Madeline Curry, Etc. v. Fred Olsen Line, Etc.

Appellant Madeline Curry, in her capacity as administratrix of the estate of her deceased husband Jack Curry, brought this wrongful death action against the appellees as owners of the S.S. BATAAN. Federal jurisdiction is predicated upon diversity of citizenship. Her complaint contained three causes of action, the first based upon appellees’ negligence, the second based upon the unseaworthiness of the vessel, and the third based upon appellees’ wilful and wanton misconduct. The court granted a motion for partial summary judgment as to the unseaworthiness count. This is the only ruling here assigned as error. We reverse.

No affidavits were filed in support of or in opposition to the motion for partial summary judgment. The sole question presented was one of law: May an action predicated upon the California wrongful death statute be maintained where the sole cause of death is claimed to be unseaworthiness of the vessel ?

The California Statute, Code of Civil Procedure Section 377, provides, in pertinent part:

The relevant operative language of this statute has remained unchanged since its enactment in 1872. (See note to West’s Ann.Code of Civil Procedure § 377.)

It is settled in…