Hermann v. Port Blakely Mill Co.

• Decision Date: 13 September 1895
• Docket Number: 11,176.
• Citation: 69 F. 646
• Court: U.S. District Court — Northern District of California
• Parties: HERMANN v. PORT BLAKELY MILL CO.

69 F. 646

HERMANN v. PORT BLAKELY MILL CO.

No. 11,176.

United States District Court, N.D. California.

September 13, 1895

H. W Hutton, for libelant

Van Ness & Redman, for defendant.

MORROW District Judge.

This is a libel in personam to recover damages for injuries alleged to have been sustained on board of the American ship Kate Davenport, while said vessel was being loaded with lumber at a wharf in Port Blakely, state of Washington. It appears from the allegations of the libel that the libelant was employed in the month of January, 1895, in the capacity of mate on the Kate Davenport; that the vessel proceeded, with the libelant on board, to Port Blakely, there to load lumber; that on the 20th of January, 1895, while the vessel was lying at a wharf in said port owned by the defendant, and was being loaded with lumber, the libelant was in the hold of the vessel, with several of the crew, engaged in receiving the lumber which was being loaded; that the manner of loading was to slide the lumber down a chute into the hold, and, as each piece was slid down, warning was given, to notify those in the hold, to enable them to escape from the descending lumber; that this warning was relied upon by the libelant in order to get out of the way of the lumber coming into the hold as aforesaid that the defendant so carelessly, negligently, and improperly slid down a piece of lumber, without giving any warning or notification, to those in the hold, that the same was coming down the chute, that said piece of lumber struck the libelant, breaking his right leg, thereby seriously injuring him, to his damage in the sum of $10,000. Exceptions are filed to the libel upon two grounds: (1) That the court has no jurisdiction of the tort alleged in the libel; (2) that, upon the face of the allegations of the libel, it appears that the wrong of which libelant complains was the act of a fellow servant in a common employment, for which the defendant is not, in law, liable.

Taking these exceptions up in their order, it was urged upon the argument that the court has no jurisdiction of the tort alleged, for the reason that the court has no jurisdiction of the tort alleged, for the reason that it originated on land,-- that is to say, on the wharf from which the lumber was being loaded,-- and not on the water; that, to give a court of admiralty jurisdiction over torts, not only the injury must take place on water, but the whole tort from its incipiency to its conclusion, must occur on the water; and that where the tort has its origin on land, although it is consummated and the injury sustained, on water, a court of admiralty can have no jurisdiction of the wrong. 'It has been uniformly held * * * that the American admiralty has a general maritime jurisdiction, embracing all maritime causes of action, as well matters of contract, as matters of tort; that in matters of tort the jurisdiction depends upon the locality, and embraces all damages and injuries upon the sea. ' Ben. Adm. Sec. 261, p. 149 (2d Ed.). To the same effect are the following cases: The Plymouth, 3 Wall. 20; The Rock Island Bridge, 6 Wall. 213; The Neil Cochran, 1 Brown, Adm. 162, Fed. Cas. No. 10,087; The Ottawa, 1 Brown, Adm. 356, Fed. Cas. No. 10,616; The Mary Stewart, 10 F. 137; The Arkansas, 17 F. 383; The Professor Morse, 23 F. 803; The H. S. Pickands, 42 F. 239; The John C. Sweeney, 55 F. 540; The Mary Garrett, 63 F. 1009.

While this statement of the rule as found in the text-books and authorities is certain enough for all ordinary purposes of general admiralty jurisdiction, it is not sufficiently explicit in its application to a case like the present, where the tort is claimed to have occurred partly on land and partly on water. I have not been cited, nor have I been able to find, any case where precisely the same point as is here raised was involved. While there have been dicta in favor of the jurisdiction of the admiralty court, as claimed by the libelant in this case, the question has never come up squarely for decision, so far as I am advised. In The Plymouth, 3 Wall. 20, the origin of the wrong was on the water, but the substance and consummation on land. It was held that the admiralty courts of this country were without jurisdiction where the substance and consummation of the injury had happened on land, and the fact that the tort had originated on the water made no difference. Mr. Justice Nelson, in the course of his opinion, said:

'But is has been strongly argued that this is a mixed case (the tort having been committed partly on water and partly on land), and that, as the origin of the wrong was on the water (in other words, as the wrong began on the water), where the admiralty possesses jurisdiction, it should draw after it all the consequences resulting from the act. * * * Much stress has been given to the fact, by the learned counsel who would support the jurisdiction, in his argument, that the vessel which communicated the fire to the wharf and buildings was a maritime instrument or agent, and, hence, characterized the nature of the tort. In other words, that this characterized it as a maritime tort, and, of course, of admiralty cognizance. * * * ' After discussing the right of action, the learned justice thus concludes:

'We can give, therefore, no particular weight or influence to the consideration that the injury in the present case originated from the negligence of the servants of the respondents on board of a vessel, except as evidence that it originated on navigable waters,-- the Chicago river. And, as we have seen, the simple fact that it originated there, but the whole damage done upon land,-- the cause of action not being complete on navigable waters,--affords no ground for the exercise of the admiralty jurisdiction. The negligence of itself, furnishes no cause of action. It is 'damnum absque injuria.' The case is not distinguishable from that of a person standing on a vessel, or on any other support in the river, and sending a rocket or torpedo into the city, by means of which buildings were set on fire and destroyed. That would be a direct act of trespass, but quite as efficient a cause of damage as if the fire had proceeded from negligence. Could the admiralty take jurisdiction? We suppose the strongest advocate for this jurisdiction would hardly contend for it. Yet the origin of the trespass is upon the navigable waters, which are within its cognizance.'

Applying this reasoning to the case at bar,-- although the facts alleged in the libel present a counter proposition to that involved in The Plymouth, in this, that in the latter case the origin of the tort was on water, while in the case at bar it is alleged to have been on land,-- it would seem to be strong argument in favor of the jurisdiction of the court. For, if it is the locality where the substance and consummation of the tort happened which is the ultimate test of admiralty jurisdiction, and not the origin, the case at bar clearly comes within the rule. What the learned justice says, in the concluding sentence of the paragraph just quoted, about the cause of action not being 'complete on navigable waters,' has reference, plainly, from a reading of the whole opinion, to the 'substance and consummation of the tort'; that is to say, the locality where the injury is inflicted, and the damage sustained. This latter must be upon the high seas, or the navigable waters, in order to be within the admiralty jurisdiction.

The Maud Webster, 8 Ben. 547, ^[1] was a case where a libel in rem had been filed against the schooner for injuries sustained to a derrick and other articles belonging to the libelant by reason of a collision between the schooner and the derrick. The derrick was being used to construct a pier for a lighthouse to be erected at the Middle Ground, Stratford Shoals, in Long Island Sound, a place entirely surrounded by water. A cross libel was filed by the owners of the schooner against the owner of the derrick. The court entertained jurisdiction of the cross libel, as being for an injury to a vessel afloat, but dismissed it on its merits, holding that there was no fault on the part of the owner of the derrick. But it declined to take jurisdiction of the libel in rem of the owner of the derrick, on the ground that, although the origin of the wrong was on the water, yet the consummation and substance of the injury was on the land. The learned judge said:

'In this case, the schooner which did the injury to Howell's property was on the water, was afloat and engaged in navigation; but Howell's property was a part of the soil of the earth, or was affixed to it, and was wholly on land. In a case of tort, there can be no jurisdiction in the admiralty unless the substantial cause of action, arising out of the wrong, was complete upon navigable waters.'

In commenting on the case of The Ottawa, 1 Brown, Adm. 356, Fed. Cas. No. 10,616, as authority for his decision, Judge Blatchford says, further:

'Although the criterion of admiralty jurisdiction in cases of tort is locality, yet, as was correctly remarked in that case, the place or locality of the injury is the place or locality of the thing injured, and not of the agent by which the injury is done.'

In Leonard v. Decker, 22 F. 741, it appeared that two canal boats had been damaged while moored to a pier. The pier was somewhat out of repair, by reason of some piles or fenders having been torn away, leaving the bolts which had secured them exposed, and projecting outward and beyond the side of the pier. The bolts were under water, except when the tide was low. The canal boats were injured by mooring alongside the concealed bolts, without notice of the obstructions, or of the danger from them. Judge Brown said:

'Counsel for respond

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