Ferreira v. Sawayama-Kisen KK

Decision Date30 January 1959
Citation171 F. Supp. 96
PartiesElpidio FERREIRA, Plaintiff v. SAWAYAMA-KISEN KK and Osaka Shosen Kaisha, Ltd., Defendants. SAWAYAMA STEAMSHIP CO., Ltd., Defendant and Third Party Plaintiff v. RAMAR STEVEDORES, INC., Third Party Defendant.
CourtU.S. District Court — Southern District of New York

Standard, Weisberg, Harolds & Malament, New York City, for plaintiff.

Kirlin, Campbell & Keating, New York City, for defendant and third-party plaintiff, Edward J. Hale, New York City, of counsel.

William J. Kenney, New York City, for third-party defendant.

DIMOCK, District Judge.

The answer of defendant and third party plaintiff contains, as a third defense, a claim of lack of jurisdiction.

Plaintiff moves to strike this defense or, if that motion is denied, for an order transferring the cause to the admiralty calendar of this court.

Plaintiff, a foreign citizen, brings this civil action against two foreign corporations for injuries allegedly sustained while working aboard a vessel known as the S.S. Alaska Maru while it was in the navigable waters of the United States. Plaintiff alleges in the complaint that defendants owned, operated and controlled the S.S. Alaska Maru, that at the time of the injury plaintiff was a longshoreman in the employ of Ramar Stevedores, Inc., that plaintiff was a business invitee of the defendants aboard the S.S. Alaska Maru, and that plaintiff sustained the injuries by reason of the negligence of defendants, their agents, servants and employees, and/or the unseaworthiness of the vessel, including the improper manner in which cargo and freight had been stored, and the failure of defendants to provide plaintiff with a safe and adequate place in which to be and work under proper and suitable conditions of work.

Defendant Sawayama Steamship Co., Ltd., sued as Sawayama-Kiben KK, pursuant to order of this court served a third party complaint upon Ramar Stevedores, Inc., a New York corporation and plaintiff's employer, as third party defendant. In the answer to the complaint, in addition to specific answers to plaintiff's allegations, defendant Sawayama Steamship Co., Ltd. set forth as a third defense that "the complaint fails to state a claim upon which relief can be granted." It is this defense which is the subject of this motion.

The defense rests on the proposition that there is a lack of civil jurisdiction over this action because there is no diversity of citizenship between plaintiff and defendant. Plaintiff argues that the court has jurisdiction by virtue of the United States Constitution, Doucette v. Vincent, 1 Cir., 194 F.2d 834, and by reason of the fact that defendant has impleaded a New York corporation.

While it is true that the First Circuit, in Doucette v. Vincent, supra, held that a suit based upon the general maritime law necessarily "arises under the Constitution" within the meaning of section 1331 of title 28 U.S.Code, the rule in this Circuit is different. In Paduano v. Yamashita Kisen Kabushiki Kaisha, 2 Cir., 221 F.2d 615, 619, it was held that, "cases * * * in which the general maritime law is the sole substantive basis for awarding the relief claimed in the complaint" were excluded from the scope of section 1331. See also Bartholomew v. Universe Tankships, Inc., 2 Cir., 263 F.2d 437. In Paduano, as here, a non-citizen longshoreman brought an action against a foreign corporation, not his employer, for injuries allegedly sustained on a vessel owned by the foreign corporation. There, as here, plaintiff alleged negligence and unseaworthiness. The court was held to lack jurisdiction on the law side.

Plaintiff cannot find comfort in Judge Lumbard's concurring opinion in the Bartholomew case, supra, which suggested that the Jones Act itself might confer jurisdiction on the law side of a federal court of an unseaworthiness action "if the jurisdictional requirements of 28 U.S.C. § 1331 (1952) are otherwise met, whether or not a negligence count under the Act is pleaded, provided only that the plaintiff is of the class which is covered by the Act as currently construed." Under...

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6 cases
  • Rare Earth, Inc. v. Hoorelbeke
    • United States
    • U.S. District Court — Southern District of New York
    • July 15, 1975
    ...supported by independent Lanham Act jurisdiction and should be allowed to proceed to an adjudication. See, Ferreira v. Sawayama-Kisen KK, 171 F.Supp. 96 (S.D.N.Y.1959); 6 C. Wright & A. Miller, supra § 1444 at 237; 3 J. Moore, supra ¶ 14.26 at 14-532 — Thus, we find that the defendants, thr......
  • Mazzella v. Pan Oceanica A/S Panama
    • United States
    • U.S. District Court — Southern District of New York
    • June 19, 1964
    ...the action between plaintiff and Panoceanica. Ferrigno v. Ocean Transport Ltd., 188 F.Supp. 179 (S.D.N.Y.1960); Ferreira v. Sawayama-Kisen KK, 171 F.Supp. 96 (S.D.N.Y.1959); cf. Dery v. Wyer, 265 F.2d 804 (2d Cir. It appears to be the rule that if diversity of citizenship is lacking at the ......
    • United States
    • U.S. District Court — Southern District of New York
    • September 13, 1962
    ...of a third-party claim as to which federal jurisdiction would exist if asserted in an independent action. Ferreira v. Sawayama-Kisen KK, D.C.S.D.N.Y.1959, 171 F.Supp. 96. Thus, a third-party claim can neither confer nor deprive a federal court of It seems anomalous to allow a party, whose j......
  • United States v. Mecca Export Corp.
    • United States
    • U.S. Court of International Trade
    • October 3, 1986
    ...jurisdictional grounds. Illinois Central Gulf Railroad Co. v. Pargas Inc., 706 F.2d 633 (5th Cir. 1983); Ferreira v. Sawayama-Kisen KK, 171 F.Supp. 96 (S.D.N.Y.1959). It is important that while ancillary or pendent jurisdiction exercised in Federal District Courts has been liberally constru......
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