In re Famous Players Lasky Corporation

• Decision Date: 30 January 1929
• Docket Number: No. 2610-M.,2610-M.
• Citation: 30 F.2d 402
• Court: U.S. District Court — Southern District of California
• Parties: In re FAMOUS PLAYERS LASKY CORPORATION. THE LLEWELLYN J. MORSE.

30 F.2d 402 (1929)

In re FAMOUS PLAYERS LASKY CORPORATION THE LLEWELLYN J. MORSE.

No. 2610-M.

District Court, S. D. California, S. D.

January 30, 1929.

Lucius K. Chase, Lucius F. Chase, and Stanley N. Barnes, all of Los Angeles, Cal., for petitioner.

Silas B. Axtell and L. V. Axtell, both of New York City, and H. C. Eastham, of San Pedro, Cal., for claimant Broyles.

Donald C. Lawrence, P. J. Youngdahl, and Donald Larkins, all of Los Angeles, Cal., for claimants Carlson, Johnson, Olsen, and Davis.

NETERER, District Judge.

The petition to limit liability was heretofore considered and denied. See (D. C.) 25 F.(2d) 973. The court found, and does now find, that the craft in issue was not such as comprehended within the limitation of liability statute (46 USCA §§ 181-195), and that it was, in fact, unseaworthy at the time of the casualty, of which the petitioner had knowledge, and that the negligence of the petitioner caused the death and injuries claimed by and on account of Davis, Broyles, Carlson, Olsen, and Johnson.

The claimants were employed by petitioner as seamen, among other things to navigate the Llewellyn J. Morse, known as "Old Iron-sides." See (D. C.) 25 F.(2d) 973. The purpose of the employment was to sail the craft to make moving pictures. The craft was towed out from Long Beach, beyond Catalina Island, 10 or 15 miles on the Pacific Ocean, and the tug detached and the vessel navigated by the claimants and others to the vicinity of Catalina Island. This was repeated for several days. On June 26, 1926, while the vessel was lying offshore on Catalina Island and while the craft was unseaworthy, and was known by the petitioner to be unseaworthy, the claimants were ordered into the rigging, and while there, without knowledge on their part, dynamite was discharged in the masts of the ship, breaking and toppling the masts toward the afterpart of the ship, striking the yardarm and rigging where claimants were stationed or to which ropes were attached, giving claimants support, with much force, causing claimants to fall to the deck below. From the injuries sustained Davis shortly died, Carlson was confined to the hospital and his room and received medical attention for a short time, Johnson received injuries to his spine, Olsen was injured in his spine and right knee, Broyles sustained a broken femur, broken kneecap, broken right arm in two places, broken ribs, broken vertebræ, and internal and other external injuries; from the concussion he was bleeding at the mouth and the ears. Some sear appears on the right ear now from injury received. The removal of the gall bladder was necessitated.

Thereafter Cora B. Davis, as widow of Davis, on July 7, 1926, and Carlson, on December 20, 1926, respectively, filed claims under the Workmen's Compensation Insurance and Safety Act of the state of California (St. 1917, p. 831, as amended). Notices were duly issued, and all parties were present or represented at the hearing. After testimony was heard and considered and awards made, the award to Carlson was fully paid, and all due installments upon the award made to Cora B. Davis have been paid her. No review or appeal was taken or application for further hearing made.

Payments were made to Broyles, Johnson, and Olsen without claim having been made by either of them. On advice before bringing this action they each declined to accept further payments. The receipt of these payments was not taken by either of these claimants with knowledge of their rights or in settlement of any claims for injury, and can only have the status of voluntary payments by the Commission. See United States v. Skinner & Eddy (D. C.) 28 F.(2d) 373, as to the effect of voluntary payments.

There are no dependent children of Davis, deceased, or dependents shown, except the widow, or any creditors to his estate disclosed by the evidence. The legal status of Mrs. Davis is therefore not enlarged or changed in this proceeding as administratrix.

The first question for decision is: Are the claims for relief limited to the Workmen's Compensation Act of California? Was the engagement of and service in the employment such that the rights of the parties should be controlled by the local law? I think not. The employment and service was clearly maritime, as able seamen in navigating the craft on the waters of the Pacific Ocean. The fact that the business of sailing the craft was to take moving pictures, and that some of the claimants were in uniform, is not controlling or material. The situs of the casualty was the Pacific Ocean. The craft was not in port. The gist of the claim is tort. The basis of liability under the Workmen's Compensation Act of California is liability without fault. Tort may or may not be an element of liability under the act. The rule that in contract matter admiralty jurisdiction depends upon the nature of the employment, and not on locality, is stare decisis. See Grant-Smith-Porter Co. v. Rhode, 257 U. S. 469, 42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008, and cases cited; Ringler v. Laing (D. C.) 21 F.(2d) 794. While the service may have been in the nature of actors in a play, they were and are, in fact, seamen in the true sense of that word, men who did handle, reef, and steer, and did so act on this craft or ship. The claims obviously are of maritime nature, and, having petitioned to limit liability and being denied, the petitioner may not challenge the court's jurisdiction to control complete remedy. Hartford Accident & Indemnity Co. v. Southern Pacific, 273 U. S. 207, 47 S. Ct. 357, 71 L. Ed. 612; In re Titanic (D. C.) 204 F. 295.

Neither local law nor decision can limit admiralty jurisdiction unless clearly of local nature. Workman v. New York City, 179 U. S. 552, 21 S. Ct. 212, 45 L. Ed. 314. See, also, Union Fish Co. v. Erickson, 248 U. S. 308, 39 S. Ct. 112, 63 L. Ed. 261; Western Fuel Co v. Garcia, 257 U. S. 233, 42 S. Ct. 89, 66 L. Ed. 210; Washington v. Dawson Co., 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646; Grant-Smith-Porter Co. v. Rhode, 257 U. S. 469, 42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008.

There is no doubt states may by legislation change maritime law of local application, but not where the claim is tort and the employment and work are maritime. Southern Pacific Co. v. Jensen, 244 U. S. 216, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Western Fuel Co. v. Garcia, 257 U. S. 233, 42 S. Ct. 89, 66 L. Ed. 210. See, also, Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; Washington v. Dawson, supra. In all cases so far disclosed, the United States Supreme Court has uniformly held that where the employment is nonmaritime or employment in service of mixed relation, nonmaritime and maritime, having particular local application, may state legislation control liability status. In Grant-Smith-Porter Ship Co. v. Rhode, supra, the contract was nonmaritime, the service maritime, and both parties accepted the state Compensation Law. In State Industrial Commission of State of New York v. Nordenholt Corporation, 259 U. S. 263, 42 S. Ct. 473, 66 L. Ed. 933, 25 A. L. R. 1013, claimant was killed while on the dock unloading a ship. The court held the employment was nonmaritime, but the service maritime. In Millers' Indemnity Underwriters v. Braud, 270 U. S. 59, 46 S. Ct. 194, 70 L. Ed. 470, a diver submerged himself from a floating barge in a navigable river to saw off piling driven into the ground. The act was foreign to commerce or navigation; the work done was in fact on land under water, the title to which was in the State, subject only to the right of navigation over the water under control of the United States. In Alaska Packers' Association v. Indemnity Accident Commission of California, 276 U. S. 467, 48 S. Ct. 346, 72 L. Ed. 656, the injured party stood on land and pushed a stranded boat into navigable water, a mixed maritime and nonmaritime relation. In the case of Sultan Ry. & Timber Co. v. Department of Labor and Industries of Washington, 277 U. S. 135, 48 S. Ct. 505, 72 L. Ed. 1820, logs were boomed and floated on a navigable river to a local sawmill.

In Ketchikan Lumber & Shingle Co. v. Bishop (C. C. A.) 24 F.(2d) 63, the issue was not tort, and the employment was nonmaritime. In Rosengrant v. Havard, 273 U. S. 664, 47 S. Ct. 454, 71 L. Ed. 829 (213 Ala. 202, 104 So. 409) deceased was killed by accidental discharge of a gun while employed as a tallyman in the lumberyard, while standing on a schooner moored in the river. The contract of employment the court held was nonmaritime. In State Industrial Board of State of New York v. Terry & Tench Co., 273 U. S. 639, 47 S. Ct. 90, 71 L. Ed. 817, reversing Lahti v. Terry Trench Co., 240 N. Y. 292, 148 N. E. 527, the issue is identical with Braud, supra, except the employee stood on a float on the water to repair a pile driven in the ground under the water. In the Toland Case, 258 Mass. 470, 155 N. E. 602, a floating dredge without motive power, on which the engineer received injury, was held within the State Compensation Act upon authority of the...