Before KALODNER and FORMAN, Circuit Judges, and ROSENBERG, District Judge.
Is negligent breach of a duty imposed by law to furnish medical care to an injured seaman an "accident" within the meaning of the Pennsylvania Non-Resident Vessel Owners' Act*fn1 which provides for service of process on a non-resident owner or operator of a vessel by serving the Secretary of the Commonwealth in an action against such owner or operator "arising out of, or by reason of, any accident or collision, occurring within the waters of the Commonwealth in which such vessel is involved."
The District Court answered the question in the negative. The issue is novel in that the precise question has never been decided by the appellate courts of Pennsylvania nor any of its inferior courts as far as our research and that of counsel has disclosed. That being so we are required to consider such approach to the problem as may be indicated by Pennsylvania cases in the general field and to resort to general applicable principles, if necessary, to reach a decision consistent with Pennsylvania law. In sum, it is incumbent on us to make our own determination of what the Pennsylvania Supreme Court would probably rule in interpreting the word "accident" as used in the Pennsylvania Non-Resident Vessel Owners' Act ("Pennsylvania Act").
The plaintiff brought a civil action against the defendant in the District Court of the Western District of Pennsylvania under the Jones Act*fn2 for negligence and under the general maritime law for unseaworthiness to recover damages for personal injuries sustained by him while employed as a seaman upon a vessel owned and operated by the defendant. The plaintiff averred in the complaint that he sustained injuries to his hand, arm and shoulder by reason of the negligent navigation of the vessel while it was bound up the Ohio River on a voyage from Point Pleasant, West Virginia, to Pittsburgh, Pennsylvania. The complaint also charged, in substance, that plaintiff's injuries were aggravated by failure to provide him with medical care when the vessel reached Pittsburgh and the refusal of the Master of the vessel to permit him to go ashore for medical treatment. It further appears in the complaint that the plaintiff is a resident and citizen of West Virginia and that the defendant is a citizen of Arkansas with its principal office in that State.
The summons was served on the Secretary of the Commonwealth on the theory that the defendant's vessel had been "involved" in an "accident" when it failed to provide the plaintiff with medical care at Pittsburgh, thereby making applicable the substituted service provisions of the Pennsylvania Act. The defendant's motion to dismiss challenged the service of the summons under the Pennsylvania Act thereby presenting the issue of the jurisdiction of the Court over the defendant's person. The motion to dismiss also raised the issue of lack of venue.
The District Court dismissed the complaint on the jurisdictional ground. It held that the word "accident" did not encompass breach of the maritime obligation to furnish an injured seaman with medical care and that the service of the summons was invalid for that reason under the Pennsylvania Act. 215 F.Supp. 220 (W.D.Pa.1962).
We held in Branic v. Wheeling Steel Corporation, 152 F.2d 887, 888 (3 Cir., 1946) that "the facts establishing jurisdiction over the person * * * must ordinarily be ascertained from the return of the service of the summons." That brings us to the question as to whether the Pennsylvania Act by its provisions was applicable so as to permit the service of the summons on the Secretary of the Commonwealth.
Section 336 of the Pennsylvania Act provides as follows:
"§ 336. Nonresident owner or operator of vessel
"Any nonresident of this Commonwealth, being the owner or operator of any vessel, who shall accept the privilege, extended by the laws of this Commonwealth to nonresident operators and owners, of operating a vessel in the waters of this Commonwealth or of using its port facilities or ports, or both, or any resident of this Commonwealth who shall subsequently become a nonresident of this Commonwealth, being the operator or owner of any vessel in the waters of this Commonwealth, shall, by the operation of a vessel in the waters of the Commonwealth or of using its port facilities or ports, make and constitute the Secretary of the Commonwealth his agent for the service of process in any civil suit or proceeding instituted in the courts of the Commonwealth of Pennsylvania or in the United States Courts in Pennsylvania against such operator or owner of such vessel arising out of, or by reason of, any accident or collision, occurring within the waters of the Commonwealth in which such vessel is involved. 1959, Nov. 10, P.L. 1404, § 1."
Section 337 of the Act provides in relevant part:
"§ 337. Appointment irrevocable; personal representative; service; party
"A nonresident operator, or owner, of a vessel which is involved in an accident or collision within the waters of this Commonwealth, shall be deemed to have consented that the appointment of the Secretary of the Commonwealth as his agent for the service of process, pursuant to the provisions of this act, shall be ...