ISBN 978-94-015-1405-7 ISBN 978-94-015-2514-5 (eBook)

DOI 10.1007/978-94-015-2514-5

MY ADVICE TO N.A.C.C.A.

by

SILAS BLAKE AXTELL

New York Bar, 1910-

In ten minutes I should like to tell you what I think we should do: First: Ignore the attacks made on us as plaintiffs advocates. Second: In the spirit of our Bill of Rights, we should prepare

for each state an amendment of the Workmall's Compen­sation Act so that persons injured through negligence on the part of the employer in failing to furnish the employee with a reasonably safe place in which to work as by the common law may take his compensation as a seaman takes maintenance and in addition, sue for damages that will really compensate him for pain and suffering, humiliation and interference with his right to the pursuit of happiness ...

Third: We should get the defense of contributory negligence modified by the adoption of the rule of comparitive negligence in all states.

Fourth: We should take steps to revoke the Warsaw Treaty which limits the liability of plane operators in the carriage of passengers by the United States and Europe to the inadequate sum of $ 8500.

Fifth: We should secure laws that will result in larger per diem pay for jurors in civil and criminal courts of the states and of the United States.

Sixth: We should secure a change of federal law by which attorneys for persons in civil actions are limited to three challenges and the original right of lawyers to examine prospective jurors by direct questions should be restored.

Seventh: We should get behind the law to increase the number of federal judges by at least 50 % in seacoast districts.

Eighth: We should encourage the adoption of a code of ethics for labor groups so that independent lawyers may be retained by individual workers who need attorneys to enforce their rights to collect damages in tort cases.

2 SILAS BLAKE AXTELL

Ninth: We should design a statute that will prevent unions or union officials from channeling tort cases to lawyers who are controlled and whose fees are limited by contracts with the unions.

Finally, as to the Maritime Law, we should try to get the courts to apply this great body of law, which is international and world wide, to all seamen equally who elect to sue for damages in the courts of the United States. As one of the de­signers of the Seaman's Act and the Jones Act, which was an amendment, I state that the Seaman's Act and all its parts was intended to be an addition to the General Maritime Law as adopted by the Constitution of the United States and by our judges. Our Maritime Law was the old sea code that had been used by the admiralty courts of England which this country adopted when it effected the Constitution of the United States in 1789.

Our Supreme Court has held repeatedly that the Jones Act is a part of the General Maritime Law and is enforcable territori­ally as far as it can go in courts of admiralty or common law. The J ones Act was intended to be mandatory in giving jurisdiction to the courts of the United States to enforce the claims for torts for wages or enforcement of laws relating to health and safety, by "any seamen" who "elect" to sue and it was then provided that as to those seamen, their rights shall be governed by the provisions of the Federal Employers Liability Act.

One Judge, out of humanity, took jurisdiction of an alien seaman on an alien ship at the time when there was a war and the government of the owners of the ship was in an unstable con­dition. (Bondy, J.; Kyriakos 1945 AMC 1041). Another judge enforced the statute against a foreign corporation because its stock was owned by an American corporation. (Byers, J.; Gerradin v. United Fruit Company 60 Fed. (2) 927).

Judge Patterson, former Solicitor General, member of The Court of Appeals of New York and Secretary of War, refused to dismiss a complaint under the Jones Act where an American citizen alleged that he had been injured on a British vessel of which he was a crew member while said vessel was at sea.

A recent decision by the Supreme Court of the United States has encouraged attorneys for foreign owners to continue the transfer of American vessels to foreign flag in the hope that they will avoid some of the requirements of the Maritime Law

MY ADVICE TO N.A.C.C.A. 3

as understood in the United States. But a still more recent decision of that court indicates that the General Maritime Law, including the doctrine of uniformity will be followed, and if that is done, there will undoubtedly be other cases tried and appealed which will lead to a more complete understanding of how the principles of the General Maritime Law must be applied in the absence of restraining treaties although the Seaman's Act began by requiring the abrogation of all treaties of friendship and commerce that interfered with its enforcement. Still, in 1920, when the Jones Act amendment was effected, we refrained from putting the words "foreign vessels" in the Act since it would undoubtedly have delayed action by Congress. Those who understand the Maritime Law realize that no nation or group of nations has power to determine exactly what it is. History shows that our ancestors in England and France adopted the ancient sea code known as the Laws of Oleron. The doctrine of maintenance and cure is tracable directly and exactly to Article 7 of that code. There are other provisions that form the doctrine of unseaworthiness and the rule of comparative negligence. When the Constitution of the United States was adopted, we adopted the admiralty jurisdiction that had been exercised in the colonies under English control. The silver oar of that colonial admiralty court is still to be seen on the 28th floor of the Federal Court House in New York. The admiralty law is what Congress and finally the Supreme Court of the United States says it is. In opening the courts of the United States to seamen in the Sec. of 783 U.S.C.A., the courts are open to seamen of foreign as well as American ships because all treaties made since that time have been made subject to the condition of that statute which has not been repealed due to the diligence of Andrew Furuseth and his successors.

• Justice Jackson in the Lauritzen v. Larsen (1953 A.M.C. 1210) says: "If read literally, Congress has conferred an American right of action which requires nothing more than that the plaintiff be 'any seaman who shall suffer injury in the course of his employment'. It makes no explicit requirement that either the seaman, the employment or the injury have the slightest connection with the United States. Unless some relationship of one or more of these to our national interest is implied, Congress has extended our law and opened our courts to all alien seafaring men injured anywhere in the world in service of watercraft of every foreign nation - a hand on a Chinese junk, never outside Chinese waters, would not be beyond its literal wording".