Proctor v. Dillon

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation235 Mass. 538
Decision Date17 May 1920

March 18, 1920.

Present: RUGG, C.


Jurisdiction. Admiralty.

Negligence Employer's liability. Ship. Practice, Civil, Ordering verdict. Pleading, Civil, Declaration. Words "Indemnity," "Compensation," "Damages.


If a motion by the defendant, at the close of all the evidence at the trial of an action at law, that a verdict be ordered in his favor is denied by the judge without asking the defendant to point out more particularly the propositions of law upon which he relies, and the defendant alleges an exception, it is open to the defendant in this court to raise any question of law actually involved.

One employed on a ship as ship's cook and seaman, who receives personal injuries when boarding his ship in tidewater by reason of the breaking of a defective ratline, which properly was being used by him and which should have been kept in a safe condition by the owner of the ship, may recover damages for his injuries in an action of tort at common law against the owner of the vessel in the Superior Court, such right being reserved by the provisions of 36 U.S. Sts. at Large, 1091 1161, saving

"to suitors in all cases," from the exclusive jurisdiction of all "causes of admiralty and maritime jurisdiction" vested in the federal courts, "the right of a common law remedy where the common law is competent to give it."

In the action above described, it was held, that the plaintiff was entitled to recover full compensatory damages.

A declaration in an action of tort by one employed as ship's cook and seaman against the owner of the ship, which alleged that the owner owed to him as a member of the crew the duty to keep and maintain the ship and her rigging, furnishings and appurtenances in a safe condition and that "by reason of the negligence" of the defendant a ratline had become defective, weakened and unsafe, whereby the plaintiff suffered injuries while the ship was lying alongside a wharf or pier in tidewater, plainly describes a maritime tort and sets out a cause of action entitling the plaintiff to "indemnity" for his injuries. Following The Osceola, 189

U.S. 158, 175.

The allegation in the declaration above described that the condition of the ratline arose "by reason of the negligence" of the defendant, and an instruction to the jury at the trial which required the plaintiff, in order to recover, to prove negligence of the defendant with respect to the ratline, were not harmful to the defendant, whether the basis of recovery for the maritime tort was that the owner was an insurer of the fit condition of the proper appliances appurtenant to the ship, or that he was guilty of such a failure to perform his duty as constituted negligence on his part.

It seems, that, according to the practice of the admiralty courts, the right of recovery by the seaman under the circumstances above described rests upon proof of negligence of the owner.

If a member of the crew of a ship, which belongs to two owners and is managed by only one of them, receives personal injuries while in tidal waters by reason of a defective condition of a ratline which it was the duty of the owners to keep in a fit condition, he may recover full compensatory damages in an action against the managing owner only.

TORT by a member of the crew of the fishing schooner Florida against one alleged in the declaration to be "the owner" of the schooner, for personal injuries resulting from a fall on November 5, 1912, caused by the breaking of a ratline which had been allowed to become defective through alleged "negligence" of the defendant. Writ dated September 26, 1916.

In the Superior Court, the action was tried before Fessenden, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered for him. The motion was denied. He then asked for the following, among other rulings:

"2. If there was any duty imposed by law or otherwise upon the owners of the schooner Florida, such duty was imposed to the extent of their ownership upon all the owners, so that whatever duty was thus owed was owed by both Michael J. Dillon and Edward A. Proctor, the other part owner of the schooner."

"6. The plaintiff may not pick out one of two co-owners of a boat and impose upon him liability without at the same time suing the other co-owner.

"7. The agent of the owners of a boat merely as agent cannot be responsible to the crew of such vessel. If any duty exists, it is a duty of the owners themselves."

The judge refused to make the rulings. The jury found for the plaintiff in the sum of $2,000; and the defendant alleged exceptions.

E. C. Stone, for the defendant, submitted a brief. S. R. Jones, for the plaintiff.

RUGG, C. J. This is an action of tort at common law wherein the plaintiff seeks to recover damages for personal injuries sustained by him on November 5, 1912, while boarding the Florida, a fishing schooner lying in tidewater at a wharf in Gloucester. The schooner was at the time fitted out, and was ready to put to sea the next morning on a fishing voyage. The plaintiff was cook and seaman, had put his clothes aboard, and was under the direction of the master or captain. In going from the wharf to the vessel a little after nine o'clock in the evening when the tide was well down, the plaintiff caught hold of the rigging and stepped on the ratline, which broke causing him to fall and receive injuries. This ratline, a cross piece of rope corresponding to the rung of a ladder, was the first one under the lantern board in the fore rigging on the starboard side. When the vessel was on a fishing voyage the ratlines were used by members of the crew to go aloft looking for swordfish.

There was evidence tending to show that it was the usual method of boarding the ship to step upon the ratline, that this part of the Florida was weak and "all dry rot," a condition which might have been discovered by proper inspection, and that it was the duty of the defendant as managing owner of the vessel to make such inspection and keep the vessel in repair and in seaworthy condition.

The contention chiefly urged by the defendant now is that, since the vessel was in navigable waters and the plaintiff one of her crew, the rights and liabilities of the parties are those established by the law of the sea and must be determined wholly according to the principles of admiralty and not at all by those of the common law, and that the plaintiff is not entitled to recover in this action, and that the judge erred in refusing to order a verdict for the defendant.

1. This point does not appear to have been specifically presented at the trial in the Superior Court. There was, however, a general request by the defendant that a verdict be ordered in his favor. Upon the refusal of such a request, "if the judge does not ask the requesting counsel to point out more particularly the propositions of law upon which he relies, it is possible to raise in this court any question of law actually involved," even though it was not referred to nor thought of by the judge or counsel at the trial. Parrot v. Mexican Central Railway, 207 Mass. 184 , 190. O'Donnell v. North Attleborough, 212 Mass. 243 , 245. Noyes v. Caldwell, 216 Mass. 525, 527. Conversely, the ruling of the Superior Court will be sustained if sound even though the judge in making it may have stated or been moved by reasons erroneous in law. Randall v. Peerless Motor Car Co. 212 Mass. 352 , 384. Putnam v. United States Trust Co. 223 Mass. 199 , 203.

2. Plainly the case at bar relates to a maritime tort.

It arose upon a seagoing vessel in navigable waters. In The Plymouth, 3 Wall. 20, at page 36, are found these words, quoted with approval in Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U.S. 52, at page 60: "Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance." Peters v. Veasey, 251 U.S. 121.

3. It is provided in the Constitution of the United States by art.

3, Section 2, that "The judicial power shall extend to all cases . . . of admiralty and maritime jurisdiction," and by art. 1, Section 8, that "The Congress shall have power . . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States." Pursuant to this jurisdiction and authority it was enacted by the Judicial Code, act of March 3, 1911, c. 231, Section 24, cl. 3, and Section 256, cl. 3; 36 U.S. Sts. at Large, 1091, 1161, in force at the time of the injury to the plaintiff, that exclusive jurisdiction is vested in the courts of the United States of all "causes of admiralty and maritime jurisdiction; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it." See now 40 U.S. Sts. at Large, 395, of the acts of Congress, approved October 6, 1917.

4. The Constitution of the United States and an act of Congress being involved in the determination of this question, decisions of the Supreme Court of the United States are of binding force. Numerous cases have been decided by that court which are pertinent to the facts in the case at bar. It was said in Manchester v. Massachusetts, 139 U.S. 240, at page 262, "Under the grant by the Constitution of judicial power to the United States in all cases of admiralty and maritime jurisdiction and under the rightful legislation of Congress, personal suits on maritime contracts or for maritime torts can be maintained in the State...

To continue reading

Request your trial
62 cases
  • In re O'Hara
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 29, 1924
    ...the ground that the vessel was unseaworthy and that in such instances the maritime law affords compensatory damages. Proctor v. Dillon, 235 Mass. 538,129 N. E. 265. The decision in Industrial Commission v. Nordenholt Corp., 259 U. S. 263, 42 Sup. Ct. 473,56 L. Ed. 933,25 A. L. R. 1013,[248 ......
  • Nowell v. Equitable Trust Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 20, 1924
    ...conduct strictly within the pleadings and is permitted to avail himself of whatever legal rights arise therefrom. Proctor v. Dillon, 235 Mass. 538, 540,129 N. E. 265;United States v. Nixon, 235 U. S. 231, 236, 35 Sup. Ct. 49, 59 L. Ed. 207. The ruling of the court below must be presumed to ......
  • Perry v. Stanfield
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 4, 1932 give it.’ The count in the plaintiff's declaration for conscious suffering comes within this saving clause. Proctor v. Dillon, 235 Mass. 538, 541, 542,129 N. E. 265, and federal decisions three reviewed. The count for death, although founded not on the common law but on a statute amendin......
  • Arruda v. Dir. Gen. of Railroads
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 27, 1925
    ...thought of at the trial. Parrot v. Mexican Central Railway, 207 Mass. 184, 190, 93 N. E. 590,34 L. R. A. (N. S.) 261;Proctor v. Dillon, 235 Mass. 538, 540,129 N. E. 265. The defendant argues that the damages here sought to be recovered are in the nature of a penalty or fine and hence cannot......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT