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June 8, 1967

Lillian TRAUB, Plaintiff,

Frederick van Pelt Bryan, District Judge.

The opinion of the court was delivered by: BRYAN

FREDERICK van PELT BRYAN, District Judge:

This action for personal injuries sustained while plaintiff was a passenger aboard defendant's Dutch-flag S.S. Rotterdam was tried before me without a jury. The action, commenced in the New York Supreme Court, was removed to this court by the defendant on the ground of diversity.


 I find the material facts here to be as follows:

 On June 29, 1962 Mrs. Traub, a seventy-five year old widow and resident of New York, sailed on the S.S.Rotterdam for Holland. She had purchased her contract of passage from an agent in New York several weeks prior to her departure. She occupied Cabin A-192 with an adjoining bathroom approximately five feet by seven feet. On July 1st about 7:30 p.m., when the vessel was well at sea, Mrs. Traub drew a bath, disrobed and entered the bathroom. The bathroom door which opened to the inside toward the right was partially ajar. Mrs. Traub, standing and bending slightly over, was flushing the toilet by pressing the white porcelain handle on the flushometer unit when the handle suddenly came off causing her to lose her balance and strike her right shoulder against the bathroom door. As a result of the impact Mrs. Traub fractured her right scapula.

 Prior to the accident Mrs. Traub had flushed the toilet many times and apart from a slight stiffness in the mechanism it seemed to work satisfactorily. Not surprisingly, Mrs. Traub herself was the only witness to the accident. She reported the accident to the ship. The flushometer handle was found lying on the floor of the bathroom when the ship's personnel arrived.

 According to the deposition of Koorn, the ship's coppersmith or plumber, read in evidence by defendant, Koorn replaced the handle of the flushometer in Mrs. Traub's bathroom after the accident. He had done this in other bathrooms on numerous occasions but had not worked on the toilet in Cabin A-192. During the course of a voyage Koorn would customarily clean 20 or 25 flushometer handles and replace perhaps two or three. The cabin stewards had the duty of testing the toilet flushing devices daily. Apart from this there was no evidence that Mrs. Traub's toilet had been so tested.

 Defendant did not produce the handle which had come off at the time of the accident or the flushometer which had been in Mrs. Traub's bathroom. Instead it produced what it claimed to be a representative flushometer unit used in all S. S. Rotterdam bathrooms. *fn1" Quite surprisingly while I was examining this unit during my study of the case the porcelain handle *fn2" used to activate the flushing mechanism came off the shaft to which it was attached. After being put back on the shaft and secured by a small screw going through its outside end it constantly became loosened and then came off if it was turned several times in a counter-clockwise direction. This appears to be because the screw cap which secures the handle to the threaded shaft firmly attached to the body of the unit does not engage more than a few threads on the 2 3/4" shaft. Therefore the porcelain handle becomes loose and slides off easily unless the screw cap is kept firmly tightened. And even when the cap is screwed tightly in place it will work free when the handle is turned, and this result is to be expected from the frequent pressures and stresses to which such a device is subjected. Thus defendant's own exhibit demonstrates the probable cause of Mrs. Traub's accident.


 Despite references to Dutch law the parties apparently agree that general maritime law controls here. Plaintiff's reference to fragmentary excerpts from the Dutch civil *fn3" and commercial codes *fn4" and the defendant's countervailing references "for the purpose of convincing the court that plaintiff's evidence of Dutch law is entirely insufficient and that it would be quite inappropriate for the court to undertake an independent effort to cure that deficiency" *fn5" only tend to confirm what the parties themselves concede - that in any event Dutch law with respect to liability in this case is not substantially different from general maritime law.

 This is a case like Mayer v. Zim Israel Nav. Co., 289 F.2d 562, 563-64 n. 1 (2d Cir. 1960), where it is unnecessary to resolve the choice-of-law issue. I will therefore apply general maritime law. See Alpert v. Zim Lines, 370 F.2d 115 (2d Cir. 1966) (Feinberg, J.); Moore v. American Scantic Line, Inc., 121 F.2d 767 (2d Cir. 1941); Maibrunn v. Hamburg-American S.S. Co., 77 F.2d 304 (2d Cir. 1935) (L. Hand, J.); cf. Siegelman v. Cunard White Star, 221 F.2d 189, 192 (2d Cir. 1955); Jansson v. Swedish American Line, 185 F.2d 212, 218, 30 A.L.R.2d 1385 (1st Cir. 1950); Caruso v. Italian Line, 184 F. Supp. 862 (S.D.N.Y. 1960).


 Despite the fact that defendant was the one who removed the case from the New York Supreme Court to this court, at the close of the trial it moved to dismiss because plaintiff has not shown the requisite jurisdictional amount but has since conceded that its motion is without merit. The motion is denied.

 It should be said that such a contention lies ill in the mouth of the removing party. Moreover, in her complaint in the state court plaintiff sought $50,000 damages, and there is nothing to suggest that this claim was not made in good faith. Jurisdiction would be retained even if the case had been originally commenced in this court. Deutsch v. Hewes Street Realty Corp., 359 F.2d 96 (2d Cir. 1965). In any event, where removal is involved "[there] is a strong presumption that the plaintiff has not claimed a large amount in order to confer jurisdiction on a federal court or that the parties have colluded to that end." Saint Paul Mercury Indemnity Co. v. ...

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