The opinion of the court was delivered by: DUSEN
Defendant applied at the pre-trial conference to have this action dismissed for lack of jurisdiction over the subject matter (see paragraph 2 of Pre-Trial Report, being Document 20). Argument on the point was presented by counsel in the late afternoon of October 4, 1963.
Plaintiff, an alien employed as a longshoreman and domiciled in Pennsylvania, has brought this civil action against the defendant shipowner, also an alien. Plaintiff bases jurisdiction on 28 U.S.C.A. § 1350 (hereinafter referred to as ' § 1350'), claiming that that section will support his cause of action grounded upon the unseaworthiness of defendant's vessel and defendant's negligence.
28 U.S.C.A. § 1350 provides:
'The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.'
(I) Is unseaworthiness a tort only, committed in violation of the law of nations
or a treaty of the United States; and
(II) is the negligence alleged a tort only, committed in violation of the law of nations or a treaty of the United States?
I. The Doctrine of Unseaworthiness
The authorities submitted by counsel on whether unseaworthiness is a 'tort only' are not conclusive, since the doctrine has many characteristics usually associated with contracts,
even though, historically, the action was brought as a tort action.
For the purpose of deciding the questions presented in this application, the court will proceed on the assumption that unseaworthiness is a 'tort only,' which leads to the next question, i.e., whether the 'tort only' was 'committed in violation of the law of nations or a treaty of the United States.'
Justice Stewart traced the history of unseaworthiness in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960). After discussing the ancient rules of the sea relating to the rights of seafaring men, such as the Laws of Oleron and the Laws of Wisbuy, and their interpretation by the American courts, he continued at pp. 544-546 of 362 U.S., at pp. 930-931 of 80 S. Ct., 4 L. Ed. 2d 941:
'The earliest mention of unseaworthiness in American judicial opinions appears in cases in which mariners were suing for their wages. They were required to prove the unseaworthiness of the vessel to excuse their desertion or misconduct which otherwise would result in a forfeiture of their right to wages. * * * The other route through which the concept of unseaworthiness found its way into the maritime law was via the rules covering marine insurance and the carriage of goods by sea. * * *
'Not until the late nineteenth century did there develop in American admiralty courts the doctrine that seamen had a right to recover for personal injuries beyond maintenance and cure. During that period it became generally accepted that a shipowner was liable to a mariner injured in the service of a ship as a consequence of the owner's failure to exercise due diligence. * * *
'This was the historical background behind Mr. Justice Brown's much quoted second proposition in The Osceola, 189 U.S. 158, 175 (23 S. Ct. 483, 487, 47 L. Ed. 760): 'That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship.' In support of this proposition the Court's opinion noted that 'it will be observed in these cases that a departure has been made from the Continental codes in allowing an indemnity beyond the expense of maintenance and cure in cases arising from unseaworthiness. This departure originated in England in the Merchants' Shipping Act of 1876 * * * and in this country, in a general consensus of opinion among the Circuit and District Courts, that an exception should be made from the general principle before obtaining, in favor of seamen suffering injury through the unseaworthiness of the vessel. We are not disposed to disturb so wholesome a doctrine by any contrary decision of our own.'
In light of this history of the doctrine of unseaworthiness, it is apparent that this doctrine was judicially created
by American judges who were disposed to adopt principles employed in our common law and apply them to accidents and occurrences transpiring in places where, traditionally, only admiralty remedies were available.
These decisions, influenced, perhaps, by the Merchants' Shipping Act of 1876
and by changing American social values,
gave the injured seaman much more than the ...