Roth v. Cox, No. 14419.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HUTCHESON, , and HOLMES and BORAH, Circuit
• Citation: 210 F.2d 76
• Parties: ROTH v. COX et al.
• Docket Number: No. 14419.
• Decision Date: 05 February 1954

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.

210 F.2d 77

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

210 F.2d 78

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

210 F.2d 79

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...