1. A seaman employed on a ship owned by the United States and
operated for the War Shipping Administration by a private company
"as its agent and not as an independent contractor" under the
standard form of General Agent Service Agreement was injured a few
days before the effective date of the Clarification Act of March
24, 1943, due to the negligent operation of the ship.
Held: he is entitled to sue the operating company for
damages in a state court and to have a jury trial under § 33 of the
Merchant Marine Act of 1920 (the Jones Act), even if he was
technically an employee of the United States. Pp.
328 U. S.
715-734.
2. The purpose of the Suits in Admiralty Act was to expand, not
to restrict, the rights of seamen. To interpret it as intended to
displace the settled scheme of private rights of seamen during a
period of temporary governmental control of the entire merchant
marine would be to pervert its whole purpose, create numerous
uncertainties, and cause the loss of substantive rights long
enjoyed by seamen. Pp.
328 U. S.
715-723.
3. Even if the seaman was an employee of the United States, this
did not remit him exclusively to the Suits in Admiralty Act for
remedy to enforce the substantive rights given by the Jones Act or
deprive him of all remedies against the operating "agent" for such
injuries as he incurred. Pp.
328 U. S.
723-724.
4. An application of the common law rules of private agency to
defeat the Jones Act cannot be justified in this temporary
situation, since neither Congress nor the President intended to
take away the normally applicable rights and remedies of seamen
when the maritime industry was transferred temporarily to
governmental control for the duration of the war emergency. Pp.
328 U. S.
724-725,
328 U. S.
730-731.
5. Nothing in the Jones Act, the Suits in Admiralty Act, the War
Powers Act of 1941, or the Executive Orders by which the maritime
industry was transferred to governmental control compels a contrary
conclusion. P.
328 U. S.
725.
Page 328 U. S. 708
6. That the wartime transfer of the merchant marine from private
to government control was not intended to deprive the seaman of his
right to sue under the Jones Act is confirmed by the Clarification
Act. One primary occasion for the passage of the Clarification Act
was to save the seaman's rights, rather than to take them away. Pp.
328 U. S.
725-734.
7. In its retroactively operating provisions, here applicable,
the Clarification Act gives the seaman an election between
enforcing his rights in the usual manner and asserting them against
the United States under the Suits in Admiralty Act. It would
nullify this election to hold that the seaman's only remedy for
injuries incurred before the Clarification Act became effective was
under the Suits in Admiralty Act. Pp.
328 U. S.
729-730.
8. The mere fact that the standard form of General Agent Service
Agreement was changed so as to omit the provision for the operating
agent to man the ship did not deprive seamen of the long
established scheme of rights and remedies provided by law, or
reduce them to the single mode of enforcement under the Suits in
Admiralty procedure. Pp.
328 U. S.
730-731.
176 Ore. 662, 158 P.2d 275, reversed.
A seaman injured aboard a ship owned by the United States
brought suit and obtained a judgment for damages in an Oregon court
under § 33 of the Merchant Marine Act of 1920 (the Jones Act)
against a steamship company which was operating the ship for the
Government under the standard form of General Agent Service
Agreement with the War Shipping Administration. The Supreme Court
of Oregon reversed. 176 Ore. 662, 158 P.2d 275. This Court granted
certiorari. 327 U.S. 771.
Reversed, p.
328 U. S.
734.
Page 328 U. S. 709
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
This case arises by virtue of the fact that, during most of the
Second World War, substantially our entire merchant marine became
part of a single vast shipping pool, said to have been the largest
in history, [
Footnote 1]
operated and controlled by the United States through the War
Shipping Administration. [
Footnote
2] So huge an enterprise necessarily comprehended many
intricate and complex readjustments from normal peacetime shipping
arrangements. These
Page 328 U. S. 710
were executed largely through broad powers conferred upon the
Administration. [
Footnote
3]
Eventually almost every vessel not immediately belonging to
naval and other armed forces came under the Administration's
authority. Otherwise than by direct construction and ownership,
this was accomplished by transfer from private shipping interests
to the Administration, pursuant to requisition or other
arrangement.
Inevitably the industry's transfer from private to public
control was achieved to a very great extent by making use not only
of private property, but also of private shipping men, both in
management and for labor. [
Footnote
4] This too
Page 328 U. S. 711
was brought about in various ways, but chiefly two for presently
pertinent purposes. One was by time-chartering of privately owned
vessels with crew, in which case the men remained the private
employees of the vessel's owner. The other was by either bareboat
charter or outright ownership by the Administration. In such
instances, as will appear, master and seamen became technically
employees of the United States. [
Footnote 5]
The difference is important for the issues and the decision in
this case. They concern the broad question whether seamen employed
in the latter capacity, as members of the United States Merchant
Marine, [
Footnote 6] lost
during the period of such service prior to March 24, 1943,
[
Footnote 7] some of the
American seamen's ordinary and usual protections in respect to
personal injury or death incurred in the course of employment, or
retained those rights. Specifically, in this case, the question is
whether petitioner Hust retained the seaman's usual right to jury
trial in a suit against the respondent, pursuant to the provisions
of the Jones Act, [
Footnote 8]
for personal injuries incurred in the course of his employment as a
seaman on the S.S.
Mark Hanna.
Page 328 U. S. 712
This was a Government-owned Liberty ship operated under a
so-called General Agent Service Agreement between respondent and
the Administration.
The
Mark Hanna had been torpedoed in the Atlantic Ocean
on March 9, 1943. Early on the morning of the 17th, the day of
Hust's injury, the vessel was being towed to port. He was ordered
to go to the ship's locker in the forepeak of the second deck and
bring out a mooring line to be used in towing. The electric bulb
lighting the locker room had burned out, and the room was dark.
While crossing it to get the line, Hust fell through an unguarded
hatch about twelve feet to the third deck. In landing, he struck a
steel manhole cover projecting some six inches above the deck and
incurred the injuries for which this suit was brought on September
24, 1943, in the Circuit Court for the County of Multnomah,
Oregon.
The complaint alleged that Hust was respondent's employee, was
injured through its negligence, and that the suit was brought
pursuant to § 33 of the Merchant Marine Act of 1920. Trial before a
jury brought a verdict and judgment for Hust. On appeal to the
Supreme Court of Oregon, the judgment was reversed and an order was
entered for the cause to be remanded, with directions to enter
judgment for the respondent notwithstanding the verdict. The
Supreme Court held that, as a matter of law, [
Footnote 9] petitioner was an employee of the
United States, not of respondent, and therefore he was not entitled
to
Page 328 U. S. 713
recover from it under the Jones Act for the injuries alleged and
proved. 176 Or. 662, 158 P.2d 275. The importance of the question
for the administration of the Act in application to persons
situated similarly to the petitioner caused us to grant certiorari
in order to review this ruling. 327 U.S. 771.
The Supreme Court of Oregon considered that the controlling
question was whether Hust was respondent's employee when the
injuries were incurred, and that "it must be assumed . . . that the
case is governed by the rule of the common law" to determine this
question, and thus the outcome of the case. Accordingly, it
examined with great care the arrangements which had been made
between respondent and the Government for operation of the
Mark
Hanna, with special reference to the provisions of the General
Service Agreement [
Footnote
10] to which the Administration and respondent were parties.
From this examination, the court concluded that respondent was an
agent of the Administration for only limited purposes, not
including control, authority, or principalship of the master and
crew or responsibility for negligent occurrences taking place at
sea and not attributable to the manner of discharging any duty of
respondent while the
Page 328 U. S. 714
vessel was in port. [
Footnote
11] Hence, applying the common law "control" test, [
Footnote 12] the court came to its
conclusion that Hust was not respondent's employee as that relation
is contemplated in the Jones Act. The court also found that the
so-called Clarification Act [
Footnote 13] in no way gave support to his view that he
could recover from respondent under the Jones Act. [
Footnote 14]
It is around these questions and the effect for determining them
of various authorities, particularly
Brady v. Roosevelt S.S.
Co., 317 U. S. 575,
that the controversy has revolved in the state courts and here. In
connection with the bearing of the Clarification Act, it is of some
importance to note that Hust's injuries were sustained
Page 328 U. S. 715
only a few days before that Act became effective on March 24,
1943, and that it contained features relating to injuries like
Hust's incurred between that date and October 1, 1941, retroactive
in character. [
Footnote 15]
It is, in part, concerning those features that argument has been
most intense.
I
At the outset, it is important to state just what the decision
may mean in consequences for injured seaman and their dependents,
as well as for the Government.
The Jones Act was the culmination of a long struggle by seamen
to secure more adequate relief in case of injury or death, incurred
in the course of employment, than had been afforded by preexisting
law. [
Footnote 16] We do not
stop to review that history. But the history of the Jones Act since
its enactment has been distinctive in that, at all subsequent
times, seaman have opposed substituting for its provisions other
forms of relief which have been tendered as being more in accord
with modern trends of legislation for these matters. [
Footnote 17] Wisely or unwisely,
they have steadfastly preferred the traditional remedy of jury
trial for negligence to workmen's compensation based on liability
without fault. By 1942, when the Government took over the merchant
marine, that remedy had become a thoroughly established incident of
the seaman's contract of employment, as much so as the historic
relief afforded by the general maritime law for maintenance and
cure
Page 328 U. S. 716
or maritime tort. [
Footnote
18] It was one which attached to every seaman's contract.
Moreover, by § 1 of the Suits in Admiralty Act, like the Jones
Act enacted in 1920, 41 Stat. 525, 46 U.S.C. § 741, arrest and
seizure under judicial process were forbidden of vessels owned by
the United States or a governmental corporation "or operated by or
for the United States or such corporation;" and by § 2, in place of
that right of seizure, "a libel
in personam may be brought
against the United States or against any [governmental]
corporation" in cases where, "if such vessel were privately owned
or operated . . . , a proceeding in admiralty could be
maintained."
By the decision in
Johnson v. Fleet Corp., 280 U.
S. 320, it was held that the remedies given by the Suits
in Admiralty Act "are exclusive in all cases where a libel might be
filed under it" -- that is, on "maritime causes of action covered
by the act."
Id. at
280 U. S. 327.
The
Johnson ruling was made broadly to cover maritime
causes of action which could be asserted in admiralty against the
United States or governmental corporations, and also against
private operators for the Government. [
Footnote 19]
Fleet Corp. v. Lustgarten,
280 U. S. 320, a
companion
Page 328 U. S. 717
case. But, in
Brady v. Roosevelt S.S. Co., supra, the
Johnson (Lustgarten) ruling was modified, in accordance
with the obvious scope and purpose of the Act, to restrict the
exclusiveness of the statutory remedy provided to causes asserted
against the Government or governmental corporations. The Act, it
was held, in effect, did not affect or exclude the seaman's rights,
in admiralty or otherwise, against the private operator. It merely
substituted one remedy against the Government for what was, in
substance though not technically, another against it -- that is,
the libel
in personam provided by § 2 for the libel
in
rem taken away by § 1. [
Footnote 20]
Prior to 1942, therefore, the privately employed seaman had not
only his remedy under the Jones Act, but also his rights under the
general maritime law enforceable in admiralty or by various forms
of proceedings elsewhere. But even more favorably situated, under
the
Brady ruling, was the seaman employed on vessels owned
by the United States and operated for it by private companies under
arrangements with the Fleet Corporation or the Maritime Commission.
[
Footnote 21] He had his
exclusive remedy against the
Page 328 U. S. 718
Government or the appropriate governmental corporation, under
the Suits in Admiralty Act, for all causes of action which could be
maintained in admiralty if the vessel on which he was employed had
been privately owned or operated; and, moreover, under the
Brady ruling, he retained his rights under maritime law
against the private company operating the vessel as agent for the
Government. [
Footnote 22]
Although never specifically decided here, this was held in
Carroll v. United States, 133 F.2d 690, to include not
only general maritime rights such as the
Brady case
involved, but also recovery under the Jones Act. The
Carroll case was decided flatly on authority of the
Brady decision and the result was fully justified
Page 328 U. S. 719
both by its ruling and by the terms of the Suits in Admiralty
Act. [
Footnote 23]
Now it is argued that this favored position was altogether
inverted when the Government took over control of the entire
merchant marine under its war powers in 1942. For it is maintained,
and the Oregon Supreme Court has held, in effect, that this
transfer stripped seamen of many, if not all, of their protections,
including the remedy under the Jones Act, for the duration of the
war and six months. [
Footnote
24] True, the decision applies specifically only to Jones Act
proceedings. But it is equally applicable to all other maritime
rights and remedies dependent upon existence of the "employer
employee" relation, such as the right to maintenance and cure, etc.
Whenever, in such cases, it might be found that technically the
Government is the employer, the necessary result would be to remit
the seaman to the "exclusive" right to sue under the procedure
provided by the Suits in Admiralty Act. In short, the combined
effects of that Act and of the transfer of American shipping to
governmental control, for the temporary period of the war, would be
to confine merchant
Page 328 U. S. 720
seamen altogether to suits under the Act, except in the cases of
men employed on vessels under time charter [
Footnote 25] and possibly as to injuries
incurred by others through the general operating agent's failure to
discharge some specific duty imposed by the General Service
Agreement while the vessel is in port. [
Footnote 26] With those possible exceptions, the
various rights of seamen, enforceable by various proceedings in
admiralty and at law, in state and federal courts, are swept into
one hopper, the suit against the Government or governmental
corporation under the Suits in Admiralty Act.
Such a result quite obviously would resurrect the
Lustgarten
(Johnson) ruling to override, in practical effect, that of the
Brady decision for the duration of the war. Nor would only
the forum and the procedure to be followed be affected. For, as the
Brady opinion said of the
Lustgarten ruling, the
shorter limitations period of two years provided by the Suits in
Admiralty Act would apply, [
Footnote 27] with the undoubted effect in many cases of
barring recovery altogether. With a variety of rights established
in law and custom, the sudden shift of all relief, except in the
comparatively infrequent instances mentioned above, to the single
forum and remedy could not but bring widespread surprise and
resulting failure of substantive rights. Not only would wrong
remedies be
Page 328 U. S. 721
asserted only to discover the fact too late, as in this case and
others in relation to which briefs
amicus curiae have been
filed. [
Footnote 28] But at
least some claimants, perhaps many, relying upon the longer period
incorporated in the body of our law, would delay instituting suit
beyond the shorter one allowed by the temporary expansion of the
Suits in Admiralty Act to cover war conditions, and thus be trapped
into loss of all remedy at a time when broad relief was needed more
than ever.
There would be other uncertainties and complexities. Were
respondent's position to prevail, a seaman would be forced to
predict, before instituting his suit, whether, at the end of the
litigation, it would turn out that the cause of action alleged
should have been asserted against the Government or against the
private operator. Thus, it might often be difficult to foretell
whether the negligence alleged to have caused the injury would be
attributed ultimately, as the proof should turn out, to some act of
the master or a member of the crew, in which event only the
Government, not the operating agent, would be liable, or to some
default of that agent in discharging its specially limited but
various duties, in which case it and, at least in some instances,
not the Government, [
Footnote
29] would be responsible. The only safe course for a claimant
in doubt -- and obviously many such situations might arise -- would
be to file two suits, one a libel
in personam against the
Government, the other an appropriate proceeding against
Page 328 U. S. 722
the agent, and possibly, even so, the risk might remain that the
division of remedies would result in loss of relief altogether.
In addition, it should be mentioned that, under the practice of
the industry, seamen frequently would move back and forth between
vessels of the same owner moored side by side, from ships under
time charter to others under bareboat charter to the
Administration. With each such shift, under respondent's view of
the law, responsibility for the seaman's injuries would shift from
the agent to the Government or the other way around, with
corresponding shuttling of remedy. The confusion thus resulting was
one reason which led to adoption of the Classification Act. S.Rep.
No.62, 78th Cong., 1st Sess., 5; H.Rep. No.2572, 77th Cong., 2d
Sess., 23, quoted
infra at
note 32
These are at least some of the uncertainties and complexities
which would result from acceptance of respondent's view. It is
hardly too much to say that substantive rights would be lost in an
incalculable number of cases by the disruption such an acceptance
would bring for rights long settled. The result also would be to
throw large additional numbers into confusion which, in the end,
could only defeat many of them.
II
We may assume that Congress could authorize so vast a
disturbance to settled rights by clear and unequivocal command. It
is not permissible to find one by implication.
Brady v.
Roosevelt S.S. Co., supra, at
317 U. S. 580.
Here, the disruption, if it has occurred, has done so only as an
implied result of the conjunction of the Suits in Admiralty Act's
provisions with the Government's emergency action in taking over
the shipping industry for war purposes.
Apart from resurrecting the
Lustgarten ruling in the
face of the
Brady reversal, this result could be
reached
Page 328 U. S. 723
only by finding that Congress, or Congress and the President,
intended to bring it about by the exercise of their powers to bring
the industry under governmental control. No other legislation or
executive action remotely could be thought to have that effect.
Certainly this was not the purpose of the Suits in Admiralty
Act. As we have said, its effect was to expand, not to restrict,
the seaman's rights, as
Brady decided. Moreover, it was
not an emergency measure, adopted to promote the war effort. It was
normal peacetime legislation, fitting into a settled scheme of
private rights. There can be no inference from its terms or history
that it was intended to displace that scheme entirely or in large
part, in normal times or in the emergency of war. To give its
letter this effect, because the war brought about the temporary
transfer of the industry to governmental control, would be to
pervert its whole purpose.
We are told, however, that the Jones Act applies by its specific
terms only in the presence of the relation of employer to employee,
to give the latter a remedy for the employer's negligence, and,
since the effect of the General Service Agreement was to make the
seaman technically an employee of the United States, the necessary
result was to remit him exclusively to the Suits in Admiralty Act
for remedy to enforce the substantive right given by the Jones
Act.
The premise is not controlling. We may accept the Oregon court's
conclusion that, technically, the agreement made Hust an employee
of the United States for purposes of ultimate control in the
performance of his work, although the meticulous differences in
this respect between its terms and the corresponding provisions of
the Maritime Commission's standard contract make it hardly more
than dubious that respondent did not stand
pro
Page 328 U. S. 724
hac vice as employer with the Government. [
Footnote 30] But it does not follow
from the fact that Hust was technically the Government's employee
that he lost all remedies against the operating "agent" for such
injuries as he incurred. This case, like
Labor Board v. Hearst
Publications, 322 U. S. 111,
involves something more than mere application to the facts of the
common law test for ascertaining the vicarious responsibilities of
a private employer for tortious conduct of an employee.
Here, indeed, is the respondent's fallacy, for it assumes the
case would be controlled by the common law rules of private agency.
[
Footnote 31] It is true
these are applied in the normal
Page 328 U. S. 725
everyday applications of the Jones Act. But, in those
situations, this is done to determine who comes within, who
without, the covered class in the Act's normal operation, not to
exclude that class entirely or in large part. Here, the application
is made to defeat the Act for all except the smaller number of men
whom it was enacted to protect. No such application of the common
law "control" test can be justified in this temporary situation
unless by inversion of that wisdom which teaches that "the letter
killeth, but the spirit giveth life."
Not always does the law proceed in disregard of that truth.
There was nothing to prevent Congress or the President, acting in
exercise of their authority, from shifting the technical relation
of employer and employee from the general agent to the Government,
for purposes relevant to ultimate wartime control of marine
employees, without at the same time disrupting their normally
applicable rights and remedies. On the contrary, there was every
reason why the change should be made without that consequence. No
presumption can be indulged that any purpose existed to take away
those protections when they were needed more than ever, nor any
that so great a disruption would be made for only the emergency of
the war period. Nothing in the Jones Act, the Suits in Admiralty
Act, or in the War Powers Act of 1941 and the Executive Orders by
which the industry's transfer was accomplished compels such a
conclusion.
III
Confirmation of this is furnished by the legislative history of
the Clarification Act and by its retroactive provisions relative to
the seaman's rights, including remedies
Page 328 U. S. 726
on account of personal injury and death. Indeed, one primary
occasion for enacting the Clarification Act was to save the
seaman's rights in these respects, rather than to take them away.
[
Footnote 32]
It is true there was great concern for fear that those rights
had been lost or seriously attenuated by the transfer to
governmental control, particularly during the earlier stages of
congressional consideration when the
Brady decision had
not removed the large cloud cast over them by the
Lustgarten ruling. Nor did
Brady remove all of
the doubt in the minds of those sponsoring the bill, as
Page 328 U. S. 727
the committee reports during the later stages of consideration
disclose. [
Footnote 33]
Hence, to make certain that the seamen would have at least the
remedy provided by the Suits in Admiralty Act for enforcement of
his substantive rights, as well as to take care of other important
matters not affecting them, [
Footnote 34] the bill proceeded to enactment.
We need not determine in this case whether prospectively the
Clarification Act affected rights of the seaman against the
operating agent and others, or simply made sure that his rights
were enforceable against the Government. We make no suggestion in
that respect. For this case, on the facts, is not governed by the
statute's prospective operation. [
Footnote 35] It may be noted however that, if
Page 328 U. S. 728
respondent's contention were the law, the provisions of § 1
authorizing enforcement of the seaman's substantive rights for
injury, maintenance and cure, etc., by the Suits in Admiralty Act
remedy would do no more than reaffirm what the latter Act had
provided all along.
The Clarification Act, however, is not without important bearing
for solution of the problem this case presents. For, whatever the
effect of its prospectively operating provisions upon the seaman's
rights as against others than the Government, the bill in its final
form contained a provision designed and effective to prevent the
loss of such rights as petitioner now asserts.
Section 1 of the Act contains the following provision which is,
in terms, applicable to this case:
"Any claim, right, or cause of action of or in respect of any
such seaman accruing on or after October 1, 1941, and prior to the
date of enactment of this section may be enforced, and upon the
election of the seaman or his surviving dependent or beneficiary,
or his legal representative to do so shall be governed,
Page 328 U. S. 729
as if this section had been in effect when such claim, right, or
cause of action accrued, such election to be made in accordance
with rules and regulations prescribed by the Administrator, War
Shipping Administration. [
Footnote 36]"
One obvious purpose of this provision was to extend
retroactively to the seaman the benefit of the assured remedy
against the Government given by § 1. But equally obvious is the
intent to save such other rights as the seaman may have had, and to
give him an election between enforcing them in the usual manner and
asserting them in a suit against the United States in the manner
provided by § 1.
Page 328 U. S. 730
Uncertain in scope as the effects of the
Brady decision
were regarded to be, they were clearly recognized as holding that
the seaman had rights against private operators arising after the
transfer of governmental control. [
Footnote 37] Respondent's view of the law would nullify
the election given. For, in that view, even before the
Classification Act was adopted, the seaman's exclusive remedy for
injuries incurred after the transfer was by suit under the Suits in
Admiralty procedure. But § 1 expressly gives election between that
identical remedy, as conferred by the Clarification Act, and
preexisting remedies. It is too obvious to require statement that,
if the seaman's only remedy for injuries incurred before the
Clarification Act became effective was under the Suits in Admiralty
Act, as respondent contends, the election given by § 1 becomes no
election whatever.
It is true that Congress did not enumerate the specific rights
which it considered seamen to have prior to the Clarification Act
and after the industry's transfer to governmental control. To have
done so, in view of its own uncertainty in this respect, including
the effects of the
Brady decision, would have been
hazardous. The intent is clear, nevertheless, in the retroactive
provision to preserve all such rights and remedies as may have
remained in existence unaffected by the transfer. For the reasons
we have stated, we think these included the remedy provided by the
Jones Act, as well as the substantive right.
The mere fact that the terms of the standard agreement were
changed to omit the provision for manning the ship and substitute
the provisions relating to employees contained
Page 328 U. S. 731
in the General Service Agreement was not, in these
circumstances, enough to deprive seamen of that remedy. We do not
think either Congress or the President intended to bring about such
a result by the transfer of the industry to temporary governmental
control. If this made them technically and temporarily employees of
the United States, it did not sever altogether their relation to
the operating agent, either for purposes of securing employment or
for other important functions relating to it. [
Footnote 38] Nor did it disrupt the long
established scheme of rights and remedies provided by law to secure
in various ways the seaman's personal safety, either to deprive him
of those rights altogether [
Footnote 39] or to dilute or reduce them to the single
mode of enforcement by the Suits in Admiralty Act procedure.
This result is in accord with the spirit and policy of other
provisions of the General Service Agreement. The managing agent
selected the men, and did so by the usual procedure of dealing with
the duly designated collective bargaining agent. It delivered them
their pay, although from funds provided by the Government. It was
authorized specifically to pay claims not only for wages, but also
for personal injury and death incurred in the course of employment,
for maintenance and cure, etc. [
Footnote 40] It was
Page 328 U. S. 732
responsible for keeping the ship in repair and for providing the
seaman's supplies. For all of these expenditures not covered by
insurance the contract purported expressly to provide for indemnity
from the Government. [
Footnote
41]
With so much of the former relation thus retained and so little
of additional risk thrown on the operating agent, it would be
inconsonant not only with the prevailing law, but also with the
agreement's spirit and general purpose to observe and keep in
effect the seaman's ordinary and usual rights except as expressly
nullified, for us to rule that he was deprived of his long existing
scheme of remedies and remitted either to none or to a doubtful
single mode of relief by suit against the Government
in
personam in admiralty. Our result also is in accord with the
general policy of the Government and of the War Shipping
Administration that those rights should be preserved and
Page 328 U. S. 733
maintained, as completely as might be possible under existing
law, against impairment due to the transfer. [
Footnote 42]
A further word remains to be said about the legislative history
of the Clarification Act in general. Both parties have relied
strongly on excerpted portions thought to support their respective
views. As is true with respect to all such materials, it is
possible to extract particular segments from the immediate and
total context and come out with road signs pointing in opposite
directions. We do not undertake to illustrate the contrast from the
history in this case. It can be said, however, with assurance that,
taken as a whole, the committee reports in Congress, together with
appended documents from various affected agencies and officials,
are amorphous in relation to the crucial problem presented in this
case. All of them give evidence of concern that rights may have
been lost or rendered uncertain by the transfer, and that action
should be taken by Congress to preserve the substantive rights
intact and remedial ones at the least by extension of the Suits in
Admiralty Act to cover them.
The entire history will be read in vain, however, for any clear
expression of intent or purpose to take away rights, substantive or
remedial, of which the seaman had not already been deprived,
actually or possibly, by virtue of the transfer. Whether or not
this conserving intent was made effective in the prospectively
operating provisions of the Act, it is made clear beyond question
in the retroactive ones. Congress was confessedly in a state of
uncertainty. But, being so, it nevertheless had no purpose to
destroy rights already accrued and in force, whether substantive or
remedial in character. Its object, in this respect at the least,
was to preserve them and at the same time to provide an additional
assured remedy
Page 328 U. S. 734
in case what had been preserved might turn out for some reason
to be either doubtful or lost.
The judgment is reversed, and the cause is remanded for further
proceedings not inconsistent with this opinion.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
As of the date of Japanese surrender, the War Shipping
Administration operated or owned approximately 4,300 merchant
ships, as compared with the 1,375 ships available for deep-sea
service in the prewar American merchant marine. The number of men
needed for the wartime merchant marine was approximately 220,000,
as compared with the prewar requirement of 55,000 men. For further
figures on the expansion of the merchant marine during the war,
see Note (1946) 55 Yale L.J. 584, note 1 and authorities
cited.
[
Footnote 2]
On February 7, 1942, the President, acting by virtue of the
authority vested in him "by the Constitution and Statutes of the
United States, including the First War Powers Act, 1941," 50 U.S.C.
App. § 601, established the War Shipping Administration. Exec.Order
No. 9054, Feb. 7, 1942, 7 Fed.Reg. 837, as amended by Exec.Order
No. 9244, Sept. 16, 1942, 7 Fed.Reg. 7327.
[
Footnote 3]
The Executive Order provided that the Administrator of the War
Shipping Administration should "control the operation, purchase,
charter, requisition, and use of all ocean vessels under the flag
or control of the United States. . . ." It also transferred to the
War Shipping Administration
"the functions, duties, and powers conferred by law upon the
United States Maritime Commission with respect to the operation,
purchase, charter, insurance, repair, maintenance, and requisition
of vessels and facilities required for the operation thereof . .
."
under various specified statutes and executive orders "and under
any other provisions of law, including Executive Orders. . . ."
The parties have not questioned the authority of the War
Shipping Administration. The following statutes and executive
orders relate to the authority exercised. § 902(a), Merchant Marine
Act of 1936, 46 U.S.C. § 1242(a); § 902(e), Merchant Marine Act of
1936, as amended, 46 U.S.C. § 1242(e); § 207, Merchant Marine Act
of 1936, as amended, 46 U.S.C. § 1117; §§ 1 and 2, Joint Resolution
of February 6, 1941, 55 Stat. 5; Public Law 247, 77th Cong., 5
Stat. 669, 681; 50 U.S.C. App. § 1274; Exec.Order No. 9001, Dec.
27, 1941, 6 Fed.Reg. 6787, as amended by Exec.Order No. 9296, Jan.
30, 1943, 8 Fed.Reg. 1429.
[
Footnote 4]
See H.Rep. No.2572, 77th Cong., 2d Sess., 8:
"The Administrator, in the conduct of his duties and functions,
makes very extensive use of the private organizations including
those engaged in merchant marine insurance and related activities,
steamship operators, stevedore, and terminal facilities, freight
forwarders, and freight brokers and agents. Special skill,
knowledge, and experience are made available in this manner for use
in the integrated war effort. This development confirms the wisdom
of the congressional policy in the recent years of stimulating and
assisting the development of such private merchant marine and
insurance facilities at substantial Government cost. The policy has
permitted a quick changeover from peacetime to wartime operations
of the entire merchant marine without any substantial loss of
efficiency or impairment of morale."
[
Footnote 5]
See H.Rep. No.2572, 77th Cong., 2d Sess., 8-10.
[
Footnote 6]
The seamen employed on Government operated vessels were, of
course, in civilian, as opposed to military or naval, service.
Cf. Hearings before the Committee on the Merchant Marine
and Fisheries on H.R.7424, 77th Cong., 2d Sess., 5-6.
[
Footnote 7]
The effective date of the so-called Clarification Act, 50 U.S.C.
App. § 1291, discussed at various points in this opinion. Relevant
portions of the Act are set forth in the text herein at
note 36 and in |
note 36 and in S. 707fn35|>note 35.
[
Footnote 8]
Section 33, Merchant Marine Act of 1920, 46 U.S.C. § 688.
[
Footnote 9]
On special interrogatory, the jury had found that Hust was
respondent's employee on the date the injuries were incurred. The
verdict was for $35,000, which the trial court indicated in its
opinion was excessive in relation to the injuries incurred. But,
being of opinion that the question of liability should be settled
by review, it declined to order remittitur, and denied the motion
for judgment
non obstante veredicto, in effect reserving
decision on the question of remittitur pending outcome of decision
on appeal.
[
Footnote 10]
Acting within its authority,
cf. note 3 the Administration utilized these standard
contracts for making arrangements with private steamship companies
for the operation of many of these vessels. 46 C.F.R. (Cum.Supp.) §
306.44. They did not cover specific vessels. Under Article 1 of the
agreement, the general agent agreed to "manage and conduct the
business assigned to it by the United States from time to
time."
In the instant case, the General Agent Service Agreement appears
to have been given retroactive effect. The agreement states that it
is "made as of October 19, 1941," but that it was actually made as
of that date is impossible, since the War Shipping Administration
did not come into being until February 7, 1942.
See
note 1
Some of the terms of the agreement are summarized in the text
and notes
30 40 41.
[
Footnote 11]
Cf. Brady v. Roosevelt S.S. Co., 317 U.
S. 575. On the evidence of negligence presented here, it
was not shown that respondent had failed to perform any duty in
outfitting the ship or otherwise in relation to the delinquencies
alleged to have constituted causes of the injuries. These, so far
as the record discloses, were attributable entirely to occurrences
taking place after the ship had last put to sea.
[
Footnote 12]
See Labor Board v. Hearst Publications, 322 U.
S. 111, notes 27 and 19 and authorities cited.
[
Footnote 13]
See note 7
[
Footnote 14]
Petitioner relies on the following cases as supporting his
position:
Gay v. Pope & Talbot, 183 Misc. 162, 47
N.Y.S.2d 16;
McCormick v. Moore-McCormack
Lines, 54 F. Supp.
399;
Moss v. Alaska Packers Assn., 160 P.2d 224, 1945
A.M.C. 493;
Bast v. American-Hawaiian S.S. Co., 1945
A.M.C. 503;
Schaller v. Matson Navigation Co., 43 N.Y.S.2d
566.
Respondent relies upon
Algiere v. Cosmopolitan Shipping
Co., 185 Misc. 271, 56 N.Y.S.2d 361, 1945 A.M.C. 906;
Pedersen v. Stockard S.S. Corp., 268 App.Div. 992, 51
N.Y.S.2d 675, 1945 A.M.C. 23;
Nielsen v. American President
Lines, 50 N.Y.S.2d 249, 1944 A.M.C. 1169;
Steele v.
American South African Line, 62 F.
Supp. 636;
Baker v. Moore-McCormack
Lines, 57 F. Supp.
207;
Conlon v. Hammond Shipping Co., 55 F. Supp. 635;
Williams v. American Foreign S.S. Corp., 65 F. Supp. 900,
1946 A.M.C. 98;
Ferris v. American South African Line,
1945 A.M.C. 1296;
Walsh's Case, 1945 A.M.C. 747;
Murray v. American Export Lines, 53 F. Supp.
861;
Fox v. Alcoa S.S. Co., 143 F.2d 667.
See
also Note (1946) 55 Yale L.J. 584.
[
Footnote 15]
See text
infra at
note 36
[
Footnote 16]
See Warner v. Goltra, 293 U. S. 155;
Gerradin v. United Fruit Co., 60 F.2d 927.
[
Footnote 17]
See Warner v. Goltra, supra, at
293 U. S.
159-160, and the cited legislative history. In the
hearings on the Clarification Act, the seamen again opposed being
brought within a compensation act.
See statement of the
National Maritime Union, Hearings before the Committee on the
Merchant Marine and Fisheries on H.R. 7424, 77th Cong., 2d Sess.,
30-31.
[
Footnote 18]
The Jones Act is "an integral part of the maritime law. . . ."
Garrett v. Moore-McCormack Lines, 317 U.
S. 239,
317 U. S.
248.
[
Footnote 19]
Four different cases were disposed of in the single opinion,
including in addition to the
Johnson case,
Fleet Corp.
v. Lustgarten. In that case, the defendants were the Fleet
Corporation and the Consolidated Navigation Company, which operated
the vessel for the United States as agent pursuant to an agreement
with the Shipping Board. The suit was by a seaman injured in the
ship's service allegedly for negligent failure of the defendants to
furnish him a safe place to work and, further, furnish medical
treatment and care after the injuries were incurred. 280 U.S. at
280 U. S. 323.
The judgment for the plaintiff was reversed as to both defendants,
no mention being made in the opinion of any difference between them
for applicability of the Suits in Admiralty Act or otherwise.
[
Footnote 20]
The Court held the
Johnson ruling as to the Navigation
Co. to be untenable, expressly stating
"that the Lustgarten case, so far as it would prevent a private
operator from being sued under the circumstances of this case, must
be considered as no longer controlling."
317 U.S. at
317 U. S. 578.
See notes
19
22
It is to be noted that, although the decedent in the
Brady case for whose death the suit was brought was not a
seaman, Lustgarten was. In both cases, the cause of action asserted
was negligence or maritime tort.
[
Footnote 21]
The United States Shipping Board was established by 39 Stat. 729
and 41 Stat. 989. Section 11 of the earlier statute, 39 Stat. at
731, authorized the United States Shipping Board to establish
government controlled corporations, and, pursuant to this
provision, the United States Shipping Board Merchant Fleet
Corporation was set up.
See Sloan Shipyards Corp. v. Merchant
Fleet Corp., 258 U. S. 549,
258 U. S. 564.
By Executive Order No. 6166, June 10, 1933, § 12, the functions of
the United States Shipping Board, including those of the Emergency
Fleet Corporation, were transferred to the Department of Commerce.
Subsequently, by the Merchant Marine Act of 1936, 49 Stat. 1987,
the United States Maritime Commission was created and the functions
and duties of the former Shipping Board were transferred to it.
[
Footnote 22]
Under the standard forms of contract utilized for these
arrangements by the Shipping Board and later by the Maritime
Commission, the private operator, though designated as "agent"
somewhat in the manner of the Administration's General Service
Agreement, undertook to "man the ship" along with other duties
assumed. Under this provision, the shipping company, rather than
the Government, was regarded as the seaman's employer. Accordingly,
he had all the rights incident to the employment as against this
operating "agent," notwithstanding the vessel was owned by the
Government. The Suits in Admiralty Act was not intended to, and did
not, touch those rights. As stated in the text, its remedies were
added to them.
Because the General Service Agreement omits the explicit
requirement that the "agent" shall "man the ship," it is strongly
argued and the Oregon Supreme Court held that the relation between
the respondent and the seaman here is basically different from that
existing under the Maritime Commission's standard arrangements,
since, it is said, that omission destroys the employer-employee
relation between the "agent" and the seaman, and creates another,
entirely different, between the Government and the seaman.
Cf.
text infra at
note
30
[
Footnote 23]
Cf. note 22
Effort has been made to restrict the scope of the
Brady
ruling by regarding it as applicable only to the situation where
the injury resulted from negligence of the private operating agency
for which the Government or its sponsoring corporation would not be
liable, in reliance upon the opinion's use of this situation to
illustrate the fact that the Suits in Admiralty Act did not cut off
general maritime rights and remedies against the operating agent.
317 U.S. at
317 U. S. 581.
But the ruling was broader both in rationalization and in result.
The Court did not restrict possible recovery to such a situation in
remanding the cause for determination of whether a cause of action
had been made out.
[
Footnote 24]
By which time, the governmental pool presumably will have been
dissolved at any rate to the extent of returning many of the
vessels comprising it to the private owners and operators. § 5,
Clarification Act, 57 Stat. 51, 50 U.S.C. App. § 1295; Title IV, §
401, First War Powers Act, 55 Stat. 841, 50 U.S.C. App. § 621.
[
Footnote 25]
Cf. text following
note
4 supra. At the time of the Japanese surrender, the
total number of ships operated and owned by the War Shipping
Administration was 4,363. Of these, 537 were time-chartered from
private operators and 405 were bareboat chartered from private
operators; 3,101 were operated under a General Service Agreement.
See also note 1
[
Footnote 26]
Such as,
e.g., failing to provide needed repairs or
supplies, but not including any act attributable to negligence on
the part of the master or other members of the crew.
Cf.
note 23
[
Footnote 27]
317 U.S. at
317 U. S. 581,
citing § 5 of the Act and
Emergency Fleet Corp. v. Rosenberg
Bros. & Co., 276 U. S. 202. The
period provided under the Jones Act, for instance, is three years.
45 U.S.C. § 56.
[
Footnote 28]
One of the briefs
amicus curiae states that the
seaman's widow for whom it is filed has instituted suit against the
shipping company within two years after her husband's death, but
that, inasmuch as no suit against the United States has been
instituted within that period, if her cause of action against the
shipping company will not lie, she will also be unable, by virtue
of the Statute of Limitations in the Suits in Admiralty Act, to sue
the United States.
[
Footnote 29]
As in the case, suggested in the
Brady opinion, in
which the agent alone, and not the principal, would be liable. 317
U.S. at
317 U. S. 581.
See note 23
[
Footnote 30]
"These questions arise because of a
technical status of
such seamen as employees of the United States by virtue of their
employment through the War Shipping Administration for service on
such vessels."
S.Rep. No.62, 78th Cong., 1st Sess., 5. (Emphasis added.) The
chief differences between the relationship of the managing agent in
the
Brady case to the seamen and the relationship of the
respondent to the seamen are, as set out in the contracts, as
follows:
Under the agreement in the
Brady case, the managing
agent agreed to man the vessels. The licensed officers and chief
steward, however, were subject to the approval of the owner, the
United States, which also had the right to remove any employees "if
it shall have reason to be dissatisfied."
Under the General Agent Service Agreement, the shipping company
does not agree to man the vessel. It agrees to procure the master,
subject to the approval of the United States. The master is an
agent and employee of the United States, and has complete
responsibility and authority with respect to the navigation and
management of the vessel. The general agent agrees to procure
officers and men through the usual channels and in accordance with
the customary practices of commercial operators, and to make them
available to the master. It is provided that officers and members
of the crew "shall be subject only to the orders of the
Master."
[
Footnote 31]
See text
supra, preceding
note 10 The opinion stated:
"We think it must be assumed in determining whether the
plaintiff was an employee of the defendant that the case is
governed by the rule of the common law."
158 P.2d 275, 278.
[
Footnote 32]
"The basic scope and philosophy of the measure is to preserve
private rights of seamen while utilizing the merchant marine to the
utmost for public wartime benefit. Except in rare cases, the ships
themselves are being operated as merchant vessels, and are
therefore subject to the Suits in Admiralty Act in all respects.
Granting seamen rights to sue under that act is therefore entirely
consistent with the underlying pattern of the measure."
S.Rep. No.62, 78th Cong., 1st Sess., 11.
"Present-day operating conditions often make uncertain whether
the vessel is a merchant or a public vessel. As a consequence, the
aforementioned rights [rights under the Jones Act and the general
maritime law] of such seamen are frequently in doubt. In addition
to these rights, which, at times, are uncertain for the reasons
mentioned, the seamen who are employees of the United States
probably have rights under the United States Employees'
Compensation Act in the event of injury or death. Such compensation
benefits are not presently enjoyed by seamen under private
employment. Thus, vital differences in these rights are made to
depend upon whether the seaman happens to be employed aboard a
vessel time chartered to the War Shipping Administration or owned
by or bareboat chartered to the War Shipping Administration. Since
seamen constantly change from one vessel to another, their rights
for death, injury, or illness also constantly change, depending
upon the relationship of the War Shipping Administration to the
vessel. This fluctuation and lack of uniformity of rights leads to
dependency of vital rights upon chance with a result of confusion
and inequities. The bill is designed to remove this confusion and
these inequities."
H.Rep. No.2572, 77th Cong., 2d Sess., 9.
[
Footnote 33]
See notes
36 and 37
and text
[
Footnote 34]
See §§ 3 and 4 of the Clarification Act,. These relate
to payment of just compensation for vessels requisitioned, war risk
insurance, limitation of liability for the War Shipping
Administration, and other miscellaneous matters. Section 1 of the
Act provided that the seamen, "because of the temporary wartime
character of their employment by the War Shipping Administration,"
should not be considered as officers or employees of the United
States for the purposes of various specified acts, including the
United States Compensation Act.
[
Footnote 35]
The provision principally affecting rights like those now in
question was § 1:
"(a) Officers and members of crews (hereinafter referred to as
'seamen') employed on United States or foreign flag vessels as
employees of the United States through the War Shipping
Administration shall, with respect to (1) laws administered by the
Public Health Service and the Social Security Act, as amended by
subsection (b)(2) and (3) of this section; (2) death, injuries,
illness, maintenance and cure, loss of effects, detention, or
repatriation, or claims arising therefrom not covered by the
foregoing clause (1), and (3) collection of wages and bonuses and
making of allotments, have all of the rights, benefits, exemptions,
privileges, and liabilities, under law applicable to citizens of
the United States employed as seamen on privately owned and
operated American vessels. . . . Any claim referred to in clause
(2) or (3) hereof shall, if administratively disallowed in whole or
in part, be enforced pursuant to the provisions of the Suits in
Admiralty Act, notwithstanding the vessel on which the seaman is
employed is not a merchant vessel within the meaning of such Act.
Any claim, right, or cause of action of or in respect of any such
seaman accruing on or after October 1, 1941, and prior to the date
of enactment of this section may be enforced, and upon the election
of the seaman or his surviving dependent or beneficiary, or his
legal representative to do so shall be governed as if this section
had been in effect when such claim, right, or cause of action
accrued, such election to be made in accordance with rules and
regulations prescribed by the Administrator, War Shipping
Administration. Rights of any seaman under the Social Security Act,
as amended by subsection (b)(2) and (3), and claims therefor shall
be governed solely by the provisions of such Act, so amended. When
used in this subsection, the term 'administratively disallowed'
means a denial of a written claim in accordance with rules or
regulations prescribed by the Administrator, War Shipping
Administration. . . ."
57 Stat. 45.
[
Footnote 36]
H.Rep. No.2572, 2d Sess., 15, states:
"Special provision is made with respect to rights and with
respect to claims and causes involved in section 1(a)(2) and (3)
which may have accrued on or after October 1, 1941, and prior to
the date of enactment of the measure. Under this provision, the
seaman or other claimant may elect to enforce the claim as if
section 1 had been in effect at the time the claim accrued. In
exercising this option, the claimant would be prevented from
proceeding to secure double recovery under other procedure without
regard to section 1, and would be bound by the applicable statutes
or principle of limitations."
"Inasmuch as certain vessel operations on account of the
Government were undertaken prior to the establishment of the War
Shipping Administration by or through the Maritime Commission, the
provisions of section 1 and all amendments therein are made
applicable to the United States Maritime Commission with respect to
the period beginning October 1, 1941, to the time of taking office
of the Administrator, War Shipping Administration (February 11,
1942)."
And, in S.Rep. No.1813, 77th Cong., 2d Sess., 6, it was
stated:
"Section 1 makes full provision with respect to rights and
claims which may have accrued during the early months of the war or
its imminence, and prior to the enactment of the bill. This
provision is necessary in view of vessel operations by or through
the Maritime Commission in the period prior to taking office of the
Administrator, War Shipping Administration (February 11,
1942)."
[
Footnote 37]
Cf. S.Rep. No.62, 78th Cong., 1st Sess., 8, 17; H.Rep.
No.107, 78th Cong., 1st Sess., 5, 29. These reports construe the
effects of the
Brady decision more narrowly than we have
done in this case and than the decision justifies.
[
Footnote 38]
See notes
39 and
40
[
Footnote 39]
On respondent's contention, it is assumed that, before the
Classification Act took effect, the Government could be sued under
the Suits in Admiralty Act for recovery in this and similar cases.
Whether and how far that Act would have permitted suits by seamen
injured in the course of their employment prior to the
Classification Act's effective date need not be determined in this
case.
[
Footnote 40]
"To the extent not recovered from insurance, the United States
shall also reimburse the General Agent for all crew expenditures,
accruing during the term hereof, in connection with the vessels
hereunder, including, without limitation, all disbursements for or
on account of wages, extra compensation, overtime, bonuses,
penalties, subsistence, repatriation, travel expense, loss of
personal effects, maintenance, cure, vacation allowances,
damages or compensation for death or personal injury or
illness, and insurance premiums, required to be paid by law,
custom, or by the terms of the ship's articles or labor agreements,
or by action of the Maritime War Emergency Board. . . ."
(Emphasis added.)
The General Agent Service Agreement provides that officers and
members of the crew "shall be paid in the customary manner with
funds provided by the United States hereunder." The proof at trial
showed that petitioner was paid his wages by the ship's purser, the
money being in envelopes bearing the name of respondent.
[
Footnote 41]
See note 40 The
General Agent Service Agreement also provides that the United
States shall procure insurance against all insurance risks "of
whatsoever nature or kind relating to the vessels assigned
hereunder" and
"shall defend, indemnify and save harmless the General Agent
against and from any and all loss, liability, damage and expense .
. . to the extent not covered or not fully covered by
insurance."
Compare the provisions of §§ 2 and 3 of the
Clarification Act with respect to insurance and compensation as
they affect seamen.
[
Footnote 42]
See notes
32
40 41.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK agrees,
concurring.
While I have joined in the opinion of the Court, I add a few
words to indicate that the result we have reached is consonant with
the traditional rules of liability.
A charterer who obtains exclusive possession and management of
the vessel from the owner is owner
pro hac vice, and
subject to the responsibilities of ownership for the duration of
the charter period.
Reed v. United
States, 11 Wall. 591,
78 U. S.
600-601;
Leary v. United
States, 14 Wall. 607,
81 U. S. 610;
United States v. Shea, 152 U. S. 178,.
The question whether exclusive possession and management of the
vessel have been transferred to the charterer turns on the facts of
each case -- a construction of the agreement between the parties,
and the conduct of the parties under the arrangement.
United
States v. Shea, supra, pp.
152 U. S.
189-191.
This agreement provides that the General Agent is appointed "to
manage and conduct the business of vessels assigned to it by the
United States from time to time." Art. 1. The General Agent
promises "to manage and conduct the business for the United States"
of such vessels as have been "assigned to and accepted by the
General Agent." Art. 2. The United States has the power on
specified notice to terminate the agreement and "to assume control
forthwith" of the vessels. Art. 11. On
Page 328 U. S. 735
termination, "all vessels and other property of whatsoever kind
then in the custody of the General Agent" are to be "immediately
turned over to the United States." Art. 12. The fair intendment of
these provisions is that possession of the vessels passes to the
General Agent under the agreement.
Management of the vessels also is granted the General Agent. It
is to "maintain the vessels in such trade or service as the United
States may direct." Art. 3. It is the one to "equip, victual,
supply and maintain the vessels."
Id. It shall "procure
the Master of the vessels . . .subject to the approval of the
United States."
Id. It shall "procure and make available
to the Master for engagement by him the officers and men required
by him to fill the complement of the vessel."
Id. The
officers and men are to be
"procured by the General Agent through the usual channels and in
accordance with the customary practices of commercial operators and
upon the terms and conditions prevailing in the particular service
or services in which the vessels are to be operated from time to
time."
Id. The General Agent shall "arrange for the repair of
the vessels." Art. 14.
All of these things are done, to be sure, for the account of the
United States. The agreement, moreover, specifically provides that
the Master is "an agent and employee of the United States." Art. 3.
The officers and crew are subject "only to the orders of the
Master." Art. 3. And the shipping articles which were entered into
were between the master and the crew. From this it is argued that
the members of the crew were employees of the United States, not of
the General Agent or operator.
The shipping articles, however, are by statute required to be an
engagement between the master and the crew. 38 Stat. 1168, 46
U.S.C. § 713. The responsibility of the master for the operation of
the vessel is, moreover, traditional.
See United States v.
Farnham, 25 Fed.Cas.
Page 328 U. S. 736
No.15,071, pp. 1042, 1045. So the case for respondent comes down
essentially to the provision in the agreement that the Master is
the agent and employee of the United States.
If the parties to a contract could, by the choice of a label,
determine these questions of responsibility to third persons, the
problem would be simple. But the conventions of the parties do not
determine in the eyes of the law the rights of third persons.
Brady v. Roosevelt S.S. Co., 317 U.
S. 575,
317 U. S. 583.
The Court dealt with one species of this problem in
Knights of
Pythias v. Withers, 177 U. S. 260,
where an insurance policy designated the person to whom premiums
were paid as the agent of the insured, not the agent of the
insurer. The Court said, p.
177 U. S.
268:
"The reports are by no means barren of cases turning upon the
proper construction of this so-called 'agency clause,' under which
the defendant seeks to shift its responsibility upon the insured
for the neglect of Chadwick to remit on the proper day. In some
jurisdictions, it is held to be practically void and of no effect;
in others, it is looked upon as a species of wild animal, lying in
wait and ready to spring upon the unwary policyholder, and in all
it is eyed with suspicion and construed with great strictness. We
think it should not be given effect when manifestly contrary to the
facts of the case, or opposed to the interests of justice."
This problem of liability to third persons is resolved by
determining whose enterprise the particular venture was. The fact
that the parties say it is the enterprise of one, not the other, is
not decisive. Control in the operation and management of the
business, as distinguished from general supervision, is the
customary test. I look in vain to find in the present arrangement
any evidence that the owner acted as the manager of this business.
Respondent, the General Agent, had a most substantial measure of
control over the operations of the
Page 328 U. S. 737
vessels. Its
de facto control was no whit less or more
whether the master were called the agent of the owner or its own
agent. The case is not one where an agent attends only to the
business of a vessel, as distinguished from its manning or physical
operation or control. Respondent maintains the vessels in the
broadest sense, and procures the master and crew. In the
Brady case, the operator was "to man, equip, victual,
supply, and operate the vessels." 317 U.S. p.
317 U. S. 576.
The same was true in
Quinn v. Southgate Nelson Corp., 121
F.2d 190, 191. But the difference in words between the agreements
in those cases and the present one does not, on a view of the
entire situation, mark a difference in functions of the private
operator. It is, indeed, difficult to see how the functions of the
private operator were in any way changed under this agreement from
what they were in those other two cases. Respondent, of course,
accounts for its operations to the United States. The United States
reimburses it for all of its expenditures, including the wages of
the crew. But it is immaterial that the owner provides the entire
crew and pays their wages. A charterer who has control of the
operations is owner
pro hac vice. Hills v. Leeds,
149 F. 878. So far as this record reveals, the operator performed
all of the functions which it performed in the
Brady and
Quinn cases. There is here no taking over of additional
functions by the owner. The arrangement is clothed in different
garb. But it is the private operator who manages and controls the
physical operation. The powers reserved to the owner were general
supervisory powers adequate for the exigencies of the war time
conditions which prevailed. But they did not detract from the
powers of physical operation granted respondent.
The fact that we have here no more than a change in form not in
substance is borne out by collateral phases
Page 328 U. S. 738
of this undertaking. The compensation of respondent is not to be
less than
"the amount of earnings which the General Agent would have been
permitted to earn under any applicable previously existing bareboat
charters, preference agreements, commitments, rules or regulations
of the United States Maritime Commission until the earliest
termination date permissible thereunder as of March 22, 1942."
Art. 5. The United States agrees to reimburse respondent for
"damages or compensation for death or personal injury or illness"
required to be paid. Art. 7. It also agrees to reimburse respondent
for payments made by respondent to a pension fund for officers and
members of the crew, as well as for "social security taxes which
the General Agent is or may be required to pay on behalf of the
officers and crew of said vessels as agent or otherwise."
Id.
These provisions all suggest, as the relationship of the parties
bears out, that the United States was the underwriter of the
financial risks of the venture,
* the operator
continuing as it always had to perform the managerial functions.
These managerial functions constitute control, decisive of
liability in this case. There was no demise. But the form of the
agreement is not important if the functions of the operator were
those of an owner
pro hac vice. I think that is the true
condition which existed here.
At common law, respondent would be the principal, for the
business of managing and operating the vessel was its business. It
was therefore the employer and responsible for this personal injury
claim.
*
See S.Rep. No.898, 74th Cong., 1st Sess., pp.
39-40.
MR. JUSTICE REED, dissenting.
Petitioner, Hust, a fireman and watertender on the S.S. Mark
Hanna, brought an action in an Oregon Circuit
Page 328 U. S. 739
Court [
Footnote 2/1] against the
respondent, the Moore-McCormack Lines, Inc. The suit was under the
Merchant Marine Act of 1920, the Jones, Act, Section 33. [
Footnote 2/2] It sought damages against the
respondent as employer. As Section 33 shows on its face, a seaman
has the advantages of the Federal Employers Liability Act only
against his employer. [
Footnote
2/3] The judgment of the Supreme Court of Oregon denying
petitioner the right to recover in this action would then be
correct unless the respondent is petitioner's employer, or unless
Congressional legislation since the Merchant Marine Act grants
petitioner a right of recovery against respondent even though the
employer-employee relationship does not exist.
The S.S.
Mark Hanna, a Liberty ship, was owned by the
United States. So far as appears from the record, it had never
belonged to anyone else. Its operation was under the direction of
the War Shipping Administration. In order to carry out its
responsibilities, the Administration employed respondent as its
General Agent to conduct the business of certain ships assigned to
respondent for handling. From the excerpts from the contract, set
out
Page 328 U. S. 740
below, we think it clear that this was a conventional agency
contract under which respondent managed certain matters connected
with the ship for the United States. We think it clear, as did the
Supreme Court of Oregon, that so far as the crew is concerned the
respondent only procured the members, such as Hust, and made them
available to the Master, a United States agent, for employment by
said Master for the account of the United States. [
Footnote 2/4] Such a contract makes the United
States the
Page 328 U. S. 741
employer under the Merchant Marine Act, not the Master and not
respondent, the General Agent. This is an action under the Merchant
Marine Act, and the question of liability of the respondent for any
negligence under any other statute or rule of law, admiralty or
otherwise, is not before us.
Since 1920, employees of the United States upon merchant vessels
of the United States have had a right of action in admiralty
against the vessels in all cases where the employees would have had
a right if the vessel were privately owned or operated. This came
from Section 2 of the Suits in Admiralty Act. [
Footnote 2/5] This right of action was enforceable
exclusively in admiralty. [
Footnote
2/6] There was no right to a trial and assessments of damages
by a jury.
When the War Shipping Administration became the operator of
practically the entire American merchant marine, doubts sometimes
arose as to whether a particular vessel was a "merchant" vessel,
operated by the United States or not. Therefore, to clarify this
situation and to assure all "employees of the United States through
the War Shipping Administration" all "rights" for "injuries"
applicable to seamen "employed on privately owned and operated
American vessels," Congress enacted an act to clarify the law
relating to functions of the Administration.
Page 328 U. S. 742
Provisions from the first section which are important here are
set out below. [
Footnote 2/7]
As will be seen by an examination of the reports of the House
and Senate [
Footnote 2/8] in
connection with the specific requirement of the first section,
supra, for enforcement of these rights, Congress declared
its purpose in no uncertain terms to grant the power to enforce
these rights only through the Suits in Admiralty Act. That is, the
seaman could not submit his claim to a jury. [
Footnote 2/9] It will be noted that the words "right"
and "status" and used with care, so that
Page 328 U. S. 743
it is plain Congress intended to give all Administration seamen
rights under the Merchant Marine Act and remedies under the Suits
in Admiralty Act.
Page 328 U. S. 744
As there might be instances where a seaman was an employee of
the Administration but his boat was not a merchant vessel of the
United States, the clarification
Page 328 U. S. 745
act of March 24, 1943, was made retroactive to October 1, 1941.
[
Footnote 2/10] Probably other
compensation for injuries may have existed prior to the enactment
of this act.
It is said by the Court that, if a seaman employed by the United
States is limited to the remedies of the Suits in Admiralty Act for
recovery in tort, the holding in
Emergency Fleet Corp. v.
Lustgarten, 280 U. S. 320, is
restored as a rule of law. The
Lustgarten case was
overruled by
Brady v. Roosevelt S.S. Co., 317 U.
S. 575,
317 U. S. 578.
We think that this misconceives the effect of the
Brady
case. We do not think the requirement that seamen, employees of the
United States, must seek their remedy against their employer under
the Suits in Admiralty Act has any relation to the
Lustgarten or
Brady cases.
Lustgarten, a seaman, sought recovery at law for a tort against
the Navigation Company, an agent of the United States. It was held
that he could only recover under
Page 328 U. S. 746
the Suits in Admiralty Act. In the
Brady case, under a
petition of a visitor to the boat to recover against a similar
agent, it was held a cause of action in tort at law would lie. The
Lustgarten case was overruled. The only effect of the
Brady decision was to hold that actions could be
maintained against agents of the United States at common law for
the agent's own torts. The case had nothing whatever to do with the
right to recover against employers under the Jones Act. The opinion
said, 317 U.S. at
317 U. S.
577,
"The sole question here is whether the Suits in Admiralty Act
makes private operators such as respondent nonsuable for their
torts. . . . The liability of an agent for his own negligence has
long been embedded in the law."
Id. at
317 U. S.
580.
"But it is a
non sequitur to say that, because the Act
takes away the remedy of libel
in rem in all cases
involving government vessels and restricts the remedies against the
United States and its wholly owned corporations, it must be
presumed to have abolished all right to proceed against all other
parties."
Id. at
317 U. S.
582.
"The question is not whether the Commission had authority to
delegate to respondent responsibilities for managing and operating
the vessel as its agent. It is whether respondent can escape
liability for a negligent exercise of that delegated power if we
assume that, by contract, it will be exonerated or indemnified for
any damages it must pay."
Id. at
317 U. S.
583-584. The case was then sent back to the Circuit
Court of Appeals to determine whether a cause of action against the
agent was established. All that was meant or said in
Brady
about
Lustgarten was that the
Lustgarten case was
in error as saying that a seaman could not sue an agent for the
agent's own tort. The
Brady final statement on
Lustgarten was,
"Our conclusion, however, is that that position is untenable,
and that the
Lustgarten case, so far as it would prevent a
private operator from being sued under the circumstances of this
case,
Page 328 U. S. 747
must be considered as no longer controlling."
Id. at
317 U. S. 578.
There is no reason here why the petitioner should not sue
respondent for its alleged tort. What petitioner is attempting is
to hold respondent liable as employer for negligence of
petitioner's fellow servants, of petitioner's superiors or the
Master under the Merchant Marine Act. This it cannot do under this
record. [
Footnote 2/11]
It is suggested that the respondent may be in the position of an
employer, as a charterer or owner
pro hac vice. But a
charterer or owner
pro hac vice, who is also an employer,
is one who takes over "the exclusive possession, command, and
navigation of the vessel."
Reed v. United
States, 11 Wall. 591,
78 U. S. 600.
That is a bareboat charter. Under the contract in this case, the
respondent had no
Page 328 U. S. 748
such authority. As we have pointed out above, and as the
contract shows, he acted for the United States under its command,
and then only in certain matters not connected with actual
navigation.
The Court does not challenge the respondent's assertion that the
Merchant Marine Act requires the employer-employee relationship. It
is said,
"But it does not follow from the fact that Hust was technically
the Government's employee that he lost all remedies against the
operating 'agent' for such injuries as he incurred."
Certainly Hust did not lose his remedies against the agent for
the agent's torts. He still has those remedies but petitioner
wishes to hold the agent as an employer. There is here no
"disruption" of the normal and past relationship between seaman and
employer. This Court errs, we think, in suggesting any seaman has
been deprived of any right by the Clarification Act of 1943 under
the construction of the Oregon Supreme Court. No seaman ever had a
right of recovery under the Merchant Marine Act except against his
employer. That the seaman still has.
What the Clarification Act does and what it obviously was
intended to do,
see notes
328
U.S. 707fn2/7|>7 and
328
U.S. 707fn2/9|>9,
supra, was to continue the policy
of requiring seamen who were employees of the United States to
continue to vindicate those rights through the Suits in Admiralty
Act. Congress has been generous in permitting seamen to recover in
court against the United States for torts. It felt that the
traditional proceeding in admiralty offered the best opportunity
for justice to all such injured seamen when they were employees of
the United States. [
Footnote
2/12]
A convenient summary of the attitude of the administrative
agencies toward this problem is found in a letter of the War
Shipping Administration to the National Labor
Page 328 U. S. 749
Relations Board of October 20, 1942. [
Footnote 2/13] Such administrative determination is
entitled to weight.
We think that the judgment of the Oregon Supreme Court should be
affirmed.
MR. JUSTICE FRANKFURTER and MR. JUSTICE BURTON join in this
dissent.
THE CHIEF JUSTICE and MR. JUSTICE JACKSON took no part in the
consideration or decision of the application for rehearing.
[
Footnote 2/1]
See Garrett v. Moore-McCormack Co., 317 U.
S. 239,
317 U. S.
245.
[
Footnote 2/2]
41 Stat. 1007, 46 U.S.C. § 688.
"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. . . ."
[
Footnote 2/3]
Panama R. Co. v. Johnson, 264 U.
S. 375,
264 U. S. 389;
Nolan v. General Seafoods Corp., 112 F.2d 515, 517;
The Norland, 101 F.2d 967;
Baker v. Moore-McCormack
Lines, Inc., 57 F. Supp.
207, 208;
Eggleston v. Republic Steel
Corp., 47 F. Supp.
658, 659;
Gardiner v. Agwilines, Inc., 29 F. Supp.
348.
Compare Robinson v. Baltimore & Ohio R. Co.,
237 U. S. 84,
237 U. S. 94:
"We are of the opinion that Congress used the words 'employee'
and 'employed' in the statute in their natural sense, and intended
to describe the conventional relation of employer and
employee."
Hull v. Philadelphia & Reading R. Co., 252 U.
S. 475.
[
Footnote 2/4]
"Witnesseth: That, in consideration of the reciprocal
undertakings and promises of the parties herein expressed:"
"Article 1. The United States appoints the General Agent as its
agent and not as an independent contractor, to manage and conduct
the business of vessels assigned to it by the United States from
time to time."
"Article 2. The General Agent accepts the appointment and
undertakes and promises so to manage and conduct the business for
the United States, in accordance with such directions, orders, or
regulations as the latter has prescribed, or from time to time may
prescribe, and upon the terms and conditions herein provided, of
such vessels as have been or may be by the United States assigned
to and accepted by the General Agent for that purpose."
"Article 3A. To the best of its ability, the General Agent
shall, for the account of the United States:"
"
* * * *"
"(d) The General Agent shall procure the Master of the vessels
operated hereunder, subject to the approval of the United States.
The Master shall be an agent and employee of the United States, and
shall have and exercise full control, responsibility, and authority
with respect to the navigation and management of the vessel. The
General Agent shall procure and make available to the Master for
engagement by him the officers and men required by him to fill the
complement of the vessel. Such officers and men shall be procured
by the General Agent through the usual channels and in accordance
with the customary practices of commercial operators and upon the
terms and conditions prevailing in the particular service or
services in which the vessels are to be operated from time to time.
The officers and members of the crew shall be subject only to the
orders of the Master. All such persons shall be paid in the
customary manner with funds provided by the United States
hereunder."
[
Footnote 2/5]
41 Stat. 525, 526:
"SEC. 2. That, in cases where if such vessel were privately
owned or operated, or if such cargo were privately owned and
possessed, a proceeding in admiralty could be maintained at the
time of the commencement of the action herein provided for, a libel
in personam may be brought against the United States or
against such corporation, as the case may be, provided that such
vessel is employed as a merchant vessel or is a tug boat operated
by such corporation. . . ."
[
Footnote 2/6]
Fleet Corp. v. Rosenberg Bros., 276 U.
S. 202;
Johnson v. Fleet Corp., 280 U.
S. 320.
[
Footnote 2/7]
57 Stat. 45, 46:
"That (a) officers and members of crews (hereinafter referred to
as 'seamen') employed on United States or foreign flag vessels as
employees of the United States through the War Shipping
Administration shall, with respect to . . . (2) death, injuries,
illness, . . . have all of the rights, benefits, exemptions,
privileges, and liabilities, under law applicable to citizens of
the United States employed as seamen on privately owned and
operated American vessels. . . . Any claim referred to in clause
(2) or (3) hereof shall, if administratively disallowed in whole or
in part, be enforced pursuant to the provisions of the Suits in
Admiralty Act, notwithstanding the vessel on which the seaman is
employed is not a merchant vessel within the meaning of such Act.
Any claim, right, or cause of action of or in respect of any such
seaman accruing on or after October 1, 1941, and prior to the date
of enactment of this section may be enforced, and upon the election
of the seaman or his surviving dependent or beneficiary, or his
legal representative to do so shall be governed as if this section
had been in effect when such claim, right, or cause of action
accrued, such election to be made in accordance with rules and
regulations prescribed by the Administrator, War Shipping
Administration. . . ."
[
Footnote 2/8]
S.Rep. No.62, 78th Cong., 1st Sess.; H.Rep. No.107, 78th Cong.,
1st Sess.
[
Footnote 2/9]
This purpose is made plain by a few excerpts from the reports.
S.Rep. No.62, 78th Cong., 1st Sess., pp. 5-6, 11, 14:
"Seamen employed as Government employees on vessels owned by, or
bareboat chartered to, the War Shipping Administration are
sometimes precluded from enforcing against the United States the
rights and benefits in case of death, injury, illness, detention,
and so on that would be available to them if employed by private
employers, except under the Suits in Admiralty Act. If they were
private employees, rights to redress for death, injury, or illness
could be prosecuted under the Jones Act and the general maritime
law. These same rights may be asserted against the United States as
the employer under the Suits in Admiralty Act providing the vessel
involved is a merchant vessel. In case of public vessels, the
seaman must rely for compensation upon the Administrator's policy
recognizing contractual liability which this legislation
recognizes. Present-day operating conditions often make uncertain
in some cases whether the vessel is a merchant or a public vessel.
As a consequence, even though the vessels are generally merchant
vessels and not public vessels, there are some cases in which the
aforementioned rights of such seamen are in doubt. In addition to
these rights which, at times, are uncertain for the reasons
mentioned, the seamen who are employees of the United States
probably have rights under the United States Employees'
Compensation Act in the event of injury or death. Such compensation
benefits are not presently enjoyed by seamen under private
employment. Thus, vital differences in these rights are made to
depend upon whether the seaman happens to be employed aboard a
vessel time chartered to the War Shipping Administration or owned
by or bareboat chartered to the War Shipping Administration. Since
seamen constantly change from one vessel to another, their rights
for death, injury, or illness also constantly change, depending
upon the relationship of the War Shipping Administration to the
vessel. This fluctuation and lack of uniformity of rights leads to
dependency of vital rights upon chance with a result of confusion
and inequities. The bill is designed to remove this confusion and
these inequities. The bill does not affect seamen employed on
vessels time chartered to the War Shipping Administration where the
vessels are supplied with crews employed by the company from which
the vessel is chartered. As to them, their status and the status of
the Government employees mentioned will be made uniform."
"
* * * *"
". . . They will continue to have the right to indemnity through
court action for injury resulting from unseaworthiness of the
vessel or defects in vessel appliances, and they (and their
dependents) will have the right to action under the Jones Act
(1920) for injury or death resulting from negligence of the
employer. Such seamen will have the right to enforce claims for
these benefits according to the procedure of the Suits in Admiralty
Act, except that claims with respect to social security benefits
shall be prosecuted in accordance with the procedure provided in
the social security law. . . ."
"
* * * *"
"The provision of the Suits in Admiralty Act that suit lies
thereunder only if the ship involved is employed as a merchant
vessel or a tugboat is waived for the purposes of section 1 so that
the claim may be enforced regardless of the nature of the vessel on
which the seaman is serving as an employee of the War Shipping
Administration. To prevent unnecessary or premature litigation
against the United States, it is required that, before suit, there
shall be an administrative disallowance of the same in accord with
rules or regulations to be prescribed by the Administrator, War
Shipping Administration."
H.Rep. No.107, 78th Cong., 1st Sess., pp. 3, 21:
"The basic scope and philosophy of the measure is to preserve
private rights of seamen while utilizing the merchant marine to the
utmost for public wartime benefit. Except in rare cases, the ships
themselves are being operated as merchant vessels, and are
therefore subject to the Suits in Admiralty Act. Granting seamen
rights to sue under that act is therefore entirely consistent with
the underlying pattern of the measure. This should follow even in
the extraordinary case where vessels might otherwise technically be
classed as public vessels."
"
* * * *"
"The various rights and remedies under statute and general
maritime law with respect to death, injury, illness, and other
casualty to seamen have been rather fully set forth hereinabove.
Under clause 2 of section 1(a), these substantive rights would be
governed by existing law relating to privately employed seamen. The
only modification thereof arises from the remedial provision that
they shall be enforced in accordance with the provisions of the
Suits in Admiralty Act. This procedure is appropriate in view of
the fact that the suits will be against the Government of the
United States. In such a suit, no provision is made for a jury
trial as may otherwise be had in a proceeding such as one under the
Jones Act for reasons set forth in the letter of the Attorney
General (September 14, 1942). The provision of the Suits in
Admiralty Act that suit lies thereunder only if the ship involved
is employed as a merchant vessel or a tugboat is waived for the
purposes of section 1, so that the claim may be enforced regardless
of the nature of the vessel on which the seaman is serving as an
employee of the War Shipping Administration. To prevent unnecessary
or premature litigation against the United States, it is required
that, before suit, there shall be an administrative disallowance of
the same in accord with rules or regulations to be prescribed by
the Administrator, War Shipping Administration."
The desirability of a jury trial was commented upon by a
representative of the National Maritime Union and the Attorney
General in reply.
See Hearings on H.R.7424, House
Committee on Merchant Marine & Fisheries, 77th Cong., 2d Sess.,
pp. 30-33.
[
Footnote 2/10]
S.Rep. No.62, p. 13:
"Inasmuch as certain vessel operations on account of the
Government were undertaken prior to the establishment of the War
Shipping Administration by or through the Maritime Commission, the
provisions of section 1 and all amendments therein are made
applicable to the United States Maritime Commission with respect to
the period beginning October 1, 1941, to the time of taking office
of the Administrator, War Shipping Administration (February 11,
1942). To avoid administrative confusion and uncertainty as to the
exact status of employment of seamen employed on War Shipping
Administration vessels, it is provided that seamen employed through
that agency shall be included under the provisions of section 1
even though the seamen may be employed on a vessel chartered or
made available to another department or agency of the United States
for purposes of convenience in the war effort."
"
* * * *"
"With respect to seamen on foreign-flag vessels, the remedy
provided by this legislation is, of course, in substitution for
remedies that might exist under the laws of a country in which the
vessel may be documented, and seamen proceeding under this section
by such choice of remedies will have waived benefits under laws of
any other country that might otherwise be available."
See also H.Report No. 107,
supra, pp. 21 and
22.
[
Footnote 2/11]
158 P.2d 275, 276, 277, 278, 282, 287-288:
"On the trial, the defendant moved for a directed verdict on the
grounds that the evidence showed that the plaintiff was not
employed by it, and that his injury was not caused by its
negligence. The court denied the motion, and in its charge left it
to the jury to determine as a question of fact whether the relation
of employer and employee existed between defendant and
plaintiff."
"
* * * *"
"There is no evidence that the defendant did anything in
connection with the business of the vessel not contemplated by the
terms of the service agreement, or that it exercised or attempted
to exercise any control over the master or crew. Indeed, the
uncontradicted evidence is that, when it was the duty of the
defendant to assist in the loading of the vessel, it acted under
the instructions of the master as to the time, place, and method of
loading."
"
* * * *"
"As stated, the trial judge left to the jury the question of
employer-employee relationship as one of fact. The propriety of
that submission is not defended here, and it seems to be agreed by
both parties that the question is one of law to be determined by
the court. Of the correctness of this view, we think there can be
no doubt."
"
* * * *"
"We find no such basis of liability in this case. The defendant
was not responsible for a negligent order of the boatswain which
sent the plaintiff into a place of danger. There is no evidence
that the vessel was not properly equipped when it started on its
voyage."
[
Footnote 2/12]
See Remedies of Merchant Seaman Injured on Government
Owned Vessels, 55 Yale Law Journal 584, 591.
[
Footnote 2/13]
"The War Shipping Administrator has been advised that, under the
contractual arrangements mentioned above and for other reasons, the
Master, officers, and members of the crew of all vessels owned by
or bareboat chartered to the War Shipping Administration are
employees of the United States, and particularly of the War
Shipping Administration, and are so considered and treated at the
present time by other governmental departments and agencies for the
purposes of the Civil Service Retirement Act, the United States
Employees' Compensation Act, the Federal Social Security Laws, and
the Federal Employment Tax laws. Furthermore, the wages of such
personnel are exempt from attachment as government employees."