THE ORISKANY

• Decision Date: 20 June 1933
• Docket Number: No. 1914.,1914.
• Citation: 3 F. Supp. 805
• Parties: THE ORISKANY.
• Court: U.S. District Court — District of Maryland

3 F. Supp. 805

THE ORISKANY.

No. 1914.

District Court, D. Maryland.

June 20, 1933.

George W. P. Whip and Huntington Cairns, both of Baltimore, Md., for libelant.

George Forbes and Henry L. Wortche, both of Baltimore, Md., for respondent.

WILLIAM C. COLEMAN, District Judge.

This is a libel in rem by an American seaman against the British steamship Oriskany for injury, and also for maintenance and cure in connection with this injury, which the seaman sustained on April 14, 1932, due to the alleged unseaworthiness of the Oriskany during a voyage from Kingston, Jamaica, to St. John, New Brunswick, Canada, with a cargo of bananas.

The material facts relating to the injury to libelant are found to be as follows: When a day or two out from Kingston, Jamaica, libelant and another seaman were ordered by the officer in charge to transfer certain wooden hatch covers from the orlop deck, where they had been piled, to the deck below and to stow them there. The primary use of these hatch covers was as a staging in loading and discharging the fruit cargo, they being shifted from deck to deck, as proper ventilation of the cargo or other conditions might require. While engaged on the lower deck in receiving these hatch boards as they were passed to him by the other seaman, libelant was struck on the head and knocked down into the hold by one of them which had fallen from the hands of the other seaman; a lurch of the vessel having caused him to drop it as he was endeavoring to pass it down to libelant. The sea and weather were moderate.

Besides denying that the Oriskany was in any respect unseaworthy, the respondent denies that this court has jurisdiction of the present suit, claiming that libelant's sole right of action is one in personam under the British statutes, in a British forum. Thus we must dispose of this jurisdictional question at the outset, and a correct answer to it necessitates at least a brief review of the British law, because, since we have here the case of an injury occurring on a British vessel while on the high seas, the existence and nature of a cause of action for such alleged wrong is governed by the law of the country under which the vessel is registered; that is, by the law of the flag. See Sullivan v. Nitrate Producers' S. S. Co. (C. C. A.) 262 F. 371; Id. (D. C.) 254 F. 361; The Lamington (D. C.) 87 F. 752; section 445 of the Restatement of the Law of Conflicts, proposed final draft No. 3. Compare La Bourgogne, 210 U. S. 95, 138, 28 S. Ct. 664, 52 L. Ed. 973; National Steam Navigation Co. v. Dyer, 105 U. S. 24, 29, 26 L. Ed. 1001; Bonsalem v. Byron S. S. Co., Ltd. (C. C. A.) 50 F.(2d) 114. While the precise question now before us, namely, whether British admiralty law permits a suit in rem by a seaman against his ship for injuries sustained by reason of the ship's unseaworthiness, is rendered somewhat complicated by the existence of a number of statutory provisions hereinafter referred to, nevertheless the decisions would all seem to require a negative answer to this question. See Currie v. McKnight, 1897 A. C. 97; The Vera Cruz, 1884 Prob. Div. 96; The Theta, 1894 Prob. 280; Mulvey v. Barge Neosho, 47 D. L. R. 427. In each of these cases it was held that, unless the damage be caused by the vessel and not merely on the vessel, it was not such damage as would give to libelant a remedy in rem.

As early as 1854 in Couch v. Steel, 3 El. & Bl. 402, it had been decided that, in the absence of knowledge of unseaworthiness or of deceit or express warranty, a seaman had no remedy for personal injuries due to his ship's unseaworthiness; in other words, that there was no implied contract or warranty that the vessel was seaworthy. In 1861, however, the Admiralty Court Act (24 Vict. c. 10, § 7), extended the jurisdiction in admiralty, both in rem and in personam, to "any damage done by any ship." But it was uniformly held that this statutory change did not have the effect of according to seamen a right in rem for personal injuries due to his vessel's unseaworthiness, because such damage was not caused by the vessel herself. See Currie v. McKnight; The Vera Cruz; The Theta; and Mulvey v. Barge Neosho, supra; also The Osceola, 189 U. S. 158, 177, 23 S. Ct. 483, 47 L. Ed. 760. Then there followed, in 1876, another statute, the Merchants' Shipping Act (39 and 40 Vict. c. 80, §§ 4, 5), which, among other provisions, created against the shipowner and in favor of the seaman an implied warranty that the ship was seaworthy. See Hedly v. Pinkney & Sons, S. C. Co., L. R. 1894, A. C. 222. Next, the Merchant Shipping Act of 1894, 57 and 58 Vict. § 207, among other things, accorded to seamen injured while working aboard vessels a right to maintenance and cure. Later, in 1905, the Shipowners' Negligence Act, 5 Ed. 7, c. 10, § 1, gave to the injured seaman a right to detain a foreign ship while in British waters on account of injuries that he had sustained while working on such vessel in British waters. In 1906 the British Workmen's Compensation Acts, 6 Ed. 7, § 58 (present act is 15 and 16 Geo. 5, c. 84, § 35), were extended to include seamen, and the only pertinent statutes since 1906 are apparently the Maritime Conventions Act of 1911, 1 and 2 George, 5, c. 57, § 5, and the Supreme Court of Judicature (Consolidation) Act 1925, 15, 16 George 5, c. 48, §§ 22 (2) and 33 (2). The first act defined damage as including personal injury, but did not modify the limitation of the action in the Act of 1861 to damage done by the vessel. See The Moliere, 1925 L. R., Prob. Div. 27. The second act is the latest parliamentary expression on this subject, but, since the wording of this act and that of the Maritime Conventions Act of 1911 is much the same, and since there appears to be no decision interpreting the Act of 1925 contrary to the decision in The Moliere, supra, rendered a year before the law's enactment, this last statute appears to have wrought no change in the prior law.

To summarize, therefore, the British law which has been above briefly and chronologically analyzed, while a seaman is not without remedy when injured through his ship's unseaworthiness, he has an action in rem only if such injury occurs in British waters, upon a foreign ship; otherwise he must proceed in personam either under the Workmen's Compensation laws, or under the Merchant Shipping Act of 1876. Does this mean, however, that the British law attaches, in other cases, no lien to the vessel for the wrong done to the seaman? We consider that it does, but at the same time we believe that this is no bar to assertion of a right in rem in this jurisdiction. It is, of course, well settled that, if a lien attaches to a vessel by foreign law, under circumstances in which this court has admiralty jurisdiction, such lien is enforceable in this court. See Lewis v. Jones (C. C. A.) 27 F.(2d) 72, certiorari denied 278 U. S. 634, 49 S. Ct. 32, 73 L. Ed. 551. But the existence of such a lien is not necessarily a prerequisite to jurisdiction. In the Maggie Hammond, 9 Wall. 435, 19 L. Ed. 772, a libel was filed against a foreign ship in the admiralty court in Baltimore, libelant and claimant both being foreigners, the place of shipment and the place of consignment being foreign ports (the former a port of Wales, the latter a port of Canada), and the whole ground of the libel was a matter occurring abroad. Nevertheless, the Supreme Court held that jurisdiction existed and this regardless of whether or not under the British law or under the law of Scotland, where the contract of shipment was breached. In this case the court said, pages 451, 452 of 9 Wall.:

"Courts of justice, and text writers, everywhere concede that the ship, under the maritime law, is bound to the merchandise and the merchandise to the ship, independent of any local usage or statute; but it is...