294 F. 577 | S.D.N.Y. | 1923
(after stating the facts as above). The single question arising in all these cases is of the meaning of
“Sec. 38. Tliat section 20 of such Act of March 4, ]915, be, and is, amended to read as follows:
“ ‘Sec. 20. ffihat 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 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; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. 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.’ ”
This statute cannot be understood without recalling the law as it stood at the time of its enactment. The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760, had laid it down that an injured seaman’s rights were limited, to maintenance and cure and indemnity in case his injuries arose from the unseaworthiness of the ship. There were expressions in that opinion which seemed to indicate that he was deprived of the usual rights of an employee because of the fellow-servant doctrine, and section 20 of the Act of March 4, 1915, in its original form was supnosed to meet the difficulty by eliminating the rule. In Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171. it was, however, held that a seaman could recover only under the law of the sea and that Congress had not meant to extend the usual liabilities of master and servant to such cases. Hence the removal of the fellow-servant doctrine proved ineffectual. Apparently it was to supply this defect that section 20 of the Act of March 4, was amended to the form given above.
In The Passaic, 204 Fed. 266, 122 C. C. A. 466 (C. C. A. 2), a case was up of a railway employee injured upon a vessel in the harbor of New York. It was assumed that he might sue under the federal Employers’ Liability Act, but it was held that that statute was compatible with the Limitation Act, so that the owner employer might enjoin the action, bring the claim through limitation proceedings into a concourse with other claims against the vessel, and limit the aggregate recovery to her value and freight. Such was the condition of the law when section 20 was amended. A seaman at his election already had his action at law under the maritime law with trial by jury, or his libel in the admiralty. But in either case he was subject to injunction and a concourse under Rev. Stat. § 4285 (Comp. St. § 8023), and the proceedings laid down in admiralty rules 51, 52, 53, and 54. He did not, therefore, have any right to trial by jury except at the will of the owner employer, because his action at law could be enjoined in limine.
At the argument I thought that it might be possible to give effect to the amendment by allowing the actions to proceed to judgment and then staying any execution. This was the course. followed in The Benefactor, 103 U. S. 247, 26 L. Ed. 466, where it was held that, while the decrees were res judicata, they could be brought into a limitation proceeding thereafter and the res distributed. However, in The Benefactor, all the claimants had brought suit in a consolidated libel, and the decree estopped everybody. It was possible in that case, therefore, to distribute the res without any new litigation. If, however, that had not been the case, there is no reason to suppose that the procedure would have been permitted; because in that case the decrees would not have estopped the other claimants, not parties to the libel, and, if the owner could have brought the litigated claims into concourse, the whole controversy must have been fought over again. It seems to me inconceivable that an owner may lie back and allow judgment to go against him, and then compel the plaintiffs to relitigate the whole proceedings with new claimants, in order to recover anything out of the res.
It does not, of course, follow that the owner employer may not still have his right to limit under Rev. Stat. §§ 4283, 4284 (Comp. St. §§ 8021, 8022). It has always been possible for him to plead it as defense in the action or libel. The Scotland, 105 U. S. 24, 33, 34, 35, 26 L. Ed. 1001; The Great Western, 118 U. S. 520, 525, 526, 6 Sup. Ct. 1172, 30 L. Ed. 156. When there is but one claim, this procedure offers no embarrassments; the recovery being limited in the action to the value of the vessel and her freight, if the owner shows that he has not been privy to the loss. All this can be done in the action. When the owner wishes to set up, not only the value of the vessel, but that there are other claims which must share in that value, the situation is indeed more complicated, but even then the difficulties are not insurmountable. In The Scotland, supra, it was held that Rev. Stat. § 4284, gave one remedy, and Rev. Stat. § 4285, another, and that it was in elaboration of the second only that the limitation proceedings created under the admiralty rules were created. Moreover, it was clearly intimated, if nothing more, that in the first case under Rev. Stat. § 4284, there could be a proper award of recovery against the owner, even
In conclusion, by way of caution, I do not mean to imply that the amendment in fact leaves any right of limitation to the owner at all. In view of this privilege on our statute book, and of the favor accorded to shipowners, it may well be that they may still limit such recoveries. Of that I have nothing to say, because it is not up here. Assuming that the right still exists, there is no reason to suppose that the owner’s remedies were not meant to be curtailed, and every reason to suppose that they were. As I have said, no difficulties of procedure arise, unless there are several claims and a res to be distributed. In that case those difficulties inhere in the situation under any theory, save that of a concourse established in limine, and that, as I view it, the amendment in any event forbids.
Stays vacated in all three proceedings.
<§ss>For other oases see same topic & KMY-NUMBfíU in all Key-Numbered Digests & Indexes
<§^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes