Blevens v. Sfetku

• Decision Date: 27 February 1968
• Citation: 66 Cal.Rptr. 486,259 Cal.App.2d 527
• Court: California Court of Appeals Court of Appeals
• Parties: Don BLEVENS, Plaintiff and Appellant, v. Nick SFETKU, Defendant and Respondent. Civ. 31168.

Page 486

66 Cal.Rptr. 486

259 Cal.App.2d 527

Don BLEVENS, Plaintiff and Appellant, v. Nick SFETKU, Defendant and Respondent.

Civ. 31168.

Court of Appeal, Second District, Division 5, California.

Feb. 27, 1968.

Jones & Tollefson and Philip F. Jones, San Fernando, for plaintiff and appellant.

Morgan, Wenzel, Lynberg & Morris and John P. McNicholas, III, Los Angeles, for defendant and respondent.

HUFSTEDLER, Associate Justice.

Plaintiff appeals from a judgment for the defendant entered after defendant's motion for nonsuit was granted upon completion of plaintiff's opening statement to a jury. The appeal is presented on the clerk's transcript and on a settled statement in lieu of a reporter's transcript.

Plaintiff's complaint alleged a cause of action for damages for personal injuries he sustained in a water-skiing accident caused by defendant's negligent operation of a motorboat. The injury occurred on May 10, 1963, on the Colorado River, south of Parker Dam. The answer denied the charging averments of the complaint and alleged the defenses of contributory negligence and assumption of risk. The pretrial order restated the issues framed by the pleadings.

The opening statement, which is made a part of the settled statement on appeal, is as follows: 'On May 12, 1963, plaintiff and another man named Bob Burns were water skiing on the Colorado River at a point about five miles south of Parker Dam, being towed at that time by a boat owned and operated by defendant NICK SFETKU. Both plaintiff and Burns were being towed by separate ropes behind the defendant's boat, Burns being to the right of plaintiff and the rope which was towing Burns being some 20 or 30 feet longer than the rope towing plaintiff so that Burns, during the course of the skiing, was to the right and to the rear of plaintiff. Neither plaintiff nor Burns gave any compensation of any sort to defendant, but were skiing at defendant's invitation.

'The defendant's boat pulled the two skiers for approximately 200 yards across the river in the direction of the California shore, and then turned to the left. At approximately that time, Burns fell into the water and let go of his ski rope. The defendant continued to tow plaintiff, who had remained on his ski, for approximately 200 yards down stream and then made a rather sharp left turn again to head back to the place where Burns was still in the water. As this final turn occurred, the rope by which plaintiff was being towed slackened because of the rather sharp turn of the boat, causing plaintiff to lose so much speed that he was unable to remain on top of the water on his ski. He then sank into the water and at the same time let go of the rope by which he had been towed. The boat being operated by defendant at this point was moving very slowly, and the rope by which Burns had been towed was pulling past the plaintiff in the water, under his arm. Plaintiff then took hold of this latter rope with his hands and began to pull it by him in order to avoid rope burn or entanglement. Just before the rope end passed plaintiff, who was then floating in the water and partially submerged, defendant suddenly accelerated the speed of his boat, and the end of the rope, which had previously been pulling Burns, tangled around plaintiff's ankle and pulled him under water for a number of feet before the resistance caused by plaintiff's entire body being under water caused the rope to break. Plaintiff's ankle, around which the rope became entangled, was severely injured, and plaintiff sustained damages thereby, both general and special, for which compensation is being sought in this action.'

After the plaintiff had completed his opening statement, counsel for defendant moved for judgment of nonsuit on the sole ground that section 661.1 of the California Harbors and Navigation Code applied to prevent recovery by the plaintiff upon the facts stated in the opening statement. For the purposes of the motion, counsel stipulated that the injury to the plaintiff took place on the California side of the Colorado River. The court granted the nonsuit on the sole ground that section 661.1 foreclosed recovery.

Section 661.1 of the California Harbors and Navigation Code at the time of the injury provided:

'No person who as a guest accepts a ride in any vessel upon the waters of this State without giving compensation for such a ride, or any other person has any right of action for civil damages against the operator of the vessel or against any other person legally liable for the conduct of the operator on account of personal injury to or the death of the guest during the ride, unless the plaintiff in such action establishes that the injury or death proximately resulted from the intoxication or willful misconduct of the operator or establishes that such operator was under the influence of any narcotic drug, barbiturate or marijuana. As used in this section a 'guest' shall be deemed to include any person or persons being towed by any vessel on water skis or an aquaplane or a similiar device.'

The appeal presents the question: Does section 661.1 of the Harbors and Navigation Code apply in an action in the state court for damages for personal injuries caused by negligent operation of a motorboat on the waters of an interstate navigable stream? We hold that it does not apply. The statute would conflict with established federal maritime common law and with the federal Motorboat Act of 1940 if thus applied. The Legislature has expressed its intent that the provisions of section 661.1 of the Harbors and Navigation Code shall be construed to avoid constitutional infirmity. ¹ We conclude therefore that the Legislature did not intend the statute to apply to this maritime tort.

Subject Matter Jurisdiction

'(T)he admiralty jurisdiction of the United States extends to all waters, salt or fresh, with or with out tides, natural or artifical, which are in fact navigable in interstate or foreign water commerce, whether or not the particular body of water is wholly within a state, and whether or the occurrence or transaction that is the subject-matter of the suit is confined to one state.' Gilmore and Black, The Law of Admiralty (1957) sections 1--11, pages 28--29.

The power of United States courts to draw upon and administer the maritime law derives from constitutional language extending the judicial power of the United States to 'all cases of admiralty and maritime jurisdiction.' (United States Constitution, art. III, § 2.) Jurisdiction of state courts in maritime cases is derived from the 'saving to suitors' clause found in section 24(3) of the Judicial Code, 28 U.S.C.A., section 41(3), which 'of all civil cases of admiralty and maritime jurisdiction' saves to suitors 'the right of a common-law remedy where the common law is competent to give it.'

Generally speaking, the saving-to-suitors clause permits state courts to assume subject matter jurisdiction of cases by a suitor who holds an In personam claim, which might be enforced by libel In personam in admiralty. In such cases there is concurrent jurisdiction of the subject matter in the state courts, and in the federal district courts on the civil side in appropriate cases, and on the admiralty side of the federal district courts. (E.g., Intagliata v. Shipowners & Mer. etc. Co., Ltd. (1945) 26 Cal.2d 365, 370--371, 159 P.2d 1; Gilmore and Black, supra, sections 1--13, page 33.) 'The remedy afforded in the state court may be invoked to secure such rights 'as readily admit of assertion and enforcement in actions In personam according to the course of the common law.' Panama R. Co. v. Vasquez, 271 U.S. 557, 561, 46 S.Ct. 596, 597, 70 L.Ed. 1085; see Moore v. Purse Sein Net, 18 Cal.2d 835, 837, 118 P.2d 1. C. J. Hendry Co. v. Moore, 318 U.S. 133, 63 S.Ct. 499, 87 L.Ed. 663.' Intagliata v. Shipowners & Mer. etc. Co., supra, 26 Cal.2d at p. 370, 159 P.2d at p. 5.

We judicially notice that the Colorado River is a navigable interstate stream. Plaintiff's claim of damages for injuries sustained in this motorboat accident is a maritime cause of action which can be maintained in the state court under the saving-to-suitors clause.

Applicable Law

A state court is not free to apply its own substantive law to a maritime cause of action simply because the state court has subject matter jurisdiction. The applicable law is not determined by the choice of forum. General substantive maritime law must be applied even though suit is brought in the state court. (Chelentis v. Luckenbach S.S. Co. (1918) 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171; Pope & Talbot v. Hawn (1953) 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Intagliata v. Shipowners & Mer. etc. Co., Ltd., supra, 26 Cal.2d at p. 371, 159 P.2d 1.

Plaintiff relies on Southern Pacific Co. v. Jensen (1917) 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, for the general principle that in a maritime cause of action states cannot enforce state substantive law if that law does or could contravene principles of general maritime law. Jensen held a state workmen's compensation statute unconstitutional as applied to a longshoreman who had been injured by a maritime tort. At that time the federal law contained no compensation statute for the injured worker. Mr. Justice McReynolds, writing for the majority in Jensen, however, observed: '(I)t would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation. That this may be done to some extent cannot be denied.' (244 U.S. at p. 216, 37 S.Ct. at p. 529.)

Defendant argues that Jensen has been impaired by Western Fuel Co. v. Garcia (1921) 257 U.S. 233, 242, 42 S.Ct. 89, 66 L.Ed. 210; Grant Smith-Porter Ship Co. v. Rohde (1921) 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321; and Caldarola v. Eckert (1946) 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968. He cites these cases for the proposition that local law can be validly applied in a...