Fink v. Shepard Steamship Co.

• Decision Date: 06 April 1948
• Citation: 183 Or. 373,192 P.2d 258
• Parties: FINK <I>v.</I> SHEPARD STEAMSHIP CO.
• Court: Oregon Supreme Court

183 Or. 373

192 P.2d 258

FINKv.

SHEPARD STEAMSHIP CO.

Supreme Court of Oregon.

Argued March 4, 1948.

Reversed and remanded April 6, 1948.

Rehearing denied May 18, 1948.

United States — Suits in Admiralty Act — Clarification act

1. Under the Clarification act, seamen employed by the United States on government vessels are not employees of the United States as to certain rights, while as to certain rights, including right to recover for death and injuries, such seamen have same status as seamen privately employed and have a remedy by suit against United States under the Suits in Admiralty Act after claim is administratively disallowed. Suits in Admiralty Act, § 1 et seq., 46 U.S.C.A. § 741 et seq.; 50 U.S.C.A. Appendix, § 1291.

Courts — Suits in Admiralty Act — Death or injury

2. The remedy under the Suits in Admiralty Act for death or injury of a seaman on a vessel owned and operated by the United States through a private corporation under a general agency agreement, in light of the Clarification Act, is exclusive. Suits in Admiralty Act, § 1 et seq., 46 U.S.C.A. § 741 et seq.; 50 U.S.C.A. Appendix, § 1291.

Seamen — Suits in Admiralty Act — General agents — Not employers

3. The Suits in Admiralty Act, in connection with the Clarification Act, does not contemplate that general agents, operating vessels for War Shipping Administration under general agency contracts, are employers, hence such general agents are not liable to suit as employers for death or injury of seamen. Suits in Admiralty Act, 1 et seq., 46 U.S.C.A. § 741 et seq.; 50 U.S.C.A. Appendix, § 1291.

Admiralty — Seamen — Government vessels — Jury trial — Jones Act

4. The statutes pertaining to rights of seamen employed on government owned vessels, operated for government by general agencies under general agency agreements, in light of legislative history of such acts, demonstrate congressional intent to withhold right of jury trial from government employed seamen for duration of war. Jones Act, 46 U.S.C.A. § 688; Suits in Admiralty Act, § 1 et seq., 46 U.S.C.A. § 741 et seq.; 50 U.S.C.A. Appendix, § 1291; Admiralty Rule 46, 28 U.S.C.A. following section 723.

Seamen — Clarification Act — Private corporation — War Shipping Administration — Injury

5. Under the Clarification Act, a private corporation operating vessel belonging to the United States under general agency contract with War Shipping Administration was not liable as employer for injury sustained by seaman employed on such vessel. Clarification Act, 50 U.S.C.A. Appendix, § 1291.

                  See note, 13 A.L.R. 1200
                  54 Am. Jur. 644
                  56 C.J., Seamen 699
                  48 Am. Jur. 122
                

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge.

Erskine B. Wood, of Portland, argued the cause for appellant. With him on the brief were Wood, Matthiessen & Wood, of Portland.

Edwin D. Hicks, of Portland, argued the cause for respondent. With him on the brief were Green & Landye, Nels Peterson, and Thomas H. Tongue III, of Portland.

H.G. Morison, Acting Assistant Attorney General, of Washington, D.C.; Henry L. Hess, United States Attorney, of Portland; J. Frank Staley and Leavenworth Colby, Special Assistants to the Attorney General, Attorneys for the United States, of Washington, D.C., filed a brief for the United States as amicus curiae, urging reversal.

Lasher B. Gallagher, of Los Angeles, filed a brief as amicus curiae, urging reversal.

Before ROSSMAN, Chief Justice, and LUSK, BELT, KELLY, BAILEY and BRAND, Justices.

Action by Fred W. Fink against Shepard Steamship Company to recover for injuries sustained while plaintiff was employed as a seaman on a vessel owned by the United States through the War Shipping Administration and operated by defendant under a general agency service agreement. Judgment for plaintiff and defendant appeals.

REVERSED AND REMANDED.

LUSK, J.

This case, like Hust v. Moore-McCormack Lines, 328 U.S. 707, 90 L.ed. 1534, 66 S.Ct. 1218 (reversing 176 Or. 662, 158 P. (2d) 275), is concerned with the rights of seamen to recover for injuries sustained while employed on United States vessels as employees of the United States. There is but one point of difference: Hust was injured a few days before March 24, 1943, the effective date of Public Law 17 (78th Cong., 57 Stat. 45), otherwise known as the Clarification Act; while the plaintiff Fink was injured on August 2, 1943, after the act became effective.

Fink recovered a judgment based on the verdict of a jury from which the defendant has appealed. The principal question for decision here, as in the Hust case, is whether the plaintiff is entitled to maintain his action under the Jones Act, Act of March 4, 1915, 38 Stat. 1185, as amended June 5, 1920, 41 Stat. 1007 (46 U.S.C. 688), with right to trial by jury, or whether his sole remedy is in the federal court against the United States under the Suits in Admiralty Act, 41 Stat. 525 (46 U.S.C. 741). The question was raised on the trial by motions for nonsuit and a directed verdict, and later by motion for judgment notwithstanding the verdict, and the court's rulings denying these motions are assigned as error.

Plaintiff was an able-bodied seaman on the S.S. George Davidson, a Liberty ship owned and operated by the United States through the War Shipping Administration. The defendant steamship company managed certain business of the vessel as General Agent for the Administration under a General Agency Service Agreement designated "GAA 4-4-42," identical with that involved in the Hust case. Plaintiff was injured while the vessel was at sea as the result, he claims, of the negligence of his superior officer in ordering him, unaided, to dump overboard the contents of an excessively heavy garbage can at a time when a strong sea was running.

It is the contention of the plaintiff that the Hust case, which held that a seaman injured under like circumstances was entitled to sue and recover from the agent under the Jones Act in a state court, with the right to trial by jury, controls the decision here. The defendant, on the other hand, asserts, first, that this case presents a question which the Supreme Court of the United States expressly declined to decide in the Hust case, namely, the effect of the Clarification Act upon seamen's remedies with respect to injuries incurred after March 24, 1943, and that the purpose of that act was to remit the injured seaman for vindication of his rights to a suit under the Suits in Admiralty Act against the United States in the federal court; and, second, that in any event, the Hust decision has been overruled by the later decision in Caldarola v. Eckert, 332 U.S. 155, 91 L.ed. 1566, 67 S.Ct. 1569. The ultimate position of the defendant is supported by a brief filed by the United States as amicus curiae, the reasoning in which, however, is very different in some respects from that of counsel for the defendant.

For a solution of these questions a careful examination of the ground of decision by the Supreme Court of the United States in the Hust case is necessary. As a background for that examination we start with a brief statement of what this court held when the case was before it. From an analysis of the terms of the agency agreement and a consideration of the evidence relating to the functions actually performed by the agent, we reached the conclusion that Hust was not an employee of the agent, but exclusively of the Government. It followed, in our view, that the remedy given by the Jones Act, which was created only in favor of an employee against his employer for the latter's negligence, was not available to Hust in an action against Moore-McCormack. In reaching that conclusion we applied the familiar common law test for determining whether one is an employee of another, namely, "whether the latter has the right to order, direct and control the former in the performance of the work" (176 Or. 670). We held, further, that the General Agent was not owner of the vessel pro hac vice. There the opinion might have stopped but for the argument of the plaintiff that Congress had recognized the status of seamen on Government-owned vessels as employees of the agents in section 1 of the Clarification Act, hereinafter set out. Upon this point this court held that the Act did not deal with the liability of agents. We said:

"We do not mean to suggest that the purpose of the law was to grant to agents immunity from suit for their own torts, but simply that it leaves the question of the agents' liability untouched. It does not purport to create between the seamen and general agents of the War Shipping Administration a relationship of employer and employee, which, but for the Act, would not exist, nor to impose upon such agents liability for a tort which they did not commit. The whole purpose and intent of Section 1, in our opinion, was to create and declare in favor of seamen employed by the United States rights and remedies against the United States." (176 Or. 689).

Entertaining these views, it became unnecessary for us to express an opinion as to whether the so-called retroactive provision of the Clarification Act, hereinafter set forth, upon which the decision of the Supreme Court of the United States to some extent turned, gave Hust an election to pursue a remedy which we had already held was never available to him.

The Hust case was decided in the Supreme Court of the United States by a bench of seven judges. It was a four to three decision. The opinion of the court was written by Mr. Justice RUTLEDGE and concurred in by Justices BLACK, DOUGLAS and MURPHY. In addition, Mr. Justice DOUGLAS wrote a concurring opinion in which Mr. Justice BLACK joined. A dissenting opinion by Mr. Justice REED was concurred in by Justices FRANKFURTER and BURTON.

The opinion of Mr. Justice RUTLEDGE proceeds upon the following grounds: Prior to 1942, when the Government took over practically the entire merchant marine, seamen employed on vessels of the United...