263 F.2d 437 (2nd Cir. 1959), 22, Bartholomew v. Universe Tankships, Inc.

Docket Nº:22, 25011.
Citation:263 F.2d 437
Party Name:Aston BARTHOLOMEW, Plaintiff-Appellee, v. UNIVERSE TANKSHIPS, INC., Defendant-Appellant.
Case Date:January 09, 1959
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 437

263 F.2d 437 (2nd Cir. 1959)

Aston BARTHOLOMEW, Plaintiff-Appellee,

v.

UNIVERSE TANKSHIPS, INC., Defendant-Appellant.

Nos. 22, 25011.

United States Court of Appeals, Second Circuit.

January 9, 1959

         Argued Oct. 8, 1958.

their verdict.

Page 438

         Morton M. Shreck and Nathan L. Berke, New York City, for plaintiff-appellee.

         Victor S. Cichanowicz, New York City (Cunningham & Cichanowicz, New York City, on the brief), for defendant-appellant.

         Before CLARK, Chief Judge, and MEDINA and LUMBARD, Circuit Judges.

         MEDINA, Circuit Judge.

         Aston Bartholomew, a citizen of the British West Indies, was a seaman on board the Ulysses, a vessel owned and operated by appellant, a Liberian corporation, and flying the flag of Liberia. On April 15, 1952, as the vessel was proceeding within the three-mile limit, and hence in the territorial waters of the United States, Bartholomew was assaulted by a fellow member of the crew who had previously attacked other seamen. The complaint alleged a claim based upon the Jones Act, another based upon alleged unseaworthiness under the Maritime Law and a third claim for maintenance and cure, also under the Maritime Law. Over the objection of appellant

Page 439

the trial judge held: That the circumstances disclosed by the evidence made the Jones Act applicable; that, although the trial was had on the civil side of the Court to a judge and jury, and not in admiralty, there was pendent jurisdiction over the maritime cause for unseaworthiness of the vessel; and he submitted both the Jones Act claim and the maritime cause for unseaworthiness to the jury, reserving the maintenance and cure maritime cause for decision by himself as a 'judge in admiralty, ' his determination to be based upon the evidence adduced at the trial and such further proofs as the parties might with to offer later. The jury found for Bartholomew on each of the claims submitted to it, fixing the damages in the sum of $24, 600, or $25, 000, less the $400 paid upon the signing of a release by Bartholomew which the jury disregarded as not binding on him. The maintenance and cure claim is held in abeyance pending the outcome of this appeal.

         Appellant contends: that the court below improperly found the Jones Act applicable; that in any event the maritime cause should not have been submitted to the jury; that it was error to refuse to give certain instructions to the jury as requested by appellant; and that the motion to set aside the verdict and grant a new trial should have been granted because the jurors allegedly compromised their views on the subject of damages. We shall discuss seriatim these points and the evidence and the portions of the record relevant to each.

         Applicability of the Jones Act

         Did the District Court err in holding that Bartholomew had a right to invoke the Jones Act against his employer, a Liberian corporation? In Lauritzen v. Larsen, 1953, 345 U.S. 571, at page 582, 73 S.Ct. 921, at page 928, 97 L.Ed. 1254, the Supreme Court tells us that the answer is to be found by 'ascertaining and valuing points of contact between the transaction and the states or governments whose competing laws are involved, ' and by 'weighing * * * the significance of one or more connecting factors between the shipping transaction regulated and the national interest served by the assertion of authority, ' such as the place of the wrongful act, the law of the flag, the allegiance or domicile of the claimant, the allegiance of the shipowner, the place of contract between the parties, the inaccessibility of the foreign forum and the law of the forum.

         A study of the numerous adjudicated Jones Act cases reveals not only the vagueness inherent in the general and undefined direction in Lauritzen for the 'valuing' and 'weighing' of the various facts or groups of facts that are said to be 'points of contact' between the transactions be 'points of contact' between the transaction laws are involved, but also a lack of any common principle of decision or method of approach to the problem. Sometimes the courts seem to be employing choice of law techniques, and not infrequently the result arrived at seems to be based on mere dialectic manipulation or guesswork. All this, however, is to be expected as new law develops in a new field. This substantial background of judicial consideration of a great variety of combinations of relevant factors in cases where application of the Jones Act is asserted on the one hand and denied on the other makes it possible for us to under-take a restatement of the method of approach and the principles to be applied.

         To begin with, as pointed out in Lauritzen, 345 U.S at page 578, 73 S.Ct. at page 926, 'we are simply dealing with a problem of statutory construction.' For this reason traditional choice of law techniques may be more misleading than helpful.

         In the second place, certain possible interpretations of the Jones Act have already been rejected, and their elimination simplifies the problem. For example, when the question was first presented it might have been held that in the enactment of the Jones Act the Congress intended to exercise the full measure of its power over the subject of the legis in which event any contact between the transaction and the United States would have been sufficient to warrant

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its application. But a contrary view prevailed. See The Paula, 2 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 it was assumed that the Congress intended the Jones Act to be given a construction in consonance with international maritime law. This meant that not every contact, no matter how ephemeral or fortuitous it might be, would be deemed a basis for applying American law, that is to say the Jones Act. Instead, as commented on in Lauritzen (345 U.S. at page 582, 73 S.Ct. at page 928) 'the necessity of mutual forbearance' to avoid international retaliation, and the desire to avoid changing and variant regulations aboard ship, have been stressed. Moreover, the courts might have so construed the Jones Act as to make some particular factor indispensable; but they did not. In other words, even if it appeared that a single special factor of obvious significance was lacking the Jones Act has been held to be applicable despite the absence of such a factor.

         Thus the Jones Act has often been applied although the 'flag of the ship' was foreign. E.g ., Uravic v. F. Jarka Co., 1931, 282 U.S. 234, 51 S.Ct. 111, 75 L.Ed. 312; Gerradin v. United Fruit Co., 2 Cir., 1932, 60 F.2d 927, certiorari denied 287 U.S. 642, 53 S.Ct. 92, 77 L.Ed 556; Gambera v. Bergoty, 2 Cir., 1942, 132 F.2d 414, certiorari denied 1943, 319 U.S. 742, 63 S.Ct. 1030, 87 L.Ed. 1699. Ownership of the vessel by American citizens was also lacking in the Uravic and Gambera cases.

         That the tort need not occur in domestic waters was clearly shown in Panama R. Co. v. Johnson, 1923, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748; Carroll v. United States, 2 Cir., 1943, 133 F.2d 690; Wenzler v. Robin Line S.S. Co., D.C.W.D.Wash.1921, 277 F. 812. In the Carroll case, supra, and in Torgersen v. Hutton, 2nd Dept. 1934, 243 A.D. 31, 276 N.Y.S. 348, affirmed 1935, 267 N.Y. 535, 196 N.E. 566, certiorari denied, 1935, 296 U.S. 602, 56 S.Ct. 118, 80 L.Ed. 426, the seaman was neither a citizen nor domiciliary of the United States.

         Other contracts such as the place of contract and the origin and destination of the vessel have probably never even been suggested as indispensable.

         Nor can a 'center of gravity' or 'place of most vital connection' approach properly rationalize the decided cases.

         Thus in the Uravic and Gambera cases though the flag of the ship and the owners of the vessel were foreign, the American citizenship or domicile of the seaman and the occurrence of the tort in the waters of the United States still led the courts to apply the Jones Act. Yet could anyone doubt that if the ship flew the American flag, without more, the Jones Act would apply? See Lauritzen v. Larsen, supra; O'Neill v. Cunard White Star, Ltd., 2 Cir., 1947, 160 F.2d 446, certiorari denied, 332 U.S. 773, 68 S.Ct. 56, 92 L.Ed. 358; Sonnesen v. Panama Transport Co., 1948, 298 N.Y. 262, 82 N.E.2d 569, certiorari denied, 1949, 337 U.S. 919, 69 S.Ct. 1157, 93 L.Ed. 1729. In this very case the 'law of the flag' controlled the determination of the maritime claim. And in Carroll v. United States, 2 Cir., 1943, 133 F.2d 690, and Bobolakis v. Compania Panamena Maritima San Gerassimo, S.A., D.C.S.D.N.Y.1958, 168 F.Supp. 236, American ownership alone was deemed sufficient to apply the Jones Act. 1 It is apparent then that the contacts considered most vital in one case are not necessarily of controlling importance in another.

         Hence it must be said that in a particular case something between minimal and preponderant contacts is necessary if the Jones Act is to be applied. Thus we conclude that the test is that 'substantial' contracts are necessary. And while as indicated supra one contact

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such as the fact that the vessel flies the American flag may alone be sufficient, this is no more than to say that in such a case the contact is so obviously substantial as to render unnecessary a further probing into the facts.

         Some of the advantages of this simple formula are that it states a rational method of ascertaining the congressional intent, and that in its application there is no occasion to consider and 'weigh' the contacts that do not exist,...

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