Kongs v. Oceanic & Oriental Nav. Co.

• Decision Date: 26 February 1931
• Docket Number: No. 18854.,18854.
• Citation: 47 F.2d 650
• Court: U.S. District Court — Northern District of California
• Parties: KONGS v. OCEANIC & ORIENTAL NAV. CO. et al.

47 F.2d 650 (1931)

KONGS v. OCEANIC & ORIENTAL NAV. CO. et al.

No. 18854.

District Court, N. D. California, S. D.

February 26, 1931.

S. T. Hogevoll, of San Francisco, Cal., for plaintiff.

Brobeck, Phleger & Harrison, of San Francisco, Cal., for defendants.

ST. SURE, District Judge.

Plaintiff, a seaman, brought this action on the law side of the court under the provisions of the Merchant Marine Act of 1920, § 33 (section 688, USCA, title 46), seeking damages against the defendants for negligence and for loss of wages.

Defendants demur upon several grounds, two only of which I deem it necessary to consider. The first questions the right of plaintiff to claim damages for negligence and for loss of wages in the same action; and the second objects that, even if wages may be recovered in the same action, each claim must be separately stated.

1. As we have seen, the action is brought under the provisions of the Merchant Marine Act of 1920, which provides that: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply."

The United States Supreme Court has construed this act as modifying the prior maritime law of the United States by giving to seamen injured through negligence the rights given to railway employees by the Federal Employers' Liability Act and its amendments (45 USCA §§ 51-59), and permitting these new and substantive rights to be asserted and enforced in actions in personam against the employers in federal and state courts administering common-law remedies, or in suits in admiralty in courts administering maritime remedies. Lindgren, Adm'r, v. United States et al., 281 U. S. 38, 50 S. Ct. 207, 74 L. Ed. 686.

In Panama Railroad Co. v. Johnson, 264 U. S. 375, 388, 44 S. Ct. 391, 394, 68 L. Ed. 748 the court says: "Rightly understood, the statute neither withdraws injuries to seamen from the reach and operation of the maritime law, nor enables the seamen to do so. On the contrary, it brings into that law new rules drawn from another system and extends to injured seamen a right to invoke, at their election, either the relief accorded by the old rules or that provided by the new rules. The election is between alternatives accorded by the maritime law as modified, and not between that law and some nonmaritime system."

Flynn v. Panama R. Co., 121 Misc. Rep. 239, 201 N. Y. S. 56, was a case where a seaman brought an action to recover for personal injuries and expense of maintenance and cure as the result of an accident. The jury found a verdict for the plaintiff, and made allowance therein for the expenses of maintenance and cure, as well as for damages for injuries sustained. In...