Decision Date15 August 1932
Docket NumberNo. 6698.,6698.
Citation60 F.2d 793
CourtU.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.

WILBUR, Circuit 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:

"* * * The widow's cause of action is not for the wound inflicted on the decedent on the ship, but for the death of the decedent, which took place on the land.

"This is a new cause of action, which the decedent never had. The widow's damages did not arise until the death occurred. The substance and consummation of the widow's cause of action arose on the land, and therefore were beyond the jurisdiction of the admiralty court."

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:

"Section 2902 of the Code, quoted on page 17 of appellee's brief, in connection with the libel on behalf of Byrd, is Virginia's Lord Campbell's act, and the general rule and the law as stated in `The Glendale' is not controverted.

"While giving a lien, however, it is not for a cause of action which survives, but is a new cause of action entirely.

"In discussing this provision the Supreme Court of Appeals said:

"`It is not (sic) intended to withdraw from the wrongdoer the immunity from civil liability which the rule of the common law afforded him, and to provide for the recovery of such damages, notwithstanding the death of the injured person. In so doing, however, it plainly did not intend to continue or cause to survive his right of action for the injury, but to substitute for it and confer upon his personal representative a new and original right of action. (Citing cases.) * * * If the effect of the statute is, as was contended, to cause the right of action to survive, the suit by his personal representative would be to recover damages for the injury the deceased had sustained and the detriment caused to his estate. * * * But in a suit by the personal representative under the statute the evidence would primarily relate to and the damages be not only for the pecuniary loss the wife, husband, parent or child had sustained, but it would be proper for the jury * * * to take also into consideration the grief and mental anguish of such relatives and their loss in being deprived of the care, attention and society of the deceased.' Anderson v. Hygeia Hotel Co., 92 Va. 687, 691, 692 24 S. E. 269.

"Byrd's administrator therefore is suing, not for the injury received by Byrd, but for damages for his death. The `substance and consummation' of his wrong occurred at the hospital, and the decision in Ryley v. R. R. Co. D. C. 173 F. 839, passing, as it does, upon a statute of exactly the same character, is identically in point."

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.

NETERER, District Judge (dissenting).

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:

"51-601. Claims giving rise to liens. — Every boat or vessel used in navigating the water of this state or constructed in this state shall be liable and subject to a lien:

"1. For wages due to persons employed, for work done or services rendered on board of such boat or vessel.

"2. For all debts due to persons by virtue of a contract, expressed or implied, with the owners of a boat or vessel, or with the agents, contractors, or subcontractors of such owner, or any of them, or with any person having them employed to construct, repair, or launch such boat or vessel, on account of labor done or materials furnished by mechanics, tradesmen, or others in the...

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