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reliance is now placed. As we have already said, the record discloses that at the trial the defendant instead of relying upon the limited liability now claimed, entirely ignoring such limitation, itself asked and obtained an instruction that if the jury should find for the plaintiff it should fix the damages in such sum as would represent the loss suffered. Of course, the request to give this instruction was entirely inconsistent with the claim of limited liability under the Federal statute.
If a Federal question can be said to be involved at all, it was introduced into the record upon the argument of the motion for a new trial. Disposing of that question the Court of Appeals of Kentucky set forth that the question was not raised by the pleadings or requested instructions, or by motion for a new trial or written motion of any kind, and concluded that it must have been raised orally. It pointed out that under the Kentucky Code of Practice such contentions were required to be in writing, and that if the defendant desired to take advantage of its limited liability it must under the code of the State specifically rely upon that defense in its answer. In making this holding, the Kentucky court but enforced a rule of practice of that State. The decisions of this court not only have repeatedly held that a Federal right in order to be reviewable here must be set up and denied in the state court, but have often held that such claim of denial is not properly brought to the attention of this court where it appears that the state court declined to pass upon the question because it was not raised in the trial court as required by the state practice. Schuyler Nat'l Bank v. Bollong, 150 U. S. 85; Erie R. R. Co. v. Purdy, 185 U. S. 148; Layton v. Missouri, 187 U. S. 356. In this case there is no reason to believe that there was an attempt on the part of the state court to evade the decision of Federal questions, duly set up, by unwarranted resort to alleged rules under local practice, and upon this
point this case comes within former rulings of this court, as we have seen.
As to the contention that the case really raised a Federal question because it involved the constitutional validity of a state statute when opposed to the exclusive rights secured under a Federal law,-an examination of the record shows that no such question was made in the state court, nor was it necessarily involved in the decision made in such sense as to make the case reviewable here on that ground. It follows that the case must be dismissed for want of
ATLANTIC TRANSPORT COMPANY OF WEST
VIRGINIA v. IMBROVEK.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
No. 215. Argued January 29, 30, 1914.-Decided May 25, 1914.
As a general principle, the test of admiralty jurisdiction in tort in this
country is locality. Admiralty has jurisdiction of a suit in personam by an employé of a
stevedore against the employer to recover for injuries sustained through the negligence of the latter while engaged in loading a vessel
lying at the dock in navigable waters. The precise scope of admiralty jurisdiction is not a matter of obvious
principle or of very accurate history, The Blackheath, 195 U. S. 361, and quære whether the admiralty jurisdiction extends to a case where the tort is not of a maritime nature although committed on navi
gable waters. A tort committed on a vessel in connection with a service thereto may
be maritime even if there is no fault on the part of, or injury to, the ship itself.
234 U. S.
Argument for Petitioner.
Stevedores are now as clearly identified with maritime affairs as are
the mariners themselves. Whether the employer failed to provide a safe place to work is a ques
tion properly determinable by the Circuit Court of Appeals in last resort, and this court will not disturb such a finding if concurred in
by both courts below and justified by the record. 193 Fed. Rep. 1019, affirmed.
The facts, which involve the admiralty jurisdiction of the United States courts over suits for personal injuries sustained on a vessel in port while being loaded by a stevedore, and questions of negligence of the stevedore, are stated in the opinion.
Mr. Edward Duffy, with whom Mr. Nicholas P. Bond and Mr. Ralph Robinson were on the brief, for petitioner:
Admiralty has not jurisdiction; locality is not the sole test of jurisdiction; the tort is not of a maritime nature; the master did not fail to furnish a safe place to labor; failure to use pins was not the proximate cause; there was no evidence to show that the master failed to use reasonable care.
In support of these contentions, see Atlee v. Packet Co., 21 Wall. 389; Alaska Mining Co. v. Whelan, 168 U. S. 86; Amer. Bridge Co. v. Seeds, 144 Fed. Rep. 605; Black Book of Admiralty (Twiss); Bacon's Abridg. Actions, Local and Transitory; British African Co. v. The Compania, App. Cas. (1893) 602; 2 Brown's Admiralty (1 Amer. ed.), 94–95; Benedict's Admiralty (4th ed.), 39, 46, 47; The Blackheath, 195 U. S. 361; 2 Bailey's Personal Injuries, 88 2885 and 2993; Brown v. People's Gas Light Co., 81 Vermont, 477; B. &0. R. R. Co. v. Baugh, 149 U. S. 368; Campbell v. Hackfeld, 125 Fed. Rep. 696; Cleveland &c. R. R. v. Cleveland S. S. Co., 208 U. S. 316; 9 Columbia Law. Rev. 1; Cleveland v. R. R. Co., 73 Fed. Rep. 970; DeLovio v. Boit, 2 Gall. 399; Gilbert's Practice (3d ed.), 84, 85; 16 Harv. Law Rev. 210; 18 Id. 299; 25 Id. 381; Hussey v. Coger, 112 N. Y. 614; Hogan v. Henderson, 125
Argument for Respondent.
N. Y. 774; Kelly v. Norcross, 121 Massachusetts, 508; Kelly v. New Haven Stmb. Co., 74 Connecticut, 343; Kelly v. Jutte Co., 104 Fed. Rep. 955; Leathers v. Blessing, 106 U. S. 626; The Morris Max, 137 U. S. 1; Mostyn v. Fabrigas, 1 Smith L. Cases (11th ed.), 591; Malloy de Jure, Bk. II, Ch. III, Š XVI; Martin v. West, 222 U. S. 191; Martin v. Railroad Co., 166 U, S. 399; McKenna v. Fiske, 1 How. 240; McDonnell v. Oceanic Nav. Co., 143 Fed. Rep. 480; The Noranmore, 113 Fed. Rep. 367; The Osceola, 189 U. S. 158; Phila. &c. R. R. v. Phila. &c. Co., 23 How. 209; The Plymouth, 3 Wall. 20; The Pickands, 42 Fed. Rep. 239; The Picqua, 97 Fed. Rep. 649; Queen v. Judge, 1 Q. B. (1892) 273; The Queen, 40 Fed. Rep. 694; Regina v. Keyn, 2 Ex. D. 63; Railroad Co. v. Baugh, 149 U. S. 368, 386; Skinner's Case, 6 State Trials, 712; Stevens v. Sandwich, 1 Pet. Ad. Dec. 233; The Strabo, 90 Fed. Rep. 110; Tilly v. Rockingham, 74 N. H. 316; Westinghouse v. Callaghan, 155 Fed. Rep. 397.
Mr. W. H. Price, Jr., and Mr. John E. Semmes, Jr., with whom Mr. John E. Semmes, Mr. Jesse N. Bowen and Mr. Matthew Gault were on the brief, for respondent:
Admiralty has jurisdiction in the cases at bar, for the following reasons:
The admiralty courts having properly assumed jurisdiction when the libel was brought against both the ship and the stevedore company, should retain jurisdiction to determine the liability of the stevedore company, even though the libel be subsequently dismissed as to the ship.
Jurisdiction once assumed by the Federal court because jurisdictional amount is alleged in good faith to be involved, is not lost because it subsequently develops by the evidence that less than the jurisdictional amount is actually involved.
Where the requisite diversity of citizenship exists at the commencement of a suit, no subsequent change in the
234 U. S.
Argument for Respondent.
situation of the parties ousts the jurisdiction of the Federal court.
Where Federal and non-Federal questions are involved in the same suit, and jurisdiction has properly attached for the purpose of determining the Federal question, it is proper for the Federal court to decide the local question only and omit to decide the Federal question. Campbell v. Hackfeld, 125 Fed. Rep. 696, can be distinguished.
The sole test of admiralty jurisdiction over torts is the locality of the person or thing injured at the time of the impact with the intentional or negligent force.
There is a distinction between admiralty jurisdiction of the United States and that of England.
Locality is the sole test.
The constitutional extent of admiralty jurisdiction is involved in this case.
The tort in this case was essentially maritime in its nature.
On the evidence the master failed in his duty to provide a safe place.
The gang boss was a vice-principal, as was also the foreman.
The evidence was sufficient as to the proximate cause of the accident and as to lack of safety of place of work.
In support of these contentions, see Barry v. Edmonds, 116 U. S. 550; The Blackheath, 95 U. S. 361; Balt. & Ohio Ry. Co. v. Baugh, 149 U. S. 368; Clark v. Mathewson, 12 Pet. 164; Chappell v. United States, 160 U. S. 499; Campbell v. Hackfeld, 125 Fed. Rep. 696; Cleveland R. R. Co. v. Cleveland S. S. Co., 208 U. S. 316; The Coningsby, 202 Fed. Rep. 814; Chicago Junction Ry. Co. v. King, 222 U. S. 222; C.; R. I. & P. Ry. Co. v. Brown, 229 U. S. 317; The Conqueror, 166 U. S. 110; The Carib Prince, 170 U. S. 655; The Clan Graham, 153 Fed. Rep. 977; DeLovio v. Boit, 2 Gallison, 398; Ex parte Easton, 95 U. S. 72; The Genesee Chief, 12 How. 443; The Gilbert Knapp, 37 Fed. Rep. 209;