth reading. He also talks in some detail about the three expeditions to the wreck site, taking place in 1980, 1981, and 1983. There is quite a bit more information in his statement, which I have not yet read in its entirety, as it’s quite lengthy, and I simply haven’t had the time.
John. P. Lee, Jack Grimm’s attorney, testified that they were concerned that, after all the time and money they had invested up to this point, they would be limited or restricted in what they consider their right to explore and do research on Titanic, given that it is laying in international waters and, in his opinion, outside the jurisdiction of the United States. They are also concerned with the fact that people from the United States will be prohibited from going to the wreck site while those from other nations go down to the wreck site and perform research and possible salvage activities.
I think it’s important to note that, in addressing Mr. Lee, the chairman made it clear that the legislation would not be binding until it was also implemented by the other nations involved. He made it clear that an international agreement was called for, and there was quite a bit of discussion on this.
Nancy Foster (NOAA) was the next to testify, and focused her attention on the NOAA’s experience in protecting shipwrecks.
Brian J. Hoyle, of the U.S. Departement of State testified next, emphasizing the importance of working with other nations to reach the goals set out. He also spoke about Canada and jurisdictional issues, which I found interesting, and that the administration agrees with Grimm’s concern over regulation, but understands the need for basic regulation.
Frank L. Wiswall, Jr., an admiralty attorney, then testified. Because it was the end of the day, most of his testimony was entered by way of his written statement. He pointed out that, currently, the only law in the United States that applied to the wreck was admiralty law. He recommends the International Maritime Organzation as an appropriate forum for negotiation (among others such as UNESCO and the General Assemby of the United Nations) and the main purpose of his testimony is to encourage the Committee to do so. In fact, he points out, the International Maritime Organization can be traced directly to the disaster. His written statement is filled with information on SOLAS and is an interesting read.
Although he didn’t testify, Dr. Robert L. Scheina, a U.S. Coast Guard Historian with the U.S. Coast Guard, submitted testimony by way of a written statement. In it, he talks about the extent to which the sinking influenced maritime legislation and regulation. He talks about the International Ice Patrol as well. It’s a bit much to summarize, but worth the read as it contains a lot of good information.
Rear Admiral John B. Mooney, USN, Chief of Naval Research, also submitted a prepared statement focusing on the Navy’s role in the discovery of the Titanic. Again, it’s a bit much to summarize, but worth reading.
Also worth a look is a statement prepared by Charles Ira Sachs, of the Oceanic Navigation Research Society, and a statement prepared by Fay Coutts Blettner, whose father, grandmother, and uncle were survivors of the sinking.
http://www.gc.noaa.gov/documents/hr3272-house_merchant_hearing.pdf
Dr. Ballard’s testimony focused on the research that led to the development of the instruments/instrument systems that were used in locating the wreck, his initial focus when engaging in underwater exploration, the difficulties one faces when exploring the deep sea, the technology utilized to find the wreck, strategy used when searching for the wreck, how the effort was funded, the scientific importance of the discovery of the wreck, and the effect the Titanic has had on him personally. He also talked about the first passes over the ship, which was interesting. In his statement, he makes clear his feelings that the wreck should not be salvaged (although he is in favor of the recovery of artifacts outside the hull of the ship), gives credit to the French for their contributions, and suggests that it is France that should be the first nation approached in establishing an international agreement with other nations concerning the Titanic, among other suggestions.
Jon Hollis begins by presenting the history of the Titanic Historical Society, benefits to members, its goals, and the number and variety of projects in which it is involved. Mr. Hollis considers the site a graveyard, and asks on behalf of the Titanic Historical Society that the Committee decree the site a memorial site. He presented to the committee a number of letters from a commercial salvager who, despite being a salvager, feels that the Titanic should not be salvaged, as well as letters from noted marine authors and maritime artifact collectors and sellers, and survivors and families of victims. (Letters from Peter Gimbel, Joan and Ted Hindmarsh, Robert Cambrola, George Thomas – survivor, Marilyn Powers for Caroline Horvath – survivor, John Malcolm Brinnin, and Becky McElroy are included in the transcript.) He suggests that an amendment be added to the bill to prevent the commercial sale of any artifact retrieved from the wreck site, as well as the retrieval of artifacts for personal collection or gain. He asks how one would feel if it were their relative who had died in the sinking, which I found to be quite thought provoking and an interesting read.
Mrs. Louis Pope, a survivor of the sinking from Milwaukee, Wisconsin, testified next. She was four years old at the time of the sinking, and what she knows of it is what her mother told her. All she remembers was the cotton blanket and the shoes on her feet. Her testimony is very short, but interesting nonetheless.
Jack Grimm testified next. Grimm, along with his associates, were in favor of the bill with the exception of one part – that is the portion of the bill restricting access to the wreck without prior government approval. Grimm begins his testimony by talking about his contribution to ocean sciences and the government. He also talked a bit about his trips to the wreck site, which was interesting.
William B.F. Ryan, who is an associate professor at Columbia University and who has worked closely with Grimm, testified as to the activities of the Texas corporations with regard to the Titanic, and pointed out that they had paid careful attention to the legal jurisdictional issues involved. In his report, he questions whether a bill of Congress enacted into law is “ . . . the appropriate vehicle for establishment of a sanctuary status.” He gives a number of reasons for this argument that are worth reading. He also talks in some detail about the three expeditions to the wreck site, taking place in 1980, 1981, and 1983. There is quite a bit more information in his statement, which I have not yet read in its entirety, as it’s quite lengthy, and I simply haven’t had the time.
John. P. Lee, Jack Grimm’s attorney, testified that they were concerned that, after all the time and money they had invested up to this point, they would be limited or restricted in what they consider their right to explore and do research on Titanic, given that it is laying in international waters and, in his opinion, outside the jurisdiction of the United States. They are also concerned with the fact that people from the United States will be prohibited from going to the wreck site while those from other nations go down to the wreck site and perform research and possible salvage activities.
I think it’s important to note that, in addressing Mr. Lee, the chairman made it clear that the legislation would not be binding until it was also implemented by the other nations involved. He made it clear that an international agreement was called for, and there was quite a bit of discussion on this.
Nancy Foster (NOAA) was the next to testify, and focused her attention on the NOAA’s experience in protecting shipwrecks.
Brian J. Hoyle, of the U.S. Departement of State testified next, emphasizing the importance of working with other nations to reach the goals set out. He also spoke about Canada and jurisdictional issues, which I found interesting, and that the administration agrees with Grimm’s concern over regulation, but understands the need for basic regulation.
Frank L. Wiswall, Jr., an admiralty attorney, then testified. Because it was the end of the day, most of his testimony was entered by way of his written statement. He pointed out that, currently, the only law in the United States that applied to the wreck was admiralty law. He recommends the International Maritime Organzation as an appropriate forum for negotiation (among others such as UNESCO and the General Assemby of the United Nations) and the main purpose of his testimony is to encourage the Committee to do so. In fact, he points out, the International Maritime Organization can be traced directly to the disaster. His written statement is filled with information on SOLAS and is an interesting read.
Although he didn’t testify, Dr. Robert L. Scheina, a U.S. Coast Guard Historian with the U.S. Coast Guard, submitted testimony by way of a written statement. In it, he talks about the extent to which the sinking influenced maritime legislation and regulation. He talks about the International Ice Patrol as well. It’s a bit much to summarize, but worth the read as it contains a lot of good information.
Rear Admiral John B. Mooney, USN, Chief of Naval Research, also submitted a prepared statement focusing on the Navy’s role in the discovery of the Titanic. Again, it’s a bit much to summarize, but worth reading.
Also worth a look is a statement prepared by Charles Ira Sachs, of the Oceanic Navigation Research Society, and a statement prepared by Fay Coutts Blettner, whose father, grandmother, and uncle were survivors of the sinking.
http://www.gc.noaa.gov/documents/hr3272-house_merchant_hearing.pdf
Tuesday, May 26, 2009
This Marriage Is Sunk
I thought I’d begin this blog by summarizing a case I find rather amusing, brought to us courtesy of the Court of Appeals of Ohio, First Appellate District, Hamilton County. It seems Ms. Nadine Proctor made an attempt to use the sinking as a means to having her divorce decree vacated, but the court wasn’t buying it.
Percy and Nadine Procter were married in London in 1909. Percy subsequently brought a petition for divorce against Nadine, personal service was made on her, after which she filed an answer admitting the marriage, but denying all other allegations of the petition. A decree of divorce was granted to Percy after the case was tried in the common pleas court in Nadine’s absence. The Court also found that, by reason of a written agreement entered into by Nadine and Percy, she was not entitled to any alimony. Approximately seven months after the decree was entered (which was on June 8, 1912), Nadine filed a petition to vacate the decree (on January 4, 1913, to be exact).
In her petition to vacate the decree, Nadine claimed she was unable to attend the trial due to “unavoidable casualty and misfortune” because it was necessary for her to return to Europe after the summons was served to attend to business matters. Further, she claimed she made arrangements with attorneys, whom she didn’t name, to see to it that the case was not tried until her return. When she received notice of the upcoming trial, Nadine claimed she left Europe on Titanic.
After Titanic hit the iceberg, Nadine claimed she became severely injured while being lowered into a lifeboat, and that she was so shocked by being out in the middle of the ocean, that she became unconscious and remained so until waking up in a hospital in London, where she remained until traveling, on May 12, to Russia where her mother lived. She then sailed for the United States and arrived on August 15, 1912, aboard the steamship President Lincoln to find that a decree had been entered in her case the preceding June.
Nadine was relying on a section of the General Code, which empowers the common pleas court to vacate or modify a judgment or order “for unavoidable casualty or misfortune, preventing the party from prosecuting or defending.” The court points out the code authorizes the setting aside of a judgment for unavoidable casualty or misfortune only when it is of such a character as prevents the party from prosecuting or defending, not when it only prevents a person from attending a trial in person.
The court notes she could have given her deposition while in London in May of 1912 and filed it in the common please court of Hamilton County before the decree was rendered on June 8, 1912, because she was able to travel from London to St. Petersburg during that time. They also point out that it would be inconceivable for the court to have denied her a delay if she had, indeed, been a survivor of the sinking and had asked for one. They also note she had failed to employ counsel after summons had been served on her, among other things. Finally, the court wonders the following –
“If it be true as she avers, and the truth of the averment must be assumed for the purposes of this case, that she was a passenger on the steamship Titanic at the time it collided with an iceberg, then the query naturally arises how she came to be thereafter in a hospital in London, in view of what is said to be well-known current history that the survivors of that shipwreck were picked up at sea by a steamer which landed them at an American port.”
Hmmmmm . . .
Procter v. Procter, 245 Ohio App., 245 (1915).
Percy and Nadine Procter were married in London in 1909. Percy subsequently brought a petition for divorce against Nadine, personal service was made on her, after which she filed an answer admitting the marriage, but denying all other allegations of the petition. A decree of divorce was granted to Percy after the case was tried in the common pleas court in Nadine’s absence. The Court also found that, by reason of a written agreement entered into by Nadine and Percy, she was not entitled to any alimony. Approximately seven months after the decree was entered (which was on June 8, 1912), Nadine filed a petition to vacate the decree (on January 4, 1913, to be exact).
In her petition to vacate the decree, Nadine claimed she was unable to attend the trial due to “unavoidable casualty and misfortune” because it was necessary for her to return to Europe after the summons was served to attend to business matters. Further, she claimed she made arrangements with attorneys, whom she didn’t name, to see to it that the case was not tried until her return. When she received notice of the upcoming trial, Nadine claimed she left Europe on Titanic.
After Titanic hit the iceberg, Nadine claimed she became severely injured while being lowered into a lifeboat, and that she was so shocked by being out in the middle of the ocean, that she became unconscious and remained so until waking up in a hospital in London, where she remained until traveling, on May 12, to Russia where her mother lived. She then sailed for the United States and arrived on August 15, 1912, aboard the steamship President Lincoln to find that a decree had been entered in her case the preceding June.
Nadine was relying on a section of the General Code, which empowers the common pleas court to vacate or modify a judgment or order “for unavoidable casualty or misfortune, preventing the party from prosecuting or defending.” The court points out the code authorizes the setting aside of a judgment for unavoidable casualty or misfortune only when it is of such a character as prevents the party from prosecuting or defending, not when it only prevents a person from attending a trial in person.
The court notes she could have given her deposition while in London in May of 1912 and filed it in the common please court of Hamilton County before the decree was rendered on June 8, 1912, because she was able to travel from London to St. Petersburg during that time. They also point out that it would be inconceivable for the court to have denied her a delay if she had, indeed, been a survivor of the sinking and had asked for one. They also note she had failed to employ counsel after summons had been served on her, among other things. Finally, the court wonders the following –
“If it be true as she avers, and the truth of the averment must be assumed for the purposes of this case, that she was a passenger on the steamship Titanic at the time it collided with an iceberg, then the query naturally arises how she came to be thereafter in a hospital in London, in view of what is said to be well-known current history that the survivors of that shipwreck were picked up at sea by a steamer which landed them at an American port.”
Hmmmmm . . .
Procter v. Procter, 245 Ohio App., 245 (1915).
Sunday, May 24, 2009
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