Stevens v. Seacoast Company

• Decision Date: 13 August 1969
• Docket Number: No. 26852.,26852.
• Parties: David STEVENS, Plaintiff-Appellant, v. SEACOAST COMPANY, Inc. and M/V ELENA S, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 1032 (1969)

David STEVENS, Plaintiff-Appellant, v. SEACOAST COMPANY, Inc. and M/V ELENA S, Defendants-Appellees.

No. 26852.

United States Court of Appeals Fifth Circuit.

August 13, 1969.

Samuel Richard Exnicios, New Orleans, La, Roland J. Mestayer, Jr., Pascagoula, Miss., for appellant.

John M. Sekul, Jules Schwan, Biloxi, Miss., for appellees.

Before JOHN R. BROWN, Chief Judge, GODBOLD, Circuit Judge, and CABOT, District Judge.

JOHN R. BROWN, Chief Judge:

The wrinkle, not a new one, cf. Mike Hooks, Inc. v. Pena, 5 Cir., 1963, 313 F. 2d 696, 697, 1963 A.M.C. 355, that differentiates this case from the run-of-the-sea claim for a seaman's personal injuries is the contention which usually strands in fact and here founders on the reef of law that the master of the fishing vessel on a lay was the bare boat charterer or a sort of seagoing independent contractor carrying on a joint venture with fellow crew members, so that the seaman was his, not the Shipowner's, employee. The Trial Court sustained this defense. Because this result affords a too-easy insulation from serious and far-reaching obligations reflected both by the Congressional policy of the Jones Act, 46 U.S.C.A. § 688, and perhaps even more so by the dynamic developments in the Sieracki-Ryan-Yaka era,¹ we reject it. We therefore reverse and remand to fix damages.

The cause of this nautical controversy is the injury to the seaman, a young up-country Mississippi boy who had never been to sea in his life. He was severely injured in the first half hour of his oyster dredging operations on the M/V Elena S. while she was running the oyster beds at Caliga Bay off the Gulf Coast.

The vessel was 58 feet in length with a beam of 18½ feet, fitted out for dredging oysters. It is uncontradicted that she was owned by Seacost Company, Inc., and was, as the Trial Judge's findings accurately characterized, "assigned to a master," a young man of 23 whose formal education ended at the sixth grade. There was no written contract of any kind between this young man and Shipowner. And from the young Master's testimony generally, it is quite evident that if he was, as Shipowner's proctor successfully urged, a bare boat charterer, a demise charterer, or a charterer pro hac vice, he did not know it, nor did he comprehend the legal significance of any such strange terminology or, worse, his obligations as a supposed employer of his fellow crew members. The vessel was worked on a lay under which, the Trial Court found, "at the end of each trip the catch was sold to the Shipowner". Although there was a suggestion that the Captain was free to dispose of the catch elsewhere, it is quite clear that this was limited to extraordinary situations and a Captain would not last long if he chose to sell the catch to one of Shipowner's numerous competitors in the area. For oyster dredging operations the proceeds of the catch were divided in this fashion. From the top, Shipowner was first paid a dredging hire (a stated amount per barrel) and then was reimbursed for all expenses incurred for fuel, ice, and — as so unfelicitously described in non-nautical language — groceries for the trip. After the dredge fee and trip expenses were skimmed, the remainder was divided into five equal shares, one for Shipowner and one for each of the four crew members, i. e., the Captain and three seamen. Following the custom of the area, the Captain selected his own crew members and was presumably given full authority to hire and fire. Once the vessel got underway Shipowner could not, of course, have any control over her activities, and her control, navigation, and operation were committed to the Captain. This presumably included the manner in which the dragging for oysters was physically performed.

The Trial Judge, undertaking to distinguish this situation from that found by Judge Allred to be a shipowner-seaman relationship in Justillian v. Versaggi, S.D.Tex., 1954, 169 F.Supp. 71, not mentioning a host of other cases presumably because they were not cited by either counsel to him or for that matter to us on appeal,² and putting almost complete reliance on our opinion in Gulf Coast Shrimpers and Oystermans Ass'n v. United States, 5 Cir., 1956, 236 F.2d 658, held that the captain was a bare boat charterer of M/V Elena S., who, on accepted principles, see G. Gilmore & C. Black, The Law of Admiralty 218 (1957), bears the in personam liabilities for the vessel's operation and specifically those of the employer of the seamen making up the crew.

Of course, there are situations in which courts recognize that the question whether the relationship of employer-employee, shipowner-seaman exists, is one of fact to be resolved by the trier of fact. See note 2, supra. But in the light of overriding principles affording the utmost protection to seamen, Mitchell v. Trawler, Racer, Inc., 1960, 362 U. S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, 1960 A.M.C. 1503, such situations are bound to be rare.

And certainly this record does not orbit to a factual apogee. To the contrary, on the most favorable review of the findings below and the contentions of Shipowner, this arrangement does not begin to approach the perigee of the minimum requirements of a demise charter. Indeed, the only thing which resembles a bare boat charter is the barrenness of any indicia characteristic of an owner pro hac vice. At the outset, the so-called charterer — whether considered to be the Captain or collectively the Captain and his fellow shipmates — does not "man, victual",³ and supply the vessel. This burden is shared by all, including Shipowner, since the division under the lay into five equal shares apportions the expenses, even though they may initially have been incurred or guaranteed by Shipowner. Next, the fact that the Captain alone hires and fires the crew is of no significance at all. For while gigantic shipping companies with their sprawling departmental hierarches including port captains, port engineers, hiring halls, union agreements, and the like, tend to obscure the shipmaster's role, the fact remains that under express law and tradition that spans the centuries, the engagement reflected by that most maritime of all maritime contracts — Shipping Articles — is not between shipowner and seaman, but between master and seaman.⁴

The same thing is true as to the operation, navigation, and control of the vessel once underway. Just how a remote owner could navigate a vessel from shore is not revealed. But not to be forgotten is that lowly as may be his station in the world of seafarers, homely as may be the little craft he cons, the Master is "lord of his little world",⁵ and the one thing the law's Plimsoll Line demands is that no one — not even a Captain Nott⁶ — can undertake swivel-chair navigation to tell a so-called Master to turn to, stay put, or seek a haven. Cf. Boudoin v. J. Ray McDermott & Co., 5 Cir., 1960, 281 F.2d 81, 1960 A.M.C. 1884.

At most, the only control not inherent in a shipmaster's work committed to the Captain under this arrangement was the selection for the moment of the place to dredge and the manner in which the dredges were put out, hauled in and the ship operated.

When there is added to all of this — or, more accurately, all of this nothing — the fact that there is no tenure or substantial duration in point of time to the arrangement between Shipowner and Master so that at the first moment the "independent" contractor displeases the shipowner the agreement can be revoked at will, it demonstrates that no real possessory rights are invested in the so-called charterer. But this is the essential requisite of a demise charter to distinguish it from time and voyage charters and the like. G. Gilmore v. C. Black, The Law of Admiralty 215-219 (1957). Under an arrangement so loose it cannot be identified, a valuable vessel is turned over to one for physical operation without regard to relative financial stability, and at the same time all of the other burdens of shipowning, including expensive maintenance, repair, insurance, and the like, are borne solely by the owner. Worse, if it is really a demise charter, then the owner exposed his vessel to unlimited maritime liens, 46 U.S.C.A. § 971, since there was no § 973 limitation on the power of the charterer, § 972, to incur them. See Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 1940, 310 U.S. 268, 60 S.Ct. 937, 84 L.Ed. 1197, 1940 A.M.C. 647; Tampa Ship Repair & Dry Dock Co. v. Esso Export Corp., 5 Cir., 1956, 237 F.2d 506, 1957 A.M.C. 102. It is simply an illusion to call this arrangement anything other than a means of determining fair compensation to those who take the ship to sea to fish or shrimp or dredge for oysters.⁷

And no comfort can be drawn from the large collection of cases not cited but known to us concerning the status of crew members on fishing vessels for purposes of the Federal Insurance Contribution Act or the Federal Unemployment Tax Act. Analyzing the problem in the light of general maritime principles urged upon the Court by the Government, this Court in United States v. W. M. Webb Inc., 5 Cir., 1969, 402 F.2d 956, A.M.C. cert. granted, 394 U.S. 996, 89 S.Ct. 1591, 22 L.Ed.2d 774 had this to say concerning an arrangement which was substantially identical with that involved in the instant case:

"Does a realistic application of common law tests require the relationship of owners to the captains and crews be evaluated under principles of general maritime law? The `"ancient solicitude of courts of admiralty for those who labor at sea" continues unchanged, despite the progress from canvas sails to diesel engines.\' In non-text context when courts are asked to determine whether seamen are employees of the vessel\'s owner, all ambiguities or doubts are resolved in favor of the seaman. Today, the law is clear that in both categories of cases — Jones Act, and maintenance and cure — the owner of the vessel is the employer unless the vessel is

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