395 F.2d 737 | 3rd Cir. | 1968
OPINION OF THE COURT
A confused pleading presents us with the problem whether plaintiff
Plaintiff brought the action by filing what he designated as a “Libel in Admiralty, In Rem and In Personam * * against Point Towing Co. and the M/V H. E. Bowles, a motor vessel, her boilers, engines, tackle, apparel and furniture, and Bulk Towing, Inc., in a cause of contract and damage, civil and maritime. * * * ” He demanded trial by
The Clerk of the Court docketed the action in admiralty but placed it on the civil jury list. Process issued but was returned unexecuted and shortly thereafter counsel entered an appearance for Point Towing Co. and subsequently filed an answer to the libel. No appearance was entered for Bulk Towing Inc., which therefore dropped out of the case.
After discovery proceedings Point Towing Co., which will be referred to as the defendant, filed a motion to remove the case from the jury list and to assign it to a non jury list on the ground that there was no right to trial by jury because the action was in admiralty. The district court agreed and granted the motion.
Ultimately the district court dismissed the action because defendant was not liable for any negligence or unseaworthiness which may have occasioned plaintiff’s injury. It found that the vessel was being operated by Bulk Towing, Inc., the unserved defendant, under a “bare boat charter” from defendant, that the landing where the vessel was tied was operated by another corporation and that defendant was not the plaintiff’s employer.
Analysis of the problem of the right to jury trial must begin in the light of the guidance established by the Supreme Court in Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). There it was held error to refuse plaintiff a jury trial of his claim for maintenance and cure coincident with the jury trial of his claims under the Jones Act for negligence and under maritime law for unseaworthi
It therefore is beyond question that a plaintiff who files a complaint at law under the Jones Act and demands a jury trial, has the right to join with it and have tried before a jury as pendent to it his claims under maritime law for unseaworthiness and for maintenance and cure. The Jones Act, however, provides the right to trial by jury only in an action at law,
The district court’s conclusion on venue, however, was based on a misapprehension of the factual situation. It was undisputed that defendant was incorporated within the judicial district in which the action was brought. This was the place of defendant’s residence for venue under the Jones Act,
Plaintiff did not, however, seek the trial of all his claims on the law side of the court, but brought the unseaworthiness and maintenance and cure claims in admiralty. Nevertheless, we must interpret his demand for a jury trial of his claims and his designation of the Jones Act claim as a civil rather than a maritime claim, and as a pendent rather than an independent claim in admiralty, as indicating a choice that the Jones Act claim be designated as an action at law. In these circumstances we think that plaintiff was entitled to have his Jones Act claim tried before a jury as an action at law and to have his claims for unseaworthiness and maintenance and cure which were brought in admiralty submitted to the same jury. We see no reason why a plaintiff who sues at law under the Jones Act for negligence must make his claims for unseaworthiness and maintenance and cure pendent to it on the law side in order to maintain his right to trial by jury on all three claims. To require this would compel him to lose the advantages which inhere in the characteristic admiralty claims, such as in rem process,
There is no novelty in permitting a joint trial of claims in admiralty and claims at law.
The unification of the civil and admiralty rules of procedure, which became effective July 1, 1966,
Since we conclude that the district court erred in holding that there was a lack of venue at law, that the claims therefore were required to be heard in admiralty, and hence that there was no right to trial by jury, the judgment of the district court must be vacated and the cause remanded for further proceedings. On remand plaintiff will be required to comply with Rule 9(h) which now will be applicable and to supplement his complaint by identifying those counts which he seeks to pursue as claims in admiralty. If he does not designate the Jones Act claim for negligence as being in admiralty for the purpose of Rule 9(h), he will be entitled to have all three claims decided by a jury as he has demanded.
It has been suggested to us that defendant may be entitled by uncontroverted evidence to a dismissal of the action as a matter of law. Defendant had moved for a directed verdict at the close of all the evidence, but since the case was heard by a judge without a jury the motion was not formally ruled on as such. The findings of fact and conclusions of law of the trial judge afford no clear foundation for a determination whether plaintiff’s claims were dismissed as a matter of law or on factual grounds. On remand the district court should therefore afford defendant an opportunity by appropriate motion to raise the question of the sufficiency of the evidence as a matter of law to make out a case for consideration by a jury. If the court finds the evidence inadequate for that purpose a judgment for the defendant as a matter of law will be appropriate; otherwise, if plaintiff does not file a statement designating the Jones Act claim as being in admiralty, he will be entitled to have his three claims submitted to a jury.
The judgment of the district court will be vacated and the cause remanded for further proceedings consistent with this opinion.
. Although the parties are referred to in the pleadings as libellant and respondent, in view of the uniform designation provided under the I960 amendments to the Federal Rules of Civil Procedure (see Rules 1, 4(b)), we shall refer to the I>arties as plaintiff and defendant.
. 46 U.S.C. § 688.
. See Crookham v. Muick, 246 F.Supp. 288 (W.D.Pa.1965), on which the district court relied.
. The Jones Act provides:
“Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such an action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply. s: * * Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.” (46 U.S.O. § 688).
The term “jurisdiction” in the Jones Act has been interpreted to mean venue. See Panama R.R. Co. v. Johnson, 264 U. S. 375, 383-385, 44 S.Ct. 391, 68 L.Ed. 748 (1924).
. The court also found that the vessel was not unseaworthy “with respect to its equipment, including means of ingress and egress.”
. The district court had followed the Second Circuit practice in permitting the claim of unseaworthiness to be tried before the jury together with the negligence claim under the Jones Act. Balado v. Lykes Bros. S. S. Co.. 2 Cir., 179 F.2d 943, 945 (1950). Similarly, see McCarthy v. American Eastern Corp., 175 F.2d 724 (3 Cir.), cert. denied, 338 U.S. 868, 70 S.Ct. 144, 94 L.Ed. 532 (1949), relying on the fact that each of these claims is res judicata of the other.
. See Fitzgerald v. United States Lines Co., 306 F.2d 461, 463 (2 Cir. 1962), reversed, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963).
. Romero held that a federal court which has jurisdiction over a Jones Act claim on the law side of the court, also has pendent jurisdiction to hear unseaworthiness and maintenance and cure claims joined on the law side, even though there is no independent jurisdiction at law over the maritime claims.
. Fitzgerald v. United States Lines Co., 374 U.S. at 18-19, 83 S.Ct. at 1649.
. Id. at 21, 83 S.Ct. 1650.
. Panama R.R. Co. v. Johnson, supra 264 U.S. at 391, 44 S.Ct. 391; Yates v. Dann, 223 F.2d 64, 66 (3 Cir. 1955); Texas Menhaden Co. v. Palermo, 329 F.2d 579 (5 Cir. 1964); O’Brien v. U. S. Tank Ship Corp., 16 F.Supp. 478 (S.D.N.Y. 1936).
. Leith v. Oil Transport Co., 321 F.2d 591 (3 Cir. 1963).
. Brown v. C. D. Mallory & Co., 122 F.2d 98, 104 (3 Cir. 1941).
. Panama R..R. Co. v. Johnson, supra, n. 4, 264 U.S. at 391, 44 S.Ct. 391.
. See Pure Oil Co. v. Suarez, 384 U.S. 202, 203-204, 86 S.Ct. 1394, 16 L.Ed.2d 474 (1966).
. Rule C, Supplemental Rules for Certain Admiralty and Maritime Claims, Federal Rules of Civil Procedure.
. Rule 73(h), Federal Rules of Civil Procedure; 28 U.S.C. § 1292(a) (3).
. Rule B, Supplemental Rules for Certain Admiralty and Maritime Claims, Federal Rules of Civil Procedure.
. Rule 26(a), Federal Rules of Civil Procedure ; Rev.Stat. § 863-65.
. Fitzgerald v. United States Lines, supra 374 U.S. at 20-21, 83 S.Ct. 1646.
. See Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960); McAfoos v. Canadian Pacific Steamships, Ltd., 243 F.2d 270 (2 Cir.), cert. denied, 355 U.S. 823, 78 S.Ct. 32, 2 L.Ed.2d 39 (1957).
. A dictum in Leith v. Oil Transport Co., supra 321 F.2d at 592, that a Jones Act claim and an unseaworthiness claim must he brought on the same side of the court does not preclude our permitting an unseaworthiness claim to be brought on the admiralty side, joined with a Jones Act claim at law where both are tried to a jury. The statement in Leith was made in the context of deciding that the definition in 28 U.S.C. § 1391(c) of a corporation’s residence for venue did not apply to venue under the Jones Act, which was overruled in Pure Oil Co. v. Suarez, supra, n. 15. The dictum had reference to the fact that the claims must be brought together to avoid res judicata. This need is met if the claims are brought on different “sides of the court” but are tried by the same fact finder.
. 383 U.S. 1029, 1031.
. Rules 1, 8(e), 18. The Advisory Committee on Maritime Rules which drafted the amendments to the Rules of Civil Procedure in which the merger of civil and admiralty rules was accomplished said in its letter of transmittal to the Committee on Rules of Practice and Procedure: “Unification does not mean complete uniformity. There are certain distinctively maritime remedies that must be preserved, as distinctively equitable remedies were preserved in the merger of [equity and law in] 1938. In addition, history or the exigencies of maritime litigation occasionally require procedures different from those now provided by the Civil Rules.” 34 F.R.D. 331, 335.
. Rule 9(h) provides:
“A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of Rules 14(e), 26(a), 38(e), 73(h), 82, and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the claim is cognizable only in admiralty it is an admiralty or maritime claim for those purposes whether so identified or not. The amendment of a pleading to add or withdraw an identifying statement is governed by the principles of Rule 15.”
. Rule 38(e) provides:
“These rules shall not be construed to create a right to trial by jury of the issues in an admiralty or maritime claim within the meaning of Rule 9(h).”
. 383 U.S. 1029, 1030.
. In view of the basis of our decision, we do not pass upon the effect of the belated effort of plaintiff to show that diversity existed in the citizenship of the parties. See Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 359-360, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962); Philadelphia & R.R. Co. v. Berg, 274 F. 534, 539 (3 Cir.), cert. denied, 257 U.S. 638, 42 S.Ct. 50, 66 L.Ed. 410 (1921) ; Advisory Committee Note to Rule 9(h), 39 F.R.D. 69, 75,