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November 15, 1948


The opinion of the court was delivered by: JONES

This is an action for damages for personal injuries under the Jones Act, 46 U.S.C.A. ยง 688.

It is alleged that libellant was a member of the crew of one of respondent's vessels when he sustained injuries on or about April 18, 1948, by being required to adjust a heavy car jack with inadequate assistance.

 In the third paragraph of the libel, it is alleged, in part, that: ' * * * he (libellant) carelessly and negligently had not been provided with assistance causing the personal injuries complained of.'

 And in the fifth paragraph, it is alleged: 'That the respondent and officers in charge of said vessel further failed to keep and maintain said vessel, its works, ways, means and equipment in a good, safe and seaworthy condition, and failed to give him a safe place in which to be at work, as a result of which libellant was caused to strain himself and to sustain his injuries as aforesaid.'

 The respondent has filed the following exceptions to the libel:

 '1st. The libel seeks to invoke inconsistent remedies -- that afforded by the Jones Act for negligences, and that afforded by the general maritime law for unseaworthiness.

 '2nd. The words 'recklessness' and 'recklessly' appearing in the third paragraph of the libel constitute prejudicial surplusage.

 '3d. The allegation that the libellant sustained 'severe and personal injuries in his abdomen' fails to state the nature of such abdominal injury and is so vague that to frame an intelligent answer is difficult if not impossible.'

 I. Respondent says that the remedies afforded by the Jones Act on one hand and the general maritime law on the other hand are inconsistent; that 'under the Jones Act negligence is the gravemen of the case whereas the bare fact of unseaworthiness spells liability regardless of the presence or lack of negligences, so long as the unseaworthiness is the proximate cause of injury.'

 The elusive question is, and has been for some time, when, if, and under what conditions, must a seaman, bringing an action for personal injuries 'elect' between basing his claim upon unseaworthiness of the vessel and upon the negligence of the owner or its officers or employees. Some say right away, some say later, and some say not at all.

 Prior to the Jones Act, when a seaman suffered personal injuries in the service of his ship, the vessel and her owners were liable in admiralty for (1) his maintenance and cure and for his wages, at least until the end of the voyage; (2) an indemnity for the injuries if they were received as a result of the unseaworthiness of the ship or a failure to supply and keep in order the appliances of the ship. The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760.

 On the other hand, prior to the Jones Act, the seaman could not recover in admiralty (1) for injuries sustained through the negligence of another member of the crew, beyond maintenance and cure; or (2) an indemnity for the negligence of the master or any member of the crew, beyond maintenance and cure. The Osceola, supra.

 In addition to his rights in admiralty under the maritime law, the injured seaman had the right of a common law remedy 'where the common law is competent to give it'. 28 U.S.C.A., 41(3) (now Sec. 1333). The fact that a seaman might choose a common law remedy did not alter the fact that his rights and the ship owner's liability under that remedy were governed solely by maritime law. Chelentis v. Luckenback S.S. Co., 247 U.S. 372, 38 S. Ct. 501, 62 .Ed. 1171. Commentary on Maritime Workers by Prof. Willock in 46 U.S.C.A.preceding section 688.

 The Jones Act, 46 U.S.C.A. 688, provides as follows: 'Recovery for injury to or death of seaman. 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.'

 The loose wording of the Act gave rise to many cases requiring its construction by the courts. In construing the Act, the Supreme Court declared that it must be interpreted in harmony with the Constitution, the Judicial Code and the maritime law.

 In Panama R. Co. v. Johnson, 264 U.S. 375, 44 S. Ct. 391, 68 L. Ed. 748, the Court held that the Jones Act 'leaves the injured seaman free under the general law * * * to assert his right of action under the new rules on the admiralty side of the court.' 264 U.S.AT page 391, 44 S. page 395.

 The Panama case was an action at law under the Jones Act wherein the plaintiff sought damages for personal injuries sustained through the negligence of the employer. The defendant's principal argument was that the Jones Act was unconstitutional in that it restricted a seaman's action, under maritime law, to the law side of the court. The court's holding that under the Jones Act the seaman was free to proceed either in admiralty or at law removed this possible constitutional weakness.

 In the Panama case, the Court made an observation upon which the respondent herein relies heavily in support of its motion: 'Rightly understood, the statute neither withdraws injuries to seamen from the reach and operation of the maritime law, nor enables the seamen to do so. On the contrary, it brings into that law new rules drawn from another system and extends to injured seamen a right to invoke, at their election, either the relief accorded by the old rules or that provided by the new rules. The election is between alternatives accorded by the maritime law as modified, and not between that law and some nonmaritime system.' Id., 264 U.S.AT pages 388, 389, 44 S. page 394.

 Well. that language gives some considerable color to respondent's contention; but wait for cases that follow.

 In Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S. Ct. 600, 71 L. Ed. 1069, the Court held that a decree in admiralty was res judicata as to an action at law arising out of the same injury involved in the admiralty case. In the admiralty action, libellant had sought damages for an injury suffered, allegedly, as a result of negligence in failing to provide a safe place to work, and to use reasonable care to avoid striking libellant and by the unseaworthiness and insufficiency of the gear and tackle employed on the vessel. The admiralty court found that the accident was not due to the negligence alleged but to the negligent way in which the damage was removed from the hold ...

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