McCoy v. Shaw, 277 U.S. 302 (1928)
Case details
Citation
277 U.S. 302
Full caption
McCOY v. SHAW, STATE AUDITOR, et al .
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
May 21, 1928
McCOY v. SHAW, STATE AUDITOR, et al .
CERTIORARI TO THE SUPREME COURT OF OKLAHOMA.
No. 403. Submitted April 9, 1928.—Decided May 21, 1928.
A suit to enjoin collection of a tax as violative of treaties between the United States and the Chickasaw Indians and of certain Acts of Congress, was dismissed by the state court upon the ground that there was a plain, adequate and exclusive remedy at law by paying the tax under protest and suing for its recovery. Held that this Court had no jurisdiction to review, as the judgment was put upon an independent, non-federal ground, adequate to sustain it. P. 303. Certiorari to 124 Okla. 256, dismissed.
Certiorari , 275 U. S. 515, to a judgment of the Supreme Court of Oklahoma, dismissing a suit to enjoin collection of taxes.
Messrs. Robert M. Rainey, Streeter B. Flynn, Calvin Jones and Jay W. Whitney were on the brief for petitioner.
Messrs. Edwin Dabney, Attorney General of Oklahoma, and V. P. Crowe, Assistant Attorney General, were on the brief for respondents.
Mr . Justi ce Sanford delivered the opinion of the Court.
McCoy, the petitioner, a Chickasaw Indian of one-fourth blood, brought this suit in equity in a state court p. 303of Oklahoma to enjoin the collection of a gross production tax on his one-eighth royalty interest in the oil produced under a lease of lands patented to him as his homestead and surplus allotments from which all restrictions on alienation and incumbrance had been removed—claiming that this tax on his royalty share in the oil was in violation of the treaties between the United States and the Chickasaw Indians and the Acts of Congress relating thereto. The court dismissed the suit on motion, for want of equity; and this was affirmed by the Supreme Court of Oklahoma, without consideration of the federal question, on the ground that under §§ 9971 and 9973 of the Compiled Oklahoma Statutes, 1921, the petitioner had a plain, adequate and exclusive remedy at law by paying the tax under protest and suing for its recovery. 124 Okla. 256.
It is settled law that a judgment of a state court which is put upon a non-federal ground, independent of the federal question involved and broad enough to sustain the judgment, cannot be reviewed by this Court, unless the non-federal ground is so plainly unfounded that it may be regarded as essentially arbitrary or a mere device to prevent the review of a decision upon the federal question. Leathe v. Thomas, 207 U. S. 93, 99; Vandalia Railroad v. South Bend, 207 U. S. 359, 367; Enterprise Irrig. Dist. v. Canal Co., 243 U. S. 157, 164; Ward v. Love County, 253 U. S. 17, 22; and cases therein cited.
Here the non-federal ground upon which the Oklahoma court based its decision—namely, that under the Oklahoma statutes the petitioner had a plain, adequate and exclusive remedy at law—was based on its earlier decision in Black v. Geissler, 58 Okla. 335. It is in harmony with the decisions of this Court relating to similar statutes of other States. Tennessee v. Sneed, 96 U. S. 69, 75; Shelton v. Platt, 139 U. S. 591, 595; Indiana Mfg.
Syllabus. 277 U. S.
Co. v. Koehne, 188 U. S. 681, 686; Raymond v. Chicago Traction Co., 207 U. S. 20, 39; Singer Sewing Mach. Co. v. Benedict, 229 U. S. 481, 487; Union Pac. R. R. Co. v. Weld County, 247 U. S. 282, 285. And no intent to evade the federal question is indicated.
We are without authority to determine thg federal right claimed by the petitioner. And the writ of certiorari is
Dismissed for want of jurisdiction.
SOUTHERN PACIFIC COMPANY v. HAGLUND, ADMINISTRATRIX, et al .
SAME v. MOORE SHIPBUILDING COMPANY et al .
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
Nos. 472, 473. Submitted April 13, 1928.—¡Decided May 21, 1928j
While a steamship, without power or lookout, was being held “ dead ” across a channel by a tug, leaving, however, ample space for navigation past her stern, a ferryboat, approaching the opening with its view of the channel beyond obstructed by the steamer, blew a single blast of her whistle, indicating her intention to pass in the rear of the steamer, and having received an acceptance by a like blast from the tug, continued at full speed until within the opening, when, perceiving another vessel approaching her, though not dangerously near, she began prematurely her movement to pass her and struck and injured the steamer. Held:
1
The collision was due solely to the negligence of the ferryboat. P. 309.
2
The signal of the tug was merely its assent to the proposed passing in the rear of the steamer. P. 310.
3
The tug was not at fault in accepting the passing signal and in not sounding a warning instead, though aware of the approach of the vessel on the other side, there being nothing in the situation to indicate that the ferryboat would be thereby prevented from passing the steamer safely, if navigated with due care. Id.
4. The steamer was not at fault in not having a lookout. The
Ariadne, 13 Wall. 475, distinguished. P. 310. 19 F. (2d) 878, affirmed.
Certiorari , 275 U.*S. 517, to decrees of the Circuit Court of Appeals, affirming two decrees in admiralty against the petitioner for damages caused in a collision by its ferryboat.
Mr. Wm. Denman submitted for petitioner.
The whistle acceptance of a tendered passing signal is a positive assertion that no danger exists which is known to the accepting vessel and concealed from the vessel signalling for the maneuver. If there is such a danger, the vessel knowing it owes a positive duty to the asking vessel to blow the danger signal. A vessel knowing of such concealed danger and accepting a passing signal and failing to blow the danger signal, is in fault and is responsible for a collision “caused” by the hidden danger.
The tendering vessel may rely on the assurances of the accepting vessel and is not at fault for damages arising from proceeding as if the hidden danger were not there.
The contrary rule, laid down by the Ninth Circuit in this case, is opposed to the rule as recognized in the Second, Fourth, Sixth, and Eighth Circuits and all other cases. It is not the law and is a menace to life and property at sea. The American, 92 U. S. 432; The Genevieve, 95 Fed. 859; The F. W. Wheeler, 78 Fed. 824; The Edna V. Crew, 202 Fed. 1021; The Lowell M. Palmer, 142 Fed. 937; Atlas Trans. Co. v. Lee Line, 235 Fed. 492, on rehearing, 238 Fed. 349; The Richmond, 275 Fed. 970; The Alabama, 114 Fed. 214; Santa Maria, 227 Fed. 149; Werdenfels, 150 Fed. 400; The Luther C. Ward, 149 Fed. 787.
5963°—29---- 20
The Relief, and tow, should be held in sole fault, for had the circumstances been as safe as they properly seemed to the Thoroughfare, and as the Reliefs acceptance told her they were, there was nothing which could possibly have caused a collision. The Thoroughfare would have passed safely on through the deep, straight and unobstructed channel, without hurt to anyone.
The Thoroughfare was in extremis when at the stern of the Enterprise. Her sudden turn to avoid her danger was her only salvation, the only thing she could do. The turn was, therefore, the proximate result of the antecedent invitation by the Relief to enter the trap, from which the Thoroughfare struggled to escape.
The burden of proof is on each vessel to establish fault on the part of the other. The Victory, 168 U. S. 410.
Where fault on the part of one vessel is established by uncontradicted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. The City of New York, 147 U. S. 72.
It is elemental that there should be a lookout on a tow which obscures the vision of a tug from approaching vessels. Nevada N. Quick, 106 U. S. 154; Edward G. Murray, 234 Fed. 61; James A. Lawrence, 117 Fed. 228; Gladiator, 132 Fed. 876; Arthur M. Palmer, 115 Fed. 420.
Every doubt as to the performance of the duty, and the effect of non-performance, should be resolved against the »vessel sought to be inculpated until she vindicates herself by testimony conclusive to the contrary. The Ariadne, 13 Wall. 475; The Anna, 201 Fed. 58.
The mere finding that the Thoroughfare's act is the proximate cause does not make it the sole cause and does not absolve the court from considering whether the absence of a lookout was not a contributing cause. The International, 143 Fed. 468.
Mr. Ira S. Lillick, with whom Mr. Hunt C. Hill was on the briefs, submitted for the respondents, Moore Shipbuilding Company and Hildur Haglund, Administratrix.
Mr. J. F. Sullivan, with whom Messrs. Edward I. Barry and Theodore J. Roche were on the brief, submitted for the respondent, Rolph Navigation & Coal Company.
Mr . Justi ce Sanford delivered the opinion of the Court.
These two suits in admiralty, which were brought in the federal court for northern California, arose out of a collision between the ferryboat Thoroughfare and the steamship Enterprise in charge of the tug Relief, in the channel of San Antonio Creek, known as the Oakland Estuary, which resulted in damages to the Thoroughfare and the Enterprise, and the killing of Ernest Haglund, a workman on the Enterprise. In No. 472 the administratrix of Haglund’s estate libelled the Southern Pacific Co., the owner of the Thoroughfare, and the Rolph Navigation & Coal Co., the owner of the Relief, for the damages arising from his death. In No. 473 the Moore Shipbuilding Co. libelled the Thoroughfare for the damages to the Enterprise; and the Southern Pacific Co., as claimant of the Thoroughfare, brought in as third party respondents the Enterprise, the Relief and the Rolph Navigation & Coal Co., to answer for the damages to the Thoroughfare.1 The suits were tried on the same evidence as to the responsibility for the collision, and were consolidated for hearing in the Circuit Court of Appeals. The District Court found that the collision was caused solely by the negligence of the Thoroughfare, without fault on the part of the Relief or the Enterprise, and entered decrees against p. 308the Southern Pacific Co. for the damages to the Enterprise and the death of Haglund. These decrees were affirmed by the Circuit Court of Appeals. 19 F. (2d) 878.
1
Another tug, the Hercules, belonging to the Rolph Navigation & Coal Co., which was also impleaded, is not here involved.
The channel of the Estuary, the great artery of commerce between San Francisco and Oakland, is 500 feet wide. The collision occurred about noon, on a clear day. The Enterprise, a steam freighter 320 feet long, which was undergoing repairs at the yard of the Moore Shipbuilding Co. on the north bank of the Estuary, was let down stem foremost on a marine railway into the waters of the Estuary, and lay at right angles across the channel. She was without power, had no lookout, and had been placed by the Shipbuilding Company in charge of the Relief to be berthed at a nearby wharf on the Company’s plant.2 The Thoroughfare, a steam ferryboat, was then approaching at her full speed of 13 miles an hour on an easterly course through the Estuary. When about 2,900 feet away she sounded a single blast of her whistle. This was not answered by the Relief, which was then engaged in stopping the stemway of the Enterprise towards the south side of the channel. When the Thoroughfare had approached within about 1,000 feet of the Enterprise, the Relief had arrested the movement of the Enterprise and was holding her dead in the water, with her stem about 100 feet from the south edge of the channel, leaving an ample opening for the passage of the Thoroughfare. At this distance the Thoroughfare again sounded a single blast of her whistle, indicating an intention to direct her course to starboard and pass in the rear of the Enterprise. This was accepted by the Relief by a like single blast. At this time the master of the Relief was aware of the presence at a considerable distance on the other side of p. 309the Enterprise of the tug Union3 which, with a tow, was approaching on a westerly course near the south edge of the channel. The master of the Thoroughfare, whose view was then intercepted by the Enterprise, was not aware of the presence of the Union. After the Relief gave her answering signal the Thoroughfare continued to advance at full speed, for about 1,000 feet, heading for the 100 foot opening between the stem of the Enterprise and the edge of the channel, and not knowing what vessels might be encountered on the other side. Meanwhile the Enterprise remained at rest without any change in position. Just as the Thoroughfare was about to pass, she saw the Union approaching on the other side and blew two whistles to indicate her intention of passing on the starboard side of the Union after she got clear of the Enterprise. This was accepted by two blasts from the Union. But before clearing the Enterprise the Thoroughfare suddenly changed her course to port, and struck the Enterprise. There was no occasion for this change to port. The Thoroughfare was not then in peril; the Union was about 900 feet away and had already slowed down; and the Thoroughfare would have had ample time and space after clearing the Enterprise in which to go to port and pass on the starboard side of the Union in accordance with the previous exchange of signals. And the Thoroughfare could herself have stopped within 300 feet.
2
The Relief was assisted by the tug Hercules referred to in note 1, supra.
We agree with the view of both the lower courts that the collision was caused solely by the negligence of the Thoroughfare, which not only approached the passageway in the rear of the Enterprise at full speed, without knowing whether she would encounter any vessel on the other side, but needlessly commenced the execution of the passing movement with the Union before she had cleared the p. 310Enterprise; and that there was no contributing fault on the part of the Relief or the Enterprise.
3
The Union is not brought into these suits.
The Relief was not at fault in accepting the passing signal of the Thoroughfare. This was merely an assent to the proposed passage in the rear of the Enterprise, expressing an understanding of what the Thoroughfare proposed to do and an agreement not to endanger or thwart it by permitting an interfering change in the position of the Enterprise. See Atlas Transp. Co. v. Lee Line Steamers (C. C. A.), 235 Fed. 492, 495. And the Relief, being in a position to fully carry out its agreement, was under no obligation to decline the passing signal because of the approach of the Union on the other side and to sound instead a warning signal. There was nothing in the situation to indicate that the approach of the Union would prevent the Thoroughfare from passing safely, if, as the Relief had the right to assume, it were navigated with due care. See Atlas Transp. Co. v. Lee Line Steamers (C. C. A.), 238 Fed. 349, on petition for rehearing. The doctrine of The F. W. Wheeler (C. C. A.), 78 Fed. 824, that a moving tug is in fault in accepting, without warning, a passing signal when she knows that the passage is obstructed by her grounded tow whose movement she cannot control, has no application here.
Nor was the Enterprise at fault in not having a lookout. The rule stated in The Ariadne, 13 Wall. 475, 478, as to the responsibility of a moving vessel for the failure of her lookout to discover an approaching vessel in time to avoid a collision, does not apply to a vessel in the position of the Enterprise, which was at rest, without power; and the absence of a lookout upon her did not in any manner contribute to the collision.
Decrees affirmed.