Henry L. Hess, Jr., Administrator of the Estate of George William Graham, Deceased v. United States

. , . „ , , , . The sinking of a tug and barge being .... , . . . ,, , f utilized in repairing the spillway deck of Bonneville Dam gave rise to this action. Five of the six men on board the tug and barge lost their lives. The administrator of the estate of one of these men brought this action against the United States, to recover damages for wrongful death. Jurisdiction was asserted under the Tort Claims Act, 28 U.S.C.A. §§ 1346 (b), 2674.

The case was tried without a jury. Plaintiff asked the court to render judgment in his favor under the provisions of the Employers’ Liability Law of Oregon (Liability Law). In the alternative, he sought recovery under the Oregon Wrongful Death Act. The Government’s position was that, since the accident occurred on navigable waters within the territorial limits of Oregon, only the Wrongful Death Act could be applied, and that the United States was not liable thereunder.

The trial court held that the Liability Law did not apply, and that the plaintiff failed to prove a breach of duty which would make the United States liable under the Wrongful Death Act. Judgment was therefore entered for defendant, Plaintiff appeals, challenging the…