Central Law Journal

St. Louis, March 5, 1924

EFFECT OF JONES ACT ON RIGHT OF SEAMEN TO RECOVER FOR

PERSONAL INJURIES

The case of Panama R. Co. v. Johnson (289 Fed. 964), decided by the Circuit Court of Appeals, Second District, upholds the validity of the Jones Act, section 33 of which amends the Act of Congress March 4, 1915, section 20, and gives to a seaman suffering personal injuries in the scope of his employment the same right of action at law for damages as railway employees under the Federal Employers' Liability Act. The section of the Act referred to is in full 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, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located."

The maritime law afforded two remedies. One was a proceeding in rem, and the other was a proceeding in personam. Where the proceeding was in rem, the jur isdiction of admiralty was exclusive; where it was in personam, the courts of common law had a concurrent jurisdiction. And when a party came into the common-law

court with with a proceeding in personam, which he might have brought in the admiralty court, the cause was disposed of according to the procedure which governed that class of courts, and was tried with a jury. But, while a seaman who was injured in the service of his ship has from the beginning had a right to sue in the common-law courts and to have a jury trial, the amount he was entitled to recover was not measured by common-law standards, but by those prescribed by the maritime law. By that law the vessel owner was liable to a seaman injured by the negligence of a member of the crew, whether a superior officer or not, only for his maintenance, cure and wages.

It was contended that Congress was without power to change the liability of ship owners for injury to seamen. By an act passed March 3, 1851, Congress changed the rule of unlimited liability imposed on shipowners by the maritime law, and created a limited liability. Butler v. Boston & Savannah Steamship Co. (130 U. S. 527, 4 Sup. Ct. 612, 32 L. Ed. 1017), the statute limiting liability was before the court, and was held applicable to cases of personal injury and death, as well as to cases of loss of or injury to property. In that case certain earlier cases in the court were commented upon, and Mr. Justice Bradley, speaking for the court, said:

"These quotations are believed to express the general, if not unanimous, views of the members of this court for nearly 20 years past, and they leave us in no doubt that, whilst the general maritime law, with slight modifications, is accepted as law in this country, it is subject to such amendments as Congress may see fit to adopt. One of the modifications of the maritime law, as received here, was a rejection of the law of limited liability. We have rectified that. Congress has restored that article to our maritime code. We cannot doubt its power to do this. As the Constitution extends the judicial power of the United States to 'all cases of admirality and maritime jurisdiction,' and as this jurisdiction

is held to be exclusive, the power of legislation on the same subject must necessarily be in the national Legislature, and not in the state Legislatures. It is true, we have held that the boundaries and limits of the admiralty and maritime jurisdiction are matters of judicial cognizance, and cannot be affected or controlled by legislation, whether state or national. Chief Justice Taney, in The St. Lawrence, 1 Black, 522, 526, 527; The Lottawana, 21 Wall. 558, 575, 576. But within these boundaries and limits the law itself is that which has always been received as maritime law in this country with such amendments and modifications as Congress may from time to time have adopted."

Concluding its consideration of this question, the court, in the case under consideration, said:

"And if the Congress, as we have seen it has, has the power to limit the liability of the ship or its owners within the admiralty and maritime jurisdiction of the United States, it must by the same process of reasoning have the right to otherwise alter or increase that liability. And we see no reason to doubt that Congress possesses the power to declare that shipowners shall be subject to the same measure of liability for injuries suffered by the crew while at sea as the common law prescribes for employers in respect to their employees on shore, and that it may specifically provide that statutes applying to personal injury actions of railway employees shall apply to similar actions by seamen."

The question of assumption of risk by at seaman executing the orders of a superior, was considered in this case, and it is one of great interest. The court said, in relation to this important point:

"In considering whether the plaintiff voluntarily assumed the risk we may consider the nature of his employment. This man was a seaman, and was injured while obeying an order given him by an officer of his ship, and which directed him to climb the ladder. It is the duty of seamen

to remain with the ship and to act in obedience to the commands of the master. Disobedience of orders by a seaman may involve him in serious consequences, and subject him to possible forfeiture of the wages previously earned and to imprisonment by the master. And if he leaves the ship without the master's consent and just cause he in like manner forfeits his wages and is liable to imprisonment..

"A master of a vessel has authority to enforce discipline on his ship, and to compel the obedience of seamen and may inflict corporal punishment upon them. In 20 Am. & Eng. Ency. of Law, p. 203, it is laid down that his authority in this respect 'is of a summary character, and somewhat resembles that of a parent over his children, a master over his servants or apprentices, or a schoolmaster over his scholars.' This power he has in order to maintain the good order and discipline of the ship. And as a means of punishment he may imprison or confine a seaman on the vessel. And the misconduct of a seaman may work a forfeiture of wages previously earned In cases of an aggravated character, it may involve, also, an absolute forfeiture of his clothing and effects on board the ship. It is the duty of a seaman to remain with the ship to the expiration of his term of serv ice, and if he quits the ship without justifiable cause he also forfeits his wages already earned and his effects on board the ship.

"All these circumstances must be considered in determining whether the plaintiff, in obeying the order given him, can be said voluntarily to have assumed the risk which was involved. We do not think it can be said that as a matter of law the risk involved in obeying the order was so absolute or imminent that a person of ordinary prudence similarly situated would have disobeyed it, or that the plaintiff should be held voluntarily to have assumed it. We do not think that under the circumstances the defendant can be heard to say that the plaintiff ought not to have obeyed the order, or that in obeying it he voluntarily assumed the risk."

NOTES OF IMPORTANT DECISIONS

BURGLARY POLICY HELD TO COVER TWO BUILDINGS CONNECTED BY BRIDGE. -In the case of General Accident, Fire and Life Assurance Corporation v. Cohen, 216 Pac. 522, the Supreme Court of Colorado holds that a burglary insurance policy, covering goods in the second story of a building at a given street address covered goods in the second story of two buildings at that address connected by a bridge. In regard to the facts of this case and the application of the law thereto the court said:

"The question here is, Was the property alleged to be stolen covered by the policy? This question cannot be determined from the policy alone. The location of the building, or buildings, as described in the policy, was 1418 Larimer street, and the policy covered the merchandise described in the schedule, cotton piece goods and cotton goods, furniture and fixtures, and described the premises, occupied solely by the assured, as the entire second floor, the amount of insurance being $10,000 on the general stock. The evidence shows that plaintiffs kept their goods in the smaller room in the rear building. For what did they pay the premium of $74.50, if their furniture and fixtures, and their goods kept in the rear building for the manufacture of garments, were not covered by the policy and not intended to be insured? It is inconceivable that the policy could only have been intended to indemnify plaintiffs for loss sustained by burglary from the front building only. The plaintiffs must surely have desired and intended to have the policy cover all the property which they had and kept on the second floor of the two buildings. The defendant says there is nothing in the policy to indicate that the goods were stored in two separate and distinct buildings, but were they? The two buildings were connected by a wooden bridge, and there were no means of access to the rear building except by crossing on the bridge from the front to the

be received, to show what the parties meant, understood and intended from the words employed. Messenger v. German American Ins Co., 47 Colo. 448, 107 Pac. 643."

PASSENGER IN AIRPLANE IS WITHIN INSURANCE POLICY EXCEPTION OF "PAR TICIPATING IN AERONAUTICS.-Apparently a case of first impression is Meredith v. Business Men's Acc. Ass'n, 252 S. W. 976, decided by the Kansas City Court of Appeals, holding that where insured was killed by accident while passenger for hire in airplane, his death came within the exception of "participating in aeronautics," which means to share in sailing or floating in the air; and no recovery could be had in such case under a clause providing that "full indemnities shall be paid for injuries sustained or sickness contracted while the insured is engaged in games or sports for recreation." We quote briefly from the court's opinion: "We realize that this is a case of first impression in this state, but the basic principles involved have been applied in the construction of contracts. Our attention is called to the case of Travelers' Ins. Co. v. Peake, 82 Fla. 128, 89 South. 418, where it is said:

"A passenger in an airplane flying in the air, whether he takes part in the operation of the airplane or not, is 'participating in aeronautics' within the intent and meaning of the provisions specifically excepting such a risk from the indemnity contract contained in the policy.'

"In Bew v. Ins. Co., 95 N. J. Law, 533, 112 Atl. 859, 14 A. L. R. 983, the court said:

"'Is a passenger in a balloon, which is not directed or propelled by any but natural forces, a participant in sailing or navigating the air? Is an observer in a military plane, who is not piloting it, participating in aviation? Is a military bomber, who does not touch the control of the plane, a participant in aviation? Is the pilot of an airplane which carries an observer or photographer or the operator of a machine gun, over enemy lines, but merely drives his machine, participating in military activities? It seems to me that the answer to all these queries must be in the affirmative, although the individual in question is not the active agent. The purpose of his flight has no influence upon the question of whether or not he is participating in aeronautics. His presence in the plane makes him a participant in the flight which is aeronautical.'"

FRENCH MARRIAGE LAW

By Albert Levitt*

France looks upon marriage as a status,1 which can be validly created by its own law or by the law of any other nation. The status can be imposed upon two French subjects (of opposite sex),2 upon a French subject and a foreign subject, and upon two foreign subjects. Three things must precede the imposition of the marriage status; (1) consent of the parties upon whom the status is to be imposed; (2) capacity of the parties to take part in a ceremony indicated as legal by the law of. the place where the ceremony occurs; and (3) performance of a legal ceremony.5 All three (consent, capacity and form) must exist at the same time at the place where the ceremony occurs or else the status cannot be validly imposed and may be lifted by annulment proceedings.

I. CONSENT

The civil code states that "there is no marriage without consent". The phrase is ambiguous. It does not indicate whether it is the consent of the parties who wish to enter into the marriage status or the consent of their parents or guardians which is essential. It is submitted that the section refers to the consent of the parties who wish to enter into the marriage status, because if that consent is lacking the imposition of the marriage status is completely aborted." But, if the

*Special Assistant to the Attorney-General of the United States.

(1) Marcel Planiol; Traite Elementaire de Droit Civil, Vol. 1, p. 238 (8th Ed. 1920). Hereafter cited as "Planiol." Compare Stoop v. Stoop, 6 Clunet 66 (1879) which states that "Marriage is a contract growing out of natural law and 'droit de gens.' (2) Planiol 245. 2 Clunet 273 (1875) Clunet. Journal of International Law will be cited hereafter as "C."

II. CAPACITY TO TAKE PART IN A LEGAL CEREMONY OF MARRIAGE

The general rule is that the capacity to be a party to a legal marriage is determined by the national law of the would-be spouse.11 If, however, the lex patriae conflicts with French public policy, the French courts will apply their own law.12 Where the nationality of the would-be spouse is uncertain or unknown the law of his domicile or residence will govern.13

French law governs the capacity of all French subjects at home or abroad 14 The capacity of a French subject is personal and relational. He is personally capable of entering into the marriage status if he is of sound mind15 is not bound by an exist ing marriage,16 and has attained to the legal marriageable age, which is eighteen full years for males and fifteen full years for females.17 The President of the Republic18 can dispense with the age requirement for weighty reasons of public pol icy.19. The dispensation is rarely granted

(8) C. C. Art. 182 to 187.

(9) C. C. Art. 76. Art. 1109 to 1114. (10) C. C. Art. 76.

(11) 31 Clunet 394 (1904); 25 Clunet 745 (1898); 25 Clunet 1080 (1898); 16 Clunet 104 (1889); 45 Clunet 1192 (1918); 44 Clunet 602 (1917); 47 C. 206 (1920); 48 C. 184 (1921); 47 C. 633 (1920). If the parties agree not to be bound by their national law at the time of the marriage and to be governed by the French law, the French law will govern. 20 Clunet 896 (1893); Cf. 46 C. 286 (1919).

(12) 41 C. 201 (1914); 41 C. 202 (1914); 18 C. 223 (1891); 1 C. 31 (1874).

(13) 35 C. 813 (1908); 34 Clunet 147 (1907).
(14) C. C. Art. 3.

Marriage is prohibited between all legitimate or natural ascendants and descendants and between relatives by marriage in the same line.24 In the collateral line marriage is prohibited between brothers and sisters, natural or legitimate.25 It is also prohibited between brothers-in-law and sisters-in-law if the marriage which brought about the relationship has been dissolved by divorce.26 Uncles are not permitted to marry their nieces nor aunts their nephews.27 This prohibition has been extended to great-uncles and grand-nieces and great-aunts and grand-nephews.28

Special provisions prohibit marriages between relations by adoption. No marriage can take place between (a) the adopter and the adopted or his descendants; (b) the adopted children of the same person; (c) the adopted and the children who may be born to the adopter; (d) the adopted and the husband or the wife of the adopter; (e) the adopter and the husband or wife of the adopted.29

Marriage between other relations by marriage are not prohibited. Cousins may marry, Brothers and sisters in one family may marry sisters and brothers in another family.30 Special dispensations by

the head of the Republic may allow marriages between brothers-in-law and sistersin-law; between uncles and nieces; between aunts and nephews.31

The question has been much discussed as to whether a priest, whose religious vows and denominational laws bind him to celibacy, may marry or not. It is now definitely established that he may.32 Persons in the military, naval and police forces may not marry without express authorization from their superior officers.33 This prohibition does not apply to the reserve forces.34 A widow cannot marry until three hundred days have elasped since the death of her husband.35 A divorced

(38) 46 C. 286 (1919); 25 C. 1080 (1898); 32 C. 394 (1904); 48 C. 940 (1921); 45 C. 216 (1918); 44 C. 610 (1917); 36 C. 342 (1909); 33 C. 1150 (1906); 19 C. 457 (1892); 17 C. 914 (1890); 9 C. M. 84 (1882); 35 C. 496 (1908); 33 C. 1145 (1906); 32 C. 208 (1905); 32 C. 364 (1905); 32 C. 1032 (1905); 28 C. 357 (1901); 28 C. 354 (1901); 22 C. 374 (1895); 22 C. 1051 (1895); 22 C. 616 (1895); 20 C. 412 (1893); 18 C. 932 (1891); 15 C. 90 (1888); 14 C. 600 (1887); 14 C. 187 (1887); 14 C. 188 (1887); 9 C. 205 (1882); 9 C. 534 (1882); 8 C. 518 (1881); 8 C. 516 (1881); 7 C. 396 (1880); 6 C. 486 (1879); 2 C. 273 (1875).