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SUMMERS v. SKIBS A/S MYKEN

June 10, 1960

Elijah SUMMERS
v.
SKIBS A/S MYKEN



The opinion of the court was delivered by: LORD

On December 22, 1958, Elijah Summers, a longshoreman, was injured seriously aboard the defendant's motor ship Myken, as a result of the alleged unseaworthiness of that vessel and the negligence of its owner. Suit was instituted on August 25, 1959. On February 2, 1960, the plaintiff purported to make service upon the defendant under the provisions of the Pennsylvania Nonresident Vessel Owners Act, which had been approved November 10, 1959.

Defendant has moved to set aside the purported service for the following reasons:

 (1) that the Pennsylvania statute is effective only with respect to causes of action arising subsequent to its date of enactment;

 (2) that even if it were the intention of the legislature to apply the statute retroactively, such application would be a violation of the constitutional guarantees of due process and protection against ex post facto laws; and

 (3) that the nonresident vessel owners act is unconstitutional as an unreasonable burden upon interstate and foreign commerce.

 Resisting the motion, plaintiff concedes on none of these scores, and says to the contrary

 (1) that the Pennsylvania statute is merely procedural and remedial, and thus applicable to pending cases;

 (2) that there is no constitutional barrier to the retroactivity of such statutes; and

 (3) that the nonresident vessel owners act, on principle and authority, is not unconstitutional.

 The relevant portions of the statute (full text in Appendix I) provide that: --

 'Any nonresident * * * owner or operator of any vessel, who shall accept the privilege, extended by the laws of the Commonwealth * * * of operating a vessel in the waters of this Commonwealth or of using its port facilities or ports * * * shall (thereby) 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 * * * Pennsylvania or in the United States Courts in Pennsylvania against such operator or owner * * * arising out of * * * any accident or collision, occurring within the waters of the Commonwealth in which such vessel is involved.' 12 P.S. § 336.

 The wording closely follows that of the Pennsylvania Nonresident Motorist Act, 75 P.S. § 2001 (Appendix II). That act in turn is derived from the Massachusetts protoype act of 1923, St.1923, c. 431, § 2, M.G.L.A. c. 90 §§ 3A, 3B, which was upheld in the celebrated case of Hess v. Pawloski, 1927, 274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091.

 The constitutionality of the Pennsylvania Nonresident Vessel Owners Act is deemed to be in no way involved in the present motion, however. That is for the reason that the statute is deemed by this Court to be not applicable to pending cases, on the authority of an unbroken series of cases under similar (motorists') statutes in various state and federal courts from 1927 to the present (Appendix III). Paraboschi v. Shaw, 1927, 258 Mass. 531, 155 N.E. 445; Guerra De Chapa v. Allen, D.C.S.D.Tex.1954, 119 F.Supp. 129. At least 15 states, from Arkansas to Wisconsin, have considered such statutes and found them not retroactive for a variety of reasons. e.g. Fritchey v. Summar, D.C.W.S.Ark.1949, 86 F.Supp. 391; Zavis v. Warren, D.C.E.D.Wis.1940, 35 F.Supp. 689; Appendix IV.

 The decisions that substituted service statutes partake of substantive law and are not retrospective seem uniform in result regardless of variation in statutes. The same principles, for instance, are applied in South Carolina under a statute (45 St. at Large, pp. 561-563) providing for service upon nonresident directors of domestic corporations. Johnson v. Baldwin, 1949, 214 S.C. 545, 53 S.E.2d 785. And no case has been found which represents a clear cut departure from the foregoing proposition. See Appendix V, discussing Allen v. Superior Ct., Cal.App. 1953, 251 P.2d 358.

 Much was made in argument of the circumstance that the 1929 Pennsylvania Nonresident Motorist Act is introduced by the words 'From and after the passage of this act, any nonresident * * *.' The instant act, plaintiff points out, is not so limited as to date.

 Defendant says the omission of 'from and after' in the recent act is of no significance; that there has intervened, between 1929 and 1959, the Pennsylvania Statutory Construction Act of 1937: --

 'No law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature.' 46 P.S. § 556. (Appendix VI.)

 In the view of this Court, the 1937 Act is merely confirmatory of a basic principle of law, in its present application, at least. United States v. Heth, 1806, 3 Cranch 399, 413, 7 U.S. 399, 413, 2 L. Ed. 479, 483; Appendix VI. It therefore seems unnecessary to speculate upon the possible bearing of the Statutory Construction Act.

 Somewhat more specific, however, is the Pennsylvania doctrine that legislative rules as to service of process are in derogation of common law and must be strictly construed. McCall v. Gates, 1946, 354 Pa. 158, 47 A.2d 211; Appendix VIII.

 It is familiar law that constitutional questions are not to be anticipated. Peters v. Hobby, 1955, 349 U.S. 331, 338, 75 S. Ct. 790, 99 L. Ed. 1129; Appendix IX. Since the purported service in the instant case is deemed not authorized by the terms of the statute, there is at any rate no present occasion to consider its constitutionality.

 It should be mentioned, however, that the case denying retroactivity to the nonresident motorist acts reecho the warning that to hold such a statute retroactive would raise grave doubt as to its constitutionality. Guerra De Chapa v. Allen, D.C.S.D.Tex.1954, 119 F.Supp. 129, 131; Appendix X. Indeed, in the case last cited, an amendment to such an act was held prospective despite the very terms of the act whereby it was to be applicable to actions 'now pending or hereafter instituted.'

 Plaintiff has pressed upon us the rule of numerous Pennsylvania cases which hold that procedural statutes are retrospective. e.g. Kuca v. Lehigh Valley Coal Co., 1920, 268 Pa. 163, 110 A. 731. Lest it appear that such authorities are being passed over in cavalier fashion, it is noted here that the same argument appears in virtually every case on the instant question. (Appendices III, IV and V). The crux of the decisions which are pertinent, however, is that the substituted service statutes affect substantive rights. They are thus found to be more than merely procedural or remedial. Paraboschi v. Shaw, 1927, 258 Mass. 531, 155 N.E. 445; Restatement of Conflict of Laws § 84; Appendix XI.

 There are several recent cases which hold to the foregoing principle and nevertheless demonstrate the sort of procedural change which can be made in such statute and which will affect pending cases. Such are the instances where the title or even the office of the state officer who is named as the fictive agent for service of process is changed by amendment. Zavis v. Warren, D.C.E.D.Wis.1940, 35 F.Supp. 689; Appendix XII.

 For the foregoing reasons, the motion of Skibs A/S Myken, defendant, to set aside the attempted service under the Pennsylvania Nonresident Vessel Owners Act is Granted, and it is So Ordered.

 Appendix

 I. Text of Pennsylvania Nonresident Vessel Owners Act

 II. Text of Pennsylvania Nonresident Motorist Act

 III. 'No Retroactivity' Decisions since 1927

 IV. A Variety of Reasons for Such ...


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