The opinion of the court was delivered by: BYERS
This is a motion to dismiss a libel against the tug GLORIA O, and her owner in personam, and to discharge and cancel a stipulation for value, and to direct that the libel be treated as a complaint at law, and to transfer the cause to the civil jury trial calendar. With the answer there was filed a demand for jury trial- in deference to a statement in the opinion in United States v. The John R. Williams et al., 2 Cir., 144 F.2d 451, to the effect that such a trial had there been waived for failure of such demand.
This cause is for damage said to have been done to libellant's bridge structure and supports resulting from the striking thereof by the tug and her tow, in the Barge Canal at Jordan, N.Y., on May 10, 1950.
The claimant's purpose is to challenge the constitutionality of the Act of June 19, 1948, Ch. 526, Title 46 U.S.C.A. 740, which in terms provides: 'The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land * * *.'
The statute thus supplants several decisions to the effect that under such circumstances a maritime tort has not been committed.
The libel sufficiently alleges that the damage complained of was done or consummated on land so far as the bridge and supports were concerned.
While in terms this motion does not seek an 'injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States * * *' within Title 28 U.S.C. § 2282, such would seem to be the necessary effect of granting the motion, and perhaps therefore this Court of one judge should not proceed to a decision. Since the subject has not been discussed in oral or written argument, it will be sufficient if the point is hereby reserved for consideration upon appeal which of course is inevitable in one form or another.
The claimant's argument, if understood, is that at the time of the adoption of the Constitution, the language of Art. III, Sec. 2, defining the judicial power as extending '* * *;- to all Cases of admiralty and maritime Jurisdiction;' necessarily restricted that jurisdiction to the then contemporary concepts of its constituency which Congress was powerless to extend by any subsequent legislation. Therefore that the attempt in 1948 to recognize jurisdiction of the courts sitting in admiralty to adjudicate this case must fail for lack of congressional power.
The claimant cites the Seventh Amendment concerning suits at common law where the value in controversy exceeds twenty dollars (as here) 'the right of trial by jury shall be preserved * * *.'
It is argued that since this cause was cognizable at common law only prior to 1948, according to many decisions, it follows that the deprivation of a jury trial (for which the new statute makes no provision) necessarily is an additional source of invalidity.
The further argument is made that the claimant is deprived of its right to require the libellant to establish freedom from contributory negligence under the rule in New York which uould apply if the case were to be tried at common law; and that the doctrine of assumption of risk would also deprive libellant of recovery in such a suit. These are scarcely constitutional rights, for they could be changed at any time by state legislation, and will not be discussed.
Each cognate exercise of the congressional function residing in 'the necessary and proper power' (Art. I, Sec. 8) has met and survived the challenge of those who asserted the same position as is here argued by the claimant. It would display temerity to recite again all that is contained in the historic survey of the development of admiralty jurisdiction in the United States, written by Chief Justice Hughes in The Thomas Barlum, 293 U.S. 21, at 42 et seq., 55 S. Ct. 31, 79 L. Ed. 176, in expounding the validity of the preferred Ship Mortgage Act, 46 U.S.C.A. § 911-984. While the decision itself was addressed to different subject-matter, the force of the following statement is not thereby impaired: 293 U.S.at page 43, 55 S. Ct.at page 38. 'When the Constitution was adopted, the existing maritime law became the law of the United States 'subject to power in Congress to alter, qualify or supplement it as experience or changing conditions might require.' Panama Railroad Co. v. Johnson, 264 U.S. 375, 385-387, 44 S. Ct. 391, 393, 68 L. Ed. 748. The Congress thus has paramount power to determine the maritime law which shall prevail throughout the country (citing cases). But in amending and revising the maritime law, the Congress necessarily acts within a sphere restricted by the concept of the admiralty and maritime jurisdiction. The Belfast, 7 Wall. 624, 641, 19 L. Ed. 266; Panama Railroad Co. v. Johnson, supra; Crowell v. Benson' 285 U.S. 22, 39, 52 S. Ct. 285, 76 L. Ed. 598.
Those latter cases did not involve such subject-matter as is here in controversy.
In upholding a recovery under the Jones Act, 46 U.S.C.A. § 688, by a seaman injured while ashore in performing his duties in discharging cargo, Chief Justice Stone said in O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, at page 40, 63 S. Ct. 488, 491, 87 L. Ed. 596, in discussing the apparent contention that the maritime law at the time of the adoption of the Constitution should remain unaltered: 'There is nothing in that grant of jurisdiction- which sanctioned our adoption of the system of maritime law- to preclude Congress from modifying or supplementing the rules of that law as experience or changing conditions may require. This is so at least with respect to those matters which traditionally have been within the cognizance of admiralty courts either because they are events occurring on navigable waters, see Waring v. Clarke (5 How. 441, 12 L. Ed. 226), or because they are the subject matter of maritime contracts or relate to maritime services. Insurance Co. v. Dunham, 11 Wall. 1, 25, 20 L. Ed. 90.'
'From the beginning this Court has sustained legislative changes of the maritime law within those ...