315 F.2d 129 (3rd Cir. 1963), 13980, Leport v. White River Barge Line

Docket Nº:13980.
Citation:315 F.2d 129
Party Name:Cyrus LEPORT, Jr., Appellant, v. WHITE RIVER BARGE LINE.
Case Date:March 07, 1963
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 129

315 F.2d 129 (3rd Cir. 1963)

Cyrus LEPORT, Jr., Appellant,

v.

WHITE RIVER BARGE LINE.

No. 13980.

United States Court of Appeals, Third Circuit.

March 7, 1963

Argued Dec. 14, 1962.

Rehearing Denied March 28, 1963.

Page 130

Hymen Schlesinger, Pittsburgh, Pa., for appellant.

Norman J. Cowie, Pittsburgh, Pa. (Pringle, Bredin & Martin, Pittsburgh, Pa., on the brief), for appellee.

Before KALODNER and FORMAN, Circuit Judges, and ROSENBERG, District judge.

KALODNER, Circuit Judge.

Is negligent breach of a duty imposed by law to furnish medical care to an injured seaman an 'accident' within the meaning of the Pennsylvania Non-Resident Vessel Owners' Act 1 which provides for service of process on a non-resident owner or operator of a vessel by serving the Secretary of the Commonwealth in an action against such owner or operator 'arising out of, or by reason of, any accident or collision, occurring within the waters of the Commonwealth in which such vessel is involved.'

The District Court answered the question in the negative. The issue is novel in that the precise question has never been decided by the appellate courts of Pennsylvania nor any of its inferior courts as far as our research and that of counsel has disclosed. That being so we are required to consider such approach to the problem as may be indicated by Pennsylvania cases in the general field and to resort to general applicable principles, if necessary, to reach a decision consistent with Pennsylvania law. In sum, it is incumbent on us to make our own determination of what the Pennsylvania Supreme Court would probably rule in interpreting the word 'accident' as used in the Pennsylvania Non-Resident Vessel Owners' Act ('Pennsylvania Act').

The plaintiff brought a civil action against the defendant in the District Court of the Western District of Pennsylvania under the Jones Act 2 for negligence and under the general maritime law for unseaworthiness to recover damages for personal injuries sustained by him while employed as a seaman upon a vessel owned and operated by the defendant. The plaintiff averred in the complaint that the sustained injuries to his hand, arm and shoulder by reason of the negligent navigation of the vessel while it was bound up the Ohio River on a voyage from Point Pleasant, West Virginia, to Pittsburgh, Pennsylvania. The complaint also charged, in substance, that plaintiff's injuries were aggravated by failure to provide him with medical care when the vessel reached Pittsburgh and the refusal of the Master of the vessel to permit him to go ashore for medical treatment. It further appears in the complaint that the plaintiff is a resident and citizen of West Virginia and that the defendant is a citizen of Arkansas with its principal office in that State.

The summons was served on the Secretary of the Commonwealth on the theory that the defendant's vessel had been 'involved' in an 'accident' when it failed to provide the plaintiff with medical care at Pittsburgh, thereby making applicable the substituted service provisions of the Pennsylvania Act. The defendant's motion to dismiss challenged the service of the summons under the Pennsylvania Act thereby presenting the issue of the jurisdiction of the Court over the defendant's person. The motion to dismiss also raised the issue of lack of venue.

The District Court dismissed the complaint on the jurisdictional ground. It

Page 131

held that the word 'accident' did not encompass breach of the maritime obligation to furnish an injured seaman with medical care and that the service of the summons was invalid for that...

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