Gibbs v. Lewis & Clark Marine

                          NO. 5-97-1071

                             IN THE 

                   APPELLATE COURT OF ILLINOIS

                          FIFTH DISTRICT
_________________________________________________________________

SCOTT GIBBS,                         )  Appeal from the
                                     )  Circuit Court of
     Plaintiff-Appellee,             )  Madison County.
                                     )  
v.                                   )  No. 95-L-1425
                                     )  
LEWIS & CLARK MARINE, INC.,          )  Honorable
                                     )  P. J. O'Neill,
     Defendant-Appellant.            )  Judge, presiding.  
_________________________________________________________________

     JUSTICE MAAG delivered the opinion of the court:  
     Plaintiff, Scott D. Gibbs, filed a complaint against
defendant, Lewis & Clark Marine, Inc., alleging claims for
negligence under the Jones Act (46 U.S.C.A. 688 (West 1997)) and
for unseaworthiness and maintenance and cure under the general
maritime law.  Plaintiff did not demand a jury.  Defendant filed a
timely answer and demanded a jury on all counts of the complaint. 
In its answer, defendant pleaded an affirmative defense to
plaintiff's negligence and unseaworthiness claims, stating, "[I]f
Plaintiff Scott G. Gibbs was injured as alleged, said injury was
caused in whole or in part by the negligence of Plaintiff Scott G.
Gibbs, including, among other respects[,] failing to exercise
reasonable care for his own safety under the circumstances."
     In June of 1997, plaintiff moved to strike defendant's jury
demand, based upon this court's decision in Allen v. Norman
Brothers, Inc., 286 Ill. App. 3d 1091, 678 N.E.2d 317 (1997). 
Defendant opposed the motion to strike, but on July 11, 1997, the
trial court granted plaintiff's motion, and the jury demand was
stricken.  
     In October of 1997, defendant filed a motion to reconsider,
raising the argument that section 53 of the Federal Employers'
Liability Act (FELA) (45 U.S.C.A. 51-60 (West 1986)), which has
been incorporated into the Jones Act (46 U.S.C.A. 688 (West
1997)), requires a jury trial on the issue of plaintiff's
comparative fault.  
     On November 26, 1997, the trial court denied the motion to
reconsider, based upon the determination in Allen that federal law
does not provide a basis for a Jones Act defendant's claim to a
jury trial in state court.  Defendant then filed a motion to
certify, pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308),
asking the trial court to certify an immediate appeal of this
issue.  On December 5, 1997, the trial court entered an order
certifying only the issue of whether section 53 of the FELA
requires a jury trial on the issue of a Jones Act seaman's
comparative fault.  As required under Supreme Court Rule 308, the
trial court also determined that there is a substantial ground for
difference of opinion on this issue and that an immediate appeal
would materially advance the ultimate termination of the
litigation.  
     The question certified for appeal is as follows:  "Does the
language of 53 of the Federal Employers' Liability Act (FELA), 45
U.S.C.A. 51-60 (1988), which is incorporated into the Jones Act,
46 U.S.C.A. 688, require a jury trial on the issue of a Jones Act
seaman's comparative fault?"  
     We will first review the decision in Allen v. Norman Brothers,
Inc., as background for the case at bar.  Initially, it is
important to note that the Jones Act made the provisions of the
FELA applicable to seamen injured in the course of their
employment.  45 U.S.C.A. 51-60 (West 1986).  "The Jones Act
adopts the entire judicially developed doctrine of liability of the
FELA."  Allen v. Norman Brothers, Inc., 286 Ill. App. 3d 1091,
1094, 678 N.E.2d 317, 318 (1997).  State and federal courts have
concurrent jurisdiction over Jones Act claims.  Allen, 286 Ill.
App. 3d at 1094, 678 N.E.2d  at 318; 45 U.S.C.A. 56 (West 1986). 
But there are real and substantive differences between a pure FELA
claim and a Jones Act claim.  Among these substantive differences
are the provisions concerning jury trials.  
     The Jones Act has repeatedly been construed by federal courts
to allow only the plaintiff the right to elect a trial by jury. 
Allen, 286 Ill. App. 3d at 1094, 678 N.E.2d  at 319; Rachal v.
Ingram Corp., 795 F.2d 1210, 1213 (5th Cir. 1986); Craig v.
Atlantic Richfield Co., 19 F.3d 472, 476 (9th Cir. 1994).  It is
clear that the Jones Act does not confer on a defendant the right
to a trial by jury.  Allen, 286 Ill. App. 3d at 1094, 678 N.E.2d  at
320.  
     Defendant acknowledges that this court, in Allen, determined
that neither the Illinois Constitution nor federal constitutional
or statutory law provides a basis for a Jones Act defendant's claim
to a jury trial in state court.  It states that this determination
was based upon an interpretation, by this court and federal courts,
of the following language contained within the Jones Act:
          "Any seaman who shall suffer personal injury in the course of
     his employment may, at his election, maintain an action for
     damages at law, with the right of trial by jury ***." 
     (Emphasis added.)  46 U.S.C.A. 688 (West 1997).  
The language in section 688 has been repeatedly interpreted to
provide only the plaintiff with a basis upon which to claim the
right to a jury.  See Allen, 286 Ill. App. 3d at 1094, 678 N.E.2d 
at 320 (and authorities cited therein).  In the Allen decision, the
court determined that a defendant does have a right to a trial by
jury in Jones Act cases brought in federal court where federal
jurisdiction is based on diversity of citizenship.  This right to
a jury trial is based on the seventh amendment to the United States
Constitution, which provides that in all suits at common law, where
the value in controversy exceeds $20, the right of trial by jury
shall be preserved.  The Allen court stated that this
constitutional provision has been interpreted to extend beyond the
common law forms of action recognized at the time the bill of
rights was adopted and accordingly applies to even statutory causes
of action, such as Jones Act claims where the amount in controversy
and diversity requirements are satisfied.  The seventh amendment
does not apply to suits brought in state court, and the Jones Act
itself confers on defendant no right to a jury trial.  Allen, 286
Ill. App. 3d at 1094, 678 N.E.2d  at 320.  
     In Allen, the defendant claimed that the Illinois
Constitution, which provides that "[t]he right of trial by jury as
heretofore enjoyed shall remain inviolate" (Ill. Const. 1870, art.
II, 5; Ill. Const. 1970, art. I, 13), guaranteed it a right to a
trial by jury even in a Jones Act case, if brought in this state. 
However, the Illinois Supreme Court has noted that our constitution
does not guarantee the right to a jury trial nonexistent at common
law, even if such action is legal in nature.  Martin v. Heinold
Commodities, Inc., 163 Ill. 2d 33, 72, 643 N.E.2d 734, 753 (1994)
(court determined that action pursuant to Consumer Fraud Act is a
statutory right created by the legislature, and as such, the
constitution does not confer the right to a jury trial).  The
Martin court pointed out that the constitutional provision was not
intended to guarantee a trial by jury in special or statutory
proceedings unknown to the common law.  Hence, Illinois's
constitutional right to a jury trial differs from that found in the
federal constitution.  Allen, 286 Ill. App. 3d at 1095, 678 N.E.2d 
at 320. 
     Since the Jones Act is a statutory proceeding, unknown to the
common law, the Illinois Constitution does not guarantee a right to
a trial by jury.  The provisions of the statute determine whether
and to what extent there is a right to a jury trial.  The Jones Act
is clear that it provides such a right only to the
plaintiff/seaman.  Hence, the Allen court concluded that a
"defendant has no right to a jury trial in a cause brought under
the Jones Act in an Illinois court."  Allen, 286 Ill. App. 3d at
1096, 678 N.E.2d  at 321.  Moreover, because the right or absence of
a right to demand a jury is a matter of federal substantive law,
the states (including Illinois) could neither grant nor refuse a
defendant the right to demand a jury under state law if to do so
would contravene federal law.  Cf. St. Louis Southwestern Ry. Co.
v. Dickerson, 470 U.S. 409, 84 L. Ed. 2d 303, 105 S. Ct. 1347
(1985).  With this background, we come to the issue at hand.
     At oral argument in this case, counsel for defendant was
specifically asked whether an issue in this case was whether the
defendant had a right to demand a jury based on the Illinois
Constitution or the United States Constitution.  Counsel stated
that such a claim was not being made in this case.  Counsel stated
that the claimed right to a jury at issue in this case was based
solely upon the terms of section 53 of the FELA.  Hence, we will
consider only that issue.
     Defendant claims that in addressing the issue of a Jones Act
defendant's right to a jury trial, neither this court nor the
federal courts have considered the following language contained in
section 53 of the FELA:
          "[T]he damages shall be diminished by the jury in proportion
     to the amount of negligence attributable to such employee
     ***."  (Emphasis added.)  45 U.S.C.A. 53 (West 1986).  
     Defendant claims that the two statutes are inconsistent, and
due to the aforementioned language in the FELA, defendant contends
that it is entitled to a trial by jury if it so chooses.  We
disagree.
     When there is an alleged conflict between two statutes, the
court has the duty to construe the statutes in a manner that avoids
inconsistency and gives effect to both statutes, where such an
interpretation is reasonably possible.  McNamee v. Federated
Equipment & Supply Co., 181 Ill. 2d 415, 427, 692 N.E.2d 1157, 1163
(1998).  Moreover, "we apply the maxim of statutory construction
that where there is a specific statutory provision, *** and where
there is another general statutory provision, *** which relates to
the same subject to which the specific statute relates, the
specific statute controls over the general statute."  Village of
Franklin Park v. Dickman, 165 Ill. App. 3d 1012, 521 N.E.2d 101,
102 (1988).  
     In the instant case, it is clear that the Jones Act is more
specific than the FELA.  The Jones Act specifically provides for a
jury trial "at his [the seaman's] election", whereas the FELA does
not expressly provide for a jury trial. 
     Since the Jones Act contains its own limitations on jury
trials and specifically states that only the plaintiff can demand
a jury trial, and since the right to a jury trial under the FELA is
only implied, the specific provisions of the Jones Act control in
the case at bar.  Such a construction is also required because
obviously the Jones Act, by incorporating the FELA by reference,
postdates the FELA.  While the general provisions of the Jones Act
adopt the FELA, the specific provisions grant the plaintiff at his
election the sole right to seek a jury.  It would be contrary to
the express statutory language passed by Congress to hold that the
jury provisions of section 53 of the FELA were adopted as part of
the Jones Act.  To the contrary, Congress adopted language
absolutely inconsistent with the defendant's position.  The FELA
was not incorporated in its entirety into the Jones Act.  Rather
the Jones Act's incorporation of the FELA adopted only the parts
"fairly covered by the reference".  Panama R.R. Co. v. Johnson, 264 U.S. 375, 392, 68 L. Ed. 748, 44 S. Ct. 391, 396 (1924).  The Jones
Act "permits injured seamen to elect between varying measures of
redress and between different forms of action without according a
corresponding right to their employers ***."  Johnson, 264 U.S.  at
392, 68 L. Ed. 748, 44 S. Ct.  at 396.  Hence, defendant is not
entitled to demand a trial by jury in a Jones Act case based upon
section 53 of the FELA.
     The right to a jury trial brought under the Jones Act is a
matter of substance rather than procedure, and matters of substance
are governed by federal law, while matters of procedure are
governed by state law.  Allen, 286 Ill. App. 3d at 1096, 678 N.E.2d 
at 321; Dice v. Akron, Canton & Youngstown R. Co., 342 U.S. 359,
363, 96 L. Ed. 398, 404, 72 S. Ct. 312, 315 (1952).  FELA cases
adjudicated in state courts are subject to state procedural rules,
but the substantive law governing them is federal.  St. Louis
Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 411, 84 L. Ed. 2d 303, 105 S. Ct. 1347, 1348 (1985).  The United States Supreme Court
in Dickerson determined that the measure of damages in an FELA case
is an issue of "substance" determined by federal law.  See also
Norfolk & Western Ry. Co. v. Liepelt, 444 U.S. 490, 493, 62 L. Ed. 2d 689, 100 S. Ct. 755, 757 (1980).  
     After reviewing the case law in this area, we are persuaded by
the reasoning adopted by the Louisiana courts that have dutifully
applied the federal law in this area and determined that a
defendant is not entitled to a jury trial in a Jones Act proceeding
tried in state court in Louisiana.  See Parker v. Rowan Cos., 599 So. 2d 296, 298 (La. 1992); Heinhuis v. Venture Associates, Inc. of
Louisiana, 558 So. 2d 1244 (La. App. 1990).  
     For example, in Parker, an injured seaman brought suit seeking
remedies based on unseaworthiness, maintenance and cure, and the
Jones Act.  The seaman requested a bench trial and later moved to
strike the defendant's jury trial request.  The district court
granted the seaman's motion to strike the jury.  The defendant
sought a writ of review to the appellate court.  The appellate
court denied the writ.  On a writ of certiorari, the Louisiana
Supreme Court held that Jones Act claims are admiralty and maritime
claims.  The court further held that plaintiff seamen have the same
exclusive choice of bench or jury trial in Jones Act cases in state
court as prevails in federal court and that the article granting
seamen such an election does not violate the supremacy clause, the
seventh amendment, or essential features of substantive maritime
law.  In Parker, the court noted that injured seamen routinely
couple their Jones Act injury claim with claims for
unseaworthiness, wages, and maintenance and cure.  When a suit is
brought in federal court, the plaintiffs alone have the choice of
a bench trial or a jury trial, depending upon the nature of their
claims.  If the plaintiff's claim is only cognizable in admiralty,
the distinctive admiralty procedures apply, which, among other
things, preclude the right to a trial by jury.  If the claim could
be brought in federal court on some other jurisdictional basis
besides admiralty, for example, Jones Act or diversity, plaintiffs
may choose whether to invoke the special admiralty procedures or
whether to have the case tried as a nonmaritime civil action.  The
Parker court stated that in order to permit the invoking of
admiralty procedures, Rule 9(h) of the Federal Rules of Civil
Procedure requires the pleading to contain an express statement
identifying the claim as an admiralty or maritime claim, thereby
facilitating a choice of a bench trial.  The Rule 9(h) election is
not irrevocable, and the petition may be amended to add or withdraw
the election.  The Parker court then stated that "plaintiffs alone
have control over whether the case is to be tried to a judge or a
jury."  Parker, 599 So. 2d  at 298.   The Jones Act is to be
liberally construed to carry out its purpose, which was to enlarge
admiralty's protection to its wards.  Being an integral part of the
maritime law, rights fashioned by it are to be implemented by
admiralty rules not inconsistent with the act.  Parker, 599 So. 2d 
at 300 (citing Garrett v. Moore-McCormack Co., 317 U.S. 239, 248,
87 L. Ed. 239, 63 S. Ct. 246, 252 (1942)).  The Parker court then
made it clear that it is the plaintiff seaman's option to decide
whether the case will be heard by a judge or a jury.  
     The United States Court of Appeals in Linton v. Great Lakes
Dredge & Dock Co., 964 F.2d 1480 (5th Cir. 1992), reiterated the
rule that a Jones Act plaintiff can elect a nonjury trial in
federal court either by (1) electing to sue in admiralty or (2)
grounding his suit on federal question jurisdiction, i.e., the
Jones Act, and not requesting a jury.  The Linton court also
concluded that the Jones Act allows the injured seaman the sole
right to elect either a nonjury trial or a jury trial in an action
"at law" in a state court.  If the plaintiff elects a nonjury trial
in state court, there is no federal constitutional or federal
statutory right enjoyed by the defendant to demand a jury in a
state court action.  Linton, 964 F.2d  at 1490.
     Moreover, we are also persuaded by the reasoning adopted by
the California Court of Appeal in Peters v. City & County of San
Francisco, 1995 A.M.C. 788 (Cal. App. 1994), wherein the plaintiff
brought a negligence action against the defendant under the Jones
Act.  After a bench trial, a judgment was entered in the
plaintiff's favor.  The defendant appealed, claiming that it had a
right to a jury trial.  The Peters court stated, in that Jones Act
case:  "[F]ederal statutory law applicable to personal injury of
railway employees applies.  (46 U.S.C. 688(a).)  As the Jones Act
incorporates the law applicable to personal injuries suffered by
railway employees--the Federal Employers' Liability Act ***--by
reference ***, we find guidance in the rulings in F.E.L.A. cases as
well as those decisions arising under the Jones Act itself." 
Peters, 1995 A.M.C. at 791.  The Peters court reiterated that in
actions brought pursuant to the FELA in state court, substantive
rights are controlled by federal law and procedural matters are
controlled by the law of the forum state.  Additionally, the Peters
court stated that the seventh amendment right to a jury trial has
been held not to apply to actions brought under the FELA in state
court.  See also Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 217-23, 60 L. Ed. 961, 36 S. Ct. 595 (1916); Chesapeake
& Ohio Ry. Co. v. Carnahan, 241 U.S. 241, 242, 60 L. Ed. 979, 36 S. Ct. 594 (1916).  We adopt the reasoning articulated by the Peters
court.  Hence, the degree to which an issue is governed by federal
law turns on the statute, not the seventh amendment.  Peters, 1995
A.M.C. at 792.  The seventh amendment does not apply to Jones Act
cases brought in state court.  See Bombolis, 241 U.S.  at 217-23, 60 L. Ed.  at 961, 36 S. Ct.  at 595; Carnahan, 241 U.S.  at 242, 60 L.
Ed at 979, 36 S. Ct at 594.  The state constitutional right to a
jury trial does not apply because the right to a jury trial is an
issue of substantive law that turns on federal law alone.  See
Peters, 1995 A.M.C. at 792.  There is no doubt that the right to a
jury trial pursuant to the Jones Act is a statutory right and that
it grants only the plaintiff the right to a jury trial.  "The Jones
Act defendant possesses no corresponding right to a jury trial."
See Peters, 1995 A.M.C. at 792.  
     From the foregoing, we conclude that the reference to a "jury"
in section 53 of the FELA confers no right on the defendant to
demand a jury in a Jones Act case.  Such a construction would
contravene the plaintiff's expressly articulated right to elect a
jury trial or nonjury trial in such cases.
     It is fundamental that, in passing the Jones Act, Congress did
not intend to convert a seaman's case wholly into a rail worker's
case with no accommodation for special rules applicable to maritime
cases.  As Justice Cardozo stated:
          "We do not read the act for the relief of seamen as expressing
     the will of Congress that only the same defaults imposing
     liability upon carriers by rail shall impose liability upon
     carriers by water.  The conditions at sea differ widely from
     those on land, and the diversity of conditions breeds
     diversity of duties.  This court has said that `the ancient
     characterization of seamen as "wards of admiralty" is even
     more accurate now than it was formerly.'"  Cortes v. Baltimore
     Insular Lines, Inc., 287 U.S. 367, 377, 77 L. Ed. 368, 53 S. Ct. 173, 176 (1932).
     To the extent that the Jones Act differs from the FELA, the
differences are to be resolved in favor of the seamen.  Reed v.
Iowa Marine & Repair Corp., 143 F.R.D. 648, 651 (1992); see 1(b)
Benedict on Admiralty, 2 at 1-8 and 1-9 (1991).  
     We are bolstered in our conclusions by the fact that the
defendant has failed to cite a single case, either state or
federal, which has adopted its position.  The reason is clear.
     For all of the foregoing reasons, plaintiff had the right to
waive a jury trial in this matter, and he did so.  Defendant had no
right to choose otherwise.  

     Certified question answered.

     GOLDENHERSH and HOPKINS, JJ., concurring.