Romero v. International Terminal Operating Company

PETITIONER:Francisco Romero
RESPONDENT:International Terminal Operating Company Compania Trasatlantica, also known as Spanish Line, Garcia & Diaz, Inc., and Quin Lumber Co., Inc.
LOCATION:S.S. Guadalupe

DOCKET NO.: 3
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 358 US 354 (1959)
ARGUED: Mar 13, 1958
REARGUED: Oct 22, 1958 / Oct 23, 1958
DECIDED: Feb 24, 1959
GRANTED: Oct 14, 1957

ADVOCATES:
John L. Quinlan – for respondents Compania Trasatlantica and Garcia & Diaz, Inc.
Narciso Puente, Jr. – for the petitioner
Silas B. Axtell – for the petitioner
Sidney A. Schwartz – for respondent Quin Lumber Co., Inc.

Facts of the case

While the Spanish ship S.S. Guadalupe was docked in Hoboken, NJ, a cable struck Francisco Romero and seriously him. He sued for negligence under the Jones act and maritime law. The Jones Act provides jurisdiction for claims under the Constitution and treaties of the U.S. for persons of diverse citizenship. Both Romero and his employer were aliens, so there was no diversity of citizenship. Also, the maritime laws did not arise from the Constitution or treaties of the U.S.. The district court dismissed all claims for lack of jurisdiction. The district court also held that Romero could receive adequate remedies under Spanish law. The U.S. Court of Appeals for the Second Circuit affirmed.

Question

(1) Do U.S. courts have jurisdiction to decide the matter under the Jones Act?

(2) Do U.S. courts have the authority to decide maritime law matters?

Media for Romero v. International Terminal Operating Company

Audio Transcription for Oral Argument – March 13, 1958 (Part 2) in Romero v. International Terminal Operating Company
Audio Transcription for Oral Argument – March 13, 1958 (Part 1) in Romero v. International Terminal Operating Company
Audio Transcription for Oral Reargument – October 22, 1958 in Romero v. International Terminal Operating Company

Audio Transcription for Oral Reargument – October 23, 1958 in Romero v. International Terminal Operating Company

Earl Warren:

Number 3, Francisco Romero versus International Terminal Operating Company, et al.

Mr. Axtell, you may continue with your argument.

Silas Blake Axtell:

If the Court please.

I want to refer to the brief of the respondent called Skibsfartens Arbeidsgiverforening, Norwegian Shipping Federation, page 18 of that brief.

Mr. Watson who, I believe, wrote the brief with Mr. Estabrook as referred to report of the Merchant Marine and Fisheries Committee of the House not as to this bill but after the bill that was before the Congress three years before.

Fortunately, I — and this is with the help of my associate, Mr. Ellis, who’s been before this Court many times before, and we searched our congressional library and records and found the record, 66th Congress, three years, late years, 2nd Session, page 7037.

Mr. King, the presiding Senator, “Does the Senator say that the Supreme Court has held we have jurisdiction over foreign seamen and foreign ships?”

Mr. Jones of Washington, “Under the present statute, we have such jurisdiction in our courts.

The Supreme Court held the Act to be constitutional only sometime ago.”

Mr. King — now, this is the date.

It was May 14th, 1920, three weeks before this Act would pass Congress.

Earl Warren:

Three weeks or three years, did you say?

Silas Blake Axtell:

Three weeks.

Earl Warren:

Oh, three weeks.

(Voice Overlap) —

Silas Blake Axtell:

I’m reading from a congressional record of May —

Earl Warren:

Yes.

Silas Blake Axtell:

— 14th, 1920.

The Act was passed June 5th, 1920.

This was the debate on this amendment just before it passed.

I will skip over to page 7043 of that record, the bottom on the right-hand side.

Mr. King, “I should like to ask the Senator, having this bill in charge, what is the necessity now of reenacting legislation dealing with this subject?”

Mr. Jones of Washington, Chairman of the Committee on Commerce who prepared the bill, “I will call the Senate to their attention to the only change made in the law by this provision.”

You will note on page 51 and lines 5 and 6 the words, “the payment of such advanced wages or allotment.

Here is the change in the existing law whether made within or without the United States or a territory subject to jurisdiction thereof.”

Then, Mr. Jones said this, his own language, “The Supreme Court has upheld this section and has also upheld the right of Congress to deal with foreign seamen in our ports.”

We suggest that, of course, they knew what they were doing when they said, “any seamen may elect”.

I think Mr. Justice Frankfurter referred to it in that Maryland case.

The — the seaman may invoke the jurisdiction of a court in his interest.

That’s part of America, to give people equal opportunity here.

Silas Blake Axtell:

Our old Seamen’s Act was intended to benefit the world why we pursued our effort to the amendment, that’s referred to in these pages.

I shan’t read them now, to the extension of the crimping law.

I don’t really know what crimping is but in those days, you go back to the period of British history and its industries, which you’ve read, of course.

The seamen were indentured to the ship by long articles.

And to get the jobs, improvident as they always have been, then, they needed money.

They would sign on conditioned payments, wages due later.

They’d sign away from one to six months wages.

The wages were miserably small but we tried to stop that in 1915 by making those advances illegal even made it in Holland or Germany or England.

I got John W. Davis to argue the case.

You’ll find it in the Archimedes.

It’s referred to here I think, but we lost it.

The Court concluded that that’s completed transaction, I suppose, like a note pay abroad.

We couldn’t go that far.

But it shows you how far Congress wanted to go.

As it’s — it’s always seemed to be ridiculous to me that anybody should question that the Jones Act applied within our own jurisdiction on page 7044.

The amendment itself is passed.

It’s called Section 636 there.

It really was Section 33 as we have it in our books now.

At Section 20 of this Act of March 4th, 1915 be in hereby as amended to read as follows, “That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law.”

Those were guide rules.

I wanted the — all the seamen to have the right to our courts.

And they opened the courts to seamen without the prepayment of fees or cost because we have thousands of petitions in which the seaman said, “I have nothing.

I owe nothing,” and so forth, and his lawyer had to sign a paper that he wasn’t going to get any fee, at least not more than 10%, which meant defeat of his rights.

The purpose of the Act itself, the Jones Act now, they’ve had about 35 or 40 different provisions of which this one, 33, amendment of Section 20 was the one we’re talking about.

The enactment says, “Be it enacted by the Senate of the United States that it is necessary for the national defense and for proper growth of its foreign and domestic commerce of the United States shall have a merchant marine and the best equipped and most suitable types of vessels sufficient to carry the great portion — greater portion of its commerce and serve as a naval and — or military auxiliary in time of war or national emergency, ultimately, it will be owned and operated privately by citizens of the United States.”

I can hardly resist the temptation to say, call your attention to the — the manifesto.

We have called it (Inaudible) answering Linen that the seamen are needed to man our ships.

The nation that gave you freedom needs your help and our ships were manned, not only foreign seamen who deserted their ships to — to join ours with better wages and free conditions but our own seaman who’d been to sea, went to sea again.

Now, next in importance is the brief — is this the Solicitor General — of the Solicitor General of the United States, Mr. (Inaudible), Mr. James M. Beck was interested.You find this quoted from their brief, the Government’s brief in 1918, wasn’t it? 1918.

The recordings from Mr. Harding —

Hugo L. Black:

Do you mean that — where do we find that in your brief?

Is that in your brief that we have here?

Silas Blake Axtell:

I don’t believe we do but I have to tell you this, Judge.

Here is the picture of Harding, Congressman Harding, one of those fighting for the Seamen’s Act in Congress along with George Sutherland.

We are trying to build up an American merchant marine.

If you do not have rules that restrict competitors of American merchant marines to the full extent and just as you restrict the American merchant marine, you never can have an American merchant marine.

Why, Senator Kern, I don’t know if he was Republican or Democrat, from Indiana, great nobleman who fought through this thing.

He said, “We want to save some of this to the extent of subsidy.

We want our competitors to pay as much to their seamen, as we do.”

Our immigration department allowed us 90 days and for their foreign seamen reship.

Today, they have to report every 29 days to the immigration department.

(Inaudible) than Eisenhower took the thing in hand.

The Ellis Island was a prison.

We were advocating freedom for Americans and everybody in the world and lucky enough to save us, who couldn’t get a job within 29 days.

I think that one of these lawyers in court represented the ship foreign occasion which the Government of the United States deported it while it was in the Court, an action was pending.

I think I brought the thing before Mr. Justice Harlan.

At any rate, this book here, this thing, this picture, four men, Bradley, Hanson, and two others were imprisoned to test this constitutional question.

That was where if you get into this subject halftime to read the decision of the great dissenter, John Marshall Harlan, you’ll see — as I think Justice Douglas in his book refers to the next step to make imprisonment of seamen on American ships invalid, and the Act to — I guess the White Act late in 1898.

Well then, of course, our Seamen’s Act after the White Act in 1898, making imprisonment illegal on our ships.

Of course, we wanted to carry it through the world.

What better way have we today to carry the American system of law and justice to the world that needs it, that may save the world, than the right of trial by a jury?

We’re bringing the Magna Carta right out, aren’t we?

We’re letting them share and these respondents to be heard, to ask, that the hands of progress be set back that this great Court which has had the courage, the greatest courage shown by any court on this question of integration.

It had to come.

You did your duty.

You must do it now.

This seaman maimed and injured at the dock.

He elected, while in the hospital bleeding and wounded, to have his rights enforced here.

How could they dare to suggest that the Quin Lumber Company and the stevedoring company who spent four years considered this as an accident?

One of them took the foreman away, the (Inaudible) took him off the winch.

Silas Blake Axtell:

They had four men to run it.

They had three then.

There was nobody to clear the wire.

The wire was old and kinky.

If it’s been a new wire, maybe it wouldn’t have happened.

How can anybody but the jury or the Court decide who’s responsible?

You’re going to send this man to Spain, to Franco?

Mr. Franco, of course, knows which way he wants this case decided.

I think I will close — oh, Judge Sutherland, according to Judge Sutherland’s brief.

Judge Sutherland wrote a brief probably, the good Lord directed this.

We had sense enough to get in George Sutherland.

Now, where could I find that in my brief?

Now, this is from our old record as to my office.

10 — page 10 of Sutherland’s brief.

He wrote it himself.

He says not that there is nothing in the context to indicate that Congress did not intend by the use of the word “seamen” to exclude foreign seamen.

A thing which, as we have seen, must exist to justify the Court in restricting the otherwise broad application of term but the context is quite to the contrary.

The language of the provision already discussed is followed by the words and of courts of the United States shall be open to such seamen’s work enforcements.

Obviously if the provision was intended to apply only to American seamen — and that’s in black type, seamen there could be no purpose.

There could be no purpose in this last quoted provision.

The courts of the United States were already invisibly open in such cases.

Mr. Ellis in his research called my attention to the fact that we had two — two arguments to that Dillon-Strathearn case here.

The first one there’s something wrong with the record.

I had carried the thing up in conjunction with a lawyer named Waguespack from New Orleans.

The whole union and (Inaudible) were not organized for law enforcement but he turned to the law.

He hated this new socialism.

He was verging out.

This little book “Rights and Duties of Merchant Seamen”, I’m going to ask permission to leave it with you with these larger reproductions of the congressional records.

This little book I got out I suppose I was on seven years at the bar or so.

I certainly didn’t know much and it’s very crude, I hope you won’t read any except this paragraph I’m [Laughs] going to read to you but I started [Laughs] it this way.

Silas Blake Axtell:

Now, this was after I’d seen the manifesto, World Revolution by Lenin coming on our ships from Archangel and Odessa were cargos we obtained through Russia.

They wanted world revolution.

I didn’t know much about Karl Marx.

I didn’t know about his friends and he lets out, invented compensation and put it as his human rights style maybe in 1878.

I didn’t learn that from 1950.

I find that compensation is a part of communism, a part of the state control which the individual has nothing but an add-on and it has no power.

The law of the flag though.

The writer, this is part 1, Rights and Duties of Merchant Seamen.

The writer is presenting this small volume.

He’s trying to answer what he believed to be a real need for short and concise statement of the maritime law relative to seamen and officers on vessels of the United States and foreign countries and the law of the flag.

Generally speaking, the law of the flag determines the rights of individuals on board.

However, there is a general Maritime Law the principles of which largely governed all ships engaged in international commerce.

When a vessel is in a port of another nation, it — it and the crew are governed by the laws of the country in which they are located unless by treaty it is otherwise agreed.

Now where is that treaty?

That treaty I had it here.

Here it is, the treaty.

I saw plenty of them.

Turning to legal age society going to the Court trying to represent some foreign seaman on a foreign ship confronted with a treaty turn to page 38, Article 38 and 39, you’ll find the provisions as such.

That the Court couldn’t take jurisdiction with the slightest protest on the contrary.

We abrogated those treaties.

The President did it within a year in accepting in every country except Sweden which their treaty had been reinstated in 1910.

So, it couldn’t be abrogated in 1911, 1921 — 1921, 6 years.

Now, we expected, of course, those seamen who wanted to have their rights here, could and would avail themselves but comes the decision of Lauritzen v. Larsen and all these boys from New York representing the tenants have been terribly elated and the Judge has been persuaded that this Court frowned upon the idea of giving a foreign seaman a right and the Court to enforce its rights in but it didn’t.

Anybody will read the decision of Judge Jackson in that case.

All those who criticized will say it’s too long.

He discussed a lot of things that weren’t pertinent to the decision he did.

But the decision doesn’t hold what they contend at all.

All it says is – is what you’ll find in the first paragraph in my little book.

In the absence of treaties, the law of the flag apply on the high seas if the case is tried in the forum of the flag.

I think you would conclude if you stated the decision of Judge McReynolds who undoubtedly read many of these decisions, you’ll find that he is correct in going back, that the Maritime law is the oldest law in the world.

Silas Blake Axtell:

Definitely goes back to the Phoenicians.

There’s evidence that it went back to the Herodians in the 7th century B.C.

The principles of justice and equity that men sought were there.

Judge Learned Hand in his irritation that congressional interference in the province of the judges to determine the law had gone further and our court in the seaworthiness doctrine than they used to, I hope it will stay that way.

The Court has before it I think, a case of major importance.

Remember this, I was a lawyer who fought this O’Neill case, Cunard, lost it, no writ granted, hold them against the American Line, Hamburg-American Line, same thing, no writ granted.

And finally, this case, a writ was granted because the tort was so mixed with negligence of shore companies and shore service that justice could be done required that it be considered.

Now, we can’t dock it back.

It’s on — at the end.

Thank you.

Earl Warren:

Yes.

Silas Blake Axtell:

I would have said something more but I shan’t.

Earl Warren:

Mr. Quinlan.

John L. Quinlan:

Mr. Chief Justice, Justices of the Court.

I speak for the respondents Compania Trasatlantica, also known as the Spanish Line and that is the vessel owner here.

I speak also for Garcia and Diaz and New York Corporation.

They were the agents or that corporation was the agent for Compania Trasatlantica, the Spanish Line, at the time of this occurrence.

As to the fact, I wish to point out that this vessel, I will take the vessel first, was a Spanish vessel registered in Spain, built in Spain, enrolled in Spain and flying the Spanish flag.

The seaman, Romero, was born in Spain, reared in Spain, in the Spanish merchant marine for 18n or 20 years prior to the time of this accident.

The voyage of the vessel and as was all voyages of Spanish line vessels, originated in a Spanish port principally in the port of Bilbao.

The vessels would then touch other Spanish ports, would then proceed to New York, then to Cuba, then to Vera Cruz and turn about there and will come back to the Port of Cuba, New York and back to Spain.

The vessels, the — the voyage was always a voyage which would originate in Spain and terminate in Spain, a Spanish voyage.On the return from Vera Cruz to Cuba and to New York, on one of the voyages of the Guadalupe, this accident occurred.

Romero as would an American seaman serving on, on an American vessel signed articles.

The articles in Spain or Spanish articles are somewhat different than the articles that American seamen signs, are articles every seaman signs the same articles before the shipping commissioner, now the Coast Guard officer and before the Captain.

In Spain, each seaman signs an individual article or contract with the Captain on behalf of the employer and is then cleared through the counterpart of our Coast Guard or port director.

Romero signed those articles in Spain to sail on the Guadalupe.

And those articles provided and he as I point out that he had sailed in the Spanish merchant marine for some 18 or 20 years and there was no unfamiliarity on his part as to his rights or as to the conditions of the articles and they provided and I read from them briefly, “agree to sign the present contract in compliance with the following conditions and both parties subject to the provisions established by the codes and laws regulating commerce and labor and also all other regulations enforced.

One of the conditions referred to which follow is condition 22, that provides, in the event of accidents occurring during the accomplishment of this contract, these will be subject to the legislative provisions enforced to this effect and also all such will be complied with regarding social insurances as determined by the laws.”

Petitioner, here I contend the — Romero.

It — thus expressly contracted that in the event of injury his rights against his employer would be governed by the codes, laws and regulations of Spain.

John L. Quinlan:

And by that provision, in 22, wherein it says “and all such will be complied with regarding social insurances as determined by the laws that refer to the employers, Spanish Line.”

Spanish Line was required to comply with those provisions and regulations regarding the social insurances as determined by the laws.

And what were they?

They were these, upon the employer.

The employer was required as an employer of an — workman here in this country to establish what — they are referred to in their contract as a pension.

It is the same as our workmen’s compensation laws.

It’s handled a little differently.

It’s contributed to by the employer on the basis of wages and hours worked by a man.

It works out finally the same as our workmen’s compensation law but to a greater benefit to the man, in that, there is something established for him and that is in the record, which cannot be taken away from him, ever by the Government, by the employer or anyone else or in any manner.

And here, under the law of Spain which is a coast country, which does not have any general admiralty law such as we have here but what this which does have the code sections which give him his right, this man as was testified on the trial by the Chief Attorney.

It’s all in the record in the brief that I brought here for the hearing before Judge Sugarman, the Chief Attorney for that social body that governs their social security, workmen’s compensation that entire body of Spain came here and testified on this trial.

Testified he reviewed Romero’s record before he came here.

He did at my request so that he could testify as to what this man’s rights were as to what he was entitled to because of this injury.

And he testified that this man would receive 35% of his wages for life under the Spanish system and that in the event the employer was found to have been negligent he would receive the 35% irrespective of negligence.

But in the event, in a labor court which would be our — the same as our compensation proceeding, it was proved the employer was negligent, he would receive or could receive as much as 50% of the one-third of this outside possibility would be approximately 50% of his wages for life.

He would certainly get one-third, he’s entitled to a hearing on negligence, to increase that one-third by 50% of it.

But he could not be denied and cannot be denied and there awaits him today one-third of his wages for life from the time of his accident and it cannot be taken away from him under any circumstances.

Hugo L. Black:

How much is that?

Pardon me, sir?

How much is that?

You referred to it several times, their wage in a certain sum.

How much is it?

John L. Quinlan:

In American dollar, sir?

Hugo L. Black:

Yes.

John L. Quinlan:

I believe that the Spanish seaman at this time received 50 pesetas, a day was their key which was evaluated at that time at approximately, I think 20 pesetas a day and to convert that —

Hugo L. Black:

For how much — you said there was certain sum awaiting him for life.

How much is it, if there’s a certain sum?

John L. Quinlan:

Well, it’s one-third, at least one-third of his wages.

Hugo L. Black:

I know.

How much is it?

Hugo L. Black:

Does the record show?

John L. Quinlan:

It does not show, sir.

It has never been computed.

No.

It does not show.

And I would have to convert pesetas into dollars and multiply by days or I — that was the only way.

It’s mathematical, sir.

Hugo L. Black:

You mean life expectancy?

For life, you’re saying.

John L. Quinlan:

For life as long as he lives.

It’s not a lump sum.

Hugo L. Black:

I’m (Voice Overlap) —

John L. Quinlan:

Well, he would get his lump sum.

He — he could have started getting his one-third of his wages for life.

Just — let me go back one step.

He was immediately informed and it’s in the record in the Spanish letter by his employer and he was immediately informed after the accident by his employer, it’s in the appendix, the letter from his employer again is in the appendix, in my appendix filed in Spanish.

I have furnished this Court a translation of that.

And his employer informed him — the accident was in May, his employer informed him in August, “Immediately, upon receiving advice of the unfortunate accident which you suffered, this company hastened to guarantee you the maximum benefits established by the standing social legislation of Spain, in favor of crews and for that purpose, a representative of this company immediately contacted the National Chest of Workmen’s Accidents which is an official entity of the Ministry of Labor to notify them of the accident suffered by you and to initiate an incapacity file so that in due time, the pension to which you are entitled may be rendered.”

Now, this was the — a pointless procedure, Your Honors’ thought.

“The procedure in this case is in abeyance up until such time as you have recovered from the injuries you have received and your degree of incapacity for working is determined.

For this purpose, it is necessary that you submit to an examination by this company’s physicians as well as by the physicians of the National Chest above mentioned.

On their medical report, once their medical reports are issued, the National Chest will determine the amount of the pension corresponding to you.”

On the paragraph, “We wish to inform you that this Compania Trasatlantica has in deposit with the National Chest enough capital to defray your pension.”

Earl Warren:

What would that mean in dollars?

What would — would a third of his wages be?

John L. Quinlan:

Well —

(Inaudible)

John L. Quinlan:

How much is the peseta now?

It’s 50 pesetas to the dollar, Your Honor.

John L. Quinlan:

50 —

Something like that.

John L. Quinlan:

50 for pesetas, three weeks ago, to the dollar.

Earl Warren:

And what — what was his daily wage?

John L. Quinlan:

50, I believe, it was 50 pesetas per day.

It was the equivalent of 20 or 25 pesetas per day for keep.

Earl Warren:

Would that include his keep, too?

Would they give a third of that?

John L. Quinlan:

That I don’t know, Your Honor.

Though I’m not —

Earl Warren:

If he didn’t, did he– did get about 30 cents a day, wouldn’t he?

John L. Quinlan:

30 cents a day which in America, the $1 he got a day in Spain, economic — the economic comparison.

Earl Warren:

As I understand that.

But I’m saying the equivalent of (Voice Overlap) —

John L. Quinlan:

Yes.

In Spain —

Earl Warren:

Now, what I —

John L. Quinlan:

— that dollar is the same as $5 or $6 here.

Earl Warren:

Yes.

But what I was wondering is this.

How about the $3000 hospital bill and these other expenses for maintenance and cure?

John L. Quinlan:

That I have in —

Earl Warren:

Does — does he get that?

John L. Quinlan:

— that I have on the record, Your Honor, and I will explain it and I have done everything I could possibly do in that connection.

The Spanish code law not only gives this fellow his indemnity compensation and Spain is no different than Norway, Sweden, Denmark, Holland, Mexico, Brazil, Argentina.

They all have a compensation system rather than an indemnity or suit or negligence system such as we have.

Now, the Spanish code gives him his right to his pension for life.

And the Spanish code in the record and dealt within my brief and Judge Sugarman found that after the Spanish experts want for me — have I called to Spain, one that was called by Romero who was a leading and brilliant lawyer in Spain, professor in the University of Madrid and who had been the minister of labor in Spain was called, it was agreed.

He got these rights and in addition the Spanish code gave him the full counterpart of our maintenance and the full counterpart of our cure.

Earl Warren:

You mean —

John L. Quinlan:

No.

Earl Warren:

— by that that he paid the — that they paid the bill.

John L. Quinlan:

No.

Here’s what happened with the bill.

Earl Warren:

Is that — is that the answer by counterpart?

John L. Quinlan:

The answer — yes.

The —

Earl Warren:

The —

John L. Quinlan:

Just and the same as an American steamship owner is responsible —

Earl Warren:

Well, the —

John L. Quinlan:

— for maintenance and cure.

Earl Warren:

— the answer to my question then is that the company will pay his hospital bill of $3000 or whatever it is.

John L. Quinlan:

Yes, there is a controversy over the hospital bill and I’d like to explain it to Your Honor.

When the doctor, not my doctor, but the doctor in the hospital attending Romero certified that Romero — his recovery was such that he could travel on a ship back to Spain, I paid that doctor and instructed the company and we did pay that doctor, his bill to that date.

And on that date I notified or had the agent on behalf of the Spanish Line notify the hospital that as agents they could not be responsible for any bills incurred at the hospital subsequent to that date and that if they would submit their bill to that date, it would be immediately paid.

They have been told that by a letter before.

The hospital then and subsequently and on the trial on the District Court, were again told that — told — they’ve been told time and again that if they would submit a bill to that date the bill would be paid by the agent on behalf of the Spanish Line.

The hospital has persisted in first giving the bill beyond the date and then giving, after being told and how to explain to him by Judge Sugarman in Court, submit the bill of the date when the doctor said the man could travel back to Spain, it will be paid, and they have not presented the bill, never.

And if that bill is presented today up to that day when the doctor said he can travel back to Spain, it will be paid.

The doctor was paid.

Everything else was paid.

Earl Warren:

But you’re the one — you’re the one who determined when he was well.

John L. Quinlan:

No, his doctor did.

Not mine.

Earl Warren:

Did the doctor —

John L. Quinlan:

The doctor —

Earl Warren:

— say he was cured?

John L. Quinlan:

My doctor?

Earl Warren:

No, his doctor.

John L. Quinlan:

His doctor said he’s now healed up.

He’s ready for repatriation.

John L. Quinlan:

He needs a convalescent period.

I said, “All right.

We have a vessel here.

We have a surgeon on it.

We have a hospital on the vessel, a modern vessel only two years old at that time.

We’re ready to send him back to Spain.”

I tendered repatriation or had the agent tender repatriation to this man say here, “Here’s the ship.

We’ll have you sent back to Spain.”

I notified the immigration that was continually in touch with the agent as to — you’re going to send the man back to Spain.

He was a Spanish national.

He had overstayed his 29 days.

I told immigration, “I am ready.

I have a vessel.

He can go back to Spain.”

We tendered him the repatriation.

Subsequent to that, he was notified that as to his compensation rights, if he didn’t want to go back to Spain for this medical examination by a representative of National Chest, if he would go to the Spanish consul in New York and ask him to have his incapacity examined into by a physician of the National Chest, the consul would communicate with the National Chest, receive authority to have a physician examine him and his incapacity could be determined here.

He didn’t have to go back to Spain even to have it determined.

He’d never been near the Spanish consul because of the suit which has started.

Summons to the complaint actually filed 12 days after the accident actually filed in court 12 days after the accident.

Nothing to do with the Spanish consul, nothing to do with the National Chest, this suit and because of this suit, there has been no effort, whatsoever, by this man to have his pension rights determined.

He doesn’t want them determined.

He wants this suit.

He wants a jury trial.

He wants to try to recover in American law, avoid the provision in his articles and avoid the law of Spain.

Now as to that law of Spain, I have reached this point I can mention it briefly here.

Earl Warren:

Well, now, what — let me just ask you as a practical matter because you’ve been saying what he would get.

If — if this man gets a pension at the rate of about 30 cents a day and this entire hospital bill is not paid, and he has lost one leg and has other serious injuries from which he might not yet be cured, that compensation wouldn’t — wouldn’t go very far, would it, taking care of him?

John L. Quinlan:

Now, let me say this, Your Honor.

As to the hospital bill, we’re back to that again.

I’ll pay the hospital bill up until he was ready to leave.

Earl Warren:

Until — until he said he was ready —

John L. Quinlan:

No.

Earl Warren:

— to leave — until you said he was ready to leave.

John L. Quinlan:

No, until his doctor — now I didn’t select the hospital doctor.

He was injured on the ship taken, off the ship and taken to the hospital and a surgeon and doctor in the hospital took care of him and we had nothing to do with the selection of the doctor.

Earl Warren:

But is that one thing to say that a man could travel back to Spain in an entirely different thing to say that he’s cured?

John L. Quinlan:

Yes, certainly.

Earl Warren:

Well, now, which of these doctors say? Did his doctor say he was cured or he could travel —

John L. Quinlan:

No.

Earl Warren:

— to Spain?

John L. Quinlan:

The doctor said he’s fit for discharge in the hospital.

I said, then my question to this, “Is he fit to travel back to Spain?”

He said, “He’s ready for discharge in the hospital.

His wound is healed over.

There’s no further need of surgery or medical attention, there’s only a need now for rest until the skin over the stump hardens up and a leg, artificial leg could be fitted.

He’s ready for discharge in the hospital.

And we are ready to discharge him.”

Earl Warren:

But he couldn’t put a wooden leg on yet?

John L. Quinlan:

Not at that point, no.

It would require toughening of the skin and the fitting leg which was done not too long after that surgery.

Felix Frankfurter:

Will you please tell us why, what may be an irrelevant curiosity on my part, is this seaman, if he remained, if he’s still in the United States that maybe under the immigration law was allowed to stay in the United States?

This — this may be an (Voice Overlap) —

John L. Quinlan:

I can — I can answer it.

I can answer it, Your Honor.

I can answer it.

The immigration authorities permit a seaman, a foreign seaman as they’d done continuously and I’ve seen it over the 30 years, I’ve been practicing marine law, where he has a claim or a suit and freeze it.

Immigration will defer.

He’s — was sent out of the country until after his litigation has been concluded.

Felix Frankfurter:

Is he technically one — his business — whatever they call it, a visitor or (Inaudible)

John L. Quinlan:

He — he said — he’s supposed to be a visitor and he’s not supposed to work and he’s supposed to be permitted to stay here for that purpose.

John L. Quinlan:

Now, as to whereabouts, he’s here in court today enjoying this argument, I hope.

He’s sitting here in court today.

Now, as to the hospital bill, we’ll pay it up till the day that doctor said that.

And the reason —

Earl Warren:

Enjoying might be a rather broad term to use in those circumstances.

John L. Quinlan:

Pardon me, sir?

Earl Warren:

Enjoying this proceeding might be a rather broad term to use.

John L. Quinlan:

It might be, sir.

Earl Warren:

A man with one leg gone and other — other bad injuries, enjoying might be a little —

John L. Quinlan:

It might be, sir.

Earl Warren:

— too broad.

John L. Quinlan:

I didn’t mean at any such derogatory sense in anyway.

Well, I do know the man personally, myself, and I took it that it was placed upon to be here.

Hugo L. Black:

I haven’t yet I fully understood, maybe —

John L. Quinlan:

Pardon me, Sir?

Hugo L. Black:

— that maybe you and your — the other side could agree to give us a statement that is relevant perhaps only in connection with the argument made as to the purpose to bring about an equalization of the treatment of a foreign seaman and American seaman with references to wages and compensation there was.

But as I understand you, what he’d get under the Spanish law is 30 cents — about 30 cents a day, nothing for support except the 30 cents a day during the time that the Board found he was wholly — wholly disqualified from work.

John L. Quinlan:

No, sir.

He gets that one third of his salary for life.

Hugo L. Black:

For life.

John L. Quinlan:

And he is permitted without any deduction or reduction in that one-third to work in any capacity he pleases.

Hugo L. Black:

So that there’s an — it’s an automatic — he’s automatically entitled to 30 cents a day for the rest of his life.

John L. Quinlan:

That’s right, sir.

Hugo L. Black:

Thank you.

I — that’s what I want to find.

John L. Quinlan:

Yes, and he can earn as much as he pleases without any reduction on that.

In that way, that particular code law differs from our workmen’s compensation where your statutes, which that you have here, which your award is frequently reduced by the ability to earn.

It isn’t in this instance.

And as to the hospital bill we will pay it up to that date, Your Honor, in the St. Mary’s Hospital, makes its claim against the Spanish vessel owner.

They won’t make claim against the man.

John L. Quinlan:

It will make claim against the Spanish vessel owner and they continually have vessels in here and have an agent here.

And they established — the hospital establishes that this man was not fit for discharge in the hospital on that day.

The hospital will be entitled to recover from the Spanish Line those amounts above the amounts which we say and agree are due.

The balance of the hospital bill, I can’t say that if the man was supposed to be in the hospital under medical procedures for eight months the bill will be paid for eight months, but we could only go on what the doctor himself, his doctor said or the Spanish Line could not commit its insurer for charges beyond that time and have the Spanish Line agree to pay charges beyond that time.

The Spanish Line would not be reimbursed by its insurer.

So it has no option but have to take the course which it took in that particular situation.

Now, I wish to, at this point, to touch on the — the pretrial procedures which were had in the District Court.

In the answer of Compania Trasatlantica in the suit, there were pleaded the defenses of lack of jurisdiction of the persons, a lack of jurisdiction of the subject matter and pleaded also the defense that this man’s rights were wholly and exclusively under Spanish law because of his contract and that he was relegated to that law and could not press claim against his employer under any other law.

And in the defenses set up by Compania Trasatlantica was the defense of lack of jurisdiction of the subject matter and failure to state a claim upon which relief could be granted.

And the defendant Compania, as well as the other defendants, asked for a preliminary hearing on those defenses.

Rule 12 of the Rules of Federal Procedure provides that the defenses specifically enumerated one to seven and my defenses were one and six.

Whether made in the pleading or by a motion and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party unless the Court orders at the hearing and determination thereof be deferred until the trial.

I made application for a hearing of those defenses preliminary to trial before Judge Sugarman, and Judge Sugarman thereupon proceeded to dispose of those defenses.

As to the assertion of Judge Sugarman went — did something which the petitioner here did not agree to.

The record shows that Judge Sugarman addressed himself to the attorney for the petitioner and said to the Court, “I don’t understand the basis of your objection.

Are you objecting to my proceeding with the pretrial hearing?”

Mr. Fonte.

“No.

My objection is to the manner in which it is going, although, Your Honor is being very fair.”

Judge Sugarman proceeded to determine whether this man could maintain action.

He then proceeds to the them, this man could maintain aceess under the Jones Act.

If he could not maintain an action under the Jones Ac, could he maintain action under the General Maritime Law of the United States?

And in determining and in proceeding to determine those questions and also the question as to ownership operations management and control of the vessel which was alleged on the part of Garcia and Diaz, the agents, Judge Sugarman took testimony.

He took testimony of expert on Spanish Law called by the respondents, Spanish Line.

He took testimony from expert on Spanish Law called by the petitioner and took the test — took the agency contract into evidence and took other documents and papers in the evidence and afforded petitioner every opportunity to offer anything he wished and as much time as he wished on those issues and at the conclusion of those issues determined that Romero, the petitioner, could not maintain suit under the Jones Act, could not maintain suit under the general admiralty law.

He then offered, Judge Sugarman did, severance of action, severance between parties.

He offered to severe the action leaving Compania Trasatlantica out of it and let the other three defendants where diversity did exist between the Spanish plaintiff and the New York corporation — two New York corporations, one Delaware corporation at law and possibly transfer the suit against the Spanish Line into admiralty.

They offered to transfer all the actions held.

He offered any severance or any manipulation of the action by parties to petitioner and petitioner rejected them but petitioner stated to the Court, he wished to have the action stay as it was at law against all the parties.

And Judge Sugarman then found action could not be maintained under the Jones Act and could not be maintained under general admiralty law by this man.

John L. Quinlan:

Found that the man had rights under the Spanish law or indemnity rights under the Spanish law which were the counterpart of our maintenance and cure, and refused discretionary jurisdiction and admiralty because the man could proceed before the Labor Code in Spain or proceed before the Spanish consul in New York.

I address myself now to the claim that this man may maintain action under the Jones Act.

I’d say that he cannot and in connection with that argument I deal with the Strathearn case and the point made by Mr. Axtell, that there is an indication in Section 33 which was in abundance of enactments.

That the Jones Act was intended for the benefit of foreign seamen and this Act shall refer to the brief of the Norwegian Shipping Association or Mr. Watson’s brief.

Mr. Watson, on page 18, does not refer to the Jones Act.

Mr. Watson refers to the Wage Act, Section 4 of the Act dealing with half wages and not with respect to the Jones Act, which is another section.

Now, the Wage Act, no question the Wage Act which provides that any seaman has a right to demand earned wages and if they are not paid has a right to bring suit in the courts before them, now that’s statute, the Wage statute goes on to say provided further that a foreign seaman on a foreign vessel may also demand his wages in a United States court and if they are not paid by the foreign owner he also can proceed in the United States court.

That was the wage statute.

That is the statute referred to in the congressional record, not the Jones Act.

Now, the Jones Act simply says the seaman may sue for his personal injury.

And had the Court wanted to extend the Jones Act similar to foreign seamen who might be injured in the United States port.

All Congress had to do was to go right along with one of these other sectors as they enacted and say provided also that any foreign seaman injured in the United States port on a foreign flag vessel may bring suit in our courts under the statutes.

But The Congress didn’t do that.

It said they could do it in a wage section, entirely different section but did not say that could be done under the Jones Act.

That is the distinction, which I make between (Inaudible) case dealt with the constitutionality of the — that wage statute, the wage statute and had nothing to do with the Jones Act, nothing whatever to do with it.

Now, the Lauritzen case decided by this Court is the case that this respondent relies upon for its position that suit cannot be maintained by this man under the Jones Act.

The Lauritzen case differs from the present case only in this.

In the Lauritzen case, the accident happened in a non-United States port, in Cuba.

And it differs in this further respect in the Lauritzen case, the action was under the Jones Act only, whereas, here the action is under the Jones Act and under the general admiralty law as well.

Those are the two differences that distinguish the two cases.

What was said in the Lauritzen case, I say, applies equally here on the law of the flag.

This Court said perhaps the most venerable and universal rule of maritime law relevant to our problem is that which gives (Inaudible) importance for the law of the flag.

I pointed out that everything here, the men, the ship, the voyage, everything is Spanish except the fact that the accident happened in this port.

And this Court said that after considering all the facts which might have bearing on the question of whether the Jones Act could apply and override the law of the flag, this Court found that all these considerations are of such weight in favor of Danish against the American law in this case, that it must prevail unless some heavy counterweight appears, this Court, by no heavy counterweight, despite the fact that in the Lauritzen case, Lauritzen signed his articles of employment, in a United States court.

He signed on that vessel in our port.

The Court found that was not a sufficient counterweight.

And I say that if signing his contract here is not sufficient counterweight to override the law of the flag, the simple fact that the accident occurs here is not sufficient to overweigh the right of the law of the flag particularly, where the man by his contract agreed in the event of injury, be governed by the laws of Spain.

That was on the law of the flag.

Then this Court said on the contract that on the contract, the article “except as forbidden by some public policy the tendency of the law is to apply in contract matters the law which the parties intended to apply.”

And that in the lawsuit case, Lauritzen against Larsen, this Court said that this arrangement is so natural and compatible with the policy of the law that in the absence — that even in the absence of an express provision, it would probably have them implied, in effect saying that even if the man had not agreed to be bound by Danish law, having then signed the Danish contract, it would be implied that he would be governed by Danish law.

John L. Quinlan:

There is no evidence here as was shown in the Lauritzen case, also, of any hardship on the man, any injustice.

There’s nothing against our public policy to apply the contract which a man has entered into between himself and his employer.

Had he been injured in the port of — a port of Spain, those would have been his rights, those would been his remedies, that would have been the amount he received, and it would have been compatible with the economy of Spain.

But here, because he is injured here, this man wishes to recover not in accordance with the wages he was paid.

And in comparison to them, and in comparison to the life which he will live in Spain, he’s a Spanish national, he must return there when his litigation has ended here, but under American law simply and only because the accident occurred here that this is the first instance in which this Court has had to consider the problem presented by this case.

This Court has never considered whether the Jones Act or the general admiralty law applied to a foreign seaman injured on a foreign flag vessel on a foreign voyage in a United States port.

The Circuit Court, the Sixth Circuit Court in New York, and I think probably only in New York, have considered the question a number of times.

And in 1942, the Circuit Court in New York had this very question before it and said, “But we will also regard it as settled law that alien seamen serving upon foreign ships owned by aliens and bound upon a voyage which begins and ends outside the United States cannot sue under the Jones Act for injuries suffered while a ship happens to be stopping at a port of call within our territorial waters.”

The Circuit Court prior that in 1937 in the Pollock (ph) let me say it again, the very case dealt only with the Jones Act.

That was the case in 1942 when a suit was only under the Jones Act.

Prior to that, in 1937, the Circuit Court, the Second Circuit in the Pollock had identical case, foreign seaman, foreign flag, foreign ship, was injured in the United States port.

But there, the man sued not only under the Jones Act but also under the general admiralty law.

And in deciding that case, the Court said the libel and claims not only under the maritime law but also under 33 of the Jones Act.

He asked us to rule that the supplies to an alien seaman on a foreign ship who signed on at a foreign port, if he sustains injury in a port of the United States through the negligence of fellow seamen.

This question is left open in (Inaudible) presides authority is meager but such as there is has answered the question in the negative.

Then in the Ingram and in the Taylor case and the (Inaudible) case, all Southern District and Second Circuit cases and in other cases I’ve cited in my brief, the answer has always been, after consideration of the Jones Act statute and the general admiralty law, that a foreign seaman under these circumstances such as we have here and such as they had in those cases could not maintain suit against his employer under American law.

And it’s on those cases and on the decision of this Court in the Lauritzen against Larson case that I base my decision.

That this man cannot maintain suit under the Jones Act or under the general admiralty law of the United States against this employer particularly where he has agreed that his rights against his employer, in the event of accident, would be governed by Spanish law.

Hugo L. Black:

But if he’s covered by the Act —

John L. Quinlan:

Pardon me, sir.

Hugo L. Black:

If he’s covered by the Act which is the basic question you’re arguing, I don’t suppose you’d claim that you could evade his right, but agreeing you could be —

John L. Quinlan:

If the Jones Act specifically cover them?

Hugo L. Black:

Yes, if they had covered them.

John L. Quinlan:

If the Jones Act specifically covered the man we wouldn’t be here today, Your Honor.

Hugo L. Black:

You wouldn’t say that the —

John L. Quinlan:

No, I would not.

Hugo L. Black:

So basically whether the law of Spain govern as he agreed or whether he doesn’t depends on whether the Jones Act covered him, doesn’t it?

John L. Quinlan:

It can, sir.

Very well.

Yes, sir.

Hugo L. Black:

Is there any treaty that affects this in anyway?

John L. Quinlan:

No treaty affects this in anyway, sir.

A treaty was brought into the picture and I — I’m am frank to say that even to this point I cannot see how the treaty between United States and Spain has any bearing whatsoever on — any bearing whatsoever on the questions we have here.

The treaty between United States and Spain didn’t give any right to a seaman and when sections of it were abrogated and taken out, nothing could be possibly taken away from the seaman.

The situation to me seems to be the — would — it seems to me that it would be the same if there had never been any treaty.

Hugo L. Black:

So, from your standpoint then, it’s only a question statutory construction not governed, not affected by treaty or any agreement between the countries?

John L. Quinlan:

That’s right, sir.

On the Jones, I rest it — exactly right, sir.

Now I’ve touched on this.

I’ll touch on it again.

That if this man could maintain suit against his employer here in the United States under the Jones Act or under the admiralty — general admiralty law or both, he would and he would be subjecting his employer to two responsibilities and possibly two recoveries.

There is no question he gets his pension right.

It can’t be taken away from him.

It awaits him.

Whenever he goes to the consul or goes to Spain, he will have it.

And he will have it for life and he will recover his back pension amounts.

To give him an addition, that’s fixed.

There’s no election.

There’s not — it just can’t be taken away from him.

If he’s given a right to sue under American law, he subjects his employer to two responsibilities and possibly two recoveries.

Now, there was one — that one further point raised by — raised on the appeal and which was dealt with by Judge Sugarman in the District Court.

The one further main point was jurisdiction of the District Court on this law side of an action under the general admiralty law where diversity of citizenship was lacking between the parties.

It was the contention of the petitioner that the District Court on its law side had the jurisdiction of a cause of action if it was admiralty in nature even though there was not diversity between the parties.

There was not diversity between the plaintiff and all the defendants here because the plaintiff was Spanish and the Spanish Line Corporation is a Spanish corporation.

The interrogatories established in that were placed in the record of that by a commission sent to Spain, came back, that was formerly established.

The Second Circuit in the Paduano case decided several years ago concluded that the District Court did not have such jurisdiction in the absence of complete diversity between the plaintiff and all defendants.

The First Circuit has decided the contrary, the Third Circuit has decided along with the finding of the Second Circuit.

And the single question raised is, where is that single question, “Does the District Court have jurisdiction on its law side of a matter where diversity does not exist but simply because it is admiralty in nature?”

Judge Dimock in a concurring opinion in the Paduano case in Southern District, pointed out that Section 9 of the Judiciary Act of 1789 which contains the grant of jurisdiction of civil causes of admiralty and maritime jurisdiction ends with this sentence, “And the trial of visions of fact in the District Courts in all causes except civil causes of admiralty and maritime jurisdiction shall be by a jury.”

And he concluded, “I cannot escape the conclusion that the Congress which made provisions felt that the District Courts to which it applied have to be given no jurisdiction to enforce the maritime civil law by a common law remedy.”

John L. Quinlan:

I go back to the older cases, American Insurance Company against Canter, decided in 1828, the Judiciary Act Section 9 having been enacted in 1789 many years before it.

And in the American Insurance against Canter case this Court said, “A case in admiralty does not, in fact, arise under the constitution or laws of the United States holding that a case in admiralty could not be maintained on the law side,” and in personam case without diversity.

Then 40 years later, this Court in the Belfast decided in 1868 stated, “Properly construed the party under that provision,” referring to the Judiciary Act, “may proceed in rem in the admiralty against the vessel,” namely, in rem, “or he may bring suit in personam in the same jurisdiction,” again referring to admiralty, “or he may elect not to go into admiralty at all and may resort to his common law remedy in the state court or in the Circuit Court of the United States if he can make proper parties to give that court jurisdiction of his case,” referring to diversity, citizens of different state.

Then in 1870, two years later this Court again had the question of jurisdiction on the law side before it and stated that is in Leon against Galceran, “Where the suit is in rem against the ship or shipping freight, the original jurisdiction of the controversy is exclusively in the District Courts as provided in the 9th Section of the Judiciary Act.

But when the suit is in personam against the owner or master of the vessel, the mariner may proceed by libel on the District Court or he may at his election proceed in an action of law either in the Circuit Court if he and his debtor are citizens of different states or in a state court as in other causes of action or action cognizable in the state and federal courts.”

Again, recognizing these proceed on the law side in personam, diversity had to exist.

There were several other decisions between those decisions and the decisions several years ago by the Southern District in Paduano, the Doucette case in the First Circuit was decided within the last 10 years, the Jordine case in the Third Circuit was decided within the last 10 years.

The three cases, recent cases, the — the first same jurisdiction could exist the other two in the second and Third Circuit saying it could not have all been decided all within the last 10 years.

And it’s my position that these decision in the Second Circuit is supported by the Belfast, Leon case and other cases decided by this Court many years back and this is — has only been within the last 10 years in the case in the First Circuit and Third Circuit that the decisions in those cases has been questioned.

I have touched on the treaty in which I say it has no application and I have touched on and I did early on the District Court declining human discretionary jurisdiction when it appeared that the plaintiff would not consent of any severance of his causes of action and proceed with some on the law side and the others possibly on the admiralty side.

Earl Warren:

Mr. Quinlan, you said very little about Garcia.

John L. Quinlan:

Well, I’d like to address myself.

I didn’t want to take all the time but I can do that within just a very few —

Earl Warren:

Well, you haven’t —

John L. Quinlan:

— minutes here.

Earl Warren:

— mentioned it at all, have you?

John L. Quinlan:

Yes.

I have not, sir.

But I would —

Earl Warren:

All right.

Isn’t that of some importance to this party?

John L. Quinlan:

That is, sir.

Garcia was named a defendant as — because — simply because they were they the shoreside agent.Garcia was a shoreside agent of the Spanish Line in New York.

The plaintiff alleged ownership, operation, management, control, and used all the verbiage you ordinarily find in alleging in an allegation on a negligence complaint against Garcia.

On the hearing, the plaintiff withdrew the allegation of ownership but did refuse to withdraw the allegation of operation, possibly control.

There was an allegation that Garcia was the employer of Amaro, the petitioner, that was withdrawn.

And Judge Sugarman as to Garcia and Diaz with those withdrawn said, “What do you have to offer against Garcia and Diaz as to management, operation, and control of this vessel and this activity which was going on this day?”

I said, “They had proof to offer” and Judge Sugarman gave him every opportunity to — of all the proof they wished.

They put in the agency contract into evidence.

They put the deposition of the treasurer of Garcia and Diaz into the evidence.

John L. Quinlan:

The treasurer of Garcia and Diaz was called in as a live witness and testified.

The representative of Garcia and Diaz had appeared which the Guadalupe was docked, was called and he testified.

And at the end of the — these all his testimony, Judge Sugarman addressed himself to the plaintiff’s counsel and said, “Have you anything more whatever to offer on operation, management and control?”

And I said, “They had nothing more to offer and that’s all the proof they had on that,” and Judge Sugarman in that proof could find no evidence whatever, operation, management, control or anything to do with the vessel other than as a shoreside agent by Garcia and Diaz.

And found further, no proof in any way of any participation in this operation of changing the angle of a boom, that was solely and only what was going on this day.

The boom hung out and it didn’t hang out far enough to raise a draft and the crew were changing that angle to let the boom down a little further and a wire somehow slipped off this man and brought him up against the winch which severed his leg.

Garcia and Diaz had no one there, no one near the scene of the accident.

No one aboard the ship and Judge Sugarman found, “nor did plaintiff offered any proof of any negligent act by defendant Garcia, within the scope of the agency contributing to his injury.”

Garcia wasn’t there.

And Judge Sugarman accordingly had to dismiss the Jones Act claim — had to dismiss the Jones Act claim against Garcia because the plaintiff had conceded the man was not employed by Garcia, he had first alleged to.

But the Jones Act can only apply in a situation where you have an employer-employee relationship.

So the Jones Act cause of action was out immediately on the concession that employment did not exist, had only left a possible general maritime law, common law cause of action for negligence against Garcia.

And Judge Sugarman found nothing in the agency agreement and nothing in the facts to find any fault or liability upon Garcia and I say, as to them, to Garcia, Judge Sugarman then did nothing more than he would have done at the end of the plaintiff’s case.

Dismissed cause of action against Garcia.

Earl Warren:

But the thing that I was wondering about, if they did state the cause of action in their complaint, whether it be under the Jones Act or under a maritime — maritime law, is — is that a matter for summary judgment or isn’t that a matter that they’re entitled to go to trial on to determine in the — in those trials whether he — he was in that — could serve in that capacity and the —

John L. Quinlan:

As an employee, sir?

Earl Warren:

Yes, whatever the relationship — is in the relationship, there’s something which should be tried on the trial and not — and not in pretrial proceedings.

It’s a part of the case, isn’t it?

John L. Quinlan:

If the (Inaudible)

Earl Warren:

If it’s a defense — if it’s a defense, wouldn’t that have to be pleaded and — and proved that he — he was not in that relationship to the plaintiff?

How does that come up or how does that come up on — on pretrial?

That’s a thing that bothered me at moment.

John L. Quinlan:

Well, on pre-trial, as the record will show, Judge Sugarman on the pretrial, not only dealt with the motion which I — I made, and all the defendants made for a hearing on these defenses.

What proceeded to as is done continually on pretrial, limit the issues, if possible.

And he said, “Do you claim,” he said to the plaintiff, “Do you claim employment by you, the plaintiff, by Garcia and Diaz?”

And that was, “no”.

We don’t — no longer claim that.

So that —

Earl Warren:

(Inaudible)

John L. Quinlan:

— that was a Jones Act result.

Earl Warren:

Yes, that’s right.

John L. Quinlan:

We come to general maritime law and I — I agree with Your Honor that if there was an issue there, he should not be tried on pretrial without testimony and proof.

But here, I say, we have this single difference as to management, operation, and control, they offered all the proof they could possibly offer and there was no evidence of management, operation, and control.

Now, I get to the third thing, I think that Your Honor —

Earl Warren:

No.

No it’s my — my point is this.

By — by virtue of what right does a judge do that on pretrial if their complaint states the cause of action, states the relationship between the plaintiff and the defendant that could make the defendant liable, should the judge try that on pre-trial or isn’t that a part of the case itself?

John L. Quinlan:

No.

The judge should not try it on a pre-trial.

There’s no —

Earl Warren:

Isn’t that what he did here?

John L. Quinlan:

That’s what he did here, sir.

Earl Warren:

But he should do you say?

John L. Quinlan:

Well, I myself — I myself, and I will agree with Your Honor — Your Honor that — it’s a question of negligence.

And that, I think, is what Your Honor has in mind.

Earl Warren:

Yes.

John L. Quinlan:

That relationship — some relationship, an invitee or promisee or something.

Earl Warren:

Yes.

John L. Quinlan:

And there’s some relationship on the general admiralty law —

Earl Warren:

Yes.

John L. Quinlan:

— there’s an employment.

Earl Warren:

Yes.

John L. Quinlan:

Which — out of which the plaintiff may show some negligent act on the part of Garcia and Diaz.

Earl Warren:

Yes.

John L. Quinlan:

That is properly a matter of trial.

Earl Warren:

But didn’t the judge decide here that there was no such relationship and therefore — therefore they couldn’t go to trial?

John L. Quinlan:

That’s right, sir.

Earl Warren:

Well, is that — is that right?

John L. Quinlan:

I’d say, Your Honor, it could be right, it could not be right.

Earl Warren:

[Laughter]

John L. Quinlan:

From all the knowledge I have of what occurred and a great amount but outside the record, I say it is right.

But it isn’t in the record so I can’t say to Your Honor, it is right.

If there was any issue of negligence, any opportunity on part of this plaintiff approved negligence on the part of Garcia and Diaz, that’s a matter of a trial, it’s not pretrial.

I think that’s what Your Honor has in mind.

Earl Warren:

Yes.

That’s what I (Inaudible)

Mr. Schwartz.

Sidney A. Schwartz:

May it please the Court.

I represent Quin Lumber in this case who was one of the respondents.

And back in March of 1958, when we were here arguing this case for the first time, we attempted to indicate to the Court the narrow scope of the questions that were being presented to this Court in connection with the Romero case.

We indicated at that time that the sole question that was presented in this matter, although it had several facets, was, “Did the District Court have jurisdiction in the very first instance to hear this case on the merits which would have meant that it would have taken proof as to the negligence of any of the parties, submitted it to the jury if there were questions of fact, on the proper charges in order to determine whether there was liability or whether there was not liability?”

The District Court did not do that at all.

What it did in this case and I think it’s a little disservice to the District Judge to say that he heard this case on the merits in Court, is the District Court when confronted with motions by the defendants to dismiss this case for lack of jurisdiction over the subject matter, inquired into the subject matter, which was, “Did he have jurisdiction in view of the fact that it had been alleged in the complaint that insofar as two of the defendants were concerned, the action was being brought against them under the Jones Act and as against two other defendants, it was being brought against them under the general maritime law?”

He, if the question had not been raised would have had to determine for himself, whether he had jurisdiction to hear this case because if he didn’t determine it sua sponte in the absence of any motions being made, we would have possibly been in the Circuit Court of Appeals and the question would have been raised then.

Now, what we have here is a question of jurisdiction over the subject matter of a District Court whose jurisdiction is circumscribed by statute.

And if the plaintiff comes within the statute, then he can have a case triable by jury on the civil side of the Court on the merits which would have determined whether any or all of the defendants whom he sued had been negligent.

Now, in this particular case, Mr. Romero is not out of Court, although, it would appear from the arguments, thus far, that he has now been dismissed of any action triable by jury and he is relegated to going back to Spain in order to get the rights that are accorded him under the contract and under Spanish law.

After this action had been dismissed in the District Court, and when the case was on its way up on appeal to the Court of Appeals for the Second Circuit, Mr. Romero brought the third action.

And this action he brought —

Earl Warren:

You take three minutes more to —

Sidney A. Schwartz:

Thank you, Your Honor.

Earl Warren:

(Inaudible)

Sidney A. Schwartz:

This action he brought in the Supreme Court of the State of New York in New York County in which he has joined the four defendants in which his complaint is identical to the complaint that is before Your Honor, in this case.

In fact, previous to this case which was instituted in the Southern District, he had brought an action in the District Court of New Jersey but since he can — could not get jurisdiction over the person of my client, he forwent that action and he now concentrated on his action in the Southern District.

Now, whether Judge Sugarman in dealing with Garcia and Diaz, determined some question of fact which might have been determined on a full trial, I respectfully submit to Your Honors, as unimportant because what Judge Sugarman was concerned with only, and as I think primarily was, “Did he have jurisdiction in the first instance to hear this case?”

Now, if a plaintiff, a foreign Spanish national can sue a Spanish national alleging that that person or corporation as his employer and he has rights under the Jones Act, and by that mere allegation clothe the District Court with jurisdiction, then what is happening is that Congress hasn’t conferred jurisdiction on the District Court.

The plaintiff by his allegation, and this was said yesterday by Mr. Puente, has conferred jurisdiction on the District Court.

Now, I say and I say it respectfully to Your Honor, District Judge Sugarman had the right to look into the jurisdictional facts here in order to see whether this man came within the compass of the Jones Act.

And if not, whether there was any other jurisdictional ground on which to hold this case and let it be tried by jury.

He found that on the facts that were adduced, what the plaintiff had alleged by way of a Jones Act action against Garcia and Diaz and Spanish Line were sham and false.

Sidney A. Schwartz:

That this man — the only contact this man had with respect to a possible Jones Act suit was the fact that the action, that his accident had happened in Hoboken, New Jersey and all other things were comparable in all respects, if not identical to the Lauritzen case.

Having determined that he did not have jurisdiction under the Jones Act, he gave the plaintiff the option in view of the fact that there was not complete diversity of citizenship between the plaintiff and each of the defendants in that.

The plaintiff was a Spanish national and one of the defendants was a Spanish national.

He gave him the option to go to the admiralty side of the District Court and to have the case tried on its merits but the plaintiff didn’t want to go there for the obvious reason that that case would have been triable non-jury.

In contrast to that where the action was dismissed, he went over to the Supreme Court — the state court and he instituted the same action that he had instituted in the Southern District.

Now, Mr. Justice Black addressed some question —

Felix Frankfurter:

But may — may I interrupt you for (Voice Overlap) —

Sidney A. Schwartz:

Certainly.

Felix Frankfurter:

— but still, this open the question whether the District Court had jurisdiction under 1331.

Sidney A. Schwartz:

There’s no question about that, Your Honor, because that– that is the second facet of this jurisdictional question.

If Your Honors determine that this action is properly brought under the Jones Act, and that gave jurisdiction to the District Judge by the mere allegation that the action was brought under the Jones Act to hear the entire case, then this case has to be remanded, to be tried on the merits in the District Court.

Contrariwise, if Your Honors determine that this case is not properly brought as against Spanish Line under the Jones Act, the next question that is presented is, “Did the District Court on the civil law side where an action is triable by jury and where a jury was sought by the plaintiff, does the District Court have jurisdiction under 1331 in that is this an action arising under the laws of the United States?”

And I respectfully submit under the authorities which I set forth in my brief and under the reasoning of Mr. Justice Frankfurter writing for this Court in the Gully case, this is not an action which is — finds its roots in the admiralty law in that it gives rights to this man —

Felix Frankfurter:

I wish I had in Gully but Mr. Justice Cardozo wrote it.

Sidney A. Schwartz:

I’m sorry, Your Honor, I thought Your Honor had written it.

But we have — we have the point now that you never reach the second question whether there was jurisdiction in the District Court, in that, this is a 1331 case, unless you determine that the Jones Act suit did not apply.

Now, insofar as whether the Jones Act suit applies or not, I think there was a full canvass of all the congressional intent and all the material available in the Lauritzen case.

And on the basis of that and on the basis of what’s presented here, which is nothing new, there is nothing that’s been presented to show that foreign seamen were intended to be embraced by the Congress under the Jones Act.

And as I’ve set forth in my brief at page 7, the latest treatise in admiralty, which I think is an excellent work written by Professors Gilmore and Black, indicate that had this Court intended to determine that foreign seamen were embraced by the Jones Act, it would have said so in the Lauritzen case on the basis of the congressional history there presented.

Thank you.

Earl Warren:

Thank you.

Mr. Attorney General:

Do I have two minutes?

Earl Warren:

I’m afraid your —

Mr. Attorney General:

Could I just ask Your Honors to consider what we’ve written in our book “Merchant Seamen’s Law” page 20 to 24, we say that lex loci delicti applies in the absence to this treaty the Court has jurisdiction to enforce its own locus delicti law.

Earl Warren:

Very well.

Mr. Attorney General:

(Inaudible)