Christian F. Braen v. Pfeifer Oil Transportation Company, Inc.
263 F.2d 147
2d Cir.
1959
Check Treatment

*1 MOORE, Before SWAN and Circuit Judges, KAUFMAN, Judge. District Judge. SWAN, Circuit

This is action in which plaintiff recovered after a principal question presented trial. is whether at the time of a his accident “seaman” in- *2 148 jured carpentry course of Plaintiff collected tools to be meaning by within the of the Jones used pro- him on the raft and then provides pertinent part:

which along ceeded the “catwalk” on the side boarding preparatory of the Winisook per- “Any seaman suffer who shall commencing the raft and work on it. injuries sonal doing While so he fell from the Winisook election, may, raft, sustaining injuries for damages at maintain for an action which he sued. law, right of trial * * *» plaintiff’s At the close of case defend- ant moved to Deci- dismiss the action. appellant The contends sion on De- was reserved. the time of his fendant’s motion for Longshoremen’s directed verdict Harbor Workers’ and at the et close of denied. 901 the entire case was Compensation remedy A motion for n. o. v. was also provides seq., his exclusive argues denied. On its defendant (1) as a matter of law ap- on employed mate as Plaintiff not entitled to maintain suit pellant’s On Pfeifer No. 2. Act; (2) that even if the evidence injury, day prior which occurred to his gives rise ato fact issue as to January 22, 1953, 2 came Pfeifer on suit, trial yard repair at West defendant’s proper- failed to instruct the repairs Island, Brighton, Staten ly, denying and erred in defendant’s re- yard cargo repair defend- pump. At the quests charge; (3) error was lighter, known ant a covered maintained denying committed in motion Winisook, was used as as plaintiff’s testimony to strike thing barge. side was con- Its inshore work causing gave way runway, by plank the dock nected with him fall. dock the Winisook between employed in mak- which was was a raft established law deter repairs mination but as to kinds of whether a maritime em certain ployee, may generally be used and was who intended to classified cargo pump seaman, may repairing indemnity recover injuries No. was under 2. When Jones Act or is limited yard out- repair compensation moored to the in a she was federal court to On the shore Winisook. side and Harbor Work morning Compensation depends worked ers’ of the accident dismantling for about an hour aboard cargo injuries pump. He was then ordered are sustained.2 vice-president in Act restricts carpen- work benefits of Jones Act to “members try mentioned raft.1 above a crew of a work vessel.” Marra Swanson v. said, ‘Well, you on direct examination 1. Plaintiff testified “He I would like to fin- putting top planks follows: ish deck of on this you Now, here, after dismantled raft “Q. over so can that we use pump, protection job that was over the Get this done.’ you “Well, su- orders from one of receive that was it.” something? periors do A. I did. you Nogueira York, And who did receive orders “Q. v. New N. H. & H. R. Edward A. Mr. Smith. from? U.S. 50 S.Ct. you 754; Desper us what And will tell orders “Q. v. Starved Rock Fer- busy ry 187, 190, had received? A. 72 S.Ct. hour, approximately 205; Pennsylvania and Mr. 96 L.Ed. R. Co. v. O’Rourke, 334, 340, too determined much Smith job, help said, the one ‘Mr. 97 L.Ed. Senko v. La Crosse formerly carpenter,' Braen, 370, 371, were said, ‘Yes.’ 1 L.Ed.2d 404. sented, might L. us the case Bros., he returned therefore, pass upon recover, contention To Ed. given jury.4 appellee to be a as to present *3 2, is term as that Therefore we shall consider them. We of Pfeifer crew the charge Act, the at are convinced that the in subject La inadequate. injury. v. was The court See Senko of his 371, charged: 370, Dredging 352 U.S. Crosse that 404. In 1 L.Ed.2d S.Ct. “While to it seemed at outset aside was set verdict a for Senko case question be some as to whether or ground the evidence that crew, not he was of a member finding support insufficient was to seriously it does not seem to be This crew. of a he ivas a member that puted that the time of the acci- reversed, majority of a turn was in dent he was member the crew. a holding was there Supreme that “Whether or not of the at the time jury’s evidentiary for the basis engaged accident he in func- was holding finding. cited In so normally performed tions which are Chicago v. Bass- Dock Co. &Coal South crew, a member he of the and as 257, ett, 251, stated, gave de- he functions in 732, proposition that L.Ed. ‘ tail, perform that various employee mem- “a or not an is “whether prior functions to the date of the questions a turns on ber of crew” accident, are determine.” finding ques- fact,’ that, on the a if support it, Following find- exception tion has evidence to charge, ing supplemen- are well aware is conclusive.” court stated upset charge: jury to be is not tal that any court, evi- appellate if there just “I one want to make amend- un- we do not dence to But my you, ment to ladies statement evi- that, such is no when there derstand gentlemen. upset may dence, appellate not “I did state it is not that serious- bar case the verdict.3 ly disputed that plaintiff’s testi- no contradiction of Apparently, a member of the crew. mony as to the according to the defendant’s state- perform been ordered to says ment, he is a is- that serious hap- accident when the about sue. contain, in pened. the record Nor does susceptible any opinion, I will leave as an our “So issue.” Consequently contrary we inferences. only This added confusion further believe that charge original give failed to the Jones determining test for whether in the course he was not since applicable plain the Jones seaman or exceptions tiff. Defendant’s 2, crew of Pfeifer charge justified. were well The court direct- motion for a requests refused to submit four granted. should have been ed embody a correct state wrong applicable However, should ment we and should pre- thinking given, have been least that no substance.5 jury’s Warner, “was v. Norton made 3. See specific objected dissent S.Ct. case, opinions Senko here.” 417-420, 374-379, and in Grimes requests 5. Defendant’s read as follows: “1. The mere fact 2 L.Ed. 737. had been a seaman and member of the page case, prior 352 U.S. at crew In the page the court noted no conten- We see merit CO.,Inc., CEE-BEE CHEMICAL a cor- testimony tion poration, Appellant, thing “gave way” caus- ing him fall stricken. should have been CHEMICALS,Inc., corporation, DELCO part For in the first the reasons stated Appellee. of our discussion we think No. 15893. have for granted. directed verdict should Accordingly United States Court of dismiss reversed with directions to Ninth Circuit. *4 complaint. Dec. Rehearing Denied Feb. Judge (dissent- KAUFMAN, District ing). agree majority fully toas insufficiency court’s lower

the charge respect plaintiff’s status with injured. On that the time he was ground, I remand. would reverse and However, majority gone further has complaint directed a dismissal of regretfully point I and on this must sent. effect, as matter In finds plaintiff course As ma-

seaman or crew member. jority concedes factual properly as such is left disturbed if will not be whose there is evidence to my opinion reasonably to enable a in this case plaintiff seaman in find the time injured. See Grimes Co., 1958, 737; Butler v. L.Ed.2d Whiteman, 1958, 356 U.S. L.Ed.2d LaCrosse 1957, 352 U.S. 77 S. 415, 1 L.Ed.2d 404. Ct. and remand therefore reverse I would a new trial. injury “4. The Mm to main- evidence shows does entitle employer. plaintiff injury tMs action Ms sustained his he was tain completing in furtherance is the nature and character work of “2. laying of a the work deck on a raft. Unless injury being the time his was sus- find that this work was done which determines whether he has as a member of the crew of tained expressly pur- law suit. the Pfeifer $-2 pose furthering If find that the work which “3. of the Pfei- performing at fer order to enable it to continue navigation, your in con- sustained his must be the navi- with the furtherance of nection the defendant.” gation the Pfeifer #2, be for the defendant. must