Brown v. C. D. Mallory & Co.

JONES, Circuit Judge

(dissenting).

The majority hold that a suit in admiralty for the enforcement of a right of action under Section 20 of the Jones Act, as amended, 1 is not subject to the requirement of the same section that “Jurisdiction [meaning venue 2 ] 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.” With that conclusion, I am unable to agree and, therefore, note my dissent. The reasons in support of my view will be stated.

The question involves the construction of a federal statute which is general in the extent of its applicability. As the majority opinion points out (see cases there cited), there has been a division of opinion among the District Courts where the present question has been up for decision. And, as the majority opinion also observes (see cases there cited), there has been unanimity among the courts when applying the venue requirement of Section 20 of the Jones Act, as amended, to actions at law thereunder. Of the correctness of these latter rulings there can be no doubt and, certainly, none since the decision of the Supreme Court in Panama Railroad Com pany v. Johnson, 264 U.S. 375 , 44 S.Ct. 391 , 68 L.Ed. 748 . There, in an action at law, the precise question was raised and the otherwise improper venue of the case was held to have been (by general appearance) waived by the defendant as a defendant may do, — the right to plead restricted venue being a right personal to a defendant. As the Supreme Court said in the Panama case, supra, 264 U.S. at page 385 , 44 S.Ct at page 393 , 68 L.Ed. 748 , — “such a provision [limiting venue] merely confers on the defendant a personal privilege, which he may assert, or may waive, at his election, * * *.” (Emphasis supplied.) In passing, it should be noted that one of the effects of the decision and order of the majority in the instant case is to make the limitation of venue (notwithstanding the statutorily prescribed requirement of the Jones Act) depend not upon the election of the defendant but upon the choice of the plaintiff, accordingly as he sues at law or in admiralty. Of course, it can be no less onerous to a defendant to appear and answer in a district foreign to his residence or principal office with respect to one and the same cause of action no matter whether the cause be filed in a court of law or a court of admiralty.

What, then, is the necessity compelling the construction which the majority adopt? Certainly, the plain and understandable words of the statute, themselves, furnish no inspiration or even suggestion for the conclusion. Section 20 of the Jones .Act, as amended, makes no express distinction between an action at law or a suit in admiralty for the enforcement of a right under that statute. This seems to me to be manifest from the Supreme Court’s construction of Section 20, as amended, in the Panama case, supra. There, one of the things which enabled the Supreme Court to say that the right conferred by the Jones Act was cognizable in admiralty as well as at law was the fact that the phrase, “in such action”, as used in the first sentence of the Section meant “an action to recover' damages for such injuries”. Thereby, as the Supreme Court concluded, when Congress thus used the phrase, “in such action”, it must have had in contemplation a suit in admiralty as well as an action at law. Why, then, when Congress provided in the second sentence of Section 20, as amended, that the venue “in such actions” shall be in the district of the defendant’s residence or principal office, did it not also still have in contemplation a suit in admiralty as well as an action at law? It is *106 unnecessary to resort to rules of construction to support the proposition that the same words when used twice in the same section of the same statute mean the same in each instance unless a different meaning therefor has been legislatively defined therein or is otherwise clearly indicated. But, no different meaning for the phrases, “in such action” and “in such actions”, in Section 20 is either prescribed or indicated. The majority meets the difficulty by saying that, — “We think, however, that the phrase ‘such actions’ in the venue sentence does not have this objective meaning [purpose of suit] but refers to the ‘action for damages at law 1 in the courts of the United States to which the section expressly refers.” With due respect for the majority, the conclusion just quoted is manifestly not admissible without disregarding the Supreme Court’s construction of the “in such action” phrase in the Panama case. The antecedent phrase, “action for damages at law”, to which the majority now points, bore the same position and same relation in the Section when it was before the Supreme Court in the Panama case, but without the influence which the majority now attributes to it.

The majority opinion reasons that, inasmuch as “venue in admiralty was not dependent upon the presence of the respondent in person or upon the maintenance of a principal office within a particular district but could be invoked by reason of the presence of property of the respondent within the district,” a suit in admiralty under the Jones Act may be maintained wherever property of the defendant may be found even though outside of the district of the defendant’s residence or principal office. As supporting the conclusion thus derived the majority point to an expression in the Panama case. The Supreme Court there, having held that a right of action under the Jones Act was cognizable in admiralty as well as at law, said, 264 U.S. page 391, 44 S.Ct. page 395, 68 L.Ed. 748 , —“So construed, the statute does not encroach on the admiralty jurisdiction intended by the Constitution, but permits that jurisdiction to be invoked and exercised as it has been from the beginning.” Consequently, the majority say that a suit in admiralty under the Jones Act must be attended by all of the rights under the “old rules” of maritime law. Is that what was meant in the Panama case? I think not. After all, the question involved in the Panama case grew out of an action at law under the Jones Act and not a suit in admiralty.

Thus the majority’s conclusion is made to rest upon an inference as to what an expression in the Panama case (entirely incidental to the question there involved) was intended to embrace. More important to the present question, it seems to me, is what was said in the Panama case, 264 U. S. at pages 387-389, 44 S.Ct. at page 394 , 68 L.Ed. 748 :

“The statute is concerned with the relative rights and obligations of seamen and their employers arising out of personal injuries sustained by the former in the course of their employment. Without question this is a matter which falls within the recognized sphere of the maritime law, and in respect of which the maritime rules have differed materially from those of the common law applicable to injuries sustained by employees in nonmaritime service. But, as Congress is empowered by the constitutional provision to alter, qualify or supplement the maritime rules, there is no reason why it may not bring them into relative conformity to the common-law rules or some modification of the latter, if the change be country-wide and uniform in operation. Not only so, but the constitutional provision interposes no obstacle to permitting rights founded on the maritime law or an admissible modification of it to be enforced as such through appropriate actions on the common-law side of the courts — that is to say, through proceedings in personam according to the course of the common law. * * * [Cases cited]

“Rightly understood, the statute neither withdraws injuries to seamen from the reach and operation of the maritime law, nor enables the seaman 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 non-maritime system.”

But, whatever may have been intended in the Panama case or what the inferences to be drawn therefrom may be as to the extent to which a suit in admiralty under the Jones Act is attended by rights under the *107 old rules of maritime law, at least one of such rights does not so attend, and that is the right to proceed in rem. See Plamals v. S.S. “Pinar Del Rio” etc., 277 U.S. 151 , 48 S.Ct. 457 , 72 L.Ed. 827 . This is not to suggest that the proceeding (admiralty) in the instant case which was instituted on a writ of foreign attachment is in any relevant sense a proceeding in rem. Undoubtedly, foreign attachment is available to a plaintiff in an action in personam to compel the defendant’s appearance. The unavailability of foreign attachment in a case such as the present is due to the fact that, as the venue must be in the district of the defendant’s residence or principal office, the non-residence essential to foreign attachment cannot be present.

That a seaman may not proceed in rem in admiralty under the Jones Act was squarely ruled by the Supreme Court in Plamals v. S.S. “Pinar Del Rio”, supra. Yet, the right to proceed in rem is a right a seaman has in admiralty under the old maritime rules. Not only is the Pinar Del Rio case important as demonstrating that, when suing in admiralty under the Jones Act, all of the rights under the old rules do not attend the plaintiff but, more important still, one of the reasons assigned by the Supreme Court for its ruling -in the Pinar Del Rio case (in admiralty) was that the Jones Act “expressly provided that the employer might be sued only in the district where he resides or has his principal office.” 277 U.S. page 156, 48 S.Ct. page 458, 72 L.Ed. 827 . And then, the Supreme Court said, — “This provision [venue] repels the suggestion that the intention was to subject the ship to in rem proceedings. Generally, at least proceedings of that nature may be brought wherever the ship happens to be.” Thus, the venue requirement of Section 20 was operative in admiralty to the extent of helping to eliminate an in rem proceeding from admiralty’s scope when enforcing a right under the Jones Act.

The unavailability of another of the old rules under maritime law, when suing in admiralty under the Jones Act, suggests itself and that is the rule with respect to the limitation of an action. Under the old maritime rules the timeliness of a suit in admiralty for damages, whether for maintenance and cure or for injuries due to the unseaworthiness of a boat, rests in the discretion of the court. It can be of no present moment that a judge in admiralty in passing upon the timeliness of an action brought under the old maritime rules may reason by analogy from general or local statutes of limitations. The fact remains that the limitation in admiralty depends upon an exercise of judicial discretion and not upon the proscription of a statute. The limitation in the Employers’ Liability Act, from which the Jones Act derives by express adoption, is now three years. Amendment of August 11, 1939, c. 685, § 2, 53 Stat. 1404 , 45 U.S.C.A. § 56 . Is it to be suggested that a seaman may sue in admiralty under the Jones Act when his right to sue at law for the same cause is gone? Such would necessarily be the possibility if all of the old maritime rules attend a suit in admiralty under the Jones Act. But that cannot be, for it has been held time and time again by, both Federal and State courts (the jurisdiction is concurrent) that the limitation prescribed by the Employers’ Liability Act and, by the same token, the Jones Act is a limitation upon the right, and not the remedy, and that, when the period of limitation has expired without the institution of suit, the right of action is extinguished. The statute provides, — “No action shall be maintained * * * unless commenced within three years from the day the cause of action accrued.” And so, again it would seem that admiralty’s exercise of its jurisdiction “as it has been from the beginning” was not intended in the Panama case to mean that in 'enforcing a right under the Jones Act in admiralty all of the old rules of maritime law should obtain.

Finally, the majority say that they are fortified in their conclusion by the decision of the Supreme Court in Bainbridge v. Merchants & Miners Transportation Co., 287 U.S. 278 , 53 S.Ct. 159 , 77 L.Ed. 302 . The Bainbridge case was an action at law under the Jones Act, instituted in a State court. All that case held was that the word “district” in the venue provision of Section 20, as amended, did not refer to the courts of a State. After pointing out that the term “district” was not apposite in describing the judicial divisions in some States, the Supreme Court said, 287 U.S-pages 280,-281, 53 S.Ct. page 160, 77 L.Ed. 302 , — “* * * we should be slow to impute to Congress an intention, if it has the power, to interfere with the statutory provisions of the various states fixing the venue of their own courts. It follows that the venue should have been determined by *108 the trial court in accordance with the law of the state.” Obviously, the ruling was limited to a construction of Section 20 with respect to its effect upon the venue in State courts and no more. Moreover, the Supreme Court had said earlier in the Bainbridge opinion (287 U.S. page 280, 53 S.Ct. page 159, 77 L.Ed. 302 ) that “the correct construction of the provision [venue under the Jones Act] limits it to the courts of the United States.” The description, “courts of the United States”, at least does not serve to limit the courts, thus referred to, to only courts sitting at law. Certainly the Bainbridge case furnishes the majority no support.

For the reasons given, I should affirm the decree of the District Court which, on the respondent’s motion and because of a want of proper venue, struck from the libel all claims or allegations related to or founded upon the provisions of the Jones Act.

Act of March 4, 1915, c. 153, § 20, 38 Stat. 1185 , as amended by the Act of June 5, 1920, c. 250, § 33, 41 Stat. 1007 , 46 U.S.C.A. § 688 .

See Panama Railroad Company v. Johnson, 264 U.S. 375, 384, 385 , 44 S. Ct. 391 , 68 L.Ed. 748 .