Aurora Shipping Co. v. Boyce

• Decision Date: 23 October 1911
• Docket Number: 1,893.
• Parties: AURORA SHIPPING CO. v. BOYCE.
• Court: U.S. Court of Appeals — Ninth Circuit

191 F. 960

AURORA SHIPPING CO. v. BOYCE.

No. 1,893.

United States Court of Appeals, Ninth Circuit.

October 23, 1911

The appeal in this case brings for review a decision (178 F. 587) of the District Court for Oregon, in favor of the libelant in a suit in rem, brought by her in the capacity of administratrix of the estate of her deceased husband, to recover damages for his death, alleged to have been caused by negligence. The vessel libeled is a barkentine hailing from the port of San Francisco and owned by a corporation of the state of California. The place of the accident and death is in the state of Oregon; the vessel being at the time moored to a wharf receiving a cargo of lumber. The deceased was employed as a longshoreman to assist in loading the vessel and, in returning to his working place after luncheon, he was required to walk upon a plank 12 inches wide, the inboard end of which rested upon the mizzen rigging, without lashing or other means to prevent it from being displaced. He was killed by falling upon the deck, and the amended libel charges that he lost his balance and fell because of the narrowness and the loose, moving, and slippery condition of the plank, and the lack of any guard rail or safety ropes. The equipment of the vessel included a properly constructed gangplank suitable for use as means for safe ingress and egress to and from the vessel. Therefore the vessel was not in fault by reason of failure of her owner to supply a gangplank which could have been used in going from the wharf to the vessel without incurring unnecessary risk of injury, but the substitution of an unsuitable plank was wrongful on the part of the officers in charge of the ship's business, and was the efficient cause of the decedent's death. There appears to be no sufficient ground for questioning the decision of the district judge with respect to the facts of the case. In maintaining the jurisdiction of the court and the libelant's right to a remedy by a suit in rem, the decision follows the case of The Oregon (D.C.) 45 F. 62, in which Judge Deady rendered a decree in a suit in rem, awarding damages to the personal representatives of deceased seamen for a maritime tort resulting in death, basing his decision upon provisions of the statutes of Oregon, cited in this case as 'sections 381, 5706, and 5708 of Bellinger and Cotton's Code. ' Section 381 confers upon personal representatives of a person, whose death has been caused by a wrongful act or omission of another, the right to maintain an action therefor, at law, against the wrongdoer, if the deceased might have maintained an action, had he lived, for an injury done by the same act or omission. The relevant clauses of section 5706 and section 5708 read as follows:

'Sec 5706. Every boat or vessel used in navigating the waters of this state or constructed in this state shall be liable and subject to a lien * * * for damages or injuries done to persons or property by such boat or vessel.'

'Sec 5708. Any person having a demand as aforesaid, instead of proceeding for the recovery thereof against the master, owner, agent or consignee of the boat or vessel, may, at his option, commence an action against such boat or vessel by name.'

Section 5709 prescribes that an action against a boat or vessel shall be brought in a designated state court for the county in which the boat or vessel may be found. The brief submitted in behalf of the appellant summarizes its contentions in six articulated propositions, which, in substance and meaning, are as follows:

First. Under section 5709 an action against a boat or vessel to enforce the statutory lien is required to be brought in a circuit court of the state of Oregon; and the statute must be strictly construed.

Second. The statutory lien is for an injury to a person or property, and it is not applicable to cases of injuries causing death.

Third. State statutes cannot extend the jurisdiction of the admiralty courts.

Fourth. Admiralty courts have jurisdiction of suits in rem, for injuries in collision cases, because a suit in rem is authorized by admiralty rule 15 (29 S.Ct. xl); and have jurisdiction in proceedings for limitation of liability, because in those cases the law authorizes courts of admiralty to acquire exclusive jurisdiction to adjudicate all controversies respecting claims for damages which may be asserted against funds surrendered to their custody.

Fifth. At common law all actions for death die with the person, and the right of a representative of a deceased person to maintain an action for his death in Oregon is statutory, and the statute which creates the right does not purport to create a lien.

Sixth. This court has decided, in the case of The Dauntless, 129 F. 715, 64 C.C.A. 243, that an action in rem, for the death of a person based upon the California statutes, cannot be maintained; and there is practically no difference between the statutes of California and Oregon.

Wilbur & Spencer and F. P. Deering, for appellant.

Giltner & Sewall, for appellee.

W. C. Bristol, amicus curiae.

Before GILBERT and ROSS, Circuit Judges, and HANFORD, District Judge.

HANFORD District Judge (after stating the facts as above).

For the determination of this case, one main question must be decided, viz.: Did the District Court have jurisdiction to render its decree in favor of the libelant for the cause alleged in her libel? This main question can be treated most advantageously by dividing it into two parts. The subsidiary questions are:

(a) Is there a statutory right to maintain an administrator's suit to recover damages for the death of a person resulting from a tortious injury within the state of Oregon, and a statutory lien upon a vessel subject to admiralty jurisdiction, where the injury causing the death happens on board of such vessel afloat upon navigable water, and constitutes a maritime tort by reason of culpability of the ship's officers?

(b) Is the admiralty jurisdiction of a United States District Court adequate to adjudicate the rights of the parties, founded upon a maritime tort causing death and state statutes conferring a right of action therefor and creating a lien upon the offending vessel?

The answers to the appellant's contentions, above stated, will also furnish the reasons deemed sufficient for an affirmative decision of these main and subsidiary questions.

The first proposition is untrue, because there is involved in it an unwarranted assumption of power in the Legislature of Oregon to invest the courts of that state with exclusive jurisdiction of suits in rem against vessels to enforce liens for maritime torts. That assumption has to support it the plausible theory that legislative power sufficient to create a new right must be potent to limit the right by imposing a condition. That theory, however, as applied to encroachments upon the jurisdiction of the national courts, is completely refuted by the decisions of the Supreme Court in the cases of The J. E. Rumbell, 148 U.S. 1, 13 Sup.Ct. 498, 37 L.Ed. 345, and The Glide, 167 U.S. 606, 17 Sup.Ct. 930, 42 L.Ed. 296. Section 5709 is merely an appendage of the preceding section, and its unconstitutionality does not taint section 5706, which creates the lien.

The second proposition seems to aim at a separation of injuries causing death from other personal injuries which only inflict pain or partially disable an individual. To classify torts, and then apply the statute to one class and make exceptions as to others, would require an unwarranted usurpation of legislative authority, because it would effect a material change in the statute, eliminating therefrom rights comprehended within it, according to the common and general definition of the words and phrases selected by the Legislature. Instead of a construction restricting their application to classes, general laws are to have general application so as to operate equally and uniformly. To give this law a fair and reasonable construction, it is necessary to presume that the Legislature intended to prescribe a rule consonant with justice. When a man is wounded or killed, the pain which he suffers and his individual loss are not the only pains and losses inflicted, for the indirect consequences to those dependent upon him are often the most distressing. In such cases justice requires that compensation be rendered to the injured, and there can be no fair rule of compensation which excludes from its benefits the dependent wife and children who have been robbed of their means of support by the death of a husband and father.

In the case of The Oregon (D.C.) 45 F. 62, Judge Deady sustained intervening libels in rem of an administrator of two seamen who were killed in a collision. The provisions of the Oregon statutes, which we have to consider, were quoted in his opinion. On an appeal to the Circuit Court for the District of Oregon, his decision was affirmed, and the case has been cited approvingly by Judge Brown of New York in the case of The City of Norwalk (D.C.) 55 F. 98, approved by this court in the case of The Willamette, 70 F. 874, 18 C.C.A. 366, 31 L.R.A. 715. The Supreme Court, in The Corsair, 145 U.S. 335 12 Sup.Ct. 949, 36 L.Ed. 727, mentions it in these words: 'In The Oregon (D.C.) 45 F. 62, a lien was given by the state statute and was enforced in the admiralty. ' Afterwards the case was reversed by the Supreme Court, on the ground that the decree for damages against sureties and in favor of parties who intervened after the release of the vessel was erroneous; but the question as to the right of the administrator to sue in rem appears to have been passed over without discussing it. The order which the Supreme Court made, however, was that the decree be reversed with costs 'as against the...