Opinion
December 6, 1960
Order, entered on July 1, 1960, which denied defendant's motion to dismiss the first, third, fifth and seventh causes of action, unanimously affirmed, without costs to either party. The court is constrained to follow the determination of this court in Wyman v. Pan American Airways ( 262 App. Div. 995, same case, 267 App. Div. 947, affd. 293 N.Y. 878) and the determination of the Second Department in Elliott v. Steinfeldt ( 254 App. Div. 739). The Federal act, in the case of a death caused by wrongful act upon the high seas, goes only so far as to confer upon the representative of the decedent a "suit for damages in the district courts of the United States, in admiralty." Rights of action and remedies in State courts to recover for such a death are, by the act, stated to be not affected insofar as provision for the same is made by "any State statute". But here, the plaintiffs, in their respective alleged causes of action for wrongful death, do not purport to rely upon any statute of this State as the basis therefor, expressly pleading that the same are "brought pursuant to the provisions of Title 46, U.S.C. § 761, et seq." Consequently, but for such determinations in this and in the Second Department, we would hold that these alleged causes of action for wrongful death are not maintainable in this court. Such holding would be in accordance with the recent Federal court decisions which most clearly point out that the language of the Federal act and legislative history (see Higa case, cited below) do not authorize a cause of action at law to recover for wrongful death upon the high seas. ( Higa v. Transocean Airlines, 230 F.2d 780; Noel v. Linea Aeropostal Venezolana, 247 F.2d 677, cert. denied 355 U.S. 907; Wilson v. Transocean Airlines, 121 F. Supp. 85; Lafrate v. Compagnie Generale Transatlantique, 106 F. Supp. 619.
Concur — Botein, P.J., Breitel, Rabin, McNally and Eager, JJ. [ 24 Misc.2d 1010.]