Roberts v. United Fisheries Vessels Co.

• Decision Date: 20 March 1944
• Docket Number: No. 3947.,3947.
• Citation: 141 F.2d 288
• Parties: ROBERTS et al. v. UNITED FISHERIES VESSELS CO.
• Court: U.S. Court of Appeals — First Circuit

141 F.2d 288 (1944)

ROBERTS et al. v. UNITED FISHERIES VESSELS CO.

No. 3947.

Circuit Court of Appeals, First Circuit.

March 20, 1944.

COPYRIGHT MATERIAL OMITTED

A. L. Kaplan, of Boston, Mass., for appellants.

Albert T. Gould and Bingham, Dana & Gould, all of Boston, Mass., for appellee.

Before MAHONEY and WOODBURY, Circuit Judges, and PETERS, District Judge.

PETERS, District Judge.

These actions were brought under Section 33 of the Merchant Marine Act of 1920, 41 Stat. 1007, 46 U.S.C.A. § 688, usually referred to as the Jones Act, to recover damages for alleged negligence of the defendant causing the death of the plaintiffs' intestates. A jury trial was had with verdicts for defendant. The plaintiffs appeal on account of the refusal of the presiding judge to instruct the jury in certain respects as requested. The deaths occurred under the following circumstances:

The plaintiffs' intestates, Velmer Joseph Roberts and Samuel Cotreau, were seamen on the schooner "J. M. Marshall", owned by the defendant, engaged in fishing out of Boston. The Marshall carried a complement of eighteen dory fishermen, together with a captain, engineer and cook. Arriving on the fishing grounds November 28, 1941, with the weather favorable, nine dories, with two men in each, left the vessel to set their trawls, as was the custom. Fishing was good and the men were loading their boats with fish from the trawls when the weather changed. A squall came up which quickly developed into a storm with a wind of from 30 to 40 miles an hour. This, with a change in the tide, caused high seas. The men, however, continued their work preparatory to returning to the vessel, which, as usual, had taken a position to the leeward of the boats to pick them up as they came in. Of the nine dories, eight returned safely to the vessel. The ninth, in which were Roberts and his dory-mate, Cotreau, never returned and could not be found after search. The men were undoubtedly drowned.

When last seen from the Marshall during the storm, the Roberts dory was about 150 feet from the vessel. The men in the dory were hauling in their trawls and were then quite heavily loaded, losing some fish overboard, according to the witness.

When the dory-men left the vessel they were under orders from the captain to set two and a half tubs of trawl per dory and, according to the understanding in the fishing business, they were considered to be under orders to stay out until they had finished making their sets, unless they were called in by the captain by a signal consisting of a flag hoisted in the rigging, which, when flown, means that all dorymen are to cut their trawls and come aboard immediately.

The fact that the men were not called back by the captain when the storm came up or during its continuance is the negligence claimed in this action against the employer, owner of the vessel.

The plaintiffs, appellants, base their appeals upon two propositions; one relating to the standard of care required to be exercised by the master of the vessel in his conduct toward the crew, and the second relating to the application of the rule as to assumption of risk. In both matters they allege error in the charge to the jury.

The first point is involved in requested instructions (8) and (10) which are as follows:

"(8) If the jury find that the master of the defendant's vessel, while the crew was engaged in fishing from dories on the high seas and including the plaintiff's intestate, speculated on the length and severity of the stormy condition of the sea and wind, which were then in existence or could have been reasonably foreseen, and failed to order his men to return to a place of safety on the vessel, this would be evidence of negligence.

"(10) In applying the test of acts and conduct of the master of a vessel, to determine whether the master was negligent, the standard of care to be exercised in a case under the `Jones Act', is a higher degree of care than that required of shore employees and under the common law."

The court below rejected the propositions involving the standard of care required, and charged the jury that the applicable standard of care was that of an ordinarily careful and prudent ship's master under the circumstances then present, charging in part as follows:

(1) "You can decide just what that captain, acting in a careful and prudent manner, would have done or should have done under the circumstances, considering the type of the work in which they were engaged and its hazards. If he acted just as any other reasonably prudent and careful captain would have done, then, of course, the defendant is not liable."

(2) "If you find that the captain of that ship during a storm in which an ordinary careful and prudent and reasonable captain would have called his men back, failed to do so for any reason whatsoever, then that would be evidence of negligence. That would be evidence of negligence that would bind this defendant.

"If, on the other hand, you find that the storm was of a type where the captain or any other person, acting in a reasonably careful and prudent manner considering that they were out there on the high seas to catch fish and make money would have done just exactly as he did, then that would not be evidence of negligence and to determine this point you have got to sift the evidence and ascertain just what the truth of the situation was."

The appellants cannot complain of these instructions, nor of other parts of the charge of the same tenor. Especially is this true of instruction number two, to the effect that if the captain found himself in a storm where a prudent master would summon the men back to the ship, — failing to do so "for any reason whatsoever, would be evidence of negligence". The appellants, however, attack generally the standard given by the jury by which to find negligence. It was that of reasonable care under the circumstances; the care that would be used by a reasonably careful and prudent master of a fishing vessel in the business then in hand.

The nature of the business and the particular dangers involved determine the amount of care required in any particular case, whether on land or on sea. The test or standard to be adopted in determining whether the care used is proper and commensurate with the danger is the supposed conduct under the circumstances of a reasonable and prudent man. Failure to use the care that a reasonable and prudent man would use under like circumstances is the usual concept of negligence. That is the recognized standard of care required under the maritime law, under the Jones Act and under the Railroad Employees' Liability Act, "the standards of duty" of which were "carried over and adopted" by the Jones Act. Language used by Mr. Justice Cardozo in his opinion in Cortes v. Baltimore Insular Line, 287 U.S. 367, 377, 53 S.Ct. 173, 176, 77 L.Ed. 368. In the same case it was also stated:

"The act for the protection of railroad employees does not define negligence. It leaves that definition to be filled in by the general rules of law applicable to the conditions in which a casualty occurs."

In the recent case of Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, at page 67, 63 S.Ct. 444, at page 451, 87 L.Ed. 610, 143 A.L.R. 967, the court has defined negligence under the Railroad Act, saying,

"In this situation the employer's liability is to be determined under the general rule which defines negligence as the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done."

In Matson Navigation Co. v. Hansen, 9 Cir., 132 F.2d 487, 488, an action under the Jones Act, the court said:

"The test is whether the requirement of a sailor is one which a reasonably prudent superior would order under the circumstances."

In the case of The Iroquois, 194 U.S. 240, 24 S.Ct. 640, 641, 48 L.Ed. 955, the standard of care required of the master of a vessel for the protection of his crew by the maritime law was given by the court, which said:

"* * * All that can be demanded of the master is the exercise of reasonable judgment. * * * To judge the propriety of the master's conduct in a particular case we are bound, as far as possible to put ourselves in his place * * *."

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