In re East River Towing Company Inc the Edward/Opinion of the Court
This case comes here upon a certificate from the Circuit Court of Appeals for Second Circuit. The facts are few. On August 22, 1922, the Steamtug Edward, belonging to East River Towing Company, Inc., a New York Corporation, sank in New York harbor because of an explosion of her boiler. This caused the death of her captain, Thomas McCaffrey, and his administratrix brought a suit against the Company in the Supreme Court of New York. Thereupon the Company filed a petition for limitation of liability in the District Court of the United States. Rev. Stat., § 4283, et seq. (Comp. St. § 8021 et seq.); Admiralty Rules, 51-55. The District Court made an order under Rule 51 restraining the further prosecution of the suit, but on motion vacated the stay on the ground that the statutes limitating liability were repealed so far as they applied to this case by the Merchant Marine Act, June 5, 1920, c. 250, § 33, 41 Stat. 988, 1007 (Comp. St. Ann. Supp. 1923, § 8337a), under which the suit purports to be brought. 294 F. 686. The questions certified are:

'(1) If an action at law be brought such as is described in      Merchant Marine Act 1920, Sec. 33, can the prosecution      thereof be enjoined by the injunction provided for in      Admiralty Rule 51? (2) Has the Merchant Marine Act 1920, Sec.      33, impliedly repealed the statute regarding limitation of      liability of ship owners so far as claims or suits based on      personal injuries to or death of seamen are concerned?'

Section 33 of the Merchant Marine Act gives an action at law with the right of trial by jury to any seaman suffering personal injury in the course of his employment, or to his personal representative in case of his death from such injury. In the former cases the statutes of the United States modifying or extending the common law right or remedy of railway employees shall apply; in the latter such statutes conferring or regulating the right of action for death of such employees. The argument that this section removes the personal injury or death of seamen from the statutes limiting liability is based upon the growing considerations for the claims of labor; the suggestion that the enlistment of seamen needs to be encouraged equally with the building of ships; and the supposed inconsistency of the right to a jury trial and of some of the statutes incorporated by reference, with the continued application of the older law. Thus the Act of April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. §§ 8657-8665), as amended by the Act of April 5, 1910, c. 143, 36 Stat. 291 (sections 8662, 8665), regulating actions for injuries or death of railroad employees gives concurrent jurisdiction to the courts of the States and of the United States and forbids the removal of cases arising under the act from state courts of competent jurisdiction to any court of the United States. It is argued that a stay of proceedings in the State Court and an adjudication in the District Court would be a removal; which of course it would not be in a technical sense. It is said with more force in The El Mundo (D. C.) 294 F. 577, 579, that when § 33 was passed a seaman at his election already had his action with trial by jury, or a libel in the admiralty, but in either case subject to injunction and a concourse under Rev. Stat. § 4285 (Comp. St. § 8023), and that if the new section left the seaman's election liable to be defeated by the election of the owner to surrender his ship, it was empty words. So the 'election' to 'maintain' an action at law given by section 33 is thought not reconcilable with the possibility that he should be called into admiralty against his will, and his action at law stopped. In re Charles Nelson Co. (D. C.) 294 F. 926, 929, reversed, however, October 27, 1924 (C. C. A.) 1 F.(2d) 774.

We are of opinion that these arguments cannot prevail. We shall not follow the discussions in the briefs as to the origin of the Admiralty rule, a question that cannot be answered with confidence from the historical material now at hand. The English Courts interpreting, we presume, the scope of their own decisions, rather than passing upon historical fact, refer the Admiralty liens to the commercial convenience of security and repundiate the reference of liability to the guilt of the ship. The Tervaete, [1922] P. 259, 270. In this Court the ship has been personified so far as to incur liability in cases where the owner could not be held. The China, 7 Wall. 53, 19 L. Ed. 67. See The Malek Adhel, 2 How. 210, 234, 11 L. Ed. 239; Liverpool, Brazil & River Plate Steam Navigation Co. v. Brooklyn Eastern District Terminal, 251 U.S. 48, 53, 40 S.C.t. 66, 64 L. Ed. 130. It is laid down in The China that:

'Originally, the primary liability was upon the vessel, and      that of the owner was not personal, but merely incidental to      his ownership, from which he was discharged either by the      loss of the vessel or by abandoning it to the creditors.'

If this be true it gives to our statute a distinguished family tree but hardly throws light upon the question now before the Court.

The short point is that the later act determines the extent of the seaman's substantive rights and the measure of damages, Panama R. R. Co. v. Johnson, 264 U.S. 375, 391, 44 S.C.t. 391, 68 L. Ed. 748; the earlier one, from what he shall collect those damages in certain exceptional cases, where those rights have been infringed. If there is no surrender of the ship, which we presume is made relatively rarely, the limited liability statutes play no part. Section 33 has no relation to means of collection but only to principles of liability and the ordinary course of trial. Naturally therefore the limited liability laws are not mentioned in the list of statutes repealed, in section 2 (Comp. St. Ann. Supp. 1923, § 8146 1/4 a), yet there can be no doubt that those laws would apply unless repealed. No sufficient reason is offered for the extraordinary preference over other claims that would be given to seamen were the decree of the District Court sustained. When a preference in respect of seamen's wages was intended it was expressed. Act of June 26, 1884, c. 121, § 18, 23 Stat. 57 (Comp. St. § 8028). On the other hand it has been laid down with reference to this same section 33 that an intention to depart from apolicy deliberately settled in a general statute is not lightly to be assumed. Panama R. R. Co. v. Johnson, 264 U.S. 375, 384, 44 S.C.t. 391, 68 L. Ed. 748. See also Butler v. Boston & Savannah Steamship Co., 130 U.S. 527, 9 S.C.t. 612, 32 L. Ed. 1017. The bankruptcy act might provide a bar to recovery homestead and other exemptions might make collection of a judgment impossible-yet we do not suppose that it would be argued that such laws were overridden by section 33. The wholesale adoption of the law for railroads above mentioned must be taken as an adoption of principles not as a basis for meticulous discovery of conflict with an established system in matters of detail. The choice of a jury trial is given when things take their ordinary course, not to break in upon the settled mode of adjustment when the ship is given up.

We answer these questions as they are asked and assume that the State Court had jurisdiction to try the case under the concluding words of the section: 'Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.' For assuming that it had jurisdiction we have no doubt that the injunction may issue and that the statute regarding limitation of liability of ship owners has not been repealed so far as claims like the present are concerned. We answer

Question (1): Yes.

Question (2): No. 

Notes