The Arizona

        Chas. A. Wallace, of Seattle, Wash., for plaintiff.

        Ralph S. Pierce and Edmund Stafford, both of Seattle, Wash., for defendants.

        Plaintiff, administratrix of the estate of Mario Anelich, sued in the state court to recover for his death alleged to have been caused by the negligence of the defendants Antone Mardesich and Peter Mardesich-- alleged respectively to be the owner and master of the above-named fishing vessel-- and further because of its unseaworthiness, the alleged negligence including a failure on the part of the defendants to give the deceased prompt medical care and attention after his injury.

        It is alleged that the deceased was a member of the crew of said vessel, and was engaged in and about the performance of his duties as such on the 1st day of August, 1933; that on said day he received injuries while handling a purse line of a purse seine being hauled in by means of a winch on said vessel.

        The prayer of the complaint is that the court issue a show cause order requiring defendants and said vessel to show cause why a receiver should not be appointed for the vessel; that the sheriff be appointed receiver; that plaintiff have and recover from the defendants a certain amount; that the vessel, her engine, hull, tackle, nets, seines, apparel and furniture, be condemned and sold to satisfy the claim lien and judgment of the plaintiff, and that plaintiff have such other and further relief as to the court seems just and equitable.

        The record on removal discloses the service, upon certain of the persons named as defendants, of summons and order to show cause, but shows no further action in so far as the respondent vessel is concerned.

        Upon the petition of the defendant Antone Mardesich, the cause has been removed to this court, the petition for removal alleging:

        'I. That your petitioner is one of the defendants in the above entitled action, and was at the beginning of this action and ever since, and still is, That said above entitled action is of a civil nature in equity. That this suit arises under the constitution and laws of the United.States, in that this case involves a Federal question, that is, whether or not plaintiff can establish a lien against the purse seine fishing vessel, 'Arizona,' her engine, hull, tackle, nets, seines, apparel and furniture, for a maritime tort, which it is alleged caused the death of Mario Anelich. That said action is a proceeding in rem, which is exclusively within the jurisdiction of the Admiralty Court. That diversity of citizenship exists as between the party plaintiff and the party defendant.'

        An appearance for all defendants has been entered in this court. This the court concludes is an appearance for the men and their wives named as defendants.

        The plaintiff has moved to remand the cause, upon the ground that the same is a suit arising under title 46 USCA § 688, and is not removable.

        CUSHMAN, District Judge.

         In so far as the suit is one arising under title 46 USCA § 688, it is not removable. Title 45 USCA § 56; Title 28 USCA § 71. The citation of authority to this effect is unnecessary.

        While jurisdiction over the vessel may not have attached by any actual seizure, the question of whether there was jurisdiction in the state court concerning the subject-matter of the suit as touching the vessel should be first considered. In the brief filed upon the part of the defendants appear the following statements:

        '* * * Since the complaint alleges a maritime tort which occurred upon the navigable waters of Puget Sound in the State of Washington, we believe that the action as drawn is exclusively within the jurisdiction of the Admiralty Court.         '* * * It was decided in the case of The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397, that the provision saving common law remedies does not include proceedings in rem.         '* * * It has been held that whenever any lien is given by a State statute for a cause of action cognizable in admiralty, either in rem or in personam, proceedings in rem to enforce such lien are within the exclusive jurisdiction of the admiralty court and the State statute to the extent that it provides for a proceeding in rem and for a sale of the vessel is unconstitutional and void. * * * '

         There being no jurisdiction in the state court over the suit in so far as it is one in rem against the vessel, there was nothing in the state court to remove to this court, and the order, in so far as the vessel is concerned, should be one of dismissal without prejudice for want of jurisdiction. Venner v. Mich. Cent. R. Co., 271 U.S. 127, 46 S.Ct. 444, 70 L.Ed. 868; Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 42 S.Ct. 349, 66 L.Ed. 671; General Investment Company v. Lake Shore & M.S.R. Co., 260 U.S. 261, 286-288, 43 S.Ct. 106, 67 L.Ed. 244.

         The suit in rem being dead in the state court, it had no life with which to hold in this court the suit in personam, the removal of which is forbidden. To the extent the suit is one in personam, it will be remanded.

        Any order hereon will be settled upon notice, and the clerk is directed to notify the attorneys for the parties of the foregoing ruling.