Netherlands American Steam Nav. Co. v. Gallagher

• Decision Date: 08 March 1922
• Docket Number: 142.
• Citation: 282 F. 171
• Parties: NETHERLANDS AMERICAN STEAM NAV. CO. v. GALLAGHER.
• Court: U.S. Court of Appeals — Second Circuit

282 F. 171

NETHERLANDS AMERICAN STEAM NAV. CO. v. GALLAGHER.

No. 142.

United States Court of Appeals, Second Circuit.

March 8, 1922

This is an action to recover damages for personal injuries, and negligence is charged against the plaintiff in error hereinafter called the defendant. Judgment has been obtained against it in the sum of $5,000. The plaintiff is a citizen of the state of New Jersey, and at the time of the injury complained of was employed by it in the unloading of the cargo of the steamship Rotterdam at the pier in Hoboken, N.J. The defendant, by whom the plaintiff was employed at the time of his injury, is an alien corporation, created under the laws of the kingdom of Holland, and was engaged at all the times herein involved in maritime commerce between the United States, England, France, and Holland. It is the owner of the steamship Rotterdam. It has its principal office at Rotterdam, Holland, but it also maintains an office for the regular transaction of business in the city of New York.

The plaintiff began his work of unloading the ship on Saturday April 2 1921. The injury occurred on the following Tuesday at about 2:15 p.m. Prior to this particular job, he had worked as a stevedore for about a year but had had no experience in unloading rolls of paper. The method of unloading the cargo was to have each separate package, described in the testimony as a 'draft,' raised out of the hold by a winch and lowered to the edge of the dock, where the plaintiff and other stevedores were waiting with hand trucks to receive them. The draft would be lowered on top of the truck, the sling unhooked, and the draft would then be trundled over on the truck to that part of the dock where the rolls of paper were to be piled up. The cargo consisted of bags, bales of rags and rubber, and also a number of large rolls of paper. These rolls were about 6 feet long and 3 feet in diameter. After about eight of these rolls had been unloaded, a further roll of paper was lowered to the truck, and the plaintiff had released the hook which attached the roll to the fall, he turned around to get another sling, which it was the practice of the men to attach to the hook, so that it might be returned to the ship and be put around the next draft to be hoisted out. As the plaintiff was stooping down to pick up this sling, the heavy roll of paper rolled off the hand truck on top of the plaintiff, and crushed his leg against the net or save-all which was stretched from the edge of the dock to the side of the steamer, to prevent any of the cargo from falling into the water in the process of unloading. The truck used was about 7 feet long, with a perfectly flat surface, and with a steel plate at the end but otherwise without guards or projections. It had two iron legs supporting the handles. The truck was operated by the plaintiff's mate by the name of Leese. After the truck was loaded, it was Leese's duty to trundle it over to the place on the dock where the roll of paper was to be unloaded, and it was the plaintiff's duty to steady the roll while it was being so trundled. At the moment of injury the truck was level with the dock; Leese not having yet lifted it.

Benjamin C. Loder, of New York City (E. C. Sherwood and Clarence S. Zipp, both of New York City, of counsel), for plaintiff in error.

Solomon Ullman, of New York City (George M. Curtis, Jr., and Harold R. Medina, both of New York City, of counsel), for defendant in error.

Before ROGERS, HOUGH, and MAYER, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

This case presents an interesting and important question, involving the jurisdiction of the courts of the United States and the applicability of the laws of a state to the cause of action which the plaintiff asserts. As the plaintiff at the time of his injury was performing service as a stevedore in unloading an ocean steamer at her pier in Hoboken, and the injury happened to him on the pier, it is necessary, in determining the issues involved, to consider the limits of the admiralty and maritime jurisdiction of the federal courts.

The limits of the admiralty and maritime jurisdiction, as distinguished from the jurisdiction of the common-law courts, have not been precisely defined, and this fact has led to much embarrassment and controversy. In England the courts of admiralty have exercised a more limited jurisdiction than the like courts in Ireland, and in Scotland the admiralty courts have exercised a more comprehensive jurisdiction than the same courts have enjoyed in either Ireland or in England; and as Judge Story in his Commentaries on the Constitution, vol. 2, p. 450, points out, the limits of the admiralty jurisdiction have been a matter of 'heated controversy' between the courts of common law and the High Court of Admiralty in England, with alternate success and defeat. In the United States the courts of admiralty have exercised a much more extensive jurisdiction than have the like courts in England.

For a time there was perhaps no subject in this country concerning which the rulings of the federal courts were so wanting in uniformity as upon the admiralty jurisdiction. It is still true that on some matters pertaining to this jurisdiction much uncertainty still prevails, to the embarrassment of courts and litigants. In 1861 Mr. Chief Justice Taney, in The Steamer St. Lawrence, 1 Black, 522, 527, 17 L.Ed. 180, after referring to the fact that circumstances rendered it difficult to define the exact limits of the admiralty and maritime jurisdiction of the United States, said:

'And the reports of the decisions of this court will show that the subject has often been before it, and carefully considered, without being able to fix with precision its definite boundaries; but certainly no state law can enlarge it, nor can an act of Congress or rule of court make it broader than the judicial power may determine to be its true limits.'

The Constitution (article 3, Sec. 2) provides that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. The jurisdiction thus conferred embraces two classes of civil cases. The first respects acts or injuries done upon navigable waters. The second respects contracts purely maritime, and touching rights and duties pertaining to commerce and navigation. The first of these classes is usually divided into two subdivisions-- one embracing captives and questions of prize arising jure belli; and the other acts, torts, and injuries of civil cognizance, independent of belligerent operations. 2 Story, Com. on Const. (4th Ed.) Sec. 1666. The admiralty and maritime jurisdiction extends, then, to maritime contracts and to maritime torts. And as the cause of action in the case now before the court is not one brought on the contract, but is one brought to recover for the tort, which tort is not maritime, it is not one which is within the admiralty and maritime jurisdiction.

The Judiciary Act of 1789, which vested in the courts of the United States exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction, contained a provision saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it. 1 Stat. 77, Sec. 9. That provision has never been repealed, and has been held constitutional. The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397. It is not a remedy in the common-law courts which is saved, but a common-law remedy. So it has been held that a mariner may sue in a state court in personam to recover his wages, as the common law is as competent as the admiralty to give him a remedy in such a case. Leon v. Galceran, 11 Wall. 185, 20 L.Ed. 74. In such cases, the contract being maritime, the state and federal courts exercise a concurrent jurisdiction. But in cases of tort, if the tort is nonmaritime, it is not within the maritime jurisdiction, and relief is to be had in a common-law action in the state courts.

The admiralty jurisdiction, of course, extends to maritime contracts; for such contracts are regulated and enforced by maritime law. Benedict's Admiralty (4th Ed.) Sec. 143. Assuming that the plaintiff was employed as a stevedore, his contract to render service in loading or unloading a ship is to be regarded as a maritime contract. In the case of New Jersey Navigation Co. v. Merchants Bank, 6 How. 344, 12 L.Ed. 465, Mr. Justice Nelson, speaking for the court as to the admiralty jurisdiction in matters of contract, stated that the inquiry was as to--

'the nature and subject-matter of the contract, whether it was a maritime contract, and the service a maritime service, to be performed upon the sea or upon waters within the ebb and flow of the tide.'

The last distinction, based on the ebb and flow of the tide, has since been abrogated by later decisions of the court; for since the case of The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L.Ed. 1058, decided in 1851, it has been established that the admiralty and maritime jurisdiction of the federal government is not limited to tide waters but extends to all public navigable waters where commerce is carried on between the states or with a foreign nation. And in The Robert W. Parsons, 191 U.S. 17, 24 Sup.Ct. 8, 48 L.Ed. 73, decided in 1903, it was declared to extend to the Erie Canal, although wholly within a single state, as being a great highway of commerce between ports in different states and foreign countries. In The Belfast, 7 Wall. 624, 19 L.Ed. 266, Mr. Justice Clifford, speaking of the jurisdiction of the admiralty in matters of contract, stated that it depended on the nature of the contract.

The question whether a contract is maritime or not depends in this country simply on the subject-matter of the...