Colonna Shipyard Inc v. Bland

• Decision Date: 14 June 1928
• Citation: 143 S.E. 729
• Court: Virginia Supreme Court
• Parties: COLONNA SHIPYARD, Inc., v. BLAND.

143 S.E. 729

COLONNA SHIPYARD, Inc.,

v.BLAND.

Supreme Court of Appeals of Virginia.

June 14, 1928.

(Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Tools— Tools of Trade.]

Error to Law and Chancery Court of City of Norfolk.

Action by William H. Bland against the Colonna Shipyard, Inc. Judgment for plaintiff, and defendant brings error. Affirmed.

Sinnott, May & Leaman, of Richmond, for plaintiff in error.

Ernest S. Merrill, of Norfolk, for defendant in error.

PRENTIS, P. William H. Bland was a ship carpenter, employed by Colonna Shipyard, Inc. He sustained serious and permanent injuries to his head, hips, and back by falling from a ship's ladder while acting in obedience to orders of his employer and in the course of his work. He has recovered a substantial verdict against the defendant, Colonna Shipyard, Inc. (employer), which is here assigning error.

The circumstances of the injury are these: The steamship "Gloucester, " a fishing vessel owned by Marine Products, Inc., having been damaged by fire, was brought to the repair yard of the defendant for repairs. While at the repair yard, afloat in the Elizabeth river, a navigable stream of the United States, the plaintiff was required to go into the hold of the ship to build foundations for ammonia tanks, to be used in connection with refrigeration. The way of access provided for him from the deck through the hatchway to the hold of the ship was by a ladder 14 or 15 feet long, the foot of which was scotched or so fastened to the bottom of the hold as to keep it from sliding, while the top was resting against one of the sides or coaming of the hatchway. The ladder was old; one side of it had broken and been repaired by patching or splicing on that side and was weak. The evidence is quite sufficient to show that the ladder, though in use, was unsafe and unsuitable. It apparently belonged to the ship as a part of its equipment, and was movable within the hatchway, an opening 12 feet wide and 24 feet 7 inches long. The plaintiff, with his tool box, weighing 25 or 30 pounds, was descending to the hold, when the ladder, because of its structural weakness, tilted, sagged, or buckled on its weak side, and this caused his fall and injuries.

That an injury suffered by a mechanic through the negligence of his master, while repairing a ship at a dock in navigable wat-er of the United States, is a maritime tort and cognizable in admiralty, is perfectly well settled.

Among the latest authorities on this point is Great Lakes Dredge & Dock Go. v. Sophia KierejewsH, 261 U. S. 479, 43 S. Ct. 418, 67 L. Ed. 756. That was an action to recover damages for the death of one employed to make repairs on a vessel moored in navigable waters of the United States, who, while standing on a scaffold on a float alongside of a vessel, fell into the water and was drowned, because of the negligent operation of an approaching tug, and it was held to be within the admiralty jurisdiction of the Federal courts. A number of authorities are cited in the opinion, and there is no longer any doubt of the admiralty jurisdiction in such a case.

In Frank Gonsalves v. Morse Dry Dock & Repair Co., 266 U. S. 171, 45 S. Ot. 39, 69 L. Ed. 228, it is held that admiralty has jurisdiction of an action for injury to an employee by the explosion of a blau torch while he was engaged in repairing the shell plates of a steamer in a floating dock in navigable water. The locality of such a tort determines the jurisdiction.

It is provided by section 9, Judiciary Act of September 24, 1789 (chapter 20, 1 Stat, at L. 76), that the United States district courts shall have "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction * * * saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it." This statute so saving the common-law remedy has been re-enacted in the Judicial Code, §§ 24 and 256 (28 USCA §§ 41(3), 371(3), and preserves to such litigants a common-law remedy in the state courts; so that this action is clearly authorized thereby. It has been frequently construed. Chelentis v. Luckenbach Steamship Co., 156 C. O. A. 234, 243 F. 536, L. R. A. 1918F, 991; Id., 247 U. S. 383, 38 S. Ct. 501, 62 L Ed. 1171; Robins Dry Dock, etc., Co. v. Dahl, 266 U. S. 449, 45 S. Ct. 157, 69 L. Ed. 373.

(a) The first assignment of error here, and the one chiefly argued and relied upon, depends upon the proper construction of this statute. For the defendant company it is contended that the relief to be afforded in the Virginia courts, when pursuing the common-law remedy which is saved or allowed, must be according to the rules of the common law—specifically, that contributory negligence of the plaintiff is a complete defense in such an action; whereas, for the plaintiff, it is contended that the relief afforded by the common-law remedy must nevertheless accord with the rules of admiralty, and that such contributory negligence only mitigates or reduces the damages. There has been a sharp difference of opinion and some conflict of decision on such questions. Larson v Alaska Steamship Co., 96 Wash. 665, 105 P. 880, L. R. A. 1917F, 671. A note, to that case in L. R. A. 1917F, 678, cites the authorities as they appeared to the annotator at the time the note was prepared. Since then, however, the Supreme Court of the United States has considered and determined the question, so that now the debate should be considered closed.

In Southern Pacific R. Co. v. Jenson, 244 U. S. 205, 37 S. Ct. 524, 61 L Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, 14 N. C. C. A. 597, it is definitely ruled that the statute gives no authority to the several states to enact legislation which would operate to create material prejudice to the characteristic features of the maritime law, or interfere with the proper harmony and uniformity of that law in its international and interstate relations.

In The Moses Taylor, 4 Wall. 431, 18 L. Ed. 402, it was said:

"That clause only saves to suitors 'the right of a common-law remedy, where the common law is competent to give it' "

It is, therefore, only the privilege to prosecute for a maritime tort in the common-law courts which is saved. It is not the right of election to determine that the defendant's liability is to be measured by common law, rather than by maritime standards.

In Chelentis v. Luckenbach Steamship Co., supra, this is said in concluding the discussion:

"The distinction between rights and remedies is fundamental. A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury. Bouvier's Law Dictionary. Plainly, we think, under the saving clause, a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law; but we find nothing therein which reveals an intention to give the complaining party an election to determine whether the defendant's liability shall be measured by common-law standards rather than those of the maritime law. Under the circumstances here presented, without regard to the court where he might ask relief, petitioner's rights were those recognized by the law of the sea."

In Carlisle Packing Co. v. Sandanger, 259 U. S. 259, 42 S. Ct. 476, 66 L. Ed. 930, there is this unequivocal statement:

"The general rules of the maritime law apply whether the proceeding be instituted in an. admiralty or common-law court." Knickerbocker Ice Co. v. Stewart, 253 U. S. 159, 40 S. Ct. 438, 64 L. Ed. 838, 11 A. L. R. 1145; Engel v. Davenport, 271 U. S. 33, 46 S. Ct. 419, 70 L Ed. 813.

In the recent case of International Stevedoring Co. v. Haverty, 272 U. S. 50, 47 S. Ct 19, 71 L. Ed. 157, it is held that a longshoreman employed by a stevedore in loading freight in the hold of a ship is a "seaman, "within the meaning of the Act of June 5, 1920, c. 250, § 33, 41 Stat. 9S8, 1007, Comp. Stat. § 8337a, Fed. Stat. Ann. Supp. 1920, p. 227 (46 USCA § 688), providing that:

"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply."

The question there was whether the fellow-servant rule would defeat the plaintiff's recovery, and in this connection it is said:

"It is true that for most purposes, as the word is commonly used, stevedores are not 'seamen.' But words are flexible. The work upon which the plaintiff was engaged was a maritime service formerly rendered by the ship's crew. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 62, 34 S. Ct. 733, 58 L. Ed. 120S, 1212, 51 L. R. A. (N. S.) 1157. We cannot believe that Congress willingly would have allowed the protection to men engaged upon the same maritime duties to vary with the accident of their being employed by a stevedore rather than by the ship. The policy of the statute is directed to the safety of the men and to treating compensation for injuries to them as properly part of the cost of the business. If they should be protected in the one case they should be in the other. In view of the broad field in which Congress has disapproved and changed the rule introduced into the common law within less than a century, we are of opinion that a wider scope should be given to the words of the act, and that in this statute 'seamen' is to be taken to include stevedores employed in maritime work on navigable waters as the plaintiff was, whatever it might mean in laws of a different kind."

The latest case of which we have any knowledge is Messel v. Foundation Co., 274 U. S. 427, 47 S. Ct. 695, 71 L. Ed. 1136. Messel was an employee of the Foundation Company as a helper to a boiler maker. He was sent with the boiler maker on board the steamship "La Grange, " then afloat on...