*1 being witnesses; and, this a controverted issue, credibility witnesses of these jury.
was for the To decline judgment appealed
verse the from would denying
be tantamount the defend- jury
ant a trapment. issue of en-
Therefore, judgment reversed,
must be and the cause re- proceedings
manded for further not in- opinion.
consistent with this In Bol-
lenbach v. United 402, 405, 66 S.Ct. ought court said: “A conviction not to equivocal
rest on an direction to the
jury on a basic issue.”
Reversed. PADUANO, Plaintiff-Appellant,
Andrea KAI KABUSHIKI
YAMASHITA KISEN Lilly Company, Norton, & SHA and Defendants-Appellees. 122, Docket 23256.
No. Appeals Court of Circuit. Second
Argued Jan. 5, 1955. April
Decided
616 apprehension Act, 46 that the Jones 688, applicable,
U.S.C.A.
was
denied
§
reargue,
the motion. On motion to
how-
ever,
juris-
it was
determined that
diction of the court could not be sustained
ground
on that
the motion
dis-
granted,
holding
miss was
the court
that,
diversity
in the absence of
of citi-
zenship,
a district court lacks
jury
to entertain an
on
action
its civil
general
upon
side based
maritime law.
appeal
is taken to review the order
directing
entry
judgment
Murray
R.
S-.
and Alfred
San-
-Lokietz
dismissal.
Brooklyn,
dominici;
(William
New York
Preliminarily,
should be
Brooklyn,
York,
Blani,
of coun-
A.
sel),
New
plaintiff’s
noted that
renewed reliance
plaintiff-appellant.
foi
jurisdic
on
Act as
for
the Jones
a basis
Kirlin,
Keating,
Campbell &
New York
misplaced.
tion in this case is
The Su
City (Roland
Radice,
C.
Louis J. Gus- preme Court has held that
statute
Jones,
mano and Vernon S.
New York
against
recovery only
affords a
City,
counsel),
York,
New
for defend- employers, Cosmopolitan Shipping Co. v.
ants-appellees.
McAllister, 1949,
783, 69
337 U.S.
S.Ct.
1317,
employer-
1692,
MEDINA,
93 L.Ed.
and no
Circuit
SWAN
Before
employee
Judge.
relationship existed
DIMOCK,
between
Judges,
parties
action.
Judge.
MEDINA, Circuit
advanced
principal contention
Italy,
úff,
domiciled
a citizen of
Plain
jurisdiction exists
support
the claim
1946, insti-
side,
in the absence
even
civil
on the
against Yamashita
action
tuted 1his
upon
diversity,
predicated
the asser
foreign
Kaisha, a
cor-
Kabushiki
Kisen
in which the maritime
all cases
tion that
poration,
“Yamashita
of the vessel
owner
founda
the substantive
law constitutes
cargo agent,
general
Nor-
Maru,” and its
plaintiff’s
are cases “where
claim
tion for
corpor-
*
**
ton, Lilly Company, a domestic
&
controversy
in the matter
damages
personal
ation,
for
to recover
laws or
under the
arises
injuries
have been sustained
claimed to
States”, within the
of the United
treaties
meaning
engaged
unloading
plaintiff
while
was
of Title 28 of
1331
Section
pier
Maru”
the “Yamashita
substance,
States Code.
Plaintiff,
Brookyln,
York.
at the
New
arguments
plaintiff
ex
advances
employed
time,
John T. Clark and
Judge Magruder
pressed
writ
Chief
stevedoring concern,
party
Son,
a
a
ing
Circuit
Doucette v.
the First
for
action.
to this
834,
Cir., 1952,
Vincent, 1
194 F.2d
hold
diversity
that,
in the District
in the absence
commenced
Suit
necessary
jurisdic
citizenship
District of New
to confer
Eastern
for the
alleging
1332,
side, plaintiff
a
28 U.S.C.
tion under
§
on the
York
theories,
jury side,
recovery
in terms of
on the civil
cast
district court
1331,
and de-
under 28 U.S.C.
of a
negligence
unseaworthiness
§
damages
money
rights
moved
to enforce
manding jury
Defendants
trial.
suit
complaint
Relying
for want of
law.
under
dismiss
below,
begin
principally
the line of cases1
and the court
1942,
Co., Inc.,
239,
g.,
See,
Luckenbach
Cormack
317 U.S.
v.
S.S.
Chelentis
239; Pope
501,
246,
372,
1918,
Inc.,
87 L.Ed.
38 S.Ct.
S.Ct.
247 U.S.
Co.
Co.,
Hawn, 1953,
Inc.,
1171;
v.
Knickerbocker
Ice Co
Talbot
U.S.
62 L.Ed.
.
wart, 1920,
L.Ed.
S.Ct.
U.S.
40 S.Ct.
v. Ste
(4
834;
Garrett
Moore-Mc-
v.
L.Ed.
result,
rea-
Jensen,
our line of
concur in
we
soning,
ning
Pacific Co.
with Southern
state,
briefly
which we
S.Ct.
may contribute
different and
“the somewhat
appear
to indicate
* *
problem.
by*,
the solution of the
force its mite to
maritime law
*3
part
Constitution,
of
had become
of the
“saving
the
clear that
It seems
applicable
matters
to
our national
no affirmative
makes
suitors” clause
to
jurisd
admiralty and maritime
within the
merely excepts
grant
jurisdiction but
Doucette,
iction”,2
court, in
con
the
admiralty maritime
from
exclusive
upon the
based
that suits
cluded
United
of the
States
necessarily “arise
law must
maritime
suits.may
in
be
Courts all cases
mean
within the
under the Constitution”
ing
brought
than
obtain other
to
plaintiff here
1331. But
of Section
are
which suitors
“otherwise
remedies to
goes
argues that,
mari
further and
plaintiff
Accordingly, unless
entitled.”
law,
is
this action must
time law federal
remedy at
to a
is “otherwise entitled”
as
under the
also be considered
1331,
modifying
law under Section
well
laws of the United States”
of Section 1333 will not be
Constitution”. The last link
“under the
avail to him.
reasoning
plaintiff’s
is his reliance on
in Article
declares
The Constitution
“saving
to suitors” clause
Section
judicial
2,
III,
Section
which,
urged,
1333,
by
it is
to
all
“extend to
suitors in all
all
cases
other remedies
arising under
Equity,
Cases,
and
in Law
entitled”,
are otherwise
United
Laws
this
any impediment
removes
to
*
* *
of admiral
to
Cases
all
might
on the law
side
have re
ty
Jurisdiction”.
The
grant
sulted
otherwise
exclusive
years
adopted
1789,
two
ofAct
of
ty
in maritime and admiral
by
granted
later,
to
sitting
matters to the district courts
9, jurisdiction “of
all
its Section
admiralty.
jurisd
causes
written on this inter-
Much
primarily
concerned
We
iction”.3
esting
question
important
and
question
here,
of whether
with
scholarly
authorities are reviewed
law is
American
Judge
opinion of
Bruchhausen in this
character, but with a
constitutional
case, whose order of dismissal is based
statutory interpretation.
question
Ex
given
principally upon
by
the reasons
by
passed
cept
for an Act
support
the Third Circuit
of its de-
shortly
repealed,5
thereafter
1801 and
Walling, Cir., 1950,
cision
Jordine v.
federal;
courts of
first
to
broad
662,
passing
185 F.2d
where it is
noted
adjudi
to
adoption
contrary
of a
view
arising “under the
all civil actions
cate
would effect a vast increase in the work- Constitution,
laws or treaties ‘of the
already
load
overburdened district
States”,
by
Act
United
language
The
1875.6
ultimately
2,
III,
must
the conflict
Article
Section
As
taken from
Constitution,
Supreme Court,
quoted;
it would
solved
above
and it has
say
agreement
years
are in
to
that we
same
suffice
remained the
over
arrived at
with the conclusion
to be found
Section
Circuit,
that,
for the
Third
but
fact
Judicial Code. We must
while of the
examine'
Vincent, supra,
8, 1802,
2. See Doucette v.
194 F.2d
Act of
Section
March
5.
7th
page
Sess.,
Cong.,
Chap. 8,
840.
1st
Stat. 132.
3, 1875,
Act
March
Section
43.
Sept. 24, 1789,
Act of
Section
1st
Sess., Chap.
Cong., 2nd
38 Stat. 470.
Chap. 20,
Cong.,
Sess.,
1st
Stat.
Weclisler,
Ilart
The
See
Federal
.11,
pp.
of Feb.
4. Section
6th
.and
Federal
System,
Courts
Cong.,
Sess., Chap. 4,
(1953).
2nd
2 Stat.
727-730
throughout
data, pro
con,
period,
and de
the maritime
the available
of character of
to
the intention
controversies continued
termine whether was
single, independent
of be treated
a
to
source
include
jurisdiction requiring litigants
jurisdiction any power
pro
under”
admiralty,
adjudicate
pursuant
proceedings
ceed in
if
claims made
sought, wholly
law were
distinct basis
maritime law.
required
to be establ
regarding
con
Judicial utterances
ished.10
phraseology
“arising under”
of bhe
tent
setting,
historical
In this
relat.on
*4
a time
evidence
prior
and at
the
cases,
1875
look to
available
to
must
made
affirmative
“aris
there is
over
determine whether
of
when no
vesting
effect,
ing
must
the
indication that
cases was
under”'
“arising
the
necessarily
over eases
be those concerned
language
of
United
interpretation
laws
the
the
Constitution
"of
connection,
of admir
the
intended the inclusion
In this
States”
Constitution.7
alty
Court;
Insurance
and maritime matters and
alter
Supreme
in American
prior
Canter, 1828, 26
L.Ed. ation of the
treatment of such con
v.
U.S.
Co.
find
of cases fall
troversies in the federal courts. We
that the class
dec ared
pattern
Instead,
we find
of
clause none.
the
under”
within the
legislative handling
cogent
wholly
from
included
distinct
those
were
opposite
“admiralty
pointing
mari
to
the:phrase
the
considerations
within
meaning
policy
First,
primary
of
the
conclusion.
within the
time Jurisdiction”
investing
time the
federal courts with
the
the
Between
the Constitution.'8
jurisdiction, viz.,
passage
to insure the
decided and
under”
Canter-case
availability
designed to min
of a forum
of 1875 in which
of
danger
hostility toward,
Congress
purported
apparently
to confer
imize the
specially
of,
precisely
suited to the vindication
jurisdidion"
coextensive with
federally
rights,11
sup
not
created
does
the Constitutional
the limbs'-'of
indeed,
and,
points
port
to
judicial- power,9
no evidence
the absence
there is
any necessity for
of ad
legislative
judicial
or of
the inclusion
recantation
matters,
part
on
such
any
disinclination
always
Supreme
accept
had
available.
Court’s a forum
Sec
to
regard
ond,
present,
to
to the
exposition with
earlier
provide
wholly
addition,
to
for a
has continued
authoritative.
matter
‘ * * *
identity
to the
The act
1789 did not
doubt as
con-
some
There is
scope
the whole
statu-
fer
the Constitu-
the constitutional and
Wechsler,
conferred;
(see
tory language
it
not
what
tion
did
do
Hart
certainly
749-752),
Congress ought
Supreme
pp.
has
supra,
it
Court
said
but
(hat
do;
perform
it
not
can be no broader
did
what
the statute
clear
provision
Supreme
meaning
Court has
than
declared to be the
* * *
Congress.
duty of
This bill does.
Constitution.
gives precisely
bill
certainly contemplates
constitution
8. “The
nothing more,
the Constitution confers —
eases;
”
three distinct classes of
these
nothing
Wechsler,
less.’
Hart
su-
!
distinct,
and if
pra, p. 750.
them,
one of
does
over
See,
g.,
Belfast, 1868,
either of
over
e.
confer
U.S.
266;
Galceran,
be
The discrimination made
Leon
other two.
constitution,
is,
them,
74;
we
L.Ed.
Ameri-
tween
identity.”
Chase,
against
think,
their’
can Steamboat Co. v.
83 U.
conclusive
page 544,
21 L.Ed. 369.
portant, to record a demon- presently intent stration'that ex- “saving clause to suitors” mere- If the pressed originally coincides with that as ex- ly law cases from the common saves n expressed. Since, therefore, we are con- grant, it would mean clusiveness tributing our mite the solution of up- jurisdiction had been conferred that prob.em, my I venture to add mote. to enforce mari- courts on the district by law both maritime clause substantive The in section 9 of remedies but law that contained and common form is By that not exclusive of the *. sec was Act Congress ease of enforcement declared: courts state tion by If district courts law remedies. shall common “That exclusively have, saves common courts of the law cases to suitors” cognizance itself, it would of all from the mean severa!.’ juris- had that shall district courts no and offenses be that (cid:127)crimes authority (cid:127)cognizable to enforce under diction whatever maritime * * * by common and shall law substantive law rem- original cog- have exclusive edies. also
* 1 Stat. 76 gress conformity rule interpreta- with these choice between provision 2 of the Federal Rules Civil Pro- by a further dictated tions is abolishing cedure the distinction be- of 1789. Section equity.” tween law and contains Act which 9 of that ad- “civil causes Congress adopted The view of when it jurisdiction” ends and maritime the Revision must have been that the in- “And the trial sentence: with this provision tention of when the fact, district issues originally adopted that except civil causes all causes itself did not embrace common by jurisdiction, appears law remedies. This from the jury.” description in the Revision of what had formerly been called “common law” that rem- escape the conclusion I cannot “ ” ‘any edies remedy’ the term provision made any remedy i. e. other than which it courts felt that given no had applied been had conferred law district to enforce the remedy. is room There law common argument sentence the technical admiralty and say that causes does not may prose- not be practice of the course cuted is true that It law remedies. common says there shall is that all that Never- cases. in such be trial theless, of common incidents the other relatively procedure unim- are so Dorfman, David J. PLEASON and I. own- portant Con- I cannot conceive ers and claimants of THE CAROL while, thinking after it worth ANN, Appellants, by jury, preserve taking away *7 provision seems incidents. The other GULFPORT SHIPBUILDING CORPORA- indicate the intention Con- to me to TION, Supply McIntosh Co., Electric courts should have Inc., McIntosh, and H. individual, S.
jurisdiction to mari- enforce substantive Appellees. only by maritime time law remedies. No. 15151. words, indicates other Appeals, “saving to suitors” clause saves common Fifth Circuit. from the remedies itself so March only jurisdic- courts left with tion to afford them are state with the view accords conclusion 1333(1) to section Note Reviser’s part: U.S.C., which reads title ‘saving suitors’ clause 371(3) 41(3) [of said sections U.S.C., ed.]
title substituting changed by the words remedy
‘any he entitled’ the words otherwise remedy of a common-law
‘the competent the common law is where give it.’ The substituted lan-
guage expres- simpler and more intent of
sive of Con- and Notes torical Revision thereto. matter upon arising tort of contract or con- or Supreme 13. “The Court shall have the cerning any twenty up- vessel of tons or by general rules, prescribe, ward, enrolled and licensed for coast- process, writs, pleadings, forms and employed trade, and in the business practice procedure and motions and navigation of commerce and between admiralty and maritime in the cases places in different states the lakes district courts of the United States navigable connecting waters said exercising admiralty jurisdic- all coui’ts lakes, trial issues of all shall fact in the Territories tion of the United and Possessions party if either demands it.” § States.” 28 U.S.C.A. 1873. § U.S.O.A. 2073. personal “(b) Any action of which the dis- “Any civil suffer shall seaman who employment have injury of his trict courts founded in the course right arising election, un- claim or an action on a may, maintain his Constitution, right law, or damages treaties laws der the at and for shall be removable by jury, all stat- States such the United action citizenship regard modifying or resi- or to the without dence action of the utes Any parties. right extending such rem- of the common-law only injury personal be removable if edy to rail- shall none cases of properly joined parties apply; in interest employees way case any is citizen of as a result served defendants seaman as death personal injury such in which is personal the State action such of representative may brought.” § 28 U.S.C.A. main- seaman of such damages that even earliest The fact at law with for action tain option stages, by jury, had been right in such somewhat of trial by permitting diversity removal diluted all statutes action justify right regulating conferring not inference that of ac- does cases enacting railway un- em- in the case death for tion ployees willing, provision, prac- applicable. all Jurisdiction der” tical shall be purposes, to transfer the choice the court shall be under actions such plaintiffs to defend- em- in toto the defendant forum district in which principal ployer resides or in his ants. § is located.” U.S.O.A. office civil of ad- admiralty jurisdiction in its nizance of all causes present and maritime in title form is embodied * * * saving suitors, 1333(1) in all follows: U.S.C. § cases, of a common law courts shall have or- district remedy, where the common law is iginal jurisdiction, exclusive of the give competent to it”. courts of of: admiralty “(1) Any admiralty These words “civil causes case of jurisdiction” saving undoubtedly jurisdiction, or maritime meaning had the same in all all other remedies the words suitors cases III, Article 2 of section are otherwise en- ' “all Cases of titled.’ Jurisdiction”. The effect of the decision “saving to that the There is no doubt Johnson, Panama R. R. Co. v. intended to suitors” clause is save com- S.Ct. and, mon since these law remedies only those words embrace not ferred to “other” remedies in remedies to enforce maritime substantive present form of the statute it ines- law but common law remedies en- capable, letter of force maritime substantive law. Thus form, that common remedies are when vest- included in the ed the district courts with jurisdiction. That is as far as of all civil causes of and mari- go opinion. in the court’s jurisdiction, those words without think, however, ought, that we I more would have vested them with