The questions involved in this case relate to the effect of § 33 of the Merchant Marine Act of 1920, 41 Stat. 988, c. 250, which amended § 20 of the Seamen's Act of 1915, 38 Stat. 1164, c. 153, to read 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."
Engel, the petitioner, brought this action at law, in January, 1923, in a Superior Court of California, against the respondent Davenport, one of the owners of a vessel on which he had been employed as a seaman,
The petitioner contends that the suit is one founded on § 33 of the Merchant Marine Act, of which the state courts have jurisdiction concurrently with the federal courts; and that, by virtue of § 6 of the Employer's Liability Act, 35 Stat. 65, c. 149, incorporated in the provisions of the Merchant Marine Act, it might be commenced within two years after the cause of action accrued, irrespective of the state statute.
The respondent contends, on the other hand, that the suit is not founded on the Merchant Marine Act and its provisions therefore have no application; and that, in any event, § 6 of the Employer's Liability Act is not incorporated in the Merchant Marine Act and does not determine the period of time within which an action may be commenced in a state court.
It is settled by the decision in Panama Railroad v. Johnson, 264 U.S. 375, that § 33 of the Merchant Marine Act is an exercise of the power of Congress to alter or supplement the maritime law by changes that are country-wide and uniform in operation; that it brings into the maritime law new rules drawn from the Employer's
1. The present suit is not brought merely to enforce the liability of the owner of the vessel to indemnity for injuries caused by a defective appliance, without regard to negligence, for which an action at law could have been maintained prior to the Merchant Marine Act, Carlisle Packing Co. v. Sandanger, 259 U.S. 255; and we need not determine whether if it had been thus brought under the old rules, the state statute of limitations would have been applicable. See Western Fuel Co. v. Garcia, 257 U.S. 233. Here the complaint contains an affirmative averment of negligence in respect to the appliance. And, having been brought after the passage of the Merchant Marine Act, we think the suit is to be regarded as one founded on that Act, in which the petitioner, instead of invoking, as he might, the relief accorded him by the old maritime rules, has elected to seek that provided by the new rules in an action at law based upon negligence — in which he not only assumes the burden of proving negligence, but also, under § 3 of the Employers Liability Act, subjects himself to a reduction of the damages in proportion to any contributory negligence on his part. This conclusion is in harmony with the Panama Railroad Case, pp. 382, 383, in which the complaint charged that the
2. It is clear that the state courts have jurisdiction concurrently with the federal courts, to enforce the right of action established by the Merchant Marine Act as a part of the maritime law. This was assumed in Re East River Co., 266 U.S. 355, 368; and expressly held in Lynott v. Transit Corporation, supra, affirmed, without opinion, in 234 N.Y. 626. And it has been implied in various decisions in the District Courts involving the question of the right to remove to a federal court a suit that had been commenced in a state court.
By a provision of the Judiciary Act of 1789, now embodied in § 24, subd. 3, and § 256, subd. 3 of the Judicial Code, giving District Courts original jurisdiction of civil causes of admirality and maritime jurisdiction, there is saved to suitors in all cases the right of a common law remedy where the common law is competent to give it. In Chelentis v. Steamship Co., 247 U.S. 372, 384, where the suit had been commenced in a state court and removed to the federal court, it was said that, under this saving clause, "a right sanctioned by the maritime law may be enforced through any appropriate proceeding recognized at common law." And the jurisdiction of the state courts to enforce the new common law right made a part of the maritime law, is necessarily affirmed by the provision contained in § 6 of the Employer's Liability Act
3. This brings us to the question whether a suit brought in a state court to enforce the right of action granted by the Merchant Marine Act may be commenced within two years after the cause of action accrues, or whether a state statute fixing a shorter period of limitation will apply. Section 6 of the Employer's Liability Act provides that "no action shall be maintained under this Act unless commenced within two years from the day the cause of action accrued." This provision is one of substantive right, setting a limit to the existence of the obligation which the Act creates. Atlantic Coast Line v. Burnette, 239 U.S. 199, 201. And it necessarily implies that the action may be maintained, as a substantive right, if commenced within the two years.
The adoption of an earlier statute by reference, makes it as much a part of the later act as though it had been incorporated at full length. Kendall v. United States, 12 Pet. 524, 625; In re Health, 144 U.S. 92, 94; Interstate Railway v. Massachusetts, 207 U.S. 79, 85. It brings into the later act "all that is fairly covered by the reference," Panama Railroad Case, p. 392; that is to say, all the provisions of the former act which, from the nature of the subject-matter, are applicable to the later act. It is clear that the provision of the Employer's Liability
We conclude that the provision of § 6 of the Employer's Liability Act relating to the time of commencing the action, is a material provision of the statutes "modifying or extending the common law right or remedy in cases of personal injuries to railway employees" which was adopted by and incorporated in the Merchant Marine Act. And, as a provision affecting the substantive right created by Congress in the exercise of its paramount authority in reference to the maritime law, it must control in an action brought in a state court under the Merchant Marine Act, regardless of any statute of limitations of the State. See Arnson v. Murphy, 109 U.S. 238, 243.
The judgment of the Supreme Court of California is reversed, and the case remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.