In re Charles Nelson Co.

• Citation: 294 F. 926
• Decision Date: 03 January 1924
• Docket Number: 17769.
• Parties: In re CHARLES NELSON CO.
• Court: U.S. District Court — Northern District of California

294 F. 926

In re CHARLES NELSON CO.

No. 17769.

United States District Court, N.D. California.

January 3, 1924

Farnham P. Griffith and McCutchen, Olney, Mannon & Greene, all of San Francisco, Cal., for petitioner.

Halsey L. Rixford, of San Francisco, Cal., for respondent Curtis.

PARTRIDGE District Judge.

Thomas S. Curtis commenced an action on the law side of this court seeking damages for personal injuries incurred while acting as a seaman on the barkentine Mary Winkleman. His suit amounted to an election to proceed at law under section 33 of the Merchant Marine Act of 1920 (Comp. St. Ann. Supp. 1923 Sec. 8337a), rather than to pursue his remedy at admiralty. Subsequently the Charles Nelson Company filed this proceeding for limitation of liability. Monition issued in due form with the order provided for by rule 54 of the Supreme Court in admiralty, directing that all proceedings, including the suit of Curtis, be stayed. Upon reference to the commissioner, a finding was made that the value of the ship is $1,500, with no freight pending. Curtis' action is for $22,000. Curtis, therefore, has moved to vacate the order staying his action, and thus has squarely presented the proposition as to whether or not an action at law by a seaman under section 33 is within the limited liability law. Revised Statutes, Sec. 4283 et seq. (Comp. St. Sec. 8021 et seq.). Was it the intention of Congress, as expressed in the statutes, to take one further step in the progression namely: (1) To abrogate the time-honored doctrine of the law of the sea, that an injured sailor was entitled only to wages, maintenance, and cure, and to substitute therefor the right to such a sum of money as might reasonably compensate him for his injuries; (2) to give him the right to go into common law, with a trial by jury, who should be the judges as to whether or not he was entitled to anything, and, if so, how much, instead of restricting him to admiralty, where the judge alone determines these questions; and (3) to make the amount of his recovery dependent alone upon the extent of his injuries, irrespective of the value of the ship and earned freight?

As to the first two steps, the statutes have left little, if any, doubt--certainly none, if the statutes are constitutional, as I believe they are. As to the third, however, the question is difficult. It is now before the Supreme Court, in a matter to be heard at the present term, and will, of course, be there authoritatively determined. But meanwhile Curtis is entitled to have his case determined.

Congress did not see fit, in enacting section 33, to specifically provide that the Limited Liability Act should not apply to actions for injuries to seamen. The question, therefore, is left to interpretation. As bearing upon the policy of the matter, as a guide to interpretation, it is said, on the one hand, that limitation of the liability of the owner of a ship to the vessel and earned freight is ancient in our legislation, and still more ancient in the law of nations, which forms the basis of admiralty procedure. In the United States, the first statutes were enacted in 1851. But the practice was recognized here long prior to that time. The Rebecca v. America, Fed. Cas. No. 11,619, decided in 1831. But, as pointed out in that case, and explained in Norwich Co. v. Wright, 13 Wall. 104, 20 L.Ed. 585, the doctrine had its origin in the Middle Ages. It is urged, then, that the well-established presumption against repeals by implication applies with double force where the statute is of ancient usage. In re Garcelon, 104 Cal. 570, 38 P. 414, 32 L.R.A. 595, 43 Am.St.Rep. 134.

Further, it is urged that the Limited Liability Act, which is entitled 'An act to remove certain burdens on the American merchant marine' (23 Stat. 53) is of the utmost importance to our sea-borne commerce. This is no doubt true. It is unquestionably sound legislation, and based upon the fundamental economic consideration that the investment of capital is encouraged, wherever the investor can be certain that in any event his loss will not exceed the amount he has invested. As was pointed out by the Supreme Court in Moore v. American Transportation Co., 24 How. 1, 16 L.Ed. 674:

'The act was designed to promote the building of ships, and to encourage persons engaged in the business of navigation, and to place that of this country upon a footing with England and on the continent of Europe.'

Later, in Providence & New York S.S. Co. v. Hill, 109 U.S. 578, 3 Sup.Ct. 379, 617, 27 L.Ed. 1038, the Supreme Court says that its 'value and importance * * * to our maritime commerce can hardly be estimated. ' In the same case, moreover the Supreme Court utters a warning against administering the statute with 'a tight and grudging hand.' The language in this respect is quoted with approval in the recent case of Deslions v. La Compagnie Generale Transatlantique, 210 U.S. 95, 28 Sup.Ct. 664, 52 L.Ed. 973.

These considerations must appeal with the utmost cogency to any one who realizes the extent to which our future depends upon the development of our merchant marine. But, on the other hand it may pertinently be asked, 'What's the ship without the men? ' Is it too much to hope that it will be possible to build up a body of vigorous, rugged, intelligent seamen, in such numbers that American ships can at all times confidently rely upon the best of American crews? Is it not apparent that the very existence of such a corps will be the very highest stimulus to the production and maintenance of American bottoms? But how can we expect such a corps, if the American sailor is in a position materially more disadvantageous than that of other American workmen? It is no answer, either, to say that there are already many such, for the very reason that their condition has been greatly ameliorated by humane legislation, but for the additional reason...