Malia v. Southern Pac. Co.

GARVIN, District Judge. This is a motion by the plaintiff to remand this cause to the Supreme Court of the State of New York, Queens County, from whence it has been removed, on the ground that the action is brought under section 33 of the Merchant Marine Act of June 5, 1920 (41 Stat. 1007), which provides that in an action similar to the case at bar all statutes of the United States modifying or extending the common-law right or remedy in cases of personal inj ury to railroad employees shall apply. Section 28 of the Judicial Code (Comp. St. § 1010), relating to the. removal of cases, prohibits the removal of any case involving an injured railroad employee from a state court to any court of the United States. The defendant opposes an order remanding the action, and points out that by section 33, supra, Congress has provided that a seaman who is injured may maintain an action for damages at law. It has been held that the latter expression is to be interpreted to mean “may sue at law in the 'District Court.” Wenzler v. Robin Line S. S. Co. (D. C.) 277 Fed. 812, 818. The same case holds that section 8662, U. S. Compiled Statutes, and section 28 of the Judicial Code, which forbid the removal of an action from a state court to any court of the United States, do not modify the common law in cases of personal injuries, but rather modify the statutory law of removal, and that therefore section 33 of the Merchant Marine Act, supra, which extends to seamen all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injuries to railroad employees, does not apply. The Wenzler Case holds that a motion of this character cannot be granted. Motion to remand denied.