Opinion
May 23, 1952.
Jacob Rassner, New York City, for plaintiff.
Haight, Demino, Gardner, Poor Havens, New York City, for defendant.
On February 4, 1947, Jonas Jonassen, a member of the crew of the S.S. Cape Lopez, was injured on board the vessel.
On June 10, 1948 he filed a libel in the Eastern District Court against United States of America and Norwegian American Line, Inc., for damages under the Jones Act, 46 U.S.C.A. § 688, in his first cause of action, and for maintenance and cure in his second cause of action.
On September 15, 1948 he filed a complaint in this District against Norwegian American Line, Inc., for damages under the Jones Act in his first cause of action, and for maintenance and cure in his second cause of action.
The allegations and recovery sought are identical in the libel and the complaint.
On April 14, 1952 Judge Byers, in the Eastern District, on motion of respondent Norwegian American Line, Inc., dismissed Jonassen's libel because libelant signed shipping articles in Norway with a Norwegian shipowner for a voyage on a Norwegian vessel, and also declined jurisdiction under the general maritime law.
Defendant Norwegian American Line, Inc., here moves to dismiss plaintiff Jonassen's complaint upon like grounds. As to both causes of action, the motion to dismiss must be granted. Catherall v. Cunard S.S. Co., D.C.S.D.N.Y., 101 F. Supp. 230.
As to the first cause of action under the Jones Act, an additional reason for dismissal appears. Libelant having elected to proceed in admiralty when he filed his libel in the Eastern District on June 10, 1948 may not now sue at law for the same cause of action. Balado v. Lykes Bros. S.S. Co., 2 Cir., 179 F.2d 943, 945, where it was said:
"In our opinion, election is required by the Jones Act only between a trial by jury and a suit in admiralty. Here that election was made when the plaintiff brought his action at law under the Jones Act."
In the case at bar Jonassen made his election when he brought his suit in admiralty.
Complaint dismissed. Settle order.