O'NEILL v. Cunard White Star

Decision Date05 March 1947
Docket NumberDocket 20477.,No. 174,174
Citation160 F.2d 446
PartiesO'NEILL v. CUNARD WHITE STAR, Limited.
CourtU.S. Court of Appeals — Second Circuit

Ralph V. Curtis, of Brooklyn, and Silas B. Axtell, of New York City, for appellant.

William J. Brennan and Lord, Day & Lord, all of New York City, for appellee.

Before L. HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff appeals from an order of the District Court, refusing to transfer her action from the law to the admiralty side of the court, to be prosecuted as a libel in personam. The plaintiff, a British subject, filed a complaint as administratrix of Richard O'Neill, her husband (also a British subject) against the Cunard Line, a British corporation having a place of business in the Borough of Manhattan. She sued to recover damages resulting from the intestate's death, while serving as an able seaman upon a ship belonging to the defendant. O'Neill had "signed on" in London for a voyage to Canada and return; and he was washed overboard on the high seas as the result, the plaintiff alleged, of the unseaworthiness of the ship and of the negligence of the defendant's servants. He had come to this country in 1924, had declared his intention of becoming a citizen in 1925, and had resided here ever since, but had never been naturalized. The plaintiff came here at some time before March, 1932, at which time she declared her intention of becoming a citizen, but she also had never been naturalized. The couple had four children, all born in this country, all of whom resided with their parents in Brooklyn. The defendant moved to dismiss the complaint for lack of substantive jurisdiction on the ground that both plaintiff and defendant were aliens, and the court granted the motion, giving leave, however, to the plaintiff to reframe her complaint, which she did, changing it to a libel in personam in the admiralty, based upon the Jones Act1 and upon "the Federal Statute, which governs actions for wrongful death." Again the court dismissed it, D.C., 69 F.Supp. 943 without prejudice, however, to transferring it to the admiralty side of the court. The plaintiff, this time as a libellant, then moved so to transfer it; but this the court denied, and it is from that order that the plaintiff has appealed.

In spite of its apparently interlocutory form, the order is appealable, for it put an end to the suit. Although the district court did not have substantive jurisdiction over the claim by reason of diverse citizenship, since it is based both upon the Jones Act2 and the "Wrongful Death Act,"3 it "arises" under the "laws of the United States."4 We held long ago that any ground of substantive jurisdiction will serve to support an action, regardless of the formal amendments which may be necessary to make it triable on one side or the other of the Court;5 and our decision in Cunard SS. Co. v. Smith6 is not to the contrary. The plaintiff there at bar, a stevedore, had no right of action under the Jones Act as it then stood;7 so that there was nothing for us to do but dismiss the complaint, as soon as it appeared that the necessary diversity did not exist. However, although the court of admiralty has jurisdiction over a suit between aliens, it is not obliged to exercise it:8 and the first question in the case at bar is whether this is a case in which it would be an abuse of discretion not to do so. We think that it would. The recovery will be for the benefit of the widow and children,9 and the children are citizens. Moreover, the widow herself, though not a citizen, is domiciled here, and if she cannot sue in this country, she and they are for all practical purposes deprived of their claim. Although the defendant's ship and its witnesses are presumably not in the United States, it has for many years conducted a large shipping business from New York — as everyone knows — and the inconvenience imposed upon it in trying the issues here, does not outweigh the plaintiff's loss of any right to test her cause of action. Thus the question arises whether the claim is good on the merits, which means whether, if O'Neill had been rescued, he could himself have sued for any injuries he might have suffered.10

So far as the suit is brought under the Jones Act the question is whether an alien seaman, domiciled for twenty years in the United States, who has applied for citizenship and reared a family here, may sue an alien corporation for injuries occurring on the high seas, during a voyage between foreign ports in one of which he signed the articles. We have passed upon the applicability of the Act three times in somewhat similar situations: The Paula,11 Gambera v. Bergoty,12 and Kyriakos v. Goulandris.13 In the first a German seaman was denied recovery, though injured within our waters, because he had "signed on" in Germany on a German ship for a voyage beginning and ending in Germany. In the second an Italian seaman, long domiciled in the United States, who had taken out "first papers," and had "signed on" for a voyage beginning and ending in the United States, was allowed to recover for injuries within our waters on a Greek ship: such a seaman was considered as having the status of a citizen. In the third a Greek seaman who had "signed on" for a voyage beginning and ending in the United States and was injured within our waters, was allowed to recover from a Greek ship. We may at once rule out as irrelevant Gerradin v. United Fruit Co.,14 because both the libellant and the respondent were American citizens; and the defendant was not therefore allowed the shelter of a foreign flag.

The wrong may be regarded as sounding either in tort or in contract; and in either aspect it would of course depend upon English law except as the Jones Act by fiat of Congress interposed to change the result. As a tort, the liability would be determined by the law of the flag, that being the pattern upon which rights and duties are declared for acts done upon the high seas.15 As a breach of contract, the liability might be thought to depend either upon the law of the place where the contract was made, or where the performance failed; the first place was England, the second was a British ship. The law of England would be applied on either hypothesis. The three decisions we have mentioned do not help us to decide whether we should now hold that the Jones Act interposes to change what would otherwise be the rights and duties of the parties, because in all three the act or omission was within our waters. In each the question was whether an act of Congress, at least literally applicable to the situation, should yield to the doctrine that so far as concerns the "internal economy" of a foreign ship, the law of the flag...

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34 cases
  • Lauritzen v. Larsen
    • United States
    • U.S. Supreme Court
    • May 25, 1953
    ...applied to injuries sustained while ashore in the United States by a Greek seaman employed by a Greek shipowner. In O'Neill v. Cunard White Star Line, 2 Cir., 160 F.2d 446, that court held that a British seaman injured on a British vessel on the high seas could not sue under the Jones Act.I......
  • Miller v. Phillips Petroleum Co. Norway
    • United States
    • United States State Supreme Court of Delaware
    • September 15, 1987
    ...that the Jones Act, Death on the High Seas Act, and general maritime law, i.e., American law, be applied. O'Neill v. Cunard White Star, Ltd., 160 F.2d 446, 448 (2d Cir.) ("[T]o make an American seaman a specially privileged individual in the crew of every foreign ship--enjoying a privilege ......
  • Bartholomew v. Universe Tankships, Inc.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 9, 1959
    ...Cir., 1937, 91 F.2d 1001, certiorari denied sub nom., Peters v. Lauritzen, 302 U.S. 750, 58 S.Ct. 270, 82 L.Ed. 580; O'Neill v. Cunard White Star, 2 Cir., 1947, 160 F.2d 446, certiorari denied 332 U.S. 773, 68 S.Ct. 56, 92 L.Ed. 358. Such inclusiveness was not read into the statute, since i......
  • Norwood v. Kirkpatrick
    • United States
    • U.S. Supreme Court
    • April 11, 1955
    ...Coal & Iron Co., 235 N.Y. 152, 139 N.E. 223, 32 A.L.R. 1; De la Bouillerie v. De Vienne, 300 N.Y. 60, 89 N.E.2d 15; cf. O'Neill v. Cunard White Star, 2 Cir., 160 F.2d 446; The Saudades, D.C., 67 F.Supp. 820. Even in those cases where the objection is that the suit creates an unreasonable bu......
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