Osland v. Star Fish & Oyster Co.
| Decision Date | 07 April 1941 |
| Docket Number | No. 9716.,9716. |
| Citation | 118 F.2d 772 |
| Parties | OSLAND v. STAR FISH & OYSTER CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alex T. Howard, of Mobile, Ala., for appellant.
Palmer Pillans and Chas. C. Hand, both of Mobile, Ala., for appellee.
Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.
Under the Seamen's Act, Merchant Marine Act of 1920, Section 33, 46 U.S.C.A. § 688, Steffen Osland brought suit against Star Fish & Oyster Company for damages for personal injuries received by him while working aboard the fishing smack Mary Carmen in the Gulf of Mexico. This is the second appeal in this case. The case was here before on the pleading and the judgment was reversed and the cause remanded for a trial on the merits. Osland v. Star Fish & Oyster Co., 5 Cir., 107 F.2d 113. After the mandate went down the case was tried to a jury and a verdict was rendered for the defendant. Osland has appealed.
The evidence shows that Star Fish & Oyster Company owned and operated several fishing smacks and was engaged in selling fish at wholesale at Mobile, Alabama. In the month of May, 1934, the company either leased or chartered the Mary Carmen to one George Brown, or employed Brown to take the vessel, secure a crew, and fish in the Gulf of Mexico. Although the evidence is in sharp conflict it discloses nevertheless that Brown, who was in charge of the vessel, employed the crew, and that they were to receive as compensation a portion of the fish caught and delivered to Star Fish & Oyster Company. Of the catch the company and Brown were to receive forty per cent. The remaining sixty per cent, less deductions for fuel, bait, and food advanced by the company, was to be divided among the crew. Osland only knew Brown in the transaction and he did not see any member or officer of the corporation when he made the contract to go on the fishing trip. Osland contended, however, that he was employed by the corporation through Brown; that it furnished all supplies; and that on such trips if no fish were caught the company gave crew members a few dollars "broker money" and did not require the supplies to be paid for, and did not deduct the cost of supplies from future catches.
On the voyage of the Mary Carmen Osland was engaged to "man the ship". He had been to sea before and, although born in Norway, he had been naturalized and had lived in this country since 1910. The Mary Carmen had been at sea for about twenty-two days and the members of the crew were fishing off the Campeche Banks on the Mexican side of the Gulf. Osland had injured his ankle and "was sitting and doctoring it right alongside the...
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