Southern Shell Fish Co. v. Plaisance

• Decision Date: 29 April 1952
• Docket Number: No. 13689.,13689.
• Citation: 196 F.2d 312
• Parties: SOUTHERN SHELL FISH CO., Inc. et al. v. PLAISANCE.
• Court: U.S. Court of Appeals — Fifth Circuit

196 F.2d 312 (1952)

SOUTHERN SHELL FISH CO., Inc. et al. v. PLAISANCE.

No. 13689.

United States Court of Appeals, Fifth Circuit.

April 29, 1952.

Alfred C. Kammer, New Orleans, La., for appellants.

James I. McCain, New Orleans, La., for appellee.

Before HOLMES, BORAH and STRUM, Circuit Judges.

STRUM, Circuit Judge.

In an action under section 33 of the Merchant Marine Act, 46 U.S.C.A. § 688, plaintiff below recovered judgment against Southern Shell Fish Company, and its liability insurer American Mutual Liability Insurance Company, for personal injuries received by plaintiff while working aboard a fishing boat owned by the Shell Fish Company. Defendants appeal.

Plaintiff alleged that he was employed as a member of the crew by the Shell Fish Company, acting through the captain of said boat; and that he was injured as a result of the company's negligent failure to use due care to provide him a reasonably safe place in which to work. The principal defense was that although the vessel was owned by the Shell Fish Company when plaintiff was injured, it was operated and controlled by Captain Frank Plaisance, father of the plaintiff, to whom the vessel had been leased by the company, as an independent operator thereof, and if there was any liability it was upon said independent lessee, not the company.

The Shell Fish Company operated a shrimp and oyster cannery. It owned a fleet of fishing boats, of which the boat in question was one, which were operated by fishermen who acted as "captains." There was no formal lease or charter of the boats. The captains were simply engaged to operate them on the basis hereafter stated. The company had the unqualified authority to peremptorily terminate a captain's services at any time, an authority frequently exercised. Usually the boats were engaged in catching shrimp, but sometimes the operators bought shrimp from other fishing craft and transported them to the cannery, an operation called "freighting." Upon direction of the company, the boats also sometimes engaged in oyster fishing.

The boats were operated on a "five share" basis, two shares to the company, three shares to the captain, who divided the latter amongst himself and the crew as the captain determined, without supervision by the company.

The captain hired and fired the members of his crew, and directed their work, the company exercising no direct control thereover. Usually the captain determined when and where he would fish, but the company, according to its needs, directed the captain whether to fish or "freight" shrimp, or whether to fish for oysters. It was required, however, that the captain deliver his entire catch, or purchases, to the defendant Shell Fish Company unless he had the company's express permission to dispose of them to others, which was unusual. On these occasions when a cargo, or some of it, was thus sold to others, the captain brought the entire proceeds to the company's office, to be divided as already stated. The company also controlled the time when the vessel would be in operation, and when it should be laid up for repairs.

The company did not carry the captain on a regular payroll, nor did it withhold any income taxes or make any deductions for social security or unemployment insurance. The company made advances to or for the captains for the purchase of fuel, ice, groceries, etc., to be used on each trip. Similar advances were made to the operators of other "independent" boats not owned by the company, and these advances were deducted before determining the amount due to the captain for each catch. If the catch on any given trip was insufficient to cover such advances, the deficit was carried over to, and deducted from, the next trip made by that boat, the captain being responsible therefor. A company witness testified that the company did not become the owner of the catch until it had been weighed, graded, and paid for. Until then, the catch was regarded as the property of the captain.

In Osland v. Star Fish & Oyster Company, 5 Cir., 107 F.2d 113, a case quite similar to this, when considering a demurrer to the complaint, this court held in effect that operating a fishing boat, such as this, on a share basis, is not inconsistent with an employer-employee relationship. That case was thereafter tried on the merits, the jury finding for the defendant apparently upon the theory that the plaintiff in that case was not employed by the defendant company. The jury thus resolved the facts before it in that case, and the judgment entered on that verdict was affirmed by this court, 118 F.2d 772, upon the theory that those facts would support such a verdict. In doing so, however, this court did not alter its earlier holding that the circumstances here shown are also consistent with the existence of an employer-employee relationship. This court has frequently held that where the evidence is conflicting, or permits of conflicting inferences, and the case has been fully and fairly presented to a jury, the verdict will...