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VII. PRACTICE AND PROCEDURE - E. Institution of Action

569. Service of process

Where accident for which damages are claimed under 46 USCS Appx section 688 occurred within territorial limits of Illinois, service of federal process may be made in manner prescribed by Illinois statute. Frase v Columbia Transp. Co. (1957, DC Ill) 158 F Supp 858.

Presence of master of vessel touching at Pittsburgh was not such as to make him appropriate agent to receive service of process so as to establish jurisdiction over transitory tort unrelated to activities of master within state of Pennsylvania. Leith v Oil Transport Co. (1962, WD Pa) 210 F Supp 877, affd (CA3 Pa) 321 F2d 591 (disagreed with Pure Oil Co. v Suarez (CA5 Fla) 346 F2d 890, affd 384 US 202, 16 L Ed 2d 474, 86 S Ct 1394).

State court had jurisdiction under 46 USCS Appx section 688 where service was had on steamship company, by delivering summons to its manager in city where it maintained an office and transacted its business. Winfield v United Fruit Co. (1933) 135 Cal App Supp 791, 24 P2d 247, 1933 AMC 1223.

570. Securing costs

28 USCS section 1916 is applicable to action under 46 USCS Appx section 688, and on reversal of judgment for defendant, with remand for new trial, clerk may be compelled to issue mandate without prepayment of costs. Grant v United States Shipping Board Emergency Fleet Corp. (1928, CA2 NY) 24 F2d 812, 1928 AMC 629.

Seaman suing under 46 USCS Appx section 688 for personal injuries caused by failure to furnish safe place to work, must give bond for costs and fees, no Safety Appliance Act being involved. The Bennington (1925, DC Ohio) 10 F2d 799.

Stevedore as "seaman" is not required to secure costs in suit under 46 USCS Appx section 688. Fletcher v Lancaster S.S. Corp. (1935, DC NY) 11 F Supp 704, 1935 AMC 784.

For action by seaman for personal injuries to come within 28 USCS section 1916, prescribing cases in which seaman is exempt from necessity to file security or prepay fees, action must be based upon law for health and safety of seaman; 46 USCS Appx section 688 is such law. Di Stefano v Ropner & Co. (1944, DC NY) 57 F Supp 517, 1944 AMC 1106.

Seaman was not entitled to dismiss suit for negligence under 46 USCS Appx section 688 in which he had not paid costs where he elected to proceed with prior suit in admiralty for negligence. Stalker v Southeastern Oil Delaware, Inc. (1951, DC Del) 103 F Supp 436.

Policy of 46 USCS Appx section 688 and of other laws designed for protection of seamen and to compensate them for injuries sustained in course of their employment should not be thwarted by indirection, as by requiring seaman to furnish bond for costs or else forego compensation. Ganem v Bernuth Lembcke Co. (1948, City Ct) 82 NYS2d 777.

571. Attachment of vessel

Action in personam in admiralty under 46 USCS Appx section 688 may be commenced and maintained in district in which defendant employer does not reside and in which his principal office is not located, by attaching defendant's property and compelling his appearance by writ of foreign attachment, under admiralty rules of venue; phrase "such actions" in venue provision of 46 USCS Appx section 688 has reference to actions on law side of federal courts. Brown v C. D. Mallory & Co. (1941, CA3 Pa) 122 F2d 98.

Proceeding in foreign attachment is not proceeding in rem and may be brought where no lien exists against vessel. The Frieda (1937, DC Pa) 1937 AMC 227.

In action under 46 USCS Appx section 688, right of foreign attachment was not authorized to be issued, and no jurisdiction over defendant corporation, served by foreign attachment, was obtained. The M. E. Farr (1940, DC NY) 38 F Supp 8, 1941 AMC 330.


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