265 F.2d 426 (1st Cir. 1959), 5429, Mitchell v. Trawler Racer, Inc.

Docket Nº:5429.
Citation:265 F.2d 426
Party Name:Frank C. MITCHELL, Plaintiff, Appellant, v. TRAWLER RACER, INC., Defendant, Appellee.
Case Date:April 07, 1959
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 426

265 F.2d 426 (1st Cir. 1959)

Frank C. MITCHELL, Plaintiff, Appellant,

v.

TRAWLER RACER, INC., Defendant, Appellee.

No. 5429.

United States Court of Appeals, First Circuit.

April 7, 1959

Page 427

Morris D. Katz, Boston, Mass., for appellant.

James A. Whipple, Boston, Mass., for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit judges.

MAGRUDER, Chief Judge.

The amended complaint in this case, filed on the law docket of the United States District Court, sought damages for personal injuries sustained by a member of the crew of the fishing vessel Racer when he lost his footing while leaving the vessel due to the presence, as claimed, of some slimy substance. Court I of the amended complaint was based upon the Jones Act (41 Stat. 1007), 46 U.S.C.A. § 688, and charged that the accident was caused by various acts of negligence on the part of the shipowner or members of the crew. Count II was 'brought under the General Maritime Law for Unseaworthiness'. Count III claimed $5, 000 damages for the expenses of maintenance and cure. The trial judge left all three counts to the jury, which returned verdicts for the defendant on Counts I and II and for the plaintiff in the sum of $2, 500 on Count III. On October 2, 1958, judgment was entered pursuant to the verdict.

Plaintiff duly took an appeal from 'that portion of the Judgment entered on October 2, 1958, relating to Count II of the plaintiff's Amended Complaint, the said Count II being based upon the unseaworthiness of the defendant's vessel.' In charging the jury, over plaintiff's objection, the trial judge had treated Count II based on unseaworthiness (confessedly relating to the same accident as was covered by Count I) as requiring proof of the presence of the unseaworthy condition for a sufficient length of time, from which the inference might be drawn that defendant, or his servants, in the exercise of due care, ought to have discovered the presence of the slimy substance and removed it. On other words, as the district court put the issue of unseaworthiness to the jury, he asked them to find whether as a matter of fact there was a slimy substance on the rail of the ship, and if so 'was it there for a reasonably long period of time so that a shipowner ought to have see that it was removed?'. Appellant contends that this was a misdirection of law; that damages caused by unseaworthiness are recoverable without fault, and independent of negligence; and that at the moment the slimy substance appeared on the rail, the vessel, or its equipment, became unseaworthy, with the result that there remained to be considered by the jury under Count II, assuming that the jury believed the slime was there, only the question whether this unseaworthy condition was a proximate cause of the plaintiff's injury.

At the outset, we think we ought of our own motion to take note of a possible

Page 428

lack of jurisdiction in the district court sitting as a court of law with a jury, not as a court of admiralty. See Louisville & Nashville R.R. Co. v. Mottley, 1908, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126. Though there was no diversity of citizenship to give jurisdiction to the district court under 28 U.S.C. § 1332, the complaint was properly filed under what had been the interpretation by this court in Doucette v. Vincent, 1 Cir., 1952, 194 F.2d 834, 839, of the jurisdictional risdictional provisions of 28 U.S.C. § 1331. But our holding in that case has recently been disapproved by the Supreme Court in Romero v. International Terminal Operating Co., 1959, 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368. Therefore, no longer can it be asserted that there was an independent basis of jurisdiction under 28 U.S.C. 1331 which would authorize the district court with jury to entertain a complaint based on unseaworthiness as provided in the general maritime law. The same might be said for Count III, for maintenance and cure, though that count is not now before us.

However, as counsel for appellant has pointed out, the district court, despite the lack of diversity of citizenship, had jurisdiction of Count I, a substantial cause of action based upon the Jones Act, so that, pursuant to the actual holding in the Romero case, that court thereby acquired a 'pendent' jurisdiction of the related claims under the general maritime law growing out of the same acts.

The Supreme Court has applied the doctrine of 'pendent' jurisdiction to a case where the pendent or ancillary cause of action was the creation of state law. Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. The present is indeed an a fortiori case for the application of the 'pendent' doctrine, for here, although the same considerations favor a consolidate action, there is no problem at all of federal-state relations, and the substantive law to be applied to Count II is federal law, that is, the general maritime law as understood and applied in the United States and as formulated, ultimately, by the Supreme Court of the United States. Compare Massachusetts Universalist Convention v. Hildreth & Rogers Co., 1 Cir., 1950, 183 F.2d 497, where the pendent claim, which the federal court had 'jurisdiction' to entertain, was a state-created claim; we held there that the district court did not commit an abuse of discretion in dismissing the pendent claim without prejudice, it having dismissed the 'substantial' federal claim as a matter of law, upon a preliminary motion to dismiss. In a case like the present one, even if the district court had been able to dispose of the federal claim under the Jones Act without trying any issues to the jury, dismissal of the 'pendent' claim would hardly have been justified. In view of the fact that the 'pendent' claim here, under Count II, is a federal maritime claim, which the district court certainly had jurisdiction to entertain and determine as a court of admiralty, the most that the district court could have done after dismissing the Jones Act count would have been to transfer the remainder of the case to the court's admiralty docket, there to be determined by the admiralty judge sitting without a jury. See Jordine v. Walling, 3 Cir., 1950, 185 F.2d 662.

Where the 'pendent' claim is cognizable in a court of admiralty, under the...

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