Silas Blake Axtell: -- back towards the reach of this modern steamer. Now, I want to discuss the law. It was just 50 years ago that I first met Andrew Furuseth who designed the LaFollette's Seamen's Act. I was a clerk in the office of the Seamen's Branch of the Legal Aid Society. Continued there for 8 years, and eventually I became officially counselor for Mr. Furuseth's union called the International Seamen's Union of America. The first edition of the Seamen's Act was not signed by President Taft because it affected foreign ships, and there was so much protest from foreign governments who didn't want any changes made. The Titanic disaster happened April 15th, I remember it distinctly; 2000 people nearly drowned, more than half of the people on the ship, the ship and though advertised is the safest thing ever built, had life preservers and rafts enough for only, 40% of the people on board. So we seized that opportunity to frame up a safety law that would apply to all foreign ships as well as American in carrying of passengers. The Jones Act, Section 20 was my idea, that is the, to try to modify the fellow servant rule. You would laugh if I read to you from our old brief in the Chelantis case. We argued that the case was governed by the common law, not by the maritime law. The source to that idea was The Osceola case which court had said formally that fellow servant rule is a defense and our lawyers and judges all believe it. Then came the great decision of Justice McReynolds for this Court. When we went back to the (Inaudible) 1774 and discovered that it had been effectively and intelligently stated then, we have a general maritime law of our own. And thus the Compensation Act which we since learned were originated by Mr. Marks, adopted by people everywhere to overcome the terrible defenses of the common law, the assumption of risk doctrine and contributory negligence which defeated so many claims. He said that the Compensation Act of Maryland, and New York were varied the uniformity of the maritime law, and so of course the seaman and the longshoreman were relegated to the maritime law. The thing came to a head with me in the Bird case in Philadelphia. I was on trial 1919. I had been to sea that summer. The court was seriously considering for several months, the Circuit Court, whether the Judiciary Act of 1331 really saved any remedy for seamen of a trial by jury. Some of our district judges of that age, of that date who have died long since, were quite reactionary and hard, and it was very difficult to get what I as a lawyer of the Legal Aid Society considered justice.
Felix Frankfurter: You might infer that Justice McReynolds (Inaudible)
Silas Blake Axtell: No, I have adopted his decision as a very divine thing, because he has laid the groundwork for word of law, adopting the ancient maritime law, modifying it as we can. It's what we say it is, all foreign ships entering here are subject to it. If they don't like it, they can stay out. That was the argument that brought the great Justice Sutherland into this thing in 1919-20, the decision in the Dillon-Strathearn case. Within 37 days after the decision in that case, Senator Jones pushes through this Jones Act that contained about 100 or more amendments of the Maritime Law, three relating to seamen; one of them the provision that changed the (Inaudible), the courts have found that it was not effective and we have modified it, Senator Jones and Mr. Furuseth (Inaudible) in office, it was Senator Sutherland, he'd only a -- well, it was just like next week to see him. They had taken the act and amended it to read that the seamen were entitled to half the wages earned and unpaid, because under the articles where we'd provide it in the original bill, they should get half the wages due them. The Court concluded that there wasn't anything due them because their contract said that there wasn't anything due them. We got John W. Davidson to help us in the Jackson-Archimedes case that he was not successful. They held that even those advances made in foreign ports were valid, even though our act said in anticipation that it could not be considered in figuring accountable wages of the seamen here. I speak to you intimately of this thing because it's been my life. I have carried on so far as I was able, the work of Andrew Furuseth or tried to. It's the greatest example of this country's development that I know. This humble man from Norway, educating himself, coming here conceiving, that under the Thirteenth Amendment it was illegal to have men arrested for quitting their jobs, carrying a thing through as he did in 1897 to the Supreme Court in which Justice Holland dissented and Mr. Douglas pointed out in 1898, the White Act, destroyed, arrest for desertion for American Seamen on American ships, but we wanted it to apply to the foreign seamen on the foreign ships and we devised and amended the act in every way we could think of to extend it to foreign ships, to give them freedom too, so that their visit to the shores of America meant a better freedom to anybody and everybody. Where we went back, we went in the Southern Building, Furuseth and I, and Senator Sutherland to the office of Senator Jones. You won't find any hearings on this Section 33 of the Jones Act, why? Because I had argued the Abdu Nigretia case before the Supreme Court reported 247 U.S. 27, and lost it on the ground that we had not in saying that courts in United States are open to seamen included the words, including the appellate court and this Court under in a established rule held that the act did not benefit the Hindus who demanded half wages in Brooklyn unless they are shipped. Well, Senator Jones remedied that, give me your amendment boy. He was about 6 feet 6, black-haired, ex-Methodist minister from State of Washington, (Inaudible) he says none of the congress, none of the senators won't go home at government expanse until this bill is signed, and he tacked it on the Civil Sundry Appropriation act and you find, the decision was April 21st of the Supreme Court and the amendment was July 1st at the same year, phenomenal, wasn't it? Now, I'll natural to go to the Supreme Court to Mr. Jones about our amendment in the Jones Act. Senator Reynolds had -- McReynolds judge McReynolds, I think a great decision I say this more sincerely. I was so ignorant of the history of our Maritime Law and I began that it wasn't funny.
William O. Douglas: What position (Inaudible)
Silas Blake Axtell: The Chelantis case. That's where he implied what he'd already said in Southern Paciﬁc against Jensen and we discussed the question of the jury trial on account of the threat of an appeal of the Supreme Court in the Bird case and what I've seen happened in the Chelantis case, I said I'm going to write this thing and a seaman may elect, write an argument about that, Senator Sutherland said that it isn't necessary, constitution's got a right, don't have to have it. I insisted. They let me have my way and the rest of the act was written by Senator Sutherland, making a Railway Act applicable to seamen by reference. Well I've tried five time before this to get here. (Inaudible), Hogan against The Hamburg-American Line, Holler case, one of them – Judge Learned Hand in his Taylor against Atlantic Maritime which was reversed by this Court, the opinion by Mr. Justice Jackson, he, when the case, the Jones Act came before in the 1924 on a motion made by Vernon Jones of the big firm of Kirlan, Campbell & Keating, denied the motion to dismiss and said I think it's ridiculous to argue that Congress intended this act to apply only to American seamen, why it would American shipping at such a disadvantage? They settled the case, never went any further. In the Paula case Justice Learned Hand sat and my brief was simply a restatement of his decision in Stewart against The Pacific Mail Steamship Company and his answer was, well I was just a District Judge then. That made any difference in the law. He didn't say a word about it in his decision, Taylor against Atlantic Maritime, not a word. In the Taylor case he adapted a compromise. He along with a judge who wrote the opinion in Paula had said we think that we couldn't apply this law to foreign ships unless Congress makes it more clear that that was the intention. I say to you that if the defendants here want relief from the Jones Act, they must apply to Congress to get it. In the absence of treaties, they are governed. What is the source of it? Harden against Gardner, could you read those all cases Read against (Inaudible). He opened the doors of American courts to all seamen and they were seamen from all country then just as same as the Reynolds. And after that for 50, 60 years these foreign governments to home or here now started writing treaties, commerce and friendship they called them, and Article 23 and 24 related to control of the crewmen who are visiting our ports that those matters internal regime with the ship including torts, injuries, neglected treats would it be governed by the law over the flag of the ship? When we stripped that away, I wrote that provision too in the Seamen's Act, Section 16, I think Mr. Furuseth is set to talk about that. I knew enough about the constitution, I know that there is provision that said that the treaties are the highest law of the land. So we directed the President to abrogate those treaties. Mr. Taft wouldn't sign the bill, but Woodrow Wilson signed the bill. Judge Denman, former head of the shipping board, Honored Circuit Judge of the Ninth Circuit, the oldest living judge I guess in the federal judge sitting today, was counseled to the ship honoring crowd in their dealings and knew Furuseth and Woodrow Wilson happened to ask him, Mr. Denman what shall I do without this thing? He says, sign it. A letter from Denman and then the rest by him is in this little book, that I've taken the privilege of putting in the library of this Court. You find on page 222, a picture of the seaman and the senators and the congressman and the Seamen's Act and Woodrow Wilson at the top and here in the third line is Judge Sutherland, read the citations quoting from his findings and Senator Jones on this very law, read the decision of Judge Sutherland in O'Hara against Luckenbach, where the ship owners had disregarded the provision that required that the crew be divided in the equal watches and that caused several disasters, (Inaudible) one of them, (Inaudible) didn't -- wasn't prevented by Judge Sutherland's decision, but this great lawyer designed this Jones Act and it was his considered judgment and I heard in the discussion with Senator Jones that the amendment of the law giving the seamen election any seaman election gave the individual the choice, he could invoke jurisdiction of a court. That's what America is for, that's our trouble to be. Then (Inaudible) has saved us from discretion of Sputnik Business. He came from Germany. So he said was the first American to learn that the Thirteenth Amendment was in conflict with a provision to the Seamen's Act that permitted the man to be sent to jail for refusing to work, the very essence of our freedom, isn't it? It took a foreigner to do that and no reason, a poor man, self-educated person, man of the greatest culture and aesthetic, who said a labor union leader could be youthful should have nothing in his own and want nothing for himself. I spent 30 years with that old man, always at the Capital Hotel before the decisions of this Court, in the case the (Inaudible) case, the Abdu case, I don't know, six different Chief Justices who sat on cases I'd had the opportunity to come here in. This isn't a great, great experience. Any lawyer who had the ability training, a lawyer ought to have would have done better than I have done. All I have had to contribute was persistence, not too much intelligence, but I have learned with Andrew Furuseth that to work is to worship and to labor is to pray and in my labors I pray that god will tell you how to decide this case.
Earl Warren: Mr. Quinlan.
John L. Quinlan: May it please, Your Honor and may it please the Court. I appear for Compania Trasatlantica that is the Spanish line, the owner of the vessel and also for Garcia & Diaz, the agents, both are named defendants in the suit. I address myself first to the interest of the Spanish Line, Compania Trasatlantica. The single or rather major point by the respondent Compania in the lower courts and here is simply whether this seaman can maintain suit under the Jones Act and under the General Admiralty Law against respondent Compania Trasatlantica. I would like to touch on the facts and the procedure as it went on in the District Court. In the answer of Compania Trasatlantica and it appeared generally and it does not say that the District Court did not have jurisdiction and does not have a jurisdiction of a complaint upon which the face of it stakes. There is an action under the Jones Act, no question of the jurisdictions of the District Court. The point we raised in our pleadings and the point we raised in the District Court was that this Spanish seaman could not maintain suit against this Spanish corporation under the Jones Act and under the General Admiralty Law. The suit was on the law side of the Federal Court. The defendant Compania asked the court to consider the defenses raising that preliminary to trial. The authority for that, the authority for that is in Rule 12 of The Federal Rules of Civil Procedure, I've quoted that rule on pages 25 and 26 in my brief and that rule provides that where defenses such as those raised by the Spanish Line and its answers are presented and the party asked the District Court to consider the defenses preliminary to trail, those defenses, the rule said shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination thereof be deferred until the trial. The rule further provides that a defense which they have numbered six, failure to state a claim upon which relief can be granted, but if that rule is considered the District Court can go outside the complaint, outside the pleadings, take testimony or consider other factors and other matters and shall treat the motion as one for its summary judgment under Rule 56. The purpose of the rule is quite simple. If we accept the petitioner's position, no motion after a defendant has appeared generally in an action, no motion addressed to the right of the plaintiff to maintain the action could ever be heard in the District Court. We have to go through a full trial even it took weeks and then at the end of that trial with the court undoubtedly in many cases its mind made up that the action could be maintained would then briefly in an, a matter of second say this action can not be maintained. Practice in our courts -- that just not is not it and it just cannot be. That is how the hearing came on before Judge Sugerman on the question of the right to maintain this act under the Jones Act and the General Admiralty Law. I asked for it and the other defendants on behalf of their respective clients asked for it whether it's Compania Trasatlantica the principally asked for and -- pardon me sir.
Felix Frankfurter: On the claim of general maritime how it was for -- and it is your contention that District Court does not have and I'd say District Court does not have a situation like this, jurisdiction in the sense of how that if all the facts were admitted Court of Appeals petition for remission against the (Inaudible) or that it is within the general -- that it is within a considerably wide domain in which, although as a matter of power the District Court proceed itself without having to decide the litigation the considerations (Inaudible) it could use to produce or and limit the litigations with appropriate power in the court.
John L. Quinlan: I don't think I quite get Your Honor's point.
Felix Frankfurter: You say that as a matter of power, the District Court by the limitation against that governs a District Court, it couldn't even if it's all the equity loosely speaking (Inaudible) listing out in a Federal Court, it couldn't as a matter of strict limitations such as trying to give authority to the District Court, take hold of this litigation under the General Maritime Law, is that your position?
John L. Quinlan: That is one of my positions, sir. I say and my position is based on this.
Felix Frankfurter: I just want to know what this is.
John L. Quinlan: Yes, that the General Maritime Law of the United States cannot be applied to this particular seaman and --
Felix Frankfurter: Are you talking about Jones Act --
John L. Quinlan: I am talking about the General Maritime --
Felix Frankfurter: -- or the General Maritime Law?
John L. Quinlan: I am talking about the General Maritime Law sir, that this seaman cannot make claim under our General Maritime Law and the District Courts should not apply it to it. The District Courts have power to apply the General Maritime Law to anyone in any situation, but I say as to this one and in this situation it should not be applied.
Felix Frankfurter: Well, it should not be applied or it cannot be applied, which?
John L. Quinlan: I say it should not be applied and I say further for other reasons, it cannot be applied.
Felix Frankfurter: Result may be the same, but jurisdiction, one of these loose words had always failed to amend that, doesn't make a difference, I think the outcome (Inaudible) -- require the other.
John L. Quinlan: Well, I say --
Felix Frankfurter: -- court's jurisdiction.
John L. Quinlan: I say The General Maritime Law as well as the Jones Act cannot be applied to this seaman for the following reasons. A Spanish National, resident of Spain on a Spanish flagged vessel, registered in Spain on a voyage from Spain out and returning to Spain under a contract or articles of agreement providing that in the event of injury his rights shall be governed by the Code Law of Spain and Spain only has Code Law, I say that the District Court cannot apply the General Admiralty Law to this man for the very reasons this Court said the Jones Act could not be applied in the Lauritzen against Larsen case. That the law of the flag prevails, that the man's contract with his employer must be respected and I say further as in that case, in this particular case, this man, this seaman, the law of Spain gives him adequate remedy and compels his employer, the Steamship Line, to ensure his rights under those remedies. This man, under Spanish Code Law, applying to Spanish seaman on Spanish flagged vessels, will receive for life and this is far more generous than most of our United States State Compensation Acts, will receive for life from between 35% and 50% of his wages. He can have a hearing in the Compensation Courts in Spain which they refer to as a Labor Court and within that Compensation Court or Labor Court he establishes that his employer, the Steamship Line was negligent. His compensation can be increased, 50% for a life. Under another section of the Code Law of Spain his medical bills are paid by his employer's insurer as the same as our cure here. He is furnished maintenance the same as under American Law. Under Spanish Law he has remedies identical with those of American seaman, except for an American seaman sues for a lump sum, Spanish seaman gets his compensation right and maybe far better off because he never has to prove negligence to get the original 35-50%.
Felix Frankfurter: Is there a survivorship on Spanish Law?
John L. Quinlan: Pardon me sir.
Felix Frankfurter: Is there a survivorship for the widow --
John L. Quinlan: Oh yes, yes sir. Yes sir that compensation is -- it is generous compensation act. It is far older that our compensation, any compensation act we have in this country and has existed for many, many years. On the assertion that the Spanish Line did not pay the hospital bills for this man I want to say briefly on that. Garcia & Diaz, the agents for the Spanish Line, it all appears in the record, all this is in the record, informed St. Mary's Hospital in Hoboken as well as the attending physician that their bills would be paid. About June 11, the attending physician advised Garcia & Diaz, the agents here, that this man could leave the hospital, was well enough to leave the hospital and enquiry was made of him, is he in sufficient condition to repatriate to Spain? Now it was the duty of the Spanish Line to take this seaman out of the port of the United Station and if it didn't, be fined to thousand dollars. They come in on a 29-day leave; they must leave with their vessel. But if they're injured they can stay here till they are ready to leave, but then it's incumbent on the employer to take them out of the port, that's why the enquiry was made. The surgeon attending the man in the hospital said yes, he is fit to travel to Spain, particularly because we had aboard this as Mr. Axtell says modern two-year old steamship with all winches from Denmark on it, which is not the fact, there is nothing in the record it, but it was very modern new ship; it had a ship surgeon on it. And this defendant Compania through its agent tendered the man repatriation and this defendant through its agent Garcia paid the doctor his bill to that date. And informed the doctor that it could not commit its principal Compania to any further medical charges, it had no authority to do it and should it do it. And its employer has to pay, it would be highly questionable whether Compania could be reimbursed to those by its insurer. And Spanish Line informed St. Mary's Hospital to the same effect and asked St. Mary's Hospital for a bill to June 11. They send a bill to June 14; we asked them again for a bill to June 11. This agent here had to pay a bill to June 11, had to account to its principal and had to hand proper papers. And on the trial this action before Judge Sugerman the hospital was again told that if it would submit a bill to proper date the bill would be paid. This defendant Compania has furnished maintenance and has furnished cure and the record discloses it has through the National Insurance on Spain setup the pension of this man for life. That has been established, it awaits him, he has been tendered repatriation, but if it any time he wanted his compensation he did not have to go to Spain because it's in the record clearly that he could have gone up on 5th Avenue, I think it's New York City to the Spanish Consulate asked for his compensation and asked for a hearing on it and get a certification from a doctor and he would have been furnished his compensation, Spanish compensation here in the United States, he did not have to return to Spain for it. Now as to the position of Compania with respect to the Jones Act and the General Admiralty Law, this Court decided in the Lauritzen case that that Danish seaman could not maintain suit under the Jones Act. That case did not involved General Admiralty Law, only the Jones Act. And the only difference between the Lauritzen case and the present case on the Jones Act is one, the accident in the Lauritzen case happened in Cuba, the accident in this case happened in Hoboken, New Jersey and a port of New York. I say that everything this Court said in Lauritzen and denying that man Larson, the right to man -- to stay in suit under the Jones Act applies equally and fully to this man and of the place of accident has no bearing on the decision of the question. If this man could maintain suit under the Jones Act as this Court has pointed out in the Lauritzen case as to Larson, if this vessel or any Spanish vessel, the vessel of any nation called at 20 different countries on a voyage or 10 different countries and every point it entered, it would be subjected to a different Workmen's Law. It would be compensation, and in many of the ports injury to a workman involves penalties and sometimes imprisonment if the negligence by the (Inaudible) is semi-criminal. If it's what we would call gross negligence, they would call in some countries criminal and a man could be put in jail for it. But every port this vessel would go into, this employer would be subjected to different law and in the Lauritzen case this Court said that should not be.
Felix Frankfurter: Where did (Inaudible)
John L. Quinlan: In Bilbao, Spain.
Felix Frankfurter: In the Lauritzen case it's signed at New York.
John L. Quinlan: They signed at New York but that was non-attended man have been sick here in the case and --
Felix Frankfurter: Where is that point -- what that court in that case?
John L. Quinlan: They said it meant not be.
Felix Frankfurter: No, no, no but the fact was.
John L. Quinlan: He signed them in New York, yes. In that case the seaman did say.
Tom C. Clark: Does the Seaman's Act apply?
John L. Quinlan: Pardon me sir?
Tom C. Clark: The Seaman's Act of 1915.
John L. Quinlan: The Seaman's Act --
Tom C. Clark: (Inaudible)
John L. Quinlan: Well that's, the Seaman's Act 1915, sir is what we now refer to it as the Jones Act.
Tom C. Clark: (Inaudible)
John L. Quinlan: No it did not Sir. The act which was amended to give foreign seaman, it's an entirely different statute. That was the wage statute which provided that any seaman could demand one half his earned wages in any port.
Tom C. Clark: As earned wages only (Inaudible)
John L. Quinlan: As earned wages only.
Tom C. Clark: It did have (Inaudible)
John L. Quinlan: To recover them?
Tom C. Clark: You said they covered wages in the American ports.
John L. Quinlan: And they said recovered them in American Court. Now that sir as it originally was written and then subsequently was amended to say that provided further a foreign seaman can demand half his earned wages in an American port and shall have liberty to go into an American court to procure them if they are not paid to him. I think that is very important when thinking of the Jones Act and when considering the Jones Act, that statute, which is the wage statute because the La Follette Act which was the forerunner of the Jones Act and all that Jones Act did was broaden the liability features. It didn't change the right to sue and it didn't create any new defendants or any new plaintiffs. It just broadened and it wiped out more fellow-servants whose negligence used to bar. The La Follette Act was entitled, an act to promote the welfare of American Seaman in the American Merchant Marine. It had absolutely nothing in the heading or in the Act or in the history of the Act to indicate even slightly that the La Follette Act when it was passed was ever intended or thought out as in the future applying to alien seaman on alien flagged vessels, even though if hurt in the port of New York. And when the La Follette Act was amended, that was 1950 and amended in 1920, they then called it the Jones Act and as I say it broadened liability, didn't create any new plaintiffs, any new defendants but wiped out more of the fellow-servant doctrine. At that time the act was again entitled, not a thing about an alien seaman, an act to promote the welfare of the American Merchant Marine. Now as in a wage statute which applied only to American seaman, they had to amend the wage statute, as Mr. Axtell refers to as amending to make it apply to alien seaman, foreign seaman on foreign ships. And I say that to make this act, the Jones Act, apply to foreign seaman on foreign ships, even though they are hurt in an American port, that act has got to similarly be amended, because it originally started out as an Act to promote the welfare of American seaman in the American Merchant Marine. I would like briefly to now address myself to the interest of the respondent Garcia & Diaz. That company is one of the defendants. It has offices in New York, it has the deposition and appendix shows been an agent for South American, Cuban, Spanish steamship Lines, ten or more for many years. It was the agent for Compania Trasatlantica. It did, as it was asked. It had an agency contract. It supplied water and audit stores and did the things, those things that a general agent does. In the complaint as against it, it was alleged that it owned Guadalupe and that it had employed this plaintiff and that it managed upgraded the control the vessel. On the hearing before Judge Sugarman, it was conceded that it did not own Guadalupe and it was conceded that it did not employ Romero, but plaintiff's counsel contended that was joint employment, or that was joint operation, management and control of the vessel by the Spanish Line and Garcia & Diaz. Judge Sugarman, that what – went into the question of what this plaintiff based operation, management and control upon, they set upon the agency agreement. That was produced, translated and put in evidence and it is in the record, (Inaudible) remotely indicate management, operation and control by Garcia, the agent. The testimony of the treasurer of Garcia was taken. He was examined by the plaintiff at length (Inaudible). There isn't a suggestion in this testimony that Garcia & Diaz operated, managed and controlled the vessel. There isn't a suggestion on the record that Garcia & Diaz was negligent in anyway or even possibly negligent in anyway with respect to this man's injuries. On the hearing, Judge Sugarman inquired the plaintiff's counsel what more do you want on this question, what more do you want to put in the record, what more do you want to produce? They said we want the representative of Garcia & Diaz, who was at the period of the day of the accident, we want my tenants to treasurer again on the stand, they were produced and examined at length by plaintiff's counsel. This is on that question of operation, management and control by the agent. Judge Sugarman said is that all you have, all you have to offer, all you can offer and they said that is it, there is nothing more to offer, no other proof. And Judge Sugarman said you haven't shown any negligence, you haven't shown any management, operation control, you haven't shown a thing against Garcia & Diaz, with respect to this plaintiff, the complaint as against Garcia & Diaz is dismissed.
Charles E. Whittaker: (Inaudible)
John L. Quinlan: Nothing sir, they could not.
Charles E. Whittaker: (Inaudible)
John L. Quinlan: That's right sir.
Charles E. Whittaker: (Inaudible)
John L. Quinlan: As against Garcia & Diaz sir?
Charles E. Whittaker: (Inaudible)
John L. Quinlan: There was the diversity --
Charles E. Whittaker: (Inaudible)
John L. Quinlan: The diversity adjusted between Garcia & Diaz and this plaintiff, is that what Your Honor mean?
Charles E. Whittaker: (Inaudible)
John L. Quinlan: Well, that was an issue sir.
Charles E. Whittaker: (Inaudible)
John L. Quinlan: It was sir and it became an issue in this way Your Honor. Judge Sugarman first held, he first found and his finding was that this seaman could not maintain suit against Compania Trasatlantica under the Jones Act. That was solely and exclusively his first finding. Well, if this seaman could have maintained suit under the Jones Act, the law side of the Federal Court would have had jurisdiction without diversity. But once ruling out the Jones Act, Judge Sugarman then said, now I must consider with the Jones Act out, the alignment of parties and I now have a Spanish national plaintiff, a New York corporation, another New York corporation, a Delaware corporation that would be (Inaudible) in a national terminal and Garcia & Diaz and the fourth defendant Compania Trasatlantica, but now only under a general maritime count, not a statutory count and he said there is accordingly not complete diversity between the plaintiff and all the defendants because the plaintiff is a Spaniard and Compania is a Spaniard. Well, you didn't have diversity between plaintiff and all the defendants.
Speaker: But your client has been dropped out plaintiff had chosen to go along against the other three you would have had diversity, wouldn't you?
John L. Quinlan: If Compania was dropped out, yes sir--
Speaker: Now why -- would they give an opportunity to do that?
John L. Quinlan: Your Honor, I hope Your Honor is closely directed on that point and if you could bear with me a minute I could give you the page because Judge Sugarman made every possible offer, every possible offer --
Speaker: That's what I --
John L. Quinlan: Every possible offer --
Felix Frankfurter: He said so in his opinion, didn't he?
John L. Quinlan: Pardon me sir?
Felix Frankfurter: He said so in his opinion, didn't he?
John L. Quinlan: That's right, it's right in Judge--
Felix Frankfurter: He said so in his opinion.
John L. Quinlan: it's right in his opinion, he said so in his opinion and he addressed to them one by one the possibilities. He said if I will do so on so would you go to admiralty, if I will do so and so would you stay at law, if I sever if I do this, if I do that, he did everything he could possibly do jurisdictionally. 189 at the – 189 at the bottom we should start. And this plaintiff in every single instance refused to sever or refused to make any change in the party setup or the cause of action setup in the complaint. Then Judge Sugarman, after they refused to go to admiralty, the plaintiff refused to go to admiralty and rejected every other he made of help, then said now having found that this seaman is well taken care of under Spanish Law, and that he cannot maintain actually hereunder the General Admiralty law, the Jones Act, one because the statute doesn't apply too because there was not diversity, he exercised his discussion and refused jurisdiction and admiralty. But that was not until acted this plaintiff and his counsel had absolutely rejected any help by leaving this one part of law, one part of admiralty, well it could have been done. The action could have been severed and the suit against Compania Trasatlantica alone, that part of the suit could have been transferred to the admiralty side right there by the judge on the bench, ample authority for that, any number of cases on that. And the case could have proceeded against the other three defendants, the American corporations, before a jury right there and Judge Sugarman could have sat right there as judge in admiralty heard all the evidence and made his decision on the admiralty question.
Felix Frankfurter: What would be the admiralty question? (Inaudible) -- what would be the fold that had a pledge, fold that had the (Inaudible) before Judge Sugarman that there would be no relief under Spanish Law, no relief?
John L. Quinlan: No relief under the Spanish Law?
Felix Frankfurter: The Spanish Law or whatever that this seaman would be out completely unless there was basis for giving him relief, the American evidence, I am putting the Jones Act to understand, could he have taken jurisdiction on the general admiralty system?
John L. Quinlan: He could have taken jurisdiction Your Honor, but my years of working with the Jones Act leads me to the conclusion he would not have been justified in granting relief to this seaman under the general admiralty laws of the United States.
Felix Frankfurter: What are the relations in your experience under the Jones Act and General Admiralty law, both (Inaudible) that Jones Act does not give him any statutory relief, for that assume that, I do it (Inaudible)
John L. Quinlan: Yes sir.
Felix Frankfurter: What I want to know is whether the American Admiralty Law having the sole discretionary law making so to speak but it does have beginning fundamentally with the (Inaudible), what I want to know is as a matter of how if this case had shown there was no relief, no remedy under the Spanish Law, would the American Admiralty court be complelled to throw him out and say that under our (Inaudible) he can't get any relief here although all the damage was done (Inaudible)
John L. Quinlan: I'd say yes sir on the factor of this case, I have to answer the question, I'd say, I'd yes for this reason, as on this man –
Felix Frankfurter: (Inaudible) but I just want to know --
John L. Quinlan: Yeah, when this man signed his articles, and I have to say this on articles, this is a little more than American articles, the way we sign in United States. A United States Shipping Commissioner comes board a vessel. He has a fixed sheet of articles and all men sign line up to line down edge, next to Kim, rate of wage and the like around the articles, but in Spain and under Spanish Law each seaman signs an individual contract sitting down with the captain. He and a captain sign it individually and it is only as to him. He then must go down to the director of the port similar to our coastguard and be cleared as having a right to sail. He must exhibit there that he has served his time in the army or his time to serve his government is not due and otherwise qualified to have the right to go to sea. So this seaman would have signed a contract and this man was an experienced seaman having (Inaudible) many years and had signed these contracts many times for other steamship lines. He said so in his testimony he took the stand at the hearing and he knew when he signed, as this contract provides that any rights in the event of injury that he will have against his employer shall be governed by Spanish law. Now even though he had no rights, damage rights under Spanish Law, and the code law said he had no rights, assuming it did to go along with Your Honor's question, I say that the admiralty court of the United States could not give this man any relief for to do so would violate the contract between the man and his employer --
Felix Frankfurter: In many managing contracts that the admiralty court doesn't respect (Inaudible)
John L. Quinlan: I say to do it, you would have to violate it and that's the answer I make Your Honor's question.
Felix Frankfurter: Anyhow that (Inaudible)
John L. Quinlan: That is not sir. I say this to Mr. Justice Whitaker. I did not ask Judge Sugarman to go into question of operation, management and control in Garcia & Diaz. I didn't ask that at all but as the matter evolved and the stipulations as to this and that was made on the record that is learning issues, Judge Sugarman went into that question.
Speaker: Well, from the point of view of way the case ended up having read what you have shown me here, they haven't refused to take the avenue of the diversity, the diversity avenue is a (Inaudible) merits his holding (Inaudible) in this record?
John L. Quinlan: That's right sir, thank you sir.
Earl Warren: Mr. Puente -- Mr. Schwartz?
Sidney A. Schwartz: May it please the Court, I represent Quin Lumber Company who is the fourth named defendant in this action and was one of the respondents in this Court. The question of law that was presented to the United States District Court in which thereafter was presented to the United States Court of Appeals for the Second Circuit and which is presented to this Court is whether the district court as a court of limited jurisdiction by virtue of Congress enacting Sections 1331 and 1332 of the Title 28 of the Judicial Code could have heard this case on the merits and have determined liability or the absence of liability on the civil or law side of the court where the plaintiff insisted on staying and on which side of the court and only on which side of the court, he has the right to trial by jury. Now I say that for this reason. At the conclusion of the pretrial hearings by Judge Sugarman in which he sought the jurisdictional facts as to whether he had the inherent right to hear this case on the law side of the court. He gave two plaintiffs' counsel, the opportunity to have the whole case, transferred to the admiralty side of the court where he as the trier of the facts could have heard the case without the jury. The plaintiff through counsel refused to be transferred to the admiralty side where he had no right to trial by jury and therefore Judge Sugarman dismissed the case since he found on all the causes of action which had been set forth in the complaint that he had no jurisdiction over the subject matter which was before him. And this question of humanitarian quality which missed a point he raised in his opening argument to this Court might indicate to this Court that by virtue of the dismissal and the affirmance of the dismissal, this plaintiff is without a remedy even in our American courts and I think that is a disingenuous argument for this reason. After the complaint had been dismissed or after the affirmance of the dismissal, this plaintiff as was his right, instituted an action in the Supreme Court of the State of New York, in New York County suing the exact four defendants that he has here, alleging in four causes of action, the identical facts which he has alleged in this case, so that at this point of the proceeding he is not out of court, as far as the American courts are concerned, but that doesn't determine the issue that was presented to Judge Sugarman.
Felix Frankfurter: May I, unless it's off the rail, could he bring suit against those with whom he might make a diversity case in the federal court (Inaudible)
John L. Quinlan: He could have done so as far as I see because this was not adjudication on the merits, but what this plaintiff wanted throughout the entire case is to have in one lawsuit the four defendants whom he says are the tortfeasors so that he doesn't stand in the position of having to try his case as against one, two, or three and they are pointing to the fourth defendant who is being suited in another court, solely by himself. He wanted to try his case as against the four defendants at one time in one court and he invoked the jurisdiction of the District Court on the law side setting for in his complaint four causes of action; the first one of which was directed against Spanish Line and Garcia & Diaz under the Jones Act and under the General Maritime law. The second cause of action sought wages to the end of the voyage and maintenance and cure and again was directed as again the Spanish Line and Garcia & Diaz. The third cause of action was directed against International Terminal Operating Company and said that there was diversity of citizenship between plaintiff and defendant and the court has jurisdiction under the General Maritime Law and the fourth cause of action was identical, but only it was directed against my client Quin Lumber Company. Now the plaintiff in opening to this Court said he used the magic words that he was suing under the Jones Act and that brings to the fore I think the argument that I make on behalf of Quin Lumber in my brief. If a plaintiff can merely in his complaint say I am a seaman and I am suing you defendant A under the Jones Act and if the District Court by virtue of that allegation and that allegation alone is precluded from enquiring into the jurisdictional facts as to whether the Jones Act applies to this seaman, then I say by such an allegation even though it defaults the plaintiff has vested jurisdiction upon the District Court and as I understand the law, you don't vest jurisdiction on a court of limited jurisdiction.
Speaker: And what facet is the jurisdiction against your client that that (Inaudible)?
John L. Quinlan: As I see it Your Honor, we stand all four here, all four of us, on whether the Jones Act applied and if the Jones Act is applicable to this plaintiff as against, the people he sued under the Jones Act then all other questions become academic, but as against my client, he has alleged diversity of citizenship and the General Maritime Law, but I respectfully say to you Your Honor that this really is an injury, which projects a cause of action on behalf of a plaintiff against multiple alleged tortfeasors but the basis of jurisdiction maybe different but he really has only one cause of action, but it maybe based upon different statutes or different laws as against the several defendants.
Felix Frankfurter: What is accepted claim by which you or your client could join?
Sidney A. Schwartz: My client was negligent in that we did something on board the vessel that contributed to the injury that the plaintiff sustained on May 12, 1954.
Felix Frankfurter: Couldn't that be persuaded to (Inaudible)
Sidney A. Schwartz: He could have but he didn't do it.
Felix Frankfurter: But I just want to know --
Sidney A. Schwartz: Yes he could have Your Honor because then that would a Spanish National suing an American citizen and then under the diversity citizenship section off the judicial code, there would be jurisdiction in the Federal Court.
Felix Frankfurter: Except the (Inaudible) the claim would be General Admiralty Law.
Sidney A. Schwartz: I think so, Your Honor under this --
Felix Frankfurter: Not New York against negligence.
Sidney A. Schwartz: No, I think under Your Honor's Pope & Talbot against Hawn case it would be General Maritime Law, that's right.
Felix Frankfurter: And whatever rights he may or may not have against the other be immaterial.
Sidney A. Schwartz: That is correct Your Honor. If he had sued us alone standing by ourselves in the Federal Court. Now --
Hugo L. Black: If that would be true, (Inaudible) one may be there and one you.
Sidney A. Schwartz: Well I think he is suing four defendants Your Honor in connection with one injury and he says as against due defendant A jurisdiction is under the Jones Act. Now if there is no jurisdiction under the Jones Act then there remains a lawsuit by a Spanish National against a Spanish National and three American citizens and still there isn't diversity of citizenship to commence that lawsuit in the District Court unless Your Honors decide in this case if you'll reach the question that this is a case which arises under the constitution, the laws and the treaties of the United States so that the jurisdiction is found under Section 1331 and you don't --
Felix Frankfurter: That case is coming up in another situation, haven't we?
Sidney A. Schwartz: I don't know if it's coming up Your Honor --
Felix Frankfurter: That's the problem, that's the (Inaudible)
Sidney A. Schwartz: There is a conflict now between the First Circuit on one side and the Second and Third Circuit on another side.
Felix Frankfurter: That has not been urged here.
Sidney A. Schwartz: It has been urged here Your Honor, It's urged here in this respect that if Your Honors say that there never was jurisdiction under the Jones Act because the jurisdictional facts show that there wasn't, a Jones Act suit here, then you must get to the next question and the next question is nonetheless could you have brought this suit as a Spanish alien against the Spanish alien and three American citizens in the Federal Court on the civil side because this being a Maritime tort, a Maritime tort is a case which arises under the Constitution and then the third question is if there was no good lawsuit to begin with in so far as a Jones Act suit or the other and I respectfully submit that there couldn't be pendent jurisdiction which is urged here because pendent jurisdiction by it's very nature presupposes a good jurisdiction to begin with. If you have no Jones Act jurisdiction in that, he never could have asserted it. Although there is a sham allegation all the Jones Act sued against this defendant and if you don't have jurisdiction under the lowest constitutions then you don't have pendent jurisdiction at all. And I think that roughly is the position that I took in the courts throughout the Jones Act suit and I might indicate to Mr. Justice Whitaker the reason that Judge Sugarman went into the question on management, control and operation, all this vessel and so far and Garcia & Diaz was concerned is he had to determine since the plaintiff in the first cause of action had asserted a Jones Act suit against Spanish Line and Garcia & Diaz, he had to determine whether conceivably Garcia & Diaz was the employer of this particular man so that he could have asserted a Jones Act suit as against Garcia & Diaz in contrast to Spanish Line. He found that under the facts that were presented to him, Garcia & Diaz was not the employer of the plaintiff, therefore could not be sued under the Jones Act and under the McAlister case which he cited in his decision which this court handed down some time ago, he said that therefore there is no Jones Act suit that could be brought against Garcia & Diaz and that's why he took the evidence in so far as the relationship between Spanish Line and Garcia & Diaz to determine whether conceivably Garcia & Diaz was the employer by virtue of contractual arrangements or as approved that was in the case. I respectfully submit having invoked the jurisdiction of a court of limited jurisdiction, this plaintiff had to sustain it and he didn't sustain it by virtue of the facts that had been found by Judge Sugarman and which have been affirmed by the Second Circuit on an expression on the workman like opinion of the court below and the treaty question which was raised in Second Circuit has been disposed off in that plaintiff withdrew it. So that there is represent to Your Honors report questions that I have presented in my brief on behalf of Quin Lumber Co. and which I respectfully submit dictate and affirm to what has taken place here.
Felix Frankfurter: (Inaudible) statistics in the District Court (Inaudible) was not pending.
Sidney A. Schwartz: That's right Your Honor undetermined, pending and it's being withheld in abeyance pending disposition of Your Honor's decision here, because manifestly if you determine that the District Court had Jurisdiction to began with, we go back to the District Court and try the case there on the merits, which has never happened in this case despite the fact that the petitioner's brief constantly talks about this action being tried on the merits. A merits preposition would result in either, but the defendants here being held liable for damages or not being held liable for damages on the basis of the (Inaudible) on seaworthiness or negligence.
Charles E. Whittaker: (Inaudible) your negligence was -- gave rise to an independent plaintiff.
Sidney A. Schwartz: No the plaintiff hasn't done it that way Your Honor. He is mainly alleged separate courses of action in which by reference he incorporates the allegations that have preceded that particular cause of action. So that when you see this amended complaint and I should indicate to Your Honor it's an amended complaint in that he brought my client into the case after the other three had been sued and that is something that doesn't appear in the record for this reason. In order to try this action – it was originally instituted in the District Court of New Jersey. And there he succeeded in getting jurisdiction over the persons of three of the defendants and not my client, because my client didn't do business in New Jersey and therefore could not be sued and process could not be served there. He then came over here to New York and he sued originally the three defendants in that he had two companion actions going on, one in New Jersey and one in the Southern District of New York and then not being able to get jurisdiction over my client in New Jersey he served an amended complaint with process issuing out of District Court which added my client for the first time in the Southern District of New York. And when he added it, he alleged, as he has alleged it against every other defendant a separate cause of action, but I respectfully submit to Your Honor he has a cause of action for personal injures against many defendants, but the basis of jurisdiction have been set for as separate causes of action but that doesn't save him.
Earl Warren: Mr. Puente?
Narciso Puente, Jr.: Your Honor this case has been a very hard fought case, not only on the facts. A statement was made here by Mr. Quinlan that he has been furnished with maintenance and cure, Mr. Remero hasn't a received a Nickel. The statement was also made that all he has to do is go up to Spanish consulate and get in workman's compensation. There is a letter which has been filed here which my client received in which he is told by the Spanish Line that all they need is a doctor's report and he will get his workman's compensation. It's a fact that the captain and the surgeon of this ship went to the Hospital at St. Mary's had attempted to get him out of the hospital. They tell us to save themselves from a fine, that's what they tell us. But their background is, if you get them in, in fact to stay, he never comes back here to sue and the case is finished. That technique has been used by other steamship companies; they get these people out of the country and quick. Then the last point, they speak about the hospital here. It has not been paid, we all know that. Now the question has been made that -- a point has been made about the contract that it was signed individually. This contract was not signed individually for this trip; there was no contract for this trip. There was a round trip contract two voyages before this accident and a contract said right on top round trip contract, when he gets back to Bilbao, finished and he came over to more trips. Yet, we're led to believe that he signed a contract in Bilbao when he took this trip. Now as to the Larsen case, I would like to point out that there is this very important language where the court said at page 1224, we do not think the place of contract is substantial influence in the choice between competing laws to govern a maritime tort. Since the accident in the Larsen case occurred in the Port of Havana, Cuba we conclude that the accident in the case at bar having occurred in the territory of United States, the rule of lex loci delicti commissi will govern for the court, said in the Larsen case and this is very important in last quotation. On 1291, place of the Wrongful act, the solution most commonly accepted as to torts in our municipal and in international law is to apply to law of the place, with the act giving right to the liability occur, the lex loci delicti commissi. This rule of locality often applied to maritime torts would indicate application of law of Cuba, the accident happened in Cuba and whose domain the accident took the place. In our case the accident happened in the Hoboken, New Jersey, the United States waters. And then the last point we have had here I think a little presentation here on what the Jones Act is. The Seamen's Act was passed in 1915. As Mr. Quinlan stated that was -- law was written to promote and help American Seamen, but the Jones Act which was in 1920, which was a separate act and where the provision Section 33 appears, which amends Section 20 which was knocked down by the (Inaudible) decision, that Section 20 -- Section 33 exist both in the Jones Act and it also exists in the Seamen's Act, it has a dual existence. And in the Jones Act we have a different legislative intent and I'm reading now from Page 61 of the petitioner's brief on the merits, which reads from the policy -- from the policy of the Jones Act. I'm reading in the middle of the page and it is hereby declared to be the policy of the United States to do whatever may be necessary to develop and encourage the maintenance of such a Merchant Marine. And then you'll find here in this brief a discussion of the legislative committee hearings, where they wanted to equalize the course of the American Merchant Marine, they want to save the American Merchant Marine. And yet today by the action of the Spanish Line in not paying its hospitals bill, and not sending any money to the seamen, not offering an artificial limb, just say come back to the Spain or go to your Spanish Counsel, we won't do anything. The Spanish Line is saving money. Not only that they've got to appoint where on St. Mary's Hospital they say fine the man stay there till January, beside we're going to pay till July 14th. Who has to pay for the balance? Saint Mary's Hospital and they're the ones who are going to suffer, not the steamship company. So these foreign steamship companies are taking advantage and thus our Merchant Marine today is going down further and further and I just want to make one last statement. In the New York Law Journal there appeared a decision, just recently dealing with the taxi cabs. Apparently they are now using a device in New York, where a man will have a 150 taxi cabs and he puts two cabs to each corporation that way he limits his liability on two cabs to each cooperation. There's been a great healing try because the taxi cabs companies only have 5,000 to 10,000 liabilities, whereas the individual had 10,000 to 20,000. They are going to do something about it, but yet we have today, where many steamship companies have one ship or one co-operation, nobody has done anything about it. It's the old story of the public being aroused and may be this case can solve this whole dilemma. Thank you.