McCarthy v. American Eastern Corporation

• Decision Date: 14 June 1949
• Docket Number: No. 9767.,9767.
• Parties: McCARTHY v. AMERICAN EASTERN CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

175 F.2d 724 (1949)

McCARTHY v. AMERICAN EASTERN CORPORATION.

No. 9767.

United States Court of Appeals Third Circuit.

Argued May 5, 1949.

Decided June 14, 1949.

Thomas E. Byrne, Jr., Philadelphia, Pa. (Timothy J. Mahoney, Jr., Mark Dalspach and Krusen, Evans & Shaw, Philadelphia, Pa., on the brief), for appellant.

Charles Lakatos, Philadelphia, Pa. (Abraham E. Freedman, Wilfred R. Lorry, William M. Alper, and Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellee.

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

MARIS, Circuit Judge.

The plaintiff, a seaman who had been injured in the service of the M. V. Gadsden operated by the defendant, brought a civil action in the district court for the recovery of damages to compensate him for his injuries. The complaint asserted as its basis both the unseaworthiness of the vessel and the negligence of members of the crew. It thus appears that the claim derived both from the admiralty law of unseaworthiness and the Jones Act, 46 U.S.C.A. § 688. The jury returned a verdict in favor of the plaintiff for $22,500. A new trial was refused by the district court and the present appeal followed.

On this appeal the principal contention of the defendant is that the trial judge erred in submitting to the jury the issues both of unseaworthiness under the old maritime law and negligence under the Jones Act and in permitting the jury to base its verdict upon both grounds. The contention is that under the Jones Act the plaintiff was required to elect between these two bases for recovery and, therefore, could not rely upon both of them at the same time. In German v. Carnegie Illinois Steel Corp., 3 Cir., 1946, 156 F.2d 977, this court expressly rejected this contention, holding that it was error for the district court to require a seaman to make such an election. We adhere to that decision but in view of the insistent argument by the defendant that it runs counter to controlling decisions of the Supreme Court we think it appropriate to amplify somewhat our discussion of the reasons which led to our conclusion.

The pertinent provisions of the Jones Act are as follows:¹

"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; * * *." (Italics supplied.)

Stated somewhat more fully, the contention is that an injured seaman must elect whether to base his action for indemnity upon the old rules of the maritime law, e. g., the failure of the owner to fulfill his duty to provide a seaworthy vessel or to provide and keep in order suitable appliances,² on the one hand, or to base it upon the new rule of the Jones Act, to wit, the negligence of the master or members of the crew, on the other hand.

It is true that in some opinions of the Supreme Court³ there are statements with respect to the meaning of the phrase "at his election" in the Jones Act which support this contention and that the Court of Appeals for the Second Circuit in reliance upon these decisions has adopted that view.⁴ But these expressions were all by way of obiter dictum, the precise question not having been before the Supreme Court in those cases, and we think that they cannot be regarded as authoritative in view of the decision of that court in Baltimore S. S. Co. v. Phillips, 1927, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069.

In Baltimore S. S. Co. v. Phillips the Supreme Court held that a seaman injured in the service of his ship has suffered but one actionable wrong and is entitled to but one recovery whether his injury was due to the unseaworthiness of the vessel or the negligence of the owner as defined by the old rules of the maritime law or to the negligence of the officers and crew as defined by the Jones Act or to a combination of some or all of them. "In either view," said the Supreme Court, 274 U.S. at page 321, 47 S.Ct. at page 602, "there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex." In that case Phillips had first brought a suit in admiralty based upon the unseaworthiness of the vessel and its gear and the negligence⁵ of the owner in failing to provide proper gear and a safe place to work. Judgment was entered against Phillips upon the ground that the accident was not due to the causes alleged in the libel but rather to the negligent way in which the vessel's gear was handled by the officers and crew.

Phillips thereupon brought a civil action under the Jones Act based upon the negligence of the officers and crew. In that action he recovered a verdict and judgment. This judgment was reversed by the Supreme Court upon the ground that the civil action in which it was rendered was based upon the same cause of action as was involved in the prior admiralty suit and that the judgment for the defendant in the admiralty suit accordingly, under the doctrine of res judicata, barred recovery by the plaintiff in his later civil action under the Jones Act. In the course of the opinion Justice Sutherland pointed out that the Jones Act had incorporated into the maritime law the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to the extent that suit thereunder could be brought by a seaman either in admiralty or at law and stated, 274 U.S. at page 324, 47 S.Ct. at page 603: "It follows that here both the libel and the subsequent action were prosecuted under the maritime law, and every ground of recovery, open to respondent in the second case, was equally open to him in the first." This is a ruling by the Supreme Court that the ground of negligence of the crew under the Jones Act could have been asserted in the prior suit along with the grounds of unseaworthiness and negligence of the owner which had been asserted in that suit. The case is thus direct authority for the action here taken by the district...