Opinion
Hearing Granted by Supreme Court July 25, 1927.
Proceeding under the Workmen’s Compensation Act by Sarah Jane Brooke and another, claimants, for the death of James Uttley Brooke, a minor son, opposed by the Morris Pleasure Fishing, Inc., employer, and the London Guarantee & Accident Company, Limited, insurance carrier. To review an award by the Industrial Accident Commission, the insurance carrier brings certiorari. Award annulled. COUNSEL
E. R. Young, H. R. Kelly, and E. L. Williams, all of Los Angeles, for petitioner.
G. C. Faulkner, of San Francisco, for respondent Commission.
OPINION
JOHNSON, Justice pro tem.
This is a proceeding in certiorari to review an award of the Industrial Accident Commission for payment of $150 for the burial expenses of John James Uttley Brooke, an unmarried minor 19 years of age, who was drowned in Santa Monica Bay on April 8, 1926, while in the service of the Morris Pleasure Fishing, Inc. The petitioner was the insurance carrier of the employer; and the question presented is whether the case must be relegated to the exclusive cognizance of a court of admiralty, or may be brought within the purview of the Workmen’s Compensation Act of this state (St. 1913, p. 279, as amended).
On a petition to the Industrial Accident Commission filed by the mother and the stepfather of the deceased, hearings were had on June 10 and September 13, 1926, before the commission, which on October 6th made its findings that Brooke, while employed as a spare skipper, met his death by drowning in an accident occurring in the course of and arising out of his employment; that he was not at the time engaged in maritime employment; and that both he and his employer were subject to the provisions of the Workmen’s Compensation Act. The commission further found that neither the mother nor the stepfather of the deceased was dependent upon him; and, accordingly, the award was limited to the reasonable expenses of burial, which were fixed at $150. Application for a rehearing was filed by the employer and its insurance carrier, which was, however, denied.
The evidence taken at the hearings showed the facts to be as follows: The Morris Pleasure Fishing, Inc., is a corporation which carries on the business of maintaining and operating from Santa Monica Bay a small fleet of fishing vessels, for the accommodation of the public seeking recreation in deep sea fishing. In the fishing season its practice has been to have excursions daily from Santa Monica Bay to the ocean fishing grounds, a distance of three to five miles, with fixed charges both for half-day and full-day trips. For use in this business the company has several vessels, ranging from four to fourteen tons registry, equipped with gas engines and capable of cruising a distance of 500 miles The business has been confined entirely to the maintenance of these pleasure fishing vessels and the transportation of patrons to and fro by water, except that excursionists have also been supplied with bait. As one of the necessary incidents of its business the company employs seamen to navitage its vessels; and before and at the time of the accident which occasioned Brooke’s death, he was in the company’s employ as an apprentice navigator and seaman. In that capacity he made daily trips as required with the company’s vessels, and at times substituted as "spare skipper" for one of the regular skippers. On April 8, 1926, one of the company’s fishing vessels called "W. K.," of about seven tons registry, was moored, with no one aboard, in Santa Monica Bay about three-quarters of a mile to a mile from the pier. A storm having arisen, the vessel broke from her moorings early in the afternoon, and began to drift toward the shore. In an effort to save the vessel from destruction, Captain Morris, as Brooke’s superior officer, had Brooke and another employee, named Gregory, put off from the pier with the captain himself, in a boat about eighteen feet long, with the purpose in mind of boarding the W. K. and returning her to her anchorage. But as they neared the drifting vessel, their boat was capsized by a heavy wave and all three were drowned.
The petitioner here contends that Brooke’s employer was engaged exclusively in a maritime industry; that its contract with Brooke was for maritime services alone; and that Brooke’s life having been lost in such service in navigable waters of the United States, the rights and liabilities of the parties are to be determined by the general maritime law, and hence there was no jurisdiction in the Industrial Accident Commission to conduct any hearing or to grant any award.
The commission does not dispute the fact that the casualty occurred in navigable waters; but it contends that as the business of the employer was a pleasure business, there was not a maritime contract touching rights and duties pertaining to commerce or navigation in a way to invoke the rules of maritime law and exclude the case from juridical competency of the state tribunals, and that the matter is one merely of local concern. In this connection it is argued that federal jurisdiction is not broadly conferred by reason of the navigability of waters, but is limited to a regulation of interstate and foreign commerce, in consequence of which admiralty takes cognizance only of those maritime controversies which have a commercial nexus, and that the exercise of its powers is conditioned upon the synthesis of navigable ships, engagement in commerce, and the law of the sea.
It is not essential, however, that for the purpose of admiralty jurisdiction a vessel should be in commercial service. In Reppert v. Robinson, 20 Fed. Cas. No. 11,703, it was said by Judge Taney:
"The manner in which the vessel is actually employed cannot affect the question of jurisdiction. It depends upon her character; *** and it did not rest with the owner to confer or take away the admiralty jurisdiction, at his pleasure, by the mode or trade in which he afterwards employed her."
And in The General Cass, 1 Brown Adm. 334, 10 Fed. Cas. No. 5,307, the rule is thus stated:
"The true criterion by which to determine whether any water craft, or vessel, is subject to admiralty jurisdiction, is the business or employment for which it is intended, or is susceptible of being used, or in which it is actually engaged, rather than its size, form, capacity, or means of propulsion."
The fishing vessels of the Morris Pleasure Fishing, Inc., were capable of going out to deep waters of the Pacific ocean, and their equipment was sufficient for a cruise of as much as 500 miles on occasions. They were therefore, vessels within the definition given in section 3 of the United States Revised Statutes (U. S. Comp. St. § 3), which reads:
"The word ‘vessel’ includes every description of water craft or other artificial contrivance used, or capable of being used, as a means of transportation on water."
This statutory definition is construed in Charles Barnes Co. v. One Dredge Boat (D. C.) 169 F. 895, 896, to include "a navigable structure capable of being used for transportation whether intended to be or actually used for that purpose." In the case of these fishing boats, there was in the season a regular service, and each voyage had a place of origin and a place of destination, though the termini may not have been geographically constant. Since the ships did actually convey passengers to and fro between the anchorage in Santa Monica Bay and the deep sea fishing banks, they were not only capable of use, but were in real use, as vehicles of nautical transportation; and while performing their service to patrons they were in fact engaged in commerce upon navigable waters. For the transportation of persons, even on short excursions, is commerce. The City of Pittsburg (D. C.) 45 F. 699, 702; County of Mobile v. Kimball, 102 U.S. 695, 702, 26 L.Ed. 238.
It is true, the vessels did not engage in the carriage of goods or passengers between fixed ports, but their use for purposes of recreation, sport, or pleasure did not detract from the character of the craft. In the case of The W. F. Brown (D. C.) 46 F. 290, a former ferry boat, propelling a floating circus from place to place on the Mississippi river for exhibition purposes, was held to be in maritime service. In like manner, a dismantled steamboat converted into a pleasure barge, without independent means of propulsion, and used, when towed, for picnic and excursion parties, was pronounced in The City of Pittsburg (D. C.) 45 F. 699, to be a vessel subject to the maritime law. Again, in Reinhardt v. Newport Flying Service Corporation, 232 N.Y. 115, 133 N.E. 371, 18 A. L. R. 1324, a hydroaeroplane, though not utilized commercially, was declared, when in the water, as a seaplane, to be stamped by location and function as a means of water transportation, notwithstanding that while in the air it would possess no such character. And in The Public Bath No. 13 (D. C.) 61 F. 692, where a structure built on floats not permanently moored, and used as a transportable municipal bathhouse, had been swept adrift in a storm, Judge Brown, who was exceptionally well versed in admiralty law, in awarding salvage for the rescue of the contrivance, declared that use in trade and commerce was not essential to salvage, and remarked that if that were material there could be no salvage allowed upon yachts and other water craft for pleasure, which, he said, would be absurd.
It is thus not the use to which a craft is being put in navigable waters that fixes its status, but the use to which it is capable of being put; and there can be no doubt that the vessels owned by Brooke’s employer were of a character and in a service rendering them amenable to the processes of admiralty.
In the present case, there is no charge of any delictual omission or commission. The death was due to a casualty occurring in navigable waters, and the accident, which was due to a peril of the sea, was one arising out of and in the course of Brooke’s employment. The award of the commission is thus not predicated on any tort, but is based on the theory that the indemnification provided by the local statute became a legal incident of the relationship created by the contract of employment. The real test of jurisdiction, however, must be found in the nature of the employment itself. If the deceased met his death while performing maritime service under a maritime contract, then, according to the rule promulgated by the United States Supreme Court, neither his contract nor the rights and liabilities growing out of it could be affected by any local statute of indemnification for injury or death. To ascertain the character of the contract we must look to its subject-matter and determine the nature and class of service which Brooke was required to render. State Ind. Com. v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933, 25 A. L. R. 1013.
A maritime contract for personal service must relate to the reparation or betterment of a vessel in aid of navigation, or to an employment directly connected with the propulsion or navigation of a ship capable of use in commerce, or tending to enable the ship to discharge its maritime duty. Gurney v. Crockett, 11 Fed. Cas. No. 5,874. The services which Brooke was employed to perform were not those of a landsman. He was a spare skipper and was generally employed aboard ship in operative navigation, his labor contributing to the accomplishment of the ship’s voyage. A vessel and its crew are considered a unit, whatever may be the stations of the respective members; and under Brooke’s general employment he was to be classed as a seaman or mariner. On the fatal occasion he was called by his employer to assist in a maritime exigency, and to lend aid in preserving one of his employer’s navigable vessels from a marine peril. He thus went to his death in navigable waters in the performance of a service peculiarly maritime, and the casualty was incontestably a maritime accident occurring in the performance of duty. The finding of the commission that Brooke was not at the time engaged in maritime employment is contrary to the evidence; and we thus face the question whether, under the facts of the case, the local law of California may have accorded to it primacy over the law of the sea.
The rule by which we must be guided has been enunicated by the United States Supreme Court in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. Though in that case there was vigorous dissent on the part of some members of the court, and the decision has not, in general, had a hospitable reception, yet, through reiteration in subsequent cases, the principle of the Jensen Case has been so firmly established that it must serve as the norm for resolving jurisdictional conflicts between courts of admiralty and tribunals deriving their powers under the compensation laws of the states. Under the doctrine promulgated by the august court whose arbitrament is final, when one employed in work at sea under a maritime contract directly affecting navigation or commerce receives a maritime injury, or suffers death through a maritime casualty, the ensuing rights and liabilities are dependent, under the Constitution, upon the general principles of maritime law, operating uniformly throughout the broad expanse of the nation by virtue of the grant to the federal courts of "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction." Hence, any local legislation which would be destructive of that uniformity is, to the extent of the conflict, unconstitutional, since it must tend to hamper and impede freedom of navigation between the states and with foreign countries. The central thought of the decision is thus expressed:
"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 general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations. *** If New York can subject foreign ships coming into her ports to such obligations as those imposed by her compensation statute, other states may do likewise. The necessary consequence would be destruction of the very uniformity in respect to maritime matters which the Constitution was designed to establish; and freedom of navigation between the states and with foreign countries would be seriously hampered and impeded."
So in the Jensen Case the New York Compensation Act (Consol. Laws, c. 67) was held unavailable to the dependents of an employee killed by injury received aboard ship while performing the work of a stevedore in unloading cargo. The same rule was applied in Chelentis v. Luckenbach Steamship Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171, where a fireman on board a steamship, while performing duties on deck during a storm, received injuries necessitating amputation of his leg. Again, in Robins Drydock & Repair Co. v. Dahl, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372, a workman making repairs for the betterment of a vessel lying in navigable waters was precipitated into the hold by the breaking of a defective scaffold, and brought suit in the state court of New York to recover damages for injuries sustained by reason of his employer’s negligence. It was held that since the work directly related to navigation and commerce, the rights and liabilities of the parties depended on general maritime law, and could not be altered or impaired by a state statute prescribing the duty of the employer relative to providing scaffolding such as to give proper protection to workmen. Accordingly an instruction that the jury might consider the local law in determining whether or not the employer was negligent was pronounced erroneous, and the judgment in favor of the employee was reversed.
In Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834, 11 A. L. R. 1145, a bargeman, while doing work of a maritime nature, fell into the Hudson river and was drowned. This case presented for consideration the amendment of October 6, 1917, to the Judicial Code (U. S. Comp. St. § § 991, 1233), attempting to make compensation statutes applicable to maritime injuries. But the court, holding such attempt to be ineffectual and reaffirming the rule of the Jensen Case as to the dominance of the general maritime law, said (p. 164 [40 S.Ct. 441]):
"Considering the fundamental purpose in view and the definite end for which such rules were accepted, we must conclude that in their characteristic features and essential international and interstate relations, the latter may not be repealed, amended or changed except by legislation which embodies both the will and deliberate judgment of Congress. The subject was intrusted to it to be dealt with according to its discretion-not for delegation to others. To say that because Congress could have enacted a compensation act applicable to maritime injuries, it could authorize the states to do so as they might desire, is false reasoning. Moreover, such an authorization would inevitably destroy the harmony and uniformity which the Constitution not only contemplated but actually established-it would defeat the very purpose of the grant."
The rules so declared applies not only to cases of personal injury suffered in a maritime employment directly affecting navigation or commerce, but also to cases arising out of a breach of a maritime contract. In Union Fish Co. v. Erickson, 248 U.S. 308, 39 S.Ct. 112, 63 L.Ed. 261, there was an oral contract made with Erickson in California to proceed to Alaska, and after arrival there to serve for a year as master of a vessel at an agreed compensation. He was discharged, however, before the expiration of the term of his employment, and thereupon filed in admiralty a libel in rem for damages for breach of his contract. One of the defenses was that the contract, being oral, was invalid, under section 1624 of the Civil Code of California, the state in which the contract was made. In this case, as in the Jensen Case, the employment was held to have been in contemplation of the recognized principles of admiralty law, which no state law can be permitted to infringe or defeat. Accordingly, the defense based on the statute of frauds of California was declared to be untenable.
The rationale of these decisions being founded on the necessity of preserving unimpaired the harmony and uniformity of the characteristic features of maritime law, some mitigation of the rigor of the rule has been deemed permissible, in a limited class of cases, where the matter is one of mere local concern and the enforcement of the local enactments will work no material prejudice to maritime rules in general. A broad line of demarcation is thus drawn between rights and liabilities existing under employments having direct relation to navigation and commerce, and those arising under contracts of a nonmaritime character. In Grant Smith-Porter Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A. L. R. 1008, a carpenter was injured while engaged in work on an uncompleted vessel lying in navigable waters; and both employer and employee having treated the Compensation Law of Oregon as governing their relations, and the contract being nonmaritime, it was deemed that no prejudice to the general maritime law would result by letting the rights and liabilities of the parties be adjudged in accordance with the local statute.
Not only is there this well-defined distinction between cases arising under maritime contracts and those in which the contracts are nonmaritime, but even where the contracts are maritime, cases in which injuries occur on land may have different treatment from those in which the injuries are suffered at sea. Thus in State Ind. Com. v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933, 25 A. L. R. 1013, a longshoreman was mortally injured while working on the deck and aiding in the discharge of a cargo of cement from a vessel lying alongside. The court there said (page 272 [42 S.Ct. 474]):
"When an employee, working on board a vessel in navigable waters, sustains personal injuries, there, and seeks damages from the employer, the applicable legal principles are very different from those which would control if he had been injured on land while unloading the vessel. In the former situation the liability of employer must be determined under the maritime law; in the latter, no general maritime rule prescribes the liability, and the local law has always been applied. The liability of the employer for damages on account of injuries received on shipboard by an employee under a maritime contract is matter within the admiralty jurisdiction; but not so when the accident occurs on land."
After reviewing the Jensen Case and others already cited, the court in conclusion expressed itself as follows (page 276 [42 S.Ct. 475]):
"The stevedore’s contract of employment did not contemplate any dominant federal rule concerning the master’s liability for personal injuries received on land. In Jensen’s Case, rights and liabilities were definitely fixed by maritime rules, whose uniformity was essential. With these the local law came into conflict. Here no such antagonism exists. There is no pertinent federal statute; and application of the local law will not work material prejudice to any characteristic feature of the general maritime law."
Another instance of the application of the local law is afforded when death occurs in consequence of a maritime tort committed within the territorial limits of a state where a statute affords a right of action for damages. A case of this character is exemplifled in Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210. In that case a stevedore was killed while at work in the hold of a vessel discharging cargo in San Francisco Bay. A suit in personam, based on allegations of negligence, was instituted in admiralty by the heirs of the deceased; but, the suit having been begun more than one year after the accident, the question arose whether the state statute of limitations could be interposed as a bar. It was held that, inasmuch as the alleged tort had been committed on navigable waters, admiralty could entertain jurisdiction, but nevertheless the right of action for a wrong committed within the territorial limits of the state was so far local in character as to be brought within the purview of the state statute without prejudice to the rule of uniformity, and hence the right to maintain the suit was subject to the bar of the local statute. The view that, in a suit in admiralty to recover damages for death due to a maritime tort committed on navigable waters of a state, the rules of maritime law may be supplemented by the local death statute is reaffirmed in Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756.
Still another case of local concern is exhibited in Miller’s Indemnity Underwriters v. Braud, 270 U.S. 59, 46 S.Ct. 194, 70 L.Ed. 470, in which, under the name of Miller’s Indemnity Underwriters v. Boudreaux, there had previously been a decision by the Supreme Court of Texas, reported in 261 S.W. 137. There a diver employed by a shipbuilding company submerged himself from a small floating barge or pontoon at anchor in a navigable river, 35 feet from the shore, to saw off timbers of an abandoned set of ways once used for launching ships and which had become an obstruction to navigation. The Texas court states that he was not engaged in work upon or connected with the barge, and could not be considered a seaman. While he was at work on the submarine timbers, his air supply was in some way cut off and he was suffocated. Though the death occurred through a maritime tort, yet the work of this diver was not so directly connected with navigation and commerce as to fall exclusively within maritime jurisdiction, and since the state statute of Texas prescribed the only remedy that could be had, it was held that its exclusive feature superseded the right to resort to admiralty which would otherwise have existed.
An instructive contrast with this decision is furnished by a case possessing certain distinguishing features, which had previously arisen in New York-De Gaetano v. Merritt & Chapman Dock & Wrecking Co., 203 A.D. 259, 196 N.Y.S. 573. In this case the diver was one of the regular crew of a vessel engaged at the time in laying a submarine cable, and was at work on the sea floor in the very service in which the vessel was being employed. He was, therefore, a seaman attached to the vessel, and engaged at work intimately connected with its operation. Upon that ground the New York court held that the state Compensation Law was not applicable.
The law as proclaimed in the cases cited has been applied, with regard paid to its distinctions, by the appellate courts of this state in several cases which have engaged their attention. The first case decided by our Supreme Court after the decision in the Jensen Case was Tallac Co. v. Pillsbury, 176 Cal. 236, 168 P. 17, where a mate, hired in San Francisco for a voyage to British Columbia, was injured on board the plaintiff’s steamer while loading cargo in the port of New Westminster. Upon the return of the ship to San Francisco, the Industrial Accident Commission, on application of the injured seaman, made an award in his favor under the Workmen’s Compensation Act, but upon certiorari the award was annulled upon the ground that the commission was wholly without jurisdiction.
In Sudden & Christensen v. Industrial Acc. Com., 182 Cal. 437, 188 P. 803, the court was called upon to review an award of death benefits to the dependents of a stevedore, killed while working on the deck of a lumber vessel discharging cargo at her dock. Here again the court, following the Jensen Case, declared that the award of the commission was an invasion of the exclusive jurisdiction of admiralty.
In Alaska Packers Ass’n v. Industrial Acc. Com., 191 Cal. 763, 218 P. 561, a seaman was injured while working as a rigger on board a bark at her dock in the Oakland estuary, where she was being made ready for her next voyage. Quoting pertinent portions of the opinions in State Ind. Com. v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933, 25 A. L. R. 1013, and Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756, the court denied jurisdiction to the Industrial Accident Commission and annulled its award.
A like conclusion was reached in Zurich General Accident & L. I. Co. v. Industrial Acc. Com., 191 Cal. 770, 218 P. 563, which in its circumstances is not dissimilar to the case at bar. There an award had been made to the dependents of a deck hand employed on a dredger at Newport harbor, who was drowned in attempting to go ashore in a motor launch upon an errand connected with his employment. After a survey of the authorities, the court held that the employment was so directly connected with navigation and commerce as to require the application of the rule of the Jensen Case in the interest of uniformity, and again the award of the commission was annulled.
James Rolph Co. v. Industrial Acc. Com., 192 Cal. 398, 220 P. 669 (affirmed 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646), is another case in which the death of a stevedore occurred by reason of injuries received while working on a vessel discharging cargo at her dock. The court emphasized the distinction made in State Ind. Com. v. Nordenholt Corporation between work aboard ship and work ashore, and held that the commission acted in excess of its jurisdiction, and hence its award could not be sustained.
In Beyerle v. Industrial Acc. Com. (Cal.App.) 241 P. 894, injury was suffered in the waters of San Diego Bay by an employee of a lumber company, whose employment required him to aid not only in the operation of a motor boat used in towing, but also in work on rafts of logs lying at anchor. In this case the Industrial Accident Commission had denied compensation, and upon certiorari the order was affirmed upon the ground that the injury having occurred in navigable waters and in a maritime employment, the case was within the exclusive jurisdiction of admiralty.
Thus whenever a case has been presented in which injury has been accidentally suffered in navigable waters or on board a completed ship by one engaged in maritime employment directly affecting navigation or commerce, our appellate courts have consistently maintained the exclusiveness of the admiralty jurisdiction. On the other hand, certain cases have arisen in which the circumstances have been such as to bring the cases within an exception to the general rule. In Los Angeles Shipbuilding & Dry Dock Co. v. Industrial Acc. Com., 57 Cal.App. 352, 207 P. 416, a marine machinist was injured while installing machinery in a vessel which had been launched, but was still under construction. The vessel being uncompleted, the employment was held to be of a nonmaritime character, as in Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A. L. R. 1008; and the injury was therefore adjudged compensable under the state law.
In City of Oakland v. Industrial Acc. Com., 198 Cal. 273, 244 P. 353, a civil service employee of the municipality was serving as a deck hand on a scow used as a tender to a municipal dredger operated by the city in deepening the channel of the Oakland estuary. The scow was tied to the wharf at the time, waiting to be towed to some point in the channel, and the employee was injured while cutting wood for a boiler on board. The Supreme Court held that there was nothing in the facts of this case indicating that either the general employment in the civil service, or the activities of the employee at the time of the injury had any direct relation to navigation or commerce; and hence the matter was one of mere local concern, wherein the maritime rules might properly yield to state regulations. The award of the commission was therefore affirmed.
The latest case from our Supreme Court is Alaska Packers Ass’n v. Industrial Acc. Com., 253 P. 926. In this case, an employee named Peterson, who had entered into a contract in San Francisco to render services as a seaman and fisherman for the fishing season in Alaska, was injured at the close of the season in work incident to the storage of fishing boats for the winter. He and a fellow employee had temporarily left their boat at anchor near the beach, and on returning found that because of the low tide the boat had become stranded in the mud and sand, though for the most part still in water. Standing on the bank, Peterson attempted with the aid of others to lift the boat sufficiently to float it, but in doing so suffered injury to his back and hip. The Industrial Accident Commission awarded compensation; and in considering the question of jurisdiction the Supreme Court, while pronouncing the contract to be of a maritime nature, laid stress on the fact that the injury occurred while Peterson was standing on the beach, and took the view that his activity in pushing and lifting the boat was essentially land labor, and not maritime in character. The case was therefore placed in the category of those involving injuries sustained on land by dock and port employees working under maritime contracts, which may be governed by the local law without prejudice to the characteristic features of admiralty.
It can hardly be said that the body of judicial decisions is sufficiently diversified as yet to permit any broad generalization definitive of the class called cases of local concern. The law of the subject is still in a formative stage, and intervening between the dominant maritime class and the territorial class is a twilight zone which will doubtless narrow, little by little, as the marginal lines become more sharply delimited under the process of judicial paring. At present we may, however, make certain general deductions from the decisions of authoritative rank.
When a maritime injury occurs in navigable waters to one engaged in distinctive maritime work under a contract directly affecting navigation or commerce, the necessity of preserving the freedom of interstate and international navigation and commerce commits the case to the exclusive jurisdiction of admiralty. Under such circumstances the maritime jurisdiction is established by the conjunction of the locus of the accident and the nature of the employment. When, however, such concurrence is wanting, the rule of uniformity may be relaxed, where the circumstances permit relief to be advantageously afforded by the local law without conflict with the tribunals of the sea. And particularly is this course allowable when the work, though performed on navigable waters, is under a nonmaritime contract; and likewise when, though the employment is maritime, the locus of the accident is so related to the territorial jurisdiction that antagonism will not be bred by according paramountcy to the local law rather than to the general maritime law as administered in admiralty.
In the present case there does exist the concurrence of maritime locus and maritime work under a maritime contract, which, in the interest of uniformity, renders the state Compensation Act inoperative. Brooke, under his employment as a seaman attached to navigable vessels, lost his life in navigable waters while engaged in an effort to save one of his employer’s vessels from a peril of the sea. His contract of employment as a mariner contemplated submission to the dominant federal rule in all such perilous undertakings; and whenever under such circumstances casualties of that character occur, the attendant rights and liabilities are to be determined by the same general law, whether the place of the fatality is in the Bay of Santa Monica, or of San Francisco, or New York, or in the Gulf of Mexico, or in midocean. The controlling principle is aptly illustrated in the rather unique case of Reinhardt v. Newport Flying Service Corp., 232 N.Y. 115, 133 N.E. 371, 18 A. L. R. 1324. There a hydroaeroplane, while moored in the navigable waters of Gravesend Bay, dragged its anchor, and was drifting toward the beach in danger of being wrecked. The plaintiff, who was employed in the care and management of the craft, waded into the water to turn the plane about, and was injured by the propeller. Compensation was awarded him by the New York Industrial Accident Commission; but the Court of Appeals, holding both the employment and the injury to be maritime, asserted the supremacy of the general maritime law, and, reversing the award, dismissed the claim.
A similar disposition must be made of the case at bar, which, possessing no affinity with cases of mere local concern, must take its place in the realm over which admiralty reigns supreme.
The award is annulled.
We concur: WORKS, P. J.; THOMPSON, J.