Claussen v. Gulf Oil Corporation, Civ. A. No. 9647.

• Decision Date: 24 October 1955
• Docket Number: Civ. A. No. 9647.
• Citation: 136 F. Supp. 110
• Parties: Jens CLAUSSEN, Plaintiff, v. GULF OIL CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

136 F. Supp. 110

Jens CLAUSSEN, Plaintiff, v. GULF OIL CORPORATION, Defendant.

Civ. A. No. 9647.

United States District Court W. D. Pennsylvania.

October 24, 1955.

Jacob Rassner and John J. Laver, New York City, Louis A. Fine, Honesdale, Pa., Frank Reich, Pittsburgh, Pa., for plaintiff.

Foley & Martin, New York City, Russell G. Connolly, Pittsburgh, Pa., for defendant.

WILLSON, District Judge.

In this jury case under the Jones Act, 46 U.S.C.A. § 688, at the close of all the evidence, defendant Gulf Oil Corporation's motion for a directed verdict in its favor was granted. In the Order for Judgment it was indicated that the reason the motion was granted was that there was no employer-employee relationship shown between plaintiff Jens Claussen and Gulf Oil Corporation.

So that Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C. may be complied with, I wish to set forth my reasons for granting this defendant's motion. The Complaint, as filed in the Southern District of New York in 1950, averred that Gulf Oil Corporation and Mene Grande Oil Company, C. A., were each the employer of the plaintiff, Jens Claussen, at the times mentioned. Especially plaintiff averred that the Complaint was under the Merchant Marine Act, approved June 5, 1920, Section 33, commonly known as the Jones Act. The Complaint averred, however, that the defendants Gulf and Mene Grande acted with such community, joinder and unity of interest that the acts of one constituted the acts of the other, each being the alter ego of the other. However, Mene Grande was not served with process, so that it is not in this case.

On application of Gulf, the case was transferred to this District on June 12, 1951. Two pre-trials of this case were held, at neither of which trial counsel for plaintiff, Harvey Goldstein, Esq., appeared. At the pre-trials, defendant raised the issue of lack of employer-employee relationship between plaintiff and Gulf. Gulf's counsel at the pre-trials took the position that plaintiff was not hired by Gulf and that he knew he was not hired by Gulf and that plaintiff was aware at all times that he was engaged by Gulf for service upon the Perija, a Venezuelan vessel. At pre-trial, the nature of the proof which plaintiff expected to offer in support of the employer-employee relationship was not revealed, as local counsel apparently was not aware of the nature and extent of plaintiff's proof on that issue.

The case came on for trial before a jury, beginning October 6, 1955. On the issue of employer-employee relationship there is no substantial contradiction in the evidence. Summarizing briefly, the evidence showed that plaintiff was born in Denmark in 1904 and had spent the larger portion of his working life at sea. He has worked for many companies and on many ships. Prior to September of 1947, he had worked for Gulf Oil Corporation on at least two of its tankers as a junior third assistant engineer. In March of 1947, plaintiff voluntarily left the employ of Gulf and made a trip to Europe on his personal business, returning in August of the same year. On September 3, 1947, plaintiff applied to the Marine Department of Gulf Oil Corporation in New York City for a position and was advised that Gulf had no job, but that there was available a position as an engineer on the Perija, a Venezuelan vessel, owned and operated by Mene Grande Oil Company, C. A., then in Mobile, and shortly to sail for Venezuela. Plaintiff accepted the job.

The Marine Department of defendant Gulf Oil Corporation referred plaintiff to another department on another floor of the Gulf Building, 18 Battery Place, where arrangements were made for plaintiff to obtain a visa from the Venezuelan Consulate in New York City. The cost of the visa and railroad transportation to Mobile, Alabama, was advanced to plaintiff by Gulf, for which he signed a receipt, which stated that plaintiff was to work as a marine engineer for Mene Grande Oil Company, C. A. On the prior occasions when plaintiff had been hired to work aboard ships owned, operated and controlled by defendant Gulf Oil Corporation, all plaintiff's dealings had been concluded in the Marine Department without visiting any other department and when plaintiff was referred to the other department of defendant Gulf by the Marine Department, he knew and understood that he was being hired on behalf of the Mene Grande Oil Company, C. A., to work on its Venezuelan vessel, the Perija.

Plaintiff was given a letter of introduction to the Venezuelan Consul which, after exhibition to the Venezuelan Consul, was retained by plaintiff and which stated that plaintiff had been employed for service on a vessel of Mene Grande Oil Company, C. A.

After plaintiff had been hired to work on the Perija, defendant Gulf Oil Corporation wrote Mene Grande Oil Company, C. A., advising the latter that plaintiff had been hired for them and giving details of plaintiff's age and marital status for the purposes of said Mene Grande Oil Company's employment records.

Defendant was paid a fee by Mene Grande Oil Company, C. A., for its services in hiring plaintiff to act as a member of the crew of the Perija and was reimbursed by Mene Grande for the moneys it had advanced to plaintiff for the consular visa and railroad fare to Mobile.

On September 18, 1947 at Mobile, Alabama, plaintiff says he was injured while crossing a gangplank laid from the dock to the Perija during the onset of a hurricane. This suit was brought to recover damages for his injuries alleged to have been received at that time. Afterwards, plaintif...