Civil v. Waterman Steamship Corporation, No. 92

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtCLARK, , and L. HAND and FRANK, Circuit
Citation217 F.2d 94
PartiesElise CIVIL, as Administratrix of the goods, chattels and credits of Alphonse Syville, deceased, Libelant-Appellant, and Anne Syville, as General Guardian of Alphonse Syville, Jr., Marlene Syville, Agnes Syville, Mary Syville and Shawn Syville, Co-Libelant-Appellee, v. WATERMAN STEAMSHIP CORPORATION, Respondent-Appellant,
Decision Date12 November 1954
Docket NumberNo. 92,Docket 23147.

217 F.2d 94 (1954)

Elise CIVIL, as Administratrix of the goods, chattels and credits of Alphonse Syville, deceased, Libelant-Appellant, and Anne Syville, as General Guardian of Alphonse Syville, Jr., Marlene Syville, Agnes Syville, Mary Syville and Shawn Syville, Co-Libelant-Appellee,
v.
WATERMAN STEAMSHIP CORPORATION, Respondent-Appellant,

No. 92, Docket 23147.

United States Court of Appeals Second Circuit.

Argued October 6, 8, 1954.

Decided November 12, 1954.


217 F.2d 95
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217 F.2d 96
Edward B. Eliezer, New York City, for libelant-appellant

Herman B. Gerringer, New York City (Jesse L. Rosenberg and Jacquin Frank, New York City, on the brief), for colibelant-appellee.

Edward J. Behrens, New York City (Gay & Behrens, Charles H. Lawson, James A. Hageman, and Mack Kreindler, New York City, on the brief), for respondent-appellant.

Before CLARK, Chief Judge, and L. HAND and FRANK, Circuit Judges.

CLARK, Chief Judge.

Respondent, Waterman Steamship Corporation, appeals from an award under the Jones Act, 46 U.S.C. § 688, and the Death on the High Seas Act, 46 U.S.C. § 761, for the wrongful death of a seaman employed on one of respondent's ships. Alphonse Syville, second cook on the S. S. Kyska, was fatally stabbed on December 10, 1946, by Alfred H. Williams, the chief cook, after an altercation concerning the caliber of Syville's culinary abilities. Alphonse died soon thereafter and the present suit was commenced as a civil action under the Jones Act by Anne Syville, as his lawful widow, on the basis of letters of administration issued by the New York Surrogate's Court. Before the case could be heard, Anne's letters of administration were revoked at the instance of Elise Civil, a prior wife, who was substituted as administratrix. Thereupon notwithstanding objections by respondent, the action was transferred to the admiralty docket and still later Elise was brought in as libelant. After trial in the admiralty Judge Conger made awards of $5,000 for Elise and $14,671 for Anne as guardian of Syville's five children. On this appeal respondent attacks the procedural steps leading to the trial, the substantive theory upon which recovery was based, and the amount and apportionment of the damages. An appeal by Elise from a part of the division of the damages has now been withdrawn.

217 F.2d 97

Respondent's first assignment of error is to the transfer of the case to admiralty and the addition of a second count under the Death on the High Seas Act. In seeking this amendment, Anne's counsel stated his belief that she had these two claims and did not wish to make election between them before trial and that he understood a claim was to be made that Anne was not the lawful wife and her children were not legitimate and not entitled to a recovery under the Jones Act. Respondent's opposing affidavit did so claim and objected to Anne's raising of the issue in such a "roundabout fashion" and requiring "the defendant to defend an admiralty suit under the Death on the High Seas Act without the service of process." Judge Leibell nevertheless granted the application, citing Batkiewicz v. Seas Shipping Co., D.C.S.D.N.Y., 53 F.Supp. 802, which holds that a claimant has just such an option, and The Four Sisters, D.C.Mass., 75 F.Supp. 399, which holds that recovery under one act, being for a different set of beneficiaries, does not bar recovery under the other. At the opening of the trial, respondent renewed its objections, claiming also that the court had no jurisdiction to proceed in admiralty for a death action under the Jones Act, that the original "election to proceed at law" could not be changed, and that the lawful widow was deprived of trial by jury. At this time Elise had an action pending under the Jones Act in the state court of New York, and her attorney joined in the objection — although now she expressly waives it or any claim for a jury trial. Judge Conger adhered to the earlier ruling made by Judge Leibell.

Quite obviously respondent cannot press a claim for jury trial for the benefit of the wife. The libelant under the Jones Act is the one who has the choice of forum and of jury trial, and no one else can change or remove the action elsewhere. Pate v. Standard Dredging Corp., 5 Cir., 193 F.2d 498, 500; 46 U.S.C. § 688, incorporating 45 U.S.C. § 56 and 28 U.S.C. § 1445(b); 1 Benedict on Admiralty 44, 45 (6th Ed.1940), 4 id. 199-201; Robinson on Admiralty 338-340 (1939); Willock, Commentary on Maritime Workers, 46 U.S.C.A. preceding § 688. Even if, contrary to the implication of The Four Sisters, supra, D.C.Mass., 75 F.Supp. 399, an election be required, there is nothing to force an early election upon the claimant, so at variance with the spirit of modern pleading and its liberality of amendment, Clark on Code Pleading 493, 498 (2d Ed.1947), with authorities there cited; and we have always allowed a quite free interchange between admiralty and law, indeed holding jury trial to be waived if not claimed before the interchange. See, e. g., United States ex rel. Pressprich & Son Co. v. James W. Elwell & Co., 2 Cir., 250 F. 939, certiorari denied 248 U.S. 564, 39 S.Ct. 8, 63 L.Ed. 423; James Richardson & Sons v. Conners Marine Co., 2 Cir., 141 F.2d 226, 230 note 2; United States v. The John R. Williams, 2 Cir., 144 F.2d 451, 454, certiorari denied Great Lakes Dredge & Dock Co. v. United States, 323 U.S. 782, 65 S.Ct. 271, 89 L.Ed. 625. Under F.R. 38(b) and (d), 28 U.S.C., the right of jury trial is personal to the litigant, who may waive it by his action or nonaction. Gulbenkian v. Gulbenkian, 2 Cir., 147 F.2d 173, 158 A.L.R. 990; Fidelity & Deposit Co. of Md. v. Krout, 2 Cir., 157 F.2d 912, 914; Alcoa S. S. Co. v. Ryan, 2 Cir., 211 F.2d 576, 578. And it is clear that recognition of any such claim as respondent makes would impinge on both this principle and the statutory options given the seaman or his representatives. Respondent vigorously asserts that it has "a fundamental right in litigation not to be placed in a position where it can only lose the lawsuit and cannot possibly prevail." The only meaning we can find in this is a protest that such an option to the widow to decline a procedural benefit when she sees she does not need it is unfair;

217 F.2d 98
but of course such an option is not at all unusual in the law. Thus cf. Untersinger v. United States, 2 Cir., 172 F.2d 298, and 2 Moore's Federal Practice ¶ 12.12 (2d Ed.1948) on venue or jurisdiction over the person

The other procedural error assigned is as to the order of Judge Coxe accepted by Judge Conger requiring Elise to prosecute this claim as libelant and giving Anne...

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51 practice notes
  • Troupe v. Chicago, D. & G. Bay Transit Co., No. 255
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 1, 1956
    ...Great Lakes Dredge & Dock Co. v. United States, 323 U.S. 782, 65 S.Ct. 271, 89 L.Ed. 625; Civil v. Waterman S.S. Corp., 2 Cir., 1954, 217 F.2d 94, 6 The whole record may be looked to for the purpose of curing a defective averment of jurisdiction. Sun Printing & Publishing Ass'n v. Edwards, ......
  • Ivy v. Security Barge Lines, Inc., No. 76-4130
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 4, 1978
    ...Cir. 1972, 457 F.2d 1339, Cert. denied, 1972, 409 U.S. 980, 93 S.Ct. 308, 34 L.Ed.2d 243; Civil v. Waterman Steamship Corp., 2 Cir. 1954, 217 F.2d 94. Page The Supreme Court has likewise interpreted similar language in the Federal Employers' Liability Act, 45 U.S.C. § 51. In American Railro......
  • Jones v. United States, No. 64 Civ. 977.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 23, 1969
    ...1960) ($5,000 award; tanker sank within 5 minutes; decedent enveloped in flames just prior to sinking); Civil v. Waterman S. S. Corp., 217 F.2d 94, 96, 99 (2d Cir. 1954) ($1,500 award; decedent stabbed during an altercation and "died soon thereafter"); Meehan v. Central R. R., 181 F.Supp. 5......
  • Petition of Marina Mercante Nicaraguense, SA, 63 Ad. 389
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 15, 1965
    ...Transp. Co., 244 F.2d 668, 670 (2d Cir. 1957); Briscoe v. United States, 65 F.2d 404, 406 (2d Cir. 1933). 28 Civil v. Waterman S.S. Corp., 217 F.2d 94, 99 (2d Cir. 29 Cf. Briscoe v. United States, 65 F.2d 404, 406 (2d Cir. 1933); Dixon v. United States, 120 F.Supp. 747, 752 (S.D.N.Y. 1954),......
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51 cases
  • Troupe v. Chicago, D. & G. Bay Transit Co., No. 255
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 1, 1956
    ...Great Lakes Dredge & Dock Co. v. United States, 323 U.S. 782, 65 S.Ct. 271, 89 L.Ed. 625; Civil v. Waterman S.S. Corp., 2 Cir., 1954, 217 F.2d 94, 6 The whole record may be looked to for the purpose of curing a defective averment of jurisdiction. Sun Printing & Publishing Ass'n v. Edwards, ......
  • Ivy v. Security Barge Lines, Inc., No. 76-4130
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 4, 1978
    ...Cir. 1972, 457 F.2d 1339, Cert. denied, 1972, 409 U.S. 980, 93 S.Ct. 308, 34 L.Ed.2d 243; Civil v. Waterman Steamship Corp., 2 Cir. 1954, 217 F.2d 94. Page The Supreme Court has likewise interpreted similar language in the Federal Employers' Liability Act, 45 U.S.C. § 51. In American Railro......
  • Jones v. United States, No. 64 Civ. 977.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 23, 1969
    ...1960) ($5,000 award; tanker sank within 5 minutes; decedent enveloped in flames just prior to sinking); Civil v. Waterman S. S. Corp., 217 F.2d 94, 96, 99 (2d Cir. 1954) ($1,500 award; decedent stabbed during an altercation and "died soon thereafter"); Meehan v. Central R. R., 181 F.Supp. 5......
  • Petition of Marina Mercante Nicaraguense, SA, 63 Ad. 389
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 15, 1965
    ...Transp. Co., 244 F.2d 668, 670 (2d Cir. 1957); Briscoe v. United States, 65 F.2d 404, 406 (2d Cir. 1933). 28 Civil v. Waterman S.S. Corp., 217 F.2d 94, 99 (2d Cir. 29 Cf. Briscoe v. United States, 65 F.2d 404, 406 (2d Cir. 1933); Dixon v. United States, 120 F.Supp. 747, 752 (S.D.N.Y. 1954),......
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