289 F. 774 | 9th Cir. | 1923
(after stating the facts as above). [1, 2] The appellant was engaged in rendering a maritime service when he received his injuries. He could hold the Emergency Fleet Corporation responsible for 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 use of any defective appliance of the ship. Nor can he hold the stevedoring company 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 case is relieved of the fellow servant rule by section 33 of the American Merchant Marine Act (41 Stat. 1007),’which- 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 remedy 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 person (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
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 of fellow servant, and he contends that an admiralty court is bound to take notice of that law. The state, 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 and 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 Compensation 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 citizenship essential to give jurisdiction to a federal court.
Nor can the appellant, in this proceeding, 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
The decree is affirmed.