McMenamin v. McCormick SS Co.

• Decision Date: 02 April 1941
• Docket Number: No. 21523-L.,21523-L.
• Parties: McMENAMIN v. McCORMICK S. S. CO.
• Court: U.S. District Court — Northern District of California

37 F. Supp. 908

McMENAMIN v. McCORMICK S. S. CO.

No. 21523-L.

District Court, N. D. California, S. D.

April 2, 1941.

S. T. Hogevoll, of San Francisco, Cal., for plaintiff.

John H. Black and J. M. Wallace, both of San Francisco, Cal., for defendant.

LOUDERBACK, District Judge.

The plaintiff, a seaman, was in the service of the defendant McCormick Steamship Company, as a messman. He suffered certain injuries, and instituted the present suit under the Merchant Marine Act of 1920, commonly called the Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688. Upon trial, a judgment was entered for the plaintiff for $250 on the second cause of action, for maintenance. A verdict was entered for the defendant upon the first cause of action for damages, and upon the third cause of action for wages.

Costs were taxed and allowed by the Clerk of the Court at $51, in favor of the plaintiff. The defendant contends that the plaintiff is not entitled to his costs since he recovered a judgment for but $250, and the provisions of 28 U.S.C.A. § 815, provide: "When, in a district court, a plaintiff in an action at law originally brought there * * * recovers less than the sum or value of $500, exclusive of costs, in a case which cannot be brought there unless the amount in dispute, exclusive of costs, exceeds said sum or value * * * he shall not be allowed, but, at the discretion of the court, may be adjudged to pay, costs."

Section 33 of the Jones Act, 46 U.S.C. A. § 688, under which this action was brought, provides that a 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".

The question before the court is whether or not an action under section 33 of the Jones Act falls within the provisions of 28 U.S.C.A. § 815, cited above. In Panama Railroad Company v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 394, 68 L.Ed. 748, the Supreme Court of the United States discusses the nature of a right of action under section 33 of the Jones Act, and holds: "The statute is concerned with the relative rights and obligations of seamen and their employers arising out of personal injuries sustained by the former in the course of their employment. Without question this is a matter which falls within the recognized sphere of the maritime law. * * *

"Rightly understood, the statute neither withdraws injuries to seamen from the reach and operation of the maritime law, nor enables the seaman to do so. On the contrary, it brings into that law new rules drawn from another system and extends to injured seamen a right to invoke, at their election, either the relief accorded by the old rules or that provided by the new rules. The election is between alternatives accorded by the maritime law as modified, and not between that law and some non-maritime system."

Bainbridge v. Merchants' & Miners' Transportation Company, 287 U.S. 278, 279, 53 S.Ct. 159, 160, 77 L.Ed. 302, holds: "The Jones Act, being an addition to the Seamen's Act * * * has the effect of bringing into...