WILBUR, Circuit Judge.
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 for a tort survives, and can be enforced by his° executors, administrators, or heirs, the admiralty court would have had jurisdiction. It is not questioned that the courts of Oregon have consistently held that the statute of Oregon permitting the recovery for death is what is known as a death statute. There are a number of decisions of District Courts holding that under such statutes the right of action arises at the time of death and not at the time of injury, and consequently, where the death occurs ashore, there is no jurisdiction in admiralty. The Kaian Maru (D. C.) 2 F.(2d) 121, supra; Pickles v. Leyland (D. C. Mass.) 10 F.(2d) 371; Ryley v. Philadelphia & R. Ry. Co. (D. C. N. Y.) 173 F. 389. The jurisdiction of admiralty has been sustained in two eases by Circuit Courts of Appeals, one in the Fourth Circuit, where the death occurred ashore (The Anglo-Patagonian, 235 F. 92), and another in the fifth circuit, where the death occurred ashore (The Chiswick, 231 F. 452). In each of these eases the state statute -involved, that of Virginia, (section 2902, Code Va.) and Florida (Gen. Stats. Fla. 1906, §§ 3145, 3146), respectively, was a death statute. Spradlin v. Ga. Ry. & Elec. Co., 139 Ga. 575, 77 S. E. 799; Florida C. & P. R. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149; Duval v. Hunt, 34 Fla. 85, 15 So. 876. The precise question presented to us for decision was not discussed in either of the two above-mentioned opinions, but an examination of the records and briefs in those cases discloses the fact that in both of them the point was raised and necessarily decided by the respective courts. In re The Chiswick, supra, it was claimed that, as the decedent died ashore, the ease was not within admiralty jurisdiction. It was argued that the Florida statute was a death statute (citing Tiffany, Death by Wrongful Act, § 24; Seward v. Vera Cruz, 10 App. Cas. 59, 67, by the House of Lords, Whitford v. Panama Railroad Co., 23 N. Y. 465; Matter of Meekin, 164 N. Y. 145, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635; Seaboard A. L. R. Co. v. Moseley, 60 Fla. 186, 53 So. 718; Florida E. C. R. v. Jackson, 65 Fla. 393, 62 So. 210; Duval v. Hunt, 34 Fla. 85, 15 So. 876, supra; Florida C. & P. R. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149, supra). Counsel contended as follows:
“ * *' * The widow’s cause of action is not for the wound inflicted on the decedent on the ship, but for the death of the decedent, which took place on the land.
“This is a new cause of action, which the decedent never had. The widow’s damages did not arise until the death occurred. The substance and consummation of the widow’s cause of action arose on the land, and therefore were beyond the jurisdiction of the admiralty court.”
In support of this contention in that ease the appellant cited Ex parte Phœnix Ins. Co., 118 U. S. 210, 6 S. Ct. 1176, 30 L. Ed. 128; Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388, 7 S. Ct. 254, 30 L. Ed. 447; Cleveland Terminal & V. R. R. Co. v. Steamship Co., 208 U. S. 316, 28 S. Ct. 414, 52 L. Ed. 508, 13 Ann. Cas. 1215; The Plymouth, 3 Wall. 20, 18 L. Ed. 125; Ryley v. Philadelphia R. R. Co. (D. C.) 173 F. 839. The last two eases are relied upon by appellee in the case at bar/ It follows that the decision of the Circuit Court of Appeals of the Fifth Circuit that the court of admiralty had jurisdiction is a .direct determination of the question involved in the ease at bar. In the decision by the Circuit Court of Appeals for the Fourth Circuit (The Anglo-Patagonian, 235 F. 92, supra), the main contention of the parties as to jurisdiction arose from the fact that the ship was in dry dock, hence it was contended that neither the injury nor the death ashore resulting therefrom occurred within admiralty jurisdiction. The fact that the injured workman was taken ashore and [795]*795diod there, was not stressed in the briefs, although in tho appellant’s reply brief it was said:
“Section 2902 of tho Code, quoted on page 17 of appellee’s brief, in connection with the libel on behalf of Byrd, is Virginia’s Lord Campbell’s act, and the general rule and the law as stated in ‘The Glendale’ is not controverted.
“While giving a lien, however, it is not for a cause of action which survives, but is a new cause of action entirely.
“In discussing this provision the Supreme Court of Appeals said:
“ ‘It is not (sic) intended to withdraw from the wrongdoer the immunity from civil liability which the rule of the common law afforded him, and to provide for tho recovery of such damages, notwithstanding the death of the injured person. In so doing, however, it plainly did not intend to continue or cause to survive his right of action for the injury, but to substitute for it and confer upon his personal representative a new and original right of action. (Citing eases.) * * * If the effect of the statute is, as was contended, to cause the right of action to survive, the suit by his personal representative would be to recover damages for the injury the deceased had sustained and the detriment caused to his estate. * * * But in a suit by the personal representative under the statute the evidence would primarily relate to and the damages be not only for the pecuniary loss the wife, husband, parent or child had sustained, hut it would be proper for the jury * * * to take also into consideration the grief and mental anguish of such relatives and their loss in being deprived of tho care, attention and society of the deceased.’ Anderson v. Hygeia Hotel Co., 92 Va. 687, 691, 692 [24 S. E. 269].
“Byrd’s administrator therefore is suing, not for the injury received by Byrd, but for damages for his death. The ‘substance and consummation’ of his wrong occurred at the hospital, and the decision in Ryley v. R. R. Co. [D. C.] 173 F. 839, passing, as it does, upon a statute of exactly the same character, is identically in point.”
In considering the jurisdiction of a court of admiralty under the circumstances it should be remembered that neither at common law nor by the general maritime law was there a right to recover for death (Rundell v. La Campagnie Generalo Transatlantique (C. C. A.) 106 F. 655, 49 L. R. A. 92; Mobile L. Ins. Co. v. Brame, 95 U. S. 756, 24 L. Ed.
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WILBUR, Circuit Judge.
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 for a tort survives, and can be enforced by his° executors, administrators, or heirs, the admiralty court would have had jurisdiction. It is not questioned that the courts of Oregon have consistently held that the statute of Oregon permitting the recovery for death is what is known as a death statute. There are a number of decisions of District Courts holding that under such statutes the right of action arises at the time of death and not at the time of injury, and consequently, where the death occurs ashore, there is no jurisdiction in admiralty. The Kaian Maru (D. C.) 2 F.(2d) 121, supra; Pickles v. Leyland (D. C. Mass.) 10 F.(2d) 371; Ryley v. Philadelphia & R. Ry. Co. (D. C. N. Y.) 173 F. 389. The jurisdiction of admiralty has been sustained in two eases by Circuit Courts of Appeals, one in the Fourth Circuit, where the death occurred ashore (The Anglo-Patagonian, 235 F. 92), and another in the fifth circuit, where the death occurred ashore (The Chiswick, 231 F. 452). In each of these eases the state statute -involved, that of Virginia, (section 2902, Code Va.) and Florida (Gen. Stats. Fla. 1906, §§ 3145, 3146), respectively, was a death statute. Spradlin v. Ga. Ry. & Elec. Co., 139 Ga. 575, 77 S. E. 799; Florida C. & P. R. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149; Duval v. Hunt, 34 Fla. 85, 15 So. 876. The precise question presented to us for decision was not discussed in either of the two above-mentioned opinions, but an examination of the records and briefs in those cases discloses the fact that in both of them the point was raised and necessarily decided by the respective courts. In re The Chiswick, supra, it was claimed that, as the decedent died ashore, the ease was not within admiralty jurisdiction. It was argued that the Florida statute was a death statute (citing Tiffany, Death by Wrongful Act, § 24; Seward v. Vera Cruz, 10 App. Cas. 59, 67, by the House of Lords, Whitford v. Panama Railroad Co., 23 N. Y. 465; Matter of Meekin, 164 N. Y. 145, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635; Seaboard A. L. R. Co. v. Moseley, 60 Fla. 186, 53 So. 718; Florida E. C. R. v. Jackson, 65 Fla. 393, 62 So. 210; Duval v. Hunt, 34 Fla. 85, 15 So. 876, supra; Florida C. & P. R. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149, supra). Counsel contended as follows:
“ * *' * The widow’s cause of action is not for the wound inflicted on the decedent on the ship, but for the death of the decedent, which took place on the land.
“This is a new cause of action, which the decedent never had. The widow’s damages did not arise until the death occurred. The substance and consummation of the widow’s cause of action arose on the land, and therefore were beyond the jurisdiction of the admiralty court.”
In support of this contention in that ease the appellant cited Ex parte Phœnix Ins. Co., 118 U. S. 210, 6 S. Ct. 1176, 30 L. Ed. 128; Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388, 7 S. Ct. 254, 30 L. Ed. 447; Cleveland Terminal & V. R. R. Co. v. Steamship Co., 208 U. S. 316, 28 S. Ct. 414, 52 L. Ed. 508, 13 Ann. Cas. 1215; The Plymouth, 3 Wall. 20, 18 L. Ed. 125; Ryley v. Philadelphia R. R. Co. (D. C.) 173 F. 839. The last two eases are relied upon by appellee in the case at bar/ It follows that the decision of the Circuit Court of Appeals of the Fifth Circuit that the court of admiralty had jurisdiction is a .direct determination of the question involved in the ease at bar. In the decision by the Circuit Court of Appeals for the Fourth Circuit (The Anglo-Patagonian, 235 F. 92, supra), the main contention of the parties as to jurisdiction arose from the fact that the ship was in dry dock, hence it was contended that neither the injury nor the death ashore resulting therefrom occurred within admiralty jurisdiction. The fact that the injured workman was taken ashore and [795]*795diod there, was not stressed in the briefs, although in tho appellant’s reply brief it was said:
“Section 2902 of tho Code, quoted on page 17 of appellee’s brief, in connection with the libel on behalf of Byrd, is Virginia’s Lord Campbell’s act, and the general rule and the law as stated in ‘The Glendale’ is not controverted.
“While giving a lien, however, it is not for a cause of action which survives, but is a new cause of action entirely.
“In discussing this provision the Supreme Court of Appeals said:
“ ‘It is not (sic) intended to withdraw from the wrongdoer the immunity from civil liability which the rule of the common law afforded him, and to provide for tho recovery of such damages, notwithstanding the death of the injured person. In so doing, however, it plainly did not intend to continue or cause to survive his right of action for the injury, but to substitute for it and confer upon his personal representative a new and original right of action. (Citing eases.) * * * If the effect of the statute is, as was contended, to cause the right of action to survive, the suit by his personal representative would be to recover damages for the injury the deceased had sustained and the detriment caused to his estate. * * * But in a suit by the personal representative under the statute the evidence would primarily relate to and the damages be not only for the pecuniary loss the wife, husband, parent or child had sustained, hut it would be proper for the jury * * * to take also into consideration the grief and mental anguish of such relatives and their loss in being deprived of tho care, attention and society of the deceased.’ Anderson v. Hygeia Hotel Co., 92 Va. 687, 691, 692 [24 S. E. 269].
“Byrd’s administrator therefore is suing, not for the injury received by Byrd, but for damages for his death. The ‘substance and consummation’ of his wrong occurred at the hospital, and the decision in Ryley v. R. R. Co. [D. C.] 173 F. 839, passing, as it does, upon a statute of exactly the same character, is identically in point.”
In considering the jurisdiction of a court of admiralty under the circumstances it should be remembered that neither at common law nor by the general maritime law was there a right to recover for death (Rundell v. La Campagnie Generalo Transatlantique (C. C. A.) 106 F. 655, 49 L. R. A. 92; Mobile L. Ins. Co. v. Brame, 95 U. S. 756, 24 L. Ed. 580; The Alaska, 130 U. S. 201, 9 S. Ct. 461, 32 L. Ed. 923; The Harrisburg, 119 U. S. 199, 7 S. Ct. 140, 30 L. Ed. 358), and that admiralty courts having jurisdiction of cases resulting in death have adopted the more humane course of following the law of states, or nations, permitting such recovery where applicable. There seems to he no good reason why in admiralty there should be a jurisdictional distinction between the two types of statutes permitting recovery for death where the injury from which the death results occurs on board ship and within admiralty jurisdiction. Statutes of states and nations providing such a remedy have been applied by courts of admiralty in the interests of humanity. If this is the true basis for admiralty jurisdiction, there is no broad ground for making the distinction belween the two types of statutes in question. Tho circumstances are identical in each case. It is true that in determining questions of jurisdiction fine distinctions aro very often made and aro frequently determinative of the, question, but there seems to ho no good reason for such a distinction here, particularly as the law applicable aboard ship where tho injury occurs is the same as that ashore where the injured man died.
Deeree of dismissal reversed;