610. Generally

Right of action given seamen by 46 USCS Appx § 688 is maritime and remedy at law for maritime cause of action may be withdrawn without impairment of constitutional right to jury trial in common-law cases. Sevin v Inland Waterways Corp. (1937, CA5 La) 88 F2d 988, 1937 AMC 814.

Seaman, in action under 46 USCS Appx § 688, has right to jury trial of issues he raises as long as there are unresolved issues between parties. Guerrero v American-Hawaiian S.S. Co. (1955, CA9 Cal) 222 F2d 238.

46 USCS Appx § 688 proffers right to jury trial and courts must exercise great caution in denying such right to any litigant. Hampton v Magnolia Towing Co. (1964, CA5 Miss) 338 F2d 303.

Right to jury trial of seaman’s personal injury claim is closely related to basis of jurisdiction asserted for that claim; seaman suing his employer under 46 USCS Appx § 688 is entitled to jury, as is seaman asserting maritime claim under diversity jurisdiction; joinder of § 688 claim with admiralty claim in no way compromises § 688 jury right for where nonjury admiralty tradition and plaintiff’s jury right conflict, jury right must prevail. Re Complaint of Berkley Curtis Bay Co. (1983, SD NY) 569 F Supp 1491, 37 FR Serv 2d 906, affd without op (CA2 NY) 742 F2d 1431, cert den 466 US 928, 80 L Ed 2d 184, 104 S Ct 1711.

Where complaint in action under Jones Act (46 USCS Appx § 688) requested trial by jury and also referenced federal question jurisdiction under 28 USCS § 1331, claim was viewed as action at law with right to jury trial, rather than action in admiralty without jury. Duhon v Koch Exploration Co. (1986, WD La) 628 F Supp 925.

Seaman injured in course of employment may maintain action under 46 USCS Appx § 688 to recover damages based on liability stemming from negligence with right of trial by jury. Sanz v Isbrandtsen Co. (1949) 196 Misc 390, 88 NYS2d 486.

611. Demand by seaman

Respondent steamship company could not press claim for jury trial for benefit of decedent’s widow, as under 46 USCS Appx § 688 libellant is one who has choice of forum and of jury trial, and no one else can change or remove action elsewhere. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94, 1955 AMC 21.

46 USCS Appx § 688 merely affords injured seaman, not other parties, choice between suit in admiralty without jury or civil suit with jury. Texas Menhaden Co. v Palermo (1964, CA5 Tex) 329 F2d 579.

46 USCS Appx § 688 gives to complainant right to trial by jury. Mullen v Eastern Transp. Co. (1938, DC Pa) 25 F Supp 62, 1938 AMC 1251; Murray v American Export Lines, Inc. (1943, DC NY) 53 F Supp 861, 1943 AMC 1426.

Benefits of 46 USCS Appx § 688, including right to trial by jury, are available only to members of crew of vessel plying in navigable waters. Bedia v Ford Motor Co. (1973, DC NY) 58 FRD 423.

Jones Act (46 USCS Appx § 688) gives right to elect jury trial only to injured seaman; Jones Act case defendant does not have that option. Vassalos v Hellenic Lines, Ltd. (1979, ED Pa) 482 F Supp 906, 28 FR Serv 2d 829.

Where non-admiralty claims and admiralty claims are so interrelated as to require trial by single factfinder, and each rests on independent basis sufficient to support federal jurisdiction, constitutionally-protected right to jury trial of civil claims outweighs tradition of non-jury trials in admiralty; Jones Act claim provides alternate statutory basis. Rose v Dredge Enterprise (1988, ED NC) 120 FRD 39.

612. Demand by defendant

Demand for jury trial by seaman suing under 46 USCS Appx § 688 operates as demand for jury trial by defendants, and removal of issue of damages from jury after trial of liability to them deprived defendants of right to jury trial. Yates v Dann (1955, CA3 Del) 223 F2d 64.

In action under 46 USCS Appx § 688, District Court deprived the defendant of his right to trial by jury by giving retrospective application to plaintiff’s amendments stating claims within court’s admiralty jurisdiction under FRCP 9 where original complaint demanded jury trial under FRCP 38 and defendant did not relinquish or consent to non-jury trial under FRCP 39. Johnson v Penrod Drilling Co. (1972, CA5 Tex) 469 F2d 897, 16 FR Serv 2d 766, on reh (CA5 Tex) 510 F2d 234, cert den 423 US 839, 46 L Ed 2d 58, 96 S Ct 68, 96 S Ct 69 and (disapproved on other grounds Norfolk & W. R. Co. v Liepelt, 444 US 490, 62 L Ed 2d 689, 100 S Ct 755, 10 Fed Rules Evid Serv 130, reh den 445 US 972, 64 L Ed 2d 250, 100 S Ct 1667 and (not followed Yukon Equipment, Inc. v Gordon (Alaska) 660 P2d 428, CCH Prod Liab Rep P 9563) and (not followed Klawonn v Mitchell, 105 Ill 2d 450, 86 Ill Dec 478, 475 NE2d 857)) as stated in Flanigan v Burlington Northern, Inc. (CA8 Mo) 632 F2d 880, cert den 450 US 921, 67 L Ed 2d 349, 101 S Ct 1370 and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570) and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

613. Waiver

Action may be brought under 46 USCS Appx § 688 to recover for death of seaman with right of trial by jury, but such right will be waived if not demanded. Nelson v Greene Line Steamers, Inc. (1958, CA6 Ky) 255 F2d 31, cert den 358 US 867, 3 L Ed 2d 100, 79 S Ct 100; Siders v Ohio River Co. (1972, CA3 Pa) 469 F2d 1093, 16 FR Serv 2d 893.

When case was submitted to jury on special interrogatories which were first tendered to counsel and to which no objection was made, each party waived its right to jury determination of particular facts by failing to demand their submission; court may supply any deficiency in findings. Clary v Ocean Drilling & Exploration Co. (1977, WD La) 429 F Supp 905, affd (CA5 La) 609 F2d 1120.

District Court would not permit Jones Act plaintiff to cure waiver of his right to trial by jury by bringing second, identical Jones Act suit, demanding jury trial therein, and then consolidating actions. Vassalos v Hellenic Lines, Ltd. (1979, ED Pa) 482 F Supp 906, 28 FR Serv 2d 829.

Plaintiff’s designation of entire action as admiralty suit waives plaintiff’s right to jury under Jones Act (46 USCS Appx § 688). Willis v Woodson Constr. Co. (1983, WD La) 593 F Supp 464.

Seaman is entitled to jury trial in suit arising from injury sustained while working on barge and his subsequent termination, even though complaint states that “this is admiralty or maritime case” which generally would not have jury, where federal-question jurisdiction arises from claims brought under Jones Act (46 USCS Appx § 688), which expressly provides right to jury trial, because presence of admiralty claim, combined with claims brought under court’s diversity and federal-question jurisdiction, does not create election of admiralty for entire case so as to waive right to jury trial. Keene v Bouchard Transp. Co. (1998, SD Tex) 9 F Supp 2d 764.

614. Election

Election is required by 46 USCS Appx § 688 only between trial by jury and suit in admiralty. Balado v Lykes Bros. S.S. Co. (1950, CA2 NY) 179 F2d 943.

46 USCS Appx § 688 requires that there be election made between trial by jury and suit in admiralty, and it means that plaintiffs suing under its provisions cannot in same action have issue of defendant’s liability tried at law with jury and issue of damages resulting from identical liability tried by court in admiralty action without jury. Yates v Dann (1955, CA3 Del) 223 F2d 64.

Election contemplated by 46 USCS Appx § 688 is decision as to form of trial, whether jury or nonjury. McAffoos v Canadian Pacific S.S. Ltd. (1957, CA2 NY) 243 F2d 270, cert den 355 US 823, 2 L Ed 2d 39, 78 S Ct 32.

46 USCS Appx § 688 merely affords injured seaman, not other parties, choice between suit in admiralty without jury civil suit with jury. Texas Menhaden Co. v Palermo (1964, CA5 Tex) 329 F2d 579.

New substantive rights of 46 USCS Appx § 688 may be asserted and enforced in actions in personam against employers in federal or state courts administering common-law remedies, with right of trial by jury, or in suits in admiralty in courts administering maritime remedies, without trial by jury. Frame v New York (1940, DC NY) 34 F Supp 194, 1940 AMC 935.

Election provided for by 46 USCS Appx § 688 is not election between maritime claim of unseaworthiness and claim based upon negligence under 46 USCS Appx § 688 since both may be asserted in same action whether in admiralty or at law; election specified by 46 USCS Appx § 688 is between trial by jury and suit in admiralty. Murphy v American Barge Line Co. (1950, DC Pa) 93 F Supp 653.

Under 46 USCS Appx § 688, an election may be made between suit in admiralty without jury and civil action with jury, each asserting claim based on negligence. Johnson v Venezuelan Line S.S. Co. (1970, ED La) 314 F Supp 1403.

615. Effect of joinder of actions

While actions for unseaworthiness and for maintenance and cure do not ordinarily require trial by jury, negligence aspect of seaman’s claim under 46 USCS Appx § 688 invokes right of jury trial, and since all aspects of claim should be submitted to one trier of fact, and 46 USCS Appx § 688 requires trial by jury of negligence aspect of case, seaman had right to submission of entire claim to jury. Fitzgerald v United States Lines Co. (1963) 374 US 16, 10 L Ed 2d 720, 83 S Ct 1646, 7 FR Serv 2d 774, reh den 375 US 870, 11 L Ed 2d 99, 84 S Ct 26 and motion den 376 US 901, 11 L Ed 2d 604, 84 S Ct 655.

Maritime wrongful death remedy against shipowner based on unseaworthiness is admiralty action, ordinarily tried by court and not jury; where admiralty action is joined with civil claim, such as claim based on 46 USCS Appx § 688 or state survival statute, jury trial may be requested. Sea-Land Services, Inc. v Gaudet (1974) 414 US 573, 39 L Ed 2d 9, 94 S Ct 806, reh den 415 US 986, 39 L Ed 2d 883, 94 S Ct 1582 and (not followed Alfone v Sarno, 87 NJ 99, 432 A2d 857, 26 ALR4th 1237).

Sailor may combine action under maritime law together with action under 46 USCS Appx § 688 and may demand jury trial on issues formed therein. Williams v Tide Water Associated Oil Co. (1955, CA9 Wash) 227 F2d 791, cert den 350 US 960, 100 L Ed 834, 76 S Ct 348.

Seaman entitled to jury trial on negligence claim under 46 USCS Appx § 688 may try both negligence and unseaworthiness claims to jury simultaneously. Troupe v Chicago, Duluth & Georgian Bay Transit Co. (1956, CA2 NY) 234 F2d 253.

Jones Act (46 USCS Appx § 688) merely affords injured seaman choice between suit in admiralty without jury and suit on civil side of docket with jury and seaman may seek remedy for unseaworthiness and under § 688 in admiralty or in civil action but where seaman seeks recovery in admiralty there is no jury trial. Texas Menhaden Co. v Palermo (1964, CA5 Tex) 329 F2d 579.

Seaman who brought action under 46 USCS Appx § 688 was entitled to have both that claim and unseaworthiness claim tried before jury. Harney v William M. Moore Bldg. Corp. (1966, CA2 NY) 359 F2d 649.

Action may go to jury on both negligence claim under 46 USCS Appx § 688 and under unseaworthiness claim under 46 USCS Appx § 761. Peace v Fidalgo Island Packing Co. (1969, CA9 Wash) 419 F2d 371, 13 FR Serv 2d 1053.

Jury trial was allowable to seaman against citizen of same state not only on his count under 46 USCS Appx § 688, but also on his unseaworthiness count, and on his count claiming less than $ 3,000 for maintenance and cure. Jenkins v Roderick (1957, DC Mass) 156 F Supp 299, 1957 AMC 2325.

Where general maritime claims arise out of same transaction or incidents as Jones Act (46 USCS Appx § 688) claim, both may be tried to jury even though there is no diversity. Mattes v National Hellenic American Line, S. A. (1977, SD NY) 427 F Supp 619.

Injured seaman may join his Jones Act (46 USCS Appx § 688) and maritime claims before jury, even though he positively asserted Rule 9(h) admiralty jurisdiction and proceeded in rem, where principles of judicial economy and fairness would be served, because Jones Act guarantees seaman jury trial if timely elected, and there is no prohibition against jury trial for admiralty claims. Zrncevich v Blue Hawaii Enterprises, Inc. (1990, DC Hawaii) 738 F Supp 350.

Claimant who asserted claims in limitation of liability proceeding for unseaworthiness and maintenance and cure, as well as claim under 46 USCS Appx § 688, was entitled to jury trial in state court on issue of damages if court found in her favor on issues of exoneration from and limitation of liability. In re Complaint of Hill (1996, ED NC) 935 F Supp 710.

616. –Joinder of parties

In action for personal injury against 2 defendants under Jones Act (46 USCS Appx § 688), where jury trial is guaranteed as to one defendant, but only bench trial is required as to other, action will be tried before jury on all issues, and verdict will be only advisory as to defendant against whom plaintiff has only right to bench trial. Diodato v Turecamo Coastal & Harbor Towing, Inc. (1984, SD NY) 100 FRD 756, 38 FR Serv 2d 1146.

617. –Pendent claims

District court, on its civil side, in case in which plaintiff seaman was entitled as of right to jury trial of his claim under 46 USCS Appx § 688 for negligence, had pendent jurisdiction of his maritime claim for unseaworthiness arising out of same occurrence or transaction, and both claims were properly submitted to jury for common-law adjudication. Bartholomew v Universe Tankships, Inc. (1959, CA2 NY) 263 F2d 437, 1 FR Serv 2d 621, 1959 AMC 273, cert den 359 US 1000, 3 L Ed 2d 1030, 79 S Ct 1138 and (disagreed with De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).

Where pendent claim is cognizable in court of admiralty under general maritime law, it may well be that parties do not have constitutional right to jury trial of issues raised on law side merely because pendent claim is joined with claim under 46 USCS Appx § 688; policies and advantages which dictate consolidation of two types of claims in one trial would seem also to dictate that separate functions of factfinding not be allocated to jury and to judge; simply economy of effort and efficient administration of justice prove propriety of submitting whole case to jury and entering judgment on all counts in accordance with jury’s verdict. Mitchell v Trawler Racer, Inc. (1959, CA1 Mass) 265 F2d 426, revd on other grounds 362 US 539, 4 L Ed 2d 941, 80 S Ct 926 (superseded by statute as stated in Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

Plaintiff who files complaint at law under 46 USCS Appx § 688 and demands jury trial has right to join with it and have tried before jury as pendent to it his claims under maritime law for unseaworthiness and for maintenance and cure. Haskins v Point Towing Co. (1968, CA3 Pa) 395 F2d 737, 12 FR Serv 2d 918, later app (CA3 Pa) 421 F2d 532, cert den 400 US 834, 27 L Ed 2d 66, 91 S Ct 68.

In admiralty action, venue provision of 46 USCS Appx § 688 does not apply, and there is no right to jury trial; negligence claim under 46 USCS Appx § 688 cannot be treated as pendent to admiralty claims, so as to transubstantiate all claims into matters triable by jury; plaintiff must decide whether he wants jury trial or claim under 46 USCS Appx § 688 in proper jurisdiction, or court trial of admiralty action. Crookham v Muick (1965, WD Pa) 246 F Supp 288, 1966 AMC 1522.

618. –Counterclaims

Counterclaim by shipowner for recovery of maintenance and cure alleged to have been fraudulently obtained by seaman in action by seaman for personal injuries under 46 USCS Appx § 688 is subject to trial by jury notwithstanding general principle that admiralty claims (maintenance and cure) are not triable by jury. Bergeria v Marine Carriers, Inc. (1972, ED Pa) 341 F Supp 1153, 16 FR Serv 2d 1268.

619. Composition of jury

Parties can have no valid objection to 6-man jury in seaman’s case. Wiseman v Reposa (1972, CA1 RI) 463 F2d 226.

620. Miscellaneous

Where District Court in which limitation of liability proceedings under 46 USCS Appx § 183 are filed issues order restraining prosecution of pending actions against defendants arising from particular accident, plaintiffs should, upon court’s denial of limitation, be permitted to elect whether to remain in limitation proceeding or to revive original claims in their original fora; where plaintiffs, who had previously filed Jones Act claims in different district and had exercised their rights to jury trial, elected to renew original claims, and where court in which Jones Act claims were filed transfered cases to District Court in which limitation proceedings were filed on grounds of forum non conveniens, change of venue did not disentitle plaintiffs to right to jury. Wheeler v Marine Navigation Sulphur Carriers, Inc. (1985, CA4 Va) 764 F2d 1008.

Against corporate defendant, decedent’s employer, plaintiff widow was entitled to have jury trial under provisions of 46 USCS Appx § 688, but to get jury trial against individual defendants whose negligent construction of lampstand allegedly caused injuries resulting in decedent’s death, she would have to show either Act of Congress or cause of action recognized at common law and arising between parties of diverse state citizenship. McDonald v Cape Cod Trawling Corp. (1947, DC Mass) 71 F Supp 888.