Humboldt Lumber Manufacturers' Ass'n v. Christopherson

McKENNA, Circuit Judge, after slating the facts as above, delivered the opinion of the court, as follows: It is con feuded by appellant that: (1) The evidence does not sustain the finding of the court that the officers of the tug Printer were at fault. (2) There can he no recovery for loss of life, as the disaster occurred on the high seas. (3) If there was liability, it arose while transporting property to a port of the United íátates, and hence excused from responsibility for damages by section 3 of the act of congress of February 13, 1893. (4) That the damages assessed for the deaths of Ghristopherson and Pederson are excessive. They were assessed, respectively, as we have seen, at $7,009 and $5,000. The culpability or nonculpability of the master of the tug depends upon the condition of Humboldt Bar at the time he undertook the towage of the Fidelity, and hence to this fact the testimony of the witnesses was addressed. It is conflicting, but the witnesses, if equally competent, do not appear to be equally disinterested. This and other circumstances determine the preponderance of evidence in favor of the findings of the district court. A review of the evidence we shall not undertake;. To be satisfactory, it would necessarily have to be circumstantial, and hence very long. Besides, it is unnecessary. It was done by the learned judge of the lower court, and its substantial accuracy we have verified by an independent examination. It is not disputed that the bar is changeable, and requires constant observation and care. It is not: disputed that at the time the service was undertaken the tide was ebbing, and that this was a more dangerous condition than though it had been flowing. There is some conflict, in the testimony as to its strength, and some as to the wind and roughness of the sea; hut it was established or conceded that if the sea was breaking in seven or eight fathoms of water it was too rough for towage. Of the immediate actors in the incident those on the Fidelity were all lost. Of those on the tug three testified, — the captain, the matt*, and the steward. The two former aver that the bar was not dangerous, and attribute the accident to an unexpected heavy sea, and the deficiency of ballast in the schooner. The steward, however, testified that the bar that morning (to quote his words) “was rough at times, and at times it wasn’t.” And he further testified that when the passage'of the fear was about to he made he had the following conversation with the captain: “I asked him if he was going in, and he said, ‘Yes.’ — 244 — I told him I thought the bar was rough, and he said for me to go about my business.” And to the question, “Were you frightened?” he answered: “Well, I didn’t like it very much.” In many particulars of seamanship and of the perils of the sea the captain and the steward should not be compared, but to judge of the roughness of a sea seems to be within the skill of any seafaring man. The testimony shows that the witness had two years’ familiarity with the bar in service on tugboats, — surely long enough to instruct any observation' of its favorable or unfavorable states. Besides, the event confirmed his judgment. We might think this was accidental if there was not corroboration of his judgment by the testimony of ^others, undoubtedly skilled witnesses, who explicitly testify that the bar was too rough to cross. We have selected this testimony for comment because it was given by actors in the circumstances, and hence has importance for that reason; but other parts of the testimony as well justify the judgment of the district court that the master of the tug was culpably imprudent. To support its second contention, appellant urges that no liability arose at common law from an act causing the death of another, and that there is no act of congress creating the same. There is a statute of the state of California creating such a liability, and it is conceded that the liability may be enforced in a court of admiralty. In addition to the concession of appellant’s counsel, see the case of The Willamette (decided by this court Sept. 18, 1895) 70 Fed. 874. But it is contended that the liability may be enforced only when the act complained of occurs on inland waters, and it is claimed that the act complained of in this case occurred on the high seas, and hence outside of the dominion of the California statute. By the constitution of the state (article 21) the western boundary line is three English miles from the shore, and by section 33 of the Political Code the sovereignty and jurisdiction of the state extends to this boundary; and by the same code the western line of Humboldt county, in its extent, coincides with the state boundary. Therefore, as far as the latter law is concerned, the place of the disaster which is the subject of this suit was within the territorial limits of the state of California. Is it not so in substance of law, as well as the letter? In Wheat. Int. Law, § 177, the maritime territorial jurisdiction of an independent nation is defined as follows: “The maritime territory of every state extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands, belonging to the same state. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore along the coasts of the state. Within these limits its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation.” And in Kent’s Commentaries it is laid down that: “According to the current of modern authority, the general territorial jurisdiction extends into the sea as far as a cannon shot will reach, and no further, and this is generally calculated to be a marine league. * * *” The jurisdiction of the state of California over the sea is that of an independent nation. U. S. v. Bevans, 3 Wheat. 336; Manchester v. Massachusetts, 139 U. S. 264, 11 Sup. Ct. 559. In the latter case — 245 — the contention was presented which is presented in the case at bar. It arose under a statute of a state prohibiting fishing in Buzzard’s Bay, except as provided in the act. The defendant violated said act. and was prosecuted and convicted. Mr. Justice Blatchford, speaking for the court, stated, among others, the following, as contentions of the defendant: i.:? -s * That the proprietary right of Massachusetts is confined to the body of the comity; that the offense committed by the defendant was committed outside of that territory, in a locality where legislative control did not rest upon title in the soil and waters, but upon rights of sovereignty Inseparably connected with national character, and which were entrusted exclusively to enforcement in admiralty courts; that the commonwealth has no jurisdiction upon the ocean within three miles of the shore; that it co-uld not, by the statute in question, oust the United States of jurisdiction. * * *” And, discussing these contentions, the learned justice said: “The extent of the territorial jurisdiction of Massachusetts over the sea adjacent to its coast is that of an independent nation, and, except so far as any right of control over this territory has been granted to the United States, this control remains with the state.” And further: “Within wliat are generally recognized as the territorial limits of states by the law of nations, a state can define its boundaries on the sea, and the boundaries of its counties.” Henry, in his work “Admiralty Jurisdiction and Procedure” (section 12), states the law as follows: “Sec. 12. But neither the lakes nor the public rivers of the United States are, in a federal sense, highways of the state. A vessel, after leaving a port of a stare on a public river, is on a national highway, subject to state jurisdiction for some limited police purixoses, which are subordinate to the paramount right of navigation, and the navigable rivers aro as much national highways as the high seas are international. The littoral jurisdiction of a state, although extending, for some purposes, beyond low-water mark, is subject to the paramount right of navigation as a highway of the nation, in the same manner as the sea within the three-mile zone from the shore is subject to the right of navigation by foreigners without becoming subject to the local law. Such waters are considered as the common highway of nations, and the jurisdiction of the local authorities exists only for the protection of the coast and its inhabitants. not to subject passing vessels to the local law of the government of the shore.” To sustain this statement the learned author cites the following cases: Reg. v. Keyn, 2 Exch. Div. 63; Collier Co. v. Schurmanns, 1 Johns. & H. 180; The Twee Gebroeders, 3 C. Rob. Adm. 336; The Saxonia, Lush. 410. They are English cases, and citing them makes the meaning of the text doubtful. The text seems to make a distinction between national and state authority. If so, it is disposed of by U. S. v. Bevans and Manchester v. Massachusetts, supra. If it mean to deny authority to both the national and state governments, it is opposed to the same cases, and to Wheaton and Kent, and the authorities they cite, and does not appear to be sustained by the cates quoted to support it, except probably the case of The Raxonia. I say probably, because that case has been interpreted as only deciding the applicability of a particular statute. In The Twee Gebroeders, Sir W. Scott speaks of the sea within three miles of Friedland as “waters belonging to Prussia.” In Collier Co. v. Schur — 246 — manns, it was decided that the limitation upon the liability of a shipowner in a case of a collision under one of the merchant shipping acts, applied to a case of damage done to a foreign ship within three miles of the English coast, though foreign ships are not mentioned in the act. It was said in that case, of the three-mile limit: “It is not questioned that there is a right of interference for defense and revenue purposes, and it is difficult to understand why a country having this kind of territorial jurisdiction over a certain portion of the highroad of nations should not exercise the right of settling the rules of the road in the interests of commerce. An exercise of jurisdiction for such a purpose would be at least as beneficial as for the purpose of defense and revenue.” Reg. v. Keyn occupies about 270 pages of the report; hence it is too long for review, and, besides, was concerned with some questions with which the case at bar is not. It was a criminal case. Keyn was indicted at the central criminal court for manslaughter. He was a foreigner, and in command of a foreign ship passing within three miles off the shore of England, on a voyage to a foreign port; and while within that distance his ship ran into a British ship, and sank her, whereby a passenger on board the latter ship was drowned. The facts of the case were such as to amount to manslaughter by English law. The ultimate question was the jurisdiction of the central criminal court. This depended not only on dominion over the three-mile limit, but upon certain statutes, and on the absence of an enabling enactment. The court was not unanimous on any of the propositions, and the agreement of the majority was only as to the latter; that is, the absence of a statute. The minority of the court was firm in the conviction that the sea within three miles of the coast of England was part of its territory. Lord Chief Justice Oockburn rendered the opinion of the majority, and if it may be said that he accurately opposed the reasoning and conclusion of the minority, he nevertheless based his judgment as well on other grounds, and it was only in the judgment that others of the minority concurred. Lush, J., in his concurring opinion, makes a distinction between the dominion of parliament and the dominion of the common law, and excludes the three-mile limit only from the latter. In concluding, he said: “Therefore, although as between nation and nation these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they, are out of the realm, and any exercise of criminal jurisdiction over a foreign ship in these waters must, in my judgment, be authorized by an act of parliament.” The lord chief justice also conceded the power of parliament, and jurisdiction for certain purposes, including fishing, finding sufficient, or at least not dissenting from the sufficiency of, the reasoning for the latter. But if the jurisdiction be one of legislative power, if it exist in England it must exist in the United States, disregarding now, as not a condition of our inquiry, the difference between control over domestic and control over foreign ships. If it exist in the United States, it is either in the national or in the state governments. In which it is we have already considered, and can only repeat what Justice Blatchford said in Manchester v. Massachusetts, that the jurisdiction of a state over the sea adjacent to its — 247 — coast is that of an mdej>endent nation. If there is a limitation of this jurisdiction, it is in the commerce clause of the constitution of the United Riates, under which congress may assume it; but, until congress does assume it, state legislation is valid. Steamboat Co. v. Chase, 16 Wall. 522; Sherlock v. Alling, 93 U. S. 99; The Willamette, supra. To the jurisdiction of the state, besides the citation from Henry, supra, the appellant opposes the cases of Armstrong v. Beadle, 5 Sawy. 485, Fed. Cas. No. 541; Lord v. Steamship Co., 102 U. S. 541. If the latter ease is an antagonism to Manchester v. Massachusetts, it will have to yield to the latter. But there is no antagonism. Lord v. Steamship Co. is to be interpreted as applying to the ocean beyond the three-mile limit. In Armstrong v. Beadle the facts were that plaintiff and his wife were passengers on a steamer bound from a port of Oregon to Ban Shancisco. On the voyage she struck a rock “near” Point Arena, in the county of Mendocino, the complaint said, and plaintiff and his wife were ordered to get into a surf boat, with which the steamer was provided, and by its negligent handling Ms wife was thrown into the water. The answer admitted the principal facts, but alleged that while said steamship was proceeding on her voyage, and on the high seas, the said steamship was, by the perils and acciden ts of the seas, forced and cast upon a rock. The opinion of the court was on a demurrer to this answer. The exact locality of the disaster did not appear. The complaint put it “near” Point Arena. The answer put it “on the high seas." But there is nothing further to show whether it was inside or outside of the three-mile limit, or that the fact or the effect of such limit was urged upon the court. Nothing, therefore, can be determined from the case than that it adjudges that the statute had no extraterritorial ('fleet. If it extends further than this, it is inconsistent with Manchester v. Massachusetts. Against the validity of the statute may be cited Judge Hopkinson’s charge to the jury in U. S. v. Kessler, Baldw. 15, Fed. Cas. No. 15,528, and for its validity the case of The Ann (decided by Judge Gtory), 1 Gall. 61, Fed. Cas. No. 397. The learned judge said: “All the writers upon public law agree that every nation lias exclusive jurisdiction to the distance oí' a cannon allot, or marine league, over the waters adjacent to its shores; and this doctrine has been recognized by the supremo court of the United States, indeed, such waters are considered as a part of the territory of the sovereign.” The appellant further urges (hat if is exempt from liability by section 3 of the act of congress of February 13, 1893 (27 Stat. 445). It reads as follows: “If the owner of any vessel transporting merchandise or property to or from any port in the United States, shall exercise due diligence to make said vessel seaworthy, and properly manned, equipped and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or bo held responsible for damage or loss resulting from faults or errors in navigation, or in the management of said vessel,” etc. The acts complained of occurred in 1889, and therefore, if this statute was otherwise applicable in the circumstances of this case,— of which we express no opinion, — the statute would have to be given — 248 — a retroactive operation to make it so. It is a well-settled rule-of construction that this is not done except under the compulsion of language so clear and positive as to leave no room for doubt that such was the intention of the legislature. There is no such compulsion in the language of the act relied on, and we may not so construe it. The fourth contention of appellant — that the damages awarded are excessive — needs not much comment. It may be, as counsel urges, quoting Judge Billings in Cheatham v. Bed Biver Line, 56 Fed. 250, that the problem of how long a man’s productive life shall be estimated, and at what sum, is one of the greatest uncertainty. But an estimate must be made, and what better can we do than to take the existence and the promise of the qualities and conditions when the life was destroyed. By this test the damages awarded were not excessive. The judgment of the district court is therefore affirmed.