Opinion
No. 33030.
May 2, 1938. Suggestion of Error Overruled June 6, 1938.
1. ADMIRALTY.
As regards applicability of Federal Seamen's Act to action for injuries sustained by seaman employed on a dredge boat, a dredge boat which is cutting a channel across land, intended to be navigable when finished, is not engaged in "maritime work," although as an incident thereof the dredge boat is followed as it proceeds by a navigable channel in its rear (46 U.S.C.A., sections 688, 713).
2. ADMIRALTY.
As regards applicability of the Federal Seamen's Act to action for injuries sustained by seaman employed on a dredge boat, a dredge boat which is deepening a navigable channel or one which has been a navigable channel so as to make it again actually navigable is engaged in "maritime work" (46 U.S.C.A., sections 688, 713).
3. ADMIRALTY.
A nontidal stream or channel, in order to have the character of "navigability" so as to bring it within the admiralty jurisdiction and within the purview of the Federal Seamen's Act, must be, or have been in the past, capable of being used as a national public highway a considerable part of the year, and it is not sufficient that it have or had an adequate volume of water therefor only occasionally as a result of freshets or floods for brief periods of uncertain recurrence and duration (46 U.S.C.A., sections 688, 713).
4. ADMIRALTY.
In order that navigation by flood waters or high stages of water shall bring the stream or channel into the character of "navigability" within admiralty jurisdiction and within purview of the Federal Seamen's Act, stages of high water must occur with some frequency and at times of reasonable certainty and continue long enough to make the use of the stream or channel of dependable commercial value as a national public highway for that purpose (46 U.S.C.A., sections 688, 713).
5. PLEADING.
In suit for injuries to seaman on dredge boat which was allegedly at work in a channel of the Mississippi river that previously had been open to navigation, the question of whether the channel previously had occupied the status of a navigable channel so that the suit could be maintained under the Federal Seamen's Act could be determined only by proof and was not determinable upon demurrer (46 U.S.C.A., sections 688, 713).
APPEAL from the chancery court of Adams county; HON. R.W. CUTRER, Chancellor.
Whittington Brown and Engle Laub, all of Natchez, and Watkins Eager, of Jackson, for appellant.
Appellant was entitled to recover under the Seamen's Act, and the court below committed error in dismissing the amended complaint based thereupon.
Par. 1, Sec. 2, Art. III, Constitution of U.S.; U.S.C.A., Title 46, sec. 688, 713; U.S.C.A., Title 45, sec. 51; The Arizona v. Anelich, 298 U.S. 110, 80 L.Ed. 1075; Hunt v. U.S., 17 F. Supp. 578; United Dredging Co. v. Lindberg, 18 F.2d 453; Fuentes v. Gulf Coast Dredging Co., 54 F.2d 69; Messel v. Foundation Co., 274 U.S. 427, 71 L.Ed. 1135; Saylor v. Taylor, 77 Fed. 476; The Hurricane, 2 Fed. 2d 70, 9 F.2d 396; City of Los Angeles v. United Dredging Co., 14 F.2d 364; The Showboat, 47 F.2d 286; The Ark, 17 F.2d 446; Kibadeaux v. Standard Dredging Co., 81 Fed. 2d 670; Spencer Kellogg Sons v. Hicks, 258 U.S. 502, 76 L.Ed. 903; Moss Tie Co. v. Tanner, 44 Fed. 928; Warner v. Goltra, 293 U.S. 155, 79 L.Ed. 254; Uravic v. Jarka, 282 U.S. 234, 75 L.Ed. 311; Ellis v. U.S., 206 U.S. 246, 51 L.Ed. 1047; Butler v. Ellis, 45 F.2d 951; 46 U.S.C.A. 971; Eastern Dredging Co., 138 F. 942; McMaster v. Dredge, 95 F. 832; Ender v. Greco, 3 F. 411; Sunbeam, 195 F. 468; Warren v. Smadbeck, 50 F.2d 99; Rogosich v. Union Dry Dock Repair Co., 67 F.2d 377; George Leary Const. Co. v. Matson, 272 Fed. 461.
The Chancellor in the court below committed error in failing and refusing to give full faith and credit to the laws and statutes of the State of Louisiana.
Sec. 1, Art. IV, Constitution of U.S.; Alaska Packers' Assn. v. Industrial Accident Commission, 79 L.Ed. 1044; Bradford v. Clapper, 286 U.S. 145, 76 L.Ed. 1026, 82 A.L.R. 696; Orleans Dredging Co. v. Frazie, 173 So. 431; Philips v. Guy Drilling Co., 79 So. 549; National Park Bank v. Concordia Land Timber Co., 105 So. 234; Keith v. T. P.R.R. Co., 129 So. 190, 132 So. 223; Anding v. T. P.R.R. Co., 104 So. 190; Callender v. Marks, 171 So. 86; Vernon v. I.C.R.R. Co., 97 So. 493; Blount v. Kansas City So. Ry. Co., 5 F.2d 967; Ford, Bacon and Davis v. Volentine, 64 F.2d 800; White v. Louisiana Western Ry. Co., 140 So. 486; Hancock Mutual Life Ins. Co. v. Yates, 81 L.Ed. 106.
It must be borne in mind that the rights of seamen have been constantly enlarged and not restricted, and the act is to be liberally and not strictly construed.
Arizona v. Anelich, 298 U.S. 110, 80 L.Ed. 1075; International Stevedoring Co. v. Haverty, 272 U.S. 50, 71 L.Ed. 157; Beadle v. Spencer, 298 U.S. 124, 80 L.Ed. 1082.
It is perfectly apparent that the Lindberg case is no authority here against the appellant, because a construction of the Seamen's Act was not even involved, and any language used by Judge Bryan in respect to the act was purely voluntary, obitur dictum, and totally unnecessary to a decision of the case.
It is perfectly apparent that the Seamen's Act of Congress had no application, first, because, as Judge Bryan states in his opinion, there was no evidence whatsoever of negligence. Second, the appellant was engaged in pumping silt and sand from shallow water in the Galveston Bay on to the land, for the purpose of raising the elevation of forty or fifty acres of land on the Virginia Point. Therefore, the dredging operations had no relation to commerce whatsoever. In the present case, however, the dredge boat was engaged in scouring out, widening and deepening a channel which had previously been made to form a part of the Mississippi River, through which navigation was had. It is apparent that this case is not at all in point.
The rule that dredges engaged in work in furtherance of navigation are vessels within the meaning of the maritime law, and as such are subject to maritime liens for wages and supplies furnished, is sustained by the overwhelming weight of authority.
The Dredge A, 217 Fed. 617; North American Dredging Co. v. Pacific Mail S.S. Co., 185 Fed. 698; Charles Barnes Co. v. One Dredge Boat, 169 Fed. 895; McMaster v. One Dredge, 95 Fed. 832; McRae v. Bowers Dredging Co., 86 Fed. 344; The Steam Dredge No. 1, 87 Fed. 760; The International, 83 Fed. 840; The Starbuck, 61 Fed. 502; The Atlantic, 53 Fed. 607; 59 A.L.R. 1343; Butler v. Ellis, 45 F.2d 951; 46 U.S.C.A. 971; Saylor v. Taylor, 77 Fed. 476; Eastern Dredging Co., 138 Fed. 942; Endner v. Greco, 3 Fed. 411; Sunbeam, 195 Fed. 468; Warren v. Smadbeck, 50 F.2d 99; Rogosich v. Union Dry Dock Repair Co., 67 F.2d 377; Hurricane, 2 F.2d 70, 9 F.2d 396; George Leroy Construction Co. v. Matson, 272 Fed. 461; Maryland Casualty Co. v. Lawson, 94 F.2d 191.
Under the allegations of the amended declaration when appellant was first employed by appellee it was impossible for the Louisiana Compensation Act to be applicable to that employment or for the parties to be held to have contracted with that law in mind, for the simple reason that the law of the land was that the Seamen's Act was the exclusive remedy and right afforded the parties. The law presuming all parties to know the law, it must be assumed that they contracted for their dredging work with the view that the Seamen's Act was the applicable law and not the Louisiana Compensation Act.
We most earnestly urge upon the court that this court in its former opinion has wholly assumed that at the time the appellant was employed by the the appellee that the work in which the appellee was engaged fell within the terms and provisions and was governed by the Louisiana Compensation Act; for without such assumption this court could not have given extra-territorial effect of that law for an injury that happened in Mississippi as it has done in its previous judgment and holding in this case.
In view of the meager testimony at the original trial as to the actual work in which the appellee was engaged at the time of the original employment, this court was without the information and knowledge of what the actual employment was as is now set forth in the amended declaration, and this court now having before it the amended declaration which definitely and specifically alleges such facts as definitely and specifically show that the Louisiana Compensation Act cannot apply either under the decisions of the Supreme Court of the State of Louisiana itself or the decisions of the United States Supreme Court, and the facts pleaded in the amended declaration standing now before this court by a demurrer as being admitted, we say we again insist that in view of this amended declaration and of these admitted facts by demurrer this court cannot adhere to its original position in this matter and in this cause.
In the Lindberg case the plaintiff was not injured as a result of any negligence of the dredging company, but came to his death accidentally. Therefore, no negligence having been charged or proved, the Seamen's Act was not even applicable. The Jones Act or Seamen's Act provides for recovery only where the employer is guilty of negligence, and no negligence was alleged or attempted to be proved in the case of Union Dredging Company v. Lindberg. Therefore, if Lindberg was to recover at all his recovery must be under the compensation act as his case did not sound in admiralty.
In the instant case it is perfectly obvious from the allegations of the amended declaration that when the appellant was originally employed by the appellee the appellee was definitely engaged in work of a maritime character and the appellant was working on a vessel on navigable waters in the actual aid of navigation and commerce.
This court must take cognizance that the only authority that Congress has to engage in flood control work is under the Commerce Clause of the United States. Such work is patently in aid of navigation and commerce, because, as charged in the amended declaration herein, the distance saved in traversing the Mississippi River between Vicksburg and Natchez is shortened some ten miles by reason of this new channel which has been opened up at Giles' Bend and constitutes a direct aid and a definite aid in the navigation of the Mississippi River commercially.
In the instant case Frazie was engaged in opening up an already existing navigable channel of the Mississippi River, which had been navigated in commerce by vessels the previous year, and which required new opening on account of the filling up of the channel, all as is more specifically and definitely shown and set forth and alleged in the amended declaration, the allegations of which are confessed by the demurrer.
Brandon Brandon, of Natchez, for appellee.
This court has twice held that this plaintiff on the facts alleged by him and testified to by him and testified to in his behalf by witnesses by him produced, and viewing the entire record in the case and in consideration of leading authorities, is not entitled to a recovery under the Seamen's Act of Congress, sections 688, 713, Title 46 U.S.C.A.
The opinion of the court in this case did not turn upon the sole consideration of whether or not the Dredge Cartagena was or was not a "vessel." The opinion rendered by this court turned upon the fact that this man was not injured in navigable waters of the United States, he was not engaged in work of a maritime nature, he was engaged in work of a purely local concern, having nothing to do with admiralty or maritime law, trade, navigation, or commerce, and that the tort inflicted upon him, if any tort at all were inflicted, was not a maritime tort; in other words, this court held under all facts and evidence in the case that Frazie and the Dredge were not working in navigable waters, but were completing the construction of what was to be a channel and that the dredge was eating its way across a point of land, that the work was not directly connected with navigation or trade or commerce, and that the subject was no concern of the law of admiralty. In other words, this court held that the case at bar was on all fours with the case of United Dredging Company v. Lindberg, 18 F.2d 453, in which certiorari was denied by the Supreme Court of the United States, 274 U.S. 759, and also by the cases of Fuentes v. Gulf Coast Dredging Company, 54 F.2d 69; Hargis v. McWilliams Co., 119 So. 88; and Southern Surety Co. v. Crawford, 274 S.W. 280. Judge Griffith in his opinion to which he had given very considerable thought points out that a different conclusion might be reached by a court dealing with the subject of maritime liens for supplies, etc., and thus distinguishes in advance the cases now relied upon by the appellant.
Even had the appellant been injured in navigable waters of the United States, yet, under the decisions rendered by the United States Supreme Court, his right of action, considering the character of work he was engaged in doing, and all other facts and circumstances, would have been governed by the Workmen's Compensation Act of Louisiana, and not by the Federal Seamen's Act.
Belk v. Massman Construction Co., 275 N.W. 76; Sultan Ry. Co. v. Dept. of Labor, 277 U.S. 135; Millers Underwriters v. Braud, 270 U.S. 59; Western Fuel Co. v. Garcia, 257 U.S. 233; Grant Smith-Porter Co. v. Rhode, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008; Woods v. Merrill-Stevens Dry Dock Repair Co., 14 F. Supp. 208.
Appellant is again seeking to have this court review consideration of the issues heretofore presented on the third count of the bill wherein he seeks now to recover compensation under the Workmen's Compensation Act of Louisiana.
That counsel for appellant are precluded from further urging that the appellant is entitled to any relief under the third count of his bill of complaint by the doctrine of the law of the case, we refer the court to the following Mississippi cases:
Hart v. Chemical National Bank, 27 So. 926; New York Life Ins. Co. v. McIntosh, 46 So. 401; Kellogg v. King, 114 Miss. 375, 75 So. 134; Johnson v. Success Brick Mfg. Co., 104 Miss. 217, 62 So. 4; Reed v. Norman-Breaux Lbr. Co., 149 Miss. 395, 115 So. 724; McDonald v. Green, 17 Miss. 138; Pennington v. Purcell, 155 Miss. 554, 125 So. 79; Commercial Bank Trust Co. v. Dendy, 149 Miss. 512, 115 So. 591; Smith v. Elder, 22 Miss. 100; Abbey v. Commercial Bank of New Orleans, 34 Miss. 571, 69 Am. Dec. 401; Wilkes v. Coopwood, 39 Miss. 348; Martin v. Lofland, 18 Miss. 317; Illinois Central R. Co. v. Jordan, 108 Miss. 140, 66 So. 406; Cochran v. Latimer, 111 Miss. 192, 71 So. 316; Dickerson v. Western Union Tel. Co., 114 Miss. 115, 74 So. 779; Commercial Union Fire Ins. Co. v. Kelly, 115 So. 400; Board of Supervisors of Grenada v. State, 114 Miss. 704, 111 So. 143; Fair v. Federal Land Bank, 165 Miss. 513, 146 So. 303.
The purpose of Sec. 688, Title 46, U.S.C.A., was to give to an injured seaman the right of election to proceed either in Federal or State Court as for an action at law for his personal injuries and in such a proper case to accord to an injured seaman the benefits of the provisions of the Federal Railway Employers Liability Act, sec. 51 et seq., Title 45, United States Code Annotated. It was not the intention of Congress by the adoption of said sec. 688, Title 46, United States Code Annotated, to deal with cases other than those of which formerly federal courts as courts of admirality had exclusive jurisdiction. Therefore, in determining whether or not this action is governed by the said Seamen's Act, it is necessary to determine whether this action is one of which, prior to the adoption of the Jones Act, sec. 688, supra, Federal Courts, sitting as Courts of Admiralty, would have had exclusive jurisdiction. If this action is not governed by the provisions of said sec. 688, Title 46, United States Code Annotated, then the provisions of sec. 51 et seq., Title 45, U.S.C.A., are not applicable.
The jurisdiction of Admiralty Courts of the United States includes only maritime causes or such as arise out of commerce and navigation on the high seas or the navigable waters of the United States of America, and the test of such jurisdiction is the nature of the claim upon which the suit is founded and not the form of remedy resorted to.
The Mary F. Chisohm, 129 Fed. 814; United Transportation, etc., Co. v. New York, etc., Transportation Line, 180 Fed. 902, 185 Fed. 386, 107 C.C.A. 442.
All admiralty jurisdiction refers directly or indirectly to navigation. It is the vessel and its navigation and the crimes, torts and contracts growing out of it that form the objects of admiralty jurisdiction.
United States v. Burlington Ferry Co., 21 Fed. 331.
A tort committed on board a vessel in navigable waters is within admiralty jurisdiction.
Atlantic Transport Co. v. Imbrovak, 34 Sup. Ct. 733, 58 L.Ed. 1208, 51 L.R.A. (N.S.) 1157.
But, conversely, the tort committed not on board a vessel and/or not in navigable waters is not within original and exclusive admiralty jurisdiction.
By "navigable waters of the United States" is meant such as are navigable in fact and which by themselves or their connection with other waters form a continuous channel for commerce with foreign countries or among the states.
Miller v. New York, 109 U.S. 395, 3 S.Ct. 228, 27 L.Ed. 971; Escanaba, etc., Transportation Co. v. Chicago, 107 U.S. 682, 2 S.Ct. 185, 27 L.Ed. 442, 12 Fed. 777; Rhea v. Newport News R. Co., 50 Fed. 16; Grand Trunk R. Co. v. Backus, 46 Fed. 211.
In general it may be said that only those waters are "navigable waters of the United States" which have from custom and use or dedication been or become public waterway highways of the United States and have thereby become impressed with the privilege of public use for trade and commerce.
Clearly, under such a definition, the cut or ditch in question could never have been said to have become a "navigable water of the United States," — at least prior to October 8, 1934.
Whether a river is navigable in fact is determined by whether it is used, or susceptible of being used, in its natural and ordinary condition as a highway for commerce over which trade and travel are, or may be, conducted in the customary modes of trade and travel on water.
State of Oklahoma v. State of Texas, 42 Sup. Ct. 406, 258 U.S. 574, 66 L.Ed. 771; Brewer-Elliott Oil Gas Co. v. U.S., 43 Sup. Ct. 60, 260 U.S. 77, 67 L.Ed. 140; Waterloo Woolen Mfg. Co. v. State, 194 N.Y. 155, 118 Misc. 516; McDonald v. Apple River Power Co., 164 Wisc. 450, 160 N.W. 156.
The general test of navigability is whether or not the waters in their ordinary condition are used or susceptible of being used as highways of commerce.
Economy Light Power Co. v. U.S., 41 Sup Ct. 411, 256 U.S. 113, 65 L.Ed. 847, 256 Fed. 791; Blackman v. Mauldin, 164 Ala. 337, 51 So. 23, 27 L.R.A. (N.S.) 670; Rhodes v. Otis, 33 Ala. 528, 73 Am. Dec. 439.
"Navigable" means capable of being navigated during a considerable portion of the year and not simply on happening of floods at uncertain intervals.
Bissel v. Olson, 26 N. Dak. 60, 143 N.W. 340; The Monticello, 20 Wall. 430, 22 L.Ed. 391.
There is no judicial presumption of navigability of any water which is not known to be navigable geographically, historically, traditionally, and any given water not so generally known will not be presumed to be navigable.
Donnelly v. U.S., 33 Sup. Ct. 1024, 228 U.S. 708, 57 L.Ed. 1035; Leheihy v. Ashland Lbr. Co., 49 Wisc. 165, 5 N.W. 471.
A stream neither meandered nor declared navigable by the legislature is prima facie non-navigable.
Allahay v. Mauston Electric Service Co., 116 N.W. 4, 135 Wis. 345, 16 L.R.A. (N.S.) 207.
The navigability of streams not large and well known must be established by evidence, and the burden of proof rests upon the party asserting that character.
Mintzer v. N. American Dredg. Co., 242 Fed. 553, 245 Fed. 297, 157 C.C.A. 489.
And so we submit that it is clearly established that the water which had followed and flowed into the cut made by the operations of the dredge in the instant case could not by any conceivable stretch of the imagination be held to be navigable waters of the United States.
We respectfully submit that there has been no modification of the holding in the Lindberg case, nor any departure therefrom, nor has there been any tendency on the part of federal courts to bring under the provisions of the federal statute tort cases not originally exclusively the subject of admiralty jurisdiction. We have carefully examined all federal cases in which have been cited or referred to the said Lindberg case, being United Dredging Company v. Lindberg, 18 F.2d 453. The Lindberg case has been followed and approved by seven subsequent federal decisions, including the Kibadeaux case so urgently relied upon by the appellant. Three of those seven cases were upon propositions not involved in the instant case. The other four, however, are worthy of consideration, and they are the following:
Fuentes v. Gulf Coast Dredging Co., 54 F.2d 69; Esteves v. Lykes Bros. Steamship Co., 74 F.2d 364; Kibadeaux v. Standard Dredging Co., 81 F.2d 670.
We desire the court not to overlook the decision rendered by the circuit court of appeals of Texas in the case of Southern Surety Co. v. Crawford, 274 S.W. 280, which is directly in point with the case at bar, and in which certiorari was denied by the United States Supreme Court, 206 U.S. 655, 46 S.Ct. 353, 70 L.Ed. 783, which was a case where a deckhand employed upon a non-self-propelled dredge was injured while he and it were engaged in the improvement of a state inland harbor channel; and the court held that the tort, even if maritime at all (which was questioned), was nevertheless to be deemed of such a local character and nature as not materially to affect any rules of the sea, whose uniformity is essential; and the parties were relegated to their rights and remedies under the State Compensation Law of Texas. The United States Supreme Court gave its sanction to this decision and refused certiorari to the state court thereon.
We ask the consideration of the following additional authorities showing that the first decision by this court rendered in this cause is in accord with the prevailing federal authorities, in that for the Jones Act to be exclusive in its applicability to a tort action, it must affirmatively appear that: (1) The injured employee must have sustained his injury in the court of his employment upon navigable waters of the United States; (this is essential to the applicability of the law, but does not alone determine its applicability); (2) His employment must be maritime; (3) His injury must occur under circumstances which preclude the state laws from providing for recovery, particularly where by contract, expressed or implied, the parties have submitted themselves to the provisions of the state law, as in the instance of elective state compensation laws; and, (4) For the maritime law to be exclusive in its applicability, it must appear that the subject of the suit is not of such local concern that the rules and laws of admiralty would be materially interfered with by the application of the state law.
T. Smith Son, Inc. v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520; The Plymouth, 3 Wall. 20; Atlantic Transport Co. v. Imbrovek, 234 U.S. 52; Southern Pacific Co. v. Jensen, 244 U.S. 205; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149; Washington v. Dawson Co., 264 U.S. 219; Minnie v. Port Huron Terminal Co., 295 U.S. 647; New Amsterdam Casualty Co. v. McManigal, 87 Fed. 2d 332; Miller's Ind. Underwriters v. Braud, 270 U.S. 59, 46 S.Ct. 194, 70 L.Ed. 470; Morrison, Workmen's Compensation and The Maritime Law, 38 Yale L.J. 472; Crowell v. Benson, 285 U.S. 22; In re Spencer Kellogg Sons, 52 F.2d 129; Buren v. Southern Pacific Co., 50 F.2d 407; U.S. v. Bruce Dry Dock Co., 65 F.2d 938; Jeffers v. Foundation Co., 85 F.2d 24.
The only decisions of the United States Supreme Court which we have been able to find down to this date, other than cases which we have herein already discussed, which have all dealt with the question of the applicability of the Federal Seamens Act, are the following:
The Arizona v. Anelech, 298 U.S. 110; Beadle v. Spencer, 298 U.S. 124; Carlin Construction Co. v. Heaney, 299 U.S. 41.
And we now yet contend and insist that under definitions contained in the provisions of Sec. 713, Title 46, U.S.C.A., which provides that "the term `vessel' shall be understood to comprehend every description of vessel navigating on any sea or channel, lake or river, to which the provisions of this chapter may be applicable," since not a vessel within the meaning of the statute for the purpose of determining the rights of Frazie for his alleged tort injury for the reason that the same was not engaged in navigation or in trade or in commerce, or in work having a direct relationship to navigation or commerce, and it was not on any sea or channel or lake or river to which the provisions of admiralty law (being the subject of the chapter referred to in the Act) "may be applicable."
And it is yet our contention and insistence that Frazie was not for the purposes of the act and within its definitions at the time and place where he sustained his alleged tort injury a "seaman," for he was not a person then and there employed or engaged on board a vessel within the meaning and terms of said act and the definition therein contained. He was not injured on navigable waters of the United States. The work being done had no direct relationship to navigation or commerce.
Congress is not authorized to create admiralty cases.
The City of Salem, 37 Fed. 846.
A tort action to be maintained under the provisions of maritime law must be one that was maritime in character.
Imbrovek v. Hamburg American Steam Packet Co., 190 Fed. 229, 193 Fed. 1019, 113 C.C.A. 398; Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1207; Southern Surety Co. v. Crawford, 274 S.W. 280; Fuentes v. Gulf Coast Dredging Co., 54 F.2d 69; Millers Underwriters v. Braud, 270 U.S. 59.
Argued orally by L.A. Whittington, S.B. Laub and W.H. Watkins, Sr., for appellant and by Gerard Brandon, for appellee.
This is the third appearance of this case in this court, and it has also been to the Supreme Court of the United States. Orleans Dredging Co. v. Frazie, 173 Miss. 882, 161 So. 699; Frazie v. Orleans Dredging Co., 296 U.S. 653, 56 S.Ct. 383, 80 L.Ed. 465; Orleans Dredging Co. v. Frazie, Miss., 173 So. 431. The present appeal is before us on a final decree dismissing the amended bill on demurrer, the complainant, appellant here, having declined to plead further.
When the case was originally before us, it was on declaration, subsequent pleadings, and proof. Recovery of damages was sought for an alleged tort under the Seamen's Act, 46 U.S.C.A., sections 688, 713, and the averments of the declaration were that the plaintiff was engaged as a seaman on the dredge boat Cartagena, which, at the time, was at work in and upon the navigable waters of the Mississippi river. And plaintiff, in his response to defendant's notice of special matter, more specifically averred "that the place where the vessel Cartagena was engaged in work at the time of the injury to plaintiff was in what is known as Gile's Cut, which is a channel of the Mississippi River that had been open to navigation many months previously, and which channel is a part of the Mississippi River, a navigable river, and was being navigated by vessels."
When the proof came on to be heard in the original case, there was an attempt to show that the dredge boat, at the time of the alleged tort, was engaged in restoring the navigability of a previously navigable channel. The proof fell short of establishing that fact, and the more serious effort was directed to the point that the dredge boat, as it proceeded, left in its rear, as well as to its sides, a navigable channel, although there was nothing but land in front of it. We were of the opinion that the case, United Dredging Co. v. Lindberg, 5 Cir., 18 F.2d 453, 454, was squarely in point on that contention, and we rested our decision chiefly on that case, particularly as certiorari had been denied in it by the federal Supreme Court. 274 U.S. 759, 47 S.Ct. 769, 71 L.Ed. 1337.
In our original opinion holding that, under the record as then before us, there was no cause of action under the Seamen's Act, we directed that the case be remanded that the plaintiff might have opportunity, if desired to proceed under the Louisiana Workmen's Compensation Act, Act No. 20 of 1914, as amended, there being enough in the record and in the evidence to introduce that subject, and less than one year having intervened between the date of the injury and that of the delivery of our said original opinion; but plaintiff lost valuable time in a futile petition for a writ of certiorari in the federal Supreme Court, and, when he came back to seek relief under the Louisiana Compensation Law, he was met with the defense that he had not sought to bring himself under that act until after the one year allowed by it had expired. We dealt with that matter in Orleans Dredging Co. v. Frazie, 173 So. 431; and we adhere to what was said therein, as qualified or explained in the concluding paragraph of the present opinion.
The larger part of the present briefs and arguments by appellant is directed to the point whether a dredge boat may be a vessel within the Seamen's Act. Appellant seems to have read the opinion in Orleans Dredging Co. v. Frazie, 173 Miss. 882, 161 So. 699, as if the court attached some sort of controlling importance to the fact that the vessel involved was a dredge boat, whereas an examination of the opinion as an entirety discloses that this was merely one among the several factual elements that were taken into consideration, every one as forming a connecting chain of facts which went to make up the complete case as presented upon the entire record.
He has argued also that there has been a shifting of opinion by the federal courts upon the narrow issue whether the location in question and the work being done at the time of the alleged tort was maritime in character. He has contended that the Lindberg Case upon which this court placed its chief reliance in its original opinion has been modified by the federal courts in subsequent opinions. We called for additional briefs upon that inquiry. Upon an examination of all the decisions which have been brought to our attention, we do not find that there has been any substantial departure by the federal courts since the said original opinion by this court.
The later case, Kibadeaux v. Standard Dredging Co., 5 Cir., 81 F.2d 670, which refers to the Lindberg Case and which contains a review of the principles disclosed by the authorities, seems to reaffirm these two propositions: (1) Where a dredge boat is cutting a channel across land which channel is intended to be navigated when finished, this is not maritime work, although as an incident thereof the dredge boat is followed, as it proceeds, by a navigable channel in its rear. (2) Where the dredge boat is deepening a navigable channel, or one which had theretofore been a navigable channel, so as to make it again actually navigable, then this work is maritime in character.
It is manifest from the amended bill of complaint that the channel upon which the dredge boat was at work at the time of this injury was not then actually navigable; that the dredge boat was then and there engaged in cutting a channel across what was then land, the surface of which was entirely above water; wherefore the remaining question available to proof is whether the channel had previously occupied the status of a navigable channel or navigable highway and whether the dredge boat was engaged in restoring its navigability.
In order that a nontidal stream or channel may have the character of navigability, so as to bring it within the admiralty jurisdiction of the nation, and hence within the purview of the Seamen's Act, it must be, or in the past must have been, capable of being used as a national public highway a considerable part of the year; and it is not sufficient that it have or had an adequate volume of water therefor only occasionally as the result of freshets or floods for brief periods of uncertain recurrence and duration. In order that navigation by flood waters or high stages of water shall bring the stream or channel into the character of navigability within the admiralty jurisdiction, these stages of high water must occur with some frequency and at times of reasonable certainty and continue long enough to make its use of dependable commercial value, as a national public highway for that purpose. See the elaborate review of the authorities in Bissel v. Olson, 26 N.D. 60, 66, 143 N.W. 340, and the numerous cases cited in 45 C.J., p. 412, 413, including Smith v. Fonda, 64 Miss. 551, 554, 1 So. 757. Compare Economy Light P. Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847, and Perry v. Haines, 191 U.S. 17, 24 S.Ct. 8, 48 L.Ed. 73.
The declaration in the case when originally before us was sufficient to bring the locus in quo within the character of navigability above described; but, as already mentioned, the proof failed to present a state of facts which measured up to the requirements; and the opinion, as we then drew it, is correct to the best of our judgment upon the record of the proof then before us. We did not deem it necessary to discuss the details of that proof, in view of the well-settled law as to what is required to constitute navigability in nontidal streams and channels. And having now gone to the trouble to restate the law on that subject, we do not deem further discussion of the said proof as necessary at this time.
The amended bill, as presently before us, again states a case within the Seamen's Act and goes more into detail of averment. The ultimate decision is one which must depend, therefore, upon the proof to be made — whether the proof upon a new trial will measure up to the requirements stated in the foregoing paragraphs upon the subject of navigability. We cannot know in advance what additional or more definite proof appellant will make or will be able to make; and, manifestly, that inquiry cannot be settled on demurrer, as has been attempted on the present record. All we can say now, or do say, is that, if the proof upon a retrial goes no further in substantial and material respects than that on the original trial, there will be no case under the Seamen's Act.
The trial court in sustaining the demurrers presently under consideration followed literally the opinion and decision rendered by us on the second appeal, 173 So. 431, and, therefore, the chancellor is not responsible for the error in the record now before us. The bill of complaint then presented a cause of action under the Seamen's Act; and, as the trial court had so held, the decree in so far as it dealt with that question should have been affirmed, with remand. The inadvertence and error in reversing with remand was caused by the course of the argument pursued in this court. That argument did not proceed on the theory that the case was decided on the first appeal on evidence which the court did not consider sufficient to bring the cause of action within the Seamen's Act, but the contention was that the original opinion was erroneous in its context, and it was the latter contention to which the court was responding and which it rejected; and that was all that the court meant to hold or to say so far as the issues under the Seamen's Act are concerned.
Reversed and remanded.