Joseph Kermarec v. Compagnie Generale Transatlantique

245 F.2d 175, 1957 U.S. App. LEXIS 4730

• Court: Court of Appeals for the Second Circuit
• Decided: May 21, 1957
• Docket: 24203_1
• Status: Published

Opinions

LUMBARD, Circuit Judge.

This action was brought to recover damages for personal injuries sustained by the plaintiff, Joseph Kermarec, a citizen of New York, aboard defendant’s vessel, the S. S. Oregon, while berthed in the North River at New York.

Evidence was adduced at trial from which a jury could find that on November 28, 1948, about noon, Kermarec went aboard the S.S. Oregon with Henry Yves, a member of the crew. Yves had secured the issuance of a pass by the defendant to Kermarec.¹ Concededly the visit was a purely personal and social call and the two men went to Yves’ room and partook of some refreshments. About four or five o’clock in the afternoon the two men decided to leave the ship. As they started down a stairway, Yves was called by another member of the crew. He turned back and Kermarec proceeded down the stairs by himself.

The stairway consisted of twelve steps, covered by a white canvas runner % inch thick. The canvas was clean and Kermarec testified that, as he started down, the stairs “looked all right all the way down.” Holding the handrail, he continued his descent until he reached the fourth or fifth step from the bottom. The canvas then slipped from under his foot and he fell to the bottom of the stairway fracturing his right hip. While lying at the bottom of the stairway, Kermarec testified, he saw the canvas hanging loose off the edge of the step. Yves and Rene Dufy, the ship’s bartender, came down the stairway immediately after Kermarec but they did not fall.

The canvas had been fastened to a rubber tread on the stair by the ship’s porter, Bourdon. Two small tacks, similar to carpet tacks, had been hammered through the canvas and into the rubber on each step; one on each side of the canvas. Bourdon further testified that the tacks were placed in the same position day after day and that they could be removed easily by “taking hold” of the canvas.

There was other and conflicting evidence but we have stated the facts in the light most favorable to the plaintiff to test the propriety of the dismissal by the district court. Eckenrode v. Pennsylvania R. Co., 1948, 335 U.S. 329, 69 S.Ct. 91, 93 L.Ed. 41.

This action was brought on the civil side of the district court, the complaint alleging diversity of citizenship and that Kermarec’s injuries resulted from the vessel’s unseaworthiness and from the defendant’s negligence. The trial court dismissed the issue of unseaworthiness and submitted only the negligence count to the jury, charging them that the plaintiff was a mere licensee and that the defendant would be liable “only if both of the following conditions are present:

“1. If the defendant knows of the unsafe condition and realizes that it involves an unreasonable risk to the plaintiff and has reason to believe that the plaintiff will not discover the condition or realize the risk; and

“2. If the defendant invites or permits the plaintiff to enter or remain upon the ship without exercising reasonable care either to make the condition reasonably safe or to warn the plaintiff of the condition and risk involved therein.”

The jury returned a verdict for the plaintiff for $7,500. The defendant thereupon moved to set aside the verdict and dismiss the complaint. Judge Murphy granted the motion on the ground that there was no evidence that the defendant had knowledge of the dangerous condition; or that such knowledge could be imputed to the defendant because its servants had used tacks inadequate for the purpose. It is from this order that the plaintiff appeals and also from dismissal of the unseaworthiness count. We agree with both rulings of the district court.

The plaintiff does not stand in such a relationship to the ship that he could maintain an action on the theory of unseaworthiness; Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; nor did he show facts entitling him to a recovery on the theory of negligence. Gunnarson v. Robert Jacob, Inc., 2 Cir., 1938, 94 F.2d 170, certiorari denied, 1938, 303 U.S. 660, 58 S.Ct. 764, 82 L.Ed. 1119; rehearing denied 304 U.S. 588, 58 S.Ct. 948, 82 L.Ed. 1548.

It seems abundantly clear that Kermarec was a mere licensee. He came upon the ship for his own pleasure and convenience and while the defendant consented to his coming, it did not invite him aboard for any “business” purpose.

Although the concept of analogizing the guest of a seaman on ship to the guest of a tenant on a leasehold, advanced in the dissenting opinion, would be an interesting argument if this were a novel question, it has long been held that the guest of a seaman is nothing more than a licensee. Thus in Metcalfe v. Cunard S. S. Co., 1888, 147 Mass. 66, 16 N.E. 701 the plaintiff, going aboard defendant’s ship to consult with the ship’s doctor, was held to be a licensee; and in Freeman v. United Fruit Co., 1916, 223 Mass. 300, 111 N.E. 789 a tailor, admitted aboard ship to fit a seaman’s uniform, was held to be a licensee; in Kosba v. Bank Line, D.C.Md.1931, 46 F.2d 119 plaintiff came aboard ship to install a piano, the personal property of the captain, in order to provide entertainment for the ship’s officers, and was denied recovery since he was a mere licensee; in Silverado S. S. Co. v. Prendergast, 9 Cir., 1929, 31 F.2d 225, the plaintiff was invited aboard the defendant’s cargo ship as the social guest of the master, and was held to be a licensee. See also Apostolou v. Eugenia Chandris, D.C.Or.1938 A.M.C. 995, social guest of a steward, held licensee. As to an employee’s vistor on business premises, cf. Ridley v. National Casket Co., Sup., 1916, 161 N.Y.S. 444, affirmed 4 Dept. 1917, 178 App.Div. 954, 165 N.Y.S. 1109, the cases cited in Meiers v. Fred Koch Brewery, 1920, 229 N.Y. 10, 127 N.E. 491, 13 A.L.R. 633 and Rosehill Cemetery Co. v. City of Chicago, 352 Ill. 11, 185 N.E. 170, 87 A.L.R. 757.

Shipowners are not landlords to their seamen; it is not their business to furnish for their seamen living quarters or any visiting rooms where they may entertain guests at any time. Quite the contrary, there are many reasons why in order properly to control what happens on board, shipowners customarily forbid access to visitors except to certain parts of the ship at certain hours. For this purpose the shipowner issues passes as was done here. To analogize the shipowner to a landlord would disregard many pertinent and obvious facts of the seaman’s status as one who while on board lives where he works.

The seaman has no right to have anyone visit him whenever he chooses; he may not even stay aboard himself except as he is a member of the crew and then only so long as his employment may continue. While the shipowner may permit friends to visit the seaman’s ship at certain times when he is not at work, as here upon the issuance of a pass, both visitor and seaman know full well that this is a privilege revocable at the shipowner’s pleasure. Indeed the regular routine of maintaining a ship, such as this, even while in port, requires the division of seamen and much of the ship’s personnel into three watches, and at all times of the day or night some members of the crew are sleeping. Hence there are many reasons why free access is not granted to visitors. Thus the shipowner’s relationship to his seamen is very different from that of a landlord to his tenant.

The high duty of care which the maritime law has required of shipowners with respect to seamen arises from necessities of the calling which provoke a solicitude for the seaman’s welfare. But the seaman’s visitor who attends at his own choice, for a purpose which is of no benefit to the ship, is on sufferance.

A cause of action for unseaworthiness, while available to seamen and stevedores, is not available to Kermarec who was nothing more than a licensee. The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Seas Shipping Co. v. Sieracki, 1945, 326 U.S. 700, 66 S.Ct. 58, 90 L.Ed. 413; Pope & Talbot v. Hawn, supra. Kermarec did not make any contribution to the ship’s safety, preservation or progress; he did not submit his life and safety to the ship as a seaman does; he did not load her for voyage as a stevedore does; consequently he does not have any right to recover for unseaworthiness.

Nor does Pope & Talbot v. Hawn, supra, pressed on us by appellant, require a different result. In Pope & Talbot, the plaintiff, Hawn, was employed by an independent contractor to make repairs on the petitioner’s vessel which was docked in the Delaware River within the territorial waters of Pennsylvania. He slipped and fell through an uncovered hatch hole on the vessel and sustained injuries for which he sought recovery. Hawn’s suit was brought on the law side of the district court and his complaint alleged that his injuries were the result of unseaworthiness and negligence on the part of Pope & Talbot. Notwithstanding a finding of contributory negligence, a recovery was allowed on the basis of the admiralty rule of comparative negligence. In affirming that decision, the Supreme Court rejected the contention that the Pennsylvania rule of contributory negligence should apply, holding that Hawn's action was governed by the federal maritime law. The court stressed the fact that Hawn was injured in navigable waters “while working on a ship to enable it to complete its loading for safer transportation of its cargo * * * ” 346 U.S. 406, 409, 74 S.Ct. 202, 205, 98 L.Ed. 143.

Though the concept of who is a seaman has been broadened in recent court decisions, we cannot say that this guest of a member of the crew, who came aboard for a social visit, even with the owner’s acquiescence, should be classed as a seaman and entitled to sue for unseaworthiness.

Nor has Kermaree shown the requisite breach of duty on the part of the defendant to entitle him to recover on the theory of negligence.. .Gunnarson v. Robert Jacob, Inc., supra. In Gunnarson, a proceeding to limit a shipowner’s liability, a claim was filed by the son of the ship’s captain to recover for injuries incurred through the alleged negligence ,of the shipowner. The claimant went aboard the vessel to visit with his father and, though he helped him work a tank of gas into a storage space, the main purpose of the visit was purely social. It was found that the ship’s captain had been negligent in installing the gas tank and that this negligence caused it to explode, thus injuring the claimant. Gunnarson, the claimant, was found to have been a mere licensee because of the social nature of his visit, and the claim was dismissed.

The general rule is that the shipowner shall not wilfully or wantonly injure a licensee, or expose him to hidden perils or fail to use due care to prevent injury to him after discovering that he is in danger. Kosba v. Bank Line, supra; Silverado S. S. Co. v. Prendergast, supra; Lauchert v. American S. S. Co., D.C.W.D.N.Y.1946, 65 F. Supp. 703; The Sudbury, D.C.Or.1926, 14 F.2d 533. Rodermond v. United States, 3 Cir., 1950, 179 F.2d 955.

In the instant case Kermarec argued that the defendant had breached its duty in failing to notify him that a dangerous condition existed on the stairs. There was no evidence to show that the defendant knew that the stairs .were in a dangerous condition. On the contrary, there was testimony of crew members that the stairs had been used without mishap throughout the day both before and after the accident and that they had noticed nothing unusual.

The plaintiff, however, maintains that the necessary knowledge could be imputed to the defendant because the tacks used by its servants were clearly inadequate for that purpose. There was no evidence that the tacks were inadequate. The plaintiff’s argument derives solely from a scale drawing of a tack which drawing was in evidence. Standing alone, and in the light of all the surrounding circumstances, this was not enough to permit the jury to draw the inference that the defendant should have known that the condition of the stairway presented a condition of danger to Kermarec of which he should have been warned.

Our decision does not require us to pass on the validity of the disclaimer of liability clause contained in the pass issued by the defendant, and we refrain from so doing.

The judgment is affirmed.

1 . The pass contained the following disclaimer of liability: “The person accepting this pass, in consideration thereof, assumes all risks of accidents and expressly agrees that the Compagnie Generale' . Transatlantique shall not be held liable under any circumstances whether by negligence of their employees or otherwise, for any injury to his person, or for any loss or injury to his property.”