Brown v. CD Mallory & Co.

• Decision Date: 30 June 1941
• Docket Number: No. 7545.,7545.
• Citation: 122 F.2d 98
• Parties: BROWN v. C. D. MALLORY & CO., et al.
• Court: U.S. Court of Appeals — Third Circuit

122 F.2d 98 (1941)

BROWN v. C. D. MALLORY & CO., et al.

No. 7545.

Circuit Court of Appeals, Third Circuit.

June 30, 1941.

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Abraham E. Freedman, of Philadelphia, Pa. (Freedman & Goldstein, of Philadelphia, Pa., on the brief), for appellant.

Edwin Longcope, of Philadelphia, Pa. (Krusen, Evans & Shaw, of Philadelphia, Pa., on the brief), for appellees.

Before BIGGS, MARIS, CLARK, JONES, and GOODRICH, Circuit Judges.

BIGGS, Circuit Judge.

The primary question presented for our determination is whether or not a seaman may maintain an action for personal injuries in admiralty in personam against his employer with foreign attachment and claim the benefits of the Jones Act¹ in a district in which his employer does not reside and in which its principal office is not located. The respondent-appellee, Swiftarrow Steamship Company, Inc., is a Delaware corporation maintaining its principal office in Delaware. There was no personal service upon any of the respondents.

In the case at bar the libel joins two causes of action: the first is one in personam framed on allegations of the employer's negligence and based upon maritime law as modified by the Jones Act; the second cause of action is an action in rem for maintenance and cure under the old maritime law without reliance upon the Jones Act. We are not concerned with the action in rem upon this appeal. We therefore will deal only with the action in personam.

The respondent-appellee, Swiftarrow Steamship Company, Inc., appeared de bene esse and moved to strike from the libel all claims and allegations related to or founded upon the Jones Act. The court below, sitting en banc, rendered a decision in favor of the respondent, D.C., 34 F.Supp. 541, and entered a decree as sought by that respondent. The appeal at bar followed.

Under the maritime law, prior to the passage of the Jones Act, a seaman who became ill or was injured in the service of his vessel could recover wages to the end of the voyage and was entitled to maintenance and cure beyond the termination of the voyage. Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L. Ed. 993. If he was injured due to the unseaworthiness of the vessel or by reason of defects in its equipment he could recover damages as well. The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760. In any action for damages brought by the seaman for personal injuries, however, all affirmative defenses such as assumption of risk, the fellow-servant rule or contributory negligence, were available to the employer. By the express terms of the Jones Act, the injured seaman "at his election" could maintain an action at law for damages for personal injury and the affirmative defenses which theretofore had been available to his employer, were abolished. The right of the seaman to maintain an action in admiralty under the Jones Act as distinguished from an action at law was established by the Supreme Court in Panama R. R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748.

Before, as after the passage of the Jones Act the seaman could enforce his substantive rights under the maritime law by a libel in admiralty or by any available common law remedy.² Garcia y Leon v. Galceran, 11 Wall. 185, 20 L.Ed. 74. Assuming the existence of a maritime cause of action, no limitation was imposed upon the right of the injured seaman to maintain a libel in admiralty in a suit in personam. Workman v. City of New York, 179 U.S. 552, 21 S.Ct. 212, 45 L.Ed. 314. The seaman might obtain service in admiralty in a suit in personam against an employer not residing within the district or maintaining his principal office therein by attaching the property of the employer found within the district. Atkins v. The Fiber Disintegrating Co., 18 Wall. 272, 21 L.Ed. 841. His right to pursue such a course was so ancient as to antedate rules of court. In re Devoe Manufacturing Co., Petitioner, 108 U.S. 401, 2 S.Ct. 894, 27 L. Ed. 764; Manro v. Almeida, 10 Wheat. 473, 490, 6 L.Ed. 369, and Rosasco v. Thompson, D.C., 242 F. 527. In fact, the seaman could enforce his rights in personam against the owner and in rem against the vessel in the same suit as he has attempted to do in the case at bar. Brown v. Lull, Fed.Cas. No. 2,018, 2 Summ. 443; Sheppard v. Taylor, 5 Pet. 675, 30 U.S. 675, 8 L.Ed. 269; Cutler v. Rae, 7 How. 729, 48 U.S. 729, 8 How. 615 Appx., 12 L.Ed. 890, 1221.

What was the effect of the Jones Act upon the prior law? In effect it created a new cause of action at law³ (as distinguished from admiralty) in the seaman for personal injuries arising by reason of the employer's negligence as distinguished from the causes of action of ancient origin which arose from defective equipment or an unseaworthy vessel. See the Act of April 22, 1908, c. 149, § 1, 35 Stat. 65, 45 U.S.C.A. § 51, the Railway Employers Liability Act. But, and this is the important thing in the case at bar, the Jones Act was engrafted bodily upon the old maritime law. As Mr. Justice Van Devanter stated in Panama R. R. Co. v. Johnson, supra, 264 U.S. page 388, 44 S.Ct. page 394, 68 L.Ed. 748, "Rightly understood, the statute Section 20 neither withdraws injuries to seamen from the reach and operation of the maritime law, nor enables the seaman 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." While in effect a new cause of action (or, at least a cause of action to which the employer's old defenses of the fellow-servant rule, assumption of risk and contributory negligence were no longer available to him) was given to the injured seaman by the Jones Act upon the law side of the court as distinguished from the admiralty side, in admiralty "new rules drawn from another system" were simply superimposed by the Jones Act upon existing admiralty law. The election between alternatives accorded to the injured seaman referred to by Mr. Justice Van Devanter is a choice between the remedies afforded him by the old maritime law and the remedy granted him by the Jones Act within the framework of admiralty law. In short, the right of a seaman to proceed under the Jones Act without trial by jury is a right to proceed under an existing, modified system of maritime law.

We come now to the interpretation and application of the venue provisions of Section 20 to the case at bar. Panama R. R. Co. v. Johnson, supra, indicated that where the benefits of the Jones Act are invoked by an injured seaman in an action on the law side of a district court, the venue provisions of Section 20 are applicable; that is to say, the suit must be brought in the district in which the employer resides or has its principal office unless the respondent waives the personal privilege accorded to it by the venue provisions. The indication thus given was followed without question.⁴ It will be borne in mind of course that the action in the Panama R. R. case was upon the law side of the district court and was not in admiralty. Where the injured seaman, however, attempted to gain the benefits of the Jones Act upon the admiralty side of the court the venue provisions of Section 20 were applied or not applied with a startling lack of unanimity. In the Eastern District of Pennsylvania it was held until the decision which we are now reviewing, that the benefits of the Jones Act were available to seamen in an action in personam in admiralty though the defendant neither resided in or had his principal place of business in the district;⁵ in other words, that the venue provisions of the Jones Act apply only to suits at law in the federal courts and had no application to suits brought in admiralty. Similar views were expressed in other jurisdictions.⁶ The opposite view was stated at least three times.⁷ It should be pointed out, however, that in none of the cases cited in notes 5, 6 and 7 was a writ of foreign attachment issued to compel the appearance of the respondent. No great light is thrown upon this question by an examination of the legislative history of the Jones Act.⁸

The decision of the Supreme Court in Panama R. R. Co. v. Johnson, supra, extended the scope of Section 20 to give an injured seaman an action upon the admiralty side of a district court. In the cited case the defendant urged two grounds for reversal. The first was that the District Court of the Eastern District of New York had no jurisdiction because the defendant did not have its principal office in that district. The Supreme Court held that the defendant had waived the venue requirement. The second argument was that the Jones Act was unconstitutional. The Supreme Court found no merit in this contention, Mr. Justice Van Devanter stating, 264 U.S. page 391, 44 S.Ct. page 395, 68 L.Ed. 748, "* * * the statute leaves the injured seaman free under the general law — sections 24 (par. 3) and 256 (par. 3) of the Judicial Code 28 U.S.C.A. §§ 41(3), 371, subd. 3 — to assert his right of action under the new rules i. e., the Jones Act on the admiralty side of the court. On that side the issues will be tried by the court, but if he sues on the common-law side there will be a right of trial by jury. So construed, the statute does not encroach on the admiralty jurisdiction intended by the Constitution, but permits that jurisdiction to be invoked and exercised as it has been from the beginning." In short, the Supreme Court held that the advantages of the Jones Act were available to a seaman on the admiralty side of the district court and that this jurisdiction could be invoked as from the beginning. Jurisdiction of a district court in admiralty could always be invoked wherever the litigation involved injuries to a seaman at sea. As to venue in...