Sullivan v. Nitrate Producers' S.S. Co.

• Citation: 262 F. 371
• Decision Date: 10 December 1919
• Docket Number: 42.
• Parties: SULLIVAN v. NITRATE PRODUCERS' S.S. CO., Limited.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

262 F. 371

SULLIVAN v. NITRATE PRODUCERS' S.S. CO., Limited.

No. 42.

United States Court of Appeals, Second Circuit.

December 10, 1919

This suit is in personam against the owner of the British steamship Anglo-Patagonian. Before this litigation, Sullivan sued the steamship in rem (in another district), setting forth in his libel that he had 'joined' the vessel 'as a horse handler in the employ of the Federal Export Corporation,' and as such was on board her on a voyage from Philadelphia to Bordeaux. He was injured, as he alleged 'solely through the fault and negligence of the boatswain and a member of the crew of said vessel'; he being (as was also alleged) not a member of the steamship's crew.

Damage was asserted in $5,000, and after the usual allegations of jurisdiction and prayers for process, the libel in rem concludes: 'That this honorable court may be pleased to decree the payment of your libelant's claim in the sum of five thousand ($5,000.00) dollars, and that said vessel may be condemned and sold to pay the same, and, in the event that he should fail to prove said vessel was unseaworthy for the reasons aforesaid, that he be awarded the expense of his maintenance and cure and wages to the end of the voyage for which he signed, and such other and further relief as to the court may seem just and proper.'

The answer to this libel in rem denied that Sullivan was employed by the Federal Export Company, and admitted that he received injury while on board as a member of the ship's crew and after signing articles as such. It further asserted that the accident happened on a British vessel and on the high seas and pleaded the Merchant Shipping Acts and Workmen's Compensation Act of Great Britain.

Trial was had under these pleadings, and libelant adjudged to have been a member of the crew, with the status of a seaman. The court further held that, if he did receive injury as and when he asserted, the occurrence was on a British vessel, on the high seas, and by reason of the negligence of a fellow servant. As a conclusion of (British) law, therefore, it followed that Sullivan could not maintain any action for damages through negligence, and was remitted to the British Workmen's Compensation Act for relief. Final decree was entered accordingly, which still stands unmodified; all periods for appeal having expired. Thereupon the present suit was begun, in which libelant alleges that he was a member of the Anglo-Patagonian's crew, that he suffered the same injuries as before complained of, and was neglected by the steamship's officers; so that, beside the normal results of such a hurt as he received, 'he suffered additional and excruciating pain (and) * * * it became necessary to remove a portion of two of his fingers,' which could have been saved with 'proper medical care and attention.' Wherefore he demanded (as one cause of action) 'maintenance and cure,' estimated at $1,000, and (as a second cause of action) damages of $3,000 for the neglect of his wound.

The respondents pleaded to the merits, but set up in addition the record of the first suit, after inspection of which the court below dismissed the libel.

Silas B. Axtell, of New York City (Arthur Lavenburg, of New York City, of counsel), for appellant.

Kirlin Woolsey & Hickox, of New York City (L. De Grove Potter, of White Plains, N.Y., of counsel), for appellee.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

It was correctly assumed in the court below that a decree in rem may be successfully used under the plea of res adjudicata in an action in personam. Bailey v. Sundberg, 49 F. 583, 1 C.C.A. 387.

We then consider (1) the scope and nature of Sullivan's earlier suit, and (2) what was decided or might have been decided in that action, remembering that it is an inexorable rule of law that a judgment is a bar to subsequent demands which either were or might have been litigated in the action productive of the judgment. Watts v. Weston, 238 F. 149, 151 C.C.A. 225, and cases cited.

Libelant's pleading in rem is now said to contain obvious mistakes, amounting to something like 'clerical error.' The fact is, however, that it is drawn in a common form, and is reasonably appropriate when and if the vessel sued is American, and the law applicable that of the United States.

By denying that libelant was a member of the Anglo-Patagonian's crew, it was plainly expected to avoid The Osceola, 189 U.S. 158, 23 Sup.Ct. 483, 47 L.Ed. 760; but if Sullivan was proved to be (in contemplation of law) a seaman, then he evidently expected to avail himself of The Bouker No. 2, 241 F. 831, 154 C.C.A. 533. Such pleading was sufficient for this purpose, in the admiralty at all events, under The Gazelle, 128 U.S. 487, 9 Sup.Ct. 139, 32 L.Ed. 496, and the prayer for general relief as construed in Sonsmith v. The J. P. Donaldson (C.C.) 21 F. 671.

But it turned out on the evidence that to this injury, received on the high seas by a member of the crew and...