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Jordine v. Walling

decided: November 10, 1950; As Amended November 27, December, 14, 1950.

JORDINE
v.
WALLING ET AL.



Author: Maris

Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.

MARIS, Circuit Judge.

This is an appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury in a civil action for maintenance and cure. The action was begun by a seaman and prosecuted after his death by his administratrix. The appeal presents two questions of law for our consideration. The first question is whether the district court had jurisdiction, in the absence of diversity of citizenship, to entertain the plaintiff's cause of action for maintenance and cure in a civil action brought and tried under the Federal Rules of Civil Procedure,*fn1 as distinguished from a suit in admiralty brought and tried under the Admiralty Rules and procedure, 28 U.S.C.A. This question we answer in the negative. The second question then arises. It is this. Did the district court nonetheless acquire jurisdiction of the plaintiff's civil action for maintenance and cure because the complaint originally included a count for damages for negligence under the Jones Act, 46 U.S.C.A. ยง 688. This question we also answer in the negative.

Philip Santos, the present plaintiff's decedent, was captain of a barge belonging to the defendants and was injured in connection with the operation of the barge. He brought the civil action here in question claiming in the first count damages under the Jones Act and in the second count maintenance and cure. Both Santos and the defendants were citizens of Pennsylvania. The damages alleged were $100,000 under the Jones Act and $25,000 for maintenance and cure. The first trial resulted in a mistrial. Santos died before the second trial and the present plaintiff, his administratrix, who is also a citizen of Pennsylvania, was substituted. The case was tried in the district court to a jury. At the close of the plaintiff's case the trial judge dismissed the first count for damages under the Jones Act and submitted the second count for maintenance and cure to the jury which rendered a verdict in favor of the plaintiff for $2,883.50 upon which judgment was entered. The defendants thereupon took the appeal now before us, asserting that the district court was without jurisdiction of the cause of action for maintenance and cure upon which the judgment was entered.

The right to maintenance and cure is an ancient right given to seamen by the maritime law.*fn2 The district courts may, therefore, entertain suits for maintenance and cure under the grant of jurisdiction over admiralty and maritime cases given to them by Section 1333 of Title 28 United States Code.*fn3 But the jurisdiction thus conferred is to be exercised according to the procedure in admiralty in which trial is by the district judge without a jury.*fn4 This particular section of Title 28 does not confer jurisdiction upon the district courts to entertain civil actions in which common law remedies are sought for the enforcement of rights arising under the maritime law. The section does, however, save "to suitors in all cases all other remedies to which they are otherwise entitled." This "saving 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 "saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it".*fn5 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.*fn6

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 those rights.*fn7

It does not necessarily follow, however, that the federal district courts may also entertain such actions for they are not courts of general common law jurisdiction but are strictly limited to the jurisdiction conferred upon them by Congress.*fn8 Where, however, there is diversity of citizenship the federal district courts are empowered by Section 1332 of Title 28 United States Code to entertain civil actions in the nature of actions at law both for maritime torts and for maintenance and cure if the amount in controversy in each instance exceeds $3,000.*fn9 Under Section 1332 the district court in the present case would unquestionably have had jurisdiction of the claim for maintenance and cure in the plaintiff's civil action if the requisite diversity of citizenship and amount in controversy were present. However, even if we assume that in the case before us the amount in controversy did exceed $3,000,*fn10 it is clear that there was no diversity of citizenship since both plaintiff and defendants were residents of Pennsylvania. The district court, therefore, did not acquire jurisdiction under Section 1332 and, if jurisdiction exists, we must accordingly look elsewhere for it.

The only other statutory grant of jurisdiction having possible application is Section 1331 of Title 28 United States Code, which confers upon the district courts "original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States." This section implements the provision of Article III, Section 2 of the Constitution that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority". It is settled, however, that cases arising under the "laws * * * of the United States" to which the section refers are only such as grow out of the legislation of Congress and involve the validity, construction or application of acts of Congress.*fn11 They, therefore, do not include cases arising under those general principles of the maritime law*fn12 which have not been modified by Congressional legislation. This is, of course, not to say that the rules of the maritime law may not be altered by Congress*fn13 or that if so altered they will not thereby become "laws * * * of the United States" within the meaning of Section 1331.But the right to maintenance and cure, with which we are here concerned, is a purely maritime right which has not been modified or enlarged by an act or Congress. It follows that a case of maintenance and cure does not arise under the laws of the United States within the meaning of Article III, Section 2, of the Constitution and Section 1331 of Title 28 U.S.C.

Nor does the fact that it was the Constitution which adopted and established the rules of the maritime law as part of the law of the United States*fn14 compel the conclusion that a civil action upon a purely maritime claim is cognizable under the section as one arising under the Constitution itself. For cases arising under the Constitution within the meaning of Article III, Section 2, and of Section 1331 which implements it, are only such cases as really and substantially involve a controversy as to the effect or construction of the Constitution upon the determination of which the result depends.*fn15 Purely maritime cases, such as suits for maintenance and cure, obviously do not involve such a controversy. Moreover cases arising under the Constitution, laws and treaties of the United States are by Article III, Section 2, limited to those arising "in Law and Equity".*fn16 They thus exclude "Cases of admiralty and maritime Jurisdiction", as to which cases jurisdiction is separately conferred by the same section of the Constitution. In thus making separate provision for jurisdiction over cases in law and equity arising under the Constitution, laws and treaties on the one hand, and cases of admiralty and maritime jurisdiction on the other, the Constitution, as Chief Justice Marshall pointed out long ago in American Insurance Co. v. Canter, 1828, 1 Pet. 511, 26 U.S. 511, 545, contemplated distinct classes of cases so that the grant of jurisdiction over one class did not confer jurisdiction over the other. The logic of the great expounder of the Constitution is unanswerable. If admiralty cases were understood to arise under the Constitution or laws of the United States it was wholly unnecessary to mention them separately.

It is true that the merits of a common law action upon a maritime claim, it brought in a state court, are reviewable by the Supreme Court under Section 1257(3) of Title 28 U.S.C. because a federal question is involved.*fn17 But it does not follow that such an action may be brought in a federal district court under Section 1331. For it has been held that a case does not necessarily arise under the Constitution or laws of the United States within the meaning of Section 1331 merely because it involves a federal question, i.e., a "title, right, privilege or immunity * * * specially set up or claimed under the Constitution, treaties or statutes of * * * the United States", which is reviewable under Section 1257(3).*fn18 Thus, while a suit for maintenance and cure involves a "right * * * claimed under the Constitution" in the sense that the Constitution made the ancient maritime law, including its doctrine of maintenance and cure, a part of our national law and is thus within the purview of Section 1257(3), such a suit is not a case which "arises under the Constitution" in the sense of involving a controversy as to the construction of that document and is, therefore, not within the scope of Section 1331.

For largely the same reasons it must be held that such a suit is not one arising under a treaty within the meaning of Section 1331. It is true that the Shipowners' Liability Convention of 1936 which became effective as to the United States and its citizens on October 24, 1936, 54 Stat. 1693, expressly imposes upon shipowners liability for medical care and maintenance of seamen who fall sick or are injured during their period of service. But even if we assume that the treaty was self executing, which may be doubtful, it is apparent from an examination of the terms of Articles 2, 3 and 4 that the liability which it imposed upon shipowners in respect of seamen was no greater than that which the maritime law as enforced in the United States had previously imposed upon American shipowners. The convention in this respect was merely declaratory of the existing American law of maintenance and cure.*fn19 Accordingly an ordinary suit for maintenance and cure, such as the one with which we are here concerned, does not in any sense involve a dispute or controversy as to the effect or construction of the treaty upon the determination of which the result depends.*fn20 So much is this so that the plaintiff in the case before us did not mention the Shipowners' Liability Convention as a basis for the claim for maintenance and cure. This may, of course, have been because the barge here involved was not in fact a registered ocean going barge within the meaning of Article 1 of the Convention. This we cannot decide, however, since the record does not disclose the facts upon which the determination depends. We mention the treaty only to indicate that we have given it consideration in reaching our conclusion.

The plaintiff, conceding that the district court might not have jurisdiction if the action had been brought for maintenance and cure alone, strongly urges that since the court did have jurisdiction under Section 1331 to entertain her count under the Jones Act for damages for the defendants' negligence and since her count for maintenance and cure was joined with that count it the same civil action, the court had jurisdiction of the count for maintenance and cure also. As authority for this proposition she relies on Hurn v. Oursler, 1933, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148.

The damages claimed in the count under the Jones Act exceeded $3,000. The district court, therefore, had jurisdiction of that count under Section 1331 since it did involve the application of a law of the United States, the Jones Act.*fn21 It is the plaintiff's contention that under the doctrine of pendant jurisdiction laid down in Hurn v. Oursler this fact gave the district court jurisdiction of the count for maintenance and cure also. We, therefore, turn to consider the Hurn v. Oursler doctrine.

Hurn v. Oursler involved a suit for an injunction against the performance of a play and for damages and an accounting. The suit was based upon the grounds that the defendants' play infringed a copyrighted play of the plaintiffs and that its production involved unfair competition under the common law of the state. The district court clearly had original and exclusive jurisdiction of the suit under Sections 24, par. 7, and Z56, par. 5, of the Judicial Code of 1911,*fn22 insofar as it was based on infringement of the plaintiffs' copyright.If the suit had been based solely upon unfair competition as declared by the common law of the state, however, the district court would not have had jurisdiction of it in the absence of diversity of citizenship. The district court ...


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