(dissenting). The defendant in error brought this action in the court below against the plaintiff in error (defendant there), to recover damages for injuries sustained while working as a stevedore in unloading, from the steamship Camino, at a dock in Portland harbor, certain structural iron beams. The ship was owned by the Western Steam Navigation Company, “the managing agent” of which was the defendant, Swayne & Hoyt, Inc., and, the record shows, was at the time 'engaged in interstate commerce.
The complaint alleged, among other things, that the unloading of tlie beams was done by means of a double winch which was located upon the deck of the ship, and was operated by an engineer and a foreman by means of “cables, falls, hooks, and slings”; that in unloading- the vessel “said sling and fall were fastened by means of a hook to each end of said structural iron beams, which said sling and fall were fastened or connected with a cable which wound around the drum of said steam winch, and then said beams were raised by means of said steam winch and apparatus from the deck of said steamship' into the air and lowered over the rail of said ship down to and on to a truck on said lock, where said plaintiff and his fellow servants would receive, unloosen, and place said beams upon said trade, and then remove them out of the way of the next load and stow them away upon said dock”; that for the proper unloading of the ship and the proper *592protection of the men working on the dock, it was necessary, and the duty of the defendant, to employ “a hatch tender or signal man to signal from tire men working on the dock to the engineer operating the steam, winch”; that in course of the said work the “plaintiff and his fellow workmen had received from a truck upon said dock one of said iron beams, and said plaintiff, whose duty required him to so do, took hold of said beam, which was unhooked on one end, for the purpose of steadying it, and in order that the same could be successfully released from said hook, cable, and sling, when the foreman of said defendant carelessly and negligently, and in his haste to unload said ship, gave the signal to the engineer to- go ahead before he was notified by the men who were handling the load' On the truck to do so, which the said engineer did without any notice to the plaintiff or his fellow workmen, and said beam was suddenly and unexpectedly raised, and with great force and violence struck plaintiff,” inflicting the injuries for which he sued; that “said injuries were particularly caused by the negligence of defendant in failing to furnish plaintiff a safe place to- work, and in failing to keep same-in a safe condition, and in failing to furnish a system of communication by means of signals at said time and place so that at all times .there might be prompt and efficient communication between the employés working on the dock and tire engineer operating the steam winch on the deck of said ship.”
The issues in the-case came on for trial before a jury, and upon the conclusion of all the evidence the defendant requested tire court to .direct a verdict in its favor, which request was.denied, and a verdict returned for the plaintiff, followed by a judgment for tire amount of the verdict, with costs. ,
But two points are relied upon by the plaintiff in error for a reversal of the judgment, the first being the refusal of the trial court to direct a verdict in its favor j and the second, the action of tire court-in applying to the case the statute of the state of Oregon in respect to tire liability of employers.
The first point so relied upon rests on the contention that as the plaintiff in error was but the managing agent of the owner of the ship, the plaintiff in error was not the- employer of the plaintiff, and that the latter’s cause of action, if any, was against the o'wner of tire ship. In respect to that question the instruction of the court below to tire jury was clear, and to the effect that if Swayne & Hoyt, Inc., was the mere managing agent of the ship, and in such capacity employed the men engaged in the discharge of it, it would not be liable for the damage claimed by the plaintiff, but that the liability, if any, was that of the owner of the ship, and that before Swayne & Hoyt—
“could be held responsible for .an accident occurring on the boat, it must appear that they themselves on their own account were in charge of the boat at that time, operating it and directing the men and the course of procedure, and that through some negligent act of theirs the injury occurred, and unless that appears in this case, then there is no liability against Swayne & Hoyt, whatever liability there may be against other parties.”
The court left to the jury the determination from the evidence of that question of fact; and,- as there was some evidence tending to *593sustain the contention of the plaintiff in that regard, the action of the court refusing to direct a verdict for the defendant cannot be held error.
It is objected that the second point relied upon by the plaintiff in error is not open to consideration, on the ground that no exception was taken to the ruling of the court in respect to the applicability to the ca.se of the Employers’ Liability Act of the state of Oregon. But counsel are mistaken in that regard. The record shows that the defendant requested the court to instruct tire jury, among other things, as follows:
“it is charged in the plaintiff's complaint that the accident which brought about the alleged injuries to the plaintiff arose by the action of the foreman of the defendant, who, it is said, carelessly and negligently, and in Ms haste to unload the ship, gave the signal to the engineer to go ahead before this foreman was notified by the plaintiff, or Ms co-workmen who were handling the load on the truck, to do so, and that the engineer operating the winch on the vessel, without notice to the plaintiff, obeyed the signal of the foreman, in consequence of which plaintiff was injured. I charge the jury that the foreman in question, and the engineer operating the winch on the vessel were fellow servants of the plaintiff, and for any negligence of the foreman in pn'ematurely giving, if he did prematurely give, the signal to the winchman, the plaintiff cannot recover in this action,” which instruction the court “then and there refused, to which refusal the defendant then and there excepted in open court, the exception being allowed, the ground of the exception being that the employers’ liability law of the state of Oregon had no application to the loading or unloading of vessels coining in and out of the city of Portland and engaged in interstate commerce, and that the foreman in question, with the winchman, were, under the law, fellow servants of the plaintiff.”
And the court proceeded to charge the jury to the contrary, and, among other things, as follows:
“The law is that an employer is required to exercise reasonable care to provide his employes with a reasonably safe place in which to work, and Ihe statute of this state provides that all machinery, other than that operated by hand power, shall, whenever necessary for the safety of persons employed in or about the same, or for the safety of the general public, be provided with a system of communication by means of signals so that at all times there may be ‘prompt and efficient communication between employes or other persons and the operator of the motive power. So that if you believe from the testimony that, at the time of the plaintiff’s accident, or the injury received by him, it was necessary for the safety of the persons employed in or about these boats that a system of communication by means of signals should have been provided, so that the winchman could have been advised of the movements of the men who were engaged in discharging and storing the cargo, and that the parties in charge of the boat and who are responsible for this injury failed and neglected to provide such a signal, and that failure was rhe proximate cause of the plaintiff’s injury, then in that event it would be negligence within the moaning of this statute, and would entitle the plaintiff to recover.”
—and, further, that:
“If Swayne & Hoyt were in charge of the boat at the time, not as agents for the owners, but on their own account, - and their employés or those over whom they had charge — the foreman if they had charge of the foreman— through negligence gave a. signal at a time when they should not have given a signal, and on this account the injury occurred, then they would be responsible for it under the Oregon statute, because it makes the foreman in such ease the representative of the master.”
*594The Oregon statute referred to (General Laws of Oregon of 1911, p. 16), provides in its first section, among other things, that:
“All machinery other than that operated by hand power shall, whenever necessary for the safety of persons employed in or about the same or for the safety of the general public, be provided with a system of communication by means of signals, so that at all times there may be prompt and efficient communication between the employes or other persons and the operator of the motive power,” and that the “manager, superintendent, foreman or other person in charge or control of the construction or works or operation, or any part thereof, shall be held to be the agent of the employer in all suits for damages for death or injury suffered by an employé,” and that “in all actions brought to recover from an employer for injuries suffered by an employe the negligence of a fellow servant shall not be a defense where the injury was caused or contributed to by any of the following causes, namely: * * * The neglect of any person engaged as superintendent, manager, fore,man, or other person in charge or control of the works,, plant, machinery or appliances; the incompetence or negligence of any person in charge of, or directing the particular work in which the employs was engaged at the time of the injury or death; * * * 'the act of any fellow servant done in obedience to the rules, instructions or orders given by the employer or any other person who has authority to direct the doing of said act.”
And section 6 of the Oregon statute declares that:
“The contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing the amount of the damage.”
While it is admitted on the part of the defendant in error that the work of a stevedore is of a maritime nature, and that his employment for such work is a maritime contract, it is insisted that where the injury, as in the present case, is received by the stevedore on shore, although caused by negligence originating on the ship, the case is not within the jurisdiction of admiralty. It is sufficient to cite in negation of that contention the doctrine of the recent decision of the Supreme Court in the case of the Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157.
It necessarily results, I think, that the maritime law, and not the statute of Oregon, is the law applicable to tire rights of the plaintiff and the liability of the defendant in the present case.
The judicial power of the United States is, by article 3, § 2, of the Constitution, extended to, among other things, “all cases of admiralty and maritime jurisdiction,” which power, it was held by the Supreme Court in the case of The Moses Taylor, 4 Wall. 411, 429, 18 L. Ed. 397, to be “in some cases unavoidably exclusive of all state authority,' and that in all other cases it may be made so at the election oí Congress”; and in the case of The Lottawanna, 21 Wall. 558, 575, 22 L. Ed. 654, the same court, in speaking of the power so committed to the United States said, among other things:
“One thing, however, is unquestionable, the Constitution must have referred to a system of law ,co-extensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which the Constitution, aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states.”
*595Again, in the case of Butler v. Boston Steamship Co., 130 U. S. 527, 557, 9 Sup. Ct. 612, 619 (32 L. Ed. 1017), the same court said:
“As the Constitution extends the .judicial power oi! the United States to ‘all eases of admiralty and maritime jurisdiction,’ and as this jurisdiction is held to he exclusive, the power of legislation on the same subject must necessarily he hi the national Legislature, and not in the state Legislatures.”
In the subsequent case of Workman v. Mayor, etc., of New York, 179 U. S. 552, 21 Sup. Ct. 212, 45 L. Ed. 314, the first question arising was whether, in the decision of the controversy there, the local law of the city of New York or the maritime law should control; and, secondly, whether, if the case was to' be solely governed by the maritime law, the city was liable. After stating the first proposition more fully, at page 558 of 179 U. S., at page 214 of 21 Sup. Ct., 45 L. Ed. 314, the court proceeded to declare:
“The practical destruction of a uniform maritime law which must arise from this premise is made manifest when it is considered that, if it be true that the xn'inciples of the general maritime law, giving relief for every character of maritime tort where the wrongdoer is subject to the jurisdiction of admiralty courts, can be overthrown by conflicting decisions of state courts, it would follow that there would be no general maritime law for the redress of wrongs, as such law would bo necessarily one thing in one state and one in ¡mother; one thing in one port of the United States and a different thing in some other port. As the power to change state laws or state decisions rests with the state authorities by which such laws are enacted or decisions rendered, it won Id come to pass that the maritime law, affording relief for wrongs done, instead of being general and ever-abiding, would be purely local— would be one thing to-day and another thing to-morrow. That the confusion to result would amount to tile abrogation of a uniform maritime law is at once patent. And the principle by which the maritime law would be thus in, part practically destroyed would besides apply to other subjects specially confided by the Constitution to the federal government. Thus, if the local law may control the maritime law, it must also govern in the decision of cases arising under the patent, copyright, and commerce clauses of the Con-stiiution. it would result that a municipal corporation, in the exercise of administrative powers which the state law determines to be governmental, could, with impunity, violate the patent and copyright laws of the United ¡States or the regulations enacted by Congress under the commerce clause of the Constitution, such as those concerning the enrollment and licensing of vessels. This follows if a corporation must, for a wrong by It done, be allowed to escape all reparation upon the theory that, though ordinarily liable-to sue and be sued, It possessed in the particular matter the freedom from suit which attaches to a sovereign state.”
An analogous question was decided by the Supreme Court January 5, 1915, in the case of South Covington & Cincinnati Street Railway Company v. City of Covington et al., 235 U. S. 537, 35 Sup. Ct. 158, 59 L. Ed. 350, where it was held that certain portions of an ordinance of the city of Covington relating to the traffic over a certain street railway line were void as being in conflict with the exclusive power of the United States over interstate commerce. After referring to certain principles enunciated in the Minnesota Rate Cases, 230 U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511, the court said:
“In the light of the principles settled and declared, the various provisions of this ordinance must be examined. That embodied in sections 1 and 6 makes-it unlawful for the company to permit more than one-third greater in number of the passengers to ride or be transported within its cars over and above tbe *596number for which seats are provided therein, except this provision shall not apply or be enforced on the Fourth of July, Decoration Day or Dabor Day, and by section 6 it is made the duty of the company operating the cars within the city of Covington to run ^.nd operate the same in sufficient numbers at all times to reasonably accommodate the public, Within the limits of the ordinance as to the number of passengers permitted to be carried, and the council is authorized to direct the number of cars to be increased sufficiently to accommodate the public if there is a failure in this respect. To comply with these regulations, the testimony shows, would require about o-ne-half more than the present number of cars operated by the company, and more cars than can be operated in Cincinnati within the present franchise rights and privileges, held by the company, or controlled by it, in that city. Whether, in view of this situation, this regulation would be so unreasonable as to be void, we need not now inquire. These facts, together with the other details of operation of the cars of this company, are to be taken into view in determining the nature of the regulation here attempted, and whether it so directly burdens interstate commerce as to be beyond the power of the state. We think the necessary effect of these regulations is not only to determine the manner of carrying passengers in Covington and the number of cars that are to be run in connection with the business there, but necessarily directs the number of cars to be run in Cincinnati, and the manner of loading them when there, where the traffic is much impeded and other lines of street railway and many hindrances have to be taken into consideration in regulating the traffic. If Covington can regulate these matters, certainly Cincinnati can, and interstate business might be impeded by conflicting and varying regulations in this respect, with which it might be impossible to comply. On one side of the river one set of regulations might be enforced, and on the other side quite a different set, and both seeking to control a practically continuous movement of cars. As was said in Hall v. De Cuir, 95 U. S. 485, 489 [24 L. Ed. 547], ‘commerce cannot flourish in the midst of such embarrassments.’ We need not stop to consider whether Congress has undertaken to regulate such interstate transportation as this, for it is clearly within its power to do so, and absence of federal regulation does not give the power to the state to make rules which so necessarily control the conduct of interstate commerce as do •those just considered.”
In the case of The Chusan, Fed. Cas. No. 2,717, Judge Story said:
“In the exercise of this admiralty and maritime jurisdiction, the courts of the United States are exclusively governed by the legislation of Congress and, in the absence thereof, by the general principles of the maritime law. The states have no right to prescribe the rules by which the courts of the United States shall act, nor the jurisprudence which they shall administer. If any other doctrine were established, it would amount to a complete surrender of the jurisdiction of the courts of the United States to the fluctuating policy and legislation of the states. If the latter have a right to prescribe any rule, they have a right to prescribe all rules to limit,'control, or bar suits in the national courts. Such a doctrine has never been supported, nor has it for a moment been supposed to exist, at least, so far as I have any knowledge, either by any state court, or national court, within the whole union. For myself, I can only say that during the whole of my judicial life, I have never, up to the present hour, heard a single doubt breathed upon the subject.”
It is true that Congress, in vesting in the District Courts exclusive cognizance of all cases of admiralty and maritime jurisdiction, saved to suitors “the right of a common-law remedy, where the common law is competent to give it” (see 711 R. S.; U. S. Comp. St. 1901, p. 577); hut it was distinctly adjudged by the Supreme Court in The Moses Taylor Case, 4 Wall. 431, 18 L. Ed. 397, that the right so saved to suitors “is not a remedy in the common-law courts which is saved, hut a common-law remedy.” In speaking of the same saving clause, *597the same court said, in the case of Steamboat Co. v. Chace, 16 Wall. 552, 534, 21 L. Ed. 369:
"Exemiiu'd carefully, it is evident tliat Congress intended by that provision to -allow the party to seek redress in the admiralty if he saw fit to do so, but hoc to make it compulsory in any case where the common law is competent to sive him a remedy. Properly construed, a party under that provision may in real in the admiralty, if a maritime lien arises, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his common-law remedy in the state courts, or in the Circuit Courts of the United States if he can make proper parties ro give the Circuit Court jurisdiction of his case.”
Tout whether the party whose rights arise under and by virtue of the maritime contract seeks redress in rem in admiralty, or by suit in personam in the same jurisdiction (as the present defendant in error did), the rights, obligations, and liabilities of the respective, parties to the contest must, in my opinion, be measured by the maiitime law; otherwise, the rights, obligations, and liabilities growing out of such maritime contracts are subject to and may be governed by the varying provisions of the state Legislatures, and there would be no force to the decision of tlie Supreme Court in The Moses Taylor Case that the right saved to suitors by section 711, R. S. (U. S. Comp. St. 1901, p. 577), ‘‘is not a remedy in the common-law courts, but a common-law remedy/'' See Schuede v. Zenith S. S. Co. (D. C.) 216 Fed. 566, and cases tli ere cited.
It is undisputed that the. provisions of the Employers’ Liability Act of the state of Oregon, which the court below in effect instructed the jury controlled the present case, imposed greater liability upon the plaintiff iu error than does the maritime law, among other things, in mailing the defendant liable for its failure to have the Camino- provided with “a system of communication by means of signals,” so that at all limes there could be prompt and efficient communication between the operator of the motive power and all other employés.
Jt is my understanding of the admiralty law that it is broad-gauge, and embraces all maritime contracts, maritimes torts, and maritime injuries, and applies to all vessels, engaged in transportation, whether upon inland waters or upon the seas. It applies to ships in commission, whether lying in the'water alongside a wharf or suspended in a dry dock for repairs. The Supreme Court did not consider the steamship Jefferson, involved in the case-reported in 215 U. S. 130, 30 Sup. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907, on “shore” because she was out of the water and in a dry dock, but, on the contrary, that she was, is; that situation, just as much within the jurisdiction of admiralty as she was while lying in the water moored to the wharf. In the case of Leathers v. Blessing, 105 U. S. 626, 26 L. Ed. 1192, an action of tort, the same court held that the jurisdiction in admiralty was not ousted by the fact that when the wrong was done on the vessel by the negligence of the master she had completed her voyage and was secure! v moored at a wharf where her cargo was about to be discharged, saying (105 U. S. 628, 26 L. Ed. 1192):
“The only question raised By the appellants is as to whether the suit was one of admiralty jurisdiction in the District Court. They maintain that juris-die: ion of the case belonged exclusively to a court of common law. Attention *598is directed to the facts that the Circuit Court did not find that the lihelant was an officer, seaman, passenger, or freighter, or that he had any connection with the vessel, or any business upon her or about her, except that when he went on board of her he was expecting a consignment of cotton seed by her, and went on board to ascertain whether it had arrived, and that the vessel had fully completed her voyage and was securely moored at the wharf at the time the accident occurred. It is urged that the case is one of an injury received by a person not connected with the vessel or her navigation, through the carelessness or neglect of another person, and that the fact that the person guilty of negligence was, at the time, in control of a vessel which had been previously engaged in navigating) waters within the jurisdiction of the admiralty courts of the United States cannot give jurisdiction to such courts. Although a suit might have been brought in, a common-law court for the cause of action sued on here, the District Court, sitting in admiralty, had jurisdiction of this suit. The vessel was water-borne in the Mississippi river at the time, laden with an undischarged cargo, having just arrived with it from a voyage. The findings sufficiently show that her cargo was to be discharged at the place where she was moored. Therefore, although the transit of the vessel-was completed, she was still a vessel occupied in the business of navigation at the time. The facts that she was securely moored to the wharf, and had communication with the shore by a gangplank, did not make her a part of the land or deprive her of the character of a water-borne vessel.”
I do not understand it to be questioned that the work of the stevedore in the present case was maritime in character; certainly it cannot be successfully denied. 1 Cyc., p. 833, and note to the case of Baltimore Steam Packet Co., v. Patterson, 106 Fed. 736, 45 C. C. A. 575, 66 L. R. A. 193, and numerous cases there cited. See, also, the decisions of this court in the cases of Pacific Mail S. S. Co. v. Schmidt, 214 Fed. 513, 518, 130 C. C. A. 657; Campbell v. Hackfeld & Co., 125 Fed. 696, 62 C. C. A. 274. Indeed, the action here was brought, as has been seen, against the general agent of the owner of the ship, not against the head stevedore of whom mention is made in the opinion of the court. Nevertheless it is now held by the majority of this court that because, while so engaged in the discharge of the ship, defendant in error was-standing on the wharf, admiralty could have no jurisdiction of his alleged cause of action growing out of his injury, and that the federal court in which the action was brought rightly applied to the rights and liabilities of the respective parties, not the admiralty law, but the conflicting provisions of a state statute.
I respectfully dissent.