I am of the opinion the amended complaint shows a case which should properly proceed in the state court, and that the judgment of the court below should therefore be reversed.
The employer was engaged in the operation of a planing mill and lumber yard on the banks of the Mobile river, and the employé was engaged in grading or tallying the lumber as it was being unloaded for his employer's mill. The complaint discloses that the parties had placed themselves within the provisions of the Workmen's Compensation Act, and it therefore appears that the contract of employment had in contemplation compensation under said act in the event of injury to the employé. The employé was standing upon a schooner which was moored in Mobile river alongside of a barge which was also moored in the river to the dock at the employer's plant. He was engaged in tallying the lumber then being unloaded when the accident occurred, resulting in his death.
The majority opinion seems to rest exclusively, as I read and understand it, upon the fact that at the time of the injury the employé was upon a schooner in navigable waters. But in cases of this character the locality of the injury is not the sole and exclusive test; the services to be performed must also be of a maritime nature. This was illustrated in Grant-Smith-Porter Co. v. Rohde, 257 U.S. 469, 42 Sup. Ct. 157,66 L. Ed. 321, 25 A.L.R. 1008, which, in principle, in my opinion, controls in the instant case. At the time of the injury Rohde, in the case just cited, was working upon a vessel in navigable waters, but his employment was not of a maritime nature. It was therefore held that the Workmen's Compensation Law of the state of Oregon applied, the court saying:
"The contract for constructing the Ahala was nonmaritime, and although the incompleted structure upon which the accident occurred was lying in navigable waters, neither Rohde's general employment, nor his activities at the time had any direct relation to navigation or commerce. * * * This conclusion accords with Southern Pacific Co. v. Jensen, 244 U.S. 205; Chelentis v. Luckenbach S. S. Co., 247 U.S. 372; Union Fish Co. v. Erickson, 248 U.S. 308; and Knickerbocker Ice Co. v. Stewart, 253 U.S. 149. In each of them the employment or contract was maritime in nature and the rights and liabilities of the parties were prescribed by general rules of maritime law essential to its proper harmony and uniformity. Here the parties contracted with reference to the state statute; their rights and liabilities had no direct relation to navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential."
In Ind. Comm. v. Nordenholt, 259 U.S. 263, 42 Sup. Ct. 473,66 L. Ed. 933, 25 A.L.R. 1013, many of the authorities from the United States Supreme Court discussing this question were reviewed, and it was pointed out wherein the New York courts had mis-applied many of these decisions. Among the cases commented upon is that of Sou. Pac. Co. v. Jensen, supra, upon which much stress is laid in the majority opinion in the instant case, and wherein it is pointed out that the work of a stevedore, in which service Jensen was engaged, was maritime in its nature, his employment a maritime contract, and the injury likewise maritime.
Here the contract is not of a maritime nature; the employé was only engaged in grading and tallying lumber, which may have been done as well upon the docks as upon the schooner, where he happened to be. In the Rohde Case, supra, the court called attention to the fact that the contract of employment for constructing the vessel, the Ahala, was nonmaritime. So, also, in the *Page 610 instant case, the employer was engaged in the business of running a planing mill and lumber yard; certainly a nonmaritime business. Therefore it appears that neither the employment nor the activities of the employé, or those of his employer, have any direct relation to navigation or commerce. He and his employer had contracted with reference to compensation under the Workmen's Compensation Law of the state, and the application of our state law can certainly in no manner materially affect any rules of the sea or interfere with the uniformity of the maritime law.
As previously stated, and as recognized in the majority opinion, the work of grading or tallying this lumber may have been performed as well upon the land as upon the schooner in the navigable waters. Rohde's Case, supra, is decisive to the effect that the mere fact the employé happened to be at the time upon the navigable waters does not make out a case for admiralty jurisdiction.
I respectfully submit there is nothing in this case upon which to rest the admiralty jurisdiction, save alone the locality of the injury, which, as above shown, is insufficient in the absence of services of a maritime nature. I consider the holding of the majority a matter of great importance, and, having become fully persuaded that the state courts have full jurisdiction, I have deemed the question of sufficient interest to briefly state my views.
I respectfully dissent.
SAYRE, J., concurs in the foregoing dissent.