THE BAYMEAD

• Decision Date: 09 February 1937
• Docket Number: No. 8191.,8191.
• Citation: 88 F.2d 144
• Parties: THE BAYMEAD. CARROLL v. MORAN TOWING & TRANSPORTATION CO., Inc.
• Court: U.S. Court of Appeals — Ninth Circuit

88 F.2d 144 (1937)

THE BAYMEAD.

CARROLL v. MORAN TOWING & TRANSPORTATION CO., Inc.

No. 8191.

Circuit Court of Appeals, Ninth Circuit.

February 9, 1937.

Nathan Merenbach, of San Francisco, Cal., for appellant.

Frederick W. Dorr and Archie M. Stevenson, both of San Francisco, Cal. (Hengstler, Dorr & Stevenson, of San Francisco, Cal., of counsel), for appellee.

Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.

WILBUR, Circuit Judge.

The appellant, Martin J. Carroll, was an able-bodied seaman, serving aboard the tug Baymead on a trip from New York to San Francisco for which he had enlisted. The ship had been purchased and owned by Sovortorgflot, a corporation organized under the laws of the Union of Soviet Socialist Republics. After such purchase, the tug was registered with the Bureau Veritas Registry, as registered at Vladivostok. In the shipping articles it is stated that the vessel was registered at Vladivostok. During the voyage she flew the flag of the U. S. S. R. The appellee, the Moran Towing & Transportation Company, appeared as claimant. It had entered into a contract with the Amtorg Trading Company, which company was acting as agent for Sovtorgflot, to furnish a crew and to take the vessel from Detroit, Mich., via New York to San Francisco. During a severe storm off the coast of California, the appellant, while descending the ladder into the forecastle, slipped and fell to the forecastle deck. He brought this libel in rem against the Baymead to recover $10,000 for personal injuries received by him and also to recover additional sums for maintenance and cure. It is conceded by the appellant that unless the vessel was unseaworthy in some respect which proximately contributed to the injury, the appellant cannot recover damages for personal injuries. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; The Birkenhead (D.C.) 51 F.(2d) 116. The Jones Act (46 U.S.C.A. § 688) does not apply to a suit in rem. Plamals v. S. S. Pinar Del Rio, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827. In order to sustain his claim, he alleges that the vessel was unseaworthy in the following particulars: It is claimed that there should have been a handrail on each side of the ladder instead of only one on the after-side; that the brass covering on the steps of the ladder had been worn so smooth that there was danger of slipping when the steps were wet; that the ladder was too steep so that in descending the ladder while facing away from the steps only the heel of the shoe or boot would rest upon the tread. In addition to these charges of unseaworthiness, certain defects in the vessel's equipment are alleged which resulted, it is claimed, in the steps becoming wet at the time the appellant fell. It is alleged that the weather-door at the head of the steps could not be tightly closed and that water entered through the cracks wetting the steps of the ladder. It is also claimed that certain port holes in the forecastle could not be closed so as to be watertight and that water entered into the forecastle through the port holes and was tracked on the steps of the ladder by the crew of the tug. It is also claimed that the manhole covers were defective so as to allow water to enter. Returning to the charges of unseaworthiness so far as they relate to the weather-door, through which it is claimed the water entered and wet the steps of the ladder, it is claimed that the door could not be tightly closed because some of the dogs were "frozen" and because the rubber gasket which should have tightly sealed the door had become so hard that it did not do so, and that no provision was made for replacing the rubber gaskets in the weather-door while at sea.

In his brief, the appellant claimed that the crew was insufficient in numbers, that the medical supplies were insufficient, and that the electric light bulb in the forecastle which should have illuminated the ladder had been removed. These claims of unseaworthiness were not presented to the trial court and for that reason need not be considered by us. Furthermore, no causal connection is shown between the alleged insufficiency of the crew and the absence of medical supplies and the injury to the appellant.

The evidence in many particulars was conflicting. The trial judge found that the vessel was seaworthy in all respects, that the accident was the result of the heavy and unusual storm, and that neither the tug, nor its officers or crew, were in any way responsible for appellant's fall.

The first question that presents itself for decision arises from the contention of the appellee that inasmuch as the vessel at the time of the injury was owned by Sovortorgflot and was flying the flag of the U. S. S. R., the injured seaman cannot recover from the tug damages arising from its unseaworthiness, or for maintenance and cure, without affirmatively proving that the law of the U. S. S. R. authorizes such recovery. No such proof is offered. It is clear that we cannot assume that the law of the U. S. S. R. relating to rights of seamen is the same as that of this nation, notwithstanding the fact that our courts have jurisdiction to enforce the rights of the seaman as against the vessel where the ship is seized within the jurisdiction of the United States and the libel in rem is instituted in the United States District Court having jurisdiction over the territorial waters in which the vessel was seized. Cuba Railroad Company v. Crosby, 222 U.S. 473, 32 S.Ct. 132, 56 L.Ed. 274, 38 L.R.A.(N.S.) 40; Bonsalem v. Bryon S. S. Co. (C.C.A.) 50 F.(2d) 114; Commissioner of Internal Revenue v. Hyde (C.C. A.) 82 F.(2d) 174; The Hanna Nielsen (C.C.A.) 273 F. 171. Most of the authorities upon which the appellant relies on this subject are those holding that the federal courts have jurisdiction to enforce the lien of the seaman upon a foreign vessel. The Belgenland, 114 U.S. 355, 5 S.Ct. 860, 29 L.Ed. 152; The Ester (D.C.) 190 F. 216; The Oriskany (D.C.) 3 F.Supp. 805, 1933 A.M.C. 1103; The Falco (C.C.A.) 20 F.(2d) 362. The appellee does not question the jurisdiction of the District Court in this cause, but contends merely that in the exercise of that jurisdiction it is necessary for the trial court to determine the rights of the seaman under the foreign law applicable to the ship while it is on the high seas. Appellant's contentions that no treaty exists giving the Soviet Consul power to assume "judicial functions" and that no request was made by the Soviet Consul to assume "judicial functions" likewise goes only to the question of the jurisdiction of the District Court.

Appellant contends that appellee is estopped from denying ownership of the Baymead because it claimed the vessel July 13, 1934.

In the Steam-Ship Zodiaz, 5 F. 220, 223 (District Court New York, 1881), it was held that, "the fact that, when a vessel is sued for damages by collision, a person appears and defends as owner, is merely an admission that he is the owner at the time of her arrest, and is no admission that he was the owner at the time of the collision, or in any way responsible personally for the...