Appellees Briefo — London Co. v. Industrial Comm'n

Supreme Court brief1929

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Text

I. Reference to the Opinion of the Supreme Court of

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, SER ad stent aU

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2. Sections of the California Workmen's Compen-

RRA —— 8

III. Summary of Appellant's Contentions and Our

— TAT

IV. Argument of Reasons Why the Deeision of the

Supreme Court of the State of California

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A. The Controlling Principle in This Case

The Local Law May Govern a Vessel in Its

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ERS MEINE PLS Ree I LMT LLP

EK. The Maritime Law Eular ged.

F. The Principle of the Strand Case

G. The Merchant Marine Aci

II. Admiralty Jurisdiction of Causes of Action

(a) Action Not Founded on Tortt

% — —

(¢) Action on Insurance Contracet

(f) No Violation of Exclusive Admiralty

Rn eae RT ELA,

EERE

TABLE OF CASES

—

Alaska Packers Asan. vs. Industrial Ace. Com., 200 Cal.

c 12, 13, 41

American Steamboat Co. vs. Chase, 16 Wall. 522, 530. 23, 32

Anderson vs. Pacifie Coast 8. 33

te., 48 8. Ct. 5055.

=. II, 12. 24. 25,

Groves va. Slaughter, 15 Pet. 505

Hooper vs, California, 155 U.S 3

Industrial Ace. Com va James Rolph Co, 264 L. 8

Ketchikan I. 4 8 Co. wa Bishop, 24 Fed. (2nd) 63

Knickerbocker lee Co. va. Stewart, 253 U. S. 149. 15,

Lord vx. Goodall Ete Steamship Co, 102 l“, & 343.

Miller's lud. Underwriters va Braud, 46 8 Ct 194, 23

U.S Se

% „ Merchants Bank, 6 How.

Newport Ete. Bridge (% va. U8 105 7 8. 492

18 ‘

> > .

Northern Coal 4 Dock Co ve Industrial Com, 213 N W.

6589

TABLE OF CASES—Continued

Pacific Mail S. 8. Co. vs Joliffe, 2 Wall. 450, 459. 735

Panama R. Co. vs. Johnson, 264 U. S. 375 23, 24, 26

Passenger Cases, 7 How. 399, 400 27

Pensacola Tel. Co. vs. West Ete. Tel Co., 96 U. 8. 22. 28

„r r 15, 17

Quong Ham Wah vs. Industrial Acc. Com., 184 Cal. 26. 38

Robbins Drydock & Repair Co. vs. Dahl, 266 U. S. 449 — 15

Rosengrant vs. Havard, 47 8. Ct. 454444. 12, 29, 30, 31

Sands vs. Manistee River Imp. Co., 123 U. S. 295 27

Sherlock vs. Alling, 93 U. S. 99, 10 33

Sinnot vs. Davenport, 22 How. 243_....-.......-.....-- 28

Southern Pacific Co. va. Jensen, 244 U. S. 205. 15, 23

8. 8. Bowdoin Co. vs. Industrial Acc. Com., 246 UI. S. 648

rr. . AA tpiisbaieneansunichsiienaaeeate 15, 17, 42

S. 8. Catala vs. Dagsland (B. C. D. 928), 3 D. L. R. 334. 42

State Freight Tax Case, 15 Wall. 2777. 27

Stoutenburgh va. Hennick, 129 U. S. 150 28

Sultan Ry. Timber Co. vs. Dept. of Labor Ete., 48 S. Ct.

—!! . K 12

„„den eie 23

The Belfast, 74 U. 8 T! A Aceresdnigsonc aa 19, 21

The Chelentis va. Luckenbach S. S. Oe. 247 U. 8. 872. — 1

The General Smith, 4 Wheat, 488 14

. 9 0 AA 23

. ü, i se 23

The Lottawanna, 21 Wall. (88 U. 8.) 55888. 14

. / h A 9

— ( ¾ ⁰— A tee rsdn ceicvivnishcecdinns 28

T. Smith & Son vs. Taylor, 276 U. S. 179999 18

U. A R. C. Knight Co., 156 U. S. 12, 82. 27, 28

— —, , ¶ A ]%⁰ . %˙˖¹

Washington vx. Dawson & Co., 264 U. S. 2199 17

Western Un. Tel. Co, vs. James, 162 U. 8. 6666. 35

Western Un. Tel. Co. va. a his eens. 27

Wilson va. McNamee, 102 U. 8. 57222 33

TEXTS AND STATUTES CITED

Conatitution of the United States, Art. III. See. 2

Federal Employers Liability Act, e. 149, 35 Stat 65, and

chapter 143, $6 Stat. 291 (45 U.S. C. A. §§ 51-59) 22. 26. 29

Jones, or Merchant Marine Act, 4] Stat. 1007

Judicial Code, Sections 24 and 256

Merchant Marine Act, 4] Stat 10077.

Workmen's Compensation Act of California (Chap. 586)

See. 6 (a) Cal, Laws 1917

See. 9 (e (1) Cal. Laws 1917

See. 9 (e) (3) Cal Laws 1917

See. 30, Cal. Laws 1917

IN THE

SUPREME COURT

UNITED STATES.

Ocroser TERM, 1928

No. 491

Lonpon GUARANTEE AND ACCIDENT COMPANY,

Lrp.,

Appellant,

vs.

InpustaaL AccipENT COMMISSION OF THE

Strate or CaLivornia, SARAH JANE Brooke,

anp JOHN ArTHUR BROOKE,

Appellees.

BRIEF FOR APPELLEES

REFERENCE TO THE OPINION OF THE SUPREME

COURT OF THE STATE OF CALIFORNIA

The decision of the Supreme Court of the State

of California, now on appeal before this court, will

be found by this court on pages 106 to 109, inclusive,

in the printed transcript of record. This opinion,

though not yet printed in the official California

Reports, may be found in printed form in the

Advance Sheets of the California Decisions, volume

75, page 481.

Sig foe

STATEMENT OF THE CASE

1. The Facts.

The Morris Pleasure Fishing, Inc., is a corpora-

tion whose business is that of maintaining and

operating a small fleet of fishing vessels for the

accommodation of the general public seeking recre-

ation in deep sea fishing.

Its headquarters is at the city of Santa Monica

Municipal Pier (R. 39), which is fifteen or sixteen

hundred feet long (R. 48). In the fishing seasons,

its practice has been to send these small fishing ves-

sels out from Santa Monica Pier to the fishing

grounds in Senta Monica Bay, carrying passengers

who desire to fish at fixed charges for half-day and

full-day trips. For use in this business, this corpo-

ration on and prior to April 8, 1926, had six vessels

(R. 39). On April 8, 1926, there were “four in

operation, two laid up“ (R. 42). The four in oper-

ation ranged from four to fourteen tons registry

(R. 43). Each boat is captained by a licensed boat

operator or skipper, who is assisted by a crew of one

or more employees (R. 30, 40). The business is

confined entirely to the maintenance and operation

of these pleasure fishing vessels and transportation

of patrons desiring to fish in the waters of Santa

Monica Bay, except that the corporation would

supply these patrons with bait.

These vessels, equipped with gas engines (R. 43),

were capable of cruising a distance of five hundred

miles (R. 44), but none ever did. THESE VES-

SELS PRIOR TO APRIL 8, 1926, NEVER LEFT

THE WATERS OF SANTA MONICA BAY ON

THESE FISHING TRIPS (R. 43).

Santa Monica Bay is described by witness Captain

Cliff A. Morris (R. 43) as follows:

„e. Where did they usually go to fish?

A. In Santa Monica Bay, as they call it. It is

a bay inside of a line drawn between Point Fir-

min and Point Duma.

Q. About how far from shore?

A. About ten miles, approximately, from the

Santa Monica Pier.

Q. Did they ever make any exception to the

place where they went fishing? Just describe it

yourself.

A. When they land at San Pedro, they went

outside, up Santa Monica Bay, for repairs, but

they never run outside. They have since, our

boats, this summer, have gone outside ten miles,

ten miles, but not then. (Italies ours.)

These fishing vessels leave Santa Monica Pier with

patrons on board, going out to fishing grounds two

and one-half or three miles (R. 39), but not more

than five miles (R. 43) except that sometimes they

go over to what they call ‘the rock-cod bank,’ about

ten miles straight out. (R. 39.)

The only time, apparently, these vessels ever leave

Santa Monica Bay is when they go to San Pedro,

thirty miles around the shore, for repairs (R. 43).

These vessels were used exclusively for carrying

patrons desiring to do deep sea fishing (R. 43). This

— 642

corporation did not use these vessels for commercial

fishing for its own benefit ( R. 41, 43) ; the fish caught

belonged to the patrons (R. 40).

As a necessary incident to the operation of these

vessels the company employed seamen to navigate

the vessels.

John James Uttley Brooke, an unmarried minor,

eighteen years of age, on and prior to April B. 1926,

was employed by this corporation as an apprentice

navigator and seaman (R. 28, 30). He had applied

for a license as a navigator or skipper or boat oper-

ator, but could not get one (R. 30).

Leland Gregory, married, and the father of two

minor children (R. 35, 37), was employed by this cor-

poration as a boat operator or master of a boat

(R. 44) on and prior to April 8, 1926. Captain Stan-

ton Morris was the official in charge of this business

(R. 48) and the immediate superior of Brooke

(R. 48) and Gregory.

On April 8, 1926, the sea was rough and none of

these boats could be operated that day (R. 43, 40).

One of these veasels, the W. K.,“ was moored, with

no one aboard (R. 45, 40), in Santa Monica Bay,

about one-half to three-quarters of a mile from the

pier (R. 47). In the storm, this vessel, with no one

aboard, broke loose from her moorings early in the

afternoon and began to drift toward the «hore

(R. 45). At the time, a group of these employees

were gathered on the pier (R. 47). Captain Morris

arrived on the scene and said to these employees

(including Gregory and Brooke), Come on boys,

let us save it’? (R. 48). Captain Morris, Brooke and

Gregory got into an eighteen-foot skiff lying at the

wharf and started out toward the drifting vessel.

When they were about fifty feet from the vessel

„W. K.,“ their skiff overturned and all three were

drowned (R. 47).

Appellant, London Guarantee and Accident Co.,

Limited, had issued a standard workmen’s compen-

sation insurance policy to the employer corporation,

Morris Pleasure Fishing, Inc., covering its liability

to pay compensation to injured employees of said

corporation where such employees suffered industrial

injury or death arising out of or in the course of that

employment.

2. Two Awards Made by the Industrial Accident Com-

mission

Thereafter, the mother and stepfather of Brooke

filed an application or claim for a death benefit with

the California Industrial Accident Commission.

Likewise, the widow and minor children of Gregory

filed another application or claim for death benefit

with the Industrial Accident Commission. Hear-

ings were held in the two proceedings, which by stipu-

lation were considered together.

No dependency being shown by the mother and

stepfather of Brooke, they were denied a death bene-

fit but were awarded the sum of one hundred

fifty dollars on account of burial expense, pursuant

to the provisions of section 9 (e) 3, which provides:

“If the deceased employee leaves no person

dependent upon him for support, the employer

shall be hable for the reasonable expenses of his

burial, not exceeding one hundred fifty dollars

and such other benefit as may be provided by

lau-.

In the Gregory case, the widow and minor children

of the deceased employee Gregory were found to be

wholly dependent and were awarded a death benefit

of five thousand dollars, based on maximum annual

earnings, in addition to funeral expenses in the sum

of one hundred fifty dollars, a total of five thou-

sand one hundred fifty dollars, pursuant to the pro-

Visions of section 9%) 1, which provides:

In ease the deceased employee leaves a person

or persons wholly dependent upon him for sup-

port, such dependents shall be allowed the reason-

able XI of his burial, hot exceeding ore hun-

dred fifty dollars, and a death benefit, which shall

he a sum sufficient, when added to the disability

indemnity which at the time of his death has

acerued and become payable, under the provisions

of subsection (6) hereto, to make the total disa-

bility indemnity and death benefit equal to three

times his average annual earnings, such average

annual earnings to be taken at not less than three

hundred thirty-three dollars and thirty-three

eents nor more than one thousand six hundred

sixty-«iy, dollars and sixty-six cents.

The award made by the California Industrial Acci-

dent Commission in the Gregory case has never been

appealed, but, by «tipulation of all parties, is depend-

ent upon the appeal now before this court. The deci-

sion of this court, therefore, in the case at bar will

determine whether or not the widow and minor chil-

dren of Leland Gregory are to receive this award of

five thousand one hundred fifty dollars.

These two awards were made under the authority

of the provisions of the Workmen’s Compensation,

Insurance and Safety Act of 1917 (chapter 586 of

the California Statutes of 1917, as amended), and

particularly under the authority of sections 9 (c) 1,

9 (c) 3 (above quoted), and section 6 (a) of that act.

Section 6 (%) provides:

“See, 6. (a) Liability for the compensation

provided by this act, in lieu of any other liability

whatsoever to any person, shall, without regard to

negligence, exist against an employer for any

injury sustained by his employees arising out of

and in the course of the employment and for the

death of any such employee if the injury shall

proximately cause death, in those cases where the

following conditions of compensation concur:

(1) Where, at the time of the injury, both the

employer and employee are subject to the com-

pensation provisions of this act.

(2) Where, at the time of the injury, the

employee is performing service growing out of

and incidental to his employment and is acting

within the course of his employment.

(3) Where the injury is proximately caused by

the employment, either with or without negli-

genes, and is not caused by the intoxication of the

injured employee, or is not intentionally Self-

inflicted.”’

on Oe

Ili

SUMMARY OF CONTENTIONS AND ARGUMENT

APPELLANT'S CONTENTIONS SUMMARIZED

Appellant founds this appeal upon an assignment

of ten errors, summarized as follows:

(1) The CONTRACT of employment was MARI-

TIME,

(2) The EMPLOYMENT was MARITIME.

(3) The employees’ SERVICES were MARI-

TIME.

(4) The INJURY to employees was MARITIME,

(5) The employer's BUSINESS was MARI-

TIME.

(6) The STATE STATUTE (Compensation Act)

ma; net be applied and the benefits therein given

furnished the dependents of Brooke and Gregory,

the deceased emplovees,

(7) ALL matters (including the rights and liabil-

ities of employee, eraployver and employer's insurance

earrier) were erclasseelg within the jurisdiction of

the admiralty courts.

(8) The application of a state statute (the Com-

pensation Act) violates section 2 of article LI] of the

federal constitution.

(9) The juriediction of a STATE COURT (Cali-

fornia Industrial Accident Commission) contravenes

the erclusive jurisdiction of the admiralty courts in

the case at bar.

(10) The AWARD of the California Commission

contravenes the exclusive jurisdiction of the admi-

ralty courts.

SUMMARIZED to the last analysis, appellant's

contention is that the admiralty courts had exclusive

jurisdiction because the contract was maritime, the

employment was maritime, the services were mari-

time, the business was maritime and the casualty

occurred upon navigable waters.

Noticeable by their absence among appellant's con-

tentions are:

(1) Brooke’s injury constituted a maritime tort;

(2) That the maritime law furnished any remedy

specifically :

(a) Wages, maintenance and cure under the

rule of The Osceola, 189 U. 8. 158. in

disability (not death) cases;

(hb) Suit for damages;

(3) That the transportation of fishing patrons

exclusively on the waters of Santa Monica Bay was

interstate or foreign commerce,

(4) That article I. tion 8. subdivision 3 of the

federal constitution was violated,

StuMMany or AnGuMENT

REASONS WHY THE DECISION OF THE SUPREME COURT OF

THE STATE OF CALIFORNIA SHOULD BE AFFIRMED

A. The Controlling Principle Already Enunciated,

B. The Local Law May Govern With the Vessel in

Its Home Port.

(„ Why the Jensen Case Does Not Control.

D. The Effect of the Commerce Clause of the Con-

stitution.

E. The Maritime Law Enlarged.

F. The New Principle of the Strand Case.

G. The Merchant Marine Act.

H. Admiralty Jurisdiction of Causes of Action.

a. Action set founded on maritime tort.

No tert preveds.

„ No“ maritime tort.

Action founded on compensation statute.

Action on insurance contract,

. Enforcement of state statute and insur-

ance contract does not violate exclusive

wmimiralty jurisdiction,

ARGUMENT

Reasons Why the Decision of the Supreme Court of the

State of California Should Be Affirmed

The BUSINESS of the employer was entirely

INTRASTATE and the WORK of the deceased

employees, Brooke and Gregory, was entirely

LOCAL in character. There was no commerce or

navigation of INTERSTATE or FOREIGN charac-

ter, no port to pert transportation, in fact, no depart-

ure from the one pert of Santa Monica.

No rights and liabilities of persons engaged in

interstate or foreign trade are here involved. The

cause of action is nonmaritime.

nO ed

The maritime law furnishes no remedy upon the

facts found in the case at bar. .

ONE FACT, the use of navigable waters in the

employer's business, permits the admiralty court to

assert jurisdiction IN GENERAL MARITIME

cases, Opposing facts, the LOCAL character of the

business and the nonmaritime character of the

CAUSE OF ACTION, deprive the jurisdiction of

the admiralty courts of its EXCLUSIVENESS.,

Tur Controuiinc NC ALaEapy Enunciatep

By Tuns Court

The rule now is that the application of state work-

men's compensation acts to maritime injuries or to

injuries occurring upon navigable waters is forbid-

den only where the application of that statute would

interfere with the characteristic harmony and uni-

formity of the maritime law in its interstate and

international aspects,

It is now established that it is not merely the

uniformity of the general maritime law which is

essential but the uniformity of the general mari-

time law tn ifs interstate and international aspect

and that maritime injuries of a local significance

may still be governed by the State Compensation

Act. (Italies ours.)

(rant Smith-Porter Ship Co. vs. Rohde, 257

U. S. 469.

And again:

“Under such circumstances regulation of

rights, obligations, and consequent liabilities of

the parties, as between themselves, by a local rule,

would not necessarily work material prejudice to

any characteristic feature of the general maritime

law, or interfere with the proper harmony or

uniformity of that law in ITS INTERNA-

TIONAL OR INTERSTATE RELATIONS.”

(Italies and capitalization ours.)

Grant Smith-Porter Ship Co. va. Rohde, 257

U. S. 469.

This rule has been adhered to by this court in the

following line of decisions:

Miller's lad, Underwriters vs. Braud, 46 Sup Ct.

194;

Rosengrant vs. Havard, 47 Sup. Ct. 454;

Alaska Packers Assn. vs. lndustrial Acc, Com.,

48 Sup. Ct. 346;

Sultan Ry. Timber Co. vs. Dept. of Labor, et.,

48 Sup. Ct. 505.

Eclipse Mill Co. vs. Dept. of Labor, etc., 48 Sup.

Ct, 305.

In the joint opinion on the last two cited cases

this court said:

“It is settled by our decisions that, where the

employment, although maritime in character, per-

tains to local matters, having only an incidental

relation to navigation and commerce, the rights,

obligations, and liabilities of the parties, as

between themaclves, may be regulated by local

rules which do pot work material prejudice to the

characteristic features of the general maritime

law or interfere with its uniformity’ * * *.”’

pas cele

In the same two cases, Mr. Justice Brandeis, in Eis

concurring opinion, also says:

put in both the controlling principle

is well settled, and the question presented is

simply whether on the principal facts it is

applicable. (Italics ours.)

Under the facts found in the case at bar, even if

this court, after consideration of our argument to the

contrary, as hereinafter set forth, should hold that

the admiralty courts did have jurisdiction, then, and

in that event, the foregoing stated principle would

still permit the assertion of jurisdiction by the Indus-

trial Accident Commission of the State of California

and the application of the provisions of the Work-

men's Compensation Act of that state to the rights

and liabilities of the parties to this proceeding. This

principle is alone decisive of the question presented

in this proceeding.

Petitioner's differentiation between seamen and

other maritime workers engaged in work of a local

character and argument that the rule of the Rohde

case does net apply because Brooke was a seaman

fails when this court’s decision in Alaska Packers

Assn, vs. Industrial Acc. Com., 48 Sup. Ct. 346, is

called to mind. In that case, Peterson's contract of

employment called for services as a seaman or fisher-

man. At the moment of his injury he was shoving his

fishing boat off the beach, a fishing boat which he had

navigated and which was capable of being used on a

several days’ cruise. This court held that such

service of a seaman was not ‘so directly connected

with navigation and commerce that to permit the

rights of the parties to be controlled by the local law

would interfere with the essential uniformity of the

general maritime law.“

Tur Loca Law May Govern Wirn THE VESSEL IN

Ivs Home Port

The facts in the case at bar disclose that neither of

the deceased employees, Brooke or Gregory, were

even members of the crew of the drifting vessel

„W. K., which, together with the other three vessels,

in condition to be operated, NEVER LEFT THE

PORT OF SANTA MONICA in the course of the

business of the employer.

With a vessel in its home port, it is the policy of

the general maritime law to allow matters concerning

it to be governed by the local law. The maritime law

ia more largely interested im vessels to the extent that

they are participating in interstate or foreign com-

merce or are voyacing. It surrenders to the domestic

law all regulation of matters concerned purely with

the domestic or internal affairs of the vessel, and the

civil rights and duties of its owner in his relation to

individuals in the state of his own domicile.

The General Smith, 4 Wheat. 435;

The Lottawana, 21 Wall. (88 U. 8.) 558,

These vessels were in their home port.

Application of the provisions of the Compensation

Act of California to the rights of these employees and

the liabilities of this employer and to the contractual

liabilities of the insurance carrier, appellant herein,

under the circumstances found in the case at bar,

has always been permitted by the admiralty courts,

Wu THe Jensen Decision Dors Nor Corno.

Appellant's argument, in substance, is based upon

the decision of this court in the Jensen case, Southern

Pacific Co. vs. Jensen, 244 U. S. 645, as followed by

other decisions of this court in

Clyde S. S. Co. vs. Walker, 244 U. S. 255;

Peters vs. Veasey, 251 U. S. 121;

The Chelentis vs. Luckenbach S. S. Co., 247

U.S. 372;

Knickerbocker lee Co, vs. Stewart, 253 C. S.

149;

Industrial Accident Com, vs. James Rolph Co.,

24 U.S. 219;

Robbins Drydock & Repair Co. vs. Dahl, 266

U.S. 449;

F. I. Bowdoin Co, vs, Industrial Acc. Com., 246

U.S. 648,

As stated by this court in the Jensen case, supra:

“And plainly, we think no such legislation is

valid if it contravenes the essential purpose

expressed by an act of congress, or works material

prejudice to the characteristic features of the gen-

eral maritime law, or interferes with the proper

harmony and uniformity of that law in its inter-

national and interstate relations. If New York

can subject foreign ships coming into her ports to

such obligations as those imposed by her compen-

sation statute, other states may do likewise. The

necessary consequences would be destruction of

the very uniformity in respect to maritime mat-

ters which the constitution was designed to estab-

lish: and freedom of navigation between the

states and with fore tpn countric * would be sert-

ously ham pe red and ne ded.” (Italies ours.)

It clearly appears in the Jensen case that Jensen,

working as a stevedore, was unloading A SHIP

ENGAGED IN INTERSTATE AND FOREIGN

COMMERCE. There was, therefore, a direct rela-

tion between Jensen's services and that class of com-

meree. Distinetively, in the case at bar, the ship was

not engaged in interstate or foreign commerce.

Likewise, WITHOUT EXCEPTION, in every

ease cited by petitioner as adopting the rule in the

Jensen case, the ship upon which the injury oecurred

was ENGAGEDIN INTERSTATE OR FOREIGN

TRADE.

By contrast, WITHOUT EXCEPTION, in every

ease following the rule in the Rohde case, the ship

was NOT ENGAGED in interstate or foreign com-

merten,

This basic differentiation goes on beyond mere

cancidence and must indicate the foundation of the

distinction between local maritime matters under

the state courts’ coneurrent jurisdiction and purely

maritime matters under the admiralty courts’ exclu-

sive Jurisdiction.

In Clyde S. S. Co. vs. Walker, 244 U. 8. 255,

Walker, a stevedore, was injured while unloading

the Steamer Cherokee,“ just arrived in New York

Harbor from North Carolina.

In S. S. Bowdoin Co, vs. Industrial Acc. Com.,

246 U.S. 648, Sievers, a seaman, was injured on the

deck of the Steamer ** Bowdoin“ at Port of Eureka,

California. The steamer ** Bowdoin"’ was engaged in

interstate trade.

In Peters vs. Veasey, 251 U. S. 121, Veasey was

injured while working as a stevedore unloading a

eargo from the Steamer ‘*Seria’’ at a dock in New

Orleans. This vessel was in trade.”’

In Knickerbocker Ice Co. vs. Stewart, 253 U. 8.

149, Stewart was drowned when he fell from a barge.

The only question was the effect of an act of congress

amending sections 24 and 256 of the Judicial Code,

approved October 6, 1917, C. 97, 40 Stat. 395. Un-

fortunately, it was stipulated that the employment

was maritime.

injuries received by one Stewart

while engaged in helping unrig a derrick on one

of the defendant's barges. Jt is conceded that

the work in which the injured man was engaged

was of a maritime nature and upon that conceded

fact the argument is made. * * (Italies

ours. )

Knickerbocker lee Co. vs. Stewart, 226 N. Y.

302, 303.

In both Washington vs. Dawson & Co. and Indus-

trial Acc. Com, vs. James Rolph Co., decided by this

court with joint opinion, 264 U. S. 219, this court

affirmed its ruling in Knickerbocker Ice Co. vs.

Stewart, supra, to the effect that that particular con-

gressional act was unconstitutional. In both of these

cases, however, the vessels were engaged in inter-

state trade and the question presented involved the

services of stevedores in unloading the cargo from

these ships.

In T. Smith & Son vs. Taylor, 276 U. S. 179,

Taylor was injured on the dock in New Orleans and

the compensation law of Louisiana was applied fol-

lowing the rule in the Nordenholt case. He was not

injured on navigable waters.

Northern Coal & Dock Co, vs. Strand, 49 Sup.

Ct. . the last case cited by appellant, will be more

fully discussed hereafter.

In the case at bar, the vessels of the employer

NEVER had engaged in interstate or foreign com-

meree or in port to port commerce. Stevedores were

never required to work unloading the cargo of these

vessels, for these vessels were not engaged in trade.

The commerce in which the vessels in the case at bar

were engaged was purely a Hal. intrastate, domestic

commerce LOCAL to the city of Santa Monica. J.

was not hooked to the terminal ond of nor an integral

part of ang wnteratate or forrign commerce.

The jurisdiction of the admiralty courts over mari-

time matters embraces many subjects.

“The principal subjects of admiralty jurisdic-

tion are maritime contracts and maritime torts,

including captures jure belli, and seizures on

water for municipal and revenue forfeitures.

(1) Contracts, claims, or service, purely mart-

time, and touching rights and duties pertaining

to commerce and navigation, are cognizable in

the admiralty.

(2) Torts or injuries committed on navigable

waters, of a civil nature, are also cognizable in

the admiralty courts.“ (Italies ours.) The Bel-

fast, 74 U. S. page 637.

The admiralty jurisdiction also extends to actions

based upon violation of the old-time rules of the sea

re passage, collision, salvage, pilotage and similar

subjects.

It is pertinent to point out at this time that NONE

OF THE SUBJECTS above enumerated are the

basis of the cause of action in the case at bar.

Therefore, while the jurisdiction of the admiralty

courts might be exclusive in its application to other

subjects than the one involved in the case at bar, the

peculiar nature of the present case, i. cr, its own facts

and circumstances, do not invoke the exclusive juris-

diction of the admiralty courts.

Errect or THe ComMERCRE CLAUSE OF THE

CONSTITUTION

It ix our contention that on the facts found herein,

the admiralty courts had no jurisdiction of the cause

tried in the courts below, notwithstanding Brooke

was a seaman and his death occurred on navigable

waters.

In conjunction with our argument supporting this

contention, we ask this court to refer to Appendix

“A.” attached to this brief, for a better understand-

ing of our concept of the meaning of the words

“‘admiralty,’’ maritime,“

gation.”’

‘“eommerce and navi-

Federal jurisdiction over commerce and naviga-

tion rests upon two sources having one common

authority :

1. The commerce clause of the federal constitu-

tion (article I. section 8, subdivision 3);

2. The jurisdiction of the federal courts in all

cases of admiralty and maritime jurisdiction (article

III. section 2);

The first source gives to congress the power ‘to

regulate commerce with foreign nations, and among

the several states, and with the Indian tribes.“

The second souree in creating the federal courts

and defining their judicial powers extends that judi-

cial power “to all cases of admiralty and maritime

jurisdiction."

Summed up, therefore, the control of the federal

government over commerce and navigation is;

(1) The power of congress to regulate:

a. interstate cormmerce, and

b. foreign commerce.

That power is coequal over both forms of

commerce.

(2) The jurisdiction of the federal .courts over

all cases of admiralty and maritime jurisdic-

55 Oe te

tion. Not over „cases“ of nonmaritime

causes of action.

The exclusive jurisdiction of the admiralty courts

in certain (admiralty and maritime) cases is exer-

cised concurrently with the jurisdiction of the same

courts as granted by congress (Judicial Code, See-

tions 24 and 256) over all civil causes of admiralty

and maritime jurisdiction,

„he jurisdiction thus conferred embraces two

classes of civil cases. The first respects acts and

injuries done upon navigable waters. The second

respects contracts purely maritime, and touching

rights and duties pertaining to commerce and

navigation.”

Netherlands etc. Co. vs. Gallagher, 282 Fed. 171.

page 173.

The Belfast, 74 U. S. 637.

Thus, the inherent power of the federal judiciary

as granted it by the constitution (article III. section

2) over admiralty or maritime cases is strengthened,

enlarged and rounded out by an act of congress fune-

tioning under its own constitutional grant of power.

(Article I, section 8, subdivision 3.) The two grants

of power, one constitutional, the other legislative, are

exercised by the admiralty courts for a common pur-

pose, ie. to secure, maintain and preserve uniform-

ity in the regulation of interstate and foreign com-

merce and, thereby, harmony in that branch of our

interstate and foreign relations. The two constitu-

tional grants of power, one to the judiciary and the

other to congress, have thus merged in a common

field and are to be viewed as each supplementing the

other.

“The exclusive jurisdiction in admiralty cases

was conferred on the national government as

closely connected with the grant of the commer-

cial power. It is a court instituted for the pur-

pose of administering the law of the seas. There

sects to be ground, therefore, for restraining its

jurisdiction, in some measure, within the limit

of the granting of the commercial power, which

would confine it, in cases of contracts, to those

concerning the navigation and trade of the coun-

try upon the high seas and tide waters within

foreign countries and among the several states.“

( Italies ours.)

New Jeracy Steam Nav. Co. vs. Merchants Bank,

6 Howard, 392.

Tur Maur Law ENLancep

Congress gave to workers engaged in transporta-

tion by rail (, om land) of interstate and foreign

commerce certain rights and causes of action. [ Fed.

eral Employers’ Liability Act of 1908, chapter 149,

35 Stat. G, and chapter 143, 36 Stat. 291 (45 U. 8. C.

A. sections 51599.

These were greater rights than those rights of

maritime workers engaged in interstate and foreign

trade. The injustice and inequality of this situation

was largely corrected by the Jones Act (Sec. 33 of

the Merchant Marine Act, approved June 5, 1920, 41

sis oa

Stat. 1007), which incorporated into the ‘‘maritime

law by reference those rights enjoyed by workers

on interstate carriers by rail.

Engle vs. Davenport, 271 U. S. 33, 35;

Panama t. Co. vs. Johnson, 264 U. S. 375.

Tur New Princrece or THE StTRaNnD CASA

The recent decision of this court in the Strand

case establishes a new rule even while adopting and

following the principle enunciated by this court in

Southern Pacific Co. vs. Jensen, 244 U. S. 205.

Prior to the decision in the Jensen case, supra, this

court had always held that the maritime law fur-

nished no remedy in a death ease and the state law

might apply.

The Harrisburg, 119 U. 8. 199;

The Alaska, 130 U. S. 201;

American S. . Co. vs. Chase, 16 Wall. 522;

The Hamilton, 207 U. B. 398.

The Jones Act having given a remedy in cases of

death of maritime workers, the admiralty courts now

have EXCLUSIVE jurisdiction in such cases of

death to maritime workers where the casualty

occurred on navigable waters. That is the NEW

PRINCIPLE evolved by this court on November

23, 1928, in

Northern Coal d Dock Co. vs. Strand, 49 Sup.

Ct, .

In this case, a stevedore was killed on board the

vessel while unloading a vessel which had brought

coal from other lake ports. This was port to port

commerce; it was more, IT WAS INTERSTATE

COMMERCE.

The vessel in which he was working at

the time of his death was the steamer Matthew

Andrews, which had brought a carload of coal

from Toledo, Ohio, to Superior by way of the

Great Lakes * * *,"’

Northern Coal & Dock Co. vs, Industrial Com.,

213 N. W. 658-9,

In the Strand case, supra, this court recognized

the difference between internal or local or domestic

or intrastate commerce under the Jurisdiction of the

state law administered exclusively by the state law

as eontradistinguished from foreign and interstate

or (as called in admiralty) maritime commerce under

the maritime law administered erclustvely by the

admiralty courts in two ways:

(a) Referenee to the rule of the Rohde case,

trrant Smith-Porter Ship Co. ve Rohde;

(b) Reference to the rule of Panama H. Coe. vs.

Joknsou, amt New Vork Cent. BR. Co. vx. Winfield.

Analyzing thowe references we Hud:

(a) This court said on page 89;

we Me have alee beld that state statutes

providing compensation for employees through

commissions might be treated as amending or

neelifving the maritime law in cases where they

concern purely Jocal matters and occasion no

interference with the uniformity of such law in

its international and interstate relations. Grant

Smith-Porter Ship Co. vs. Rohde, 257 U. 8.

469 R * 9.

The unloading of a ship is not matter of purely

local concern. It has direct relation to commerce

and navigation, and uniform rules in respect

thereto are essential * * *."’ (Italics ours.)

Why did not the rule in the Rohde case control on

the facts found in the Strand case? The business

was a land business; it was local in character; the

contract of employment primarily was a nonmari-

time contract.

It did not apply because:

1. The services being rendered by Strand at the

time of his injury were a DIRECT PART OF

INTERSTATE COMMERCE,

® Strand in rendering those services Was 4 seaman

engaged in that commerce called maritime.“

3. As a seaman engaged in interstate commerce,

the maritime law furnished a remedy.

(b) The court said, referring to the Johnson and

Wiafeld cases, supra, on page S89:

“New York Central H. Co, vs. Winfield, 244

U. 8. 147, 11. considered the effect of the

Federal Employers’ Liability Act * * *°

npon the former right of employees to recover

under the laws of the states“

We held ‘the act is comprehensive and also

exclusive.’ and denied the right of an employee

of an interstate carricr to recover under a state

statute even in respect of injuries suffered with-

out fault as to which the federal act provides no

remedy,

Panama H. Co. vx. Johnson, 264 U. S. 375, ruled

that section 20, Act of March 4, 1915, as amended

by the Merchant Marine Act, incorporated the

Federal Employers’ Liability Act into the mari-

time law of the United States. (Italics ours.)

Why and how did the principles of these two cases

give the admiralty court in the Strand case a juris-

diction exclusive of that of the state courts?

Because:

1. Regulation of interstate commerce by congress

is exclusive ;

2. The Merchant Marine Act incorporated the

Federal Employers’ Liability Act into the maritime

law, bringing with it exclusive jurisdiction of cases

directly involving interstate commerce.

3. The maritime law thereby furnished a remedy

in deaths on navigable waters of seamen and steve-

dores engaged in interstate commerce.

Tur Menenwanr Maur Act

(a) But the Merehant Marine Act did not bring

into the maritime law any rules applicable to domes-

tic or local or interstate commerce. Court jurisdiction

over this class of commerce was never relinquished by

the states to the federal government through the fed-

eral constitution.

„The completely internal commerce of a state,

then, may be considered as reserved for the state

itself.“

Newport, ete., Bridge Co. vs. U. S., 105 U. 8.

492.

“The states have as full control over their

purely internal commerce as congress has over

commerce among the several states and with for-

eign nations.“

Mobile County vs. Kimball, 102 U. S. 699.

„The internal commerce of a state—that is, the

commerce which is wholly confined within its

limits—is as much under its control as foreign or

interstate commerce is under the control of the

general government."

Sands vs. Manistee River Imp. Co., 123 U. 8.

25.

„All commercial action within the limits of a

state, and which does not extend to any other state

or foreign country, is exclusively under state leg-

islation, Congress has no more power to control

thix than a state has to regulate commerce ‘with

foreign nations and among the several states.

Passenger Cases, 7 How. 400.

See also

Gilman vs, Philadelphia, 3 Wall. 724.

If commerce does not include navigation, the

government of the Union has no direct power

over that subject, and can make no law prescrib-

ing what shall constitute American vessels, or

requiring that they shall be navigated by Ameri-

can Samen.“

Gibbons vs. Ogden, 9 Wheat. 190.

What is commerce ;

‘Transporting conmmodities is commerce, * * *

Both trade and commerce are included so long as

each relates to that which is interstate or for-

eign.”

U.S. vs. Trans-Missouri Freight Assoc., 166 U.

8. 325.

“Commerce, undoubtedly, is traffic, but it is

something more; it is intercourse. It describes

the commercial intercourse between nations, and

parts of nations, in all its branches, and is regu-

lated by prescribing rules for carrying on that

intercourse, ”’

Gibbons va. Ogden, 9 Wheat. 190.

Commerce among the states,’ as defined by

this court, is ‘trade,’ ‘traffic,’ ‘intercourse,’ and

dealing in articles of commerce between states,

by its citizens or others, and carried on in more

than one state.“

Groves vs. Slaughter, 15 Pet. 511.

See also

Lottery Case, 188 U. S. 352.

Commerce divided into two classes. 1, Interstate

or foreign. 2. Local or intrastate or domestic. They

are distinguished thus:

“Commerce with foreign nations must signify

ecommerce which in some sense is necessarily con-

nected with these nations, transactions which

either immediately, or at some stage of their

progress, must be extraterritorial. The phrase

ean never be applied to transactions wholly inter-

nal, between citizens of the same community, or

to a polity and laws whose ends and purposes and

operations are restricted to the territory and soil

and jurisdiction of such community.“

Furie vs. Moor, 14 How. 573.

“There is a trade among the several states

whieh ix distinet from that carried on within the

territorial limita of a state. The regulation and

control of the former ix committed by the national

constituticen to congress.”

U.S. ve. B.C. Keight Co., 156 U. S. 32.

“It has been repeatedly held that there is a

commerce entirely within a state, among its own

citizens, which congress has no power to regu-

late. ö

Stoutenburgh vx. Hennick, 129 U. S. 150.

The power of congress, however, over the sub-

ject does not extend further than the regulation

of commerce with foreign nations and among the

several states. Beyond these limits the states

have not surrendered their power over the sub-

ject, and may exercise it independently of any

control or interference of the general govern-

ment.“

Sin not vs. Davenport, 22 How. 243.

The power given to congress to regulate com-

merce with foreign nations, and among the states,

has been deemed exclusive, from the nature and

objects of the power, and the necessary implica-

tions growing out of its exercise.”

New York vs. Miln, 11 Pet. 158.

See also

Groves vs. Slaughter, 15 Pet. 505;

Maine vs. Grand Trunk E. R. Co., 142 U. S 233;

Hall vs. DeCuir, 95 U. S. 487;

Hennington vs. Georgia, 163 U. S. 318.

Purpose of commerce clauses of constitution:

»The commerce clauses of the constitution had

their origin in a wise and salutary policy. They

give to congress the entire control of the foreign

and interstate commerce of the country. They

were intended to secure harmony and uniformity

in the regulations by which they should be gov-

erned. Wherever such commerce goes, the power

of the nation accompanies it, ready and compe-

tent, as far as possible, to promote its prosperity

and redress the wrongs and evils to which it may

be subjected.

Inman Steamship Co. vs. Tinker, 94 U. S. 245.

„The doctrine now firmly established is, that

where the subject upon which congress can act

under its commercial power is locul in its nature

or sphere of operation, such as harbor pilotage,

the improvement of harbors, the establishment of

beacons and buoys to guide vessels in and out of

port, the construction of bridges over navigable

rivers, the erection of wharves, piers, and docks,

and the like, which ean be properly regulated only

by special provisions adapted to their localities,

the state can act until congress interferes and

supersedes its authority; but where the subject is

national in its character, and admits and requires

uniformity of regulation, affecting alike all the

states, such as transportation between the states,

including the importation of goods from one state

into another, congress can alone act upon it and

provide the needed i. cuiauens.””

Bowman vs. Chicago, Ete., E. (o., 125 U. S. 507.

Lal, or internal, or domestic, or intrastate com-

meree:

“The states have as full control over their

purely internal commerce as congress has over

commerce among the several states and with for-

eign nations

Mobile County vs. Kimball, 102 U. S. 699.

„The internal commerce of a state—that is, the

commerce which is wholly confined within its

limit is as much under its control as foreign or

interstate commerce is under the coutrol of the

general government.”

Sands vs. Manistee River Imp. Co., 123 U. 8.

295.

„All commercial action within the limits of a

state, and which does not extend to any other

state or foreign country, is exclusively under

state legislation. Congress has no more power to

control this than a state has to regulate com-

merce ‘with foreign nations and among the sev-

eral states’.”’

Passenger Cases, 7 How, 400.

„Comprehensive,“ says Mr. Chief Justice

Marshall, ‘as the word among“ is, it may be

very properly restricted to that commerce which

concerns more states than one,’ and ‘the com-

pletely internal commerce of a state, then, may

he considered as reserved for the state itself.’ ”’

Newport, Etc., Bridge Co, vs. L. S., 105 U. 8.

492.

(Congress) has nothing to do with the purely

internal commerce as is carried on between dif-

ferent parts of the same state, if its operations

are confined exclusively to the jurisdiction and

territory of that state, and do not affect other

nations or states or the Indian tribes,”’

Lord vs. Goodall, Etc., Steamship Co., 102

U. B. 543.

„Busines done within this state can not be

made to mean business done between that state

and other states.“

Pacific Express Co, vs. Seibert, 142 U. S. 350.

See also

Pensacola Tel. Co. vs. West, Etc., Tel. Co., 96

U. 8. 22;

State Freight Tax Case, 15 Wall. 277;

Passenger Cases, 7 How. 399.

State police laws valid:

“The power of congress to regulate commerce

is undoubtedly a beneficent one. The police laws

of the state are equally so, and it is our duty to

harmonize them.

Cook vs. Marshall County, 196 U. S. 273.

»The reserved power of the states to guard the

health, morals, and safety of their people is more

vital to the existence of society than their power

in respect to trade and commerce having no pos-

sible connection with those subjects.“

Bowman vs, Chicago, Etc., R. Co., 125 U. S. 524.

“A state regulates its own internal commerce,

may pass inspection and police laws, designed to

guard the health and protect the rights of its

citizens.”

Groves va, Slaughter, 15 Pet. 505.

It is well settled that the state may make

valid enactments in the exercise of its legislative

power to promote the welfare and convenience of

its citizens, although in their operation they may

have an effect upon interstate traffic.”

Pennsylvania N. Co, vs. Hughes, 191 U. S. 488.

“That which belongs to commerce id within the

jurisdiction of the United States, but that which

does not belong to commerce is within the juris-

diction of the police power of the state.“

U.S. vs. E. C. Knight Co., 156 U. S. 12.

Insurance is not commerce:

»The contention here is that, inasmuch as the

contract was one for marine insurance, it was a

matter of interstate commerce, and as such

beyond the reach of state authority.

This proposition involves an erro-

neous conception of what constitutes interstate

commerce, That the business of insurance does

not generally appertain to such commerce has

been settled since the case of Paul vs. Virginia,

8 Wall. 168."’

Hooper vs. California, 155 U. S. 653.

If the power to regulate interstate commerce

applied to all the incidents to which said com-

meree might give rise and to all contracts which

might be made in the course of its transaction,

that power would embrace the entire sphere of

mercantile activity in any way connected with

trade between the states; and would exclude state

control over many contracts purely domestic in

their nature.“

Hooper vs. California, 155 U. S. 655.

Where the power of congress to regulate is

exclusive the failure of congress to make express

regulations indicates its will that the subject shall

be left free from any restrictions or impositions ;

and any regulation of the subject by the states,

except in matters of local concern only, as here-

after mentioned, is repugnant to such freedom.”

Robbins vs. Shelby Taxing Dist., 120 U. S. 493.

Regulation of commerce embraces ships and sea-

men:

“The power of congress to require vessels to

be enrolled and licensed is derived from the pro-

vision of the constitution which authorized it ‘to

regulate commerce with foreign nations and

among the several states’.”’

Wiggins Ferry Co. vs. East St. Louis, 107

U. S. 377.

“If congress license vessels to sail from one

port to another, in the same state, the act is sup-

posed to be necessarily incidental to the power

expressly granted to congress, and implies no

claim of a direct power to regulate the purely

internal commerce of a state, or to act directly

on its system of police.“

Gibbons vs. Ogden, 9 Wheat, 204.

“Unquestionably the power to regulate com-

merce includes navigation as well as traffic in its

ordinary signification, and embraces ships and

vessels as the instruments of intercourse and

trade as well as the officers and seamen employed

in their navigation.“

State Tonnage Tar Cases, 12 Wall. 216.

‘Repeated decisions of this court have deter-

mined that the power to regulate commerce em-

braces all the instruments by which such com-

merce may be conducted ; and it is settled law that

where the subject to which the power applies is

national in its character, or of such a nature as

— 860 —

to admit of uniformity of regulation, the power

is exclusive of all state authority.“

Hall vs. DeCuir, 95 U. S. 497.

See also

License Cases, 5 How. 578.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.