Defendant's application to dismiss for lack of jurisdiction must be granted unless this case is transferred to the admiralty docket, since both of these questions must be answered in the negative because the words underlined below are inapplicable to this action:
(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 traditional maintenance and cure given by our early case law
or the ancient codes employed on the Continent and in Great Britain.
From the above history of the doctrine of unseaworthiness, the court concludes that (a) the awarding of damages for injuries occasioned by unseaworthiness of a vessel arose in American courts as a doctrine unique to this country,
and (b) the doctrine does not come from the law of nations nor from any treaty to which the United States is a party.
II. The negligence alleged is not a tort only, committed in violation of the law of nations.
What the law of nations is 'may be ascertained by consulting the works of jurists, writing professedly on public laws; or by the general usage and practice of nations; or by judicial decisions recognising and enforcing that law.'
The court's examination of the phrase 'the law of nations' must consider the words used as part of an 'organic growth.' See Romero v. International Term, Operating Co., 358 U.S. 354, 360, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959).
The judicial decisions recognizing and enforcing 'the law of nations' under § 1350 do not fully explain or define that phrase. At best, the cases arising under this section show only the connotation of 'in violation of the law of nations.' This phrase has been held to include acts such as the unlawful seizure of a vessel and its disposition as a prize,
the seizure of neutral property upon the ship of a belligerent,
unjustified seizure of an alien's property in a foreign country by a United States officer,
failure to accord comity to ships of foreign countries,
and concealment of a child's true nationality coupled with the wrongful inclusion of that child on another's passport.
The other cases arising under this section do not elucidate the meaning of this phrase.
Article I, Section 8, Clause 10, of the Constitution also contains the phrase 'Law of Nations.' Cases discussing this phrase have held the following to be 'Offences against the Law of Nations':
violations of the laws of war,
suppression of slave trade,
acts tending to incriminate, coerce, harass or bring into public disrepute any diplomatic or consular representative of a foreign government,
and counterfeiting notes of foreign countries.
The court's examination of jurists' writings on the subject started with Burlamaqui, who commented:
'There is no room to question the reality and certainty of such a law of nations obligatory to its own nature, and to which nations, or the sovereigns that rule them, ought to submit. For if God, by means of right reason, imposes certain duties between individuals, it is evident he is likewise willing that nations, which are only human societies, should observe the same duties between themselves.'
Kent defined that 'Law of Nations' as 'that code of public instruction which defines the rights and prescribes the duties of nations in their intercourse with each other,'
and continued that it is 'founded on the principle that different nations ought to do each other as much good in peace and as little harm in war as possible without injury to their true interest.'
In succeeding lectures, Kent stated the rights and duties of countries, while at peace and while at war, the rights of belligerents, or neutrals, neutral trade, truces, passports, and, in the last lecture, entitled 'Of Offenses Against the Law of Nations,' listed four offenses under this heading: violation of passports, violation of ambassadors, piracy, and slave trade.
Story traced the development of the law of nations, stating that: 'It first assumed the modest form of commercial usage; it was next promulgated under the more imposing authority of royal ordinances; and finally became by silent adoption a generally connected system founded in the natural convenience and asserted by the commercial nations of Europe.'
Nothing has been found to indicate that negligence, such as is alleged in this action, was in 1789 and succeeding years, or is, customarily treated as a violation of the law of nations.
After consideration of the above authorities, the conclusion of this court is that the phrase 'in violation of the law of nations,' for the purpose of deciding this issue, means, inter alia, at least a violation by one or more individuals of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.
Nothing has been found to indicate that the acts or omissions described as the negligence in this Complaint would be considered as a violation of the law of nations.
Since the requirements of 28 U.S.C.A. § 1350 have not been met and since the requisite diversity required by 28 U.S.C.A. § 1332 is not present, the Complaint will be dismissed, unless plaintiff submits within two weeks an order to transfer this case to the admiralty docket.