Wenzler v. Robin Line S.S. Co., 6016.

• Decision Date: 27 December 1921
• Docket Number: 6016.
• Court: U.S. District Court — Western District of Washington
• Parties: WENZLER v. ROBIN LINE S.S. CO.

277 F. 812

WENZLER v. ROBIN LINE S.S. CO.

No. 6016.

United States District Court, W.D. Washington, Northern Division.

December 27, 1921

Walter S. Fulton and Ben L. Moore, both of Seattle, Wash., for plaintiff.

Bogle Merritt & Bogle, of Seattle, Wash., for defendant.

CUSHMAN District Judge.

The plaintiff, a citizen of the state of Washington, sues the defendant, a corporation of California, for $52,350. The complaint avers that plaintiff was a seaman in the employ of the defendant on the steamship Robin Gray; that, in the harbor of Havana, Cuba, plaintiff, on June 24, 1920, while painting the bulkhead above the engine room of said steamship, from a scaffold upon which he had been ordered by the first engineer to perform such service, fell by reason of defects in the scaffold, which defects are charged to defendant's negligence. For the injury sustained, this suit is brought.

The cause was removed to this court from the state court and plaintiff now moves to remand to the state court on the ground that removal is expressly prohibited by section 6 of the Railway Employers' Liability Act as amended (Comp Stats. Sec. 8662) and is also forbidden by section 28 of the Judicial Code (Comp. St. Sec. 1010), which provision plaintiff contends, is expressly adopted by section 33 of the Jones Act (Merchant Marine Act of 1920; 41 Stats.p. 988) amending section 20 of the La Follette Act (38 Stats.p. 1164 (Comp. St. Sec. 8337a)).

Before considering the question of whether the denial of the right of removal in the Employers' Liability Act has been embodied in the Jones Act, it will first be necessary to determine whether-- plaintiff's injury having been sustained in Cuban waters-- the questions involved will be determined under the Cuban law or under the Jones Act. In the solution of this question, cases of collision, such as involved in Smith v. Condry, 42 U.S. (1 How.) 28, 11 L.Ed. 35, and The Eagle, 75 U.S. (8 Wall.) 15, 19 L.Ed. 365, have no application, for they are not concerned with the 'internal discipline or management of the ship.'

It cannot be denied that, if considered apart from the ruling itself certain language used by the court in The Hanna Nielsen (D.C.) 267 F. 729, 732, lends support to defendant's contention, yet that which was actually decided in that case was that, libelant having repudiated the law of the flag-- that is, the law of Norway-- and having failed to prove as a fact the British law, on which he relied, the latter law being that of the ship's harbor at the time of the injury, recovery of full indeminity would be denied libelant. That the effect for which contention is now made is not to be given to the language so used is further shown by a consideration of the cases cited in support of the language used. These cases are-- The Cuzco (D.C.) 225 F. 169; The Belgenland, 114 U.S. 355, 5 Sup.Ct. 860, 29 L.Ed. 152; Chelentis v. Luckenbach, 247 U.S. 372, 38 Sup.Ct. 501, 62 L.Ed. 1171; The Lamington (D.C.) 87 F. 752; The Scotland, 105 U.S. 24, 26 L.Ed. 1001.

The Belgenland, 114 U.S. 355, 5 Sup.Ct. 860, 29 L.Ed. 152, so cited, was a case of collision, not in a harbor, but on the high seas, between a Norwegian bark and a Belgian steamship. The bark was sunk and her master, on behalf of the owner of the bark and surviving crew, libeled the steamship in an American port.

Chelentis v. Luckenbach, 247 U.S. 372, 38 Sup.Ct. 501, 62 L.Ed. 1171, was a case of a seaman on board an American vessel owned by a Delaware corporation, who was injured, not in territorial waters, but upon the high seas, because of an alleged improvident order given by an officer of the vessel. Full indemnity was sought under section 20 of the La Follette Act (38 Stats. 1164), which the court limited in its application to the question of fellow servant, and held did not in any way affect the measure of relief to be afforded according to the rule announced in The Osceola, 189 U.S. 171, 23 Sup.Ct. 483, 47 L.Ed. 760.

In The Lamington (D.C.) 87 F. 752, a seaman on a British vessel was injured on the high seas because of a faulty rope. The libel in rem was dismissed, because the British law gave no lien for the injury.

In The Scotland, 105 U.S. 24, 26 L.Ed. 1001, the case was one of collision on the high seas between a British ship and a ship of the United States. The law of the United States was held to be controlling, as the ships were of different nationalities and the law of the forum applied.

In the Cuzco (D.C.) 225 F. 169, the injured libelant was a stevedore, and not a seaman. Judge Neterer did not in that case refuse to enforce the law of the ship's flag. He held, as shown at page 175, that neither the law of British Columbia, in a harbor of which the ship was lying at the time of the injury, nor the law of Norway, that being the nation of the ship's flag, gave a maritime lien or right of action in rem to an injured stevedore. The fact that the law of Norway gave no such lien is not disclosed by the syllabus in that case.

It may be further said that the same reasons do not obtain for holding a stevedore, hired in a port foreign to the ship's flag, he being, presumably, ignorant of the laws of such flag, to have agreed to such law when, to perform a brief and temporary service, he steps on shipboard in a harbor of the country of which he is a citizen, or that in which he is sojourning. He has signed no articles to live with the ship and serve her. While the relation of the stevedore to the ship may, in a sense, have to do with the internal management and discipline of the vessel, it is in no sense the intimate and mutually dependent relation existing between a seaman and his ship. Of the relation of a seaman to his ship, it is said in Re Ross, 140 U.S. 453, at pages 473 and 474, 11 Sup.Ct. 897, at page 903 (35 L.Ed. 581), quoting with approval the then Secretary of State, Mr. Evarts:

' * * * That principle is that, when a foreigner enters the mercantile marine of any nation and becomes one of the crew of a vessel having undoubtedly a national character, he assumes a temporary allegiance to the flag under which he serves, and in return for the protection afforded him becomes subject to the laws by which that nation in the exercise of an unquestioned authority, governs its vessels and seamen. ' * * * This system of law attaches to the vessel and crew when they leave a national port, and accompanies them around the globe, regulating their lives, protecting their persons, and punishing their offenses. The sailor, like the soldier during his enlistment, knows no other allegiance than to the country under whose flag he serves."

In none of the foregoing cases was the question considered or decided between the law of the ship's flag and the law of the ship's harbor at the time of injury. It is clear that these cases lend no support to the doctrine that the locus of the injury was the harbor and not the ship.

In the case of The Hanna Nielsen, the lower court refused indemnity for the injury, but ordered a reference for the ascertainment, under the rule in The Osceola, 189 U.S. 171, 23 Sup.Ct. 483, 47 L.Ed. 760, of the amount to be allowed for maintenance and cure. The libelant appealed. The lower court was sustained in denying indemnity, but the decree was modified, so as to deny maintenance and cure, in addition to that already received by libelant, and the libel dismissed. 273 F. 171.

It is deemed significant that Judge Hough, in this case, in disposing of the question of the law applicable, refrains from either finding that the cause sounded in tort or that the British law, the law of the harbor, was controlling. The court in that connection said:

'If the suit be regarded as sounding in tort, then the trial court had no jurisdiction, unless the tort were maritime, and the lex loci delicti applies. Whether the locus is to be regarded as on a Norwegian ship, and therefore Norwegian, or in Gibraltar harbor, and therefore British, is a question into which it is not necessary to go, further than to note that under no circumstances shown here can the law of the United States apply. The sole function of our courts is to furnish a remedy while enforcing by comity the substantially applicable law. As pointed out above, libelant repudiates Norwegian law as furnishing any ground for recovery; that he was right in so doing the evidence conclusively proved.' 273 Fed.at pages 172 and 173.

In the conclusion reached in the instant case, the court has been further influenced by the fact that no case has been called to its attention where, for an injury to a seaman occurring on a foreign vessel in an American harbor, an American court has refused to apply, where pleaded and proven, the law of the flag.

In the case of Rainey v. New York & P.S.S. Co., 216 F. 449, 132 C.C.A. 509, L.R.A. 1916A, 1149, the Court of Appeals for the Ninth Circuit, Judge Ross writing the opinion, finds the ship, a British vessel, to have been unseaworthy, and that such condition was the cause of the injury inflicted, resulting in the death, in a Peruvian harbor, of the engineer, an American citizen, signing on in a port of the United States. The decree dismissing the libel was affirmed because, even accepting the libelant's contention that, as an American citizen of the state of Washington, deceased was entitled to invoke its laws, yet, as pointed out by Judge Ross, there is no statute of the United States giving an action for death by wrongful act, and the statutes of the state of Washington, giving such a right, have force only within the confines of the state. While reaching this conclusion, the court in that case, in disposing of the question, also said:

'In the libel the cause is designated as one 'of tort, civil and maritime,' and, besides

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