Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Harry E. Kalodner, Judge.
Before BIGGS, MARIS, CLARK, JONES, and GOODRICH, Circuit Judges.
The primary question presented for our determination is whether or not a seaman may maintain an action for personal injuries in admiralty in personam against his employer with foreign attachment and claim the benefits of the jones Act*fn1 in a district in which his employer does not reside and in which its principal office is not located. The respondent-appellee, Swiftarrow Steamship Company, Inc., is a Delaware corporation maintaining its principal office in Delaware. There was no personal service upon any of the respondents.
In the case at bar the libel joins two causes of action: the first is one in personam framed on allegations of the employer's negligence and based upon maritime law as modified by the Jones Act; the second cause of action is an action in rem for maintenance and cure under the old maritime law without reliance upon the Jones Act. We are not concerned with the action in rem upon this appeal. We therefore will deal only with the action in personam.
The respondent-appellee, Swiftarrow Steamship Company, Inc., appeared de bene esse and moved to strike from the libel all claims and allegations related to or founded upon the Jones Act. the court below, sitting en banc, rendered a decision in favor of the respondent, D.C., 34 F.Supp. 541, and entered a decree as soguht by that respondent. The appeal at bar followed.
Under the maritime law, prior to the passage of the Jones Act, a seaman who became ill or was injured in the service of his vessel could recover wages to the end of the voyage and was entitled to maintenance and cure beyond the termination of the voyage. Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L. Ed. 993. If he was injured due to the unseaworthiness of the vessel or by reason of defects in its equipment he could recover damages as well. The Osceola, 189 U.S. 158, 175, 23 S. Ct. 483, 47 L. Ed. 760. In any action for damages brought by the seaman for personal injuries, however, all affirmative defenses such as assumption of risk, the fellow-servant rule or contributory negligence, were available to the employer. By the express terms of the Jones Act, the injured seaman "at his election" could maintain an action at law for damages for personal injury and the affirmative defenses which theretofore had been available to his employer, were abolished. The right of the seaman to maintain an action in admiralty under the Jones Act as distinguished from an action at law was established byh the Supreme Court in Panama R. R. Co. v. Johnson, 264 U.S. 375,44 S. Ct. 391, 68 L. Ed. 748.
Before, as after the passage of the Jones Act the seaman could enforde his substantive rights under the maritime law by a libel in admiralty or by any available common law remedy.*fn2 Garcia y Leon v. Galceran, 11 Wall. 185, 20 L. Ed. 74. Assuming the existence of a maritime cause of action, no limitation was imposed upon the right of the injured seaman to maintain a libel in admiralty in a suit in personam. Workman v. City of New York, 179 U.S. 552, 21 S. Ct. 212, 45 L. Ed. 314. The seaman might obtain service in admiralty in a suit in personam against an employer not residing within the district or maintaining his principal office therein by attaching the property of the employer found within the district. Atkins v. The Fiber Disintegrating Co., 18 Wall. 272, 21 L. Ed. 841. His right to pursue such a course was so ancient as to antedate rules of court. In re Devoe Manufacturing Co., Petitioner, 108 U.S. 401, 2 S. Ct. 894, 27 L. Ed. 764; Manro v. Almeida, 10 Wheat. 473, 490, 6 L. Ed. 369, and Rosasco v. Thompson, D.C., 242 F. 527. In fact, the seaman could enforce his rights in personam against the owner and in rem against the vessel in the same suit as he has attempted to do in the case at bar. Brown v. Lull, Fed. Cas. No. 2,018, 2 Summ. 443; Sheppard v. Taylor, 5 Pet. 675, 30 U.S. 675, 8 L. Ed. 269; Cutler v. Rae, 7 How. 729, 48 U.S. 729, 8 How. 615 Appx., 12 L. Ed. 890, 1221.
What was the effect of the Jones Act upon the prior law? In effect it created a new cause of action at law*fn3 (as distinguished from admiralty) in the seaman for personal injuries arising by reason of the employer's negligence as distinguished from the causes of action of ancient origin which arose from defective equipment or an unseaworthy vessel. See the Act of April 22, 1908, c. 149, § 1, 35 Stat. 65, 45 U.S.C.A. § 51, the Railway Employers Liability Act. But, and this is the important thing in the case at bar, the Jones Act was engrafted bodily upon the old maritime law. As Mr. Justice Van Devanter stated in Panama R. R. Co. v. Johnson, supra, 264 U.S. page 388, 44 S. Ct. page 394, 68 L. Ed. 748, "Rightly understood, the statute [Section 20] neither withdraws injuries to seamen from the reach and operation of the maritime law, nor enables the seaman to do so. On the contrary, it brings into that law new rules drawn from another system and extends to injured seamen a right to invoke, at their election, either the relief accorded by the old rules or that provided by the new rules. The election is between alternatives accorded by the maritime law as modified, and not between that law and some nonmaritime system." While in effect a new cause of between that law and some nonmaritime system." While in effect a new cause of action (or, at least a cause of action to which the employer's old defenses of the fellow-servant rule, assumption of risk and contributory negligence were no longer available to him) was given to the injured seaman by the Jones Act upon the law side of the court as distinguished from the admiralty side, in admiralty "new rules drawn from another system" were simply superimposed by the Jones Act upon existing admiralty law. The election between alternatives accorded to the injured seaman referred to by Mr. Justice Van Devanter is a choice between the remedies afforded him by the old maritime law and the remedy granted him by the Jones Act within the framework of admiralty law. In short, the right of a seaman to proceed under the Jones Act without trial by jury is a right to proceed under an existing, modified system of maritime law.
We come now to the interpretation and application of the venue provisions of Section 20 to the case at bar. Panama R.R. Co. v. Johnson, supra, indicated that where the benefits of the Jones Act are invoked by an injured seaman in an action on the law side of a district court, the venue provisions of Section 20 are applicable; that is to say, the suit must be brought in the district in which the employer resides or has its principal office unless the respondent waives the personal privilege accorded to it by the venue provisions. The indication thus given was followed without question.*fn4 It will be borne in mind of course that the action in the Panama R.R. case was upon the law side of the district court and was not in admiralty. Where the injured seaman, however, attempted to gain the benefits of the Jones Act upon the admiralty side of the court the venue provisions of Section 20 were applied or not applied with a startling lack of unanimity. In the Eastern District of Pennsylvania it was held until the decision which we are now reviewing, that the benefits of the Jones Act were available to seamen in an action in personam in admiralty though the defendant neither resided in or had his principal place of business in the district;*fn5 in other words, that the venue provisions of the Jones Act apply only to suits at law in the federal courts and had no application to suits brought in admiralty. Similar views were expressed in other jurisdictions.*fn6 The opposite view was stated at least three times.*fn7 It should be pointed out, however, that in none of the cases cited in notes 5, 6 and 7was a writ of foreign attachment issued to compel the appearance of the respondent. No great light is thrown upon this question by an examination of the legislative history of the Jones Act.*fn8
The decision of the Supreme Court in Panama R.R. Co. v. Johnson, supra, extended the scope of Section 20 to give an injured seaman an action upon the admiralty side of a district court. In the cited case the defendant urged two grounds for reversal. The first was that the District Court of the Eastern District of New York had no jurisdiction because the defendant did not have its principal office in that district. The Supreme Court held that the defendant had waived the venue requirement. The second argument was that the Jones Act was unconstitutional. The Supreme Court found no merit in this contention, Mr. Justice Van Devanter stating, 264 U.S. page 391, 44 S. Ct. page 395, 68 L. Ed. 748, " * * * the statute leaves the injured seaman free under the general law - sections 24 (par. 3) and 256 (par. 3) of the Judicial Code [28 U.S.C.A. §§ 41(3), 371, subd. 3] - to assert his right of ction under the new rules [i. e., the Jones Act] on the admiralty side of the court. On that side the issues will be tried by the court, but if he sues on the commonlaw side there will be a right of trial by jury. So construed, the statute does not encroach on the admiralty jurisdiction intended by the Constitution, but permits that jurisdiction to be invoked and exercised as it has been from the beginning." In short, the Supreme Court held that the advantages of the Jones Act were available to a seaman on the admiralty side of the district court and that this jurisdiction could be invoked as from the beginning. Jurisdiction of a district court in admiralty could always be invoked wherever the litigation involved injuries to a seaman at sea. As to venue in a particular district court, under the old admiralty practice, as evidenced by the Supreme Court Admiralty Rule 2, 267 F. vii; 28 U.S.C.A. following section 723, if the respondent was not found within the reach of the court but had property within the jurisdiction, a proceeding in personam in admiralty could be begun against him by a writ of foreign attachment. In other words, venue in admiralty was not dependent upon the presence of the respondent in person or upon the maintenance of a principal office within a particular district but could be invoked by reason of the presence of property of the respondent within the district. McGahern v. Koppers Coal Co., 3 Cir., 108 F.2d 652; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 2 Cir., 31 F.2d 265; Rosasco v. Thompson, D.C., 242 F. 527.
Are the substantive rights granted seamen by Section 20 sobound up with the venue provisions of the section as to be indivisible? Assuming that it was the intention of Congress, as indicated by the legislative history of the section that all actions at law brought under the Jones Act should be under the court of the district in which the defendant employer resides or in which his principal office is located, must we conclude that Congress intended the venue provisions to apply to all actions brought under the Jones Act including admiralty actions? The respondents strongly urge that we must. They say that the phrase "such actions" appearing in the second sentence of Section 20 which refers to venue must be given the same meaning as the similar phrase in the first sentence of the section which the Supreme Court in the Panama R.R. case held referred to "the object of the suit rather than the jurisdiction in which it is bourght", and hence applied to suits in admiralty as well as at law. We think, however, that the phrase "such actions" in the venue sentence does not have this objective meaning but refers to the "action for damages at law" in the courts of the United States to which the section expressly refers. It is one thing to hold, as the Supreme Court did in the Panama R.R. case, that Congress must have intended to extend by implication into the substantive law of admiralty the right of action at law which the section confers upon seamen, when such extension may be necessary to overcome a constitutional objection to the right of action conferred at law. It is quite another thing to impute to Congress the intention by implication to import into the admiralty procedure a venue restriction which under the express language of the section applies only to law actions, and the implied extension of which to admiralty is neither necessary to sustain its validity at law nor in harmony with the historic venue of courts of admiralty. We are fortified in our conclusion by the decision in Bainbridge v. Merchants & Miners Transportation Co., 287 U.S. 278, 53 S. Ct. 159, 77 L. Ed. 302, in which the Supreme Court held that the venue provisions of Section 20 did not apply to a suit brought under the section in a state court, thus in effect holding that the venue provisions of the Jones Act could be divided out of and set apart from the substantive rights given to the injured seaman. The Supreme Court gave the injured stewardess, suing at law in a Court of Common Pleas of Philadelphia County, Pennsylvania, a right to recover under the Jones Act and permitted the local statutes to determine the question of venue. The fact that the Jones Act incorporates and bases its remedy upon the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C.A. § 51 et seq., which in turn expressly provides that the state court shall have concurrent jurisdiction in all cases arising under the employers' Liability Act, 36 Stat. 291, 45U.S.C.A. § 56, does not seem to us to subtract from the force of this conclusion. We conclude that there should not be read into Section 20 of the Act of 1915, as amended by the Jones Act, an implied repeal, effective only as to those suite in admiralty which are brought under that section, of the process of foreign attachment in suits in personam so well known to and established in the maritime law.*fn9
The venue restriction contained in the second sentence of Section 20 when applied to actions at law is in consonance with the existing venue provisions in actions at law, namely that such actions must be brought in the district in which the defendant is an inhabitant.*fn10 That very venue restriction if brought into the law of admiralty would be wholly out of harmony with the rules of venue always heretofore applied in admiralty, namely, that a suit in personam may be brought in any district within which process can be served upon the respondent or in which his property or credits can be attached,*fn11 and would thus greatly restrict the venue of courts of admiralty. We think that Congress did not have such a result in mind when it passed the Jones Act. Accordingly we hold that an action in personam in admiralty under the Jones Act may be admiralty under the Jones Act may be commenced and maintained by the injured seaman in a district in which the defendant employer does not reside and in which its principal office is not located.
The respondents further contend, however, citing Plamals v. The Pinar Del Rio, 277 U.S. 151, 48 S. Ct. 457, 72 L. Ed. 827, that since the Jones Act imposes only prsonal liability, its benefits cannot be asserted in a suit in which appearance is compelled by attaching a ship which is made liable to answer the judgment if one is procured. That the cited case holds that a seaman does not have an action under Section 20 in admiralty in rem against a vessel, is indubitable, but we are unable to see the cogency of an argument which asserts that a proceeding in personam begun by foreign attachment against a vessel is the equivalent of a suit in rem against that vessel. The suit at bar is no more a proceeding in rem than would be an action brought in a state court against a nonresident debtor in which it was sought to compel appearance by seizing the debtor's property within the state by foreign attachment.*fn12 Since the injured seaman has the right to bring an action in personam in admiralty invoking the benefits of the Jones Act in a district where his employer neither resides nor has his principal office, he has the right to advance ...