McKIE v. DIAMOND MARINE CO.
No. 14118.
United States Court of Appeals Fifth Circuit.
May 6, 1953.
Rehearing Denied June 2, 1953.
204 F.2d 132
The judgment is reversed and the cause remanded with instruction to enter judgment for the plaintiff pursuant to the stipulation of the parties.
BRATTON, Circuit Judge (dissenting).
Plaintiff never became committed to purchase the wool unless the commitment was made in the course of the verbal discussion which preceded the filling out of the so-called wool purchase contract and the signing of it by the defendant. And unless plaintiff did make such commitment there was a complete lack of mutuality of contrаct. Therefore, the crucial question in the case was whether in the course of the verbal discussion a firm commitment was made on the part of plaintiff to purchase the wool. Three witnesses testified in respect to that question. They were G. A. Hanson, vice president and a director of plaintiff, Williаm A. Kelley, a representative of plaintiff in the purchase of wool in Colorado, and the defendant. Hanson and Kelly each testified to statements by Hanson in the verbal discussion which if made constituted a firm commitment of purchase. But the defendant testified in minute detail concerning the discussion and his testimony disclosed that no statement was made which constituted a firm commitment of purchase. He further testified that he signed the so-called wool purchase contract; that he thought Hanson signed it for plaintiff as purchaser; that he learned later that Hanson had merely signed it as a witness to the signature of defendant; that he did not “anticipate” making an oral contract; and that he thought it was a written contract.
The learned trial court of long experience found that in the discussion “no firm commitment was made on behalf of plaintiff to purchase defendant‘s 1951 wool clip.” It is my view that this critical and dispositive finding of fact is supported by substantial evidence; and that it is not clearly erroneous, due regard being had for the opportunity of the court to observe the witnesses while testifying, to appraise their credibility, and to weigh their testimony. Accordingly, I would affirm the judgment.
Arthur J. Mandell and Mandell & Wright, Houston, Tex., for appellant.
James K. Nance and William C. Harvin, Houston, Tex. (Baker, Bоtts, Andrews & Parish, Houston, Tex., of counsel), for appellee.
Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.
The plaintiff, Roy Vernon McKie, instituted this action to recover under the Jones Act,
After the plaintiff had presented his case to the jury the defеndant moved for an instructed verdict and to dismiss on the ground that there was no jurisdiction in the court. In its motion to dismiss the defendant contended that there was either no evidence, or insufficient evidence, (1) that the dredge on which plaintiff was working at the time of his injury was engaged or employed on navigable waters of the United States; (2) that the dredge was engaged in navigation, in aid of navigation, or in maritime commerce; (3) that the plaintiff was a seaman or a member of the crew of the vessel. Further, and as additional grounds for dismissal, that the undisputed evidence showed as a matter of law that Tabbs Bay was non-navigable and that plaintiff‘s remedy was therefore exclusively within and under the
The trial court in a published opinion1 concluded that the motion was well taken and should be in all things sustained and that the suit should be dismissed for want of jurisdiction but without prejudice to plaintiff‘s right to pursue his remedy under the
The Jones Act,
The court below held that the dredge upon which appellant was working when injured was not engaged in navigation, but in dredging under а contract with an oil producing company to dredge, not in aid of navigation generally but a channel
The court below further found as a fact that the dredge was cutting a new channel and having so found, and in keeping with the decisions of this court, concluded that work of this local character was not so related to navigation as to bring employees while engaged in it under admiralty jurisdiction, but that the statе workmen‘s compensation act provided the exclusive remedy. Fuentes v. Gulf Coast Dredging Co., 5 Cir., 54 F.2d 69; United Dredging Co. v. Lindberg, 5 Cir., 18 F.2d 453; see Kibadeaux v. Standard Dredging Co., 5 Cir., 81 F.2d 670, 672.
Clifford T. Wheeler, a witness for the appellant, testified that a channel had previously existed at the location where the dredge was working on the fatal day; that the old channel had been dug with a dragline; thаt its usefulness had been impaired by a hurricane in the year 1949 which demolished wooden oil derricks in that area and partially clogged the channel; but that the channel remained sufficient to accommodate work barges except during low tide. He further stated that in order to make the channel available at all times for heavy equipment it was necessary to remove the timbers and deepen the waterway to six feet at mean low tide and in doing so a barge with a dragline mounted thereon was moored alongside the L.D. No. 1 to clear away the wooden debris so that the cutter head of the drеdge could operate. The appellant testified that the dredge drew three feet of water; that vessels of like draft could be navigated anywhere in Tabbs Bay without staying in any of the numerous channels that crisscross this body of water; and that the work that the dredge was doing was to enable tow boats and bаrges to reach the wells under all tidal conditions and to create a perfectly level bottom at the required depth so that loaded mud barges could be emptied at the wells. The evidence which we have related, without more, would seem to be a complete answer to the holding that it was, “certain” that the dredge was not cleaning out a channel, but was cutting a new one.
We now turn to the question of whether the appellant is a seaman within the meaning of the Jones Act. The Jones Act concept of “seaman” since the passage of the Longshoremen‘s and Harbor Workers’ Compensation Act,3 has been narrowed to the point where it includes only one who is a member of the crew of
Appellant was employed in January, 1949, as a deck-hand on the dredge and some three weeks thereafter became a leverman on the same vessel. He was working there in the latter capacity at the time of his injury, February 15, 1950, and his assigned duties included operating the dredge machinery, tending lines, and maneuvering the vessel by means of her spuds and anchors in order to accomplish the work she was doing. Appellant was further required to operate the dredge tender, a twenty-five foot motor vessel which he used to tow the dredge to various lоcations in and out of Tabbs Bay, to transfer dredge crews to and from the shore, and to handle the dredge‘s pipe line. Appellant and all other employees on the dredge lived, ate and slept ashore as the dredge had no sleeping quarters or facilities for feeding personnel. Appellant worked a regular eight-hour shift and was usually on board the dredge only during his shift. He was paid an hourly wage and signed no shipping articles, though he had for many years followed the sea and held a tankerman‘s license.
From these facts, it is apparent that each side has supporting evidence for the cоnclusion it urges. The fact that the appellant slept at home and boarded ashore, although not conclusive of his status, points to a finding that he was not a member of the crew. The dredge had no motive power, was not a wide traveler, and when moved any distance was towed by a tug. Yet appellant worked at whatever travel there was by this vessel. He had that more or less permanent attachment to the vessel which commonly characterizes a crew, and, in common with the whole ship‘s company, was aiding in navigation whether or not he was required to “hand, reef and steer.” Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 751, 88 L.Ed. 931. In Kibadeaux v. Standard Dredging Co., supra, the injured person was not an articled seaman, and was mainly doing the work of a laborer, but by reason of his permanent employment and duties aboard a similar dredge we held him a seaman entitled to sue under the Jones Act. Whether or not the same conclusion eventually is to be reached herе, we are of opinion that the question was not one of law for the court to decide but was one of fact for the jury since there was evidence on which a jury could reasonably find that the plaintiff was a crew member under the Jones Act. Gahagan Const. Corporation v. Armao, 1 Cir., 165 F.2d 301; Schantz v. American Dredging Co., 3 Cir., 138 F.2d 534; and Carumbo v. Cape Cod S. S. Co., supra. Whatever may be the ultimate finding upon this question, the issue is not onе of “jurisdictional fact.” Schantz v. American Dredging Co., supra; Hagens v. United Fruit Co., 2 Cir., 135 F.2d 842.
The other error assigned relates to the admissibility of evidence and is without merit.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
HUTCHESON, Chief Judge (dissenting).
I have little fault to find with the legal principles announced in the majority opinion and as little to find with its statement of the facts as opposed to the conclusions it draws from them.
I find myself, though, for the reasons hereafter briefly stated, unable to agree with its conclusion that there were disputed issues of fact and that the judgment should be reversed to permit of their determination on a trial.
It seems quite clear to mе: that the record presented no disputed issues of fact and no basis for drawing more than an inference therefrom. It seems equally clear that the district judge was right, therefore, in concluding as matter of law that plaintiff was not a seaman and that he “had
I am further of the opinion that if the conclusion demanded by the evidence is that plaintiff was a seaman, and that the accident did occur on navigable waters, plaintiff could still not recover in the action because he was not “a master or member of a crew of any vessel“, and the Longshoremen‘s and Harbor Workers’ Act,
Since under either of these theories the judgment dismissing the action should be affirmed, I dissent from its reversal.
Rehearing Denied; HUTCHESON, Chief Judge, dissenting.
Notes
“As we declared in Eppich v. Clifford, 6 Colo. 493, the memorandum to comply with the statute, ‘must show on its face, or by reference to other writings, first, the names of the parties, vendor and vendee; second, thе terms and conditions of the contract; third, the interest or property affected; and fourth, the consideration to be paid therefor,’ and further, ‘If the names and intention of the contracting parties can be determined with reasonable certainty from the language of the instrument, and a valid contrаct is thereby disclosed, specific performance may be decreed thereon.’ The memorandum in the Eppich case is strikingly similar to that in the case at bar, and it was there held that the agreement to purchase, and names of the parties were sufficiently shown. Here, the words ‘received * * * one Dollar and other valuable consideration for my entire interest’ import obligation to sell, and the words, ‘purchase price balance of $7000 to be paid,’ import obligation to purchase.”