HAND, Circuit Judge.
The libellant has moved for a rehearing upon our ruling that he did not elect to sue "in rem" until after we had suggested it to him at the end of our opinion. We have granted a rehearing on that issue, and, as will appear below, we think that there was enough evidence to support an "election." Moreover, since the merits of the claim of a lien against the ship had not been at issue on the appeal, we have felt obliged to allow briefs to be filed on that issue also, and therefore the appeal comes before us in these two aspects. First, we will say why we think that the suit may stand as one "in rem"; and then we will take up the merits.
The libel, filed on April 1, 1952 — which was not in the printed record — alleged first that the ship "is now or" (is) "about to come within the jurisdiction of the United States and this Honorable Court"; and, second that the libellant resided and was domiciled "within the jurisdiction of this Honorable Court." The second allegation was false, as appears from the libellant's answer to interrogatories that he had lived for fifteen years in Brooklyn; but the answer, filed in July admitted that the "vessel from time to time has come within the jurisdiction of the United States and the Southern District of New York," which was not only enough, independently of the allegation of residence, to allow the suit to proceed "in personam," but also enough to allow it to proceed "in rem," if the libellant so elected "in the libel."
The question here is therefore whether the allegation present in the libel as to the whereabouts of the ship may be treated as an election under § 743. It is true, as we have just said, that that allegation would have supported the venue of the suit as one "in personam" in the Southern District of New York, if the libellant failed to prove residence in that district, as he might well apprehend that he would. However, as such an alternative support for venue the allegation need only have been that the ship was, or would be, within the district; it was not necessary to add that she was, or would be, within the United States. We should indeed disregard the addition if it could have had no independent function, for the Southern District of New York obviously is in the United States; but not only was it wholly redundant to the venue of the suit regarded as one "in personam," but it was essential to the jurisdiction of the court in a suit "in rem," as the Supreme Court held in Blamberg Bros. v. United States, 260 U.S. 452, 43 S.Ct. 179, 67 L.Ed. 346. The Court in Nahmeh v. United States, supra, 267 U.S. 122, 45 S.Ct. 277, did indeed hold that we had been mistaken in The Isonomia, 2 Cir., 285 F. 516, in supposing that the ship must be within the district, but it left standing the statement that for jurisdiction "in rem," she must be somewhere within the United States.
So it follows that the first allegation of the libel combined an allegation, necessary to jurisdiction "in rem," but otherwise completely redundant, with another allegation necessary to venue both "in rem" and "in personam." That we think may serve as an "election" without overruling our decision in Schnell v. United States, supra, 166 F.2d 479. True it is that the libellant almost certainly could not have had this in mind when he filed the libel, but for the reasons just given we are not disposed to defeat the suit on that account. We do not forget that the change has been asserted more than two years after the claim arose: and we need not say whether that might not have been too late, if the claim based on a lien, was upon a different "cause of action" from the "cause of action" "in personam." Since, however, in either event the injury was the same, the claims are the same, though each depends upon a different congeries of "operative facts."
The claim is based upon the theory that, as soon as the wrong hatch cover was placed over the "pad-eye" the ship became pro tanto unseaworthy, and that, when the libellant stepped upon it and it gave way beneath him, he came within the decision of the Supreme Court in Seas Shipping Company v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, which extended the doctrine of The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, to longshoremen, while loading or discharging a ship. The respondents answer that a ship's seaworthiness has from time immemorial been measured by her fitness for the service in hull, gear and stowage, that in all these respects the ship at bar was well provided, and that the libellant's injuries were due solely to the negligence of himself, or his companion, Di Donna, or both, in selecting the wrong hatch cover to place over the "pad-eye." It is indeed true that to constitute unseaworthiness the defect must be in the ship's hull, gear or stowage, and even as to these she need not be perfectly, but only "reasonably," fit for her service.
It would be futile to try to draw any line between situations in which the defect is only an incident in a continuous operation, and those in which some intermediate step is to be taken as making the ship unseaworthy. Nevertheless, it is necessary to separate the two situations, even though each case must turn on its particular circumstances. In the case at bar although the libellant and his companion, Di Donna, had been those who laid the wrong hatch cover over the "pad-eye" only a short time before he fell, we think that enough time had elapsed to result in unseaworthiness. The cover was one of two or three that they had already put in place on the after section of the hatch; it had become part of the platform across which the two
The Court recently reaffirmed this doctrine in Alaska S. S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, and we have since followed suit in Poignant v. United States, 2 Cir., 225 F.2d 595. Seas Shipping Co. v. Sieracki, supra, also held that the contributory negligence of a seaman is not a defense to an action based on the ship's unseaworthiness; although apparently it is a proper factor in fixing the amount of the recovery. Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. Be that as it may, Judge Ryan expressly found that the libellant was free from negligence, and the respondents have not challenged the finding.
The respondents also argue that there can be no maritime lien without a liability "in personam" for which it is security; and that, since we have found them free of personal liability, because the unseaworthiness arose after the demise, no lien can be imposed upon the ship. They cite as an authority for this some passages from The Western Maid, 257 U.S. 419, 42 S.Ct. 159, 66 L.Ed. 299; but the issue there was altogether foreign to the case at bar. All that the Supreme Court held was that since the United States had never consented to assume any liability for the torts of its agents, no maritime liens for collision could arise against ships owned by it, or demised to it, which could be enforced after the ships had passed to private persons, or after the demises had come to an end. In other words, the immunity of the United States extended not only to direct suits against itself, but to property that it owned absolutely, or as demisee, for conduct that, if committed by private persons, would have made them, or the property liable. It is still true that ships of the United States are as immune from maritime liens as they were before the Suits in Admiralty Act was passed, but § 743 gives relief "in personam" "wherever it shall appear that had the vessel or cargo been privately owned and possessed a libel in rem might have been maintained." Therefore, we are to decide whether a suit will lie "in rem" by precisely the same rules as though only private persons had been concerned in the event.
That does not indeed answer the question whether a maritime lien can be imposed upon a ship for a claim on which no jural person is liable "in personam."
The decree will be reversed and the cause remanded with directions to enter a decree for the libellant for $55,000 with costs.
Decree reversed, cause remanded for further proceedings in accordance with the foregoing opinion.
SWAN, Circuit Judge (dissenting).
I agree with so much of my brothers' opinion as holds that there was an election to sue in rem. I am unable to agree with their decision on the merits.
The libel charged that Grillea was injured by reason of "negligence of the respondents, and the unseaworthiness of the vessel." Judge Ryan stated the question of law presented by the case as follows:
He found as facts that safe and adequate hatch covers were provided by the shipowner and that the unsafe condition "arose solely by reason of the negligent handling of these otherwise safe hatch covers." My brothers accept these findings of fact and apparently agree with Judge Ryan's conclusion that the demisor was not liable in personam for the negligence of the longshoremen employed by the demisee. But they hold that the unsafe condition created by such negligence rendered the ship unseaworthy, even though the misplacing of the hatch board occurred "as an incident in a continuous course of operation" in which the plaintiff and his fellow longshoremen were engaged, namely covering the hatch. The long recognized distinction between injuries caused by unseaworthy gear and injuries caused by improper use of proper gear has not, in my opinion, been completely wiped out by the Supreme Court decisions in Sieracki and Petterson. It has recently been applied by this court and by the Ninth Circuit. Berti v. Compagnie de Navigation Cyprien Fabre, 2 Cir., 213 F.2d 397; Manhat v. United States, 2 Cir., 220 F.2d 143, certiorari
On Petition by the Respondents for a Rehearing.
The respondents are right in saying that it was not the libellant and DiDonna who misplaced the cover that later rocked and made the libellant fall. This was misplaced by two other members of the same gang before the libellant and DiDonna walked over it. It is impossible to see what conceivable difference this can make in the result; indeed, if anything, it confirms our ruling.