Rosalie Laura Peace, Administratrix of the Estate of Thomas Malcolm Peace, Deceased, Appellee, v. Fidalgo Island Packing Company and George Johnson, Appellants, 419 F.2d 371 (9th Cir. 1969)

Rosalie L. Peace, appellee, as the personal representative of the deceased fisherman-seaman, commenced an action in the district court claiming in one count, damages for negligence under the Jones Act, 46 U.S.C. § 688 and for unseaworthiness based on Death On The High Seas Act, 46 U.S.C. § 761, (hereafter DOHSA). Demand for a jury trial was endorsed on the complaint.

The question presented to the district court and here argued in the briefs, is whether appellee is entitled to a jury trial on both of the claims set forth in the complaint.

The district court so held, relying on Gvirtsman v. Western King Co. Inc., (C.D.Calif.1967) 263 F. Supp. 633, which in a similar situation held a plaintiff was entitled to a jury trial upon both the Jones Act claim and the DOHSA claim. The district court certified the case under 28 U.S.C. § 1292(b) for an interlocutory appeal.

There is nothing in the present rules of Civil Procedure which grants a trial by jury in an admiralty or maritime claim. Rule 38(e) F.R.Civ.P., expressly so provides. But there is nothing in the Rules which prohibits a trial by jury on joined civil and admiralty claims. Rule 9(h), F.R.Civ.P., which pertains to identifying claims, does not modify this result. See Haskins v. Point Towing Co., (3 Cir. 1968) 395 F.2d 737, 743.

Appellee's right to a jury trial on the two claims, one of which is maritime in nature, rests on case law. Fitzgerald v. United States Lines, (1963) 374 U.S. 16, 83 S. Ct. 1646, 10 L. Ed. 2d 720, held that claims for negligence under the Jones Act, unseaworthiness under the Maritime Law and maintenance and cure under the Maritime Law should all be tried before the same jury. The Court rendered its decision under its power and responsibility for fashioning procedures involving Maritime Law. The Court pointed out, "While this Court has held that the Seventh Amendment does not require jury trials in admiralty cases, neither the Amendment nor any other provision of the Constitution forbids them." Id. 20, 83 S. Ct. 1650. Although Fitzgerald concerned an action for personal injuries and the present action is one for death of the seaman, there is no reason why the Fitzgerald rationale should not apply here. As noted above, Gvirtsman v. Western King Co. Inc., supra, is directly in point.

There is no merit to appellants' contention that because the DOHSA, 46 U.S.C. § 761, states that "the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty * * *" [Emphasis added], this language precludes the application of the Fitzgerald doctrine. There is no language in the section prohibiting a trial by jury. The language in the DOHSA is different from that used in the Suits in Admiralty Act, 46 U.S.C. §§ 741, 742, which provides in part "* * * any appropriate nonjury proceeding in personam may be brought against the United States or against any corporation mentioned in section 741 of this title." [Emphasis added]

Nor are we required to overrule our case of Higa v. Transocean Airlines, (9 Cir. 1955) 230 F.2d 780, pet. for cert. dism. (1956) 352 U.S. 802, 77 S. Ct. 20, 1 L. Ed. 2d 37. There the action was commenced on the law side of the district court under the DOHSA and the court held the action could lie only in admiralty. It should have transferred the case to the admiralty side of the court, rather than dismissing. The Higa case has been taken care of by the merger of the Civil and Admiralty Rules. See the commentary by the Advisory Committee on Admiralty Rules. Moore's Fed. Practice, Vol. 7A, pages 155, 158-159.

We hold that the appellee is entitled to go to a jury on both the theories set forth in her complaint — negligence under the Jones Act and unseaworthiness under the DOHSA. The judgment is

Affirmed.