Jansson v. Swedish American Line

• Decision Date: 06 November 1950
• Docket Number: No. 4502.,4502.
• Parties: JANSSON v. SWEDISH AMERICAN LINE.
• Court: U.S. Court of Appeals — First Circuit

185 F.2d 212 (1950)

JANSSON v. SWEDISH AMERICAN LINE.

No. 4502.

United States Court of Appeals, First Circuit.

November 6, 1950.

COPYRIGHT MATERIAL OMITTED

John O. Parker, Boston, Mass. (Ely, Bartlett, Thompson & Brown, Boston, Mass., on the brief), for appellant.

Leo F. Glynn, Boston, Mass. (Thomas H. Walsh, Boston, Mass., on the brief), for appellee.

Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and SWEENEY, District Judge.

MAGRUDER, Chief Judge.

Karl G. Jansson, a citizen of Massachusetts, brought suit in the court below on August 13, 1948, against Swedish American Line, a Swedish corporation, seeking $25,000 damages for personal injuries allegedly attributable to defendant's negligence. It is claimed that the plaintiff, a passenger on defendant's motor vessel Gripsholm on a voyage from Gothenburg, Sweden, to New York, sustained his injuries as a result of a fall on the vessel on January 3, 1947, while he was in course of boarding her at Gothenburg. Plaintiff chose, instead of filing a libel in admiralty, to institute a civil action on the common law side of the district court. Defendant's answer denied the allegations of negligence, and further set up as an affirmative defense that the complaint was not filed within one year after the date of the injury, as required by a provision of the ticket or contract of transportation. The district court gave a summary judgment for defendant, from which judgment the present appeal was taken.

From the pleadings, and from the affidavits submitted by the parties, further facts appear, as follows: Jansson purchased the ticket at defendant's office at Stockholm, Sweden. It was printed both in Swedish and in English. On the face of the ticket appeared the usual details covering the name of the vessel, the sailing date, the name of the passenger, the assigned berth and cabin, the rate, etc., and the recital that in consideration of the passage money the company "agrees to forward" the named passenger from Gothenburg to New York on the sailing for which the ticket was issued. Near the bottom of the ticket, on its face, appeared the printed statement: "For further conditions see the back of this ticket." Immediately below in writing was the place and date of issuance, "Stockholm, Dec. 23, 1946", under which was the printed name of the defendant company, with the signature of the agent or official who presumably issued the ticket. On the back side, in parallel columns, one in Swedish, the other in English, were certain provisions under the heading "Conditions of forwarding", from which we quote the only one now relevant: "In any case where Section 4283A of the Revised Statutes of the United States shall apply, the shipowner shall not be liable for any claim for loss of life or bodily injury unless written notice of the claim shall be given to the shipowner within six months from the day when the death or injury occurred. Suit to recover on any such claim shall not be maintainable unless commenced within one year after the day when such death or injury occurred. In all cases where Section 4283A does not apply, all the other provisions of this contract ticket, including those as to notice of claim and commencement of suit, shall be in full force and effect."¹

The ticket was at no place signed by the plaintiff. When he bought it, the clerk at the shipping office did not call his attention to the conditions on the reverse side, nor did the plaintiff read the same at that time or at any time thereafter. He made payment for the ticket before it was delivered to him, and did not learn of the one-year limitation printed on the back until in June, 1948, when he consulted a lawyer, who suggested to him the possibility that the company would defend on this ground. The ticket was taken up by the purser shortly after the vessel sailed from Gothenburg.

One ground advanced by defendant in support of its motion for judgment was that the Swedish law was applicable and that since it had not been pleaded by the plaintiff, the complaint failed to set forth an essential element of the asserted cause of action. This argument the court below rejected. In its memorandum of decision the court recognized that since the negligence and resulting injury were alleged to have taken place on a Swedish vessel lying in Swedish territorial waters, "the cause of action set forth by the complaint is one which will be governed by the law of Sweden." But where, as here, the complaint set forth a conventional cause of action for bodily injuries arising from alleged negligence, the court deemed it appropriate to presume, at least at that preliminary stage of the case, that recovery could be had on such a cause of action under the Swedish law, as indeed under the laws of all civilized countries; further, the court stated: "If in fact the governing rules of that law differ from our own, the parties would have opportunity at the trial to bring those rules to the court's attention. Failure to allege the Swedish law in the pleadings in an action such as this is not sufficient ground for judgment for the defendant at this stage of the proceedings." We think the court's ruling in this respect was clearly correct; and we do not understand that appellee presses the point on appeal in support of what the court below did, as distinct from the reasons the court assigned for the judgment rendered.

Having made the foregoing ruling, the district court then proceeded to hold as a matter of law that the ticket as a whole constituted the contract of transportation; that the one-year limitation expressed in the printed condition on the reverse side was a part of the contract, and as such was in all respects valid and binding upon the passenger by virtue of his having accepted and made use of the ticket, whether or not he had read the contract provisions or had had them called to his attention. Therefore, since the one-year contractual limitation fell just within the permissive limit sanctioned by § 4283A of the Revised Statutes,² the court held that the action was begun too late and gave judgment for the defendant.

In ruling that the one-year limitation on the back of the ticket was binding on the passenger as a part of the contract, the court apparently treated the matter as a point of "American law", for reference was made only to American authorities and precedents; neither defendant's answer nor its affidavit alleged that the ticket stipulation was valid and binding under the Swedish law of contracts; nor did the court purport to take judicial notice of the Swedish law in this respect. Appellant contends that the court erred in this ruling, "thereby depriving the plaintiff of his right to establish Swedish law on this issue at the trial", which he tells us he is prepared to do, if afforded an opportunity. Incidentally, such a question of foreign law, though commonly stated to be one of fact, is for the court, not the jury. Wigmore on Evidence (3d ed. 1940) § 2558.

At the outset, it is to be noted that this is not a case falling within the rule of Erie R. R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477, under which a federal district court sitting in Massachusetts would be obliged, in a diversity of citizenship case, to apply the local substantive law of Massachusetts (including its rules applicable to choice of law problems) as declared by the courts of the State. True, the complaint herein starts off with the recital: "Jurisdiction in this action is based on diversity of citizenship and amount." But the cause of action asserted is founded on a maritime tort, cognizable in admiralty; and hence the substantive law to be applied is the "general maritime law" of which the ultimate expositor is the Supreme Court of the United States.

In Knickerbocker Ice Co. v. Stewart, 1920, 253 U.S. 149, 160, 40 S.Ct. 438, 440, 64 L.Ed. 834, the Supreme Court laid down as a settled proposition: "The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction." Beginning with the Judiciary Act of 1789, 1 Stat. 77, the exclusive jurisdiction of the district courts of the United States over civil causes admiralty and maritime has been coupled with a provision "saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it". 28 U.S.C. §§ 41(3), 371 (1946 ed). In the corresponding provision of the 1948 revision of the Judicial Code, 28 U.S.C.A. § 1333, the language of the saving clause has been changed somewhat in phraseology but not in intent, as the reviser's note makes clear. Referring to the saving clause, the Court said in The Moses Taylor, 1866, 4 Wall. 411, 431, 18 L.Ed. 397: "It is not a remedy in the common-law courts which is saved, but a common-law remedy." So, the common law courts may give the conventional remedy of an action of damages, for injuries resulting from unseaworthiness of a vessel or from other maritime torts, or for breach of a shipowner's obligation to furnish "maintenance and cure" to a seaman injured in the service of the ship. But, as pointed out in Chelentis v. Luckenbach S. S. Co., Inc., 1918, 247 U.S. 372, 384, 38 S.Ct. 501, 504, 62 L.Ed. 1171, while "under the saving clause a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law", the complaining party was not thereby given "an election to determine whether the defendant's liability shall be measured by common-law standards rather than those of the maritime law." We take it now to be established by an impressive body of precedent that when a common law action is brought, whether in a state or in a federal court, to enforce a cause of...