Rosalie Laura Peace, Administratrix of the Estate of Thomas Malcolm Peace, Deceased v. Fidalgo Island Packing Company and George Johnson
Opinion
Opinion
Carter, J.
Rosalie L. Peace, appellee, as the personal representative of the deceased fisherman-seaman, commenced an action in the district court claiming in one count, damages for negligence under the Jones Act, 46 U.S.C. § 688 and for unseaworthiness based on Death On The High Seas Act, 46 U.S.C. § 761 , (hereafter DOHSA). Demand for a jury trial was endorsed on the complaint.
The question presented to the district court and here argued in the briefs, is whether appellee is entitled to a jury trial on both of the claims set forth in the complaint.
The district court so held, relying on Gvirtsman v. Western King Co. Inc., (C.D.Calif.1967) 263 F.Supp. 633 , which in a similar situation held a plaintiff was entitled to a jury trial upon both the Jones Act claim and the DOHSA claim. The district court certified the case under 28 U.S.C. § 1292 (b) for an interlocutory appeal.
There is nothing in the present rules of Civil Procedure which grants a trial by jury in an admiralty or maritime claim. Rule 38(e) F.R.Civ.P., expressly so provides. But there is nothing in the Rules which prohibits a trial by jury on joined civil and admiralty claims. Rule 9(h), F.R.Civ.P., which pertains to…