The Falco, 20 F.2d 362 (2d Cir. 1927)

*363 Simone N. Gazan, of New York City, for libelant.

Haight, Smith, Griffin & Deming and Wharton Poor, all of New York City (James McKown, Jr., of New York City, on the brief), for claimant.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above).

If Braga was a member of the Falco's crew, though himself not a Swede, the question whether the District Court should take jurisdiction over the cause lay in its discretion. The Belgenland, 114 U.S. 355, 5 S. Ct. 860, 29 L. Ed. 152. The controversy involved the liability of the Falco to him arising out of his contract of employment, whether the suit sounds in contract or in tort. The Hanna Nielson, 273 F. 171 (C. C. A. 2). If that article of the Swedish treaty of 1910 were still in force which formerly controlled the situation, we do not say that any discretion would have existed; but it has been abrogated by mutual consent, and the customary law alone remains.

That he was a member of the crew seems to us proved. He calls himself a seaman, and indeed, since he was "employed or engaged to serve" in some "capacity on board ship," our statutes make him such. R. S. § 4612 (Comp. St. § 8392); Pac. Mail S. S. Co. v. Schmidt, 214 F. 513 (C. C. A. 9). The ship was in commission, and he an A. B., working as such. The fact that he had not signed the articles, which are in any case necessary only when she is on a voyage, R. S. § 4511 (Comp. St. § 8300), might affect the duration of his service and his right to throw up his job, but did not qualify its incidents, or define its character, while he remained at work, Jansen v. The Theodor Heinrich, Fed. Cas. No. 7215; Clark v. Montezuma Transp. Co., 217 App. Div. 172, 216 N.Y.S. 295. A ship may have a crew in port, and he had engaged to serve her in strictly maritime duties, as much while at her berth as after she broke ground, when he expected still to be in her service.

Normally disputes arising out of a seaman's employment are referred to the tribunals of the flag. The Ester (D. C.) 190 F. 216. Nevertheless, courts of admiralty, which are sensitive to a seaman's rights, or at least *364 have always professed to be, will in such cases, before turning him out of court, satisfy themselves that there are no special circumstances which will leave him without adequate remedy. The Becherdass Ambaidass, Fed. Cas. No. 1,203; Willendson v. Forsoket, Fed. Cas. No. 17,682; The St. Oloff, Fed. Cas. No. 17,357; The Topsy (D. C.) 44 F. 631; The Sirius (D. C.) 47 F. 825; The Ester (D. C.) 190 F. 216. Even the protest of a consul is not conclusive, when justice requires the court to entertain the plea. The Lilian M. Vigus, Fed. Cas. No. 8,346. Moreover, the discretion of the instance court must be exercised with a due regard to the circumstances, and we are required to examine the grounds of its decision, before we accept its conclusion. Courts are primarily established to decide the disputes of all suitors over whom they have jurisdiction, and some reason must be shown for their abdication.

If Braga had had any right under the law of the sea, and had been so injured that he could not have gone on the voyage, or had his rights been such that only an American court could have given him any remedy, we will not say that his libel would not have lain. It states a case apparently under the Jones Act (41 Stat. 988); but, being in rem, it was not good in law under a very recent decision of this court. The Pinar Del Rio, 16 F.(2d) 984. This we say, reserving the question whether the Jones Act applies to foreign ships at all. If the suit lies, it must therefore be under the general maritime law (The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760), and then only because the ship was unseaworthy.

The only defect alleged, which can be said to have caused his injuries, is that the covers of a coal hatch were left off while the Falco was in port. Whatever might have been her liability to a landsman under such circumstances (The Helios [D. C.] 12 F. 732; The Guillermo [D. C.] 26 F. 921; The Protos [C. C.] 48 F. 919), it does not rest upon unseaworthiness. In this respect the case at bar differs from Heredia v. Davies, 12 F.(2d) 500 (C. C. A. 4), where a companionway was defective. To leave off the covers of a coal hatch may create some liability also in favor of a seaman, but, if so, it arises because of the neglect of the crew in the discharge of their duties; it is not a defect in seaworthiness, and under the maritime law no liability arises from it.

We have not, therefore, to consider whether Braga, a Brazilian, in case his injuries made him incapable of going upon the voyage, would by the Falco's departure have been deprived of any remedy against her under the law of the sea. Nor have we to consider whether, after engaging as a member of her crew, the law of Sweden alone applied to the situation, under which his rights were limited to workmen's compensation. On his own showing he had no rights to lose; at least none that he could pursue in the suit which he filed. We think, therefore, that the District Judge was right in declining to assume jurisdiction. No especial circumstances existed which in justice required him to do so.

Decree affirmed.