Young v. Clyde S.S. Co.

• Decision Date: 20 December 1923
• Parties: YOUNG v. CLYDE S.S. CO.
• Court: U.S. District Court — Southern District of Florida

294 F. 549

YOUNG v. CLYDE S.S. CO.

United States District Court, S.D. Florida.

December 20, 1923

Gov Hutchinson and John F. Hall, both of Jacksonville, Fla., for plaintiff.

Kay Adams & Ragland, of Jacksonville, Fla., for defendant.

CLAYTON District Judge.

The plaintiff, as the widow of William Young, brought this personal action at law in the circuit court of Duval county Fla., against the defendant steamship company for the death of her husband, a laborer employed by the defendant on the steamship Lake Fannin, now called the Osage. The case was seasonably transferred to this court on the ground of diversity of citizenship.

The first count charges negligence, in that the defendant failed to equip and maintain a sufficient and proper sounding tube for measuring oil in the fuel tank, and that as a proximate result thereof the laborer sustained injuries resulting in his death. The second count charges negligence on the part of the defendant in furnishing to the deceased a dangerous place to work, which was the proximate cause of his injury and death. The third count alleges negligence against the defendant, in that it carelessly and negligently failed to warn the deceased of the danger of looking into the manhole to ascertain the quantity of fuel oil in such tank, and that this carelessness and negligence was the proximate cause of the injury and death.

The declaration sets out that the tort complained of was committed aboard a vessel on navigable waters, the St John's river. This of itself fixes the tort as maritime, for every tort, however occurring, if upon the high seas or navigable waters, is of admiralty cognizance. Atlantic Transp. Co. v. Imbrovek, 234 U.S. 52, 60, 34 Sup.Ct. 733, 58 L.Ed. 1208, 51 L.R.A. (N.S.) 1157. And it follows that the Florida Hazardous Employment Act (Rev. Gen. Stats. Fla. Sec. 4971 et seq.) is not applicable to this case. Payne v. Jacksonville Forwarding Co. (C.C.A.) 290 F. 936; Wood v. Davis (C.C.A.) 290 F. 1. However, it appears that the action is predicated upon section 4960, Rev. Gen. Stats. Fla., which provides that:

'Whenever the death of any person in this state shall be caused by the wrongful act, negligence, carelessness or default of any individual or individuals, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness, or default, of any agent of any corporation, acting in his capacity of agent of such corporation (or by the wrongful act, negligence, carelessness or default of any ship, vessel or boat or persons employed thereon), and the act, negligence, carelessness or default, is such as would, if the death had not ensued, have entitled the party injured thereby to maintain an action (or to proceed in rem against the said ship, vessel or boat, or in personam against the owners thereof, or those having control of her) and to recover damages in respect thereof, then and in every such case the person or persons who, or the corporation (or the ship, vessel or boat), which would have been liable in damages if death had not ensued, shall be liable to an action for damages (or if a ship, vessel or boat, to a libel in rem, and her owners or those responsible for her wrongful act, negligence, carelessness or default, to a libel in personam), notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.'

By demurrer the defendant insists that even under this statute the circuit court of Duval county and this court on its law side has no jurisdiction of this cause, for the reason it is a case of admiralty jurisdiction and is not cognizable at law. The demurrer is to be treated as a plea to the jurisdiction of this court at law, timely interposed.

It is a settled general rule that for the death of a laborer for wrongful act as a result of a maritime tort there is no remedy in admiralty jurisdiction independent of statutory law. Hughes on Admiralty, p. 228. Again, neither by the common law, nor by the general maritime law, nor by any law of Congress, except as otherwise provided by the congressional Acts of March 30, 1920, and of June 5, 1920 (Comp. St. Ann. Supp. 1923, Secs. 1251 1/2, 8337a), will an action lie for death by wrongful act; and no such action can be sustained under any such law in the courts of the United States, except as provided in the acts just referred to. Rundell v. LaCompagnie, etc., 100 F. 655, 659, 40 C.C.A. 625, citing Insurance Co. v. Brame, 95 U.S. 756, 24 L.Ed. 580 and other cases.

The case here does not come within the operation of the Act of June 5, 1920. It authorizes a suit at law before a jury at the election of the personal representative of the deceased for the death of a seaman, but cannot be made to cover the action here, for the reason the plaintiff's deceased husband was generally employed as a laborer, and not signed as a seaman on the ship's articles or engaged in navigation. Cassil v. United States E.F.C. et al. (C.C.A.) 289 F. 774. However, a state statute can create the right of action for death and give it in personam and in rem, to be enforced, in either case, in admiralty. So I think that here the Florida statute has provided a new right within the established jurisdiction of the admiralty court. The state statute, section 4960, supra, does not enlarge the jurisdiction of the admiralty court. The state cannot do that, for under the Constitution of the United States such power is vested in Congress.

Neither under the Act of June 5, 1920, can the plaintiff for the reasons stated above, nor under the original Judiciary Act (section 563. Rev. Stats.; Comp. St. Sec. 991 (3)), maintain this action at law; for the first-mentioned act covering maritime torts is limited to seamen, and the other refers only to remedies for the enforcement of the federal maritime law and does not create substantive rights or assent to their creation by the states. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 Sup.Ct. 438, 64 L.Ed. 834, 11 A.L.R. 1145. The state statute does not accomplish such a result. It does not extend the jurisdiction, but does no more than add to the variety of cases within the recognized jurisdiction of admiralty. Western Fuel Co. v. Garcia, 257 U.S. 233, 42 Sup.Ct. 89, 66 L.Ed. 210; Ex parte McNiel, 13 Wall. 236, 243, 20 L.Ed. 624.

It was held in Insurance Co. v. Brame, 95 U.S. 759, 24 L.Ed. 580, that by the common-law actions for injuries to the person abate by death and cannot be revived or maintained by the personal representative or the heir. We are also reminded that by the Act of Parliament of August 21, 1846 (9 & 10 Vict.), action in certain cases is given to the representative of the deceased, and that this principle in various forms and with various limitations, has been incorporated in the statutes of some of the states of the Union. So here, under this principle, the Florida statute authorizing rights of action by reason of wrongful death caused by negligence of another is to be considered. The statute is set out in the beginning of this opinion.

Analysis of the statute shows that the form and the provisions of the Florida statute authorizing action in such cases of negligence differs from the statutes of other states hereinafter reviewed; for the Florida statute expressly specifies that the nature of the action is to be by a libel in rem against the ship or by a libel in personam against the owners or those having control of her, where death is caused by the carelessness or negligence of the vessel or persons employed thereon, or by her owners or those responsible for the wrongful act.

So far as the act is concerned with maritime torts, it does not furnish alternative or cumulative remedies; that is to say, the remedy by action at law, or the remedy by libel, or by both. The enactment provides that, whenever the death shall be caused by the wrongful act of any individual or individuals or by the wrongful act, etc., of any corporation, or by the wrongful act, etc., of any agent of any corporation, then in every such case the person or persons who would have been liable for damages if death had not ensued shall be liable in action for damages; and it further provides that, whenever the death shall be caused by the wrongful act, etc., of any ship, vessel, or boat, or person employed thereon, then such ship, vessel, or boat shall be liable by a libel in rem, and her owners or those responsible for her wrongful act, negligence, etc., by a libel in personam. It seems plain that, when the death is caused by the negligence or wrongful act, nonmaritime, of an individual or individuals, or of a corporation, or any agent of a corporation, then the person or persons who, or the corporation which, would have been liable in damages if death had not ensued, shall be liable in action for damages. But if the death is caused by the negligence or wrongful act of any ship, vessel, or boat, or person employed thereon, the ship or vessel shall be liable in rem, and her owners or those responsible for her wrongful act, negligence, etc., to a libel in personam.

The form and nature of the action for the first above-mentioned class of cases is an action at law; and the form and nature of the proceeding in the last-mentioned class of cases is either a libel in rem against the ship or vessel or a libel in personam against the owners or those responsible for her wrongful act, negligence, etc. This intendment is made more manifest when it is observed from the statute that the rights of action for wrongful death by maritime tort, as well as the form of action-- libel in rem or in personam are each included in the parentheses in the statute-- while death caused by the class first...