This action was brought to recover damages for personal injuries which the plaintiff sustained while working on board a British steamship which lay at a wharf in Jersеy City, N. J. Plaintiff had been employed by the mate of the ship, and had worked for about two weeks prior to the accident. Extensive repairs were bеing made to the ship, and when plaintiff was hurt, it appeared that an evaporator was being moved from one side of the engine room to the other. There is no question raised as to the sufficiency of the evidence to show negligence on the part of plaintiff’s fellow-servants in doing thе work which caused plaintiff’s injuries.
The only point presented by the appellant is whether the Merchant Marine Act of 1920, known as the Jones Act, is aрplicable, for, as the case comes to us, unless this act does apply, plaintiff can- • not recover. (41 U. S. Stat. at Large, 988, chap. 250; Id. 1007, § 33, amdg. Seamen’s Act of 1915 [38 id. 1164, chap. 153; Id. 1185], § 20, known as the La Toilette Act.) Plaintiff was injured through the negligence of fellow-servants, and the act referred to permits rеcovery in such case where a seaman is injured. The plaintiff alleges, upon information and belief, that he was employed in the capacity of a seaman, and he testified that he had been a seaman for about seven years. He was employed as a pump man. He had nеver been to sea in this particular ship. He was employed while the ship lay at the wharf, and had never signed any articles for shipment on the vessel. The appellant maintains in the first place that, according to many decisions of the courts, the British law is applicable to the plaintiff, under the circumstances shown, and that the Jones Act has no application.
The appeal presents an interesting question. The learned justice presiding at the trial stated the general rule that, in the absence of a statute otherwise providing, the rights of a crew of a ship who have signеd articles are determined by the laws of the
In my judgment, the Marra case is not authority upon the question presented by the present appeal, namely, whether the injury occurred in contemplation of law in American territory or in foreign territory. The Marra case plainly turned upon the question of the unseaworthiness of the ship, the court stating that the proof showed that the ship was unseaworthy, and that, fоr'this reason, the judgment could be sustained in an action at common law. This is expressly held in Chelentis v. Luckenbach S. S. Co. (
The rеspondent insists that the plaintiff is to be regarded as an American seaman because he had not signed articles for any voyage on a foreign ship. Of course, if this proposition is correct, he is entitled to recover for the negligence of his fellow-servants, under the Jones Act.
Plaintiff asserts that he is a seaman, and that he was employed on a British ship, and even sets out in his complaint that the law of Great Britain gave him a cause оf action to recover for his injuries because of the unseaworthiness of his ship. This phase of the case, as I have stated, was eliminated at the trial. It seems to me that, if, as plaintiff alleges, he is to be regarded as a seaman, it must follow that he was a seaman on board a British ship. The Jones Act provides only for seamen, and, if he is to get the benefit of this law, he must be regarded as a seaman at the time of the accident. He hаs alleged his employment as a seaman upon a British ship, and I cannot see that the fact that he had not signed articles for the vessel changes his status, so far as the present case is concerned.
The appellant cites a number of cases where a situation the converse of that presented here was shown, namely, where the vessel was an American vessel and the seaman aboard her was likewise an Ameriсan, but the injury to the seaman occurred in a foreign port, and, in these cases, it was held that the American law applied, and that the American seaman employed on an American
In Wenzler v. Robin Line S. S. Co. (supra) a seaman employed on an American ship was injured in Havana harbor and the court held specifically that the American law and the Jones Act applied and not the Cuban law. The same thing was held in Bennett v. Connelly (supra; affd.,
It seems to me, therefore, that there is no escape frоm the conclusion that plaintiff, being injured upon a British ship, was subject to British law. But it is argued that the Jones Act applies to plaintiff as an American seаman, even though employed upon a foreign ship, he being injured at an American port. The trial justice states that this point was not altogether сlear, but that the language of the Jones Act providing that any seaman who shall suffer personal injuries may bring an action, etc., would seem to show the intention on the part of Congress to give the protection of the Jones Act to all seamen. No case is cited as supporting this view, and, so far as I can find, there is none. I think the Jones Act, by its terms, indicates its application only to seamen employed upon American vessels. The stаtute is entitled: “An act to provide for the promotion and maintenance of the American merchant marine.”
In Tammis v. Panama Railroad Co. (
It seems to me that, in view of the many decided cases which have upheld the right of an American seaman employed upon an American ship to recover undеr the Jones Act even though he was injured in a foreign port, on the ground that the law followed the flag, it should be held in the present case that plaintiff’s еmployment upon a British ship subjected him to the British law; that in his case, too, the law followed the flag, and that it was not intended by the Jones Act to change this well-established rule,
It follows that the judgment and order should be reversed upon the law, with costs, and the complaint dismissed, with costs.
Kelly, P. J., Rich, Manning and Lazansky, JJ., concur.
Judgment and order reversed upon the law, with costs, and complaint dismissed, with costs.