Brown v. C. D. Mallory & Co.

part ap- tiori, is, es- tional it, I cash view what value advance on their pur- $15,000 pro- proximately ceeds, property for tax in foreclosure tablished for bondholders poses, distribution to the between the Commissioner depositary bondholders, they acquired parties title who were to the the time agreement. proceedings. the foreclosure Appeals disposed The Board of Tax ap- obligations were Since debtor corporate solely theory case of a on plied price property, bid reorganization. should re- cause required, under bondholders were it, manded to for a determination of Treasury majority Regulation set out in the basis on which bondholders established opinion, measure, cur- during the then property market tax thé value of the for year, gain rent tax which had or loss purposes respondent’s and of re- pur- resulted to them from foreclosure sulting liability tax reason thereof. chase. This the fair market meant property be determined value had to Presump- and established at time. tively, bondholders and the both the Commissioner, was the amount this value property for bid which the had been in. But Com- neither the bondholders nor the missioner was bound conclusively figure, in the establishment of the valhe. ques- liberty, Each was in settling any liability, tion of tax or the CO., BROWN C. MALLORY & al. D. et purchase, deduction reason of loss No. 7545. produce convincing evidence “clear and however, contrary.” had right, This Appeals, Circuit Court of Third Circuit application only to a direct issue between 30, 1941. June bondholders and Commissioner question, inquiry in a and not to an transferee, proceeding with the collateral such as is here involved. us, sec- On the record before (8) 112(b) (5) 113(a) tions 1936, respondent 1932 and Revenue Acts of clearly property same tax took the on the time basis as the bondholders held it any conveyance. In the absence of proof that a different basis was established the bondholders their tax lia- for bility, permis- I think the deduction is that amount sible from the record fix of the bid was allowed at that time to property the value of the future tax Treasury purposes. Regula- Under tions, presumed. rep- price bid prop- resent fair market value of the fairness, however, erty. In if some dif- actually agreed upon tax basis was ferent

between the Commissioner bond- holders, way think I should be left open respondent show fact be- this Appeals. Board of Tax fore the regard I do not fact that bond- $650,000, to have willing holders were bid necessary, prop- if in order obtain the any erty, significance, as of since there was why clearly a reason selfish was not required would have done. It an addi- joins libel two In the case bar the per- first causes action: allegations em- sonam framed on mari- ployer’s negligence upon and based Act; law modified time Jones cause is an action in the second of action dissenting. JONES, Judge, Circuit and cure under the rem for maintenance upon old law reliance maritime without with Act. We are not concerned the Jones upon appeal. action in rem this We the action therefore will deal with personam. respondent-appellee, The Swiftarrow Inc., Steamship Company, appeared de bene libel all esse and to strike from the moved allegations found- claims related or and below, Act. The ed banc, sitting in fa- en rendered a decision D.C., F.Supp. respondent, vor of the 541, sought a decree entered respondent. appeal bar followed. at law, prior Under the Freedman, Philadelphia, Act, who passage a seaman Abraham E. of the Goldstein, Philadel- (Freedman Pa. & injured ill was in the service became or Pa., appellant. phia, brief), on the for end wages recover vessel could his main voyage of the was entitled Philadelphia, Pa. Longcope, Edwin beyond the termination cure tenance and Shaw, Philadelphia, (Krusen, Evans & Corp. Steamship voyage. v. Calmar Pa., appellees. brief), for on the 525, 651, Taylor, S.Ct. L. 303 U.S. CLARK, BIGGS, MARIS, Before injured the un due to Ed. 993. If he was GOODRICH, Judges. Circuit JONES, and or reason of the vessel seaworthiness equipment he could re of defects its BIGGS, Judge. Circuit Osceola, damages as well. The cover 760. 47 L.Ed. S.Ct. question presented for primary our damages brought by the any In action for or not a seaman determination whether however, injuries, personal -all personal in- may for seaman for maintain an action assumption defenses such personam against juries admiralty in affirmative risk, or fellow-servant rule contribu employer attachment and his with to the em tory negligence, were available Act1 in claim the benefits the Jones express By terms employer ployer. his does not re- district in which his injured seaman election” “at principal its in which side and an at law for dam maintain action respondent-appellee, could Swift- located. injury and the affirma Inc., for Company, ages personal is a Dela- Steamship arrow theretofore had been corporation maintaining tive defenses its ware employer, his were abolished. person- available to There was no Delaware. office in right to maintain an respondents. of the seaman upon any al service any apply; the death of and in ease of Merchant Marine Section any personal such 5, 1920, as a result seaman injury Stat. c. Act of June representative personal of such which amended § 46 U.S.C.A. 4, 1915, maintain an for dam- seaman the Act of March 20 of right ages by ju- provide: at law with the of trial so as to c. any ry, in such action all statutes who That seaman 20 [§ “Sec. 688J. conferring regulating injury or 'the personal United States the course shall suffer election, employment may, death in the case of of action for at his of his. railway employees applicable. damages law, shall be maintain by jury, such shall un- Jurisdiction actions and in trial with in which the the court of the district der statutes the United all such action modifying extending resides or in which com or States per remedy located.” office is or cases of mon-law employees injury railway shall sonal equipment gin action in which arose from defective under the Jones unseaworthy distinguished vessel. the Act from an action See April 22, 1908, 35 Stat. established § Johnson, Railway'Employers R. Lia- R. v. U.S. U.S.C.A. Panama 375, Co. bility But, important 44 S.Ct. Act. is the bar, thing in the case Before, passage as after mari- bodily engrafted the old seaman could enforce his Devanter time law. As Mr. Van Justice rights substantive maritime law Johnson, stated in R. R. Co. Panama any a libel in available supra, 2 y remedy. common law Leon Garcia v. understood, 748, 394, “Rightly 68 L.Ed. Galceran, 185, 11 20 L.Ed. 74. As Wall. the statute neither withdraws [Section 20] suming of a maritime cause the existence injuries to seamen the reach and from action, imposed upon of no limitation was law, operation of maritime nor enables right injured of to main seaman contrary, seaman do to so. On it admiralty per tain libel in a suit in brings new into that law rules drawn from City York, sonam. Workman of New v. system injured another and extends sea- to 552, 212, 21 179 U.S. S.Ct. 45 L.Ed. 314. invoke, right election, men a at their might The seaman obtain in ad service by either the relief the old accorded rules miralty personam against in a suit in an by provided or that the new rules. The employer residing within the district election is alternatives between accorded maintaining therein office modified, by the maritime law as and not by attaching property between that law and some nonmaritime found within the district. Atkins v. The system.” While in new effect a cause of Co., 272, Disintegrating Fiber 18 Wall. 21 (or, action least a cause action of L.Ed. 841. His right pursue such a employer’s which the old defenses of the course was so as to ancient rules antedate rule, assumption fellow-servant of risk and Co., In court. re Devoe Manufacturing contributory negligence longer were no Petitioner, 401, 894, 108 2 U.S. 27 L. him) injured given available to to the 764; Almeida, Ed. Manro v. 10 Wheat. upon by seaman Act the law side Jones 473, 490, 369, 6 L.Ed. and Rosasco v. distinguished from the ad- Thompson, D.C., fact, 242 F. 527. In side, “new rules seaman rights per could enforce his system” simply drawn from another were against sonam the owner and rem by superimposed upon Act exist- Jones against vessel in same suit he ing admiralty law. The election between attempted has to do the case at bar. injured accorded alternatives to the sea- Lull, 2,018, Brown v. Fed.Cas. No. 2 by man referred to Mr. Van De- Justice 443; Sheppard Taylor, Summ. v. 5 Pet. vanter is a choice between the remedies 675, 675, 269; 30 8 U.S. L.Ed. Cutler v. him old afforded maritime law and 729, Rae, 729, 7 How. 48 U.S. How. 615 8 remedy granted him 890, 1221. Appx., 12 L.Ed. within framework of the. law. short, proceed In seaman to What was the effect of the Jones Act without jury trial upon prior law? In effect cre it proceed is a under an existing, 3 ated a new cause of (as law dis system of maritime modified law. tinguished admiralty) from in the seaman injuries arising by personal interpretation now to the reason of We come employer’s negligence distinguished application provisions of Sec- causes action of 20 case at bar. ancient ori- tion Panama R. R. Judiciary 2 pell Bradshaw, v. 9, Act of 128 Section U.S. 9 S.Ct. Code, 1 Judicial Section L.Ed. (3), provided (3), addition, U.S.C.A. A § 41 cause of action in might say, the United to the two States District should causes of Courts action set original cognizance Osceola, supra, have “exclusive all forth in The page ju civil causes 23 S.Ct. * n *>J saving paragraphs suitors, risdiction numbered 1 and in Mr. opinion. cases, all edy, Brown’s common law rem Justice miralty, Benedict on Ad- competent Edition, where the common law is Sixth Vol. give Taylor p. 46, Carryl, speaks it” v. of the Jones Act How. “stat- utory” Chap- 1028; extension seaman’s remedies at law. brought admiralty. Similar where tion suits Johnson, supra, Co. indicated v. jurisdic- expressed invoked views were in other Act are benefits of the opposite the tions. stated injured action on view was in an an seaman pointed court, venue least times. should be three It law side a district out, however, applicable; cases cit- are that in none of the provisions of Section in ed in 6 and a writ of say, admiralty of court venue the provisions side the the the Dis for reversal. was that first applied or Section 20 were of District of New trict York had no of the Eastern Court applied startling lack unan- a of with jurisdiction because the de Pennsyl- of imity. In Eastern District the in its office fendant did not have until decision which vania was held the it Supreme that district. Court held reviewing, of now the benefits we that are the had the that waived to in available seamen (cid:127)the Act were requirement. argument The second though admiralty in in the was unconstitutional. that Act his had neither resided Supreme the defendant principal Court found no merit district;5 place in the contention, of business this Mr. Van Devanter Justice words, provisions stating, 44 S.Ct. that the venue in other * “* * 395, 68 the apply to suits at law statute injured applica- had no seaman free under the federal leaves the the 4 Judge p. 873, Ghesnut, indicated Detroit & Cleveland 119. a Peters v. See judice. 454; Co., D.C., view on Summerall the sub 24 F.2d Nav. 7 v. Co., F.Supp. 963, D.C., See Stein v. Oil Co. of Cal- 11 Standard United Fruit 258; D.C., ifornia, Cir., 36 F.2d Bannon 2 F.2d certiorari v. 80 658, affirmed Ry. Co., D.C., Air Seaboard Line 80 L. 52 F.2d 298 56 S.Ct. denied Pomona, 1884; and The 1938 v. Steam A.M.C. Olafson Waterman Ed. 8 194; Barring Corp., D.C., ship The controversial sentence of 281 F. Steamship Co., D.C., F. 20 added as a result of 282 action of the v. Pacific ton Shipping 900; conference committee of the Senate States Leon United v. Representatives. D.C., Cong. Corp., Emergency House of 286 Fleet See 59 Board Ship Record, 7, p. 7044, 681; Part and House v. United States Re- Caceres F. port 1093, Emergency Corp., Congress, 66th ping D. 2nd Fleet Session. Board Managers 968; In the “Statement of the , United the F. Atianza v. States on C. p. report Corp., House”, Emergency Part of of Shipping Fleet Board just mentioned, appears following C., 299 N.Y. D. Socony Co., amendment, to the “This amend- v. Vacuum Oil Eckert See 342; F.Supp. ment Section 20 of D.C., v. amends Carr seaman’s Union Employ- so Sulphur Co., act as to Es- Federal A. M. C. extend Liability personal (no opinion of sigman ers’ jury to cases in- Oil v. Standard Co. publication). or death of seamen. The House for juris- with amendment & Gravel recedes that v. Baker Sand McDaniel See 987; D.C., diction all Co., Arthur of actions under v. Com 24 F.2d provisions Transatlantique, Cir., of Section 20 shall be under pagnie Generate 662; in which McCormick court of district McKola S. defend- v. F.2d prin- F.Supp. resides or in Co., D.C., ant which his 378. The case S. cipal J., is located.” We can Co. of N. find Standard Oil no Bennett strictly F.Supp. the debates either D.C., reference House is ap statute under consideration. point It was there held for it entirely statutory agent been with to have dealt seems pointment aof resident language corporation Maryland report, committee. a Delaware really provisions however, no broader than that the venue the Jones waived the statute. Md. Acts §§ See meaning general given to venue must the same (par. 3) be law—sections (par. phrase first sentence 3) U.S.C.A. as the similar Code [28 Judicial Supreme 41(3), 371, right of the section which subd. assert §§ of 3]—to e., R. case referred to R. held new the Panama rules [i. ju object than the admiralty “the rather side of the the suit Act] Jones court. On brought”, and risdiction in which be tried side issues will applied well court, hence to suits but if on the common- he sues however, think, law. We side there will of trial be jury. construed, phrase sen “such actions” in the venue So does not the statute meaning objective this admiralty jurisdiction in- tence does not have encroach on the Constitution, damages refers “action for permits that but tended but jurisdiction law” the courts the United States to be exercised invoked and expressly In which refers. It beginning.” it has been the section from the short, hold, thing as the Court held that case, advantages Con did the Panama R. R. Act were avail- gress able extend im seaman on the side must have intended to plication jurisdiction into the substantive law admir district court and that alty beginning. be invoked as of action at law which the could seamen, district section confers when such Jurisdiction always necessary could extension be invoked wherever the liti- to overcome a gation objection injuries involved ac to a seaman constitutional particular quite sea. As to venue in tion conferred at law. It is another court, admiralty practice, thing impute Congress old intention Admiralty by implication evidenced import into the vii; procedure following Rule 28 F. U.S.C.A. a venue restriction which un respondent section express ap if the not der language of the section plies actions, only implied found within the of court reach but law and to property jurisdiction, had pro- within a extension which is of neither ceeding personam admiralty in necessary in validity could be to sustain its nor at law begun against by him a writ of at- in harmony with the historic of venue words, In other tachment. admiralty. venue in courts of ad- are in We fortified miralty dependent upon pres- was not our conclusion the decision in Bain respondent person in upon bridge ence of the Transpor v. Merchants & Miners principal Co., the maintenance of a office within tation 77 L. particular a district could Ed. in but be invoked which the held presence reason of property provisions of of that the venue of Section 20 did respondent apply within the district. brought McGa- not ato suit under the sec Co., Cir., court, Koppers hern holding v. Coal tion in 108 F.2d state in a thus effect 652; Kingston Dry provisions Dock Co. v. Lake that the venue Act of the Jones Co., Transp. Cir., Champlain apart 31 F.2d could be divided of and set from out 265; Thompson, D.C., Rosasco v. 242 F. rights given injured the substantive gave seaman. The the in stewardess, suing jured at law in a Court rights granted Are the substantive Philadelphia of Pleas County, Common up seamen Section 20 so bound with the Pennsylvania, to recover under the provisions venue section be in permitted Act and the local statutes Jones to determine the Assuming divisible? that it was the in question venue. Congress, as indicated tention incorporates fact that Act Jones history legislative of the all section that remedy upon its bases the Federal Em brought law under Act actions at the Jones Liability Act, ployers’ 35 Stat. 45 U.S. should be under the of the district seq., which in expressly C.A. turn et § in which the resides provides that the state court shall have principal located, his or in which jurisdiction arising concurrent in all cases Congress conclude that intended must we Employers’ Liability Act, provisions apply all actions the venue 45 U.S.C.A. does seem brought under including ad to us the force subtract respondents strong actions? The conclusion. We conclude that there should They say ly urge we must. that into the not be read Section of the Act of Act, phrase appearing “such actions” as amended im an repeal, sentence of Section 20 which plied second refers effective toas suit» those has the injured seaman that ent.12 Since the brought under in section, which are bring personam foreign attach-. process of admiralty invoking known the benefits so well personam ment in suits employer neith Act in a his law.9 district where to and established office, he nor his er resides has contained venue restriction by all advance has the 20 when in the second of Section sentence in legally As have means available. we applied consonance actions compel ap may ship dicated he attach existing provisions in ac with the venue pearance res of which and to have a out law, namely such must actions tions at judgment may paid. v. Al Manro be See page in which the de be in the district Wheat, meida, supra, very inhabitant.10 That fendant 369; National Board Marine Under brought into the law venue restriction if of Melchers, D.C., 45 F. 643. writers wholly of har would be out always mony with the rules venue here agree cannot We with the con admiralty, namely, applied that a tofore clusion the decision of the court below that may any personam brought in suit in be Rio, supra, in Plamals v. The Pinar Del disposes process served which can be within district application prop respondent or which requirements the Jones attached,11 erty can be credits Act to the suit at its bar. court below thus the venue of greatly would restrict stated, opinion F.Supp. admiralty. Con think that We “The conclu reached the gress mind did not have such result proceeding sion that an in rem could According Act. when passed be had view ly an action we hold that language provision of the venue admiralty under the Jones applicable, although which it deemed injured and maintained commenced Pinar Del Rio case was on the in which the defend seaman in side.” cited the language Su and in employer does not ant reside preme Court, 48 S. located. its officeis not page 458, Ct. at to the effect defining other statutes respondents con further liability employees, the masters to were tend, however, citing The Plamals v. Pinar originally intended to be enforced in ac Rio, 151, 48 Del 277 U.S. 72 L. * * “* imposed per tions at law and imposes Ed. only personal that since the Jones liability, any gave sonal no lien of liability, its benefits cannot kind.” gives Section itself of course no appearance which be asserted in a in suit any kind, pre lien of but fact not that does compelled attaching ship is a which is maintaining vent the libellant from in a suit judgment answer if one made liable the to personam in under the Jones procured. the cited case holds that is That availing Act and himself of ancient the not an action under a seaman does have compel appearance right the re the against 20 in in rem a Section spondent by foreign ac attachment. An indubitable, vessel, unable is we are but admiralty begun by tion in argument cogency see the an which as an ac foreign attachment become does personam begun proceeding a serts that property is The in rem when seized. tion against by foreign a is attachment vessel no the attachment is in wise lien of the equivalent against in rem suit that the a ordinary lien equivalent maritime of the pro at is no The suit bar more a vessel. against vessel ceeding the than would be an enforced rem action The lien is a in rem. against proceeding a court a in state nonresi paramountcy qualities with one sought in which it was com secret debtor dent operate against may general credi appearance seizing prop which pel the debtor’s The purchasers without notice. or erty foreign the within state attachm tors amended so as 28 U.S.C.A. to observe eign In Judicial Supreme attachment where Act have been invoked. Code, connection limit Admiralty nowise it process by benefits of interesting have amended, Rules been for- historical eign sued is stances, Ed. 991. tioners, ^[12] Though In attachment very re backgrounds Louisville similar. effect of the right stems Underwriters, 10 S.Ct. in the two out of writ when is- writ different Peti- for- in- L. ven- plead restricted do, may right to case in the appellant lien secured —the a defendant. personal simply being ue It is a at bar has no such attributes. Panama Supreme said of As resulting a the attachment lien 385, 44 S.Ct case, supra, 264 quality of U.S. at possesses no thing seized and provi- a 393, 68 L.Ed. Pinar paramountcy. In Plamals v. —“such merely confers Rio, [limiting stated sion supra, venue] Del privilege, which personal prior existence the defendant nothing more than may assert, waive, every elec- ad he or his is essential to of maritime lien * * tion, (Emphasis supplied.) In cause *.” miralty action in rem and that the passing, of the arising under should be noted action of a seaman upon against the effects of the and order of the based a lien decision was not majority in admiral in the ship and instant case to make could not be enforced (notwithstanding ty limitation of in a suit in rem. statutorily requirement prescribed is re- court below decree upon Act) depend election of di- remanded with versed and the cause defendant but the choice claims rections to libel all reinstate plaintiff, accordingly law or as he sues at allegations related to or founded course, admiralty. no less Of it can be Act, and to provisions appear onerous and an- to a defendant proceed conformity opinion. with this swer a district residence one and office with JONES, Judge (dissenting). Circuit cause of no matter wheth- same majority hold that suit in admiral er the cause be filed in of law or a a court ty enforcement of of action admiralty. court of under Section 20 of the Jones What, then, necessity compelling is the amended,1 subject require is not adopt? majority the construction which the ment of same section that “Jurisdic Certainly, plain and understandable [meaning tion such actions venue2] statute, themselves, words of the furnish shall be under inspiration suggestion no for the even which the defendant resides or .Act, conclusion. Section which his located.” office is amended, express makes no distinction conclusion, With that I agree am unable to between law or a suit in ad- and, therefore, my note dissent. The rea un- for the enforcement of support my sons in view will stated. der statute. This seems to me to be involves the construction from the Court’s con- manifest general of a federal statute which is amended, struction of Section applicability. major- extent of its As the case, supra. There, Panama one of the ity points opinion (see out cases there cit- things Court to enabled ed), opinion there has been a division of say the conferred the among pres- the District Courts where the well as cognizable was as question up ent has been for decision. “in phrase, at law was the fact the And, majority opinion as the also observes action”, such in the first sentence as used (see cited), cases there there has been una- of the “an action to recover' Section meant nimity among applying the when injuries”. Thereby, damages as such requirement the venue Section 20 of the concluded, Supreme Con- the when amended, as at law actions phrase, gress “in such ac- used the thus thereunder. Of the correctness of these tion”, contemplation it must had in a have rulings and, latter there can be no doubt as well as an suit action at certainly, since the none the decision of then, Why, provided Congress law. when Panama Railroad Com 375, 391, 20, Johnson, 264 pany v. U.S. sentence of Section second law, There, amended, action at 748. the “in such venue actions” precise question the was raised and the of the shall be in defendant’s the district improper office, principal otherwise venue of the case was did residence or it not also general (by appearance) contemplation to have been held still have in suit ad- waived the defendant as a well as an action at law? It is Company March Panama Railroad § c. See Johnson, 38 Stat. as amended the Act S. 5, 1920, § June Ct. 46 U.S.C.A. unnecessary construc- un- grew rules of ama case der resort to out an action at support proposition tion in admir- Act and not suit alty. in the same words used same section of when twice the same same statute mean majority’s is made Thus the conclusion meaning in each unless different instance what an ex- rest an inference as to legislatively defined therefor has been pression in- (entirely in the Panama case clearly indicated. therein But, otherwise or is question involved) cidental to there phrases, meaning for no different important was More intended to embrace. actions”, in “in such “in such action” and me, present question, to what it seems to prescribed or indicated. is either case, 264 U. was said Panama difficulty by saying majority meets 387-389, pages S. at 44 S.Ct. at that, think, however, phrase that the —“We 68 L.Ed. 748: does sentence ‘such actions’ with the rela- “The statute is concerned [purpose objective meaning not have rights obligations tive of seamen and dam- the ‘action for but refers to suit] employers personal in- arising their out of ages of the United law1 in the courts juries sustained former expressly re- to which section States employment. course of their Without majority, respect for the fers.” With due falls this is a within matter manifestly quoted just the conclusion law, recognized sphere of maritime disregarding without not admissible and in rules which the maritime “in of the Court’s construction materially have differed from those case. phrase in Panama such action” applicable injuries common law sustain- phrase, dam- “action for The antecedent ages by employees service. in nonmaritime ed law”, majority now to which the But, empowered the con- Congress position points, and same the same bore alter, rules, provision qualify or stitutional supplement be- when relation in the Section fore the it is no maritime there in the Panama why bring reason them into rela- it case, which the the influence but without conformity rules or to the common-law tive some modification change it. majority now attributes to latter, if that, inas- majority opinion reasons country-wide and uniform be de- much pendent upon “venue only so, operation. Not but the constitu- respond- presence interposes no obstacle to tional provision maintenance person ent a rights maritime permitting founded particular dis- within modification of it law or an admissible invoked reason of but could be trict presence through appropriate be enforced as such respondent property common-law side of the actions on the district,” un- a suit within the say, through proceed- courts—that is to may maintained wher- der the Jones ings according the course may be property of the defendant ever * * * cit- of the common law. [Cases though outside of the found even ed] defendant’s residence understood, “Rightly statute neither supporting the conclusion thus As

office. injuries seamen withdraws expression majority to an point derived the in law, operation reach and Supreme Court case. The the Panama to do so. nor enables the seaman On there, of action having held that contrary, brings into that law new rules cognizable in ad- Act was system and extends to drawn from another injured election, law, said, 264 miralty as at U.S. as well invoke, right their seamen a 395, 748, 391, page 68 L.Ed. S.Ct. page by either the relief accorded the construed, not en- the statute does —“So provided by rules or that the new rules. old admiralty jurisdiction in- on the croach is between alternatives ac- The election Constitution, permits but the tended that modified, maritime law the corded and exercised as jurisdiction be invoked law and some non- and between that not beginning.” the Conse- been from it has system.” say majority that a in ad- quently, the suit may But, have whatever been intended Act must the be at- under Jones what rights Panama case or the inferences all of the under in the the “old tended may be as to the law. Is that drawn therefrom ex- was to be of maritime what rules” admiralty in under Panama case? which suit the under the the I think tent to in not. meant by rights is attended all, question involved in Act the Pan- After the Jones action upon passing the law, timeliness one old least rules of maritime may rules old maritime attend, brought is under the and that rights such does not so or local general by analogy from right proceed reason See Plamals the in rem. remains fact The of limitations. etc., U.S. statutes v. S.S. “Pinar Del Rio” depends admiralty in is not to that limitation 827. This the S.Ct. L.Ed. upon discretion judicial in proceeding (admiralty) an exercise of suggest the that a statute. proscription on a not was instituted the the instant case which Act, Liability Employers’ any rele- foreign limitation in attachment is the writ by ex- Undoubt- Act derives proceeding in rem. vant the sense Jones adoption, years. Amend- edly, foreign press is to a now three attachment available is to com- plaintiff August in an action in ment of un- be appearance. it to pel the defendant’s Is U.S.C.A. § case availability suggested may in a in admir- that a seaman sue attachment that, alty right present is to the fact Act when his such the due under the Jones gone? be in the district of the as the must same is venue to sue the cause office, necessarily possibility defendant’s residence or be the Such would foreign at- non-residence essential to if all of old maritime rules attend a present. admiralty cannot be suit under tachment Act. be, for But it has held that cannot been may proceed That a rem seaman not by, again both Federal and time time admiralty Act was under the Jones (the jurisdiction State is concur- Supreme squarely Court ruled rent) prescribed by that limitation Rio”, supra. “Pinar Del Plamals v. S.S. and, Employers’ Liability by the same Yet, right right proceed in rem a token, Act is a limitation admiralty has in under the old a seaman that, right, remedy, not only Not is the Pinar Del maritime rules. period expired when the has limitation important that, demonstrating Rio case suit, without the institution suing when under the Jones extinguished. pro- The statute Act, rights all of rules under old vides, * action shall be maintained but, plaintiff do attend the more im- —“No ** unless commenced within three still, portant assigned the reasons years day from the the cause ac- Supreme ruling -in Court for its so, again crued.” And it would seem that (in admiralty) Pinar case Del Rio admiralty’s jurisdiction “as exercise of its “expressly provided the Jones beginning” has been from was not employer might sued be intended the Panama case to mean that the district where he resides or has his 'enforcing under the page U.S. office.” 277 all of the old rules of mari- then, And S.Ct. time law should obtain. said, provision —“This repels suggestion the in- [venue] Finally, majority say they are subject ship tention was to in rem fortified in their conclusion the decision Generally, proceedings. proceed- at least Bainbridge ings of that nature wher- Transportation Co., Merchants & Miners happens Thus, ship ever the to be.” S.Ct. 77 L.Ed. 302. requirement oper- of Section 20 venue Bainbridge case was an action at law to the extent of helping ative Act, instituted in a State in rem proceeding to eliminate an from ad- All court. that case held was that miralty’s when scope enforcing un- provision word “district” Act. der the Jones amended, did not refer to unavailability the courts of a pointing State. After another of the old out law, suing apposite under maritime when in that the term “district” was rules describing judicial suggests divisions in some States, said, rule with and that itself U.S- 280,-281, pages of an action. Under limitation the old * * rules the timeliness of a we should be slow im- suit in —“* intention, damages, Congress pute for whether for if it main- has the injuries statutory with power, pro- cure for due to to interfere tenance and boat, states fixing rests various unseaworthiness the dis- visions ven- pres- court. can It no own courts. It follows cretion of ue of their judge moment that in the should have been ent determined the trial with court in accordance ruling was Obviously, state.” 20 with limited to of Section a construction the venue to its effect Moreover, the State courts and no more. said earlier Court had 280, 53 opinion (287 Bainbridge 302) that “the provision correct construction of the [ven- to the limits it ue under the Act] descrip- courts of the United States.” States”, tion, least “courts United courts, thus re- limit does serve to, sitting at law. ferred Certainly Bainbridge case furnishes support. majority no I affirm given, should the reasons For which, the decree of the District respondent’s motion because venue, struck from the proper

want of allegations related to or libel all claims provisions of the founded CLARK, Judge, dissenting. Circuit Act. GIRARD TRUST et v. COMMISSION CO. al. ER OF INTERNAL REVENUE.

No. Appeals, Circuit Court of Third Circuit June Lewis, Pa., Shippen Philadelphia, Colladay, C, Washington, C. E. F. D. D. Wallace, Colladay and Wilton H. both of Washington, (Colladay, McGarraghy, D. C. Wallace, C., Colladay Washington, D. & counsel), petitioners. Asst, Jones, Sp. Atty. Joseph M. Gen. Clark, Atty. Gen., (Samuel Jr., O. Asst. Asst, Monarch, Atty. Sp. Louis

J. Gen., respondent. brief), for on the MARIS, CLARK, BIGGS, Before GOODRICH, JONES, Judges. Circuit

GOODRICH, Judge. Circuit case, presents This comes to us problem

problem. That correctness is the Ap- Tax of the conclusion the Board of peals which disallowed deduction the a testatrix to the bequest by estate tax of Temperance, Prohibition and Board Episcopal Morals of the Methodist Public testatrix, Simpson, Ida died Church. The applicable statute Reve- in 1933. The notes 7 was the suit must that is to compel appearance employer resides attachment issued to which the district in the or has its respondent. great light re- of the No unless the personal privilege upon ac- thrown an examina- spondent waives the history provisions. legislative tion corded the venue followed without Act. given indication thus question.4 mind will be borne It The decision of the R.R. action in the Panama course Johnson, Panama R. R. Co. upon case was side supra, scope of Section 20 extended the admiralty. Where court and was not the In the give injured seaman however, seaman, attempted to injured the gain side court. a district benefits grounds urged cited two case the

Case Details

Case Name: Brown v. C. D. Mallory & Co.

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 30, 1941

Citation: 122 F.2d 98

Docket Number: 7545

Court Abbreviation: 3rd Cir.