Opinion
May 7, 1930.
Allen Caruthers, of New York City, for plaintiff.
W. Dale Williams, of New York City, for defendant.
At law. Action by Kathleen M. Birks, as administratrix of the estate of Alexander Harry Birks, deceased, against the United Fruit Company, Incorporated. On defendant's motion to dismiss the complaint.
Motion granted with leave to amend.
See also 48 F.2d 656.
This complaint is not only technically insufficient in failing to allege facts showing that a death action may be maintained by the administratrix, The La Bourgogne, 210 U.S. 95, 138, 28 S. Ct. 664, 52 L. Ed. 973, but also is probably fatally defective in that under the maritime law the master has no action against the owners of the vessel for damages for willful assault committed on the high seas by members of the crew. Cain v. Alpha S.S. Corp. (C.C.A.) 35 F.2d 717, 1929 A.M.C. 1484; certiorari granted December 2, 1929, 280 U.S. 549, 50 S. Ct. 86. 74 L. Ed. 607, 1929 A.M.C. 1788; The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760; Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S. Ct. 475, 66 L. Ed. 927; Davis v. Green, 260 U.S. 349, 43 S. Ct. 123, 67 L. Ed. 299.
For opinion on merits, see 281 U.S. 642, 50 S. Ct. 443, 74 L. Ed. 1086.
The motion to dismiss is therefore granted; and although it is doubted whether the defects in the complaint can be cured, the plaintiff may have twenty days within which to amend.