Frueh v. Kupper, L--6793

• Citation: 148 A.2d 743,54 N.J.Super. 296
• Decision Date: 13 February 1959
• Docket Number: No. L--6793,L--6793
• Parties: Roman FRUEH, Plaintiff, v. Theodore KUPPER, Defendant and Third Party Plaintiff, Walter Frueh, Third-Party Defendant.
• Court: Superior Court of New Jersey

Page 296

54 N.J.Super. 296

148 A.2d 743

Roman FRUEH, Plaintiff, v. Theodore KUPPER, Defendant and Third Party Plaintiff, Walter Frueh, Third-Party Defendant.

No. L--6793.

Superior Court of New Jersey

Law Division.

Feb. 13, 1959.

Supplemental Opinion March 2, 1959.

Morris Pajonk, Union City (Arthur C. Gundersdorf, Hackensack, appearing), for plaintiff.

Fred W. Jung, Jr., Newark (Robert E. Monaghan, East Orange, appearing), for defendant.

Emory, Langan, Lamb & Blake, Jersey City (H. Curtis Meanor, Trenton, appearing), for third-party defendant.

SCHNEIDER, J.C.C. (temporarily assigned).

The third-party defendant brings a motion to dismiss the third-party joint tortfeasor's suit and for summary judgment in his favor.

Plaintiff instituted a suit against defendant, contending that on August 30, 1956 defendant negligently operated his motor boat along the westerly shore of Normandy Beach in Barnegat Bay, New Jersey, and struck plaintiff with the boat. Plaintiff was standing in the water at the time and defendant was towing his daughter who was on water skis. Plaintiff had previously been towed by another boat, operated by his brother, and had also been on water skis. He had fallen off the skis and was awaiting his brother to pick him up.

Defendant instituted a third-party suit against plaintiff's brother under the Joint Tortfeasors Act, contending negligence on the part of the operator of the other boat. This third-party defendant contends in his answer and in the pretrial order that the waters of Barnegat Bay are navigable waters of the United States and that jurisdiction in this case is either in the federal court or at least is governed by federal law and not state law. He contends that the New Jersey Tortfeasors Contribution Act does not apply and that the federal Maritime Law contains a specific prohibition against the allowance of contribution in case of maritime torts where collision of two vehicles is not involved.

The third-party defendant motion for summary judgment is based on the above grounds.

At the hearing the parties agreed that the waters of Barnegat Bay were navigable waters but suit was properly brought in the state court under service In personam.

The first question to be decided is whether the case is to be tried under state law or under federal law with its doctrine of comparative negligence, etc. If the case may be tried under state law, the motion herein would fail because the New Jersey Joint Tortfeasors Act would apply.

If it were determined that the federal law applied, the next question to be decided would be whether a right to equal contribution exists in a case of this kind under federal law. If this existed as a matter of substantive law, then the use of the New Jersey Joint Tortfeasors Act would be the method used to carry out this substantive right and the motion would fail.

If however, the case must be tried under federal law and there is no substantive right of contribution under the federal law, then the Joint Tortfeasor Act of New Jersey would not apply and the motion should be granted.

1. We must first determine whether the case should be tried in the state court under federal or state law. The federal court has jurisdiction over maritime cases under the admiralty law. This suit could have been instituted in the federal court and determined under federal law. The accident occurred in navigable waters. Under 28 U.S.C.A. § 1333, it is provided that

'The district courts shall have original jurisdiction, exclusive of the courts of the States, of:

'(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other Remedies to which they are otherwise entitled.' (Italics mine.)

This section, termed the 'saving clause,' originally read, 'saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.'

All sides agree that under this saving clause the suit could be instituted in the state court. See Bono v. Mellor, 5 N.J.Super. 167, 68 A.2d 558 (App.Div.1949), certification denied 4 N.J. 73, 71 A.2d 555 (1950).

The parties do not agree that the saving clause requires the case to be tried under federal law. The third-party defendant construes the word 'remedy' to mean only the procedure but not the substantive law. Defendant instituting the third-party suit contends that 'remedy' means only procedure but not substantive law.

There is no question but that a case tried in the federal court upon diversity of citizenship, for an event occurring in a state for which the suit would normally be in the state court except for diversity of citizenship, must be decided on state substantive law and must be so charged in the federal court. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

The reverse is similar. Where a suit may be brought in a state court for a matter under the federal law, the federal law will apply and be charged in a state court. The saving clause in the admiralty statute does not give to the state court the right to try the case under state law. It is only a procedure permitted but does not change the substantive law. Thus the state court would be required to charge federal substantive law, including comparative negligence. Chelintis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918); Pope and Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 107 N.E.2d 463 (Ct.App.1952). This court, applying the substantive doctrines of maritime law, has jurisdiction to determine a maritime cause of action In personam. 28 U.S.C.A. § 1333. Madruga v. Superior Court of California, 346 U.S. 556, 74 S.Ct. 298, 98 L.Ed. 290 (1954); Farrell Lines v. Devlin, 211 Md. 404, 127 A.2d 640 (Ct.App.1956).

The parties agree that under the facts of this case an admiralty question is presented. The state substantive law cannot apply. In United States v. Matson Nav. Co., 201 F.2d 610 (9 Cir. 1953), at page 613, the court stated that an essential to the jurisdiction of the admiralty over a tort is that it was committed in relation to navigable waters. This case held the Admiralty Extension Act (46 U.S.C.A. § 740) constitutional, holding that the admiralty and maritime jurisdiction of the United States should extend to and include all cases of damage or injury to person or property caused by a vessel on navigable water, notwithstanding that such damage be done or consummated on land.

In Green v. Simpson & Brown Const. Co., 14 N.J. 66, 101 A.2d 10 (1953), our Supreme Court recognized that state law is ineffective to create rights of action for personal injuries incurred while upon navigable waters. See also Dean v. Chesapeake Bay Ferry District, 158 F.Supp. 408 (E.D.Va.1958); Isaacson v. Jones, 216 F.2d 599 (9 Cir. 1954) involving same kind of accident as in our case but instituted in the federal court.

In Pope and Talbot v. Hawn, supra (346 U.S. 406, 74 S.Ct. 205) a suit was instituted in the federal court by a carpenter working on a ship berthed in the Delaware River. The court found the defendant guilty of contributory negligence and applied the doctrine of comparative negligence. There was a contention made that the Pennsylvania law of contributory negligence should be applied since the injury occurred within Pennsylvania territorial waters and recovery should be barred. The court refused to apply the state law because admiralty law applied:

'The basis of Hawn's action is a maritime tort, a type of action which the Constitution has placed under national power to control in 'its substantive as well as its procedural features' * * *. Even if Hawn were seeking to enforce a state-created remedy for this right, federal maritime law would be controlling.'

In Moore-McCormack Lines, Inc. v. Amirault, 202 F.2d 893, 896, (1 Cir. 1953), the court would not apply Massachusetts state law under Erie R.R Co. v. Tompkins, supra:

'It is well settled that by force of the Constitution itself, when a common law action is brought, whether in a state or in a federal court, to enforce a cause of action cognizable in admiralty, the substantive law to be applied is the same as would be applied in an admiralty court. * * * But whether such diversity existed or not (suit was brought in federal court on diversity of citizenship), it is still true that the substantive law to be applied in determining both liability and the amount of damages to be embodied in the money judgment is federal law, not state law.'

In Roth v. Cox, 210 F.2d 76 (5 Cir. 1954), affirmed 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260 (1955), the court said that the saving clause does not create substantive rights nor assents to their creation by the state. It refers only to remedies, and to that extent specified permits continued enforcement by the state courts on rights and obligations founded on maritime law. See Chelentis v. Luckenbach S.S. Co., supra; Knickerbocker Ice Co. v. Stewart 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1919); Farrell Lines v. Devlin, 211 Md. 404, 127 A.2d 640 (Md.Ct.App.1956); Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942); Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947) (Supremacy Clause, U.S.Const., Art. VI, cl. 2, prohibits state courts from applying local law and must enforce federal law).

It would therefore appear that the suit started in the state court shall be governed by federal admiralty law.

2. This brings up the next question as to whether or not the federal law gives a right of contribution from a joint tortfeasor. It also brings in the question whether the Joint Tortfeasors Act of New Jersey may be used to enforce such a right of contribution, if it exists under federal practice.

Under Admiralty Rule 56 (28 U.S.C.A.) it is provided that

'In any suit, whether In rem or In personam, the claimant or respondent (as the case may be) shall be entitled to bring in...