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A new case from the Hawaii Supreme Court recognizes personal injury claims for a viable fetus. This new approach seems consistent with a judicial approach to unborn children that life begins at viability. Castro v. Melchor, SCWC-12-0000753 (March 13, 2018).
JONES ACT - TABLE OF CONTENTS
The Jones Act
VII. PRACTICE AND PROCEDURE A. State Court Actions
Actions under both 46 USCS Appx § 688 and 46 USCS Appx § § 761-767 may be brought in state courts. Bugden v Trawler Cambridge, Inc. (1946) 319 Mass 315, 65 NE2d 533.
Fact that cause of action is brought in state court under 46 USCS Appx § 688 does not change rules applying to actions based upon alleged negligence. Edmond v American-Hawaiian S.S. Co. (1946) 187 Misc 723, 65 NYS2d 433, affd 274 App Div 1035, 85 NYS2d 915.
508. Concurrent state court jurisdiction
State and federal courts have concurrent jurisdiction to enforce right of action established by 46 USCS Appx § 688. Engel v Davenport (1926) 271 US 33, 70 L Ed 813, 46 S Ct 410.
Provision in 46 USCS Appx § 688 that jurisdiction of actions for personal injuries shall be under court of district in which defendant employer resides, or in which his principal office is located, does not restrict enforcement of newly given rights to federal courts. Panama R. Co. v Vasquez (1926) 271 US 557, 70 L Ed 1085, 46 S Ct 596.
Suit under 46 USCS Appx § 688 may be filed in either federal or state courts, but construction of § 688 rests with federal court. Messel v Foundation Co. (1927) 274 US 427, 71 L Ed 1135, 47 S Ct 695.
Seaman's action under 46 USCS Appx § 688 to recover for injuries sustained in course of employment may be brought in state as well as federal courts. Lauritzen v Larsen (1953) 345 US 571, 97 L Ed 1254, 73 S Ct 921.
State and federal courts have concurrent jurisdiction over Jones Act (46 USCS Appx § 688), which authorizes seaman who suffers personal injury in course of employment to bring action for damages at law. American Dredging Co. v Miller (1994, US) 127 L Ed 2d 285, 114 S Ct 981, 94 CDOS 1288, 93 Daily Journal DAR 2371, 1994 AMC 913, 7 FLW Fed S 754.
When seaman sues under 46 USCS Appx § 688 in state court, concurrent jurisdiction is expressly granted to enforce this statutory addition to maritime law. Reynolds v Royal Mail Lines, Ltd. (1956, DC Cal) 147 F Supp 223, 1957 AMC 320, affd (CA9 Cal) 254 F2d 55, 1958 AMC 1668, cert den 358 US 818, 3 L Ed 2d 59, 79 S Ct 28.
State court possesses jurisdiction of claim under 46 USCS Appx § 688 by seaman injured in course of employment, jurisdiction of federal courts not being exclusive. Whalen v Twin City Barge & Gravel Co. (1935) 280 Ill App 596, cert den 297 US 714, 80 L Ed 1000, 56 S Ct 590.
State and federal courts have concurrent jurisdictions in actions to recover under 46 USCS Appx § 688 and under general maritime law, with federal principles of law applying. Keough v Cefalo (1953) 330 Mass 57, 110 NE2d 919.
State courts have concurrent jurisdiction with federal courts to try actions brought under 46 USCS Appx § 688 for injuries sustained, and for maintenance and cure under traditional maritime law. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.
509. Applicable substantive law
It is incumbent upon State courts in trying suit under 46 USCS Appx § 688 to proceed in such manner that all substantive rights of parties under controlling federal law are protected. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246.
Subject matter jurisdiction of state courts to determine 46 USCS Appx § 688 cases is founded on "savings to suitors" clause of 28 USCS § 1333. De Court v Beckman Instruments, Inc. (1973, 4th Dist) 32 Cal App 3d 628, 108 Cal Rptr 109.
Substantive law as developed in federal cases is controlling of cases under 46 USCS Appx § 688 filed in state courts. De Court v Beckman Instruments, Inc. (1973, 4th Dist) 32 Cal App 3d 628, 108 Cal Rptr 109.
510. Applicable rules of procedure
So far as procedure is concerned, all cases based upon 46 USCS Appx § 688 which are filed in state courts should be considered as though cause of action arose under statute of state, since nothing in 46 USCS Appx § 688 conflicts with state law of procedure. Macomber v De Bardeleben Coal Co. (1941, La App, Orleans) 4 So 2d 483, revd on other grounds 200 La 633, 8 So 2d 624, cert den 317 US 661, 87 L Ed 532, 63 S Ct 61.
In 46 USCS Appx § 688 case tried in state court, procedural matters are governed by state law. Continental Oil Co. v Lindley (1964, Tex Civ App Houston (1st Dist)) 382 SW2d 296, writ ref n r e.
46 USCS Appx § 688 prescribes substantive rights of parties in cases brought under 46 USCS Appx § 688, but when such cases are filed in state courts, they are generally to be tried in accordance with state's own rules of civil procedure. Union Oil Co. v Richard (1975, Tex Civ App Beaumont) 536 SW2d 955.
511. Sufficiency of contacts with state
Seaman injured from fall when valve handwheel he was holding unexpectedly came loose properly sued vessel owner under 46 USC Appx § 688, where vessel owner's only connection with Maryland was negotiation of agreement with Maryland based seafarer's union to supply vessel owner with unlicensed seamen, because personal jurisdiction is proper under Maryland long-arm statute as vessel owner contracted for services within state and developed sufficient relationship with Maryland for purposes of due process. Bass v Energy Transp. Corp. (1992, DC Md) 787 F Supp 530, 1992 AMC 2325.
Seaman, resident of Florida, injured on board vessel owned and operated by defendant, New Jersey corporation, could not maintain action under 46 USCS Appx § 688 in New York Supreme Court. Mowat v United Fruit Co. (1942, Sup) 37 NYS2d 93, 1942 AMC 983.
In action under 46 USCS Appx § 688 for damages resulting from wrongful death of plaintiff's intestate who lost his life while employed on barge located at pier in Jersey City, New Jersey, New York Supreme Court could take jurisdiction. Hamilton v Berwind-White Coal Mining Co. (1945, Sup) 60 NYS2d 561.
In 46 USCS Appx § 688 action by nonresident seaman against foreign corporation for injuries received while on vessel of corporation, failure of corporation which had offices in New York, to show that it does not do business in that state warrants court to use its discretion to either accept or decline jurisdiction. Seeley v Waterman S. S. Corp. (1947, Sup) 73 NYS2d 80, revd on other grounds 274 App Div 934, 83 NYS2d 502.
New York court would refuse jurisdiction of action predicated in part upon provisions of 46 USCS Appx § 688 against New Jersey corporation for injuries sustained by plaintiff during course of his employment as seaman while at Boston, Massachusetts, no sufficient special circumstances to warrant retention of jurisdiction having been disclosed; general appearance of defendant in such action did not constitute waiver of its right to invoke court's discretion to refuse jurisdiction. Brandao v United Fruit Co. (1944) 183 Misc 683, 50 NYS2d 886.
512. Suits against United States
Seaman who sustained injury due to negligence and unseaworthiness of vessel owned by railroad corporation owned by United States, could bring action for damages under 46 USCS Appx § 688 in state court; and 28 USCS § § 1346, 1504, 2110, 2671 et seq. did not affect such right. Wagner v Panama R. Co. (1949) 299 NY 432, 87 NE2d 444.
Where seaman, injured on vessel owned by United States, sues under 46 USCS § 688 shipping company operating vessel as agent, as responsible for injury, without including United States as defendant, suit may be brought in state court for damages. Odgaard v Cosmopolitan Shipping Co. (1939) 171 Misc 244, 12 NYS2d 389, 1939 AMC 1038.
513. State boards and commissions
Federal District Court had jurisdiction under 46 USCS Appx § 688 of libel by seaman for personal injuries incurred while taking net from nearby warehouse to vessel on which he was employed as seaman, as against contention that state industrial accident commission had exclusive jurisdiction of compensation for his injuries. The Betsy Ross (1944, CA9 Cal) 145 F2d 688, 1944 AMC 1468.
Workmen's compensation acts of state may properly bestow exclusive jurisdiction upon state administrative tribunal to exclude jurisdiction which formerly rested in Federal District Courts; this applies to relief for claims otherwise cognizable under 46 USCS Appx § 688. Surgeon v Alaska Packers Ass'n (1939, DC Cal) 26 F Supp 241.
Since plaintiff was engaged in work purely local in nature, workmen's compensation laws of California applied and since by such law Industrial Accident Commission was given exclusive jurisdiction, federal court had no jurisdiction under 46 USCS Appx § 688. Surgeon v Alaska Packers Ass'n (1939, DC Cal) 26 F Supp 241, 1939 AMC 474.
Industrial Accident Commission is not court of state which may give remedies under either 46 USCS Appx § 688 or maritime law for maintenance and cure, its sole power is to apply workmen's compensation law. Occidental Indem. Co. v Industrial Acci. Com. (1944) 24 Cal 2d 310, 149 P2d 841.
State industrial accident commission is not state court which may give remedies for injured seaman under either 46 USCS Appx § 688 or maritime law for maintenance and cure. Occidental Indem. Co. v Industrial Acci. Com. (1944) 24 Cal 2d 310, 149 P2d 841.
In cases where injured seaman is performing seaman's duties on navigable water he can bring action for injuries under 46 USCS Appx § 688 and not under state workmen's compensation law. Valley Towing Co. v Allen (1959) 236 Miss 51, 109 So 2d 538.
Jones Act Table of Cases