50 SETTLEMENT FOR ACCIDENTS TO AMERICAN SEAMEN

Modification by Statute

The grant given by the Judicial Code enacted in 1789 was the sole
provision on the subject until 1915, when the seamen’s act of that
year (Ch. 153; 38 Stat. 1164, sec. 20) provided:
That in any suit to recover damages for any injury sustained on board vessel
or in its service seamen having command shall not be held to be fellow servants
with those under their authority.
Within the year of this enactment a fireman was injured on the
high seas and charged ‘negligence and an improvident order of a
superior officer.” A common-law action was instituted in the supreme
 court, New York County, N. Y., demanding full indemnity
for injuries sustained. The case was removed to a Federal court on
grounds of diversity of citizenship. There was no charge of unsea~
worthiness, which would base an action for damages under the
maritime law; nor was there any claim made for maintenance, cure
or wages. In other words, maritime rights were remitted and a
common law recovery sought.
Both the trial and appeals courts denied such recovery, and the
case came to the Supreme Court, where the judgment below was
affirmed. (Chelentis». Luckenbach S. S. Co., supra.) It was pointed
out that “the distinction between rights and remedies is fundamental,”
 and that while the saving clause of the Judicial Code permitted
 any “right sanctioned by the maritime law’ to be enforced
“through any appropriate remedy recognized at common law,” the
act of 1915 did not indicate “an intention to give the complaining
party an election” between common law and maritime rights.
“Under the circumstances here presented, without regard to the
court where he might ask relief, petitioner’s rights were those recognized
 by the law of the sea.” The provision against fellow service
as between those in command and those under their authority should
be given ‘‘full effect whenever the relationship between such parties
becomes important. But the maritime law imposes upon a shipowner
 liability to a member of the crew injured at sea by reason of
another member’s negligence (i. e., for maintenance, wages, and cure)
without regard to their relationship; it was of no consequence therefore
 to petitioner whether or not the alleged negligent order came from
a fellow servant: the statute is irrelevant ’

Merchant Marine Act

Passing over two attempts to amend the Judicial Code so as to
permit the application of State compensation laws to localized maritime
 employments, both of which were held to violate the provisions
of the Constitution as to fundamental requirements of uniformity
in maritime law, an effective change is found in a provision of the
merchant marine act of 1920 (ch. 250; 41 Stat. 1007, sec. 33), amending
 the section of the seamen’s act of 1915 above considered. This
amended section applies to “any seamen who shall suffer personal
injury in the course of his employment,” and gives him the option
of suing “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.” Injuries causing death are included.