Correia v. Van Camp Sea Food Co.

• Decision Date: 12 September 1952
• Court: California Court of Appeals Court of Appeals
• Parties: CORREIA v. VAN CAMP SEA FOOD CO., Inc. et al. Civ. 18977.

Page 81

248 P.2d 81

113 Cal.App.2d 71

CORREIA v. VAN CAMP SEA FOOD CO., Inc. et al.

Civ. 18977.

District Court of Appeal, Second District, Division 1, California.

Sept. 12, 1952.

Rehearing Denied Oct. 8, 1952.

Hearing Denied Nov. 10, 1952.

Lasher B. Gallagher, Los Angeles, for appellants.

Ekdale, Shallenberger & Toner, Arch E. Ekdale, Gordon P. Shallenberger, George E. Toner, San Pedro, for respondent.

WHITE, Presiding Justice.

Plaintiff as administratrix of the estate of her deceased son, Joseph Edward Correia, brought an action for damages by reason of his death which occurred in the course of his employment as the member of a crew of the fishing boat Sea Hound, a tuna clipper operated out of the port of San Diego, California. The vessel was of United States rigistry, wholly owned by the defendants, citizens of the United States. The action was brought for the benefit of the surviving parents of the deceased, pursuant to the provisions of the Jones Act, 46 U.S.C.A. § 688. The jury awarded plaintiff damages in the sum of $42,500 and from the judgment on such verdict the present appeal is prosecuted.

At the time of the incidents which resulted in the death of decedent, the Sea Hound was operating in the vicinity of the Galapagos Islands off the coast of Ecuador. In the operation of seining for live bait, it was frequently necessary, and a regular custom, to send a member of the crew overboard, equipped with a diving helmet, for the purpose of freeing the seine or bait net when it became entangled or snagged on the bottom of the sea, the bottom in this area consisting of rough, uneven lava and coral rock, with many crevices, depressions or craters ranging from fifteen to twenty feet in depth. It was while so diving that the decedent met his death by drowning.

It was charged in the complaint that the defendants negligently failed to supply and maintain the vessel, her equipment, fixtures and tackle in a fit and seaworthy condition, negligently failed to equip the vessel with suitable appliances, and negligently failed to provide the decedent with a safe place to work in that they failed to provide competent personnel to man the air pumps used in diving and to man the other diving equipment which the decedent was compelled to use, and negligently failed to provide an adequate or any means of communications between the surface and the said decedent while he was engaged in diving, and negligently failed to provide a competent lookout or any lookout to watch for the safety of the decedent while he was engaged in diving.

The Jones Act provides that the personal representative of any seaman who shall suffer death by reason of personal injury may maintain an action for damages at law. In an action such as the one now before us, the Jones Act provides that 'all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable.' The Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, provides that recovery may be had for death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

Appellants contend that the superior court was without jurisdiction of plaintiff's asserted cause of action for the reason that the death of decedent occurred without the territorial limits of the United States. They place great reliance upon the case of New York Central Railroad Co. v. Chisholm, 268 U.S. 29, 45 S.Ct. 402, 403, 69 L.Ed. 828, 832, wherein it was held that the administrator of the estate of an employee of the New York Central Railroad Company operating between New York and Montreal, Canada, who suffered fatal injuries during the course of his employment, at a point some thirty miles north of the international line, did not have a cause of action based upon the Federal Employers' Liability Act. In the case just cited the court held that 'The carrier was subject only to such obligations as were imposed by the laws and statutes of the country where the alleged act of negligence occurred, and the administrator could not rely upon any others.'

We are persuaded that the Jones Act gives a right of recovery to the seaman as such, and that jurisdiction over a suit filed thereunder does not depend upon the place where the injury is sustained but on the relation of the seaman's service to the operation of the vessel plying navigable waters. As was said in Taylor v. Atlantic Maritime Co., 2 Cir., 179 F.2d 597, 599, with reference to the case of New York Central Railroad Co. v. Chisholm, supra, so strongly relied upon by appellants, 'However, the value as a precedent of this decision of the Supreme Court in actions under the Jones Act was at best gravely impaired by Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368.' The substance of the decision in the case just cited was in the following passage: 'We do not read the act * * * (for the relief of seamen) as expressing the will of Congress that only the same defaults imposing liability upon carriers by rail shall impose liability upon carriers by water'. And it was further said in the case of Taylor v. Atlantic Maritime Co., supra, 179 F.2d at page 598, 'The Jones Act gives to an injured seaman an 'action' in which '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.' Under the ordinary convention, if a seaman is injured on the high seas, his rights are the same as though he had been injured within the country of the ship's flag; * * *. When a seaman signs articles in a foreign port for service on an American ship, and is injured on the high seas, there is no embarrassment, whether one regards the claim as sounding in tort, or in contract. So far as it sounds in tort, it depends upon American law--the law of the flag----; so far as it sounds in contract, although the law of the place where the contract is made will ordinarily apply, it is a well-recognized exception that in all that concerns the 'internal economy' of the ship the law of the flag controls.' See also Cain v. Alpha S. S. Corp., 2 Cir., 35 F.2d 717, 718.

Also in the case just quoted from, in commenting further on the case of Cortes v. Baltimore Insular Line, supra, the court said, 179 F.2d at page 600, '* * * but it does establish beyond question that the Railway Act is not to be taken as a rigid pattern for all rights granted by the Jones Act.'

The conditions at sea differ widely from those on land and the diversity of conditions breeds diversity of duties. We are convinced that the weight of authority supports us in saying that in actions of the kind now engaging our attention, before we abrogate the age-old maritime principle that the law of the flag controls in such matters we must find a more definite expression of that purpose by the legislative branch of the government.

Appellants next urge that the evidence is insufficient to support the implied finding of the jury that they were guilty of actionable negligence.

In this regard appellants assert that before actionable liability may be fastened upon them the following factual bases must exist:

(1) The death must result in whole or in part from the personal negligence of one or more of the officers of the corporate defendant or one or more of the other agents or employees of the employer of a seaman; or

(2) By reason of some defect or insufficiency, due to the negligence of the employer of such seaman, in its or his (as the case may be) appliances, machinery, boats or other equipment.

With reference to the second possible factual basis of liability, appellants insist that it refers exclusively to the physical property of the employer used in and about the course of the employment of the seaman. With this contention we cannot agree. In an action prosecuted under the Federal Employers' Liability Act it has been held that the terms 'sufficiency' and 'defect' are not restricted to physical property, but that the term 'sufficiency' applies to the amount of help assigned to do a particular job and to the duty resting upon the employer to furnish his employee reasonably sufficient help, Cheffey v. Pennsylvania Ry. Co., D.C., 79 F.Supp. 252, 258. And, under the Jones Act the cases are uniform in holding that in making preparations for a voyage the owners of a vessel are under a duty to provide a vessel manned with a sufficient crew and at all times to see to the safety of the crew, Koehler v. Presque-Isle Transp. Co., 2 Cir., 141 F.2d 490, 491: The Rolph, 9 Cir., 299 F. 52, 55; Texas Co. v. N. L. R. B., 9 Cir., 120 F.2d 186, 189. A breach of such duty is therefore negligence and actionable under the Jones Act. Liability is not limited to negligence of the employer of a seaman in its or his appliances, machinery, boats or other equipment.

In support of their contention that the evidence was insufficient to support the verdict, appellants contend there was no evidence showing that the Sea Hound was not equipped with proper emergency rope. However, assuming the vessel was equipped with proper rope, there is evidence that the agents and employees of appellants did not use any rope in conducting the diving. If any rope was aboard it was not supplied to aid in the diving operations.

While conceding 'for the purpose of argument only' that the stoppage of the air pump supplying air to Correia, the diver, was negligence, appellants excuse such stoppage with statement that it was but momentary. The answer to this is that there is substantial evidence to support a finding that the stoppage of the pump continued for a matter of several minutes. It was for the jury to determine whether the pumps stopped for seconds or minutes.

Appellants urge...