Grant v. United States Shipping Board Emergency F. Corp.

• Decision Date: 05 March 1928
• Docket Number: No. 41.,41.
• Citation: 24 F.2d 812
• Parties: GRANT v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

24 F.2d 812 (1928)

GRANT v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.

No. 41.

Circuit Court of Appeals, Second Circuit.

March 5, 1928.

Silas B. Axtell, of New York City, for the motion.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

The plaintiff in error sued to recover damages for personal injuries sustained while on board the defendant in error's ship. The complaint was based upon a claim of negligence. It invokes support for his right to recover under the provisions of section 33 of the Jones Act (46 USCA § 688; U. S. Comp. St. 1923, § 8337a). On writ of error to this court, judgment in favor of the defendant in error was reversed, and the case was remanded for a new trial. 22 F.(2d) 488. The Appropriation Bill of 1918 (40 Stat. 683 28 USCA § 837) provides:

"That courts of the United States, including appellate courts, hereafter shall be open to seamen, without furnishing bonds or prepayment of or making deposit to secure fees or costs, for the purpose of entering and prosecuting suit or suits in their own name and for their own benefit for wages or salvage and to enforce laws made for their health and safety."

The government desires a ruling on this statute as to its application to seamen in this class of cases, and raises the question because of the word "prepayment," claiming that seamen are not relieved wholly from the payment of fees, but must pay the fees incident to the suit after decision in this court.

This action is neither for wages nor salvage, but the claim, in support of the motion, is that it enforces laws made for the health and safety of seamen. In The Bennington (D. C.) 10 F.(2d) 799, the court disallowed the claim of a seaman, which is based solely upon the plea of negligence in failing to provide the seaman with a reasonably safe place to work. It expressed doubts as to the applicability of the statute here considered to libels to recover damages for injuries under section 33 of the Jones Act. The court pointed out that, depending upon the particular case, that section may or may not be of a nature to enforce laws made for the health and safety of seamen, and said that literally it could not be an action to enforce such law directly. It might, however, said the court, be an action indirectly to recover because of the violation of a law for the health and safety of seamen. Giving it a liberal construction, which the section should receive, a violation of the Jones Act and a suit based thereon would undoubtedly be to enforce a law enacted for the health and safety of seamen.

In The Bennington, supra, the court indicated that the charges of negligence amounted to no more than a failure to exercise reasonable and...