Barrington v. Pacific S. S. Co.

WOEVERTON, District Judge (after stating the facts as above). The action is predicated upon section 33 of the Merchant Marine Act of June 5, 1920 (41 Stat. 1007), which provides, among other things: “That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, (vith the right of trial by jury. * * * Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.” It is clear that this court is without jurisdiction of the parties, neither of the defendants residing or having its principal place of business in Oregon. But does it, within the purview of the statute, have jurisdiction over the subject-matter? If it does, the defendants have waived jurisdiction as to parties by appearing generally, and not specially for controverting jurisdiction only. Jurisdiction under the present statute is not founded upon diversity of citizenship, but upon the fact that the plaintiff is a seaman, and that, being a seaman, he is entitled to his action for personal injuries in a court having jurisdiction of the cause. The action is special to seamen, which creates a new remedy, and the court authorized to entertain jurisdiction of the cause is one specially designated. In the sense, therefore, in which it is so designated, it is constituted, for the purpose of actions by seamen for personal injuries, a court of special, and not general, jurisdiction. The mandatory language of the statute indicates as much. Mark the language: ,, “Jurisdiction in such actions shall be under the court of the district,” etc. So it would appear by usual interpretation that no other court has jurisdiction of the cause, except the court of the district in which the defendant employer resides or in which his principal office is located. There is a reason for this; the purpose obviously being to prevent seamen from suing the owners and lessees of vessels in any port of the country away from their residence or principal place of business. There can be no analogy to the statute where general jurisdiction is given on the ground of diversity of citizenship and the venue depends alone upon the residence of the parties. In this view, the case of Ware-Kramer Tobacco Co. v. American Tobacco Co. (C. C.) 178 Fed. 117, is without application, and I am unable to agree with its application in Johnson v. Panama R. Co. (D. C.) 277 Fed. 859. The demurrer will be sustained.