184 F.2d 510 | 3rd Cir. | 1950
This appeal presents another facet of the litigation instituted by the plaintiff against Stockard Steamship Company (“Stockard”), and in which the instant appellant, Atlantic & Gulf Stevedores, Inc. (“Atlantic”), was j oined by Stockard as third-party defendant. Judgment was entered in the District Court upon a jury verdict against Atlantic and in favor of the plaintiff: it is this judgment which Atlantic now seeks to have set aside. Judgment was also entered on the jury verdict for Stockard against the plaintiff, and the plaintiff’s appeal therefrom, No. 10,126, is disposed of this day. The opinion of the Court on that appeal, 184 F.2d 507, sets forth the background material which we shall not now repeat.
It is necessary, for the purposes of disposing of this appeal, to emphasize the fact that both the plaintiff and Atlantic are Pennsylvania domiciliaries. In addition, it should be noted that Atlantic, which was the employer of plaintiff’s decedent, has apparently been making payments on account of the decedent’s death by reason of an award obtained under the Pennsylvania Workmen’s Compensation Act, as amended, 77 P.S. § 1 et seq. Finally, we relate a fact upon which the plaintiff places great weight: in the course of its deliberations, the jury addressed two questions to the learned trial judge, whether a verdict could be returned against Atlantic alone and whether that verdict could be in an amount in excess of the workmen’s compensation. Atlantic advised
It may be noted that in attempting to hold her judgment here the plaintiff is assuming a position contrary to that taken in the District Court when she asked the latter to instruct the jury that any verdict recovered against Atlantic alone could not be collected against it.
The plaintiff maintains, however, that the accident herein is in reality a maritime'tort and accordingly asserts that the District Court had “naked power” to hear and determine the controversy. She relies upon the Act of June 19, 1948, 46 U.S.C.A. § 740, for this assertion.
Nevertheless, a literal reading of the statute would place this accident upon the “navigable waters”. Thus, it would .appear that the plaintiff, on her own view, has brought herself directly within the Federal Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. ■§ 901, et seq. Consequently, the plaintiff would have no cause of action in the District Court against Atlantic, the decedent’s employer, unless she were to have asserted and proved that Atlantic failed to comply with the statute. The result is that whether this is a maritime tort or a terrestrial tort
For the reasons stated the judgment of the District Court must be vacated.
. Atlantic’s counsel was not present, but authorized the statement to the Court.
. Ҥ 740, Extension of admiralty and maritime jurisdiction; libel in rem or in personam;' exclusive remedy; waiting period.
“The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage of injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on,land.
“In any such case suit may be brought in rem or in personam according to the principles of law and the rules of practice obtaining in cases where the injury or damage has been done and consummated on navigable water: * *
. Minnie v. Port Huron Terminal Co., 1935, 295 U.S. 647, 55 S.Ct. 884, 79 L. Ed. 1631; T. Smith & Son, Inc., v. Taylor, 1930, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520.