Hahn v. Ross Island Sand & Gravel Co.

• Decision Date: 22 January 1958
• Citation: 320 P.2d 668,214 Or. 1
• Parties: Harry A. HAHN, Appellant, v. ROSS ISLAND SAND & GRAVEL CO., a corporation, Respondent.
• Court: Oregon Supreme Court

Page 668

320 P.2d 668

214 Or. 1

Harry A. HAHN, Appellant, v. ROSS ISLAND SAND & GRAVEL CO., a corporation, Respondent.

Supreme Court of Oregon, In Banc.

Argued Nov. 20, 1957.

Decided Jan. 22, 1958.

Dwight L. Schwab, Portland, argued the cause for appellant. On the briefs were Hutchinson, Schwab & Burdick and John H. Buttler, Portland.

Arno H. Denecke, Portland, argued the cause for respondent. On the brief were Mautz, Souther, Spaulding, Denecke & Kinsey, Portland.

LUSK, Justice.

This is a personal injury action under the Oregon Employers' Liability Act, ORS 654.305 et seq., in which the court set aside a verdict for the plaintiff and entered judgment for the defendant notwithstanding the verdict. The plaintiff has appealed. The action of the trial court was based upon the view that plaintiff's sole remedy is under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.A. § 901 et seq.). This ruling presents the only question on this appeal.

The defendant is an Oregon corporation which operates a sand and gravel business on the Willamette River in Portland. It conducts dredging operations with the use of a dredge, barges and power-driven machinery in a portion of the river referred to in the testimony as a lagoon--a small bay or inlet roughly rectangular in shape, the entrance to which from the main body of the river is at the north. Otherwise, it is surrounded by land--Ross Island on the west, Hard Tack Island on the east, and a strip of land on the south connecting the two.

On the day that plaintiff was injured, March 23, 1955, and for some eight days prior thereto, he was employed by the defendant as an 'oiler.' His general duties were on a dredge anchored to the shore, which was used to scoop out sand and gravel from the bottom of the lagoon and dump it on a barge. He looked after the machinery of the dredge and operated a winch to move the barge into position. If there was a breakdown in the machinery it was his duty to repair it. The barge, when filled, was moved to the crusher, which was located inside of the lagoon, and, after the gravel was crushed, it was carried by means of a conveyor belt to the defendant's plant on the right bank of the river. He was injured, however, while performing a different type of work. He was ordered or assist in transferring a large gravel bin or hopper, used for loading sand and gravel into trucks, from one barge to another. The hopper was so constructed that trucks could be driven under it to receive their loads. A power-driven crane on shore was employed to pick up the hopper and move it. After the hopper was moved and stowed it became the plaintiff's job to go to the top of the hopper by means of a ladder nailed to the hopper and loosen a cable used in the moving operation. He had climbed high enough to reach the top rung of the ladder with his hand when the ladder gave way, and he fell a distance of about eight or ten feet, landing on his back on hard-packed sand in the barge and receiving serious injuries. The ladder fell upon him. The evidence shows that the ladder, which was constructed of heavy timbers, was fastened to the hopper only by nails which had been driven into wood that was rotten. No bolts or chains were used to make it secure, although it was practicable to use them. There seems to be no question about the negligence of the defendant or its violation of the provisions of the Employers' Liability Act.

In 1927 Congress passed the Longshoremen's and Harbor Workers' Compensation Act in order to provide compensation irrespective of fault for injury or death in the case of employees of employers 'any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock).' Title 33 U.S.C.A. § 902(4). Section 903(a) provides in part:

'(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law.'

Liability of an employer as prescribed by the Act is made exclusive, but, if any employer fails to secure payment of compensation as required by the Act, an injured employee, or his legal representative in case death results from the injury, is given an election to claim compensation or to maintain an action at law or in admiralty for damages, in which case the defenses of negligence of a fellow servant, assumption of risk, and contributory negligence are not available to the employer. § 905.

The defendant had secured payment of compensation as required by the federal Act, § 932, but had exercised its election not to be subject to the Workmen's Compensation Law of this state (ORS 656.022).

It is contended first, on the part of the plaintiff, that the injury did not occur upon 'navigable waters of the United States,' but as to this we think that there can be little doubt. The body of water upon which the injury occurred is a portion of the Willamette River, which is concededly a navigable stream. Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629; Port of Portland v. Reeder, 203 Or. 369, 280 P.2d 324. Tugs, the largest of which has a draft of nine feet, ply in and out of the lagoon. The hopper upon which plaintiff met with his injury was towed in a barge by tug owned and operated by the defendant to the lagoon from Sun Dial Beach on the Sandy River, a tributary of the Columbia River, and afterwards was taken by the same means to Cathlamet on the Columbia River in the state of Washington. The tug referred to was 50 feet long. It was used to tow sand and gravel 'from one job to another,' going at times to Ilwaco, Washington, about three miles from the mouth of the Columbia River and up the Columbia as far as the Bridge of the Gods.

The test for determining what are navigable waters of the United States was thus stated by Mr. Justice Field in The Daniel Ball, 10 Wall. 557, 563, 77 U.S. 557, 563, 19 L.Ed. 999:

'* * * The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity.

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.'

See, also, Crowell v. Benson, 285 U.S. 22, 55, 52 S.Ct. 285, 76 L.Ed. 598; Dailey v. City of New York, D.C.S.D.N.Y.1904, 128 F. 796; 1 Benedict on Admiralty (6th ed.) 94-96.

The evidence discloses that the body of water in question fully meets this test. It is navigable in fact and therefore in law, and forms 'by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.' The fact that the defendant owns the land partially surrounding the lagoon does not militate against this conclusion. United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 596-597, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064. The government has drawn harbor lines around the land, but whether water is inside or outside harbor lines is not a test of navigability. See Port of Portland v. Reeder, supra. People ex rel. Gratwick v. Commissioners of Land Office, 202 App.Div. 240, 196 N.Y.S. 115, cited by the plaintiff, is not in point. Other facts to which plaintiff calls attention, such as that the defendant has no permit from any governmental authority to dredge sand in the lagoon; that it has enlarged the area of the lagoon and diminished that of the land; that it charges owners of log rafts for the privilege of parking them in the lagoon; and has erected therein piling and structures which may constitute obstructions to navigation, we believe to be irrelevant.

We are brought thus to the question of the application to this case of the Longshoremen's and Harbor Workers' Act of 1927. This is a question of federal law and the decisions of the Supreme Court of the United States are, of course, controlling.

Ten years before the Longshoremen's and Harbor Workers' Act was passed the Supreme Court reversed a judgment of the New York Court of Appeals which sustained an award of compensation under the New York Workmen's Compensation Law, McKinney's Consol.Laws, c. 67, to the widow and children of one Jensen, who was accidentally killed while working as a stevedore unloading cargo...