In order to recover for personal injuries under provisions of 46 USCS Appx section 688, plaintiff must first establish that there existed between seaman and defendant at time of injury relationship of employee and employer. Cosmopolitan Shipping Co. v McAllister (1949) 337 US 783, 93 L Ed 1692, 69 S Ct 1317, reh den 338 US 839, 94 L Ed 513, 70 S Ct 32; The Norland (1939, CA9 Alaska) 101 F2d 967; Nolan v General Seafoods Corp. (1940, CA1 Mass) 112 F2d 515, 1940 AMC 1410; Christianson v Western Pacific Packing Co. (1938, DC Wash) 24 F Supp 437, 1938 AMC 1258; Sieracki v Seas Shipping Co. (1943, DC Pa) 57 F Supp 724, 1944 AMC 1182, affd in part and revd in part on other grounds (CA3 Pa) 149 F2d 98, 1945 AMC 407, affd 328 US 85, 90 L Ed 1099, 66 S Ct 872, 1946 AMC 698, reh den 328 US 878, 90 L Ed 1646, 66 S Ct 1116 and (superseded by statute as stated in Cooper Stevedoring Co. v Fritz Kopke, Inc. 417 US 106, 40 L Ed 2d 694, 94 S Ct 2174) and (superseded by statute as stated in Capotorto v Compania Sud Americana de Vapores, Chilean Line, Inc. (CA2 NY) 541 F2d 985) and (superseded by statute as stated in Bridges v Penrod Drilling Co. (CA5 La) 740 F2d 361); Shelton v Seas Shipping Co. (1947, DC Pa) 75 F Supp 195, 1947 AMC 1528; Schotis v North Coast Stevedoring Co. (1931) 163 Wash 305, 1 P2d 221, 78 ALR 1427.
46 USCS Appx section 688 has provided right of recovery for seamen against their employers for negligence resulting in injury or death, right which follows from seaman’s employment status and not limited to injury or death occurring on high seas. Moragne v States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906. Armit v Loveland (1940, CA3 Pa) 115 F2d 308; Callan v Cope (1948, CA9 Cal) 165 F2d 703; Miller v Browning S.S. Co. (1947, CA2 NY) 165 F2d 209, cert den 334 US 834, 92 L Ed 1761, 68 S Ct 1341; Haskins v Point Towing Co. (1970, CA3 Pa) 421 F2d 532, 1970 AMC 14, cert den 400 US 834, 27 L Ed 2d 66, 91 S Ct 68, Francis v Pan American Trinidad Oil Co. (1973, DC Del) 59 FRD 631, later op (DC Del) 392 F Supp 1252, 21 FR Serv 2d 489.
Determination of whether individual is in employ of party, or is participant in joint venture is for jury’s determination. The Norland (1939, CA9 Alaska) 101 F2d 967.
46 USCS Appx section 688 applies only between employees and their employers and only when person, be it individual or corporation, can be sued as employer. Mahramas v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 475 F2d 165.
Remedial nature of Jones Act and maritime law required less technical, contractual definition of “employee” than owner claimed; duties of maritime employers are owed not to perfect contracts, but to imperfect sailors and claim that plaintiff obtained employment by use of fraudulently obtained papers does not preclude finding that he was “employee”. Omar v Sea-Land Service, Inc. (1987, CA9 Wash) 813 F2d 986.
Approach to determining seaman status under Jones Act, which takes into consideration all of one’s sea-related activities, not just those pertaining to employment with particular employer, is approach that most comports with central purpose of Jones Act and is most fully consistent with Supreme Court precedent; court will therefore adopt such approach and decline to adhere slavishly to “fleet doctrine” of some sister circuits. Fisher v Nichols (1996, CA2 NY) 81 F3d 319.
Jones Act (46 USCS Appx section 688) claim lies only against seaman’s employer. Mattes v National Hellenic American Line, S. A. (1977, SD NY) 427 F Supp 619.
Claim under Jones Act (46 USCS Appx section 688) can be brought only against seaman’s employer and not against co-employee who is not owner or operator of vessel. Vincent v Penrod Drilling Co. (1979, La App 3rd Cir) 372 So 2d 807, cert den (La) 375 So 2d 646.
214. Relationship with other laws
“Service of the ship” formula, used in maintenance and cure cases, is equivalent of provision under 46 USCS Appx section 688 for personal injury coverage for seaman injured in “course of employment,” and decisions in maintenance and cure cases dealing with whether injury occurred in “the service of the ship” are relevant guides to meaning of term “course of employment” as used in 46 USCS Appx section 688. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.
Extension of scope of shipowner’s obligation of seaworthiness to stevedores does not abrogate rule that Jones Act (46 USCS Appx section 688) applies only where relationship of employer and employee exists. Continental Casualty Co. v Thorden Line (1951, CA4 Va) 186 F2d 992.
Neither 46 USCS Appx section 688 nor Federal Employers’ Liability act (45 USCS section section 51 et seq.), which it incorporates, has to do with right of action which seaman or his representative may have against anyone other than employer of seaman; such sections are concerned with relative rights and obligations of seamen and their employers arising out of personal injuries or death sustained by former in course of employment. The New Brooklyn (1940, DC Mass) 37 F Supp 955, 1941 AMC 319.
Determination of proper Jones Act (46 USCS Appx section 688) defendant in public vessel cases is affected by exclusive liability provision of 46 USCS Appx section 745. Saffrhan v Buck Steber, Inc. (1977, ED La) 433 F Supp 129.
215. Control element
In determining seaman’s employer for purposes of 46 USCS Appx section 688, court must look to plain and rational meaning of employment and employer, which means that right of control is one of most important factors to consider. Mahramas v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 475 F2d 165.
When entity being sued as “employer” is not payroll employer, employee must prove employment relationship; possiblity of some control over his actions, however small, does not suffice. Guidry v South Louisiana Contractors, Inc. (1980, CA5 La) 614 F2d 447, reh den (CA5 La) 616 F2d 568.
Employment relationship is stated by roustabout’s allegation that he performed repair work under direct supervision, management, direction and control of his regular employer. Addison v Gulf Coast Contracting Services, Inc. (1984, CA5 Miss) 744 F2d 494.
Where it did not appear that two defendants in 46 USCS Appx section 688 action had any control over plaintiff prior to or at time of his accident, but undisputed facts established that another defendant hired plaintiff to operate drag line, paid him, and had right to fire him, at time of plaintiff’s action neither of first two defendants was section 688 employer of plaintiff. Cryer v Prestressed Concrete Products Co. (1974, ED La) 391 F Supp 972, affd without op (CA5 La) 507 F2d 1278, cert den 421 US 1016, 44 L Ed 2d 685, 95 S Ct 2425.
Jones Act claims against nonprofit sailing training organization are dismissed because organization is not “employer” of would-be sailors, but acts as type of placement service only, matching would-be sailors and ships for fee, and captain, not organization, exercises control over such sailors on board ship. Heath v American Sail Training Asso. (1986, DC RI) 644 F Supp 1459.
216. Ownership element
To be employer under 46 USCS Appx section 688, employer need not be owner or operator of vessel. Spinks v Chevron Oil Co. (1975, CA5 La) 507 F2d 216, clarified (CA5 La) 546 F2d 675 and (disagreed with by multiple cases as stated in Doucet v Gulf Oil Corp. (CA5 La) 783 F2d 518, reh den (CA5 La) 788 F2d 250); Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.
District Court properly granted summary judgment in favor of corporation alleged to be owner of tanker involved in death of diver, where, despite contentions that maintenance invoices and disbursement vouchers suggested contrary conclusion and that corporation was involved in operation and management of tanker, corporation was not listed as owner on certificate of registry or Coast Guard report and inspection report. Kilkenny v Arco Marine, Inc. (1986, CA9 Cal) 800 F2d 853.
Fact that plaintiff was equitable owner of boat, that he bought it and put legal title in defendant just as convenience indicates that plaintiff was not defendant’s employee. Cerqueira v Cerqueira (1987, CA1 Mass) 828 F2d 863.
In order for seaman to recover, he must sue his employer, who must own, charter, operate, or control operation of vessel to which seaman was more or less permanently attached at time of injury. Case v St. Paul Fire & Marine Ins. Co. (1971, ED La) 324 F Supp 352, app dismd (CA5 La) 456 F2d 252.
Employer need not own vessels on which its employee serves as seaman for Jones Act (46 USCS Appx section 688) to apply. Taylor v Packer Diving & Salvage Co. (1971, ED La) 342 F Supp 365, affd (CA5 La) 457 F2d 512, reh den (CA5 La) 471 F2d 650.
217. Multiple employers
For purposes of 46 USCS Appx section 688 there can be but one employer. Cosmopolitan Shipping Co. v McAllister (1949) 337 US 783, 93 L Ed 1692, 69 S Ct 1317, 1949 AMC 1031, reh den 338 US 839, 94 L Ed 513, 70 S Ct 32.
Under 46 USCS Appx section 688, right of action accrues only where employer and employee relationship exists, but it is possible for seaman to have more than one employer and to recover for injuries against individual and two corporation employers. Armit v Loveland (1940, CA3 Pa) 115 F2d 308, 1940 AMC 1429.
Where employee, injured aboard oil drilling platform, was hired by first corporation which contracted to provide services aboard drilling platform, first corporation, not second corporation (owner of drilling barge), withheld taxes and social security payments from his salary, and first corporation employed employee’s coworker and his supervisor who could have fired employee and second corporation merely could have first corporation recall and replace employee, District Court erred in ruling that first corporation was not employee’s employer for purposes of 46 USCS Appx section 688; seaman may have more than one 46 USCS Appx section 688 employer. Spinks v Chevron Oil Co. (1975, CA5 La) 507 F2d 216, clarified (CA5 La) 546 F2d 675 and (disagreed with by multiple cases as stated in Doucet v Gulf Oil Corp. (CA5 La) 783 F2d 518, reh den (CA5 La) 788 F2d 250).
There is no reason why group of employers who join together to obtain common labor pool on which they draw, by means of union hiring hall, should not be treated as common employer for purposes of determining worker’s seaman status; thus, if type of work he customarily performs would entitle him to seaman status if performed for single employer, worker should not be deprived of that status simply because industry operates under daily, rather than permanent, assignment system. Papai v Harbor Tug & Barge Co. (1995, CA9 Cal) 67 F3d 203, 95 CDOS 7465, 95 Daily Journal DAR 12807, 1995 AMC 2888.
If respondents so scrambled their relations as to render it difficult for any one to say for certain whether libellant was employed by only one or by all of them, that should not serve to defeat libellant’s right by relieving responsible defendant. Kyriakos v Polemis (1945, DC NY) 63 F Supp 19, 1945 AMC 439, affd in part and revd in part on other grounds (CA2 NY) 151 F2d 132, 1945 AMC 1041.
46 USCS Appx section 688 by its terms gives right of action in favor of seaman against his employer alone and there can be only one employer within meaning of section 688. Petition of Oskar Tiedemann & Co. (1964, DC Del) 236 F Supp 895, revd on other grounds (CA3 Del) 367 F2d 498, supp op (CA3 Del) 367 F2d 505, cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 953 and cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 957, reh den 386 US 1000, 18 L Ed 2d 354, 87 S Ct 1303.
Only one person, firm or corporation can be sued as employer for damages under 46 USCS Appx section 688. Hickman v Ohio Barge Line, Inc. (1974, WD Pa) 376 F Supp 1092.
218. Prospective employment
Prospective employee, sent by union to ship, who was injured before acceptance as employee was not entitled to recover under 46 USCS Appx section 688. Miller v Browning S.S. Co. (1947, CA2 NY) 165 F2d 209, cert den 334 US 834, 92 L Ed 1761, 68 S Ct 1341.
In suit by seaman against employer for injuries sustained subsequent to and as result of negligent pre-employment physical examination conducted by independent contractor, no recovery could be had under 46 USCS Appx section 688 since there was no employee-employer relationship existing between plaintiff and defendant at time of examination. Pennington v Pacific Coast Transport Co. (1969, CA5 La) 419 F2d 122.
219. Borrowed servant rule
While numerous factors must be considered to determine whether individual is borrowed servant or employee of another for purposes of 46 USCS Appx section 688, essential to that relationship is some type of agreement, written or verbal, formal or informal, between general employer and temporary employer evidencing intention to create that relationship. Dugas v Pelican Constr. Co. (1973, CA5 La) 481 F2d 773, cert den 414 US 1093, 38 L Ed 2d 550, 94 S Ct 724.
That seaman is borrowed servant of one employer does not mean that he thereby ceases to be his immediate employer’s servant for purposes of 46 USCS Appx section 688. Spinks v Chevron Oil Co. (1975, CA5 La) 507 F2d 216, clarified (CA5 La) 546 F2d 675 (disagreed with by multiple cases as stated in Doucet v Gulf Oil Corp. (CA5 La) 783 F2d 518, reh den (CA5 La) 788 F2d 250).
While there is no fixed test to determine existence of borrowed servant relationship in determining employer-employee status under 46 USCS Appx section 688, certain guidelines have been given great weight, most important standard is that employer who controls employee and employment and who has power and right to control and direct him in performance of his work, other factors are relinquishment of right to control by other employer, borrowing employer’s assumption of obligation for payment of employee’s wages, employee’s performance of work for borrowing employer and latter’s business, furnishing of necessary instruments and place of performance for work in question by borrowing employer, and existence or nonexistence of formal agreement between employers. Hicks v Ocean Drilling & Exploration Co. (1975, CA5 La) 512 F2d 817, cert den 423 US 1050, 46 L Ed 2d 639, 96 S Ct 777 and (disagreed with Theriot v Bay Drilling Corp. (CA5 La) 783 F2d 527).
Although recovery under 46 USCS Appx section 688 is predicated upon establishing employer-employee relationship, under certain circumstances employee of one employer may be considered employee of second employer; in such circumstances, second employer may be liable for negligence under section 688 under what has been termed “borrowed” or “loaned servant” doctrine. Francis v Pan American Trinidad Oil Co. (1973, DC Del) 59 FRD 631, later op (DC Del) 392 F Supp 1252, 21 FR Serv 2d 489.
Anchorhandler, employed by subcontractor of offshore labor, and working on vessel moving drilling rig, is not borrowed servant under Jones Act because: most crucially, he was directly supervised by subcontractor’s employee, subcontractor had sole right to discharge him and paid his wages, and job was done in series of short-term jobs undertaken by subcontractor; thus drilling company hired by rig owner to supervise rig is not anchorhandler’s employer. Hall v Diamond M Co. (1986, ED La) 635 F Supp 362.
220. –Particular circumstances
Employee of railroad was not seaman or borrowed servant of shipowner under 46 USCS Appx section 688 where his only involvement with ship was to cast off her lines and communicate by gesture with her crew to extent necessary to perform that function. Caldwell v Ogden Sea Transport, Inc. (1980, CA4 Va) 618 F2d 1037 (disapproved on other grounds Rodriguez v Compass Shipping Co., 451 US 596, 68 L Ed 2d 472, 101 S Ct 1945, reh den 453 US 923, 69 L Ed 2d 1005, 101 S Ct 3160) and on remand (ED Va) 518 F Supp 1229.
Shipowner was not liable under 46 USCS Appx section 688 for injury to sailor while working for repairman. Wilder v Lykes (1934, DC Tex) 1934 AMC 330.
In view of service agreement between steamship company and United States War Shipping Administration, United States, and not steamship company was plaintiff’s employer for purposes of 46 USCS Appx section 688. Steele v American South African Line (1945, DC Cal) 62 F Supp 636.
Although employee received wages and had taxes withheld from wages by one employer, employee was employee of second employer for purposes of 46 USCS Appx section 688 when employee, pursuant to contract between two employers, was controlled by second employer and employee was member of crew of second employers barge. Porche v Gulf Mississippi Marine Corp. (1975, ED La) 390 F Supp 624.
Plaintiff who had been regular employee of barge owner for over one year immediately prior to commencement of new job on vessel, who was subject to direct supervision of dredge captain while on vessel, whose salary was paid by barge owner, and was covered by barge owner’s insurance policy, was borrowed employee of barge owner. Guidry v South Louisiana Contractors, Inc. (1977, WD La) 444 F Supp 850 remanded (CA5 La) 614 F2d 447, reh den (CA5 La) 616 F2d 568.
Ocean submarine tour provider is entitled to summary dismissal from 46 USCS Appx section 688 claim of its employee, where employee was injured while jumping from ferryboat to dock pursuant to order of ferryboat captain, even though provider had paid employee’s wages and benefits for 4 years, because in this instance employee was under direction and control of ferryboat captain as person designated to assist with ferrying of passengers out to submarines, and it was ferryboat owner who owed duty to provide safe work place to such “borrowed servant”. Wolsiffer v Atlantis Submarines (1994, DC Hawaii) 848 F Supp 1489, 1994 AMC 1476.
Under state law, operator who came with track hoe leased to waterway dredger was joint employee of lessor at time of accident, for purpose of determining lessor’s liability to injured worker under 46 USCS Appx section 688, since operator’s original service with lessor continued, even though operator was acting as dredger’s borrowed servant. Nunez v B & B Dredging, Inc. (2000, ED La) 108 F Supp 2d 656.
221. Employees of persons other than shipowner
Compensation insurance carrier could not sue owner of ship for death of stevedore, who fell through open hatch while engaged in work as stevedore, since deceased was not employee of shipowner for purposes of 46 USCS Appx section 688. Continental Casualty Co. v Thorden Line (1951, CA4 Va) 186 F2d 992.
Plaintiff, whose husband had died as result of asphyxiation suffered while working on ship in harbor as employee of salvage company, could not recover under 46 USCS Appx section 688 because no employer-employee relationship had existed between decedent and shipowner. Turner v Wilson Line of Massachusetts, Inc. (1957, CA1 Mass) 242 F2d 414, 1957 AMC 740.
Suit could not be filed under 46 USCS Appx section 688 to recover for death of members of fishing crew against owner of other vessel, since employer-employee relationship did not exist. Noble v Moore-McCormack Lines, Inc. (1951, DC Mass) 96 F Supp 369, 1952 AMC 69.
Although longshoremen are entitled to protection which flows from shipowner’s obligation of seaworthiness, suit for negligence under 46 USCS Appx section 688 applies only where relationship of employer and employee exists. Raines v John I. Hay Co. (1960, ND Ill) 194 F Supp 706.
Where plaintiff seaman left barge to go ashore to obtain instructions regarding discharge of barge’s cargo of oil and to obtain drinking water and fell by improper walkway while walking between tank owned by storage company, storage company would not be liable to plaintiff under 46 USCS Appx section 688 as no employer-employee relationship existed between the parties. Spearing v Manhattan Oil Transp. Corp. (1974, SD NY) 375 F Supp 764, 19 FR Serv 2d 33.
222. Contractual nature of employment
When owner, with knowledge of future employee, had chartered vessel to another and that person had hired employee, no relationship of contract or otherwise existed between employee and owner which would entitle employee to recover as against owner in suit under 46 USCS Appx section 688. Callan v Cope (1948, CA9 Cal) 165 F2d 703.
Where only helicopter company had contract with mechanic, hired him, paid his wages, and could exercise any real control over his actions, and although his work took place on board ship, work was contractually limited to helicopter and agreement between helicopter owner and vessel owner specifically stated that mechanic was not employee of vessel, but rather independent contractor working for helicopter company, there was nothing to indicate that anyone other than helicopter company was mechanic’s employer for purposes of Jones Act. Trentacosta v Frontier Pacific Aircraft Industries, Inc. (1987, CA9 Cal) 813 F2d 1553.
Rights under 46 USCS Appx section 688 to maintain action at law for damages grow out of seaman’s contract of employment. Silas v Paroh S.S. Co. (1958, DC Va) 175 F Supp 35, vacated on other grounds (CA4 Va) 276 F2d 857.
223. Owner pro hac vice
Relationship necessary for application of doctrine of ownership pro hac vice is ordinarily that of bare-boat charterer-shipowner, that relationship is distinguishable from stevedore-shipowner relationship, or ship repairer-shipowner relationship. Rao v Hillman Barge & Constr. Co. (1972, CA3 Pa) 467 F2d 1276.
Where possession and control of vessel is transferred from one shipping company to another, referred to as “owner pro hac vice”, original owner is relieved of all liability for unseaworthiness. Thomas v Peninsular & Oriental Steam Navigation Co. (1965, DC Pa) 246 F Supp 592, 9 FR Serv 2d 38d.3, Case 1.
224. –Particular circumstances
Vessel owner was not liable under 46 USCS Appx section 688 for death of seaman employed by captain for fishing venture, in which crew was to share in catch since relation of employer and employee did not exist between owner and members of crew; captain became owner pro hac vice. Cromwell v Slaney (1933, CA1 Mass) 65 F2d 940, 1933 AMC 1514.
That trawler was fished on shores did not, as contended by its owners, ipso facto make master owner of vessel pro hac vice so as to constitute seamen his employees, but was merely one factor tending to show ownership in master, and evidence was receivable to determine extent of control over boat and seamen exercised by him. Hudgins v Gregory (1955, CA4 Va) 219 F2d 255.
Action under 46 USCS Appx section 688 could not be maintained against plaintiff’s employer for injuries plaintiff received while on fishing trip due to negligence of another who was sole owner and in possession and control of boat at time, as there was no evidence to show any connection between plaintiff’s employer and operation of boat, or that owner was operating boat as agent, servant, or employee of defendant, or that defendant was either owner or owner pro hac vice of boat at time of accident. Kanischer v Kaplan (1954, DC Fla) 118 F Supp 847, 1954 AMC 793, affd (CA5 Fla) 215 F2d 300, 1954 AMC 1812, cert den 348 US 942, 99 L Ed 737, 75 S Ct 363, reh den 348 US 977, 99 L Ed 761, 75 S Ct 529.
Summary judgment is granted to New Jersey Corporation in action by Honduran seaman arising out of injury while ship was in United States port, where ship was time-chartered to New Jersey corporation but where Honduran subsidiary corporation once removed was operator of vessel under contract with Panamanian owner and where vessel was Honduran registered and flagged, seaman was Honduran, employment contract signed in Honduras stipulating Honduran law controlled, and where there were no interlocking directorates or other evidence of control or influence by New Jersey corporation over Honduran corporation, because Honduran corporation’s allegiance was with Honduras, flag was legitimate and not one of convenience to disguise beneficial American ownership, Honduran corporation was owner pro hac vice, and seaman had access to Honduran courts. Banegas v United Brands Co. (1986, DC SC) 663 F Supp 198.
In action for death under 46 USCS Appx section 688, resulting from injuries received on fishing vessel, evidence of fish company’s correspondence with owner together with company’s subsequent proprietary action over vessel supported jury’s implied finding that company was owner pro hac vice of vessel at time of accident. Radisich v Franco-Italian Packing Co. (1945) 68 Cal App 2d 825, 158 P2d 435.