Carbone v. Ursich

• Decision Date: 21 December 1953
• Docket Number: No. 13302.,13302.
• Citation: 209 F.2d 178
• Parties: CARBONE et al. v. URSICH et al. THE DEL RIO.
• Court: U.S. Court of Appeals — Ninth Circuit

209 F.2d 178 (1953)

CARBONE et al. v. URSICH et al. THE DEL RIO.

No. 13302.

United States Court of Appeals Ninth Circuit.

December 21, 1953.

Margolis & McTernan, John W. Porter, Los Angeles, Cal., William B. Murrish, Los Angeles, Cal., on the brief, for appellants.

Allen F. Bullard, San Pedro, Cal., for appellees.

Before BONE, ORR and POPE, Circuit Judges.

POPE, Circuit Judge.

This matter is before us upon an agreed statement of the case made by the parties and approved and certified by the district court pursuant to Rule 76, Federal Rules of Civil Procedure, 28 U.S.C.A.

The appellants, libelants below, were fishermen employed as members of the crew of the fishing boat, "Western Pride". Under their contract with the owners of the vessel, their compensation was to be 61% of the proceeds from the sale of the fish caught after allowance of certain specified expenses. None of them owned any interest in the vessel or in its purse seine net. On October 12, 1949, the vessel put out from Los Angeles harbor to fish for sardines. It set its net and secured a substantial catch. While the net was in the water with that catch it was fouled by the respondent fishing boat "Del Rio". The fouling was caused by the negligence of the Del Rio and resulted in the loss of the fish and damaging of the net. In addition, as a direct and proximate result of the fouling and damaging mentioned, the libelants not only lost their share of the proceeds of the catch then in the net but they also lost the means and opportunity for fishing during the period from October 12 through October 15, 1949, which period was required for repairing the net. The trial court found in addition to the facts above stated, that the evidence was sufficient, if recovery was allowed at all, to warrant recovery of damages by libelants against the respondents not only for the loss of the catch enclosed in the net when it was fouled, but also for the loss of prospective catches of fish during the period mentioned. It thereupon appointed a special master for the purpose of computing and determining the damages. The master filed a report to the effect that no damage was recoverable solely by reason of the decision of this court in Borcich v. Ancich, 191 F.2d 392. This report was confirmed by the court and thereafter a decree was entered thereon adjudging that the above named appellants and libelants recover nothing from the respondents and awarded costs of suit to the respondents.

It will be noted that the situation of the appellant fishermen was almost precisely the same as that of the fishermen in Borcich v. Ancich, supra, decided by this division of this court on August 16, 1951. In each case the fishermen were employed on the "lay" plan, and in each case the district court held that the negligence of the respondent vessel was the sole cause of a collision which resulted in damage requiring time for repairs during which the fishermen were deprived of the earnings which they otherwise would have made.

Upon this appeal we are asked to overrule so much of our decision in Borcich v. Ancich, supra, as held that those fishermen were not entitled to recover against the offending vessel or its owners. The case has been extraordinarily well briefed and we have considered with great care the one question here presented which is whether the Borcich case was rightly decided. We have concluded that it was not, and that that portion of it which dealt with the rights of the fishermen should be overruled.

In our former opinion we noted earlier cases which had allowed fishermen members of the crew to recover for loss of prospective profits under circumstances not substantially different from those present here and in the Borcich case. We noted The Columbia, D.C.N.Y.1877, 6 Fed.Cas.No.3,035, p. 173. Another case which we there cited was The Mary Steele, D.C.Mass.1874, 16 Fed.Cas.No. 9,226, p. 1003, in which the fishermen members of the crew were allowed recovery as joint libelants with the owners for their shares in mackerel catches which they lost or were prevented from securing through the negligent injury to a seine net. Although not noted in the Borcich case, the two cases just cited are in accord with the English case of The Risoluto (1883), 5 Asp.Mar. Cas. 93.

We also alluded to another group of cases of which Taber v. Jenny, D.C. Mass.1856, 23 Fed.Cas.No.13,720, p. 605, is an illustration, in which the owners of the fishing vessel were permitted to recover from the respondents the lay-share belonging to the crew members,¹ in addition to their own damages.

In United States v. Laflin, 9 Cir., 24 F.2d 683, 685, this court cited with approval Taber v. Jenny, supra, and upholding the right of the owners of the vessel to hold the respondents for the fishermen's lay-share of the proceeds, said of that and other cases in accord with it: "It is clear from the foregoing and other like decisions that the funds received by the owners in a case such as this are charged with a trust for the payment of the claims of the officers and crew of the vessel."

The Laflin case, supra, was brought against the United States pursuant to an act of Congress which permitted a recovery for damages and loss occasioned by the interference of United States vessels with sealing in the Bering Sea. Speaking of that statute this court said: "It must be presumed to have been enacted in view of the well-settled principles applicable to the owner's right to represent the crew in such cases, and without intention to exclude from the amount recoverable the shares of members of a crew who were not citizens of the United States."²

It will be noted that in Taber v. Jenny, supra, United States v. Laflin, supra, and the other cases in accord, the recovery was by the owner of the vessel on behalf of the crew members. Those cases did not hold that the crew members themselves could sue, although they expressly recognized that the owners hold the crew's share of the recovery in trust for the latter. In Taber v. Jenny, it was said: "If the owners neglect to take proper means to obtain indemnity, they would be responsible to seamen for that neglect."³ What we think should be particularly emphasized at this point is that without holding the crew members might themselves sue, or even that they might join the owner in suing, as was done in the earlier cases of The Columbia and The Mary Steele, and The Risoluto, yet Taber v. Jenny and United States v. Laflin, supra, did hold that the respondent on its part was liable for amounts thus lost by the crew and must respond in damages accordingly. Under those cases, whatever the procedural rule may have been, as to who may bring the suit, yet as a matter of substance, the liability for those damages was clear.

In the Borcich case, although recognizing and citing these earlier cases, or some of them, we concluded that when in 1927, the Supreme Court decided the case of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290, it laid down a rule which required us to hold that the fishermen crew members could not maintain an action against the third party tortfeasor who negligently disabled the fishing vessel or her net. Now, after further examination of the same authorities to which we alluded in the Borcich case, we are satisfied that the Robins Dry Dock case did not operate to establish a rule contrary to the previously recognized doctrine that a respondent in a case of this character, must respond in damages for the loss of the fishermen's lay share. We are of the opinion that this liability is enforceable not only at the suit of the owner of the fishing vessel, but also that the fishermen themselves may recover.

As we now view the matter, it must be assumed that Mr. Justice Holmes, who wrote the opinion in the Robins Dry Dock case, was familiar with such cases as The Columbia, The Mary Steele, and Taber v. Jenny, supra. It is noteworthy that the Robins Dry Dock case contains no internal evidence of an intention to reverse a course of prior decisions relating to the liability of persons in the position of the respondent for losses sustained by fishermen such as these appellants. We also note that this court's decision in the Laflin case, supra, and in the other cases cited in note 2, supra, was subsequent to the decision in Robins Dry Dock. Certainly at that time this court did not consider that the rule of Taber v. Jenny had been altered by the Robins Dry Dock case for Taber v. Jenny was cited with approval in the Laflin case.

Further along this line is to be noted our decision in Van Camp Sea Food Co., Inc., v. Di Leva, 9 Cir., 171 F.2d 454, in which this court held that a vessel chargeable with negligence was liable for damages suffered by the crew of a damaged fishing vessel. The court had no difficulty in characterizing what had happened there as an actionable wrong. Its only problem arose out of the dictum of the Laflin case, supra, to the effect that the action to recover for the damages suffered by the crew must be brought by the owner of the vessel damaged. This court held that in that particular case, since both vessels belonged to the same owner, the fishermen themselves could sue. The significant thing about the Van Camp Sea Food case is that this court did not question the proposition that there existed liability to be enforced by someone. This was of course long after the Robins Dry Dock decision.

Now a reexamination of what was said in Robins...