Cassil v. United States Emergency Fleet Corp.

• Decision Date: 07 May 1923
• Docket Number: 3972.
• Citation: 289 F. 774
• Parties: CASSIL v. UNITED STATES EMERGENCY FLEET CORPORATION et al.
• Court: U.S. Court of Appeals — Ninth Circuit

289 F. 774

CASSIL v. UNITED STATES EMERGENCY FLEET CORPORATION et al.

No. 3972.

United States Court of Appeals, Ninth Circuit.

May 7, 1923

The appellant brought a libel in personam against the appellees to recover for personal injuries which he received upon the steamship West Kader, an American vessel owned by the United States Emergency Fleet Corporation, while said ship was at dock, and was being loaded with cargo by the appellee, the Portland Stevedoring Company, a corporation, in whose service the appellant was working in loading said ship. The libel alleged that, while the appellant was assisting in the effort to land a sling load of lumber on a truck on said ship, the winchman, operating the winches of said ship, carelessly and negligently raised the sling load by a sudden, violent jerk whereby the appellant's hand was caught between the loaded sling and the hatch coaming. Negligence was charged both against the ship and the stevedoring company. The court below dismissed the libel, holding that no cause of suit was alleged against the Fleet Corporation, there being no allegation of the unseaworthiness of the vessel, and that there was no cause of suit against the stevedoring company for the reason that the winchman, through whose alleged negligence the accident occurred, was a fellow servant of the appellant, for whose negligence the stevedoring corporation was not liable.

Seneca Fouts and Wm. H. Hallam, both of Portland, Or., for appellant.

E. L McDougal, of Portland, Or., for appellee Portland Stevedoring Co.

Wood Montague & Matthiessen, of Portland, Or., for appellee United States Emergency Fleet Corporation.

Before GILBERT, MORROW, and RUDKIN, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The appellant was engaged in rendering a maritime service when he received his injuries. He could hold the Emergency Fleet Corporation responsible for damages only on the theory that the vessel was unseaworthy in respect to the instrument whereby his injuries were occasioned. There is no allegation in the libel that the accident resulted from the use of any defective appliance of the ship. Nor can he hold the stevedoring company responsible if the negligent act which caused his injuries was that of a fellow servant. The Hoquiam, 253 F. 627, 165 C.C.A. 253; The Daisy (C.C.A.) 282 F. 261; Western Fuel Co. v. Garcia (C.C.A.) 260 F 839.

The appellant contends that the case is relieved of the fellow servant rule by section 33 of the American Merchant Marine Act (41 Stat. 1007), which declares 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 gives to the plaintiff in such action the benefit of all statutes of the United States which modify or extend the common-law right or remedy in cases of personal injuries to railway employees, and further contends that a stevedore is declared to be a seaman by section 4612, Rev. Stats. (Comp. St. Sec. 8392), which provides that 'every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board' any vessel belonging to any citizen of the United States 'shall be deemed and taken to be a seaman.'

But it was not the intention of the statute to include as seamen longshoremen or stevedores. The heading of the title under which section 4612 is found is 'Merchant Seamen.' The provisions under that title all relate to vessels belonging to citizens of the United States and the employment, wages, protection, discharge, and rights of merchant seamen. The statute was not intended to and does not enlarge the definition of 'seaman' as it was then understood and accepted in admiralty law. Generally speaking, a seaman is any one who, by contractual engagement with the owner, master, or charterer of a vessel, serves the vessel in navigation. He is not necessarily a sailor. He may be a cook, fireman, or even a bartender. A stevedore renders no service in actual navigation. It is true that he renders service incidental to navigation in loading and unloading vessels, a service which is maritime in its nature but he is a landsman and he does not belong on the...