Burkholder v. United States

• Decision Date: 17 May 1945
• Docket Number: No. 75 of 1944.,75 of 1944.
• Citation: 60 F. Supp. 700
• Parties: BURKHOLDER v. UNITED STATES et al.
• Court: U.S. District Court — Western District of Pennsylvania

60 F. Supp. 700

BURKHOLDER v. UNITED STATES et al.

No. 75 of 1944.

District Court, E. D. Pennsylvania.

December 29, 1944.

On Reargument May 17, 1945.

Dorfman & Levitan, Gerald A. Gleeson, U. S. Atty., and J. Barton Rettew, Jr., Asst. U. S. Atty., all of Philadelphia, Pa., for libellant.

Rawle & Henderson, of Philadelphia, Pa., for the United States et al.

Krusen, Evans & Shaw, of Philadelphia, Pa., amicus curiae.

KIRKPATRICK, District Judge.

This is the second libel filed by this libellant against the respondents. The first libel, filed October 13, 1943, alleged that the libellant was injured when a ladder, by which he was descending from the ship to the dock, fell, and that the accident was caused by the negligence of the respondents in that the ladder was not fastened or lashed in any way. That libel was dismissed upon exceptions (Burkholder v. United States of America, War Shipping Administration and Fall River Navigation Company, D.C., 56 F.Supp. 106), for the reason that it was clearly a suit under the Jones Act, 46 U.S.C.A. § 688, and that the respondents, being time charterers, were not suable under that Act for the negligence of the owner's employees.

The present libel was filed after the entry of the opinion in the first case but before final decree of dismissal. In the statement of the first cause of action the allegations are substantially the same as in the first libel except that, instead of pleading negligence, the libellant avers that his injuries were caused by the unseaworthiness of the ship in "that the said ladder was not fastened securely or lashed in any way to prevent it from falling, as such, constitutes an unsafe means of access to and from the said vessel." There is also a second cause of action for maintenance and cure and wages. The respondents have again filed exceptions, which must be sustained as to the first cause of action.

Section 33 of the Merchant Marine Act 1920 (Jones Act), 46 U.S.C.A. § 688, provides: "That 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." The Supreme Court in discussing the election referred to in this section in the case of Pacific Steamship Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 77, 73 L.Ed. 220, said: "The right to recover compensatory damages under the new rule for injuries caused by negligence is, however, an alternative of the right to recover indemnity under the old rules on the ground that the injuries were occasioned by unseaworthiness; and it is between these two inconsistent remedies for an injury, both grounded on tort, that we think an election is to be made under the maritime law as modified by the statute." See also Plamals v. Pinar Del Rio, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827; Kuhlman v. W. & A. Fletcher Co., 3 Cir., 20 F.2d 465; Engel v. Davenport, 271 U. S. 33, 46 S.Ct. 410, 70 L.Ed. 813; Skolar v. Lehigh Valley Railroad Company, 2 Cir., 60 F.2d 893. This libel is obviously based upon exactly the same facts as those upon which the libellant first elected to bring suit under the Jones Act against these respondents.

That election was final. The Court in the Pinar Del Rio case, supra 277 U. S. 151, 48 S.Ct. 458, said: "Seamen may invoke, at their election, the relief afforded by the old rules against the ship, or that provided by the new against the employer. But they may not have the benefit of both." Plainly that statement of the law is not susceptible of the interpretation that a seaman may bring an action under the Jones Act and, if it is decided against him, follow up with a second one under the general law of maritime tort. If he could do that he would unquestionably be having the benefit of both remedies. To so hold would amount to construing the "election" required by the statute as no more than a provision against double recovery for one injury, and there would be nothing to prevent his bringing the two actions at the same time and awaiting the result of the one first to come before the Court before proceeding to the final disposition of the other. Hence, the libellant may not now maintain this suit against the same respondents by merely rephrasing his libel to charge unseaworthiness in place of negligence.

There is also another reason for dismissing this libel. To recover indemnity for personal injuries under the general maritime law, independent of the statute, a seaman must show that either the ship or its appliances were unseaworthy. The defect may have existed at the commencement of the voyage or it may have arisen subsequently, but a defect of some kind in ship or appliances must be proved. Whether the germ of the doctrine of unseaworthiness is to be found in some conception of owner's negligence, real or presumed, or in a breach of warranty of seaworthiness, or in a quasi-contractual obligation imposed by the relationship of the parties, in any case some breach of the duty or obligation is requisite in order to give rise to liability for injury. I know of no case based on the old rules of...