190 F. 229 | D. Maryland | 1911
This is a libel to recover for personal injuries. The libelant is a stevedore. lie was injured in the lower hold of the Pretoria. It belonged to the respondent the Hamburg-American Steam Packet Company. The Pretoria, its master, and its owner will all be called the ship. The libelant was working under hatch No. 4. This hatch was when fully uncovered about 30 feet long and 16 wide. The covers were in three sections — the fore, the middle, and the after. The covers had been taken off the middle section. They had been left on the other two. The coverings of the middle section had been piled on top of the fore and after sections. The division of the hatch into sections is made by two movable iron crossbeams, placed athwart the ship. From each crossbeam to the other and from each to the hatch combing opposite ran timbers. They are placed lengthwise of the ship. They are called the fore and afters. On these the hatch covers rest. The libelant and his companions were in the employ of the respondent the Atlantic Transport Company. It will be called the stevedore. The gang were loading and stowing copper.' On the dock the copper was piled on a heavy, flat, rope mat. The mat had a bridle on each of two sides. One end of each of these bridles was made fast to a corner of the mat. The bridle passes through a U-shaped iron shackle. These two shackles are placed over a hook at the end of the fall attached to the boom. The mat and contents are lifted by the winch, swung over the hatch and lowered into the hold. The mat is unhooked. The copper is taken out. The shackles are again placed in the hook. The winch-man is signaled. The mat is hauled up. On one of its trips up the mat caught under the after crossbeam. The latter was instantly jerked out of its supports. It, the fore and afters resting on it, and the hatch covers supported by them, together with such of the coverings of the middle section of the hatch as had been piled on the after section, fell into the hold. The wood and iron which came down weighed nearly two tons. The libelant was struck. His skull was broken.
There would have been no accident had the entire hatch been uncovered. To uncover a hatch takes time and labor. If bad weather comes, it must be covered. Unnecessary uncovering is to be avoided. It is easy to make a partially covered hatch absolutely safe. The
Accidents often happen because an opened hatch has been left unguarded, or because the hatch coverings fall into the hold. When they do, there is usually a dispute as to whether the ship or the stevedore is to blame. In' the case at bar the ship and the stevedore were represented by the same proctors and by the same advocates. The stevedore acquits the ship. The libelant and his mates are foreigners. Most of them speak little or no English. He -offered no testimony as to the division of responsibility between ship and stevedore. The stevedore proved that, when the ship came into port, it took complete charge of the hatches. It uncovered so much of them as it saw fit. If the pins were in and it wanted them out, it took them out. It laid them on the deck. The ship’s carpenter gathered them up. If the pins were out and it wanted them in, it told the ship’s carpenter. He put them in.
At the close of the testimony the libel as against the captain and the owner of the ship was necessarily dismissed. The court of its own motion, called the attention of the advocates of the respective parties •to Campbell v. Hackfeld, 125 Fed. 696, 62 C. C. A. 274. In that case •the Circuit Court of' Appeals for the Ninth Circuit held that admiralty had no jurisdiction to award damages to the employe of a stevedore for injuries received in consequence of the negligence of his employer. It made no difference that the tort was committed on navigable waters. In the case before me one of libelant’s fellow workmen had been killed in the same accident. A libel to recover for his widow and children compensation for his death was b)^ agreement tried with this. When the testimony closed the jurisdiction of this court was still unchallenged. It might have been assailed in the Appellate Court or denied by that court of its own motion. It would then be too late to sue at law. It seemed to be the duty of the court to bring the question of jurisdiction to the notice of the advocates of the libelants. They decided to stand by their libels. The advocates for the stevedore asked leave to amend its answer. Leave was granted. The amendment disputes the jurisdiction of the court.
As the case stands on the pleadings- and proofs, the libelant must show (1) that he was injured by the negligence of the respondent; (2) that the court of admiralty has jurisdiction;, (3) that his injuries did not result from the negligence of his fellow servants.
Neither of the two last-named defenses would have been open to the ship, if the testimony had shown that it, and not the stevedore, had charge of uncovering the hatches or of making secure the coverings left in place.
■ The question of jurisdiction must first be considered. Campbell v. Hackfeld was decided in October, 1903. More than four years earlier the same question was raised in this court in the case of Dombroska v, Westoll. At least one thorough and learned brief was submitted
In The BIackheath, 195 U. S. 368, 25 Sup. Ct. 46, 49 L. Ed. 236, Tustice Brown, in concurring with the conclusion of the majority of the court, said he understood that The Plymouth was overruled in so far as it decided that the admiralty had no jurisdiction over injuries done by ships to structures on shore. He assumed that in future the English statutory rule that the admiralty had jurisdiction of any claims for damages by any ship would prevail. If he had been right, it would not have followed that the admiralty would not still have had jurisdiction over all torts committed upon navigable water, irrespective of the relation borne by the wrongdoer to a ship. It would., however, have given an opportunity to argue that, as the rule as to locality had not been held always binding, another would have to be found. Such rule might then have been sought in the nature of the tort and the relation w’hich it bore to the ship and its navigation. It turned out that the Supreme Court had not taken the step which Justice Brown supposed it had. In Cleveland Terminal v. Steamship Co., 208 U. S. 317, 28 Sup. Ct. 414, 52 L. Ed. 508, the court expressly decided that it would follow The Plymouth.
The admiralty, therefore, has no cognizance of any tort, however maritime its nature, unless it becomes effective on navigable water., The jurisdiction over torts depends on locality, and not on the nature or origin of the wrong done. That the language of the Supreme Court in The Plymouth literally understood was broad enough to cover the tort in controversy in the case of Campbell v. Hackfeld was admitted. The Circuit Court of Appeals, however, said that it could not be so understood because, if it was, it would lead much farther than the Supreme Court could possibly have intended to go. It said “we think it would surprise the Supreme Court to be told” that admiralty had cognizance of the tort committed when Eaura D. Fair on board the ferry steamer El Capitan on a voyage from Oakland to vSan Francisco shot A. P. Crittenden. There is much reason to sup
In United States v. Rodgers, 150 U. S. 255, 14 Sup. Ct. 109, 37 L. Ed. 1071, the prisoner was charged with doing precisely what Laura Fair did; that is, make an assault with a deadly weapon. The only difference was that she shot Crittenden on waters within the jurisdiction of the state of California. Rodgers made his assault upon that part of the Detroit river which is within the jurisdiction of the Dominion of Canada, and therefore without that of any state of the Union. The Detroit river was admittedly not a part of the high seas in any sense of those words. Congress could not legislate as to it under its power to punish felonies on the high seas. No statute made an assault with a deadly weapon punishable when committed on the Detroit river unless it was a river connected with the high seas. The question before the court was whether the Great Lakes were high seas. If they were, Congress had exercised so much-of the power resulting from the admiralty clause of the Constitution as was necessary to punish the offense. Otherwise not. The court held that the Great Lakes were high seas. Justices Gray and Brown dissented. They did not question the power of Congress to punish crimes committed on navigable waters. They said Congress had not done so. Justice Brown declared: “I have no doubt whatever of the power of Congress to extend its jurisdiction to crimes committed upon navigable waters.” After the case had been tried below and before it was heard above, Congress provided for the punishment of various crimes when committed upon any vessel registered, licensed,
“It may, however, be doubted whether the civil jurisdiction in such cases of torts does not depend upon the relation of the parties to a ship or vessel, embracing only those tortious violations of maritime right and duty which occur in vessels, to which the admiralty jurisdiction, in cases of contracts, applies. If one of several landsmen bathing in the sea should assault or imprison or rob another, it has not been held here that the admiralty would have jurisdiction of the action for the tort.” Benedict’s Admiralty (3d Ed.) § 308.
The point is not further argued. The rule by which the civil jurisdiction may be confined in narrower limits than that over which the criminal jurisdiction extends is not stated. The case supposed of one landsman robbing another while bathing is an extreme one. It is not likely that courts of admiralty will ever be troubled with many suits to recover damages for such injuries. Plaintiffs are more likely to seek smart money from a jury. If a c'ase of that nature once in a while found its way into a court of admiralty, no great harm would be done. Unnecessarily to introduce into simple and easily understood rules of jurisdiction exceptions which in their nature are hard to ■ctefine accurately is always costly. Mistakes as to whether jurisdiction does or does not exist inevitably cause denials of justice. ■■Such a case as that which Benedict gives as an illustration of a tort not .cognizable in the admiralty has no connection whatever with a ship, not even that of locality. It may perhaps be that a tort com
If the custom of the port had required the ship’s carpenter to put in the pins of his own motion, there would be no doubt that the libel-ant could have redress in the admiralty. It would be hard to explain to any layman why he could not merely because the ship’s carpenter was not expected to put in the pins until the boss stevedore told him to do so. There are arbitrary distinctions in all departments of the law. There always will be. There are some in the admiralty. There is no reason to add unnecessarily to their number. The contract of the stevedore with the ship is unquestionably maritime. Norwegian S. S. Co. v. Washington (Fifth Circuit) 57 Fed. 224, 6 C. C. A. 313; The Maine (Fifth Circuit) 51 Fed. 954, 2 C. C. A. 569; The John Shay (D. C.) 81 Fed. 216. If the Supreme Court and many other American courts and text-writers have been in error in saying that admiralty has jurisdiction over torts of whatever nature when committed on navigable waters, as the Circuit Court of Appeals for the Ninth Circuit thinks, it does not follow that admiralty has not jurisdiction over the case at bar.
The particular tort here complained of is maritime within any but the narrowest definition of that term. It appears to be true,- as the Circuit Court of Appeals for the Ninth Circuit points out, that there are no cases in the books of recoveries or attempted recoveries in admiralty by working stevedores against boss stevedores for injuries suffered in tire course of their work on shipboard in consequence of the negligence of their employers. The circumstance is not without its weight. It must be borne in mind, however, that, when the boss stevedore was pecuniarily worth suing, he could be conveniently, sued in the state courts. Most lawyers who make a specialty of personal injury cases prefer to try them before, juries. There may be. a number of cases in the District Courts, as there has been at least one in Maryland, in which the jurisdiction seemed to the judge so:clear as not.to justify an opinion. The Circuit Court of Appeals, for the Ninth Circuit relies largely on the opinion of Lord Esher in Reg. v. Judge of the City of London Court, L. R. I. Q. B. Div. 1892, 273. It is an able and learned ■ deliverance. The statute and precedents of the English admiralty with which he was concerned,, are. markedly different from the accepted doctrines of our courts of admiralty. Much which he says is admittedly irrelevant here... Lie points out that American decisions on questions of the jurisdiction of admiralty are largely inapplicable. there. What he decided was