McAllister v. Magnolia Petroleum Company

PETITIONER:McAllister
RESPONDENT:Magnolia Petroleum Company
LOCATION:Philadelphia Board of Public Education

DOCKET NO.: 83
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: State appellate court

CITATION: 357 US 221 (1958)
ARGUED: Apr 01, 1958
DECIDED: Jun 23, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – April 01, 1958 in McAllister v. Magnolia Petroleum Company

Earl Warren:

Number 83, Richard McAllister, Petitioner versus Magnolia — Magnolia Petroleum Company.

Mr. Mandell.

Arthur J. Mandell:

May it please the Court.

This action was instituted in the District Court of Harris County, Texas on the 27th day of August 1953 in behalf of a (Inaudible) seaman and engineer on a motor vessel J.C. Stephens owned and operated by the respondent Magnolia Petroleum Company.

This action was removed by way of plea of privileged to the District Court of Dallas County where the trial was held.

The pleadings in sort of orthodox —

Earl Warren:

Where was it filed, Mr. Mandell?

Arthur J. Mandell:

In Houston.

Earl Warren:

In Houston.

Arthur J. Mandell:

Yes.

Earl Warren:

In the state court?

Arthur J. Mandell:

The state court —

Earl Warren:

Yes.

Arthur J. Mandell:

— and removed to the State Court of Dallas County.

The pleadings in sort of orthodox fashion alleged unseaworthiness and negligence.

Before trial, the respondent interposed a plea of limitation both to the action under the Jones Act and to the action which petitioner here claims is also under the Jones Act but under the principles of the Maritime Law that proceeded the Jones Act.

The theory of the respondent and the court below was that when the Jones Act was enacted, a two-year limitation statute prevailed and when the Federal Employers’ Liability Act limitation provisional was increased to three years, it did not apply because it was not specifically provided in the extension as to the Jones Act.

And also, stated and urged below that the cause of action for unseaworthiness has been barred by limitation because the two-year Texas Limitation Statute applied and not the two-year statute.

The trial court overruled after hearing both of these pleas and trial was held on the merits.

At the trial and conformity with the rules of civil procedure applicable in the State Court of Texas, special issues or interrogatories were submitted to the jury.

The jury found first that petitioner did receive any injury to his body while attempting to walk down a set — a set of stairs leading from a lounge to the galley below which he had to go in order to reach the engine room where he was employed as an engineer.

The jury also found one of the allegations urged by the petitioner that the portholes over the stairs from which he fell were not watertight causing seawater to come in and making them dangerous causing his fall.

The jury found that the portholes or windows over these stairs were not watertight.

Petitioner insisted that the inquiry immediately following this inquiry should be was such on seaway the condition or was such failure to have these portholes watertight approximate cause of petitioner to the injuries on the theory of that.

Once the unseaworthy action or the effect has been found the unseaworthiness follows as a matter of law and the next one is just a question of approximate cause.

The Court refused to submit such an issue and instead asked the jury whether that failure to have these portholes or windows watertight rendered the vessel unseaworthy then gave a definition over the objections of petitioner stating you are instructed that by the term unseaworthy as used herein means that a vessel with it’s appliances and the fittings is not reasonably fit for the purpose for which it is being used.

Petitioner objected first that there was an unnecessary question of the jury whether or not that led the vessel unseaworthy.

And secondly, stated that if the Court was to submit such an inquiry then the definition is erroneous because it emplaces a greater burden than the one upon petitioner, than the one required by law, because the definition requires the jury to find that by reason of that failure to have these portholes or windows watertight.

The vessel as a whole is unseaworthy whereas the burden upon us was to show that that particular port of the vessel was unseaworthy approximately causing injury.

The Court refused to do so and refused to do so on a similar issue inquiring about whether or not the deck above the galley was watertight, (Inaudible) shows that it wasn’t and submitted the same type of issues.

Charles E. Whittaker:

Mr. Mandell, did you alleged specifically what it was in your complaint that cause —

Arthur J. Mandell:

Yes.

Charles E. Whittaker:

— the vessel to be unseaworthy?

Arthur J. Mandell:

Yes, particularly I say the vessel was unseaworthy in that setting specifically that portholes were not watertight and water would come through, the largest are from the stairs that the deck above the galley was not watertight, that water would come through and lodge itself on the steps very specifically set out.

Then I made the same objections and the same exceptions and requested the same definitions with reference to question number 14 but of course the same result.

The jury, however, was not 15 minutes and send an inquiry to the Court saying Judge Long does the term unseaworthy refer to the vessel as a whole or to the three portholes or three windows above the galley, the specific question.

The Court refused to answer to that stating, “We the Court, the charge contains all destructions and definitions.”

Jury of layman naturally answered the question of unseaworthiness no, that a jury was confused.

It’s so clear by the issue that they’ve send out that at least no room for that otherwise they would have never send that very cautioned and intelligent question out.

Again, when the jury send out that question in conformity with our practice, are requested in writing that a Court issue, answer the jury the question that in connection with your answer, you are instructed that we have referenced to the portholes over the stairs leading from the lounge to the galley.

The Court refused it at that time again, I asked for a definite definition particularly pinpointing as the Court should that the defect we were talking about was not the vessel as a whole but the specific windows and the specific deck above the galley the Court again refused.

The jury found acquitted defendant that the respondent here of all negligence bound $22,500 for the damages and some $6000 plus for maintenance.

Could I ask you a question?

Arthur J. Mandell:

Yes, sir.

Is the — the issue is submitted, the one that you’re talking about is on page 35 of your brief, is that it?

Arthur J. Mandell:

Yes.

Now, the first — the first part of that, do you have any quarrel with that?

Arthur J. Mandell:

No, that’s exactly the way I’ve requested.

Is the ambiguity that’s created by the second paragraph?

Arthur J. Mandell:

By the definition.

Yes, sir, as clearly illustrated by the jury this question.

Now — no, it’s not a — Justice Harlan, it is not as I’ve shown a specification over — on page number 35.

I say that was unnecessary once they answer on the jury was requested and answer specification number two as it’s not in my brief, it appears on page 384 of the record.

Harold Burton:

Page 34.

Arthur J. Mandell:

384 of the record itself.

I objected to that part of the issue that appeared on page 35 of my brief because I find it wholly unnecessary under the decisions of this Court and particularly Putman versus United States and many other cases.

In other words, you objected to all of —

Arthur J. Mandell:

Number three.

You thought number three was all — that in view of number three number 14 was unnecessary, is that it?

Arthur J. Mandell:

I said in view of number two immediately proceeding number three.

I see.

Arthur J. Mandell:

Number three was not necessary.

I see.

William O. Douglas:

I thought your main question here was the statute of limitation.

Arthur J. Mandell:

Yes, sir, I’m getting to that immediately next of I — I think.

William O. Douglas:

You don’t have very much time.

Arthur J. Mandell:

Thank you, sir.

I say that — that the method of submitting that issue itself put — deprived petitioner of the federally created right.

Now, we come to the question of limitation, I approached the question of limitation on two grounds.

One that the Jones Act was an all inclusive statute that it took in all personal injuries suffered by seaman and when once the Congress has passed an Act, providing that all personal injuries, the statute shall be three years, that is controlling otherwise the — we have a judicial chameleon that changes these color as accordance with the topography or geography of the country.

It would be ridiculous, I submit, that a seaman in Texas must — would lose his law suit that he bought — cause he bought it after two years but one in New York can recover because he bought it in three years and one in Louisiana would lose it because he didn’t bring within one year.

Secondly, we have the statute with reference to analogy.

Now, if analogy is to be had and by the way respondent pleaded last year so we — petitioner pleaded by way of protection incursion excused from last year.

And it was shown there that all of the witnesses that were present at the time of the injury were present and testified at the trial of the case that this man was kept on the employ of the employer for a period of — of almost two and a half years.

So a good grant of excuse were present to excuse delay if delay is in the case and I submit there is.

Secondly, as they were own questionably there was no prejudice to the respondent here.

Now, I submit that a case that I haven’t cited but recently where again Lindgren versus United States decided by this Court many years ago its 38 — 281 U.S. 38 and the appellate court decision is 28 F.2d 125.

In that case, Lindgren sued the United States and that was — and sought under both negligence or on — and unseaworthiness and it was sued for the death, Lindgren died leaving no beneficiaries which could take under the provisions of the Jones Act to the Federal Employers’ Liability Act.

The District Court allowed them $5000 damages to who — to the administrator under the — on the Virginia statute, I believe, because under the Virginia statue, you did not have to have this class of beneficiaries in order to see the recovery.

The brief I’ve just —

Arthur J. Mandell:

The Court of Appeals reversed saying that Congress has spoken in enacting the Jones Act which sets out exactly who the beneficiaries are and since questionably these beneficiaries were not existent, he can recover.

But counsel for the petitioner (Inaudible) took the position that this is also a cause of action for unseaworthiness which the Jones Act does not cover and therefore the State statute applies which does allow recovery.

But this Court and the Court of Appeals said not so the Court has spoken clearly to Congress — Congress has spoken clearly saying that you cannot recover unless you have these class of beneficiaries there and since they’re not existent, it matters not whether you recover under unseaworthiness or under the Jones Act by way —

William O. Douglas:

What is the name of the case you —

Arthur J. Mandell:

Lindgren versus U.S. —

William O. Douglas:

Where did you cite it?

Arthur J. Mandell:

It’s 281 U.S. —

(Inaudible)

Arthur J. Mandell:

— 38, 28 F.2d 125.

William O. Douglas:

It’s not in your brief.

Arthur J. Mandell:

I — I thought I had it but I checked it this morning when I saw it, I did not but I think it’s a relevant decision and that if the Court of Appeals in Texas is correct then Lindgren versus U.S. is wrong for this reason.

In Lindgren versus U.S. this Court have said, the Congress had passed an act applicable to Jones Act actions which prohibits recovery unless these class of beneficiaries are alive and it matters not that you come in here and say that you proceeded under unseaworthiness.

The reason of — the parallel I think is clear if the — the argument is made that a plea of statue of limitation applies only to the Jones Act then Lindgren versus U.S. is wrong because they say it matters not.

If the provisional beneficiaries in the Jones Act is applicable then the provision of the limitation of clear limitation is applicable more over this Court time and time again as stated that Section 688 Title 46 applies to all maritime causes of action.

I say that is the fault of the courts to some extent primarily the fault of the lawyers that fell into a mail saying over and over again that the Jones Act is a negligence statute.

I say and I urge this Court to see that the Jones Act is not merely a negligence statute, where you couldn’t proceed under the FELA to impose liability under the Safety Appliance Act which certainly is a non-negligence statute.

This similarity is exactly the same and of course this similarity in my position is supported by the recent decision of this Court in Kernan versus the American Dredging Company decided I believe January 27, 1958 by this Court.

And this — since I like to have about a few minutes to reply, I say that a statute of limitation enacted by Congress in three year is applicable to all causes of action by — urged by a seaman in the event of personal injuries since Congress has decreed that otherwise the uniformity of the matter would be seriously impaired.

Secondly, the issues submitted by the trial court below has impaired and prevented the sea — the seaman of appealing its federally created right and a method on which they were committed and this Court has very reasonably also and there are no case held that a state court cannot by its practice and procedure deprive a citizen of its federally created right.

I’d like to ask you a question if I may.

Assuming we agreed with you on the statute of limitations, what should we do with the case?

Arthur J. Mandell:

It is my opinion and I certainly strongly urge the Court to also speak on my second point, which is the proper submission of the definition of unseaworthiness.

The Court of Appeals never reached that point.

Arthur J. Mandell:

The Court of Appeal never reached that point, that’s true but as much as it is a great honor for any lawyers certainly for me to appear before this Court, I would not want to come back on this case again.

I — I think this Court ought to also pronounce the rights of — of this litigant on the second question.

They might decide it correctly.

Arthur J. Mandell:

They might.

Felix Frankfurter:

Could we — could we decide what you call the second question without reading the whole record in order to find the relevance of the — is this an abstract question that you’re tendering or does it relate to the facts made out of the case.

Arthur J. Mandell:

I think Justice Frankfurter that the facts made that the undisputed questions by both counsel here raises the second question without the necessity of going through like —

Felix Frankfurter:

You said something about the bearing of the jury must it so understood it, didn’t you say something in the bearing?

Arthur J. Mandell:

Yes, but that’s appearing from the record sir.

Felix Frankfurter:

Well —

Arthur J. Mandell:

From I mean —

Felix Frankfurter:

Is it appearing from the record without going through the record?

Arthur J. Mandell:

I think so.

I think it is.

Earl Warren:

Mr. Mandell, do we have to go with you all the way on your — pm your argument that the statute of limitation as contained in the Jones Act applies to all maritime cases in order to be with you?

Arthur J. Mandell:

No, sir, you can go ahead on the analogy matter but I — I do honestly believe it does, but the Court — the Court can do one hold that the Congress having spoken that a two-year statute applies to seaman receiving personal injury that — that’s controlling on all states.

Felix Frankfurter:

Our problem is, what it is that Congress said when it’s both.

Arthur J. Mandell:

Well, I understand that — and I would find the help as much as I can by my being here in my brief, that’s number one.

Arthur J. Mandell:

Number two this Court can say we find that no prejudices existed and if any analogy is to be followed, a two-year statute enacted by Congress since it’s a federally created right.

Felix Frankfurter:

Am I right in inferring and assuming or inferring that you would be — you would have the cause of action which you here urged prior to the Jones Act?

Arthur J. Mandell:

Yes.

Felix Frankfurter:

And what you’re saying is that although — and what are the statute of limitation prior to the Jones Act?

Arthur J. Mandell:

There — there was no federal —

Felix Frankfurter:

What was the controlling statute of limitation in this litigation prior to the Jones Act?

Arthur J. Mandell:

Two years, sir.

Felix Frankfurter:

Two years, why — why?

Arthur J. Mandell:

States statutes so provide because there was no federal —

Felix Frankfurter:

Although the right was a — the substantive right was uniformed throughout the country.

Arthur J. Mandell:

Yes.

Felix Frankfurter:

What was unseaworthiness was that general question of national law.

Arthur J. Mandell:

Yes, sir.

Felix Frankfurter:

But the enforceability depended upon the state law prior to Jones Act.

Arthur J. Mandell:

Well, sir —

Felix Frankfurter:

I mean the statutory limitation was the state law?

Arthur J. Mandell:

Yes, sir.

Felix Frankfurter:

And what you’re saying is that when the Jones Act was passed not taking any change in the Maritime Law, but having a provision regarding the statute of limitation in the same act that change the law regarding unseaworthiness, that’s the case.

Arthur J. Mandell:

That’s exactly the case —

Felix Frankfurter:

All right.

Arthur J. Mandell:

And this Court has so held with reference —

Felix Frankfurter:

I — I just want to be clear on what you said.

Arthur J. Mandell:

Yes, sir.

(Inaudible) Court just held this.

I thank you.

Earl Warren:

Mr. Bolton.

Frank C. Bolton, Jr.:

Mr. Chief Justice, may it please the Court.

I would like to address our argument primarily almost solely to the question of limitations.

Mr. Mandell has in a large manner made summary of the jury findings.

There were some 34 special interrogatories submitted and only 15 of which were required to be answered to arrive at the verdict which the jury found because some of the issues were conditionally submitted upon a yes or no answer to a preceding issue.

Frank C. Bolton, Jr.:

The jury exonerated the respondent from any act of negligence.

They did it specifically with reference to the specific acts about which inquiry was made and it did so generally by finding that the injuries resulted from an unavoidable accident.

The seaworthy issues were submitted as requested by counsel except insofar as he has outlined here.

The jury found the condition existed but that the condition did not constitute unseaworthiness and under the Court’s instructions they were not then required to determine the approximate cause issue which followed.

Now, to make my point as to the applicable statute of limitation, it is I think necessary to go to the historical backgrounds or a brief summary at least so long since the (Inaudible) or back in the early days of this Court.

The cause of action for unseaworthiness as a condition has been recognized as a matter of national law.

The unseaworthiness in that since is a condition without regard as to why the condition existed.

The cause of action then that a seaman had under that law depended merely upon him showing that the condition existed and not showing how it came about.

With the enactment of the Jones Act in 1920, the law then changed and the seaman’s right were expanded in many particulars.

As this Court well knows, the Jones Act adopts the provisions of the laws of the United States modifying the common-law rights of railway employees and that we commonly think of those laws as being the Federal Employers’ Liability Act.

Now, the Jones Act has in it some substantive rights certainly and it adopts a statute which has any other substantive rights.

It is long been held that the statutory period prescribed in the Federal Employers’ Liability Act is substantive rather than procedural since it comes within the rule that it is a portion of the statute creating the right.

Now, Section 56 of Chapter 45 the Federal Employers’ Liability Act modifies the common-law by prescribing a period of limitation within which the action provided in that law could be brought.

The reach and scope of Section 56 is limited to actions brought under this chapter.

Section 52 of that chapter describes the actions which maybe brought under that charges and Section 52 relates to causes of actions by employees or survivors against the employers or injuries resulting — injuries or death resulting in whole or in part from negligence.

Now, shortly after the passage of the Jones Act, this Court have before it the case of Engel against Davenport and in that case the question was whether the prescriptive period provided in the Federal Employers’ Liability Act at that time, two years, controlled over the statute of limitations in the State of California which at that time was a one year statute.

The Court recognized the problem which we have here today.

It found it unnecessary to decide the issue because the plaintiff there had declared upon a cause of action based upon negligence and unseaworthiness as a result of negligence, so the Court permitted the action within the longer period of time.

The next case which is cited in our brief which most merely approaches our problem is the case of McGee versus the United States in 165 F.2d.

There, the Second Circuit discussed the holding in Engel against Davenport and interpreted that holding to mean that if the plaintiff declared upon a cause of action based upon negligence — negligence on seaworthiness then it was incumbent upon him to make that proof in order to avail himself of a longer period of limitation as prescribed in the Federal Employers’ Liability Act.

Now, I believed the law to be that when a summary — that when a seaman, asserts an action for unseaworthiness in a state court.

He must bring his action within the state prescribed period if it is factually based upon unseaworthiness, simplicity around seaworthiness which exist as a condition not arising from negligence but that he may bring it within the period of the Jones Act as a connection arising under the Jones Act if the same condition is based upon some negligence of the ship or its owner.

William O. Douglas:

But if it’s based on both —

Frank C. Bolton, Jr.:

Sir —

William O. Douglas:

— gathered then I suppose, he must proceed within the two years or his — takes his chance of losing out.

Frank C. Bolton, Jr.:

If these facts do not sustain his negligent count then he does have that —

William O. Douglas:

As a practical matter, we have something here that implicates only the unseaworthiness but ordinary negligence suit under the Jones Act.

Frank C. Bolton, Jr.:

Yes — yes sir.

Now —

William O. Douglas:

It’s a rather — rather direct bearing upon them too, I would think.

Frank C. Bolton, Jr.:

I would think so, sir.

The statute of limitations which would apply to the same type of action brought in the law side on — as an action at law in the Federal District Court and with trial by jury and so on under the election which the — the seaman employee had would be governed I think under the same rules because of the rules of the decision act insofar as it would apply to the Federal Court sitting in that State.

Of course, then on the admiralty side of the Court, you have an entirely different situation.

Now, it is our position here that since the jury facts have become the facts before this Court and particularly those with reference to negligence which were not made the point of objection on appeal at all.

In other words, the counsel did not raise in the court below and does not raise here any points of appeal relating to the cause of action which he asserted based upon negligence.

And since the jury exonerated the respondent here from all acts of negligence then we must treat this case as if it were a case based only upon unseaworthiness simplicity or unseaworthiness which existed of the type that existed prior to the basis to the Jones Act.

Felix Frankfurter:

Well, that’s not in dispute between you as I understood Mr. Mandell.

That is not in dispute between you —

Frank C. Bolton, Jr.:

Not of the negligence.

No, sir.

Felix Frankfurter:

No, it’s not in dispute that the case that’s now before us is as though he had laid merely unseaworthiness.

Frank C. Bolton, Jr.:

I believe that — that certainly is my position, Your Honor.

I believe that to be counsel’s position.

Felix Frankfurter:

Well, the fact that you joined the two and the other one as you say the defendant has exonerated, it doesn’t change the nature of the legal problem now before us.

Frank C. Bolton, Jr.:

No, sir.

Felix Frankfurter:

All right.

William J. Brennan, Jr.:

Mr. Bolton is there any significance in the language of Jones Act may at his election maintain an action?

Frank C. Bolton, Jr.:

Yes, sir.

I do not think so insofar as this case is concerned.

I — I believe that the — the election there is as — the remedy for the seaman to proceed at law with trial by jury rather than the election of remedies between the unseaworthiness and — and negligent counts.

William J. Brennan, Jr.:

I don’t quite understand.

You mean that election means only elect between the trial based on negligence without a jury and —

Frank C. Bolton, Jr.:

No, sir.

I did not mean to say that.

I — I believe that his election is simply between whether he proceeds in the Court at law and obtains the jury trial wherein he may incorporate all of this counts based upon the same facts and secure in them that they either by reason of fault or by reason of unseaworthiness if his proof is — is —

William J. Brennan, Jr.:

Well —

Frank C. Bolton, Jr.:

— such as distinct.

William J. Brennan, Jr.:

Well, to that extent at least, does the recognition of an action based on unseaworthiness implied in the provision that he may at his election?

Frank C. Bolton, Jr.:

Well, that I — I don’t quite know that I understand the Court’s question but if — if I —

William J. Brennan, Jr.:

Well, what I’m — what I’m trying to get at is, is there any recognition in the statute that the election is as between an action which would be founded upon or based upon the FELA principle?

Frank C. Bolton, Jr.:

Yes, sir.

William J. Brennan, Jr.:

And an action founded upon alleged unseaworthiness.

Frank C. Bolton, Jr.:

Justice Brennan, I believe that — that is the question which the courts below have had some difficulty in determining and — and the most recent way to authority I think is that the election is only as to whether he proceeds before a jury or proceeds admiralty.

William J. Brennan, Jr.:

In admiralty.

Frank C. Bolton, Jr.:

Yes, sir.

William J. Brennan, Jr.:

Well, I — after all, the statute of limitations, you suggested that substantive —

Frank C. Bolton, Jr.:

I — I suggested that it’s substantive in the Jones Act I — I would say that the Texas Act which was applied by the court below is procedure and it is so been held.

It is a general statute of limitations not a portion of the statute creating the right.

To me, the — the right of the Texas Court to apply its own statute generally in this type of case is no different from committing it to prescribe the jurisdiction of its courts or the prerequisite steps to preserve appellate point — points or the Rules of Civil Procedures.

The only other point that I wish to make is that the court below did not have an opportunity to pass upon any of the assignments of error or counter assignments of error — or it had an opportunity but it did not see fit to pass upon them and if the Court does see fit to reverse the court below, I believe that the proper disposition of the case would be to remand it for a further consideration so that it may consider all of the points which were briefed at the submission

Felix Frankfurter:

May I — may I ask, I heard nothing about any light shed by the legislative history of the Jones Act.

I gather there isn’t any as the counsel would’ve produced it.

Frank C. Bolton, Jr.:

Mr. Justice Frankfurter, I originally thought that I had a very good point of law that the amendment to the FELA, the 1939 Amendment of the FELA could not be attributed to apply it to the Jones Act and just about the time that we argued or we’re arguing our motions below this Court rendered its opinion in the Cox versus Roth case and my confidence in that point materially decreased and so I — I have abandoned that.

I do not believe that that is — is actually here now insofar as the initial act is concerned, of course the background there goes back to the — on the condition that existed but the efforts to pass a — a Longshoremen and Harbor Workers Act and to apply rights to these classes of people, federal rights, if you please that did not apply the other classes of employees generally.

Felix Frankfurter:

But — but on — on the statute of limitations, there’s no light as to — secondly, I gather not — secondly —

Frank C. Bolton, Jr.:

No, sir.

Felix Frankfurter:

— it is a bit surprising that there should be seemingly as little light on the substance — on the actual determination whether the Jones Act does or doesn’t apply where an action is brought merely for unseaworthiness or that’s the only claim that is sustained.

Here, the statutes been enforced since — for 38 years.

One counsel is surprised that law isn’t — everything else about life but is unexpected.

Frank C. Bolton, Jr.:

Well, this Court has have before its famous cases which could not have reached here had counsels contention been correct for example in the Mahnich versus Southern Steamship Company case, that was a case which was admittedly filed after the prescriptive period in the Jones Act through it was filed in evidently and the — the six-year, I believe it was the six-year statute which was applied in the State in which the court set and this Court in its action sent back for trial on the issues of the situation there.

That case would not have been alive so to speak had the — the Court and should the Court apply counsels contentions that the Jones Act embodies the whole of the Maritime Law in support it relates to seaman injuries.

Felix Frankfurter:

Of course you might have to meet the argument if the Jones Act sets the minimum but if a state wants to give more, that doesn’t contradict the Jones Act.

I — I wouldn’t think much of that argument.

Frank C. Bolton, Jr.:

I — I do not either, sir.

Now the state — the State of New York applies its six-year statute of limitations to unseaworthy claims brought in those courts.

This contention would — by counsel result and those actions being terminated for three years.

They arrived I believe then under a theory of a breach of warranty which they attribute to their contractual provision in their statute of limitation.

Felix Frankfurter:

Well, if — if it — if the mode of enforcement because the locality of the injury is local, is left to local law, that’s not the difficult — anyhow, New York had can work that out if it wants to.

Frank C. Bolton, Jr.:

Yes, sir.

Felix Frankfurter:

But —

Frank C. Bolton, Jr.:

I see nothing wrong with that.

Actually the lawyers in Texas are more familiar with the Texas Laws than they are with the laws of the United States and if the courts of Texas or the statutes of Texas apply uniformly to all litigants in those courts except insofar as the expressed provisions of the Jones Act — the Jones Act, the three-year statute does definitely apply and I’ll make no contention and it does not.

Felix Frankfurter:

And even Texas lawyers have to be familiar with that.

Frank C. Bolton, Jr.:

Yes, sir.

Felix Frankfurter:

I mean the independent Republic of Texas even have to take account of that National Law that —

Frank C. Bolton, Jr.:

Yes, sir.

We have to know that.

Unless there are further questions, I believe that’s all.

Thank you.

Arthur J. Mandell:

Mr. Mandell, you may proceed.

I — I think perhaps I maybe of aid to the Court in reference to the history of the legislation.

I have checked that and found no history of legislation except this.

This Court decided Arizona versus (Inaudible) of 1942 or 1943 or that about I believe.

In that case, a seaman sued under the Jones Act for personal injuries and the attorney for the steamship company very advertly I thought came back and interpose the plea of assumption of risk stating that if they are going to take in the Federal Employers’ Liability Act in total, they can take only the good and not the bad.

It would be bad and the — at that time, the Federal Employers’ Liability Act, I’m sorry was page 6, I believe.

The doctrine of assumption of risk could’ve been applied because the law hasn’t been amended since 1939.

This Court and the court below rejected that argument stating this that the Jones Act was not meant to limit the rights that a seaman had under the Maritime Law but why don’t you enlarged it that a Jones Act wasn’t drafted on the Maritime Law or which it became apart and I say therefore that while this Court had never had this question brought out before directly the question of limitation except in Engel versus Davenport which this Court particularly states we need not pass from the question whether the Jones Act period of limitation applies on a cause of action for unseaworthiness because we don’t have it before.

But in that case in the Arizona versus (Inaudible) case, this Court stated that a right that they had the — the Jones Act do not afford the right to avoid the assumption of risk defense nevertheless it’s right that they had an admiralty and it’s embraced and continued and became a part of the Jones Act as I believe was a right of unseaworthiness and the statute of limitation under the Jones Act became a part of the Jones Act.

Felix Frankfurter:

Mr. Mandell, you stated with great candor that prior to the Jones Act, the local law of limitation where it’s decide by Congress to be applied to suits in state courts and also the federal court to suit in any court state or federal giving a maritime right for unseaworthiness, if you’re in maintenance et cetera or subject to the local law of limitation, is that right?

Arthur J. Mandell:

Partially right.

Felix Frankfurter:

What’s wrong about it?

Arthur J. Mandell:

I don’t agree with — I don’t agree with you Justice Frankfurter.

I was saying that it was desired by Congress.

Congress simply did enact.

Felix Frankfurter:

Very well, I accept your —

Arthur J. Mandell:

Yes, yes.

Felix Frankfurter:

— your correction.

Arthur J. Mandell:

Yes.

Felix Frankfurter:

Congress cause act and not act, if Congress doesn’t act in an area in which it doesn’t give a statute of limitation then that’s the policy of Congress that the local law should apply would you agree to that?

Arthur J. Mandell:

I say that local law must apply in the absence of — of congressional action or (Voice Overlap) —

Felix Frankfurter:

Because Congress has chosen not to leave the local law to be applicable to transactions that transpire local.

Arthur J. Mandell:

Yes, sir.

Felix Frankfurter:

That’s the policy, isn’t it from the beginning of our history?

Arthur J. Mandell:

If known action means policy.

Felix Frankfurter:

Well, I —

Arthur J. Mandell:

If non-action means policy, yes, sir.

Felix Frankfurter:

I do want to take your time in —

Arthur J. Mandell:

Yes sir.

Felix Frankfurter:

— talking about words.

The fact is that if Congress doesn’t pass the statute of limitation, the local statute applies.

Arthur J. Mandell:

Yes, sir.

Felix Frankfurter:

Although, the right derives from federal constitution on those law.

Is that right?

Arthur J. Mandell:

Yes, sir.

Felix Frankfurter:

Very well.

Now knowing the history of the Jones Act, I think I can say both you and I know it.

Arthur J. Mandell:

Thank you sir.

Felix Frankfurter:

Will you indicate — will you state, you tell me whether there — tell the Court whether there is the slightest intimation in the course of that history that Congress was concerned with the enforceable rights for — of maritime law regarding unseaworthiness when it passed the Jones Act or rather whether it was concerned to undo what I believe to be the undesirable cause of decisions in this Court and give recovery under the Jones Act not only different substantive rights but also the right of recovery to those who is — who– in cases of death.

Is there any indication that anybody was concerned with changing the then Maritime Law about unseaworthiness except to create a new substantive right?

Arthur J. Mandell:

Yes, sir.

Felix Frankfurter:

That’s a very big except.

I mean that’s —

Arthur J. Mandell:

Yes, sir.

Felix Frankfurter:

— the purpose.

Arthur J. Mandell:

Except — yes, Your Honor.

I —

Felix Frankfurter:

Is there anything that you find in anybody’s utterance that was concerned with changing the then existing law regarding unseaworthiness?

Arthur J. Mandell:

Yes, Justice Frankfurter, the very language of the statute (Voice Overlap) —

Felix Frankfurter:

Well, I can read that as whether you can, but apart from that, is there anything in how the language of the statute does that I cannot see for the light of it.

Arthur J. Mandell:

Thank you very much.