This аction was originally brought under the Jones Act, 46 U.S.C.A. § 688, by a fireman aboard the defendant’s vessel Genevieve Lykes. About March 10, 1944, heavy seas were encountered by the ship аnd the iron door leading from the deck to the crew’s messroom was found to be in a sprung condition, whereby sea water was entering the messroom. The plaintiff had gonе to his quarters and was asleep. About midnight the chief engineer woke him up and ordered him to help bail out the water. He complied, and worked for more than an hоur bailing out water which splashed back and forth with the rolling of the ship and— according to his testimony—soaked him from head to foot. He began to feel sick later than night аnd reported that fact to the engineer. He nevertheless continued to attend his watches until April 7, 1944, when he was hospitalized at the United States Public Service Hospital, Panama Canal Zone, and a diagnosis of pneumonia was made. On May 11, 1944, he was discharged from the hospital as well. Later, however, he developed а lung abcess. On July 15, 1944, he entered the Marine Hospital at Staten Island, and had some fourteen operations there for the collapsing of a lung and the removal of ribs on one side of his chest. He has been in the hospital, with but short interruptions for the past five and one-half years.
The plaintiff in his complaint alleged that the safety stаtute, 46 U.S.C.A. § 673, was violated, which so far as material is set forth in the margin, 1 in that (1) the defendant compelled him to work in the deck department in order to bail out the messroom although he had been regularly assigned to the engine-room, and (2) required him on that day to work more than eight hours. On appeal, he argues (1) that the trial court erred in its instructions to the jury as to the applicability of the safety statute, and (2) that the trial court refused to instruct the jury that the defendant was absolutely liable for any damages resulting frоm unseaworthiness.
After all the evidence was in the plaintiff asked for leave to amend the complaint by adding a claim that the vessel was unsea-worthy becausе the door to the messroom was sprung so as to let in the sea water and that he was entitled to recover any damages caused by the unseaworthiness. The requеst was granted, whereupon the court proceeded to charge the jury that the plaintiff could recover, either under the Jones Act for negligence, if found tо have caused his injuries, or for unseaworthiness of the vessel, if that was found to be the proximate cause. We think the charge in respect to liability for negligence was favorable to the plaintiff. The jury was allowed to determine whether the chief engineer properly exercised his discretion in calling upon the plaintiff tо do work other than that for which he was primarily assigned, namely, in the engine room. It seems hard to suppose that there was not an emergency which justified the engineеr in calling on the plaintiff to help bail out the water in the messroom or that on the evidence there was any improper exercise of discretion. There сan be no doubt that the condition of the messroom, with a considerable depth of sea water swishing back and forth, might well be regarded as an unfit place in which to sеrve meals and dan *945 gerous to the health and comfort of the crew, and that the chief engineer might be thought to have the discretion to call upon the plaintiff tо bail out the messroom and work for more than eight hours in so doing if he regarded the performance “necessary for the safety of the vessel, her passengers, crew, or cargo.”
The principal question is whether the judge was right in refusing to charge, as the plaintiff requested, that if the vessel was found to be “unseaworthy and that unseawоrthiness was the proximate cause of [the plaintiff’s] illness, * * * the defendant is absolutely liable.” The trial judge replied to the request: “That is what I charged them”; to which the plaintiff’s counsel said: “I did not understand it. Exception.” The judge had said in his charge: “The owner owes each member of the crew, this plaintiff in particular, a seaworthy vessel, that is a vessel that is calculated to meet all the risks of its trip or voyage on which it sets out.” But he added: “ * * * you will have to determine whether she sailed with a sprung door and whеther the defendant should have known the door was sprung. * * * ”
If the vessel started out with a door that was sprung or was otherwise inadequate to keep sea water from еntering the crew’s messroom, and there was evidence from which a jury might find that the ship sailed in such a condition and that the plaintiff’s injuries were caused by it, the owner was liable for sailing with an “unseaworthy” vessel irrespective of negligence or knowledge of the condition of the vessel prior to her sailing. The H. A. Sandrett, 2 Cir.,
In deciding this appeal, we do not have to determine the question whether the plaintiff was required to elect whether to claim damages because of the unseaworthiness of the defendant’s vessel or becаuse of the negligence of the officers and crew. He in fact attempted to prove his claim on both theories, and, having been allowed two strings to his bow, he can hardly complain if he failed to recover on either. We rest our disposition of the appeal solely upon the ground that because of confusion or ambiguity in the charge the jury may have been led to suppose that liability for unseaworthinéss w as dependent on whether the owner ought to have known of the defeсtive door at the time the ship sailed. In other words, the jury might have believed that even if the ship sailed with a sprung door the owner would not be liable unless he ought to have known of the defect.
The question whether the plaintiff must elect whether to claim damages under the Jones Act for negligence, or under maritime law for unseaworthiness bеfore submitting his claims to a jury may perhaps be raised on a new trial because of certain dicta in our decisions in Skolar v. Lehigh Valley R. Co.,
Judgment reversed and cause remanded with direction to proceed in accordance with the views expressed in this opinion.
Notes
. “In all merchant vessels of the United States of more than one hundred tons gross, * * * the licensed officers and sailors, coal passers, firemen, oilers, and water tenders shall, while at sea, be divided into at least three watches, which shall be kept on duty successively for the performance of ordinary work incident to the sailing and management of the. vessel * * *. The seamen shall not be shipped to work alternately in the fireroom and on deck, nor shall thosе shipped for deck duty be required to work in the fireroom, or vice versa; nor shall any licensed officer or seaman in tbe deck or engine department bo required to work more tban eight hours in one day; but these provisions shall not limit either the authority of the master or other officer or the obedience of the seamen when in the judgment of the master or other officer the whole or any part of the crew are needed for maneuvering, shifting berth, mooring, or unmooring, the vessel or the performance of work necessary for the safety of the vessel, her passengers, crew, and cargo * *
. McCarthy v. American Eastern Corporation, 3 Cir.,