THE ANNA HOWARD SHAW

• Citation: 75 F. Supp. 210
• Parties: THE ANNA HOWARD SHAW. WARREN v. UNITED STATES et al.
• Decision Date: 04 March 1948
• Court: U.S. District Court — Southern District of New York

75 F. Supp. 210

THE ANNA HOWARD SHAW WARREN v. UNITED STATES et al.

District Court, S. D. New York.

December 8, 1947.

Rehearing Denied March 4, 1948.

Saul Sperling, of New York City (Xavier N. Sardaro, of New York City, of counsel), for libellant.

John F. X. McGohey, U. S. Atty., of New York City (Kirlin, Campbell, Hickox & Keating, of New York City, of counsel), for respondent United States.

Kirlin, Campbell, Hickox & Keating, of New York City (Walter X. Connor, of New York City, of counsel), for respondent American South African Line, Inc.

Rehearing Denied March 4, 1948. See 76 F.Supp. 735.

MEDINA, District Judge.

Libellant, a merchant seaman, was injured while a member of the crew of the S. S. "Anna Howard Shaw," although not aboard the vessel at the time. In this proceeding in personam he claims maintenance and cure from the United States, the owner of the vessel, and the American South African Line, Inc., which was acting under the customary form of general agency agreement.

§ 2 of the Suits in Admiralty Act, 46 U. S.C.A. § 742, provides:

"In cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States or against any corporation mentioned in section 741 of this title, as the case may be, provided that such vessel is employed as a merchant vessel or is a tugboat operated by such corporation. Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found. * * *"

At the time of the filing of the libel, the vessel was not within the waters of the United States or any of its territories. At all times libellant was a resident of Lansing, Michigan. It was stipulated that during the pendency of this proceeding the vessel was for a time within the territorial waters of the United States and within the Southern District of New York. The respondent United States pleaded both lack of jurisdiction and improper venue.

It may be that the language of the statute can be so construed as to require a holding that the Court was without jurisdiction. Blamberg Brothers v. United States, 1923, 260 U.S. 452, 43 S.Ct. 179, 67 L. Ed. 346; Carroll v. United States, 2 Cir., 1943, 133 F.2d 690; Abbott v. United States D.C.S.D.N.Y., 1945, 61 F.Supp. 989; Untersinger v. United States, D.C.S.D.N.Y., 74 F.Supp. 155, 1947 A.M.C. 1348; Barnes v. United States, D.C.S.D.N.Y., 1946, 67 F. Supp. 571; Sawyer v. United States, D.C. S.D.N.Y., 1946, 66 F.Supp. 271. On the other hand, the basic purposes of the Suits in Admiralty Act and the similarity of the language of § 2 to the pattern of other provisions of law pertaining to venue would seem to indicate a lack of intention on the part of the Congress to make the presence of the vessel in the waters of the United States at the time of the filing of the libel an indispensable prerequisite to jurisdiction. Nor does it seem possible to reconcile a holding of lack of jurisdiction with judicial determinations that the Court might proceed to decree where the vessel has been torpedoed or where, for other good and sufficient reasons, the presence of the vessel could not be had or the point had been waived. Eastern Transportation Co. v. United States, 1927, 272 U.S. 675, 47 S.Ct. 289, 71 L.Ed. 472; Kunglig Jarnvagsstyrelsen v. United States, 2 Cir., 1927, 19 F.2d 761; McGhee v. United States, D.C.S.D.N.Y., 1945, 62 F. Supp. 224, reversed on other grounds, 2 Cir., 1946, 154 F.2d 101; Hong v. United States, D.C.S.D.N.Y., 1944, 59 F.Supp. 794. No stipulation or act of parties or adventitious circumstance arising out of war conditions could suffice to confer upon the Court a jurisdiction over subject matter which otherwise would not exist. But this is by the way.

It is at least clear that the objection to venue is well taken; and the libel against the United States must accordingly be dismissed. Abbott v. United States, D.C. S.D.N.Y., 1945, 61 F.Supp. 989; Rodinciuc v. United States, D.C.E.D.Pa., 1947, 74 F. Supp. 284. Apparently libellant does not contend otherwise; and no application has been made to transfer the cause to any other district.

Respondent American South African Line, Inc., may still be liable, despite the dismissal of the libel as against the United States. Carroll v. United States, 2 Cir., 1943, 133 F.2d 690. But it asserts that it is not liable for maintenance and cure because the relationship of employer and employee did not exist between it and libellant.

American South African Line, Inc., was the general agent, having certain powers over and duties toward the S. S. "Anna Howard Shaw," appointed under a General Agent Service Agreement with the War Shipping Administration, similar to that cited and interpreted in Hust v. Moore-McCormack Lines, Inc., 1946, 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534. Under the terms of that agreement, the general agent procures members of the crew, and makes them available to the ship's master, and in this case American South African Line, Inc., was responsible for the hiring of libellant. The Hust case held that, for purposes of suit under the Jones Act, 46 U.S.C.A. § 688, the general agent was the employer of a seaman injured aboard ship. In spite of the assertion by the Department of Justice in a letter, a copy of which was submitted to the Court, that the general agent "is a mere ship's husband looking after the accounting and certain other shoreside operations of the vessel," no argument is any longer possible, after the Hust case, that the general agent is not, at least for some purposes, an "employer."

The question is whether the general agent is an employer for the purposes of liability for maintenance and cure. The reasoning of the Hust case would seem persuasive that it is. Respondent, however, attempts to distinguish that case because it was a suit for indemnity under the Jones Act, whereas this is not. True, respondent does not deny that a general agent may be liable both for indemnity under the Jones Act and for maintenance and cure, Lewis v. United States Navigation Co., D.C.S.D. N.Y., 1944, 57 F.Supp. 652, but it asserts that a suit for maintenance and cure against a general agent cannot be maintained independently of a suit under the Jones Act.

I cannot make this distinction. If a general agent is an employer for the purposes of liability in tort under the Jones Act, it does not seem far-fetched to consider him an employer for the purposes of liability for maintenance and cure, that pervasive incident of the maritime contract, Cortes v. Baltimore Insular Line, 1932, 287 U.S. 367, 371, 53 S.Ct. 173, 77 L.Ed. 368, antedating the Jones Act by hundreds of years. The Osceola, 1903, 189 U.S. 158, 169-175, 23 S. Ct. 483, 47 L.Ed. 760. It would be incongruous to say that the Jones Act has by implication so weakened it as to make it incapable of independent suit. 1 Benedict, Admiralty 258 (6th Ed. 1940). There are authorities for this view, both in the Federal, Broadbent v. United States, D.C.E.D. Pa., 1947, 73 F.Supp. 612, 1947 A.M.C. 749, and State courts. Moss v. Alaska Packers Ass'n, 1945, 70 Cal.App.2d Supp. 857, 160 P. 2d 224; Martinez v. Marine Transport Line,¹ N.Y.City Municipal Court 1947.

Nor does Caldarola v. Eckert, 1947, 332 U.S. 155, 67 S.Ct. 1569, require a different conclusion. There a stevedore was injured while working aboard a vessel with respect to which an agent was functioning under the usual General Agent Service Agreement. The general agent had nothing to do with his being hired, as he was the employee of a stevedoring concern under an independent contract with the government. The Supreme Court held that this agreement did not impose upon the agent "duties of care to third persons, more particularly to a stevedore under employment of a concern unloading the vessel pursuant to a contract with the United States." 332 U.S. at page 159, 67 S.Ct. at page 1571. Libellant here is not a business invitee, a third person, but a seaman procured by the general agent under the Service Agreement. He is more like Hust than Caldarola. It would not impose an unusual burden upon general agents to require them to make payments for maintenance and cure, for it has apparently been the practise for them to do so. See Legal Bulletin No. 53, War Shipping Administration, February 28, 1945. I find that American South African Line, Inc. is the libellant's employer for the purposes of a claim for maintenance and cure. Now to the merits.

Libellant was a messman aboard the S. S. "Anna Howard Shaw." On October 30, 1944, while the vessel was in the Bay of Naples, Italy, libellant left on shore leave. In company with the ship's carpenter and another messman, he went sightseeing. They came to the waterfront town of Bagnoli (referred to by libellant as Magnolia). The group stopped at various stores and at one such place they bought a small bottle of wine which they divided among them. About three miles down the shore from where they had landed from a motor lifeboat, they stopped at a dance hall and stayed an hour and a half or so. Libellant says he was dancing most of the time, and drank only one additional glass of wine.

After a time libellant entered another room and approached a large window overlooking the sea, and he says the sight of the waves breaking upon the rocks some thirty-five feet below intrigued him. The French doors of this window extended to the level of the floor and he observed a sort of wholly unprotected ledge or balcony, which extended out from the building some two and a half or three feet. There was no railing of any sort and the slightest misstep or unsteadiness was almost sure to...