McCord v. Moore-McCormack Lines, Inc.

Decision Date11 June 1965
Citation242 F. Supp. 493
PartiesJohn McCORD, Plaintiff, v. MOORE-McCORMACK LINES, INC., Defendant.
CourtU.S. District Court — Southern District of New York

Zimmerman & Zimmerman, New York City, for plaintiff, Morris Cizner, New York City, of counsel.

David P. Dawson, New York City, for defendant.

SUGARMAN, District Judge.

John McCord commenced an action for personal injuries sustained by him while a member of the crew of the S.S. MOORE MACREED, a vessel owned, operated and controlled by the defendant, Moore-McCormack Lines, Inc. He claimed $50,000 damages for personal injuries in a "First Cause of Action" and $50,000 damages for wages and maintenance and cure in a "Second Cause of Action". Damages under the "First Cause of Action" were stated to include past and future inability of plaintiff "to pursue his usual vocation".

The "First Cause of Action" alleged in Paragraph IV:

"That plaintiff elects to maintain this action under the provisions of Section 33 of the Merchant Seamen's Act of June 5th, 1950, 1920, C. 250, 41 Stat. 1007, otherwise known as the `Jones Act' and also claims damages on the grounds of the unseaworthiness of the vessel referred to herein."

The allegation was reiterated by incorporation into the "Second Cause of Action". In the pretrial order entered herein the plaintiff's claims for damages were stipulated to be:

(a) wages lost during the period April 16, 1959 (the date of plaintiff's injury) to September 6, 1959 (when plaintiff returned to regular employment as a seaman — although his testimony indicated that he returned to regular employment on September 3, 1959), totalling approximately $2,500;
(b) future lost wages;
(c) past medical and hospital expenses;
(d) future medical and hospital expenses;
(e) past pain and suffering;
(f) future pain and suffering.

There was no proof at the trial of any damages under categories (b), (c) and (d), and at the trial plaintiff asserted damages only in categories (a), (e) and (f).

Accordingly, the case was tried substantially on the "First Cause of Action" under the Jones Act for negligence and the general maritime law for unseaworthiness. The jury brought in a general verdict in the plaintiff's favor for $2,500.

Therefore, the court sua sponte advised counsel that it would take under advisement whether plaintiff should recover costs against the defendant and whether the defendant's costs should be imposed upon the plaintiff in line with the amendments to 28 U.S.C. §§ 1331 and 1332 by Pub. L. 85-554.

Section 1332 of Title 28 U.S.C. is inapplicable because diversity of citizenship was neither pleaded nor proved.

On the other hand, Section 1331 of Title 28 U.S.C. is applicable since one basis for jurisdiction was specifically stated in the complaint to be the Jones Act.

As was pointed out in Black and Gilmore, The Law of Admiralty, 385:

"In non-diversity cases, the Court's jurisdiction (when the case is not brought in admiralty) must be based on Section 1331 which gives the district courts original jurisdiction of `all civil actions wherein the matter in controversy * * * arises under the Constitution, laws or treaties of the United States.' Actions brought under the Jones Act fall within the jurisdictional grant, since it is established that an action brought under a federal statute `arises under the * * * laws * * * of the United States,' within the meaning of Section 1331."

If this suit had been predicated solely on the Jones Act, the power vested in the court to deny the plaintiff costs (his recovery being for less than $10,000) and to impose upon him the defendant's costs, would be undeniable.

In the Senate report on Pub. L. 85-554 (1958 U. S. Code Cong. & Adm. News, p. 3099), it was recognized that "* * * the only significant categories of `Federal question' cases subject to the jurisdictional amount are suits under the Jones Act * * *."

However, since the complaint alleged also unseaworthiness under the general maritime law and the case was given to the jury on that additional basis, the question arises whether the sanction power vested by 28 U.S.C. § 1331(b) is lost inasmuch as...

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2 cases
  • Ballard v. Moore-McCormack Lines, Inc., 66 CIV 118.
    • United States
    • U.S. District Court — Southern District of New York
    • May 24, 1968
    ...Dock Co., 172 F.2d 601, 603 (7th Cir. 1948), cert. denied, 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758 (1949); McCord v. Moore-McCormack Lines, Inc., 242 F.Supp. 493 (S.D.N.Y.1965); Turner v. Wilson, Line of Massachusetts, 142 F.Supp. 264 (D. Mass. 1956), affirmed on other grounds, 242 F.2d ......
  • Mull v. Marathon Oil Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 7, 1981
    ...Inc., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Johnson v. Yerger, 612 F.2d 953, 960 (5th Cir. 1980); McCord v. Moore-McCormack Lines, Inc., 242 F.Supp. 493 (S.D.N.Y.1965). ...

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