321 Mass. 528 | Mass. | 1947
On July 1, 1944, the plaintiff, a fisherman by trade but not at that time employed, was hired by the master of a fishing vessel owned by the defendant Linquata to “ice up” the vessel with crushed ice to be supplied by the defendant Cape Pond Ice Company at its wharf in Gloucester. On that same day the plaintiff, while upon the vessel, which was in navigable water at the wharf, and, while using an iron chute owned by the defendant Cape Pond Ice Company to convey the ice into the hold of the vessel, was injured, as he contends, by a defect in the chute.
The declaration is in four counts. Count 1 is against the defendant Cape Pond Ice Company alone. This count alleges that that defendant furnished the chute, and that the chute was in a dangerous and defective condition and was unsuitable for the safe and proper performance of the work. Both parties involved in this count treat it as a count for negligence causing injury, and no question of pleading in reference to it has been raised. Counts 2, 3, and 4 are each against the defendant Linquata alone. Count 2 alleges the employment of the plaintiff by that defendant as a seaman, the duty to. supply suitable and safe appliances, and negligence of the defendant causing injury. This count expressly states that it is under the Jones act, U. S. C. (1940 ed.) Title 46, § 688, which in its present form was originally enacted by § 33 of the merchant marine act of 1920, 41 U. S.
There was a verdict for the plaintiff on each count. The only exceptions before us are those of the respective defendants taken to the refusal of the judge to order a verdict for each defendant upon each count. We consider only the questions whether it was right to submit each of the counts to the jury.
There was evidence of the tenor following. The crushed ice flowed by gravity from an aperture in the side of a building on the wharf through an enclosed tubular chute to the vessel. From the lower end of the enclosed chute one or more open chutes resembling those used in delivering coal were so placed that the ice would flow to the desired parts of the vessel. The plaintiff was handling the last chute so as to direct the final flow of the ice. He put this chute into the main hatchway lengthwise of the vessel, so that the lower end of the chute was resting in the hold and the upper end extended out five or six inches beyond the coamings on the forward part of the main hatchway near where the plaintiff stood. This chute had been lying on the deck alongside the hatchway. The master had told the plaintiff that this was a chute to put in the hatchway. When the plaintiff had got “so much” ice in he “had to pull the chute toward him” and to arrange the lower end a little higher so that the ice would flow farther into the hold. At the upper end of the chute there was an iron bar or bail attached to a pivot at each side of the chute in such a manner that the bar would swing around over the end of the chute as the bail of a pail swings over the top of the pail, except that,, instead of extending around the end of the chute in a semi
From a reading of the record and an examination of photographs of a chute which was conceded to be generally similar to the chute in question we find it difficult to believe that the accident happened by the closing of a clamp as the plaintiff contends it did. The plaintiff’s testimony contains inconsistencies and was more or less shaken on cross-examination. It seems to us more probable that the plaintiff’s fingers were caught between the bar and an angle iron which appears to have been bolted or riveted transversely under the bottom of the chute and across its entire width at its upper end in order that the chute might be prevented from slipping from the cap log of the wharf or from the coamings of a hatchway. It would seem possible that the plaintiff’s fingers might be caught in this way if there was insufficient clearance between the bar or bail, as it came around the end of the chute, and the longitudinal half of the angle iron next to the bottom of the chute. However that may be, there was abundant evidence that the plaintiff’s fingers were
1. There was no error in denying the motion for a directed verdict for the defendant Cape Pond Ice Company on count 1. Doubtless the tort was a maritime tort, since the cause of action arose on navigable water. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52. Southern Pacific Co. v. Jensen, 244 U. S. 205, 217. Washington v. W. C. Dawson & Co. 264 U. S. 219, 224. Northern Coal & Dock Co. v. Strand, 278 U. S. 142, 144. Nogueira v. New York, New Haven & Hartford Railroad, 281 U. S. 128. Parker v. Motor Boat Sales, Inc. 314 U. S. 244, 246-247. Wolf’s Case, 285 Mass. 181. Lauzon’s Case, 302 Mass. 294, 295. Moreover, the plaintiff’s employment was directly related to the use of the vessel upon the sea. The plaintiff’s rights are therefore governed by the applicable maritime law and not by State law. Chelentis v. Luckenbach Steamship Co. Inc. 247 U. S. 372, 384. Knickerbocker Ice Co. v. Stewart, 253
Contributory negligence has not been argued, and in any event no question relating to the maritime rule of comparative negligence would arise on a motion for a directed ver-
2. There was, we think, no error in refusing to order a verdict for the defendant Linquata on count 2 under the Jones act. This statute, now IX. S. C. (1940 ed.) Title 46, § 688, provides, so far as here material, that “Any seaman who shall suffer personal injury in the course of his employment may, at his election, 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.” The plaintiff suffered personal injury in the course of his employment by the defendant Linquata. In icing the vessel he was a harbor worker. His work was analogous to that of a longshoreman or stevedore. He was therefore a “seaman” within the broad definition of that word as employed in the Jones act. International Stevedoring Co. v. Haverty, 272 U. S. 50. Uravic v. F. Jarka Co. Inc. 282 U. S. 234, 238. South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251, 257. O’Donnell v. Great Lakes Dredge & Dock Co. 318 U. S. 36, 39. Swanson v. Marra Brothers, Inc. 328 U. S. 1, 3. Silva v. Gorton Pew Fisheries Co. Ltd. 303 Mass. 531, 534. The basis of liability under the Jones act is negligence, since by the express terms of that act the action is “at law,” with common law rights and remedies modified as in the Federal employers’ liability act applicable to railways. And as already shown there was evidence of negligence of the defendant Linquata.
But this defendant argues that the provisions of the Jones act, so far as they relate to this plaintiff, are now superseded by the provisions of the longshoremen’s and harbor workers’ compensation act, U. S. C. (1940 ed.) Title 33, §§ 901-950. Although the plaintiff was for some purposes a seaman, he was not a member of the crew of the vessel, and so was not excluded from the benefits of the latter act by § 903 (a) (1). South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251, 259-260. See Silva v. Gorton Pew Fisheries Co. Ltd. 303 Mass. 531, 534. But by § 905 the exclusive character of the remedy by compensation under the act is subject to the ex
We pay no attention to the bald statement in the plaintiff’s brief that the defendant Linquata was “not insured” under the act, just as we pay no attention to several purported extracts from the evidence quoted by that defendant in his brief which are also not included in the record. There is nothing in the record to show whether or not Linquata had secured payment of compensation as required by the act. We incline to the view that a defendant against whom an action is brought in the ordinary manner under general provisions of law, if he would contend that those provisions do not apply to him because of a compensation act which governs only if he has taken necessary steps to bring himself within its protection, has the burden of showing in some appropriate form that he has taken those steps, or at least must make it appear that he has in some proper manner seasonably insisted in the court below upon his exemp-
3. We think that there was error in denying the defendant's motion for a directed verdict on count 3 for maintenance, care, and cure. In the maritime law liability for maintenance and cure, as it is commonly called, arises both historically and rationally out of the peculiar situation of a sailor on a vessel. It extends beyond accidents connected with the employment and includes injuries and sickness having no relation to any fault of the employer or any deficiency of the vessel. Calmar Steamship Corp. v. Taylor, 303 U. S. 525. It rests upon the dependency of a seaman on his ship and upon the fact that if there were no such liability he might find himself ill and helpless far from home. The grounds of this liability were fully set forth by Mr. Justice Story in the leading case of Harden v. Gordon, 2 Mason, 541, and were again discussed in the recent case of Aguilar v.
4. Count 4 remains to be considered. This count simply alleges negligence of the defendant Linquata and consequent injury to the plaintiff. The plaintiff calls it a common law count. It is stated to be for the same cause of action as count 2 under the Jones act, which is also for the negligence of Linquata. Since, as shown above, the tort was a maritime tort governed by maritime law, we are unable to see how any strictly common law right of recovery could exist, although it must be admitted that before comparatively recent decisions of the Supreme Court of the United States hereinbefore cited many cases had been decided in State courts as if the common law of the States applied of its own force. See discussion in all opinions in Southern Pacific Co. v. Jensen, 244 U. S. 205. It would be fruitless to inquire in this case whether by analogy to the common law or otherwise there exists in the maritime law, apart from the Jones act, some theory under which a harbor worker on a vessel, not a member of the crew, who is injured on board the vessel of his employer by negligence of the employer in respect to some appliance not a regular part of the vessel’s equipment can recover compensatory damages (see, however, The Osceola, 189 U. S. 158, 175; Chelentis v. Luckenbach Steam
-The result of this discussion is that the exceptions of the defendant Cape Pond Ice Company are overruled, the exceptions of the defendant Linquata are sustained, because of error in submitting count 3 to the jury, and judgment is to be entered for the plaintiff against the defendant Cape Pond Ice Company on count 1, and against the defendant Linquata on count 2. Of course the plaintiff cannot actually collect double damages.
So ordered.