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Docket Number

No. 36-58.

Attorney(S)

Canales Segarra, Francisco Ponsa Feliu, Alberto Pico, Aurelio Torres Braschi, San Juan, P.R., for libellants. Hartzell, Fernandez Novas, San Juan, P.R., for respondents.

Judges

RUIZ-NAZARIO, District Judge.

Acts

Railroads — Liability For Injuries To Employees — Liability Of Common Carriers By Railroad, In Interstate Or Foreign Commerce, For Injuries To Employees From Negligence; Employee Defined

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Smart Summary

Summary of Opinion

Factual and Procedural Background

This is an admiralty suit brought under the Death on the High Seas By Wrongful Act statute, 46 U.S.C.A. § 761. Certain persons related to three decedents who allegedly perished in a common disaster on the high seas seek to exert the statutory right of action. The libellants are grouped by decedent: (1) the Fornaris group (father, widow, and children of Fernando Fornaris, Jr.), (2) the Molina group (mother, widow, and children of Antulio Guillermo Molina), and (3) the Rios-Algarin group (widow and children of Luis Rios Algarin). Respondents filed two exceptive allegations: generally that the libellants are not the personal representatives of the decedents, and specifically that respondent American Surety Company of New York is not a proper party because the federal statute does not provide a direct action against insurers. The Court considered these exceptions and addressed the procedural question of who may properly maintain the suit under § 761.

Legal Issues Presented

Whether the libellants as named (widows, children, parents) qualify as the "personal representative of the decedent" authorized to maintain an action under 46 U.S.C.A. § 761.
Whether a direct action may be maintained against an insurer (American Surety Company of New York) under the Death on the High Seas statute, or whether the insurer is an improper party respondent.

Arguments of the Parties

Respondents' Arguments

General contention that the libellants are not the personal representatives of the decedents and therefore lack the statutory right to sue under 46 U.S.C.A. § 761.
Particular contention that American Surety Company is not a proper party respondent because the federal statute does not provide a direct action against insurers and Puerto Rico's Insurance Code (26 L.P.R.A. 101 et seq.) is not applicable in admiralty.

The opinion does not contain a detailed account of the libellants' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Perez v. Successors of M. Perez Co., 41 P.R.R. 845	Under Puerto Rico law, children and widows may be considered personal representatives; authority for bringing an action by an administrator in certain exceptional cases.	Used to show that under Commonwealth law the relatives here are regarded as personal representatives and to justify obtaining letters of administration in this exceptional case so an administrator may sue.
Civil v. Waterman S.S. Corp., 217 F.2d 94 (2d Cir.)	Federal rule that only the personal representative (not the beneficiary) has the statutory right to sue under statutes granting actions to "personal representatives."	Applied to conclude that the heirs/beneficiaries cannot be the suing parties under § 761 and that an administrator (personal representative) must prosecute the claim.
American Railroad Company of Porto Rico v. Birch, 224 U.S. 547, 32 S. Ct. 603, 56 L.Ed. 879	Held that administration and suit by an administrator were necessary where the statute granted the right to the personal representative.	Cited to support the requirement that letters of administration be obtained and the action be brought by an administrator rather than by beneficiaries directly.
Missouri, Kansas Texas Railway Company v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355	Confirmed that a sole beneficiary could not maintain the action except as personal representative; also cited regarding relation back of amendments substituting a personal representative so as not to constitute a new action.	Relied upon to hold that substituting administrators would be a change in form that relates back to the commencement of the suit and would not be barred by the two-year limitation of 46 U.S.C.A. § 763.

Court's Reasoning and Analysis

The Court first addressed the respondent's contention regarding American Surety Company and concluded that the exception is "well taken" in principle because the Death on the High Seas statute does not provide for a direct action against insurers and Puerto Rico's Insurance Code is not applicable in admiralty. However, the Court noted it lacked the insurance policy in the record and therefore could not reach a definitive conclusion on that point, and also deemed resolution of that issue unnecessary at the present stage.

Turning to the primary contention, the Court examined the text of 46 U.S.C.A. § 761, which grants the right to sue to "the personal representative of the decedent" for the exclusive benefit of enumerated beneficiaries. The Court identified the three groups of libellants and acknowledged that, under Puerto Rico law (Perez), the widows and children are regarded as personal representatives. Despite that, the Court emphasized the federal rule—supported by Civil v. Waterman S.S. Corp., Birch, and Wulf—that statutes conferring a right to "personal representatives" permit suit only by the personal representative, not by beneficiaries directly.

Because the present libellants are beneficiaries under the federal statute and lack the status of personal representatives for purposes of prosecuting a federal admiralty claim, the Court concluded it is necessary for each libellant group to obtain appointment of an administrator in the appropriate Commonwealth court. The Court relied on Perez to show administrators may be appointed in exceptional circumstances so the beneficiaries can secure the relief Congress provided. The Court further reasoned that once administrators are appointed, the libellants may move to amend the libel to substitute administrators as plaintiffs; such an amendment would relate back to the commencement of the suit and would not be treated as a new action subject to the two-year limitation of 46 U.S.C.A. § 763 (citing Wulf).

Holding and Implications

Holding: The Court granted leave for the libellants to move to amend the libel by substituting administrators as the personal representatives of the decedents, and gave them 90 days from the date of the memorandum opinion to effect such substitutions. The Court stated that if the substitution is not made within the 90-day term, the libel will be dismissed. The Court also indicated that the exception as to American Surety Company is well taken in principle but deferred a definitive ruling on that point pending production of the insurance policy, and considered resolution of that issue unnecessary at this stage.

Implications: The direct effect of the decision is that the libellants must obtain letters of administration in the appropriate Commonwealth court and substitute the appointed administrators as plaintiffs; this substitution is procedural and will relate back to the original filing so as not to trigger the two-year limitation of 46 U.S.C.A. § 763. The opinion applies existing federal and Commonwealth precedents to require that the statutory right to sue vested in a "personal representative" be exercised by an appointed administrator rather than by beneficiaries directly.

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Fernando B. FORNARIS; Maria Josefa Fernandez VDA. De Fornaris, for herself and as representati v. of her minor children, under her patria potestas, Hortensia Maria, Fernando Jose, and Jose Angel Fornaris Fernandez; Guillermina Vazquez VDA. Molina; Carmen Casano

RUIZ-NAZARIO, District Judge.

This is a suit in admiralty instituted in this Court under the Death on the High Seas By Wrongful Act statute, 46 U.S.C.A. § 761, in which certain persons in relation to the decedents seek to exert the right of action created by the statute. The respondents have filed two exceptive allegations, first generally that the libellants are not the personal representatives of decedents, and, second, particularly, that respondent American Surety Company is not a proper party respondent.

Beginning with the second contention, which is the more simple, I believe the exception is well taken, as the statute does not provide for any direct action against insurers, and the provisions of the Insurance Code of Puerto Rico, 26 L.P.R.A. 101 et seq. are not applicable to a suit in admiralty. However, in the absence of the insurance policy from the record before me, I am unable at this time to reach any definite conclusion on this point, and such a conclusion is unnecessary at this state of the proceeding in view of what will develop in the course of the discussion of respondents' first contention.

Section 761 of Title 46, U.S.C.A. states as follows:

"Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued. Mar. 30, 1920, c. 111, § 1, 41 Stat. 537." (Italics supplied.)

There are three groups of libellants here, each in relation to one of three decedents who it is alleged perished in a common disaster on the high seas. Each group is hereinafter referred to by the name of the decedent to whom they stood in relation. First there is the Fornaris group. These libellants are the father, the widow, and the children of decedent Fernando Fornaris, Jr.; next is the Molina group, consisting of the mother, the widow and the children of decedent Antulio Guillermo Molina; and last in the order stated in the libel is the Rios-Algarin group, consisting of the widow and the children of decedent Luis Rios Algarin.

There is no doubt in my mind that the children and widows of the three decedents named above are, under the law of Puerto Rico, the personal representatives of their deceased husbands and fathers. Perez v. Successors of M. Perez Co., 41 P.R.R. 845. However — and this is where the problem arises — they (as well as the two parents named in the libel) are beneficiaries under the Federal statute, as the suit for damages in admiralty must be maintained for their benefit, and any amount obtained for each group must be apportioned among the members of the group in proportion to the loss they may severally have suffered. Section 762.

And the Federal rule is that only the personal representative and not the beneficiary has a right to sue under this statute. Civil v. Waterman S.S. Corp., 2 Cir., 217 F.2d 94. The same rule applies in respect of other Federal statutes giving rights of action specifically to "personal representatives", as in 46 U.S.C.A. § 688, and the Federal Employers' Liability Act, Title 45 U.S.C.A. §§ 51- 60. Civil v. Waterman S.S. Corp., cited above; American Railroad Company of Porto Rico v. Birch, 224 U.S. 547, 32 S. Ct. 603, 56 L.Ed. 879. In the latter case, as in the present case, it looked like a useless circumlocution to require an administration upon the deceased's estate, but nevertheless the Court held that it was necessary to obtain letters of administration and that the suit be brought by the administrator. It is true that this decision was prior to the deliverance by the Supreme Court of Puerto Rico of its opinion in the Perez case, cited above, while the confusion injected into the local law by the unnecessary provisions of Article 61 of the Code of Civil Procedure regarding "personal representatives" still existed, however, in Missouri, Kansas Texas Railway Company v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, the plaintiff was the sole beneficiary, and the Court held that she could not maintain the action under the Federal Employers' Liability Act except as personal representative, citing the Birch case.

It is therefore necessary for each group of libellants herein to obtain the appointment of an administrator to maintain the libel as the personal representative of the particular decedent whose heirs originally instituted this suit. The Perez case is authority for the bringing of an action by an administrator in certain exceptional cases (page 845 of 41 P.R.R.), so there should be no difficulty in obtaining letters of administration in the appropriate Commonwealth court, as this case is exceptional because, absent an administrator, the heirs and other beneficiaries herein could not obtain the relief afforded them by Act of Congress.

Once administrators are appointed, the libellants may move to amend the libel by substituting the administrators as libellants in lieu of the heirs and parents. Such an amendment would not be equivalent to the commencement of a new action (more than 2 years have elapsed since the deaths of the decedents) so as to render it subject to the two year limitation prescribed by Section 763 of Title 46 U.S.C.A. The change would be in form rather than substance, it would set up no different state of facts as the ground of action, and it would relate back to the commencement of the suit. See Missouri, Kansas Texas Railway Company v. Wulf, 226 U.S. 570, 33 S.Ct. 135.

Leave is therefore granted to move for amendment of the libel, substituting administrators as personal representatives of decedents, in lieu of libellants, for which action the libellants are granted a period of 90 days from the date of this memorandum opinion; and in the event the substitution is not made within the term granted, the libel will be dismissed.

FORNARIS v. AMERICAN SURETY COMPANY OF NEW YORK, (D.P.R. 1960)