Todahl v. Sudden & Christenson

• Decision Date: 11 May 1925
• Docket Number: No. 4439.,4439.
• Parties: TODAHL v. SUDDEN & CHRISTENSON et al.
• Court: U.S. Court of Appeals — Ninth Circuit

5 F.2d 462 (1925)

TODAHL v. SUDDEN & CHRISTENSON et al.

No. 4439.

Circuit Court of Appeals, Ninth Circuit.

April 20, 1925.

Rehearing Denied May 11, 1925.

Matthew A. McCullough, of San Francisco, Cal., for plaintiff in error.

Farnham P. Griffiths, Jay T Cooper, and McCutcheon, Olney, Mannon & Greene, all of San Francisco, Cal., for defendants in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge.

The plaintiff in error was a seaman in the service of the steamship Edna, a vessel which belonged to the defendants in error. He brought an action against the owners of the Edna and the McCormick Steamship Company, which was using the vessel under "contract or charter" from the owners, to recover for injuries sustained on a wharf alongside of which the vessel was moored. Two causes of action were set forth in the complaint. The first was to recover damages under section 33 of the Merchant Marine Act of June 5, 1920, 41 Stat. 1007 (Comp. St. Ann. Supp. 1923, § 8337a), amending section 20 of the Act of March 4, 1915. The second was to recover damages under the common law. The complaint alleged that the McCormick Steamship Company was the occupant of the wharf except for 550 feet space on the north side thereof and that aside from that space the company had exclusive use, control, and management of the wharf; that on the south, side of the wharf is a bumper to protect it from the movements of ships moored alongside, and that the bumpers are separated from the wharf proper by a space 1 foot in width, except at intervals, thus leaving open spaces or holes 1 foot wide and about 10 feet long; that the wharf was unlighted; that the plaintiff in error was permitted by the mate of the Edna to go ashore about 5 o'clock in the afternoon to make purchases for himself; and that on his return about midnight be passed through the office of the McCormick Steamship Company on the wharf, using the passageway which that company provided, and that he stepped into one of the open holes between the bumper and the side of the wharf, whereby he sustained serious injuries. He further alleged that the defendants in the action had failed to advise him of the faulty, dangerous, and unsafe condition of the wharf or of the hole in the floor thereof, and that he had no knowledge of those conditions. The owners and the McCormick Steamship Company interposed demurrers to the complaint for failure to state a cause of action. The demurrer of the owners was sustained and that of the steamship company was overruled. The plaintiff in error brings the case here on writ of error to review the ruling upon the demurrer of the owners.

One of the questions presented is whether or not the plaintiff was entitled to bring an action under the Merchant Marine Act of 1920. We find no warrant in any provision of that act for disregarding the prior well-settled rule that admiralty has no jurisdiction over torts committed on land. The Plymouth, 3 Wall. 20, 18 L. Ed. 125; Swayne & Hoyt v. Barsh, 226 F. 581, 141 C. C. A. 337. The plaintiff relies on the allegation of his complaint that he was in the service of the McCormick Steamship Company as well as in that of the owners of the Edna, and on that portion of the act in question which provides "that any seaman who shall suffer personal injury in the course of his employment may at his election maintain an action, etc." But we find in the act no expression of the intention of Congress to enlarge the admiralty jurisdiction. The clause, "who shall suffer personal injury in the course of his employment," is not sufficient in itself to expand the jurisdiction of the court and extend it to torts which occur on land. The plaintiff cites Panama Railroad Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748. But the opinion in that case, so far from sustaining his contention, may be referred to as supporting a contrary view of the statute. Said the court: "The asserted departure from the restriction respecting uniformity in operation is without any basis. The statute extends territorially as far as Congress can make it go, and there is nothing in it to cause its operation to be otherwise than uniform." Again, the court said: "Rightly understood the statute neither withdraws injuries to seamen from the reach and operation of the maritime law, nor enables the seaman to do so. On the contrary, it brings into that law new rules drawn from another system and extends to injured seamen the right to invoke, at their election, either the relief accorded by the old rules or that provided by the new rules." It is suggested that the clause, "or in its service," found in section 20 of the original Act of 1915 (Comp. St. § 8337a) furnishes evidence that Congress intended to give seamen a right to recover for personal injuries sustained on shore. It is to be observed, however, that that clause is omitted from the amended Act of 1920, and if its presence in the...