Gardiner v. Agwilines

• Decision Date: 29 August 1939
• Docket Number: No. 547.,547.
• Citation: 29 F. Supp. 348
• Parties: GARDINER v. AGWILINES, Inc., et al.
• Court: U.S. District Court — Eastern District of New York

29 F. Supp. 348

GARDINER v. AGWILINES, Inc., et al.

No. 547.

District Court, E. D. New York.

August 29, 1939.

Benjamin, Galton & Robbins, of New York City, for the motion.

Burlingham, Veeder, Clark & Hupper, of New York City, opposed.

CAMPBELL, District Judge.

This is a motion to remand to the State Court an action which has been removed to this Court on the petition of the defendant, Agwilines, Inc.

It is alleged in the complaint that plaintiff's intestate was employed by the defendants on the S. S. San Juan, and that as a result of the negligence of the defendants, he died at the port of Mayaquez, Puerto Rico, on January 23rd, 1939.

Two causes of action are alleged in the complaint. The first cause of action is based on the Jones Act, Title 46, Section 688, U.S.Code. 46 U.S.C.A. § 688. The second cause of action repeats the allegations of the first cause of action, and is based on the Death Act of Puerto Rico (Code of Civil Procedure of Puerto Rico, §§ 61, 53 and 41), which reads as follows:

"When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person, who is responsible for his conduct, then also against such other person. In every action under this * * * section such damages may be given as under all the circumstances of the case may be just."

"An * * * administrator * * * may sue without joining * * * the persons for whose benefit the action is prosecuted * * *."

"If a person entitled to bring an action die before the expiration of the term limited for the commencement thereof and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time and within one year from his death * * *."

There is a demand for judgment against the said defendants and each of them.

The action was removed to this Court from the State Court on the petition of the defendant, Agwilines, Inc., and notice of presentation of petition and bond for removal was served upon plaintiff's attorneys. The bond was approved on July 3rd, 1939.

The petition for removal contains the allegations that this is a civil action at law; that the defendant, Agwilines, Inc., was and is the owner of the S. S. San Juan; that The New York & Porto Rico Steamship Company pursuant to a bare boat charter manned, victualled and navigated the S. S. San Juan; that the plaintiff's intestate was employed by The New York & Porto Rico Steamship Company; that the controversy between plaintiff and defendant, Agwilines, Inc., is a separable controversy wholly between citizens of different states, the plaintiff being a citizen of the State of New York, and the defendant, Agwilines, Inc., being a citizen of the State of Maine in which it was incorporated; that the allegation in the complaint that defendant, Agwilines, Inc., used the S. S. San Juan is contrary to fact or was fraudulently included to defeat the right of removal; finally, that this action "does not arrise under the act relating to the liability of common carriers by railroad to their employees or any amendment thereof; * * *."

The defendant, The New York & Porto Rico Steamship Company, has answered the complaint.

The first cause of action alleged in the complaint is...