THE PAULA
| Decision Date | 19 July 1937 |
| Docket Number | No. 389.,389. |
| Citation | 91 F.2d 1001 |
| Parties | THE PAULA. |
| Court | U.S. Court of Appeals — Second Circuit |
Silas B. Axtell, of New York City, for appellant.
Haight, Griffin, Deming & Gardner, of New York City (E. R. Kraetzer, of New York City, of counsel) for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
This is an appeal from a final decree declining jurisdiction and dismissing the libel on the ground that both parties to the suit are aliens. The libelant was a German citizen employed as an ordinary seaman on the S. S. Paula, a vessel of Danish registry and ownership, which plies between ports of the United States and ports of South America. He signed shipping articles in a Chilean port for a voyage to Brooklyn, N. Y. While the vessel was at the intermediate port of Jacksonville, Fla., on August 4, 1936, the libelant was injured during the performance of his duties by a blow from a heavy hatch beam. He was taken ashore to a hospital and received maintenance and cure at the expense of the owner of the vessel up to October 10, 1936. Thereafter, he came to New York and on October 19, 1936, commenced the present suit, which is a libel in rem against the vessel and in personam against J. Lauritzen, a Danish corporation, brought in by foreign attachment of the vessel. The libel alleges that the libelant's injuries were caused by unseaworthiness of the vessel and negligence of its officers and crew, and in a second count claims maintenance and cure. The owner appeared as claimant and gave security. Thereafter the libelant moved for a default decree, and the owner made a counter motion that the court decline jurisdiction.
From affidavits submitted in support of the counter motion, it appears that Danish law provides that a seaman's medical expenses, if the seaman is not a Danish citizen, must be defrayed by the shipowner for a period of six weeks, and further provides for the payment of workmen's compensation if the seaman is disabled for a period of more than thirteen weeks from the time of the accident; that under these provisions an injured seaman has a full and complete right to compensation from the insurance fund, a governmental agency, and is not required to return to Denmark to procure payment of such compensation but may apply to any Danish consul or vice consul. Mr. Bech, the Danish consul general at New York, states that he is willing to entertain any claim under the Danish law which the libelant may present, and he joins in requesting the court to decline jurisdiction over the libel. From the libelant's counter affidavits it appears that he has not applied for compensation under the Danish law because he thinks he can obtain a larger sum by this suit; that since coming to New York he has incurred indebtedness of about $400 to American creditors, whom he desires to have paid out of any recovery he may obtain before retaining anything for himself; and that since filing his libel he has learned that he need not return to Germany in order to be admitted to the United States under the German quota, and it is his intention to be so admitted and to apply for American citizenship. He also states that "my witnesses, four of them," by which we understand him to mean all but one of the eyewitnesses to the accident, live in New York City. Upon the facts disclosed in the libel and the supporting and opposing affidavits, Judge Moscowitz exercised his discretion to decline jurisdiction.
That a suit in admiralty between aliens may be entertained or dismissed in the exercise of a sound judicial discretion is clear beyond dispute. Canada Malting Co. v. Paterson Steamships, 285 U.S. 413 52 S.Ct. 413, 76 L.Ed. 837. The only question is whether discretion was abused in the particular case. The Falco, 20 F.(2d) 362 (C.C.A.2).
Before passing to a consideration of that question, it will be convenient to dispose of a contention of the appellee with respect to the effect of certain treaty provisions. The Treaty of 1826 between the United States and Denmark (8 Stat. 340), although abrogated on April 15, 1856, was revived, except as to Article 5, by the convention of April 11, 1857 (11 Stat. 720, art. 5). Article 8 of the Treaty of 1826 declares that the consuls and vice consuls shall enjoy "all the rights, privileges, and immunities, of the Consuls and Vice Consuls of the most favoured nation." 8 Stat. 342. This makes effective, according to the appellee's argument, article 22 of the Treaty between Norway and the United States, proclaimed September 15, 1932 (47 Stat. 2152), which reads as follows:
Assuming without decision that this article is effective between Denmark and the United States, we are unable to accept the contention that it requires affirmance of the decree...
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Lauritzen v. Larsen
... ... § 688, 46 U.S.C.A. § 688. 2. 196 F.2d 220. ---------- 3. In The Paula, 91 F.2d 1001, 1003, the then Circuit Court of Appeals, Second Circuit, held the Jones Act inapplicable to a suit by an alien seaman against this same petitioner, and expressly refused to follow dicta by the Fifth Circuit Court of Appeals in Arthur v. Compagnie Generale Transatlantique, 72 F.2d ... ...
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Bartholomew v. Universe Tankships, Inc.
... ... But a contrary view prevailed. See The Paula, 2 Cir., 1937, 91 F.2d 1001, certiorari denied sub nom., Peters v. Lauritzen, 302 U.S. 750, 58 S.Ct. 270, 82 L.Ed. 580; O'Neill v. Cunard White Star, 2 Cir., 1947, 160 F.2d 446, certiorari denied 332 U.S. 773, 68 S.Ct. 56, 92 L.Ed. 358. Such inclusiveness was not read into the statute, since it was ... ...
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Bartholomew v Universe Tankships Inc.
...the United States would have been sufficient to warrant its application. But a contrary view prevailed. See The PaulaECAS, 2 Cir., 1937, 91 F.2d 1001, certiorari denied sub nom.Peters v. LauritzenUNKUNK, 302 U.S. 750, 58 S.Ct. 270, 82 L.Ed. 580;[1]O'Neill v. Cunard White Star, 2 Cir., 1947,......
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Kyriakos v. Goulandris, 340.
... ... Instead, it appears evident that Congress deliberately chose to leave the word "seaman" its full and unrestricted meaning applicable to aliens and Americans alike unless in cases like The Paula, 2 Cir., 91 F.2d 1001, which we think may be distinguished in the way hereafter to be mentioned ... Congress has undoubted authority to make a statute of this sort applicable to foreign vessels in our ports. Patterson v. The Eudora, 190 U.S. 169, 23 S.Ct. 821, 47 L.Ed. 1002; see ... ...