221 F.2d 189 (2nd Cir. 1955), 14, Siegelman v. Cunard White Star Limited

Docket Nº:14, 23054.
Citation:221 F.2d 189
Party Name:Elias SIEGELMAN, individually, and as Administrator of the Estate of Eva Siegelman, deceased, Plaintiff-Appellant, v. CUNARD WHITE STAR Limited, Defendant-Appellee. Nos. 14, 23054
Case Date:February 17, 1955
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 189

221 F.2d 189 (2nd Cir. 1955)

Elias SIEGELMAN, individually, and as Administrator of the Estate of Eva Siegelman, deceased, Plaintiff-Appellant,

v.

CUNARD WHITE STAR Limited, Defendant-Appellee.

Nos. 14, 23054

Nos. 14, 23054.

United States Court of Appeals, Second Circuit.

February 17, 1955

Argued Nov. 9, 1954.

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David Fox, New York City, for appellant.

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

Before CLARK, Chief Judge, and FRANK and HARLAN, Circuit Judges.

HARLAN, Circuit Judge.

Plaintiff, in his own right and as administrator of his wife's estate, brings this action to recover for injuries suffered by his wife on the defendant's vessel, the R.M.S. Queen Elizabeth. The action was begun in a New York state court on December 14, 1951, and removed on diversity grounds to the federal district court for the Southern District of New York on January 3, 1952, the requisite jurisdictional amount being present.

On September 9, 1949, the Compass Travel Bureau, Inc., Cunard's New York agent, issued to Mr. and Mrs. Elias Siegelman document describing itself as a 'Contract Ticket.' It was a large sheet of light green paper, about 13 inches long and 11 inches wide. On the back were certain notices to passengers,

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relating to baggage, time of collection of ticket, location of the company's piers and offices, etc. On the front was printed in black Cunard's promise to provide specified transportation, in this case from New York to Cherbourg, subject to certain exceptions, and to 22 'terms and conditions, ' also printed in black. Printed in red in heavier type was a notice directing the attention of passengers to these 'terms and conditions.' Also printed in red, and in capital letters, was a statement that 'it is mutually agreed that this contract ticket is issued by the Company and accepted by the passenger on the following terms and conditions.' The paper also contained a space where the departure time, the names of the passengers and of the ship, and other data were typed in. The paper was stated to be non-transferable. In a space provided for the signature of the company, the name of the Compass Travel Bureau was typed. The paper was not signed by either of the passengers.

On September 24, 1949, when the Queen Elizabeth had been at sea four days, Mrs. Siegelman was injured. While she was seated in a dining room chair, she and the chair were overthrown. Her chair was alleged to be the only one in the dining room which was not bolted to the floor. Upon returning to New York, the Siegelmans retained an attorney to prosecute their claim against Cunard. On August 31, 1950, after Cunard's doctor had examined Mrs. Siegelman, Cunard offered $800, the approximate amount of medical expenses stated to have been incurred by the plaintiff and his wife, in settlement of the claim. This offer was made to the Siegelmans' lawyer over the telephone by Swaine, a claim agent of Cunard. Noticing that the ticket required suits for bodily injury to be brought within a year of the injury, and that the injury had occurred barely less than a year ago, the lawyer asked Swaine whether it would be necessary to begin suit in order to protect his clients' rights. Swaine is said to have stated that no suit was necessary, that the filing of an action would be futile in view of the prospect of early settlement, and that Cunard's offer would stand open.

Subsequently Mrs. Siegelman died. Then, on January 4, 1951, Cunard withdrew its offer, which had not yet been accepted, stating that it could not be tendered to any one other than the injured party.

On December 14, 1951, this suit was begun, claiming on behalf of the deceased damages for pain and medical expenses, and on behalf of her husband, damages for other medical expenses and for loss of consort. Cunard denied legal responsibility for the accident, and set up as a further defense the plaintiff's failure to bring the action within a year of the date the injury was suffered.

In January, 1953, the defendant moved to dismiss the action on the latter ground. Treating the motion as one for summary judgment, and having received affidavits from the attorneys and from the plaintiff, the court found the issues for the defendant, and dismissed the complaint.

On this appeal appellant asserts that Cunard is barred from using the period of limitation as a defense, because of Swaine's statement that suit was unnecessary. The provisions of the 'Contract Ticket' relevant to the appeal are as follows:

'10. * * * No suit, action or proceeding against the Company or the ship, or the Agents of either, shall be maintainable for loss of life of or bodily injury to any passenger unless * * * (b) * * * the suit, action or proceeding is commenced within one year from the day when the death or injury occurred.

'11. The price of passage hereunder has been fixed partly with reference to the liability assumed by the Company as defined by this contract, and no agreement, alteration or amendment creating any other or

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different liability shall be valid unless made in writing and signed for the Company by its Chief Agent at the port of embarkation.

'20. All questions arising on this contract ticket shall be decided according to English Law with reference to which this contract is made.'

Before reaching the merits of the plaintiff's claim, we must deal with a number of preliminary questions: (1) Are federal or state choice-of-law rules to be applied here? (2) What is the applicable choice-of-law rule of the proper authority? (3) If the applicable choice-of-law rule points to the use of English law, what difference is made by the facts that English law was not pleaded or proved below, and that the plaintiff made no attempt to supply affidavits of experts on English law, after the trial Judge had offered him an opportunity to do so?

I.

This case involves a claim based on a tort, committed on the high seas, and a defense based on a contract made in New York, to be performed there, on the high seas, and abroad. Our first question, though, is not what law governs the issues involved, but rather what law, federal or New York, controls the choice of the governing law. This is not a question of choice of laws, properly speaking, but rather a question of the division of competence between federal and state authority.

The Constitution, Article III, Section 2, extended the federal judicial power 'to all Cases of admiralty and maritime Jurisdiction.' In implementing this provision in the Judiciary Act of 1789, Congress provided that litigants might also take advantage or their common-law remedies, and this provision was interpreted to permit suits on maritime causes in state as well as federal courts. See discussion in Chelentis v. Luckenbach S.S. Co., 1918, 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171. From an early time, therefore, maritime litigation has been carried on in both systems of courts. And the law applied has been both state and federal; for example, state wrongful death acts have been applied in federal courts. See Levinson v. Deupree, 1953, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319, and the Jones Act, 46 U.S.C.A. § 688, extending the benefits of the Federal Employers' Liability Act to maritime workers, has been applied in state courts, see Garrett v. Moore-McCormack Co., Inc., 1942, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239. Under these circumstances it is not always easy to ascertain whether federal or state law governs particular issues.

In cases where federal jurisdiction is based solely on diversity of citizenship, the doctrine of Erie R.R. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, requires the application by the federal court of substantially the same law as would be applied by the courts of the state in which the federal court is held. If this case were governed by Erie, we would be required to apply New York's choice-of-law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. But suits brought in admiralty are not governed by Erie. Levinson v. Deupree, supra. And even though this case was not begun in the federal admiralty court, Erie does not require the federal court to handle the case in substantially the same fashion as a state court would. Jansson v. Swedish-American Line, 1 Cir., 1950, 185 F.2d 212, 30 A.L.R.2d 1385. That is not to say, however, that state and federal courts may always apply different substantive law in maritime cases. On the contrary, where the cause of action is created by a state statute the federal court must presumably follow the state court's interpretation of it with regard to substantive matters, see Levinson v. Deupree, supra, assuming, of course, that the state-created right may be received into admiralty under the doctrine set out in Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086,

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and its successors. The same substantive law must also be applied by federal and state courts in cases governed by federal statutes, see Garrett v. Moore-McCormack Co., Inc., supra. It has also been said that the same substantive law applies to common law actions whether brought in federal or state courts, Jansson v. Swedish-American Line, supra; and a long list of authorities is cited for this proposition, although Mr. Justice Frankfurter, in Caldarola v. Eckert, 1947, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968, may have left that issue in doubt. Cf., however, the majority and concurring opinions in Pope and Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143.

Under the circumstances, we consider that we are not bound to apply New York's choice-of-law rules. Erie and Klaxon do not...

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