Gerradin v. United Fruit Co.

• Decision Date: 08 July 1931
• Docket Number: No. 4324.,4324.
• Citation: 51 F.2d 417
• Parties: GERRADIN v. UNITED FRUIT CO.
• Court: U.S. District Court — Eastern District of New York

51 F.2d 417 (1931)

GERRADIN v. UNITED FRUIT CO.

No. 4324.

District Court, E. D. New York.

July 8, 1931.

Benjamin Bernstein, of New York City (Jay S. Jones, of Brooklyn, N. Y., and Max J. Wolff, of New York City, of counsel), for plaintiff.

W. Dale Williams, of New York City (M. L. Fearey and G. F. Tinker, both of New York City, of counsel), for defendant.

BYERS, District Judge.

This case came to trial on the common-law calendar of this court (having been removed from the state Supreme Court) on March 5, 1931.

The plaintiff, an American citizen, sues to recover damages for personal injuries sustained by him, while in the employ of the defendant, as a cook's mate on the steamship Castilla; that is, he sought employment on August 30, 1929, in the city of New York, at the office of the defendant, and was told to apply on board the Castilla at Pier 9, East River. This he did, and was accepted, and told to report for duty the following day, which was a Saturday. He worked on the ship as directed, and on the next day she sailed for Central America.

The plaintiff signed on, before the chief steward, probably on August 30th; this is a matter of conjecture, as are the precise terms of employment, because the defendant testifies that the ship's articles have been lost.

In the absence thereof, no presumptions can be indulged as to whether the contractual relations of the parties were ordinary or extraordinary, conventional or otherwise.

The importance of this element of the case lies in the undisputed fact that the Castilla is registered under the flag of the Republic of Honduras, although owned by one American corporation and chartered to another, the defendant.

The occurrence giving rise to the plaintiff's claim happened on Tuesday, September 3, 1929, the third day out, when the vessel was on the high seas.

The plaintiff was mounting a ladder connecting two of the decks, carrying a pail of vegetables in his right hand, weighing 40 pounds or so. He grasped the rail of the ladder or steps with his left hand, and, having reached the seventh step, was precipitated to the deck below, falling on his left side, and suffering injuries, including the rupture of the left kidney, which later was removed at a hospital in this city.

At the trial, the plaintiff testified that he was caused to slip and fall, because, as he mounted the steps, his head being bowed, he received in his face and chest a pailful of soapy water, discharged by an unidentified sailor or deck hand toward the top of the steps which he was mounting; that some of the water fell on the steps, making them slippery, whereby he was caused to lose his footing, fall, and suffer the injuries in question.

The defendant called one or more witnesses who stated that, upon the return to this port of the Castilla, the plaintiff made known his injuries, but stated that he was caused to fall by a lurch of the ship, and that no mention was made of the pailful of soapy water.

At the close of the case, the defendant moved for the direction of a verdict, and decision was reserved. The verdict of the jury was rendered on March 10, 1931, and was for the plaintiff in the sum of $10,000.

The motion for the directed verdict has been carefully presented by both sides, and the single question discussed is whether the plaintiff, being an American sailor, employed in New York by an American corporation, is entitled to the benefit of the Jones Act (section 33 46 USCA § 688); the injury having occurred on the high seas, aboard a vessel of Honduran registry.

The absence of the ship's articles manifestly removes any question of the plaintiff's having contracted to be bound by the laws of the Republic of Honduras, touching his relations to his employer. Similarly it precludes considering whether there was a reservation of rights to seamen under the statutes of this country.

The question, therefore, seems to turn upon whether the Honduran registration of the Castilla necessarily imposed upon the plaintiff the law of that republic, by which alone his legal rights against the defendant were measured.

Under those laws, according to the testimony, the rights of an injured seaman are restricted to maintenance and cure; the plaintiff has been accorded such relief.

It is believed that the question here presented has not been previously adjudicated.

The contentions of the parties turn upon the effect to be accorded to the Honduran registration. The plaintiff asserts that the legal relations of the seaman and his employer are governed by the law of the United States, because the nationality of the vessel is determined by the domicile of its owner; and the defendant contends that the registration in Honduras, despite domestic ownership, brought the Castilla, and hence the plaintiff, within the exclusive domain of Honduran law.

That an American citizen who accepts employment on a foreign ship subjects himself to the laws of the country of the ship's nationality, has been decided: In re Ross, 140 U. S. 453, 11 S. Ct. 897, 35 L. Ed. 581; Rainey v. N. Y. & P. S. S. Co. (C. C. A.) 216 F. 449, L. R. A. 1916A, 1149; The Hanna Nielsen (C. C. A.) 273 F. 171, and cases cited.

It becomes necessary to inquire, therefore, if the Honduran registry, and the display of the flag of that country, constituted the Castilla a ship of Honduran nationality, so as to render those decisions controlling in this controversy.

That which has been written and decided upon this general subject involves, with but one exception (The San Jose Indiano, Fed. Cas. No. 12322 infra), a discussion of the circumstances presented by ownership of a vessel by a citizen or resident, accompanied by failure to obtain a certificate of registry; that case alone concerns ownership by a resident of one country and registry under the flag of another.

The departmental memoranda quoted in Judge Moore's Digest of International Law, § 323, have to do almost exclusively with questions concerning ownership by citizens of the United States of vessels which have not been or could not be admitted to registry or enrolment in this country, and the rights accorded to such vessels to fly the flag of the United States, and claim the protection thereof. It is in this connection that an article contributed to Wharton's Digest of International Law is quoted in volume 2, at page 1029, as follows: "A vessel as a subject of nationality is not considered a personality any more than any other chattel, and cannot have any other nationality impressed on it except that arising from ownership. The place in which a vessel is built does not give it nationality any more than the place of origin affects that of its cargo. It is the residence of the owner which stamps alike the vessel and its cargo with its national character."

Notwithstanding that the foregoing was written in connection with the exposition of a thesis not here involved, the abstract statement carries conviction, that a ship is like any other chattel in that its nationality is based upon ownership.

Applied to this case, it means that the domicile of the Castilla is, of necessity, that of its owner. A contrary conclusion would mean that the nationality of an inanimate thing, an item of personal property, which according to all teachings is derivative, can be viewed as existing independently in the chattel, solely as the result of a certificate of registry which does not purport to be the conduit of title.

The essential features of that document, which is in evidence as Defendant's Exhibit E, are as follows:

"April 22. — On this date appeared in this office and in behalf of the Tela Railroad Company, Mr. Donaldo Guerrero, requesting the registry of the steamship `Castilla' under the Honduranean flag; and there not being reasons to deny the application of Mr. Guerrero, on this same date the vessel referred to is registered with the following description: Name of the vessel: `Castilla.' — Gross tonnage of displacement: 4087. — Net tonnage of registry: 2159. — Dimensions: length, 342 feet; dimensions: width, 48 feet. — System of combustion: Oil. — Date of construction: March 22, 1927. — Owner of the vessel: Ellis Steamship Corporation. — Nationality of the owning company: American. — Tela, April 22, 1927. — J. Ines Perez. — Seal. — Max Bardales. Secretary. — Seal."

The unique feature of the problem here presented is apparent from the language of the certificate of registry. Coupled with the reference to the flag of the Republic of Honduras, is the certification that the nationality of the owner is American.

Plausible argument might be made that such a certificate, for reasons acceptable to the granting power, in express terms recognizes the national character of the vessel to be other than that of the Republic of Honduras.

Having in mind that the status of a vessel owned in one country and registered in another has not been the subject of adjudication so far as this court has been able to ascertain (with the exception noted), an understanding of what is comprehended in the registry of a ship or lack of it, as affecting the domicile of the vessel, may be promoted by a consideration of the following cases:

The Alta (C. C. A.) 136 F. 513, 517. A citizen of the United States, resident in the Philippines, purchased a British-built barkentine from a Philippine corporation; the vessel was not registered, and cleared from Manila, P. I, carrying a certificate of ownership, for Port Townsend, Wash. Upon arrival, she was seized for nonpayment of tonnage dues and light money. Certain tonnage dues were tendered by the master. These, according to the applicable statute as to a foreign vessel, were greater than on "vessels of the United States."

The opinion states that the quoted words mean more than a vessel whose nationality is American, and that the Alta could not be registered here because not built in this country. Continuing, "But while the Alta was not `a vessel of the United States,' as spoken...