Wheatley v. Gladden, 80-1409

• Decision Date: 09 October 1981
• Docket Number: No. 80-1409,80-1409
• Citation: 660 F.2d 1024
• Parties: James G. WHEATLEY, Appellant, v. Elbert GLADDEN, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1024

660 F.2d 1024

James G. WHEATLEY, Appellant, v. Elbert GLADDEN, Appellee.

No. 80-1409.

United States Court of Appeals, Fourth Circuit.

Argued April 8, 1981.

Decided Oct. 9, 1981.

Joseph F. Lentz, Jr., Baltimore, Md., for appellant.

Robert L. Ferguson, Jr. (Thomas J. Schetelich, Allen, Thieblot & Alexander, Baltimore, Md., on brief), for appellee.

Before BRYAN, Senior Circuit Judge, and PHILLIPS and SPROUSE, Circuit Judges.

SPROUSE, Circuit Judge:

James G. Wheatley, the plaintiff below, appeals the district court's judgment entered in favor of the defendant, Elbert Gladden, on claims arising from a leg injury Wheatley received while working on an oyster boat, the Ida May. Gladden owned the Ida May, but Kermit Travers was in charge of the daily operation; the trial court directed a verdict against Wheatley on his Jones Act claim and on his "maintenance and cure" claim, holding there was no employer/employee relationship between Gladden and Wheatley. The trial court submitted Wheatley's third claim the alleged "unseaworthiness" of the Ida May to the jury, and it found in favor of Gladden. Since the evidence required a jury determination of all three claims the district court's judgment is affirmed in part and reversed in part.

Several contentions are advanced by both Wheatley and Gladden, but we need consider only two: first, was the court correct in denying Wheatley's motion for a directed verdict on the issue of unseaworthiness and submitting that question to the jury, and second, was the court correct in directing a verdict for the defendant Gladden on the negligence and "maintenance and cure" claims based on the absence of an employer/employee relationship.

The Ida May was used each year for "dredging" or collecting oysters in Maryland's Chesapeake Bay region. Gladden worked the Ida May himself until 1970, when he began leasing the boat to others during the annual oyster dredging season. Gladden gave Kermit Travers permission to operate the Ida May during the 1977 season. There was an oral agreement between Gladden and Travers and the latter hired a crew, including Wheatley. Shortly after that, Wheatley was injured during a dredging operation, when a metal pin protruding approximately one inch from a winding gear caught his trouser. His leg was pulled into the winding gear and he suffered a broken ankle and other injuries to his leg and back.

The trial court ruled that whether the protruding pin constituted an unsafe working condition amounting to unseaworthiness was a question for the jury. We agree and affirm that portion of the judgment against Wheatley based on the jury verdict on the issue of unseaworthiness.

The trial court also held that Wheatley could not recover on his Jones Act claim and his "maintenance and cure" claim against Gladden because each required an employer/employee relationship which was absent in this case as a matter of law.

It is true that an employer/employee relationship is a necessary antecedent to a Jones Act negligence claim, Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692 (1949), and to a "maintenance and cure" claim, Cortes v. Baltimore Insular Line, 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932). The existence of such an employer/employee relationship must be determined under maritime law, United States v. Webb, Inc., 397 U.S. 179, 90 S.Ct. 850, 25 L.Ed.2d 207 (1970), and the burden of proof is on the seaman to establish the employment relationship. Osland v. Star Fish & Oyster Co., 118 F.2d 772 (5th Cir. 1941), cert. denied, 314 U.S. 615, 62 S.Ct. 86, 86 L.Ed. 495 (1941). Among the factors to be considered in determining whether a party is an employer are the degree of control exercised over the details of the operation, the amount of supervision, the amount of investment in the operation, the method of payment and the parties' understanding of the relationship. United States v. Webb, Inc., supra; Kirkconnell v. United States, 347 F.2d 260, 171 Ct.Cl. 43 (1965). The resolution of the issue is normally a factual one within the province of a jury. The Norland, 101 F.2d 967, 9 Alaska 471 (9th Cir. 1939); Claussen v. Gulf Oil Corp., 136 F.Supp. 110 (W.D.Pa.1955); 2 M. Norris, The Law of Seamen § 670 (3d ed. 1970).

A boat owner may retain sufficient control over his property to be charged with the duties of an employer even though another party actually is in charge of the vessel's operation. This is not the case, however, where there is nearly total relinquishment of control through a bareboat, or demise charter. Under a bareboat charter the charterer assumes all obligations of ownership, including those of the employer to the crew. United States v. Webb, Inc., supra. The test for establishing a bareboat charter is one of control has the owner completely relinquished possession and command of the boat. Guzman v. Pichiralo, 369 U.S. 698, 82 S.Ct. 1095, 8 L.Ed.2d 205 (1962); Carolina Seafoods, Inc. v. United States, 581 F.2d 1098 (4th Cir. 1978); Stevens v. Seacoast Co., 414 F.2d 1032 (5th Cir. 1969). Since we are reviewing the action of a trial court directing a verdict against Wheatley, we must view the evidence most...