Salgado v. M. J. Rudolph Corp.

• Decision Date: 24 March 1975
• Docket Number: No. 374,D,374
• Citation: 514 F.2d 750,1975 A.M.C. 888
• Parties: Pedro SALGADO, Appellant, v. M. J. RUDOLPH CORP., Appellee. ocket 73-2690.
• Court: U.S. Court of Appeals — Second Circuit

Page 750

514 F.2d 750

Pedro SALGADO, Appellant, v. M. J. RUDOLPH CORP., Appellee.

No. 374, Docket 73-2690.

United States Court of Appeals Second Circuit.

Argued Jan. 27, 1975.

Decided March 24, 1975.

Lester E. Fetell, Sergi & Fetell, Brooklyn, N. Y., for appellant.

Joseph Arthur Cohen, Alexander, Ash, Schwartz & Cohen, New York City (Sidney A. Schwartz, New York City, of counsel), for appellee.

Before KAUFMAN, Chief Judge, and MANSFIELD and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This case involves the question whether appellant, injured on board a floating crane in 1966, can sue his employer, the owner of the crane, for negligence or breach of the warranty of seaworthiness. The appeal is from a judgment of dismissal by the United States District Court for the Eastern District of New York, Leo F. Rayfiel, Judge, sitting without a jury. The sole issue before the court below was one of status, whether appellant was a seaman entitled to sue under the Jones Act, 46 U.S.C. § 688, and for breach of the warranty of seaworthiness, or a longshoreman entitled to sue under Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), and Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963), for breach of the seaworthiness warranty. The parties had agreed that, if necessary, liability and damages would be determined in a second trial. The court below found that appellant was neither a seaman nor a longshoreman but rather a harborworker entitled to no relief beyond the compensation he had received under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950.

We reverse on the grounds that appellant is a Sieracki seaman, a longshoreman working aboard a vessel, who is owed a warranty of seaworthiness by the vessel's owner, his employer.

I. FACTS.

On September 19, 1966, ¹ appellant Pedro Salgado was injured on board a floating crane when an electromagnet, used in loading scrap metal onto freighters, slid, crushing his foot. The floating crane, known as the R6, was owned by the appellee, M. J. Rudolph Corp. (Rudolph). Rudolph, Salgado's employer on the day of the accident, was a stevedoring company which had employed Salgado for approximately a year prior to the accident on an hourly basis when Salgado's services were needed. The court below found that Salgado's duties included working winches on the decks of ships, acting as a signalman to crane operators, and, on occasion, working on floating cranes tying, untying and moving them. When working winches Salgado would, by the use of a chute, assist in placing the cargo into a hold of a ship. During the year before the accident Salgado also had worked for other stevedoring companies on an hourly basis.

The day before the accident a foreman from Rudolph, Mr. Bonilla, had called Salgado and told him to report to work the next day. Rudolph had contracted to load a freighter with scrap metal. Rudolph did not own the freighter, nor is the freighter a party to this suit. Salgado was a member of the gang that loaded the freighter. The loading was done by means of the floating crane, "R6," which, with either a bucket or a magnet, transferred scrap metal from a lighter to the freighter. The R6 was between the freighter and the lighter during this process. It had no motive power of its own but was moved over the water by tug boats and moved between hatches of a vessel by lines from the ship's winches maneuvered by workers on the deck of the R6. When a freighter was being loaded the crane's operator sat in an enclosed cab approximately 30 feet above the deck. By the use of levers he could move the cab and permanently affixed boom in a 160 degree circular motion and could raise and lower the boom. The fireman/oiler aboard the R6 maintained the diesel and electric power for these operations.

Appellant spent most of the day of the accident on the deck of the freighter using the ship's winches to move a chute into a hatch so that the hold could be loaded with metal. After the hold was filled it was necessary to move the R6 by maneuvering lines. Salgado and two other Rudolph employees were told by a Rudolph foreman to go onto the R6, where Salgado was told to pick up a loose sling. As he did so the boom on the R6 moved, the R6 listed, and the electromagnet sitting on the deck of the R6 slid, hitting Salgado's foot. It should be added that Salgado neither ate meals nor slept on the R6 and that the R6 was not equipped with sleeping facilities.

Appellant sought and accepted benefits under the Longshoremen's and Harbor Workers' Compensation Act. He filed two suits, one alleging a seaman's cause of action, the second a longshoreman's action against his employer, Rudolph. The cases were consolidated for trial.

II. CONTENTIONS OF THE PARTIES.

Appellant argues that the court's finding below that he is not a seaman is clearly erroneous. He also argues that as a matter of law and fact the determination that he is not a longshoreman should be reversed.

Appellee, in addition to supporting the trial court's determination that Salgado is a harborworker and unable to sue his employer under either the Jones Act or the Reed doctrine, argues that appellant's status is a question of fact reviewable only under a clearly erroneous standard and that the R6 is not a vessel.

III. SHIPOWNERS' HISTORIC LIABILITY.

A brief historical review may serve to clarify our thinking. The Jones Act, 46 U.S.C. § 688, ² provides that a seaman may maintain an action at law for damages. It will be recalled that this act was passed in 1920 to allow actions in negligence, overturning that portion of The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903), to the contrary. G. Gilmore & C. Black, The Law of Admiralty §§ 6-3, 6-20 (1957) (hereinafter Gilmore). The Osceola had, however, established a seaman's cause of action for breach of the warranty of seaworthiness. That was a limited remedy until Mahnich v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944), held that seaworthiness encompassed operating negligence and Seas Shipping Co. v. Sieracki, 328 U.S. at 94-95, 66 S.Ct. 872, articulated the warranty as one of strict liability. See Gilmore §§ 6-39 6-41. Sieracki also held that the shipowners' warranty of seaworthiness extended to stevedores injured on board ship. 328 U.S. at 95-97, 66 S.Ct. 872.

The Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950, was passed in 1927 after the Supreme Court had consistently held that state workmen's compensation acts could not constitutionally be made applicable to admiralty actions which were exclusively federal. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917); Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924). See Gilmore §§ 6-45 6-46. That act, providing compensation payments without proof of fault, excluded from its coverage.

A master or member of a crew of any vessel, nor (sic) any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. 33 U.S.C. § 903(a)(1). Thus "seamen" wished and were able to retain their Jones Act rights in negligence against their employer as well as their ability to sue under the warranty of seaworthiness and for maintenance and cure. See Gilmore § 6-46 at 338. ³

The LHWCA does not cover seamen, and compensation under it was the only remedy for a longshoreman against his employer, the stevedoring company, for injury on shipboard. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 212-13 n. 12, 92 S.Ct. 418, 30 L.Ed. 2d 383 (1971). In 1963 Reed v. The Yaka, supra, however, provided an exception to the then exclusive remedy provision of the LHWCA. 33 U.S.C. § 905. ⁴ Reed held that a longshoreman injured on board a vessel owned (or operated under a bareboat charter) by his employer, the stevedoring company, could sue the employer for breach of the warranty of seaworthiness despite § 905. 373 U.S. at 412-16, 83 S.Ct. 1349. Accord, Jackson v. Lykes Bros. Steamship Co., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488 (1967).

In Reed, however, the injury occurred on board the vessel being loaded; here the injury occurred upon a floating crane (owned by the stevedore) used to load a freighter not owned by the stevedore. There is no allegation of the freighter's unseaworthiness.

IV. APPLICABILITY OF THE JONES ACT.

To be a Jones Act seaman and thus entitled to sue for negligence as well as breach of the warranty of seaworthiness but not entitled to Longshoremen's Compensation, this court has said, "the vessel must be in navigation, there must be a more or less permanent connection with the ship, and the worker must be aboard naturally and primarily as an aid to navigation". Klarman v. Santini, 503 F.2d 29, 33 (2d Cir. 1974) quoting Harney v. William M. Moore Building Corp., 359 F.2d 649, 654 (2d Cir. 1966). Here the parties stipulated that the R6 was in navigable water. It is unnecessary in the context of the Jones Act claim to determine whether the R6 is a vessel or whether Salgado was aboard to aid in her navigation. The court below found that Salgado did not have a "more or less permanent connection" with the R6. We find the evidence sufficient to support such a finding. Cf. Bullis v. Twentieth Centry-Fox Film Corp., 474 F.2d 392 (9th Cir. 1973); Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42 (5th Cir. 1960). See also Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944). Salgado's presence on the R6 was only for the purpose and duration of loading the freighter alongside. While he handled lines to move the R6, that does not require a finding of seaman's status. See South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940).

On the other hand, the fact that Salgado ate and slept ashore does not necessitate a finding that the status of seaman did not exist. See Weiss v. Central...