Turner v. Wilson Line of Massachusetts

• Decision Date: 17 May 1956
• Docket Number: Civ. A. No. 55-896.
• Parties: Helen T. TURNER, Adm'x Estate of Gordon L. Turner v. WILSON LINE OF MASSACHUSETTS, Inc.
• Court: U.S. District Court — District of Massachusetts

142 F. Supp. 264

Helen T. TURNER, Adm'x Estate of Gordon L. Turner v. WILSON LINE OF MASSACHUSETTS, Inc.

Civ. A. No. 55-896.

United States District Court D. Massachusetts.

May 17, 1956.

Leo P. Doherty, Boston, Mass., for plaintiff.

Thomas H. Walsh, and John M. Geaghan, Boston, Mass., for defendant.

ALDRICH, District Judge.

Defendant moves to strike certain portions of the complaint in this civil action on the ground that no valid claim is set out. The complaint is a hybrid product of questionable ancestry, but because it could easily be changed and enlarged I accepted certain additional allegations made by plaintiff's counsel during argument, referred to and delimited in this opinion. Correspondingly, I treat defendant's motion as, in effect, a motion for summary judgment.

In June, 1955, the coastwise steamer Pilgrim Belle grounded on a bar in Boston Harbor and took water. The McKie Lighter Co. undertook salvaging operations, including pumping her out. Plaintiff's intestate, Turner, an employee of McKie,¹ came aboard to assist with the bailing as supervisor of the pumps. The master of the vessel remained on board. The pump was operated by a gasoline motor belonging to McKie for 14 hours. It was a hot, muggy day. There were no exhaust pipes, and the motors exhausted inboard. No one opened the ports or windows, and there were no blowers in operation. As a result, that portion of the vessel became partially filled with carbon monoxide gas. On such evidence it could be found that the master was negligent in permitting this to occur, and that, whether he was negligent or not, the vessel became unseaworthy. Turner, while engaged in his employment, inhaled excessive quantities of gas for perhaps 7 or 8 hours. During this period he had pains in his chest and was nauseated, but continued to work, not knowing what the trouble was, until he blacked out. He died shortly thereafter without recovering consciousness.

The defendant is the owner of the Pilgrim Belle. There are five counts. In none is there a mention of the Jones Act, or an allegation that it is brought under 46 U.S.C.A. § 688. However, at the hearing plaintiff stated that all counts were brought under that Act. I will first consider each count individually as drawn, and then as if under the Act.

Count 1, as drawn, is for personal injuries (other than death), due to negligence. It is alleged that Turner was a business invitee. The injury was inflicted on navigable waters, and constituted a maritime tort. Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L.Ed. 143; Thorneal v. Cape Pond Ice Co., 321 Mass. 528, 74 N.E.2d 5. The action was brought on the law side of the court. Although there is a prayer for damages in the amount of $10,000, it is not affirmatively alleged that $3,000 is involved. I made inquiry and received statements of plaintiff's counsel addressed to this subject, and hold that as matter of law they could not warrant such a finding.² The action, accordingly, fails to satisfy the requirements of 28 U.S.C. § 1331.

Count 2 is similar to Count 1, except that it makes an additional or alternative allegation of unseaworthiness. Defendant contends that a cause for personal injuries due to unseaworthiness does not survive. It is unnecessary to consider this question, because plaintiff is faced with the same difficulty of absence of the jurisdictional amount. Doucette v. Vincent, 1 Cir., 194 F.2d 834.

Count 3 seeks to recover for Turner's wrongful death, alleging that it was occasioned by defendant's negligence. Recovery for such death is purely statutory. Plaintiff has no claim under the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq., because neither the injury nor the death occurred on the high seas. The Massachusetts death statute, Mass.G.L.(Ter.Ed.) c. 229, § 2C, added by St.1949, c. 427, § 3 as amended, is punitive, and does not create a maritime cause of action. Plaintiff cannot sue in the federal court on this statute in the absence of diversity of citizenship. Doucette v. Vincent, 1 Cir., 194 F.2d 834, 843, note 7.³

Count 4 is paired with Count 3, and is for death due to unseaworthiness. Unseaworthiness, also, does not create a cause of action for death at common law. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L. Ed. 686.

Count 5 is for funeral expenses "under the laws of the United States." Counsel suggests no law that would be apposite except Article 7, Shipowners Liability Convention, 1936, 54 Stat. 1693, 1699, which equates recovery with liability for maintenance and cure. Maintenance and cure is a contractual obligation. Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107. In spite of certain conclusory allegations of plaintiff, it is clear that there was no contract between Turner and the defendant. Calvino v. Farley, D.C.S.D.N.Y., 23 F.Supp. 654.

The Jones Act cannot breathe life into the complaint. Counts 1 and 2 still must fail for lack of the jurisdictional amount. Branic v. Wheeling Steel Corp., 3 Cir., 152 F.2d 887, certiorari denied 327 U.S. 801, 66 S.Ct. 902, 90 L.Ed. 1026. The Act cannot aid Count 5, because, as stated, maintenance and cure is purely contractual. It is not within the Act. Nor can it affect Counts 3 and 4. By its terms the Jones Act is an employer's liability act, directed against the seaman's employer. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692, rehearing denied 338 U.S. 839, 70 S.Ct. 32, 94 L.Ed. 513. Plaintiff points out that the fact Turner was working aboard ship made him a seaman for the purpose of the Act. This may well be so; but that is not to say his employer was the ship. Regardless of the location of his activities, he was in the employ of McKie, and not of the defendant. White v. American Barge Lines, D.C. W.D.Pa., 127 F.Supp. 637; The New Brooklyn, D.C.D.Mass., 37 F.Supp. 955; cf. Kelly v. Delaware River Joint Commission, D.C.E.D.Pa., 85 F.Supp. 15, and cases cited...