United States v. Lindgren

• Decision Date: 16 October 1928
• Docket Number: No. 2719.,2719.
• Citation: 28 F.2d 725
• Parties: UNITED STATES v. LINDGREN et al.
• Court: U.S. Court of Appeals — Fourth Circuit

28 F.2d 725 (1928)

UNITED STATES v. LINDGREN et al.

No. 2719.

Circuit Court of Appeals, Fourth Circuit.

October 16, 1928.

Arthur M. Boal, Admiralty Counsel, U. S. Shipping Board, of Washington, D. C. (Paul W. Kear, U. S. Atty., of Norfolk, Va., and H. H. Rumble, Sp. Asst. in Admiralty to Atty. Gen., on the brief), for appellant.

D. Arthur Kelsey and L. B. Cox, both of Norfolk, Va. (Kelsey & Jett, of Norfolk, Va., on the brief), for appellees.

Before WADDILL, PARKER and NORTHCOTT, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a decree in admiralty in favor of the administrator of one C. E. Barford and against the United States as owner of the steamship Hybert, one of the Shipping Board vessels. The suit was commenced by libel in personam, filed under the Suits in Admiralty Act, to recover damages for the death of Barford. The libel alleged that decedent was a seaman employed as third mate on the Hybert, and that his death was caused by the negligence of the officers and employees of the government who had the vessel in charge. There was no allegation, however, that decedent left surviving him any widow or children or parent or next of kin dependent upon him, or that the suit was instituted in behalf of such dependents. An exception was filed to the libel because of the lack of such allegation, and, upon the exception being overruled, it was established upon the hearing that decedent left no dependents and recovery was opposed because of that fact. The District Judge was of opinion, however, that libelant was entitled to recover under the Virginia death statute (section 5786 of the Code of Virginia), and, as dependency is not required for recovery thereunder, he entered a decree for libelant. No question is raised, on the one hand, as to the death of decedent having been caused by the negligence alleged, or, on the other, as to his having left no dependents. The question in the case is whether his administrator is entitled to recover under the statute of Virginia, which does not require a showing of dependency, or whether the right of recovery given by the Merchant Marine Act of 1920 in cases of wrongful death (41 Stat. 1007, 46 USCA 688) is exclusive.

There can be no question that, prior to the passage of the act of 1920, the Virginia statute would have been applicable. Prior to that act there was no liability for wrongful death under the general maritime law, Congress had not legislated upon the subject, and, in the absence of legislation by Congress, courts of admiralty applied the death statutes prescribed by states where death occurred. Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 43 S. Ct. 418, 67 L. Ed. 756; Western Fuel Co. v. Garcia, 257 U. S. 233, 42 S. Ct. 89, 66 L. Ed. 210; Lewis v. Jones (C. C. A. 4th) 27 F.(2d) 72; The Anglo-Patagonian (C. C. A. 4th) 235 F. 92. It is clear that, so long as Congress had not exercised the power given it under the commerce clause of the Constitution to legislate with respect to the liability in such cases, the states might occupy the field; but it is equally clear that, as soon as Congress acted, the legislation of the states was superseded, and that of Congress became supreme and exclusive. Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 317 et seq., 13 L. Ed. 996; County of Mobile v. Kimball, 102 U. S. 691, 698, 699, 26 L. Ed. 236; Morgan's etc., S. S. Co. v. Louisiana, 118 U. S. 455, 464, 6 S. Ct. 1114, 30 L. Ed. 237; Smith v. Alabama, 124 U. S. 465, 473, 8 S. Ct. 564, 566 (31 L. Ed. 508); Second Employers' Liability Cases, 223 U. S. 1, 54, 32 S. Ct. 169, 177 (56 L. Ed. 327, 38 L. R. A. N. S. 44). As was said by Mr. Justice Matthews in Smith v. Alabama:

"The grant of power to Congress in the Constitution to regulate commerce with foreign nations and among the several states, it is conceded, is paramount over all legislative powers which, in consequence of not having been granted to Congress, are reserved to the states. It follows that any legislation of a state, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give way before the supremacy of the national authority."

The situation with respect to the right of recovery in cases such as this is exactly the same as in cases arising out of the death of railway employees while engaged in interstate commerce. Prior to the enactment of the federal Employers' Liability Act (45 USCA ?? 51-59), Congress had left the question of the liability of employers in such cases to be determined by the laws of the several states; but upon the passage of that act it was held that all state laws and rules upon the subject were superseded, and that the rights of parties with relation thereto were to be determined solely by reference to the federal act. Second Employers' Liability Cases, supra; Mich. Cent. R. Co. v. Vreeland, 227 U. S. 59, 33 S. Ct. 192, 57 L. Ed. 417; Gulf, etc., R. Co. v. McGinnis, 228 U. S. 173, 33 S. Ct. 426, 57 L. Ed. 785; N. C. R. Co. v. Zachary, 232 U. S. 248, 256, 34 S. Ct. 305, 58 L. Ed. 591; S. A. L. Ry. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1; In the Second Employers' Liability Cases, Mr. Justice Van Devanter said:

"True, prior to the present act the laws of the several states were regarded as determinative of the liability of employers engaged in interstate commerce for injuries received by their employ?s while engaged in such commerce. But that was because Congress, although empowered to regulate that subject, had not acted thereon, and because the subject is one which falls within the police power of the states in the absence of action by Congress. * * * The inaction of Congress, however, in no wise affected its power over the subject. * * * And now that Congress has acted, the laws of the states, in so far as they cover the same field, are superseded, for necessarily that which is not supreme must yield to that which is."

The Merchant Marine Act of 1920 covered fully the right of the personal representative of a seaman to recover from his employer for personal injury resulting in death. Section 33 of that act (41 Stat. 1007, 46 U. S. C. A. 688) provides:

"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. 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."

As will be seen, the effect of this act was to incorporate into the maritime law the statute applying to injuries to railway employees engaged in interstate commerce. The constitutionality of the statute was upheld in Panama R. Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748; and it was there interpreted as modifying the substantive maritime law so that the rights thereby conferred might be enforced either in a court of admiralty or in a court of law. Answering an argument that the statute was invalid because it restricted the enforcement of the rights conferred to actions at law and thereby encroached upon the admiralty jurisdiction Mr. Justice Van Devanter, speaking for the court, said that if such an interpretation were placed upon the statute a grave question would arise as to its constitutional validity, and that it should be interpreted as...