The Dauntless

• Decision Date: 01 February 1904
• Docket Number: 952,953.
• Parties: THE DAUNTLESS. v. KENT. UNION TRANSP. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

129 F. 715

THE DAUNTLESS.

UNION TRANSP. CO. v. KENT.

Nos. 952, 953.

United States Court of Appeals, Ninth Circuit.

February 1, 1904

Nathan H. Frank and Campbell, Metson & Campbell, for appellants.

M. B Woodworth and F. R. Wall, for appellees.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

Separate appeals were taken in these cases. They were consolidated for trial, and have been argued together in this court. The testimony was all taken before a commissioner. No. 952 is an action in rem brought by the administrator of John T. Doane deceased, against the steamer Dauntless for damages occasioned by the death of John T. Doane. No. 953 is an action in personam brought by the administrator of David J Kent, deceased, against the Union Transportation Company for damages occasioned by the death of David J. Kent. Both causes arise out of the same state of facts. Appellee in each case recovered the same amount of damages, to wit, $1,200.

There are only 177 assignments of error in each case. Why counsel should have taken pains to make so many assignments is unexplained. The truth is that there were but three points discussed by counsel, and we shall confine ourselves to these points.

1. There is one point raised which relates exclusively to case No. 952, viz., it is claimed that this case is an action in rem, and that no lien is given under the laws of the state of California, enforceable in an action for damages by death.

This court, in The Willamette, 70 F. 874, 878, 18 C.C.A. 366, 31 L.R.A. 715, and in Laidlaw v. Oregon Ry. & Nav. Co., 81 F. 876, 879, 26 C.C.A. 665, in construing the statute of Oregon which reads as follows: 'Every boat or vessel used in navigating the waters of this state * * * shall be liable and subject to a lien * * * for all * * * damages or injuries done to persons or property by such boat or vessel' (Hill's Ann. Code, Sec. 3690)-- held that an action of this character in rem could be sustained. The question involved in this case is whether or not such actions can be maintained under the statutes of California. It is claimed that the question has been decided in favor of appellants' contention by the Supreme Court of California (Munro v. Dredging Co., 84 Cal. 515, 524, 24 P. 303, 18 Am.St.Rep. 248; Morgan v. Southern Pacific Co., 95 Cal. 510, 519, 30 P. 603, 17 L.R.A. 71, 29 Am.St.Rep. 143), and by the Supreme Court of the United States (The Albert Dumois, 177 U.S. 240, 257, 20 Sup.Ct. 595, 44 L.Ed. 751), and by the Circuit Court of Appeals, Seventh Circuit (The Onoko, 107 F. 984, 986, 47 C.C.A. 111).

These suggestions require an investigation upon new lines. In the construction of state statutes, it is our duty to follow the decisions of the Supreme Court of a state. If no construction has been given to the statute by that tribunal, but has been given by the Supreme Court of the United States, we would be controlled by such decision. The decisions in other circuits are not binding upon this court, but are deserving of respect, and entitled to credit and consideration for the strength of the reasons therein given.

The statute of California (section 377, Code Civ. Proc.) provides, 'When the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death. ' Section 813, Code Civ. Proc., provides, 'All steamers, vessels, and boats are liable * * * (5) for injuries committed by them to persons or property.'

The California cases above cited did not discuss the questions here presented. All that was there said having any bearing upon the statute was 'that the action given by the statute is a new action, and not the transfer to the representative of the right of action which the deceased person would have had if he had survived the injury.'

In The Albert Dumois Case, the court said:

'Assuming for the present that the question of lien is material, we are next to inquire whether such lien is given by the local law of Louisiana. We are cited in this connection to two articles of the Civil Code, the first of which (article 2315), as amended in 1884, declares that 'every act whatever, of man, that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive, in case of death, in favor of the minor children or widow of the deceased, or either of them, and in default of these, in favor of the surviving father and mother, or either of them, for the space of one year from the death. The survivors above mentioned may also recover the damages sustained by them by the death of the parent, or child, or husband, or wife, as the case may be.' It was held by us in The Corsair. 145 U.S. 335 (12 Sup.Ct. 949, 36 L.Ed. 727), a case arising out of a collision which also took place on the lower Mississippi, that this local law did not give a lien or privilege upon the vessel, and that nothing more was contemplated by it than an ordinary action according to the course of the law as administered in Louisiana. Our attention is also called by the owners of the Dumois to subdivision 12 of article 3237 of the Civil Code, which reads as follows: 'Where any loss or damage has been caused to the person or property of any individual by any carelessness, neglect or want of skill in the direction or management of any steamboat, barge, flatboat, water craft, or raft, the party injured shall have a privilege to rank after the privileges above specified.' No reliance was placed upon this article in the case of The Corsair, probably because it was thought to refer only to losses or damages to persons still living, and that an action would lie in favor of the party injured. Certainly, if this article had been supposed to give a remedy for damages occasioned by death, to the representatives of the deceased person, it would never have escaped the attention of the astute counsel who participated in that case. The question whether 'damage done by any ship,' jurisdiction over which was given to the High Court of Admiralty in England, included actions brought by the personal representatives of seamen or passengers killed in a collision, has been the subject of many and conflicting judicial opinions in the English courts, a summary of which may be found in The Corsair, 145 U.S. 345 (12 Sup.Ct. 949, 36 L.Ed. 727), and was finally settled against the jurisdiction by the House of Lords in the case of The Franconia, 10 App.Cases 59. * * * The object of article 3237 was not to extend the cases in which damages might be recovered to such as resulted in death, but merely to provide that, in cases of damages to person or property, where such damage was occasioned by negligence in the management of any water craft, the party injured should have a privilege or lien upon such craft. We deem it entirely clear that the article was not intended to apply to cases brought by the representatives of a deceased person for damages resulting in death.'

In The Onoko the court said:

'Undoubtedly, in this country, since the decision in The Corsair, the general trend of opinion in the lower courts has been to the effect that the watercraft laws of the various states give a lien upon the vessel for injuries occasioning death. * * * In all these cases, with the exception of The Glendale, the act supposed to grant the lien is an independent act, and in no way connected with the act giving the action for the death. In The Glendale the provision granting the lien is part of the very act giving the right of action.'

In referring to The Albert Dumois Case, the court states the fact upon which the case was decided, and gives the views of the court upon the question here under discussion. It was there, as here, urged that the declaration of the opinion upon the subject of the lien is dictum, because it was adjudged that, under the limited liability act, damages by reason of death were recoverable, although no lien upon the vessel was allowed, and the court said:

'We do not think this contention should prevail. The question was, as we read the opinion, whether a moiety of those damages should be charged upon the amount awarded to the owner of the Argo, upon the ground that the interveners had liens upon the Argo, and that, having such liens, the court was justified in deducting from the amount awarded to the owner of the Argo a moiety of the damages awarded to the interveners. We may not consider this declaration of the Supreme Court as merely dictum, but, if the matter were doubtful, we should not feel at liberty to disregard this carefully considered deliverance of the Supreme Court upon the subject.'

The court then discussed the Lord Campbell act, and the statutes of the different states with reference thereto, and said:

'It is also to be said that the water-craft law contemplates a lien for direct injuries done by the inanimate thing negligently navigated, and would not seem to comprehend such injury as is contemplated by the act granting a right of action for a death. The injury for which a lien is given is a direct injury by the negligently navigated craft to person or property. By reason of the faulty navigation and consequent collision, no injury was done to the person of the libelant, or to the persons of those he represents. Nor was injury done to his or their property. They had no property right in the person of the deceased. The right of action arose only upon and because of his death. The recovery is allowed as compensation for the supposed support and education which they would have received had he survived. This right of action, arising only upon death, cannot, within the meaning of the watercraft law, be property which could be

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