60 F.2d 793 (9th Cir. 1932), 6698, The City of Vancouver

Docket Nº:6698.
Citation:60 F.2d 793
Case Date:August 15, 1932
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 793

60 F.2d 793 (9th Cir. 1932)




VANCOUVER S. S. CO., Limited.

No. 6698.

United States Court of Appeals, Ninth Circuit.

August 15, 1932

Appeal from the District Court of the United States for the District of Oregon.

Lord & Moulton, of Portland, Or., for appellant.

Erskine Wood and Gunther F. Krause, both of Portland, Or., for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.

Page 794

WILBUR, Circuit Judge.

The decedent was aboard a ship alongside the dock at Westport, Ore. He was engaged in doing the work of a longshoreman aboard the ship, being an employee of Astoria Stevedoring Company. A load of lumber which was being hoisted to put aboard ship fell on the decedent and injured him so severely that he died shortly after being taken ashore. The trial court dismissed the libel on the ground that it had no jurisdiction in admiralty over the tort resulting in the death of the decedent. The trial court followed the decision of Judge Bean in The Kaian Maru (D. C.) 2 F.2d 121, holding that the law of Oregon permitting recovery for death was a death statute, that is , a statute permitting the relatives to recover for injuries they suffer by reason of the death of a decedent, and that under such a statute the injury to them occurred at the time of death and not at the time of the accident, and that, as the death and consequent injury to them had occurred ashore, admiralty had no jurisdiction, whereas, in his opinion, had the death occurred aboard ship or had the statute under which recovery was permitted been a survival statute, that is, a statute wherein the decedent's right to recover for a tort survives, and can be enforced by his executors, administrators, or heirs, the admiralty court would have had jurisdiction. It is not questioned that the courts of Oregon have consistently held that the statute of Oregon permitting the recovery for death is what is known as a death statute. There are a number of decisions of District Courts holding that under such statutes the right of action arises at the time of death and not at the time of injury, and consequently, where the death occurs ashore, there is no jurisdiction in admiralty. The Kaian Maru (D. C.) 2 F.2d 121, supra; Pickles v. Leyland (D. C. Mass.) 10 F.2d 371; Ryley v. Philadelphia & R. Ry. Co. (D. C. N. Y.) 173 F. 389. The jurisdiction of admiralty has been sustained in two cases by Circuit Courts of Appeals, one in the Fourth Circuit, where the death occurred ashore (The Anglo-Patagonian, 235 F. 92), and another in the fifth circuit, where the death occurred ashore (The Chiswick, 231 F. 452). In each of these cases the state statute involved, that of Virginia (section 2902, Code Va.) and Florida (Gen. Stats. Fla. 1906, §§ 3145, 3146), respectively, was a death statute. Spradlin v. Ga. Ry. & Elec. Co., 139 Ga. 575, 77 S.E. 799; Florida C. & P. R. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149; Duval v. Hunt, 34 Fla. 85, 15 So. 876. The precise question presented to us for decision was not discussed in either of the two above-mentioned opinions, but an examination of the records and briefs in those cases discloses the fact that in both of them the point was raised and necessarily decided by the respective courts. In re The Chiswick, supra, it was claimed that, as the decedent died ashore, the case was not within admiralty jurisdiction. It was argued that the Florida statute was a death statute (citing Tiffany, Death by Wrongful Act, § 24; Seward v. Vera Cruz, 10 App. Cas, 59, 67, by the House of Lords, Whitford v. Panama Railroad Co., 23 N.Y. 465; Matter of Meekin, 164 N.Y. 145, 58 N.E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635; Seaboard A. L. R. Co. v. Moseley, 60 Fla. 186, 53 So. 718; Florida E. C. R. v. Jackson, 65 Fla. 393, 62 So. 210; Duval v. Hunt, 34 Fla. 85, 15 So. 876, supra; Florida C. & P. R. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149, supra). Counsel contended as follows:

'* * * The widow's cause of action is not for the wound inflicted on the decedent on the ship, but for the death of the decedent, which took place on the land.

'This is a new cause of action, which the decedent never had. The widow's damages did not arise until the death occurred. The substance and consummation of the widow's cause of action arose on the land, and therefore were beyond the jurisdiction of the admiralty court.'

In support of this contention in that case the appellant cited Ex parte Phoenix Ins. Co., 118 U.S. 210, 6 S.Ct. 1176, 30 L.Ed. 128; Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388, 7 S.Ct. 254, 30 L.Ed. 447; Cleveland Terminal & V. R. R. Co. v. Steamship Co., 208 U.S. 316, 28 S.Ct. 414, 52 L.Ed. 508, 13 Ann. Cas. 1215; The Plymouth, 3 Wall. 20, 18 L.Ed. 125; Ryley v. Philadelphia R. R. Co. (D. C.) 173 F. 839. The last two cases are relied upon by appellee in the case at bar. It follows that the decision of the Circuit Court of Appeals of the Fifth Circuit that the court of admiralty had jurisdiction is a direct determination of the question involved in the case at bar. In the decision by the Circuit Court of Appeals for the Fourth Circuit (The Anglo-Patagonian, 235 F. 92, supra), the main contention of the parties as to jurisdiction arose from the fact that the ship was in dry dock, hence it was contended that neither the injury nor the death ashore resulting therefrom occurred within admiralty jurisdiction. The fact that the injured workman was taken ashore and

Page 795

died there, was not stressed in the briefs, although in the appellant's reply brief it was said:

'Section 2902 of the Code, quoted on page 17 of appellee's brief, in connection with the libel on behalf of Byrd, is Virginia's Lord Campbell's act, and the general rule and the law as stated in 'The Glendale' is not controverted.

'While giving a lien, however, it is not for a cause of action which survives, but is a new cause of action entirely.

'In discussing this provision the Supreme Court of Appeals said:

"It is not (sic) intended to withdraw from the wrongdoer the immunity from civil liability which the rule of the common law afforded him, and to provide for the recovery of such damages, notwithstanding the death of the injured person. In so doing, however, it plainly did not intend to continue or cause to survive his right of action for the injury, but to substitute for it and confer upon his personal representative a new and original right of action. (Citing cases.) * * * If the effect of the statute is, as was contended, to cause the right of action to survive, the suit by his personal...

To continue reading