202 A.D. 226, Tammis v. Panama Railroad Co.

Citation:202 A.D. 226
Party Name:AUGUST TAMMIS, Appellant, v. PANAMA RAILROAD COMPANY, Respondent.
Case Date:June 29, 1922
Court:New York Supreme Court Appelate Division, Second Department

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202 A.D. 226




Supreme Court of New York, Second Department.

June 29, 1922

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APPEAL by the plaintiff, August Tammis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 28th day of February, 1922, dismissing the action upon the ground that the court had no jurisdiction thereof under section 20 of the Seamen's Act, 1915, also known as the La Follette Act (38 U.S. Stat. at Large, 1185, chap. 153), approved March 4, 1915, as amended by section 33 of the Merchant Marine Act, 1920, also known as the Jones Act (41 id. 1007, chap. 250), approved June 5, 1920.

The plaintiff, a resident of Richmond county, was a mariner, a ship's carpenter, on the defendant's steamship Cristobal. The defendant is a domestic corporation having its principal office in the borough of Manhattan, New York county. On October 10, 1921, while the steamship on a voyage from New York to the Canal Zone was lying alongside the pier at Cristobal, by direction of the mate plaintiff was 'warming up' a windlass on the deck of the ship preparatory to its use in shifting the vessel to another pier. The windlass did not work properly and the mate told him to go below to ascertain what the trouble was with the engine which supplied the steam. While plaintiff was carrying out the order the engine blew up, scalding and otherwise injuring him. He alleges, and offered evidence, that one of the cylinders in the engine was defective and cracked, that the crack had been improperly welded, that the defect had existed for some time and that he had frequently called it to the attention of his superior officers who insisted that it was safe and ordered him to go on with his work. He brought this action to recover damages for his injuries, charging that they were due to the negligence of the defendant and claiming full indemnity because he alleged the defect in the engine rendered the vessel unseaworthy. After plaintiff had been examined and cross-examined concerning the accident, the counsel for defendant moved for a dismissal of the action upon the ground that under the Merchant Marine Act of 1920 (41 U.S. Stat. at Large, 1007, § 33, amdg. Seamen's Act, 1915 [38 id. 1185], § 20) jurisdiction of actions by seamen to recover damages for injuries received in the course of their employment was exclusively in the Federal courts. The learned trial justice granted the motion and the plaintiff appeals.


Silas B. Axtell, for the appellant.

Richard Reid Rogers, for the respondent.

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We have here an action by a mariner, one of the crew of a vessel of the United States engaged in commerce and navigation, to recover damages from the shipowner, his employer, for injuries received in the course of his employment, as he alleges, (1) because of the negligence of the shipowner, (2) because of the unseaworthiness of the vessel.

Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance ( Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 60), and article 3, section 2, subdivision 1, of the Constitution of the United States extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction. Article 1, section 8, subdivision 18, gives Congress the power to make all laws necessary for the execution of the powers granted. By section 9 of the Judiciary Act of 1789 (1 U.S. Stat. at Large, 76, 77) the District Courts of the United States were given 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, * * * saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.' This grant was continued by the United States Revised Statutes (§ § 563, 711) and by the Judicial Code (§ § 24, 256). (Kennedy v. Cunard Steamship Co., Ltd., 197 A.D. 459, 464, 466.) [a1] On June 5, 1920, Congress enacted the Merchant Marine Act of 1920, entitled 'An Act to provide for the promotion and maintenance of the American merchant marine, to repeal certain emergency legislation, and provide for the disposition, regulation, and use of property acquired thereunder, and for other purposes' (41 U.S. Stat. at Large, 988, chap. 250), and in section 33 (Id. p. 1007) amended section 20 of the Seamen's Act (38 id. 1185), passed March 4, 1915, entitled 'An Act to promote the welfare of American seamen in the merchant marine of the United States; to abolish arrest and imprisonment as a penalty for desertion and to secure the abrogation of treaty provisions in relation thereto; and to promote safety at sea' (38 id. 1164, chap. 153), as follows:

'Sec. 33. That section 20 of such Act of March 4, 1915, be, and is, amended to read as follows:

"Sec. 20. That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal

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injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located."' (Italics mine.)

It is contended by the defendant employer respondent that this last clause in section 33 of the Merchant Marine Act of 1920 takes such an action as this, brought by a seaman who suffered injury in the course of his employment, out of the saving clause in the Judiciary Act of 1789 as continued in the United States Revised Statutes and Judicial Code (supra), and thus vests exclusive jurisdiction in the District Court of the United States.

Whatever jurisdiction the State courts have over maritime cases depends upon the saving clause in the original Judiciary Act of 1789 continued as above indicated.

It has been held that seamen were 'suitors' who might avail themselves of the common-law remedy saved by the Judiciary Act of 1789. (Leon v. Galceran, 78 U.S. [ 11 Wall.] 185; Rounds v. Cloverport Foundry, 237 id. 303, 307; Leone v. Booth Steamship Co., 232 N.Y. 183; Keep v. White, 195 A.D. 736; Kennedy v. Cunard Steamship Co., Ltd., 197 id. 459.) But the right of a seaman to recover damages from the shipowner was limited by the rules peculiar to the sea and to their employment (The Osceola, 189 U.S. 158) and the damages recoverable were limited in like manner. They were met with the fellow-servant rule, the law as to assumption of risk, and except in cases of unseaworthiness and other plain violations of a fundamental duty of the shipmaster towards his crew, they could not recover full indemnity, being limited to loss of wages, cure and maintenance. (Keep v. White, supra.) Congress sought to relieve them...

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