George Hopson v. Texaco, Inc., Rebecca B. Reynolds, Administratrix of the Estate of Frederick Clementreynolds, Deceased v. Texaco, Inc.

351 F.2d 415, 1965 U.S. App. LEXIS 4490

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 15, 1965
• Docket: 9669_1
• Status: Published

Opinions

BOREMAN, Circuit Judge:

These actions were brought under the Jones Act (46 U.S.C.A. § 688) to recover damages for personal injuries to a seaman and for the death of another as a result of an automobile accident on the Island of Trinidad. Verdicts and judgments were rendered against Texaco, Inc., in favor of the injured George Hop-son and Rebecca Reynolds, the widow and personal representative of the deceased Frederick Reynolds. From these judgments Texaco appeals.

The facts are not in dispute. George Hopson and Frederick Reynolds were American seamen employed by Texaco aboard its ship, the S. S. Texaco Wisconsin, a large tanker engaged in transporting bulk petroleum products to various ports. On April 17, 1963, the Wisconsin was at Pointe-a-Pierre on the Island of Trinidad to take on a cargo of fuel at the Texaco-Trinidad corporation refinery which was a wholly owned subsidiary of Texaco and acted as the husbanding agent for the Wisconsin while it was in Trinidad. During the loading of the vessel, Hopson and Reynolds became ill and it became necessary to repatriate them rather than have them continue as crewmen on the Wisconsin and make the forthcoming voyage with the cargo of fuel to San Diego, California, via the Panama Canal. To effect the repatriation according to applicable statutes, the Master of the Wisconsin and the seamen had to appear before a United States Consul where the seamen would be officially discharged and paid their wages. The United States Consul’s office was located in Port-of-Spain, thirty-eight miles north of Pointe-a-Pierre. To arrange transportation to Port-of-Spain, the Master of the Wisconsin contacted Texaco-Trinidad. As was customary when business was to be transacted outside the confines of the refinery, Texaco-Trinidad telephoned John Abhiram’s Taxi Service and requested a taxi. This taxi company, duly licensed by the Trinidad government, was one of two local companies used by Texaco-Trinidad for such purposes. Rambally Abh'iram, a brother of the taxi company’s owner and licensed to work as a taxi driver, was sent to take the Master, Hopson, and Reynolds to Port-of-Spain.

Between Pointe-a-Pierre and Port-of-Spain, the taxi collided with a truck. As a result of the collision, the Master and Reynolds were killed, Hopson and the taxi driver were seriously injured. In July 1963 Hopson and the personal representative of Reynolds instituted separate actions against Texaco. In their respective complaints they alleged that Rambally Abhiram’s negligent operation of the taxi was the proximate cause of the accident and resulting injuries and death and that Texaco was liable for his negligence since the driver was, in fact, Texaco’s agent. The cases were consolidated for trial in the lower court.

At the close of all the evidence, Texaco moved for a directed verdict. Texaco’s position was that the taxi driver was an independent contractor, not an agent, and Texaco was not responsible for any negligence of the taxi driver as long as it had exercised reasonable care in selecting the taxi company and there was no evidence to show that it had failed in this respect. The District Court denied the motion and. held as a matter of law that Texaco was liable for any negligence on the part of the taxi driver which contributed to the accident. The court’s ruling was based on three theories, any one of which the court deemed sufficient to impose liability on Texaco: (1) the taxi driver was an “agent” of Texaco within the meaning of that term as used in the Federal Employers’ Liability Act (herein called FELA); (2) Texaco owed a nondelegable duty to provide reasonably safe facilities for the seamen to use in the course of their employment; and (3) the contract with the taxi company was void under 45 U.S.C.A. § 55. The cases were then submitted to the jury on the issues of the taxi driver’s negligence and damages. The jury concluded, based on facts and circumstances surrounding the accident which are not material to this appeal, that the taxi driver was negligent and awarded damages of $75,000 to the widow and dependents of Reynolds and of $45,000 to Hopson.

In this appeal, Texaco does not contest the jury’s finding that the taxi driver was negligent or the amount of damages. Further, it concedes that Hopson and Reynolds were acting in the course of their employment within the terms of the Jones Act (46 U.S.C.A. 688) when the.accident occurred. The thrust of its argument is that the District Court erred in holding as a matter of law that Texaco was responsible for the taxi driver’s negligence on any of the three theories.

Under general maritime law a seaman could only recover against a ship or its owner for personal injuries suffered in line of service when there had been a breach of the duty to provide a seaworthy ship or to provide him with maintenance and cure. The Jones Act, under which the present suits were brought, gave to seamen or their personal representatives a cause of action against their employer based on negligence. Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932). By reference, the Jones Act incorporated the standards of the Federal Employers’ Liability Act, 45 U.S.C.A. §§ 51-60, for determining the employer’s liability. Under section 1 of the FELA, 45 U.S.C.A. § 51, a railroad is liable to its employees for injuries or death resulting in whole or in part from the negligence of any officers, agents, or employees of such railroad. Other sections of FELA, not material here, abrogate or modify the common law defenses of the fellow servant rule, assumption of risk, and contributory negligence.

The first theory relied on by the District Court to hold Texaco responsible for the taxi driver’s negligence was that the taxi driver was an “agent” of Texaco within the meaning of section 1 of the FELA. That section does not define the term “agents.” Of course, if the taxi driver was an agent under common law principles, he would be an agent for the purposes of the FELA also. However, the court ruled as a matter of law that the taxi driver was an agent and it is clear from the record that the court’s ruling was not based on common law principles, but primarily upon the decision in Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958). The court concluded that the taxi driver was an “agent” because in transporting the seamen to the U.S. Consul’s office to be repatriated, he was performing an “operational activity” of Texaco.¹

The Sinkler case established new concepts to be used in determining who is an “agent” under the FELA. But we do not think that decision can be interpreted to mean that every independent contrac-torwho performs some function incident to the business of railroading or shipping is an agent of the railroad or ship. There, the plaintiff was employed by the Missouri Pacific Railroad as a cook in the private car of Missouri Pacific’s general manager. Belt Railway was under contract with Missouri Pacific to perform all the switching operations in Union Station at Houston, Texas. Belt had been organized by Missouri Pacific and other common carriers for that specific purpose and had been performing all the switching operations since 1905.² On the day of the accident, Belt’s switching crew undertook to move the car in which Sinkler was working from one track to another. Through negligent fault of the switching crew, the car violently collided with another car and plaintiff was injured. In holding that Missouri Pacific was liable for the negligence of Belt’s employees, the Court did not base its decision upon consideration and application of common law principles of agency. Instead, the Court elected to base its decision upon what it found to be the broad congressional purpose behind the legislation and the nature of the service performed by Belt’s employees. The purpose was stated as follows:

“ * * * This statute, an avowed departure from the rules of the common law * * * was a response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety. * * * The cost of human injury, an inescapable expense of railroading, must be borne by someone, and the FELA seeks to adjust that expense equitably between the worker and the carrier. * * * [I] t was the conception of this legislation that the railroad was a unitary enterprise, its economic resources obligated to bear the burden of all injuries befalling those engaged in the enterprise arising out of the fault of any other member engaged in the common endeavor. * * * ” 356 U.S. at pp. 329-330, 78 S.Ct. at p. 762.

The Court said:

“ * * * Switching is a vital operational activity of railroading consisting in the breaking up and assembly of trains and the handling of cars in interchange with other carriers. This function, in the Houston area, had been contracted by the respondent and its predecessors, and other carriers, to the Belt Railway, a carrier specially organized for that purpose.” 356 U.S. at p. 327, 78 S.Ct. at p. 760.

In considering this appeal, it is necessary that we determine the intended meaning of the Supreme Court in its use of the phrase “operational activities.” The language used by the Court in that connection is most helpful:

“In the present case the respondent [Missouri Pacific], rather than doing the necessary switching incident to its business in the Houston Terminal area, arranged that the Belt Railway should supply the crews and equipment to perform this operation on its behalf. But the evidence clearly establishes that the respondent’s trains, when under the control of the Belt Railway’s switching crews, were being handled to further the task of the respondent’s enterprise. While engaged in switching and handling respondent’s cars and trains about the terminal area, the Belt Railway employees on the job were, for purposés of the FELA, as much a part of the respondent’s total enterprise as was the petitioner while engaged in his regular work on the respondent’s car.” 356 U.S. at 331, 78 S.Ct. at 762. (Emphasis added.)

The Court concluded by stating at page 331:

“ * * * We therefore hold that when a railroad employee’s injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are ‘agents’ of the employer within the meaning of § 1 of FELA.” 356 U.S. at 331 and 332, 78 S.Ct. at 763. (Emphasis added.)

From the opinion in Sinkler, it is clear that plaintiff’s injury was a result of a risk connected with railroading and one which FELA was designed to cover. Moreover, at the time he was injured, plaintiff was actually performing the job for which he had been employed and the injury he sustained was a direct result of the negligence of another railroad’s employees who were engaged in a common endeavor without the services of which Missouri Pacific could not have operated its trains. More recently, the Court has referred to and described the factual situation in Sinkler as one in which the railroad engaged an independent contractor to perform “operational activities” required to carry out the franchise. Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 397, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960). One court has stated that it is crucial in applying the Sinkler formula that the railroad actually be performing activities necessary to carry out the franchise. Mazzucola v. Pennsylvania R. R. Co., 281 F.2d 267 (3 Cir. 1960), footnote 4, at page 270.

Applying the guideline principles announced by the Court in Sinkler to the present case and giving the word “agents” an accommodating scope as we feel compelled to do, we do not think the services performed by the taxi company can be called an “operational activity” of Texaco. The nature and regularity of the taxi services rendered are completely different from the services rendered by Belt Railway in Sinkler. The taxi company was one of two local companies which Texaco-Trinidad occasionally used for performing business errands outside the area of the refinery. While the evidence revealed that the taxi company made on the average of two or three trips a week to various places on the Island, most of these trips were for the purpose of taking documents to the U. S. Consul’s office or other places in which case the taxi driver himself delivered the documents. Obviously, few trips would be made for the purpose of repatriating seamen. The service rendered was not, in itself, a part of Texaco’s business of transporting petroleum products to various ports or of operating the tanker Wisconsin. The taxi driver was not performing the same type of work as the seamen and his work had no direct connection with the shipping business. In short, the taxi company was not a part of Texaco’s enterprise; the service performed by it was simply a collateral activity which had nothing to do with the actual operation of a ship.

Two subsequent decisions hereinafter mentioned in which the Sinkler doctrine was applied may appear to support a conclusion contrary to ours as stated above. Carney v. Pittsburgh & Lake Erie R. R. Co., 316 F.2d 277 (3 Cir. 1963), one judge dissenting, cert. denied 375 U.S. 814, 84 S.Ct. 45, 11 L.Ed.2d 49; Leek v. Baltimore & Ohio R. R. Co., 200 F.Supp. 368 (N.D.W.Va. 1962). Admittedly, those cases held certain services performed by independent contractors to be “operational activities” of railroading that tend to extend the Sinkler doctrine. But even in those cases, the frequency and nature of the services rendered differ from the case at bar. In Leek the cab company was hired by the railroad to shuttle train crews between the place where the crews signed in and reported for work and the place where the work was performed. The taxicab would pick up crews ready to begin work and take them to the place of operations. There, it would pick up the crews that were being relieved and transport them back to the check-out point. This shuttling service was provided at the beginning of every shift during each day and had continued over a period of several years. The court, in holding that the cab company was performing an “operational activity,” stated at page 371:

“ * * * This is the day after day, week after week, contract carriage of groups of employees, on company time, between fixed points. It is an integral and continuing part of the railroad’s total operations. * * *»

In Carney, 316 F.2d 277, the railroad had transferred several of its employees to a town in Ohio for the purpose of constructing a special project. It arranged for Carney and his fellow workers to stay at the Pittsburgh & Lake Erie Railroad Y.M.C.A. Carney and the other workers slept at the Y.M.C.A. during the work week, ate two meals a day at its restaurant, and had their lunches packed by Y.M.C.A. employees. This routine had been followed for several months prior to the accident in which Carney was injured when he fell from a negligently maintained bed in the Y.M.C.A. The court concluded that the Y.M.C.A. was performing operational activities for the railroad. It stated at page 281:

“What we have here is that the lodging of Carney at the railroad Y.M.C.A. was an integral part of the Pittsburgh & Lake Erie’s particular and important project in the vicinity. By that means the railroad made sure that Carney was on location and readily available during the period of the Campbell undertaking. The railroad handled Carney’s board and lodging through the Y.M.C.A. ‘ * * to further the task of [its] enterprise.’ And it was just as much a part of that enterprise as when Carney was actually stringing cable, for it put him in Campbell and kept him there to do that phase of the work. * * * In this instance it was solely Pittsburgh & Lake Erie construction, alterations or repairs which were involved and for which his employer wanted Carney to be and remain at the scene. * * * ”

Obviously, the railroad benefited from Carney’s presence and the service rendered by the Y.M.C.A. was a continuing part of the railroad’s over-all operation at the project.³

In two cases factually similar to the case at bar but decided before Sinkler, the courts held that a shipowner was not liable to seamen injured by the negligence of an independent contractor hired by their employer in the absence of a showing that the shipowners had negligently selected an improper or incompetent contractor. McCall v. Overseas Tankship Corp., 222 F.2d 441 (2 Cir. 1955); Pre-meaux v. Socony-Vacuum Oil Co., 187 S.W.2d 690 (Tex.Civ.App.1945). In McCall the contractor had been hired by the employer to transport, by plane, the crew of a tanker from the Far East to New York. While making the trip the contractor’s plane crashed and McCall was killed. The court stated, 222 F.2d at page 444:

“Even if it be assumed arguendo that McCall continued in the employ of Overseas during his flight home, its contractual duty to ‘arrange transportation’ did not make it an insurer of his safety en route. Its duty was to exercise ordinary and reasonable care in selecting the carrier. There is no suggestion that it failed to do so.”

Judge L. Hand, in a concurring opinion, agreed that Overseas was not liable. He stated:

“Since we are all agreed that the airplane company was an independent contractor, whose negligence is not to be imputed to the defendant, it is not necessary to decide whether McCall was still in the employment of the defendant * * * 222 F.2d at 445.

In the Socony-Vacuum case, plaintiff’s decedent was employed as a seaman aboard Socony’s ship. While the ship was on a voyage in the Caribbean Sea, he became ill and had to be repatriated. Socony arranged transportation for him aboard another vessel returning to the United States. Some little time after he had returned to the States, he died from his illness. His personal representative brought an action under the Jones Act against Socony, alleging that Socony was liable for its failure to provide maintenance and cure. Part of the claim was based on a specific allegation that the deceased had not received proper medical treatment on board the vessel which Socony had hired to transport him to the United States. In regard to this part of the claim, the court stated:

“The Jones Act, by referring to and adopting relevant portions of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., which makes the employer liable for the negligence of his officers, agents, and employees, may have enlarged the employer’s liability in some instances * * * , but not where an independent agency has been employed. An independent contractor is not an officer, agent or employee within the meaning of the Federal Employers’ Liability Act, at least, where the employer’s duty is not absolute. * * ” 187 S.W.2d at 698.

While McCall and Premeaux must be read in light of the later Sinkler decision, for reasons hereinbefore assigned, we do not think that Sinkler would compel a different result in those two cases. We are not persuaded that the repatriation of a seaman is an “operational- activity” within the meaning of the phrase as used in Sinkler. Consequently, we hold that the District Court erred in deciding as a matter of law that the taxi driver was an agent of Texaco and in so instructing the jury.

The second point made by the District Court was that an employer “owed a non-delegable duty to provide reasonably safe facilities that his employee must use in the course of his employment.” The court was announcing orally from the bench its ruling on the defendant’s motion for a directed verdict, but made no explanation of its reasoning and cited no authority in support of this stated conclusion. No written opinion was filed. The court had earlier stated that at the time of the accident the two seamen riding in the taxi were in the employment of Texaco and “they were seamen on the ship, the TEXACO WISCONSIN.” The plaintiffs and defendant, in main briefs and argument, seem to construe the court’s pronouncement as a reference to the employer’s duty to provide the employees with a safe place in which to work and to furnish safe equipment, appliances, instrumentalities, and “facilities” to be used in the performance of their work.

We start with the basic premise that Texaco had a duty to exercise reasonable care to provide a safe place for the seamen to work and to provide them with reasonably safe “facilities” (to adopt the catch-all word used by the court below) for use by the employees in the performance of their work. Possibly the District Court was relying on Mr. Justice Clark’s concurring opinion of less than four lines in the Sinkler case:

“ * * * for purposes of the FELA, the Belt Railway was performing a nondelegable duty of respondent’s at the time of petitioner’s injury.” 356 U.S. at p. 332, 78 S.Ct. at p. 763.

But the duty under the FELA to furnish a safe place to work is not absolute and thus an employer is not an insurer of his employee’s safety;⁴ that duty is to exercise reasonable care to provide employees with a safe place in which to work.⁵ The employer is not an insurer of any of the tools or instrumentalities with which the employee is required to work ⁶ but is liable for any defects or insufficiencies therein if attributable to the employer’s negligence.⁷ When the cause of action is based on the Jones Act, negligence concepts are applicable and the shipowner is required only to exercise reasonable care to provide employees a safe place to work and safe appliances;⁸ that duty is not absolute as held and recognized to be in causes of action based solely on unseaworthiness. Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).

Here, Texaco was under the legal duty to repatriate these ill seamen in the discharge of its obligation to provide proper maintenance and cure; it was undoubtedly also a contractual duty by virtue of the ship’s articles and company-union contracts. The duty to repatriate was recognized by Texaco; the seamen were to be returned as soon as possible to America; they and the ship were in a distant part of the world. The plan, unquestionably reasonable under the circumstances, was to provide the seamen’s transportation for a distance of thirty-eight miles by motor vehicle and then by plane to their destination. The Supreme Court has stated:

“ * * * Congress [by enacting the FELA and the Jones Act] did not mean that the standards of legal duty must be the same by land and sea. Congress meant no more than this, that the duty must be legal, i. e., imposed by law; that it shall have been imposed for the benefit of the seaman, and for the promotion of his health or safety; and that the negligent omission to fulfill it shall have resulted in damage to his person. * * * ” Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 377-378, 53 S.Ct. 173, 177, 77 L.Ed. 368 (1932).

This court will take judicial notice of the fact that it is virtually impossible for a shipowner to carry its own shore-side means of transportation from one port to another or for it to own, operate, or control shore-side transportation facilities in every port and every part of the world. It would be unreasonable to require or expect a shipowner to do so. The performance by the shipowner of the duty and obligation to repatriate seamen, whose vessel is then located in a far distant port must, of necessity, be delegated to independent carriers. The rule of reason and logic requires no more than that the selection of the carrier shall not be negligently made.

These seamen were still in the “course of their employment” when the accident occurred. Whether the taxicab in which they were riding be considered as a “place” in which they were working or a “facility” or instrumentality provided for their use, the question is — did Texaco exercise reasonable care in selecting and providing the mode and means of transportation. The evidence disclosed that the taxi company was duly licensed and authorized to operate taxicabs by the government of Trinidad; Texaco’s choice was limited as there were only two taxi companies so licensed and operating on the island; both were used from time to time by Texaco-Trinidad. There is no evidence that the cabs of one of the licensed companies were any better or safer than those of the other; there is no evidence to even suggest that an investigation by Texaco would have disclosed that the selected taxi company employed drivers who were notoriously careless, reckless, negligent, unqualified, incompetent, or accident prone. But even if there were such evidence to support a finding that Texaco had acted negligently and had failed to use reasonable care in the circumstances, the question presented would be for the jury and not for the court.

The court below next voiced the conclusion that the transportation contract between Texaco and the taxi company was “void” under 45 U.S.C.A. § 55, presumably because of the court’s view that Texaco’s purpose was to exempt itself from liability by contracting with another to perform a “nondelegable duty.” The statute, which the court obviously deemed pertinent, reads in part as follows:

“Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: * * *»

As we have stated, there was no legal duty on Texaco to provide its wholly owned, operated, and controlled transportation facilities on Trinidad. We are uninformed as to any cases upon which the court may have relied as supporting its interpretation and application of the statute. We have found two cases which, in the over-all view of the case taken by the lower court, might have been accepted by it as reliable authority.⁹ But those cases are clearly distinguishable from the case at bar because of factual differences. In both, the contractors were performing operational duties for the railroad, duties which would, in fact, warrant the conclusion that the contractors were “agents” of the railroads under the Sinkler doctrine. We find the statute inapplicable here.

We are of the opinion that the District Court erred in denying Texaco’s motion for a directed verdict.

Reversed.

1 . Statements by the court would seem to negate any possibility that it relied on common law principles. It stated:

“The taxi cab which the official of Texaco-Trinidad Corporation called was not owned or controlled by the Texaco-Trinidad Corporation or the Texaco Company.”

The court added:

“The Court is of the opinion that the decision in Sinkler v. Missouri Pacific R. R. Co., 356 U.S. 326 [78 S.Ct. 758, 2 L.Ed.2d 799] (1958), controls the motion before this Court.”

2 . Based on these and subsidiary facts, the jury in the lower court had found that Belt Railway was under the control and supervision of the Missouri Pacific. The state appellate court had reversed this finding as not supported by the evidence. The Supreme Court apparently disregarded it also in reaching its conclusion. See 356 U.S. at p. 331, 78 S.Ct. at 762 and footnote 2 of the dissenting opinion, 356 U.S. at p. 333, 78 S.Ct. at p. 763. Also, in Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 397, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960), the Court stated Belt was an independent contractor.

3 . Our attention has been directed to a California case, Mangrum v. Union Pacific Railroad Company, 230 Cal.App.2d 960, 41 Cal.Rptr. 536 (December 1964) in which a physician who was called by the railroad to attend a sick dining car employee was held to be an agent of the railroad under the expanded doctrine of Sinkler. But, insofar as that case held the service of the physician to be an “occupational activity” of the railroad and that the physician was an agent of the railroad, we do not find it even slightly persuasive.

4 . Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949); Chesapeake & Ohio Ry. Co. v. Thomas, 198 F.2d 783 (4 Cir. 1952); Atlantic Coast Line R. Co. v. Craven, 185 F.2d 176 (4 Cir. 1950); Terminal R. Ass’n of St. Louis v. Howell, 165 F.2d 135 (8 Cir. 1948).

5 . Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949); Ellis v. Union Pacific R. R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572 (1947); Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943).

6 . Terminal R. Ass’n of St. Louis v. Howell, 165 F.2d 135 (8 Cir. 1948).

7 . American Pacific Whaling Co. v. Kristensen, 93 F.2d 17 (9 Cir. 1937); Brittingham v. Ore S.S. Corp., 62 F.2d 616 (4 Cir. 1933).

8 . Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960); Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949); Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943); Southern Ry. Co. v. Fox, 339 F.2d 560 (5 Cir. 1965); West v. United States, 256 F.2d 671 (3 Cir. 1958); 2 Norris, The Law of Seamen § 688 (2 ed. 1962).

9 . Erie R. Co. v. Margue, 23 F.2d 664 (6 Cir. 1928); Eddings v. Collins Pine Co., 140 F.Supp. 622 (N.D.Cal.1956).