Gebhard v. SS Hawaiian Legislator

• Decision Date: 09 April 1970
• Docket Number: No. 22880.,22880.
• Citation: 425 F.2d 1303
• Parties: Marvin W. GEBHARD, Plaintiff-Appellant, v. S.S. HAWAIIAN LEGISLATOR, her engine, tackle, gear, appurtenances, Matson Navigation Company, a corporation, Matson Terminals, Inc., a corporation, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.2d 1303 (1970)

Marvin W. GEBHARD, Plaintiff-Appellant, v. S.S. HAWAIIAN LEGISLATOR, her engine, tackle, gear, appurtenances, Matson Navigation Company, a corporation, Matson Terminals, Inc., a corporation, Respondents-Appellees.

No. 22880.

United States Court of Appeals, Ninth Circuit.

April 9, 1970.

COPYRIGHT MATERIAL OMITTED

A. W. Wallace (argued), Wallace & Wallace, Los Angeles, Cal., for plaintiff-appellant.

Robert Sikes (argued), Sikes, Pinney & Matthew, North Hollywood, Cal., for respondents-appellees.

Before HUFSTEDLER, WRIGHT and KILKENNY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

This action is by a marine clerk for injuries sustained on a pier in connection with the loading of the S.S. Hawaiian Legislator. He alleges negligence and unseaworthiness, and joins as defendants the ship, her owner, and the stevedoring company, his employer. The District Court dismissed the cause for want of admiralty jurisdiction, there being no diversity, and plaintiff appeals.

On the evening of July 13, 1966, the S.S. Hawaiian Legislator was loading a cargo of container vans at Wilmington, California. The vans were brought to the pier by truck, and transferred from the front of the pier to the water's edge by straddle carriers — large vehicles equipped with grappling hooks that fit into holes in the containers. A crane then hoisted the vans aboard ship.

Plaintiff's job in the loading operation was to direct the straddle carriers into position beneath the crane. He was injured when one of the carriers ran into him and crushed his leg. It is alleged that neither the pier nor the straddle carriers had lights, that the carriers were so designed as to block the driver's view of pedestrians, and that the lack of these safety precautions was the proximate cause of plaintiff's injury.

In the view we take of the case, it will be necessary to consider separately the claim for negligence against the ship and her owner, the claim for negligence against the stevedore company, and the claim for unseaworthiness.¹

Judge KILKENNY and I join in Parts I and II of the opinion which follows, reversing the judgment below as to the claims of negligence. Judges HUFSTEDLER and KILKENNY join in Part III, which reverses the judgment below as to the claim for unseaworthiness.

I.

As to the negligence claim against the ship and her owner, there would clearly have been no jurisdiction prior to the Extension of Admiralty Jurisdiction Act of 1948. For the admiral's tort jurisdiction was traditionally "bounded by locality," De Lovio v. Boit, 7 Fed.Cas.pp. 418, 444, No. 3,776 (C.C.D. Mass.1815) (Story, J.), reaching only to cases where the injury occurred on navigable waters. The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935); The Plymouth, 3 Wall. 20, 70 U.S. 20, 18 L.Ed. 125 (1866). And piers were considered for jurisdictional purposes as extensions of the land. Swanson v. Marra Bros., Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946); T. Smith & Son, Inc. v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520 (1928).

The Extension Act broadened admiralty jurisdiction to include injuries "caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." 46 U.S.C. § 740. The question then is whether these injuries were "caused by a vessel."

We think that as to the causes of action sounding in negligence, the matter has been settled by the Supreme Court's decision in Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1962). That case held that a court of admiralty had jurisdiction under 46 U.S.C. § 740 over a claim arising out of a shipowner's negligence in allowing beans to be unloaded in defective bagging. The Court rejected the idea that the Extension Act was limited to injuries "actually caused by the physical agency of the vessel or a particular part of it — * * *. There is no distinction in admiralty between torts committed by the ship itself and by the ship's personnel while operating it, any more than there is between torts `committed' by a corporation and by its employees." 373 U.S. at 209-210, 83 S.Ct. at 1188.

We see no substantial difference for jurisdictional purposes between an allegation that the shipowner was negligent in allowing beans to be unloaded by means of dangerously defective bagging, and one that he was negligent in allowing vans to be loaded by means of dangerously defective equipment. On remand the defenses of lack of actual or constructive knowledge, unforeseeability, and perhaps independent contractor, see Albanese v. N.V. Nederl. Amerik Stoomv. Maats., 382 U.S. 283, 86 S.Ct. 429, 15 L.Ed.2d 327 (1965), will still be open. Morales v. City of Galveston, 370 U.S. 165, 167-168, 82 S.Ct. 1226, 8 L.Ed. 2d 412 (1962); United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 618-619, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959). The District Court has jurisdiction to decide them.

II.

The claim for negligence against the stevedoring company presents somewhat different issues. The difficulty is that the allegations that would support jurisdiction are not the same as those that would support recovery. Jurisdiction must depend on the contention that the injury was "caused by a vessel" — i. e., in the circumstances of this case, that the shipowner was negligent, see Part I, supra. But recovery turns on the allegation that the stevedoring company was negligent. Hence the question is whether the Extension Act, in giving jurisdiction over claims for injury "caused by a vessel," is restricted to jurisdiction over suits against the persons responsible for the vessel's torts, or whether it extends to all claims arising out of a vessel-caused injury, regardless of the parties sought to be charged.

We think the latter is the proper construction. The Act by its terms applies to "all cases" where the injury is "caused by a vessel on navigable water." It imposes no other requirements. On its face, therefore, the Act seems to base jurisdiction not on the character of the parties, as in diversity, but on the nature of the facts giving rise to the cause. And in view of the savings of time and money — both to litigants and to the courts — that result from consolidation in one action of all claims arising out of a single injury, we see no reason why we should depart from the literal meaning of the Act. The few cases in point support our conclusion. Fematt v. City of Los Angeles, 196 F.Supp. 89 (S.D.Cal.1961); Hovland v. Fearnley & Eger, 110 F.Supp. 657 (E.D.Pa.1952). David Crystal, Inc. v. Cunard S.S. Co., 223 F.Supp. 273 (S.D.N.Y.), is not contra, since our result does not rest on the ancillary jurisdiction of federal courts, but directly upon the statute.

The company contends that plaintiff's claims against it are barred by the Longshoremen's Act, 33 U.S.C. § 901-950. Be that as it may, the matter does not affect the jurisdiction of the court below, for dismissal on such a ground would be on the merits. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L. Ed. 939 (1946).

III.

HUFSTEDLER, Circuit Judge:

The parties argue the unseaworthiness issue as if it turned on the interpretation of the Extension Act, 46 U.S.C. § 740. We think, as did the District Court, that the controlling principles are not found in the Extension Act, but in general maritime law, but we read that law differently from the District Court.

The Constitution provides that the federal judicial power shall extend to "all Cases of admiralty and maritime Jurisdiction" (U.S.Const., art. III, § 2), but it has been left to Congress and to the courts to define that phrase. Section 9 of the Judiciary Act of 1789 (1 Stat. 76, as amended, 28 U.S.C. § 1333) provided little clarification of the constitutional grant, for it conferred on the district courts "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction * * *." And until 1948, the year of the Extension of Admiralty Jurisdiction Act, Congress passed no other acts directed to the question of admiralty jurisdiction. The task of charting the outlines of that jurisdiction was left to the federal courts.

The case law developed by the courts prior to 1948 indicated two primary sources of admiralty jurisdiction: a contract that was "maritime" in nature and a tort that occurred on navigable waters. (E. Benedict, Law of American Admiralty (1940) 2; G. Gilmore & C. Black, Law of Admiralty (1957) § 1-9.) A contract claim was within the admiralty jurisdiction if the contract related to the "navigation, business or commerce of the sea," while jurisdiction for a tort claim was a strict matter of "locality." (De Lovio v. Boit (C.C.D.Mass.1815) 7 Fed.Cas.pp. 418, 444, No. 3,776.)

Not all tort claims were restricted by the locality rule, however. An exception developed in certain instances in which the injured party possessed a maritime "status" or "relation." The oldest example is the seaman's ancient right to "maintenance and cure," a limited form of recovery granted to seamen injured in the course of their employment. Recovery is available regardless of whether the injury occurs on land or sea. (E. g., The Betsy Ross (9th Cir. 1944) 145 F.2d 688.) The Supreme Court recognized that maintenance and cure was an "important exception" to the generalization that maritime law "has not in general allowed recovery for personal injuries occurring on land." (O'Donnell v. Great Lakes Dredge & Dock Co. (1943) 318 U.S. 36, 41, 63 S.Ct. 488, 491, 87 L.Ed. 596.) The seaman's maritime status made the injury an appropriate subject to maritime jurisdiction, regardless of the locality of the injury. (318 U.S. at 42, 63 S.Ct. 488.)¹

A second category of tort claim unaffected by the locality rule was recovery under the Jones Act. (41 Stat. 1007 (1920), 46 U.S.C. § 688.) The Act...