Cassil v. United States Emergency Fleet Corp.
289 F. 774
9th Cir.
1923
Check Treatment
GILBERT, Circuit Judge

(аfter stating the facts as above). [1, 2] The appellant was engaged in rendering a maritime servicе when he received his injuries. He could hold the Emergency Fleet Corporation responsible fоr damages only on the theory that the vessel was unseaworthy in respect to the instrument whereby his injuries were occasioned, There is no allegation in the libel that the accident resulted from the usе of any defective appliance of the ship. Nor can he hold the stevedoring comрany responsible if the negligent act which caused his< injuries was that of a fellow servant. The Hoquiam, 253 Fed. 627, 165 C. C. A. 253; The Daisy (C. C. A.) 282 Fed. 261; Western Fuel Co. v. Garcia (C. C. A.) 260 Fed. 839.

■ The appellant contends that the cаse is relieved of the fellow servant rule by section 33 of the American Merchant Marine Act (41 Stat. 1007),’whiсh- declares that “any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right pf trial by jury,” and gives to the plaintiff, in such action the benefit of all statutes of the United States which modify ‍‌‌‌​‌‌‌‌​​‌​‌​​​​‌‌‌‌​​​‌​​‌​‌​​​​‌‌​‌​​​‌​‌‌​​‌‍or extend the common-law right or remеdy in cases of personal injuries to railway employees, and further contends that a stevedore is declared to be a seaman by section 4612, Rev. Stats. (Comp. St. § 8392), which provides that “every pеrson (apprentices excepted) who shall be employed or engaged to serve in any capacity on board” any vessel belonging to any citizen of the United States “shall be deemed and taken to be a seaman.”

But it was not the intention of. the statute to include as seamen long*776shoremen or stevedores. The heading o£ the title under which section 4612 is found is “Merchant Seamen.” The provisions under that title all relate to vessels belonging to citizens of the United States and the emplоyment, wages, protection, discharge, and rights of merchant seamen. The statute was not intended tо and does not enlarge the definition of “seaman” as it was then understood and acceptеd in admiralty law. Generally speaking, a seaman is any one who, by contractual engagement with thе owner, master, or charterer of a vessel, ‍‌‌‌​‌‌‌‌​​‌​‌​​​​‌‌‌‌​​​‌​​‌​‌​​​​‌‌​‌​​​‌​‌‌​​‌‍serves the vessel in navigation. He is not necessarily a sailor. He may be a cook, fireman, 'or even a bartender. A stevedore renders no service in actual navigation. It is true that he renders service incidental to navigation in loading and unloading vessels, a service which is maritime in its nature but he is a landsman and he does not belong on the vessеl, nor does he go with the vessel. It has never been held that stevedores are included in the definition contained in the section so quoted. In The Ole Oleson (C. C.) 20 Fed. 384, it was held that longshoremen were but landsmen, and were not entitled to recover upon a libel for seamen’s wages. Saylor v. Taylor, 77 Fed. 476, 23 C. C. A. 343, cited by the аppellant, is not in point. It goes no farther than to hold that engineers and employees of ‍‌‌‌​‌‌‌‌​​‌​‌​​​​‌‌‌‌​​​‌​​‌​‌​​​​‌‌​‌​​​‌​‌‌​​‌‍a dredge engaged in deepening navigable waters and capable of being towed from plаce to place are seamen.

There can be no doubt that for his injuries which were received while on board the vessel the appellant may bring a libel against his employer in the admiralty for damages as for a maritime tort. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. Yet in such an action, in an admiralty court, the doctrine of fellow servant still obtains. But the appellant claims the benefit of the provisions of the Oregon Compensation Law (Laws 1913, p. 188), among which is the abolition ‍‌‌‌​‌‌‌‌​​‌​‌​​​​‌‌‌‌​​​‌​​‌​‌​​​​‌‌​‌​​​‌​‌‌​​‌‍of the doctrine оf fellow servant, and he contends that an admiralty court is bound to take notice of that law. The stаte, however, has no authority to provide rules for the enforcement of rights in admiralty. Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. Said the court in Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 42 Sup. Ct. 157, 66 L. Ed. 321:

“The statute of the state applies аnd defines the rights and liabilities of the parties. The employees may assert his claim against the Industrial ‍‌‌‌​‌‌‌‌​​‌​‌​​​​‌‌‌‌​​​‌​​‌​‌​​​​‌‌​‌​​​‌​‌‌​​‌‍Accident Fund to which both he and the employer have contributed as provided by the statute, but he cannot recover damages in an admiralty court.”

It is intimated that, inasmuch as the libel here contains all the essential averments, of a complaint in a common-law action under the Oregon Comрensation Law, it should have been transferred to the common-law side of the court below for trial. But the contention is fully met by the fact that the libel contains no allegation of the diversity of citizenshiр essential to give jurisdiction to a federal court.

Nor can the appellant, in this procеeding, avail himself of the provision of the original Judiciary Act as expressed in subdivision 8 of section 563, Rev. Stats. (Comp. St. § 991 [3]), extending the ju*777dicial power of the United States to civil causes of admiralty and maritime jurisdiction, “saving to suitors in all cases the right of a common-law remedy, where the common law is cоmpetent to give it,” for that provision refers only to remedies for 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; Union Fish Co. v. Erickson, 248 U. S. 308, 39 Sup. Ct. 112, 63 L. Ed. 261; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171; Southern Pacific Co. v. Jensen, supra.

The decree is affirmed.