279 F. 367 | 9th Cir. | 1922
The plaintiff in his complaint in the court below pleaded diversity of citizenship of the parties, and alleged that on April 16, 1919, he was employed by the defendant in the capacity of watchman on a vessel belonging to the defendant, “but not yet completed,” bearing the name of Cteo; that while he was making the rounds as watchman, in attempting to descend from the forward bridge deck to the forward main deck by means of steps which had
The plaintiff contends that the rule of those decisions has been modified by Puget Sound B. & D. Co. v. Industrial Ins. Com., 105 Wash. 272, 177 Pac. 788, the purport of which decision is said to be that persons who are not working upon the land are without the purview of the Compensation Act. We do not so understand the decision. The action in that case was brought by the Dredging Company against the Industrial Insurance Commission to enjoin the collection of premiums for the plaintiff’s workmen. It appears that the Dredging Company had three classes of employes — those who worked continuously on the dredge, those who worked wholly on the land, and those who worked partly upon the dredge and partly upon the land. The court held that for the first class the plaintiff should pay no' premiums, for the reason that the dredge was a vessel subject to admiralty jurisdiction. There was no intention to hold that there remains in the state 'of Washington a class of personal injuries to employes which comes neither within the Workmen’s Compensation Act nor within the jurisdiction of admiralty. To hold that a dredge is a vessel subject to admiralty jurisdiction is in accordance with the weight of authority. McMaster v. One Dredge (D. C.) 95 Fed. 832; Bowers Hydraulic D. Co. v. Federal Contracting Co. (D. C.) 148 Fed. 290, affirmed in 153
“But this is by no means saying that a tort or injury in no way connected with any vessel, or its owner, officers, or crew, although occurring in such a place or territory, is for that reason within the jurisdiction of the admiralty.”
“The jurisdiction of courts of admiralty, in matters of contract, depends upon the nature and character of the contract; but in torts it depends entirely on locality.”
Said the court in The Plymouth, 3 Wall. 20, 36, 18 L. Ed. 125:
“Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.”
What was there said was repeated in Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 60, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. In The Hokkai Maru, 260 Fed. 569, 171 C. C. A. 353, this court held a ship liable for injury to a watchman employed by its agent who, while attempting to board the vessel from a pier by means of a Jacob’s ladder, by direction of an officer, fell and was injured by reason of the moving of the vessel and the negligence of the crew. In Consolidation Coastwise Co. v. Conley, 250 Fed. 679, 163 C. C. A. 25, the court held that a stevedore who was not an employe of a barge, but was employed by an independent contractor engaged to discharge the cargo of the barge, must he deemed to have gone upon the barge at the invitation of the owner, and that the owner was liable for the injury which he sustained in attempting to cross a hatch cover thereon. In Rohde v. Grant Smith Porter Co. (D. C.) 259 Fed. 304, it was held that the libelant might recover in personam against the owner for personal injuries sustained while he was doing carpentry work on a vessel which was lying in navigable waters.
In Anderson v. The E. B. Ward, Jr. (C. C.) 38 Fed. 44, a vessel was held liable for injuries to one who fell into an open hatchway. Objection was made to the jurisdiction on the ground that the cause of action was not maritime, that the libelant had no contract or connection with the vessel of any nature, and that the accident occurred in port. The court, following Feathers v. Blessing, held that, where a steamship was in the common berth at a wharf previously occupied by another, the latter being moored outside, with no means of communication with the wharf other than across the deck of the inner vessel, the latter’s negligence in permitting her deck to be in a condition unsafe for passage over it to the outside vessel, rendered an injury occurring therefrom a marine tort within the admiralty jurisdiction. In The Calista Hawes (D. C.) 14 Fed. 493, Judge Benedict held a vessel liable for injury to an assistant United States weigher, whose duty it was to keep tally of the vessel’s cargo while it was discharged, and who was injured' by the negligent act of those who were discharging the cargo. In The Rheola (C. C.) 19 Fed. 926, Judge Wallace held a vessel liable for injuries sustained through defective appliances by a stevedore employed by another, who had contracted to unload the vessel, although there was no privity of contract between the shipowners and the libelant.
In Tucker v. Alexandroff, 183 U. S. 424, 438, 22 Sup. Ct. 195, 201 (46 L. Ed. 264), Mr. Justice Brown, for the court, said:
“A slip is born when she is launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron — an ordinary piece of personal property — as distinctly a land structure as a house, and subject only to mechanics’ liens created by state law and enforceable in the state courts. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction. She acquires a personality of her own; becomes competent to contract, and is. individually liable for her obligations, upon which she may sue in the name of her owner, and be sued in her own name. * * * She is capable, too, of committing a-tort, and is responsible in damages therefor. * * * So sharply is the line drawn between a vessel upon the stocks and a vessel in the water that the former can never be made liable in admiralty, either in rem against horself, or in personam against her owners, upon contracts or for torts, while if, in. taking the water during the process of launching, she escapes from the coiltrol of those about her, shoots across the stream and injures another vessel, she is liable to a suit in rem for damages.”
Again, in The Raithmoor, 241 U. S. 166, 176, 36 Sup. Ct. 514, 516 (60 L. Ed. 937), the court said:
“It is to be remembered that as soon as a vessel is launched, although still incomplete, it is subject to the admiralty jurisdiction.”
In that case it was held that admiralty had jurisdiction over an in-completed structure in navigable waters, to be used when completed as a governmental aid to navigation, and that its location and purpose were controlling from the time it was begun. The defendant relies upon the recent decision of the Supreme Court in The Francis McDonald, 254 U. S. 242, 41 Sup. Ct. 65, 65 L. Ed. 245, where it was-held that a contract for the construction of a ship or for supplying materials for construction is nonmaritime, and that the fact that an unfinished ship had been launched before the libelant undertook a contract to complete it did not make the contract a maritime contract, citing a line of cases in which it had been held that contracts to furnish-materials, machinery, or work in the original construction of a ship are not maritime in their nature, and do not give rise to maritime liens. The court observed that Tucker v. Alexandroff must be read in the light of the particular matter under consideration — detention of a foreign seaman — and that in announcing the conclusion that, after a vessel was launched, she was a ship within the meaning of the treaty there under consideration, there was no intention to lay down any definite rule with relation to contracts for ship construction.
We do not think it was the intention of the court in the McDonald' Case to overrule what was said in Tucker v. Alexandroff or The Raithmoor. We think that in dealing with the question of maritime- torti
The judgment is.reversed, and the cause is remanded for further proceedings in accordance with the foregoing opinion.