THE :MARY GARRETT.
, 1(j.109
Arnson v. Murphy, 109 U. S. 238, 3 Sup. Ct. 184; U. S. v. Schlesinger, 120 U. S. 109, 7 Sup. Ct. 442; Porter v. Beard, 124 U. S. 429, 88up. Ct. 554. But, however this may be, this much is true: that, since the act of 1864, tM supreme court has assumed that an the requirements of a valid protest were contained in that act, and that a protest made within 10 days after liquidation is good. The question of the time of protest under the different statutes is carefully discussed in Davies v. Miller, 130 U. S. 284, 9 Sup. Ct. 560, and it is there assumed that the act of 1864 governs as to time. And so with the treasury department. It has by its regulations and the practice of its officers, since 1864 and down to the customs administrative act of 1890, recognized a protest made befQre the expiration of 10 days after liquidation as good and valid under the law to enable an importer to maintain an action against a collector for the recovery of duties illegally exacted. Since the decisions in Arnson v. Murphy and other cases holding that the act of 1864 did not repeal the act of 1845, I think, if the question under consideration had arisen after the passage of the act of 1864, and before the amendment of section 3011 under the act of 1877, it would have been difficult to have arrived at a satisfactory conclusion. This difficulty, however, would not have been caused by reason of the words "payment under protest," in the first part of section 3011, but because the statute apparently contained two kinds of protest,-one described in the act of 1845, now section 3011; and the other in the act of 1864, now section 2931. The amendment of section 3011 repealing the protest therein contained removed this inconsistency, and made the law clear and intelligible. For these reasons, I am of opinion that the protests now offered in evidence were made within the time required by law, and therefore should be admitted. THE MARY GARRETT. ANDERSON v. THE MARY GARRETT. (District Court, N. D. California. October 29, 1894.) No. 10,701.
1.
ADMIRALTy-JURISDICTION-INJURY ON WHARF.
Admiralty has no jurisdiction of an action for injury to a person on a wharf, caused by negligence originating on a ship; and it makes no difference that the person was employed as a seaman on the ship. The fact that libelant claims, as part of his damages for the tort, loss of his wages as seaman, does not aid the jurisdiction of
2.
SAME-WAGES.
Libel by Gust. Anderson against the steamboat Mary Garrett, her tackle, apparel, and furniture, for damages for personal- .injuries to a seaman employed on the vessel, sustained on a wharf by reason of the alleged negligence of the mate and owner of said vessel in unloading a portiQll of the cargo. Exceptions to the jurisdiction of the court. Exceptions sustained. v.63F.no.7-64
, '1.010
'woods '&; ,Leviiisky 'and , W.· G. 'Holmes, i l " , ; ':' "r
Hugaes, for··1ibelant. i
'" for claimant.
.l
MODROW, District Judge., The, action in this case is in rem agaA.nst::the steamboat Mary,iGanett, and is brought to recover damages,f()r personal by libelant while in the employn1.ent:of said ,vessel. The 'case is now before the court upon exceptions., by claimant to the amended libel filed October 8, 1894. Theexeeptions ate directedoo,;-tbe jurisdiction of the court, it being conten'ded that. it. is. sought, by the cause of action setout in the amended'libel, tG recover. damages for an injury sustained on a whar!;,:or, in other words, that tbe damage was inflicted on land, and nQ:b on water,and that, this court, as a court of admirality,has no jurisdiction. ' It appears. from the amended libel that:6n,June 9; 1893, the entered into the service of the claimant ,as a seaman on board of the. Mary Garrett, then lying in the PQrl:():ltSan.Francisco, and deliltined on a trip to the city of an port inihestate of California; that the vessel arrived on or abolItJune 10,,1893, at the port pf the qjtypf. Stockton. with libelant on board; that at said last-named time. tbe libelant was,itljured bY!Uld througb-. ;the ,negligence and carelesS'lless of the ,mate ,of Jtbe seS$tel:iJ;ldischarging a portion of the cargo of. said vesseL The, ;fifth artiQle of the amended libel .contains the averments it i3 claimed,are.fatarto the iu,risdiction of this court. It is:as{oUQws: . , , "Andth6'(lIaidUbelant furtbeJ: alleges that by reason of thl'lcarelessness and negligence of said libelee in receiving a portion of the cal'KO aforesaid, in l,l.u ul1safe for .1n 'that a portion of said cargo aforesaId, consisting of a large , amount .:ot: l!l1oot iroil,! was received by said libelee. for shipment, loosely placed, unbound, upon a wheeled vehicle, and carelessJY and negligently handled, by reason of the commanlis .O'f the said mate, in that said wheeled vehicle, on which said sheet iron lay loose and unbound, was, by the commands of said mate, caused to be wheeled down a steep descent along the gang plank from said vessel to ilie dock, .at the time anq place aforesaid, while said gang plall)t was In a steeply inclined position, and by reason oj' the carelessness and negligence' of said' libelee in not providing sUita.ble and safe and ,appliallces for:the prQper unloading ofjilaid portion of , said cargo, 'ind 'by l'eason of the clll'elessness and negligence' hf said libelee in not causing said portion of said to be put in a safe and suitable condition for being ha,pdled at'saHt titile and place aforesaid, said portion of the cargo of said vessel was: di8cl)/'l.rgell upon and feU upon libelant, and libelant received and 8uft:ered the injuries and dll.Diages hereinbefo,re set ,f9rtb,." .
It is ::asc> further averred in other articles that the injury was due, t.o tbe of claiml;tJ:1t, the California OOD),pany, in failing to provi<ie sui.table machinery and appliances for the unloading of the cargo, and also in thewh'arf, knowing that it was in an unsafe and dangeroUsicondition. ' While"tnela:ngttage .employed' .in the amended libel does not , clea'rlY,8:l1d in so many words, state that libelant received the inJaryonthe Wharf, yet the reasonable. interpretation of the language used in narrating the in which the injury was Bustained is
THE MARY GARRETT.
1011
hardly susceptible ofa different conclusion. In fact, it was conceded at the argument that libelant was injured on the wharf. That a wharf. is, figuratively speaking, regarded, in the admiralty, as land, and not as water, is well settled. It is deemed but an improvement or extension of the shore for commercial purposes. The Rock Island Bridge, 6 Wall. 213; The Ottawa, 1 Brown's Adm. 356, Fed. Cas. No. 10,616; The Empire State, 1 Newb. 54:1, Fed. Cas. No. 12,145; The Mary Stewart, 10 Fed, 137. The proposition is elementary in the admiralty law that the test of the jurisdiction of admiralty courts over torts is the locality of the injury. The question which is conclusive upon the jurisdiction of this court as a court of admiralty is, where was the injury sustained? On land or on. water? If upon the land, then the admiralty cannot take cognizance of the tort; if upon the "water," this term comprehending in this country the higb seas and the navigable waters, this court has exclusive original jurisdiction of an action in rem for damages. Henry, in his work on Admiralty Jurisdiction, etc., (page 68, § 26), thus states the general proposition: "This jurisdiction, as far as it concerns torts, depends entirely upon locality; but it must be committed on the water, and not on the land."
The authorities all affirm the same principle in unequivocal terms. 'fhe Plymouth, 3 Wall. 20; The Rock Island Bridge, 6 Wall. 213; The Neil Cochran, 1 Brown's Adm. 162, Fed. Cas. No. 10,087; The Ottawa, 1 Brown's Adm. 356, Fed. Cas. No. 10,616; The Mary Stewart, 10 Fed. 137; The Arkansas, 17 Fed. 383; The Professor Morse, 23 Fed. 803; The H. S. Pickands, 42 Fed. 239; The John C. Sweeney, 55 Fed. 540. '" Nor does it make any difference whether the tort had its inception, its origin, upon water, if the consequential effects of the wrong, the consummation of the tort, happened on land. It is immaterial, so far as the admiralty jurisdiction is concerned, that the tort originated on water, if the injury happened on land. This was decided in the case of The Plymouth, 3 Wall. 20. In that case the steam propeller Falcon anchored beside the wharf 01' Hough & Kershaw, in Chicago river, which was a navigable stream. There were large packing on the wharf, filled, at the time, with valuable stores. Owing to the negligence of those in charge of the Falcon, the vessel took fire; and the flames spreading to the whacl and packing houses, these were wholly consumed, with the stores therein contained. Mr. Justice Nelson, who delivered the opinion of the court, said: "It will be observed that the entire damage complained of by the libelants. as proceeding from the negligence of the master and crew, and for which the owners of the vessel are sought to be charged, occurred, not on the water, but on the land. The origin of the wrong was on the water, but the substance and consummation of the injury on land. It is admitted by 8rll the authorities that the jurisdiction of the admiralty over marine torts depends upon localitY,-the high seas, or other navigable waters within admiralty cognizance; anll, being so dependent upon locality, the jUrisdiction is limited to the sea or navigable waters, not extending beyond high-water mark. · * · Since the case of '.rhe Genesee Chief, 12 How. 443, waters may be substituted for tide waters. This view of tlle
1012'
J'EDEBAL REPOB'1'EB,
vol. 63.
over maritime torts has not been denied. But it bas been strongly argued that thl$ Is a miXed case, the tort, ,having been committed partly on water and iP8.l,'t;}y on land; and that, as origin of the wrong was on the water, -tn words, as the wrong pegan on the water,-where the admiralty possesses jurisdiction, It should draw after It all the consequences resulting from the' act."
"We can give, therefore, no particular weight or influence to the consideration tl,:Iat the injury in the present case originated from the negligence of the servap.ts of the respondents, on board. of a vessel, except as evidence that it originated on navigable Chicago river; and, as we have seen, the· simple fact that it originated there, but, the whole damage done upon land, the cause of action not: being cOJBplete on navigable waters, affords no grol1Pd .for the exercise of the admiralty jurisdiction. The negligence, of itself, furnishes no cause of action; it is damnum absque injuria. The case is not distinguishable from that of a 'person standing on a vessel, or on any other support in the river, andseoding a rocket or torpedo into the city, by means of which buildings were set on fire and destroyed. That would be a direct act of trespass, but quite as effi.cient a cause of damage as if the fire had p1-'Ocooded from negligence. Could the admiralty take jurisdiction? We suppose the strongest advocate for this jurisdiction would hardly contend for it. the origin of the trespass is upon navigable waters, which are within its cognizance. The answer is, as alread,y given: The whole, or at least the substantial cause of action, arising out of the wrong, must be complete within the locality upon which the jurisdiction the high seas or naylgable waters. The learned counsel, who argued this case for the appellants with great care and, research, admitted that It was one of first impression; that he could find' no case in the books like it. The reason is apparent, for It is outside the acknOWledged limit of admiralty cognizance over mo.rine torts, among it has sought to be classed."
upon tpe fact that it is the locality ()f the injury that determines whether,a C()urt of admiralty has or has not jurisdiction,.the learned justice proceeds:
The dpctrine enunciated by this case has not since been limited or otherlVise impaired; but, where the question has arisen, the doctrine has been unqualifiedly recognized as correct. The Neil Cochran, 1 Brown'S Adm. 162, Fed. Cas. No. 10,087, and cases cited above., It.is true that most of the cases cited against the jurisdiction of thiij' court as. a court of admiralty involved actions in rem against vessel's for collisions with the land; that is, with wharves, piers, and, in one case, with a marine railway. The Neil Cochran was a Cl;tse where a libel was tiled against the schooner Neil Cochran for collision with a drawbridge. Held not a maritime tort. In The ottawa, 1 Brown's Adm. 356, Fed. Cas. No. 10,616, a libel in rem was tiled llgainst the Ottawa for collision with a wharf. Held not a maritime tort. In The Arkansas, 17 Fed. 383, that vessel was libeled for an injury to a tank containing a large quantity of oil, by being flOated and propelled against it. The tank was part of a depot £01' the. reception an<l storage of oil upon the levee in the city of Keokuk, near the Mississippi river; but, by reason of an unusual of the river, the water extended to and around. the said property, and the vessel, while being navigated, collided withit. It was held that an action in rem could n.ot be maintained,said depot being a structure upon land, although the water or agent by which the vessel was floated upon this hind' sti'ticture. In The Professor Morse, 23 Fed. 803, a libel in rem
1013
was brought for an injury to a marine railway. Held not a maritime tort, the marine railway not being a floating structure. In The John C. Sweeney, 55 Fed. 540, a libel was filed against the vessel for colliding with a drawbridge. Held not a maritime tort. In the Rock Island Bridge Case, 6 Wall. 213, a maritime lien was claimed and sought to be enforced against a portion of the bridge known by the above name for alleged damages sustained by two steamboats in colliding with that part of the bridge. But the supreme court held (Mr. Justice Field delivering the opinion) that the bridge was, to all intents and purposes, part of the land, and that a maritime lien could not be impressed thereon. Although the facts of these cases cannot be said to be analogous to the case at bar, in that the injuries were done to the land, or what has been held to be tantamount to land, viz. wharves, piers, bridges, etc., while in the case at bar the injury was inflicted on land, though the cause of the injury arose on or proceeded from the vessel, nevertheless the principle invoked in all these cases, and repeatedly enunciated by the decisions, is common to the case at bar, viz. that it is the locality of the injury, not of the wrong, strictly speaking, which is the test of the jurisdictionof admiralty over torts; and it would seem, logically, that, if courts of admiralty have no jurisdiction over injuries by vessels .to land, a fortiori they ought not to have jurisdiction over torts resulting in damage on land. In two cases the facts are quite analogous to those in the case at bar. In The Mary Stewart, 10 Fed. 137, it appeared that an injury was sustained by a man while he was standing on a wharf. He was injured by a bale of cotton which was being hoisted aboard the vessel loading at the wharf, but which fell before it reached the ship's rail, and struck him. It appeared that the rope which broke was part of the ship's tackle. The district judge (Judge Hughes, of the eastern district of Virginia) held that the admiralty had no jurisdiction over such a tort, nor could state statutes give it such jurisdiction. The learned judge said: "It is clear that the cause of action set out in the libel is without the jurisdiction of the admiralty. In cases of tort the locality alone determines the admiralty jurisdiction. Only those torts are maritime which happen on navigable waters. If the injury complained of happened on land, it is not cognizable in the admiralty, even though it may have originated 011 the water. The Plymouth, 3 Wall. 20. This springs from the well-known principle that there are two essential ingredients to a cause of action, viz. a wrong, and damage resulting from that wrong. Both must concur. To constitute a maritime cause of action, therefore, not only the wrong must originate on water, but the damage-the other necessary ingredient-must also happen on water. Now, the injury in the case at bar happened on the land. Wharves and bridges are but improvements or extensions of the shore. They are fixed and immovable, and are a mpre continuation and part of the real estate to which they are attached. And this is the case, whether they project over the water or not. Injuries to or on them. therefore, are not cognizable in the admiralty."
The other case is The H. S. Pickands, 42 Fed. 239, decided by Judge Brow1'I., of the eastern district of· Michigan. In that case the libelant was engaged in repairing a vessel which lay at a wharf, and attempted to a ladder connecting the wbarf with the bulwark of the vessel. The \adder had been secured against slipping
1014.
FEDERAD REPORTER,
voL· 63.
by a cleat at the :bottom, which, ,.by:the negligent act of the ma:ster; had' been removed. fu descending the ladder, it slipped, and libel·'
thrown upl1ln the wharf, and injured. The learned ,judge used.the following language: '
in my opinion that a court of admiralty haS no jui'isdiction of thi$ CRse.i:iIthas never been doubted"since the case of The Plymouth, 3 us to take of'a maritime tort, the iJ;1jury must consummated, an(l damage received. upon the water. 'I'he that the wrongful act. was doneuIJQn the ship is Insufficient. Subsequentatljudicatlons have in no wise tehded to limit or qualify thig rule." ,
OnatlPeaJ to the circuit couI1 the case was affirmed by Mr. Justice Brewer;!'.' . '. The fac,t that in, the present case the 'libelant was a seaman, employed6Il,th,e Mary Garrett, clUl, it Seemsto me, make no difference in the ap:1;>!ication of the principle illvolved, because the test of the court as a court of admiralty is not whether the or was not a seaJ;lifln employed on a particular vessel the cause 9finjufY is alleged to have emanated, but and the only one, is as: to the locality of the damage or injury; . however, thl}t particular case the court has jUrisa:ictionover the tort,. for the ,reason that :the libelant is not for but, f?r of is.to connectIOn thaf tile action IS brought prImarIly be for suffered from the injury set out in the, amendthe claim. for is made not as ed growlD,gobt' of the eXIstmg between the but damages alleged to have resulted ,ftoulthe personal The libelant is tlierefore, in myopiIiion, in no better 'It follows that theexlleptions to the ''ttrisdiction of this court· shdrtld .be sustained, and the libel dismissed' .' , I
THE MEl)EA. THE IDLEWILD. WILLIAMS v. THE'MEDEA et al HANDRAN v.SAME. '
,(t>ist1"lct Oourt, S. D. New ,York. October 22, 1894.) SHIPPJNG-PJ;#/f AND TOWc-CQLLISION""':PIIP!:l.S AND SLIPS-OBSTRUCTION-USAGE.
,
,The tug,M., no()nof July, ;Lst, ijed up, a fleet of canal boats, of several.4ers of three. ql,'" f0l,lr boats in a tier, at the end of the Line pier,. in the el;lb tide, for the purposes of to their v.arl!>us destinat,ions, in accordance with the usage of many years; and no city .ordinance forbade this practice. That pier is about 108 feet longer than the piers below it. ,T4eil1lLY was lJ,lit"/s,nd tb,e westerl1 wind set the end of the tow still .fllIiher away ,tllepiers below." ,Tbes1;eamtug IdlewlluB,OQp afterwards, in' remoyillg ,another vessel frow the end of one of the, piers 'below the Red Starpier,collided with and damaged two boats in the end tOw. ' Held, that thus tying up at. We pier above under cil'cUInstanCe8 ,'" ' .,