Heredia v. Davies

Decision Date14 April 1926
Docket NumberNo. 2455.,2455.
Citation12 F.2d 500
PartiesHEREDIA v. DAVIES.
CourtU.S. Court of Appeals — Fourth Circuit

Samuel E. Forwood, of Norfolk, Va. (Henry Bowden, of Norfolk, Va., and Silas B. Axtell, of New York City, on the brief), for appellant and cross-appellee.

Barron F. Black, of Norfolk, Va. (John S. Wise, Jr., of New York City, and Hughes, Vandeventer & Eggleston, of Norfolk, Va., on the brief), for appellee and cross-appellant.

Before WADDILL and PARKER, Circuit Judges.

PARKER, Circuit Judge.

This is a cross-appeal in a libel proceeding filed by Echmundo Heredia, a citizen of Peru, hereafter referred to as libelant, against the Peruvian steamship Apurimac (G. F. Davies, master), hereafter referred to as respondent, to recover damages for personal injuries sustained by him on that vessel while she was at the dock in New York City. Libelant was employed as a messman on the Apurimac. He claims that his arm was broken and that he received other injuries as the result of falling down a stairway while carrying dishes in the regular course of his duties from the galley to the dining room. He claims that his fall was caused by the defective condition of one of the steps of the stairway, in that a piece of metal, the function of which was to hold down the rubber covering of the step, had become loosened and projected above the level of the step, and that this projecting piece of metal caught his foot as he was proceeding down the stairway, and caused him to fall to the bottom. The allegations of libelant as to the condition of the step and the manner in which he received his injury were denied by respondent, and the evidence introduced was widely conflicting. The District Judge found, however, that libelant's injury occurred substantially as claimed by him, and, after a careful review of the evidence, we approve this finding.

Respondent's first contention is that, as libelant was a citizen of Peru and was injured while in the performance of his duties on a Peruvian ship, the courts of the United States are without jurisdiction to entertain the libel. With this contention we cannot agree. In the absence of treaty stipulation, the courts of admiralty of the United States have jurisdiction of all matters appertaining to a foreign ship while in the ports of this country. The Belgenland, 114 U. S. 355, 5 S. Ct. 860, 29 L. Ed. 152; The Roxen (C. C. A. 4th) 11 F.(2d) 55, decided January 14, 1926; Elder Dempster Shipping Co. v. Pouppirt (C. C. A. 4th) 125 F. 732, 60 C. C. A. 500; Cunard S. S. Co. v. Smith (C. C. A. 2d) 255 F. 846, 167 C. C. A. 174; The Ester (D. C.) 190 F. 216.

While an admiralty court of the United States is under no obligation to entertain jurisdiction of a libel to recover for personal injuries, where libelant is a foreigner and the ship is a foreign ship, it is inclined to do so when (as in this case) it is necessary to prevent a failure of justice, or when the rights of the parties would be thereby best promoted. Cunard Steamship Co. v. Smith, supra. And when in such case the District Court exercises its discretion in favor of assuming jurisdiction, this discretion will not be reviewed on appeal, in the absence of showing that it was exercised on wrong principles, or that the District Judge has acted "so absolutely differently from the view which the court of appeal holds that they are justified in saying he has exercised it wrongly." The Belgenland, supra. There was no such showing in this case. On the contrary we think that the District Court properly took jurisdiction of the cause.

Respondent next contends that the court should have applied the law of Peru in deciding the case, and that under that law a seaman had no right to libel a ship for personal injuries. As the injury complained of was received within the waters of the United...

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32 cases
  • THE FERNCLIFF
    • United States
    • U.S. District Court — District of Maryland
    • March 29, 1938
    ...in accordance with our general mercantile law as affected by applicable statutes. The Arizpa, 4 Cir., 63 F.2d 42, 43; Heredia v. Davies, 4 Cir., 12 F.2d 500; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 444, 9 S.Ct. 469, 32 L. Ed. 788. Compare E. Gerli & Co. v. Cunard S. S.......
  • Fitzgerald v. Texaco, Inc.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 12, 1976
    ...jurisdiction to avoid a failure of justice. See Gkiafis v. S. S. Yiosonas, 387 F.2d 460, 464 (4th Cir. 1967); Heredia v. Davies, 12 F.2d 500, 501 (4th Cir. 1926). See The Belgenland, 114 U.S. at 367, 5 S.Ct. 860; 5 Motor Distributors, Ltd. v. Olaf Pedersen's Rederi A/S, 239 F.2d 463, 465 (5......
  • Petition of Gulf Oil Corporation
    • United States
    • U.S. District Court — Southern District of New York
    • April 6, 1959
    ...v. The S. S. Washington, D.C.E.D.Va.1959, 172 F.Supp. 905, 908; Gilmore & Black, The Law of Admiralty § 6-33 (1957). 12 Heredia v. Davies, 4 Cir., 1926, 12 F. 2d 500. 13 Cortes v. Baltimore Insular Line, Inc., 1932, 287 U.S. 367, 371, 53 S.Ct. 173, 77 L.Ed. 14 Cf. The Hamilton, 1907, 207 U.......
  • Todd Shipyards Corporation v. The City of Athens
    • United States
    • U.S. District Court — District of Maryland
    • February 28, 1949
    ...to the same effect in the Ninth Circuit, The Balymead, 88 F.2d 144 and The Petter Lassen, D.C.Cal., 29 F.Supp. 938. But in Heredia v. Davies, 4 Cir., 12 F.2d 500, 501, where, however, the tort occurred in an American port, it was said by Judge Parker, after holding that the district court h......
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