THE JOSEPHINE & MARY, 3633.

• Decision Date: 11 June 1941
• Docket Number: No. 3633.,3633.
• Citation: 120 F.2d 459
• Parties: The JOSEPHINE & MARY. LOIACANO v. OIL SCREW SCHOONER JOSEPHINE & MARY et al.
• Court: U.S. Court of Appeals — First Circuit

120 F.2d 459 (1941)

The JOSEPHINE & MARY LOIACANO v. OIL SCREW SCHOONER JOSEPHINE & MARY et al.

No. 3633.

Circuit Court of Appeals, First Circuit.

June 11, 1941.

Reuben Goodman, of Boston, Mass. (Peter C. Borre, of Boston, Mass., on the brief), for appellant.

J. M. Marshall, of Gloucester, Mass., for appellee United Fisheries Co. and others.

Charles S. Bolster, of Boston, Mass. (Bingham, Dana & Gould, of Boston, Mass., on the brief), for appellee Pier Mach. Co.

Before MAGRUDER and MAHONEY, Circuit Judges, and HARTIGAN, District Judge.

HARTIGAN, District Judge.

This is an appeal of Salvatore Loiacano, p.p.a., one of the intervening petitioners, from the final decree and order for distribution entered in the District Court for the District of Massachusetts on July 19, 1940.

The vessel Josephine & Mary is a two masted fishing vessel and was owned of record by Joseph Pallazolo, who was also the master of the vessel. She was built, however, for Pallazolo and his brother-in-law, Jerome Loiacano, to whom Pallazolo referred as his partner, and who had a half interest in and sailed on the vessel, and shared equally with Pallazolo in the earnings of the vessel.

The vessel was employed a part of the year in seining and a part in dragging, with a crew of ten including the master, and was operated on a form of Italian lay, under which the crew were not charged with any of the expenses of the trips of the vessel. All of the expenses of a trip were deducted from the proceeds of the sale of the catch of the trip, called the "gross stock," and the balance was distributed in the proportions of one share to each member of the crew for their services, and six shares to the owners for the vessel.

Salvatore Loiacano is the son of Jerome Loiacano and a nephew of Pallazolo. He began to go fishing when he was fourteen years old, and worked aboard the Josephine & Mary for three years previous to his injury on January 10, 1937, the first two years as assistant engineer and the last year as engineer. He was the engineer at the time of his injury and was then about seventeen and a half years of age.

The morning of January 10, 1937, the vessel was dragging and proceeding under power with the riding sail set, about one hundred ten miles off shore from Phoebus, Virginia, where the catch was landed. Salvatore was in the engine room and had finished some work on the fuel checks when he noticed a water leak in the air compressor, situated in the wing of the vessel on the starboard side, two or three feet from and connected with the engine by three belts. He said he reported the leak to Pallazolo and told him that he would wait until the engine was stopped and then fix it, but was told that he would better "do it now," and he was on his knees, with the engine running and the boat moving and tossing, tightening the place of the leak with a wrench, and had it almost tight when his head was caught or struck by the governor on the engine and was badly injured.

He came on deck with his scalp torn and bleeding and Pallazolo attended him and they started for shore where he was taken to the Soldiers Hospital at Fortress Monroe, and then to the Dixie Hospital at Hampton, nearby. They did what they could for him there, after which he was brought home for further treatment.

On the return of the vessel to Gloucester the last of March or the first of April, 1937, Pallazolo made an oral agreement with Salvatore's father and mother, at their home, to pay for Salvatore one share out of the owners' six shares of the net proceeds of the trips of the vessel, and his hospital and medical expenses, until he was well and able to work.

After Salvatore's return home and up to May 10, 1939, he underwent five operations and he received considerable medical and hospital care.

It was Pallazolo's practice as master of the vessel to distribute the net proceeds of the catch of the trips at the end of each trip. He said he paid Salvatore's parents one full share, in accordance with the agreement, during 1937, and after that half a share, and in addition paid his hospital and medical expenses, all out of the owners' shares. The change to half a share he said he made because he thought it would enable him to pay "more of the bills," but what Salvatore did not get he "had coming" and that there were some bills for hospital and medical expenses remaining unpaid.

Medical testimony disclosed that Salvatore's condition and inability to work were permanent.

Salvatore's amended petition is described as for a "cause of contract for settlement of personal injuries and for maintenance and cure, civil and maritime."

The petition alleges that his injuries were "caused by the negligence of the owners, agents or servants of the vessel," recites the agreement made by Pallazolo with his parents, and alleges that they received as payment thereunder for his medical expenses various sums aggregating approximately $3,000 and one share of the net proceeds of the catch of the trips in 1937, but thereafter only half a share to December 2, 1939, which is the date of the filing of the libel in this cause.

The petitioner further alleges that the value of one share agreed upon was $1,200 per annum "plus found with a value of $500 per annum," and that there is due him one-half such a share for 1938, in the amount of $850, and one-half such a share for 1939, to and including December 2 in the amount of $800, also for medical expenses remaining unpaid for 1938, in the amount of $400, and for 1939, in the amount of $500, and that there is also due him further sums at the rate of $1,700 a year from December 2, 1939, for a period of years he will be unable to work because of his injury, and for the expense of the continuance of his medical treatment.

The proctor for Salvatore rested his case on the amended petition in contract. He referred to the "background" of the case as a maritime tort for which the vessel was liable on which a suit might have been brought, and contended in substance that the agreement made for Salvatore's benefit was likewise maritime in nature, that he did not lose his lien on the vessel by the agreement and that he was entitled to further payments for "maintenance and cure."

That Salvatore was badly injured and that the agreement for his benefit was made as alleged were not disputed.

The contestants contended in substance that even if there may have been a liability in tort, which they do not admit, the agreement was not a maritime contract, and in any event was not a contract for the enforcement of which there was a lien on the vessel. They did not dispute that the petitioner was entitled to maintenance and cure for his injury, but questioned whether he was entitled to any further payments therefor.

The vessel was sold on order of the court and the proceeds of the sale, in the amount of $12,094.94, deposited in the registry of the court.

Salvatore's claim raises the questions whether the agreement made for his benefit may be enforced against the fund in the registry, and what, if any, further payments may be allowed him for maintenance and cure.

Certain contract maritime lien claims had accrued against the vessel prior to Salvatore's injury on January 10, 1937, and other contract maritime lien claims accrued against the vessel after his injury.

The Commissioner found that Salvatore was given prompt medical attention when he was hurt and there was no failure to care for him and treat his hurt; that there was no defect in the machinery or in the place where the accident occurred; that he was unable to find on the evidence that the absence of a covering made the governor or engine on the vesesl in this case defective. He also found that "The only element of unsafety or danger in the place of the accident was in working there when the engine was running, of which Salvatore was well aware, and he said that they never worked there `with the engine going'." He found that the instant case is distinguished from The Seeandbee, 6 Cir., 102 F.2d 577, 1939 A.M.C. 711, which was cited on Salvatore's behalf, for in that case the floor of the narrow passage through which the seaman had to pass in the performance of his duties, and where he was injured, was wet and slippery with oil and water which seeped upon the floor.

The Commissioner further stated "It seems to me that the issue in the cause is merely that of an improvident or negligent order of the master in the operation of the vessel, for which, under the maritime law, there is no right of indemnity against the owner, or lien on the vessel," citing The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760, and Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171.

The Commissioner in this cause found and ruled that Salvatore had no claim against the vessel or owner under the maritime law. He also found that Salvatore's petition is not brought in tort, but in contract on the agreement and that the agreement is not a maritime contract or a contract for the performance of which there was a lien on the vessel.

The Commissioner further stated,

"The agreement is not concerned with the use or operation of the vessel as an instrument of navigation or commerce, nor does it bind the vessel, and I find and rule that the petitioner did not have a lien on the vessel for the enforcement of the agreement, and is not entitled to share in the fund in the registry thereunder with the lien claimants, and that his claim in contract should be disallowed.

"Salvatore was grievously injured, but his rights arise under the Jones or Seamen's Act, 46 U.S.C.A. § 688 or under the common law, not in admiralty — except as to `maintenance and cure'."

Salvatore claimed that he is entitled to maintenance and cure for three years from 1939, at $2,000 a year. The Commissioner disallowed this claim on the authority of Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 531, 58 S.Ct. 651, 655, 82 L.Ed. 993, in which the court sa...