Tyndall v. Conduit and Foundation Corporation, 12875.

• Decision Date: 31 August 1959
• Docket Number: No. 12875.,12875.
• Citation: 269 F.2d 947
• Parties: Preston Lee TYNDALL v. CONDUIT AND FOUNDATION CORPORATION, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

269 F.2d 947 (1959)

Preston Lee TYNDALL v. CONDUIT AND FOUNDATION CORPORATION, Appellant.

No. 12875.

United States Court of Appeals Third Circuit.

Argued June 9, 1959.

Decided August 31, 1959.

J. B. H. Carter, Philadelphia, Pa. (Francis E. Shields, Pepper, Bodine, Frick, Scheetz & Hamilton, Philadelphia, Pa., on the brief), for appellant.

Abraham E. Freedman, Philadelphia, Pa. (Milton M. Borowsky, Marvin I. Barish, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and McLAUGHLIN and STALEY, Circuit Judges.

BIGGS, Chief Judge.

Tyndall brought an admiralty action in personam against his employer, The Conduit and Foundation Corporation, for maintenance and cure and for damages under the Jones Act, 46 U.S.C.A. § 688. The trial resulted in an award to Tyndall of $1,760 for maintenance and cure and damages in the amount of $47,500. Conduit has appealed.

The primary issue at bar turns on whether Tyndall was or was not a seaman. If he was a "seaman" at the time he was injured he was entitled to maintain actions for maintenance and cure and for damages under the Jones Act. The Jones Act contains no definition of the critical word.

Conduit is a Pennsylvania corporation engaged in a general contracting business, including the building of bridges across navigable streams, and in dredging operations. It owns a small fleet of vessels, including a suction dredge "Biff" and an L.C.P. "Harry Junior". Tyndall had been employed by Conduit for about five years and was the chief engineer on the "Biff" and was the registered master of the "Harry Junior".

Conduit purchased two old carfloats, 585 and 586, though it was not Conduit's intention to use them strictly for purposes of navigation. They were to be repaired and employed as pontoons or workboats in connection with the execution of Conduit's contracts. Carfloats 585 and 586 had been moored by Conduit at an old dock in the Delaware River near Tullytown, Pennsylvania. 585 had been fastened to the pier's down-river pilings and 586 had been tied to 585 on the latter's offshore side. Over a period of months both carfloats had become partially submerged. In August 1955 Conduit desired to prepare the carfloats for use and sent members of the crew of the dredge "Biff", Tyndall included, to pump them out in order to make them float. 585 was pumped out.

Between August 26 and August 30, 1955, a hurricane struck the area and washed 585 upon the river end of the pier so that it became suspended between the pilings and rested almost broadside to the channel. 586 remained in the water, still tied fast to and parallel to 585's offshore side. 586 still was partially filled with water but no structural damage had been done to her by the hurricane. The crew of the dredge "Biff" was dispatched to the scene and 586 was pumped dry. She was left tied still on the offshore side of 585, however. Tyndall was assigned the duty of reporting to 586 daily to pump her out, to caulk leaks, check lines, wash down the decks and perform similar duties. 586 was ready to be towed away but no effort had been made as yet to move her.

On the day of the accident, September 9, 1955, wind and a low tide threatened to wash 586 under the bow end of 585, and in this position 585 probably would have been submerged by the rising tide and damaged. Tyndall secured a number of planks and with a hammer and nails, which he had in his automobile, and some spikes, obtained from the carfloats themselves, he nailed several planks vertically to the offshore side of 585 to act as buffers to fend off 586. These planks did not extend sufficiently far down to the water to prevent the guardrail of 586 from getting underneath 585. Tyndall then endeavored to nail another timber up as a buffer. What happened next is described graphically in Tyndall's own testimony: "586 came in, and hit the board just as I started to nail it on, knocked it off my hand, knocked it out of my hand, struck my leg, throwed me off balance, and the leg landed between the two.", and "That is where the leg got crushed and broke and broke the bottom of the board that was already there * * *."¹ He sustained serious injuries.

586 was afloat on navigable waters. The work on which Tyndall was engaged was maritime in nature, a seaman's work. Tyndall was injured in the course of his employment. If there was any substantial doubt as to his "seaman" status that doubt must be deemed to have...