Frazie v. Orleans Dredging Co
| Decision Date | 02 May 1938 |
| Docket Number | 33030 |
| Citation | 180 So. 816,182 Miss. 193 |
| Court | Mississippi Supreme Court |
| Parties | FRAZIE v. ORLEANS DREDGING Co |
Suggestion Of Error Overruled June 6, 1938.
(In Banc.)
1 ADMIRALTY.
As regards applicability of Federal Seamen's Act to action for injuries sustained by seaman employed on a dredge boat, a dredge boat which is cutting a channel across land, intended to be navigable when finished, is not engaged in "maritime work," although as an incident thereof the dredge boat is followed as it proceeds by a navigable channel in its rear (46 U.S.C. A., sections 688, 713).
2 ADMIRALTY.
As regards applicability of the Federal Seamen's Act to action for injuries sustained by seaman employed on a dredge boat, a dredge boat which is deepening a navigable channel or one which has been a navigable channel so as to make it again actually navigable is engaged in "maritime work" (46 U.S.C. A., sections 688, 713).
3 ADMIRALTY.
A nontidal stream or channel, in order to have the character of "navigability" so as to bring it within the admiralty jurisdiction and within the purview of the Federal Seamen's Act, must be, or have been in the past, capable of being used as a national public highway a considerable part of the year, and it is not sufficient that it have or had an adequate volume of water therefor only occasionally as a result of freshets or floods for brief periods of uncertain recurrence and duration (46 U.S.C. A sections 688, 713).
4. ADMIRALTY.
In order that navigation by flood waters or high stages of water shall bring the stream or channel into the character of "navigability" within admiralty jurisdiction and within purview of the Federal Seamen's Act, stages of high water must occur with some frequency and at times of reasonable certainty and continue long enough to make the use of the stream or channel of dependable commercial value as a national public highway for that purpose (46 U.S.C. A., sections 688, 713).
5. PLEADING.
In suit for injuries to seaman on dredge boat which was allegedly at work in a channel of the Mississippi river that previously had been open to navigation, the question of whether the channel previously had occupied the status of a navigable channel so that the suit could be maintained under the Federal Seamen's Act could be determined only by proof and was not determinable upon demurrer (46 U.S.C. A., sections 688, 713).
HON. R. W. CUTRER, Chancellor.
APPEAL from the chancery court of Adams county, HON. R. W. CUTRER, Chancellor.
Suit by Stelly Frazie against Orleans Dredging Company for injuries sustained by the plaintiff while he was in the employ of the defendant. From a final decree dismissing the amended bill, on demurrer, the complainant appeals. Reversed and remanded.
Reversed and remanded.
Whittington & Brown and Engle & Laub, all of Natchez, and Watkins & Eager, of Jackson, for appellant.
Appellant was entitled to recover under the Seamen's Act, and the court below committed error in dismissing the amended complaint based thereupon.
Par. 1, Sec. 2, Art. III, Constitution of U. S.; U.S.C. A., Title 46, sec. 688, 713; U.S.C. A., Title 45, sec. 51; The Arizona v. Anelich, 298 U.S. 110, 80 L.Ed. 1075; Hunt v. U.S. 17 F.Supp. 578; United Dredging Co. v. Lindberg, 18 F.2d 453; Fuentes v. Gulf Coast Dredging Co., 54 F.2d 69; Messel v. Foundation Co., 274 U.S. 427, 71 L.Ed. 1135; Saylor v. Taylor, 77 F. 476; The Hurricane, 2 F.2d 70, 9 F.2d 396; City of Los Angeles v. United Dredging Co., 14 F.2d 364; The Showboat, 47 F.2d 286; The Ark, 17 F.2d 446; Kibadeaux v. Standard Dredging Co., 81 F.2d 670; Spencer Kellogg & Sons v. Hicks, 258 U.S. 502, 76 L.Ed. 903; Moss Tie Co. v. Tanner, 44 F. 928; Warner v. Goltra, 293 U.S. 155, 79 L.Ed. 254; Uravic v. Jarka, 282 U.S. 234, 75 L.Ed. 311; Ellis v. U.S. 206 U.S. 246, 51 L.Ed. 1047; Butler v. Ellis 45 F.2d 951; 46 U.S.C. A. 971; Eastern Dredging Co., 138 F. 942; McMaster v. Dredge, 95 F. 832; Ender v. Greco, 3 F. 411; Sunbeam, 195 F. 468; Warren v. Smadbeck, 50 F.2d 99; Rogosich v. Union Dry Dock & Repair Co., 67 F.2d 377; George Leary Const. Co. v. Matson, 272 F. 461.
The Chancellor in the court below committed error in failing and refusing to give full faith and credit to the laws and statutes of the State of Louisiana.
Sec. 1, Art. IV, Constitution of U. S.; Alaska Packers' Assn. v. Industrial Accident Commission, 79 L.Ed. 1044; Bradford v. Clapper, 286 U.S. 145, 76 L.Ed. 1026, 82 A.L.R. 696; Orleans Dredging Co. v. Frazie, 173 So. 431; Philips v. Guy Drilling Co., 79 So. 549; National Park Bank v. Concordia Land & Timber Co., 105 So. 234; Keith v. T. & P. R. R. Co., 129 So. 190, 132 So. 223; Anding v. T. & P. R. R. Co., 104 So. 190; Callender v. Marks, 171 So. 86; Vernon v. I. C. R. R. Co., 97 So. 493; Blount v. Kansas City So. Ry. Co., 5 F.2d 967; Ford, Bacon and Davis v. Volentine, 64 F.2d 800; White v. Louisiana Western Ry. Co., 140 So. 486; Hancock Mutual Life Ins. Co. v. Yates, 81 L.Ed. 106.
It must be borne in mind that the rights of seamen have been constantly enlarged and not restricted, and the act is to be liberally and not strictly construed.
Arizona v. Anelich, 298 U.S. 110, 80 L.Ed. 1075; International Stevedoring Co. v. Haverty, 272 U.S. 50, 71 L.Ed. 157; Beadle v. Spencer, 298 U.S. 124, 80 L.Ed. 1082.
It is perfectly apparent that the Lindberg case is no authority here against the appellant, because a construction of the Seamen's Act was not even involved, and any language used by Judge Bryan in respect to the act was purely voluntary, obitur dictum, and totally unnecessary to a decision of the case.
It is perfectly apparent that the Seamen's Act of Congress had no application, first, because, as Judge Bryan states in his opinion, there was no evidence whatsoever of negligence. Second, the appellant was engaged in pumping silt and sand from shallow water in the Galveston Bay on to the land, for the purpose of raising the elevation of forty or fifty acres of land on the Virginia Point. Therefore, the dredging operations had no relation to commerce whatsoever. In the present case, however, the dredge boat was engaged in scouring out, widening and deepening a channel which had previously been made to form a part of the Mississippi River, through which navigation was had. It is apparent that this case is not at all in point.
The rule that dredges engaged in work in furtherance of navigation are vessels within the meaning of the maritime law, and as such are subject to maritime liens for wages and supplies furnished, is sustained by the overwhelming weight of authority.
The Dredge A, 217 F. 617; North American Dredging Co. v. Pacific Mail S. S. Co., 185 F. 698; Charles Barnes Co. v. One Dredge Boat, 169 F. 895; McMaster v. One Dredge, 95 F. 832; McRae v. Bowers Dredging Co., 86 F. 344; The Steam Dredge No. 1, 87 F. 760; The International, 83 F. 840; The Starbuck, 61 F. 502; The Atlantic, 53 F. 607; 59 A.L.R. 1343; Butler v. Ellis, 45 F.2d 951; 46 U.S.C. A. 971; Saylor v. Taylor, 77 F. 476; Eastern Dredging Co., 138 F. 942; Endner v. Greco, 3 F. 411; Sunbeam, 195 F. 468; Warren v. Smadbeck, 50 F.2d 99; Rogosich v. Union Dry Dock & Repair Co., 67 F.2d 377; Hurricane, 2 F.2d 70, 9 F.2d 396; George Leroy Construction Co. v. Matson, 272 F. 461; Maryland Casualty Co. v. Lawson, 94 F.2d 191.
Under the allegations of the amended declaration when appellant was first employed by appellee it was impossible for the Louisiana Compensation Act to be applicable to that employment or for the parties to be held to have contracted with that law in mind, for the simple reason that the law of the land was that the Seamen's Act was the exclusive remedy and right afforded the parties. The law presuming all parties to know the law, it must be assumed that they contracted for their dredging work with the view that the Seamen's Act was the applicable law and not the Louisiana Compensation Act.
We most earnestly urge upon the court that this court in its former opinion has wholly assumed that at the time the appellant was employed by the appellee that the work in which the appellee was engaged fell within the terms and provisions and was governed by the Louisiana Compensation Act; for without such assumption this court could not have given extra-territorial effect of that law for an injury that happened in Mississippi as it has done in its previous judgment and holding in this case.
In view of the meager testimony at the original trial as to the actual work in which the appellee was engaged at the time of the original employment, this court was without the information and knowledge of what the actual employment was as is now set forth in the amended declaration, and this court now having before it the amended declaration which definitely and specifically alleges such facts as definitely and specifically show that the Louisiana Compensation Act cannot apply either under the decisions of the Supreme Court of the State of Louisiana itself or the decisions of the United States Supreme Court, and the facts pleaded in the amended declaration standing now before this court by a demurrer as being admitted, we say we again insist that in view of this amended declaration and of these admitted facts by demurrer this court cannot adhere to its original position in this matter and in this cause.
In the Lindberg case the plaintiff was not injured as a result of any negligence of the dredging company, but came to his death accidentally. Therefore, no negligence having been charged or proved, the Seamen's Act was not even applicable. The Jones Act or Seamen's Act provides for recovery only where the employer is guilty of negligence, and no negligence was alleged or attempted to be proved in the case of Union Dredging Company v....
To continue reading
Request your trial
- Hardin v. Grenada Bank, 32612
- Hardin v. Grenada Bank
- Hitt v. State
- Orleans Dredging Co. v. Frazie