Olsen v. Alaska Packers Ass'n
| Decision Date | 11 September 1940 |
| Docket Number | No. 9537.,9537. |
| Citation | 114 F.2d 364 |
| Parties | OLSEN v. ALASKA PACKERS ASS'N. |
| Court | U.S. Court of Appeals — Ninth Circuit |
C. H. Fish, of San Francisco, Cal., for appellant.
John H. Black and James M. Wallace, both of San Francisco, Cal., for appellee.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
This is an appeal from the dismissal of a libel for personal injuries alleged to have been received by libelant, a sailor employed on the launch "Sparrow" belonging to the respondent, through the respondent's alleged negligence. The negligence alleged consisted in the failure of respondent's crew on its steamer "Etolin" to control a sling load of frozen beef being lowered from the "Etolin" to the launch while lying in the waters of Kvichak Bay, Alaska. The libel sufficiently alleges respondent's negligence in respect to the injury received by libelant. On its face the libel was an admirality cause.
Respondent moved to dismiss the libel on the ground that its allegations did not disclose maritime jurisdiction. Along with the motion to dismiss because of the claimed absence of allegations in the libel of maritime jurisdiction, respondent filed an affidavit of a witness which is claimed to show that the injury was received in the course of employment in the salmon canning operations of respondent at its cannery in Kvichak on the Alaskan shore some thirty-five miles distant by water. It is contended that the claims in the affidavit constituted an exceptive allegation, but a mere affidavit of a witness is obviously not an allegation of respondent. The motion to dismiss the libel should have been denied and the cause could be reversed on this ground.
However an appeal in admiralty warrants a trial de novo and upon the argument of the appeal the parties stipulated that the case be finally submitted on the question of the existence of the maritime jurisdiction, on the record made by the allegations of the libel and of the affidavit, the latter stipulated to be an exceptive allegation.
The affidavit avers facts attempting to show an employment similar to that in Alaska Packers Association v. Marshall, 9 Cir., 95 F.2d 279. In that case we held that the seasonal employment of a fisherman sailor in catching, transporting, and supplying salmon to the salmon cannery was furnishing the cannery with raw material and, in the peculiar circumstances there found, that the employment was a part of the canning...
To continue reading
Request your trial
-
Garland v. The SS Illiamna
...The Seminole, D.C., 42 F. 924; Suspine et al. v. Compania Transatlantica Centroamericana, D.C., 37 F.Supp. 263; Olsen v. Alaska Packers Ass'n, 9 Cir., 114 F.2d 364; Richfield Oil Corporation v. U. S., 9 Cir., 248 F.2d 217; North American Smelting Co. v. Moller S. S. Co., D.C., 95 F.Supp. 71......
-
Johnson v. Griffiths SS Co., 10904.
...Cement, 9 Cir., 95 F.2d 738; Alioto v. Imahashi, 9 Cir., 115 F.2d 324; The Ariadne, 13 Wall. 475, 20 L. Ed. 542. 2 Olsen v. Alaska Packers, 9 Cir., 114 F.2d 364; Standard Oil Co. v. Southern Pacific Co., 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890; Brooklyn Eastern Dist. Terminal v. United Sta......
-
Petterson v. Alaska SS Co. Inc.
...Launch & Tugboat Co. v. Wilmington Transp. Co., 9 Cir., 117 F.2d 651, 653. But an admiralty appeal is a trial de novo, Olsen v. Alaska Packers Ass'n, 9 Cir., 114 F.2d 364, and this court may make its own inferences from the facts as found where it does not upset the findings based upon the ......
-
Alaska Packers Ass'n v. Alaska Industrial Board
...cannery and the processing of the fish and that the navigation of the Rail was merely incidental thereto. But in Olsen v. Alaska Packers Association, 9 Cir., 114 F.2d 364, the same Court refused to extend the scope of the Marshall decision and, hence, it could be said that these two decisio......