Farrell Lines, Inc. v. Devlin

Hammond, J., delivered the opinion of the Court. The appellee Devlin, a seafaring man, hurt his ankle seriously when he jumped from the rail to the deck of the African Patriot, a freighter docked at Locust Point, Baltimore, which he had boarded by way of an improvised gangplank. Farrell Lines, Incorporated (Farrell), the appellant, owned the African Patriot. Atlantic & Gulf Stevedores, Inc. (Atlantic) was unloading the vessel at the time of the accident.

Farrell furnished Devlin hospitalization and medical care. Devlin sued Farrell in the Superior Court of Baltimore for the maintenance to which an injured seaman is entitled and for damages. His claim for damages is based on unseaworthiness and negligence in not providing a safe means of boarding the vessel. He claimed, in the alternative, as a seaman and a business invitee.

Farrell interpleaded Atlantic, alleging in its third party complaint that if Devlin had a cause of action it was a direct result of Atlantic’s negligence during its stevedoring work and that, by written agreement, Atlantic had undertaken either expressly or impliedly to indemnify Farrell in such circumstances. The jury, instructed by the court as to the applicable and controlling federal maritime law, found on issues that Farrell was Devlin’s employer at the time of the accident, that the ship was unseaworthy, that Farrell was guilty of negligence contributing to the accident and injury, that Devlin had not been guilty of contributory negligence and, finally, that Atlantic had not been guilty of negligence directly contributing to the accident and injury. Appellant’s arguments on the appeal from Devlin’s judgment against it, both printed and fo ⁴¹⁰ rensic, complain that the trial judge erred to its prejudice by-refusing, at the close of plaintiff’s evidence, to direct verdicts for the defendants on various aspects of the case, in refusing to direct verdicts for the defendants when all of the evidence was in, again on various phases of the case, and in rulings on the evidence. Farrell’s appeal from the judgment for Atlantic charges error in the court’s refusal to charge the jury as a matter of law that Farrell was entitled to prevail on the allegations of its third party complaint.

Appellant is particularly aggrieved at the trial court’s action at the conclusion of Devlin’s case. Farrell’s lawyers at that time told the court that they wished to “offer some prayers” and Atlantic’s counsel said they wished to make “a motion also at this time”. The court said: “I overrule all motions at this time, and will consider them at the end of the whole case.” The record does not show what specific motions the defendants had in mind, nor does it show any further effort to have the court pass on the motions or any exception to the court’s action. The case was ably tried below on both sides, as it was here.

We have no doubt that counsel and the court had discussed thoroughly the matters as to which action was sought and were entirely aware of the effect of the court’s action. Nevertheless, the trial court undoubtedly should have heard whatever motions the defendants desired to make and have allowed counsel to give reasons in support of the motions. However, we see no prejudice to the appellant in the court’s having acted as it did. We were told at the argument here that at the end of the whole case, Farrell offered and argued fully the identical motions that it wished to make earlier.

Devlin’s case had been strengthened somewhat by evidence given by witnesses for the defendant; yet we find that Devlin had produced on his own behalf evidence sufficient to require the defendant to go forward. Devlin had gone to the pier at which the African Patriot was docked to work as night relief mate from 5:00 P. M. to midnight, having been sent by his union, with which Farrell had a contract calling for the regular employment of such relief officers and the terms of the employment. Farrell claims that Devlin failed to meet the burden of proving that at the ⁴¹¹ time he was injured he was its employee, and so, a seaman to whom there is given by the admiralty law the right to maintenance and the right to damages for injuries resulting from unseaworthiness of the ship or from faulty equipment or appliances, and by the Jones Act, 46 U. S. C., Sec. 688 , the right to sue the vessel owner for damages from negligence. Farrell’s grievance with the trial judge’s treatment of evidence is (a) that he should not have admitted a paper given Devlin by the vessel’s chief mate after he was hurt, certifying that Devlin was an employee of Farrell and, as such, entitled to be treated and cared for in the United States Public Health Service Hospital (the Marine Hospital), and (b) that his remarks in the presence of the jury were highly prejudicial and showed a prejudgment of the issue the jury had to decide, when he said the certificate purported to show that Devlin was employed by Farrell, that it was to be assumed that the chief mate knew that Devlin was not entitled to the certificate unless he were an employee and that “* * * at least he has certified that the plaintiff was an employee of the ship.” Since the certificate, if proper evidence, was significant on the matter of Devlin’s employment status, we find it appropriate to consider appellant’s evidentiary objections at this stage.

Farrell urges that the certificate was not signed by the master, as its printed heading “Master’s Certificate” and the admonition on it that it “must be signed by the Master or Authorized Agent of the Vessel” indicate it should have been. It adds that it was not shown that the master was not on board and, so, that Devlin failed to prove the authority of the chief mate. We think it fairly to be inferred that the master was not on duty at the time of the accident. The presence, and station, on the ship of all of the other officers was testified to.

The chief mate said he was in complete charge of the ship. Farrell seems to have argued to the court and jury that the master was not on board. Next, it is contended that the first time that the chief mate encountered Devlin the accident had occurred so that Devlin was unfit for duty when he reported for work and the mate was without authority then to accept him as an employee. This is a somewhat circuitous argument because Farrell seems ⁴¹² to agree that if Devlin had gone to the mate before the accident and tendered the introductory slip given him by the union showing him to be the night relief officer, the chief mate would have had authority to recognize him and would in fact have recognized him as an employee.

We fail to see how he lost the authority to give recognition of what he evidently deemed to be a fact the moment Devlin was hurt. He was not attempting to bind the ship or the owner, which Farrell argues was beyond the authority of a mate, by admitting liability (except as to responsibility for the cost of the hospitalization and this Farrell has not repudiated, or attempted to repudiate); he was merely certifying to a relationship which might or might not serve as the basis of liability. We think he had the right to do this much. Farrell offered no explanation in the testimony of why the certificate was given if Devlin were not an employee, nor has it offered any to this Court save the suggestion that it was an impulsive act of sympathy or benevolence to assure hospitalization.

If Devlin had not been considered an employee, he could have been sent to a hospital other than the Marine Hospital. Only if he were a seaman when injured would he have been sent there. We think the certificate was properly admitted. Once the certificate was in evidence, the trial judge’s remarks as to what it purported to show and what the mate had certified, were mere repetitions of its contents — statements of the obvious.

We feel that whatever emphasis the court’s comments gave the obvious did not serve as a prejudgment of an issue that was for the jury to answer. In his charge the court carefully and precisely instructed the jury that nothing he had said during the trial as to the evidence was to give the impression that he had any particular views on the facts or on what solution should be made of conflict between witnesses or as to what inferences were to be drawn from the evidence. We think that there was no prejudicial error in the court’s comments on the contents of the certificate. In our opinion the matter of employment at the time of injury rightly was left to the jury.

The master’s certificate was the last link in this chain of evidence on the point, and a significant link, as was made manifest in Curtis Bay Towing ⁴¹³ Co. v. Dean, 174 Md. 498, 508 , where such a certificate was given great weight. Other links are the following details, which the jury could have found to be the facts: Devlin was an experienced officer holding a chief mate’s unlimited license. He had served at sea for many years. For two years he had been on a list of qualified relief deck officers maintained by the union and had regularly worked as night relief mate in Baltimore harbor.

The contract between Farrell and the union called for employment of two night relief officers, one to stand the 5 :00 P. M. to midnight watch, the other from midnight to 8:00 A. M. Each is given a slip by the union on which are the name and location of the vessel, name of the bearer, and the type of work he is to do, such as relief mate. The slip is customarily given to the chief mate, to whom the man on the first watch usually reports. The two night mates decide between themselves who will stand which watch. The man on the second watch reports to no one but the night mate he relieves.

The duties of the night relief mates are to substitute for the ship’s officers so that they may go ashore, to check the ship’s lines and lights and to oversee the stevedoring operations. The contract requires Farrell to pay the night relief mate’s transportation if the vessel is docked far from the union hall. If the mate reports for duty he must be paid seven hours’ pay whether he works or not. The contract refers to the duties of the relief mates as including the “* * * occasional slacking off and taking in slack lines * * The custom was for the night relief mates to check the lines when they arrived at the pier, before boarding the vessel.

Devlin did this the night of the accident. Then he went to the regular gangway on the first level of the pier, which had an upper level also. The gangway was raised to permit railroad flat cars onto which mahogany logs were being loaded from the ship to pass back and forth on tracks that ran along the side of the pier next to the ship. Devlin told the gangway watchman, who was on the ship, that he was the night relief mate and wanted to come aboard.

The ship’s third mate was standing next to the gangway watchman. Devlin says the watchman told him that the gangplank would not be lowered for anyone, on the chief mate’s orders, and if he must come ⁴¹⁴ aboard, (Devlin having replied that he must) that he could come aboard at No. 2 hatch on the upper level of the pier, where stevedores and others were using an improvised gangway. The gangway watchman says (although Devlin denies it) he sent word to the chief mate that Devlin was on the dock and received the reply, which he relayed to Devlin, that he should stay on the dock, that he would be paid whether he came on board or not but the gangplank would not be lowered until the unloading was finished. The chief mate admits he first saw Devlin on the dock.

Devlin went to the upper level, crossed the informal gangway, consisting of several planks — apparently regular ship’s dunnage — laid from an unloading platform extending seaward from the pier eight or ten feet to the rail or bulwark of the African Patriot. Seeing no steps or ladder from the rail to the deck, he hesitated on the rail and then, anticipating that a load of cargo was coming out of No. 2 hold and would swing towards him, jumped to the deck and hurt his ankle when he landed on dunnage or on a painting stage or a coil of rope. Shortly thereafter, the chief mate gave him the certificate for the Marine Hospital. Farrell relies on Miller v. Browning S. S. Co., 165 F. 2d 209 , as showing that Devlin was not an employee.

There, an oiler was sent by his union to the ship to seek employment. The only evidence of employment was the contract between the union and the ship’s owner. The court commented that the oiler had not spoken to — indeed, had not even been seen by — anyone in any way connected with the ship. The contract there specifically described one in the situation of the oiler as a “prospective employee”.

We see far more to have been shown here in the customary course of conduct, the contract, what Devlin did, and his contacts with the ship’s personnel. We think it could be soundly inferred that relief deck officers sent by the union were to be, and were, accepted as employees as a matter of course, unless refused work for reasons such as, for example, drunkenness or insubordination, that would justify the dismissal or suspension of any employee. Where the evidence on the question of whether the relation of master and servant existed is conflicting, or more than one inference can be drawn from the evidence, the jury should de ⁴¹⁵ termine the answer. Globe Indemnity Co. v. Victill Corp., 208 Md. 573, 585 .

Farrell next contends that the trial court should have instructed the jury that, as a matter of law, the evidence showed (1) that there had been no act or omission making Farrell liable; (2) that Devlin himself had been negligent; and (3) that Devlin alone had brought the injury upon himself. These contentions, of course, stand or fall on the significance the controlling law gives the facts. Suits for damages for injuries occurring on navigable water, whether they be brought in an admiralty court, or the law side of a federal court, or in a state court, are controlled substantively by federal maritime law. The Supreme Court once again made this plain in Pope & Talbot, Inc. v. Hawn, 346 U. S. 406 , 98 L. Ed. 143 , when it said: “While states may sometimes supplement federal maritime policies, a state may not deprive a person of any substantial admiralty rights as defined in controlling acts of Congress or by interpretative decisions of this Court.” See, too Garrett v. Moore-McCormack Co., 317 U. S. 239 , 87 L. Ed. 239 ; Seas Shipping Co. v. Sieracki, 328 U. S. 85 , 90 L. Ed. 1099 ; W. E. Hedger Transp.

Corp. v. United Fruit Co., 198 F. 2d 376 (2 Cir.). This Court has recognized the State’s obligation in this respect. Frasier v. Waterman S. S. Corp., 206 Md. 434 ; Curtis Bay Towing Co. v. Dean, 174 Md. 498 , cited above. The cases cited hold that when federal maritime law controls, contributory negligence is not an absolute bar as under “the harsh rule of the common law”, but that “admiralty has developed and now follows its own fairer and more flexible rule which allows such consideration of contributory negligence in mitigation of damages as justice requires.” (Pope & Talbot, Inc. v. Hawn, supra).

In January, 1939, the Supreme Court, in Socony-Vacuum Oil Co. v. Smith, 305 U. S. 424 , 83 L. Ed. 265 , pointed out that before the Jones Act, a seaman was entitled to receive from a vessel or its owner indemnities for injuries due to an unseaworthy vessel or improper appliances, and that contributory negligence was not a defense but merely mitigated damages, and said: “And no American case appears to