Appeal from the District Court of the United States for the District of New Jersey; Guy L. Fake, Judge.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
This is an appeal from a decree in favor of the respondent in a suit in admiralty commenced by a libel in personam to recover damages for personal injuries sustained by the libelant. The facts are sufficiently set out in the memorandum opinion by Judge Fake, quoted in full in a note at the end of the opinion.
The libelant elected to sue in admiralty although, as a seaman, he might have sued at law under authority of the Jones Act (46 USCA § 688). That he made this election is apparent from statements made at bar by his proctor: "We do not proceed under the Jones Act. We proceed upon the theory that this is a tort cognizable in this court in admiralty." And again: "We are not proceeding under the Jones Act."
Later the following discussion took place:
"The Court: And your contention is that you are not suing under the provisions of the Jones Act?
"Mr. Kelley: Yes, your Honor, we did in the State court attempt to get the benefit of the Jones Act. We went in saying Rogosich, a carpenter, was a seaman.
"The Court: In other words, you elected where you had an election, not to proceed under the terms of the Jones Act, however beneficent they may have been for your cause of action.
"Mr. Kelley: That is why we came in here.
"The Court: But you come here on the basic admiralty jurisdiction over maritime torts.
"Mr. Kelley: Yes, your Honor.
"The Court: I have not, of course, read your libel. Is there anything in your libel which would indicate that you are here under the Jones Act?
"Mr. Kelley: No, your Honor, there is no reference in there to any legislation whatsoever. We allege negligence which ...