Grillea v. United States

• Decision Date: 04 May 1956
• Docket Number: No. 23609.,23609.
• Parties: Felice GRILLEA, Appellant, v. UNITED STATES and National Shipping Authority, Appellees.
• Court: U.S. Court of Appeals — Second Circuit

232 F.2d 919 (1956)

Felice GRILLEA, Appellant, v. UNITED STATES and National Shipping Authority, Appellees.

No. 23609.

United States Court of Appeals Second Circuit.

April 26, 1956.

Rehearing Denied May 4, 1956.

Robert Klonsky, New York City, for appellant.

Joseph M. Cunningham, Bronxville, N. Y., Thomas F. Feeney, Brooklyn, N. Y., Paul W. Williams, U. S. Atty., New York City, and Kirlin Campbell & Keating, New York City, for appellees.

Before HAND, SWAN and FRANK, Circuit Judges.

HAND, Circuit Judge.

The libellant has moved for a rehearing upon our ruling that he did not elect to sue "in rem" until after we had suggested it to him at the end of our opinion. We have granted a rehearing on that issue, and, as will appear below, we think that there was enough evidence to support an "election." Moreover, since the merits of the claim of a lien against the ship had not been at issue on the appeal, we have felt obliged to allow briefs to be filed on that issue also, and therefore the appeal comes before us in these two aspects. First, we will say why we think that the suit may stand as one "in rem"; and then we will take up the merits.

The libel, filed on April 1, 1952 — which was not in the printed record — alleged first that the ship "is now or" (is) "about to come within the jurisdiction of the United States and this Honorable Court"; and, second that the libellant resided and was domiciled "within the jurisdiction of this Honorable Court." The second allegation was false, as appears from the libellant's answer to interrogatories that he had lived for fifteen years in Brooklyn; but the answer, filed in July admitted that the "vessel from time to time has come within the jurisdiction of the United States and the Southern District of New York," which was not only enough, independently of the allegation of residence, to allow the suit to proceed "in personam," but also enough to allow it to proceed "in rem," if the libellant so elected "in the libel."¹ The libellant argues that the allegation about the ship must have been meant as such an election, and that the suit had therefore the double aspect of a suit "in personam" and of one "in rem," as 46 U.S.C.A. § 743 permits. In Schnell v. United States, 2 Cir., 166 F.2d 479, the libel had contained no allegation that the ship was within the United States when it was filed, and there was therefore nothing to which we could ascribe any election that the suit proceed "in rem." At the trial the libellant did move that he should be allowed so to "elect," and at that time the ship had come into the United States (or at least so we assumed, note at page 482) which the Supreme Court held in Nahmeh v. United States, 267 U.S. 122, 45 S.Ct. 277, 69 L.Ed. 536, was enough to support a suit "in rem." Our refusal to treat this as an election to proceed "in rem" was based upon the absence in the libel of any "allegation that during the pendency of the suit the vessel would be within the jurisdiction of the court."

The question here is therefore whether the allegation present in the libel as to the whereabouts of the ship may be treated as an election under § 743. It is true, as we have just said, that that allegation would have supported the venue of the suit as one "in personam" in the Southern District of New York, if the libellant failed to prove residence in that district, as he might well apprehend that he would. However, as such an alternative support for venue the allegation need only have been that the ship was, or would be, within the district; it was not necessary to add that she was, or would be, within the United States. We should indeed disregard the addition if it could have had no independent function, for the Southern District of New York obviously is in the United States; but not only was it wholly redundant to the venue of the suit regarded as one "in personam," but it was essential to the jurisdiction of the court in a suit "in rem," as the Supreme Court held in Blamberg Bros. v. United States, 260 U.S. 452, 43 S.Ct. 179, 67 L.Ed. 346. The Court in Nahmeh v. United States, supra, 267 U.S. 122, 45 S.Ct. 277, did indeed hold that we had been mistaken in The Isonomia, 2 Cir., 285 F. 516, in supposing that the ship must be within the district, but it left standing the statement that for jurisdiction "in rem," she must be somewhere within the United States.

So it follows that the first allegation of the libel combined an allegation, necessary to jurisdiction "in rem," but otherwise completely redundant, with another allegation necessary to venue both "in rem" and "in personam." That we think may serve as an "election" without overruling our decision in Schnell v. United States, supra, 166 F.2d 479. True it is that the libellant almost certainly could not have had this in mind when he filed the libel, but for the reasons just given we are not disposed to defeat the suit on that account. We do not forget that the change has been asserted more than two years after the claim arose: and we need not say whether that might not have been too late, if the claim based on a lien, was upon a different "cause of action" from the "cause of action" "in personam." Since, however, in either event the injury was the same, the claims are the same, though each depends upon a different congeries of "operative facts."² We are to remember that the Suits in Admiralty Act is not to be construed with the same jealousy that ordinarily circumscribes the consent of the United States to be sued;³ and that, moreover, it is in general true that statutes affecting the interests of seamen, enjoy a particularly latitudinary interpretation.⁴ For the foregoing reasons we hold that there was an election and we proceed to the merits.

The claim is based upon the theory that, as soon as the wrong hatch cover was placed over the "pad-eye" the ship became pro tanto unseaworthy, and that, when the libellant stepped upon it and it gave way beneath him, he came within the decision of the Supreme Court in Seas Shipping Company v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, which extended the doctrine of The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, to longshoremen, while loading or discharging a ship. The respondents answer that a ship's seaworthiness has from time immemorial been measured by her fitness for the service in hull, gear and stowage, that in all these respects the ship at bar was well provided, and that the libellant's injuries were due solely to the negligence of himself, or his companion, Di Donna, or both, in selecting the wrong hatch cover to place over the "pad-eye." It is indeed true that to constitute unseaworthiness the defect must be in the ship's hull, gear or stowage, and even as to these she need not be perfectly, but only "reasonably," fit for her service.⁵ However, it is at times hard to say whether a defect in hull or gear that arises as a momentary step or phase in the progress of work on board should be considered as an incident in a continuous course of operation, which will fasten liability upon the owner only in case it is negligent, or as an unfitness of the ship that makes her pro tanto unseaworthy. The respondents plausibly argue, for instance, that when a strongback is dislodged by the negligence of a winchman, or of those who direct him,⁶ or when some one of the crew carelessly turns a lever that drops a boat from its davits,⁷ there is a moment, however short, during which the ship is unfit and during which her unfitness causes the injury; yet on such occasions she is not deemed unseaworthy. On the other hand, if the wrong hatch cover had been placed over the "pad-eye" the day before the libellant stepped on it, this ship would have been unseaworthy; for that was in effect just what we decided in Mollica v. Compania Sud Americana, 2 Cir., 202 F. 2d 25. There the plaintiff fell in an ill lighted hold, and we allowed recovery because the mate had failed to order the "lampman" to rig the necessary extra lights, plenty of which were on board. It is true that that decision turned upon whether the unseaworthiness arose before the owner had given up control to the stevedores, which we there erroneously thought to be a condition upon liability; but we all agreed that she was unseaworthy, although she was completely fitted with adequate gear and her only defect was that those responsible for setting it in place had failed to do so.

It would be futile to try to draw any line between situations in which the defect is only an incident in a continuous operation, and those in which some intermediate step is to be taken as making the ship unseaworthy. Nevertheless, it is necessary to separate the two situations, even though each case must turn on its particular circumstances. In the case at bar although the libellant and his companion, Di Donna, had been those who laid the wrong hatch cover over the "pad-eye" only a short time before he fell, we think that enough time had elapsed to result in unseaworthiness. The cover was one of two or three that they had already put in place on the after section of the hatch; it had become part of the platform across which the two walked to gain access to the middle section on which they were going to place another cover. The misplaced cover had therefore become as much a part of the 'tweendeck for continued prosecution of the work, as though it had been permanently fixed in place. It may appear strange that a longshoreman, who has the status of a seaman, should be allowed to recover because of unfitness of the ship arising from his own conduct in whole or in part. However, there is in this nothing inconsistent with the nature of the liability because it is imposed regardless of fault; to the prescribed extent the owner is an insurer, though he may have no means of learning of, or correcting, the defect. Indeed, as to these it is a kind of "Workmen's Compensation Act"; though limited by the value of the ship and by the fact...