Demer v. Pacific S.S. Co.
| Decision Date | 28 May 1921 |
| Docket Number | 5856. |
| Citation | 273 F. 567 |
| Parties | DEMER v. PACIFIC S.S. CO. et al. |
| Court | U.S. District Court — Western District of Washington |
Walter S. Fulton and Elmer E. Todd, both of Seattle, Wash., for plaintiff.
B. S Grosscup, and W. C. Morrow, both of Tacoma, Wash., and W. A Johnson, of Seattle, Wash., for defendant Pacific S.S. Co.
Jones Riddell & Brackett, of Seattle, Wash., for defendant Schmittling.
A reargument has been had in this case upon the representation that the court fell into error in holding that a federal question was involved in an action where plaintiff sues alleging that he was injured on a vessel, the injury resulting from her alleged unseaworthy condition, and that the question was an important one going to the court's jurisdiction. It is contended that the court probably erred, because certain decided cases were not pressed upon the court's attention.
The following reasons influenced the court in reaching its conclusion: Plaintiff's injury was suffered in waters of the state of Washington. Section 1 of the Washington Workmen's Compensation Act provides:
' Laws 1911, pp. 345, 346.
The repeal by the state of the common-law rights and remedies, and the conferring upon the District Court of the Circuit Court jurisdiction by the Judicial Code, open up a vista through which it may appear that a suit upon a tort suffered by one in the service of the ship upon navigable waters, not only arises under the Constitution and laws of the United States, but is now removable to the District Court, for the decisions of a state court as to its own laws are binding upon the federal court, and the state of Washington, in Sandanger v. Carlisle Packing Co., 192 P. 1005, has reached the conclusion that, in such a suit, it is not administering a state law, but a United States law-- the maritime law.
No one claims that Congress has the power to impose the burden on the state of trying common-law actions based upon rights not recognized by the state law. If the body of the admiralty law, adopted by the Constitution, thereby became something else then a law of the United States, then this case does not arise under the Constitution and the laws of the United States; otherwise, it does. There are two sets of laws in the United States: Laws of the United States and state laws. There are no others. This suit is not brought under the law of the state. If not brought under the laws of the United States, what is it brought under?
While the courts have refrained from deciding that such a case was one arising under the Constitution and laws of the United States, it appears to this court that it is hardly less significant that the courts have refrained from saying that it did not so arise. Why should the trial by jury in the District Court of maritime rights be limited to cases of diversity of citizenship? It is understandable why that should be if the maritime law is a part of the common law of the state; but, if it ever was, it has ceased to be a part of the law of the state of Washington.
Should the state court be burdened with determining rights and obligations growing out of federal law, which the federal courts will not entertain-- that is, where there is no diversity of citizenship, even though the requisite amount is involved-- particularly after the state has determined that these laws are wholly inadequate? There is no express enactment, law, or controlling decision denying the jurisdiction. When resort must be had to construction in order to determine the intent, the reason for ascribing a particular intent becomes important. No reason has been advanced why either the Constitutional Convention or Congress should have intended to treat the maritime law in this matter any different than any other law of the United States.
Granting that there are judicial expressions at variance with what is said herein, the safest guide to a law is to find its purpose, and the surest guide to its purpose is to find the reason for its enactment. The reason for saving the common-law remedy was that the common law was competent to afford to certain suitors relief. When the common law ceases to be competent to afford relief, as the Washington Legislature has declared, the reason ceases, and when the reason ceases, those rules that rest to such a large extent upon judicial decisions, because of the reason that has ceased to exist, are no longer safe guides, and new rules are necessary, even though they are based upon court decisions rather than statutes.
We now have this condition in suits at common law to enforce a maritime right: One litigant has a right to a jury trial in the courts of the United States, that is in case of the requisite diversity of citizenship, and without such diversity he has not. There would be nothing incongruous about this, if the suits arose under the state law, for it would be the state's duty to furnish the forum to administer its own laws. But, arising under the maritime law, after the repudiation of the law of master and servant, as to compensation for injury to the servant, by the state of Washington, the law would then appear not to be the perfection of logic, for, should the state court in any case decline the jurisdiction, where there was diversity of citizenship, the party complaining of a maritime tort could sue in the federal court at common law, but would have no right of suit in any court in the absence of diversity of citizenship.
If the suitor has more confidence in the jury than in the admiralty, and if he prefers what he conceives to be an advantage at common law over the more expeditious proceeding in admiralty, and should bring his suit at common law in the state court, why should not the defendant, if he hopes to secure more expeditiously the advantage of that uniformity of rule which the courts have ever declared to be the reason for giving the United States courts jurisdiction in admiralty, remove the cause to the District Court, rather than carry it through the state courts to the Supreme Court of the United States?
In case of injury upon navigable waters while engaged in a maritime service to the ship, an injury caused by its unseaworthiness, the injured person was given concurrent remedies. There is no question but that he might sue in admiralty or in the common-law courts of the state. In the admiralty he would have full compensation for his injuries, and also if he sued at common law; but the common-law court did not borrow from the admiralty the remedy of full compensation. To the contrary, the admiralty borrowed that right from the common law. While the duty of the owner in the admiralty to furnish a seaworthy ship, properly manned and equipped, may in some respects be narrower than a safe place in which to work and suitable appliances required of the master at common law for the servant's protection (McLanahan v. Universal Ins. Co., 1 Pet. (26 U.S.) 170, at 183 and 184, 7 L.Ed. 98; Olson v. Oregon Coal & Nav. Co., 104 F. 574, 44 C.C.A. 51; The Governor Ames, 55 F. 327; The Santa Barbara (C.C.A.) 263 F. 369; John A. Roebling's Sons Co. of N.Y. v. Erickson (C.C.A.) 261 F. 986), yet the reason for both requirements being, in general, the same, the former may be said to fall fairly within the latter. Therefore practically, if not theoretically, what the common-law courts of the state have been applying in these cases, prior to the enactment of the compensation laws, abolishing the common-law rights and remedies, has been common-law remedies based upon common-law rights, and what the admiralty has been doing is the adding to the common-law rights of a safe place to work and suitable appliances (which rights it borrowed from the common law), as well as the remedy of full compensation (a remedy which it also borrowed from the common law), the lien upon the offending vessel. The latter was solely the contribution of the maritime law. The borrowed right and borrowed remedy have so long been established as part of the maritime law as to at least, broadly speaking, now form a part of the law of the United States, as Judge Killits says in Schuede v. Zenith S.S. Co. (D.C.) 216 F. 566, as much so as though they were covered by the statutes of the United States.
To say that what the state courts have been doing in such cases before the adoption of Compensation Acts was the administration of the maritime law under common-law procedure, such as trial by jury and attachment of property, prior to...
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