Antus v. Interocean SS Co.
| Decision Date | 12 December 1939 |
| Docket Number | No. 8116.,8116. |
| Parties | ANTUS v. INTEROCEAN S. S. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
S. Eldridge Sampliner, of Cleveland, Ohio, for appellant.
Russell V. Bleecker, of Cleveland, Ohio, for appellee.
Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.
The question presented by this appeal is whether appellant is entitled to recover for personal injury under the Jones Act, Title 46, § 688, U.S.C., 46 U.S.C.A. § 688. The District Court held that appellant's remedy was under the Longshoremen's and Harbor Workers' Compensation Act, Title 33, § 901 et seq., U.S.C., 33 U.S.C.A. § 901 et seq., and dismissed the bill.
The facts are not in dispute. Appellant had been a member of the ship's crew of the steamer James E. Davidson during the navigation season of 1936 on the Great Lakes. On December 1 of that year the vessel put in at Lorain, Ohio, and upon December 21, 1936, the date of the injury, it had been withdrawn from navigation. All of the navigating officers and deck crew of the vessel had departed for the winter excepting certain members of the engineer's department, including appellant. All of these men had formerly been members of the crew, but had been paid off after the last trip and had remained on board, in accord with the general practice on the lakes, for the purpose of laying up the vessel. During the navigation season they had been paid on a monthly basis, but in the laying-up work they were paid by the hour, their rate of compensation, however, being the same.
The officer in charge of the work ordered appellant to clean the bilges. No shovel was furnished, so appellant had to work with his hands. A steel splinter ran into his finger, and infection resulted. At the time of the accident appellant's work consisted of overhauling the engines, removing bolts from cylinder-heads and chests, cleaning bilges, and performing similar operations, all of which the District Court held had a direct relation to navigation and commerce.
The District Court found that no crew was aboard the vessel on December 21, 1936; that appellant when injured was engaged in work which did not subject him to the perils of a seaman's occupation, and that he was at that time neither a seaman nor a member of the crew.
The pertinent portions of the Jones Act, Title 46, § 688, U.S.C., 46 U.S.C.A. § 688, read as follows:
"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply * * *."
Seaman is defined in Title 46, § 713, U.S. C., 46 U.S.C.A. § 713, as follows:
"* * * every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board the same vessel shall be deemed and taken to be a `seaman'; and the term `vessel' shall be understood to comprehend every description of vessel navigating on any sea or channel, lake or river, to which the provisions of this chapter may be applicable."
We think the initial question is not whether appellant was a member of the crew, but whether he was a seaman. Section 688 does not require the plaintiff in actions under the Jones Act to be a member of a crew. It is true that the Longshoremen's Act (Title 33, § 901 et seq., U. S.C., 33 U.S.C.A. § 901 et seq.), excludes members of the crew, hence if appellant was a member of the crew at the time of the accident he has no remedy under that section. Taylor v. McManigal, 6 Cir., 89 F.2d 583, 585. But the Jones Act applies only to seamen, and even if it be the fact that appellant was not a member of the crew at the time of the accident, he would not necessarily be precluded from maintaining an action under the Jones Act, which only requires that he be a seaman.
Warner, Adm'x, v. Goltra, 293 U.S. 155, 157, 55 S.Ct. 46, 47, 79 L.Ed. 254, defines "seaman" in these words: In the latter case, where a wireless operator was held to be a seaman, the court said, "a man who serves the ship as the result of a contractual engagement of any kind, and serves her in her navigation, is a member of the crew and entitled to the privileges of a seaman." 243 F. 800.
Under this statute (Title 46, § 688, U.S.C., 46 U.S.C.A. § 688), stevedores engaged in the...
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