Cordrey v. The Bee

• Citation: 201 P. 202,102 Or. 636
• Parties: CORDREY v. THE BEE. APPEAL OF BEE S. S. CO.
• Decision Date: 04 October 1921
• Court: Supreme Court of Oregon

201 P. 202

102 Or. 636

CORDREY v. THE BEE. APPEAL OF BEE S. S. CO.

Supreme Court of Oregon

October 4, 1921

Department 2.

Appeal from Circuit Court, Multnomah County; John P. Kavanaugh Judge.

Action by Joseph C. Cordrey against the steamship Bee. From a personal judgment against it, the Bee Steamship Company appeals. Reversed and remanded.

While on the dock at which the steamship Bee was berthed in Portland in this state and was discharging her cargo of cement, the plaintiff, a stevedore, was hurt by a sling load of cement which fell on the truck he was operating, so that it threw him on the dock and injured him. The home port of the ship was in the state of California, and it was owned by a corporation of that state. The plaintiff had judgment in personam against the owner of the vessel, from which that owner appeals. The further facts appear in the opinion.

Bean J., dissenting in part.

Wallace McCamant, of Portland (McCutchen, Willard, Mannon & Greene of San Francisco, Cal., and McCamant, Bronaugh & Thompson, of Portland, on the brief), for appellant.

William P. Lord, of Portland (A. I. Moulton, of Portland, on the brief), for respondent.

BURNETT C.J.

We deduce from the bill of exceptions substantially this state of facts: The vessel in question had arrived in Portland with a cargo of cement consigned to local parties. The consignee or some one operating for him on the land telephoned to the longshoremen's union for a number of stevedores to assist in unloading the cargo. Several men, including the plaintiff were sent by the union to the dock. On arriving there, some one acting as mate of the vessel directed the plaintiff with others to remain on the dock for service there while the rest were taken into the hold of the vessel. The plaintiff took an ordinary hand truck and was engaged in receiving from the sling of the vessel truck loads of cement. The ship's tackle by means of pulleys and ropes took a number of sacks of cement in a sling from the hold of the vessel, hoisted it up, and swung it out over the dock, lowering it upon the trucks. While the plaintiff was waiting to receive a load in this manner, the sling broke before the load reached the dock, and the sacks of cement falling upon the truck threw the plaintiff over upon his back, by which he suffered the injuries complained of.

Section 10281, Or. L., provides that--

"Every boat or vessel navigating the water 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. * * *"

After providing for the priority of liens, the statute in section 10283 declares that--

"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."

We find this in section 10284--

"Any person wishing to commence an action against a boat or vessel shall file his complaint against such boat or vessel by name with the clerk of the circuit court of the county in which such boat or vessel may lie or be. The complaint shall set forth the plaintiff's demand in all its particulars, and on whose account the same accrued, and shall be verified by the plaintiff or some credible person for him."

Section 10285 states:

"Whenever such complaint shall be filed, the clerk shall issue a warrant thereon, commanding the sheriff to seize the boat or vessel mentioned in the complaint, with her tackle, apparel. and furniture, and retain the same until discharged from such custody by due course of law."

Section 10286 is as follows:

"Upon the return of any warrant issued as prescribed in the last section. proceeding shall be had in the circuit court against the boat or vessel seized, in the same manner as if the action had been commenced against the person on whose account the demand accrued."

In section 10287 it is said:

"The master, owner, agent, or consignee of the boat or vessel may appear on behalf of such boat or vessel and answer the complaint."

Section 10288 provides that--

"If in any action commenced under the provisions of this chapter the master, owner, agent, or consignee shall not appear and answer the complaint, the plaintiff may proceed to take judgment in the same manner and under the same restrictions as in a civil action against a natural person; if an issue of fact be joined, the same proceeding shall be had as in other actions." There are other sections which provide for filing an undertaking or making a deposit in lieu thereof, for the discharge of the boat. The judgment prescribed in section 10291 is to the effect that if judgment be rendered against the boat or vessel, the court shall make an order directed to the sheriff commanding him to sell the same for the satisfaction of the judgment.

The owner of the vessel, the Bee Steamship Company, appeared as claimant, traversed most of the complaint, denied the jurisdiction of the court over the controversy or over the steamship, and averred that the accident happened on account of the negligence of the plaintiff himself; that he assumed the risks of the employment of which the liability to the injury complained of was one; that at the time of the accident and for a long time prior thereto the steamship had been engaged in interstate commerce, and was discharging a cargo which had been transported on the vessel from the state of California to the state of Oregon when the accident occurred. It is also said as a further affirmative defense that the plaintiff was employed by the Oregon Portland Cement Company, an Oregon corporation which was in actual possession of the dock upon which the cargo was being stored; and that the injury of the plaintiff was sustained while he was working for the Oregon Portland Cement Company, with the conclusion that the accident was to be governed only by what is known as the industrial accident law.

That portion of the answer averring contributory negligence is denied. The answer which sets up averments of risk is traversed as to the allegations of the foreign status of the claimant and its ownership of the Bee as well as to the averments that the plaintiff was an experienced man and informed of all the incidents of the work and of the risks and dangers attached thereto. Otherwise, the new matter in the answer is not denied.

The principal effort of the claimant and owner of the vessel is to establish its contention that the state courts have no jurisdiction of the subject-matter of the litigation. It maintains that only the federal courts of admiralty have any authority over the grievance complained of. It is true that under section 2 of article 3 of the United States Constitution it is said that--

"The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, * * * to all cases of admiralty and maritime jurisdiction."

Federal legislation in pursuance of this provides that the district courts shall have original jurisdiction of all suits of a civil nature at common law or in equity where the matter in controversy exceeds, exclusive of interest and costs, the sum and value of $3,000, and arises under the laws or Constitution of the United States and treaties which are made or shall be made under their authority, or is between citizens of different states, and in all civil causes of admiralty or maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it. Section 24 of the Judicial Code of the United States. A later amendment enacted October 6, 1917, by Congress, adds to the saving clause as follows:

"* * * And to claimants the rights and remedies of the workmen's compensation law of any state." U.S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, § 991(3).

In this branch of the case, therefore, the crucial question is whether the grievance complained of is of admiralty cognizance, or whether it belongs to the state courts. In Philadelphia, etc., R. R. Co. v. Philadelphia, Havre de Grace, etc., Co., 23 How. 209, 16 L.Ed. 433, it is said:

"The jurisdiction of courts of admiralty, in matters of contract, depends upon the nature and character of the contract, but in torts, it depends entirely on locality."

It is taught in The J. E. Rumbell, 148 U.S. 1, 13 S.Ct. 498, 37 L.Ed. 345, that the federal maritime jurisdiction is exclusive; that state legislation cannot bring within admiralty jurisdiction a subject not maritime in its nature, "but when a right, maritime in its nature, and to be enforced by process in the nature of admiralty process, has been given by the statute of a state, the admiralty courts of the United States have jurisdiction, and exclusive jurisdiction, to enforce that right according to their own rules of procedure." We learn from the Willapa, 25 Or. 71, 74, 34 P. 689, that state laws cannot confer admiralty jurisdiction upon the state courts so as to enable them to proceed in rem for the enforcement of liens created by such laws, for it is exclusively conferred upon the district courts of the United States. The case of The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397, was founded on a breach of a maritime contract, and the court held that the statute of the state of California, almost precisely in terms like our own, authorizing an action against the steamer by name, established a proceeding in the nature and with all the incidents of a suit in admiralty. It was decided there that this was without the scope of state legislative power. In The Chusan, 2 Story, 455, 5 F. Cas. p. 680, and The...