Roth v. Cox

• Decision Date: 05 February 1954
• Docket Number: No. 14419.,14419.
• Citation: 210 F.2d 76
• Parties: ROTH v. COX et al.
• Court: U.S. Court of Appeals — Fifth Circuit

210 F.2d 76 (1954)

ROTH v. COX et al.

No. 14419.

United States Court of Appeals, Fifth Circuit.

January 15, 1954.

Rehearing Denied February 5, 1954.

Arthur Roth, in pro. per.

Monte K. Rassner, Miami, Fla., for appellant.

Douglas D. Batchelor, Smathers, Thompson, Maxwell & Dyer, Miami, Fla., David W. Dyer, Miami, Fla., of counsel, for appellees.

Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.

BORAH, Circuit Judge.

On December 22, 1949, the motor vessel Wingate owned by Sid Cox and H. G. Farrington and others sailed from Matanzas, Cuba, and when off the coast and on the high seas foundered with complete loss of life, including H. C. Farrington, her master, and James Dean, a seaman. In January, 1951, Sid Cox died and thereafter, in the month of October, 1952, plaintiff, as administrator of the estate of James Dean, brought this action under the Jones Act, 46 U. S.C.A. § 688, against the administrators of the estate of Sid Cox and the distributees of the estate of H. C. Farrington. The defendants thereupon filed motions for summary judgment on the ground that plaintiff had not filed with the County Judge of Dade County, Florida — the court having jurisdiction of the probate proceedings in both the Cox and Farrington estates — his notices of claim within eight months from the respective dates of the first publication of notices to creditors as required by F.S.A. § 733.16.¹ The District Judge thought that the defendants were entitled to a judgment as a matter of law, by reason of plaintiff's admitted failure to comply with the notice of claim provision of the Florida probate act and he granted the motions and dismissed the action.

Appealing from this order plaintiff-appellant contends that the statute in question is a statute of limitation; that its requirements with respect to the filing of a claim within eight months are inconsistent with and impair the uniform operation of the maritime law and accordingly are not applicable to a suit under the Jones Act which provides a limitation of three years. The appellees on the other hand insist that the Florida nonclaim statute while partaking of the nature of a statute of limitations is not solely such; that the statute was enacted as a part of the probate law not primarily for the purpose of barring state claims, but as a part of the procedure which courts must observe in the orderly, expeditious and exact settlement of estates of deceased persons; and that the statute does not disturb the uniformity of law in the maritime field and in no way encroaches upon the rights granted to plaintiff by the Jones Act.

The Jones Act, 46 U.S.C.A. § 688, provides that a seaman suffering injury "in the course of his employment may, at his election, maintain an action for damages at law, * * * 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; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law * * * and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable." The section is specifically drawn to give rights to employees against employers and against no others. It refers to injuries sustained in the course of "his" (seaman's) employment. It says that "Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located." Title 45, U.S.C.A. § 51 also refers to actions between employer and employee. Thus, there is nothing in the Jones Act which grants to seamen a right to bring an action against anyone except his employer and as the Act does not in terms provide for survival of actions against the estate of the deceased tort-feasor we are unwilling as in Nordquist v. United States Trust Co. of New York, 2 Cir., 188 F.2d 776,² to supply what the Congress omitted by reading a survival proviso into the statute where no legislative intent therefor is discoverable. If the law is to be changed it ought to be by an Act of Congress.

In the absence of some specific provision as to the survivability of the causes of action which the statute authorizes the statute must be measured in the light of the common law rule of survival. By the ninth section of the Judiciary Act of 1789 the District Courts of the United States were given exclusive original cognizance 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". This provision was carried forward into the 1948 revision of the Judicial Code, 28 U.S.C.A. § 1333, and the language of the saving clause has been changed somewhat in phraseology though not in intent, as the reviser's note makes clear. In The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397, the Court in determining whether the case before it was within the saving clause said: "That clause only saves to suitors, `the right of a common-law remedy, where the common law is competent to give it.' It is not a remedy in the common-law courts which is saved, but a common-law remedy." The saving clause neither creates substantive rights in itself nor assents to their creation by the state. It refers only to remedies and to the extent specified permits continued enforcement by the state courts of rights and obligations founded on maritime law. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834. Thus, in Chelentis v. Luckenbach S. S. Co., Inc., 247 U.S. 372, 384, 38 S.Ct. 501, 504, 62 L.Ed. 1171, it was said, "under the saving clause a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law; but we find nothing therein which reveals an intention to give the complaining party an election to determine whether the defendant's liability shall be measured by common-law standards rather than those of the maritime law." It follows that state Legislatures are competent to enact survival statutes which may be enforced as a common-law remedy. While it may be true that admiralty may not enforce the remedy, even by libel in personam, yet it is not an encroachment on admiralty jurisdiction because it is excepted from that jurisdiction by the savings clause. Under the common law of Florida as modified by the statutes of the state a cause of action for a tort survives the death of the tort-feasor and may be maintained against his personal representative.³

This brings us to the question whether this suit brought on the common law side of the District Court to enforce a right of action granted by the Jones Act may be commenced within three years after the cause of action accrues, or whether the Florida statute of nonclaim fixing a shorter period of limitation will apply. Section 56 of the Employers' Liability Act⁴ provides that "no action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued." This provision which was incorporated by adoption in the Jones Act is one of substantive right, setting a limit to the existence of the obligation which the Act creates. Atlantic Coast Line R. R. v. Burnette, 239 U.S. 199, 201, 36 S.Ct. 75, 60 L.Ed. 226. And it necessarily implies that the action was maintainable as a substantive right, if commenced within three years. Referring to the Jones Act and its proper construction the Supreme Court in Panama R. R. Co. v. Johnson, 264 U.S. 375, 392, 44 S.Ct. 391, 396, 68 L.Ed. 748, said: "The statute extends territorially as far as Congress can make it go, and there is nothing in it to cause its operation to be otherwise than uniform. The national legislation respecting injuries to railway employees engaged in interstate and foreign commerce which it adopts has a uniform operation, and neither is nor can be deflected therefrom by local statutes or local views of common-law rules. Second Employers' Liability Cases, Mondou v. New York, N. H. & H. R. Co. 223 U.S. 1, 51, 55, 32 S.Ct. 169, 56 L.Ed. 327; Baltimore & Ohio R. R. Co. v. Baugh, 149 U.S. 368, 378, 13 S. Ct. 914, 37 L.Ed. 772." In Engel v. Davenport, 271 U.S. 33, 39, 46 S.Ct. 410, 413, 70 L.Ed. 813, a suit founded on the Jones Act was brought in the state court and the contention there made was that § 6 of the Employers' Liability Act⁵ does not determine the period of time within which an action may be commenced in the state court. In answering this contention the Court said: "We conclude that the provision of section 6 of the Employers' Liability Act relating to the time of commencing the action, is a material provision of the statutes `modifying or extending the common law right or remedy in cases of personal injuries to railway employees' which was adopted by and incorporated in the Merchant Marine Act. And, as a provision affecting the substantive right created by Congress in the exercise of its paramount authority in reference to the maritime law, it must control in an action brought in a State court under the Merchant Marine Act, regardless of any statute of limitations of the State. See Arnson v. Murphy, 109 U.S. 238, 243, 3 S.Ct. 184, 27 L.Ed. 920." We take it to be now well settled that when a common law action is brought, whether in a federal or in a state court, to enforce a right peculiar to the law of admiralty, the substantive law to be applied is the same as would be applied by an admiralty court. Chelentis v. Luckenbach S. S. Co., Inc., supra; Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927; Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813; Panama R. R. Co. v. Vasquez, 271 U.S. 557, 46 S.Ct. 596, 70 L. Ed. 1085; Lindgren v. United States, 281 U.S. 38, 46, 50 S.Ct. 207, 211, 74 L.Ed. 686; ...