McCord v. Moore-McCormack Lines, Inc.
Decision Date | 11 June 1965 |
Citation | 242 F. Supp. 493 |
Parties | John McCORD, Plaintiff, v. MOORE-McCORMACK LINES, INC., Defendant. |
Court | U.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.
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:
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:
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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...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 ......
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...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). ...