The Fletero v. Arias, 6607.

• Decision Date: 31 July 1953
• Docket Number: No. 6607.,6607.
• Citation: 206 F.2d 267
• Parties: THE FLETERO et al. v. ARIAS.
• Court: U.S. Court of Appeals — Fourth Circuit

206 F.2d 267 (1953)

THE FLETERO et al. v. ARIAS.

No. 6607.

United States Court of Appeals, Fourth Circuit.

Argued June 19, 1953.

Decided July 31, 1953.

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Hugh S. Meredith, Norfolk, Va. (Vandeventer, Black & Meredith, Norfolk, Va., on the brief), for appellants.

Henry E. Howell, Jr., and H. Lee Kanter, Norfolk, Va. (Kanter & Kanter and Jett, Sykes & Howell, Norfolk, Va., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal in a suit in admiralty filed by an Argentine seaman, Hugo Arias, against the Argentine vessel Fletero and its owner the Argentine Corporation Compania Argentina de Navegacion Dodero, to recover damages on account of personal injuries sustained by Arias while the vessel was tied up at the dock at the port of Norfolk, Va., together with a balance due on wages. The original libel asked recovery against the vessel and owner on the ground that libellant's injuries were caused by the unseaworthiness of the vessel. An amendment to the libel alleged negligence on the part of the owner and asked recovery under the Jones Act, 46 U.S.C.A. § 688. A second amended libel alleged failure to pay libellant a balance on wages due him at the time of his discharge from the vessel at Norfolk and asked recovery of this balance with "waiting time" under the statute. Prior to the hearing, the vessel tendered to libellant in open court the sum of $1,304.71 in payment of the wage and overtime claim. The District Judge held that respondents were liable for libellant's injuries "both because of the unseaworthiness of the vessel and for the negligence of the respondent's winch operator", invoking for the latter ground the provisions of the Jones Act. He awarded libellant the sum of $20,000 on account of his injuries and gave a decree for this amount plus the $1,304.71 tendered on the wage claim.

The first question presented by the appeal is whether there was error on the part of the District Judge in taking jurisdiction of the case. In the District Court there was a motion to dismiss on the ground that the vessel belonged to the Argentine government; but the motion was denied on the ground that the vessel was being operated in commercial trade by the corporation named as the owner in the libel. The point raised by this motion is not urged on appeal. Appellants contend, however, that the District Judge retained jurisdiction because he was erroneously of opinion that, under the decisions in this Circuit, he had no discretion in the matter. Appellants are the ones who are in error as to this. The District Judge in his memorandum of November 26, 1952, in which he passed on the question of liability, distinctly stated that the court had "exercised its discretion to accept jurisdiction of the alien's claim here, in accordance with the doctrine of this Circuit". (Italics supplied). In the same memorandum he referred to two decisions of this court which lay down, not only the doctrine of this Circuit, but what we understand to be the law as laid down by the Supreme Court with respect to the exercise of discretion in accepting jurisdiction of a suit by a foreign seaman. That doctrine as stated by us in Heredia v. Davies, 4 Cir., 12 F. 2d 500, is as follows:

"Respondent\'s first contention is that, as libelant was a citizen of Peru and was injured while in the performance of his duties on a Peruvian ship, the courts of the United States are without jurisdiction to entertain the libel. With this contention we cannot agree. In the absence of treaty stipulation, the courts of admiralty of the United States have jurisdiction of all matters appertaining to a foreign ship while in the ports of this country. The Belgenland, 114 U.S. 355, 5 S.Ct. 860, 29 L.Ed. 152; The Roxen, 4 Cir., 11 F.2d 55, decided January 14, 1926; Elder Dempster Shipping Co. v. Pouppirt, 4 Cir., 125 F. 732; Cunard S. S. Co. v. Smith, 2 Cir., 255 F. 846; The Ester, D.C., 190 F. 216.

"While an admiralty court of the United States is under no obligation to entertain jurisdiction of a libel to recover for personal injuries, where libelant is a foreigner and the ship is a foreign ship, it is inclined to do so when (as in this case) it is necessary to prevent a failure of justice, or when the rights of the parties would be thereby best promoted. Cunard Steamship Co. v. Smith, supra. And when in such case the District Court exercises its discretion in favor of assuming jurisdiction, this discretion will not be reviewed on appeal, in the absence of showing that it was exercised on wrong principles, or that the District Judge has acted `so absolutely differently from the view which the court of appeal holds that they are justified in saying he has exercised it wrongly.\'"

We cannot say that there was any abuse of discretion on the part of the lower court in taking and holding jurisdiction of this case. The injury occurred while the ship was tied up in the dock at Norfolk and the injured seaman was in a Norfolk hospital. A survey of the vessel had been made in Norfolk and the survey and other proofs were available there to establish libellant's cause of action. The injured seaman had been discharged from the vessel without payment of a considerable balance of wages due him; and counsel whom he had employed lived in Norfolk and by their diligence had prepared the case so as to establish his right to recover substantial damages. There is nothing in law or in sound common sense which requires that, in this posture of affairs, the court throw libellant out of court and tell him to start over again in a distant jurisdiction, where counsel who had prepared his case could not appear for him, and where the proofs necessary to establish liability might not be obtainable. Particularly is this true when to dismiss the case here would require libellant to pursue his rights in the courts of a foreign government which was seeking to defeat his recovery by moving for a dismissal of his case here on the ground that that government was the owner of the ship. To throw libellant out of court now would be to subject him to the grave danger of having the Argentine courts hold that his cause of action is barred by its one year statute of limitations. These seem to us to be persuasive arguments for the exercise of the discretionary jurisdiction vested in the court below. See Lauritzen v. Larsen, 345 U.S. 571 at pages 589-590, 73 S.Ct. 921 at page 932.¹ At all events, we cannot say that, with these considerations before him, there was abuse of discretion on the part of the District Judge in taking and holding jurisdiction of the case, even if it had involved nothing more than the claim for damages for personal injuries.

It may not be overlooked, however, that under the second amended libel the case involved a claim for wages and waiting time under a statute of the United States, 46 U.S.C.A. § 596, which requires that upon discharge of a seaman in a port of the United States his full wages be paid him and imposes a penalty of double wages for delay in payment. This section applies to foreign seamen serving on a foreign vessel. Strathearn S. S. Co. v. Dillon, 252 U. S. 348, 40 S.Ct. 350, 64 L.Ed. 607; The Sonderburg, D.C., 40 F.2d 652, affirmed, 4 Cir., 47 F.2d 723, certiorari denied. 284 U.S. 618, 52 S.Ct. 7, 76 L.Ed. 527. There is no blinking the fact that libellant's wages were not paid him at the time when, as found by the court below, he was discharged from the vessel, nor was the balance due ever tendered him until more than six months after his discharge and after the filing of the amended libel, when appellants tendered him the balance due on wages with penalties, amounting in all to $1,304.71. Decree was given libellant for the amount so tendered and appellants are contesting on this appeal the amount included in the decree for the penalties. There can be no question but that the court should have taken jurisdiction of a cause of action of this sort arising under the statutes of this country. Elman v. Moller, 4 Cir., 11 F.2d 55; Heros v. Cockinos, 4 Cir., 177 F.2d 570, 572. The fact that the court must assume jurisdiction of the claim arising under the statutes of the United States is a circumstance which it may properly consider in deciding whether it will assume jurisdiction of the claim for damages so that the libellant may be awarded complete relief against the vessel in one suit.

The facts out of which the claim for damages for personal injury arise are as follows: The vessel had completed loading a cargo of coal at Norfolk and seamen were engaged in putting the hatch cover on No. 2 hatch. Libellant Arias was engaged in removing coal from the hatch channel when a hatch cover weighing about a ton was dropped upon him in such way as to crush his right hand and forearm so that they had to be amputated. The District Judge found, and his finding is amply supported by the evidence, that the dropping of the hatch cover upon plaintiff's arm was due to the defective condition of the brakes of the winches by which it was being handled. The manner of the occurrence is thus described in the findings of fact made by the District Judge:

"After the sling had been rigged (by the libellant and others) to lift the topmost of the said hatch sections, it was ascertained that the starboard winch cable was kinked, which condition prevented proper operation of the starboard winch. Accordingly, certain crew members, including Hugo Caussou, pulled the starboard cable from off the winch to straighten out the kinks; whereupon, Aurelio Navone engaged the starboard winch so as to rewind the cable on the drum of the winch. The end of this cable was made fast to a

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