The Hanna Nielsen

• Decision Date: 13 April 1921
• Docket Number: 185.
• Citation: 273 F. 171
• Parties: THE HANNA NIELSEN.
• Court: U.S. Court of Appeals — Second Circuit

273 F. 171

THE HANNA NIELSEN.

No. 185.

United States Court of Appeals, Second Circuit.

April 13, 1921

Frederick R. Graves, of New York City (Martin A. Schenck, of counsel) for appellant.

Duncan & Mount, of New York City (Thomas J. Healy and Warner C Pyne, both of New York City, of counsel), for appellee.

Libelant was an oiler on the Norwegian ship Nielsen. He arrived at Portland, Me., on the steamer as a regular member of the crew. At that port he demanded and received an increase in pay and signed articles accordingly. From Portland the steamship went to Gibraltar, and while in that harbor libelant was injured by the explosion of a steam gauge. It may be assumed (but need not be found) that the gauge was dangerous, and in such a condition or of such a kind as to give libelant a right to indemnity under the maritime law of the United States as formulated in The Osceola, 189 U.S. 158 23 Sup.Ct. 483, 47 L.Ed. 760.

Libelant who is a Norwegian subject, returned to this country on the steamship and as a member of the crew. On arrival here he filed this libel in rem. The libel alleges the nationality of the steamship, but is otherwise framed almost as if to recover indemnity and/or cure and maintenance from an American vessel.

By interrogatories before trial libelant was required to state under what law he sought to recover, and then declared that 'the law of the kingdom of Norway does not apply'; but 'libelant bases his cause of action upon the British and American maritime laws which are identical so far as his cause of action is concerned.' He further averred, as the reason for the nonapplication of Norwegian law, that when his injury was received the Nielsen 'was wholly within British territorial waters.'

Libelant offered no evidence at trial as to British law; claimant proved the Norwegian law; the court dismissed the libel for indemnity, but granted an allowance for cure and maintenance. Libelant appealed; but in this court claimant asserts that libelant was at all times given proper care, and that no ground exists for any allowance whatever.

Before WARD, HOUGH, and MANTON, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

If the claim advanced herein be regarded as in contract, the breach being the shipowner's failure properly and reasonably to provide for the safety of libelant, Norwegian law, and that alone, governs the right of recovery; for 'whoever engages voluntarily to serve on board a foreign ship necessarily undertakes to be bound by the law of the country to which the ship belongs. ' The Belgenland, 114 U.S. 365, 5 Sup.Ct. 860, 29 L.Ed. 152. The seaman's contract in this instance was a Norwegian contract, and so remained throughout. The place where libelant shipped or reshipped is of no moment whatever. For other cases see Wilson v. The John Ritson (D.C.) 35 F. 663.

If the suit be regarded as sounding in tort, then the trial court had no jurisdiction, unless the tort were maritime, and the lex loci delicti applies. Whether the locus is to be regarded as on a Norwegian ship, and therefore Norwegian, or in Gibraltar harbor, and therefore British, is a question into which it is not necessary to go, further than to note that under no circumstances shown here can the law of the United States apply. The sole function of our courts is to furnish a remedy while enforcing by comity the substantially applicable law. As pointed out above, libelant repudiates Norwegian law as furnishing any ground for recovery; that he was right in so doing the evidence conclusively...