Rice
Rice v. Vancouver S. S. Co.
Opinion
Dissenting Opinion
Neterer, J.
(dissenting).
I think the order of dismissal should be afiirmed.
The libelant seeks to recover damages for death, under the Oregon statute. Sections 53.-601 and 5-703, Oregon Code Annotated, are involved:
“51-601. Claims giving rise to liens. — - Every boat or vessel used in navigating the water of this state or constructed in this state shall bo liable and subject to a lien:
“1. For wages due to persons employed, for work done or services rendered on board of such boat or vessel.
“2. For all debts due to persons by virtue of a contract, expressed or implied, with the owners of a boat or vessel, or with the agents, contractors, or subcontractors of such owner, or any of them, or with any person having them employed to construct, repair, or launch such boat or vessel, on account of labor done or materials furnished by mechanics, tradesmen, or others in the building, repairing, fitting, and furnishing, or equipping such boat or vessel, or on account of stores and supplies furnished for the use thereof, or on account of launchways constructed for the launching of such boat or vessel.
“3. For all sums for wharfage, anchor *796 age, or towage of such boat or vessel within this…
Lead Opinion
Wilbur, J.
The decedent was aboard a ship alongside the dock at Westport, Ore. He was engaged in doing the work of a longshoreman aboard the ship, being an employee of Astoria Stevedoring Company. A load of lumber which was being hoisted to put aboard ship fell on the decedent and injured him so severely that he died shortly after being taken ashore. The trial court dismissed the libel on the ground that it had no jurisdiction in admiralty over the tort resulting in the death of the decedent. The trial court followed the decision of Judge Bean in The Kaian Maru (D. C.) 2 F.(2d) 121 , holding that the law of Oregon permitting recovery for death was a death statute, that is, a statute permitting the relatives to recover for injuries they suffer by reason of the death of a decedent, and that under such a statute the injury to them occurred at the time of death and not at the time of the accident, and that, as the death and consequent injury to them had occurred ashore, admiralty had no jurisdiction, whereas, in his opinion, had the death occurred aboard ship or had the statute under which recovery was permitted been a survival statute, that is, a statute wherein the decedent’s right to recover…