California-Atlantic S.S. Co. v. Central Door & Lumber Co.

• Decision Date: 19 May 1913
• Docket Number: 2,116.
• Citation: 206 F. 5
• Parties: CALIFORNIA-ATLANTIC S.S. CO. v. CENTRAL DOOR & LUMBER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

206 F. 5

CALIFORNIA-ATLANTIC S.S. CO. v. CENTRAL DOOR & LUMBER CO.

No. 2,116.

United States Court of Appeals, Ninth Circuit.

May 19, 1913

The appeal in this case is taken from a decree rendered upon a default against the appellant for failure to answer or except to the libel. The libel was in personam, and it alleged that in December, 1910, the appellee, pursuant to an arrangement theretofore made with the appellant, shipped in good order and condition on board the steamship 'Mills,' then lying in the port of Philadelphia, and bound to the Isthmus of Panama, to be transported in said steamer and by connecting lines of the appellant's steamers to Portland Or., certain merchandise therein described, and that the appellee directed the appellant to insure said shipments for the appellee's account; that on the arrival of said goods at Portland, Or., they were found to be injured; that some were injured by being water soaked, and others by heat, that others had been broken and rendered valueless, all owing to the negligence of appellant in stowing and handling the same that the market value of said goods at Portland on the date of the arrival thereof was $6,988.81 'including the charges paid to respondent, all of which became and was a total loss to libelant. ' The appellee in its libel proceeded to allege that the loss was without fault or negligence on the appellee's part, but was occasioned solely by negligence and misconduct of the appellant, its employes, agents, or servants. Attached to the libel was a schedule, setting forth in detail the quantities, qualities and market values of the goods so shipped and damaged amounting to the sum of $6,988.81 'including the freight, insurance, and other charges paid to respondent by libelant, after deducting all allowance for salvage on goods shipped. ' The default of the appellant and its surety having been entered, the court thereafter, upon proofs adduced by the appellee, decreed that the libel be amended to conform to the proof of damages sustained by the appellee by increasing the amount claimed in the libel to $7,288.42 with interest thereon as prayed in the libel, and the court found that the appellee had sustained damages by reason of the negligence of the appellant in the sum of $7,288.42, and for that amount with interest and costs a decree was entered.

Malarkey, Seabrook & Stott, of Portland, Or., and T. A. Thacher, G. S. Arnold, and William Denman, all of San Francisco, Cal., for appellant.

Jesse Stearns and John H. Hall, both of Portland, Or., for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

On the appeal to this court, the appellant presents the question of the jurisdiction of the District Court to entertain the libel and contends that no cause within the jurisdiction of the admiralty is stated for the reason that it is not alleged in the libel that the damage to the goods occurred while the same were upon either of the vessels which carried the same, and that, for aught that appears to the contrary, all the injury may have been sustained during the transportation of the goods across the Isthmus of Panama.

When goods are delivered to a carrier, there is a contract, either expressed or implied, that the carrier will carry them with safety. For negligence in carrying them, resulting in loss or damage thereto, an action will lie either for breach of contract or for tort. Cooley on Torts, 157. In the present case the libel is for tort, but in admiralty the court will determine cases upon equitable principles. 'It is never made a point of pleading whether the case rests upon contract or tort. ' Borden v. Hiern, 1 Blatch. & H. 293, Fed. Cas. No. 1,655; Pacific Coast S.S. Co. v. Bancroft-whitney Co., 94 F. 182, 193, 36 C.C.A. 135. We have to inquire, therefore, whether upon either view of the cause of action here pleaded facts are alleged which show affirmatively that there is jurisdiction in admiralty.

In cases of tort the jurisdiction in admiralty depends entirely upon locality. There can be no other test. The tort must have been committed on the high seas or navigable waters. The Propeller 'Commerce,' 1 Black, 574, 17 L.Ed. 107. Now, there is no allegation in the libel as to the place where the goods were injured. The libel alleges that the appellant owned or had chartered the steamships 'Mills' and 'Stanley Dollar'; that the appellee at Philadelphia shipped the goods on the 'Mills' bound to the Isthmus of Panama, 'to be transported in said steamer and connecting lines to Portland, Or.'; that the goods arrived at Portland by the 'Stanley Dollar' and were there found to be injured and damaged when they were delivered to the appellee; that the loss was caused solely by the negligence and misconduct of the appellant, its employes, agents, or servants; that the goods were negligently and improperly stowed, carried, and handled by the appellant, its employes, agents, and servants. From these allegations the injury and damage to the goods might have occurred as well while they were in transit by rail across the Isthmus as upon either or both of the steamships; for, while the operatives of the railway were not 'employes' or 'servants' of the appellant, they were its 'agents' in moving the goods on the railway. The railway was the 'connecting line' between the two steamships. No jurisdiction, therefore, is alleged as for tort.

We turn to the question whether there is shown a breach of contract within the jurisdiction of the admiralty. The contract of affreightment was to carry the goods from Philadelphia to Portland, Or. It involved two voyages by steamers and a carriage across the Isthmus by rail. In The Pacific, 1 Blatchf. 569, Fed. Cas. No. 10,643, Mr. Justice Nelson said:

'A contract must be wholly of admiralty cognizance or else it is not at all within it. There cannot be a divided jurisdiction.'

In Insurance Co. v. Dunham, 11 Wall. 1, 20 L.Ed. 90, the court said that if the subject-matter of a contract is maritime the contract is maritime. Decisions illustrative of that doctrine are Pacific Coast S.S. Co. v. Ferguson, 76 F. 993, 22 C.C.A. 671; The Richard Winslow, 67 F. 259, affirmed 71 F. 426, 18 C.C.A. 344; The Pulaski (D.C.) 33 F. 383; The Murphy Tugs (D.C.) 28 F. 429.

The decision in The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397, is cited by both the appellant and the appellee. The Moses Taylor was a steamship owned by one Roberts in the city of New York, and was employed by him in carrying passengers and freight between Panama and San Francisco. Hammons at New York had entered into a contract with Roberts, the owner of this steamship, by which, in consideration of $100, Roberts agreed to transport him from New York to San Francisco, with reasonable dispatch, and to furnish him with proper and necessary food, water, and berths or other conveniences for lodging on the voyage. For alleged breach of the contract Hammons brought an action against the Moses Taylor in a justice court in the city of San Francisco under a statute of California which provided for such a proceeding in rem, alleging in his complaint that he was detained at the Isthmus of Panama eight days, and that the provisions furnished him on the Moses Taylor were unwholesome, and that he was crowded into an unhealthy cabin therein, without sufficient room or air for health or comfort, to his damage, etc. Objection was made to the jurisdiction. The justice decided that he had jurisdiction, and gave judgment for Hammons. The case was appealed to the county court, where the objection to the jurisdiction was renewed but overruled, and thence the case was taken to the Supreme Court of the United States on the question of the jurisdiction. That court in the opinion took no note of the argument, which was adduced by counsel for the plaintiff, that the contract required for its fulfillment the use of two steamers and a railway, and that the land carriage was a substantial part of the voyage, and that the question of jurisdiction will not be determined by a comparison of the distances by land and by water, and made no reference to the allegation of the complaint that there was a breach of the contract in that the plaintiff was delayed eight days on the Isthmus, but treated the case as one arising solely on breach of contract on the voyage from Panama to San Francisco. The court said that:

'Notwithstanding the Moses Taylor was not named in the original contract, the contract should be treated as if it specified a transportation by that steamer on the Pacific for the distance between Panama and San Francisco, and for alleged breach of this contract the present action was brought. * * * The contract for the transportation of the plaintiff was a maritime contract. As stated in the complaint, it related exclusively to a service to be performed on the high seas.'

That the contract related solely to a service to be performed on the high seas could not have been said if the court had had under consideration the whole contract, for a considerable portion of it was to be performed, not on the high seas, but by a railway across the Isthmus. It will be seen that the court found jurisdiction in admiralty only in the breach of that portion of the contract which provided for transportation by sea from the Isthmus to San Francisco. The implication of the decision is to deny jurisdiction in admiralty of the contract as a whole. In any view of its effect, the most that the appellee can claim therefrom is that it contemplates that a contract such as that which is here before us, although in its terms it is undivided, may in case of a breach thereof occurring upon either arm of the transportation by sea, be deemed divisible into its three...