Frankel v. Bethlehem-Fairfield Shipyard

• Decision Date: 26 December 1942
• Docket Number: No. 5007.,5007.
• Citation: 132 F.2d 634
• Parties: FRANKEL v. BETHLEHEM-FAIRFIELD SHIPYARD, Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

132 F.2d 634 (1942)

FRANKEL v. BETHLEHEM-FAIRFIELD SHIPYARD, Inc.

No. 5007.

Circuit Court of Appeals, Fourth Circuit.

December 26, 1942.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

I. Duke Avnet and Wm. Taft Feldman, both of Baltimore, Md., for appellant.

Robert E. Coughlan, Jr., of Baltimore, Md., for appellee.

DOBIE, Circuit Judge.

This is an appeal by Lloyd Frankel, plaintiff below, from an order sustaining a motion to dismiss his complaint filed as a seaman under the Jones Act, 46 U.S.C.A. § 688. Frankel sought damages for personal injuries arising in the course of his employment by the defendant, Bethlehem-Fairfield Shipyard, Inc., while he was working on the "Liberty" vessel S. S. Patrick Henry. At the time of the accident, the vessel, lying in navigable waters in the port of Baltimore, had been launched but not fully completed or commissioned.

The material facts in the case are not in dispute and were thus succinctly summarized by the court below:

"The defendant is a Maryland corporation engaged largely in shipbuilding. At the time of the injury to the plaintiff he was employed by the defendant as a `handy man' on one of the New Liberty ships, being built by the defendant. This ship had been launched and was lying in navigable waters in the Port of Baltimore, Maryland, but had not been completed. The plaintiff was engaged in installing machinery and equipment in the ship and was particularly occupied at the time of his injuries in assisting in installing dynamos in the engine room of the vessel. He alleges that his injury was due to the negligence of the defendant in failing to provide adequate protection and equipment on the platform on which he was working, in consequence of which he fell therefrom and was permanently injured. The accident occurred on or about October 14, 1941. Thereafter he filed a claim with the Maryland State Industrial Accident Commission claiming the benefits of the State Workmen's Compensation Act, Code Md.1939, art. 101, § 1 et seq. The Commission has passed what is said to be an ex parte formal order awarding him compensation at the rate of $20 per week accounting from November 2, 1941; but it is said that no adversary hearing has yet been held by the Commission in the case, and the plaintiff has not yet accepted any compensation. The defendant carries workmen's compensation insurance as required by the Maryland statute. The suit in this case was filed by the plaintiff on May 28, 1942."

Upon the foregoing facts the lower court held (1) that a shipyard employee who is assisting in the commissioning of a launched but incompleted vessel lying in navigable waters is not a seaman within the meaning of the Jones Act, and (2) that the federal admiralty jurisdiction does not apply to injuries sustained by an employee while working on such a vessel. Accordingly, the defendant's motion to dismiss the complaint was sustained. The plaintiff has duly appealed to this Court and we affirm the judgment of the lower court on the first ground set out above.

Plaintiff's complaint was properly dismissed on the ground that he was not a "seaman" within the meaning of the Jones Act, inasmuch as he was not engaged in maritime employment at the time of the accident. London Guarantee & Accident Co. v. Industrial Accident Commission, 279 U.S. 109, 49 S.Ct. 296, 73 L.Ed. 632. It is true that the Jones Act is broad, and the rule of interpretation is liberal as to who is a seaman under the Act. Warner v. Goltra, 293 U.S. 155, 55 S.Ct. 46, 79 L.Ed. 254; Nogueira v. New York, N. H. & H. R. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754; South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L. Ed. 732; Robinson on Admiralty (1939) 318 et seq. But it is fallacious to assume that whenever a tort occurs on navigable waters, the person injured may automatically avail himself of the Jones Act.

Counsel for the plaintiff, however, strenuously contends that there is no difference, for practical purposes, between a man who is injured while working on an incompleted vessel lying in navigable waters, and a man injured while working on a completed vessel in navigable waters. We do not regard this difference as slight and meaningless in the light of two important factors. In the first place, a contract to build a vessel is non-maritime in nature. Robinson on Admiralty (1939) 162-165; Peoples Ferry Co. v. Beers, 20 How. 393, 15 L.Ed. 961. As stated by the Supreme Court:

"Under decisions of this court the settled rule is that a contract for the complete construction of a ship or supplying materials therefor is nonmaritime, and not within the admiralty jurisdiction." Thames Towboat Co. v. The Francis McDonald, 254 U.S. 242, 243, 41 S.Ct. 65, 66, 65 L.Ed. 245.

Moreover: "Whether the character of the contract is maritime or not may also give maritime...