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May 24, 1968

Harry G. BALLARD, Plaintiff,

The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

 This is an action at law by a seaman seeking to recover damages for the alleged negligence of defendant, a ship owner, and for the alleged unseaworthiness of its vessel. Plaintiff predicated jurisdiction in this court on "the Admiralty Law as modified by the Jones Act."

 At the commencement of the trial, defendant moved to dismiss the action for the reason that the total damages sought to be recovered does not exceed the jurisdictional amount of $10,000 (exclusive of interest and costs) required by 28 U.S.C. § 1331(a). *fn1" Plaintiff opposed the motion on two grounds: 1) it was tardy; and 2) no jurisdictional amount is required under the Jones Act. 46 U.S.C. § 688. *fn2"

 Prior to the trial, defendant served interrogatories on the plaintiff. Question 3(a) of the interrogatories reads as follows: "State separately and describe fully each injury which plaintiff will claim upon the trial of this action he sustained in the occurrence referred to in the complaint and which of same plaintiff will claim to be permanent." In his answers to the interrogatories, plaintiff replied: "Injury to right great toe nail. Plaintiff will claim minimal disability." In the pretrial order in this case, plaintiff set forth his damage claims as follows: Past loss of earnings $900.00 Pain and Suffering $7,500.00 TOTAL $8,400.00

 The total damages sought in this action at law is, thus, clearly below the jurisdictional minimum prescribed by 1331(a). The question whether an action under the Jones Act, which guarantees a seaman a right to a trial by jury of his negligence claims, must meet the jurisdictional amount prerequisite of 1331(a) does not appear to have been squarely passed upon by either the Court of Appeals for the Circuit or the United States Supreme Court. As a result, two opposing views permeate the reported cases and the treatises on federal jurisdiction. One view holds 1331(a) and its jurisdictional amount applicable to Jones Act actions at law; the other view holds the jurisdictional amount inapplicable to law actions, but the reasons for so holding vary.

 This court holds: 1) lack of jurisdiction may be raised at any time; *fn3" 2) for the reasons set forth below, an action under the Jones Act need not meet the jurisdictional amount requirement of 1331(a).

 In general, to vindicate a maritime tort claim, a seaman might have a choice of five possible remedies. The first one of these is the historic suit in admiralty before the United States District Court sitting without a jury and applying the rules of the maritime law. Swanson v. Marra Bros., 328 U.S. 1, 66 S. Ct. 869, 90 L. Ed. 1045 (1946). Four other remedies afford the seaman a trial by jury. By joining a cause of action for negligence under the Jones Act against his employer with the traditional maritime tort claim of unseaworthiness of the vessel and/or a claim for maintenance and cure, seamen are able to present all of these causes of action to a jury in a federal district court. Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S. Ct. 1646, 10 L. Ed. 2d 720 (1963). If the seaman prefers to obtain a jury trial in the state court, he may proceed, where he is able to do so, under the Jones Act, Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S. Ct. 246, 87 L. Ed. 239 (1942), or under the "saving to suitors" clause. Chelentis v. Luckenbach SS Co., 247 U.S. 372, 38 S. Ct. 501, 62 L. Ed. 1171 (1917). This clause is found in the federal statute conferring on federal district courts exclusive admiralty and maritime jurisdiction but "saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. § 1333(1); Waring v. Clarke, 46 U.S. 441, 461, 12 L. Ed. 226 (1847); Paduano v. Yamashita Kisen Kabushiki Kaisha, 221 F.2d 615 (2d Cir. 1955). Also, a jury trial may be had in the federal district court where there is diversity of citizenship and the seaman can invoke the "saving to suitors" clause. 28 U.S.C. § 1333; Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines, Ltd. and City Line, Ltd. 369 U.S. 355, 82 S. Ct. 780, 7 L. Ed. 2d 798 (1962); Chelentis v. Luckenbach SS Co., supra; Paduano v. Yamashita Kisen Kabushiki Kaisha, supra. Finally, where the vessel is at least 20 tons, "enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between places in different states upon the lakes and navigable waters connecting said lakes, the trial of all issues of fact shall be by jury if either party demands it." 28 U.S.C. § 1873.

 Except for the three instances cited, supra, present jurisdictional doctrine and statutes afford no other avenue for obtaining jury trials of general maritime claims on the law side of a federal district court. This is so because a suit based solely upon the general maritime law does not arise "under the Constitution, laws, or treaties of the United States" and must be heard in admiralty where, traditionally, such claims are heard by the court sitting without a jury. Romero v. International Terminal Operation Co., 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959). Absent diversity of citizenship, the only way to secure a jury trial in the federal courts for general maritime claims is to sue under the Jones Act or 28 U.S.C. § 1873 (where the special conditions are present) and attach the maritime claims as pendent thereto. Romero, supra; Fitzgerald, supra.

 Because a case arises under the law which creates the cause of action, American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 36 S. Ct. 585, 60 L. Ed. 987 (1916) or, alternatively, because a case arises under a law when the determination of the outcome of the case involves the validity, construction, or application of that law, Shulthis v. McDougal, 225 U.S. 561, 32 S. Ct. 704, 56 L. Ed. 1205 (1912), a suit under the Jones Act is properly regarded as one arising under a law of the United States within the intendment of 28 U.S.C. § 1331. Branic v. Wheeling Steel Corp., 152 F.2d 887 (3rd Cir. 1945), cert. denied, 327 U.S. 801, 66 S. Ct. 902, 90 L. Ed. 1026; McCarthy v. American Eastern Corp., 175 F.2d 724 (3rd Cir. 1949), cert. denied, 338 U.S. 868, 70 S. Ct. 144, 94 L. Ed. 532, rehearing denied, 338 U.S. 939, 70 S. Ct. 343, 94 L. Ed. 579. Gilmore and Black, The Law of Admiralty, c. VI, § 6-62, p. 385 (1957).

 In Panama Railroad Co. v. Johnson, 264 U.S. 375, 44 S. Ct. 391, 68 L. Ed. 748 (1924) affirming 289 F. 964 (2d Cir. 1923) where the amount in controversy in that case exceeded the then existing jurisdictional floor, Justice Van Devanter states, explicitly, that an action under the Jones Act arises under a law of the United States and, therefore, falls within the general federal question jurisdiction; but the question whether the jurisdictional amount was a necessary prerequisite was not decided. (at 383).

 Since the federal question jurisdictional statute, 28 U.S.C. § 1331(a), requiries that the amount in controversy exceed $10,000 (exclusive of interests and costs), courts and commentators have gone on to hold, or imply, that damage claims under the Jones Act must exceed the jurisdictional amount when the action is brought on the civil side of the court. Wade v. Rogala, 270 F.2d 280 (3rd Cir. 1959); McCarthy v. American Eastern Co., supra, 175 F.2d at 726-727; Mullen v. Fitz Simons & Connell Dredge & Dock Co., 172 F.2d 601, 603 (7th Cir. 1948), cert. denied, 337 U.S. 959, 69 S. Ct. 1534, 93 L. Ed. 1758 (1949); McCord v. Moore-McCormack Lines, Inc., 242 F. Supp. 493 (S.D.N.Y.1965); Turner v. Wilson, Line of Massachusetts, 142 F. Supp. 264 (D.Mass. 1956), affirmed on other grounds, 242 F.2d 414 (1st Cir. 1957); Rowley v. Sierra S.S. Co., 48 F. Supp. 193, (N.D.Ohio 1942); Sen.Rep. No. 1830, 85th Cong.2d Sess. 1958; U.S.Code Congressional and Administrative News, 1958, pp. 3099, 3103, 3112-13.

 But this line of authority is not uniform and is opposed by other decisions and many of the commentators. *fn4" The basis of the reasoning that no jurisdictional amount is requisite under the Jones Act is founded upon diverse and opposing theories. One view has it that a Jones Act action is a maritime action and that district courts have original jurisdiction of it, regardless of amount, by virtue of the admiralty and maritime jurisdiction, 28 U.S.C. § 1333. McMenamin v. McCormick S.S. Co., 37 F. Supp. 908 (N.D.Cal.1941); see Comments, The Tangled Seine, 57 Yale Law Journal 243, 265 (1947) at footnote 109. This view is given some plausibility by Chief Justice Marshall's holding that the admiralty and maritime jurisdiction is distinct from the federal question jurisdiction, American Ins. Co. et al. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 544, 7 L. Ed. 242, 255 (1828); by the decision in Romero, supra, that admiralty and maritime rights do not arise under the Constitution and laws of the United States; and by the Justice Devanter's rulings in Panama Railroad Co., supra, that Congress has the power "to alter, qualify, or supplement" the general maritime law, at pp. 386, 388, 44 S. Ct. 391, and that the Jones Act in "* * * its origin, environment, and subject-matter shows that it is intended to, and does, bring the rules to which it refers into the maritime law," supra, 264 U.S. at 389, 44 S. Ct. at 395. "True", Justice Van Devanter said, "they are not in so many words made part of that law; but an express declaration is not essential to make them such." 264 U.S. at 389, 44 S. Ct. at 395. Jurisdiction of Jones Act cases are alleged to come under the maritime jurisdiction of the district court and therefore no jurisdictional amount is necessary. 56 Harv.L.Rev. 1161 (1943).

 Supreme Court cases, subsequent to Panama Railroad, supra, fail to state, explicitly, whether jurisdiction under the Jones Act rests under the federal question jurisdiction or the maritime jurisdiction or both. Hart and Wechsler, The Federal Court and the Federal System, (1953) p. 786, suggests a doubt about Jones Act actions arising under § 1331. *fn5" This doubt is further underscored by subsequent Supreme Court cases affirming that the Jones Act rests, in part, upon Congressional authority, pursuant to Article 3, P2, (the admiralty and maritime clause) and Article 1, P8, cl. 18, (the necessary and proper clause) to enact laws pertaining to admiralty and maritime matters. O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S. Ct. 488, 87 L. Ed. 596 (1943) and cases cited therein; Swanson v. Marra Brothers, 328 U.S. 1, 66 S. Ct. 869, 90 L. Ed. 1045 (1946). To sustain the constitutionality of the Jones Act, the Supreme Court has held that a Jones Act action may be brought on the admiralty side of the district court. Panama Railroad, supra, 264 U.S. at 390-391, 44 S. Ct. 391. The fact that it may also be brought on the civil jury side does not argue against the Jones Act arising under the admiralty and maritime jurisdiction because nothing in federal statutory law or in the Constitution forbids jury trials in admiralty cases. Fitzgerald v. United States Lines, supra, 374 U.S. at p. 20, 83 S. Ct. 1646, 10 L. Ed. 2d 720. However, even though the Jones Act was enacted in part pursuant to the admiralty powers conferred by the Constitution, it does not follow, automatically, that the admiralty and maritime jurisdiction conferred by 28 U.S.C. § 1333 contemplates jurisdiction over statutory maritime causes of action. *fn6" See Panama Railroad, supra, and Crowell v. Benson, 285 U.S. 22, 45, 49, 52 S. Ct. 285, 76 L. Ed. 598 (1931), the latter dealing with the Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. See generally, Rupert v. Todd Shipyards Corp., 236 F.2d 559 (9th Cir. 1965). *fn7"

 The difficulties with the above theory have been bypassed by another theory which states that the Jones Act is controlled by 28 U.S.C. § 1331 but that it is excepted from the jurisdictional amount requirement because the Jones Act, itself, grants jurisdiction. *fn8" Moore, Federal Practice (2d ed. 1967), Vol. 5, P38.35(4), p. 282; see The Tangled Seine, 57 Yale L.J. 243, 265-267 (1947). The principal and authoritative argument against this theory is the Supreme Court's consistent holding that the Jones Act provision referring to "jurisdiction" is to be construed ...

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