McCall v. Susquehanna Electric Company, Civ. A. No. 18106.

• Decision Date: 09 January 1968
• Docket Number: Civ. A. No. 18106.
• Parties: Maxine E. McCALL, Mother of Thomas E. McCall, Jr. and Maxine E. McCall and John S. Mahle, Jr., Ancillary Administrator of the Estate of Thomas Edward McCall v. The SUSQUEHANNA ELECTRIC COMPANY.
• Court: U.S. District Court — District of Maryland

278 F. Supp. 209

Maxine E. McCALL, Mother of Thomas E. McCall, Jr. and Maxine E. McCall and John S. Mahle, Jr., Ancillary Administrator of the Estate of Thomas Edward McCall v. The SUSQUEHANNA ELECTRIC COMPANY.

Civ. A. No. 18106.

United States District Court D. Maryland.

January 9, 1968.

Thomas G. Andrew, Rollins, Smalkin, Weston & Andrew, Baltimore, Md., for plaintiffs.

Phillips L. Goldsborough, III, and Herbert F. Murray, Baltimore, Md., for defendant.

NORTHROP, District Judge.

The question for determination raised by defendant's motion under Rule 12(d) of the Federal Rules of Civil Procedure is whether or not the facts alleged by the plaintiffs state a cause of action within the admiralty and maritime jurisdiction of this court.

The wife, minor son, and the ancillary administrator of the estate of Thomas E. McCall have filed suit pursuant to the Maryland Survival and Wrongful Death Statutes, Md. Code Article 67, § 1 and § 4, against the Susquehanna Electric Company for the pain and suffering and wrongful death by drowning of Thomas McCall.

The defendant operates Conowingo Dam on the Susquehanna River, a navigable river in Hartford County, Maryland. It is not disputed that on September 18, 1965, the decedent was fishing from a small boat anchored in the Susquehanna River about one-quarter of a mile below the dam. On that day the defendant, through its employees, allegedly caused the drowning of the decedent by opening certain gates in the dam, thus allowing a large quantity of water to flow downriver and thereby caused decedent's boat to capsize. It is contended that the gates were opened even though these employees knew that numerous persons were fishing in the river and were opened without an adequate warning being given to those on the water below the dam. The plaintiffs say that it was this combination of misfeasance and nonfeasance that caused the decedent's death.

The defendant denies that it was negligent and further alleges that decedent's death was caused by his being negligent or contributorily negligent, or that, in any event, decedent assumed the risk.

The plaintiffs allege that the case is cognizable under admiralty and maritime jurisdiction and have elected to proceed by an ordinary civil action, seasonably requesting a trial by jury. See generally Banks v. Hanover Steamship Corporation, 43 F.R.D. 374 (D. Md. 1967). While the defendant does not question the diversity allegation in the amended complaint, plaintiffs' counsel has inadvertently used the word "residents" instead of "citizens" and this court will permit an amendment by interlineation at the time of trial.

If this case falls within the admiralty jurisdiction of the court then it is subject to the principles of the maritime law, Anthony v. International Paper Co., 289 F.2d 574 (4 Cir. 1961), Holley v. The Manfred Stansfield, 269 F.2d 317 (4 Cir. 1959) and cases cited therein, which provides for, among other things, the application of the doctrine of comparative negligence.

Generally, admiralty jurisdiction over torts depends upon the locality where the tort occurred. 1 Benedict, Admiralty § 127 (6th ed. 1940). The Supreme Court stated the test in Hough v. Western Transportation Co. (The Plymouth), 3 Wall. 20, 70 U.S. 20, 18 L.Ed. 125 (1866):

"The wrong and injury complained of must have been committed wholly upon the high seas of sic navigable waters, or, at least, the substance and consummation of the same must have taken place upon these waters to be within the admiralty jurisdiction." 3 Wall. at 35, 70 U.S. at 35, 18 L.Ed. at 128.

Defendant contends that Conowingo Dam was the site of the alleged cause of action, the water merely being the place where the injuries and the death of the decedent culminated. If that were true then there would not be admiralty jurisdiction in this case for

"It has been uniformly held that the structures such as wharves, piers, etc., affixed permanently to shore and bed, are extensions of land, remedies for injuries upon which are restricted to those afforded by local rather than admiralty law." Johnson v. Traynor, 243 F.Supp. 184, at 187 (D.Md.1965).

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