McAfoos v. Canadian Pacific Steamships

• Decision Date: 02 April 1957
• Docket Number: No. 116,Docket 24278.,116
• Citation: 243 F.2d 270
• Parties: Evelyn McAFOOS and William Neff, Plaintiffs-Appellants, v. The CANADIAN PACIFIC STEAMSHIPS, Ltd., and The Canadian Pacific Railway Co., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

243 F.2d 270 (1957)

Evelyn McAFOOS and William Neff, Plaintiffs-Appellants, v. The CANADIAN PACIFIC STEAMSHIPS, Ltd., and The Canadian Pacific Railway Co., Defendants-Appellees.

No. 116, Docket 24278.

United States Court of Appeals Second Circuit.

Argued January 10, 1957.

Decided April 2, 1957.

Richard Gyory, of Cooper, Ostrin & De Varco, New York City (Sidney Roffman, New York City, on the brief), for plaintiffs-appellants.

Ernest S. Ballard, Jr., of Bleakley, Platt, Gilchrist & Walker, New York City (Dennis P. Donovan, New York City, on the brief), for defendants-appellees.

Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.

CLARK, Chief Judge.

This is an appeal from a decision, D.C. S.D.N.Y., 143 F.Supp. 73, dismissing an action under the Jones Act, 46 U.S.C. § 688, on the ground that there was already pending an earlier instituted libel in admiralty for the same recovery. On this appeal the parties also have presented the issue as one of "election" between a civil action "at law" and a suit in admiralty, although this conceals the more fundamental question of the manner and time in which jury trial is waived.

Plaintiff McAfoos, who was employed as a magician's assistant aboard the vessel "Empress of Scotland," allegedly suffered personal injuries when she fell through an opening in the hold of the vessel while it lay berthed in the Port of New York. She claimed¹ that the boards which normally furnished the deck of the hold had been removed by crew members and not replaced. Thus liability might be predicated on either unseaworthiness or the negligence of the crew members. Although Miss McAfoos enjoyed the social status of a ship's officer, she never signed the ship's articles, was reported to have been listed by the ship as a passenger, and was paid by her employer, co-plaintiff Neff, rather than by the shipowner. On trial she might be proved to be a seaman, a passenger, or a business invitee.

Her ambiguous legal status and the nature of the accident posed a procedural dilemma for the plaintiff at the threshold of the suit. If it should be held later that she was not a "seaman" she could not avail herself of the Jones Act, e.g., Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205; nor could she recover maintenance and cure, Calvino v. Farley, D.C.S.D.N.Y., 23 F.Supp. 654. Perhaps, although not a seaman, she could nevertheless hold the shipowners liable for the negligence of the crew or the unseaworthiness of the vessel, i.e., Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; but no diversity of citizenship was alleged here, and without such an allegation it is not clear whether or not these theories can be pursued in a federal court. See Troupe v. Chicago, Duluth & Georgian Bay Transit Co., 2 Cir., 234 F.2d 253, 257. But in a state court she could not proceed in rem against the vessel, e.g., The Glide, 167 U.S. 606, 17 S.Ct. 930, 42 L.Ed. 296. If she decided to sue in a federal court, she still would have the choice of a civil action, a suit in admiralty, or both. In admiralty both in rem and in personam claims could be pursued in the same action, The Isonomia, 2 Cir., 285 F. 516, 520; but only in a civil action could she try issues to a jury.

Sensing these doctrinal — or at least semantic — obstacles to easy victory, plaintiff's attorney commenced suit by filing a libel in the federal district court against the vessel and the shipowners, alleging negligence, unseaworthiness, and a claim for maintenance and cure, and describing Miss McAfoos as alternatively a crew member or a business invitee. The Jones Act, although not mentioned by name in the libel, was pleaded, since recovery in admiralty was sought for the negligence of crew members and such recovery would have been impossible without the statute. Engel v. Davenport, 271 U.S. 33, 36, 46 S.Ct. 410, 70 L.Ed. 813; Hammond Lumber Co. v. Sandin, 9 Cir., 17 F.2d 760, 762, certiorari denied 274 U.S. 756, 47 S.Ct. 767, 71 L.Ed. 1336. A month later plaintiff's lawyer filed a civil complaint against the shipowners in the same district court, alleging the same facts and theories; this time the Jones Act was mentioned by name and jury trial was asked on all issues.

Before the defendants filed an answer Judge Levet granted their motion, dismissing the complaint as unduly vexatious and because plaintiff by filing a libel had already irrevocably elected to sue in admiralty instead of at law. D.C.S.D. N.Y., 143 F.Supp. 73. Thus plaintiff was left to proceed solely in admiralty, that is, without jury trial.

Inasmuch as the libel and complaint pending simultaneously in the same court were substantially identical, there was no serious apprehension that the plaintiff sought two trials or two recoveries. In fact plaintiff offered to consolidate the actions for trial, making it clear that the second suit was only a procedural device to preserve jury trial. Perhaps confusion would have been avoided or lessened had plaintiff not filed a complaint, but instead moved to transfer the in personam claims to the civil side of the court for trial to a jury. The in rem claims and any in personam theories not cognizable at law would not be lost by such a transfer, of course, but would be preserved in admiralty; and both sets of claims could be pressed simultaneously at the trial.

Actually the complaint, filed with the court and served on the defendants, gave all concerned adequate notice that plaintiff was seeking jury trial on all possible issues; and it should make no difference under either the Admiralty Rules or the Federal Rules of Civil Procedure whether at that initial stage of pleading plaintiff demanded jury trial by motion to transfer or by what was technically a second action. Hence our inquiry must be whether plaintiff could have preserved jury trial by such a motion at this stage of the action. A long line of decisions has established the propriety of treating cases begun by libels as actions "at law" — or presently "civil actions" — where there is federal jurisdiction to sustain the suit on the civil side, e.g., In re Confiscation Cases, 87 U.S. 92, 20 Wall. 92, 109-110, 22 L.Ed. 320; United States ex rel. Pressprich & Son Co. v. James W. Elwell & Co., 2 Cir., 250 F. 939, certiorari denied 248 U.S. 564, 39 S.Ct. 8, 63 L.Ed. 423; Cory Bros. & Co. v. United States, 2 Cir., 51 F.2d 1010; Prince Line v. American Paper Exports, Inc., 2 Cir., 55 F.2d 1053; Troupe v. Chicago, Duluth & Georgian Bay Transit Co., supra, 2 Cir., 234 F.2d 253, 257 note 5. And we have similarly treated an action begun by a civil complaint as a suit in admiralty. O'Neill v. Cunard White Star, 2 Cir., 160 F.2d 446, certiorari denied 332 U.S. 773, 68 S.Ct. 56, 92 L.Ed. 358. This power to shift a case from one "side" of the court to another is not limited to situations where one side has jurisdiction and the other has not, Civil v. Waterman S.S. Corp., 2 Cir., 217 F.2d 94; nor does the district court have unlimited discretion to deny transfer between sides, O'Neill v. Cunard White Star, supra, 2 Cir., 160 F.2d 446.

Appellees' principal contention is that suits under the Jones Act are not transferable like ordinary suits, because the statute requires an "election" between law and admiralty and this election is made when the plaintiff files his first pleading.² Two other district court judges and the judge below have read our opinion in Balado v. Lykes Bros. S.S. Co., 2 Cir., 179 F.2d 943, 945, as approving this construction of the statute. See Jonassen v. Norwegian Am. Line, D.C.S.D.N.Y., 105 F.Supp. 510; Murphy v. American Barge Line Co., D.C.W.D.Pa., 93 F.Supp. 653. But in the Balado case we held only that the election contemplated by the statute was between a suit in admiralty and a trial by jury and not, as there contended, between theories of negligence and theories of unseaworthiness. We did not mean to express an opinion as to the precise moment at which the election must be finally made, and the statute is equally silent on the point.

In O'Neill v. Cunard White Star, supra, 2 Cir., 160 F.2d 446, and Civil v. Waterman S.S. Corp., supra, 2 Cir., 217 F.2d 94, we approved the transfer of Jones Act suits from law to admiralty — a result incompatible with the notion that the choice of side of the court is made irrevocably at the first pleading; at least one district court has allowed the identical type of transfer involved here, from admiralty to law. Nilsson v. American Oil Co., D.C.S.D.Tex., 118 F.Supp. 482.

The "election" contemplated by the Jones Act is primarily a decision as to the form of trial — whether jury or nonjury. Balado v. Lykes Bros. S.S. Co., supra, 2 Cir., 179 F.2d 943, 945. Ordinarily in cases transferred from admiralty to law this choice is governed by F.R.C.P., rule 38, treating jury trial as waived unless claimed within ten days after issue is joined. James Richardson & Sons v. Conners Marine Co., 2 Cir., 141 F.2d 226, 230; United States v. The John R. Williams, 2 Cir., 144 F.2d 451, 454, certiorari denied Great Lakes Dredge & Dock Co. v. United States, 323 U.S. 782, 65 S.Ct. 271, 89 L.Ed. 625. Even before the adoption of the Federal Rules the choice between jury trial and trial to the court in transferred cases was not deemed irrevocable until issue was joined. U.S. ex rel. Pressprich & Son Co. v. James W. Elwell & Co., supra, 2 Cir., 250 F. 939; Prince Line v. American Paper Exports, Inc., supra, 2 Cir., 55 F.2d 1053, 1057.

Experience has demonstrated the felicity of the ordinary federal procedure which requires a prompt claim of jury trial or at least shortly after...