451 F.2d 670 (2nd Cir. 1971), 33, Fitzgerald v. A. L. Burbank & Co.

Docket Nº:33, 35079.
Citation:451 F.2d 670
Party Name:Thomas I. FITZGERALD, Public Administrator of New York County, Administrator of the Estate of William J. Graser, deceased, Plaintiff-Appellant, v. A. L. BURBANK & CO., Ltd. and Tankers and Tramps Corp., Defendants-Appellees.
Case Date:November 12, 1971
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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451 F.2d 670 (2nd Cir. 1971)

Thomas I. FITZGERALD, Public Administrator of New York County, Administrator of the Estate of William J. Graser, deceased, Plaintiff-Appellant,


A. L. BURBANK & CO., Ltd. and Tankers and Tramps Corp., Defendants-Appellees.

No. 33, 35079.

United States Court of Appeals, Second Circuit.

November 12, 1971

Argued Sept. 16, 1971.

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Kenneth Heller, New York City, for plaintiff-appellant.

William M. Kimball, New York City (Burlingham, Underwood, Wright, White & Lord, New York City, on the brief), for defendants-appellees.

Before KAUFMAN, ANDERSON and FEINBERG, Circuit Judges.

ANDERSON, Circuit Judge:

On July 26, 1963 the decedent William J. Graser was hired as a marine engineer by A. L. Burbank & Co., Ltd. (Burbank) in New York City as agent for Tankers and Tramps Corporation, the alleged owner of the SS ATLAS, and he was immediately sent to join the vessel, which was off Bahrain Island in the Persian Gulf. Graser reached the ATLAS late on the evening of July 28th and the next morning he began work "blowing down" the boilers in the ship's engine room. After spending less than an hour at this task, in extremely hot temperatures, Graser collapsed and had to be helped to his quarters. He was seen on the ship by a doctor in the early afternoon and was admitted to a Bahrain hospital that evening. Graser died on August 1, 1963 from heat exhaustion and pneumonia.

The plaintiff brought this action under the Jones Act, 46 U.S.C.A. § 688 as personal representative of the decedent. The jury returned a verdict in favor of the defendant Tankers and Tramps. 1 Judgment dismissing the complaint was entered, following the verdict; a motion for a new trial was denied, and the plaintiff has appealed from the judgment and the denial of the motion.

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In his complaint the plaintiff charged the defendant with a number of counts of negligence, including improper maintenance of the ATLAS and improper care for Graser both before and after he became ill. In view of the disposition of the case on this appeal, however, it is unnecessary to delineate these negligence claims more fully, except for the claim of negligent care by the doctors, discussed infra.

The plaintiff's chief claim of error on appeal concerns the court's charge to the jury on the issue of employment. Because only a seaman's employer can be held liable under the Jones Act, the threshold question for the trier in this case was whether or not Tankers and Tramps was Graser's employer. 2 In response to an interrogatory, the jury found that it was not. 3

The plaintiff's evidence on the issue of employment consisted primarily of the charter party between Tankers and Tramps and the United States government, the agency agreement between Tankers and Tramps and Burbank, and a letter from the Social Security Administration. The defendant relied chiefly on the oral testimony of Paul Caramella, an officer of Burbank, 4 which, on this issue, did not materially contradict the evidence presented by the plaintiff.

The charter party was entered into on August 16, 1961, by the Government as charterer and Tankers and Tramps as owner, and was extended on November 1, 1962, to continue until January of 1964. It was solely concerned with the ATLAS and was in all respects a typical time or voyage charter party. The agency agreement in effect during July, 1963, was entered into on April 1, 1963, between Tankers and Tramps, as owner, and Burbank, as agent, and was approved by the United States Maritime Commission on behalf of the Government. The letter from the Social Security Administration showed that William Graser had reported earnings during 1963 from Tankers and Tramps in care of Burbank.

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Caramella's testimony covered a number of the features of the arrangement between Burbank, Tankers and Tramps, and the Government. During the time in question, the ATLAS was chartered to the Government under consecutive voyage charter which provided among other things that the Government could decide where the ship would go and what cargo it would carry. The Government was also the guarantor of the mortgage on the ATLAS, although it did not hold the mortgage itself. See 46 U.S.C.A. §§ 1271-1279. Caramella did not know whether or not the mortgage was in default during the period in question, but in 1965 or 1966 the Government paid the mortgage and took possession of the ship.

He also testified that the freight money due under the charter was paid by the Government to Burbank, which was authorized to expend it solely for the purpose of paying operating expenses, and all of the freight money was consumed in this way. He further stated that Burbank hired the crew under the agency agreement and made regular accountings to the Government and to Tankers and Tramps.

Although Burbank did the actual hiring of the crew, it was agreed by all parties that it acted only as agent and was not the employer for Jones Act purposes. The central question became, then, for whom was Burbank agent? The agency agreement is a highly important piece of evidence as it established the prima facie fact that Burbank was agent for the owner Tankers and Tramps. Although there was evidence that the Government had to approve the agency agreement, there is no indication whatsoever in the agreement that Burbank was acting for or on behalf of the Government.

The agreement, made between Burbank as agent and Tankers and Tramps as owner, was Burbank's standard form of general agency contract. It provided that Burbank was to maintain the ATLAS "in such lawful trade and service as the owner shall direct" and it was to perform all necessary services "for the account of the owner," including the signing on and off of crews, paying wages, furnishing supplies for the vessel, and arranging for shipyard overhaul. Burbank was also to procure a master for the ATLAS who would be the employee of Tankers and Tramps and who would have full control and responsibility over the navigation and management of the vessel and its crew; and it had the duty to collect freight revenues and pay operating expenses.

The only mention of the Government in the agreement is a reference to the Maritime Administration which, along with Tankers and Tramps and Burbank, approved the contract. In the absence of strong countervailing evidence, then, this agency agreement shows that Burbank was agent solely for Tankers and Tramps. 5 The mere approval by the Government does not change that fact.

The other important document was the charter party between Tankers and Tramps and the Government. This contract, captioned "Tanker Voyage Charter Party," was on a standard government form. Its terms show quite plainly that Tankers and Tramps, as the owner, had not relinquished exclusive possession, command, and navigation of the ATLAS.

Tankers and Tramps was to man, equip and supply the vessel for and during its voyages and to appoint agents at all ports. It was responsible for towing and pilotage charges. It was entitled to limitation of liability and any salvage was for its sole benefit. The ATLAS was permitted to carry cargo for the account of parties other than the Government; and the Government was required to pay freight according to cargo carried and was subject to demurrage charges-items quite foreign to a demise or bareboat charter.

The Government was, however, entitled to name the ports of call, issue routing

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instructions, and decide the manner and places in which the vessel would load and unload. All of these are normal prerogatives of a time or voyage charterer.

In its case in chief the plaintiff had, therefore, presented substantial proof that Burbank was the agent of Tankers and Tramps as owner of the ATLAS and that the Government was not the owner of the vessel. To meet this, it was necessary for the defendant to produce persuasive evidence to the contrary, i. e., that Tankers and Tramps was not really the owner but only a representative of the Government. This it did not do. Instead, however, it offered two theories about the practically undisputed facts which, it asserts, lead to the conclusion as a matter of law, that the Government was the owner of the ATLAS.

The first theory was that the United States as charterer of the ATLAS had become the owner pro hac vice. It is true that the law of admiralty has long recognized that in some situations a charterer of a vessel will be treated as the owner and called the owner pro hac vice, Reed v. The Yaka, 373 U.S. 410, 412, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963). A charter giving rise to such an effect is generally known as a demise or bareboat charter.

The test for deciding whether or not a charter is a demise was set out by the Court in Guzman v. Pichirilo, 369 U.S. 698, 699-700, 82 S.Ct. 1095, 1096, 8 L.Ed.2d 205 (1962).

"To create a demise the owner of the vessel must completely and exclusively relinquish 'possession, command, and navigation' thereof to the demisee. * * * It is therefore tantamount to, though just short of, an outright transfer of ownership. However, anything short of such a complete transfer is a time or voyage charter party or not a charter party at all," see also United States v. Shea, 152 U.S. 178, 190, 14 S.Ct. 519, 38 L.Ed. 403 (1894), Reed v. United States, 78 U.S. (11 Wall.) 591, 600-601, 20 L.Ed. 220 (1871).

Furthermore, as Judge Learned Hand said in Hansen v. E. I. DuPont de Nemours & Co., 33 F.2d 94, 96 (2 Cir.), cert. denied, 280 U.S. 589, 50 S.Ct. 37, 74 L.Ed. 638 (1929), "We start * * * with the general presumption that the owner does not mean to put his vessels into the possession of the...

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