Curtis Bay Towing Co. v. Dean

Mitchell, J., delivered the opinion of the Court. The suit in this case was instituted under the provisions of section 33 of the Act of Congress approved June 5th, 1920, known as the Merchant Marine Act of 1920, or the Jones Act (46 U. S. Code Ann., sec. 688); and the appeal is from a judgment of the Superior Court of Baltimore City, entered on a verdict of a jury in favor of the plaintiff, the appellee in this court. The injury complained of occurred on November 4th, 1936, at which time Charles W. Dean, the appellee, was employed by the appellant as a seaman, having been continuously in such employment for more than eight years. He was attached to the crew of the steam tugboat “Curtis Bay,” owned by the appellant, which was then afloat at the dock of the Baltimore Ship Repair Company in the City of Baltimore, for the purpose of general inspection and certain repairs.

The vessel was in charge of its regular crew; and the payrolls submitted in evidence, covering the period in which the ship had been at the dock, and including the date on which the accident occurred, show that the several members of the crew, of which the appellee was one, were paid the same wages while the tug ⁵⁰² boat was in port which they each received when it was in active service. The appellee testified that on the morning of the accident he reported for duty shortly before seven o’clock, and first went to the galley, where he started a fife, and where, while the ship was up for repair, the members of the crew, other than officers, were permitted to change to their working clothes, that while the indicated members of the crew were allowed to change their clothing in the galley, the regulations of the vessel required that their work clothes be kept in the forecastle; that after starting the fire he proceeded to enter the forecastle to get his clothes, for the purpose of returning to the galley to change them; that at the time there were no artificial lights in service on the tug available, the ship being furnished with such light, while undergoing repair, from the dock, through means of sockets which could be connected with the wiring of the ship, but that the current from the dock was not turned on until the men in the shop began work at eight o’clock a. m.; that the weather was cloudy and foggy, when he proceeded to the forecastle, located forward and below the main deck; that the entrance to the same was through a small doorway on the port side of the main deck, and descent to the floor of the forecastle, eight feet below, was by means of a vertical ladder; that the only light in the forecastle at the time was a vague one, which came through the entrance doorway, which measured two and a half or three feet square, and such light as gleamed through thick glass panes in the ceiling of the forecastle, these panes being approximately six inches long and two inches wide, and covered with dirt caused by men working on the main deck. The witness further testified that, upon reaching the floor of the forecastle, he proceeded to the starboard side of the ship, where he had laid his work clothes on the preceding evening, on a coil of rope, and picking them up, began to retrace his steps towards the ladder; that at a point near the center of the forecastle he met a fireman of the ship, who was proceeding across the floor for the purpose of getting his work clothes, and, ⁵⁰³ as he passed the fireman, his left leg suddenly plunged through the floor; that he did not at the time know of or detect any hole in the floor, and that if a hole existed, it was “camouflaged,” in that it was covered over with rope, upon which he stepped; that, as he fell, he struck a water bucket, and because of the impact, received the serious injuries which form the basis of the suit; that the shock of the injury rendered him unconscious, and for that reason he was unable to state the size of the hole through which his foot plunged, or whether it was in existence at the time he stepped on the rope, or broke through from the weight of his body. On cross-examination the witness testified that he knew the general condition of the floor was at one time supposed to be bad, but that he had never detected any hole in any part of it, in his daily visits to change his clothes; that he had heard that Koenig, another member of the crew, had fallen into a hole in the floor two days before, but that he had never seen the latter hole, and was told by the mate that it had been patched up; that he was transferred to the ship during the month of May previous to the accident, and had known before of the general condition of the floor, because he had previously served on the boat, but that when he was on the vessel before his last transfer thereto, the then mate had ordered “a lot of wood, and the mate that followed us claimed that he had fixed the floor.

He told us, and I seen some of the work he did, right at the foot of the companionway.” Herman J. Mooney, the fireman referred to by the appellee, corroborated the latter’s testimony in that, on the morning of the accident, he entered the forecastle just after the appellee; that there was only the light of the open door, and two small thick glass lights imbedded in the floor of the deck, which were not clean, and were possibly painted over or scratched up. He described the light as “just a beam that would hit a certain place on the floor,” and added that there were no port holes; that as he walked towards the side of the forecastle from which the appellee was coming, and passed him, the latter ⁵⁰⁴ fell through a hole in the floor. He then stated: “A bucket flew from under him and he threw himself back on a coil of rope, a pile of un'stranded rope, that was in the center of the forecastle. The rope was on the edge of the hole, and after Dean had got out of it, you could see the hole clear. * * * After Dean had been removed from the forecastle, a bight or loop of rope was in the hole, which was, I’d say, five or six inches wide and eighteen inches long.” He did not see the bucket until it “flew from under” Dean.

Further testifying, he stated that the condition of the floor around the hole was very bad, a lot of unstranded rope was in the hole and thrown in roughly, that he did not see it before the accident, and that after the accident work was started to put in a complete new floor; that he made a casual examination of the hole, and could not say whether it was a fresh break in the floor, but that he heard no wood crack as the appellee fell in. A photostatic copy of the certificate of enrollment and license by the Department of Commerce, filed in the case, shows that the tug at the time of the accident was duly licensed for coasting trade; a like copy of the certificate of inspection shows the capacity of the craft to be 133 gross tons; and it is also shown by a photostatic copy of the master’s certificate of service of sick or injured seamen, filed in the case, that on the date of the accident the mate of the tug, on behalf of its captain, certified that the appellee was employed on board in the care, preservation or navigation of the tug “Curtis Bay,” for the purpose of his admission for treatment at a marine hospital of the U. S. Public Health Service. Testimony of Everett F. Hall was adduced on behalf of the appellant, to the effect that he was employed by the Baltimore Towage & Lighterage Company, and in charge of certain repair work which was being done on the tug at the time of the accident; that, prior to the injury of the appellee, no repairs had been made on the forecastle, but that after the injury he was ordered to renew the forecastle floor, and, although it was replaced ⁵⁰⁵ with a new floor, there was nothing wrong with it except the hole, which was discovered after the ropes were removed. This witness also testified that, prior to the happening of the accident, certain decking had been removed above the forecastle, through which light gleamed; and, in conflict with the appellee’s testimony, stated that artificial lights were available at the time of the accident, had the connections been plugged in by any one on the tug.

The declaration contains two counts, the first alleging the negligence of the appellant in not providing the appellee with a safe place in which to perform his work; and the second, its negligence in permitting a hole to remain in a dark space in the deck of the forecastle. To the declaration the appellant pleaded, (a) the general issue plea, and (b) that the plaintiff was not, at the time of the accident complained of, either the master or a member of the crew of any vessel, nor was he a person engaged by the master to load or unload or repair any small vessel under eighteen tons net, and that accordingly the plaintiff is entitled to compensation under the Longshoremen’s and Harbor Workers’ Compensation Act of 1927, U. S. Code, title 38, sec. 901 and following (33 U. S. Code Ann., sec. 901 et seq.), and is excluded from all other remedy against the defendant. The section of the Merchant Marine Act of 1920, to which reference has hereinbefore been made, provides in part: “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railway employees shall apply.” In U. S. Code Ann., title 45, “Railroads,” sec. 53, it is provided in part: “In all actions hereafter brought against any such common carrier by railroad” (interstate) “under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have ⁵⁰⁶ resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.” The single exception found in the record relates to the ruling of the trial court on the prayers. At the trial of the case below the court granted four prayers submitted by the plaintiff.

The first of these is the usual form of damage prayer; and to the granting of it no objection was pressed in this court. The second prayer is as follows: “The plaintiff prays the court to instruct the jury that if they shall find from the evidence that the plaintiff was injured as detailed in the evidence while employed as a seaman, sailor or deckhand aboard the tug ‘Curtis Bay,’ owned by the defendant, if the jury so find, and if the jury shall further find that the defendant failed to furnish the plaintiff with a reasonably safe place to work on said tug, and that as a direct result thereof the plaintiff was injured, then their verdict should be for the plaintiff.” By the fifth, the jury was instructed that if they found that the defendant failed to furnish the plaintiff with a reasonably safe place to work, and that as a direct result the injury ensued, then their verdict should be for the plaintiff, even though they also found that the plaintiff contributed to his injury, but that in such event the damages should be diminished by the jury in proportion to the amount of negligence attributable to the plaintiff. The sixth prayer, which was granted in connection with the appellee’s fifth prayer, instructed the jury that if they found the plaintiff was injured as detailed in the evidence, and that said injury was due to a defective and unseaworthy condition of the floor of the forecastle, then in that event the plaintiff did not assume the risk of said defective and unseaworthy condition of the forecastle floor. Of the twenty-four payers submitted by the defendant, four were granted and the remainder rejected.

The first granted prayer instructed the jury that the burden rested ⁵⁰⁷ upon the plaintiff to prove that the injury complained of was caused or contributed to by negligence of the defendant, either as the sole or contributing cause, and that if the minds of the jury were in equipoise as to whether the negligence of the defendant was the sole or contributing cause of the injury complained of, then their verdict should be for the defendant; the second instructed the jury that the burden was on the plaintiff to prove negligence on the part of the defendant, and that if negligence on the part of the defendant be not proved, the verdict must be for the defendant; the fourth, that even though the jury found the defendant was negligent, nevertheless, if they further found that such negligence did not contribute to the injury complained of, and that the sole direct cause of the injury was the act of the plaintiff, then their verdict should be for the defendant; and the fifth was an instruction similar to the fifth prayer of the plaintiff, relating to the apportionment of damages in case of contributory negligence. At the hearing in this court it was urged by the appellant that there was error in the granting of the appellee’s second and fifth prayers, and in the rejection of the appellant’s several prayers which sought instructions as to assumption of risk by the appellee, as well as its sixth prayer, which latter prayer sought an instruction that if the jury found from the evidence that the floor of the forecastle was in good condition and sufficiently strong for the purposes for which it was ordinarily used, except for the hole into which the plaintiff put his foot, and they further found that said hole was not one of which the defendant knew, or ought to have known if it had used due diligence, then the defendant was not negligent. It can hardly be logically contended that under the facts in the instant case the appellee is not shown to have been a “seaman” within the purview of the maritime law. The term “seaman” may be properly applied to any person who is employed in the practical operation ⁵⁰⁸ and management or navigation of a ship; and while originally only common sailors were classed as seamen, the peculiar privileges and the protection afforded to seamen by the general maritime law have been extended to persons performing services of various sorts, as mate, engineer, fireman, deckhand, carpenter, etc. Holt v. Cummings, 102 Pa. 215 .

As in the case before us, a seaman is usually a member of the crew, as distinguished from a longshoreman or harbor worker; and under 33 U. S. Code Ann., sec. 902, subsec. 3, known as the Longshoremen’s and Harbor Workers’ Compensation Act, it is provided that: “The term ‘employee’ does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.” The tonnage of the vessel upon which the appellee was employed as a seaman, as has been indicated, far exceeds the maximum tonnage prescribed in the section just quoted; and it would therefore seem clear that the compensation act, designed to afford protection for longshoremen and harbor workers, is not available to him as set forth in the special plea of the appellant. Especially is this true when the uncontradicted testimony is to the effect that the appellee was at the time of receiving his injury employed as a sailor, had been so employed for over eight years by the appellant, was so designated on its payroll, was aboard the ship afloat in navigable waters, and subject to the orders of his superior officers, namely, captain and mate. However, if further evidence were needed to establish the status of the appellee at the time he was injured, that evidence is found in the certificate to the Marine Hospital, to which reference has hereinbefore been made. Under the maritime law, as