Full opinion text
McGOHEY, District Judge. Thirteen claims filed in this proceeding are here considered. They seek damages for death and personal injuries for which the petitioner has been held liable without limitation. They were tried together pursuant to stipulation. Six are by representatives of deceased crew members. Seven are by survivors. The Court’s findings and conclusions appear in the following opinion. Matters common to all will be considered before taking up the individual claims. Neither of the vessel’s two lifeboats was lowered before she sank at 9:45 A.M. on October 7, 1954. The men entered the water about 9:30 A.M. Its temperature was about 65°. Each man was wearing a life jacket over his work clothes. The waves were then about 10 to 12 feet high and continued so until sunset at 5:30 P.M. Thereafter they gradually became lower. They were only about 4 to 5 feet high on Friday and also on Saturday morning when the survivors were picked up. The men quickly swam away from the vessel. After she sank, dunnage, hatch boards, doors and other pieces of wood were washed up. The men got hold of these and either lay or hung on to them to keep afloat. At first they were in one large group. Later they broke up into smaller groups and several men went off by themselves. No distress call had been sent by the vessel’s radio. Accordingly ships which the men saw passing at a distance on Thursday afternoon and night and again on Friday were not looking for them. And although they called out, their voices did not carry to the ships. There was at least one shark, and probably more, in the general area where the men were on Thursday and Friday. It is conceded that one man “bled to death in eight or nine minutes” after he was attacked by a shark on Thursday evening. It was light enough for this attack to be observed by at least two of the survivors, Davis and Rosario. I find it occurred at about 7 P.M. A second man, unidentified, was bitten by a shark about 9 A.M. on Friday. This attack was seen by Rosario. Toothmarks 9 inches in diameter were found on chief officer Richardson’s body which was recovered. The medical examiner at Norfolk, Va. “presumed,” quite reasonably it would seem in the circumstances, that these were made by a shark. I find they were. All of the survivors were weak and weather-worn when they were taken from the water at various times on the morning of October 9. They had been without food or drink for from 46 to 50 hours; their eyes and throats were irritated by the salt water; the rubbing of their life jackets and of the boards they hung onto caused multiple abrasions of their chests, arms and legs; until rescued they all feared for their lives. It is a reasonable assumption that, up until he died, each deceased suffered similarly. I find he did. I find further that $300 is fair compensation for each hour of conscious pain and suffering endured by each man while in the water. Findings as to what additional awards should be made to any survivor for alleged permanent injuries resulting from the sinking will be deferred until their individual claims are considered. The logs of the rescue vessels recorded the various times when each survivor was picked up. Accordingly there is no dispute as to the number of hours each of them actually was in the water. There is, however, no evidence as to how long each deceased actually remained alive. No witness saw any of them die. And, although the time when each was last seen alive is known with reasonable certainty, that obviously cannot be taken as the time of his death; for it would be absurd to find that a man was dead at a time when the uncontradicted evidence shows he was in fact alive. Then, too, while it is possible that of those last seen alive at about the same time, some died sooner than others, the evidence furnishes no basis whatever for distinction. In such circumstances one is forced to estimate the time of death. Mine is that each deceased died one hour after he was last seen alive, and I find accordingly. Richardson Claim Harold R. Richardson was the chief officer of the vessel. He left the vessel without physical injury. His body, still clad as when he entered the water, was recovered some time on October 9 and brought to Norfolk, Virginia, The following day the medical examiner there certified the cause of death as “accidental drowning due to submersion due to vessel sinking at sea”; and the time of death as “approximately 10 A.M. on the 7th.” He left surviving two infant daughters and their mother, Jean 0. Richardson, his widow and executrix, who makes this claim on behalf of herself and their two children. The examiner was not called as a witness and the evidence before me furnishes no support whatever for his finding as to the time of death. Several survivors swore without contradiction that they saw Richardson alive after sunset which occurred about 5:30 P.M., and one, Rosario the bo’sun, added that he and Richardson were together throughout the night of the 7th and until about 9 A.M. on the 8th. That was twenty-three and one-half hours after the sinking. In pre-trial testimony Rosario had said they had been together about “16 or 17 hours,” which would have been about 2 or 3 A.M. on the 8th. He was closely questioned about this variance and said he could not remember giving the earlier testimony. However, it seems to me probable that his trial testimony is more accurate. It is conceded that sunrise on the 8th did not occur until 6 A.M. This was twenty hours after the sinking., Rosario testified that on that morning Richardson and he, accompanied by a seaman he could not identify, left a group they were in and started what proved to be a futile attempt to swim to a distant vessel. While Rosario did not fix the time when this occurred, it is unlikely that such an attempt would have been made in darkness when their chances of being observed would have been very slight. Rosario insisted there was a very bright sun when they abandoned their attempt and Richardson left him and swam back to the group, which Rosario saw him reach. It is, of course, impossible to be sure that Rosario’s recollection of the time of these events was better at the trial than when he gave his deposition. However, he impressed me as trying to be fair and truthful in his trial testimony as to the time of these events and it accords with the probabilities. Moreover this did not materially advance his own interests and he certainly was not shown to have any motive to fabricate in favor of Richardson’s family. His trial testimony as to the time he last saw Richardson alive is accepted. Accordingly the medical examiner’s finding as to the time of death is rejected. Richardson was last seen alive by Rosario at 9 A.M. on the 8th. I find he died at 10 A.M. on October 8th; twenty-four and one-half hours after he entered the water. It was stipulated that the medical examiner, if called, would testify in accordance with a letter he sent to Mrs. Richardson on December 27, 1954, which was received in evidence. In it he said his examination of Richardson’s body ■disclosed “a ring of toothmarks on the right thigh and buttock 9 inches in diameter, but they only penetrated the skin. No skin, or muscle, was missing, and I presume this was done by a shark through the clothing. It is impossible for me to say if this was done before or after his death.” If Richardson had been attacked during the twenty-three and one-half hours he was with Rosario, it is altogether unlikely the latter would have failed to relate this either in his pre-trial or trial testimony. He did neither; and this can hardly be attributed to inadvertence or forgetfulness. He related two instances of attacks on other men. I find that Richardson was not attacked before 9 A.M. on the 8th. The question remains whether he was attacked between then and 10 A.M. when he died. If he had been attacked while alive, it is certainly reasonable to suppose he would have made some struggle with a resulting tearing of his flesh. But the flesh was not torn. Accordingly I find that the attack occurred after his death and that death resulted from ■drowning. Richardson’s widow, whose testimony on this point was unchallenged, said he was a devoted husband and father. Oth■er unchallenged evidence supports her. He acquired his own house in 1951 and thereafter improved it. He maintained a car for his family. He regularly brought them gifts from the foreign ■countries he visited on his voyages. While at home between voyages and during his annual vacations he spent most of his time with his wife and children. I find he was a devoted husband and father. Richardson’s professional career, of which all but about six months was spent in the service of the petitioner, was one •of steady advancement. In June, 1942, at the age of 19, he was graduated from Admiral Farragut Academy. In January, 1944, he was graduated from New York State Maritime Academy and commissioned as Ensign in the United States Naval Reserve. Within two months of his second graduation he sailed as Third Mate on a United Fruit Company cargo vessel; and nine months after that graduation he received his certificate as a Second Mate and entered the petitioner’s employ as a Second Mate. He served in that grade until the following July when he received his certificate as Chief Mate. Thereafter he regularly sailed in that capacity on the petitioner’s vessels until December, 1946. He married in June, 1945. In December, 1946 he secured employment ashore. This proved unsatisfactory and in May, 1948 he returned to sea in the petitioner’s employ as a Third Mate and served in that grade until September, 1949. Thereafter until his death in October, 1954, except for one period of six weeks when he sailed as Second Mate, he never served in a grade lower than Chief Mate on cargo vessels. And for about one year he was Executive Officer, or Staff Captain, on one of the petitioner’s passenger vessels, a position of professional prestige. The petitioner’s personnel file on Richardson records the high opinions regularly expressed by the Masters under whom he served, as to his character, personality and professional competence. These Masters repeatedly rated him qualified for command. Prior to January, 1957, Masters of the petitioner’s vessels were appointed by the then Marine Superintendent Captain Furey, on recommendation of the then Assistant Marine Superintendent Captain Mayo. The latter testified that Richardson was an “excellent” ship’s officer. The petitioner’s president in a letter to Mrs. Richardson shortly after Richardson’s death described him as “one of the family” who had “carved for himself a distinguished record winning the respect and admiration of all with whom he came in contact”; whose “loss is a terrible blow to all of us.” Since 1957 the present Marine Superintendent, Mr. O’Brien, makes the promotions to Master from those recommended by a board of three company officials of whom the present Assistant Marine Superintendent Captain Barrett is one. Mr. O’Brien testified that it was impossible to say whether Richardson would ever be promoted to Master. Captain Barrett, however, a former Master of wide experience in command of vessels which Mr. O’Brien is not, thought much better of Richardson’s chances of promotion. Though obviously reluctant to disagree with his superior, the most he would say in support of Mr. O’Brien’s opinion was that, in his own opinion, Richardson “would probably not have come up for selection to Master in less than 4 or 5 years” after 1954; that is, in 1958 or 1959. Moreover he thought it more likely than not that Richardson would become a Master. Mr. O’Brien’s opinion is at odds with all the evidence as to Richardson’s education and rapid promotion, the high recommendations of all the Masters under whom he served and the high opinion of the petitioner’s president. Like Mr. O’Brien, Captain Barrett was obviously at pains, as far as his oath permitted, to protect his employer’s interest throughout this proceeding. Accordingly his favorable opinion of Richardson’s prospects is quite significant. It, together with all the other evidence, persuades me that if Richardson had lived he would, in all probability, be promoted to Master not later than 1963, and I find accordingly. He would then have reached the age of 40. Whether, as the claimant urges, Richardson also would achieve command of passenger ships and the higher wages of that position, cannot be determined on the evidence before me. It was shown that after a year as Executive Officer on a passenger vessel he was reassigned as Chief Mate of cargo vessels. Captain Barrett at that time thought Richardson lacked sufficient experience to warrant his continued assignment as Executive Officer on passenger vessels. This opinion is indeed inconsistent with the reports of Captain Hodges under whom Richardson served on the passenger vessel. Nevertheless Barrett was then the official responsible for the selection and assignment of deck officers below the grade of Master and I think his judgment is entitled to greater weight than that of Captain Hodges who did not have that responsibility. Service on passenger ships is more desirable and prestigious than service on cargo vessels and so, it is altogether unlikely that, as proctors for Mrs. Richardson suggest in their brief, Richardson’s reassignment to cargo vessels was at his own request. I find the claimant’s evidence insufficient to support a finding that Richardson would be promoted to Master of passenger vessels. Richardson at his death had a life expectancy of 39.36 years according to the United States Life Tables 1949-1951. His work expectancy, however, was only 33 years; that is until age 65. While it is true that some active Masters are older than that, they constitute only a very small percentage of the total number of active Masters. Accordingly I find 33 years to be the period after 1954 that Richardson if he had lived could reasonably have expected to serve as a ship’s officer. The claimant’s proctors argue that if he had lived, Richardson could reasonably expect to secure gainful employment ashore after he reached the age of 65; and that an award should be made for the pecuniary benefits his widow could expect to receive from his earnings ashore. The record, however, furnishes no basis whatever for such an award. It could at best be only a guess. There is no evidence as to what job opportunities, if any, are available for Masters retired for age; or what salaries are received by those, if any, who are employed. Richardson’s total earnings during the three years prior to his death averaged $10,000 per year. His total Federal and State income taxes amounted to $1,500 per year, leaving $8,500 for himself, his wife and their two children. One-fourth of this, $2,125, is fairly attributable to his personal expenses and his share of the usual household expenses. Thus I find that the pecuniary benefits accruing to his wife and children amounted to $6,375 per year during three years prior to his death. I find that the same amount would have been available to the wife and children each year thereafter through 1962, a period of eight years, while he would be serving as Chief Mate of a cargo vessel. Since the first five years of this period, from 1954 through 1959, have already elapsed, the beneficiaries have already suffered a loss of $31,875. I find that their annual loss for each of the three following years, 1960 through 1962, will also be $6,375. I find that Richardson’s annual earnings as a cargo Master would be $15,000. This then is the annual salary he would receive during the period commencing in 1963 and continuing through 1987, the end of his work expectancy as a ship’s officer. The amount annually available for his wife and children would vary during different portions of that period. Each of his children would reach the age of 21 years in a different year during the period and this happening would increase both the amount of his income taxes and the amount fairly to be attributed to his personal expenses and his share of the household expenses. His older daughter, Barbara, will become 21 in 1968. His younger daughter, Gail, will become 21 in 1971. I find that in each of the years 1963 through 1968, after deducting from gross earnings estimated Federal and State income taxes amounting to $2,700, and one-fourth of the balance as attributable to Richardson, the amount available for his wife and two children would be $9,225. I find that in each of the years 1969 through 1971, after deducting estimated Federal and State income taxes amounting to $3,000, and one-third of the balance as attributable to Richardson, the amount available for his wife and younger daughter would be $8,000. I find that in each of the years 1972 through 1987, after deducting estimated Federal and State income taxes amounting to $3,450, and one-half of the bal-anee as attributable to Richardson, the amount available for his wife would be $5,775. I find that the present value of the future pecuniary benefits which his wife and children would have received out of the deceased’s earnings during the years 1960 through 1987, discounted at 4%, is $118,296. Each of the children has lost the nurture, guidance and training she would have received from her father until she reached her majority. I find that a fair value for such nurture, guidance and training is $1,000 per year for each child. Therefore each has already sustained a loss of $5,000. Barbara will suffer a further loss of $1,000 per year during the nine years 1960 through 1968, the present value of which, discounted at 4%, is $7,440. Accordingly Barbara’s total loss on account of nurture, guidance and training is $12,-440. Gail wiil suffer a further loss of $1,000 per year during the twelve years 1960 through 1971, the present value of which, discounted at 4%, is $9,400. Accordingly Gail’s total loss on account of nurture, guidance and training is $14,400. The amount due for the deceased’s conscious pain and suffering is $7,350. The foregoing items of damage are recapitulated as follows: Deceased’s conscious pain and suffering..........$ 7,350. Pecuniary benefits from earnings already lost ....................................... 31,875. Present value of future lost benefits from his earnings ............................... 118,296. Barbara’s total loss of nurture, etc.............. 12,440. Gail’s “ “ “ “ “ ............ 14,400. Total Losses......$184,361. This amount must be reduced by $5,500 which Mrs. Richardson concededly received under a Second Seaman’s War Risk policy, all of the premiums on which were paid by the petitioner. Proctors for the petitioner also urge deduction of a further “setoff” of $200. Mrs. Richardson, within a short time after the disaster when she was “short of cash,” did indeed receive that amount from the petitioner. She admitted signing a receipt for it but she kept no copy of this and could not recall its provisions. The petitioner, who presumably has it, did not produce it and introduced no evidence of its provisions. However, it seems altogether unlikely that the petitioner, who later filed a cross-libel against Richardson’s estate for the loss of the vessel and all awards the petitioner might be required to pay on account of the sinking, would specify in the receipt that the $200 was a payment on account of any award Mrs. Richardson might recover for her husband’s death. A more likely explanation of the payment and one more consonant with the letter Mrs. Richardson received from the petitioner’s president is that it was a gift in time of their need to the widow and children of “one of the family * -» * [whose] loss was a great blow to all of us.” I find the $200 was a gift and not a payment on account. Accordingly the claimed “setoff” is disallowed. A decree for $178,861. with interest from the date of the decree may be submitted on five days’ notice. Wall Claim Edward T. Wall was the Chief Engineer of the vessel. He did not survive the sinking. He left three minor children and their mother, Luisa Wall, his widow and administratrix, who makes this claim on behalf of herself and their three children. Wall entered the water wearing a life jacket over his work clothes. He was then bleeding from a cut on his face. This seems to have been only a superficial wound which, in any event, was not disabling. The uncontradicted evidence shows that he survived longer than any of the other deceased of whom we have any knowledge. He was last seen alive at about 11:30 A.M. the day following the sinking. I find he died that day at 12:30 P.M., after twenty-seven hours in the water. There is no evidence that he was attacked by sharks. He entered the petitioner’s employ as a Third Assistant Engineer in 1943. He was then only 23 years of age. By the time he reached the age of 30, seven years later, he was licensed and sailing as a Chief Engineer on the petitioner’s cargo vessels. In November, 1950 he left the petitioner’s employ and took his family to live in Mexico, his wife’s native country. He was unsuccessful in obtaining sufficiently remunerative employment there and returned to the petitioner’s employ in November, 1951 as a Chief Engineer. Once again, in February, 1952, he tried shoreside employment. This too, proved financially unsatisfactory and after seven months he returned to sea as Chief Engineer on the petitioner’s cargo vessels. He continued to work in that capacity until his death. Mr. Glennon, the petitioner’s Superintendent of engineering personnel, testified that in his opinion Wall was “an extremely competent engineer.” Indeed, in a letter to Mrs. Wall shortly after the sinking, he described Wall as “one of our most outstanding engineers [whose] attention to duty was of the highest [and whose] untiring efforts [made] the ships on which he sailed as Chief Engineer and 1st Asst. Engineer * * * of very high caliber in the Engine Department.” The petitioner’s president, in a letter to Mrs. Wall, described her husband as “one of the outstanding Engineers in our Fleet.” There is no doubt that the petitioner would have continued to employ Wall as a Chief Engineer of its cargo vessels. Wall was 34 years old when he died. His life expectancy, according to the United States Life Tables 1949-1951, was thirty-seven and one-half years. However, his work expectancy as a Chief Engineer at sea was shorter, probably only 31 years; that is, until he reached age 65. There are, it is true, some older Chief Engineers sailing but they are so few as to be notable exceptions. Proctors for the petitioner argue that Wall’s work history indicates that he was anxious to leave the sea; that if he had lived he would, in all likelihood, do so long before he reached age 65; and that his earnings ashore would be less than if he remained at sea. To me, however, his employment history shows rather that, while he undoubtedly had the desire to lead a normal home life ashore, he was unwilling to satisfy it at his family’s expense. Thus when his efforts to indulge his preference resulted in failure to earn enough to support his family, he returned to sea where he could earn enough. There is nothing in the evidence to show that this situation would change in the future. I find that if he had lived, Wall would continue to serve as a Chief Engineer of cargo vessels for 31 years, that is, until 1985. Proctors for Mrs. Wall argue that he had every reasonable expectation of being promoted to passenger service at a higher salary than he would earn in cargo vessels. The argument must be rejected because whether or when he might be so assigned is sheer speculation. There is no evidence that he ever served on passenger vessels. Neither is there any evidence as to what standards are applied in selecting Chief Engineers for passenger vessels; or whether Wall did or could meet such standards. The claimant’s proctors also argue that if Wall lived he could reasonably expect to be employed ashore after he reached age 65 with corresponding benefits to his wife, for the loss of which she should be compensated. This argument also is rejected. Here again, as in the case of Richardson, there is no evidence as to Wall’s possible job opportunities or income. Any award would necessarily be a mere guess. The widow’s uncontradicted testimony, which I accept, was that Wall was a devoted husband and father. I find accordingly. At his death the children’s ages were: Juan 16; Silvio, 10; Maureen, 3. Each of these has lost, for the period of minority, the deceased’s nurture, care and training, the value of which I find to be $1,000 per year per child. Each child, therefore, has already lost $5,000. Juan became 21 in 1959. Accordingly he will not suffer loss of nurture, etc. in the future. Silvio will not become 21 until 1965. His loss will be $1,000 per year for the next six years, the present value of which, discounted at 4%, I find to be $5,240. His total loss on account of nurture, etc. is $10,240. Maureen will not become 21 until 1972. Her loss will be $1,000 per year for the next 13 years, the present vaue of which, discounted at 4%, I find to be $10,000. Her total loss on account of nurture, etc. is $15,000. The undisputed evidence is that during the years 1953 and 1954, Wall’s earnings averaged $11,366 per year. I find that in each of the years 1955 and 1956 his earnings would have been at least $11,366; that his annual Federal and State income taxes would have totaled $1,798, leaving net earnings of $9,568; that one-fourth of this amount or $2,392 would have been used for his personal expenses and his share of ordinary household expenses; leaving for his wife and three children the sum of $7,176 per year. It was stipulated that in 1957 the wage rate for Chief Engineers was increased. I find that in each of the three years 1957 through 1959, Wall’s earnings would have been $14,100; that his Federal and State income taxes would have been $2,165; that his net earnings would have been $11,485, of which one-fourth or $2,871 would have been used for his personal expenses and his share of usual household expenses, leaving for his wife and three children $8,614. Wall’s wife and children, therefore, have already lost a total of $40,194. I find that in each of the twenty-six years 1960 through 1985, the end of W'all’s work expectancy, his annual earnings would be $14,100. I find that in each of the six years 1960 through 1965, Wall’s annual Federal and State income taxes would be $2,856, leaving a net income of $11,244, ■of which one-fourth or $2,811 would be used for his share of household expenses and his personal expenses. Thus the amount his wife and two minor children could reasonably expect for their use in each of the six years is $8,438. I find that in each of the seven years 1966 through 1972, Wall’s Federal and State income taxes would be $3,057, leaving a net income of $11,043, of which one-third or $3,681 would be used for his personal expenses and his share of household expenses. Thus the amount his wife and one remaining minor child could reasonably expect for their use in each of these seven years is $7,362. I find that in each of the thirteen years 1973 through 1985, Wall’s Federal and State income taxes would amount to $3,261, leaving a net income of $10,839, of which one-half or $5,419 would be used for his personal expenses and his share of household expenses. Thus the amount which his wife could reasonably expect in each of those thirteen years is $5,420. I find that the present value of the losses from earnings for the years 1960 through 1985, discounted at 4%, is $111,625. The foregoing items of loss, recapitulated, are as follows: Deceased’s conscious pain and suffering..........$ 8,100. Pecuniary benefits from earnings already lost .... 40,194. Present value of lost benefits from future earnings................................... 111,625. Juan’s total loss of nurture, etc................. 5,000. Silvio’s “ “ “ “ “ ................ 10,240. Maureen’s “ “ “ “ “ ................ 15,000. Total Losses........$190,159. The petitioner claims no setoff against any award on this claim. A decree for $190,159 with interest from the date of the decree may be submitted on five days’ notice. Knieger Claim Marvin Knieger was the radio operator on the vessel. He did not survive. He was unmarried. He left his mother who, at his death, was 71 years of age, and a brother, Bernard. The latter, as administrator, makes this claim, solely on behalf of the mother, for the deceased’s conscious pain and suffering and the pecuniary loss she has already sustained and will sustain in the future. Knieger was 27 years old at the time of the disaster. He entered the water wearing a life jacket over his work clothes. His body was not recovered. He was last seen alive at 7 P.M. on the day the vessel sank. I find he died at 8 P.M. on that day, after ten and one-half hours in the water. The deceased’s life expectancy was 43 years according to the United States Life Tables 1949-1951. At that time his mother’s life expectancy, according to the same table, was 12 years. The deceased’s work expectancy was undoubtedly less than his life expectancy, but it is unnecessary to determine by how much since his mother surely would not survive throughout his working life. Mrs. Knieger concededly received support from the deceased from 1951 up to the time of his death. Since the spring of 1953 she has been, necessarily, confined to a nursing home. Her expenses there in 1953 amounted to approximately $3,700, all of which were paid by the deceased. Since his death her expenses have been paid out of funds in the deceased’s estate and the proceeds, amounting to $10,500, of two insurance policies on his life, of which she was the beneficiary. The deceased’s brother Bernard testified that he had never contributed to his mother’s support and there is no reason to doubt his testimony which was not contradicted. Mrs. Knieger’s expenses since 1954 have increased each year. The average for 1958 and 1959 was about $4,500; and it appears that her future maintenance cost per year will be the same. The deceased was undoubtedly a dutiful son and would have continued to be such if he lived. But it is altogether unreasonable to suppose that he would have continued to bear the total expense of his mother’s care after his brother Bernard began to earn regular income as a college professor. The deceased, after all, did not have, nor could he reasonably expect to have, unlimited income; and $4,500 is far more than half of what he would have available, after taxes, from his salary of about $7,200 as a ship’s radio operator. Though Bernard is married, he has no children. He impressed me as a man of honor, and altogether unlikely to refuse assistance in caring for his invalid mother. It is reasonable, therefore, to assume that in 1960 and thereafter until his mother’s death he would contribute at least one-third of the cost of her support, that is $1,500 per year. I find accordingly. That would leave $3,000 per year to be paid by the deceased. I find the latter amount to be what he would contribute annually if he lived, throughout his mother’s life expectancy. The cost of Mrs. Knieger’s care for the period 1955 through 1959 was approximately $20,000. I find that if he had lived the deceased would have paid that. Accordingly, his mother has already lost that amount. As already noted, her life expectancy when her son died was 12 years. Five years of that period have already passed. Accordingly her future losses will be computed on the basis of an expectancy of seven years. It is argued that as of February, 1959 she had an expectancy of 9.2 years and that this period should be used. I find that the seven-year period is more appropriate in view of the present state of Mrs. Knieger’s health. She requires regular medical care, nursing and medication. She is no longer able to go out of the nursing home. She was too feeble to come to court to testify. I find that if the deceased had lived his mother could reasonably expect to receive from him in 1960 and annually thereafter through 1966 the sum of $3,000. I find that the present value of these future contributions, discounted at 4%, is $18,000. The foregoing items of loss, recapitulated, are as follows: Deceased’s conscious pain and suffering ..................$ 3,150. Contributions already lost..... 20,000. Future contribution — present value...................... 18,000. Total Losses ... .$41,150. From this must be deducted the sum of $5,500, the proceeds of a Second Seaman's War Risk policy which, concededly, were received by Mrs. Knieger. All premiums on this policy were paid by the petitioner. A decree may be entered on five days’ notice for $35,650 with interest from the date of the decree. Braithwaite Claim Richard Braithwaite, an ablebodied seaman, was one of the crew who did not survive. His widow, the administratrix of his estate, makes this claim on behalf of their son, herself and the deceased’s mother. At his death the deceased was 53 years old and the ages of his son, his widow and his mother were, respectively, 26, 49 and 77 years. Braithwaite left the vessel without physical injury, wearing a life jacket over his work clothes. He was last seen alive about 6 P.M. that day. I find he died one hour later, after nine and one-half hours in the water. There is no evidence nor is it claimed that he was attacked by a shark or otherwise physically injured during that time. There is no evidence that he had any prospect of becoming a licensed officer. His life expectancy, according to the United States Life Tables 1949-1951, was 19 years. He would then be 72 years old. His work expectancy as a seaman was certainly less than that. Although he was in good health, a steady worker and a man of good habits, it is altogether unlikely that he could have continued to do the laborious work of an ablebodied seaman until he reached the age of 72 years. Moreover, he was looking forward to leaving the sea. His widow testified that he “promised” to do so “soon.” There is, however, no evidence as to how long he meant by “soon.” He first went to sea in 1942 when he was 41 years old. He had then been married for 18 years and had a son 14 years old. Prior to going to sea he had worked as an automobile mechanic in a public garage. It is certainly a fair inference that, at 41, a good father and husband, he gave up a normal home life and went to sea only because it offered the chance of greater earnings than he was able to command ashore. There is no reason to suppose that he could, in 1954 or at any time thereafter, earn more or even as much ashore as he could at sea; or that, despite his desire to live at home, he would give up his greater earnings as long as he was able to do the work of a seaman. Sea service offered his best chance to save for the comfort and security of life ashore. Accordingly, I find he would have continued to work at sea until he reached age 65 in 1966, but not thereafter. He would then be eligible for Social Security benefits. Whether he could then obtain gainful employment ashore and, if so, what he might then be able to earn are too speculative to justify a finding. The deceased was no doubt devoted to his mother, his wife and his son. But, as will appear, he could not possibly have given them as much money as they claim. The son concededly received no allotments from the deceased’s wages. The latter, however, did make such allotments to his wife; and beginning in 1951, to his mother as well. Furthermore, in 1951 he opened a savings account in his name “in trust for” his wife. She was paid the balance on deposit at his death. This account was opened with a deposit of $527.93. Each year thereafter until his death he made additional deposits in substantial amounts. In 1952 he made one deposit of $1,250; in 1953, four deposits aggregating $2,300; in 1954, three deposits aggregating $935. The widow never made any deposits in the account and, during the deceased’s life, no moneys were ever withdrawn from the account. The allotments paid to the mother were: in 1951, $410; in 1952, $475; in 1953, $425; in 1954, up to October, $480. The allotments to the widow were: 1951, $1,045; 1952, $660; 1953, $875; 1954, up to October, $960. The mother testified that in addition to the allotments, the deceased, each year, gave her not less than $200 of which half was cash and half gifts in kind. The widow testified that the deceased supplemented his allotments to her with cash and “travellers checks” sent from his ports of call, which brought the amount she regularly received from him up to $200 per month. The son was married in 1952. Both he and his wife were then, as they now are, elementary school teachers in the New York City Public School System. Their only child was born in 1953. The son testified he received $250 from his father at the time of his wedding, $50 per month in 1958, and in 1954, up to his father’s death, $35 per month. This testimony as to gifts and cash contributions over and above the allotments, if credited, would lead to absurd results. There is no evidence that the deceased had any income other than his wages as a seaman. In 1951 his net earnings after taxes eoncededly amounted to only $4,363. The total of his proven deposits and allotments and the claimed gifts and cash contributions that year is $3,538. Thus, according to the testimony, he had for his personal expenses in 1951 only $825; something less than $16 per week. In 1952 his conceded net earnings after taxes were $3,982. The total of his proven deposits and allotments and claimed cash contributions and gifts in that year is $4,575. Thus, according to the testimony, he not only had nothing for himself in 1952 but went into debt for $593. In 1953 his conceded net earnings were $5,911. The total of his proven bank deposits and allotments and claimed cash contributions and gifts in that year is $5,925. Thus in this year also he had nothing for personal expenses and increased his debt by $14. In 1954 his conceded net earnings amounted to $4,074. The total of his proven bank deposits, allotments and claimed cash contributions and gifts in that year is $3,734. Thus the amount available for his personal expenses in that year was only $394; about $10 per week. There is no evidence that, at his death, he was in debt. Accordingly, the testimony as to gifts and cash contributions to the widow and the mother must be greatly discounted. The testimony that the son received regular allowances in 1953 and 1954 is rejected. The constancy with which the savings deposits were made supports a part of the widow’s testimony which I accept that the deceased’s purpose in making them was to accumulate enough money to make a substantial payment on a home. I find he was saving for that purpose. It is a fair inference and I find that, had he lived, he would have continued to do so until he accumulated $12,500; that his deposits would probably continue, as before his death, to average about $1,250 per year; and that he would have deposited that amount in each of the years 1955 through 1959. The widow contends that the whole of the deposits in those years would have been additional contributions to her; and that she should be awarded an equivalent amount for their loss in addition to her other claimed losses. The theory underlying this contention is that the deceased, during his life, established the savings account as an irrevocable trust of which she was the sole beneficiary. It is clear, however, that he did not do so formally. He retained sole power to draw against the funds on deposit and to dispose of, as he pleased, the whole balance in the account or any part he might have withdrawn. There is no evidence that he manifested any intention to establish an irrevocable trust in her favor during his life. Her testimony certainly does not, as contended, show that this was his intention. Indeed it tends rather to show the contrary. According to her, the home he was saving for was to be for himself as well as her. And there is neither claim nor evidence that title to the home was to be taken in her name. I hold that the deceased did not establish an irrevocable trust in her favor during his lifetime. Accordingly, her claim for the full amount of his savings in 1955 through 1959 is rejected. It seems clear, however, and I find that the deceased intended that she would share his savings equally with him. Accordingly, one-half of what he would have saved in 1955 through 1959 should be allocated to her. I find that in the years 1955 through the end of his work expectancy in 1966 the deceased’s average annual net earnings after taxes would probably amount to $6,250. In some of the early years in that period they might indeed exceed that average by reason of increased rates of wages. However, as time passed, the increased rates would undoubtedly be offset by the deceased’s advancing years' and corresponding inability to sail as frequently and to do as much overtime work. I find that from 1955 through 1963, the end of his mother’s life expectancy, the deceased would have contributed $550 per year to her; that from 1955 through the end of his own work expectancy in 1966 he would have made gifts to his son of about $50 per year; and that of the remainder of his net earnings, one-half would have been given to his wife and the other half he would have kept for personal expenses and his share of ordinary household expenses. The sums thus allocated to the deceased and his wife include their respective shares of the annual savings in the years 1955 through 1959. Accordingly, I find the pecuniary losses of the beneficiaries to be as follows: The widow has already lost $2,825 per year for the five years 1955 through 1959, or a total of $14,125. The mother has already lost $550 per year for the same period, or a total of $2,750. The son has already lost $50 per year in the same period, or a total of $250. These sums which have already been lost are not to be discounted. The mother, in the period 1960 through 1963, the end of her life expectancy, will lose $550 per year. Discounted at 4%, this amounts to $1,997. The widow, in the period 1960 through 1963, will lose $2,825 per year, and from 1964 through 1966 she will lose $3,100 per year. These losses, discounted at 4%, amount to $17,602. The son, in the period 1960 through 1966 will lose $50 per year which, discounted at 4%, amounts to $300. The foregoing items of loss, recapitulated, are as follows: Deceased’s conscious pain and suffering.................... 2,850. Widow’s lost benefits (already sustained................ 14,125. (future ......................... 17,602. Mother’s lost benefits (already sustained ............... 2,750. (future ......................... 1,997. Son’s lost benefits (already sustained................ 250. (future ......................... 300. Total Losses ... .$39,874. From the amount to be paid to the widow, must be deducted the sum of $5,-300, the proceeds of a Second Seaman’s War Risk policy which, coneededly, were received by Mrs. Braithwaite. All premiums on this policy were paid by the petitioner. A decree in accordance herewith may be entered on five days’ notice with interest from the date of the decree. Berk Claim Lawrence Berk was the vessel’s third assistant engineer. He did not survive. He was unmarried and made his home with his parents and his younger brother, Norman. At the time of his death Lawrence was 25 years old; the ages of his mother, father and brother were, re* spectively, 46, 54 and 14 years. His mother, the administratrix of his estate, makes this claim on behalf of herself, her husband and Norman. Berk was uninjured when he left the vessel. He was wearing a life jacket over his work clothes. He was last seen alive at 7 P.M. on the day of the sinking. I find he died one hour later, after ten and one-half hours in the water. There is no evidence that, during that period, he was attacked by a shark or otherwise physically injured. The deceased’s life expectancy, according to the United States Life Tables 1949-1951 was about 46 years; that of his mother about 30 years; that of his father about 20 years, and of his brother 55 years. At the time of the deceased’s death and for several years previous both parents were gainfully employed. Their combined annual earnings amounted to $7,-500 at his death, and increased substantially in subsequent years. There is no evidence that Norman, then a high school student, was gainfully employed prior to or at the time of his brother’s death. The deceased was graduated from the United States Merchant Marine Academy and commissioned a third assistant engineer in July, 1952. At the end of that month he entered the petitioner’s employ as third assistant engineer on the Morm-ackite, and continued to sail in that capacity until the vessel sank in October, 1954. His net earnings after taxes in 1952 were $2,600; in 1953, $7,000; and approximately $6,000 up to his death in 1954. Beginning in October, 1952 and continuing until his death, he sent regular allotments from his wages to his mother as follows: $480 in 1952; $2,360 in 1953; and $2,360 in 1954. The mother testified that, in addition to the allotments which she claimed as gifts to her and her husband, when the deceased came home between trips he always gave her “between $100 and $300 for family expenses”; and gave his younger brother Norman “between $15 and $25” to buy records for a record player which the deceased had purchased for him at a cost of $150. She said he had also purchased a bicycle for Norman for $75. She further said that in the fall of 1952 he gave her $600. She did not fix the number of occasions when she received cash for family expenses, but it seems a reasonable assumption that the deceased got home at least six times a year. Thus, according to her testimony, his cash contributions for family expenses averaged at least $1,200 per year, and his gifts to Norman about $300 per year. On this basis the total of allotments and cash in 1952 amounted to at least $1,080; in 1953, to at least $3,860; and in 1954, to at least $3,260. Furthermore, in 1954 the mother concededly received additional sums totaling $2,200 from funds which I find belonged to the deceased. They were on deposit with the Dime Savings Bank of Brooklyn in a joint account in the names of the deceased and his cousin, Mrs. Thelma Sundiek. The latter drew the $2,200 from the account and gave it to Mrs. Berk. The balance on deposit in the account at the deceased’s death concededly was paid to Mrs. Berk by Mrs. Sundiek. I accept the latter’s testimony that all money that was ever in the account belonged to the deceased. According to the testimony of Mrs. Berk, we have a situation which is, to say the least, unusual; that out of his total net earnings of $15,600 between August, 1952 and October, 1954, the deceased, a young man just starting his professional career, made outright gifts of two-thirds of them, or $10,110, to his parents and one brother who concededly were not dependent on him for support. But that is not all. According to Mrs. Berk, in May, 1952, while he was still in the Academy, he turned over to her the whole of his accumulated savings which amounted to $1,331. Thus, it is contended, the beneficiaries received from the deceased in a period of two and a half years, outright gifts amounting to $11,441. This represents an average of $4,576 per year. And the court is urged to take this as the measure of what the beneficiaries could reasonably expect to receive from the deceased in the future if he had lived. This claim, unusual enough on its face, was not made more plausible by the manner in which Mrs. Berk handled the allotment checks. She and her husband had their own joint savings account and she had a personal checking account. However, not one of the allotment checks was ever deposited in either of these accounts. On the contrary, all but two, each for $120, which were received in January, 1953, were regularly deposited in a savings account in the name of “Mae Berk in trust for Larry Berk.” This account had been opened in 1947 with money earned by Larry during his summer vacation, and all his savings up to May, 1952 were deposited in it. At the end of April, 1952, the balance on deposit was $1,331. There is no doubt, indeed it is conceded, that this money then belonged to him alone. However, according to Mrs. Berk, in May, 1952, Larry told her “I want you to take over this account for your own use. Do not consider it my account any more”; and she did as he told her. Despite this, she continued it as a trust account for Larry and made no withdrawals from it for her own or her family’s use until April, 1953 when she said she withdrew $40. Moreover, in July, 1953, when Mrs. Berk and her husband, as the first step in their plan to build a home, bought a piece of land for $1,900, the money for this was taken from their own joint account, although the balance in the trust account was then $3,721.22. By the end of 1953 this balance had increased to $4,729, and the interest that year amounted to $59.59. Mrs. Berk, who prepared Larry’s income tax returns, listed interest of $60 as income taxable to him for that year. Larry ■owned no securities and the amount reported exceeded the $41 of interest for that year on the Sundick-Berk joint account, with the details of which, in any •event, Mrs. Berk disclaimed familiarity. The $60 item, then, can only be accounted for by the interest earned on the deceased’s trust account. The return showed a balance of tax due amounting to $375.94. This was paid by Mrs. Berk with funds drawn from Larry’s trust account on March 10, 1954. It is hardly likely that Mrs. Berk would have caused her so generous son to pay tax on income that was really hers. And if her testimony be taken as true, it is incredible that Larry would have permitted her to use so much of her funds to pay his tax. I cannot and do not accept Mrs. Berk’s testimony as to the extent of her late son’s contributions and gifts. I find he did not make a gift of the balance in his trust account in 1952. I further find that the allotments were not gifts to Mrs. Berk but, on the contrary, were savings of the deceased which she was required to deposit, as she did, in his trust account. It is reasonable, however, to assume that the deceased, who made his home with his family between voyages, made some contribution towards household expenses. It is also reasonable to assume that he made gifts to his parents, and to some small extent to his younger brother. The probable amounts of his future gifts will be considered later. I find from the documentary evidence that $5,000 of the deceased’s funds in his trust account and $2,200 of his funds in the Sundick-Berk joint account were withdrawn in March and April, 1954 and used by Mrs. Berk to make payments on the home she and her husband built on the lot purchased with their own funds in 1953. The deceased was ashore for a few days at the end of June, 1954 and visited the new home. It is certainly a fair inference that he learned then, if he had not before, that $7,200 of his funds had gone into the new home; and that he approved this. The petitioner suggests that this may have been a loan. That theory is indeed supported by an answer of Mrs. Berk to a pre-trial interrogatory propounded by the petitioner. She then said that Larry had an “equitable interest in the new home.” Although she testified she understood the meaning and implication of this, she said she was in error in saying it. She insisted the $7,200 was a gift. As to this, as the petitioner concedes in its brief, it is surely not unreasonable to suppose that the deceased helped to provide his parents with a home of their own. Accordingly, I find he made them a gift of the $7,200. It by no means follows, however, that this is a fair measure of what he would contribute to them in the future, and I find it is not. The deceased was an attractive looking, healthy, normal young man. In all probability by the time he reached the age of 30 in 1959 he would have married and established a home of his own. This certainly would preclude the possibility of such continued generosity to his parents and brother. I find that in each of the five years 1955 through 1959 he would have contributed at most $1,000 to his parents and $50 to his brother. Accordingly, the parents have already lost $5,000 and the brother has lost $250. These amounts are not subject to discount. It is, as the petitioner concedes, a fair inference that, if the deceased had lived, he would make some cash contributions to his parents from time to time; and that, if, as they grew older they needed pecuniary assistance, he would supply as much of their needs as he was able. I find accordingly. I think it is also a fair-inference, and I find that he would have-made some small cash gifts to his younger brother from time to time. What such contributions and gifts would amount to cannot be precisely determined. This-can only be approximated on the basis of the facts as found. Accordingly, taking-into consideration the ages of the deceased and the beneficiaries, their life expectancies, the likelihood that the deceased would marry and have his own home, and applying 4% as the rate of discount, I think an award to the parents of $20,000, and to Norman of $1,000 will fairly compensate them for their future pecuniary losses. The awards are summarized as follows: $ 3,100. Deceased’s conscious pain and suffering . 5.000. Mr. and Mrs. Berk’s benefits already lost 250. Norman Berk’s benefits already lost .... 20,000. Mr. and Mrs. Berk’s future lost benefits . 1.000. Norman Berk’s future lost benefits..... Total Losses ... .$29,350. The total award to Mr. and Mrs. Berk must be reduced by $5,500, the amount concededly received by Mrs. Berk as beneficiary of a Second Seaman’s War Risk policy, all of the premiums for which were paid by the petitioner. A decree in accordance herewith may be entered on five days’ notice with interest from the date of the decree. Cadiz Claim Carmen Cadiz was third cook on the Mormackite. He did not survive. His widow, the administratrix of his estate, makes this claim on behalf of herself and their two minor children, Richard and Robert. Cadiz was uninjured when he entered the water. He was then wearing a life jacket over his work clothes. He was last seen alive about 6:30 P.M. on the day of the sinking. I find he died one hour later, after ten hours in the water. There is no evidence that he was attacked by a shark or otherwise physically injured during that time. At the time of his death the deceased’s age was 38 years, and the ages of his widow and their two sons were 33, 10 and 9 years, respectively. The deceased’s life expectancy according to United States Life Tables 1949-1951 was about 33 years. His work expectancy, however, was very much less. He certainly would not be employed at sea until he was almost 72 years old. And, in any event, he was by no means a steady maritime worker. His Coast Guard record shows he took long periods ashore. Thus he was ashore during almost half of 1952 and half of 1953. In 1954 he was ashore for two out of the nine months prior to his death. During these periods ashore he stayed at home most of the time doing the cooking and housekeeping while his wife went out to work as a machine operator. I find the deceased would have ceased work when he became eligible for social security at age 65. Accordingly, I find his work expectancy was 27 years when he died. His earnings were stipuated as follows: 1951, $2,856.40; 1952, $3,943.22; 1953, $3,872.69; 1954 (up to his death) $3,456.22. It does not appear whether these represent net earnings after taxes. However, since the petitioner in all of these claims has, quite correctly, urged that contributions claimed to have been made to surviving beneficiaries of a deceased should be considered in light of his net earnings after taxes, I assume that the foregoing are net earnings, and I find accordingly. The widow estimated that annual household expenses, clothing and medicines for herself and her two sons, and the latter’s school expenses totaled $3,200 per year. She said she received this amount from the deceased. The latter testimony I do not accept. Her earnings in 1952 were stipulated to be $858.05; in 1953, $2,053.05; and in 1954, $1,349.89. I find that some of the $3,200 of family expenses must have come from her earnings. Moreover, some part of the family household expenses must be attributed to the deceased. It is true that his work record in 1954 shows improvement over the previous years. However, I find it unlikely, in view of the deceased’s past employment record, that in the period 1955 through 1959 his net earnings would have averaged more than $4,200 per year. I find they probably would have averaged that amount. I further find that one-fourth of this, or $1,050, must be allocated to his personal expenses and his share of the usual household expenses. Thus the amount available to his widow and children each year would have been $3,150. Thus they already lost $15,750 for the period-1955 through 1959. This is not subject to discount. I find, on the basis of the deceased’s past work record, that as he neared the end of his work expectancy he would work less. His improved industry just before his death might, it is true, continue for a few years after 1954. Nevertheless his entire work history compels the inference that he would work less as he approached retirement age. I so find. Accordingly, I find his average annual net earnings from 1960 through 1981, when he would reach age 65, would be, at most, $4,200. The amount available from these earnings for his wife and children would vary during that period, however, because his son Richard would become 21 in 1965 and Robert in 1966. I find that in each year during the period 1960 through 1965 one-fourth of the annual net earnings would be attributable to the deceased, leaving $3,150 for his wife and two children. I find that in the year 1966, one-third of the net earnings would be attributable to the deceased, leaving $2,800 for his wife and one child. I find that in each year during the period 1967 through 1981, one-half of the net earnings would be attributable to the deceased, leaving $2,100 to his widow. The present value of these future losses to the wife and children, discounted at 4%, is $36,000. The deceased, while certainly not a good example of industry, was nevertheless kind and devoted to his children. According to his widow, whose testimony on this I accept, he spent considerable time with them; frequently played ball with them; encouraged them to study and took them to the museums. The children have lost this care and nurture which I find to be worth $750 per year to each child. Each of them, therefore, has already lost $3,750 for the period 1955 through 1959. These losses are not subject to discount. Richard will continue to lose $750 each year during the period 1960 through 1965. The present value of these losses, discounted at 4%, is $3,930. Robert will continue to lose $750 each year during the period 1960 through 1966. The present value of these losses, discounted at 4%, is $4,500. The foregoing findings as to losses are summarized as follows: $ 3,000. Deceased’s conscious pain and suffering 15,750. Widow’s and children’s lost benefits from earnings- (already sustained 36,000. (future ............. 3.750. 3,930. Richard’s loss of nurture, etc. (already sustained (future ......... 3.750. Robert’s “ “ “ “ (already sustained 4,500. (future ......... Total Losses ... .$70,680. The total award for losses of the widow and children from pa