Grimes v. Raymond Concrete Pile Company, 5217.

• Decision Date: 18 June 1957
• Docket Number: No. 5217.,5217.
• Citation: 245 F.2d 437
• Parties: Leonard L. GRIMES, Plaintiff, Appellant, v. RAYMOND CONCRETE PILE COMPANY et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

245 F.2d 437 (1957)

Leonard L. GRIMES, Plaintiff, Appellant, v. RAYMOND CONCRETE PILE COMPANY et al., Defendants, Appellees.

No. 5217.

United States Court of Appeals First Circuit.

June 18, 1957.

Harry Kisloff, Boston, Mass., for appellant.

Frank L. Kozol, Boston, Mass., with whom Lee M. Friedman, Thomas D. Burns, Boston, Mass., Robert W. Weinstein, Brookline, Mass., and Friedman, Atherton, Sisson & Kozol, Boston, Mass., were on brief, for appellees.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal by the plaintiff from a judgment entered in the United States District Court for the District of Massachusetts on defendants' motion for a directed jury verdict, made at the close of the plaintiff's case.

The complaint, as amended, is in three counts.¹ The first count, brought under the Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688, alleges that plaintiff-appellant Leonard L. Grimes on July 26, 1955 was employed as a seaman and member of a crew by defendants-appellees Raymond Concrete Pile Company and DeLong Corporation and further alleges that plaintiff received personal injuries "while * * * in the performance of his duties as a crew member of a barge used in servicing Texas Tower No. 2 and/or Texas Tower No. 2, a vessel, on the high seas." The third count is for maintenance and cure.

Defendants' answer admits that plaintiff received personal injuries while he was an employee of the defendants, but denies that plaintiff was a seaman and member of a crew and further denies "that at the time of such injury he was in the performance of his duties as a crew member of a barge used in servicing Texas Tower No. 2 and/or Texas Tower No. 2, a vessel on the high seas." The answer also alleges that plaintiff's exclusive remedy for his injuries is under the Defense Base Act, 55 Stat. 622, as amended, 42 U.S.C.A. § 1651 et seq.

The facts brought out at the trial, insofar as pertinent to the disposition of this case, are as follows: The defendants, as joint venturers, entered into a construction contract with the United States Government for the "towing, erecting and completion of fabrication and fitting out" of a Texas Tower structure on Georges Bank, 110 miles east of Cape Cod. The Texas Tower, a triangular metal platform measuring 200 feet long on each side and weighing approximately 6,000 tons, was to be permanently affixed to the ocean bottom on three caissons at the selected site. The function of the defendants was to tow the Tower to sea, elevate it, secure it and complete the outfitting so that the Tower, standing with an elevation 63 feet above high water, could be operated as a radar station by the Government.

The plaintiff was hired by the defendants on or about June 21, 1955. Thereafter, he worked on the Tower in East Boston for about three weeks, where it was being raised "to put on guide wells underneath the permanent legs." On July 11, 1955 he entered into a written employment contract with the defendants to work on the construction of the Tower at Georges Bank. Subsequently, the Tower was towed and pushed by tug boats to Georges Bank. On or about July 26, 1955, six days after the Tower had arrived at the site of its permanent location, the plaintiff was injured while returning to the Tower from a nearby tug by means of a "Navy life ring," after having worked for a few hours on a barge which carried sand and gravel for the Tower.

At the close of the plaintiff's case, defendants moved for a directed verdict on several grounds. In considering this motion the trial judge expressly restricted his consideration and confined oral argument of counsel to the first part of paragraph 6 of the motion which states:

"6. That the plaintiff at the time of his injury as an employee of these defendants was covered by the Defense Bases sic Act, so-called, Title 42, Section 1651, United States Code * * *."

After oral argument the trial judge directed a verdict for the defendants on all counts, stating:

"I am quite clear that in this particular case the defendants had a defense bases contract with respect to Tower No. 2 with the Navy Department of the United States. The plaintiff was hired in connection with that work. At the time of his injury he was on a barge or, rather, returning from a trip on a barge which had been doing preparatory and ancillary work in connection with Texas Tower No. 2. His remedy was under the Longshoremen and Harbor Workers Act Defense Bases Act sic. His remedy is not by a suit in this court under the Jones Act, even though were he working for another employer or an employer not having a defense bases contract, I would agree that he might be regarded as a member of the crew of the barge and entitled, under those circumstances, to the usual remedies, such as the Jones Act, available to maritime employees."

I believe that the Defense Base Act, set forth in relevant part in the margin,² furnishes the compensation benefits of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C.A. § 901 et seq., to any employee who is injured while employed outside the continental United States under a public work contract or while doing work which is preparatory and ancillary thereto, provided he does not fall within the exceptions set forth in 42 U.S.C.A. § 1654.

In the instant case there is no doubt that the construction of the Tower constituted a public work contract within the provisions of the Defense Base Act, and, further, that the plaintiff at the time of his injuries was connected with work which was preparatory and ancillary thereto. Therefore, plaintiff's exclusive remedy would be under the Defense Base Act unless he was a "member of a crew of any vessel." 42 U.S.C.A. § 1654. Of course, if the plaintiff is found to fall within the 42 U.S.C.A. § 1654 exception he might recover under the Jones Act, notwithstanding that he was employed under a public work contract.

The district court, however, does not pass squarely on the issue of whether the plaintiff was a crew member; rather, it seemed to hold that the plaintiff was limited to recovery under the Defense Base Act even if he were a member of a crew.³ To the extent that the district court did so hold, I believe it was in error.

In the absence of a finding below on the issue of whether plaintiff was a member of a crew, I would refrain from passing any judgment on that aspect of the case. I believe that the court below should be given an opportunity to consider this case anew now that the question before us has been resolved.

I am persuaded to my conclusion by the fact that the Supreme Court has made it abundantly clear "that whether or not an employee is `"a member of a crew" turns on questions of fact' and that if a finding on this question has evidence to support it, the finding is conclusive." Senko v. LaCrosse Dredging Corp., 1957, ...