Grimberg v. Admiral Oriental S.S. Line

• Decision Date: 07 July 1924
• Docket Number: 8339.
• Citation: 300 F. 619
• Parties: GRIMBERG v. ADMIRAL ORIENTAL S.S. LINE.
• Court: U.S. Court of Appeals — Ninth Circuit

300 F. 619

GRIMBERG v. ADMIRAL ORIENTAL S.S. LINE.

No. 8339.

United States District Court, W.D. Washington, Northern Division.

July 7, 1924

J. E McGrew and Morris & Shipley, all of Seattle, Wash., for plaintiff.

Bronson Robinson & Jones, of Seattle, Wash., for defendant.

CUSHMAN District Judge.

Plaintiff complaining, alleges that he elects to sue defendant at law with the right of trial by jury, as provided by section 33 of the Act of June 5, 1920, Merchant Marine Act of 1920, or Jones Act, section 8337a, Comp. Stat. Supp. of 1923, 41 Stat. at Large, 1007, for the recovery of full compensation for certain injuries sustained by him upon a vessel operated by defendant; that plaintiff was a night watchman upon said vessel, and was injured while the vessel was upon a voyage from Japan to Seattle. The injury is alleged to have been caused by plaintiff tripping and falling over one of the iron bars holding down a tarpaulin upon a hatch cover, which bar was, negligently, not fastened in place; that provision was not made for fastening it in place; that one end of it extended beyond the hatch coaming and projected over the passage across which plaintiff was in the act of passing; and that the deck was insufficiently lighted.

Defendant has demurred, citing, among others, the following cases: The Allianca, 1923 American Maritime Cases, 798, 290 F. 450; The Swiftsure (D.C.) 1923 A.M.C. 298, 286 F. 689; Payne v.

Jacksonville Forwarding Co. (C.C.A.) 1923 A.M.C. 524, 290 F. 936; The West Kader, 1923 A.M.C. 655, 289 F. 774; The Titan, 1923 A.M.C. 697; The Iowan, 1923 A.M.C. 303; Southern Railway Co. v. Gray, 241 U.S. 333, 36 Sup.Ct. 558, 60 L.Ed. 1030; San Antonio & Ark. Pass Ry. Co. v. Wagner, 241 U.S. 476, 36 Sup.Ct. 626, 60 L.Ed. 1110; Pennsylvania R. Co. v. Glas, 239 F. 256, 152 C.C.A. 244; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 Sup.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann. Cas. 1 1915B, 475; Hough v. Railway Co., 100 U.S. 213, 25 L.Ed. 612; Washington & Georgetown Railroad Co. v. McDade, 135 U.S. 554, 10 Sup.Ct. 1044, 34 L.Ed. 235; Choctaw, Oklahoma, etc., R.R. Co. v. McDade, 191 U.S. 64, 24 Sup.Ct. 24, 48 L.Ed. 96; Washington Terminal Co. v. Sampson, 289 F. 577, 53 App.D.C. 179; Phillips v. Pennsylvania R. Co. (C.C.A.) 283 F. 381; Salsedo v. Palmer et al. (C.C.A.) 278 F. 92.

A watchman, a member of the crew, can be considered in no other light than a seaman, during a voyage, and is therefore within the terms of the Merchant Marine Act. The West Kader, 1 A.M.C. 655, 289 F. 774, is a case not in point. That was a suit by a stevedore; a stevedore's service is maritime, but he is not a seaman. The Hoquiam, 253 F. 627, 165 C.C.A. 253. The Swiftsure (D.C.) 1 A.M.C. 298, 286 F. 689, is a case not in point, for the court was there considering a libel in rem. Both the LaFollette Act (section 20 of the Act to Promote the Welfare of the American Seamen, 38 Stat. at Large, 1185; section 8337a, Comp. Stat.) and the Jones Act changed the maritime law by abolishing the fellow servant rule. Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 Sup.Ct. 501, 62 L.Ed. 1171.

The first Employers' Liability Act (34 Stat. at Large, 232) was made applicable to common carriers engaged in interstate commerce. It was not by its terms restricted to carriage by railroad. This act was held invalid, because of inseparable provisions affecting intrastate commerce (Illinois Central R. Co. v. Howard, 207 U.S. 463, 28 Sup.Ct. 141, 52 L.Ed. 291), but remained in effect in the territories and District of Columbia (El Paso, etc., Ry. Co. v. Gutierrez, 215 U.S. 87, 30 Sup.Ct. 21, 54 L.Ed. 106; Sandstrom v. Pacific S.S. Co., 260 F. 661, 171 C.C.A. 425).

In The Max Morris, 137 U.S. 1, 11 Sup.Ct. 26, 34 L.Ed. 586, the contributory negligence of the stevedore was held not to bar recovery. The court adopted the rule in collision cases for the division of damages, but expressly declined to determine whether the division should be equal. While in many cases the rule of equal division of damages has been adopted, it has not been uniformly followed, as an examination of the cases cited in note 91, p. 1245, 35 Cyc., and in Rose's Notes on The Max Morris will disclose.

In a common-law action for collision, the Supreme Court refused to apply the admiralty rule for the division of damages, and denied recovery to plaintiff on the ground of contributory negligence. Belden v. Chase, 150 U.S. 674 at page 691, 14 Sup.Ct. 264, 37 L.Ed. 1218. In later cases it has been held that:

'The general rules of the maritime law apply whether the proceeding be instituted in an admiralty or common-law court. ' Carlisle Packing Co. v.

Sandanger, 259 U.S. 255, at page 259, 42 Sup.Ct. 475, 477, 66 L.Ed. 927; Chelentis v Lackenbach S.S. Co., 247 U.S. 372, 38 Sup.Ct. 501, 62 L.Ed. 1171; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, at 159, 40 Sup.Ct. 438, 64 L.Ed. 834, 11 A.L.R. 1145.

It is not necessary to determine in the present case whether the effect of the decision in Belden v. Chase, 150 U.S. 674, 14 Sup.Ct. 264, 37 L.Ed. 1218, supra, is to make an exception to the general rule as above announced in cases, in so far as they involve the question of contributory negligence; for section 3 (section 8659, Comp. Stat.) of the Employers' Liability Act-- the general rule in which is adopted by the Jones Act-- abolishes the defense of contributory negligence and provides for measuring the damages recoverable by the rule of comparative negligence.

In the present case it has been argued that the risk of injury from the cause described was assumed by plaintiff. Employers' Liability Act of 1908, Sec. 4 (section 8660, Comp. Stat.), provides that an employe--

'shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.'

The effect of this was to leave in effect the general defense of assumption of risk. Seaboard Air Line Railway v Horton, 233 U.S. 492, 34 Sup.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann. Cas. 1915B, 475, supra. It therefore follows that an injured seaman must be held to have assumed the risk of injury from any and all those dangers ordinarily and naturally incident to the service in which he engages; but it cannot be that Congress...