and absolute duty imposed by law'.
Again, counsel for plaintiff has overlooked the fact that this action was brought by the personal representative to recover damages for the death of the seaman and that it is not enough to show that the ship was unseaworthy but it must appear that the death was caused by negligence chargeable in law to the employer.
It is true that under the general maritime law there is a duty of the ship owners to their seamen to see that their ship is seaworthy and her equipment in safe condition for use when she starts on a voyage which duty is a personal one, responsibility for which it cannot escape by delegating its performance to another. The duty to use reasonable care in keeping a ship and her appliances in safe condition is a continuing duty resting on the owners during the voyage, and is nondelegable. It is an absolute duty for the breach of which without regard to negligence the injured seaman may recover from the owners, for the general maritime law makes the owners liable for such losses. However, the doctrine of unseaworthiness as announced by the United States Supreme Court in the case of The Oscela, 189 U.S. 158, 23 S. Ct. 483, 17 L. Ed. 760, relates only to the seaman's own right to recover for personal injuries occasioned by the unseaworthiness of the vessel and confers no right whatever upon his personal representative to recover indemnity for his death. Lindgren v. United States, 281 U.S. 38, 50 S. Ct. 207, 74 L. Ed. 686. Until the passage of the Jones Act, there was no Federal right of action for the wrongful death of a seaman caused by negligence.
The gist or gravamen of an action under the Jones Act is negligence. In order to maintain an action under the Act, the seaman or his personal representative must allege and prove negligence, for unless the seaman or his personal representative can establish negligence of the owners of the vessel or her officers, agents or employees, no liability exists. The negligence of the owners of the vessel may consist in the failure to supply and maintain a seaworthy vessel, properly equipped and manned or the negligence of the master or members of the crew, as provided in the Act.
The charge of the Court with reference to the duty of the defendant to furnish a seaworthy vessel was proper and adequate in this case.
Reason 7 is as follows:
'Counsel for the defendant improperly prejudiced plaintiff's claim in his closing speech to the jury by advising the jury that the plaintiff had a right to proceed under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.A. § 901 et seq.), when, in actual fact, there is not and was not such a right.'
The remarks by counsel for the defendant are as follows:
'Mr. Comber: Ladies and gentlemen of the jury, this decedent, of course, was an employee of ours, and as an employee of ours he unquestionably or those who survived him have a right under the law to be taken care of as the law provides, and that is first under the Longshoremen and Harbor Workers' Compensation Act any of his dependents get what the law provides under that Act. That is not before us. That is a very definite thing with which I presume you are either familiar federally or as a result of the state.
'The Jones Act is an act which goes forth and it says as and if this man's death was the result of negligence on the part of the defendant company, and someone has a reasonable right to expect a pecuniary return from the continuance of that man's life, they are entitled to recover the present worth of that which they had a right to reasonably expect as and if the man had continued to live and was able to work.
'That is what it is, solely. That is our obligation, first, to our employee positively, and the second conditionally.
'I might say right here and now that we are not in here seeking to deprive those who are entitled to anything properly under this from anything that they are rightfully entitled to. We are here primarily because we feel confidently that we are not responsible for this accident on this basis of negligence, and without negligence we owe them nothing; they are relegated to the Longshoremen and Harbor Workers' Compensation Act, and if qualified under that, get it automatically, you might say.
'Bear in mind this unfortunate accident does not deprive him of any of the rights they might have, or anybody he leaves behind him that qualifies under the Longshoremen and Harbor Workers' Compensation Act. That follows. It is just this extraordinary stuff that they are trying to come in and get, and therefore they are not entitled to under the Jones Act.'
Counsel for plaintiff did not object to the remarks at the time they were made nor at any other time until after the verdict was rendered by the jury. The remarks by counsel for the defendant were an attempt to inform the jury as to the law which was not his proper function. That should properly have been left to the judge. The Court in charging the jury fully informed the jurors as to the law under which the action was brought and as to that which they should find from the evidence before they could properly find a verdict for the plaintiff. The remarks of counsel for defendant were not prejudicial in the slightest degree. A continued discussion of those remarks by counsel and by the judge in the hearing of the jury might have caused serious confusion in the minds of the jurors. The remarks by the Court in its charge left no doubt in the minds of the jurors as to the fact that the present action was under the Jones Act and that no other act was involved or to be considered by them.
The jury was not convinced by the evidence that the negligence of the defendant, or its officers, agents or employees, was the cause of the accident, but the jury was apparently convinced by the evidence that the negligence of the decedent was the sole cause of the accident.
It is the conclusion of this Court that the record shows no error in the trial that was prejudicial to or affected the substantial rights of the plaintiff. The verdict was not contrary to the law, or the weight of the evidence. Plaintiff received a fair trial and the verdict was supported by legal evidence. Plaintiff has failed to advance any valid reasons why a new trial should be granted, and, therefore, plaintiff's motion for a new trial should be denied.
An appropriate order will be filed herewith.