The Hanna Nielsen, 273 F. 171

The Hanna Nielsen

273 F. 171 | 2d Cir. | 1921

HOUGH, Circuit Judge

(after stating the facts as above). [1] If the claim advanced herein be regarded as in contract, the breach being the shipowner’s failure properly and reasonably to provide for the safety of libelant, Norwegian law, and that alone, governs the right of recovery; for “whoever engages voluntarily to serve on board a foreign ship necessarily undertakes to be bound by the law of the country to which the ship belongs.” The Belgenland, 114 U. S. 365, 5 Sup. Ct. 860, 29 L. Ed. 152. The seaman’s contract in this instance was a Norwegian contract, and so remained throughout. The place where libelant shipped or reshipped is of no moment whatever. For other cases see Wilson v. The John Ritson (D. C.) 35 Fed. 663.

[2] If the suit be regarded as sounding in tort, then the trial court had no jurisdiction, unless the tort were maritime, and the lex loci *173delicti applies. Whether the locus is to be regarded as on a Norwegian ship, and therefore Norwegian, or in Gibraltar harbor, and therefore British, is a question into which it is not necessary to go, further than to note that under no circumstances shown here can the law of the United States apply. The sole function of our courts is to furnish a remedy while enforcing by comity the substantially applicable law. As pointed out above, libelant repudiates Norwegian law as furnishing any ground for recovery; that he was right in so doing the evidence conclusively proved.

[3] The question remains whether he can recover under British law without proving it. The argument made (and outlined in answer to interrogatories) is that we must presume or know by judicial cognizance that in respect of the claim here presented the law of Great Britain and that of the United States is the same. For this no authority is produced or can exist. The remarks in The Osceola, supra, 189 U. S. at page 171, 23 Sup. Ct. 483, 47 L. Ed. 760, lay down no such rule. The courc there referred to the seamen’s contract and its nature; but, as above pointed out, if this claim is for breach of contract, no other law but the Norwegian can apply.

So far as judicial cognizance goes, we may notice the decisions of our own courts, which arc far from recognizing uniformity in the laws of the two countries in respect of seamen’s rights and remedies for torts on shipboard. Thus it has been pointed out in The Lamington (D. C.) 87 Fed. at 755, that-for injuries received on shipboard the British seaman has no right of action in rem, nor has he any claim to cure and maintenance, except such substitute as is provided by the Merchant Slipping Act. Sullivan v. Nitrate, etc., Co. (C. C. A.) 262 Fed. 371.

But the fundamental objection to libelant’s recovery under British law is that such foreign law is a fact to be proved if material, and libelant never attempted to prove it. The reason for this rule is set forth in Slater v. Mexican, etc., Co., 194 U. S. at 126, 24 Sup. Ct. 581. 48 L. Ed. 900. A tort is the violation of some obligation or duty, but—

“The source of this obligation is the law of the place of the act, and it follows that that law determines not merely the existence of the obligation, hut equally determines its extent.”

It was therefore incumbent on libelant to prove the nature and extent of his right under British law if he deemed that applicable. He did not do so, and therefore his libel in that respect was properly dismissed.

[4] We can see no power in the District Court to grant an award for cure and maintenance. The right to that relief grows out of the nature of the seaman’s contract, as we pointed out in The Bouker No. 2, 241 Fed. 831, 154 C. C. A. 533, and is in its nature contractual. It was proven that the ship complied with all the obligations of the Norwegian law which governs the contract; while, even if the British law had applied, that system gives no right except under the Shipping Act, and no Hen. Cases supra.

The decisions relied upon on this point do not apply. In The Santa Clara (D. C.) 206 Fed. 179, the court refused leave to plead by way of *174amendment that the steamer was British, while in The Van der Duyn (C. C. A.) 261 Fed. 887, the point was not raised or considered.

The decree appealed from is modified, so as to dismiss the libel in toto. There will be no costs in this court or in the court below.