Omar v. Sea-Land Service, Inc.

• Decision Date: 27 March 1987
• Docket Number: SEA-LAND,85-4300,Nos. 85-4241,s. 85-4241
• Parties: , 22 Fed. R. Evid. Serv. 1297 Yahya M.A. OMAR, Plaintiff-Appellee, v.SERVICE, INC., a foreign corporation, and the M/V ENDURANCE, Defendants-Appellants. Yahya M.A. OMAR, Plaintiff-Appellant, v.SERVICE, INC., a corporation, and the M/V ENDURANCE, Defendants- Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 986

813 F.2d 986

1987 A.M.C. 1890, 22 Fed. R. Evid. Serv. 1297

Yahya M.A. OMAR, Plaintiff-Appellee, v. SEA-LAND SERVICE, INC., a foreign corporation, and the M/V

ENDURANCE, Defendants-Appellants.

Yahya M.A. OMAR, Plaintiff-Appellant, v. SEA-LAND SERVICE, INC., a corporation, and the M/V

ENDURANCE, Defendants- Appellees.

Nos. 85-4241, 85-4300.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 1987.

Decided March 27, 1987.

Thomas M. Geisness, Seattle, Wash., for plaintiff-appellee.

Vincent R. Larson, Rodney L. Brown, Jr., Seattle, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before GOODWIN, SCHROEDER and FARRIS, Circuit Judges.

FARRIS, Circuit Judge:

Sea-Land appeals from a jury verdict for Yahya Omar, plaintiff in a personal injury suit arising from a fall on board one of Sea-Land's ships. Omar's suit included claims for maintenance and cure under general maritime law, for negligence under the Jones Act, and for breach of the warranty of seaworthiness. Sea-Land argues that Omar's use of fraudulent papers in obtaining employment bars him from receiving maritime remedies related to that employment. Sea-Land also challenges several aspects of the trial procedure. We affirm.

BACKGROUND

In April 1983, Sea-Land hired Yahya Omar to work as a messman on the S/S Endurance, which Sea-Land owned and operated. In August 1983, Omar slipped and fell on the wet or greasy floor of the ship's pantry. Although he had previously observed the condition of the floor, he neither cleaned it nor complained to anyone. He In November 1984, in an administrative action separate from Omar's personal injury suit, the U.S. Coast Guard tried Omar for misconduct. Omar was accused of having fraudulently obtained an "Able-Bodied Seaman" endorsement on his merchant seaman's papers. After a full hearing, the Coast Guard found Omar guilty, revoked the ABS endorsement, suspended his seaman's papers for 30 days, and placed him on probation for one year.

was hospitalized in Hong Kong for treatment of his injuries and later returned to Seattle for further treatment. In January 1984, Omar filed suit against Sea-Land and the Endurance for maintenance and cure under the general maritime law, for personal injury damages under the Jones Act, 46 U.S.C. Sec. 688, and for breach of Sea-Land's duty to provide a seaworthy vessel.

When Sea-Land learned, in discovery, about Omar's misconduct, it moved for summary judgment in the personal injury action. Sea-Land argued that Omar's use of fraudulent papers rendered his employment contract illegal and fraudulent, barring him from remedies under maritime law. The trial court denied this motion, ruling as a matter of law that Omar was a seaman and an employee of Sea-Land. At trial, the court admitted evidence that Omar had been found guilty of misconduct, but excluded any evidence showing that that misconduct was linked to Omar's employment with Sea-Land. The trial court specifically refused Sea-Land's request to admit the text of the Coast Guard's decision.

The jury found Sea-Land and the vessel liable for damages, plus maintenance and cure. It found Omar negligent, but found that his negligence did not proximately cause the accident. This appeal followed.

DISCUSSION

1. Omar's Use of Fraudulent Papers in Obtaining Employment

The court ruled before trial that, as a matter of law, Omar was a "seaman" and an "employee" of Sea-Land "in the ordinary meaning of those terms" at the time of the alleged injury. Sea-Land appeals this ruling. It argues that Omar's use of seaman's papers with a fraudulent Able-Bodied Seaman endorsement voided his employment contract. Therefore, Sea-Land contends, Omar was not an "employee" on Sea-Land's vessel and not entitled to the strict liability standards and remedies available to maritime employees under the Jones Act and the general maritime law. Omar's fraud voided the consensual basis for hiring him, Sea-Land contends, so the warranty of seaworthiness does not extend to him. Sea-Land also argues that whether Omar was an "employee" of Sea-Land involved matters of fact that should have gone to the jury.

A. The trial court properly ruled on this issue.

Under both the Jones Act and the general maritime law, status as a "seaman" depends on three factors: "(1) the vessel on which the claimant was employed must be in navigation; (2) the claimant must have a more or less permanent connection with the vessel; and (3) the claimant must be aboard primarily to aid in navigation." Estate of Wenzel v. Seaward Marine Services, Inc., 709 F.2d 1326, 1327 (9th Cir.1983); see also Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190-91, 72 S.Ct. 216, 218, 96 L.Ed. 205 (1952). Harbor workers and stevedores are not seamen, but all members of a ship's ocean-going crew are seamen, including cooks, hairdressers, and telephone operators. See M. Norris, The Law of Seamen Sec. 2:10 (4th ed. 1985).

Whether a plaintiff is a seaman is typically a question properly put to a jury, "if there is an evidentiary basis for making a finding." See M. Norris Sec. 30:8 at 353. There is an "evidentiary basis" for determining a plaintiff's status as a seaman when, for example, parties dispute whether the ship was in navigation or whether the employee was actually a member of the ship's crew. See, e.g., Estate of Wenzel, 709 F.2d at 1327. Where, as here, Omar's status as a seaman allegedly depended on the validity of his employment contract, there was a legal rather than an evidentiary basis to the finding. It was appropriate for the trial judge to make this finding.

Whether an "employer-employee relationship" exists is also usually a question of fact that should go to the jury, "if there is an evidentiary basis for its consideration." See M. Norris Sec. 30:14 at 369. Usually the evidentiary question is whether a particular defendant was the seaman's employer. See, e.g., Stephenson v. Star-Kist Caribe, Inc., 598 F.2d 676 (1st Cir.1979). To support its claim that this question should have gone to the jury, Sea-Land cites The Norland, 101 F.2d 967 (9th Cir.1939), which held that a jury should decide whether the plaintiff was an employee of or joint venturer with the defendant. In dispute were contract terms for allocating profits and losses, facts regarding control of the ship, and facts regarding provision of supplies for the ship. See id. at 971-73. In Omar's case, no facts relating to his employment with Sea-Land were in dispute when Sea-Land moved for summary judgment. Omar conceded that he had obtained employment with Sea-Land with papers containing the fraudulent ABS endorsement. Sea-Land conceded that Omar's legitimate papers and actual qualifications met the requirements of the job for which he was hired. In dispute was the legal significance of those facts. Because there was no "evidentiary basis" for deciding whether Omar was an "employee," the trial court ruled on a legal question properly within its purview.

B. Omar was an "employee" under the Jones Act and under maritime law.

Jones Act cases follow cases under the Federal Employers Liability Act. See, e.g., Evich v. Connelly, 759 F.2d 1432, 1433 (9th Cir.1985). In support of its argument that Omar's fraud voided his employment contract for Jones Act purposes, Sea-Land cites a FELA case from 1928. Minneapolis, St. Paul & S.S.M. Ry. v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766 (1929), barred a railway worker from suing under FELA because of his fraudulently having someone else take his pre-employment physical exam. But Still v. Norfolk & Western Ry., 368 U.S. 35, 82 S.Ct. 148, 7 L.Ed.2d 103 (1961), limited Rock to its facts and held that the terms "employed" and "employee" in the Act must be "interpreted according to their ordinary meaning." Id. at 45, 82 S.Ct. at 154. Still concluded that "the status of employees who become such through other kinds of fraud, although possibly subject to termination through rescission of the contract of employment, must be recognized for purposes of suits under the Act." Id. (emphasis added). Even if Sea-Land could properly have fired Omar for having obtained employment with false papers, it cannot avoid his Jones Act suit.

We have held in a Jones Act case that "Still compels a holding that a person ... who is a 'seaman' and suffers injury in the course of his 'employment' as a seaman, within the ordinary meaning of those words, is not barred from suit under the Jones Act because he conceals a material fact in applying for employment." Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 530 (9th Cir.1962). Omar did not even conceal a material fact. He did not need the Able-Bodied Seaman's endorsement for the messman's job that he performed on the Endurance. His proper papers qualified him for that job.

Maintenance and cure, the remedy Omar sought and won under the general maritime law, derives from a seaman's employment on a vessel, but it is not a narrowly contractual right. Although sometimes described as an "implied contractual obligation," M. Norris Sec. 26:10 at 25, it cannot be waived by contract. G. Gilmore & C. Black, The Law of Admiralty 287 (2d ed. 1975). Historically and logically, the shipmaster's obligation "derives from a seaman's dependence on his ship, not from his individual deserts." Farrell v. United States 336 U.S. 511, 515-16, 69 S.Ct. 707, 709-10, 93 L.Ed. 850 (1949). It is an obligation "so inclusive as to be relatively simple, and can be understood and administered without technical considerations." Id. at 516, 69 S.Ct. at 709-10. The exception to the shipowner's obligation is when the seaman's injury or illness results from his own willful misbehavior. See Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107 (1943).

Fraud of the sort Omar practiced does not constitute "willful misbehavior." Fraud may bar maintenance and cure where a seaman conceals a medical...