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Frueh v. Kupper

Decided: February 13, 1959.

ROMAN FRUEH, PLAINTIFF,
v.
THEODORE KUPPER, DEFENDANT AND THIRD PARTY PLAINTIFF, V. WALTER FRUEH, THIRD-PARTY DEFENDANT



Schneider, J.c.c. (temporarily assigned).

Schneider

[54 NJSuper Page 298] The third-party defendant brings a motion to dismiss the third-party

joint tortfeasor's suit and for summary judgment in his favor.

Plaintiff instituted a suit against defendant, contending that on August 30, 1956 defendant negligently operated his motor boat along the westerly shore of Normandy Beach in Barnegat Bay, New Jersey, and struck plaintiff with the boat. Plaintiff was standing in the water at the time and defendant was towing his daughter who was on water skis. Plaintiff had previously been towed by another boat, operated by his brother, and had also been on water skis. He had fallen off the skis and was awaiting his brother to pick him up.

Defendant instituted a third-party suit against plaintiff's brother under the Joint Tortfeasors Act, contending negligence on the part of the operator of the other boat. This third-party defendant contends in his answer and in the pretrial order that the waters of Barnegat Bay are navigable waters of the United States and that jurisdiction in this case is either in the federal court or at least is governed by federal law and not state law. He contends that the New Jersey Tortfeasors Contribution Act does not apply and that the federal Maritime Law contains a specific prohibition against the allowance of contribution in case of maritime torts where collision of two vehicles is not involved.

The third-party defendant motion for summary judgment is based on the above grounds.

At the hearing the parties agreed that the waters of Barnegat Bay were navigable waters but suit was properly brought in the state court under service in personam.

The first question to be decided is whether the case is to be tried under state law or under federal law with its doctrine of comparative negligence, etc. If the case may be tried under state law, the motion herein would fail because the New Jersey Joint Tortfeasors Act would apply.

If it were determined that the federal law applied, the next question to be decided would be whether a right to equal contribution exists in a case of this kind under federal law. If this existed as a matter of substantive law, then the use of the New Jersey Joint Tortfeasors Act would be

the method used to carry out this substantive right and the motion would fail.

If, however, the case must be tried under federal law and there is no substantive right of contribution under the federal law, then the Joint Tortfeasor Act of New Jersey would not apply and the motion should be granted.

1. We must first determine whether the case should be tried in the state court under federal or state law. The federal court has jurisdiction over maritime cases under the admiralty law. This suit could have been instituted in the federal court and determined under federal law. The accident occurred in navigable waters. Under 28 U.S.C.A. ยง 1333, it is provided that

"The district courts shall have original jurisdiction exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." (Italics mine.)

This section, termed the "saving clause," originally read, "saving to suitors in all cases the right of a common law remedy where the common law is competent to give it."

All sides agree that under this saving clause the suit could be instituted in the state court. See Bono v. Mellor , 5 N.J. Super. 167 (App. Div. 1949) certification denied 4 N.J. 73 (1950).

The parties do not agree that the saving clause requires the case to be tried under federal law. The third-party defendant construes the word "remedy" to mean only the procedure but not the substantive law. Defendant instituting the third-party suit contends that "remedy" means only procedure but not substantive law.

There is no question but that a case tried in the federal court upon diversity of citizenship, for an event occurring in a state for which the suit would normally be in the state court except for diversity of citizenship, must be decided on state substantive law and must be so charged in the federal court. ...


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