Anna Mahramas v. American Export Isbrandtsen Lines, Inc., and House of Albert, Inc.

OAKES, Circuit Judge

(dissenting):

The majority has to rely heavily upon Schiemann v. Grace Line, Inc., 269 F.2d 596 (2nd Cir. 1959) (2-1 decision), to reach the result that a shipowner is not responsible to a seaman under the Jones Act if the seaman is also the employee of a ship concessionaire. I think that Sehiemann was erroneously decided, and because it overlooked Supreme Court precedent is not binding upon us. I also think that the result reached by the majority is an unfortunate one that would pave the way for shipowners to contract out ship functions to concessionaires— for example, for providing food to passengers or crew — and thereby to avoid or minimize liability for defective conditions or other negligence on board the ship.

I start with the proposition — conceded by the majority — that a beautician on a cruise ship is a seaman, just as are cooks, mess men, muleteers, bartenders, musicians, telephone operators, laundresses, and even barbers ( Schiemann, supra) when they are performing services that render the ship’s voyage economically viable. 1 A cruise ship which tried to attract female passengers without providing hairdressing services would soon be converted to duty as a cargo vessel.

The question is, then, whether a shipowner is liable to a seaman under the Jones Act because of the latter's status qua seaman or whether the test of “employment” used in railroad cases decided under the FELA 2 is determinative. The majority in Sehiemann adopted the FELA test without mentioning the seaman’s status at all. 3 It did so despite Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190 , 72 S.Ct. 216, 218 , 96 L.Ed. 205 (1952), which held that “Seamen were given the rights of railway employees by the Jones Act, but the definition of ‘seaman’ was never made dependent on the meaning of ‘employee’ as used in legislation applicable to railroads.” 4 Cf. United States v. W. M. Webb, Inc., 397 U.S. 179 , 90 S.Ct. 850 , 25 L.Ed.2d 207 (1970) (status of captains and crews under PICA and FUTA must be determined by maritime law standards, not usual common law rules). So too Cortes v. Baltimore Insular Line, Inc., *174 287 U.S. 367, 372 , 53 S.Ct. 173, 174 , 77 L.Ed. 368 (1932) (Cardozo, J.), in holding that negligent failure to extend maintenance and cure to a seaman gave rise to a cause of action under the Jones Act, says: “The duty [of maintenance and cure] ... is one annexed by law to a relation, and annexed as an inseparable incident without heed to any expression of the will of the contracting parties.” The Court went on to say, in language pertinent to this case: “We do not read the act for the relief of seamen as expressing the will of Congress that only the same defaults imposing liability upon carriers by rail shall impose liability upon carriers by water. The conditions at sea differ widely from those on land, and the diversity of conditions breeds diversity of duties.” 287 U.S. at 377 , 53 S.Ct. at 176 . In extending the duty to provide a seaworthy ship to longshoremen in Seas Shipping Co. v. Sieracki, 328 U.S. 85 , 66 S.Ct. 872 , 90 L.Ed. 1099 (1946), the Court referred to historical “notions of status,” 328 U.S. at 91 , 66 S.Ct. 872 , in rejecting the argument that a shipowner’s duty is limited to those with whom he has a contract for work, and, id. at 97 , 66 S.Ct. 872, 878 , quoted approvingly the statement of the court below that:

“It seems, therefore, that when a man is performing a function essential to maritime service on board a ship the fortuitous circumstances of his employment by the shipowner or a stevedoring contractor should not determine the measure of his rights. This is the very basis on which the Jones Act was held applicable to give redress to an injured stevedore in International Stevedoring Co. v. Haverty, [ 272 U.S. 50 , 47 S.Ct. 19 , 71 L.Ed. 157 (1926)] . . . .” 149 F.2d 98, 101 (3rd Cir.)

Haverty did extend Jones Act coverage to stevedores and permitted suit against the stevedore company. 5 Haverty showed that even very early in the history of the Jones Act the Court construed the scope of the Act broadly. Similarly in Seas Shipping, supra, a seaworthiness ease, the Court stated:

All the considerations which gave birth to the liability and have shaped its absolute character dictate that the owner should not be free to nullify it by parcelling out his operations to intermediary employers whose sole business is to take over portions of the ship’s work or by other devices which would strip the men performing its service of their historic protection.

328 U.S. at 95 , 66 S.Ct. at 877 (emphasis supplied).

Of Jones Act liability, 46 U.S.C. § 688 , the same may be said. Cf. Warner v. Goltra, 293 U.S. 155, 157-158 , 55 S.Ct. 46 , 79 L.Ed. 254 (1934) (Cardozo, J.); Cortes v. Baltimore Insular Line, Inc., supra. As Mr. Justice Black said for a unanimous Court in Garrett v. Moore-McCormack Co., 317 U.S. 239, 248 , 63 S.Ct. 246, 252 , 87 L.Ed. 239 (1942):

[The Jones Act] is to be liberally construed to carry out its full purpose, which was to enlarge admiralty’s protection to its wards .... Being an integral part of the maritime law, rights fashioned by it are to be implemented by admiralty rules not inconsistent with the Act . . . . (Citations omitted.)

Accord, Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 431 , 59 S.Ct. 262 , 83 L.Ed. 265 (1939).

*175 It is true that even in Jones Act cases there are various dicta, including Mr. Justice Reed’s in Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 791 , 69 S.Ct. 1317, 1322 , 93 L.Ed. 1692 (1949) (general agent for owner of ship not liable under Jones Act) to the effect that “ . . . under the Jones Act only one person, firm or corporation can be sued as employer.” With the exception of Schiemann , however, none is in the context of a seaman employed on a ship who is seeking recovery against the shipowner even while he is employed by someone else. In none of those cases, as in Schiemann and this ease, did the shipowner escape responsibility for the seaman’s injury. The only question in those cases was whether an additional defendant was available.

Schiemann mentions none of the Supreme Court cases previously alluded to Desper, Cortes, Seas Shipping, Haverty. Rather, it tracks the railroad cases which involve different underlying common law concepts. Even so, at ordinary common law a person may be the servant of two masters at one time as to one act, if the service to one does not involve abandonment of the service to the other. Restatement (Second) of Agency § 226 (1957). One doubts whether today’s Court facing the problem afresh would decide the lead case on which Schiemann rests, 269 F.2d at 598 , Robinson v. Baltimore & Ohio Railroad, 237 U.S. 84 , 35 S.Ct. 491 , 59 L.Ed. 849 (1915) (Pullman car porter not entitled to FELA recovery against railroad company), as it was decided. Later judicial decisions recognize that the existence of an employee-employer relationship must be determined not technically but in light of the liberal purposes remedial social legislation is designed to serve and in the light of economic reality. E. g., United States v. W. M. Webb, Inc., supra, Rutherford Food Corp. v. McComb, 331 U.S. 722, 723-726, 729-730 , 67 S.Ct. 1473 , 91 L.Ed. 1772 (1947). See also Cosmopolitan Shipping Co. v. McAllister, supra, 337 U.S. at 790-791 , 69 S.Ct. 1317 .

The argument made here does not mean that as between the concessionaire and the shipowner they may not contract that the former will save the latter harmless in situations in which the shipowner is held liable to the seaman under the Jones Act. It would mean, however, that by contract with the concessionaire the shipowner could not escape liability to a seaman for the shipowner’s negligence in failing to provide a safe bunk ladder, the claim made here. That liability would accrue in the words of the statute when the seaman suffers “personal injury in the.course of his employment . . . .” A seaman’s “course of employment” in the service of the ship includes using the ladder to his bunk to go to bed. Cf. Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 , 80 S.Ct. 173 , 4 L.Ed.2d 142 (1959) (liability for deck accident aggravating tuberculosis); Hiltz v. Atlantic Refining Co., 151 F.2d 159, 160 (3rd Cir. 1945) (liability for improper cabin ventilation).

To construe the Jones Act as the majority does leaves a gaping hole in its coverage: those who are concededly seamen but hired by a concessionaire are not entitled to recovery under the Jones Act for the shipowner’s negligence; they cannot recover in the usual case against the concessionaire because, except in connection with the equipment or management of the concession, the concessionaire has nothing to be negligent about. They are not wards of the admiralty, they are orphans at sea, with the crumb of concessionaire’s liability for maintenance and cure, but without the bread-and-water sustenance of liability on the part of anyone for negligence under Jones Act principles. 6 In my view *176 such a result could not have been intended by a Congress which had in mind that, as Warner v. Goltra, supra, 293 U.S. at 159 , 55 S.Ct. at 48 , states, “An ancient evil was to be uprooted, and uprooted altogether. It was not to be left with fibers still clinging to the soil.” A seaman not to be able to recover under the Jones Act against the ship for the ship’s negligence? 7 What hath Congress wrought?

. See generally Seas Shipping Co. v. Sieracki, 328 U.S. 85, 91 , 66 S.Ct. 872 , 90 L.Ed. 1099 (1946). For specific occupations that have been held to be “seamen” in varying contexts see, e. g., The Sea Lark, 14 F.2d 201 (W.D.Wash.1926) (musicians); The Baron Napier, 249 F. 126 (4th Cir. 1918) (muleteers); United States v. Atlantic Transport Co., 188 F. 42 (2nd Cir.), cert. denied, 223 U.S. 724 , 32 S.Ct. 525 , 56 L.Ed. 631 (1911) (horsemen); Neville v. American Barge Line Co., 105 F.Supp. 408 (W.D.Pa.1952), aff’d, 218 F.2d 190 (3rd Cir. 1954) (laundresses); Agnew v. American President Lines, 73 F.Supp. 944, 951 (N.D.Cal.1947), rev’d in part on other grounds, 177 F.2d 107 (9th Cir.), cert. denied, 339 U.S. 951 , 70 S.Ct. 838 , 94 L.Ed. 1364 (1949) (barbers).

. Compare Wells Fargo & Co. v. Taylor, 254 U.S. 175, 186-187 , 41 S.Ct. 93 , 65 L.Ed. 205 (1920), and Byrne v. Pennsylvania R. R., 262 F.2d 906 (3rd Cir.), cert. denied, 359 U.S. 960 , 79 S.Ct. 798 , 3 L.Ed.2d 766 (1959), with Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 376-378 , 53 S.Ct. 173 , 77 L.Ed. 368 (1932).

. Apparently the status theory was not advanced in argument in Schiemann for Chief Judge Clark cast his dissent, 269 F.2d at 599 , in terms of control or right to control. He argued that whether the concessionaire or shipowner had the right of control was a jury question, and while the same argument might be made here, I consider Sehiemann binding authority against it.

. Desper held, however, that a person engaged in seasonal repairs on vessels “laid up for the winter” was not a seaman. 342 U.S. at 190-191 , 72 S.Ct. 216 .

. Shortly after Haverty Congress passed the Longshoreman’s Act, 33 U.S.C. § 903 et seq., which replaced the Jones Act as the remedy for longshoremen against their employers. The provisions of the Longshoreman’s Act, of course, specifically incorporate the liberal provisions of the Jones Act such as elimination of assumption of risk and the fellow-servant rule. 33 U.S.C. § 905 . They also provide very specific compensation for different types of disability. 33 U.S.C. § 908 . Thus, while Congress repealed the result in Haverty with a new statute, it did not change the concept of. extending liberal protection to maritime workers which Haverty advanced.

. While she retained rights to sue the shipowner for general negligence or for unseaworthiness and while as the majority suggests in footnote 5 these were decided against her, they were decided by the trial judge without the benefit of a trial by jury to which under the Jones Act she would have been entitled and subject, at *176 least as regards her claim of general negligence, to the defenses that she had assumed the risk or had been injured as the result of negligence of a fellow servant.

. The majority says in its footnote 8 that United States v. W. M. Webb, Inc., 397 U.S. 179, 192 , 90 S.Ct. 850 , 25 L.Ed.2d 207 (1970) and Savard v. Marine Contracting, Inc., 471 F.2d 536, 540 (2nd Cir. Dec. 26, 1972), make it “crystal clear that under the Jones Act the shipowner is not always the employer of every person given seaman status abroad the vessel.” In W. M. Webb, the Court said, however, that “. . . except where there is nearly total relinquishment of control through a bareboat, or demise, charter, the owner may nevertheless be considered, under maritime law, to have sufficient control to be charged with the duties of an employer.” 397 U.S. at 192 , 90 S.Ct. at 856 . Here there was neither a bareboat nor a demise charter. In Savard, while rejecting a request to charge that a seaman may have more than one employer for Jones Act purposes, the court held that the trial court properly charged the jury that the seaman there (a diver on a barge under bareboat charter) could be deemed the subagent of his direct employer which hired him as agent for the bareboat charterer and that “the jury could find that under the Jones Act Perini [the bare-boat charterer] was Savard’s employer if it had sufficient control of the operation.” 471 F.2d 541 . Here surely Export had sufficient “control of the operation.”