Bigelow v. Nickerson

• Citation: 70 F. 113
• Decision Date: 12 October 1895
• Docket Number: 216.
• Parties: BIGELOW v. NICKERSON.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

70 F. 113

BIGELOW v. NICKERSON.

No. 216.

United States Court of Appeals, Seventh Circuit.

October 12, 1895

This was a libel in personam, exhibited in the court below by the appellee against the owner of the steam Robert Holland claiming damages for the death of Erik Anderson, in a collision between the schooner William Aldrich and the barge Parana, which barge, with the barge Stevenson, was at the time in tow of the steamer Robert Holland. The collision is asserted to have been caused by the fault of the Robert Holland. The collision occurred at about 5 a.m. of the morning of November 1, 1891, under the following circumstances: The Aldrich, a three-masted schooner of 20 tons burden and laden with lumber, was proceeding on a voyage from Nahma, Mich., bound for the port of Milwaukee, Wis having three jibs, a foresail, and a mainsail set, and with mizzen furled. The wind was northwest, and fresh. The vessel was on a course S. by W. 1/2 W., and was abreast of, and some six miles distant from Pilot Island and from the Wisconsin shore, and about a like distance north of Canna Island light. The steamer Holland, having the barges Stevenson and Parana in tow astern, and in the order mentioned, all being light was upon a voyage from the port of Chicago to Ashland, on Lake Superior. Her course was N.N.E. The barge Stevenson carried a foresail and staysail, and the Parana a foresail only. The combined length of the tow was about 1,800 feet. The Holland had the usual green and red lights in proper position, and also properly exhibited a white light indicating a tow. The barges had their side lights properly placed, screened, and burning brightly. The proper signals upon the Aldrich were also set and burning. The schooner lookout reported the white light of the steamer about a point on the lee bow of the schooner, and distant some 15 miles, and afterwards saw and reported the steamer's red light distant about 5 miles, and afterwards, when the steamer was about one-half mile away, he reported the steamer's green light over the port or lee bow. Each vessel claims to have kept her course. The Holland claimed that if no change had occurred in the course of either vessel, she would have passed to the windward of the schooner; that, when about 100 feet away from the schooner, the Holland's wheel was put to starboard, changing her course to the windward a point and a half, and she claims to have passed the schooner some 500 feet to windward, and that the latter suddenly came up into the wind and struck the tow line between the barges, and then drove on to the Parana. The schooner was struck on her port bow between the stem and cathead, her bows were carried away, and she filled with water. Anderson, who at the time was off watch, and asleep in the forecastle, was drowned. The schooner claimed that, seeing the red light of the steamer, it was supposed the latter would pass to leeward; that such was, in fact, the purpose of the steamer; that she had crossed the point of intersection of the courses of the two vessels, when her course was changed in an attempt to pass to windward, which, so far as the steamer was concerned, was accomplished, but that the maneuver was not resorted to in time to make it effectual as to the tow; that, when the collision was seen to be inevitable, the schooner, to ease the blow, or to escape, if possible, the stern of the barge Parana, put her wheel up to enable the schooner to fall off, but that the effort was ineffectual. It was claimed by the Holland that the Aldrich, instead of putting her wheel up, put it down, and luffed up into the wind. The combined speed of the vessels was about 15 miles an hour. The libelant claimed to be entitled to recover of the libelee under the provisions of sections 4255 and 4256 of the Revised Statutes of the State of Wisconsin, which are as follows:

'Sec. 4255. Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state, and in some court established by the constitution and laws of the same.

'Sec. 4256. Every such action shall be brought by, and in the name of, the person representative of such deceased person, and the amount recovered shall belong and be paid over to the husband or widow of such deceased person, if such relative survive him or her; but if no husband or widow survive the deceased, the amount recovered shall be paid over to his or her lineal descendants, and to his or her lineal ancestors in default of such descendants; and in every such action the jury may give such damages, not exceeding five thousand dollars, as they shall deem fair and just in reference to the pecuniary injury resulting from such death, to the relatives of the deceased specified in this section.'

The court below pronounced for the libelant (The Robert Holland, 59 F. 200; Nickerson v. Bigelow, 62 F. 900), and the owner of the Holland appealed.

Charles E. Kremer, for appellant.

Frank M. Hoyt and Geo. D. Van Dyke, for appellee.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

JENKINS Circuit Judge, after stating the facts, .

It is determined that, at the common law, no civil action would lie for an injury resulting in death (Insurance Co. v. Brame, 95 U.S. 754), and that, in the absence of an act of congress, or a statute of a state, giving a right of action therefor, no suit will lie in the admiralty for personal injury causing death through negligence on the high seas, or on waters navigable from the sea (The Harrisburg, 119 U.S. 199, 7 Sup.Ct. 140; The Alaska, 130 U.S. 201, 9 Sup.Ct. 461). It is also settled that, if a state statute gives a right of action touching a subject of maritime nature, the admiralty can administer the law by a proceeding in rem, if the statute grants a lien, or in personam, no lien being granted. The Corsair, 145 U.S. 335, 347, 12 Sup.Ct. 949. It is also the law that, if the negligent act causing death occur within the jurisdiction of a state, the law of such state governing such action is applicable. Steamboat Co. v. Chase, 16 Wall. 522; Sherlock v. Alling, 93 U.S. 99; The Transfer No. 4, 20 U.S.App. 570, 9 C.C.A. 521, 61 F. 364, affirming The City of Norwalk, 55 F. 99. In the first of these cases the negligent act causing death occurred upon the water of Narragansett Bay, within the jaws of the headlands, and so within the territory of the state; in the second, upon the Ohio river, above the line of low-water mark, and within the territorial jurisdiction of the state of Indiana; in the last, upon the East river, just above Blackwell's Island, and within the territorial jurisdiction of the state of New York. In Re Humboldt Lumber Manuf'rs' Ass'n, 60 F. 428, the negligent injury causing death occurred on the high seas on Humboldt bar, off the entrance to Humboldt Bay, and within two miles of the shore. The court applied the doctrine 'that the sea, within a belt or zone of three miles from the shore, as distinguished from the rest of the open sea, formed part of the realm,' and held that the statute of California giving a right of action for negligent injury causing death was applicable.

It will be observed that in none of the cases to which we have referred did the negligent injury occur upon the high seas beyond the three-mile belt or limit, and that is true of all the cases which have come under our notice. The Corsair, 145 U.S. 335, 12 Sup.Ct. 949; The Oregon, 45 F. 63; Killien v. Hyde, 63 F. 172; The Victory, 63 F. 632. The statute only takes cognizance of torts within the jurisdiction of the state, and has no extraterritorial effect. It is urged that the collision and negligent injury here took place upon the waters of Lake Michigan, and without the belt limit of three miles, and that, therefore, within the decision in U.S. v. Rodgers, 150 U.S. 249, 14 Sup.Ct. 109, it occurred upon the high seas, and without the territorial jurisdiction of the state of Wisconsin. The question is thus sharply presented whether the locus in quo lies within the territorial waters and within the jurisdiction of the state of Wisconsin.

The precise point decided in U.S. v. Rodgers was that a district court of the United States had jurisdiction to entertain the trial of one for a crime committed on an American vessel on the waters of the Detroit river, beyond the boundary line between the United States and the dominion of Canada, and within the waters of the province of Ontario. Jurisdiction was held, under sections 5346 and 730, Rev. St., upon the ground that the locus in quo was on a river within the admiralty jurisdiction of the United States, and out of the jurisdiction of a state of the Union. It was ruled that, by the statute, congress intended to include 'the open, uninclosed waters of the lakes under the designation of high seas,' with respect to the offenses enumerated in the statute; and the locus in quo being within the admiralty jurisdiction of the United States (The Genesee Chief, 12 How. 443), it was competent for congress to provide for the punishment of offenses committed upon an American vessel within a foreign jurisdiction.

The question still remains open and undecided by the supreme court whether the jurisdiction of a state bordering upon one of the Great Lakes extends beyond low-water mark; whether the doctrine of a three-mile belt, recognized in the case of oceans,...