# Petition for Writ of Certiorari — Desper v. Starved Rock Ferry Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0082%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1952 - **Citation:** 342 U.S. 187 ## Text . ™ An i. Ree sts wa IN THE Supreme Court of the. United States - OcronEn Taam, 1951. No. . . . . - . > c “ AN © . ' 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’ ff —~—-————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 2 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 | oe ‘‘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, % a 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 — te Ca ¢ 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.. 0 o° @ a. ga V. " 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, © 233 U.S. 42: Norfolk and W. R. Cg. ve Earnest, 229 ULS 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 — 10 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 “ = ~ 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, 4 \ " 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- 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 >? *” | 2 *“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 ’ sf *, 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 Vv 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-— (SON eh NE (ae Ese OES Sah f Be yin Seed | a mae « 5) es ; < one — “. te ° “ — te e- ° ” ° . - 5 ewe . ° » ¢ . * ” . [74 . ad --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0082%3A2. Public record. Not legal advice.