Zapien v. Koninklijke Rotterdamasche Lloyd

No. 32570 | N.D. Cal. | Jun 16, 1953

EDWARD P. MURPHY, District Judge.

Defendant has moved for an order dismissing the complaint in the above-entitled action on the ground that this Court lacks jurisdiction to entertain this suit on the law side for want of the requisite diversity. In addition, defendant has moved for an order dismissing the second cause of action stated in the complaint on the ground that plaintiff is not within the class of people who are entitled to rely on the warranty of seaworthiness. Both motions have been argued and submitted.

No case in this Circuit has been cited to the Court and none has been found on independent investigation deciding whether a federal court may entertain an action at law on a maritime tort in the absence of diversity jurisdiction.’ The First Circuit has answered that question in the affirmative, Doucette v. Vincent, 1952, 194 F.2d 834" date_filed="1952-02-05" court="1st Cir." case_name="Doucette v. Vincent">194 F.2d 834, 839, and the Third Circuit in the negative, Jordine v. Walling, 3 Cir., 1950, 185 F.2d 662" date_filed="1950-12-14" court="3rd Cir." case_name="Jordine v. Walling">185 F.2d 662. In the absence of controlling precedent, this Court is free to adopt whichever view it finds more persuasive. I therefore rule, in accordance with the holding in the Jordine case, supra, that in the absence of a showing of diversity, suit on a maritime tort must be brought on the admiralty side. In view of that ruling, defendant’s second motion is moot- at this stage.

The motion to dismiss the complaint is granted. So ordered.