Hoof v. Pacific American Fisheries

• Decision Date: 06 February 1922
• Docket Number: 3590.
• Parties: HOOF v. PACIFIC AMERICAN FISHERIES.
• Court: U.S. Court of Appeals — Ninth Circuit

279 F. 367

HOOF v. PACIFIC AMERICAN FISHERIES.

No. 3590.

United States Court of Appeals, Ninth Circuit.

February 6, 1922

Thos R. Waters and Peringer & Thomas, all of Bellingham, Wash for plaintiff in error.

Kerr &amp McCord and Stephen V. Carey, all of Seattle, Wash., for defendant in error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge.

The plaintiff in his complaint in the court below pleaded diversity of citizenship of the parties, and alleged that on April 16, 1919, he was employed by the defendant in the capacity of watchman on a vessel belonging to the defendant 'but not yet completed,' bearing the name of Cleo; that while he was making the rounds as watchman, in attempting to descend from the forward bridge deck to the forward main deck by means of steps which had been prepared and placed there by the defendant for that purpose, the steps being insufficiently secured in place, and not protected by handrails, slipped and fell to the floor of the main deck, thereby throwing the plaintiff to said deck, causing him serious personal injury. A demurrer to the complaint was sustained on the ground that the court below had no jurisdiction of the cause of action. The ground of the ruling appears to have been that the Workmen's Compensation Act had abolished the plaintiff's common-law cause of action, and that there was no jurisdiction in admiralty for the reason that the services of a watchman in no way connected with the navigation of a vessel are nonmaritime, and that an uncompleted ship is not an instrumentality of commerce and navigation, although afloat in navigable water.

It seems clear that the Workmen's Compensation Act of the state of Washington (Laws 1911, p. 345) has taken away from the plaintiff his common-law right of action. He alleged in his complaint that his claim was first presented to the Industrial Insurance Commission under the Workmen's Compensation Act, and that he was refused relief because at the time of his injury he was employed upon navigable waters. In Stertz v. Industrial Insurance Comm., 91 Wash. 588, 158 P. 256, Ann. Cas. 1918B, 354, it was held that the Workmen's Compensation Act ends the jurisdiction of the state courts as to all phases of the master's liability to his servant for injuries resulting from fortuitous events, regardless of fault on the part of either, and remits the determination thereof to the Industrial Insurance Commission. In Shaughnessy v. Northland Steamship Co., 94 Wash. 325, 162 P. 546, Ann. Cas. 1918B, 655, it was held that the Workmen's Compensation Act has no application to an employe engaged in unloading a ship lying at a dock in navigable waters, for the reason that a state has no power to abolish remedies afforded by the maritime laws of the United States.

The plaintiff contends that the rule of those decisions has been modified by Puget Sound B. & D. Co. v. Industrial Ins. Com., 105 Wash. 272, 177 P. 788, the purport of which decision is said to be that persons who are not working upon the land are without the purview of the Compensation Act. We do not so understand the decision. The action in that case was brought by the Dredging Company against the Industrial Insurance Commission to enjoin the collection of premiums for the plaintiff's workmen. It appears that the Dredging Company had three classes of employes-- those who worked continuously on the dredge, those who worked wholly on the land, and those who worked partly upon the dredge and partly upon the land. The court held that for the first class the plaintiff should pay no premiums, for the reason that the dredge was a vessel subject to admiralty jurisdiction. There was no intention to hold that there remains in the state of Washington a class of personal injuries to employes which comes neither within the Workmen's Compensation Act nor within the jurisdiction of admiralty. To hold that a dredge is a vessel subject to admiralty jurisdiction is in accordance with the weight of authority. McMaster v. One Dredge (D.C.) 95 F. 832; Bowers Hydraulic D. Co. v. Federal Contracting Co. (D.C.) 148 F. 290, affirmed in 153 Fed. 870, 83 C.C.A. 52; The Mackinaw, 165 F. 351; North American Dredging Co. v. Pacific Mail S.S. Co., 185 F. 698, 107 C.C.A. 620; The Steam Dredge No. 6 (D.C.) 222 F. 576; The Bart Tully, 251 F. 856, 164 C.C.A. 72.

There remains the question whether the complaint alleges a cause of action in personam in admiralty, a question of which it may be said, as was oberved in The Blackheath, 195 U.S. 361, 25 Sup.Ct. 46, 49 L.Ed. 236: 'The precise scope of admiralty jurisdiction is not a matter of obvious principle or of very accurate history. ' Whether or not services rendered by a watchman in charge of a domestic vessel lying at her wharf are maritime services and can be made the basis of a maritime lien is a question upon which the courts have differed. In The Hattie Thomas (D.C.) 59 F. 297, Judge Townsend said it is a 'difficult question' and one concerning which there has been much conflict of authority. That the services are maritime in their nature has been held in The Ship Harriet, Fed. Cas. No. 6097, Olc. 229; The Erinagh (D.C.) 7 F. 231; The Maggie P. (D.C.) 32 F. 300; The George T. Kemp. Fed. Cas. No. 5341, 2 Lowell, 477; The Navis (D.C.) 196 F. 843. But the weight of authority is otherwise. The America (D.C.) 56 F. 1021; The Hattie Thomas (D.C., 59 F. 297; The Sirius (D.C.) 65 F. 226; The James T. Furber (D.C.) 157 F. 124; The Fortuna (D.C.) 206 F. 573; The Sinaloa (D.C.) 209 F. 287. But it does not follow from the fact that his services are not maritime that a watchman may not have his remedy in personam in admiralty for tort committed by the owner while he is so employed. In Campbell v. Hackfeld, 125 F. 696, 62 C.C.A. 274, this court held that to bring a case within the jurisdiction of a court of admiralty maritime relations of some sort must exist, and while recognizing the rule that in cases of tort locality remains the test of admiralty jurisdiction we said:

'But this is by no means saying that a tort or injury in no way connected with any vessel, or its owner, officers, or crew, although occurring in such a place or territory, is for that reason within the jurisdiction of the admiralty.'

In the present case the injury to the plaintiff was connected with a vessel in maritime waters, and occurred while the plaintiff was performing services for the vessel. In order to support jurisdiction in admiralty in the case of tort resulting in personal injury, it is not necessary that the injured person shall have had a maritime contract with the owner or with the vessel. In Leathers v. Blessing, 105 U.S. 626, 26 L.Ed. 1192, jurisdiction was entertained in admiralty for personal injuries sustained by the libelant in going upon a vessel moored to the wharf: he having no connection with the vessel or any business upon her or about her except that he was expecting a consignment of goods by her, and went on board to ascertain whether it had arrived. The court held that the facts made the case one of invitation to the libelant to go on board in the transaction of business with the master and officers of the vessel, and that the relation was such as to create a duty on the part of the master and his co-owner, to see that the libelant was not injured by negligence of the master. In Phila., Wil.

& Balt. R. Co. v. Phil. & Havre de Grace Steam Towboat Co., 23 How. 209, 215, 16 L.Ed. 433, it was said:

'The jurisdiction of courts of admiralty, in matters of contract, depends upon the nature and character of the contract; but in torts it depends entirely on locality.'

Said the court in The Plymouth, 3 Wall. 20, 36, 18 L.Ed. 125:

'Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.'

What was there said was repeated in Atlantic Transport Co. v Imbrovek, 234 U.S. 52, 60, 34 Sup.Ct. 733, 58 L.Ed. 1208, 51...