13 F. Supp. 872 | W.D.N.Y. | 1936
The libelant moves to strike these cases from the admiralty calendar and for direction that each be tried before a jury. In each of these suits the pleadings are in effect alike so far as they relate to the matter of these motions.
The pleadings on behalf of the libelant are confused. In each it is stated that the libel and complaint is in a civil and maritime action. It is understood that the libelant claims each action to be laid in admiralty, but that he is entitled to a jury trial in each suit by reason of the provisions of section 770, title 28, U.S.C. (28 U.S.C.A. § 770), and Admiralty Rule 46 of this District. In each complaint there is an allegation reciting provisions of the Merchant Marine Act approved June 5, 1920, § 33 (Jones Act), 46 U.S.C.A. § 688, entitling a seaman to maintain an action for damages at law with the right of trial by jury. It would seem that this allegation is irrelevant in the light of the other language of the pleading and the admission herein that this is a suit in admiralty.
In each of libelants’ pleadings a demand is made for a jury trial. Section 770, supra, originated in an act passed by Congress in 1845 (5 Stat. 726). This act was held by the Supreme Court to be of no effect (The Genesee Chief, 12 How. (53 U.S.) 443, 13 L.Ed. 1058; The Eagle, 8 Wall. (75 U.S.) 15, 25, 19 L.Ed. 365), since, as it was found, admiralty jurisdiction extended beyond tidewater by force of the provisions of the act of 1789 (1 Stat. 73) and the Constitution of the United States. The act of 1845 was passed to give jurisdiction over inland waters. Upon the passing of that act, it was deemed
For the reasons hereinbefore given, upon the pleadings as they now stand, motions for jury trials must be denied.