Lawrence v. Norfolk Dredging Company

• Decision Date: 16 July 1963
• Docket Number: No. 8914.,8914.
• Citation: 319 F.2d 805
• Parties: Sylvester LAWRENCE, Appellee, v. NORFOLK DREDGING COMPANY, a Virginia corporation, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

319 F.2d 805 (1963)

Sylvester LAWRENCE, Appellee, v. NORFOLK DREDGING COMPANY, a Virginia corporation, Appellant.

No. 8914.

United States Court of Appeals Fourth Circuit.

Argued March 29, 1963.

Decided July 16, 1963.

Francis N. Crenshaw and Guilford D. Ware, Norfolk, Va. (Baird, Crenshaw & Ware, Norfolk, Va., on brief), for appellant.

Wilfred R. Lorry, Philadelphia, Pa. (Sidney H. Kelsey, Norfolk, Va., Abraham E. Freedman, Charles Sovel, and Freedman, Landy & Lorry, Philadelphia, Pa., on brief), for appellee.

Before BOREMAN and J. SPENCER BELL, Circuit Judges, and PREYER, District Judge.

BOREMAN, Circuit Judge.

This case was instituted by Sylvester Lawrence, plaintiff, under the provisions of the Jones Act (46 U.S.C. § 688)¹ to recover damages for personal injuries sustained by him in an accident. The jury rendered its verdict in favor of the plaintiff in the amount of $100,000 and judgment thereon was entered after the motion of defendant, Norfolk Dredging Company, Inc., to set aside the verdict or to grant a new trial had been denied. On this appeal only two questions are presented: (1) Whether the trial judge erred in ruling, as a matter of law, that plaintiff was a member of a crew of a vessel; and (2) whether the verdict is excessive.

The uncontradicted and undisputed evidence disclosed that at the time of the accident the dredge "Talcott," owned by the defendant, was engaged in dredging operations in navigable waters in Oregon Inlet off Manteo, North Carolina. The dredge and its auxiliary vessels, including a derrick barge, an equipment barge, a tug and other vessels of the flotilla, had arrived in the area from Norfolk, Virginia, the day before the accident. The "Talcott" was equipped with sleeping accommodations for those aboard, the men ate their meals thereon and otherwise lived there when they were not working.

For ten or twelve years plaintiff had been employed by the defendant on various vessels. He started as a deck hand and was promoted to a deck foreman or "deck captain." He had been employed on the "Talcott" as deck captain for two or three years prior to the accident. On September 3, 1957, while working on one of the auxiliary vessels, a derrick barge, plaintiff was seriously injured when a 1500-pound anchor fell and landed across his legs.

Any question as to whether the "Talcott" was a vessel was removed from the case by the admission of defense counsel at the bar of the court. Therefore, the first primary inquiry is whether plaintiff was, at the time of the injury, a seaman and a member of the crew of the "Talcott" and so entitled to maintain his action under the Jones Act, or whether he was a harbor worker whose exclusive remedy was under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. § 901 et seq.), hereinafter referred to as the Compensation Act.

Plaintiff's status as a maritime worker is clear and were it not for the Compensation Act, his right to a Jones Act remedy would not be open to question. The Compensation Act covers injuries "occurring upon the navigable waters of the United States" but excludes from its coverage a "member of a crew of any vessel" (33 U.S.C. § 903(a) (1)). Thus the focal point of inquiry is whether the plaintiff falls within this excluded class.

During the period from September 3, 1957, the date of the accident, to April of 1959, when plaintiff was able to return to work, all of his medical expenses were caused to be paid by defendant, and the maximum compensation benefits provided by the Compensation Act were paid to him. After working nearly two years as a deck captain following his return to work in April 1959, plaintiff brought this action and defendant moved to dismiss on the ground that plaintiff was not a seaman and that he had elected to receive benefits under the Compensation Act to the exclusion of the Jones Act. In an opinion reported in 194 F. Supp. 484, the District Court rejected this contention but expressly withheld any determination as to whether plaintiff was a seaman or harbor worker, reserving that for the jury. At the conclusion of the evidence and at the insistence of plaintiff's counsel, the trial court instructed the jury, as a matter of law, that the dredge was a vessel and plaintiff was a seaman member of its crew. It appears possible, however, from certain portions of the record that the court was not entirely free from doubt as to the correctness of its ruling which was based upon his conclusion that "there is just no material point of fact that is in dispute" and "it appears to me that these uncontroverted facts now resolve themselves into a question of law."

Was PLAINTIFF'S Status as a "MEMBER Of A Crew" A Question for Jury Determination?

On the first question the dredging company contends that although the facts which disclose the nature of plaintiff's duties at the time of the injury are undisputed, the ultimate determination as to whether Lawrence was a "member of the crew of a vessel" should have been left to the jury on the theory that the inferences which could properly be drawn from established facts are such that reasonable men could differ.

During the entire course of his employment by defendant, plaintiff was working mainly with the deck department on various vessels. His duties as "deck captain" consisted primarily of handling and maintaining in proper condition the earth conveying pipelines used by the dredge to move earth from the bottom of the harbor to the shore line which is the primary function of such a vessel. His duties also included tending the lines of the dredge and its various auxiliary vessels and the posting of necessary lights. He slept and ate aboard the dredge, sometimes remaining aboard for four to six weeks at a time, although when he was not on watch or engaged in actual work, he was perfectly free to go and come as he pleased.

In urging that plaintiff's employment status could reasonably have been factually determined to have been that of an ordinary "laborer" rather than a member of the crew of the vessel, the defendant employer points to the following facts: Plaintiff was paid on an hourly basis; after working hours he could go and come as he pleased; he did not go to seamen's school and did not have seamen's papers; his primary duty was to handle and care for the conveying pipelines; the dredge to which he was attached had no motive power, no wheel, no rudder, no running lights, never ventured into the ocean and was operated without the maintenance of a log; in connection with his work he sometimes assisted in building up land areas for highways and other construction, assisted in maintaining levees, spillways and pontoon lines; and, when he ate and slept aboard the dredge, there was deducted from his wages the sum of one dollar a day for his food and for the use of towels and sheets.

The company relies most heavily upon the doctrine, announced by two important Supreme Court decisions, that the determination of the status of an employee as a member of a crew or otherwise turns on questions of fact and that even though the facts pertaining to the determination are undisputed, the interpretation of the facts is normally the province of the trier of the facts. Senko v. La Crosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957); South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940). In the Senko decision the doctrine of Bassett was explained to the effect that such determination is ordinarily for the finder of fact, meaning that "juries have the same discretion they have in finding negligence or any other fact."...