Rackus v. Moore-McCormack Lines, 9220.
| Decision Date | 28 July 1949 |
| Docket Number | No. 9220.,9220. |
| Citation | 85 F. Supp. 185 |
| Parties | RACKUS v. MOORE-McCORMACK LINES, Inc. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Herbert Jerome Bass, Philadelphia, Pa., for plaintiff.
Mark D. Alspach, Philadelphia, Pa., for defendant.
Plaintiff filed a complaint against Moore-McCormack Lines, Inc., claiming damages for personal injuries suffered in the course of his employment aboard the defendant's vessel, and maintenance and cure. The plaintiff alleges that he was in the employ of the defendant in the capacity of a stevedore, but was acting as a seaman, at the time of the accident, working in navigable waters. Defendant has moved to dismiss the complaint under Rule 12, or in the alternative for summary judgment under Rule 56. Federal Rules of Civil Procedure, 28 U.S.C.A. As to the first cause of action, the ground for the motion is that the plaintiff's exclusive remedy against the defendant-employer is provided by the Longshoremen's and Harborworkers' Compensation Act, 44 Stat. 1424, 33 U.S.C.A. § 901 et seq. As to the second cause of action, the ground for the motion is that the employer is not liable for maintenance and cure to one not a member of the crew of a vessel.
Under the Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688, a "seaman" may bring an action against his employer for personal injuries sustained in the course of his employment. The Supreme Court, in International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157, held the benefits afforded a "seaman" under the Act to be available to a longshoreman engaged in loading or unloading a vessel at dock on navigable waters. But shortly thereafter, Congress enacted the Longshoremen's and Harborworkers' Compensation Act, establishing a system whereby certain maritime workers should receive redress for their injuries from their employers in the form of compensation. That Act excepts from its operation a master or a member of a crew of any vessel, section 3, and renders the employer's liability under the Act exclusive of all other liability of the employer to the employee, section 5. "We must take it that the effect of these provisions of the Longshoremen's Act is to confine the benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recovery recognized by the Haverty case only such rights to compensation as are given by the Longshoremen's Act." Swanson v. Marra Bros., 328 U.S. 1, 7, 66 S.Ct. 869, 872, 90 L.Ed. 1045.
Plaintiff alleges in his complaint that he was acting as a seaman. However, "seaman" is a term broad enough to cover both one who is a "member of a crew" and one who is not a "member of a crew". Carumbo v. Cape Cod S.S. Co., 1 Cir., 123 F.2d 991, 994. It must be determined whether the plaintiff here was a member of the crew of the vessel whereon he was injured.
It clearly appears that the plaintiff was hired on December 11, 1948, at 12:55 p. m., to report to work aboard the "Mormacmoon" the next morning, for the specific purpose of assisting in the discharge of a cargo from that ship; that he entered upon such duty; and that he was subject to orders, and took orders, from the hatch foreman, the stevedore foreman of the defendant, who hired the plaintiff.
From these facts, it must follow that the plaintiff was not a member of the crew, or a "seaman" within the meaning of the Jones Act. "The...
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Harney v. William M. Moore Building Corporation
...(W.D.Pa.1960). There appear to be but two cases which are arguably otherwise, and each is distinguishable. In Rackus v. Moore-McCormack Lines, Inc., 85 F.Supp. 185 (E. D.Pa.1949), plaintiff "exercised his rights to compensation under" the Longshoremen's Act, and was barred from recovery. It......
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...L. Mechling Barge Line v. Bassett, 7 Cir., 119 F.2d 995; Carumbo v. Cape Cod S. S. Co., supra; and as set forth in Rackus v. Moore-McCormack Lines, Inc., D.C., 85 F.Supp. 185, namely: (1) that the vessel be in navigation; (2) that there be more or less permanent connection with the vessel; ......
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Latsis v. Chandris, Inc.
...barges held to be seamen under the Jones Act), cert. denied, 346 U.S. 817, 74 S.Ct. 29, 98 L.Ed. 344 (1953); Rackus v. Moore-McCormack Lines, Inc., 85 F.Supp. 185, 187 (E.D.Pa.1949); see also David W. Robertson, A New Approach to Determining Seaman Status, 64 Tex.L.Rev. 79, 94 (1985) (the "......
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