Rogosich v. Union Dry Dock & Repair Co.

• Decision Date: 23 November 1933
• Docket Number: No. 5096.,5096.
• Parties: ROGOSICH v. UNION DRY DOCK & REPAIR CO.
• Court: U.S. Court of Appeals — Third Circuit

67 F.2d 377 (1933)

ROGOSICH v. UNION DRY DOCK & REPAIR CO.

No. 5096.

Circuit Court of Appeals, Third Circuit.

October 23, 1933.

Rehearing Denied November 23, 1933.

Lichtenstein, Schwartz & Friendenberg, of Hoboken, N. J. (John H. Kelley, of Hoboken, N. J., of counsel; Howard Engel, of Hoboken, N. J., on the brief), for appellant.

Lindabury, Depue & Faulks, of Newark, N. J. (Burtis S. Horner and Walter F. Waldau, both of Newark, N. J., of counsel), for appellee.

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

This is an appeal from a decree in favor of the respondent in a suit in admiralty commenced by a libel in personam to recover damages for personal injuries sustained by the libelant. The facts are sufficiently set out in the memorandum opinion by Judge Fake, quoted in full in a note at the end of the opinion.

The libelant elected to sue in admiralty although, as a seaman, he might have sued at law under authority of the Jones Act (46 USCA § 688). That he made this election is apparent from statements made at bar by his proctor: "We do not proceed under the Jones Act. We proceed upon the theory that this is a tort cognizable in this court in admiralty." And again: "We are not proceeding under the Jones Act."

Later the following discussion took place:

"The Court: And your contention is that you are not suing under the provisions of the Jones Act?

"Mr. Kelley: Yes, your Honor, we did in the State court attempt to get the benefit of the Jones Act. We went in saying Rogosich, a carpenter, was a seaman.

"The Court: In other words, you elected where you had an election, not to proceed under the terms of the Jones Act, however beneficent they may have been for your cause of action.

"Mr. Kelley: That is why we came in here.

"The Court: But you come here on the basic admiralty jurisdiction over maritime torts.

"Mr. Kelley: Yes, your Honor.

"The Court: I have not, of course, read your libel. Is there anything in your libel which would indicate that you are here under the Jones Act?

"Mr. Kelley: No, your Honor, there is no reference in there to any legislation whatsoever. We allege negligence which resulted in this servant's injury.

"The Court: Now, as I understand counsel for the respondent in his argument, he took the position that the facts disclosed by you force you into the terms and provisions of the Jones Act. Is that correct?

"Mr. Horner: Yes, sir. That is correct."

The libelant now contends that the court erred in restricting him to such remedies as were available to him in admiralty, and maintains that he was entitled to rights accorded a seaman by the Jones Act.

This act provides as follows: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply. * * *" Section 33.

The statutes referred to, which are applicable to an action at law maintained by a seaman, are those incorporated in 45 USCA §§ 51 to 59, inclusive, known as the Federal Employers' Liability Act. Section 56 of that title limits the period for instituting suit as follows: "No action shall be maintained under this chapter unless commenced within two years from the day the cause of action accrued. * * *"

The alleged cause of action accrued on December 9, 1925, and the libel was filed on December 22, 1927. The time within which the seaman had the right to maintain an action for damages at law had, therefore, expired by reason of the statute of limitations contained in the Federal Employers' Liability Act, supra. After the expiration of the two year period, the libelant's only remedy was in admiralty.

The libelant, while engaged in repairing a scow on the respondent's dry dock upon navigable waters, had the status of a seaman. Kuhlman v. W. & A. Fletcher Co. (C. C. A.) 20 F.(2d) 465. In the absence of statute, a seaman may recover compensatory damages in admiralty only upon proof of unseaworthiness of the vessel. Pacific S. S. Co. v. Peterson, 278 U. S. 130, 49 S. Ct. 75, 73 L. Ed. 220; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 S. Ct. 501, 62 L. Ed. 1171; The Osceola, 189 U. S. 158, 23 S. Ct. 483, 47 L. Ed. 760. Although the term "unseaworthiness" might possibly be extended to cover a case where the owners selected and employed an incapable crew as fellow servants of the libelant, we think the trial court did not err in concluding from the evidence that there was no proof upon which to base a finding of unseaworthiness in that respect.

The right to recover for injuries due to the negligence of a fellow servant, accorded a seaman by the Jones Act, may be asserted under the admiralty forms of procedure and pleadings (Baltimore S. S. Co. v. Phillips, 274 U. S. 316, 47 S. Ct. 600, 71 L. Ed. 1069; Panama R. R. Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748); but, inasmuch as the statute of limitations had run, the trial court rightly restricted the libelant to his right to recover for injuries due to unseaworthiness of the vessel.

The libelant's claim is based upon the alleged negligence of his fellow servants. As already indicated, the terms of the Federal Employers' Liability Act were inapplicable because the statute of limitations had run. We conclude that, in the absence of proof of negligence in the selection of the libelant's fellow servants, the respondent was entitled to defend upon the ground of nonliability to its employee for injuries due to the negligence of such fellow servant. The Osceola, supra; Quebec S. S. Co. v. Merchant, 133 U. S. 375, 10 S. Ct. 397, 33 L. Ed. 656.

Finding no error in the rulings and conclusions of the court below, the decree is affirmed.

NOTE. — The following is the opinion of Fake, District Judge.

This is a suit in admiralty wherein the libelant seeks indemnity for personal injuries sustained while in the employ of the defendant. The facts are as follows:

Libelant, a ship carpenter, was working on a scaffold which consisted of planking placed upon sawhorses some eight or nine feet from the deck of a floating dry dock. Immediately preceding the accident he was engaged in pounding with a wooden mall against a plank which was being fastened to the ribs or frames of the hull of the car float. His pounding caused a wedge, which had been placed between the spol and the plank which was to be bent in, to fall out of its position. This caused slack in the tackle which had been attached to the top of the spol. The tackle passed over the rail of the float at a point six inches aft of a point thereon where the rail tapered off at an angle downward toward the deck in the direction of the bow. On the falling out of the wedge and the consequent slackening of the pressure on the tackle, the tackle lines slipped down the...