*1 959 that, collision, assum- held cause of the of limita- accept dictum and denial to af- apply, it Pennsylvania to tion charterer is sus- operating rule 10, vio- owner’s tained.” In re firmatively appeared that the New York Marine No. Holding loss. Libel Lighterage and Petition of contributed to had not lation Co, States, 564, 566, 72 Cir., 2 decided Feb. v. United 109 F.2d Pacific Southern 13, 212, 1940. 215. F.2d Denali’s We hold that The owner pre recently was question When liability entitled to limit its or to exonera- circuit it second squarely to the sented tion Harter Act to therefrom under the as here, subsequent ours held, in a decision the claims of United States and other appears that affirmatively it that where appellants, and order that the ease be privy limitation seeking owner to the District further manded Court statute, manning the violation a opinion with this proceedings consonant case that applies. Pennsylvania rule stipulation parties and the two failing privy the owner proceedings. reference to such further required by on the vessel deckhands 362, 222, Reversed. 405. statute, 46 U.S.C.A. §§ limitation of the a denial In affirming MATHEWS, (dissenting Judge Circuit held: Circuit the District “ Second Court * * * requires part). record We think tug knew that that Tucker finding expressed my I adhere the views Being one deckhand. Buffalo short Denali, Cir., left managerial dissent, former The F.2d 9 105 charterer 'fucker’s agent stated, 413, reasons there 420. For knowledge chargeable to it privity reversed, and decree should be privilege limita deprives it remanded, with should directions privity, ; disproved its tion it has liability, appellee’s decree limiting enter Rambler, liability. The do to limit it must provided of the Revised 4283 Stat- Cir., 792; 84-H, 791, Cir., 2 2 290 F. utes, 46 U.S.C.A. 183. 432; 427, Pacific Co. v. Southern 296 F. 212, Cir., States, 214. The 2 F.2d United 72 position in the same charterer is therefore limitation, and no privilege if it had absence full if it is that is liable was a cause of deckhand second been absence has Since the accident. be found, is admitted to and the lack ILLINOIS R. CO. 222, CENT. v. MOORE. U.S.C.A. 362 statutory (see fault 46 §§ MOORE ILLINOIS CENT. CO. the fault is 405), presumed that it No. 9168. cause, petitioner contributory showing that the burden bear must Appeals, Fifth Circuit. 125, Pennsylvania, Wall. 19 was not. 20, Dumois, 148; 136, Albert L.Ed. Rehearing Aug. 8, 751; 595, 254, Denied 20 S.Ct. 44 L.Ed. U.S. Portland S. S. Francisco & Lie v. San 61 L.Ed. 37 S.Ct. 243 U.S. Faxon, Cir., 726; 75 F. The Annie Co., Cir., Michigan 319; S. S. McGill denied, 788, 795, certiorari 144 F. 332; The L.Ed. Suf Cir., 219; Fulton, 2 Cir., folk, 258 F. 469; Annie, D.C. [E.D. 54 F.2d it has not This burden Va.], 261 F. impossible say met, for it not have might deckhand morning Costello instead duty collision, there been two deck had ground theOn that the on board. hands undermanned, the charterer tug undermanning, and that privy contributing may have been this fault *3 HOLMES, Judge, dissenting. thereunder, would claim safely other switchmen could deal with its assumption them their on' that ánd accord to Yazoo rights thereunder.” Moore v. 65, 166 R. Miss. So. Moore, Meanwhile, February having from work for a absent leave, reported dis- for work and was sick charged employe.” unsatisfactory “an *4 hearing be- request given his was On Superintendent, his fore in which slow- Miss., ap- for Byrd, Jackson, L. of James irregularity working, and ness and o'f pellant cross-appellee. brought up. Company having were sued the Miss., appel- Snow, for Jackson, of C. B. latter the trial of this was found in cross-appellant. lee and the real case have been HOLMES, appealed to the General Mc- SIBLEY, Moore Before Manager, at time and but did attend CORD, Judges. Circuit place hearing. set for SIBLEY, Judge. Sept. 25, 1936, the Illinois On Moore sued Company in appellee Prior a court of June, Earl Central Railroad damages discharge, working Mississippi Moore was for his a switchman for for Railway alleging the Alabama at of his Vicksburg & Com- that the time pany yards of Jackson, at its in he was Brotherhood Miss. He was a member an a member since 1924 had of the Switchmen’s Union of Railroad Trainmen which Company America had an in force with North that things, railway company pay in- touching with that rates of rates of and other pay, cluding seniority, portions hours of service and material working condi- exhibited, June, appellant, the sen- along tions. Illinois which were with November, 1926, Company, through iority above men- Railroad Central roster tioned, Mississippi Valley which he was number 52. He al- Yazoo & R. R. took on operation leged over he “was entitled to work under the Alabama Vicks- that Railway Company, expressly said contract of whenever burg assuming for men in the performance of con- was available said union contract. A work Jack- yards provides, among yards at said contract switching son solidation led Jackson person November, "1926, things, in no should be fired making to the other that new cause”; discharged just seniority roster of switchmen in the con- without discharged arbitrarily and yards. Moore’s number was that he was with- solidated special pleas just cause. were filed from to 52. He in out moved worked Six demurrer, time, appeal yard good on but on under this number for some be- and idle, Supreme Mississippi judg- consequence Court of in sometimes and then the October, 1932, brought a in was reversed and the cause remanded for dam- ages proceedings. v. Illinois partial unemployment, further Moore because asserting R. R. 176 So. that his was with Cent. to claim in reference then amended old Switchmen’s Union Moore $3,000, and the cause was removed tract. He lost his in excess Mississippi on district court of United States. March saying: pro- By permission pleas “The effect of court’s that that November, plea mulgation so-called in seniority of this withdrawn were up appellant was filed. set that the Illinois roster to offer the the abatement Company thereby is a common other switchmen affected a new Railroad Central commerce whose seniority in far relative in interstate rail- so as their carrier contract concerned, and, Chicago in was where the breach extends from Illinois to of a road Louisiana, through passing in is followed the offer another contract New Orleans States; therefor, acceptance Mississippi as a substitute subject switchman were its thereof waives the breach of former. and Moore Congress, By especially that of accepting under the Acts work new roster 21, 1934, 45 protest, amended May the Illinois Central was without ff; the'Union appellant 151 and justified believing that U.S.C.A. § laws, headquarters Chicago. Noth- and whose said under relied exists ing appears Mississippi. adjustment of Its localize it require and laws said contract subject matter, relationship high- an Company’s by the disputes thereunder employees, is officers, its Adjustment interstate er and then power Con- pur- well within the commerce Board, which remedies gress fifty years subject arid been a has sued, the suit should of which because legislation.1 stricken on demur- abated. This substantially pleas like those with- rer. Six very agreements matter of collective filed, setting seventh then and a draw ti were extensively regulated was taken over and by its terms up that the Union Contract provided by disputes remedies for writing days’ notice thirty terminable Railway Labor Act of amended dis- Moore’s written notice and that Act, 1934. Section 2 of U.S.C.A. § charge any view effective 151a, purposes; “(5) names as one its days. pleas and answer thirty These provide orderly set- prompt for the demurrer, adversely by disposed of were growing disputes tlement of all out jury, court without trial before the grievances interpretation or out $4,183.20. This judgment was entered for application agreements covering rates cross-appeal results, with a appeal rules, pay, conditions.” In stat- working *5 larger damages. claims employees, duties of and 45 carriers the 152(1), requires U.S.C.A. it them to exert important § in all his judge district agree- effort make aud such by “to maintain himself rulings law considered bound of ments”, disputes and that “all between Supreme of of the Court Mis the decisions its or cases, carrier or carriers and their em- and under the sissippi in this and, considered, ployees possible, if shall Tompkins, be Erie 304 authority of R. Co. decided, expedition, all conference 64, 817, 1188, 114 with L.Ed. 58 S.Ct. 82 U. S. designated representatives and between au- A.L .R. 1487. ** Section thorized so confer to ’ impressed the of are with seriousness We lengthy paragraphs 152(2). Three law the question che as what determines to representatives, choice of lating to the validity of railroad meaning and union bargains, the deduc- making of collective applicable them; tracts, and the remedies to dues, agreements to tion of not union consequences practical of aud union, join expressly are written into to period long for holding that so as employment. 45 every of U.S.C.A. contract discharged employee quiet years may sit Subparagraph (5) (8). (7) 152(3) (4) § pursuit special remedies without the changes pay, prohibits rules ra(es or contract under the Acts Con- employees working or conditions of as a pay gress, by recover and then back agreement, except class, embodied in the as time, perhaps proof may when for that by agreement or provided the stat- as touching the become difficult merits of 3, 153, pro- 45 ute. U.S.C.A. Section § Adjust- Railroad jurisdiction in the vides opinion disputes, are of doctrine We for all manner Board Tompkins, supra, applies only expressly given juris- of Erie v. being First Division wholly by governed yard-service matters law. involving local State diction over applying plain union contract over a employees. (i) \ railroad makes Subsection system operates many disputes only by railroad that not raised Union meaning single employee such. Its and effect States but those of a in- also are ought in each cluded, saying: disputes be same State. “The between an present signed by representa employees contract was group of employee or and a car- * * * residing Chicago grievances of the Union tive rier out growing Manager of by application General the railroad Interpretation out employment 1 sought agreements Contracts were regulated 1, Hearing the Act of we June and arbitration. re mediation 424, 1898, representatives provid- employees Stat. but Act 30 unconstitutional, States, receiverships. 9, Adair v. United ed in federal Sect. 45 101, 277, 430, 52 208 U.S. S.Ct. L.Ed. 122. Hours of labor § IJ.S.O.A. were (52. repealed regulated 13 Ann.Oas. 704. It. was in 1907. 45 U.S.C.A. § July 28, 1920, substituted the Act of of Feb. Act 45 U.S.O.A. again 131-140, 101-125. §§ §§ U.S.O.A. “Controversies dealt such con- concerning wages, encouraged making hours labor or con troversies and employment” with; agreements dilions of dealt were thereabout. 96á pay, pay for for recover rates of concerning agreements including directly agreement sues conditions, upon cases the collective rules, working 21, 1934, complete for bene as a made contract unadjusted pending and Ry. up to fit. Co. v. manner Yazoo & Miss. usual See shall be handled Sideboard, So. 669. 161 Miss. operating including officer chief speak federal above referred to carrier”, be referred statutes and then agreement as “an the collective final are Awards Adjustment Board. rules, pay, work concerning rates award; Subsection except money as to a awards, ing conditions”, (6),. money (45 152(1) U.S.C.A. Awards, including (m) (o). often), Sub- and the individual’s contract but court: in the district are enforcible explained referred to as “the contract of legislation was (p). This section n andvindicated employee.” forming between the carrier and each respects (45 152(8) ). The collective New U.S.C.A. Texas & agreements collective Ry. agreement may contract between contain a Brotherhood R. Co. Orleans carrier, open -or the union Clerks, S.Ct. S. S. dues,2 shop, of union Railway Co. v. closed collection Virginian L.Ed. like, it is not itself a but System 300 U.S. No. Federation employment. It binds no one to serve L.Ed. 789. no- hire carrier binds the carrier between the A collective agreed particular person. It is a basis by rail carrier interstate employees of an satisfactory making mutually local employer therefore and their employment. contracts contracts application as whose nature matter men arise when a State the decisions of touching present themselves, are examined courts. On binding their rules knowledge of the railroad *6 matter, and of subject the trary, of because physical things, required other and stand the it, federal touching a legislation federal the examinations, severally accepted and are independent exercise court bound to is employees. they tacitly Or arise when old of Supreme Court the judgment, and the employees, publication the the of authority. The de has final United States agreement, collective continue to work. Mississippi of Supreme Court cisions any special agreement the absence other respectful the same entitled are wise, every employment may presumed be of the courts are those sideration as agree to be on the basis collective the States, no more. but adopt ordinarily ment and to its terms. But Mississippi the The decision prevent special there nothing agree is controversy not conclu very is in this employee ment if an col desires it. The Wichita case of As in the of it. sive agreement lective before us 'concludes: Bank, City 306 Royalty Co. v. National “Nothing in these rules shall be construed 515, 420, 103, decision 83 L.Ed. the 59 may rights abrogate any local the men reversal, not final ad was one have”, showing application now its Mississippi court does judication; the might vary. agree When the collective upon ap regard as bound a second itself not ment, tacitly sup or expressly, is taken as wrongly it peal, satisfied decided law if any or all of the serv plying terms of the Browning, 115 Miss. first. v. on the Brewer particular employee, ice it still is not L.R.A.1918F, 1185, 267, 519, 358, So. 76 contract, only which standard to but 1918B, the removal Since Ann.Cas. 1013. parties making referred in their federal court this court case parol contract. is view deliberate Such place in Court of stands ly by adopted court in a case where this Mississippi power of re same employee single asserting right the matter were one consideration. If agreement, pay fixed in collective where might Mississippi law we well abide that employee, though we not a member expréssion, but because in latest it court’s agreement, of the Union which made interpretation application
volves the employed under its terms-. Yazoo & employees contract of railroad a collective Webb, Cir., Ry. F.2d Co. v. 5 64 Miss. Val. law. re-examine the we should both similar view is maintained 902. A Tennessee, Kentucky agree where We are unable operates. also Hudson employee on his of contract before us single suing contract v. Cincinnati, etc., Ry. Co., Ky. 711, 152 right 154 employment enforce agreements. prohibits 2 present collective a contract At law such
9(35 Co., So. 166 Valley 176 Ry. Miss. Miss. Ann.Cas. L.R.A.,N.S., 45 S.W. 98; v. 395. Co. 1915B, Coal Cross Mountain re A Ault, 692. S.W.2d Tenn. 9 157 employment contract His all the case in which considered well cent pro thus, statute no federal standing Rentschler are reviewed authorities limitation, pleaded we think the any viding 493, 253 Co., Neb. R. R. Missouri Pac. apply: years may statute of three State it the 1. In Webb A.L.R. N.W. ac open or stated account on an “Actions holdings approval and its cited with writing, and acknowledged in not count Gary v. Central adopted. also See debtor, unwritten any and on signed 819; Ga.App. 141 S.E. Georgia Ry., 37 be com contract, implied, shall express or 120, 123, Id., 716. Ga.App. 160 S.E. next after the years menced within three made, de such is agreement as collective accrued, aft action cause such union, but changed fended well Code, It Mississippi er.” employed under employee rights of each if the is unwritten settled that a contract own, or assert he waive are his wholly proven itself cannot contract Piercy v. he sees fit. himself as them Limitations, “If C.J., writings. Ky. N. R. Louisville & of the writ any chain break there is 1042, A.L.R. 322.3 S.W. supplied has to be ings such break stat years’ testimony, the three clearly parol an in then that when It follows ** * years’. applies for a and not the ute employee sues dividual writings which Any writing be employment break of his breach contract by parol contrary provable only to the col material opera- does; into brings years’ be the three statute lective as Moore Bros, wages Hattiesburg Cobb City he fixed in the paid cause was not tion.” (Yazoo agreement, Webb did So. collective 174 Miss. Const. Webb, supra), petition that apparent R. R. Co. v. is not from wholly suing written collective contract Moore’s agreement, parol contract provable writing, but adopted hiring, terms of should not have been three statute applicable collective on demurrer. stricken to him. Moore’s writings In the event do exist *7 by merely 1933 would he established not bring the case within agreement proving this written collective limitation, statute Code Miss. to did not by in 1924 a which he made union mate defenses will become other belong and with railroad for he a did briefly. consider The rial. We them work. He then working not was for an may he filed recourse that suit not without railroad, which had another collective Adjustment Board is without merit. to the agreement under which he continued to may Adjustment Board dis The settle the Tights the adverse in claim until decision employee putes of the individual as well March, T936. establish the To contract of group, 153(i) those of as 45 U.S.C.A. : employment claims, which he now Moore Board, the Mediation 45 U.S.C.A. § must that he became employee show an says The cited section 155(1). first that a Company Illinois Central Railroad un dispute “shall handled the usual be man der 'circumstances which made the terms of up including operating ner and chief to agreement collective ap Brotherhood’s carrier,” “may officer of the and then it he plicable Perhaps him. to would he have to Adjustment referred” to the The Board. acceptance show his the Brotherhood’s permission go Adjustment to to Board seniority November, .roster since it does not exclude direct recourse to the that .act which ended his courts. with reference to the contract between provision Switchmen’s Union The Alabama & the collective Ry. Co., Vicksburg Supreme agreement for a hearing before the car Court Mississippi. officers, appeal highest, Moore v. Yazoo rier’s with & to the is appeal Eng On an Ity., from Canada the dian Northern 38 Manitoba L.R. Privy lish Council hold tho collective 567. This decision was followed agreement Ry. Co., no D.C., be between Kessell v. Great Northern employer, the individual and his and 51 F.2d also Bancroft v. See Ca only by Co., enforceable the union and nadian R. Pac. 30 Manitoba L. strike, having means .of -a the R. right Young mo >of action on it. v. Cana- seniority just cause a status is not itself stat- requirements in line with provision seniority discharge him. The intends ute, statute it nor the neither but important agreement an of a collective employer’s adverse decision
to make the part of the individual requirement valuable The employee. binding on the It employment made highest thereunder. through tracts sought up that relief be waive or union cannot prerequisite has been held a be operating officer seems N. R. R. destroy Piercy Board, it. v. Louisville & but Adjustment appeal to an A.L.R. Ky. S.W. to a suit court. seniority is not employee’s If the agree conductors’ collective otherwise, we see no satisfactorily settled S. I. R. in McGlohn Gulf estab- why a court to appeal to reason an 250, 251, expressly 174 So. conducted, should decently right, if lish de specified would “not be that conductors employment. If forfeit discharged merited, disciplined without or it, stipu- a who sues retain no wishes to one cause”, provided for just notice ought be added effect lation to that discharge. be trial before discharge. The unjust provisions about yardmen only taken provides that fore us who sue discharging about rule for cause shall be notified out service Central the Illinois exist on claimed to five given hearing within the reason and policy, known to say- only be and not shown to demanded, “In right appeal. days if with warrant a does Moore. It censure suspension dismissal case the is just seniority Moore’s that unjust, yardmen or switch- be found to was the Whether cause for paid be. all tenders shall reinstated cause, sufficient another whether true argued rime lost.” It is that force on, open leave we cause acted time, since for no definite trial. any time, employeemay quit at collective time; provision employer may any discharge nim at rates shall rules and “These discharge right and that cut off the co at in effect Dec. stipulation required, remain until will a clear like that abrogated, of until revised thereafter McGlohn case. contract before days notice thirty written only which intention stipulation us contains that the cause collective given”, refers discharge hearing shall shall be be stated whole, notice given demand, agreement templated and if “found un to be railroad and yardmen one between just, be switchtenders shall not mean does paid reinstated time the union. for all lost.” We employee his contract provisions notice to implica find these written a clear thirty just without be ended tion that be em can is not at the ^o will, in Yazoo & Miss. ployer’s days. so held just cause, We but for a Cir., Webb, F.2d 902. unreasonable, express R. R. Co. it would without *8 opera discharge thus became plea effect, that the provision to that to hold that the properly stricken. days was thirty officers are the sole the final tive justice judges of the the is cause. Nor judgment against Moore in appeal highest operating officer for judicata seniority not res is suit his prerequisite made reinstatement an judg court’s of State suit. The effect this appeal damages. Surely court for always judicata has been held a ment as res question court, enlightened witnesses, may law; holding of State and the justice judge of dis cause Supreme Mississippi this charge. arbitrary case of discharge an case, 180 Miss. 176 So. on that might union the management, take the matter to the upon point This conclusive. suit Adjustment Board, employment with Illinois Cen tract tlje even test of strike. Company, which embraces Railroad tral also on his employ individual contract of agreement. the Brotherhood’s terms ment pay seek reinstatement with upon employ was That through officers, through the railroad’s Ry. Vicksburg Alabama & with the Adjustment Board; he may, before terms of embraced the Switch- remedies, pursuing acquiesce or after agreement, and which was men’s Union as damages and ask for a the Yazoo & Miss. R. sumed breach of contract in a court law. solely his former Moore lost suif be Co. held old employee, an was had filing cause it counsel, superseded that on advice of now of a suit establish his
9G7 and, therefore, three-year statute that the are not causes of action sues. The applies. same. us, Upon the federal the facts before cross-appeal, we do On the in- court is authorized to exercise be earnings man next think low Moore dependent judgment, either as seniority measure roster as to on or sued struction the contract regu damages. not a Moore’s lar Moore Both applicable statute of limitations. discharge, and was before his worker law, we should questions state estimating proper to consider this in highest court court. The follow the state losses due to action Mississippi held that the has of er- because judgment reversed by its barred, bound think we are not decision, and I years’ striking ror three appear that the does not since it limitation, for remanded opinion. Wichita state has altered its proceedings further not inconsistent Bank, City Royalty Nat. Co. opinion. this L.Ed. indicated, from I dissent For reasons HOLMES, (dissenting). Judge of reversal. judgment This is a suit for for breach of a contract benefit of a made specific persons class of which included plaintiff. contract of plaintiff and com- between the the railroad Mississippi, pany was made was to be performed Mississippi, and was therein actually performed of his until date wrongful discharge alleged in the same state. ELDER al. et COHAN v. case, question There is no federal in this No. 9377. except juris- as to matters of defense. Our Appeals, Ninth Circuit. Circuit Court solely diversity rests diction citizenship. originally This action was in- Mississippi a state court stituted $3,000. damages in sum of went to state, which, Court of that court, versing the trial six- that the applied statute of limitations and that the action not barred. Moore Central R. 180 Miss. Illinois So. After it was remanded for re- trial, plaintiff and after had amended $3,000, more than so as to claim removed to court on diversity ground citizenship. There is no federal statute limitations involved here; state statutes. *9 reconcile with Erie I cannot Railroad Co. Tompkins, S.Ct. the L.Ed. opinion A.L.R. majority urges uniformity wherein ii of con- contract, many struction operating in states, as a basis of federal courts exer- independent cising an judgment. This argument, aspect, in one seems to be in ac- cord with the view the Mississippi Court of effect that this suit is Later, written however, contract. opinion holds that the written contract merely adopted by employee, either impliedly orally work, when he went