280 F. 125 | W.D.N.Y. | 1921
Defendant’s contention, that action under this provision is barred on the ground that the act is not retrospective or retroactive, is hot maintainable, since, it appears that the intestate died on April 24, 1919, and plaintiff was not appointed administratrix until March 7, 1921; the action being begun on April 16 following. Hence it is unnecessary to determine whether the Merchant Seamen’s Act in question was retroactive or not. The action was commenced within the limited period and after the passage of the act establishing the remedy invoked by the proposed amendment to the complaint. It may, however, turn out at the trial that the submission to the jury of defendant’s liability should be on one of the two causes of action only, upon either the common-law liability or exclusively under the statutory Seamen’s Act (Comp. St. § 8337a).
The question wholly depends upon the proofs as to whether the deceased was injured while employed in the capacity of a seaman or not. It is even conceivable that the jury may be called upon to determine the issues of both causes of action, but any questions with relation to severing the causes of action or their submission to the jury are reserved to the trial. I think plaintiff has a right to amend her complaint by including thesecond cause of action.
So ordered.