ending July 2d, and on July 10th he again received $12.65, and gave a receipt in the identical form with the above, with the added words:

"And in consideration thereof, I hereby release the steamer Coaster and owners from all further liability for said injury."

When receiving these various payments he was told:

"This is what you get under the compensation law."

When he signed the final receipt and release, he says that he did not know there was any difference between it and the receipts that he had previously signed; that he did not read them over. After the last payment, however, they told him that that was all, and that he did not have to come back any more. He then went immediately to see Capt. Higgins again, and asked of him:

"What are you going to do with my case? I am not properly fixed, and I have got to have something done to my head, so I will be the same as before; you have got to give me something for the time I was ashore."

Capt. Higgins said:

"Well, I couldn't do nothing for you; I got my men insured; it is not in my power."

And he sent him back to the insurance company, where he was again told that he was finished in that office, and that they had nothing to do with him any more. At no time was he told that he was getting any pay for the sufferings he had endured, but he was several times told, to use his own words:

"They just told me I got my compensation, what I was supposed to get by the law."

There is no claim that any fraud was practiced on him, nor any proof that he did not know what was meant by "compensation money,' or by "this is what you get under the compensation law." The compensation law referred to is the California Workmen's Compensation Act, which provides for a comprehensive scheme for the compensation of employés injured in the course of their employment, without regard to any question of negligence on the part of the employer. The amount of such compensation is a certain percentage of the average weekly earnings of the employé, to be paid during the period of disability. The amount received by libelant was correctly estimated for the period covered by the payments in accordance with the provisions of this act, and payments were stopped when he could no longer furnish a certificate of disability from the doctor. The act in question provides that:

"Liability for the compensation provided by this act, in lieu of any other liability whatsoever to any person, shall, without regard to negligence, exist against an employer for any personal injury sustained by his employés arising out of and in the course of the employment. Where such conditions

*

of compensation exist, the right to recover such compensation pursuant to the provisions of this Act, shall be the exclusive remedy against the employer for the injury." St. 1913, p. 283, § 12, as amended by St. 1915, p. 1081, § 2.

The defense to this action is twofold: (1) That libelant, having accepted compensation under the California statute, cannot now claim damages for the same injury in the admiralty court. (2) That for a

fair consideration, and without any fraud practiced upon him, he has released respondents from all further liability.

[1-3] The question of the applicability of the Workmen's Compensation Acts of the various states to seamen injured through the negligence of their employers is one that has not yet been definitely settled. The Supreme Court of California has held that the act under consideration does apply to seamen, so that libelant, so far as the California tribunals are concerned, had the undoubted right to claim and receive the compensation for which the act provides. It is to be noted, however, that he himself did not make his selection of remedies. He called on Capt. Higgins and asked "what they were going to do for him," and was by the captain sent to the insurance brokers, who applied to his case the provisions of the California law. He did not go into any California tribunal and there have his rights determined, but they were determined for him by the insurance brokers. There being no proof to the contrary, he must be presumed to have known the provisions of the law under which he was receiving the various payments; and if the payments do represent the full measure of respondents' liability under that law, I do not think libelant, after exhausting his claim for compensation, in the face of the statutory declaration that "the right to recover compensation under the provisions of this act shall be the exclusive remedy against the employer for the injury," could be permitted thereafter to claim damages for the same injury. But as above stated the amount of compensation to which he was entitled was never fixed by any tribunal, and never by any agreement between the parties. So long as they paid him, he accepted the payment; when they ceased to pay him he immediately claimed:

"I am not properly fixed, and I have to have something done to my head, so I will be the same as before."

The evidence shows that he shipped on the steamer Helaine on July 19th and was compelled to leave her on August 2d because he could not stand the work; that when he bent down his head ached and he got dizzy and his nose started to bleed. He then shipped on the Willamette on August 20th, and made one trip on her, and was compelled to leave her for the same reason. He remained ashore about a month, was again treated by the doctor, and then shipped on board the Vanguard, where he worked for about six weeks. He then remained on shore for five or six weeks, because of pains in the head, and then shipped on the Alcatraz, which he was compelled to leave because, as he testified:

"I had headaches; I could not stand hard work; it affected me too much." At the time of the trial on March 12, 1917, he testified:

"I get headaches sometimes if I bend over; if I talk much, like now, I get a headache. I have got a headache right now; funny feelings in my head you know, kind of humming in there; sometimes in the evening I get a pain like somebody shooting a knife right across my right eye."

I think it is fairly evident that libelant did not receive the full amount of compensation to, which he was entitled, even under the California act, when he accepted the four payments of $12.65, amounting in all to $50.60, even if we add thereto the amount, $15.25, paid by the

241 F.-46

owners to his doctors. The act provides that, if the accident causes temporary total disability, the injured employé shall receive 65 per cent. of his average weekly earnings during the period of such disability, and, if the accident causes temporary partial disability, 65 per cent. of the weekly loss in wages during the period of such disability. He has received only 65 per cent. of his earnings for a period of four weeks, although his inability to perform the work to which he was accustomed has endured much longer. My conclusion on this branch of the case is that libelant is not precluded from prosecuting this action by reason of his having accepted the compensation paid him, because he did not receive all the compensation to which he was entitled, and because the amount to be received by him was neither fixed by any tribunal nor by agreement, but solely by the insurance brokers. Nor is he precluded by the acquittance which he signed at the time of the last payment, because he supposed he was only signing a receipt for the money then received, and had no intention of releasing the ship or its owners from further liability. The best evidence of this is the fact that he immediately again went to the owners from the office of the insurance brokers, upon being told that he need not come there again, and made complaint that he was not yet well, was not yet "properly fixed," and asked, "What are you going to do with my case?" Releases by seamen are never conclusive, except when made knowingly and intentionally, and with a full understanding of the situation.

[4, 5] Respondents, and very properly, urge upon the consideration of the court the uncertainties and injustices to which shipowners may be subjected if they are compelled to answer in the admiralty court after having paid to an injured employé the compensation provided for by the Workmen's Compensation Act. I am of the opinion, however, that this act cannot and does not deprive the seaman of his right of action in the admiralty court for damages for injuries caused by the negligence of the shipowner in providing defective appliances. But if the injured seaman shall, as he may, subject himself to the state tribunals, and claim and receive the amount awarded under the act, or if by agreement, fairly entered into, the amount to be paid under the act is fixed, and he accepts it with full knowledge of the extent of his injuries, he should not later be permitted to maintain an action for the same injuries. But where, as here, the amount has been fixed by the employer, and not by any tribunal or agreement, and is not adequate, the seaman may pursue his remedy in the admiralty, and, if successful, the amount already received by him will be credited upon the amount of the judgment entered.

In the present case the libelant for his injuries will be awarded the sum of $1,200, and for wages the sum of $9.16, making a total of $1,209.16, together with costs of suit. Upon this amount will be credited the sum of $50.60 already received, and judgment will be entered for the sum of $1,158.56 and costs.

1. ALIENS

In re JONASSON.

(District Court, D. Maryland. April 28, 1917.)

61-NATURALIZATION-PERSONS ENTITLED-ALIEN ENEMIES.

As bearing on the right to naturalization, a person born in Schleswig after its annexation by Prussia is a German subject and an alien enemy, though of Swedish and Danish descent.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. §§ 119-122.]

2. ALIENS 61-NATURALIZATION-PERSONS ENTITLED-ALIEN ENEMIES. Rev. St. § 2171 (Comp. St. 1916, § 4362), first passed in 1802, provides that no subject of any country with which the United States is at war at the time of his application shall be admitted to citizenship. A further provision, adopted in 1813, authorized the naturalization during the continuance of the then war with Great Britain of persons who had made their declaration of intention before the breaking out of such war. When the law was adopted an oral application was made in open court and was then acted upon, but under the present law a petition must be filed on which the court may not act for at least 90 days. Held, that such petition is not the application contemplated by the statute, and an alien enemy may not be naturalized though his petition was filed prior to the declaration of war between his country and the United States.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. §§ 119-122.]

Application by Peter Christian Jonasson for naturalization. Petition denied.

ROSE, District Judge. [1] The applicant for naturalization was born in 1882 in Schleswig. He came into the world a German subject because as a sequel to the war of 1864 Prussia had annexed his birthplace. While his father was a Swede, his mother a Dane, and he in blood and sympathy is Scandinavian, not German, he is in law a subject of Wilhelm II, German Emperor, and as a legal consequence, since the 6th instant, an alien enemy.

[2] Does the law permit his naturalization? By an act first passed in 1802, c. 28, 2 Stat. 153, now forming part of section 2171 of the Revised Statutes (Comp. St. 1916, § 4362) Congress has declared that no alien who is a native, citizen, denizen, or subject of any country, state or sovereignty with which the United States shall be at war at the time of his application, shall be then admitted as a citizen of the United States. At that time and for 104 years thereafter, application for admission to citizenship was made orally in open court, and was then and there acted upon. The very statute now to be construed recognized this practice by requiring the applicant, at the time of his application to be admitted, to take the naturalization oath before the court. There can be no question as to what Congress in 1802 had in mind. It wished to forbid the naturalization of alien enemies.

In 1906 the naturalization procedure which had been followed for so many years was radically changed, and made far more formal. One who has previously declared his intention to become a citizen, and wishes to become one in fact, is now required to file in the clerk's office a somewhat elaborate petition which must be verified by his affida

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

vit and that of two other persons. It may not be acted upon by the court until at least 90 days have elapsed. Is this petition the application within the meaning of the act of 1802, so that if the petitioner was then an alien friend he may be naturalized after war has been declared between his country and this? Within the last few days in the case of United States v. Meyer, the United States Circuit Court of Appeals for the Second Circuit has answered this query in the affirmative. That decision is not technically binding in this circuit, yet even though I find my own views to the contrary supported by the dissenting opinion of Judge Hough, it is only after great consideration that I can justify myself in declining to follow it. I have no doubt that what Congress, 115 years ago, wished to prevent was the naturalization of subjects of powers with which we were then at war. Under the practice then prevailing this end could be as well attained by saying that no one should be naturalized upon an application made in war time as it could be by the use of any other language. The act says, in effect, that no one who was an alien enemy at the time of his application shall be then admitted. The application and the admission are spoken of as simultaneous, as they in fact were then and for more than a century afterwards. The fact that in 1906 Congress saw fit to provide a more elaborate system of naturalization procedure does not even tend to show that it changed its mind as to the unwisdom of naturalizing alien enemies.

It is true that in 1813 Congress provided that persons who had made their declaration of intention before the breaking out of the then existing war with Great Britain might be naturalized during the continuance of that war. The Circuit Court of Appeals for the Second Circuit thought this indicated that the federal Legislature had altered its views as to the fundamental question of national policy involved. Is it not more in harmony with the ordinary rules of statutory construction to conclude that Congress merely wished, because of special circumstances then existing, to except that particular war from the rule which it still wished ordinarily to prevail?

Naturalization confers privileges and imposes obligations. Congress may have forbidden naturalization during war time of the subjects of our enemies because it did not think it altogether safe for us then to give them the rights of citizens. If such was its dominant purpose, it may be argued that all it wished to do was to make sure that no alien enemy should become a citizen unless he had sought that privilege before he could see that we would speedily be at war with the land of his nativity. If so, it may be said that the important date would be that upon which he asked for his final papers, rather than that upon which the court granted them. Even so, it may be answered that an alien does not become a citizen until he takes the naturalization oath. Before his status is thus definitely changed he is at liberty at any time. to abandon the prosecution of his petition. Until that moment, whether he shall or shall not go any further with it is absolutely within his control. Among the petitions assigned for hearing on the same day with. that now under consideration, was one of an educated gentleman, a clergyman of the Roman Catholic Church. He is a German subject.