Schuede v. Zenith S.S. Co.

Decision Date03 June 1914
Docket Number8694.
Citation216 F. 566
PartiesSCHUEDE v. ZENITH S.S. CO.
CourtU.S. District Court — Northern District of Ohio

Newcomb Newcomb & Chapman and Frank M. Cobb, all of Cleveland, Ohio and W. J. Mahon, of New York City, for plaintiff.

Goulder Day, White & Garry, of Cleveland, Ohio, for defendant.

KILLITS District Judge.

The plaintiff, at the time of the injury of which he complains was a wheelsman upon the Saxona, a vessel then enrolled and licensed to navigate the Great Lakes, and owned by the defendant, a Minnesota corporation. In the petition the plaintiff refers his injury to defective rigging and to an improvident order made while the vessel was moored to a dock in the river at Cleveland, in waters within the jurisdiction of maritime law. The Genessee Chief, 12 How. 443, 13 L.Ed. 1058.

This action was begun at law in the state court, and was removed to this court because of diversity of citizenship. The proposition before the court requires the same determination as if the case were still in the state court. Defendant pleads that plaintiff's employment, in the course of which he was injured, was under a maritime contract, and that his rights of recovery in such an action as this are determinable by the incidents of such a contract. Averments of the answer in this behalf are made the subject of a motion to strike out, and thereby the question is raised whether in the trial of this action the defendant may demand the application of the maritime law respecting the rights, duties, and liabilities of master to seaman and the relation of fellow servant and the force to be given to the principle of contributory negligence, or whether the action is to be controlled by the Ohio Employers' Liability Act (section 6244 et seq., General Code). Involved in the questions of construction are the provisions of paragraphs 3, respectively, of sections 24 and 256 of the Judicial Code of the United States (Act March 3, 1911, section 711, R.S.U.S. (U.S. Comp. St. 1901, p. 577)), for a saving to suitors against the exclusive jurisdiction of admiralty 'in all cases the right of a common-law remedy, when the common law is competent to give it.'

It is clear that plaintiff could have proceeded in admiralty for an injury arising in the course of such employment either in rem or in personam, in which case his rights would be determinable only by the principles of the maritime law; and it seems, therefore, to be the contention of his counsel that, because of the language quoted above from the Judicial Code, he has the option of entering the state court and at law there work out his rights by the law of the forum, enjoying whatever advantages he believes the state law offers to one complaining of injuries received in his master's service. It must be conceded that the plaintiff's employment was under a maritime contract. Gabrielson v. Waydell, 135 N.Y. 1, 31 N.E. 969, 17 L.R.A. 228, 31 Am.St.Rep. 793; Cornell Steamboat Co. v. Fallon, 179 F. 293, 102 C.C.A. 345. Both the general admiralty law and its statutory modifications treat, and have always treated, those engaged as seamen with particular favor, and the law in admiralty defines with particularity the reciprocal duties and responsibilities of owner and crew, master and seaman. The Osceola, 189 U.S. 158, 23 Sup.Ct. 483, 47 L.Ed. 760.

We agree with counsel for defendant that the principles of the general maritime law in force in the United States and not the subject of specific enactment by Congress are to be treated as if actually on the statute books. This must be construed to be the effect of section 2, article 3, of the Constitution, extending the power of the federal courts 'to all cases of admiralty and maritime jurisdiction,' thus practically adopting the general law of admiralty as the law of this country, and such general law in force when the Constitution was adopted and not modified by act of Congress has the same force and is to be treated with the same consideration which must be given to statutes upon the subject. Murray v. Chicago & Northwestern Railroad Co. (C.C.) 62 F. 24; The Lottawanna, 21 Wall. 558, 22 L.Ed. 654. A state may not pass any act which abridges or enlarges the responsibilities or duties of maritime law. Rights in admiralty cannot be affected by state enactment. The Moses Taylor, 4 Wall. 411, 18 L.Ed. 337; The Hine v. Trevor, 4 Wall. 555, 18 L.Ed. 451; The Lottawanna, supra; Butler v. Boston Steamship Co., 130 U.S. 527, 9 Sup.Ct. 612, 32 L.Ed. 1017; Workman v. New York, 179 U.S. 552, 21 Sup.Ct. 212, 45 L.Ed. 314.

But for the exception in the act of 1879 (section 711, R.S.), carried into the present Judicial Code, allowing suitors recourse to a competent common-law remedy, it would seem that the citations above, asserting the controlling force of general and statutory maritime law, indicate the necessity to overrule the motion before the court. To advance that saving clause as a reason why the plaintiff may escape what he may assume to be the disadvantages incident to his maritime contract and seek the advantages of the state law in his suit in a state court upon such a contract is, in our judgment, to misapprehend what is meant in this provision by the word 'remedy.' It must be observed, as suggested by Justice Field, in The Moses Taylor, supra, quoted approvingly in The Glide, 167 U.S. 606, 617, 17 Sup.Ct. 930, 42 L.Ed. 296, that what is saved to a suitor 'is not a remedy in the common-law courts, but a common-law remedy'; that is, as we paraphrase it, the suitor who has a right of action growing out of a maritime contract may not go into a law court to find a new remedy, but he may employ a common-law forum, if one is found competent to work out the rights involved in his contract.

In the case before us, the maritime law is not so favorable to the plaintiff touching the range of defense to his action as would be the Ohio law; but those defenses which he seeks to avoid are incidents to and, as against him, liabilities of his contract. They help define his contract of employment, and hence, although employable against him in defense, are no part of the remedy, as that term is used in the saving clause of the Code. The clause 'leaves open the common-law jurisdiction of the state courts over torts committed at sea' (The Hamilton, 207 U.S. 398-404, 28 Sup.Ct. 133, 52 L.Ed. 264), and, in our judgment, does nothing else. The extent of liability for such a tort to be enforced in a common-law jurisdiction is to be restrained by the law which created the relation in which it was committed. This is the position taken by the court in Gabrielson v. Waydell, supra. It is precisely the distinction drawn in cases dealing with conflicts between the lex loci contractus and the lex fori, well illustrated in the case of Heaton v. Eldridge, 56 Ohio St. 87, 46 N.E. 638, 36 L.R.A. 817, 60 Am.St.Rep. 737, enforcing the principle that:

'Contracts receive their sanction from the law of the place where they are executed and to be performed, and their interpretation is controlled by that law; but the remedy upon the contract will be administered according to the law of the place where the remedy is sought.'

The Supreme Court of Ohio held that the statute of frauds may, in an action in this state, be pleaded against the enforcement of a contract made in Pennsylvania, where no such statute was in force against the contract, because the defense did not affect the obligations under the contract, but their enforcement only. In Davis v.

Morton, 5 Bush (Ky.) 160, 96 Am.Dec. 345, set-off against the maker was allowed against the remote indorsers of a note made in Tennessee, but sued on in Kentucky, because the Kentucky law of set-off, in the court's judgment, belonged rather to the remedy then to the substance. In Downer v. Chesebrough, 36 Conn. 39, 4 Am.Rep. 29, it was held that the lex fori controlled the remedy upon a contract, but the lex loci contractus governed its obligations.

As we look at it, the provisions of the law maritime as to the relation of a seaman to his employment are part of the substance and obligations thereof, which cannot be modified by state law, even through recourse to the saving clause of the Code. The question before the court has apparently never been specifically passed upon by a court of higher jurisdiction than ours, so far as we know; but, so far as the force of the expression of the Judicial Code granting this saving to suitors has been discussed at all by the Supreme Court of the United States, it has been consistent entirely with the position which we take, as is seen by citation above from The Hamilton and The Moses Taylor. An earlier case is that of Steamboat Co. v. Chase, 16 Wall. 532, 534 21 L.Ed. 369, in which it was urged that the saving of a right to enter the state courts was not applicable to a case where the right of action which might have been enforced in admiralty was not created by a state s...

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  • Garrett v. Cormack Co
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    ...42 S.Ct. 475, 476, 66 L.Ed. 927; Messel v. Foundation Co., 274 U.S. 427, 434, 47 S.Ct. 695, 698, 71 L.Ed. 1135; and see Schuede v. Zenith S.S. Co., D.C., 216 F. 566. Disagreement over the constitutional issues of the cases in the Jensen line has not extended to this principle. Cf. The Lotta......
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