Ross v. Pacific S.S. Co.

• Decision Date: 04 April 1921
• Docket Number: 8731.
• Citation: 272 F. 538
• Parties: ROSS v. PACIFIC S.S. CO.
• Court: U.S. District Court — District of Oregon

272 F. 538

ROSS v. PACIFIC S.S. CO.

No. 8731.

United States District Court, D. Oregon.

April 4, 1921

William P. Lord, of Portland, Or., for plaintiff.

Grosscup & Morrow and Charles A. Wallace, all of Tacoma, Wash., for defendant.

WOLVERTON District Judge.

This is an action instituted in the state court to recover damages for injuries received by plaintiff while engaged as a longshoreman in the stowage of cargo on the steamship City of Topeka. The ship was lying in the navigable waters of the Willamette river, at the port of Portland, and the services being rendered at the time of the injury were maritime in character. The damages alleged and claimed for the injuries sustained aggregate $2,990, and no more. On defendant's petition the cause was removed to this court. The plaintiff now moves to remand, on the ground that, although the case is one wherein there is a diversity of citizenship, the amount involved is not sufficient to confer jurisdiction upon a federal court.

It is the contention of the defendant that the cause, being maritime, is wholly within admiralty jurisdiction, to the exclusion of all other courts. The question has been practically disposed of by the recent decision of Judge Bean in the case of Crane v. Pacific Steamship Co., 272 F. 204. The act (Judicial Code, Sec. 24 (3), being Comp. St Sec. 991 (3)) which confers admiralty jurisdiction upon the District Courts saves 'to suitors in all cases the right of a common-law remedy where the common law is competent to give it.'

While this is not a remedy in the common-law courts which is saved but a common-law remedy (The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397), nevertheless it is perfectly competent, within the clause, to sue in a common-law court, and as well in a state court, where the remedy is such that the common law is competent to administer it (The Hamilton, 207 U.S. 398, 404 28 Sup.Ct. 133, 52 L.Ed. 264). The principle is recognized also in Knapp, Stout & Co. v. McCaffrey, 177 U.S 638, 20 Sup.Ct. 824, 44 L.Ed. 921, and in Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 Sup.Ct. 501, 62 L.Ed. 1171.

A remedy, according to Bouvier, is 'the means employed to enforce a right or redress an injury. ' Pomeroy says:

'Remedies, in their widest sense, are either the final means by which to maintain and defend primary rights and enforce primary duties, or they are the final equivalents given to an injured person in the place of his original primary rights which have been broken, and of the original primary duties towards him which have been unperformed. ' Pomeroy's Remedies and Remedial Rights, Sec. 2.

Instances are given in Knapp, Stout & Co. v. McCaffrey, supra, 177 U.S. 644, 20 Sup.Ct. 824, 44 L.Ed. 921, where a common-law remedy will lie. These are illustrative. So, too, is section 723, Revised Statutes (Comp. St. Sec. 1244), which provides that:

'Suits in equity shall not be sustained in either of the courts of the United States

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