McDonald v. Cape Cod Trawling Corporation, Civ. No. 4126.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Citation: 71 F. Supp. 888
• Decision Date: 13 May 1947
• Parties: McDONALD v. CAPE COD TRAWLING CORPORATION et al.
• Docket Number: Civ. No. 4126.

71 F. Supp. 888

McDONALD
v.
CAPE COD TRAWLING CORPORATION et al.

Civ. No. 4126.

District Court, D. Massachusetts.

May 13, 1947.

71 F. Supp. 889

Harry Kisloff, of Boston, Mass., for plaintiff.

Seymour P. Edgerton, Sumner H. Babcock and Bingham, Dana & Gould, all of Boston, Mass., for defendant Cape Cod Trawling Corporation.

Seymour P. Edgerton, Clarence P. Ford, Sumner H. Babcock and Bingham, Dana & Gould, all of Boston, Mass., for defendants Byron C. Hedblom and Carl G. Hedblom.

WYZANSKI, District Judge.

Plaintiff, a resident of Massachusetts, sues as administratrix of a deceased Massachusetts seaman. She names as defendants a Massachusetts corporation, The Cape Cod Trawling Corporation, which employed the decedent, and also Byron C. Hedblom and Carl G. Hedblom, who are residents of Massachusetts and who are partners doing business as a shipbuilding firm.

Plaintiff complains that the corporate employer failed to supply a reasonably safe place in which the decedent could work and that that failure was the cause of injuries to and the death of the decedent while he was a seaman on board the corporation's fishing vessel, the Lark. In short, against the corporation the plaintiff seeks her remedy under the Jones Act, 46 U.S.C.A. § 688, which gives an employee injured by his employer's negligence a cause of action at law triable by a jury in a Federal court.

In the same pleading plaintiff complains that the individual defendants negligently constructed a lampstand which they supplied to the fishing trawler Lark and that this negligent construction was the cause of injuries to and the death of the decedent during his employment on the Lark. In short, against the individual defendants the plaintiff seeks to recover for a non-statutory tort arising out of a manufacturer's alleged negligent manufacture of a chattel. Compare Restatement, Torts, § 395.

Against all defendants plaintiff demands a jury trial. The individual defendants have moved to dismiss the suit against them on the ground that this Court has no jurisdiction of that part of the complaint which seeks to hold them liable. They take the position that the complaint against them can not be founded on 28 U.S.C.A. § 41(1) (b) because there is no diversity of citizenship between them and plaintiff. And they further say that it can not be founded on 28 U.S.C.A. § 41(3) because this complaint, as is indicated by its docket number and by its specific claim of a jury trial, was filed at law and not in admiralty.

Plaintiff agrees that 28 U.S.C.A. § 41(1) does not apply, but she relies on 28 U.S.C. A. § 41(3), which, so far as material, provides: "Third. Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it, and to claimants for compensation for injuries to or death of persons other than the master or members of the crew of a vessel their rights and remedies under the workmen's compensation law of any State, District, Territory, or possession of the United States, which rights and remedies when conferred by such law shall be exclusive; of all seizures on land or waters not within admiralty and maritime jurisdiction; * * *."

The starting point is to analyze that part of the complaint which is directed at the individual defendants to see what type of tort is charged. And upon analysis it is quite clear that what is charged is a maritime tort. To be sure, the individual

71 F. Supp. 890

defendants undoubtedly built the vessel on land. But the complaint charges that the lampstand fell on the decedent while he was aboard the Lark while it was docked in navigable waters. Therefore the tort, if any, is a maritime tort. Vancouver Steamship Co., Ltd., v. Rice, 288 U.S. 445, 447, 448, 53 S.Ct. 420, 77 L.Ed. 885; Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U.S. 52, 62, 63, 34 S.Ct. 733, 58 L.Ed. 1208, 51 L.R.A.,N.S., 1157; Sieracki v. Seas Shipping Co., 3 Cir., 149 F.2d 98, 99, Col. 2 affirmed without consideration of this issue in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 89, lines 13-17, 66 S.Ct. 872, 90 L.Ed. 1099. This is a commonplace illustration of the familiar general conflict of laws rule that the place of wrong is the place where the last event necessary to make an actor liable for an alleged tort occurs. Restatement, Conflict of Laws, § 377; Goodrich, Conflict of Laws, (2d Ed.), § 90

Since the complaint charges a maritime tort it is clearly a complaint which comes within the jurisdiction conferred by the quoted language of 28 U.S.C.A. § 41(3). The three cases cited in the last paragraph all sustain the proposition just stated. Indeed, the Sieracki case is peculiarly apt. There the plaintiff was a longshoreman who was injured by the tackle while loading a vessel. The defendants were the employer and the contractor and sub-contractor who built the vessel and who were alleged to have installed a defective shackle. The plaintiff was a resident of Pennsylvania See Original Papers in 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, Tr. 12; and the contractor and sub-contractor were Pennsylvania corporations Ibid, Tr. 116, par. 1 and 2 and Tr. 134. Hence in that aspect of the case where relief was sought against the contractor and sub-contractor jurisdiction could not have been based on diversity jurisdiction but must have been bottomed on maritime jurisdiction.

However, to decide that the alleged tort is a maritime tort and is within the maritime jurisdiction of this Court is not sufficient to uphold this particular complaint. This complaint filed at law demands a jury trial, and the vital question is whether plaintiff is entitled to that type of proceeding. Against the corporate defendant, which was the decedent's employer, she is, by the special provisions of the Jones Act, undoubtedly entitled to have her case tried at law and by a jury. 46 U. S.C.A. § 688. But against the individual defendants she has no such right. 28 U.S. C.A. § 770. Benedict, Admiralty, § 224. To get a jury trial against them she would have to show that she had either an act...