Opinion
Wm. Martin and Arthur E. Griffin, both of Seattle, Wash., for plaintiff.
Bogle, Merritt & Bogle, of Seattle, Wash., for defendants.
NETERER, District Judge.
Sections 24 and 256, Judicial Code (Comp. St. Secs. 991, 1233), give District Courts exclusive jurisdiction of causes of admiralty, 'saving to suitors * * * the right of a common-law remedy where the common law is competent to give it. ' Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 Sup.Ct. 501, 62 L.Ed. 1171. The law of the sea, which embodies the principles of the general admiralty law, was in existence during the Confederation, and was by the Constitution, because of its relation to navigation and foreign and interstate commerce, given national control and recognized as the law of the United States, subject only to Congress to supplement or modify. Justice Van Devanter, in The Allianca (Panama R. Co. v. Johnson) 44 Sup.Ct. 391, 68 L.Ed. . . ., 1924 A.M.C. 551, said:
' * * * As Congress is empowered by the constitutional provision to alter, qualify, or supplement the maritime rules, there is no reason why it may not bring them into relative conformity to the common-law rules, or some modification of the latter, if the change be country wide and uniform in operation.'
The act invoked brings to the admiralty the rule from the common-law system, and extends it to the injured seaman at his election-- gives him the right to have his claim measured by common-law standards, instead of those prescribed by the maritime law. The admiralty rule is tried by the court; the common-law rule may be tried to a jury. The Allianca, supra.
The disposal of judicial power belongs to the Congress. Turner v. Bank of N.A., 4 Dall. 10, 1 L.Ed. 718. The Congress may, as it sees fit, confer jurisdiction not vested in the Supreme Court by the Constitution. Section 1, art. 3; Case of Sewing Machine Companies, 85 U.S. (18 Wall.) 553, 21 L.Ed. 914.
The Congress, in granting to seamen who suffer personal injury in the course of their employment the benefit, at their election, of 'all statutes of the United States modifying or extending the commonlaw right or remedy in cases of personal injury to railway employees' (section 33, Act June 5, 1920, 41 Stat. 1007, amending Act March 4,
Page 549.
1915, Sec. 20, 38 Stat. 1185 (Comp. St. Ann. Supp. 1923, Sec. 8337a)), created new rules and extended new rights for seamen-- a new remedy at their election-- common law. This is the limit of the section; it does not extend the jurisdiction fixed by the Employers' Liability Act (Comp. St. Secs. 8657-8665).
Right may be said to be a legal consequence which applies to certain facts. Remedy is the mode prescribed by the law to enforce a right. The removal provision is not of a remedy; it is not a vested right. Teel v. C. & O. Ry. Co., 204 F. 918, 123 C.C.A. 210. Jurisdiction is the power to inquire into facts and apply the law-- to hear and determine a cause. The jurisdiction is fixed by sections 24 and 256, supra, and may not be changed by implication (Galveston, H. & S.A. Ry. Co. v. Wallace, 223 U.S. 481, 32 Sup.Ct. 205, 56 L.Ed. 516), and the provision fixing jurisdiction in such actions in the court of the district in which the defendant employer resides, or in which his principal place of business or office is located must be conclusively presumed to be the national District Court. Justice Van Devanter I think so held in The Allianca, supra. He said:
'A reading of the provision (section 33) now before us with those sections (24 and 256) * * * makes it reasonably certain that the provision is not intended to affect the general jurisdiction of the District Courts as defined in section 24, but only to prescribe the venue for actions brought under the new act of which it is a part.'
Judge Cushman rightly so held in Wenzler v. Robin Line S.S. Co. (D.C.) 277 F. 817, and was followed in Barrington v. Pacific S.S. Co. (D.C.) 282 F. 900, Panama R. Co. v. Johnson (C.C.A.) 289 F. 964, Malia v. S.P. Ry. Co. (D.C.) 293 F. 902, and Petterson v. Hobbs et al. (D.C.) 300 F. 811, 1924 A.M.C. 327.
This is decisive of the issue on removal, and the motion to remand is denied.