The opinion of the court was delivered by: Sullivan, Chief Judge.
The complaint here seeks to recover under the Jones Act (Title
46 U.S.C.A. § 688ff.) for injuries to a seaman employed as a
member of the crew on defendant's vessel Sierra. It is alleged
that the accident which caused the injuries occurred on the ship
"as it traversed the navigable waters of the United States in
Lake Michigan within the territorial limits and off the shore of
the State of Illinois".
Defendant corporation is a non-resident of Illinois, and
service was made on it by serving the Secretary of State of
Illinois and mailing a copy to defendant. This procedure is
authorized by Ch. 110 Ill.Rev.Stat. 1955, Sec. 263b, which
provides that "* * * the use and operation by any person of a
watercraft in the waters of this State, shall be deemed an
appointment by such person of the Secretary of State, to be his
true and lawful attorney upon whom may be served all legal
process in any action or proceeding against him"; it further
defines "waters of this State" as "the Illinois portion of all
Defendant has moved to dismiss the complaint, asserting first
that the service made under this section was invalid as a
violation of its right to due process under the Fourteenth
Amendment. Its argument in this connection appears to assume that
since Lake Michigan is used for interstate commerce it cannot (as
the brief puts it) "constitute waters of Illinois". This is a
non-sequitur; inter-state commerce may of course pass through
Illinois territory. Its Constitution describes the boundary of
Illinois (Art. I) as the "middle of Lake Michigan" to N latitude
42 degrees and 30 minutes (See Illinois Central R.R. v. Illinois,
1892, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018; and on motion to
dismiss the allegation that the
accident occurred within the "territorial limits" of Illinois
must be accepted.
That being the case, the Illinois statute is operative; and
service of federal process may be made in the manner there
prescribed (Vol. 3 Cyclopedia of Federal Procedure Page 438).
Objections to its constitutionality cannot be sustained. Service
in accordance with similar statutes providing substituted service
on non-resident motorists using the state's highways have
frequently been upheld (Hess v. Pawloski, 1926, 275 U.S. 352, 47
S.Ct. 632, 71 L.Ed. 1091; and cases cited at Vol. 3 Cyclopedia of
Federal Procedure pages 42607); and there is no reason to
distinguish a similar provision for those who use its waterways.
The Illinois statute does not violate the Fourteenth Amendment to
the United States Constitution.
Defendant next points out that the Jones Act provides that
(Title 46 U.S.C.A. § 688) "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", and that it
neither resides nor has its principal office in Illinois. This is
a venue provision which may be waived (United States v. Hvoslef,
1915, 237 U.S. 1, 35 S.Ct. 459, 59 L.Ed. 813), and, under the
analogous law dealing with non-residential motorists, has been
waived by the defendant's use of the waterways of Illinois
(Olberding v. Illinois Cent. R.R., 6 Cir., 1953, 201 F.2d 582).
Defendant further objects that Count II, asking damages for
maintenance and cure, is justiciable only in admiralty and should
not be joined with Count I, which is a claim for damages under
the Jones Act. This is easily cured. After a trial on the
negligence issue, the claim for cure and maintenance will be
submitted to a court as an admiralty tribunal.
Defendant's motion to dismiss is overruled.
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