Masjulis v. U.S. Shipping Board Emergency Fleet

Full title: MASJULIS v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION et al

Court: Circuit Court of Appeals, Second Circuit

Date published: Mar 11, 1929

31 F.2d 284 (2d Cir. 1929)

Opinion

No. 233.

March 11, 1929.

Appeal from the District Court of the United States for the Southern District of New York.

Action by Walter J. Masjulis against the United States Shipping Board Emergency Fleet Corporation and another. Verdict and judgment for defendants, and plaintiff appeals. Reversed.

The plaintiff was injured in the course of his employment as an able-bodied seaman on the steamship Hatteras, which was owned by the United States of America and operated by the Consolidated Navigation Company, Inc. The injury occurred on February 6, 1925, while the ship was lying in navigable waters in the harbor at New York.

The action, originally begun in the Supreme Court of New York, was removed with the result above set forth. The only error assigned by the plaintiff on appeal relates to the charge on assumption of risk. The plaintiff was ordered by the boatswain to paint the forward port king post, and, as he claimed and testified, was about to be lifted to the top of the post to begin work, when he noticed that the gantline attached to the bosun's chair in which he was sitting was defective, and objected to the use of the rope. He further testified that the boatswain said the rope could not break, started a winch, and began lifting the plaintiff while he was protesting and before he could get out of the chair, and that when he had been hauled to the top of the post the breaking of the rope caused him to fall to the deck and receive the injuries of which he complains.

The defendants denied much of this, but did not deny that the plaintiff was acting under the orders given him by the boatswain, and introduced evidence tending to show that the plaintiff was not lifted to the top of the post at all, but got into the chair after it was up there, and that his fall and consequent injuries were due to causes apart from the condition of the rope; that the rope was in good condition; and defended on the further ground that the plaintiff knew and assumed the risk of its actual condition, whatever that may have been.

On this point the court charged that, if the plaintiff knew the rope was in faulty condition and, knowing the danger, voluntarily used it for the purpose of being raised, he assumed the risk and could not recover. The plaintiff then requested the court to charge on the duty of a seaman to obey the orders of his superior officers, and the following supplemental charge was given:

"The Court (to jury): In determining whether or not there was any coercion, and whether or not the plaintiff freely and voluntarily used this rope, you must, of course, consider the fact that he was a seaman, and that there is an obligation on a seaman to obey reasonable orders. There is a greater obligation of obedience on a seaman than on a workman performing work on land. That is a circumstance that you may consider in determining that issue of the assumption of risk. It is not conclusive, because you must determine whether, notwithstanding that obligation of obedience, he could not have refused to do it, or whether he could not safely and prudently refuse. It is just one of the circumstances in determining whether he freely and knowingly used this rope."

Paul C. Matthews, of New York City (Raymond Parmer, of New York City, of counsel), for appellant.

Charles H. Tuttle, of New York City (Edgar G. Wandless and Howard C. Campbell, both of New York City, of counsel), for appellees.

Before MANTON, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge (after stating the facts as above).

Since the plaintiff was using the rope under orders, it was error to submit the question of assumption of risk to the jury. Cricket Steamship Co. v. Parry (C.C.A.) 263 F. 523; Panama Railroad Co. v. Johnson (C.C.A.) 289 F. 964.

As was pointed out in the Johnson Case, supra, there is such an obligation upon a seaman to obey the orders of his superiors that he cannot have the freedom of action which lies at the base of the doctrine of assumption of risk as applied to workmen on land. On this subject the following language is quoted from the opinion in Storgard v. France Canada Steamship Corporation (C.C.A.) 263 F. 545:

"The common-law rules do not apply to this relation of master and seaman. It is intimate and peculiar, and differs from that between shore master and servants, who may at any time withdraw from service and refuse to use tools and appliances which they think dangerous."

The charge given put the plaintiff where he would be at the disadvantage of having to decide between assuming the risk of injury caused by defective appliances, due to the negligence of his superiors, or of assuming the risk of disobedience to the order of his superior officer, with whatever consequences that would entail, and in either event of assuming the risk of his choice. This in effect gave to the defendants a distinct defense to the action, to which under the law they were not entitled.

Judgment reversed.