(273 F.) the Constitution and laws, in which it is not required that any minimum amount be involved. Included in the latter is the admiralty and maritime jurisdiction, in which a common-law remedy is expressly saved to the suitor, where, it is competent. From this arrangement, it certainly does not appear but that the court's decision, in a case of the latter character, depends upon the construction of a law of the United States, the maritime law. This renders applicable the rule laid down in the following: Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648; Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257; Patton v. Brady, Executrix, 184 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713. The fact that it arises under such law, and depends for its correct. decision upon the interpretation and construction of the maritime law, appears from plaintiff's complaint, wherein it is averred that the injury occurred on shipboard, where the plaintiff was assisting in the loading of the vessel. This renders applicable the rule laid down in Tennessee v. Union & Planters' Bank, 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511; Chappell v. Waterworth, 155 U. S. 102, 15 Sup. Ct. 34, 39 L. Ed. 85; Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 484, 15 Sup. Ct. 192, 39 L. Ed. 231; Ore. Short Line v. Skottowe, 162 U. S. 490, 16 Sup. Ct. 869, 40 L. Ed. 1048. There is the same necessity for applying the rules for the settlement of the maritime law that there is in determining any other federal law. "The purpose of the creation of the right to remove a case from a state to a federal court was to enable a defendant to have claims against him under the federal Constitution or federal statutes adjudicated, in the first instance, by a federal tribunal." 34 Cyc. p. 1215. In Berton v. Tietjen & Lang Dry Dock Co. (D. C.) 219 Fed. 763, at page 770, where the cause was remanded, while the suit was one on navigable waters, it was a suit by a repairman, a machinist, for injuries sustained while at work upon the vessel in dry dock. While there was a question regarding the safety of the place to work, there was no question in the case of the seaworthiness of the vessel, and the services being rendered, while for the benefit of the vessel, were not of a strictly maritime nature. The repair of the vessel would be in the nature of preparing the ship to perform its function as an instrument of commerce, rather than help it in the performance of such a function. It has been argued that the Judiciary Act, in using the words "arising out of the Constitution and laws of the United States," used those words in a restricted sense, and that the word "laws" refers to statutes of Congress alone. An argument that proves too much defeats itself. Section 24 of the Judicial Code, subsection 1, which defines the general jurisdiction of the District Court, including suits of a civil nature at common law or in equity, where there is diversity of citizenshp, or where there is a federal question in both of which there must be the necessary amount in controversy to give jurisdiction, concludes with this language: "Provided, however, that the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section." Then follows a description of suits, proceedings, actions, causes, claims and cases of some 24 different characters, among which are "civil causes of admiralty and maritime jurisdiction." If these latter causes were not considered as arising under the Constitution and laws of the United States, there would appear to be no reason for the abovequoted proviso. The jurisdiction to entertain a libel in personam is most naturally ascribed to the fact that it arose under the Constitution and laws of the United States. No reason is suggested, or suggests itself, why, if a libel may be entertained in personam, a common-law action is not a competent remedy, saved to the suitor upon the same cause of action. Section 12 of the original Judiciary Act of September 24, 1789, the same being section 648, R. S. (section 1584, Comp. Stats.), provided: "Trials of issues of fact in the Circuit Courts shall be by jury, except in cases of equity, admiralty and maritime jurisdiction." The act of February 16, 1875 (section 1585, Comp. St.), provides for a jury in the Circuit Court in deciding a cause of admiralty and maritime jurisdiction, such jury to be of not less than 5 or more than 12 persons, "to whom shall be submitted the issues of fact in such cause, under the direction of the court, as in cases of common law," discloses a view on the part of Congress that it was appropriate to have such issues of fact tried by a jury. It is true that it appears there may be some question about whether the above act is still in effect. If it was appropriate on an appeal in an admiralty case from the District to the Circuit Court to have a jury, although not a commonlaw jury, determine the facts, where is the justification for contending that, on a removal of a common-law action based on a maritime tort from the state court to the District Court, the common-law jury, which the suitor would have had in the state court, is not to be secured to him in the District Court? It certainly would be in cases where the basis of the removal was diversity of citizenship. Why should it not be where the cause is to be removed on account of a federal question? The Judicial Code, by which the Circuit Court was abolished, by section 24, subsection 3, changed the language of the original section of the Judiciary Act, section 9, as already changed by subsection 8, section 563, R. S., by omitting the word "exclusive" in describing the admiralty and maritime jurisdiction of the District Court. This, as well as the saving clause, shows, as does the explanatory expression in subsection 8, "except in the particular cases where jurisdiction of such causes and seizures is given to the Circuit Court," that what was intended to be excluded was the Circuit Court jurisdiction, and not the jurisdiction of the courts of the state at common law. It has been contended that the fact that this question has never before arisen in the more than 100 years that the District Court has had jurisdiction of suits in admiralty is significant. This argument appears formidable, but, when examined, it is not as convincing as it sounds. There was no opportunity for the question arising prior to the adoption of the Judicial Code in 1911, abolishing the Circuit Court. The reason is that original exclusive jurisdiction in admiralty was conferred (273 F.) upon the District Court; the Circuit Court only having appellate jurisdiction. The District Court was given no general jurisdiction at common law, only having the latter jurisdiction conferred upon it in a few particular classes of cases. Section 11 of the Judiciary Act gave the Circuit Court jurisdiction in equity and the common-law jurisdiction, generally; that is, subject to general limitations as to amount in controversy and the like, where the United States was plaintiff, an alien was a party, or where there was diversity of citizenship. Section 12 provided for the removal from the state court to the Circuit Court where the suit was against an alien, or by a citizen of one state against a citizen of another state. No jurisdiction, either original or derivative by removal, was conferred by this act upon either the District or Circuit Court generally over a cause that arose under the Constitution or laws of the United States. Between the time of the adoption of the Judiciary Act and the close of the Civil War, particular statutes had provided for the removal to the Circuit Court of certain special classes of cases (sections 639-647, R. S.; 34 Cyc. 1216); but there was still no general removal act, nor was there prior to the Act of March 3, 1887 (24 Stat. 552). By this act jurisdiction was first conferred on the Circuit Court, concurrent with the courts of the states, of "all suits of a civil nature, at common law or in equity, arising under the Constitution or laws of the United States," and by section 2 of that act it was provided that suits of that character, "of which the Circuit Courts of the United States are given original jurisdiction by the preceding section, may be removed by the defendant or defendants therein to the Circuit Courts of the United States. * * * As the Circuit Court had no original jurisdiction, under the admiralty and maritime law, a cause arising thereunder could not be removed. Under the foregoing terms of section 2, of course, there was no removal from the state court to the District Court, which did have such original jurisdiction. By the Judicial Code, taking effect January 1, 1912, both the original jurisdiction of the Circuit Court and its jurisdiction upon removal were transferred to, or merged in, the District Court. Steamboat Co. v. Chace, 83 U. S. (16 Wall.) 522, 21 L. Ed. 369, was a suit on account of a tort in a collision on navigable waters, and was decided in 1872, long before the first general removal statute and the conferring of jurisdiction on the Circuit Court because of what has now come to be known as a federal question was involved. The following language occurs in that decision: "Difficulties, it must be conceded, will attend the solution of the question, but it is not necessary to decide it in the present case, as the jurisdiction of the state court may be supported, whether such a suit may or may not be maintained in the admiralty courts. Sufficient has already been remarked to show that the state courts have jurisdiction if the admiralty courts have no jurisdiction, and a few observations will serve to show that the jurisdiction of the state courts is equally undeniable if it is determined that the case is within the jurisdiction of the admiralty courts. Much discussion of that topic cannot be necessary, as several decisions of this court have established that rule as applicable in all cases where the action in the state court is in form a common-law action against the person, without any of the ingredients of a proceeding in rem to enforce a maritime lien. Where the suit is in rem against the thing, the original jurisdiction is exclusive in the District Courts, as provided in the ninth section of the Judiciary Act; but when the suit is in personam against the owner, the party seeking redress may proceed by libel in the District Court, or he may, at his election, proceed in an action at law, either in the Circuit Court if he and the defendant are citizens of different states, or in a state court as in other cases of actions cognizable in the state and federal courts exercising jurisdiction in common-law cases, as provided in the eleventh section of the Judiciary Act. He may have an action at law, in the case supposed, either in the Circuit Court or in a state court, because the common law in such a case is competent to give him a remedy, and wherever the common law in such a case is competent to give a party a remedy, the right to such a remedy is reserved and secured to suitors by the saving clause contained in the ninth section of the Judiciary Act. * * Questions of the kind cannot arise in suits in rem to enforce maritime liens, as the common law is not competent to give such a remedy, and the jurisdiction of the admiralty courts in such cases is exclusive. Such a question can only arise in personal suits where the remedy, in the two jurisdictions, is without any substantial difference. Examined carefully, it is evident that Congress intended by that provision to allow the party to seek redress in the admiralty if he saw fit to do so, but not to make it compulsory in any case where the common law is competent to give him a remedy. Properly construed, a party under that provision may proceed in rem in the admiralty, if a maritime lien arises, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his common-law remedy in the state courts, or in the Circuit Courts of the United States if he can make proper parties to give the Circuit Court jurisdiction of his case." 83 U. S. (16 Wall.) at pages 532-534, 21 L. Ed. 369. A portion of the language used may not have been necessary to the decision; that is, in determining that the state court of Rhode Island had common-law jurisdiction to try the cause, it was not absolutely necessary to determine in what cases the courts of the United States would also have jurisdiction. The foregoing case was one of the authorities upon which chief reliance was placed upon the reargument. Another was Garcia y Leon v. Galceran, 11 Wall. (78 U. S.) 185, 20 L. Ed. 74, in which the language used is not materially different from that above quoted; while the decision in American Ins. Co. v. Canter, 1. Pet. (26 U. S.) 511, 7 L. Ed. 242, was controlled by reason of the fact that the case arose in Florida while it was a territory, and therefore at a time when the authority of Congress was supreme. Another case relied upon was Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. 811, 31 L. Ed. 629. This was a case regarding what was claimed to be a nuisance, the obstruction of a navigable stream. In such a cause, the reason for maintaining that, under the limited powers delegated to the general government, it was necessary that there be a particular statute penalizing the act of which complaint is made, is apparent. There had, at the time of this decision, been no such legislation by Congress as to take all control from the state of such matters as the authorizing of a bridge over a navigable stream. In view of the Sixth Amendment, the proviso at the close of subsection 1 of section 991, Comp. Stats., and the saving clause in subsection 3 of said section, if this cause is held to be removable, it would seem to logically follow that a suitor, suing on account of a maritime (273 F.) tort at common law in the District Court for an amount where the value in controversy alleged should exceed $20, could demand a jury as a matter of right. Such a radical departure from the established practice is alone sufficient to cast a doubt upon the right of removal. ** * * While not convinced that the views we have expressed herein are erroneous, yet the language used in Steamboat Co. v. Chace, supra, and the language of Justice McReynolds regarding the Supreme Court's not having "delimited the precise effect" of the saving clause upon the jurisdiction (Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171); the language of Justice Holmes in the case of The Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264, in saying that the effect of the saving clause was simply to leave open the common-law jurisdiction of the state courts over torts committed at sea; the holding in Berton v. Tietjen & Lang Dry Dock Co. (D. C.) 219 Fed. 763, and sections 1584 and 1585, Comp. Stats., with no precedent directly in point upholding the jurisdietion, leaves the question, at least, doubtful, in spite of the decision in Hanrahan v. Pacific Transport Co., Ltd. (C. C. A.) 262 Fed. 951, in which certiorari was denied (252 U. S. 579, 40 Sup. Ct. 345, 64 L. Ed. 726). In the latter case it does not appear whether jurisdiction was invoked on account of diversity of citizenship or not. There being no doubt, under the Washington Supreme Court's decision in Sandanger v. Carlisle Packing Co., 192 Pac. 1005, as to the state's jurisdiction to afford to suitors the advantage of its common-law procedure, and the jurisdiction of this court being not at all clear, it is the court's duty to remand the cause. Simkins' A Federal Equity Suit, p. 803; Groel v. United Electric Co., 132 Fed. 265, and cases cited; Concord Coal Co. v. Haley (C. C.) 76 Fed. 882; Hutcheson v. Bigbee (C. C.) 56 Fed. 329; Boatmen's Bank v. Fritzlen, 135 Fed. 650, 68 C. C. A. 288; Wrightsville Hdwe. Co. v. Colwell (C. C.) 180 Fed. 589; Western Union Tel. Co. v. Louisville & N. R. Co. (D. C.) 201 Fed. 932; Drainage Dist. v. Chicago, M. & St. P. R. Co. (D. C.) 198 Fed. 264. Motion to remand will be granted. LUCKING v. DETROIT & C. NAVIGATION CO. No. 392. 289-Suit held within jurisdiction of federal court as involving 1. Courts A bill against a steamship company, alleging that it has for many years during each navigation season on the Great Lakes, through arrangements with connecting railroad carriers, established through routes and rates for the transportation of passengers and property in interstate commerce, partly by water and partly by rail, that it threatens, without lawful reason, to discontinue operation of its vessels in violation of the provisions of Interstate Commerce Act Feb. 4, 1887, as amended, and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 273 F.-37 |