550. Availability of evidence and witnesses

Dismissal of suit on forum non conveniens considerations is proper where facts of case clearly dictate that private and public interests, including congested calendars of courts, are best served by permitting case to be litigated in Greece where all sources of proof are available, and where Greek courts would have, and would accept, jurisdiction over claim. Frangiskatos v Konkar Maritime Enterprises, S. A. (1972, CA2 NY) 471 F2d 714.

In action under Jones Act (46 USCS Appx § 688) by widow of Greek decedent who died while employed as second mate on Greek flag vessel owned by Panamanian corporation, Greece is more convenient forum for litigation of action since (1) most, if not all, sources of documentary proof, including ship's log, medical, autopsy and decedent's personal records are located in Greece, (2) accident occurred while vessel was bound for or in vicinity of Sardinia, Italy, (3) many of potential witnesses to accident are Greek nationals, and other material witnesses, such as examining physicians, most likely are either in Greece or Sardinia, and (4) since plaintiff is Greek citizen, trial in Greece would substantially reduce expenses of hiring interpreters and transporting documents or witnesses. Doufexis v Nagos S.S., Inc. (1983, SD NY) 583 F Supp 1132.

Jones Act suit by Greek seaman will not be dismissed on grounds of forum non conveniens notwithstanding that defense witnesses to accident are Greek, where witnesses are seamen under defendants' control, who stop in United States ports at least as frequently as in Greek ones, and plaintiff's witnesses are Americans not subject to process in Greece; fact that time and money will have to be expended to translate testimony and documents from Greek is not sufficient hardship to justify dismissal; although Greece has interest in adjudicating case involving Greek litigants aboard Greek ship, United States also has strong interest in according equal treatment under Jones Act to foreign and domestic shippers who compete in American market. Karvelis v Constellation Lines SA (1985, SD NY) 608 F Supp 966.

Jones Act (46 USCS Appx § 688) case will be dismissed from Louisiana to Greece unless vessel owner refuses promptly to submit to jurisdiction there, to guarantee satisfaction of judgment rendered against it, and to waive any limitations defense in Greece, where Peruvian seaman seeks remedy for hand injury suffered aboard Greek flag vessel on call to New Orleans, because Greek forum is available, adequate and most convenient since more primary witnesses reside there, vessel maintenance records as well as seaman's wage accounts are stored there, and Greek law should apply. Vargas v M/V Mini Lama (1989, ED La) 709 F Supp 117.

Venue of employee's action under 46 USCS Appx § 688 for alleged injury in Louisiana would not be transferred from Texas District to Louisiana District, where only one of 7 potential witnesses cited by employer lived in Louisiana, 2 of employee's key witnesses resided in Texas District, employer made inconsistent representations about its citizenship, residents of Texas District had interest in outcome of litigation and safety of employer's operations, and although worker did not live in Texas district it did not appear he was engaged in blatant forum shopping. Carona v Falcon Servs. Co. (1999, SD Tex) 68 F Supp 2d 783.

Plaintiff seamen cannot, without compelling reason, be ousted of their admitted right to bring actions under 46 USCS Appx § 688 in state court or in federal court where defendant can be effectively brought within court's jurisdiction; defendant's motion for dismissal on basis of forum non conveniens will not be allowed where defendant's claimed reason was convenience of witnesses and some of defendant's witnesses reside in states other than original court or court to which defendant wishes action transferred. Walker v Ohio River Co. (1964) 416 Pa 149, 205 A2d 43.

551. American contacts; place of injury

Jones Act (46 USCS Appx § 688) is inapplicable to suit by British West Indian seaman for injuries sustained in American waters while working aboard Liberian ship. Bartholomew v Universe Tankships, Inc. (1959, CA2 NY) 263 F2d 437, 1 FR Serv 2d 621, cert den 359 US 1000, 3 L Ed 2d 1030, 79 S Ct 1138 and (disagreed with on other grounds De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with on other grounds Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).

Forum non conveniens considerations lead to dismissal of suit by widow of Greek seaman who was killed in California aboard Greek registered and Panamanian owned vessel; federal courts should not exercise admiralty jurisdiction in suits between aliens, because of difficulty of subpoenaing proof and enforcing judgment. Leonad v General Carriers, S.A. (1974, DC Cal) 1974 AMC 471.

552. --Direct or indirect ownership

United States law was not applicable to action brought by representative of deceased seaman, notwithstanding that vessel was owned by Panamanian corporation which was wholly owned subsidiary of United States corporation, where (1) injury occurred either on high seas or in port of Honduras or Costa Rica, (2) seaman was Panamanian citizen who executed employment contract in Panama, (3) there was no evidence that Panamanian corporation was "facade" to enable United States corporation to avoid its obligations under United States maritime law, and (4) plaintiff who was also citizen and resident of Panama, had already sued in Panama on same claim and had had that claim fully adjudicated; action would be dismissed on basis of forum non conveniens. De Mateos v Texaco Panama, Inc. (1977 CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449.

46 USCS Appx § 688 action was dismissed on ground of forum nonconveniens where citizen of Greece jumped to his death from ship into Hudson River; deceased's widow was citizen and resident of Greece, owner of vessel was corporation organized and existing under laws of Liberia and said corporation was neither owned nor controlled by United States citizens, none of stock of owner of vessel was owned by United States citizen, vessel was engaged in carrying passengers and was registered under laws of Greece, decedent joined crew of vessel and agreed that any claim arising out of his employment would be settled according to Greek law, and vessel was departing from New York Harbor to Greece when decedent committed suicide. Xerakis v Greek Line, Inc. (1974, ED Pa) 382 F Supp 774.

Actions under Jones Act (46 USCS Appx § 688) and Death on High Seas Act (46 USCS Appx § 761) brought by foreign plaintiffs and arising from death and injury aboard vessel owned or controlled by United States defendants or their foreign surrogates will not be dismissed on grounds of forum non conveniens, where plaintiffs chose forum with most advantageous law available to them and not for purpose of harassing defendants, and where public interest does not require dismissal. Munusamy v McClelland Engineers, Inc. (1984, ED Tex) 579 F Supp 149, later proceeding (ED Tex) 590 F Supp 891 and mand den, vacated on other grounds (CA5) 742 F2d 837, cert den (US) 84 L Ed 2d 366, 105 S Ct 1228, later proceeding (CA5 Tex) 784 F2d 1313.

553. --Business contacts

Jones Act (46 USCS Appx § 688) is applicable to suit by Portuguese seaman who was injured in Great Britain aboard Panamanian registered and Dutch owned vessel, although many of witnesses and documents regarding accident were in England where related action was pending where representatives of shipping companies were available in American forum. Castanho v Jackson Marine, Inc. (1980, ED Tex) 484 F Supp 201, affd in part and app dismd in part on other grounds (CA5 Tex) 650 F2d 546, reh den (CA5 Tex) 656 F2d 700 and reh den (CA5 Tex) 656 F2d 700.

Action brought under Jones Act (46 USCS Appx § 688) seeking to recover damages for alleged wrongful death of two Greek seamen will be dismissed on grounds of forum non conveniens, since (1) alleged wrongful deaths occurred while vessel was in Soviet waters, (2) vessel is owned by Liberian corporation and is of Greek registry, (3) duties of owner's United States agent were narrow and (4) owner has agreed to appear and defend any wrongful death action plaintiffs might bring in Greece. Kassapas v Arkon Shipping Agency, Inc. (1984, SD NY) 578 F Supp 400.

554. --All contacts foreign

In exercise of sound discretion, district court may decline jurisdiction of suit in admiralty brought by foreign seaman against foreign ship; but before acting, district court should be fully informed about all factors that have significant bearing on question of retaining jurisdiction, including allegiance of shipowner. Lekkas v Liberian M/V Caledonia (1971, CA4 Va) 443 F2d 10.

555. Miscellaneous

Forum non conveniens considerations justify refusal to apply Jones Act (46 USCS Appx § 688) to suit brought for damages resulting from death of Greek seaman who died at sea aboard foreign vessel, despite existence of American contacts, since Greek law is law of flag, decedent was resident and citizen of Greece, and defendant's base of operations is in Panama. Morewitz v Andros Compania Maritima, S. A. (1980, CA4 Va) 614 F2d 379.

Although available, Greek forum is inconvenient, and Jones Act (46 USCS Appx § 688), rather than Greek law, is applicable to Greek seaman's suit for injuries sustained on high seas aboard Panamanian ship. Ventiadis v C. J. Thibodeaux & Co. (1968, SD Tex) 295 F Supp 135.

D. Election of Alternative Remedies

1. In General

556. Generally

46 USCS Appx § 688 brings into maritime law new rules drawn from another system and extends to injured seamen right to invoke, at their election, either relief afforded by old rules or that provided by new rules; election is between alternatives accorded by maritime law as modified, and not between that law and some nonmaritime system. Panama R. Co. v Johnson (1924) 264 US 375, 68 L Ed 748, 44 S Ct 391, Brown v C. D. Mallory & Co. (1941, CA3 Pa) 122 F2d 98; Rowley v Sierra S.S. Co. (1942, DC Ohio) 48 F Supp 193; Curtis Bay Towing Co. v Dean (1938) 174 Md 498, 199 A 521, cert den 305 US 628, 83 L Ed 402, 59 S Ct 92.

Doctrine of election of remedies prevails in maritime cases, but this doctrine presupposes plurality of alternative rights or remedies, and rests upon principle that he who seeks equity must do equity and does not apply to consistent and cumulative remedies; general rule against splitting single and indivisible causes of action is applicable in admiralty but does not require that separate and distinct causes of action be presented in single suit, even though they arose at same time and might be considered together. Smith v Lykes Brothers-Ripley S.S. Co. (1939, CA5 La) 105 F2d 604, cert den 308 US 604, 84 L Ed 505, 50 S Ct 141.

Election is between alternatives accorded by maritime law, as modified. Lopoczyk v Chester A. Poling, Inc. (1945, CA2 NY) 152 F2d 457.

Election to which 46 USCS Appx § 688 refers is election of remedies as between suit in admiralty and civil action; purpose of "election" clause of 46 USCS Appx § 688 was to make certain that injured seaman, instead of suing in admiralty, could at his option assert his cause of action for personal injuries in federal court in action at law regardless of diversity of citizenship. McCarthy v American Eastern Corp. (1949, CA3 Pa) 175 F2d 724, cert den 338 US 868, 94 L Ed 532, 70 S Ct 144, reh den 338 US 939, 94 L Ed 579, 70 S Ct 343.

Proceedings under 46 USCS Appx § 688 against United States for damages based on negligence must be filed in admiralty. Forgione v United States (1953, CA3 Pa) 202 F2d 249, 1953 AMC 323, cert den 345 US 966, 97 L Ed 1384, 73 S Ct 950.

46 USCS Appx § 688 gives election in case of death to same extent as where injury only occurs, so language, "at his election," applies to both clauses of 46 USCS Appx § 688. Renew v United States (1932, DC Ga) 1 F Supp 256, 1932 AMC 1110.

Libellant may discontinue libel in admiralty in order to bring action at law. The Everett (1935, DC Pa) 13 F Supp 359.

Seaman may enforce his substantive rights under 46 USCS Appx § 688 by libel in admiralty, in which case no jurisdictional amount is required, but if he elects action at law afforded by 46 USCS Appx § 688, it must meet requirement as to amount in controversy or be instituted in state court; plaintiff must elect between complaint at law and libel in admiralty, and nature of relief sought should control that election. Rowley v Sierra S.S. Co. (1942, DC Ohio) 48 F Supp 193.

In action for wrongful death of crew member, personal representative could bring general maritime action for wrongful death or action under 46 USCS Appx § 688 or Death on High Seas Act (46 USCS Appx § § 761-768) and was not required to make election among theories of recovery. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

557. Effect on right to jury trial

Plaintiff's choice, under 46 USCS Appx § 688, of maintaining action at law with right of trial by jury permits him to have jury trial in common law forum in state court. Engel v Davenport (1926) 271 US 33, 70 L Ed 813, 46 S Ct 410.

Action under 46 USCS Appx § 688 supersedes state law on same subject, and, while injured seaman may elect between 46 USCS Appx § 688 and maritime remedy, he cannot elect to sue under state law if he is actually seaman and is shown to be such by his pleadings, and it is immaterial that state law is more beneficial to him. Lindgren v United States (1930) 281 US 38, 74 L Ed 686, 50 S Ct 207, 1030 AMC 399.

While 46 USCS Appx § 688 does not force seaman to choose between negligence and unseaworthiness as basis of his action, it does require him to make election of remedies as between suit in admiralty and civil action, election being between trial by jury and suit in admiralty; if election required by 46 USCS Appx § 688 means anything at all, it must mean that plaintiff suing under its provisions cannot in same action have issue of defendant's liability tried at law with jury and issue of damages resulting from identical liability tried by court in admiralty without jury. Yates v Dann (1955, CA3 Del) 223 F2d 64.

Once plaintiff invokes admiralty procedures, he is not entitled to jury trial without some alternative source of federal jurisdiction, but where non-admiralty claims and admiralty claims are so interrelated as to require trial by single factfinder, and each rests on independent basis sufficient to support federal jurisdiction, constitutionally-protected right to jury trial of civil claims outweighs tradition of non-jury trials in admiralty; Jones Act claim provides alternate statutory basis. Sovereign Pocohontas Co. v Bond (1941) 74 App DC 175, 120 F2d 39.

Remedy under 46 USCS Appx § 688 is action at law with trial by jury or in admiralty. The West Jester (1922, DC Wash) 281 F 877.

558. Who may make election

Under 46 USCS Appx § 688, election to be made between suit in admiralty without jury and civil action with jury, each asserting claim based on negligence, belongs to seaman, not his employer, and employer may not require jury trial. Johnson v Venezuelan Line S.S. Co. (1970, ED La) 314 F Supp 1403.

559. Manner of making election

Election required by 46 USCS Appx § 688 is sufficiently indicated when one entitled to benefit thereof brings action at law alleging negligence and praying for damages. Hammond Lumber Co. v Sandin (1927, CA9 Or) 17 F2d 760, cert den 274 US 756, 71 L Ed 1336, 47 S Ct 767.

Libel, alleging injuries sustained due to negligence and carelessness of respondent, must be construed as one in personam under 46 USCS Appx § 688 for which election of remedies is necessary and by pleading negligence, libellant has elected to proceed under 46 USCS Appx § 688. The M. E. Farr (1940, DC NY) 38 F Supp 8; Burkholder v United States (1944, DC Pa) 56 F Supp 106.

560. Time for making election

Plaintiff need not elect between claiming damages under 46 USCS Appx § 688 for negligence, or under maritime law for unseaworthiness, before submitting his claims to jury, since election is required by 46 USCS Appx § 688 only between trial by jury and suit in admiralty. Balado v Lykes Bros. S.S. Co. (1950, CA2 NY) 179 F2d 943; McAffoos v Canadian Pacific S.S. Ltd. (1957, CA2 NY) 243 F2d 270, cert den 355 US 823, 2 L Ed 2d 39, 78 S Ct 32; Pearson v Tide Water Associated Oil Co. (1950, Cal App) 223 P2d 669, hear gr by sup ct, app dismd.

Claim based on negligence under 46 USCS Appx § 688 may be combined in one cause with claim under general maritime law and no election of remedies is required up to or during trial even when recovery of damages on one ground only is permitted; both issues with proper instructions must be submitted to jury but damages are recoverable on one issue only. Borgman v Sword Line, Ins. (1948, Sup) 81 NYS2d 445.

561. --Amended or subsequent actions

Unsatisfied in personam judgment in favor of seaman in action against shipowner in state court for injuries does not become binding election barring seaman, under election provision of 46 USCS Appx § 688, from intervening claim in separate foreclosure action by United States against vessel on which he was injured. Pratt v United States (1964, CA1 Me) 340 F2d 174.

In action to recover for death of decedent on high seas, plaintiff initially alleged that she elected to proceed under 46 USCS Appx § 688, but she could, after running of two-year statute of limitations, amend her complaint so as to proceed under 46 USCS Appx § § 761-767 or 46 USCS Appx § 688 or under statute appropriate to facts, since such amendment did not present new suit upon same facts. Batkiewicz v Seas Shipping Co. (1943, DC NY) 53 F Supp 802, 1943 AMC 1218.

Mere bringing of suit in admiralty based on negligence under 46 USCS Appx § 688 is not irrevocable election of remedy so as to estop subsequent action at law based on that same negligence; defendant is not detrimented if civil action results in delayed request for jury trial beyond time that such request must have been made if original suit had been by civil action. Stalker v Southeastern Oil Delaware, Inc. (1951, DC Del) 103 F Supp 436.

2. Electing Particular Remedies

562. Generally

Demand and receipt by seaman injured by negligence of ship's officer of maintenance, cure, and wages under general maritime law is not election not to proceed under provisions of 46 USCS Appx § 688; election required from seaman by § 688 is between recovery for negligence and for unseaworthiness of vessel. Pacific S.S. Co. v Peterson (1928) 278 US 130, 73 L Ed 220, 49 S Ct 75.

Injured seaman has three means of recovery against his employer: (1) maintenance and cure, (2) negligence under 46 USCS Appx § 688, and (3) unseaworthiness. McAllister v Magnolia Petroleum Co. (1958) 357 US 221, 2 L Ed 2d 1272, 78 S Ct 1201 (not followed Public Admr. of County of New York v Angela Compania Naviera, S.A. (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15) and (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

Where three causes of action, for maintenance and cure, for unseaworthiness of vessel, and under 46 USCS Appx § 688, arose at same time but depended upon different facts and distinct principles of law, libelant was required to elect between cause of action for unseaworthiness and cause of action under 46 USCS Appx § 688, tort actions, but no election was required as to claim for maintenance and cure, wherein duty of shipowner arose as incident to contract for wages. Smith v Lykes Brothers-Ripley S.S. Co. (1939, CA5 La) 105 F2d 604, cert den 308 US 604, 84 L Ed 505, 50 S Ct 141.

Election provided by 46 USCS Appx § 688 is between old rule for indemnity for injuries occasioned by unseaworthiness, irrespective of negligence, and rule allowing maintenance and cure. Keefe v Matson Nav. Co. (1930, DC Wash) 46 F2d 123.

Although actions under 46 USCS Appx § 688 modified prior maritime law by granting seamen injured by negligence of employer right to receive damages therefor, traditional rights of seamen to recover indemnification for injuries flowing from unseaworthiness of vessel and for maintenance and cure remain and are separate and distinct from one another. Watson v The Letitia Lykes (1955, DC Cal) 135 F Supp 933.

563. Maintenance and cure

Right to maintenance, cure, and wages, implied in law as contractual obligation arising out of nature of employment, is independent of right to indemnity or compensatory damages for injury caused by negligence under 46 USCS Appx § 688, yet both rights are consistent and cumulative. Jones v Waterman S.S. Corp. (1946, CA3 Pa) 155 F2d 992, 1946 AMC 859; Reardon v California Tanker Co. (1958, CA2 NY) 260 F2d 369, cert den 359 US 926, 3 L Ed 2d 628, 79 S Ct 609; McKinley v Carnegie-Illinois Steel Corp. (1947, DC Pa) 69 F Supp 893.

Where complaint alleged two counts, one for damages under 46 USCS Appx § 688 and other for maintenance and cure, District Court did not have jurisdiction of action for maintenance and cure because it had jurisdiction of damage action, since separate and distinct causes of action were stated. Jordine v Walling (1950, CA3 Pa) 185 F2d 662.

Jury verdict indemnifying seaman for total and permanent disability in action under 46 USCS Appx § 688 does not duplicate vessel's entirely separate obligation to provide maintenance and cure. Cox v Dravo Corp. (1975, CA3 Pa) 517 F2d 620, cert den 423 US 1020, 46 L Ed 2d 392, 96 S Ct 457.

Defendant is entitled to jury trial as of right on his claim for maintenance and cure where it is clear from reading of record that claim for failure to provide adequate maintenance and cure and that 46 USCS Appx § § 688 et seq. negligence were each based on both 1975 and 1978 injuries. Lyons v Ohio River Sand & Gravel Co. (1982, CA4 W Va) 683 F2d 99.

Recovery by injured seaman for maintenance, wages, and cure is of right, while recovery for personal injury is based upon acts of omission or commission of imposed duties. The Progress (1937, DC Wash) 21 F Supp 572, 1938 AMC 458.

Law suit by seaman to recover maintenance is separate and distinct from suit for injury under 46 USCS Appx § 688; duty to provide maintenance to ill or injured seaman is imposed irrespective of presence or absence of negligence on part of seaman or shipowner. Rutherford v Sea-Land Service, Inc. (1983, ND Cal) 575 F Supp 1365, 14 Fed Rules Evid Serv 1297 (disapproved on other grounds Gardiner v Sea-Land Service, Inc. (CA9 Cal) 786 F2d 943, 122 BNA LRRM 2001, 104 CCH LC P 11921).

Maintenance and cure arise implicitly from contractual relationship between seaman and his employer, and is designed to insure recovery of these individuals who are disabled while in service of ship; maintenance is per diem allowance paid as long as seaman is not in hospital and has not reached point of "maximum care," which is achieved when further medical treatment will result in no betterment of seaman's condition. Flowers Transp., Inc. v Fox (1985, ED Mo) 606 F Supp 263.

Injured seaman living with parents with no agreement to pay them for room and board while disabled is not entitled to receive maintenance from shipowner in whose employment he was injured. Toups v Du-Mar Marine Contractors, Inc. (1985, ED La) 644 F Supp 475.

Seaman is denied further care and maintenance payments from employer because maximum care has been effected and no further medical treatment is required to improve condition where seaman received care and maintenance payments for several years and doctors testified seaman no longer showed objective signs of soft tissue injury and no further medical treatment would improve condition. Belcher Towing Co. v Howard (1986, SD Fla) 638 F Supp 242.

Seaman, injured while employed on vessel, has two remedies: one at law under 46 USCS Appx § 688 to recover damages with respect to his personal injury, and another under general maritime law for maintenance, wages and cure, latter being contractual which seaman has as matter of right, irrespective of negligence or fault. Oceanic Fisheries Co. v United States Fidelity & Guaranty Co. (1941) 9 Wash 2d 484, 115 P2d 714.

564. --Effect of previous recovery under 46 USCS Appx § 688

Action under 46 USCS Appx § 688 may be maintained by injured seaman against his employer even though seaman has demanded and received of employer maintenance and cure. Pacific S.S. Co. v Peterson (1928) 278 US 130, 73 L Ed 220, 49 S Ct 75; Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246.

Election to sue under 46 USCS Appx § 688 for injuries does not bar recovery by seaman for maintenance and cure under general admiralty law. Lippman v Romich (1928, CA9 Cal) 26 F2d 601, 1928 AMC 1014; Runyan v Great Lakes Dredge & Dock Co. (1944, CA6 Ohio) 141 F2d 396, 1944 AMC 614.

Recovery in action for compensatory damages under 46 USCS Appx § 688 did not preclude subsequent action for damages under general maritime law, for failure to provide injured seaman with maintenance and cure. Smith v Lykes Brothers-Ripley S.S. Co. (1939, CA5 La) 105 F2d 604, cert den 308 US 604, 84 L Ed 505, 60 S Ct 141; The W. H. Hoodless (1941, DC Pa) 38 F Supp 432; Muise v Abbott (1945, DC Mass) 60 F Supp 561, affd (CA1 Mass) 160 F2d 590.

Pendency of action in state court under 46 USCS Appx § 688 for damages and for wages over and above board and room does not bar action in federal court for maintenance and cure. Berglann v The Winona (1942, DC Or) 46 F Supp 483, 1942 AMC 1315.

Suit under 46 USCS Appx § 688 to recover damages for negligence barred subsequent suit for cure where issue of medical expenses was litigated, but did not bar subsequent suit for maintenance where there was no evidence introduced on value of room and board. La Fontaine v The G. M. McAllister (1951, DC NY) 101 F Supp 826.

565. Preclusion of double recovery

Seaman may not be awarded maintenance and cure covering period for which he had received award for lost wages under 46 USCS Appx § 688. Blanchard v Cheramie (1973, CA5 La) 485 F2d 328 (disagreed with Holmes v J. Ray McDermott & Co. (CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682) as stated in Tullos v Resource Drilling, Inc. (CA5 La) 750 F2d 380.

Plaintiff seaman injured on drilling barge had choice of remedies; he could proceed against his employer under 46 USCS Appx § 688 for damages for his injuries and for maintenance and cure, or he could sue owners and operators of offshore rig or drilling barge in maritime tort for damages for his injuries, or, he could sue owners of rig as third party tort-feasors under maritime law for personal injuries and his employer for maintenance and cure, but plaintiff can recover only once for any one injury. Romero v Frank's Casing Crew & Rental Tools, Inc. (1964, WD La) 229 F Supp 41, 1964 AMC 1164, affd (CA5 La) 342 F2d 999.

Right to maintenance, cure, and wages arises out of implied contractual obligation, and is separate and independent from right to receive compensatory damages in negligence suit under 46 USCS Appx § 688 or unseaworthiness action; and while these rights are separate, and not mutually exclusive, there is certain degree of overlap; clearly, seaman's right to bring action for damages, in addition to receiving maintenance and cure, does not entitle him to double recovery for any given element of damage. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.

566. Unseaworthiness

Right to recover compensatory damages under 46 USCS Appx § 688 for injuries caused by negligence is alternative of right to recover indemnity under old rules on ground that injuries were occasioned by unseaworthiness, and it is between these two inconsistent remedies for injury, both grounded in tort, that election is to be made under maritime law as modified by 46 USCS Appx § 688. Pacific S.S. Co. v Peterson (1928) 278 US 130, 73 L Ed 220, 49 S Ct 75.

That injured seaman brought action under 46 USCS Appx § 688 in state court against vessel owner alone and recovered judgment, which was unsatisfied, did not constitute election and bar him from proceeding against vessel on counts based on unseaworthiness and for maintenance and cure. Pratt v United States (1964, CA1 Me) 340 F2d 174.

Election referred to in 46 USCS Appx § 688 is not between action based on negligence under new rules and one based on unseaworthiness under old rules, but is simply between action against ship without benefit of 46 USCS Appx § 688 and necessarily limited to claim of unseaworthiness, and action against employer under 46 USCS Appx § 688 for negligence and under general maritime law for unseaworthiness; seaman who has been injured due to negligence of his employer and/or unseaworthiness of ship can, in action in admiralty against his employer, allege and prove both negligence and unseaworthiness, but if court finds that proximate cause of seaman's injuries was both negligence and unseaworthiness, seaman would be allowed to recover for either damages arising from negligence or damages arising from unseaworthiness but not both. Platt v Chesapeake & O. R. Co. (1948, DC Ohio) 82 F Supp 968.

567. --Necessity of making election

Seaman may maintain action based both upon unseaworthiness of vessel and negligence and was not required to elect between the two; thus, jury could base verdict on both theories, and moneys awarded included damages under both theories. McAllister v Magnolia Petroleum Co. (1958) 357 US 221, 2 L Ed 2d 1272, 78 S Ct 1201 (not followed Public Admr. of County of New York v Angela Compania Naviera, S.A. (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15) and (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

Plaintiff bringing action at law charging shipowner with negligence under 46 USCS Appx § 688, and with breach of warranty of seaworthiness under general maritime principles, is not required to elect as between these two causes of action, since plaintiff was entitled to have jury pass on both issues in accordance with established principles of negligence and general maritime law. German v Carnegie-Illinois Steel Corp. (1946, CA3 Pa) 156 F2d 977.

Joinder of claim under 46 USCS Appx § 688 and claim under seaworthiness doctrine is proper, and plaintiff may not be compelled to elect as between 46 USCS Appx § 688 claim and unseaworthiness claim. Williams v Tide Water Associated Oil Co. (1955, CA9 Wash) 227 F2d 791, cert den 350 US 960, 100 L Ed 834, 76 S Ct 348.

Where cause of action is based on defective condition of winch, libellant cannot be required to elect between unseaworthiness and negligence. Sundquist v Gray (1930, DC Wash) 48 F2d 638, 1931 AMC 167.

Where plaintiff seeks damages under 46 USCS Appx § 688 based on negligence and under maritime and admiralty laws based on doctrine of unseaworthiness, right to recover could be based on either doctrine of negligence or unseaworthiness and plaintiff was not required to elect and it was proper to submit both issues to jury. McLeod v Union Barge Line Co. (1951, DC Pa) 95 F Supp 366, affd (CA3 Pa) 189 F2d 610.

Originally, maritime law provided seamen only with remedy for unseaworthiness, remedy for negligence being denied; subsequently, action of 46 USCS Appx § 688 gave seaman either of these remedies in alternative, both may be pleaded in same complaint, without election. Hilderbrand v United States (1954, DC NY) 134 F Supp 514, affd (CA2) 226 F2d 215.

Under 46 USCS Appx § 688, seaman must allege and prove negligence which may embrace both failure to supply and maintain seaworthy vessel properly equipped and manned, and negligent acts of master or crew members; seaman is not required to choose between negligence and unseaworthiness as basis of his action. Sawyer v California Tanker Co. (1957, DC NJ) 147 F Supp 324.

568. Death on High Seas Act (46 USCS Appx § § 761 et seq.)

Although parents and children could recover for wrongful death of seaman working on surveying vessel under either 46 USCS Appx § 688 or Death on High Seas Act (46 USCS Appx § § 761 et seq.), these provisions do not preclude remedy under general maritime law. Spiller v Thomas M. Lowe, Jr. & Associates, Inc. (1972, CA8 Ark) 466 F2d 903, 20 ALR Fed 89.

In action for wrongful death of crew member, personal representative could bring general maritime action for wrongful death or action under 46 USCS Appx § 688 or Death on High Seas Act (46 USCS Appx § § 761-768) and was not required to make election among theories of recovery. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

E. Institution of Action

569. Service of process

Where accident for which damages are claimed under 46 USCS Appx § 688 occurred within territorial limits of Illinois, service of federal process may be made in manner prescribed by Illinois statute. Frase v Columbia Transp. Co. (1957, DC Ill) 158 F Supp 858.

Presence of master of vessel touching at Pittsburgh was not such as to make him appropriate agent to receive service of process so as to establish jurisdiction over transitory tort unrelated to activities of master within state of Pennsylvania. Leith v Oil Transport Co. (1962, WD Pa) 210 F Supp 877, affd (CA3 Pa) 321 F2d 591 (disagreed with Pure Oil Co. v Suarez (CA5 Fla) 346 F2d 890, affd 384 US 202, 16 L Ed 2d 474, 86 S Ct 1394).

State court had jurisdiction under 46 USCS Appx § 688 where service was had on steamship company, by delivering summons to its manager in city where it maintained an office and transacted its business. Winfield v United Fruit Co. (1933) 135 Cal App Supp 791, 24 P2d 247, 1933 AMC 1223.

570. Securing costs

28 USCS § 1916 is applicable to action under 46 USCS Appx § 688, and on reversal of judgment for defendant, with remand for new trial, clerk may be compelled to issue mandate without prepayment of costs. Grant v United States Shipping Board Emergency Fleet Corp. (1928, CA2 NY) 24 F2d 812, 1928 AMC 629.

Seaman suing under 46 USCS Appx § 688 for personal injuries caused by failure to furnish safe place to work, must give bond for costs and fees, no Safety Appliance Act being involved. The Bennington (1925, DC Ohio) 10 F2d 799.

Stevedore as "seaman" is not required to secure costs in suit under 46 USCS Appx § 688. Fletcher v Lancaster S.S. Corp. (1935, DC NY) 11 F Supp 704, 1935 AMC 784.

For action by seaman for personal injuries to come within 28 USCS § 1916, prescribing cases in which seaman is exempt from necessity to file security or prepay fees, action must be based upon law for health and safety of seaman; 46 USCS Appx § 688 is such law. Di Stefano v Ropner & Co. (1944, DC NY) 57 F Supp 517, 1944 AMC 1106.

Seaman was not entitled to dismiss suit for negligence under 46 USCS Appx § 688 in which he had not paid costs where he elected to proceed with prior suit in admiralty for negligence. Stalker v Southeastern Oil Delaware, Inc. (1951, DC Del) 103 F Supp 436.

Policy of 46 USCS Appx § 688 and of other laws designed for protection of seamen and to compensate them for injuries sustained in course of their employment should not be thwarted by indirection, as by requiring seaman to furnish bond for costs or else forego compensation. Ganem v Bernuth Lembcke Co. (1948, City Ct) 82 NYS2d 777.

571. Attachment of vessel

Action in personam in admiralty under 46 USCS Appx § 688 may be commenced and maintained in district in which defendant employer does not reside and in which his principal office is not located, by attaching defendant's property and compelling his appearance by writ of foreign attachment, under admiralty rules of venue; phrase "such actions" in venue provision of 46 USCS Appx § 688 has reference to actions on law side of federal courts. Brown v C. D. Mallory & Co. (1941, CA3 Pa) 122 F2d 98.

Proceeding in foreign attachment is not proceeding in rem and may be brought where no lien exists against vessel. The Frieda (1937, DC Pa) 1937 AMC 227.

In action under 46 USCS Appx § 688, right of foreign attachment was not authorized to be issued, and no jurisdiction over defendant corporation, served by foreign attachment, was obtained. The M. E. Farr (1940, DC NY) 38 F Supp 8, 1941 AMC 330.

F. Pleadings and Motions

1. Complaint

572. Generally

Complaint in 46 USCS Appx § 688 action is proper when in usual form of seaman's libel for damages for negligence and wages; claims need not be separately stated. Kongs v Oceanic & Oriental Nav. Co. (1931, DC Cal) 47 F2d 650.

Plaintiff is entitled to provisions of 46 USCS Appx § 688 if pleaded facts entitle him to it. Cissel v C. H. Sprague & Son, Inc. (1935) 154 Misc 391, 276 NYS 135, 1934 AMC 1212.

573. Necessary allegations

Jones Act (46 USCS Appx § 688) is not properly invoked where complaint alleges only that Greek resident was injured aboard foreign vessel, since where complaint is silent as to citizenship of seaman, as well as other factors, complaint clearly fails to allege sufficient facts to bring case within scope of Act. Filippou v Italia Societa per Azioni di Navizione (1966, DC Mass) 254 F Supp 162.

574. --Status as seaman

In action, under 46 USCS Appx § 688 for wrongful death of seaman, complaint alleging that deceased was employed as seaman on vessel plying navigable waters was sufficient, and district court had jurisdiction under 46 USCS Appx § 688. Pacific Atlantic S.S. Co. v Hutchison (1957, CA9 Cal) 242 F2d 691, 1957 AMC 1135.

575. --Negligence

Injured party is bound to set forth every ground of negligence upon which he relies; he cannot assert these grounds in successive actions to recover for same wrong and injury. Baltimore S.S. Co. v Phillips (1927) 274 US 316, 71 L Ed 1069, 47 S Ct 600.

Gravamen of action under 46 USCS Appx § 688 is negligence of employer, and such negligence must be alleged and proved. De Zon v American President Lines, Ltd. (1942, CA9 Cal) 129 F2d 404, 1942 AMC 1271, affd 318 US 660, 87 L Ed 1065, 63 S Ct 814, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025, 1943 AMC 483.

In action under 46 USCS Appx § 688, unseaworthiness of vessel or equipment may be relied upon as element of negligence as averment of duty to provide seaworthy vessel and equipment, violation of which constitutes negligence. Mullen v Fitz Simons & Connell Dredge & Dock Co. (1948, CA7 Ill) 172 F2d 601, cert den 337 US 959, 93 L Ed 1758, 69 S Ct 1534.

Jones Act plaintiff met "featherweight" burden of proof of negligence in alleging that plaintiff's helper, in lifting heavy cylinder, favored his earlier-injured ankle, thereby shifting disproportionate amount of weight to plaintiff, resulting in plaintiff's injuries. Bommarito v Penrod Drilling Corp. (1991, CA5 La) 929 F2d 186.

Declaration alleging in one count negligence of fellow servants and in another count negligent failure to provide proper appliances stated but single cause of action, it being necessary to allege every ground of negligence on which recovery is sought. Slaney v Cromwell (1930, DC Mass) 38 F2d 304, 1930 AMC 1001.

Allegation that officers of vessel improperly set plaintiff's arm does not amount to allegation of negligent failure to give proper and immediate medical attention and relief. Brown v South Atlantic S. S. Co. (1930, DC Ga) 1930 AMC 462.

All facts constituting negligence or unseaworthiness must be pleaded. Renew v United States (1932, DC Ga) 1 F Supp 256, 1932 AMC 1110.

Any distinction between negligence under 46 USCS Appx § 688 and unseaworthiness has all but disappeared; unseaworthiness may result from negligent operation of vessel, and it is proper to plead two causes of action together. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

Ordinary seaman suing under 46 USCS Appx § 688 to recover for injuries he suffered when he stepped from hatch cover onto pile of pallets that flipped due to his weight established that employer was negligent, where pallets should have been properly stowed or taken off ship rather than stacked on bow in unstable pile, and fact that they were not properly stowed, and were in plain sight for months, demonstrated that employer knew or should have known of negligent condition. Peterson v Great Hawaiian Cruise Line, Inc. (1998, DC Hawaii) 33 F Supp 2d 879, 1998 AMC 2488.

Allegations of 46 USCS Appx § 688 complaint did not attempt to explain cause of accident so as to preclude application of res ipsa loquitur doctrine. Lejeune v General Petroleum Corp. (1932) 128 Cal App 404, 18 P2d 429.

Under 46 USCS Appx § 688, charge of negligence, when made in complaint, does not require any charge that vessel was unseaworthy. Hendriksen v Chicago (1946) 330 Ill App 141, 70 NE2d 848.

Seaman may proceed under 46 USCS Appx § 688 where his pleading indicates such right, and he may rely upon two different acts of negligence without being required to elect, where both seek identical remedy. Cissel v C. H. Sprague & Son, Inc. (1935) 154 Misc 391, 276 NYS 135.

576. --Injury or death

Averment of pain and suffering in 46 USCS Appx § 688 suit does not introduce new cause of action requiring separate statement. Thornton v Puget Sound Power & Light Co. (1930, DC Wash) 49 F2d 347.

Allegation of "severe and painful personal injuries in his abdomen," while vague and completely lacking in technical description, was sufficient to enable respondent to prepare responsive pleading and respondent's exception to libel on this ground was overruled; precise nature of personal injuries did not come to issue at this early stage of pleading; respondent could avail himself of discovery procedure provided by Admiralty Rules to obtain further information needed. Platt v Chesapeake & O. R. Co. (1948, DC Ohio) 82 F Supp 968.

Deckhand who climbed over port side of sinking vessel and swam at most 100 feet to safety has Jones Act (46 USCS Appx § 688) claim dismissed, where deckhand reported no physical injuries beyond being "little skinned up and bruised" but alleges emotional injuries caused by post-traumatic stress disorder, because seamen may not recover for purely emotional or trivial physical injury under § 688. Briscoe v Devall Towing & Boat Service, Inc. (1992, WD La) 799 F Supp 39.

Complaint must show physical injury or physical contact resulting in injury, and allegations of mental anguish resulting from threats of bodily injury are not sufficient; word "mistreated" used in complaint does not import physical contact. Edmond v American-Hawaiian S.S. Co. (1946) 187 Misc 723, 65 NYS2d 433, affd 274 App Div 1035, 85 NYS2d 915.

577. ----In course of employment

Libel under 46 USCS Appx § 688 which failed to allege that injury sustained by libelant was suffered in course of his employment, or fact from which inference that he was so injured could be drawn, and which alleged that he was employed to and including January 15, 1945 and that his injury occurred on January 16, 1945, was defective. Hoiness v United States (1947, DC Cal) 75 F Supp 289, app dismd (CA9 Cal) 165 F2d 504, revd on other grounds 335 US 297, 93 L Ed 16, 69 S Ct 70.

578. ----Place of injury

Allegation that libellant, in course of his duties, was returning to his vessel when he was jumped upon by certain men, names unknown, and without any fault on his part sustained severe and permanent personal injuries was insufficient for not identifying locality of attack or disclosing its proximity to ship. Siclana v United States (1944, DC NY) 56 F Supp 442, 1944 AMC 696.

Place of injury is necessary fact to be alleged to invoke application of Jones Act (46 USCS Appx § 688), thus complaint which is silent to place where injury occurred is dismissed as insufficient. Filippou v Italia Societa per Azioni di Navizione (1966, DC Mass) 254 F Supp 162.

579. --Damages

Since 46 USCS Appx § 688 incorporates by reference 45 USCS § 51 (part of Federal Employers' Liability Act) dependency of widow and minor children on deceased seaman is presumed while pecuniary loss must be alleged and proved if beneficiaries are parents of adult child. Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622.

In 46 USCS Appx § 688 action at law, seaman may claim damages for negligence and loss of wages without separately stating them in complaint. Kongs v Oceanic & Oriental Nav. Co. (1931, DC Cal) 47 F2d 650, 1931 AMC 674.

580. --Reference to 46 USCS Appx § 688

Where there has been no objection to reception of evidence made admissible by 46 USCS Appx § 688, nor to assumption by trial court that case was being tried under 46 USCS Appx § 688, appeals court will regard declaration as amended to conform to issues tried. American Sugar Refining Co. v Nassif (1930, CA1 Mass) 45 F2d 321.

Statement in complaint that plaintiff elects to bring action under 46 USCS Appx § 688 is not controlling; stated facts control. Keefe v Matson Nav. Co. (1930, DC Wash) 46 F2d 123.

Court will presume that seaman's action alleging negligence is brought under 46 USCS Appx § 688, although 46 USCS Appx § 688 is not pleaded. Burkholder v United States (1944, DC Pa) 56 F Supp 106.

Although complaint does not plead 46 USCS Appx § 688, action will be treated as if brought under 46 USCS Appx § 688 where allegations clearly reveal reliance upon rights conferred by that statute. Moltke v Intercontinental Shipping Corp. (1949, DC NY) 86 F Supp 662.

Declaration in complaint on negligence, which merely stated that defendant was also liable under 46 USCS Appx § 688 was not statement that plaintiff was suing under 46 USCS Appx § 688, but mere conclusion of law. Kosek v Pan-Atlantic S.S. Corp. (1950, DC NY) 94 F Supp 132.

No express reference in complaint to 46 USCS Appx § 688 is necessary, for judicial notice of acts of Congress must be taken by state courts. Dowski v Merritt-Chapman & Scott Corp. (1946, Sup) 65 NYS2d 890, affd 271 App Div 874, 66 NYS2d 635; Rooker v Alaska S.S. Co. (1936) 185 Wash 71, 53 P2d 295, cert den 299 US 552, 81 L Ed 406, 57 S Ct 14.

581. Joinder or severance of claims

Count for wages, maintenance, and cure may be joined with count for compensatory damages. Stevens v R. O'Brien & Co. (1933, CA1 Mass) 62 F2d 632, 1933 AMC 871; Brown v South Atlantic S. Co. (1930, DC Ga) 1930 AMC 462.

In action under 46 USCS Appx § 688, it was seaman's right to recover in one action for all impairment due to his employers' negligence, including necessary medical expenses and loss of wages resultant from his employers' negligence. Van Camp Sea Food Co. v Nordyke (1944, CA9 Cal) 140 F2d 902, 1944 AMC 559, cert den 322 US 760, 88 L Ed 1587, 64 S Ct 1278.

Simple economy of effort and efficient administration of justice prove propriety of joinder of counts for relief under 46 USCS Appx § 688, unseaworthiness, and for maintenance and cure in one suit, and submission of whole case to jury, and entering judgment on all counts in accordance with jury's verdict. Mitchell v Trawler Racer, Inc. (1959, CA1 Mass) 265 F2d 426, 1959 AMC 1088, revd on other grounds 362 US 539, 4 L Ed 2d 941, 80 S Ct 926 (superseded by statute as stated in Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

Where plaintiff joined maintenance claim with 46 USCS Appx § 688 and unseaworthiness claims, all arising out of the same facts, trial court erred when it declined to submit to jury maintenance and cure claim after it had submitted other two claims. Lewis v Federal Barge Lines, Inc. (1965, CA7 Ill) 342 F2d 560, 1965 AMC 1491.

It is proper to proceed with claims for unseaworthiness, maintenance and cure, and 46 USCS Appx § 688 in one admiralty action. Haskins v Point Towing Co. (1968, CA3 Pa) 395 F2d 737, 12 FR Serv 2d 918, later app (CA3 Pa) 421 F2d 532, cert den 400 US 834, 27 L Ed 2d 66, 91 S Ct 68.

Remedy for negligence provided by 46 USCS Appx § 688 is not alternative to one afforded by general maritime law; it is cumulative remedy, and seaman is free to plead either or both in same action. Yates v Dann (1951, DC Del) 11 FRD 386.

There is no bar to joinder of claims under 46 USCS Appx § 688 with one under general maritime law, and general maritime law claim is not subsumed in claim under 46 USCS Appx § 688. Wood v Standard Products Co. (1978, ED Va) 456 F Supp 1098.

Joinder of Jones Act (46 USCS Appx § 688) claim with product liability claim does not affect application of proportionate fault doctrine except where otherwise insignificant comparative negligence of plaintiff would reduce recovery. Bass v Phoenix Seadrill/78, Ltd. (1983, ED Tex) 562 F Supp 790, amd on other grounds (ED Tex) 573 F Supp 866 and affd in part and revd in part on other grounds (CA5 Tex) 749 F2d 1154.

582. --Claim for maintenance and cure

Seaman's maintenance and cure claim joined with 46 USCS Appx § 688 claim must be submitted to jury when both arise out of one set of facts. Fitzgerald v United States Lines Co. (1963) 374 US 16, 10 L Ed 2d 720, 83 S Ct 1646, 17 FR Serv 2d 774, reh den 375 US 870, 11 L Ed 2d 99, 84 S Ct 26 and motion den 376 US 901, 11 L Ed 2d 604, 84 S Ct 655.

Count for maintenance and cure on account of injuries received in service of ship may be properly joined with claim under 46 USCS Appx § 688. Nolan v General Seafoods Corp. (1940, CA1 Mass) 112 F2d 515.

Libellant in admiralty under 46 USCS Appx § 688 may join either as independent or as alternate, claims for maintenance, cure, and wages. Runyan v Great Lakes Dredge & Dock Co. (1944, CA6 Ohio) 141 F2d 396.

Joinder of counts for negligence under 46 USCS Appx § 688 and for maintenance and cure under general maritime law was proper. Bay State Dredging & Contracting Co. v Porter (1946, CA1 Mass) 153 F2d 827.

Seaman may join with cause of action under 46 USCS Appx § 688, separate causes of action for maintenance and cure. Mullen v Fitz Simons & Connell Dredge & Dock Co. (1948, CA7 Ill) 172 F2d 601, cert den 337 US 959, 93 L Ed 1758, 69 S Ct 1534.

Where seaman filed suit for damages in two counts, one for negligence under 46 USCS Appx § 688, and other for maintenance and cure, and court instructed jury that in awarding damages for negligence it should consider that plaintiff also had right to maintenance and cure, and defendant did not object to charge, defendant could not later object to verdict on ground that there was duplication in rendering recovery on both counts. Cervo v Isbrandtsen Co. (1949, CA2 NY) 178 F2d 919.

Counts in complaint claiming damages under 46 USCS Appx § 688, and also for maintenance and cure involved misjoinder of causes of action in tort and contract. Johnson v Oil Transport Co. (1931, DC Md) 1931 AMC 1227.

46 USCS Appx § 688 did not affect right of seaman to claim both indemnity and maintenance and cure in one action. Flynn v Panama R. Co. (1923) 121 Misc 239, 201 NYS 56.

Injured seaman's remedy under 46 USCS Appx § 688 for personal injuries, and his remedy under general maritime law for maintenance, wages and care may be enforced in single action at law in state court. Oceanic Fisheries Co. v United States Fidelity & Guaranty Co. (1941) 9 Wash 2d 484, 115 P2d 714.

583. --Claim for unseaworthiness

Injured seaman who wishes to sue for both unseaworthiness and negligence under 46 USCS Appx § 688 must do so in single proceeding; these claims are but alternative grounds of recovery for single clause of action. McAllister v Magnolia Petroleum Co. (1958) 357 US 221, 2 L Ed 2d 1272, 78 S Ct 1201 (not followed Public Admr. of County of New York v Angela Compania Naviera, S.A. (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15) and (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

Joinder of claim under 46 USCS Appx § 688 and claim under seaworthiness doctrine is proper, and plaintiff may not be compelled to elect as between 46 USCS Appx § 688 claim and unseaworthiness claim. Williams v Tide Water Associated Oil Co. (1955, CA9 Wash) 227 F2d 791, cert den 350 US 960, 100 L Ed 834, 76 S Ct 348.

Seaman can try claims of negligence under 46 USCS Appx § 688 and unseaworthiness under general maritime law simultaneously to same jury. Troupe v Chicago, Duluth & Georgian Bay Transit Co. (1956, CA2 NY) 234 F2d 253, 1956 AMC 1367.

While seaman may plead and go to trial on theories of liability based on negligence under 46 USCS Appx § 688 and unseaworthiness, he must elect to present his entire cause of action either as civil action under § 688 or as libel in admiralty. Leith v Oil Transport Co. (1963, CA3 Pa) 321 F2d 591 (disagreed with Pure Oil Co. v Suarez (CA5 Fla) 346 F2d 890, affd 384 US 202, 16 L Ed 2d 474, 86 S Ct 1394).

Plaintiff filing complaint at law under 46 USCS Appx § 688 and demanding jury trial has right to join with it and have tried before jury as pendent to it, his claims under maritime law for unseaworthiness and for maintenance and cure. Haskins v Point Towing Co. (1968, CA3 Pa) 395 F2d 737, 12 FR Serv 2d 918, later app (CA3 Pa) 421 F2d 532, cert den 400 US 834, 27 L Ed 2d 66, 91 S Ct 68.

General maritime death claim for unseaworthiness may be joined with seaman's death claim under 46 USCS Appx § 688. Landry v Two R. Drilling Co. (1975, CA5 La) 517 F2d 675.

Jones Act claim may be joined with wrongful death claim for nonpecuniary damages based on general maritime law where incident does not arise on high seas, and nonpecuniary damages may be recovered under unseaworthiness claim. Hlodan v Ohio Barge Line, Inc. (1980, CA5 Miss) 611 F2d 71.

Causes of action based upon negligence under 46 USCS Appx § 688 and unseaworthiness under general maritime principles may be joined in same complaint. Erickson v Shamrock Towing Co. (1948, DC NY) 81 F Supp 850, 1948 AMC 850.

Action by employee against employer for personal injuries, based upon negligence and unseaworthiness, constituted single cause of action, and upon remand to state court allegations of unseaworthiness in complaint would not be stricken. Nickerson v American Dredging Co. (1955, DC NJ) 129 F Supp 602.

Claim of unseaworthiness may be combined with 46 USCS Appx § 688 action for negligence. Nice v Chesapeake & O. R. Co. (1969, WD Mich) 305 F Supp 1167.

Claims for negligence and unseaworthiness are alternate grounds of recovery for single cause of action and if seaman is to sue for both he must do so in single proceeding. West v M/V Coan River (1970, ED Va) 312 F Supp 1038, supp op (DC Va) 330 F Supp 966.

584. --Different claims against different defendants

Cause of action against one defendant under 46 USCS Appx § 688 cannot be joined with cause of action against another defendant based on common-law liability. Schotis v North Coast Stevedoring Co. (1927, DC Wash) 24 F2d 591, 1928 AMC 921.

Action against two defendants to recover for death of seaman as result of collision between three tugs would not be severed upon motion of one of defendants for severance, although liability of one of them arose under 46 USCS Appx § 688, and of other under state death statute, where concurrent negligence of both had given rise to one single indivisible cause of action against both. Reilly v Moran Towing & Transp. Co. (1946, Sup) 62 NYS2d 571, affd 270 App Div 892, 62 NYS2d 600.

585. Amendment

Even though seaman in suit under 46 USCS Appx § 688 abandoned one negligence claim and adopted new theory of negligence, without amending his petition as required by District Court rule, court will assume rule was properly complied with and will decide case on its merits. Field v Waterman S.S. Corp. (1939, CA5 Ala) 104 F2d 849.

Although plaintiff abandoned one charge of negligence and relied on another without amending his petition as is provided by USCS Rules of Civil Procedure, Rule 15(b), Court of Appeals will assume that rule was properly complied with and decide case on its merits. Field v Waterman S.S. Corp. (1939, CA5 Ala) 104 F2d 849, 1939 AMC 1555.

Seaman in action under 46 USCS Appx § 688 was allowed to amend complaint at opening of trial to change date of injury and ship on which injury occurred; amendment did not assert new cause of action where both vessels were operated under contracts with United States and true facts as to time and place of assault were known to, or could reasonably have been ascertained by, defendant, whereas seaman had suffered from recurrent amnesia, which made it difficult for him to remember true facts. Kelcey v Tankers Co. (1954, CA2 NY) 217 F2d 541.

District court deprived defendant of his right to trial by jury by giving retrospective application to plaintiff's amendments stating claims within court's admiralty jurisdiction under USCS Rules of Civil Procedure, Rule 9 where original complaint demanded jury trial under USCS Rules of Civil Procedure, Rule 38, and defendant did not relinquish or consent to non-jury trial under USCS Rules of Civil Procedure, Rule 39. Johnson v Penrod Drilling Co. (1972, CA5 Tex) 469 F2d 897, 16 FR Serv 2d 766, on reh (CA5 Tex) 510 F2d 234, cert den 423 US 839, 46 L Ed 2d 58, 96 S Ct 68, 96 S Ct 69 and (disapproved on other grounds Norfolk & W. R. Co. v Liepelt, 444 US 490, 62 L Ed 2d 689, 100 S Ct 755, 10 Fed Rules Evid Serv 130, reh den 445 US 972, 64 L Ed 2d 250, 100 S Ct 1667 and (not followed Yukon Equipment, Inc. v Gordon (Alaska) 660 P2d 428, CCH Prod Liab Rep P 9563) and (not followed Klawonn v Mitchell, 105 Ill 2d 450, 86 Ill Dec 478, 475 NE2d 857)) as stated in Flanigan v Burlington Northern, Inc. (CA8 Mo) 632 F2d 880, cert den 450 US 921, 67 L Ed 2d 349, 101 S Ct 1370 and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570) and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

District court did not abuse its discretion in refusing to allow amendment to Jones Act complaint to assert new cause of action based on unseaworthiness where motion was filed only after district court granted defendant's motion for summary judgment and plaintiff gave no adequate reason to excuse delay. Colon v Apex Marine Corp. (1994, CA1 RI) 35 F3d 16.

In cause of action under 46 USCS Appx § 688, amendment would be permitted so as to allow complaint to state it accrued less than two years before statute of limitations was extended from two to three years by 45 USCS § § 51 et seq., and less than three years prior to date of motion to amend complaint. Gahling v Colabee S.S. Co. (1941, DC Pa) 37 F Supp 759, 1941 AMC 600.

Action by seaman under 46 USCS Appx § 688 was dismissed, because suit was filed against general agent instead of United States, and cross motion of plaintiff to amend by alleging tort of misrepresentation as to true owner of vessel was denied. Murphy v Parry Navigation Co. (1950, DC NY) 90 F Supp 725, 1950 AMC 561.

Amendment increasing ad damnum clause toward end of trial is in conformity with spirit of USCS Rules of Civil Procedure that amendments be freely allowed in interests of justice. Yates v Dann (1958, DC Del) 167 F Supp 174, 1 FR Serv 2d 569, 1959 AMC 215.

Seaman does not introduce new cause of action when he amends complaint under Federal Employers' Liability Act (45 USCS § § 51 et seq.) to seek recovery under Jones Act (46 USCS Appx § 688). Mach v Pennsylvania R. Co. (1960, WD Pa) 198 F Supp 471.

Plaintiff who originally filed his complaint alleging simple negligence under 46 USCS Appx § 688 was given leave to amend his complaint to include demand for punitive damages. Gunnip v Warner Co. (1968, ED Pa) 43 FRD 365, 12 FR Serv 2d 176, 1968 AMC 957.

If it is possible by amendment of petition to state cause of action, suit should not be dismissed on exception or motion on part of defendant. Bourg v J. Ray McDermott & Co. (1951, La App, Orleans) 52 So 2d 717, later app (La App, Orleans) 70 So 2d 225.

586. Variance

In seaman's action to recover for injuries sustained by dropping wrench on his toe, there is no fatal variance between allegations in complaint that wrench was in unseaworthy condition in that "teeth" and grip of wrench were worn and defective, and testimony describing wrench as smooth-faced and without teeth; in any event reliance upon such variance is waived by defendant's expressly disclaiming surprise at trial. Michalic v Cleveland Tankers, Inc. (1960) 364 US 325, 5 L Ed 2d 20, 81 S Ct 6.

In absence of motion to make complaint more certain, slight variances which do not tend to mislead defendant are not ground for reversal. Ziegler v Alaska Portland Packers' Ass'n (1931) 135 Or 359, 296 P 38.

587. Miscellaneous

Complaint in action by seaman to recover damages for injuries sustained by plaintiff while member of crew of defendant's vessel which included as part of cause of action law action based on failure of defendant to obtain insurance required by state workmen's compensation law, did not state cause of action under 46 Appx USCS § 688. Serbokov v Great Lakes Transit Corp. (1941, DC NY) 37 F Supp 411, 1941 AMC 757.

2. Answer

588. Amendment

Defendant was permitted to file amended answer to plead that at time of injury he was acting as agent of United States although result would be to dismiss complaint; denial would grant plaintiff right to recover against one not his employer and permit jury trial to which he was not entitled against United States. Murphy v Parry Navigation Co. (1949, DC NY) 87 F Supp 127, 1949 AMC 2084.

Defense of limitation of liability may be asserted in answer even though it be served and filed more than six months after owner of vessel receives written notice of claim; but, in instant case, defendant was not permitted to amend his answer to set up such defense two years after filing original answer and on eve of trial. Odegard v E. Quist, Inc. (1961, ED NY) 199 F Supp 449.

589. Impleader

Shipowner against whom seaman brought action under 46 USCS Appx § 688 for personal injuries inflicted upon him by fellow crew member could implead assailant as third-party defendant. Codrington v United States Lines Co. (1958, DC NY) 168 F Supp 261, 1958 AMC 2233.

Oil wells owner and operator's third-party admiralty demand against doctor must be dismissed, where injured employee sued owner and operator under Jones Act (46 USCS Appx § 688) and requested jury trial, owner and operator then sued doctor for negligent treatment of injured employee under Rule 14(c), and finally employers and employee settled their original action, because absent specific assertion in original plaintiff's complaint that admiralty jurisdiction is claimed under Rule 9(h), third-party plaintiffs cannot properly invoke Rule 14(c) direct demand for judgment against third-party defendant. Harrison v Glendel Drilling Co. (1988, WD La) 679 F Supp 1413.

590. Counterclaims

Actions in personam to recover damages caused by collisions in navigable waters not being within exclusive jurisdiction of admiralty can be raised as counterclaims to actions under 46 USCS Appx § 688. Carstens v Great Lakes Towing Co. (1945, DC Ohio) 71 F Supp 394.

Third party defendant in 46 USCS Appx § 688 action could not counterclaim against plaintiff for indemnity. Cavelleri v Isthmian Lines, Inc. (1961, SD NY) 190 F Supp 801.

Counterclaim based upon seaman's employment contract or theory of unjust enrichment in regard to employment may be asserted by defendant in 46 USCS Appx § 688 suit. Bergeria v Marine Carriers, Inc. (1972, ED Pa) 341 F Supp 1153, 16 FR Serv 2d 1268.

Voluntary payments of maintenance and cure made to seaman can be raised as offset or counterclaim in action by seaman under 46 USCS Appx § 688. Royle v Standard Fruit & S.S. Co. (1944) 184 Misc 348, 52 NYS2d 407, affd 269 App Div 762, 54 NYS2d 778.

591. Miscellaneous

Where owner of tug and barge was notified of plaintiff's injury claim by letter mailed Aug. 8, 1956, and he filed his complaint on Feb. 5, 1957, and served it on Feb. 8, 1957, defendant's answer, pleading in partial defense limitation of liability, served Feb. 26, 1957, was not too late. Murray v New York C. R. Co. (1961, CA2 NY) 287 F2d 152, 87 ALR2d 681, 1961 AMC 1118, cert den 366 US 945, 6 L Ed 2d 856, 81 S Ct 1674.

Defendant's answer stated that it "admits that at all the material times mentioned in the complaint a person bearing a name similar to the plaintiff's intestate was in the employ of the United States on board a certain vessel at an agreed rate of wages under merchant shipping articles and was a member of the crew," and this was sufficient admission that deceased seaman was member of crew. Ledesma v Dichmann, Wright & Pugh, Inc. (1947, DC NY) 74 F Supp 752, 1947 AMC 1500.

3. Motions

592. Continuances

Denial of motion for continuance was not abuse of trial judge's discretion where all parties knew of possibility that plaintiff seaman might be absent and trial judge had provided alternative method of perpetuating seaman's testimony for use at trial by ordering deposition of seaman and any other witnesses who might be aboard ship on high seas at time case was reached for trial. Lamb v Globe Seaways, Inc. (1975, CA2 NY) 516 F2d 1352.

Pendency of limitation of liability action under 46 USCS Appx § § 181 et seq. is grounds for continuance of state court action by seaman under 46 USCS Appx § 688 where both actions involve same incident. Reid v Crain Bros. (1961, La App 3rd Cir) 134 So 2d 917.

593. Directed verdicts and judgments n. o. v.

State of law applicable to maritime oil workers has developed to point where it is proper in appropriate Jones Act (46 USCS Appx § 688) case for district judge to direct verdict on status of offshore worker as seaman under § 688. Marine Drilling Co. v Autin (1966, CA5 La) 363 F2d 579.

In Jones Act (46 USCS Appx § 688) case, trial court can direct jury verdict against seaman only in those extremely rare instances where there is zero probability either of employer negligence or that any such negligence contributed to injury of seaman. Southard v Independent Towing Co. (1971, CA3 Pa) 453 F2d 1115.

Admiralty suits for personal injury are conducted with extraordinary solicitousness for seamen, and directed verdict for defendant in such case is rare. Santana v United States (1977, CA1 Puerto Rico) 572 F2d 331.

594. --Standards for granting or denying

Reasonable man standard in ruling on motions for directed verdict does not apply to 46 USCS Appx § 688 claim; in § 688 cases more severe FELA standard is held appropriate. Allen v Seacoast Products, Inc. (1980, CA5 La) 623 F2d 355, 6 Fed Rules Evid Serv 536 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).

Court can direct verdict or grant judgment n. o. v. on 46 USCS Appx § 688 count only where there is complete absence of probative facts supporting non-movant's position. Gaspard v Taylor Diving & Salvage Co. (1981, CA5 La) 649 F2d 372, reh den (CA5 La) 656 F2d 700 and cert den 455 US 907, 71 L Ed 2d 445, 102 S Ct 1252. Springborn v American Commercial Barge Lines, Inc. (1985, CA5 La) 767 F2d 89 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).

In 46 USCS Appx § 688 action court may not use "reasonable minds" standard to determine directed verdict. Lambert v Diamond M Drilling Co. (1982, CA5 La) 683 F2d 935, reh den (CA5 La) 688 F2d 1023.

Jones Act (46 USCS Appx § 688) incorporates FELA (45 USCS § § 51 et seq.) standard, under which directed verdict against plaintiff is proper only when there is complete absence of probative facts; however, extremely low evidentiary standard applies only to questions of liability or damages once claim is within Jones Act; FELA standard is not applicable to threshold issue of seaman status. Wallace v Oceaneering International (1984, CA5 La) 727 F2d 427.

Although defendant's motion for directed verdict in Jones Act case will be denied if there is slight evidence supporting plaintiff, and defendant's motion for judgment n.o.v. will be denied if jury has decided for plaintiff and defendant seeks to escape verdict, plaintiff will prevail on its own motion for directed verdict or its motion for judgment notwithstanding verdict in favor of defendant only if facts and inferences point so strongly in his favor that court believes reasonable men could not arrive at contrary verdict. Springborn v American Commercial Barge Lines, Inc. (1985, CA5 La) 767 F2d 89 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510); Smith v Trans-World Drilling Co. (1985, CA5 La) 772 F2d 157.

Under Jones Act, showing required to overturn jury verdict is more stringent than in case of general negligence claim; directed verdict or judgment notwithstanding verdict may be granted only when there is complete absence of probative facts supporting nonmovant's position. Boyle v Pool Offshore Co., Div. of Enserch Corp. (1990, CA5 La) 893 F2d 713, reh den (CA5) 1990 US App LEXIS 4462.

Jury award in favor of Jones Act plaintiff must be upheld against motion for judgment n.o.v. where plaintiff, chief engineer on defendant's tanker, claimed he suffered coronary artery disease requiring triple bypass surgery as consequence of defendant's negligence in failing to provide safe workplace and resulting unseaworthiness of ship, since court cannot conclude that no reasonable jury could have reached conclusion that condition of tanker contributed to plaintiff's injury, even though court finds more persuasive defendants' expert's opinion that coronary artery disease was not caused by working conditions. Gorman v Prudential Lines, Inc. (1986, SD NY) 637 F Supp 879.

595. Summary judgments

Inquiry whether employee is seaman within meaning of 46 USCS Appx § 688(a)) is mixed question of law and fact, and it often will be inappropriate to take question from jury; nevertheless, summary judgment or directed verdict is mandated where facts and law will reasonably support only one conclusion. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

Because question of seaman status is mixed question of law and fact, it is rare that answer will be so clear as to be subject to summary judgment or directed verdict, although it is possible that question may be one which need not go to jury. Graham v Milky Way Barge, Inc. (1987, CA5 La) 824 F2d 376.

Summary judgment entered against one defendant in Jones Act case was made final and appealable on date consent judgment was entered disposing of remaining defendants. Levron v Gulf International Marine, Inc. (1988, CA5 La) 854 F2d 777.

Substantial issues of fact, precluding summary judgment, existed in action by ship engineer seeking to recover for hearing loss allegedly occasioned by repeated exposure to loud noises in engine rooms, where question whether plaintiff knew or had reasonable opportunity to discover cause of hearing loss at least 3 years before he filed suit remained indispute. Smith v States Marine International, Inc. (1989, CA5 La) 864 F2d 410.

Claim presents genuine issue of material fact precluding summary judgment where plaintiff claims that employer's agents failed to exercise reasonable care when they undertook to escort intoxicated seamen from bar across hazardous dock to dangerous gangplank, and when they undertook to search for him after his disappearance. Daughenbaugh v Bethlehem Steel Corp., Great Lakes S.S. Div. (1989, CA6 Ohio) 891 F2d 1199, 15 FR Serv 3d 400.

Summary judgment in Jones Act cases is rarely appropriate and determination should ordinarily go to jury; but summary judgment is proper where underlying facts are undisputed and record reveals no evidence from which reasonable persons might draw conflicting inferences about facts. Bogan v Barge T-13315B (1985, ED La) 607 F Supp 85.

Since seaman status is fact-sensitive issue, summary judgment in Jones Act cases is rarely appropriate; but in some cases, court may conclude that no evidentiary basis exists to support finding that injured employee is Jones Act seaman. Hines v Saylor Marine Corp. (1985, SD Ga) 615 F Supp 33.

Summary judgment will be denied where there is genuine issue of fact concerning frequency and purpose of plaintiff's work aboard defendant's vessels for purpose of establishing his status as seaman. Koon v Lakeshore Contractors (1988, WD Mich) 128 FRD 650, affd (CA6 Mich) 889 F2d 1087.

Employer is denied summary judgment on basis of plaintiff's lack of seaman status, where seaman status is generally question of fact certainly not answered definitively by employer's self-serving and conclusory affidavit that it "has never owned, controlled, or operated offshore drilling rigs, platforms, or inland barge rigs" as "fleet," because, by filing this meritless motion at this late stage of proceedings, conduct of employer's attorney teeters precariously on edge of FRCP 11 abyss. Grayson v Petro-Drive, Inc. (1996, SD Tex) 912 F Supp 258.

G. Removal and Remand

596. Generally

Claim under the Jones Act (46 USCS Appx § 688) is not subject to removal from state court to federal court, even in the event of diversity of the parties. Lewis v Lewis & Clark Marine, Inc. (2001) 531 US 438, 148 L Ed 2d 931, 121 S Ct 993, 69 USLW 4129, 14 FLW Fed S 85, 2001 CDOS 1483, 2001 Colo J C A R 992, 2001 Daily Journal DAR 1877.

When seaman has elected to bring his 46 USCS Appx § 688 action in state court, cause is not removable to Federal court. Pate v Standard Dredging Corp. (1952, CA5 Tex) 193 F2d 498; Beckwith v American President Lines, Ltd. (1946, DC Cal) 68 F Supp 353; Rodich v American Barge Lines, Inc. (1947, DC Mo) 71 F Supp 549; Gutierrez v Pacific Tankers, Inc. (1948, DC Tex) 81 F Supp 278; Moltke v Intercontinental Shipping Corp. (1949, DC NY) 86 F Supp 662; Stokes v Victory Carriers, Inc. (1983, ED Pa) 577 F Supp 9; Keegan v Sterling (1985, SD Fla) 610 F Supp 789.

Libelant under Jones Act (46 USCS Appx § 688) has choice of forum and of jury trial, and no one else can change or remove action elsewhere. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94.

Actions under 46 USCS Appx § 688 are non-removable. Preston v Grant Advertising, Inc. (1967, CA5 Fla) 375 F2d 439.

Jones Act claim filed in state court is not removable despite independent basis of federal jurisdiction unless Jones Act claim is joined with separate and independent claim that is within court's federal question jurisdiction. Hopkins v Dolphin Titan Int'l, Inc. (1992, CA5 La) 976 F2d 924.

Plaintiff sufficiently alleged Jones Act claim to trigger non-removability where it alleged that decedent was seaman, he was injured in course of employment, and he was borrowed servant of defendants. Lackey v Atlantic Richfield Co. (1993, CA5 Tex) 980 F2d 332, withdrawn by publisher, reported at (CA5 Tex) 24 FR Serv 3d 776 and substituted op (CA5 Tex) 983 F2d 620, reh, en banc, den (CA5) 1993 US App LEXIS 4580.

On removal of action begun in state court complaint must show that defendant has principal office within district of suit or that he was resident of that district. Martis v Luckenbach S. S. Co. (1923, DC NY) 295 F 569.

Suit brought under 46 USCS Appx § 688 in state court by personal representative of seaman, for injuries resulting in seaman's death, is not removable. Reyes v United States Shipping Board Emergency Fleet Corp. (1924, DC NY) 299 F 957.

Action in state court by seaman to recover damages for contracting tuberculosis, resulting from furnishing of improper living quarters on vessel, was based on negligence, and action being in personam it could not be removed to federal court. Cameron v American Mail Line, Ltd. (1934, DC Wash) 5 F Supp 939, 1934 AMC 201.

When seaman brings action for maintenance and cure, Jones Act [46 USCS Appx § 688] negligence, and unseaworthiness, he is seeking relief for single wrong and where seaman has only received one physical injury, and only relief he seeks is compensation for damages resulting from that injury, removal is not warranted. Skaw v Lady Pacific, Inc. (1983, DC Alaska) 577 F Supp 2.

Removal of action under Jones Act (46 USCS Appx. § 688) from state court upon defendant's filing for Chapter 11 bankruptcy was improper because actions commenced in state court under Jones Act are not subject to removal under 28 USCS § 1452, even though Bankruptcy Court would have had original jurisdiction over complaint under either Jones Act itself or under title 11; 28 USCS § 157 does not divest state courts of jurisdiction over personal injury claims pending before them. Kinder v Wisconsin Barge Line, Inc. (1986, ED Mo) 69 BR 11.

Notice of removal of case filed under 46 USCS Appx § 688, but within 30 days of time that defendant learned that plaintiff could not establish Jones Act claim, was timely. Walker v Nabors Offshore Drilling, Inc. (2000, ED La) 91 F Supp 2d 907.

597. Relation to removal provision of 28 USCS § 1445

Suit filed under Jones Act is not removable pursuant to 28 USCS § 1441 even assuming that plaintiff, by unintentionally naming but not serving vessel itself, created in rem claim; admiralty and general maritime claims are removable only if none of parties in interest is citizen of state in which action is brought. Re Dutile (1991, CA5 La) 935 F2d 61.

Statutory prohibition against removal of suits by railroad employees (28 USCS § 1445(a)) is one conferring or regulating right of action and as such applicable to suit by seaman under 46 USCS Appx § 688. McKee v Merritt-Chapman & Scott Corp. (1956, DC Ill) 144 F Supp 423.

28 USCS § 1445(a), which prohibits removal from state court of FELA actions, is made applicable to Jones Act cases by 46 USCS Appx § 688, which incorporates into Jones Act all statutes regulating FELA suits. Sawyer v Federal Barge Lines, Inc. (1982, SD Ill) 577 F Supp 37.

598. What constitutes separate and distinct actions

Injured seaman who brought complaint alleging negligence under Jones Act (46 USCS Appx § 688), and unseaworthiness under general maritime law, and also sought maintenance and cure, will not be allowed to remove entire action pursuant to 28 USCS § 1441(c), since maintenance and cure claim is not sufficiently distinct from Jones Act claim arising out of same set of operative facts to warrant removal. Gonsalves v Amoco Shipping Co. (1984, CA2 NY) 733 F2d 1020.

Maintenance and cure claims arising from single injury are not sufficiently separate and distinct for removal purposes. Addison v Gulf Coast Contracting Services, Inc. (1984, CA5 Miss) 744 F2d 494.

Removal of seaman's suit under Jones Act was improvidently granted because Jones Act incorporates provisions of Federal Employers' Liability Act (45 USCS § § 51 et seq.) prohibiting removal of cases instituted in state court and Longshoremen's claim is not a separate and independent claim since all claims arise out of a single wrong. Alajoki v Inland Steel Co. (1985, ED Mich) 635 F Supp 398.

In Jones Act suit (46 USCS Appx § 688), plaintiffs' direct state action against defendants' insurer is not separate and independent from claim against defendant, and may not be removed to federal court. Symoenides v Cosmar Compania Naviera, S. A. (1980, MD La) 494 F Supp 240.

599. Circumstances under which removable

In suit by wife of deceased seaman claiming damages under Jones Act and punitive damages for procuring her release through overreaching, release claim is not removable to federal court. Aquafaith Shipping, Ltd. v Jarillas (1992, CA5 La) 963 F2d 806.

Action under 46 USCS Appx § 688 for injuries resulting solely from unseaworthiness of vessel is removable to federal court. Petterson v Hobbs, Wall & Co. (1924, DC Cal) 300 F 811, 1924 AMC 327; Keefe v Matson Nav. Co. (1930, DC Wash) 46 F2d 123, 1931 AMC 426.

Defendants, against whom cause of action based on common law is joined with another defendant against whom cause of action exists under 46 USCS Appx § 688, were entitled to removal on ground of separable controversy. Schotis v North Coast Stevedoring Co. (1927, DC Wash) 24 F2d 591, 1928 AMC 92.

Action for assault was not within 46 USCS Appx § 688 prohibition against removal. Anderson v W. R. Grace & Co. (1929, DC NY) 38 F2d 889, 1930 AMC 113.

Action for death of seaman brought against owner of vessel and charterer was separable controversy and properly removed from state court to federal court and was not subject to remand to state court. Gardiner v Agwilines (1939, DC NY) 29 F Supp 348, 1939 AMC 1535.

Although defendant steamship company had service agreement with United States whereunder it procured master and members of crew for United States, injured seaman could not maintain action under 46 USCS Appx § 688 against defendant inasmuch as defendant did not man vessel and was not seaman's employer; hence, provision against removal in 45 USCS § 56, incorporated into 46 USCS Appx § 688, did not apply to seaman's action, and diversity of citizenship and jurisdictional amount existing, action was properly removed from state court to federal District Court. Baker v Moore-McCormack Lines (1944, DC Cal) 57 F Supp 207.

Contractual maintenance and cure claim is separate and distinct from Jones Act negligence claim for removal purposes. Howard v Transworld Drilling Co. (1984, WD La) 592 F Supp 1305.