Hoof v. Pacific American Fisheries

• Decision Date: 10 October 1922
• Citation: 284 F. 174
• Parties: HOOF v. PACIFIC AMERICAN FISHERIES.
• Court: U.S. District Court — Western District of Washington

284 F. 174

HOOF v. PACIFIC AMERICAN FISHERIES.

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

October 10, 1922

Peringer & Thomas and Thos. R. Waters, all of Bellingham, Wash., for libelant.

Kerr McCord & Ivey and Stephen V. Carey, all of Seattle, Wash for respondent.

NETERER District Judge.

The libelant was employed by the respondent in the capacity of watchman on the vessel Cleo. The vessel had been launched and was afloat in the navigable waters, but was not 'finished,' and therefore not in commission, at the time, as an instrumentality of commerce and navigation. Plaintiff, while making his rounds, and in attempting to go from the forward bridge deck to the forward main deck by means of steps which had been constructed and placed there by the respondent, and for that purpose, slipped and fell to the floor of the main deck, throwing the plaintiff to said deck, causing serious personal injury. The night was dark; it was raining; the plaintiff was supplied with a flash light; it was the plaintiff's first round as watchman on that shift. He says:

'I put my right foot on the first step, as I usually did, to determine whether it was safe, and then put my left foot forward, and the ladder slipped below, and I fell.'

He had worked for respondent for eight months before the injury. I think it is established, by positive testimony and inferences from circumstances adduced (Towle v. Stimson Mill Co., 33 Wash. 305, 74 P. 471; Campbell v. Winslow Lbr. Co., 66 Wash. 507, 119 P. 832; Lichtenberg v. City of Seattle, 94 Wash. 391, 394, 162 P. 534; 29 Cyc. 622, 626; Esberg-Guest Cigar Co. v. Portland, 34 Or. 282, 55 P. 961, 43 L.R.A. 435, 75 Am.St.Rep. 651; 4 Thom.Neg. 294; The Themistocles (D.C.) 225 F. 671; Penn. Steel Co. v. Jacobsen, 157 F. 656, 85 C.C.A. 118), that the steps were substantially fastened at the time the ship was launched by cleats, and, if fastened at the top and bottom, the steps could not have fallen, and that the steps were not changed from the launching to the day of the accident. On the day of the accident the main deck was calked and oiled, and the cleats on the main deck at the foot of the ladder were removed while calking and oiling the deck, and the steps were replaced without fastening the cleats to the deck, or fastening the steps at the top. The plaintiff was not advised of the changed condition of the steps.

The respondent contends, as it did before the Circuit Court of Appeals (279 F. 367), that the court is without jurisdiction; (a) he sustaining a nonmaritime relation; (b) if the plaintiff's cause of action is maritime, he is limited to recovery to elements of which there is no proof; (c) if his right is nonmaritime, the evidence establishes that the injury was due directly to the negligence of the plaintiff himself, or that of fellow servants; (d) the evidence fails to establish with any degree of certainty that the injury was due to a default chargeable in law to the defendant.

The plaintiff asserts his right to recovery of consequential damages predicated upon the common law, and cites a long line of cases, exception to neither of which can be taken. ^[1] The court, in The Moses Taylor, 4 Wall. 431, 18 L.Ed. 397, distinguishes between a remedy at common law and a common-law remedy, and it may be said the same reason applies by analogy to a remedy in admiralty and a remedy afforded by admiralty. Prior to the enactment of section 33 of the American Merchant Marine Act (41 Stat. 988) an action at law by an injured seaman did not change his right of recovery, which was governed by the maritime law. Hanrahan v. Pacific T. Co. (C.C.A.) 262 F. 951. The impotency of admiralty to give remedies afforded by the common law no doubt inspired section 33, supra. The rights in admiralty of a seaman preclude indemnity, and are limited to maintenance, wages, and cure, except for unseaworthiness. The Osceola, 189 U.S. 158, 23 Sup.Ct. 483, 47 L.Ed. 760; Hanrahan v. Pac. T. Co., supra

The plaintiff has standing in the admiralty court solely because the jurisdiction of courts of admiralty in torts depend upon location. Phil., Wil. & B.R. Co. v. Phi. & H. de G. Steam Towboat Co., 23 How. 209, 16 L.Ed. 433; The Plymouth, 3 Wall. 20, 18 L.Ed. 125; Hoof v. Pac. Amer. Fish. (C.C.A.) 279 F. 367. While the court has jurisdiction, the rule of right applicable, unless the plaintiff bears the relation of a seaman, is the common-law right of recovery. 'Seaman' no doubt once meant a person 'who can hand, reef, and steer-'-- a mariner in the full sense of the word. As conditions changed, and necessities of changes increased, 'seaman' received an enlarged meaning. The cook and surgeon, and employees other than able seamen, were included. Bean v. Stupard, 1 Doug. 11; Allen v. Hallet, 1 Fed.Cas. 472, No. 223. In The J. S. Warden (D.C.) 175 F. 314, a bartender was ranked as a seaman. In The Baron Napier, 249 F. 126, 161 C.C.A. 178, a muleteer, performing the services of a watchman, was given the status of a seaman. In The Buena Ventura (D.C.) 243 F. 797, a wireless operator, employed by another, but placed on the articles at the nominal sum of 25 cents a month, was classed a seaman. Section 4612, R.S. (section 8392, Comp. St.), provides that:

' * * * Every person * * * who shall be employed or engaged to serve in any capacity on board the same (vessel) shall be deemed and taken to be a seaman. * * * '

Whether the libelant, under the facts in this case, shall have the status of a seaman, and his right of recovery be predicated thereon, I do not now think is material; in that sense however, it may be said that the vessel was unseaworthy with respect to the steps in controversy. The libelant, as watchman, had clear and definite instructions as to his duty, which was to see that the lights were burning fore and aft, that the ropes were properly secured, and that no one trespassed on the boat, and to look out for fire. The...