Before KALODNER, HASTIE and SMITH, Circuit Judges.
This is an appeal from an order dismissing a civil action for personal injuries brought by a seaman under the Jones Act, 46 U.S.C. § 688. The defendants are two corporations which allegedly own and operate the vessel upon which the plaintiff served and was injured. The plaintiff contends that the district court erred in holding that venue was improperly laid in the Western District of Pennsylvania and that attempted personal service upon the defendants within that district was legally ineffective. The plaintiff also contends that the district court abused its discretion in denying his motion to vacate the order of dismissal and to permit such an amendment of the complaint as would transform it into a libel in admiralty.
The pleadings and certain affidavits show without dispute that the plaintiff is a citizen of Tennessee and that the defendants are incorporated and maintain their principal offices in Louisiana and are not licensed to do business in Pennsylvania. At the time of his injury, the plaintiff was serving as a member of the crew of the defendants' vessel, Bayou Barataria. The accident occurred while the vessel was docked in navigable water of the Ohio River at Paducah, Kentucky.
To recover for his injuries, the plaintiff filed in the District Court for the Western District of Pennsylvania both this civil action against the shipowners and a libel in rem against the Bayou Barataria. The libel is not before us. It is still pending in the district court and, we are told, the plaintiff has been unable to find or attach the vessel within that district.
The complaint in the civil action is in three counts. The first seeks recovery for negligent injury under the Jones Act. The second alleges the same facts and makes the same demands, except that recovery is sought on the legal ground that the defendants breached their warranty to maintain a seaworthy vessel. The third count seeks maintenance and cure for the period of the plaintiff's disability following the accident.
We consider first whether venue lies in the Western District of Pennsylvania. In approaching that issue, we observe that both the negligence count and the unseaworthiness count seek the same damages for a single injury. Only the legal theory of liability differs. Of such a situation the Supreme Court has said that "whether or not the seaman's injuries were occasioned by the unseaworthiness of the vessel or by the negligence of the master or members of the crew, or both combined, there is but a single wrongful invasion of his primary right of bodily safety and but a single legal wrong, Baltimore S.S.Co. v. Phillips, supra, [1927, 274 U.S. 316] 321, [47 S. Ct. 600, 71 L. Ed. 1069], for which he is entitled to but one indemnity by way of compensatory damages." Pacific Steamship Co. v. Peterson, 1928, 278 U.S. 130, 138, 49 S. Ct. 75, 77, 73 L. Ed. 220.
It follows that, while a seaman may plead and go to trial on both theories of liability, he must elect to present his entire cause of action either as a civil action under the Jones Act or as a libel in admiralty. McCarthy v. American Eastern Corp., 3d Cir. 1949, 175 F.2d 724, cert. denied, 338 U.S. 868, 70 S. Ct. 144, 94 L. Ed. 532; Balado v. Lykes Bros. S.S. Co., 2d Cir. 1950, 179 F.2d 943.
Here, the plaintiff elected to file his entire claim as a civil action, pleading particularly that "plaintiff has elected to bring and maintain this suit as an action for damages at law with the right of trial by jury * * *." The right to maintain an action at law for maritime injury was created by the Jones Act. In Brown v. C. D. Mallory & Co., 1941, 122 F.2d 98, this court concluded that the venue provision of the Jones Act is controlling when such a combined negligence and unseaworthiness claim is filed as a civil action, though it is not when the same subject matter is incorporated in a libel in admiralty. Cf. Panama R.R. v. Johnson, 1924, 264 U.S. 375, 44 S. Ct. 391, 68 L. Ed. 748.
In contrast, the count for maintenance and cure does not depend upon the Jones Act, but states a claim long familiar to and adjudicable in admiralty. However, it is now authoritatively held that principles of pendent jurisdiction permit such an admiralty matter to be pleaded and adjudicated with a related Jones Act claim in an action at law, Romero v. International Terminal Operating Co., 1959, 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368, and that the plaintiff may insist upon a jury trial of the entire litigation, Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S. Ct. 1646, 10 L. Ed. 2d 720. Such power to incorporate an admiralty claim in an action at law and to try it in the same manner as the principal civil claim presupposes that the forum is a proper one for the civil claim. If the court finds itself without power to adjudicate the principal claim, incidental power to hear the admiralty claim on the civil side must also be lacking.*fn1
The venue provision of the Jones Act requires that actions be brought in "the court of the district in which the defendant employer resides or in which his principal office is located". 46 U.S.C. § 688. If this were all, this action would clearly be in the wrong district, since it has long been held that, for venue purposes, a corporation "resides" only where it is incorporated. Suttle v. Reich Bros. Construction Co., 1948, 333 U.S. 163, 68 S. Ct. 587, 92 L. Ed. 614.
However, the matter is complicated by the 1948 revision of the section of the Judicial Code entitled "Venue Generally". That section now contains the following subsection:
"(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes." 62 Stat. 935, 28 U.S.C. § 1391(c).
It is argued that in determining where a corporate employer "resides" within the meaning of the Jones Act, a court should apply the general venue statute's 1948 enlargement of the "residence" concept to include any ...