Arundel Corp. v. Jasper

• Decision Date: 15 April 1959
• Docket Number: No. 199,199
• Citation: 150 A.2d 415,219 Md. 519
• Parties: ARUNDEL CORPORATION v. Frank W. JASPER.
• Court: Maryland Court of Appeals

Page 519

219 Md. 519

150 A.2d 415

ARUNDEL CORPORATION v. Frank W. JASPER.

No. 199.

Court of Appeals of Maryland.

April 15, 1959.

William C. Holland, Baltimore, for appellant.

I. Duke Avnet, Baltimore (Avnet & Avnet and Martin Moncarz, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

This is an appeal from a judgment entered by the Superior Court of Baltimore City on the verdict of a jury in favor of Frank W. Jasper (Jasper or employee) against the Arundel Corporation (Arundel or employer). The action involved an injury sustained by Jasper from a fall on board a dredge belonging to Arundel. The suit was brought under the provisions of 46 U.S.C.A. § 688, usually referred to as the Jones Act. The first count alleged negligence under the Jones Act. The second charged unseaworthiness under the general maritime law.

On July 29, 1957, the employee was working as an oiler on the dredge Governor Herrick. The employee--because he disregarded the old sea adage: 'One hand for the ship and one for yourself,' which he probably had never heard of--was injured when a loose and slippery step of a ladder tilted while he was descending to the lower engine room, causing him to fall to the deck below and injure his back. There was evidence from which a jury could find that the employer was negligent in allowing the ladder to remain in a dangerous condition.

The Governor Herrick was a non-registered, non-self propelled dredge, approximately 132 feet long and 52 feet wide, with a 12-foot draft at the bow, and a 10-foot 6-inch draft at the stern. It contained steam-driven machinery for the purpose of operating the dredging bucket and equipment. It depended on tugboats for all travel except when the bucket was touching bottom, when, by exerting pressure on the bottom through the boom, it could 'creep' a few feet and change its position. However, in over 57 feet of water the dredge could not reach bottom either to work or to move to a new position. The dredge had been built in Massachusetts in 1912. Its home port was New York City. It was towed to Baltimore in 1955. During the course of the trip down the coast, the dredge carried only a skeleton crew to keep up the steam to man the pumps and maintain the dredging machinery. After its arrival in Baltimore it had engaged in maintaining ship channels in the harbor prior to mid-July 1957.

On July 15, 1957, the dredge commenced work on the Baltimore Harbor Tunnel Project and was thus engaged on July 29, 1957, the date of the accident. At that time the dredge was digging backfill sand off of Wagner's Point for use in covering the newly laid tubes of the tunnel. The dredge would transfer the silt or sand dug from the bottom to scows which would dump the material on the tubes. While so engaged, the dredge was approximately 600 feet from shore in about 14 feet of water.

The employee was employed on 8-hour shifts. He lived at his home in Baltimore and traveled each day to the dredge by means of a crewboat. He never slept on the dredge although there were quarters on board for the crew. He would eat at the crew's mess when a mealtime occurred during the course of his shift but he paid for such meals. He had worked for the employer for approximately eighteen months prior to the accident. Originally a handyman, he had engaged in substituting for deckhands who were off duty, but after a layoff, he began working as an oiler on the Governor Herrick as well as the dredge Maryland. During the entire period he had worked only in Baltimore Harbor. Prior to then he had been a truck driver and had never worked on the water. He did not have seaman's papers. His duties as an oiler consisted of oiling the dredging machinery in the engine room. He took his orders from the chief engineer. If the dredge were to be moved to another location outside Baltimore, he could accompany it as part of the skeleton crew which was usually drawn from the older, more experienced crew members. His duties, then, would be merely to help keep the steam up for the pumps.

Title 46 U.S.C.A. § 688 [the Jones Act] provides in part:

'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 commonlaw right or remedy in cases of personal injury to railway employees shall apply * * *.'

A seaman may institute an action under the Jones Act in a state court for the negligence of his employer resulting in personal injury. If he does, he would have a right of trial by jury, and all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees apply as if suit had been brought in a Federal court. The seaman has the burden of proving negligence, but--since the doctrine of comparative negligence is applicable--his contributory negligence would only subject him to a reduction of the damages allowed in proportion to the amount of the negligence attributable to him. The seaman is also excused from any assumption of risk. Curtis Bay Towing Co. v. Dean, 1938, 174 Md. 498, 199 A. 521; Farrell Lines, Inc. v. Devlin, 1956, 211 Md. 404, 127 A.2d 640.

The employer contends that the employee was not a seaman within the purview of the Jones Act, and that his remedy is limited to the Longshoremen's and Harbor Workers' Compensation Act [33 U.S.C.A. §§ 901-950]. In 1926, the Supreme Court in International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157, held that a longshoreman in the employ of a stevedoring company was a seaman and was entitled to recover under the Jones Act, since the work performed by such men was a maritime service formerly performed by a ship's crew. However, in 1927, the Longshoremen's and Harbor Workers' Compensation Act was enacted. This act specifically excluded the 'master or member of a crew' of a vessel. 33 U.S.C.A. § 903(a)(1). Thus, this act restricts and limits the scope of the Jones Act, by means of negative implications, to seamen who are also either masters or members of a crew of a vessel. See South Chicago Coal & Dock Co. v. Bassett, 1940, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732; Carumbo v. Cape Cod S.S. Co., 1 Cir., 1941, 123 F.2d 991. In these and in subsequent cases the courts developed three tests to determine whether a seaman was to be entitled to the benefits of the Jones Act: (i) that there be a vessel in navigation; (ii) that there be some more or less permanent connection with that vessel; and (iii) that the employee be aboard primarily to aid in navigation. Carumbo v. Cape Cod S.S. Co., supra; Wilkes v. Mississippi River Sand & Gravel Co., 6 Cir., 1953, 202 F.2d 383 certiorari denied, 1953, 346 U.S. 817, 74 S.Ct. 29, 98 L.Ed. 344; Nelson v. Greene Line Steamers, 6 Cir., 1958, 255 F.2d 31, certiorari denied, 1958, 358 U.S. 867, 79 S.Ct. 100, 3 L.Ed.2d 100.

The Bassett case, supra [309 U.S. 251, 60 S.Ct. 545], stated that whether or not an employee is 'a member of a crew' turns on questions of facts and that, if a finding on this question has evidence to support it, the finding is conclusive. This decision, however, appears to have been temporarily narrowed by the Supreme Court in Swanson v. Marra Bros., Inc., 1946, 328 U.S. 1, 66 S.Ct. 869, 872, 90 L.Ed. 1045, which upheld the dismissal of a longshoreman's complaint by stating that recovery is available under the Jones Act only 'to the members of the crew of a vessel plying in navigable waters,' and in Desper v. Starved Rock Ferry Co., 1952, 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205, where it was held that a petitioner was not a seaman despite the finding of the jury in the District Court that he was in that category.

Nevertheless, in Summerlin v. Massman Const. Co., 4 Cir., 1952, 199 F.2d 715, where the facts were quite similar to the facts in the instant case, Judge Soper for the Court ruled that a fireman on a floating derrick anchored in the York River and pouring concrete into forms incident to building a bridge across the river could be considered to be a seaman under the Jones Act. In the Summerlin case the floating derrick--which had no sleeping quarters for the crew members--had to be moved in the water from time to time to facilitate the construction of the bridge since it had no motive power of its own. The District Court, at a hearing on the pleadings under a stipulated statement of facts, found that the injured fireman was not a seaman or a crew member of a vessel engaged in navigation on navigable waters. But the Circuit Court reversed and remanded the case because it found the exact opposite.

And in Texas Company v. Gianfala, 5 Cir., 1955, 222 F.2d 382, the decedent was a boilerman working aboard a submersible drilling barge which was resting on the bottom of a bay. The barge was moved from one location to another about once a year. The duties of the decedent consisted of firing the boilers and, in the event that the barge was moved, of opening the valves that raised it. The facts were uncontroverted. The jury returned a verdict for the widow of the decedent. The Court of Appeals of the Fifth Circuit reversed, holding that the evidence was insufficient to justify such a finding in that the decedent was a member of a drilling crew and not a member of a ship's crew. The Court also held that the vessel was not in navigation. The Supreme Court reversed the Fifth Circuit in a memorandum opinion [Gianfala v. Texas Company, 1955, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775, rehearing denied 1956, 350 U.S. 960, 76 S.Ct. 346, 100 L.Ed. 834], although the facts were uncontroverted. In so doing, the Supreme Court cited the Bassett case, supra, the Summerlin case, supra, the Wilkes case, supra, and the Gahagan case, infra.

The Supreme Court, however, removed any doubt as to its...