The opinion of the court was delivered by: BRUCHHAUSEN
The defendant moves for reargument of its motion for an order dismissing the amended complaint, pursuant to Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C.A., upon the ground that the action is between aliens and that the Court lacks jurisdiction of the subject matter.
The plaintiff, a citizen of Italy, domiciled in the United States since 1946, instituted the action against the defendant, Yamashita Kisen Kabushiki Kaisha, a foreign corporation, owner of the vessel 'Yamashita Maru', and against the defendant, Norton, Lilly & Company, a domestic corporation, to recover damages for personal injuries claimed to have been sustained while the plaintiff was engaged in unloading the vessel at its pier in Brooklyn, New York. The plaintiff at the time was in the employ of a stevedoring concern, John T. Clark and Son, not a party to the action. The plaintiff has demanded a jury trial.
The action is based upon the general maritime law and not upon the Jones Act, 46 U.S.C.A. § 688. The latter act applies only where the action is brought by an employee against his employer.
The plaintiff bases his claim to jurisdiction on the civil jury side of the court in that the action involves a maritime tort, arising under the Constitution and laws of the United States and the right to a jury trial is 'saved' under 28 U.S.C.A. § 1333.
The defendant urges a dismissal of the action on the grounds that this Court is without jurisdiction of an action between aliens and diversity of citizenship is not complete on both sides.
The plaintiff's position is that the absence of diversity of citizenship, or complete diversity on both sides within the meaning of 28 U.S.C.A. § 1332 is of no importance; that the jurisdiction of this Court on the civil jury side is based upon 28 U.S.C.A. § 1331 in that maritime torts are grounded upon maritime law and arise under the Constitution and laws of the United States, wherein the right to a jury trial is 'saved' by 28 U.S.C.A. § 1333.
The plaintiff argues that the subject matter of his action is a maritime tort, Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S. Ct. 733, 58 L. Ed. 1208, cognizable in admiralty through a common law remedy of trial by jury in the district court, that is to say, that the tort 'carries the jury trial with it' saving to the person alleging the tort, the right to a jury trial; that since the maritime law is, by virtue of the Constitution, the law of the United States, the tort is within the sphere of federally created rights. Panama R. Co. v. Johnson, 264 U.S. 375, 44 S. Ct. 391, 68 L. Ed. 748. Thus, it is argued that, regardless of the absence of diversity of citizenship, the case is properly on the civil jury side of the Court. Doucette v. Vincent, 1 Cir., 194 F.2d 834; Moore-McCormack Lines, Inc., v. Amirault, 1 Cir., 202 F.2d 893; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S. Ct. 202. It is further urged by the plaintiff that since he is a longshoreman, and longshoremen are entitled to the remedies of seamen under the Jones Act, International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S. Ct. 19, 71 L. Ed. 157, and inasmuch as longshoremen are entitled to the benefits of the doctrine of unseaworthiness, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099, the plaintiff is entitled to bring this non-statutory action in this Court despite the fact that he is an alien, since his residence of some years in this country would permit him to enforce his rights under the Jones Act within the meaning of Gambera v. Bergoty, 2 Cir., 132 F.2d 414, thus antiquating Cunard S.S. Co. v. Smith, 2 Cir., 255 F. 846.
The Supreme Court in Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S. Ct. 202, indicated existence of the important question, of whether or not the district court on the civil jury side had jurisdiction of a maritime tort in the absence of diversity. The Court said, 346 U.S. at page 410 in footnote, 4, 74 S. Ct. at page 205:
'The complaint shows diversity which is sufficient to support jurisdiction of the District Court. The complaint also shows that the claim rests on a maritime tort which under the Constitution is subject to dominant control of the Federal Government. In this situation we need not decide whether the District Court's jurisdiction can be rested on 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, as arising 'under the Constitution, laws or treaties of the United States.' See Doucette v. Vincent, 1 Cir., 194 F.2d 834, and Jansson v. Swedish American Lines, 1 Cir., 185 F.2d 212, 30 A.L.R.2d 1385. Cf. Jordine v. Walling, 3 Cir., 185 F.2d 662.'
Plaintiff, at page 7 of his brief, places the following interpretation upon the footnote:
'Certainly, the Supreme Court of the United States has indicated, in Doucette v. Vincent, cited supra, and Jansson v. Swedish American Line (1 Cir.), 185 F.2d 212 (30 A.L.R.2d 1385), that if the matter were presented directly to them, that is, jurisdiction based solely on a maritime tort, it would hold that such a maritime tort in itself would be sufficient for jurisdiction. No other conclusion can be drawn from the following language of the Court:
"Consequently, the basis of Hawn's action is a maritime tort, a type of action which the Constitution has placed under national power to control in 'its substantive as well as its procedural features * * *".'
Such a finality of construction cannot be given to the footnote on page 410 of the Supreme Court's opinion in the Pope & Talbot case by the paragraph on page 409 of 346 U.S., 74 S. Ct. 204, 205. The latter specifically rejected the argument that the Pennsylvania rule with respect to an absolute bar of contributory negligence could defeat a claim based on maritime law, and is not correlative to the footnote. The paragraph clearly bars any state law from infringing on maritime causes but it does not qualify the footnote, which appears to leave the question unanswered.
The case of Doucette v. Vincent, 1 Cir., 194 F.2d 834, is in conflict with the case of Jordine v. Walling, 3 Cir., 185 F.2d 662. Basically, these cases deal with the question of whether or not claims under the Jones Act for negligence, unseaworthiness and maintenance and cure, may all be joined together before a jury on the civil jury side in a case where diversity of citizenship is absent, but the question of fundamental theory is the same, viz.: Is diversity of citizenship needed where a maritime tort is alleged in order to obtain jurisdiction on the civil jury side of the district court?
The argument favoring the necessity for diversity of citizenship is set forth in Jordine v. Walling, 3 Cir., 185 F.2d 662, 666, where the Court discussed 28 U.S.C.A. § 1333 and the "saving to suitors' clause':
'The section does, however, save 'to suitors in all cases all other remedies to which they are otherwise, entitled.' This 'savings to suitors' clause was intended to carry into Title 28 in modern and simplified form the similar provisions of Sec. 24, par. 3, and Sec. 256, par. 3, of the Judicial Code of 1911 'savings to suitors in all cases the right of a common-law remedy where the common law is competent to give it.'
The latter clause has been held to authorize any competent court which has jurisdiction of the parties to entertain a civil action at law for the enforcement of a right conferred by the maritime law where the right is of such nature that adequate relief may be given in such an action.
'It is settled that a seaman's right to damages for a maritime tort and his right to maintenance and cure may each be adequately enforced in a civil action at law and that state courts of general common law jurisdiction may, if they acquire jurisdiction of the parties, entertain such actions for the enforcement of ...