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

George W. Graham was drowned when a tug on which he was employed sank in a spillway bay of Bonneville Dam on the Columbia River in Oregon. His administrator brought this suit for damages against the United States under the Tort Claims Act, 28 U.S.C.A. § 1346 (b), 2674.

The theory of the action was that the government is liable under the Employers’ Liability Law of Oregon or, if not, then under the Wrongful Death Act. The district court entered judgment for the government. The court held that the Liability Law is not applicable because (1) that law could not be constitutionally applied under the facts of this case, and (2) if it could be applied the United States is not liable thereunder because it was not responsible for the work being performed by decedent. The court held that the government is not liable under the Oregon Wrongful Death Act because negligence had not-been proved.

On appeal we affirmed. Hess v. United States, 9 Cir., 259 F.2d 285 . With regard to the Liability Law we agreed with the district court that this law could not be constitutionally applied under the established facts. In view of that conclusion we did not reach the question of whether the district court…