Frederickson v. Luedtke Const. Co.
| Decision Date | 01 March 1977 |
| Docket Number | No. G74-98 C.A.,G74-98 C.A. |
| Citation | 1977 AMC 910,427 F. Supp. 1309 |
| Parties | Carl F. FREDERICKSON, Sr., Plaintiff, v. LUEDTKE CONSTRUCTION COMPANY and Durocher & VanAntwerp, Inc., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
McCroskey, Libner, Van Leuven, Kortering, Cochrane & Brock, Muskegon, Mich., for plaintiff; Robert J. Van Leuven, Muskegon, Mich., of counsel.
Cholette, Perkins & Buchanan, Grand Rapids, Mich., for Luedtke; William D. Buchanan, Grand Rapids, Mich., of counsel.
Miller, Johnson, Snell & Cummiskey, Grand Rapids, Mich., for Durocher; Jon G. March, Grand Rapids, Mich., of counsel.
Plaintiff brought this suit in admiralty for damages stemming from an illness allegedly incurred while he served as captain of the tug "Ray Durocher." The vessel was owned by defendant Durocher & VanAntwerp, Inc. and chartered by Luedtke Construction Co. The question before me at this time is whether defendants are entitled to a jury trial, which they have demanded, or whether plaintiff's motion to strike the jury demand must be granted.
The relevant statute, 28 U.S.C. § 1873, provides:
"In any case of admiralty and maritime jurisdiction relating to any matter of contract or tort arising upon or concerning any vessel of twenty tons or upward, enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between places in different states upon the lakes and navigable waters connecting said lakes, the trial of all issues of fact shall be by jury if either party demands it."
While other issues have been raised, this dispute primarily centers upon the language, "any vessel of twenty tons or upward." The "Ray Durocher's" gross tonnage is 20.80, while its net tonnage is 14.14. Defendants argue that the statute refers to gross tonnage, while plaintiff contends that it refers to burden tonnage, or net or registered tonnage.1 Whether the trial is to be to the court or to a jury depends upon whether the statutory language is to be construed as referring to gross or net tonnage, and this question is apparently one of first impression.
After carefully reviewing the relevant cases, statutes and regulations, I have concluded that the language of 28 U.S.C. § 1873 refers to net or burden tonnage, and not to gross weight. Since the "Ray Durocher" weighs less than twenty tons burden, and since I find no other basis for extending the statutorily conferred right to a jury trial under these circumstances, the plaintiff's motion to strike the jury demand must be granted. The reasons supporting this decision follow.
The language of 28 U.S.C. § 1873 was changed in one arguably significant respect when the U.S. Code was revised in 1948. The previous statutory provision, 28 U.S.C. § 770, employed essentially the same wording, except that it referred to "any vessel of twenty tons burden or upward."2 Defendants argue that this deletion of the word burden is significant, since Congress must have intended thereby to make gross tonnage the standard, and that the plain language of the statute admits of no other construction.
"When a section or clause of a statute is ambiguous, much aid . . . may be derived in ascertaining its meaning by comparing the section or clause in question with prior statutes in pari materia, but it cannot be admitted that such a resort is a proper one where the language employed by the Legislature is plain and free of all uncertainty, as the true rule in such a case is, to hold that the statute speaks its own construction." Barnes v. Philadelphia & R.R. Co., 17 Wall. (U.S.) 294, 21 L.Ed. 544 (1873). Further, prior acts may not normally be resorted to in order to create an ambiguity, Hamilton v. Rathbone, 175 U.S. 414, 20 S.Ct. 155, 44 L.Ed. 219 (1899). I find in this case, however, that the statutory reference to the weight of vessels is inherently ambiguous in light of the variety of possible units of measurement, and the common usage of particular standards such as burden or register tonnages, in admiralty. Without some qualifying term in the statute itself, in light of the common methods of weighing vessels, a simple cutoff based on the number of tons is legitimately open to question.
Given the ambiguity in the statute it is appropriate to refer to earlier versions of the statute for aid in construction. The Supreme Court, in another admiralty case, noted that when a statute is found to be ambiguous, "we are authorized to refer to the original statutes, from which the section was taken, and to ascertain from their language and context to what class of cases the provision was intended to apply. * * *" Conqueror, 166 U.S. 110, 122, 17 S.Ct. 510, 515, 41 L.Ed. 937 (1897). This would be true even if the earlier statute had been repealed. Re Hohorst, 150 U.S. 653, 660, 14 S.Ct. 221, 37 L.Ed. 1211 (1893). See also, Ex parte Crow Dog, 109 U.S. 556, 561, 3 S.Ct. 396, 27 L.Ed. 1030.
As noted above, the earlier versions of 28 U.S.C. § 1873 spoke of twenty tons burden. There is no indication of any legislative intent to change substantively the scope of this jury trial provision, and the reviser's notes state simply that "changes were made in phraseology." 28 U.S.C.A. § 1873. In light of the ambiguity of "twenty tons or upward" and the absence of any legislative intent manifested to change the long-standing usage of burden tonnage, it would seem logical to use this rather than gross tonnage. On the other hand, there is some force to defendants' argument that the deletion of the word burden should normally be considered to have some significance, and that it is consonant with a legislative intent to liberalize the availability of jury trial in admiralty cases.
Both parties have referred the court for guidance in resolving this matter to various statutory provisions which employ weight-based criteria as a means of classifying vessels. Plaintiff argued early in the exchange of legal briefs and memos on this question that the "twenty tons or upward" phrase of 28 U.S.C. § 1873 refers to the register tonnage of the vessel as determined by 46 U.S.C. § 77. Defendants responded that § 1873 contains no reference to this statute, but instead simply states that it applies to any vessel of twenty tons or upward which is enrolled and licensed for the coastal trade. Therefore rather than looking to the registry statute, they argue, the court should look to the statutes relating to enrollment and licensing to determine whether the "Ray Durocher" is or is not a vessel of over twenty tons for purposes of § 1873. I agree that statutes and regulations regarding enrollment and licensing provide the most logical, appropriate and useful frame of reference for resolving this question. Looking to these, however, I find no support for the defendants' position, and to the contrary, find that the applicable unit of measurement is burden, or net register tonnage.
Several statutory provisions are relevant to our inquiry, including the following. Section 251 of Title 46 provides in pertinent part as follows:
"Vessels of twenty tons and upward, enrolled in pursuance of certain enumerated sections of this title, and having a license in force, or vessels of less than twenty tons, which, although not enrolled, have a license in force, as required by such sections, and no others, shall be deemed vessels of the United States entitled to the privileges of vessels employed in the coasting trade or fisheries."
Title 46, Section 252 provides in pertinent part:
"In order for the enrollment of any vessel, she shall possess the same qualifications, and the same requirements in all respects shall be complied with, as are required before registering a vessel. . . ."
Title 46, Section 258 states:
Section 259 sets forth requirements for the form of enrollment and section 263 does likewise for the form of licenses. Section 260 authorizes the Commissioner of Customs to issue a consolidated form of enrollment and licensing for U.S. vessels in lieu of the form of enrollment prescribed by § 259 and the form of license prescribed by § 263.
Finally, § 263, in setting forth the form of license for vessels licensed for carrying on the coasting trade or fisheries, provides that the vessel's burden must be set forth in tons as appears by her enrollment, but that "if she be less than twenty tons, insert, instead thereof, `proof being had of her admeasurement.'"
What is clear from a review of all these provisions regarding enrollment and licensing is that the meaning of "twenty tons or upward" is still somewhat ambiguous. Section 251 employs the phrase "twenty tons and upward," and by itself sheds no further light. Section 263 on the other hand lends some support for the view that burden tonnage is the appropriate measure, since it prescribes that the license reflect the vessel's weight in "burden tons." When the requirement that burden tonnage be stated is qualified by the phrase "but if she be less than twenty tons . . .," it is only natural to assume that the twenty tons referred to in this clause is also burden tonnage. Further evidence that this is the unit of measurement intended is found in the provisos of § 263, the first of which speaks of "vessels of five net tons and over." In any event, the ambiguity of the statutes is resolved by reference to the regulations of the Coast Guard concerning documentation of vessels. These regulations governing enrollment...
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