Dean v. Chesapeake Bay Ferry District, 7829.

• Decision Date: 30 January 1958
• Docket Number: No. 7829.,7829.
• Citation: 158 F. Supp. 408
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Hubert James DEAN, Libellant, v. CHESAPEAKE BAY FERRY DISTRICT and The Greyhound Corporation, Respondents.

158 F. Supp. 408

Hubert James DEAN, Libellant, v. CHESAPEAKE BAY FERRY DISTRICT and The Greyhound Corporation, Respondents.

No. 7829.

United States District Court E. D. Virginia, Norfolk Division.

January 30, 1958.

Bangel, Bangel & Bangel, Portsmouth, Va., Stanley J. Bangel, Portsmouth, Va., for libellant.

Vandeventer, Black & Meredith, Hugh S. Meredith, Norfolk, Va., for Chesapeake Bay Ferry Dist.

Seawell, Johnston, McCoy & Winston, John W. Winston, Norfolk, Va., for Greyhound Corp.

WALTER E. HOFFMAN, District Judge.

Libellant, a fare-paying passenger on a ferry owned, operated and controlled by respondent, Chesapeake Bay Ferry District, has instituted this action in admiralty against the Chesapeake Bay Ferry District and The Greyhound Corporation, alleging negligence on behalf of both respondents. The Greyhound Corporation has filed exceptions to the jurisdiction under the theory that the action, as to The Greyhound Corporation, is not cognizable in admiralty and that there has been a misjoinder of parties respondent.

The negligence of The Greyhound Corporation is alleged to be that the operator of this respondent's bus permitted his vehicle to roll against libellant after the bus had boarded the ferry boat. As to the owner and operator of the ferry boat, it is contended that improper care was exercised in the maintenance and operation of the boat, passageways, and storage of vehicles.

Desiring to prove contributory negligence on the part of libellant which, under the law of Virginia, would be a complete bar to the right of recovery, The Greyhound Corporation urges that its exceptions should be sustained. If the matter is heard in admiralty, the contributory negligence, if any, of libellant would only operate in mitigation of damages.

While the interesting question presented is not free from doubt, the prevailing rule is that the locality of the tort furnishes the test as to whether the cause is one "of admiralty and maritime Jurisdiction". Const. Art. III, § 2; Rev. Stat., § 563; Judicial Code, § 24; Act of Sept. 24, 1789, C. XX, § 9, 1 Stat. 73, 76, 28 U.S.C.A. § 1333. In this case the ferry boat was lying in navigable waters and the locality test has been fully met.

Respondent relies upon the dicta in Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U.S. 52, 60, 34 S.Ct. 733, 735, 58 L.Ed. 1208, where it is said:

"But the petitioners urge that the general statements which we have cited, with respect to the exclusiveness of the test of locality in cases of tort, are not controlling; and that in every adjudicated case in this country in which the jurisdiction of admiralty with respect to torts has been sustained, the tort, apart from the mere place of its occurrence, has been of a maritime character. It is asked whether admiralty would entertain a suit for libel or slander circulated on board a ship by one passenger against another. See Benedict, Admiralty, 4th ed., § 231. The appropriate basis, it is said, of all admiralty jurisdiction, whether in contract or in tort, is the maritime nature of the transaction or event; it is suggested that the wider authority exercised in very early times in England may be due to its antedating the recognition by the common-law courts of transitory causes of action, and thus arose by virtue of necessity."

The Supreme Court did not find it essential to discuss the foregoing. As to the hypothetical case of libel or slander circulated on board ship, such an action is of a nature of continuing injury to the offended party and the resulting damage would not be confined to the vessel.

In Chesapeake Ferry Co. v. Cummings, 158 Va. 33, 164 S.E. 281, 82 A.L. R. 790, the action was brought in the state court and the question of admiralty jurisdiction with its attendant rule as to the treatment of contributory negligence was never raised by the parties. In Cummings the driver of an automobile boarding the ferry went through the chain barrier at the forward end of the boat and drowned. While the opinion does not definitely state the theory upon which the contributory negligence was submitted to the jury, it is rather apparent that neither party endeavored to invoke the admiralty rule, and the case can hardly be considered as authority for the position that admiralty has no jurisdiction under such a set of facts. In fact, under like circumstances, admiralty courts have apparently taken jurisdiction. Shepard v. Reed, 6...