Before MAJOR, Chief Judge, and KERNER and FINNEGAN, Circuit. Judges.
This is a proceeding in admiralty. The appellant, John T. Miller, filed his libel on October 4, 1951. In it he alleged that on December 21, 1944, while he was working as a seaman aboard respondent-appellee's steamer "Robert W. Stewart" he slipped and fell causing injury to his shins, knees and back, and also causing aggravation of pre-existing arthritic conditions. He prayed an award for maintenance and cure expended and to be expended. The libel likewise alleges that the steamer "Robert W. Stewart" was on December 1, 1944, a vessel of the United States of more than 20 tons burden, enrolled and licensed for the coasting trade and employed and engaged in the business of commerce between different places in different states and upon the Great Lakes and their connecting and tributary waters. Relying on the Act of February 20, 1845, 5 Stats. at Large, 726, the libelant demanded a jury trial.
The respondent-appellee, Standard Oil Company, filed exceptions to the libel alleging that it was barred by the statute of limitations; that the alleged cause of action therein referred to was barred by laches; that the alleged cause of action was also barred on the doctrine of res adjudicata, because a prior suit affecting the same cause had been filed by appellant and dismissed for want of prosecution on September 22, 1949. For the fourth and final ground of exception, respondent contended that "libelant requests a jury trial in admiralty, which is contrary to law."
The exceptions based on the statute of limitations, and on the doctrine of laches and of res adjudicata, were overruled by the District Court. However, the exception to libelant's demand for a jury trial was sustained and the respondent-appellee was ordered to file its answer.
After answer was filed, the case came on to be heard by the court sitting in admiralty without a jury, and on May 9, 1952, it was ordered and decreed that the libel be and the same is hereby dismissed on the merits and with prejudice, and that the respondent recover from libelant "for its costs to be taxed by the clerk, and have judgment and execution therefor."
The trial court made detailed findings of fact which included the finding that the injury sustained by the libelant on the steamer "Robert W. Stewart" was not disabling; that the libelant lost no time from his work as a result thereof; that all necessary medical attention was furnished to the libelant without any expense on him by the respondent and by the United States Marine Hospital; that said injury did not cause any disability aggravating a pre-existing arthritic condition, as alleged, and that the alleged cause of action was entirely without merit.
Libelant contends here that the decree is against the greater weight of the evidence. We are convinced that the findings of fact made by the admiralty court are supported by substantial evidence. We can, therefore, only repeat what was said in Koehler v. United States, 5 Cir., 187 F.2d 933-936:
"Hundreds of citations might be given where the rule is categorically stated that on an appeal in admiralty there is a trial de novo; however the qualification of that general rule is just as widely recognized, and that is, that the findings of the district court will be accepted by the appellate court unless clearly against the preponderance of the evidence. Leathem Smith-Putnam Navigation Co. v. Osby, 7 Cir., 79 F.2d 280, 282; Kulack v. The Pearl Jack, 6 Cir., 178 F.2d 154, 155; Great Lakes Towing Co. v. American S.S. Co., 6 Cir., 165 F.2d 368."
The libelant further contends that the court erred in denying his demand for a jury trial. To support this contention he relies upon the Act of February 20, 1845. The history of that act may be found in Gillet v. Pierce, 10 Fed.Cas. page 388, No. 5437.
The Act was passed by Congress in the belief that by the Constitution and Judiciary Act of 1789, 1 Stat. 73, admiralty jurisdiction was limited to tidewaters; and that cases arising on the Great Lakes or their tributaries are cognizable only to common law, and that Congress cannot transfer jurisdiction in such cases "without saving to the parties the right of trial by jury."
However, The Supreme Court in Genesee Chief v. Peck, 12 How. 443, 53 U.S. 443, 13 L. Ed. 1058; and The Eagle, 8 Wall. 15, 75 U.S. 15-25, 19 L. Ed. 365, decided that admiralty jurisdiction of this country was not limited to tidewaters, but on the contrary by force of the Constitution and the Judiciary Act of 1789 admiralty jurisdiction extended to our lakes and navigable waters. The Act of 1845 was considered of no effect in so far as it related to the grant of jurisdiction in admiralty. The Court said:
"From this it followed that at the time of the passage of the act of 1845, the very cases provided for by it, and as to which it assumed to confer jurisdiction upon the admiralty courts as a new jurisdiction, were already cognizable in those courts, and hence that the constitutional provision guaranteeing the right of trial by jury in suits at common law had no application to those cases." 10 Fed.Cas. page 389, No. 5437.
Nevertheless, in the later revisions of the United States statutes, the revisers and Congress have seen fit to retain portions of the Act of 1845. It is incorporated in the Act of June 5, 1948, entitled Judicial Code ...