Farmer v. Standard Dredging Corporation

• Decision Date: 10 November 1958
• Docket Number: Civ. A. No. 1862.
• Parties: Clyde Edgar FARMER, Plaintiff, v. STANDARD DREDGING CORPORATION, a Delaware corporation, Defendant.
• Court: U.S. District Court — District of Delaware

167 F. Supp. 381

Clyde Edgar FARMER, Plaintiff, v. STANDARD DREDGING CORPORATION, a Delaware corporation, Defendant.

Civ. A. No. 1862.

United States District Court D. Delaware.

November 10, 1958.

Vincent A. Theisen and Joseph T. Walsh (of Logan, Marvel, Boggs & Theisen), Wilmington, Del., for plaintiff.

William H. Bennethum, Wilmington, Del., for defendant.

STEEL, District Judge.

The action is before the Court upon a motion by plaintiff to strike the third and sixth affirmative defenses as insufficient in law.

Plaintiff, a United States citizen, has sued defendant, a Delaware corporation, for injuries alleged to have been sustained in the course of his employment as a seaman by defendant aboard defendant's dredge Jamaica Bay registered under the laws of the United States. The injury is alleged to have been occasioned by defendant's negligence while the Jamaica Bay was operating in the territorial waters of Venezuela.

Broadly stated, the defenses assert that the contract between the parties (third defense) and the operation of Venezuelan law (sixth defense) bar the action. While several grounds of jurisdiction are alleged in the complaint, plaintiff has stipulated that he will rely exclusively upon the Jones Act, 46 U.S. C.A. § 688, as a jurisdictional basis for the action. The Court, therefore, has not considered the applicability of these defenses to other theories of relief but has dealt with them solely in their relationship to the Jones Act.

Third Affirmative Defense

The answer alleges that the parties entered into a contract in Venezuela by which plaintiff agreed to serve as first mate aboard the Jamaica Bay for the duration of a dredging operation in Maracaibo Bay, territorial waters of Venezuela. It further alleges the existence of certain indemnity provisions of the Venezuelan law which defendant claims is applicable to the injury which plaintiff sustained, and then concludes:

"Payments under the provisions of such law have been tendered to and accepted by the plaintiff herein and said payments and acceptance constitute the sole sum due said plaintiff under the terms and conditions of the foreign contract herein referred to."

The purport of this language is not clear. It may mean that the employment contract between the parties provides in terms that if the maximum indemnity prescribed by Venezuelan law should be paid by defendant to plaintiff (and it has been), all other claims under the employment contract which plaintiff otherwise might have against defendant are barred. The simple answer to this is that plaintiff is not seeking to recover under the terms of the employment contract. While his action is predicated upon the employment relationship, his claim is not based upon anything which defendant has promised plaintiff in the contract of employment.

Another possible interpretation of the answer is that it alleges that the parties have agreed in their employment contract that their rights and liabilities in their employment relationship shall be governed by Venezuelan law. The agreement provides:

"Article VI. If the Employee renders satisfactory service for a period of twelve months, or for a shorter period in the event his employment is terminated by the Company pursuant to the provisions of the first paragraph of Article V, the Company shall pay to the Employee:

"(1) `Utilidades' (Venezuelan Profit Sharing), `Preaviso' (Payment in Lieu of Notice of Dismissal), `Indemnazacion por Cesantia' (Termination Pay), `Indemnazacion por Antiguedad' (Indemnity for Length of Service), and any other benefits under Venezuelan Law, if any of the above are applicable to the Employee's service or dismissal."

The provision that defendant shall pay to plaintiff "any other benefits under Venezuelan law" is not tantamount to an undertaking by plaintiff to accept such "other benefits" in lieu of all other rights dehors the Venezuelan law which he otherwise might be entitled to assert. Moreover, if by the contract plaintiff had agreed to accept payments under the Venezuelan law in lieu of all rights accorded to him under the law of the flag of the Jamaica Bay, the agreement probably would be invalid as against public policy. Lauritzen v. Larsen, 1953, 345 U.S. 571, 589, 73 S.Ct. 921, 97 L.Ed. 1254.

Sixth Affirmative Defense

At pretrial plaintiff conceded (solely for purposes of testing by motion the sufficiency of the defense) the following construction of the Venezuelan law: Venezuela imposes an absolute but limited liability upon a ship operator for an injury incurred by a seaman in the course of his employment, and provides that the remedy granted by its laws shall be exclusive for any injury incurred within the territorial waters of Venezuela without regard to the nationality of vessel or seaman.

Since plaintiff has been paid by defendant the full indemnity for the kind of injury which he sustained, defendant asserts that by the terms of Venezuelan law relief under the Jones Act is foreclosed.

Plaintiff argues that Venezuelan law is not controlling but that the law of the flag—i. e., United States law—must govern the rights of the parties. Lauritzen v. Larsen, supra, and cases decided under it are the basis of this argument. Lauritzen, emphasizing the law of the flag, held that the Jones Act afforded no remedy to an alien seaman injured in a foreign port on board a vessel of foreign registry owned by an alien. But Lauritzen is distinguishable from the case at bar in two important respects: In Lauritzen, the law of the country where the injury occurred did not provide, as does Venezuelan law, that its law should be looked to exclusively to determine the rights of a seaman injured in its waters regardless of the nationality of the seaman or the flag of the vessel; nor did the tort in Lauritzen occur on a vessel which was engaged in essentially local work as is true in the case at bar.

Were there no pertinent Venezuelan law, unquestionably an action under the Jones Act would lie. See Gilmore & Black, Admiralty, p. 388 (1957); Restatement of Conflicts of Law, § 405; Cain v. Alpha S.S. Corp., 2 Cir., 1929, 35 F.2d 717, affirmed 1930, 281 U.S. 642, 50 S.Ct. 443, 74 L.Ed. 1086. Furthermore, since plaintiff was employed to serve on an American ship, the Jones Act would be applicable regardless of any provision of Venezuelan law if the vessel traversed the seas and called at ports of different nations during the plaintiff's employment. Cain v. Alpha S.S. Corp., supra; Wenzler v. Robin Line S.S. Co., D.C.W.D.Wash.1...