Noack v. American Steamship Company, 73-1326.

• Decision Date: 01 February 1974
• Docket Number: No. 73-1326.,73-1326.
• Citation: 491 F.2d 937
• Parties: Everett NOACK, Plaintiff-Appellee, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellant,
• Court: U.S. Court of Appeals — Sixth Circuit

491 F.2d 937 (1973)

Everett NOACK, Plaintiff-Appellee, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellant,

No. 73-1326.

United States Court of Appeals, Sixth Circuit.

Argued October 9, 1973.

Decided February 1, 1974.

William S. Busch, New York City, for defendant-appellant; Cadwalader, Wickersham & Taft, New York City, Marshall, Melhorn, Bloch & Belt, Toledo, Ohio, on brief; John A. Sullivan, New York City, Arnold F. Bunge, Jr., Toledo, Ohio, of counsel.

Merritt W. Green, II, Green & Lackey, Toledo, Ohio, on brief, for plaintiff-appellee.

Before PECK and McCREE, Circuit Judges, and ALLEN, District Judge.^*

JOHN W. PECK, Circuit Judge.

In this action charging negligence under the Jones Act, 46 U.S.C. § 688, and unseaworthiness under the General Maritime Law, the seaman plaintiff sought damages for injuries that he suffered when he slipped into a deck opening while helping to clean out the bilges in the lower engine room of the defendant-shipowner's vessel. The jury returned a verdict in the amount of $150,000 which was reduced by half because the jury found that the plaintiff had been fifty percent contributorily negligent. This appeal by the defendant-shipowner followed.

Defendant-appellant owned and operated a Great Lakes self-unloading bulk cargo vessel. Due to the cold and ice, Great Lakes vessels do not sail during the winter months and at the time of the accident the vessel had been laid up for the winter and was being fitted out for the 1971 sailing season. The plaintiff-appellee, a veteran of 25 years service with the appellant, was employed as a "wiper" aboard the vessel, which job includes wiping up grease and oil from the decks of the vessel.

The threshold question in this case is whether the appellee is a seaman within the meaning of the Jones Act. The test to determine that question was set forth in Nelson v. Greene Line Steamers, Inc., 255 F.2d 31 (6th Cir. 1958), cert. denied, 358 U.S. 867, 79 S. Ct. 100, 3 L.Ed.2d 100, and requires that (1) the vessel on which the claimant is employed be in navigation, (2) the claimant have a more or less permanent connection with the vessel, and (3) the claimant be aboard primarily to aid navigation. Appellant maintains that the first element of the test should have been determined as a matter of law and should not have been presented to the jury as a question of fact.¹ As to the third element, appellant assumes the vessel was not in navigation as a matter of law and argues the impossibility of aiding the navigation of such a vessel. Since we conclude that the question of "in navigation" is properly one of fact and that the jury's findings are not clearly erroneous, we need not further consider this latter claim.

To support its contention that the first element is a question of law, the appellant relies on Antus v. Interocean Steamship Co., 108 F.2d 185 (6th Cir. 1939); Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205 (1952); and Nelson v. Greene Line Steamers, supra. Antus involved a situation similar to that before us in which we held that as a matter of law an employee working aboard a ship during a winter lay-up period was not a seaman. However, Antus was not the last word on the subject. Twelve years later, in Desper, which involved sight-seeing boats which were laid up during the non-summer months, the Supreme Court held that a boat operator who was hired to overhaul the boats during the spring was not, as a matter of law, a seaman within the purview of the Jones Act and cited Antus with approval. However the Court interestingly pointed out that:

"The many cases turning upon the question of whether an individual was a `seaman\' demonstrate that the matter depends largely on the facts of the particular case and the activity in which he was engaged at the time of the injury." 342 U.S. at 190, 72 S.Ct. at 218.

It is the later case of Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed. 2d 754 (1958), that we find dispositive. In Butler, the owner of a wharf on the Mississippi River moored a barge to the wharf and lashed a tug to the barge. For some ten months the tug had been lashed and at the time of the accident was undergoing rehabilitation preparatory to Coast Guard inspection. During this period the ship had neither captain nor crew. The decedent had been employed as a laborer on an hourly wage scale and on the morning of the accident had been engaged in cleaning the tug's boiler. Decedent's death was attributed to drowning although there were no witnesses to either the death or the circumstances leading to the death. The District Court directed a verdict for the defendant-shipowner and the Court of Appeals affirmed on the grounds that the vessel was a dead ship, the decedent was not a seaman or member of the crew and there was no evidence on which negligence could be predicated. The Supreme Court remanded the case for trial on the grounds that there was an evidentiary basis for jury findings as to whether the tug was in navigation, whether the decedent was a seaman and whether employer negligence was a factor in the death.

By comparison, the facts of the instant case present a much stronger case for jury submission than did the Butler case. For example, although Butler was a casual employee, a laborer performing odd jobs around the wharf, Noack was a seaman with appropriate papers and union membership who had been permanently employed by the appellant-shipowner for over twenty-five years and who worked only on the vessel. In this regard, it is noted that Noack had been hired by the appellant through the seaman's union as a wiper for the 1971 season and that barring the injury he would have worked as a wiper during that upcoming season. Also, in Butler the tug had been undergoing rehabilitation and had been inoperable for at least ten months, while here the vessel had stopped operating only because of the ice and cold condition and would resume operations when the ice thawed. In addition, the work that Noack was performing at the time of the injury was seaman's work of the type that is often accomplished at sea.

In the case of Nelson v. Greene Line, supra, decided one month after Butler we decided a case involving an excursion steamer which was tied up for winter at a wharf in Cincinnati. Nelson, a regular employee during the excursion season, was employed during this winter period to make repairs and to get the steamer ready for the coming season. The District Court found as a matter of fact that the steamer was not in navigation and that the injured plaintiff Nelson was not a seaman within the Jones Act. Citing Antus and Desper, but not Butler, we concluded that it is the extraordinary case where the evidence permits only one conclusion concerning the claimant's status as a seaman. In Nelson, we affirmed the District Court's findings as not being clearly erroneous.

From our review, we conclude that each case must be evaluated on its own facts, thus leaving to the developing case law to draw the determining criteria into sharper focus. We recognize that while courts in the past have applied a technical, narrow view of what constitutes a vessel in navigation or the status of a seaman, today the courts are applying a broad view consistent with the trend to provide a liberal interpretation to remedial legislation such as the Jones Act. See, e. g., Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955); Senko v. La Crosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1956); Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737 (1958); Keymon v. Tennessee Towing Co., 296 F.2d 785 (6th Cir. 1961).

It is of course true that in the strict sense the lay-up of this Great Lakes vessel effectively took the vessel out of navigation. However, it is also true that the routine of lay-up had been established because the vessels could not operate in the ice and cold. Barring such weather obstacles to a year-round sailing season, it appears that many tasks typically accomplished during the lay-up period could well be accomplished at sea without interruption to regular scheduling for major repairs.² Thus under the circumstances it seems clear that the lay-up and fit-out activities are complete parts of the total Great Lakes sailing season. Crew members perform the lay-up and fit-out tasks under the same labor contract that applies during the sailing season. The same discipline and functional management also applies. In view of these facts, we cannot say that there was clear error in the District Court's finding that the plaintiff was properly entitled to the protection afforded by the Jones Act and the general laws of admiralty.

As a second issue, the appellant contends that the District Court's instructions to the jury were erroneous, particularly urging that the...