176 F.2d 337 | 2d Cir. | 1949
The judgment in favor of the plaintiff was affirmed in Casey v. American Export Lines, 2 Cir., 173 F.2d 324 but we directed that our mandate be withheld until the Supreme Court should decide the case of McAllister v. Cosmopolitan Shipping Company, 2 Cir., 169 F.2d 4, then pending on certiorari, 335 U.S. 870, 69 S.Ct. 167. The McAllister case was reversed on June 27, 1949 for the reason that a general agent under the standard form of agreement is not liable to a seaman injured by negligence of the officers or crew of a vessel owned-by the United States. 69 S.Ct. 1317. Consequently our decision of affirmance must be reversed, as must likewise the judgment of the district court.
However, we are not prepared to direct that the action be forthwith dismissed. The plaintiff argues that a cause of action under the Jones Act based on negligence of the defendant’s shore-side employees will still lie against the defendant, despite the recent reversal of the Mc-Allister case. This contention is not supportable because the defendant was not the employer of the plaintiff’s decedent. See 46 U.S.C.A. § 688. But it may be possible under the doctrine of Hurn v. Ours
Accordingly .the judgment on appeal is reversed and the cause remanded for such further proceedings as may be appropriately had.
