281 F. 877 (W.D.Wash. 1922), 6676, The West Jester

Docket Nº:6676.
Citation:281 F. 877
Case Date:June 07, 1922
Court:United States District Courts, 9th Circuit, Western District of Washington

Page 877

281 F. 877 (W.D.Wash. 1922)





No. 6676.

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

June 7, 1922

Page 878

Frank E. Hammond, of Seattle, Wash., for libelant.

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

NETERER, District Judge.

This is a proceeding in admiralty to recover indemnity for injury sustained on board ship. Prayer is that the amount be determined, the steamship sold to satisfy the decree; that the judgment be certified for payment as provided by section 8 of the act of Congress approved March 9, 1920 (41 Stat. 527).

The respondents except to the libel and ask that it be stricken, or, in the alternative, all allegations as a basis for indemnity be stricken, on the ground that the libel fails to show that the steamship was unseaworthy, and for the reason that allegations are insufficient to create a claim or cause of action in admiralty, 'because the respondents are not liable on account of negligence of the master, officers, or seamen of said steamship.'

The rule is that the vessel and her owner are liable for indemnity for injuries received by seamen in consequence of unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship. The Osceola, 189 U.S. 158, 23 Sup.Ct. 483, 47 L.Ed. 760. The Supreme Court in Chelentis v. Luckenbach, 247 U.S. 372, at page 381, 38 Sup.Ct. 501, at page 503 (62 L.Ed. 1171), said:

'After reference to article 1, Sec. 8, and article 3, Sec. 2, of the Constitution, we declared in Southern Pacific Co. v. Jensen Co., 244 U.S. 205, 215, 216: 'Considering our former opinions, it must now be accepted as settled doctrine that in consequence of these provisions Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country. * * * ''

The court in The Moses Taylor, 4 Wall. 431, 18 L.Ed. 397, distinguished between a remedy at common law, and a common-law remedy. Prior to enactment of section 33 of the American Merchant Marine Act (41 Stat. 1007), an action at law by an injured seaman did not change his right, which was governed by the maritime law. Hanrahan v. Pac. T. Co. (C.C.A.) 262 F. 951. The impotency of admiralty to give remedies afforded by the common law is recognized by the Congress, and this no doubt inspired section 33 of the American Merchant Marine Act, which provides:

'That 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. * * * '

This section creates a new right, a right at law. The right in admiralty precludes indemnity, and is limited to maintenance, wages, and cure, except for unseaworthiness (The Osceola, supra; Hanrahan v. Pac. T. Co., supra), and the right at law places the seaman in the same relation as a railway employee engaged in interstate commerce. These rights and remedies may not be commingled, but must be asserted in the forum having jurisdiction under the Constitution and acts of Congress. Article 3, Sec. 2, of the Constitution:

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'The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the...

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