McGrath v. Nolan

• Decision Date: 05 May 1936
• Docket Number: No. 7946.,7946.
• Citation: 83 F.2d 746
• Parties: McGRATH et al. v. NOLAN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

83 F.2d 746 (1936)

McGRATH et al. v. NOLAN et al.

No. 7946.

Circuit Court of Appeals, Ninth Circuit.

May 5, 1936.

William P. Lord and T. Walter Gillard, both of Portland, Or., for appellant.

A. W. Norblad and Walter Norblad, both of Astoria, Or., and M. B. Meacham, of Portland, Or., for appellees Michel Nolan et al.

Plowden Stott, of Portland, Or., for appellee American Surety Co.

Alex G. Barry, of Portland, Or., for appellee National Surety Corp. John Lichty, of Portland, Or., for appellee Fidelity & Deposit Co.

Before DENMAN, MATHEWS, and HANEY, Circuit Judges.

DENMAN, Circuit Judge.

Appellant filed a libel in personam against Michel Nolan, alleging that he, Nolan, was employed to pilot the motorship Childar and that by reason of his negligence as such pilot in crossing the Columbia river bar, the ship grounded on Peacock Spit, and that as a result of the impact the appellant Patrick E. McGrath, who was a seaman on board the motorship, was seriously injured, for which injuries he claims damages in the sum of $50,000. The libel alleges that the respondents other than Nolan, and other than certain surety companies who were also joined, were members of the Columbia River Bar Pilots Association, and that this association was a copartnership having its principal place of business at Astoria, Or. Because of this alleged relationship, it was sought to hold all the pilots belonging to the association, and their respective surety companies, for the negligence of Michel Nolan. Exceptions to the libel were filed on behalf of all respondents. The exceptions were sustained and a final decree entered dismissing the libel. This appeal followed.

The first question is whether or not the injured seaman was entitled to maintain an action against the pilot for compensatory damages for injuries caused by the negligence of the pilot while in charge of the motorship Childar. Appellant McGrath predicates his right to recover upon the general maritime law of the United States and not under the Jones Act (41 Stat. 1007, c. 250, § 33, 46 U.S.C.A. § 688). He says:

"In this instant case we contend that the libelant McGrath brings this suit under the general maritime law of the United States and decisions applicable thereto and not under the Jones Act."

This narrows the issue to the question of whether, before the enactment of the Jones Act, a seaman was entitled to recover compensatory damages from a statutory state licensed pilot for injuries occasioned by the latter's negligence. The vessel may accept a pilot if it "desires" one, but if spoken by a pilot must pay pilotage fees even if the service is not desired or accepted. Oregon Code 1930, §§ 65-323, 65-327. When this creature of statute functions on the vessel, his relation to the master and crew is sui generis.

We see no reason to deny such recovery. The libel plainly sets out negligent navigation on the part of Pilot Nolan, which negligence resulted in the injuries complained of. Negligence resulting in injury is an actionable tort in maritime as well as in common-law matters.

"Nor is the term `tort,' when used in reference to admiralty jurisdiction, confined to wrongs or injuries committed by direct force, but it includes wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common-law is by an action on the case. Philadelphia, W. & B. R. Co. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. 209, 214, 215 16 L.Ed. 433." (Italics supplied.) Leathers v. Blessing, 105 U.S. 626, 630, 26 L.Ed. 1192.

Pilots are not exempt. Guy v. Donald (C.C.A.4) 157 F. 527, 530, 14 L.R.A.(N.S.) 1114, 13 Ann.Cas. 947; Deering & Sons v. Targett (1913) 1 K.B. 129, 131.

The appellees seek to avoid this obvious point by a reference to the principle that under general maritime law a seaman has no right of action against ship or owner for physical injury occurring in the course of duty unless the injury is caused by the unseaworthiness of the ship, and that in all other cases he is entitled only to maintenance and cure and to his wages for the continuance of the voyage. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L. Ed. 760; Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 380, 38 S.Ct. 501, 62 L.Ed. 1171; Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069; Messel v. Foundation Co., 274 U.S. 427, 47 S.Ct. 695, 71 L.Ed. 1135; Pacific S. S. Co. v. Peterson, 278 U.S. 130, 49 S.Ct. 75, 73 L.Ed. 220; Lindgren v. United States, 281 U.S. 38, 47, 50 S.Ct. 207, 74 L.Ed. 686; Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368; Warner v. Goltra, 293 U.S. 155, 55 S.Ct. 46, 79 L.Ed. 254. See, also, The Arizona v. Anelich, 56 S.Ct. 707, 80 L.Ed. ___, decided by the Supreme Court April 27, 1936.

None of these cases is in point. They all deal with the liability of the ship or her owners to a seaman injured in the performance of his duties. It is the liability of the ship or her owners that is limited to wages, maintenance, cure, and compensation for injury due to unseaworthiness. There is nothing in any of the cases cited to us by the appellees, nor in any case which our own research has uncovered, which throws the slightest doubt upon the elementary principle that an immediate tort-feasor is liable to those proximately injured by his tortious conduct.

To the argument that this statutory pilot whose command of the vessel is limited to the navigation thereof within the waters of his license, becomes the master of the vessel and hence is identified with the owner, and hence not liable to the sailor for his negligence, there are two answers: (1) The master himself is not identified with the owner. If he were, the owner would be liable for the master's negligence to his crew, for the owner is liable if the seaman is injured by the owner's personal negligence. Such liability would attach, for instance, if the owner negligently ordered the captain to do something which harmed the seaman. (2) While the pilot has command of the navigation of a vessel, he is not her master. The Oregon, 158 U.S. 186, 195, 15 S.Ct. 804, 39 L.Ed. 943. Even while on the bridge he is subject to removal by the master and, according to Dr. Lushington, the master may insist on the pilot taking proper precautions. Id., 158 U.S. 186, 195, 15 S.Ct. 804, 39 L.Ed. 943. He is always under the command of the master. United States v. Jacksonville Co. (C.C.A.5) 18 F.(2d) 39, 40.

Even if the statutory state pilot stood in the shoes of the master, it is no bar to suit. The British High Court of Admiralty held the captain liable in tort to a seaman for excessive punishment. This was in 1824, when seamen could be flogged by the captain. The flogging was held in the scope of his employment. The sailor was awarded damages in the amount of one hundred pounds, together with costs. The Agincourt, 1 Hagg.Adm. 271, 166 Eng.Rep. 96. See The Whisper (C.C.A.6) 268 F. 464.

The pilot is not a fellow servant of other members of the crew and can recover from the owner for their negligence. Smith v. Steele, L.R., 10 Q.B. 125. If he were considered a mere fellow servant of the seamen, he is no less liable. Northern Pac. R. Co. v. Dixon, 194 U.S. 338, 342, 24 S.Ct. 683, 48 L.Ed. 1006.

The pilot may recover from the master for the master's tort in using too much force in ejecting him from the bridge. Beataugh v. Nicholson, 2 Fed.Cas. 1198, No. 1,194. Surely if the pilot can recover from the master for the master's tort, the seamen can recover from the pilot for the pilot's tort.

It follows that the exceptions of respondent Nolan and of all the other respondents, in so far as these latter were based upon the alleged failure to state a cause of action against Nolan, were improperly sustained.

We now consider the exceptions to the libel taken by respondents Ash, Astrup, Hall, Hirsch, Langkilde, Lofstedt, and Rankin. In the language of the libel, these respondents were:

"* * * Regularly licensed Columbia River Bar Pilots by the State of Oregon and the United States Government, each licensed to pilot ships from Astoria, Oregon to sea and return, said persons being hereinafter referred to collectively as `pilots,' and that at all times hereinafter mentioned the said pilots constituted the membership of a partnership and unincorporated association, doing business under the name and style of Columbia River Bar Pilots Association, with its and their principal office and place of business at Astoria, Oregon, and that said pilots operated and maintained said association for their mutual financial gain and benefit and did equally share the profits and losses of the partnership, said association having the exclusive direction and control as to which of its members should pilot any particular vessel and having exclusive control of the pilot services of its members."

It was further alleged that the association maintained facilities for the accurate and timely determination of existing and prospective weather conditions on the coast; and that such facilities and information are available to the pilots immediately prior to the time at which they assume pilotage duties at Astoria.

Again it is stated in the libel:

"* * * The motorship steered its way to Astoria, Oregon, where the master of the motorship dropped the river pilot and picked up a bar pilot, said bar pilot being respondent Michel Nolan, and said master thereupon directed that said motorship proceed to sea and said motorship left the vicinity of Astoria, Oregon, proceeding to sea * * *; the services of said respondent Nolan being secured through the said `pilots' association and said `pilots' association office at...