United States District Court. On motion to remand. Motion granted on reargument.

Walter S. Fulton and Elmer E. Todd, both of Seattle, Wash., for plaintiff.

B. S. Grosscup, and W. C. Morrow, both of Tacoma, Wash., and W. A. Johnson, of Seattle, Wash., for defendant Pacific S. S. Co. Jones, Riddell & Brackett, of Seattle, Wash., for defendant Schmittling.

CUSHMAN, District Judge. A reargument has been had in this case upon the representation that the court fell into error in holding that a federal question was involved in an action where plaintiff sues, alleging that he was injured on a vessel, the injury resulting from her alleged unseaworthy condition, and that the question was an important one going to the court's jurisdiction. It is contended that the court probably erred, because certain decided cases were not pressed upon the court's attention.

The following reasons influenced the court in reaching its conclusion: Plaintiff's injury was suffered in waters of the state of Washington. Section 1 of the Washington Workmen's Compensation Act provides:

"The common-law system governing the remedy of workmen against employers for injuries received in hazardous work is inconsistent with modern industrial conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost of the employer has reached the workman and that little only at large expense to the public. The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wageworker. The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain refief for workmen, injured in extrahazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided." Laws 1911, pp. 345, 346.

The repeal by the state of the common-law rights and remedies, and the conferring upon the District Court of the Circuit Court jurisdiction by the Judicial Code, open up a vista through which it may appear that a suit upon a tort suffered by one in the service of the ship upon navigable waters, not only arises under the Constitution and laws of the United States, but is now removable to the District Court, for the decisions of a state court as to its own laws are binding upon the federal court, and the state of Washington, in Sandanger v. Carlisle Packing Co., 192 Pac. 1005, has reached the conclusion that, in such a suit, it is not administering a state law, but a United States law-the maritime law.

No one claims that Congress has the power to impose the burden on the state of trying common-law actions based upon rights not recognized

(273 F.)

by the state law. If the body of the admiralty law, adopted by the Constitution, thereby became something else then a law of the United States, then this case does not arise under the Constitution and the laws of the United States; otherwise, it does. There are two sets of laws in the United States: Laws of the United States and state laws. There are no others. This suit is not brought under the law of the state. If not brought under the laws of the United States, what is it brought under?

While the courts have refrained from deciding that such a case was one arising under the Constitution and laws of the United States, it appears to this court that it is hardly less significant that the courts have refrained from saying that it did not so arise. Why should the trial by jury in the District Court of maritime rights be limited to cases of diversity of citizenship? It is understandable why that should. be if the maritime law is a part of the common law of the state; but, if it ever was, it has ceased to be a part of the law of the state of Washington.

Should the state court be burdened with determining rights and obligations growing out of federal law, which the federal courts will not entertain that is, where there is no diversity of citizenship, even though the requisite amount is involved-particularly after the state has determined that these laws are wholly inadequate? There is no express enactment, law, or controlling decision denying the jurisdiction. When resort must be had to construction in order to determine the intent, the reason for ascribing a particular intent becomes important. No reason has been advanced why either the Constitutional Convention or Congress should have intended to treat the maritime law in this matter any different than any other law of the United States.

Granting that there are judicial expressions at variance with what is said herein, the safest guide to a law is to find its purpose, and the surest guide to its purpose is to find the reason for its enactment. The reason for saving the common-law remedy was that the common law was competent to afford to certain suitors relief. When the common law ceases to be competent to afford relief, as the Washington Legislature has declared, the reason ceases, and when the reason ceases, those rules that rest to such a large extent upon judicial decisions, because of the reason that has ceased to exist, are no longer safe guides, and new rules are necessary, even though they are based upon court decisions rather than statutes.

We now have this condition in suits at common law to enforce a maritime right: One litigant has a right to a jury trial in the courts of the United States, that is in case of the requisite diversity of citizenship, and without such diversity he has not. There would be nothing. incongruous about this, if the suits arose under the state law, for it would be the state's duty to furnish the forum to administer its own laws. But, arising under the maritime law, after the repudiation of the law of master and servant, as to compensation for injury to the servant, by the state of Washington, the law would then appear not to be the perfection of logic, for, should the state court in any case decline

the jurisdiction, where there was diversity of citizenship, the party complaining of a maritime tort could sue in the federal court at common law, but would have no right of suit in any court in the absence of diversity of citizenship.

If the suitor has more confidence in the jury than in the admiralty, and if he prefers what he conceives to be an advantage at common law over the more expeditious proceeding in admiralty, and should bring his suit at common law in the state court, why should not the defendant, if he hopes to secure more expeditiously the advantage of that uniformity of rule which the courts have ever declared to be the reason for giving the United States courts jurisdiction in admiralty, remove the cause to the District Court, rather than carry it through the state courts to the Supreme Court of the United States?

In case of injury upon navigable waters while engaged in a maritime service to the ship, an injury caused by its unseaworthiness, the injured person was given concurrent remedies. There is no question but that he might sue in admiralty or in the common-law courts of the state. In the admiralty he would have full compensation for his injuries, and also if he sued at common law; but the common-law court did not borrow from the admiralty the remedy of full compensation. To the contrary, the admiralty borrowed that right from the common law. While the duty of the owner in the admiralty to furnish a seaworthy ship, properly manned and equipped, may, in some respects be narrower than a safe place in which to work and suitable appliances required of the master at common law for the servant's protection (McLanahan v. Universal Ins. Co., 1 Pet. [26 U. S.] 170, at 183 and 184, 7 L. Ed. 98; Olson v. Oregon Coal & Nav. Co., 104 Fed. 574, 44 C. C. A. 51; The Governor Ames, 55 Fed. 327; The Santa Barbara [C. C. A.] 263 Fed. 369; John A. Roebling's Sons Co. of N. Y. v. Erickson [C. C. A.] 261 Fed. 986), yet the reason for both requirements being, in general, the same, the former may be said to fall fairly within the latter. Therefore practically, if not theoretically, what the common-law courts of the state have been applying in these cases, prior to the enactment of the compensation laws, abolishing the commonlaw rights and remedies, has been common-law remedies based upon common-law rights, and what the admiralty has been doing is the adding to the common-law rights of a safe place to work and suitable appliances (which rights it borrowed from the common law), as well as the remedy of full compensation (a remedy which it also borrowed from the common law), the lien upon the offending vessel. The latter was solely the contribution of the maritime law. The borrowed right and borrowed remedy have so long been established as part of the maritime law as to at least, broadly speaking, now form a part of the law of the United States, as Judge Killits says in Schuede v. Zenith S. S. Co. (D. C.) 216 Fed. 566, as much so as though they were covered by the statutes of the United States.

To say that what the state courts have been doing in such cases before the adoption of Compensation Acts was the administration of the maritime law under common-law procedure, such as trial by jury and

(273 F.)

attachment of property, prior to judgment, is to lose sight of the fact that the common law originally furnished the right of a safe place to work and safe appliances with which to work, and also furnished the remedy of full compensation in such cases. It had this established right and this remedy, and they were borrowed from the common law by the admiralty. The common-law courts of the state did not have to borrow them back again under the saving clause. They already had them.

It is true that, where this borrowed right and remedy have so long been a part of the maritime law, they would not be destroyed therein when the state compensation laws wiped out both the right and the remedy at common law; such state action would have no more effect upon the settled maritime law in that respect than would the repeal of the original maritime laws of Oleron and Rhodes. Aside from the relief afforded by the compensation laws, all that is left now to the suitor is the maritime rights and remedies. The saving clause in such statutes is without effect.

The rights and remedies are now purely maritime, although they may have been, in great part, borrowed, as pointed out, from the common. law. The state still has the common-law courts, and those courts, having jurisdiction of persons, are not forbidden, generally speaking, to try the differences between any and all suitors; but, when the state courts try such a case as the present, after the compensation laws have repealed the common-law remedies and rights, they are hearing maritime rights and administering maritime remedies as preserved by the Constitution, laws, and decisions of the United States. The Supreme Court of the state of Washington has apparently reached this conclusion. Sandanger v. Carlisle Packing Co., supra.

If the foregoing conclusion is sound, why is a suit arising out of the maritime law of the United States to be treated any differently than one arising out of any other law of the United States? The jurisdiction of the courts, federal and state, may be concurrent in suits in personam, but the rights and remedies have become purely federal and maritime, save, perhaps, in the matter of procedure.

There would appear to be a more reasonable explanation than that the jurisdiction in admiralty, preserved by the saving clause, was a compromise growing out of a fight between jealous jurisdictions. The ship against which the lien was given by the admiralty, while in the suitor's jurisdiction, might have sailed far away from the jurisdiction of her owners, and the lien afforded by the admiralty be the only practical remedy a suitor would have. While, upon another occasion, the ship departing the jurisdiction where the obligation arose, the jurisdiction might be had in personam against the owner, and again a suit might lie in the state court at common law, and be preferable to the suitor because of the fact that the federal court was at a considerably greater distance from the parties and the witnesses than the state court, and litigating in the former would therefore necessitate greater expense, and possibly delay.

It is true that the rule laid down by the Supreme Court of this state, in construing its Workmen's Compensation Law, as abolishing the

right of action of the injured shore servant, leaves open this commonlaw jurisdiction of the state court for a redress of a seaman injured through a maritime tort. Therefore, where there is diversity of citizenship and the requisite amount involved, the action can be removed to, or brought in, the federal court. As the saving clause of the act simply and only "leaves open" the "common-law jurisdiction" of state courts over torts committed at sea (The Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264), it then follows that, should a state abolish the common-law right of action for a tort upon its waters, there would, in the absence of diversity of citizenship, be no right of action at common law saved to the suitor in the federal court.

The language of Justice Hughes, in The Hamilton, supra, in speaking of it-saying that all the Judiciary Act does is to "leave open the door"-certainly does not imply that there is any obligation on the part of the state to keep the door of the court open for the administration of federal law. The original and subsequent Judiciary Acts provided: "The District Courts shall also have cognizance, concurrent with the courts of the several states."

No such language appears in the Judicial Code. This shows a full realization on the part of Congress that it could not keep open the state courts for the determination of federal rights. The state of Washington has undertaken to administer the maritime law of the United States. Sandanger v. Carlisle Packing Co., 192 Pac. 1005. The suitor has not yet been deprived of a forum for the determination of his maritime rights at common law.

If part of the states should hold, in construing the compensation laws, as the state of Washington has, that the Compensation Act does not apply to tort actions under maritime law between master and servant where the injuries are inflicted upon navigable waters, and still other states should decide, as held in Berton v. Tietjen & Lang Dry Dock Co. (D. C.) 219 Fed. 763, that the compensation laws did apply to certain torts where the injury occurred upon navigable waters, and still others should hold-which is not at all improbable, as it appears to this court-that, the Legislature having condemned both the common-law rights and remedies as inadequate, such action on its part constitutes the declaration of a public policy which renders recognition by its courts of such condemned rights and remedies unworthy, and justifies them in refusing as a matter of comity to administer such condemned and discarded rights and remedies, even though they have been adopted and preserved by the admiralty law-we would then have a checkerboard jurisdiction in the federal courts sitting in the various states; that is, if there is no power in the federal courts, other than the common law of the state to administer remedies (common-law remedies) for torts committed on navigable waters. If this is to be the result, it should give

us pause.

Section 991, Comp. Stats., provides for two classes of cases: Cases where there is diversity of citizenship and those where there is a federal question, in each of which there must be over $3,000 involved to give jurisdiction; and other particular classes of cases arising under