THE CITY OF VANCOUVER, 6698.
Decision Date | 15 August 1932 |
Docket Number | No. 6698.,6698. |
Citation | 60 F.2d 793 |
Parties | THE CITY OF VANCOUVER. RICE v. VANCOUVER S. S. CO., Limited. |
Court | U.S. Court of Appeals — Ninth Circuit |
Lord & Moulton, of Portland, Or., for appellant.
Erskine Wood and Gunther F. Krause, both of Portland, Or., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
The decedent was aboard a ship alongside the dock at Westport, Ore. He was engaged in doing the work of a longshoreman aboard the ship, being an employee of Astoria Stevedoring Company. A load of lumber which was being hoisted to put aboard ship fell on the decedent and injured him so severely that he died shortly after being taken ashore. The trial court dismissed the libel on the ground that it had no jurisdiction in admiralty over the tort resulting in the death of the decedent. The trial court followed the decision of Judge Bean in The Kaian Maru (D. C.) 2 F.(2d) 121, holding that the law of Oregon permitting recovery for death was a death statute, that is, a statute permitting the relatives to recover for injuries they suffer by reason of the death of a decedent, and that under such a statute the injury to them occurred at the time of death and not at the time of the accident, and that, as the death and consequent injury to them had occurred ashore, admiralty had no jurisdiction, whereas, in his opinion, had the death occurred aboard ship or had the statute under which recovery was permitted been a survival statute, that is, a statute wherein the decedent's right to recover for a tort survives, and can be enforced by his executors, administrators, or heirs, the admiralty court would have had jurisdiction. It is not questioned that the courts of Oregon have consistently held that the statute of Oregon permitting the recovery for death is what is known as a death statute. There are a number of decisions of District Courts holding that under such statutes the right of action arises at the time of death and not at the time of injury, and consequently, where the death occurs ashore, there is no jurisdiction in admiralty. The Kaian Maru (D. C.) 2 F.(2d) 121, supra; Pickles v. Leyland (D. C. Mass.) 10 F.(2d) 371; Ryley v. Philadelphia & R. Ry. Co. (D. C. N. Y.) 173 F. 389. The jurisdiction of admiralty has been sustained in two cases by Circuit Courts of Appeals, one in the Fourth Circuit, where the death occurred ashore (The Anglo-Patagonian, 235 F. 92), and another in the fifth circuit, where the death occurred ashore (The Chiswick, 231 F. 452). In each of these cases the state statute involved, that of Virginia (section 2902, Code Va.) and Florida (Gen. Stats. Fla. 1906, §§ 3145, 3146), respectively, was a death statute. Spradlin v. Ga. Ry. & Elec. Co., 139 Ga. 575, 77 S. E. 799; Florida C. & P. R. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149; Duval v. Hunt, 34 Fla. 85, 15 So. 876. The precise question presented to us for decision was not discussed in either of the two above-mentioned opinions, but an examination of the records and briefs in those cases discloses the fact that in both of them the point was raised and necessarily decided by the respective courts. In re The Chiswick, supra, it was claimed that, as the decedent died ashore, the case was not within admiralty jurisdiction. It was argued that the Florida statute was a death statute (citing Tiffany, Death by Wrongful Act, § 24; Seward v. Vera Cruz, 10 App. Cas. 59, 67, by the House of Lords, Whitford v. Panama Railroad Co., 23 N. Y. 465; Matter of Meekin, 164 N. Y. 145, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635; Seaboard A. L. R. Co. v. Moseley, 60 Fla. 186, 53 So. 718; Florida E. C. R. v. Jackson, 65 Fla. 393, 62 So. 210; Duval v. Hunt, 34 Fla. 85, 15 So. 876, supra; Florida C. & P. R. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149, supra). Counsel contended as follows:
In support of this contention in that case the appellant cited Ex parte Phœnix Ins. Co., 118 U. S. 210, 6 S. Ct. 1176, 30 L. Ed. 128; Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388, 7 S. Ct. 254, 30 L. Ed. 447; Cleveland Terminal & V. R. R. Co. v. Steamship Co., 208 U. S. 316, 28 S. Ct. 414, 52 L. Ed. 508, 13 Ann. Cas. 1215; The Plymouth, 3 Wall. 20, 18 L. Ed. 125; Ryley v. Philadelphia R. R. Co. (D. C.) 173 F. 839. The last two cases are relied upon by appellee in the case at bar. It follows that the decision of the Circuit Court of Appeals of the Fifth Circuit that the court of admiralty had jurisdiction is a direct determination of the question involved in the case at bar. In the decision by the Circuit Court of Appeals for the Fourth Circuit (The Anglo-Patagonian, 235 F. 92, supra), the main contention of the parties as to jurisdiction arose from the fact that the ship was in dry dock, hence it was contended that neither the injury nor the death ashore resulting therefrom occurred within admiralty jurisdiction. The fact that the injured workman was taken ashore and died there, was not stressed in the briefs, although in the appellant's reply brief it was said:
In considering the jurisdiction of a court of admiralty under the circumstances it should be remembered that neither at common law nor by the general maritime law was there a right to recover for death (Rundell v. La Campagnie Generale Transatlantique (C. C. A.) 100 F. 655, 49 L. R. A. 92; Mobile L. Ins. Co. v. Brame, 95 U. S. 756, 24 L. Ed. 580; The Alaska, 130 U. S. 201, 9 S. Ct. 461, 32 L. Ed. 923; The Harrisburg, 119 U. S. 199, 7 S. Ct. 140, 30 L. Ed. 358), and that admiralty courts having jurisdiction of cases resulting in death have adopted the more humane course of following the law of states, or nations, permitting such recovery where applicable. There seems to be no good reason why in admiralty there should be a jurisdictional distinction between the two types of statutes permitting recovery for death where the injury from which the death results occurs on board ship and within admiralty jurisdiction. Statutes of states and nations providing such a remedy have been applied by courts of admiralty in the interests of humanity. If this is the true basis for admiralty jurisdiction, there is no broad ground for making the distinction between the two types of statutes in question. The circumstances are identical in each case. It is true that in determining questions of jurisdiction fine distinctions are very often made and are frequently determinative of the question, but there seems to be no good reason for such a distinction here, particularly as the law applicable aboard ship where the injury occurs is the same as that ashore where the injured man died.
Decree of dismissal reversed.
I think the order of dismissal should be affirmed.
The libelant seeks to recover damages for death, under the Oregon statute. Sections 51-601 and 5-703, Oregon Code Annotated, are involved:
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