The opinion of the court was delivered by: GALSTON
Of the above-named respondents, the American Diamond Lines, Inc., and the Black Diamond Steamship Corporation filed exceptions to the libel.
The libel sets forth two causes of action on behalf of each deceased person. One is based on the High Seas Act, 46 U.S.C. § 761 (46 USCA § 761), and on the Jones Act, 46 U.S.C. § 688 (46 USCA § 688); the second is based on the Jones Act, and sets forth a claim for damages based upon the pain and suffering endured by each decedent prior to his death. Both causes of action also refer to the Federal Employers' Liability Act (45 USCA §§ 51-59), as referred to by the Jones Act.
On the morning of January 26, 1933, the Steamship Black Gull left her berth at Weehawken, N.J., and proceeded by way of the Narrows and Ambrose Channel on an outward voyage to France. Hugh McIntyre acted as her pilot, having been engaged by the respondents, American Diamond Lines, Inc., and the Black Diamond Steamship Corporation. He piloted the vessel to a point on the high seas, some distance off Gedney Channel Whistling Buoy. At this point the Black Gull was stopped to discharge the pilot.
Shortly therefter the pilot boat Sandy Hook, owned by the United New York Sandy Hook Pilots' Association and by the United New Jersey Sandy Hook Pilots' Association, came up to leeward of the Black Gull. Those in charge of the Sandy Hook caused a small boat or yawl to be launched from the Sandy Hook, and ordered Peterson and another seaman, Strandberg, to row the yawl to the side of the Black Gull and take McIntyre from the steamship and bring him to the pilot boat Sandy Hook.
In pursuance of this order, the seamen rowed the yawl to the leeward side of the Black Gull, from which the pilot was discharged and taken into the yawl. Thereupon the Black Gull proceeded upon her voyage to sea; and it is alleged thereby abandoned and exposed the yawl to the full force of the heavy running seas and the northeast gale.
While the yawl was engaged in taking McIntyre off the steamship, the Sandy Hook proceeded to a point more than one-half mile distant from the yawl, and also abandoned and exposed the yawl to the full force of the heavy running seas and gale. As a result of the abandonment and exposure, the yawl and its occupants were cast adrift and lost their lives.
Negligence is charged against all of the respondents.
On this motion it will be sufficient to consider only such negligence as is alleged against the American Diamond Lines, Inc., and the Black Diamond Steamship Corporation. It is said that they were negligent in failing to stand by the yawl and its crew and provide a lee for the yawl and in abandoning the yawl to the full force of the running seas and gale; also that the Black Gull failed to use her searchlight and keep it trained upon the yawl, and failed to note the position of the pilot boat.
It is alleged that the American Diamond Lines, Inc., and the Black Diamond Steamship Corporation owned and controlled the vessel.
The respondents contend that no cause of action is stated under the Jones Act. Title 46, U.S.C. § 688 (46 USCA § 688), provides:
"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. (Mar. 4, 1915, c. 153, § 20, 38 Stat. 1185; June 5, 1920, c. 250, § 33, 41 Stat. 1007.)"
It is urged that these seamen were not employed by either the American Diamond Lines, Inc., or the Black Diamond Steamship Corporation, except by force of law. Section 2119 of the Laws of the State of New York 1882, chapter 410, relating to pilots and pilotage, provides in part as follows:
"All masters of foreign vessels and vessels from a foreign port, and all vessels sailing under register, bound to or from the port of New York by the way of Sandy Hook, shall take a licensed pilot; or, in case of refusal to take such pilot, shall himself, owners, or consignees, pay the said pilotage as if one had been employed; and such pilotage shall be paid to the pilot first speaking or offering his services as pilot to such vessel. Any person not holding a license as pilot under this title, or under the laws of the state of New Jersey, who shall pilot, or offer to pilot, any ship or vessel to or from the port of New York by the way of Sandy Hook, except such as are exempt by virtue of this title, or any master, or person on board a steam tug or tow boat, who shall tow such vessel or vessels, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by a fine not exceeding one hundred dollars, or imprisonment not exceeding sixty days; and all persons employing a person to act as pilot, not holding a license under this title, or under the laws of the state of New ...