FORGIONE v. UNITED STATES et al. NICASTRO v. UNITED STATES et al.
Nos. 10747, 10748.
United States Court of Appeals Third Circuit.
Decided Feb. 3, 1953.
Rehearing Denied March 5, 1953.
Argued Nov. 18, 1952. Writ of Certiorari Denied May 25, 1953. See 73 S.Ct. 950.
202 F.2d 249
So decision here turns upon whether the libelants have shown that their duty to the ship as members of its crew was ended before they put out the fire by proving circumstances which show that the abandonment was absolute. They had the burden of proof as to that.
There is no doubt that in the confusion following the outbreak of the fire the captain‘s first thought was to get what men he could off the ship, but things happened too fast to make it clear from the evidence that his abandonment of the ship was more than temporary to save lives. His efforts to get fire fighting aid and return to the ship with it are some indication that there was no final abandonment. And it is to be remembered that the ship was in harbor where efforts on his part to return with help for saving the ship would not inevitably prove futile, as they might well have been had the fire occurred when the vessel was at sea. After due consideration of all the circumstances shown, the trial judge concluded that the fact of final abandonment of the vessel had not been established by at least a preponderance of the evidence. Since all of the evidence was documentary or by deposition and the trial judge did not hear or see the witnesses, we are in as good a position as the lower court to evaluate it. Although under these circumstances the “clearly erroneous” doctrine is not applicable, Panama Transport Co. v. The Maravi, 2 Cir., 165 F.2d 719; Stokes v. United States, 2 Cir., 144 F.2d 82, we see no justification for reversing the holding below that the libelants failed to establish that there was a final abandonment of the vessel.
As we find no error in the dismissal of the libel on the merits, we do not reach the defense in the answer based on the statute of limitations.
Decree affirmed.
Patrick F. Cooney, Washington, D. C. (Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Gerald A. Gleeson, U. S. Atty., Philadelphia, Pa., J. Frank Staley, Washington, D. C., Alfred L. Luongo, Philadelphia, Pa., on the brief), for appellees.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
PER CURIAM.
Appellants were merchant seamen employed on the S. S. George Whitefield, owned by respondent and operated for it by a private corporation under a General Agency Agreement.1 During the afternoon of January 22, 1946, while the ship was docked at the port of Bari, Italy, appellants, on shore leave, were arrested on the streets of that city by United States military police and held in custody until January 29, 1946, shortly after the vessel had sailed. Thereafter they were furnished transportation to Naples whence they returned to the United States.
The trial judge found from the testimony that appellants had been intoxicated aboard ship and had threatened and assaulted other crew members and that their conduct had been insubordinate. He further found, with ample support in the record, that they had assaulted a seaman named Harper on the evening of January 21, 1946, causing Harper to request his discharge from the vessel. It was this episode, climaxing appellants’ prior misconduct, which caused Harper and the captain of the vessel to go to the United States military police headquarters in Bari and file a formal charge against them, resulting in their arrest the next day.
After an abortive attempt to sue the operator of the vessel, appellants instituted actions against the United States under the
The district judge concluded that jurisdiction existed. Since that conclusion must be based either on the Jones Act or maritime tort law we will examine both possibilities. The relief afforded seamen by the
“As unquestionably the employer would be liable if plaintiff‘s injuries had been caused by mere inadvertence or carelessness on the part of the offending foreman, it would be unreasonable and in conflict with the purpose of Congress to hold that the assault, a much graver breach of duty, was not negligence within the meaning of the act.”
Though the common law principle of negligence has been extended under the Jones Act by the Jamison case and other decisions, there is no justification for holding that it is broad enough to include false arrest and false imprisonment which consist of arrest or restraint without adequate legal justification and are utterly unrelated to negligence. We therefore hold the Jones Act unavailable to appellants.5
If the alleged false arrest and false imprisonment are maritime torts appellants could maintain these actions notwithstanding the Jones Act affords them no relief. However, it is well established that the situs of a tort determines whether or not it is maritime. In order to be maritime it must occur on navigable waters
It follows that the district court lacked jurisdiction to entertain this litigation. Jurisdiction may be neither conferred nor waived by the parties, and it is the court‘s duty to determine its existence. See Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462.
It may be noted parenthetically that had the vessel been privately owned, or operated by a private principal, common law tort actions could have been maintained under the principles of comity, provided the lex loci delicti created an actionable tort for the conduct complained of. Under the present facts, absent the bar of the statute of limitations, such a suit might lie against the master whose alleged tort predicates these proceedings. The United States, however, cannot be sued without the consent of Congress, and such consent has not been conferred. The
The judgments will be affirmed.
On Rehearing.
PER CURIAM.
The petition states that we found the Jamison and Alpha decisions inapplicable so far as the Jones Act is concerned because they involved torts committed on a seaman by his superior while here such tort was “committed by another, at the superior‘s direction.” The opinion makes no such distinction, holding only that those decisions were no authority for including false arrest and false imprisonment within the concept of negligence so as to come within the Jones Act.
In urging that situs no longer determines whether a tort is maritime, O‘Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 43, 63 S.Ct. 488, 87 L.Ed. 596, is quoted out of context in the petition. As the quotation there appears the reader would assume that O‘Donnell involved a maritime tort, and not, as it did, a Jones Act situation, and further, that the Supreme Court had overruled the well-established situs test for maritime torts. The fact is it merely held that Jones Act suits would lie even though the injury occurred on land so long as it was inflicted in the course of the seaman‘s employment. The plain meaning of
In Strika v. Netherlands Ministry of Traffic, 2 Cir., 1950, 185 F.2d 555, also referred to in the petition, the personal injury involved arose out of an unseaworthy condition. The decision has no relevancy here.
The petition will be denied.