Jackson v. ORE NAVIGATION CORPORATION, 3905.

• Decision Date: 11 March 1958
• Docket Number: No. 3905.,3905.
• Citation: 159 F. Supp. 935
• Parties: Eugene JACKSON v. ORE NAVIGATION CORPORATION, a body corporate.
• Court: U.S. District Court — District of Maryland

159 F. Supp. 935

Eugene JACKSON v. ORE NAVIGATION CORPORATION, a body corporate.

No. 3905.

United States District Court D. Maryland, Admiralty Division.

March 11, 1958.

Sol C. Berenholtz and Solomon Kaplan, Baltimore, Md., for libelant.

George W. P. Whip and Lord, Whip & Coughlan, Baltimore, Md., for respondent.

THOMSEN, Chief Judge.

Libelant asks leave to dismiss this suit in admiralty without prejudice, upon payment of costs, so that he may proceed with a civil action he has recently filed in the Southern District of New York. His motion, opposed by respondent, is based upon two grounds: (a) that his original proctors, Hillman and Hillman, had no authority to file this suit in admiralty; and (b) if they had, this court should exercise its discretion to permit him to dismiss without prejudice, so that he may have a jury trial in the jurisdiction he has finally chosen. In effect, though not in form, libelant seeks (1) the right belatedly to elect a jury trial, and (2) a transfer from the District of Maryland to the Southern District of New York.

Libelant resides in Maryland near Baltimore. He joined respondent's vessel in Baltimore, was injured at sea, and left the vessel on January 12, 1957, at Sparrows Point, Baltimore County, Maryland. He received medical attention at the USPHS Hospital and elsewhere in and near Baltimore. While at the hospital he telephoned Hillman and Hillman, experienced admiralty counsel in Baltimore, to arrange for representation by them. On February 19, 1957, libelant signed a power of attorney authorizing Hillman and Hillman "to institute and carry on a suit against Ore Navigation Corporation and the S.S. Feltore, for personal injuries sustained by me on 12-16-56". During his conversation with Leonard Hillman on that day libelant expressed a general preference for a jury trial over a court trial, but did not specifically instruct Hillman to file an action at law and to demand a jury trial; he left the matter to the discretion of the Hillmans.

Respondent had been slow in making payments for maintenance and cure, so Hillman got in touch with respondent's representative at Sparrows Point in an effort to expedite those payments, and on March 1, 1957, filed the libel in this suit, to which libelant personally made oath, praying a decree for damages and maintenance and cure and for other and further relief.

I accept the testimony of Leonard Hillman that the principal reason for filing the libel so promptly was to get the matter into the hands of respondent's Baltimore counsel, with whom he could deal better than with other representatives of the company. The filing of the libel had the desired effect. On or about March 14, 1957, respondent referred the matter to George W. P. Whip, its Baltimore counsel. Hillman kept after Whip and Whip kept after respondent to see that the maintenance and cure payments were promptly made. Hillman made no charge for collecting the maintenance payments. Whip, as proctor for respondent, filed an answer to the libel and propounded certain interrogatories, which were answered by libelant in May, 1957.

Libelant undoubtedly knew that suit had been filed on his behalf by Hillman and Hillman, but he did not inquire whether it was a suit in admiralty or a civil action until early in August, 1957. In the meantime libelant discussed the matter with his friends and fellow union members, who told him that he ought to file his case in New York where the juries are more liberal. He said nothing about this to Hillman until the middle of August, 1957, although Hillman was continuing his efforts to have the maintenance and cure payments made promptly.

Early in August, 1957, libelant came to the clerk's office of this court, looked at the suit papers, noted the nature of the suit and the ad damnum, and thereafter discussed the matter with the welfare representative of his union, who referred him to Sol C. Berenholtz, counsel for the union. An associate of Berenholtz told him to go see Hillman. Libelant then for the first time, on August 12, 1957, asked Hillman whether he had demanded a jury trial. Hillman said: "No; but if you insist I will see whether a motion can be filed". Libelant then instructed Hillman to ask for a jury trial; that was the first binding instruction he had given Hillman to that effect. Libelant, however, returned to Berenholtz's office and said he wanted them to file suit on his behalf in New York, to secure a jury trial. As a result of that conference, a letter was written to Hillman and Hillman terminating their employment. Since then, arrangements satisfactory to Hillman and Hillman and to Berenholtz have been made with respect to division of fees. In September, 1957, Berenholtz arranged with his New York correspondents to institute a civil action in the Southern District of New York against Ore Navagation Corporation, respondent herein.

Respondent is a Delaware corporation, the stock of which is owned by Bethlehem Steel Company. It operates a fleet of ships between Sparrows Point and Venezuela, Chile, Canada and other ore producing areas. Its principal office is in New York, as is its claim office. It has a branch office or agency at Sparrows Point which has charge of the operation of the ships. For many years Whip has represented respondent and its predecessor company in Maryland. He conducts investigations for them here, represents them in litigation, and otherwise looks after their interests, conferring sometimes with...