Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
MULLEN v. EASTERN TRANSP. CO.
April 19, 1938
EASTERN TRANSP. CO.
The opinion of the court was delivered by: DICKINSON
We granted leave to submit a supplemental Brief. This has now been submitted.
This controversy grows out of two characteristics of the professional mind. One is its conservatism. Counsel here are Proctors in Admiralty. In consequence the case is as it is viewed by Admiralty lawyers. The other is the love for fine distinctions. All lawyers are metaphysicians.
The plaintiff is a seaman. He was a member of the crew of defendant's vessel. He was physically hurt in the course of his employment in the act of going from the ship to the adjoining dock. The Statement of Claim avers the action to have been brought under the Jones Act, 46 U.S.C.A. § 688. The demurrer is based upon the proposition that the cause of action is not maritime. It is however one of negligence.
A person injured through the negligence of another may have a cause of action. This is true whether he is a seaman or belongs to any other calling. The law provides him with a right of action. We however have two laws. One is the Admiralty Law or Law Maritime; the other the law of the State governing the occurrence. An Admiralty Court can give no redress for the wrong done unless the tort is a maritime tort. If the aggrieved party submits his cause to an Admiralty Court a question of jurisdiction may be raised. This is determined by the nature of the tort of which complaint is made. The question is that so long and passionately fought over between the Admiralty Court and the so called Common Law Courts in which the irascible Lord Coke stood out so valiantly against the assertion of jurisdiction by the Admiralty Courts. The test of jurisdiction there was a somewhat different test but essentially the question was one of jurisdictional power. There was a personal element in the old controversy and it was conducted, as we have said, with much heat. With us the personal element has dropped out of the controversy as the Judges of the two Courts are the same but the controversy remains one of jurisdiction. Hence counsel, who are Proctors and not Common Law practitioners, have discussed the question as if it were the old question of jurisdiction and have cited cases bearing upon this.
We do not see that the fact that the Statement of Claim avers that the action is brought under the Jones Act affects the question. It has been brought at law and the question is whether it is properly so brought. If the tort is a maritime tort the averments are pertinent. If it is not a maritime tort they may be treated as surplusage.
We refuse to answer the question of law raised in favor of the defendant, with leave to it to file an affidavit of defense, within fifteen days.
© 1992-2004 VersusLaw ...
Buy This Entire Record For