Petition for Writ of Certiorari — Desper v. Starved Rock Ferry Co.

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. ™ An i. Ree sts

wa IN THE

Supreme Court of the. United States

- OcronEn Taam, 1951.

No. < ae

ANNA DESPER, ‘AAbatetoatrle of the Estate of THOMAS

J. pxapeee: JR., Deceased, sare

Petitioner,

\ vs. ow

STARVED ROCK FERRY COMPANY, a i i ceattaa

as fant Wet

-«

PETITION FOR WRIT OF CERTIORARI 10 THE ,

UNITED STATES ‘COURT OF APPEALS FOR THE

SEVENTH CIRCUIT.

JOSEPH D, RYANL-

100 N. La Salle Street,

Chicago, Illinois,

Attorney for Petitioner.

;

CHAMPLIN-SHEALY COMPANY, CHICAGO EBD ase CS °

e- %

‘ .

ever

INDEX AND TABLE OF CASES.

ae ee ) PAGE.

Oninion Delo oii se es ke: PRE Page ay

» Jurisdictional - Statement .. Sees ues eecwera oie. oy ee

' The Questions PPOCUREE. Oo 6 en ve eciecduees “erheeaan 2-4 .

iat Tava 6 a PRR EA Gecews 23, 3

Summary and Short Statement of the Matter Involved: 5

Reasons Relied. On for the Allowance of the Writ..... 8-20

! Appendix Nit soe of the-Court. of Appeals). eos wee Males §,

SratuTes.

The Sania Act, ii ‘Stat. 1007, 46 U.S. C. k Set. 688... a

The 1939 amendment of the F. EK. L. A., 53 Stat. ae, 45

U.: i MA, Bee Ole. tee. igees Vera’ ve 4,5

gant - CYraTIONs. .

Antus Vv. Interocean $ S.'S. Co., ‘108 F. 2d 185, 1S7 (6th

Citi) sinus ay pile dake < GAGE boa OW alee Sora ck Gade wes 12, 13°

’ Bailey v. Central Vt. Ry. Co; 319 UB, BO. i. - 19

B. and O. S. W. R. R. v. “Burieh, 263 ULS, 540, 63... 8

. Baskin v. Industrial Accident Commission, 338 U. S:: A

SRR a ea epi tame rap Rae Ries eee Pe eee ew eee ‘ace o.

Bethlehem Steel Co. v. ala 335 U.S 5. 974. eas ee

Bowen vy. Shamrock, Towing Co., 139 F. 2d 674 (2d

EAL Bi cob PE Sa KEN E VAR ORIOL ARS a - 18

-California v. Zook, 336 U. S. 725, yt RA kg ates gee

Cantey v. MeLain Line, 312 U: S. 667, reversing 32 F.

" §. 1023, i4 Fi Se WORE S ee cess cetuea tA oh ee wanes 18

Carumbo Ve 4, ‘ape Cod 8..S. Co., 123 F. 2d 991, 995 (ist we.

NGG Dias wine en Waka aks OLR Bs we ae de Re as 14

Chicago and N. W. R. Co..v. Bower, 241 U. JS. 470... 8.

Cont. Cas. Co. ¥. Lawson, 64 F. 2d 802 (5th Cir.)... 7: 16 —

Cortes v. Baltimore Insular Line, 287 U. S. 367, “B75. : i)

. Daftin v. Pape, 170 F. 2d. 622, 625 (5th Cir. | eee oe 14, 15 :

Davis v. ‘Department of Labor, 317 U. S. ere 8.

De Zon v. American President Lines, 318 U. S. 660, 661 20

Ellis v. U. P. BR. OR. Co., 329 U. S. 649::.... eed etal 19-

_’ Frankel.v. Bethlehem-Fairfield Shipyard, Ine., 46 F.’S.

. ae 249, 132 F. 2d 634 (4th Cir.), cert. den, 319

US TON i LE 12,13

Gahagan C ‘onst. Corp. v. Armao, “165 ¥,: 2d. 301, 305, -

307 (1st Cir. ), cert. den. Dee Cs By OUR. 5 i tiiikand ics i8

- Garreti v. pies McCormack Co., 317 U:.S. 239," 248. .9,17 ©

Gonzaies v. U: S. Emergency Fleet Corp. . 3 F. 2d 168,

10 (B.D. XY). Pospueearer cu Ee Sipe aR are 13, 14

Grand Trunk Western R, Co. v. Linda, 233. U.S. 5 ee

Hawn v. American S. 8. Co., 107 F. 2d 999 (2d Cir.) . .12, 13 a

Hilleone S.'8. Co. v. Steffen, 136 F. 2d 965 (9th Cir, = ane

Hunt v. U ited States, 17 F. 8. 578, 91 F. 2d 1014 gout

Cir.), cert. den. 302 U, S. FBS 6x40, Sean's vere

Industrial.Com. v. Davis, 259 v. S. 192 185... seems i 9 -

_International Stevedoring Co. v. Havetty, 272 U. S. 50 “9

.. Jamison v. Encarnacion, 281 U.S. 635........ bedee uae Q

John Baizley Iron Works v. Span, 281-U.'S. 222, 939. 44

Jones v. Shepherd, 20 F. ” 345,346 (S.D. Miss.)... 14,15

‘Lavender v. Kurn, 327 U.S. 645: 02.0... ccc cee cea . 49

Lilly v. Grand Trunk W ssteke R. Co., 317.0. 8. 481... 19 .

‘Marceau v. Great Lakes Transii Corp. .» 146 BF. 2d 416,

418, cert, den. $24°U. 8. 872202356 occas ect eee cess 7,8

Maryland Cas. Co. v. Lawson, 101 F. 2d 732 (5th Cir.) 16

New Bedford Dry Doek Co. v. Purdy, 258 U.S. 96.... 14 »

, New York: Cent. and: H. f. R. Co. v. Carr, 238 U.

| DA SEP PEE emp nL mR ery tr ae ae Be 6%

Nordquist v. U. S. Trust: Co. of ede 188 F. 2d 776

Re MANO 0s ct hoes Shaws coe Cee Oar eo ue ec hea es Be:

_ Norfolk and W.R. Co. v. Earnest, 229 U. S..114...... =!)

North Pac. S. S. Co. v: Hall Bros., 249 U.S. 119, 128.. 14

Norton v. Warner ( o., $21 U..-S. POU cake aay caky has as 18.

O'Donnell v. Great Lakes Dredge and Dock Co., 318 ... -

We a Oe es ieee oe es cea eee eee es a 9, 12 ;

~ Overstreet v. North Shore i 318 _.U. S. 125, 131, :

‘132. ic bea bv by eres kedee tL Cdn Re NA Seg Ai * 10

iii

_ Schantz v. American Dredging Co., 138 F. 2d 534 ‘(Grd “

MUN area ec US vu ea bh SEA pig ROCA ow a ie eee cos ce. ieee

‘Seabord Air Line Ry. v. ‘Padgett, 9: Uy. Be iegatanraenier

Shanks v. D. L. and W. R. 8. Co., 239 U. S. O55, 558. 9,-

Shapiro v. United States, 335 U. S. 1, REE ; an 7

South Chicago: Coal ‘Co. ¥. Bassett, 309 U: S. 251, 258,

BE Leia se aNea eee heres Fe Pee ER ac ee . Pa i

So. Pace. Co. v. Ind. Ace. Com., 251 U.S. 299, 2638. 5559

‘Southern R. Co. v. Lloyd, 239-U. . ane eric vee ae

- Swanson v.: Marra NR RS a Deo et O72. .

Taylor v. Me ‘Manigal, 89 F. 2d 583 (6th Cir.).....;°. 12: 13 ..

Thames Towboat Co. v. The Francis MeDonald, 254

cme UE UA Wa ote ba a og Wea es Se Glace 80 eb one's dew vor. 13

‘The: Arizona v. Anelich, 298 U: S. 110, 123......... i

The Steamship Jefferson, 215 U, 8. 130, 142, 143..... 14

Tiller y. Atlantic Coast Line R. Co. 318 U.S. 54......5 19,

United. States v. Lindgren, 28 F. 2d. 725. (4th Cir.),

OMNIS OR Oe OO ak ced Sac va eck eke ebaden cy 14, 15

Urie v. Thompson, 337 U. S. 16: bir irarecus iver i: 19

Warner v. Goltra, 293 U.S. 155..... Fe opie Vases cw

Weaver v. Pittsburgh Steamship. Co.,: 153 I. 2d 597

(6th Cir.), cert. den. 328°U_S, igs ie ws a divibae AAR Sa |

Wilkerson v. MeC arthy, REA Oh i Ok oiotlewe aay 19

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iN THE

| Supreme Court of the United States

Conan Term, ‘1951.

AN NA DESPER, Administratrix of the Estate of THOMAS

J. |. DESPER, JR., Devedsed,

BP tag

: vs. °

STARVED ROCK FERRY COMPANY, a corporation, —

| : oes : Respondent.

No.

' PETITION FOR WRIT OF CERTIORARI.

To the Honorable the Supreme Court of th> United States:

The petitioner, Anna Desper, adininistratrix of the estate

of Thomas J. _Desper, Jr., deceased, respectfully petitions

this Honorable Court as follows:

ah Fe To review the judgment of the Court of Appeals for

the Seventh Circuit in the above case, which judgment was.

entered on March 20, 1951 (R. 283), and became final upon

‘the denial by that court of petitioner’s application for a |

_ rehearing on May 14, 195t (R. 286). :

2. For a Writ of. Certiorari to the Court of Appeals

. for the Seventh Circuit, for that purpose..

In this behalf, petitioner shows: .

me ee

Opinion Below.

| The opinion ef the Court of Appeals is reported in ASS .

F. 2d 177; it will also be found at R. 274. 282, and is attac hed

as an appendix to this petition. °

? aR a,

Jurisdictional Statement.

This. Court’s - jurisdiction is invoked under 62 Stat. 928,

28 U.S. C. A. See. 1254. The judgment is a decision as to

rights claimed by petitioner under the Jones Act, aL Stat.

1007, 46 U. ‘5. c. A. See. 688, . . :

at ar.

' The Questions Presented.

1. May an administratrix (decedent’s ‘mother in the

instant case) maintain an action under the Jones Act for

the death of her intestate who was “killed while engaged

in the course of his employment in fitting out, for use in

navigation, beats which he had/been hired to operate during

the ensuing season and we had been at the time’ of the

accident in question. definit ly. assigned for such-use?

2. Does the Jones Aey, the relevant’ part of which pro-

vides: | : ars

“any seaman whf shall suffer personal injury in. the

course of--his e {ploy ment may; at his eléetion, main-

tain an action/for-damages at law, with the right pf

trial by jury, and in such-attion all statutes of the

United States modify: ing or extending the common law

right or remedy in eases: of Sm injury to railway

; employees shall apply. * * *."’

- extend to seamen injured in the course of their employment

the principles of recovery. established for railway. em-

_ployees, as interpreted by this Court, under the original

Federal Employers’ Liability Act, and I sae that Act: as

- amended in 1939?

3. Does the 1939 ‘Amendient of the Federal Employers’

Liability Act, which grants.to railroad employees the bene-

‘fits of that Act if any part of their duties “shall be the

furtherance of interstate or foreign commerce; or shall in

any way directly or closely and substantially, affect such -

commerce-*:* *”* confer a corresponding benefit on seamen

who suffer injury in the course of their employ ment if any

part of their employment ‘shall be the furtherance of“

' navigation ‘‘or shall in any way directly or closely and

substantially affect such’’ navigation ?.

4. If the principles’ of reeovery established for calles

employees under the F.E.L.A. and unger that ‘Act as

‘amended have been exténded to seamen under .the Jones

Act and if, as. this Court has consistently and. uniformly

held throughout the years, railway employees while pre-

‘paring éngines, trains and cars for use in interstate ‘¢om- _

merce come within the purview of that statute, on what _

basis may the Court of Appeals hold that the plaintiff’s

intestate, who was-hired ‘as a. licensed navigator, while

engaged in the course of his eniploy ment. in ‘preparing ‘the .

boats” which he had been hired to operate and which had ©

been definite)y ‘assigned for such use, Was. waters the scope

of the Jones Act? raat

5. Is there any evidence to support the jury’s “verdict

that plaintiff's s intestate Was a seaman. W ithin the meaning ;

of the Jones Act? 7 |

6. - Since this Court has decided that:

The principles of recdyery established’ for railway em-

ployées under the F.E.L, A. Lave been extended to seamen

under the Jénes Act;

The policy of liberal constructign of the Jones Act has |

heen consistently maintained by this\C aor both before and -

; sitlee the passage of the Longslioremaa s Act;

The. construétion of the Longshore en’s Act by this.

- Court leaves unaffected the rights of mendpers of the crew

of a vessel to. recover. under. the Jones Ack. when injured

while. pursuing their maritime -employment’ whether on |

_ board or on shore;.. 0, x

There’ is nothing.in the. législative historyof the Jones

Act to show that the words ‘‘in the course: OF his dinploy-

ment’’ do not mean what they say or that they were to be -

restricted to injuries. occurring on: navigable waters, it’

—~—-————trpelettet—of—sbegpeals properly hold that the plaintiff's

decedent in the instant case who came to his death while

engaged in fitting out the vessels which he had been hired

to operate and which had been definitely assigned for use \

in navigation, was without the meOpe ‘or: purview, of: the. N

s J ones Act?"

| ~ Statutes hivilvid a ere

“The. Soies Act, A Stat. 1007, 46 U. ‘C..A., Ree, O88,

' provides:

‘Phiat: ay seaman who shall suffer personal injury

in the course of his employment may, at’ his eléction,

-maintain an action for damages at law, with the right~

of trial by jury, and in such action all statutes of the

United States modifying or extending the common-law

right or remedy in.cases of personal injury to railway

employees shall apply ;.and im ease of the death of any

seaman as a result of any such personal injury the ©

personal representative of “such seaman may maintain ”

an action for damages. at law with the right of trial-

by jury, and i® sach ‘action all statutes of the. United

States conferring. or, regulating the right of action for’ (

. death in the case of railway employees shall be ap-

plicable * pein? sted

The 1939 asdudeanat ot theFederal Employ ers’ Liability —

Act, 53 Stat. 1404; 45'U. S. C. A. See. 51, provides:

“Any employee of a earrier,’any part of whose

duties as such employee shall be the furtherance of

ltacatinhs or foreign commerce; or shall, in any way |

irectly or closely and substantially, affect such eom-

erce as above sét forth shall, for the purposes of

carrier in such commerce and shall be considered as.

entitled to the benefits of this Act and of an Act en-

titled ‘An Act relating to the liability of common

carriers by railroad ¢o their employees in certain cases’

(approved April 22,. 1908), as the same has heme or

niaty ‘hereafter be amended.’”

. { ,

V "o

Roa »

' Summary antl Short ane of the Matter Involved.

‘This is an action under the Jones Act, 41 Stat, 1007,

46 U. S. C. A. See. 688, to recover for the. wrongful death

of plaintiff’s intestate, ther son, who 1 was killed April 26, ~

1948, by an explosion of a fire extinguisher, while engaged,

in the course of his employment by the defendant, in pre--

~ paring the latter’s sightseeing vessels for use during the

summer season of 1948. There was a verdict ‘for plaintiff |

for $2 5,000, ‘upon which the District Court entered judg-.

_ment. The Court. of Appeals reversed and remanded with

directions to enter judgment for the defendant, on’ the

‘i ground that decedent was not a seaman within the méaning |

of the Jones Act, at the time of his death, because the

defendant’s vessels. were not then engaged in navigation.

It was held, also, that the 1939 amendment of the Federal

Empley ers’ Liability Act was inapplicable in determining

decedent’ $ status as a seaman, and that the trial court’s

ee jnstructions reflecting the contrary view were’ erroneous.

As the- defendant’ s negligence i is undisputed, the only ulti-

mate question is whether decedent was a seaman within |

the meaning of the Jones Act,.at the time of-his death, so

as to entitle the administratrix, his mother, to its benefits.

We cag the following statement of the Court of Ap-

_peals (R. 274, 275, ¢ inion PP. 1,2):

\ ; ne

tits Act, be considered as being employed by such |

‘‘Defendant is an Illinois ecrporation engaged in the .

‘operation of sight-seeing motor-boats on the Illinois

River in the vicinity of Starved Rock. Plaintiff’s:

intestate was first employed by defendant in April,

_\. (1947. He assisted in the preparation of the latter’s

os, motor launches and barges for the summer season,

| .which extended from June 1 ‘to the end of. October,

| and, after procuring, on June 17, 1947, a Department

of Commerce license ‘to operate or navigate motor .

boats carrying passengers for hire’, served. as an —

-operator of defendant’s launches for the balance ‘of

-the 1947 season. Defendant had five such vessels,

_. manned by licensed crewmen and operated pursuant

to Coast Guard regulations. At the Re ose of the season,

' Desper helped take the boats and barges off.the river |

_ and prepare them for the winter. The barges, none-

of which had any motive power, were floated into a

_ shallow inlet known as Edwards Run, which was util-

_ Yzed. by défendant as winter quarters, and there an-.

chored to the bank; the motor launches: were taken

out of the water and. blocked up on’ marine tracks ‘on

land adjacent thereto. This work was completed and

- Desper’s employment terminated on December 19,1947

On March. 15, 1948, Desper again entered defendant’ 3"

employment. Although there, was testimony to the

_ effect that he was hired for the season and was to be .

employed as an operator once the boats. were in the

water, the work he actually performed@from the date

of his re-employment until his death consisted of clean-_

_ ing, painting, varnishing and water-proofing the vessels

and engaging in various other related activities neces-

sarily involved‘in readying them for the summer séa-

son. On April 26, the date on which ‘the accident

occurred, the launches were still tr up . on rails

‘and the barges lying 3 in Edwards Run.’

The following additional facts are relevant. It was the

_ usual practice of the defendant to. reengage the operators

employed: during the preceding season (R. 119) and to have

them help get tne boats ready for navigation (R. 115, 116). .

Desper was paid at the same rate for fitting out the boats

asthe was for operating them (R. 117-119, 123, 179). -Sea-

" men operating boats of, this kind on the Illinois River never

woe,

worked under seamen’s articles (R. 135) ‘or ship’ s dis-

eipline, nor did they live on the boats. The fitting out. work °

was almost finished at the time of the accident (R. 63, 64,.

-. 91) and although the work was interrupted for_almost a

week (R. 75) the boats were launched and running within

a week or ten days-after Desper was killed (R/181). The

-1948- season began May 9 (R. 181) several weeks earlier

than the preceding year. (Plaintiff’s Exhibit 1, R. 219, a

photograph looking northeast, shows the physical condi-

- tions substantially as they existed at the time of the. avci-

dent, R. Se

Although it is iromaterial, in view of 0 ‘Donnell v. Great

‘Lakes Co., 318 U.S. 36, ‘whether the accident occurred ‘on

4 navigable waters, there was evidence that Edwards’ Run

was navigable (R. 78, 79). Consumers’ Run, into which the

marine track led, was nav igable (R. Sa 160, 114). 3

The Workmen’ . “Compensation proceedings before the

Industrial Commission of Illinois, while entirely immaterial

to the issues, were initiated by the defendant in an attempt

to compel plaintiff to accept compensation under the state _

Workmen’ s Compensation Act. The plaintiff, later,-after

the commencement of the present suit, also filed an applica-_

tion for compensation, as a, precautionary measure to

preserve her rights. Prior to the date set for hearing. we

filed ‘a written motion. before the Commission, supported: —

~ by affidavit, to have the hearing continued until the plain-

tiff’s right to maintain her suit under the Jones Aet had

- been determined i in the Federal Courts. Plaintiff's motion.

was denied’ and she was compelled, at the defendant’s he-’

‘hest, to proceed with her eyidence before the’ Industrial

- Commission. There has been no final award of compensa-

tion, and plaintiff’s petition for review of the arbitrator's.

finding, alleging the. Commission is without jurisdiction, .

is pending. Plaintiff’s right to. pursues cher remedy under

the Jones Act in the federal courts is not affected by pend-

‘ing compensation proceedings. Marceau v. Great ‘Lekes —

ransit Corp., 146 F. 2d 416, 418 (2a Cir.) cert. den. 324

Se 872. Davis v. Department of Labor, 3i7 U.S. 249

: fe struction worker .dismantling abandoned bedacs!,

| Badthlehem Steel Co. v. Moores, 335 U. S. 874, and Baskin

v. Industrial Accident Commission, 338 U.S, 854 (shipyard

wokkers repairing completed vessels) plied on by the de-

fendant in the Court below to support ifs argument that

the Jistrict Court should have stayed its proceedings, were

all dases in whieh the injured workman, or his widow

ht workmen’ s compensation and there was no federal

snit tinder the Jones Act. The state. jurisdiction was up-

held under the so-called doctrine of local concern. None

“of the ' e mployees in these cases was hired or served.as a_

-“ mémber of a ereW in any capacity, and they are not au-

theérity for ‘any. purpose jn the instant case..

o° @

a. ga

" Reasoris Relied On for the Allowance of the writ.

‘This ‘Aneision results: i iP Genxine to seamen injured dur-.

‘ing the fitting out period, or to their dependents if they .

are killed, _ the -henefits of ‘the Jones Act which it was the

obvious intention of Congress fo apply to as large a group

of seamen ( longshoremen and harbor worke.s excepted)

as Was constitutionally possible. The Court of Appeals not

only substituted judicial for jury determination of the fact

question 6f who is a seaman within the meaning of the

Jones Act, by narrewly construing, the term navigation, °

_ but. also failed to apply the: principles of recovery ‘in ana- .

i jogous F.i8.L.A. éases under which the benefits of that Act

“have always heen accorded to railway employees engaged

in the comparable work of preparing engines, trains and

_ cars for use in interstate commerce. See Chicago and

N. W. R. Co. v Bower, 2AV U.S. 470; Southern R. Co. v.

oe Lloyd, 2 239 U. S..496; New York Cent. and H. R. R. Co. v.

( arr, WSUS 260, 263 : Seaboard’ Air Line Ry. v. Padgett,

: ! 9 |

236 U.S. 668; Grand Trunk Western R. Co. v. Lindsay,

4144. ieee

The present decision i is direetly in eoutiie’ with the sali y,

of liberal construction of the Act declared by this Court

and continuously adhered to,in the ene. cases: Inter-

national Stevedoring Co. v. Hav erty, 272. U. 8.50; Jamison

a Encarnacion, 28+ U.S. 635: Cortes: ‘V, Bilteiere Insular

Line, 287 1. S. 367, 375; Warner v. ete! 293 U.S. 155;

The. Arizone v. Anelich, 298 U.S! 110, 123; Garrett ‘v.

Moore-McCormack Co., 317.U. oe 239, 248: O'Donnell v.

’ Great Lakes Dredge and Dock Co., 318 U.S: 36; and Swan-

son v. Marra Bres., 328 1S. 1. The Court of Appeals ,

has erroneously titenpeaied this Court’ s decision in the

Swanson and O'Donnell cases, as a retreat from the liberal |

position taken i in the Hav. rty ease.

The principle. established fay’ this Court S calterie. con-

struction of the F.E.L A., applied in the admiralty setting,

confers the benefits of the Jones Act on seamen, hired as

_ members of a crew, whose work at the time of injury is so

closely related to Seven, ‘as. be Erectoaly a part.

of it. jigs ~~

~The word ‘employ ment’? as\used in the F.E. i A. had’?

been construed by this Court long before the Jones Act WAS »

passed, and, of course, even longer before tite 1939 amend-

ment to the FLE.L.A. In Shanks v. D: L. and W. BL R., 239 -

UL S. 556, 558, it was held that|‘*the true test of employ-

ment-in such commerge in the sense’ i intended is, was the

employee at the time of the injury engassed in interstate \ + cae

transportation or jn work so closely related to it as to be

_ practically a part of it.’ This rule was adhered to in,

So. Pac. Co. v. Ind. Ace. Com., 231 U.S . 259, 263.; Ind. ‘Com.

y. Dax Paes S. 182, 185; B. and O. S. W. R. Rev. Burtch, Af

263 A. S. 540,. 4S. a niust be presume “l to have —

uséd the word ‘‘employed”’ in the sense in which this Court. |

had already construed it under-the F.E.L.A. ;

"Thus we find that at the time the Jones Act was ‘passed,

adopting the’ F.E.L.A., a uniform judicial] eonstruction of

this. Act required the ‘eouria, in construing it; to include. .

within its purview not only those employees whose tasks

" were actually interstate, but also, those whose tasks were 80

‘closely allied to’ sii¢h commer” as to be-a part thereof.

It must be presumed that ¢ Congress was aware of this rule

of, canstruction, and in‘adopting the statute adopted the

rules of construction as well, That the construction was in

fact adopted becomes appkrent, we think, from the deci-

sidns hereafter cited, wherp thé benefits‘of the Jones Act

were extended to seamen who. were working on a vessel i in -

dry dotk. :

The detertaination of the relationship: hitwoen the work

a railroad employee was doing and interstate commerce was .

one of the principles’ of recovery already established for

railroad employees w hich was. to be applied in the new

admiralty setting: ew

In Overstreet v. North Shore Corp. ., 318-U. 125, the

question was led persons maintaining a, is bridge

were ‘‘engaged if commerce’? within the meaning of the —

Fair Labor Standards Act. The court there referred. to

‘the numerous decisions construing the F.E.L.A., and held

‘that the test evolved in. those cases, i.e., whether “the work .

of ‘keeping such instrumentalities “in a proper state of re- -

pair ‘while thus used is so closely related to sach commerce

as & be in practice and in legal contemplation a part of

t,”’ should be ‘applied, and should govern the interpreta- |

i of the Fair Labor Standards Act. In discussing the

contention that the F.K.L.A. and the Fair Labor Standards

ect were not. related, and therefore the construction of

one wa not 2s a to the other, the court said, pp. 131,

132: pe Fi chiro

ut : § ea a

“<The Federal Employers’ Liability Ast asa the Fair °

- Labor Standards Act are not strictly analogous, but—

.they are similar. Both are aimed at protecting com-_

merce from injury through adjustment of the master- .

servant relationship, the one by liberalizing the com-

mon law rules pertaining to negligence and the other

by eliminating sub-standard working conditions. We

see. no persuasive reason why the scope of employed

or engaged ‘in commerce’ ‘laid down in the Pederson

and related -cases, cited above, should not be applied |

to the similar language in the Fair Labor Standards

Act, especially when Congress in adopting the hrase

‘engaged in commerce’ had those Federal Emp oyers’

_ Liability Act eases brought to its attention.’

‘" Every. consideration which this Court relied on inn’ the

‘Overstreet? case-is present, with even greater force ‘and ..

applicability, in our case. Not only did C engress have the

- s~decisions construing the F.ELA. brought to tts attention

when it’passed the Jones. Act, -but by adopting that Act it

-adopted the settled judicial construction of it.

. The: F.ELL.A. used the language “employed * 4% ig,

such commerce.’’ The Jones Act speaks of the * ‘course

of his wise ste ni?" Obviously, Congress was legislating

concerning ‘‘employment’’ in each -case, and therefore the

earlier decisions construing» the word must be presumed

to be neppinn. the later Act. :

In Adopting an earlier act, either expyessly or by implica- .

tion, ‘*Congress must be considered to have adopted also

the construction given by this Court to such language, and “

made it -a part of the enactment.’ |. Shapiro v. United

' States, 385 U.S. 1, 16. ,

The applicable principle is that work sa alaoely related

to the basic eniployment as to be practically a part of jt

entitles the employee to the benefits of. the Aet. In fhe

one case it is employment in int rstate commerce, in the

other employment as a seaman. The principle i is as readily

applicable in the one case/as the other. It was the duty

of the-Court of “Appeals to apply it in this ease. O’Donnell

intended to be restricted to injuries occurring on navigable .

waters.”’. The text in determinfng the applicability of the -

v. € ireat Lakes Dredgé and Dock Co., 318 U.S. 36.

The cases cited by the Court of Appeals do not support a

its conclusion that decedent was not a seaman. _

The Court cites O'Donnell v. Great Lakes Co., 318 U.S.

"36; Swanson v. Marra Bros. , 328 U.S. 1; Frankel v. Bethle-

hem- Fairfield Shipyard, ind: 46 FS. ‘242, ge affirmed 132

F, 2d 634 (4th Cir.) cert. denied 319 U.S. 746;-Hawn v.

American S. S. Co., 107 I. 24 999 (2d Cir. ¥ Antus-v. Inter-

ocean S. S. Co,, 108: F. 41 185, 187 (6th Cir.) : and Taylor v.

Me) Manigat, 89 P. 2d 483 (6th Cir. ):'in support of its conelu-

sion that decedent.was not engaged in maritime service*

~ and Was. not a mémber of a crew at the t tinie of his death.

None of these cases involves a situation in which a licensed

navigator, definitely hired ‘to operate’ boats, was. injured

Ww hile engaged in the nécessary preparatory W ork of getting”

--them ready for operation. There is no adjudicated case, .

so far as. we can determine, denying a right of recovery

under such circumstances.

We submit | the Conrt of Appeals inisinterpreted the

0’ Donnell and Sw ‘anson cases In construing | thera to require

thatra ship: be engaged in navigation to give’ the injured

employ ee status as a member of a crew. This Court stated |

in the. O ‘Donnell case (Opin. pp: 42-43). that the ad-

miralty jurisdiction | of a- Jones Act suit depends on the

nature of the service and its relation to the operation of-

: vessel plying i in navigable. waters. “This*Court also said,

». 39: “There is nothing in the legislative history of the

wal Act to indicate that its w ords * in ‘the course of his -

employ ment’ do not mean what they say or that they were

Jones Act is the nature-of the service the seaman is engag-

ing in at the time of his injury, not the location of the vessel

“tn

. : a 13

nor the place where the i injury oceurred. This Court surely

did not intend to hold, in the light of the quoted statement,

that the vessel inust be plying in navigable waters or ac-

tually engaged, in navigation at, the time-of the injury.

If the service is performed by a seaman hired as a inember »

of a crew, and is necessary to the operation of “the vessel,

.it is’ within the admiralty jurisdiction. The right to the

henefits of the Jones Act does not depend’ on whether the

ship i is. technically in nav igation, but on whether the seaman

is a member of its crew and his service is of a maritime

navare. |

Frankel vy. HAhichem- Fairfield Shipyard Inc., 6 V.

242, 249, affirmed. 132 F. 2d 634 (At Cir.) | involved

injury to a shipyard employee engaged in new construction,

which this Court has always declared to bé non-maritime.

Thames Towbgat Co. v. The Francis:McDonald, 254 U.S.

242, In Hawn v. American S. S. Co., 107 F. 2d 999 (2d

Cir.) the ship had been out ef commission a year, with no

‘prospect of being returned to service (compare Gonzales Vv.

U.S. Emergency Fleet Corp., 3 ¥. 2d 168, 170, E. D. N.Y.)

/ and plaintift was a day. laborer helping to load. her for.

cS starage purposes. Antus v. Intérecean S. S. Co., 108 F. 2d

185, 187 (6th Cir.) involved an injury to an employee who’

was helping to lay up the ship at the close of the navigatiow

season. The Court implied that if the work had been. done ,

in preparation for navigation a reeovery would have been oe

allowed under the Jones Act. In Tat ylor.v. McManigal, $ fis

-F. 2d 583. (6th Cir.) the employee was killed while helping

to fit out a Great Lakes steamer for navigation. An award: «

~- of compensation ‘under the I “ongshoremen’s ; Act was upheld

on the ground that the decedent was not a member of the

erew becausé the crew had not vet been chosen at the time.

of his death. .This is. in contrast with the instant case, in

which decedent was definitely hived as a’crew member at /

the beginning of his employnient. The minor, factors that

. : | | 7

decedent was not working under articles or ship’s’ dis-

cipline, or living on board, are not significant, since. river-

boat gomgoo: did not customarily do se. Daffin y. Pape,

L0F.: 2d ¢ (22, 625 (Sth Cir.). ee fi

Decedent's Work Was Clearly Maritime.

‘A contract to repair a ship is a maritime contract,

7 whether thé repairs are made while she is afloat, in dry’

dock, or on land, North Pac. 8. S. Co. v. Hall Brés., 249

U. S. 119, 128: The Steamship Jeffe rson, 215 U.-S. 130,. “

142, 143. The service is maritime because of its direct’

and intimate connection with navigation and commerce. °

John. Raizley Iron Works v. Spun, 281 U. S. 222, 232. . It

has such connection even. though the vessel is laid ‘up a

lorig time and the repairs are extensive. New-Bedford Dry.

Dick Co. v, Pardy, 258 U. 8.96, And see also, Hillcone 8.

Co. v. Steffen, 136 F. 2d 965 (9th Cir.). They are maritime

if there isa present intention to put the ship in service -

and the work is directed to that end. See Carumbo v. Cape

Cod 8. S. Co., 123 F. 24-991, 995 (1st Cir.). Tt is otherwise

_ When a ship is p¢rmanently Jaid up and intended to be

scrapped. Gonzales -v. United States Emergency Fleet.

Corp., 3 F. 2d 168, 170 (KE. D. N. Y:.), Whether the ship be

: regarded’ as in or. out of navigation during the period . of.

repairs or reconditioning is unimportant as: long’ as the

‘service is maritime. The work decedent was. performing.

on defendart’s. vessels at the time of his death was not

only direetly in aid and flirtherance of navigation but. was -

. an essential prerequisite, to their use in, navigation and. .

. without which they could not: be safely operated,

“The decision of the Court of Appeals is in conflict with |

_ Hunt v. United States, 17 F. S.578, 91 F. 2d 1034 (2d Cir.),

‘ cert. denied’ 302 U. 8. 752; Jones v. Shepherd, 20 F. S. 345

(S. D. Miss.); United States v. Lindgren, 28 F. 2d 725 (4th

Cir.), affirmed 281 U. §. 38; Daffin v. Pape, 170 F. 2d 622

/ .

. (5th Cir.); and Weaver v. Pittsburgh Steamship Co.;-153_

F. 2d 597 (6th Cir.), cert. denied 328 U. S. 858. ;

‘In Hunt v. United States, 17 F. 8. 578, 91 F. 2d 1914

(2d Cir.), cert. denied’ 302.U. S. 752, thé employee was ‘

injured while. cleaning and scraping a ‘ship in ‘drydock.

~~ He, had signed no shipping articles, but took his chances

,on being selected as one of the crew w hen the ship should

; “be ready to begin her next voyage. A recovery under the

Jones Act was allowed. In United States ¥. bye hee

28°F. 2d 725, 728° (4th Cir.), affirmed 281 U. . 38, the

decedent, who had. been hired as third mate, was: killed.

while: helping to repair the ship, which was in. drydock in

preparation for her next voyage, The Court of Appeals —

held there was no doubt ‘he was a member of the crew and -

a recovery under the Jones Act would have been sustained

| if proof of. dependency could have been made.

' Iw Jones v. Shepherd, 20 F. S. 345, 346 (S. D. Miss.)

the decedent was drowned, while helping to load coal onto a .

vessel preparatory to a voyage. The ship had been laid up

over a month; during which hie lived at. home, bat before.

‘that he had been a member of the crew, and it was held

: that when he returned and engaged ‘in the preparatory ..

work it was a réayonable inference that he immediately

became a’ ‘member of the crew in the same capacity and,

at the same rate of pay and in the performance of the same,

_kind of duties he had theretofore been performing. .

In Dafin v. Pape, HO Ke 2d G22 (oth Cir.); decedent,

Awa GY ‘:

‘earried on—the—pavyroll of d¢fendant’s radio stition_as.

handyman and porter, killed -while preparing défendant’s

yacht for a trip on which he-was tobe carried jalong to

- cook, serve drinks, do general work and relieve mt captain

at the-helm, w as held ‘as a matter of law to be a mbinber of

the crew. ee 5 |

Weaver'y. Pittsburgh Steambhip Co, 153 P. au 697 (6th. ;

Cir.), cert. denied 328 U . 5. 858, was an ee for ov ertime |.

ane

me."

i; /

compensation under the Fair Labor Staridards Act. “The

plaintiff had worked under signed shipping articles as a

fireman on Great Lakes Steamships during the fit-out and

sailing periods, .and until the end of the lay-up period. ‘

He was held to be a-seaman dining the entire time. Al- ~

though mueh-stress is laid on the fact that the employee

worked under articles (a matter of no significance in the

_instant.case .in view of the contrary custom), the Court

also approved and followed the Hunt, Jones and Lindgren

cases, We submit all of these cases are ‘indistinguishable,

in’ principle, from the instant case, where the work dorie

"was just as directly and intimately connected With nav iga- ss,

tion. That the boats were on a marine track rather than in

drydock is not. significant. Cont. Cas. Co. v. Lawson, 64 F.

2d 802° (5th Cir.); Maryland Cas. Co, ¥. Law son, 10i F.2d

732 (5th Cir.). ioe ie Es 5a hes)

The 1939 amendment of the Federal 1 Eniployers’ Liability:

Act is applicable i in suits under the Jones Act.

Sain ceeemene

_A question presented for the first time in this Case, which |

we believe this Court should decide, ig whether the 1939

‘amendment of the F.E.L.A. is x, sanity in suits under ‘the % [ 4

Jones Act. . sugges we

The. 1939 amendment i is indicative: of the intent oe Con-

gress‘ to confer and extend the: righy of action under the —

FLE.L.A. to all ‘whose duties, at any’.time or place, would

entitle them to ¢ome within its purview, It is also indica-

tive of the intent of Congress to confer and extend the right

of action for. wrongful death created by the Jones Act to —

‘all seamen whose duties, at any time or place, would entitle ee,

them to its benefits. The- Jones Act expressly incorporates /

all statutes of the v hited States: confer ring or regulating

the right of action for death in the case of railway em-

ploy es, The 1939 amendment broadens ‘the concept of em-

ployment within ‘the meaning. of the F.E.L.A. so as to

confer its ‘benefits on a larger group‘of employees, ard

; i

Pin toe eee ewewene wenn (

. is * ps

eh ee ae

. : a- :

we wubuntt it must work a corresponding enlargement of the

concept of seaman so. as to. include employees any part of |

whose duties are those of a member of a crew? ,

In California v. Zook, et al., 336 U.S S. 725, 728, this Duar

recognized the power of Congvens to “redefine the areas

of national and local p-edominitice.’’ The passage of the .

1939 amendment of | the F.E.L.A; was an exercise of the. —

. Congressional, power in the field of the relationship of.

common carriers by railroad te their employees. The prin-

ciple by which the area of national predominance was en-

larged was that ‘the entire scope of the employee’s duties:

was to be considered in determining his right to the fone

‘of the Act. The Congressional mandate requires a corre-

_ sponding enlargement of the area of national predominance

- in the field of the relationship: of shipowners w their em-

ployees. The Jones Act is to be construed so as to enlarge,

- rather than restrict, admiralty’ s pretection to. its wards.

Garrett. v. Moore-MeCormack Co., 317. U. S. 239, 248.

- The dec cision ‘of the Court of Appeals holding the 1939

Raney ‘of the FLED. A. inapplicable in Jones Act cases

is-in conflict, in principle, with Nordquist v. U.S. Trust Co. .

of N. y. , 188 F. 2d 776. {2d Cir.). .There the plaintiff sued

the’ exeeutor of a deeeased shipowner, under the Jon ‘Act, ——

- to.recover for the- wrongful deatly of plaintiff’s cedent.

~The defendant moved to dismiss én the ground that since

- there was no survival. provision in the’ Jones Act, the action ~.

abated with the death of the tort ‘feasor.. Fhe Court of “

| Appeals held. that the provi sion of the F.E.L.A. (45 ULS

C. A. See. 57) that suit might be brought against “receivers

or other persons or corporations charged with the duty of

the managenient and operation of the business of a common

carrier’’ was. by implication a survival statute and should |

be read into the Jones Act so as to permit suit against the _

executor ofa deceased shipowner. Receivers of common -

carriers by railroad were: equated with executors. of ship-

owners, and the principle of. survival carried, over into. the .

18 a Meni tN

| Jones Act. This -was-a-moretiberal application of principle .

than the District Court made in the instant case in giving

the administratrix the benefit of the 1939 amendment of the |

EF. E. SO A. | Gea ©

The. Court of Appeals’ refusal to apply the amehdrnent

. was on the ground that it was not a statut conferring or -

regulating the, right of action for death in the case of rail-- -

way employees (Opinion p. 7). It seems clear that the -

amendment confers the right of aetion on those who would ~

not otherwise come within ‘its. purview, But even if the |

amendment were not applicable to Fones . Act. suits,, the —

error in applying it would be harmless since thé decedent :

was under the Jones Act by virtue of principles well esfab-

lished in analogous | E.E. L.A. cases before its passage.

The. Court of Appeals has substituted its judgment for

that of the jury on the fact question of whether decedent

. Was @ seaman within the —— of the J ones Act at the.

"time of his death.

- While the O'Donnell and Swans son cases have Moutined

the benefits of ‘the Jones Act to seamen who are members Ms

of a crew, this Court Sat wig in South Chicago Coal Co.

ax" Bassett, 309-7 'S. 251, 258, 260; ‘that the term “‘crew’”

does not. have an unvary yy as significance, and that

whether. one is a member of a crew is a question of fact

depending on all the. ciréumstances. The term was inter-—

preted broadly -in Norton v. Warner Co., 321 .U. 8. 565,

and in Cantey v. McLain Line, 312 U: S. 667, reversing’

32 F. S. 1028, 114 F.2d 1017, on the authority of the

daassett ease. The question: has been held to be one of fact -

* requiring an ‘aitmance of a jary’s finding if there is any

_ evidence to support it, in Gahagan Const, Corp. v. Armao,

165 F. 2d 301, 305, 307 (1st hn ), cert. den. 333 U.-S. 876; .

Bowen. v. Shamrock Tow ing © »., 139 F. 2d 674 (2d Cir.);

i and Schantz v: American Dritiging Co., 138 Br. 2d ast (3rd

-Cir.).

is. % ry

This Court’ 8 decisions restoring the historie role of the

_ jury in passing on disputed questions of fact and in draw-

ing inferences from,proven facts in F .E.L.A, cases require

that the verdict of the jury and the. judgment of the Dis-

trict Court be sustained in the instant case. See Wilkerson

v. Mc€arthy, 3386-U. 8S. 53,.71; Lilly'v. Grand Trunk West-

ern R. Co., 347 U.S. 481; ne v. Atlantic Coast Line R.

Co., 318 U.S. 54; Bailey v. Central Vi. Ry: Co., 319 U.S.

350; Lav ender vy. Kurn, 327 U.S. 645; Ellis v. U. P.R. Co.,

329 U. S. 649; Urie v. Thompson, 337 U. S. 163.

We submit that since the Jones Act, even if strictly con-

strued, exnressly grants. to seamen the same common law

remeay to recover for personal injury suffered in the

course of their employment, as that given to railway em-_

ployees under the provisions of the F.E.L.A., as amended’

in 1939, the right of reeovery of such employees ‘f any part

of their employment is in interstate commerce, ust like-

~ wise be ‘similarly construed and rendered applicable to

swamen, any part of whose duties is in furtherance of

navigation; to. hold otherwise would nullify the « Congres-

sional mandate. |

The words ‘vessel: plying in nfivigable waters” , Which

the Court: of Appeals lifts out of their context in the:

Swanson case, must be éonstrued in the light of the ques-

_ tion there being: decided, and the decisions’ in other ceses.

-Certaiuly the court did not mean to imply that a vessel

must actually be plying in navigable waters at, the very

instant: of the accident. Such a construction would exclude

a number of cases - ‘Which, arise in harbgr, and in which

. recovery has been uniformly sustained,

that this Court ‘“‘has retréated from the position taken in

the Haverty case and has narrowed ‘the Jones Act concept

of ‘seainan’ to the point where it includes only one who is

a member of the crew of a. vessel plyi ng in navigable

The statement by the Court of Appeals. (Opinion: p. 6)

waters’? * * * or (Opinion p. 8) *‘a vessel which was en-

-. gaged in navigatien as distinguished from one which had”

heen withdrawn from navigation’’ is quite misleading te

‘say the least. As heretofore-pointed out, this Court has-

| consistently adhered to, the position taken in the Havert; y

cas®, Congress, by the enaciment of the, Longshoreinen’s

‘Act, excluded from the purview of the Jones Act a class of

employees which he reviously been aliowed to partici-

pate in its benefits and left unaffected the rights of other.

- seamen. to recover under the Jones Aft for injuries suf-

fered while engag red in. the course of their maritime em-

ployment. Swansow v. Marra, 328 U. S..1. The nature of

decedent’s employ nient and ‘“its relationship to the opera-

tion of vessels plying in navigable waters”’ brought him.

squarely within the test essential ‘to a right to recover un-

der the Jones Act as prescribed hy this Court im the O ‘Done.

. nell and. Swanson Cases. | aus |

Con jusion.

“This case vaines important jmestions of federal aw under mn

‘the Jones Act which this Court has not passed upon, and

certiorari should therefore be granted. De Zon v. American

President Lines, 318 U. S. 660, 661, The decision of the

. Court. of -Appeals: erroneously deprives | plaintiff of her:

right of recovery under . that. Aet. . Petitioner therefore

_urges that the writ prayed for in the petition ‘be issued;

‘that the judgment of the Court of Appeals he reversed

and the judgment of the District Court affirmed.

Respectfully submitted, me

JosnpH D. Ryan, :

A Harney for Pe titioner.

mena,

APPENDIX...

- United States Court of Appeals

| Har the Seventh Circuit

Ocroser Term, 1950, January Session, 195].

- ‘ ; ;

No. 10257 °. ze Bye x é |

—~Aywa Desper, Administratrix of | Appeal from the -

the Estate of Tuomas J. Desper, | United States Dis-

_ Jr. Deceased, ihe trict Court for tie

——” Plaintiff-Appellee, { Nerthern District of

; a Sie ene, iHinois, Eastern Di-

~Srarven Rock Ferry Company, ©. | Vision.

Defendant-Appellant.

~ Mareh 20, i951

‘Before Kerver, Linpiey and Swarm, Circuit Judges.

LinpLey, Circuit Judge. This is an action under the

Jones Act, 46 U.S.C.A., See. 688, for damages for rhe

death of plaintiff’s intestate, Thomas J. Desper, Jr., as a.

result ef injuries sustained by. him in the course of his

. employment by defendant. A jury found for plaintiff, as-

sessing her damages at $25,000, From the judgment en-

-tered on the verdict, defendant appeals.

Defendant is an’ Llihois. ath sige engaged. -in the

operation of sight-seeing motor-hodts-on the Illinois [iver

in the vicinity of Starved Rock. Plaigtiif’s intestate was

first employed. hy defendant in April, He assisted

in the preparation of the latter’s motor Maugelies and

barges for the summer season, which extended from June

1 to the end of October, and, after procuring, on Jane 17,

1947, a Department of Commerce license “to operate or

navigate motor boais carrying passengers for hire’, served

zs. an: operator of defendant’s launches forthe balance

of the 1947 season. Defendant had five. such Yessels,

eee

cord

+e : ; i !

eh 3 ; Appendix

inanned by licensed crewmen and operated pursuant to —

- Coast. Guard regulations: At the close of the season, Des-

per helped take the boats ‘and harges off the’ river and

prepare them for the winter. The barges, none of whieh

had any motive power; were floated into » shallow inlet

known as Kdwards Run, which was utilized by defendant

as winter quarters, anid there anchored to the bank: the

‘motor launches. were taken out of the water and blocked

up on marine traéks. on land adjacent thereto. This work,

was completed and Desper’s employment terminated on™

December 19, 1947, - Te 3 oe

On Mareh 15, 1948, Desper again entered defendant’s

employment. Although there was testimony to the. effect

that: he was hired for the season and was to be employed

as an operator once the boats were in the water, the work -

he aetyally performed from the date of his reemployment

until his death consisted’ of clepning, painting, varnishing

and water-proofing the vessels: and engaging in various

“giper related activities necessarily involved in - readying

| m for the summer season. On April 26, the date on

_ Which. the- accident occurred, the launches‘: were stil...

blocked up on rails and the barges lying in Edwards Run.

_ The- largest of the ‘latter was a honseboat in which de- .

tendant’s manager had year-round ‘living quarters and

‘Which was also used as A machine and-tool shop, ware-

house, ticket’ office «and waiting room. -Five or six men

were on this barge, spraying life: preservers which, were .

to- be used on the sight-seeing baats, and: defendant’s pres-

. ident, one Birkenbuel,- was also there, working on a fire

extinguisher. . This extinguisher exploded, killing Birken-

huel and plaintiff's intestate, j | ae

. “Both plaintiff and defendant ‘filed applications for. ad-

_justment of elain with the Industrial Commission of lili-

nois, the -defendant on January 6, 1949, ‘and the plaintiff

on March 28, 1949; seven days after filing her complaint

in the instant action in,the District’ Court. _ After-hearing,

ain arbitrator decided that! the provisions of the ‘Tilinois

Workmen's Compensation Act were. applicable and that -

under Section 7 (b) thereof (1, Rev. Stat:. 1949, Ch, 48,

Sec. 144 (hb) ), plaintiff was entitled to. compensation ae

the amount. of $19.50 per week for 266 weeks and $13.00

’ for‘one additional week. Defendant's ténder-of the amount

of compensation. which had glready accrued -and its offer

‘ ae aN : . eu,

\ " e ——_

Re Bee _ Appendiz aes

| Seta

to pay the balance of the award were immediately rejected

‘by plaintiff, who ‘fited with the commission a petition for.

review, alleging that the commission lacked. jurisdiction

and praying that .the order be vacated. The pendency’

of this petition for review ‘was urged by defendant in sup-

port of its motion to stay the proceedings in the instant

¢ase,—-a motion predicated on its contention that.the coin- SG

_Mission’s decision, subject to review by the courts of Ili-

nois, would be determinatiye of plaintiff's. right to the

relief prayed. The District Court, hoavever, overruled the

motion and thé suit proceeded to judgment as related.

- It is defendant’s position that plaintiff's intestate, Des-

per, was not a “seaman” within the méaning-of the Jones

_ Act and that plaiitiff, therefore, has no right to maintain

an action for damages for.his death in the course of his

éinployment, but has available to -her ‘only - the remedy

afforded by the Illinois Workmen’s Compensation statute. .

It is urged that the Distri¢t Court erred in faking the eon-

trarye position and, more particularly, in denying defend-

ant’s inmotion for a stay, in refusing to direct a verdict for: -

defendant, in giving certain instructions ‘submitted by

_ plaintiff and failing to give an instruction offered by de-

fendant, and in. overruling defendant's motion for judg-

"ment notwithstanding the verdict, esse ate coe aio

The Jones Act, 46 U.S.C.A. See. 688," provides that ~

“Any Seaman. who shall suffer personal injury in the -

course ® his employment may,, at his ‘election, maintain -

an. action for damages: a&t law, with the right of trial by

‘Jury, and-in such action-all ‘statutes of the United States >

“Inodifying or extendifig the common-law right or remedy in

cases of personal injury to railway employées shall apply ;

and in case of thé death of any seaman as a result-.of any

such personal injury the personal representative of such

"seaman may maintain an action for damages at law with . -’

‘the right of trial by jury, and in such action all’ statutes

of*the United States conferring or\ regulating the Fight

of\action for death in the case of railway employees shall

he applicable.’’ Jurisdiction, in. such actions -lies in the

court of ‘the distriet iti whieh the defendant eniployer re-

Sides ar in which his principal office is located. Phe lan-

sguage. employed makes it readily apparent that the bene-

fits of the Act are available only to. (1).a “séaman” who

* has been-injured in the course of his employment or 2).

“the ‘personal ° representative of such seaman”, in the

”

4 . - .

ne } -

q. fe _ dppendia — Rk

event the injuries ‘received result in bis death, and that -

the crucial question presented on. this appeal is whether

_ ~ \Desper, the plaintiff's intestate, was a “seaman” within

- the meaning of the Act, so.as to‘tonfer on his personal

_ representative the. right to maintain this action.' «Both.

_ parties, however, have advanced arguments which tend °

_ sto broaden this issue, defendant contending that the fatal

accident occurred on non-navigable waters, apparently on

thé theory that: -this fact, if true, precludes the ~ main-

. tenance-of plaintiff’s suit under:the Jones Act, and plain-

_ tiff urging that the: 1939 Amendment to the Federal Em-

' ployers Liability Act,’53 Stat. 1404, 45 U.S.C.A. See. 51;

has so ‘enlarged the meaning of the term “seanian”, as.

used-@n the Jonés Act, as to bring within its scope not

only. one who, is “engaged in -actual navigation” but also

one’ who is engaged in “work so ctosely and substantially

cation as to be a part thereof”, ae

Ls4'That \t is whplly’iimmaterial whether the fata? injury

_2affered by plaiftiff’s ntestate-was inflicted on navigable

/. oY nomwnavigabke .watdrs, is clear. from the decision in.

» O'Donnell vy. Great Lakes Co., 318 U, S. 36, in which the

Supreme Court, after observing, at page v9, that “There |

is nothing in the legislative history of the Jones Act, to

indicate that its words ‘in the course of -his employment’

do not mean what they say or that they were intended

to be restricted to injuries occurring -on navigable

waters”, coneluded, at page 42: “The right of recovery

in the Jones Act is given to the seaman as such, and, as

in the case of maintenance and cure, the admiralty juris-

<liction over the suit depends not: on the place where the

injury ts inflicted but on the nature of the service and its

_Telationship td the operation of the vessel plying in

navigable waters. * * * It follows that the Jones ‘Act, in

exfending a right of recovery to the seaman injured while

in the service of“his vessel by negligence, has done -no

more than supplement. the remedy of maintenance and cure

for injuries suffered by the seaman, whether on land-or

sea, by giving to him the indemnity which the maritime

law afforded to a seaman injured. in consequence of the

unseaworthiness of the vessel or its tackle.” (Emphasis

ether rcemtoee S . 7 | ¢ |? Renee ees

' supphed.)—In this case, ‘then, plaintiff’s right. to recover,

is dependent on the-status of: the ecedent rather than on

_ the situs of the injury which resulted ‘in his death; if Des-

per was a “seaman” within the meaning of-the Jones Act,

plaintiff is entiffed to maintain this action itrespective of _

Whether. his death oceurred on navigable or non-navigable

“ waters or-even on dry land; if he was not such a “sea- -

', man”, she is not so entitled \even though hig death oc-

curred on admittedly navigable waters, but 18 restricted

to the remiedy afforded by the Longshoremen’s and Harbor .

Workers’ Compensation Act, 33 U.S.C.A., See. 901 et seq.

Swanson v. Marra Brothers, Inc.; 328 U.S. 1, 4-7.

_In considering plaintiff’s contention that the 1939

Amendment. to the Federal Employers’ Liability Act

broadened the meaning of the term “seaman”, as uséd’ ine

the Jénes Act, the history of--that Act and related statufes

and the decisions based thereon are enlightening. The Act

was passed in 1920, subsequent to the Supreme Court’s de-~

- termination, --in Chelentis v: Luckenbach Steamship. Co.,

247 U. S. 372, that Section 20 of the Seaman’s* Welfare

Act, 38 Stat. 1152,° effectuated no change in the géneral

» maritime law.- The Act’s express provision that a seaman ‘

injured iri the course of his employment .might, “at his .

election, maintain an action. for damages at law”, and

the incorporation therein of “all statutes of the United

States Wonferring or regulating: the right of action for

death in the case of railway employees”, overcame the ob-

jection, expressed by the court in the Chelentis ease, 247> ee

U.S. at page 384, that the earlier legislatiqg disclosed no

. -° intention “to give the complaining party an eleStion to -

determine ‘whether the defendant’s liability @shall, be

measured by common-law standards rather than those of

__the maritime. law”, and effectively abolished. the fellow-

servant rule in. cases where such élection was exercised,

In the Haverty case, Internatignai Stevedoring Co. v. Hav-

erty, 272 U. S. 50, Congress’ power to change the mari- |

. ‘time law by making provision for such an eiectien was’

recognized, and the. court, in- construing the act, held that,

although for most purposes stevedores are not regarded

‘as seamen, “in this statute, ‘seaman’ is to be taken to in-

clude stevedores employed in maritime work on navigable

; Waters >? *” |

*“In any suit to recover damages for any injury sustained on board

vessel or in its service seamen’ having command Shall not be held to

be fellow-servants with those under their authority,” ee

_ovsinjured. “upon the navigable ‘waters of the. United

o. 78

4 6 é bs i Appendiaz

Less than.a ‘year after the decision in the Haverty case,

Congress enacted the Lotigshorements and Harbor Work-

ers’ Compensation Act, 33-U.S.C.A. See. 901 et seq., pro- ,

viding for the. payment of compensation to an employee

States,” but expressly excluding from its coverage “a

master or member of a crew of any vessel”. In Frankel +,

3 Bethlehem air field Shipyard, Inc., 46 F. Supp. 242,-249,—

affirmed. 132 F. 2nd 634, cert. denied 319 U. §, 46, the

court, holding that the Lon shoremen’s Act. “necessarily

limits the seope 6f ‘seaman in the Jones Aet to a mari-

time employee who can be considered the master or mem-

her of the crew of a vessel”, concluded that the plaintiff

in that case could not bé classified as‘a ‘seaman “as his

duties had no- direct relation to navigation”. And in

Swanson v. Marra Brothers, 328 U. S. 1, 7,.the Supreme :

Court adopted the same construction, holding that “the

effect *.* * ‘of the Longshoremen’s Act-is-to confine the

benefits of the Jones Act to the members of the crew of a

vessel plying in navigable waters and to substitute for-the

right: of recovery recognized by the Haverty case only

o.% 4° 8

‘such rights -to compensation as are given by the Long-

shoremen’s Act.” This decision clearly demonstrates that,

since the passage of the Longslforemen’s Act, the court

has retreated from the position taken in the Haverty case

- antl has narrowed the. Jones Act concept of “seaman” to

the point-where it includes only one who is a member of

the erew of a vessel plying in navigable waters, _

.. Plaintiff, however, while contending that the evidence is

sufficient to establish that he decedent was a member of

the crew of a vessel and, tnus, in any event, a “seaman”.

within the meaning of the Jones Act, takes the position

that the 1939 Amendment to the. Federal Empleyers Lia-

bility Act, 53 Stat.- 1404, which provides that “Any. em-

ployee of a carriet, any part of whose duties as such em-

‘ployee shall be the furtherance of interstate’ or foreign

commerce; or shall, in any way directly: or closely and

substantially, affect ‘such commerce. as above set forth

Shall, for the purposes of this chapter, be considered as

ens employed ‘by such carrier in such commerce: and

shall be. considered as entitled to the benefits-of this chap-

ter”, considered im conjunction with. the Jones Act. pro-

Viso that statutes “modifying or extending the @ommon-

law right or remedy in cases of personal injury to railway

2 ’

Appéendiz

employees” shal apply in actions. by seamen, -has’ so.

broadened the concept of “seaman” as to bring within its

_ Scope one whose

work “closely and substantially” affects

navigation. Plaintiff's theory is that, because any em...

_ ployee of a-carrier whose work substantially affects inter-

state commereeé i

s covered by the Federal Employers Lia-

bility Act, it follows that any employee whose work affects

~ navigation is covered by the Jones Act. This position is, zi

we think, unsound, “for the Jones—Aet ‘incorporates only _

those statutes. “conferring or regulating the right of action

for death in the

case of railway employees” and the 1939

Amendment to the F. BE. L. A. js not such a statute, for it

_is concerned only with the question of the coverage of the

Act; with: the determination of what “employees” are en-

titled to its bene

» definition of the

fits. It is, in short, nothing’ more than a

term “empléyee” for the purposes of the

F. BE. L. A., and cannot reasonably be construed as a°redefi- | -

_hnition of the term “seaman”, as used in the Jones Act.

Defendant contends that the trial court’s first three in-

structions to the

of the plaintiff's

the F, i L. A,,

_ Act concept of *

tions constituted

jury clearly reflect that court’s adoption

“arguinent that the 1939 Amendment of

had the effect of broadening the Jones

‘seaman’’, and -that giving such instrne-

reversible error. That defendant’s con- -

tention is not without merit is best illustrated by-the quo-

tation of instruc

part: —

tion number 1 which reads, in‘ pertinent

“Tf you. believe * * * that a duly licensed oper-

ator operating any one ‘of the ferry boats of the

defendant *

* during’ the regular. season for

such operation, was the crew of ‘said vessel and

engaged in actual navigation or. in. work. which:

was so closely and substantially affected naviga-

-tion as to be a part..thereof, then, the eourt in-.

_ Structs you that operation of Said boats by a duly’

licensed operator * * * would constitute said op-

erator a seaman within the meaning of the * * *

Merchant Marine Act; and the court further -in-

, Struets: you

that under such cireumstances - said

operator is the crew of the ferry boat.

_“The court further instruets you that if you be-

lieve * * * that the plaintiff’s decedent * ** was

- employed by

the defendant to operate its ferry ee:

hoats as a licensed. operator -for the season of -

er pet ; yy Appendix. .

1948, and commenced work *-** in.March, 1°48,

aiding in thé work.of readying and fitting out de-

_ fendant’s said ferry boats * * * for coperation on

the illinois River * * * and if you further find

“* * that any part of the duties of * * * de-

ceased * * * was the dperation of one of said ferry -

boats as the crew of said vessel on navigable

waters and that his work as such operator would |

bein actual nfVigation or in work which so closely

- and’ substantially affeeted navigaticn as to be a

part thereof, then.you should find that he was sub-

ject to the. provisions of the Merchant Marine

At? 2°? wakete Mor Rs . ‘

Furthermore; inasmuch as_ this instruction is based

upon that interpretation of the evidence which is most *

favorable to plaintiff, it ‘presents the further question :

whether the court below erred, as defendant insists it did, .

_in failing to find that sueh evidence was insufficient, as a

verdict.

. Waters”, is not we believe, -to be construed as meaning ~—

matter of law, to constitute plaintiff’s decedent a ‘‘sea-

man”, and in denying defendant's ‘motion ‘for a directed

In Nogueira v. N. Y., N. H. & H. R. Co.; B1 US, 128,

136,.in Warner vy. Goltra, 293 U. S. 155, 159-60, and again

im South Chicago Co: v: Bassett, 309\U. S. 251, 256-257, .

the Supreme Court hes pointed out that the legislative

history: of. the Longshoremen’s and Uarbor Workers’ .

Compensation Act leads to the conclusion that the term *

“master of member of a crew of any vessel”, as used in

that Act, is synonymous with the term “seaman”, as used

in the Jones Act. In Swanson vy, Marra: Brothers, 328 U.S. -

l, 7, decided in 1946, some seven: years after’ the, enact-

ment of the F. Ey L.A, Amendinent on which plaintiff

relies, theocourt not only reiterated this conclusion but

went a step farther, stating. that the effect of the Long-

. choremen’s Aét was to “confine the benefits of the Jones

Act to the crew of. a -vessel plying in navigable waters”.

(Emphasis supplied.) . The phrase, “plying in navigable

that the vessel must, at the very moment of the injury,

have been actually in motion on navigable waters, but ‘is,

rather, to be interpreted as meaning that the person. in-

jured must have been a member of the crew of a vessel

Which was engaged in navigation as distinguished from one

which had been withdrawn from navigation. In the case

Appendix Se meen oo ee

at bar, there was no vessel so engaged; all of defendant’s

boats and barges had been’ withdrawn from navigation

for the winter and laid up in winter quarters; and until

such time as they should once again be placed in service,

- they were not engaged in navigation and plaintiff’s dece-

dent, was not, therefore, a “seaman” ‘within the meaning

of the Jones Act—i.¢., a mast be the ere a

- _& vessel engaged in navigation. Swanson v, Marra Broth-

ers, 328 U. S..1, 7. This conclusion finds support in the

deeisions rendered ii Hawn vy. American S.S. Co., 107 F:

2nd 999, 1000 (CA-2), where the court, in affirming the

‘trial court’s direction of a verdict for the defendant ina —

*. case where the plaintiff was injured while employed with

others in movingsa vessel from one position alongside a

dock to another, at which it was taking on cargo for stor- a

, age, stated that, althotigh navigation ‘does not-eease when

———- the-ship is in drydock for repairs, awaiting new business’,

-. a ship “is withdrawn from navigation, if laid.up for the %

‘ winter”, and in Antus v. Interocean 8. S. Co., 108 F. 2nd.

_ 185, 187 (CA-6), where the court, -affirming the dismissal.

of a suit filed under the Jones Act by one who had been

a mémber of the ship’s crew and was injured while help-

o ing prepare the vessel for: winter quarters, stated: “The

factthat he had_been, or expected in the future to be, a .

seaman does not render maritime work Which was not

maritime in its nature.” Cf. Taylor v. Me! fanjgal, 89 F.:

2nd.583 (CA-6). Of ‘the-cases cited by the plaintiff, the

only one which allowed a recovery under the Jones Act

-where the ship was not in actual navigation, Hunt v.

United States, 17.F. Su p. 578, merely serves to emphasize

the factors, lacking in the éase at bar, which serve to make

‘ one a: »aman for the purposes of the Act. In the Hunt case,

the vessel on which-the accident cecurred was in drydock

undergoing repairs. and, thus, >was not “withdrawn from .

navigation” as were ithe boats involved: in -the case at

bar, which had- heen “laid up for the winter”, Hawn vy.

American S.S. i F. 2nd 999, 1006 (CA-2). -A second

abr

significant difference is that the plaintiff in that case was

living on hoard the vessel and was subject to ship’s disci- -

pline as amember of the crew, . -- ils

In the light of the foregoing ‘authorities, we ean only

conclude that’ piaintiff’s deeédent was not, at the time

of his death, a “seaman”. within the meaning of the Jones, «>

' Act and that the trial court erred in instrueting the jury

Seen | e Appendix ,

“and in failing to grant defendant’s- motion for a directed

verdict. ‘ Consequently, the judgment is reversed and the

_ cause remanded with directions to enter judgment for-de-—

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. [74 .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.