United States v. Matson Nav. Co.

• Decision Date: 19 January 1953
• Docket Number: No. 12902.,12902.
• Citation: 201 F.2d 610
• Parties: UNITED STATES v. MATSON NAV. CO. et al. THE LOUIE III.
• Court: U.S. Court of Appeals — Ninth Circuit

201 F.2d 610 (1953)

UNITED STATES v. MATSON NAV. CO. et al. THE LOUIE III.

No. 12902.

United States Court of Appeals Ninth Circuit.

January 19, 1953.

Holmes Baldridge, Asst. Atty. Gen., Henry L. Hess, U. S. Atty., Portland, Or., Leavenworth Colby and Keith R. Ferguson, Sp. Assts. to Atty. Gen., for appellant.

Gunther F. Krause, Arthur S. Vosburg, Frank McK. Bosch and F. E. Wagner, Portland, Or., for appellees.

Before STEPHENS, HEALY, and BONE, Circuit Judges.

STEPHENS, Circuit Judge.

A unique body of law particularly appropriate to the regulation and settlement of the special problems arising out of sea navigation and commerce has been developed for the "men who go down to the sea in ships" and for the merchants who use the waterways of the world as highways. The maritime law has grown from ancient times to the present day, changing with changing times to meet the objective of common justice. Landlubber courts, nurtured in the common law of their several countries, early conceded litigation relating to the sea to a specialty court commonly called "Court of Admiralty". Civilization has not progressed evenly with all peoples and the border separating right from wrong, or justice from injustice, is neither definite nor static. Hence, "the precise scope of admiralty jurisdiction is not a matter of obvious principle or of very accurate history". The Blackheath, 1904, 195 U.S. 361, 365, 25 S.Ct. 46, 47, 49 L.Ed. 236.

When the creation of a supreme sovereignty by the compact of thirteen sovereign states was memorialized by the Constitution of the United States, admiralty law was therein recognized as a national interest and "all Cases of admiralty and maritime Jurisdiction"¹ were vested within the judicial power as exercised by the Supreme Court and "such inferior Courts as the Congress may from time to time ordain and establish."² What constituted an "admiralty" or "maritime" case, the founding fathers did not say, but they must have intended those words as embracing the broad subject matter of maritime law according to the general practices relating to it and at all times subject to definite provision by Congress and judicial decision within the reasonable scope of the terms used.

When the first Congress undertook to establish the federal courts under the mandate of Article 3, Section 1, of the Constitution, it apparently acted with the intent to avoid a repetition of the historical conflict which resulted from the competition for jurisdiction between the English common law and admiralty courts,³ for it bestowed both the common law jurisdiction and "all civil causes of admiralty and maritime jurisdiction" upon the United States district courts, "saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it".⁴ Judiciary Act of 1789, 1 Stat. 73, 77, 28 U.S.C.A. § 1333(1). But the distinctions between the common law and the admiralty law remained, each following its own rules, remedies and precedents. And as the differences remained, so did the necessity for determining which body of law was to govern in a particular case. But Congress still gave no definition to the scope of the maritime law. Consequently it remained for the court in each case before it to determine whether the facts reasonably fell within the compass of the Constitutional provision.

The Facts of the Instant Case

In December, 1946, the Tug Louie III, owned by the Westport Towboat Company, with a raft in tow, fouled the Dredge Multnomah, a donkey scow and pipeline, all owned by the United States, on the Columbia River within the State of Oregon. Shortly thereafter, the S. S. Hardy, operated by the Matson Navigation Company and piloted by W. R. Eckhart, while proceeding on a downstream course in an attempt to pass the dredge, tug, and tow, collided with and damaged a dike, identified as Dike 67-1, owned and maintained by the United States. Dike 67-1 was constructed of piling and was admittedly attached to the shore. The United States sought to invoke the admiralty jurisdiction of the United States District Court for the District of Oregon by libeling the Tug in rem and the Westport Towboat Company in personam for a maritime tort to the dredge, donkey scow, pipeline, and appurtenant equipment; by libeling the Tug in rem, and the Westport Towboat Company together with the Matson Navigation Company and the pilot Eckhart in personam for a maritime tort to the dike; and by libeling the Tug in rem to recover the damages and statutory penalty provided by the Rivers and Harbors Act of 1899, Title 33 U.S.C.A. § 407 et seq. The libels were joined in one action. The respondents excepted individually and on various separate grounds, but all joined in challenging the admiralty jurisdiction over the tort to the dike for the reasons that the dike was a land structure and the damage occurred in 1946 prior to the enactment of the Shore Damage Act of June 19, 1948, 46 U.S.C.A. § 740. Respondents further challenged the constitutionality of the Shore Damage Act and disclaimed any liability under Title 33 U.S. C.A. §§ 408 and 412.

A preliminary pre-trial hearing on the jurisdictional questions was had. The court found that prior to the enactment of the Shore Damage Act a court sitting in admiralty had no jurisdiction over a tort to a dike and that the Shore Damage Act, enacted June 19, 1948, had no retroactive application to an accident which occurred on December 21, 1946. The court further found it had no admiralty jurisdiction to entertain a claim for damages and penalties under the Act of March 3, 1899, 33 U.S. C.A. § 411, for damages to the dike. The libel was dismissed as to respondents Matson Navigation Company, the pilot Eckhart, the Westport Towboat Company and the Tug insofar as claims growing out of the damage to the dike and the Rivers and Harbors Act of March 3, 1899 were alleged therein. Libelant was given twenty days to file an amended libel in admiralty against the Towboat Company and Tug, confining its claim of damage to the Dredge Multnomah. The United States appealed.

Jurisdiction of Admiralty Courts

An essential to the jurisdiction of the admiralty courts over a tort is that it was committed in relation to navigable waters. 1 Benedict on Admiralty, 6th Ed., § 127 et seq.; The Plymouth, 1865, 3 Wall. 20, 33, 18 L.Ed. 125. Admiralty jurisdiction extends to every species of tort committed upon the high seas or on navigable waters. The Plymouth, supra, 3 Wall. at page 34, 18 L.Ed. 125. The fact that the alleged tort in the instant case occurred upon the Columbia River and not a sea would not be a basis for denying the jurisdiction of the admiralty courts, since the river at the place of collision is navigable.⁵ Waring v. Clarke, 1847, 5 How. 441, 12 L. Ed. 226. See also Fretz v. Bull, 12 How. 466, 13 L.Ed. 1068; The Magnolia, 20 How. 296, 15 L.Ed. 909; The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (river entirely within State of Michigan); The Montello, 20 Wall. 430, 22 L.Ed. 391 (river entirely within State of Wisconsin and interrupted by rapids); Escanaba & L. M. Transp. Co. v. City of Chicago, 107 U.S. 678, 2 S.Ct. 185, 27 L.Ed. 442 (Chicago River); The Robert W. Parsons, 1903, 191 U.S. 17, 24 S.Ct. 8, 48 L.Ed. 73 (Erie Canal).

However, respondents do contend that damage to a dike is not a maritime tort since a dike is a continuation of the land. In general, injury to an extension of the land is not within the admiralty jurisdiction. The Plymouth, supra. The Plymouth doctrine sprang from a case concerning the spread of a fire to a wharf to which a ship was tied. The court there held that although the origin of the wrong was on navigable water, "the substance and consummation of the injury was on land", and therefore, beyond the cognizance and jurisdiction of the admiralty courts. The doctrine has been applied to damage by a ship to a bridge, Cleveland T. & V. R. Co. v. Cleveland S. S. Co., 1908, 208 U.S. 316, 28 S.Ct. 414, 52 L.Ed. 508; The Troy, 1908, 208 U.S. 321, 28 S.Ct. 416, 52 L.Ed. 512; to a building on the shore, Ex parte Phenix Insurance Co., 1886, 118 U.S. 610, 7 S.Ct. 25, 30 L.Ed. 274; and to many other structures said to be extensions of the land. See 1 Benedict on Admiralty, 6th Ed., § 128a.

The rule laid down in The Plymouth was qualified by the Supreme Court in The Blackheath, 1904, 195 U.S. 361, 25 S.Ct. 46, 48, 49 L.Ed. 236. The facts in that case concerned a vessel which struck and damaged a beacon in the Mobile, Alabama, ship-channel. The court held that the injury had been "to a government aid to navigation from ancient times subject to the admiralty, — a beacon emerging from the water, — injured by the motion of the vessel, by a continuous act, beginning and consummated upon navigable water, and giving character to the effects upon a point which is only technically land, through a connection at the bottom of the sea." Emphasis ours. At page 367 of 195 U.S., at page 48 of 25 S.Ct., Justice Brown, in his separate concurring opinion, suggested that the decision of the court in The Blackheath overruled The Plymouth doctrine. However, Justice Brown's view was not accepted, and The Blackheath situation became only a limitation upon The Plymouth doctrine,⁶ while cases of injury to shore structures or extensions of the land by ships remained beyond the scope of admiralty jurisdiction in the United States. See, e.g., The Admiral Peoples, 1935, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633.

The damaged dike which is the subject of the instant litigation was made of wooden pilings extending northerly from the Oregon shore in the lower Columbia River. The purpose of the dike was to force the river's water into a narrower channel, thereby increasing the speed of the flow and preventing the deposit of silt on the river bed. The dike thus served as part of the government's project for dredging the Columbia River channel and for keeping the river navigable. It might, therefore, be...