163 P. 199 | Cal. | 1917
The respondent, the Industrial Accident Commission of the state of California, assumed jurisdiction and made its award in the case of a seaman in the employ of the petitioner, who was injured while his vessel, owned by citizens of this state, was upon the high seas. Application for a writ of review was granted by this court. This application was based upon the contentions that the United States district courts, under their admiralty and maritime jurisdiction, were alone empowered to deal with the question, and that the Industrial Compensation Act of California, [Stats. 1913, p. 279], in so far as it was sought to apply it to seamen, was an unconstitutional usurpation of that jurisdiction. This statement of the controversy demonstrates that the question is one peculiarly of federal cognizance and that the final arbiter in resolving and answering it is the supreme court of the United States. For this reason, and being advised that the identical question wassub judice in that tribunal, the decision of this case was postponed to await and to follow the decision of that court. Its decision, however, has been so long delayed, that we have deemed it inexpedient longer to postpone our own decision, though it is with reluctance that we take up the consideration thus in advance of its final disposition by the one court whose interpretation will be all-controlling. So to the end that if we do err the flaws in our reasoning may readily be detected, we have thought it best to endure the just accusation of prolixity in here setting forth our views at some length. *348
The constitution of the United States (art. III, sec. 2, par. 1) declares that the judicial power of the United States shall extend "to all cases of admiralty and maritime jurisdiction." The controversy which had arisen in England in the not unsuccessful efforts of the common-law courts to throttle the courts of admiralty was familiar to the framers of that constitution. Equally familiar to the jurist is the construction put by the courts of the United States upon this language. Thus in the leading case of De Lovio v. Boit et al., 7 Fed. Cas. 417, No. 3776, [2 Gall. 398], Judge Story, going over the whole question of admiralty jurisdiction, concludes his review by declaring that he was "without the slightest hesitation ready to pronounce that the delegation of cognizance of 'all civil cases of admiralty and maritime jurisdiction' to the courts of the United States comprehends all maritime contracts, torts, and injuries." As admiralty and maritime jurisdiction then has to do with all things touching mariners and their ships while seafaring, there can be no hesitation in saying that the injury of this seaman upon the high seas presents a case within the cognizance of admiralty. (InsuranceCo. v. Dunham, 11 Wall. (U.S.) 1, [20 L.Ed. 90]; Benedict on Admiralty, sec. 182 et seq.) Whether or not admiralty would or could decree an award for this injury, not founded upon tort, presents an entirely different question.
Moreover, it is so well settled as scarcely to need the citation of authority, that this jurisdiction is exclusive in the federal courts. (The Hine v. Trevor, 4 Wall. (U.S.) 555, [18 L.Ed. 451]; The Eagle, 75 U.S. (8 Wall.) 15, [19 L.Ed. 365]; U.S. Rev. Stats., sec. 563, subd. 8.)
The next fact to be noted is that the jurisdiction of the federal courts in admiralty rests upon the constitution, and that such jurisdiction is not dependent upon and cannot be enlarged or abridged by Congress. (Watts v. Camors,
All of this arises under the language of the judiciary act of Congress of 1789, by which act the granting of admiralty jurisdiction to the district court was accompanied by a "saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it." But as the states have thus surrendered all of their admiralty jurisdiction, as the exclusive jurisdiction of all of these questions and cases is still in the federal courts (The Hine v. Trevor, 4 Wall. (U.S.) 555, [18 L.Ed. 451]; Town of Pelham v. The B.F. Woolsey, 3 Fed. 457), and as only such remedies as are or may be afforded by the common law are made available to suitors, it would appear that a state could neither *350
create a new right in admiralty nor enforce any remedy which it may have provided for that right until recognition in admiralty and by admiralty of the existence of that right; or, in other words, until its adoption by admiralty as a part of its substantive law. But to the contrary it seems that such reasoning is wholly fallacious. Thus, where the state statute gave a right of action for recovery for damages for the death of a sailor occasioned by tort while on the high seas, it is held that a recovery may be had under this statute both in the state courts and in the federal courts, and this notwithstanding the fact that such a case is one of "admiralty and maritime jurisdiction," and that admiralty, in this respect running current with the common law, gave no right of action for such a death. (Steamboat Co. v. Chace, 16 Wall. 522, [21 L.Ed. 369]; Sherlock v. Alling,
In International Nav. Co. v. Lindstrom, 123 Fed. 475, [60 C. C. A. 640], it is said by the circuit court of appeals of the second district: "The territorial sovereignty of a state extends to a vessel of the state when it is upon the high seas, the vessel being deemed a part of the territory of the state to which it belongs; and it follows that a state statute which creates a liability or authorizes a recovery for the consequences of a tortious act operates as efficiently upon a vessel of the state when the vessel is beyond its boundaries as it does when it is physically within the state." The reasoning of the circuit court of appeals was that as a matter of comity the court in admiralty would take cognizance of, and give effect to, a right created by a state. And this extremely elastic power of the courts of admiralty so to do is further emphasized in The Hamilton,
If we are successful in following this reasoning, it means that while state legislatures cannot in terms enlarge the jurisdiction of admiralty, they may pass laws creating new rights over matters within the jurisdiction of admiralty, and may enforce those rights in the state courts, upon the theory that Congress has been remiss in its failure to pass similar enactments covering the same subject matter. And furthermore, since these state statutes are thus valid, it is within the power, and seemingly it is the duty, of admiralty to enlarge its own jurisdiction by acquiescing in and taking cognizance of the rights and remedies thus created by the state legislatures. At the foundation of this reasoning there would appear to lie the premise that if a state legislates in advance of Congress, it is to be concluded that Congress, through inadvertence or negligence, has failed to pass like legislation, and therefore what might otherwise appear to be the reasonable assumption, viz., that Congress, after consideration, had declined or refused to legislate under the *352
conviction that existing laws were adequate, is, of course, denied a consideration. And finally, it is to be noted that the earlier utterances of the supreme court, declaring that one of the potent reasons why exclusive jurisdiction and control of all these questions was vested in admiralty, was to preserve symmetry and uniformity in its jurisprudence, as pointed out in the Chusan case, supra, and with great vigor and clearness by Mr. Justice White in Workman v. Mayor of New York etc.,
With this law and reasoning before us we may make our more or less successful endeavor to strike at the heart of the matter before us. Our Workmen's Compensation Act is an economic and sociological development in legislation. It creates a right of compensation to the workman without regard to the question whether his injury was occasioned by tort. This law we have declared to be valid. (Western Indemnity Co. v. Pillsbury,
Of course, at the time of the adoption of our constitution and of the passage of the judiciary act, the common law knew no right of action for a death, even when it was occasioned by tort, and of course it knew of no action for injury or death not occasioned by tort, and had no remedy for either. Neither did admiralty. Furthermore, except in the broadest sense, acts of parliament form no part of the common law, and very frequently are in derogation of it. Nevertheless the language of the judiciary act is not limited to the remedies at common law then existing, and did and does include rights and remedies which might subsequently be created by statute. In Knapp, Stout Co. v. McCaffrey,
"The real question is whether the proceeding taken is within the exception 'of saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it.' It was certainly not a common-law action, but a suit in equity. But it will be noticed that the reservation is not of an action at common law, but of a common-law remedy; and a remedy does not necessarily imply an action. A remedy is defined by Bouvier as 'the means employed to enforce a right, or redress an injury.' While, as stated by him, remedies for nonfulfillment of contracts are generally by action, they are by no means universally so. Thus, a landlord has at common law a remedy by distress for his rent — a right also given to him for the purpose of exacting compensation for damages resulting from the trespass of cattle. *354 A bailee of property has a remedy for work done upon such property, or for expenses incurred in keeping it, by detention of possession. An innkeeper has a similar remedy upon the goods of his guests to the amount of his charges for their entertainment; and a carrier has a like lien upon the thing carried. There is also a common-law remedy for nuisances by abatement; a right upon the part of the person assaulted to resist the assailant, even to his death; a right of recaption of goods stolen or unlawfully taken, and a public right against disturbers of the peace by compelling them to give sureties for their good behavior. All these remedies are independent of an action."
"Some of the cases already cited recognize the distinction between a common-law action and a common-law remedy. Thus, inThe Moses Taylor, 4 Wall. 411, 431, [18 L.Ed. 397], it is said of the saving clause of the judiciary act: 'It is not a remedy in the common-law courts which is saved, but a common-law remedy.' To the same effect is Moran v. Sturges,
Without further quotation, reference may be made toColorado Mid. Ry. Co. v. Jones, 29 Fed. 193, which case is quoted with approval by the United States supreme court inSearl v. School Dist. No. 2, 124 U.S., at page 200, [31 L.Ed. 415, 8 Sup. Ct. Rep. 460]. The substance of these decisions seems to be that a common-law remedy as employed in the judiciary act means any remedy, with or without action or jury, which is a substitute for a suit at law, whereby a liability is imposed after due process of law. In brief, the decisions of the supreme court of the United States leave no room for doubt but that touching torts committed on the high seas a state may create on behalf of the injured person, his heirs or representatives, new rights and new remedies, and provide for the maintenance of those rights and the enforcement of those remedies in her own courts, without the slightest regard to admiralty, under the construction which has been put upon the saving clause of the judiciary act, aided by the further reasoning and conclusion that the exclusive jurisdiction of admiralty has reference only (so far as concerns this question) to a direct libel in rem against the vessel itself. And where the suitor does not seek this particular form of relief, but prosecutes his action in personam, he may have resort to *355
the courts of the state, without the slightest regard to the jurisdiction of admiralty. (Aurora Shipping Co. v. Boyce, 191 Fed. 966, [112 C. C. A. 372]; The Osceola,
In conclusion, a word should be said of the decisions of two of the courts of last resort of two maritime states which have treated of this question as bearing on their acts for the compensation of workmen. In the Matter of Walker v. Clyde S. S.Co.,
We have not overlooked petitioner's argument based upon its construction of the decision of the United States supreme court in The Osceola,
The writ is discharged and the award appealed from is affirmed.
Lorigan, J., Shaw, J., Sloss, J., Melvin, J., Lawlor, J., and Angellotti, C. J., concurred.
Rehearing denied.