Kulczyk v. Rockport SS Co.

• Decision Date: 16 October 1934
• Docket Number: No. 910.,910.
• Parties: KULCZYK v. ROCKPORT S. S. CO.
• Court: U.S. District Court — Western District of Michigan

8 F. Supp. 336

KULCZYK v. ROCKPORT S. S. CO.

No. 910.

District Court, E. D. Michigan, N. D.

October 16, 1934.

Bresnahan & Groefsema, of Detroit, Mich., for plaintiff.

Warren, Hill, Hamblen, Essery & Lewis, of Detroit, Mich., for defendant.

TUTTLE, District Judge.

This action at law, in which the jurisdiction of this court is properly invoked on the ground of diversity of citizenship, was brought by Stanley Kulczyk, a seaman, to recover from the Rockport Steamship Company, a nonresident corporation, damages for injuries alleged by the plaintiff to have been caused him by the negligence of the defendant, in the course of his employment by the defendant as a member of the crew of the steamship John A. Kling, while he was standing on a dock on the Maumee river, in Toledo, Ohio, engaged in shifting certain cables in an effort to fasten said steamship to said dock so that it might be loaded there. The cause is now before the court on a motion by the defendant to strike from the declaration such allegations thereof as base liability of the defendant to the plaintiff upon the Ohio Employers' Liability Act (section 6242 et seq. of the General Code of Ohio), known as the Norris Act. As stated in one of the briefs of the defendant, "the broad question to be determined is whether the rights and liabilities of the employer and employee are governed by the principles of maritime law or by the so-called `Norris Act' of Ohio." If the rights and liabilities of the plaintiff and of the defendant involved herein are governed by the maritime law, the motion should be granted; otherwise, it should be denied.

After careful consideration of the able briefs of counsel, I reach the conclusion that this motion must be denied. It is, in my opinion, now clearly settled that when a seaman claims to have been injured by the tort of his employer, even though he was engaged in the performance of a maritime contract when so injured, the question whether liability for such tort is to be determined according to the rules of the maritime law or according to the rules of the local law depends upon the question whether such injury was received on navigable water or on land. State Industrial Commission v. Nordenholt Corporation, 259 U. S. 263, 42 S. Ct. 473, 66 L. Ed. 933, 25 A. L. R. 1013; Swayne & Hoyt, Inc., v. Barsch, 226 F. 581 (C. C. A. 9); Netherlands-American Steam Navigation Company v. Gallagher, 282 F. 171 (C. C. A. 2); Soper v. Hammond Lumber Company (D. C.) 4 F.(2d) 872; Todahl v. Sudden & Christenson, 5 F.(2d) 462 (C. C. A. 9); The Montezuma, 19 F.(2d) 355 (C. C. A. 2). The applicable rule was stated by the United States Supreme Court in State Industrial Commission v. Nordenholt Corporation, supra, 259 U. S. at page 272, 42 S. Ct. 473, 474, 66 L. Ed. 933, 25 A. L. R. 1013, as follows:

"When an employee working on board a vessel in navigable waters sustains personal injuries there, and seeks damages from the employer,...