158 P.2d 275 (Or. 1945), Hust v. Moore-McCormack Lines, Inc.

Citation:158 P.2d 275, 176 Or. 662
Opinion Judge:[176 Or. 664] LUSK, Justice.
Attorney:[176 Or. 664] Erskine Wood, of Portland (Wood, Matthiessen & Wood and Lofton L. Tatum, all of Portland, on the brief), for appellant. Edwin D. Hicks, of Portland (Green & Landye and B. A. Green, all of Portland, on the brief), for respondent.
Judge Panel:[176 Or. 663] Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK, BRAND, and HAY, Justices.
Case Date:April 24, 1945
Court:Supreme Court of Oregon

Page 275

158 P.2d 275 (Or. 1945)

176 Or. 662




Supreme Court of Oregon

April 24, 1945

Appeal from Circuit Court, Multnomah County; Martin W. Hawkins, Judge.

Action under Section 33 of the Merchant Marine Act, or Jones Act, 46 U.S.C.A. § 688, by Cecil I. Hust, against Moore-McCormack Lines, Inc., to recover for injuries sustained by plaintiff while discharging his duties as a seaman on a ship owned by the United States for which defendant was general agent under a service agreement. From a judgment for plaintiff, the defendant appeals.

Reversed and remanded, with directions.

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[176 Or. 664] Erskine Wood, of Portland (Wood, Matthiessen & Wood and Lofton L. Tatum, all of Portland, on the brief), for appellant.

Edwin D. Hicks, of Portland (Green & Landye and B. A. Green, all of Portland, on the brief), for respondent.

[176 Or. 663] Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK, BRAND, and HAY, Justices.

[176 Or. 664] LUSK, Justice.

The plaintiff was injured on March 9, 1943, while discharging his duties as a seaman on the S. S. Mark Hanna, a 'liberty ship' owned by the United States, for which the defendant Moore-McCormack Lines, Inc., was general agent under a 'service agreement' designated GAA 4-4-42. The defendant is a Delaware corporation with offices in Portland, Oregon. The accident occurred after the vessel had been torpedoed in the Atlantic Ocean and was being towed to port. The plaintiff was ordered to go to the ship's locker in the forepeak and bring out a mooring line. While crossing the locker room in search of the rope he fell through an uncovered hatch to a lower deck. He brought this action for damages under § 33 of the Merchant Marine, or Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688, alleging that at the time of the accident the defendant was operating the vessel and he was in the defendant's employ, and that his injury was caused by the negligence of the defendant in failing to provide any light for the locker room and compelling him to carry on his work in total darkness and in failing to maintain [176 Or. 665] the guard chain around the hatch through which he fell. The case was tried to a jury which brought in a verdict for the plaintiff for $35,000.

On the trial the defendant moved for a directed verdict on the grounds that the evidence showed that the plaintiff was not employed by it and that his injury was not caused by its negligence. The court denied the motion, and in its charge left it to the jury to determine as a question of fact whether the relation of employer and employee existed between defendant and plaintiff. The court likewise denied a motion for judgment for the defendant notwithstanding the verdict. On this appeal these rulings are assigned as error.

The rights and remedies afforded by the Jones Act are not available to the plaintiff unless he was in the employ of the defendant at the time he was injured. Nolan v. General Seafoods Corporation, 1 Cir., 112 F.2d 515, 517; The Norland, 9 Cir., 101 F.2d 967, 971. The defendant contends that the plaintiff was not its employee; that, under the terms of the service agreement, it had no authority over the hiring of the crew further than to procure the master, who was the agent and employee of the United States, and to make available to the master, officers and men, for engagement by him on behalf of the United States; and that, in fact, at the time of the accident it did not operate or have control of the vessel.

The agreement, dated October 19, 1941, is between the United States, acting by and through the administrator, War Shipping Administration, and Moore-McCormack Lines, Inc., therein referred to as the general agent. By its terms the United States appoints the defendant as its agent and not as an independent contractor, 'to manage and conduct the business of vessels assigned to it by the United States from time [176 Or. 666] to time', and the agent accepts the appointment and undertakes so to manage and conduct the business for the United States under the latter's direction of such vessels as may have been or may be by the United States assigned to and accepted by the general agent for that purpose.

By Article 3A the agent agrees to (a) 'Maintain the vessels in such trade or service as the United States may direct, subject to its orders as to voyages * * *'; (b) 'Collect all moneys due the United States under this Agreement and deposit,

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remit, or disburse the same * * *'; and to (c) 'Equip, victual, supply and maintain the vessels, subject to such directions, orders, regulations and methods of supervision and inspection as the United States may from time to time prescribe'.

Article 3A(d) is as follows: 'The General Agent shall procure the Master of the vessels operated hereunder, subject to the approval of the United States. The Master shall be an agent and employee of the United States, and shall have and exercise full control, responsibility and authority with respect to the navigation and management of the vessel. The General Agent shall procure and make available to the Master for engagement by him the officers and men required by him to fill the complement of the vessel. Such officers and men shall be procured by the General Agent through the usual channels and in accordance with the customary practices of commercial operators and upon the terms and conditions prevailing in the particular service or services in which the vessels are to be operated from time to time. The officers and members of the crew shall be subject only to the orders of the Master. All such persons shall be paid in the customary manner with funds provided by the United States hereunder.'

[176 Or. 667] Article 5. 'At least once a month the United States shall pay to the General Agent as full compensation for the General Agent's services hereunder, such fair and reasonable amount as the Administrator, War Shipping Administration, shall from time to time determine * * *'

By Article 7 the United States agrees, with certain exceptions, to reimburse the General Agent 'for all expenditures of every kind made by it in performing, procuring or supplying the services, facilities, stores, supplies or equipment as required hereunder', and 'to the extent not recovered from insurance' to 'reimburse the General Agent for all crew expenditures * * * including * * * all disbursements for or on account of wages, extra compensation, overtime, bonuses, penalties, subsistence, repatriation, travel expense, loss of personal effects, maintenance, cure, vacation allowances, damages or compensation for death or personal injury or illness * * *'

Article 8. 'The United States shall, without cost or expense to the General Agent, procure or provide insurance against all insurable risks of whatsoever nature or kind relating to the vessels assigned hereunder (which insurance shall include the General Agent and the vessel personnel as assureds) including, but without limitation, marine, war and P. & I. risks, and all other risks or liabilities for breach of statute and for damage caused to other vessels, persons or property, and shall defend, indemnify and save harmless the General Agent against and from any and all loss, liability, damage and expense (including costs of court and reasonable attorneys' fees) on account of such risks and liabilities, to the extent not covered or not fully covered by insurance. The General Agent shall furnish reports and information and comply fully with all instructions that may be issued with regard to all [176 Or. 668] salvage claims, damages, losses or other claims. * * *'

Article 14. 'The General Agent shall, unless otherwise instructed, subject to such regulations, instructions, or methods of supervision and inspection as may be required or prescribed by the United States, arrange for the repair of the vessels, covering hull, machinery, boilers, tackle, apparel, furniture, equipment, and spare parts, and including maintenance and voyage repairs and replacements, for the account of the United States, as may be necessary to maintain the vessels in a thoroughly efficient state of repair and condition. The General Agent shall exercise reasonable diligence in making inspections and obtaining information with respect to the state of repair and condition of the vessels, and so advise the United States from time to time, in order that the United States may satisfy itself that the vessels are being properly maintained, and shall cooperate with representatives of the United States in making any inspections or investigations that the United States may deem desirable.'

Article 16. (a) 'The United States shall indemnify, and hold harmless and defend the General Agent against any and all claims and demands * * * of whatsoever kind or nature and by whomsoever asserted for injury to persons or property arising out of or in any way connected with the operation or use of said vessels or the performance by the General Agent of any of its obligations hereunder * * *'

There is no evidence that the defendant did anything in connection with the business of the vessel not contemplated by the terms of the service agreement, or that

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it exercised or attempted to exercise any control over the master or crew. Indeed, the uncontradicted evidence is that when it was the duty of the defendant to assist in the loading of the vessel it acted under the [176 Or. 669] instructions of the master as to the time, place and method of loading. And, although under the service agreement the defendant might have been required to arrange for the repair of the vessel, it never did so, but this duty was discharged by a division of the War Shipping Administration.

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