Circuit Court of Appeals, Second Circuit.
*985 Silas B. Axtell, of New York City (Charles A. Ellis, of New York City, of counsel), for appellant.
Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Cletus Keating, Vernon S. Jones, and Edward B. Long, all of New York City, of counsel), for appellee.
Before HOUGH, MANTON, and MACK, Circuit Judges.
HOUGH, Circuit Judge (after stating the facts as above).
The libel is drawn as for a cause of action arising under the general maritime law, and against a vessel of the United States. There is no allegation of the now admitted truth that the steamer was British, no reference to any statute, and it is not alleged that the vessel was unseaworthy.
It is useless to predicate anything on such pleadings, and as no point has been made of their infirmity we shall consider whether, on the facts proven and under any applicable law, libelant has a case.
In order to recover it must appear (1) that there exists a good cause of action for a maritime tort; and (2) that a maritime lien arises through and by the tort.
That libelant is a Spaniard is immaterial; the case is the same as if he had been an Englishman. The Hanna Nielsen (C. C. A.) 273 F. 171, citing The Belgenland, 114 U.S. 365, 5 S. Ct. 860, 29 L. Ed. 152.
If the applicable law is that of Great Britain, it is admitted that no "indemnity" (i. e., damages) can be claimed. Sullivan v. Nitrate, etc., Co. (C. C. A.) 262 F. 371, at page 373.
If that law be the general maritime law, as known and applied in the United States, libelant can recover neither against the vessel nor her owners, for the "improvident and negligent" act of the mate in selecting for libelant's use an insufficient rope. The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760. If the vessel had been unsupplied with good and proper rope, a different question would arise.
There remains the question of the applicability of the Jones Act, § 33.
Whether this section applies at all to foreign vessels within our territorial waters has in our judgment been well discussed in Clark v. Montezuma, etc., Co., 217 A.D. 172, 216 N. Y. S. 295, but the general question of applicability does not here arise.
Let it be admitted that had this steamer been American, either a libel in personam or an action at law against her owners would have lain under the Jones Act; as much is said in Panama R. R. v. Johnson, 264 U.S. 375, 390, 44 S. Ct. 391, 68 L. Ed. 748 et seq.
The effect of that statute has been to import the federal Employers' Liability Act of *986 1908 (Comp. St. §§ 8657-8665) into the maritime law of this country.
But to grant the right to sue in admiralty does not confer a maritime lien as appurtenant to the right. A lien grows out of a proprietary right; it is jus in re, and is stricti juris, as has been often held. No words can be pointed out in the Jones Act directly or indirectly conferring a lien.
The section invoked gives a seaman "his election" to "maintain an action for damages at law," 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." It would be a rather gross form of judicial legislation to find in such words the grant of a jus in re; the res being the ship on which the cause of action arose.
We therefore hold that, because no lien exists, even as against a vessel of the United States, by reason of the matters proven herein, there is no lien against this British vessel. Wherefore the decree dismissing the libel was right, and is affirmed, with costs.
