diction was denied in case of a man who fell from a wharf in attempting to board a vessel, never having reached the vessel. And in Gordon v. Drake 21 jurisdiction was decided not to be in the admiralty where a man tried to jump from a vessel to a wharf. He alighted on the wharf, but was injured in doing so.

In Bain v. Sandusky Transp. Co.,22 seamen who had left their ship were arrested ashore as deserters. They sued in admiralty for a false arrest, but the court held that there was no jurisdiction.

TORTS MAY BE MARINE, THOUGH PRIMAL CAUSE ON LAND

99. The converse of the above proposition is also true that, where the injury is consummate on the ship, ad

miralty has jurisdiction, though its primal cause was on the land.

In Hermann v. Port Blakely Mill Co.,23 a laborer working in the hold of a vessel was injured by a piece of lumber sent down through a chute by a person working on the pier. It was held that admiralty had jurisdiction of such an action.

In the Strabo,24 a workman attempted to leave a ship by a rope on the ship, which was not securely fastened. In consequence, he fell, being partly injured before he struck the dock, but mainly by striking the dock. Judge Thomas, in an opinion reviewing and classifying the authorities, upheld the jurisdiction on the ground that the ladder was on the ship, the man himself was on the ship when he started in his fall, that there was some injury before he struck the

21 193 Mich. 64, 159 N. W. 340.

22 (D. C.) 60 Fed. 912.

§ 99. 23 (D. C.) 69 Fed. 646.

24 (D. C.) 90 Fed. 110; Id., 98 Fed. 998, 39 C. C. A. 375.

ground, and that a mere aggravation of the injury after he struck the ground did not prevent the jurisdiction from attaching. On appeal his decision was affirmed.

The line between these cases and those of the type of the Haxby 25 is a delicate one. As Judge McPherson well said in the Haxby, refinement is unavoidable when we are dealing with questions on the border line between two jurisdictions.

The result may be summed up by the statement that, if a complete cause of action arises from the accident on land, the fact that it is aggravated or the measure of recovery increased on navigable water does not confer jurisdiction on the admiralty. And the converse is true as to causes of acfion originating on a ship.

DETACHED STRUCTURES IN NAVIGABLE
WATERS

100. Detached piers, piles, or structures attached to the bottom, but surrounded by water, are within the jurisdiction.

The principle that wharves, bridges, and piers are parts of the shore applies to those which are attached directly or intermediately through others to the bank or shore line. But piles and structures attached to the bottom and surrounded by water are within navigable waters, and it has long been held that admiralty has jurisdiction of suits for injuries inflicted by them. On principle it ought also to have jurisdiction of suits for injuries received by them, as they can hardly be considered extensions of the shore, but this has been settled only recently.

In Philadelphia & Havre de Grace Steam Towboat Co. v. Philadelphia, W. & B. R. Co.,26 a pile driven in a channel

25 (D. C.) 94 Fed. 1016; (D. C.) 95 Fed. 170.

§ 100.

26 Fed. Cas. No. 11,085; Philadelphia W. & B. R. Co. v.

of a navigable river inflicted injuries upon a tug navigating the river. It was held that this cause of action was cognizable in the admiralty.

27

In ATLEE v. NORTHWESTERN UNION PACKET CO., a pier erected in a navigable stream, and unlawfully obstructing navigation, inflicted injuries upon a barge navigating the river. The court held that jurisdiction attached in such case.

There are many instances of suits for damages caused by sunken anchors or wrecks attached to the bottom.28

On the other hand, the converse of this, that the admiralty has jurisdiction also of suits for injuries received by such structures, has been settled by two recent Supreme Court cases. In the Blackheath 29 jurisdiction was sustained of a suit for injuries inflicted by a ship on a detached lighthouse surrounded by navigable water, or a "bug" lighthouse as it is usually called.

And in the Raithmoor 30 the same principle was applied to the structure in use during the construction of such a bea

con.

In England it has been decided that suits for damage done by ships to oyster grounds under navigable waters are within the jurisdiction, but the decision turns somewhat on the language of their statute.31

Philadelphia & H. de G. Steam Towboat Co., 23 How. 209, 16 L. Ed. 433. See, also, State of Maryland v. Miller, 194 Fed. 775, 114 C. C. A. 495; Evans v. Western Timber & Logging Co. (D. C.) 201 Fed. 461.

27 21 Wall. 389, 22 L. Ed. 619. See, also, Panama R. Co. v. Napier Shipping Co., 166 U. S. 280, 17 Sup. Ct. 572, 41 L. Ed. 1004. Ball v. Berwind (D. C.) 29 Fed. 541;

28 Utopia, [1893] A. C. 492;

Snark, [1900] P. 105.

20 195 U. S. 361, 25 Sup. Ct. 46, 49 L. Ed. 236. 30 241 U. S. 166, 36 Sup. Ct. 514, 60 L. Ed. 937. 31 Swift, [1901] P. D. 168.

This necessarily includes liability for the personal act of the master, or of the mate while acting as master.38

But it should not impose any liability for a single act of violence by an officer out of the line of his duty, or by another seaman at all.39

Duty of Maintenance and Cure

Though the owner is not liable beyond maintenance and cure, where there has been no breach of his personal duties, he is liable also for any failure to properly perform this duty, and there is also a liability in rem.10

The word "cure" in this connection is probably used in the sense of the Latin word from which it is derived; that is, "care." It could not possibly impose the duty of complete restoration to health.

41

This doctrine imposes the duty of sending for a physician if the ship is in reach of one; and if the seaman's condition requires it while the ship is on a voyage, it imposes the duty on her to put into port, if one is reasonably accessible.42

In spite of the fact that the courts constantly use the expression "fellow servant" in discussing these questions, the doctrine had its birth in admiralty antecedent to and independent of the common-law doctrine of fellow service. Its use in these cases only breeds confusion.*

Remedies

43

For a breach of any of these duties of the owner the ship is liable in rem, and the owner is liable in personam. But

38 Gabrielson v. Waydell (C. C.) 67 Fed. 342; Lizzie Burrill (D. C.) 115 Fed. 1015; Memphis & Newport Packet Co. v. Hill, 122 Fed. 246, 58 C. C. A. 610.

39 19 Harvard Law Rev. 439.

40 Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760; Bunker Hill (D. C.) 198 Fed. 587.

(Latin "cura.")

41 Atlantic, Fed. Cas. No. 620. 42 Iroquois, 194 U. S. 240, 24 ernor (D. C.) 230 Fed. 857; Van 43 19 Harvard Law Rev. 441. See, also, an interesting and con

Sup. Ct. 640, 48 L. Ed. 955; Gov-
Der Duyn (D. C.) 251 Fed. 746.

for an assault pure and simple the only remedy is in personam under Supreme Court admiralty rule 16.**

Effect of Recent Legislation on the Original Doctrine

Section 20 of the act of March 4, 1915, for the protection of merchant seamen (commonly known as the La Follette Act) provides:

"In any suit to recover damages for any injury sustained on board vessel or in its service, seamen having command shall not be held to be fellow servants with those under their authority."

1945

Since the doctrine under discussion originates in the admiralty independent of any question of fellow service at common law, the materiality of this provision is not very evident. Yet there are some decisions gravely applying this doctrine, and holding that seamen of mere superior grade of service are not fellow servants. The natural meaning of "seamen having command" would be seamen having command of the ship, not merely those in charge of a number of seamen at work. A legislator familiar with the doctrine of fellow service would use some such term as "seamen of superior grade" in the latter case.

But all these cases arose from injuries due to defective appliances, which is a personal duty of the owner, not involving any question of grade of service or command.""

47

But in Chelentis v. Luckenbach S. S. Co., decided after the last-mentioned cases, the court reiterates the doctrine of the admiralty that a seaman injured by causes not due to the master's personal negligence is limited to wages,

vincing discussion of this phase of the subject by Mr. Frederic Cunningham, of the Boston bar, in 18 Harvard Law Rev. 294.

44 19 Harvard Law Rev. 443; Marion Chilcott (D. C.) 95 Fed. 688; Lizzie Burrill (D. C.) 115 Fed. 1015; Sallie Ion (D. C.) 153 Fed. 659. 45 38 Stat. 1185 (U. S. Comp. St. § 8337a).

46 Colusa, 248 Fed. 21, 160 C. C. A. 161; Baron Napier, 249 Fed: 126, 161 C. C. A. 178; Corrado v. Pedersen (D. C.) 249 Fed. 165.

47 247 U. S. 572, 38 Sup. Ct. 501, 62 L. Ed. 1171. See, also, Hoquiam, 253 Fed. 627, 165 C. C. A. 253.