Fireman's Fund Ins. Co. v. City of Monterey

• Decision Date: 09 June 1925
• Docket Number: No. 18569-18572.,18569-18572.
• Court: U.S. District Court — Northern District of California
• Parties: FIREMAN'S FUND INS. CO. v. CITY OF MONTEREY, and three other cases.

6 F.2d 893 (1925)

FIREMAN'S FUND INS. CO. v. CITY OF MONTEREY, and three other cases.

Nos. 18569-18572.

District Court, N. D. California, S. D.

June 9, 1925.

Farnham P. Griffiths, Jay T. Cooper, and McCutchen, Olney, Mannon & Greene, all of San Francisco, Cal., for libelants.

Bell & Simmons, of San Francisco, Cal., and Argyll Campbell, of Monterey, Cal., for respondents.

KERRIGAN, District Judge.

These are four libels, brought by certain insurance corporations against the city of Monterey, a municipal corporation. Libelants are assignees of the shippers of a large number of cases of canned sardines, which were lost or damaged when a wharf, owned and operated for commercial purposes by respondent, collapsed and precipitated said cases into the navigable waters of Monterey Bay.

The libels allege that the wharf was caused to collapse by respondent's fault and negligence: (1) In allowing the steamer San Antonio to moore alongside it; (2) in failing to breast off said steamer, which by its surging caused the accident; (3) in failing to renew the piles which supported said wharf, after many of them had become rotten and worm-eaten; (4) in storing thereon excessive quantities of heavy merchandise; and (5) in failing to have a sufficient number of fender pilings to protect against the surging of vessels while moored to the wharf.

The cases are before us on exceptions to the jurisdiction of this court. Respondent alleges that the several causes of action appear from the face of the libels to have arisen on land, and hence do not lie within the maritime jurisdiction. The general rule is that "the test of jurisdiction in matters of tort is the locality." Hughes, Admiralty (2d Ed.) § 96. Here it is admitted that all the acts and omissions of respondent took place on land, since the wharf in relation to which they occurred is considered in law as land. Hughes (2d Ed.) § 198, and cases cited; The Plymouth, 70 U. S. (3 Wall.) 20, 18 L. Ed. 125. But, as no actual damage to the goods was inflicted until they were thrown or fell into the water, it is asserted that the locality of the injury is the Bay of Monterey, which admittedly is within the jurisdiction of a court of admiralty.

Respondent has cited many cases sustaining the proposition that, where a force or act, whether of omission or commission, originates on navigable waters and operates upon an object on land, causing it to move to a place in navigable waters, to its ultimate injury, admiralty has no jurisdiction, for the reason that the wrong was committed when the force or act came in contact with or operated upon the object. Johnson v. Chicago & P. Elevator Co., 119 U. S. 388, 7 S. Ct. 254, 30 L. Ed. 447; The Haxby (D. C.) 95 F. 170; Martin v. West, 222 U. S. 191, 32 S. Ct. 42, 56 L. Ed. 159, 36 L. R. A. (N. S.) 592; Scott v. Department of Labor and Industries (The Carolyn) 130 Wash. 598, 228 P. 1013, 1015, 1925 A. M. C. 176; The Albion (D. C.) 123 F. 189; Lindstrom v. International Nav. Co. (C. C.) 117 F. 170. Conversely, cases are cited to the effect that, where a force or act originates on land and operates on an object on navigable waters, causing it to move to a place on land to its ultimate injury, admiralty has jurisdiction. The Samnanger (D. C.) 298 F. 620, 1924 A. M. C. 517; The Strabo (D. C.) 90 F. 110; affirmed, 98 F. 998, 39 C. C. A. 375.

Here the acts and omissions charged both originated on land and operated there upon the property which was damaged. Respondent therefore argues that a clear lack of jurisdiction has been made out. It is, however, noticeable that, with a single exception (The Carolyn, supra), all of these cases are in one important respect distinguishable from the case at bar; i. e., that in the latter no injury occurred until the goods reached the water, in which they finally came to rest. In Johnson v. Chicago & P. Elevator Co., supra, the Supreme Court dealt with a situation closely analogous to this. There the jibboom of a schooner, in the Chicago river, was negligently driven through the wall of a warehouse on adjacent land, whereby a large quantity of shelled corn, stored in the warehouse, ran out into the river and was lost. It was held that, "the substance and consummation of the wrong having taken place on land, and not on navigable water, and the cause of action not having been complete on such water," the remedy "belonged wholly to a court of common law." This decision, however, appears to have been largely influenced by the fact that the building also was damaged, and the loss of the corn and the injury to the building were considered as constituting one wrong.

In The Haxby (D. C.) 95 F. 170, on which strong reliance was placed, the libel alleged that a vessel "crushed into the pier with terrific force, so as to carry away a large portion of the pier, and to hurl into the water" libelant's personal property. It was held that the injury was done upon land; the court saying: "I think it must be held that the injury was done upon the pier. It was there that the wrongful violence was inflicted, and what happened afterwards, namely, the sinking of the blocks and tools, was an unavoidable consequence due to gravity, and should be considered as an inseparable incident of the blow." The case at bar would not seem to be governed by the same rule, for here no violence was inflicted on land and no damage occurred there. The acts and omissions complained of could not have been made the subject of an action at common law for anything which occurred before the sardines in question came in contact with the water.

In Lindstrom v. International Nav. Co. (C. C.) 117 F. 170, by the defendant's negligence plaintiff's intestate was carried overboard by a wave, which violently swept the steerage passengers of a steamer backward and forward on its deck, and she was drowned in the sea. The court held that the tortious act which resulted in her death was committed on board the ship, and hence within the territory of its home state. Its reasoning was as follows: "There is no intention to state that a tortious act without injury gives a cause of action; but a tortious act, taking effect and producing injury, creates the cause of action, although the final injury be completed elsewhere. Thus, if A., in charge of a ship, strike B., so that he fall overboard and receive injury from the ocean, the tortious act takes effect and does injury on the ship, and brings B. into a condition where he receives further injury. The blow on...