Bond v. Mellor

• Decision Date: 06 October 1949
• Docket Number: No. A-439.,A-439.
• Citation: 68 A.2d 558
• Parties: BOND et al. v. MELLOR et al.
• Court: New Jersey Superior Court

68 A.2d 558

BOND et al.

v.MELLOR et al.

No. A-439.

Superior Court of New Jersey, Appellate Division.

Argued Sept. 26, 1949.

Decided Oct. 6, 1949.

Louisa Bono and others, sued William E. Mellor and others, for damages for personal injuries sustained in a collision resulting from defendant's negligence.

The Superior Court, Law Division, denied a motion to strike the complaint, and defendants appealed.

The Superior Court, Appellate Division, McGeehan, S.J.A.D., affirmed the order, and held that the Superior Court had jurisdiction of the suit although it arose out of a maritime tort involving a plane operating on a tidewater stream and a rowboat anchored thereon.

Before Judges McGEEHAN, COLIE and EASTWOOD.

William George, Jersey City, for defendants-appellants.

James B. Emory, Jersey City, for plaintiffs-respondents (Markley & Broadhurst, Jersey City, attorneys; Edward A. Markley, Jersey City, on the brief).

The opinion of the court was delivered by

McGEEHAN, S.J.A.D.

A motion to strike the complaint on the ground that the court lacked jurisdiction of the subject matter was made by the defendants in the Law Division of the Superior Court, Hudson County. This appeal is from the order denying the motion. The sole question for decision is whether our State court has jurisdiction over the subject matter of this maritime tort suit.

The allegations of the complaint are the usual allegations setting forth a cause of action for damages for personal injuries sustained in a collision resulting from the negligence of the defendants. The collision was between a seaplane operating on a tidewater stream in Bergen County and a rowboat anchored thereon. The proceeding was in personam against the defendants and was not a proceeding in rem, nor a proceeding by an employee against an employer.

The jurisdiction of the Federal courts over this cause of action is admitted. The question is whether the Federal jurisdiction is exclusive or whether our State court has concurrent jurisdiction under the saving clause of the applicable Congressional acts.

The suit was commenced on August 4, 1941, at which time the applicable provisions of the acts of Congress were as follows:

‘The district courts shall have original jurisdiction as follows: * * * (3) Admiralty causes, seizures and prizes. Third. Of all civil causes of admiralty and maritime jurisdiction, Saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it, * * *.’ 28 U.S.C.A. s 41. [FN1] (Italics ours.)

‘The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States: * * *

‘Third. Of all civil causes of admiralty and maritime jurisdiction, Saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it * * *.’ 28 U.S.C.A. 371. [FN1] (Italics ours.)

The saving clause italicized above came down without change from the Judiciary Act of 1789.

That this action for damages for personal injuries resulting from negligence is a common-law remedy and available in this State, unless barred by constitution or statute, is not open to question. Defendants urge that the statutory provisions quoted above constitute a bar, because they give exclusive jurisdiction over maritime tort actions to the Federal courts in admiralty.

In Schoonmaker et al. v. Gilmore, 1880, 102 U.S. 118, 26 L.Ed. 95 the jurisdiction of the state court of Pennsylvania over a suit in personam, growing out of a collision between vessels while navigating the Ohio River, was questioned on the ground that the Federal courts, as courts of admiralty, had exclusive jurisdiction. The United States Supreme Court, in sustaining the jurisdiction of the state court over the subject matter, stated: ‘The Judiciary Act of 1789, 1 Stat. at L., 73, sec. 9, reproduced in sec. 563, R.S. par. 8, which confers admiralty jurisdiction on the Courts of the United States, expressly saves to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it. That there always has been a remedy at common law for damages by collision at sea, cannot be denied.’

The jurisdiction of a state court, under the saving clause, over a maritime tort action by an injured party against defendants other than his employer was considered in Caldarola v. Eckert, 1947, 332 U.S. 155, 67 S.Ct. 1569, 1570, 91 L.Ed. 1968. The court said: ‘No doubt petitioner could have sued the United States in Admiralty. * * * He chose not to do so. Presumably to obtain the benefit of trial by jury, he asked for relief from New York. There...