B. Representatives or Beneficiaries of Seamen

200. Generally

Liability imposed by 46 USCS Appx § 688 for wrongful death of seaman does not abate upon death of beneficiary of cause of action during pendency of suit, but recovery may be had therein for loss suffered by beneficiary up to time of beneficiary's death, damages, when collected to be paid to beneficiary's estate. Van Beeck v Sabine Towing Co. (1937) 300 US 342, 81 L Ed 685, 57 S Ct 452.

46 USCS Appx § 688 confers both action for seaman's wrongful death and action by his survivors for any damages he suffered before death. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90).

Only persons who can share in distribution of moneys recoverable in wrongful death action under 46 USCS Appx § 688 are relatives of decedent who have sustained pecuniary loss as result of his death, and such recovery is directly proportional to loss which each has sustained. Re Uravic's Estate (1932) 142 Misc 775, 255 NYS 638.

201. Personal representatives

Only personal representative, and not beneficiary, has right to sue under Jones Act, 46 USCS Appx § 688. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94.

Cause of action under 46 USCS Appx § 688 may be asserted only by personal representative of decedent and not by beneficiaries of claim. Ivy v Security Barge Lines, Inc. (1978, CA5 Miss) 585 F2d 732, on reh (CA5 Miss) 606 F2d 524, cert den 446 US 956, 64 L Ed 2d 815, 100 S Ct 2927, reh den 448 US 912, 65 L Ed 2d 1173, 101 S Ct 27 and on remand (ND Miss) 89 FRD 322.

Personal representative sues under 46 USCS Appx § 688 for benefit of surviving widow and children. Thornton v Puget Sound Power & Light Co. (1930, DC Wash) 49 F2d 347.

Right of action given by 46 USCS Appx § 688 to personal representative of negligently killed seaman against third person liable for his death is single and indivisible right and cannot be exercised separately and independently both by employee or his dependents and by employer. Terminal Shipping Co. v Branham (1942, DC Md) 47 F Supp 561, 1942 AMC 1435, affd (CA4 Md) 136 F2d 655, 1943 AMC 799.

Personal representative recovers as trustee for designated survivors, and not for estate of decedent; if there is no survivor, no action can be maintained for death under 46 USCS Appx § 688. The Four Sisters (1947, DC Mass) 75 F Supp 399.

In action under 46 USCS Appx § 688 personal representative of deceased seaman does not sue for benefit of estate of deceased nor does any amount recovered or received become asset of deceased's estate, but representative sues by virtue of express designation and holds amount of recovery in nature of trustee for benefit of those persons who are authorized to recover. Petition of Southern S. S. Co. (1955, DC Del) 135 F Supp 358.

In action under 46 USCS Appx § § 688 and 761 et seq. , congressional intent was to vest right of action for maritime death solely in personal representative, whose right to maintain action carries with it by necessary implication sole power to control prosecution of suit and to settle or compromise claim; with two exceptions: (1) that where conflict of interest exists between decedent's personal representatives and beneficiary, beneficiary may intervene in suit instituted by personal representative and therein assert independent claim for wrongful death on his own behalf, (2) that where personal representative actively participates or co-operates with beneficiary in settlement of beneficiary's claim, settlement executed by beneficiary is valid; Benoit v Fireman's Fund Ins. Co. (1978, La) 355 So 2d 892 on remand (La App 3d Cir) 361 So 2d 1332.

202. --Executors or administrators

If mother of deceased seaman, as administratrix, is entitled to recover under Jones Act, 46 USCS Appx § 688, her recovery would not be on behalf of estate but solely as trustee for designated survivers who, in particular case, are widow and minor children of deceased. Hassan v A. M. Landry & Sons, Inc. (1963, CA5 La) 321 F2d 570, cert den 375 US 967, 11 L Ed 2d 416, 84 S Ct 486.

Testamentary executrix of succession of deceased seaman, as personal representative of his estate, has standing to sue for claims arising from his death under 46 USCS Appx § 688. Higginbotham v Mobil Oil Corp. (1973, WD La) 360 F Supp 1140, affd in part and revd in part on other grounds (CA5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

203. --Procedural considerations

Right of action under Jones Act, 46 USCS Appx § 688, is enforceable solely by personal representative who acts as trustee for beneficiaries designated in Jones Act; however, right to maintain action is not limited to personal representative appointed by court of county and state of decedent's last place of residence. Rowston v Oglebay Norton Co. (1960, DC Ohio) 180 F Supp 803.

Personal representative appointed by state court may prosecute action under Jones Act, 46 USCS Appx § 688, in second state court even though no ancillary administration has been established in second state. Petition of Keystone Tankship Corp. (1965, WD Wash) 237 F Supp 689.

Term "personal representative" requires some designation by court that individual seeking to prosecute wrongful death action is administrator of decedent's estate; contention that claimants would be without capacity to sue under federal wrongful death statutes absent their procurement of letters of administration from New York County Surrogate's Court is without merit, if claimants had received testamentary letters from Italian court; ancillary letters of administration would be required from local court when recovery for pain and suffering under local wrongful death statute is sought. Complaint of Cosmopolitan Shipping Co., S.A. (1978, SD NY) 453 F Supp 265.

Court would not permit widow of plaintiff in Jones Act suit (46 USCS Appx § 688) to be substituted as named plaintiff until she obtains designation by some court that she is administratrix of decedent's estate. Marcano v Offshore Venezuela, C.A. (1980, ED La) 497 F Supp 204, 30 FR Serv 2d 1560.

204. Dependency as requisite to recovery

Non-dependent brothers of seaman killed in maritime accident lack standing to assert wrongful death action under Jones Act (46 USCS Appx § 688). Evich v Connelly (1985, CA9 Wash) 759 F2d 1432.

Any next of kin who seek to avail themselves of benefits conferred by 46 USCS Appx § 688 must be dependent upon decedent at time of his death. Bailey v Baltimore Mail S.S. Co. (1941, DC NY) 43 F Supp 243, 1942 AMC 112.

Surviving spouse, parent or child of decedent need not show dependency upon decedent for recovery under 46 USCS Appx § 688, only claimants who must prove dependency are next of kin and relatives. Petition of Risdal & Anderson, Inc. (1968, DC Mass) 291 F Supp 353.

Dependency is not required for parent to recover under 46 USCS Appx § 688. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90).

It is reasonable expectation of pecuniary benefit which is recoverable under 46 USCS Appx § 688 in action for wrongful death of seaman and it is not necessary for claimant to show dependency on seaman or that claimant needed amount claimed. Presley v Upper Mississippi Towing Corp. (1963, La App 1st Cir) 153 So 2d 416, cert den 244 La 1002, 156 So 2d 56 and cert den 244 La 1003, 156 So 2d 56.

205. Spouse

Under general maritime law, spouse of harbor worker injured nonfatally aboard vessel in state territorial waters may maintain action for damages for loss of injured spouse's society. American Export Lines, Inc. v Alvez (1980) 446 US 274, 64 L Ed 2d 284, 100 S Ct 1673.

In case of widow or husband and children or parent, there must exist reasonable expectation of pecuniary benefit from continued life of deceased, irrespectively of dependency. Wade v Rogala (1959, CA3 Pa) 270 F2d 280, 2 FR Serv 2d 49, 1960 AMC 2425.

Rule that spouse of injured seaman is entitled to damages for loss of society will not be given retrospective application where spouse did not institute claim either contemporaneously or closely in time with that of seaman. Nealy v Fluor Drilling Services, Inc. (1981, WD La) 524 F Supp 789, affd (CA5 La) 701 F2d 441.

Injured seaman may not amend her Jones Act (46 USCS Appx § 688) complaint to add her spouse's claim for loss of society, because there can be no recovery for loss of consortium in case involving nonfatal injury to seaman under § 688 or general maritime law. Cater v Placid Oil Co. (1991, ED La) 760 F Supp 568.

Remedies applicable to seamen under Jones Act applied to injuries suffered by derrick hand on offshore drilling rig; nevertheless, derrick hand's wife could not maintain action under Jones Act for loss of society of husband, in that Act explicitly provides only for pecuniary damages. Gaspard v Transworld Drilling Co. (1985, La App 3d Cir) 468 So 2d 692, cert den (La) 474 So 2d 1304, cert den (US) 89 L Ed 2d 607, 106 S Ct 1382.

206. --Estranged or non-supporting seaman

Widow of deceased seaman was entitled to substantial damages under 46 USCS Appx § 688 even though she and decedent had quarreled and separated where it was not shown that decedent intended to leave his wife permanently nor that there was any thought of divorce on either side. Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622.

Lawful widow was entitled to receive damage award under 46 USCS Appx § 688, even though decedent had long ago ceased to support her, where it is clear that under state law widow could at any time have forced decedent to contribute to her support; widow therefore suffered financial loss because of decedent's death, for which she is entitled to substantial damages. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94.

Widow is entitled to recovery under 46 USCS Appx § 688 even though for several years previous to seaman's death, he had not contributed to support of widow or their children and while widow could have compelled such support by legal proceedings, she had not tried to do so, decedent and widow were neither divorced nor legally separated and there was uncontradicted testimony that 3 years before his death, decedent had lived at home with his wife for 2 or 3 weeks and had then promised that he would mend his ways. Diaz v Lykes Bros. S.S. Co. (1956, CA2 NY) 229 F2d 269.

Although decedent did not contribute to support of his wife during 5 years immediately preceding his death and she made no attempt to compel him to do so, she is not barred from recovery under 46 USCS Appx § 688; extent of decedent's past contributions to spouse does bear on issue of damages. Orona v Isbrandtsen Co. (1963, CA2 NY) 313 F2d 241.

In action by seaman against vessel under general maritime law of unseaworthiness to recover for injuries sustained while working aboard vessel, seaman's estranged wife cannot recover for loss of consortium on behalf of herself and children under special bond which was posted to secure lease of foreign vessel from arrest, even though wife concedes priority to husband's claim or that her claim stands or falls with husband's claim. Overstreet v The Water Vessel "Norkong" (1983, CA5 Miss) 706 F2d 641.

Even though widow had long been separated from her husband and had received no allotments or support from him since date of separation she would not be barred from recovery under 46 USCS Appx § 688. Miles v States Marine Lines, Inc. (1971, ED Tex) 325 F Supp 1370.

207. --Putative spouse

Putative wife under law of Louisiana is not beneficiary on whose behalf suit under 46 USCS Appx § 688 may be maintained. Beebe v Moormack Gulf Lines, Inc. (1932, CA5 La) 59 F2d 319, 1932 AMC 925, cert den 287 US 597, 77 L Ed 520, 53 S Ct 22.

Woman who entered into bigamous relationship with seaman was not legal common law widow under state law, which did not recognize common law marriage, and could not recover for death of seaman under 46 USCS Appx § 688 even if she was dependent on seaman and no other woman claimed as widow. Bell v Tug Shrike (1964, CA4 Va) 332 F2d 330, cert den 379 US 844, 13 L Ed 2d 49, 85 S Ct 84.

208. Children

Unadopted stepchild of deceased seaman and natural children given in adoption by him before his death could not recover under Jones Act (46 USCS Appx § 688) where applicable state law, to which court would look for determination of eligible "children," precluded recovery in wrongful death action by ones in such relationship. Cormier v Williams/Sedco/Horn Constructors (1978, ED La) 460 F Supp 1010.

Claims of improper dispostion of remains of sailor who died at sea made by decedent's mother, brothers and sisters are dismissed but claim by daughter is upheld, because, looking to state law since there is no maritime precedent for assessing liability against vessel owner for burial at sea, law of state of decedent's residence provides that only decedent's daughter can have cause of action. Floyd v Lykes Bros. S.S. Co. (1987, ED Pa) 655 F Supp 380.

209. --Illegitimate

Illegitimate children are qualified as beneficiaries of deceased seaman under 46 USCS Appx § 688. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94.

Child born out of wedlock is entitled to recover damages for loss of parent. Hebert v Petroleum Pipe Inspectors, Inc. (1968, CA5 La) 396 F2d 237.

Illegitimate son could recover for death of father under 46 USCS Appx § 688, but action had to be brought by decedent's personal representative, not next friend of son. Re Petition of Risdal & Anderson, Inc. (1967, DC Mass) 266 F Supp 157.

It is well established a child born out of wedlock is entitled to damages for loss of his parent under both Jones Act (46 USCS Appx § 688) and Death on High Seas Act (46 USCS Appx § 761). Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90).

Jones Act (46 USCS Appx § 688) claim for wrongful death benefits brought by grandparents whose deckhand son-in-law drowned when he drove into intracoastal waterway from touring vessel is dismissed only in part, where deckhand was not biological father of granddaughter but married mother when she was pregnant, signed birth certificate as parent and loved and supported after born child as his own, because illegitimate child of deckhand qualifies as Jones Act beneficiary but grandparents do not as they were not "next of kin" to their son-in-law. Re Complaint of Bertucci Constr. Co. (1991, ED La) 771 F Supp 163.

210. Parents

Section 1 of the Federal Employers' Liability Act [45 USCS § 51], incorporated into 46 USCS Appx § 688, provides for three alternative classes of beneficiaries under 46 USCS Appx § 688, and brother and sister of decedent cannot recover as long as mother is living. Gillespie v United States Steel Corp. (1964) 379 US 148, 13 L Ed 2d 199, 85 S Ct 308, 1965 AMC 1 (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

Although deceased left no wife or children, recovery may be had under 46 USCS Appx § 688 for use of his father who was his sole surviving parent. United States v Boykin (1931, CA5 Fla) 49 F2d 762, 1931 AMC 1056.

Surviving parents of seamen drowned when drilling vessel on which seamen were crew members capsized cannot recover nonpecuniary damages under Jones Act for loss of their sons' society where seamen were also survived by spouses and some of seamen were also survived by children, since, under 45 USCS § 51, parents can recover only when seaman is not survived by spouse or children. Sistrunk v Circle Bar Drilling Co. (1985, CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

Mother of deceased seaman was beneficiary of right of action created by 46 USCS Appx § 688 and only beneficiary entitled to assert claim for damages for wrongful death, and dependent brother of deceased seaman was stranger to action. Clinton v Ingram Corp. (1970, ND Miss) 312 F Supp 539.

Although parents of bargeman killed when mooring bitt broke could not recover for his wrongful death under 46 USCS Appx § 688, where decedent was survived by posthumous illegitimate child, parents could recover under general maritime law, even though not financially dependent upon deceased's earnings. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90).

Parent of deceased unmarried seaman has personal right of action against vessel owner for wrongful death under Jones Act, as well as right to bring action as personal representative of deceased. Gomez Sanchez Vda de Gonzales v Naviero Neptuno S.A. (1986, ED Tex) 641 F Supp 75.

Parent's Jones Act (46 USCS Appx § 688) and general maritime law claims for loss of society of their son will not be summarily dismissed, where seaman son, who performed regular work on parent's dairy farm while living at home, was returning to employer's ship in intoxicated state when death occurred, because material disputes exist as to (1) level of seaman's intoxication, and (2) parents' dependency on son. Ausborn v Scott Chotin, Inc. (1988, ED La) 697 F Supp 251.

211. Siblings

Recovery under 46 USCS Appx § 688 for death of seaman depends on § 1 of Federal Employers' Liability Act (45 USCS § 51), which limits liability to one of three statutory classes of possible beneficiaries and does not create liability to several classes collectively; consequently, 46 USCS Appx § 688 does not provide for damages for seaman's death for benefit of seaman's brother and sisters as well as for his mother. Gillespie v United States Steel Corp. (1964) 379 US 148, 13 L Ed 2d 199, 85 S Ct 308 (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

Where decedent's brother and sister were not dependent upon him, they are not entitled to recovery under 46 USCS Appx § 688 as next of kin. Bailey v Baltimore Mail S.S. Co. (1941, DC NY) 43 F Supp 243.

Under 46 USCS Appx § 688, cause of action for pain and suffering of decedent does not survive if only survivor is sister who is not dependent; half sister of decedent is not entitled to award under 46 USCS Appx § 688 if mother was living at time of death of decedent. Petition of United States (1950, DC NY) 92 F Supp 495, 1951 AMC 112.

212. Fiancees

Fiancee of deceased barge worker had no cause of action for his wrongful death under 46 USCS Appx § 688 or Death on High Seas Act (46 USCS Appx § 761). Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den 469 US 819, 83 L Ed 2d 37, 105 S Ct 90).

III. EMPLOYMENT RELATIONSHIP

A. In General

213. Generally

In order to recover for personal injuries under provisions of 46 USCS Appx § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 688 nor Federal Employers' Liability act (45 USCS § § 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 § 688) defendant in public vessel cases is affected by exclusive liability provision of 46 USCS Appx § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 688; seaman may have more than one 46 USCS Appx § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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.

B. Particular Persons or Entities as Employers

225. Agents

General agent appointed to manage and conduct business of vessels assigned to it, whose duties were expressly and intentionally limited to those of ship's husband, and who had no part in actual management or navigation of vessel is not liable under 46 USCS Appx § 688 to member of crew who suffered physical injury through negligence of officers and master of vessel. 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.

Ship's husband or general agent whose principal duty consists of shoreside management of vessel with possession and control of hiring of master retained by general owner is not owner pro hac vice and is not seaman's employer so as to be liable to him under 46 USCS Appx § 688. 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; Romero v Garcia & Diaz, Inc. (1961, CA2 NY) 286 F2d 347, 1961 AMC 592, cert den 365 US 869, 5 L Ed 2d 860, 81 S Ct 905; Cruz v Maritime Overseas Corp. (1963) 1963 AMC 1870.

Where libellant was engaged at offices of Greek Line pursuant to orders from captain of vessel, Greek Line paid expenses of his transportation to port where he joined ship, and also some of medical expenses incurred as result of assault which gave rise to libel, out of funds of agent for vessel, which agent was controlled by copartnership, Greek Line was liable under 46 USCS Appx § 688 as agent for undisclosed principal. Kyriakos v Goulandris (1945, CA2 NY) 151 F2d 132, 1945 AMC 1041.

Agent is not responsible for injury to seamen under 46 USCS Appx § 688 where, although agent did perform some general duties for vessel, he exercised no control over her master and crew, was not responsible for hiring of crewmen and had no power to fire and made no decisions concerning deployment and supervision of crew. Volyrakis v M/V Isabelle (1982, CA5 La) 668 F2d 863.

Management relationship was not sufficiently shown between agent of shipowner and plaintiff by evidence that letter guarantee plaintiff employment was written on agent's stationery, agent arranged and paid for plaintiff's transportation to vessel, agent reviewed welfare of employees and provided medical care for plaintiff, where agent's actions did not involve control, direction, and supervision over plaintiff. Matute v Lloyd Bermuda Lines, Ltd. (1991, CA3 NJ) 931 F2d 231.

Even though agent for vessel owner signs shipping articles of employee, he does not become employer of seamen under Jones Act or general maritime law; junior engineer on vessel failed to establish requisite facts necessary to form employer-employee relationship, where uncontroverted facts indicated that company with which junior engineer signed employment agreement had no ownership interest in vessel in whose service junior engineer was employed, but was simply negotiating employment contract with seamen as disclosed agent on behalf of vessel owner. Stamoulos v Howland Panama S.A. (1985, ED La) 610 F Supp 454.

Administrator of deceased captain's estate may not be held liable under 46 USCS Appx § 688 as employer of sail trainees who also died in tragic accident during tall ships race, where captain had no ownership interest in vessel; he did not share in profits from vessel's operations; and he had no control over vessel's itinerary beyond operational control necessarily assumed by captain, because captain was neither owner pro hac vice nor partner with owners of vessel. McAleer v Smith (1993, DC RI) 818 F Supp 486.

226. --For government entity

Owner of vessel was subject to action under 46 USCS Appx § 688 although it operated vessel in behalf of United States under general agency agreement. Brady v Roosevelt S.S. Co. (1943) 317 US 575, 87 L Ed 471, 63 S Ct 425, 1943 AMC 1, reh den 318 US 799, 87 L Ed 1163, 63 S Ct 659.

General agent of vessel owned by government and operated by War Shipping Administration is not liable under 46 USCS Appx § 688 to seaman for injury caused by negligence of officer or crew of such vessel. 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; Fink v Shepard S.S. Co. (1949) 337 US 810, 93 L Ed 1709, 69 S Ct 1330, 1949 AMC 1045; Casey v American Export Lines, Inc. (1949, CA2 NY) 176 F2d 337, 1949 AMC 1510.

Alleged assault by fellow seaman aboard United States-owned ship gives no right of action under 46 USCS Appx § 688 against general agent whose duty was limited to procurement of personnel, and neither does alleged negligence in providing medical aid. Hanlon v Waterman S.S. Corp. (1959, CA2 NY) 265 F2d 206, 1959 AMC 905, cert den 361 US 822, 4 L Ed 2d 67, 80 S Ct 69.

Action under 46 USCS Appx § 688 must be against employer and cannot be against general agent even though agency relation was not disclosed to employee; motion to dismiss would be sustained where government was employer and action was against its general agent. Bohannon v American Petroleum Transp. Corp. (1949, DC NY) 86 F Supp 1003.

227. Charterers

Under 46 USCS Appx § 688, plaintiff cannot maintain action against owner of vessel who unlawfully chartered vessel to plaintiff's employer. Osland v Star Fish & Oyster Co. (1941, CA5 Ala) 118 F2d 772, 1941 AMC 792, cert den 314 US 615, 86 L Ed 495, 62 S Ct 86, reh den 314 US 716, 86 L Ed 570, 62 S Ct 477.

Mere fact that charterer has some control over master, or that charterer selects routes to be taken or cargo to be carried does not make him owner pro hac vice. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.

District Court did not err by deciding as matter of law that ship operator rather than ship owner was liable employer under Jones Act (46 USCS Appx § 688), where ship operator's name was on employment contract and wage receipts, ship operator managed ship, operated and chartered vessel, and paid for injured seaman's transportation from Greece to United States to join ship. Karvelis v Constellation Lines S.A. (1986, CA2 NY) 806 F2d 49.

Vessel owner is not liable under 46 USCS Appx § 688 for action of charterer having complete charge of vessel in failing to give seaman hospital slip. Baccarat v Andrew F. Mahoney Co. (1933, DC Cal) 4 F Supp 611, 1933 AMC 1652.

One who charters vessel owned by another is liable under 46 USCS Appx § 688 for negligence resulting in injuries to member of crew employed by charterer; in such circumstances shipowner may not be held responsible. Gardiner v Agwilines (1939, DC NY) 29 F Supp 348.

228. --Bareboat or demise charter

In action by marine engineer against his employer for personal injuries, complaint alleged that defendant had chartered or leased vessel on which injuries were received from United States; even if this is construed to mean bare-boat charter, Suits in Admiralty Act (46 USCS Appx § § 741 et seq.) would not apply, and federal District Court would have jurisdiction under 46 USCS Appx § 688. Foster v Moore-McCormack Lines, Inc. (1942, CA2 NY) 131 F2d 907, 1943 AMC 42, cert den 318 US 762, 87 L Ed 1134, 63 S Ct 560.

While diver was immediate employee of one employer, bareboat charterer could be found to be diver's employer for purposes of 46 USCS Appx § 688 depending on control bareboat charterer exercised over diving project and daily operations of divers thereby making diver's employer simply agent of charterer and diver thereby its subagent or employee. Savard v Marine Contracting, Inc. (1972, CA2 Conn) 471 F2d 536, cert den 412 US 943, 37 L Ed 2d 404, 93 S Ct 2778.

Arrangement between vessel owner and fish processor did not amount to demise charter rendering processor liable under Jones Act as owner pro hac vice notwithstanding that (1) processor had role in manning vessel which was relatively insubstantial, (2) processor acted as ship's agent and, under agreement for purchase and sale of fish, could generally decide where ship would go and mission it would perform, and (3) processor was creditor of vessel and financed fishing operations. Stephenson v Star-Kist Caribe, Inc. (1979, CA1 Puerto Rico) 598 F2d 676.

Boat owner was not liable to seaman for injuries where owner had bareboat charter with charterer who employed seaman, as owner received percentage of profit, but had no agreement or requirement with charterer concerning hiring and supervision of crew or operation of boat or fishing enterprise. Wheatley v Gladden (1981, CA4 Md) 660 F2d 1024.

Agreement between captain and fishing company, providing that captain would give fishing company either one-third of each catch or cash value thereof, does not make captain bareboat charterer, where agreement was verbal and provided no set duration and evidence indicated that ship repairs would be charged to fish company. Deal v A. P. Bell Fish Co. (1982, CA5 La) 674 F2d 438 later app (CA5 La) 728 F2d 717.

Demise charterer is deemed to be crew's employer for purposes of Jones Act liability. Blanco v United States (1985, CA2 NY) 775 F2d 53.

Demise (bareboat) charterer stands in shoes of owner for purposes of imposing liability under 46 USCS Appx § 688. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

There is no authority for holding charterer liable for unseaworthiness when vessel has been subdemised and unseaworthy condition existed at time vessel owner was in possession and was brought into play by negligence of subdemisee; charterer was neither owner nor owner pro hac vice. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

Defendant owner has no liability to plaintiff as seaman on vessel under 46 USCS Appx § 688 when demise of vessel entered into before ship construction was completed, expressly provided that all equipment on vessel should be selected by lessee who had sole duty of inspecting equipment for defects and that warranties by lessor of fitness for vessel for any particular purpose was expressly disclaimed; charter by whose terms whole vessel is let to charterer with transfer to him of its entire command and possession in consequent control over its navigation amounts to demise of vessel or bareboat charter, and charterer is generally considered owner for service stipulated. Owner's liability upon warranty of seaworthiness at time of charter has legal substance in ordinary time of voyage charter of affreightment, but has no application to demise charter which contains express disclaimer of any warranties. Lugo v Transunion Leasing Corp. (1977, DC Del) 440 F Supp 1067.

Important legal consequence of demise or bareboat charter is that demise charterer is viewed as owner of vessel pro hac vice who becomes responsible for all in personam liability arising out of ship's operation during demise, including obligation of seaworthiness. Lugo v Transunion Leasing Corp. (1977, DC Del) 440 F Supp 1067.

229. --Time charter

In time charter arrangements, vessel owner is proper defendant in suit under 46 USCS Appx § 688 brought by or on behalf of injured seaman. Bergan v International Freighting Corp. (1958, CA2 NY) 254 F2d 231, 1958 AMC 1303; Saridis v S.S. Paramarina (1962, ED Va) 216 F Supp 794.

United States, as time charterer, was not liable under 46 USCS Appx § 688 for injuries sustained by seaman as result of failure to have lifeboats fixed in position prescribed by Coast Guard regulations. Ryan v United States (1944, DC Pa) 57 F Supp 586, 1945 AMC 60, affd (CA3 Pa) 150 F2d 366, 1945 AMC 690.

Libel was brought against United States and marine corporation for damages under 46 USCS Appx § 688 for injuries sustained by libellant while employed as chief steward on board vessel owned by United States and for maintenance and cure; since vessel was operated and controlled by marine corporation under time charter and claim was negligence, suit was required to be dismissed except as against respondent marine corporation. Battice v United States (1948, DC NY) 79 F Supp 932.

230. Contractors

General contractor is proper 46 USCS Appx § 688 defendant even though jury determines that it did not have operational control over vessel, where injured seaman was employed by contractor and assigned to duties which bore sufficiently permanent connection to barge to qualify injured seaman as member of its crew, general contractor supervised particular operations which gave rise to seaman's injury, and where negligence of general contractor was cause of injury. Barrios v Louisiana Constr. Materials Co. (1972, CA5 La) 465 F2d 1157.

If prime contractor has assumed enough of incidents of employer, such as right to control employee's work, he will be deemed seaman's employer for purposes of 46 USCS Appx § 688. 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).

Vessel owner may contract with others for services aboard its vessel and if it does, employees of contractor are its' Jones Act (46 USCS Appx § 688) employees, not Jones Act employees of owner. Saffrhan v Buck Steber, Inc. (1977, ED La) 433 F Supp 129.

231. --Particular circumstances

Where plaintiff, professional hairdresser, was hired by independent contractor to work aboard shipowner's vessel, was paid by independent contractor, was considered employee of independent contractor, signed ship's articles making her subject to ship's rules and discipline, but was not responsible to shipowner for working orders nor subject to owner's call to duty, plaintiff's claims under 46 USCS Appx § 688 and for maintenance and cure were properly dismissed against shipowner as it was not plaintiff's employer; independent contractor was proper party for plaintiff to sue because it was her employer. Mahramas v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 475 F2d 165.

Where oil company contracted with defendant to have defendant install production facilities on off shore platforms, oil company then contracted with boat company to have defendant's workers on platform at which injury in case occurred transported there aboard large crew boat owned by boat company, and painter's helper employed by defendant was injured while being lifted in large cargo basket by crane to platform, failure to establish that defendant enjoyed sufficient control of vessel to be held owner for occasion did not necessarily defeat 46 USCS Appx § 688 claim. Callahan v Fluor Ocean Services, Inc. (1973, CA5 La) 482 F2d 1350.

Worker normally employed upon barge that carried large dragline could not have been seaman-employee with respect to construction contractor who contracted to rent dragline for excavation of pond where injury occured on land, contractor had no connection with or control over barge, worker had never been in contractor's employ as seaman before injury, was not employed as seaman at time of injury, and did not anticipate working for contractor as seaman in future. Guidry v South Louisiana Contractors, Inc. (1980, CA5 La) 614 F2d 447 reh den (CA5 La) 616 F2d 568.

United States has no liability under 46 USCS Appx § 668 for injuries sustained where contract between United States and third party placed no duty on United States to determine whether safe diving procedures were being practiced by subcontractors and their personnel and where work to be performed was not so inherently and particularly dangerous that United States might have special duty placed upon it. Trautman v Buck Steber, Inc. (1982, CA5 La) 693 F2d 440.

Corporation in business of supplying welding services for offshore well platform which employed seaman who was injured while standing on stern of vessel while doing repair work on drilling platform was employer for purposes of 46 USCS Appx § 688 notwithstanding that it did not have control of vessel. Bell v National Boat Corp. (1974, La App 3d Cir) 298 So 2d 327, cert den 421 US 911, 43 L Ed 2d 776, 95 S Ct 1565, reh den 421 US 981, 44 L Ed 2d 473, 95 S Ct 1984.

232. Dock owners

Impleading of wharf owner into action under 46 USCS Appx § 688 was permitted where defendant shipowner sought indemnity from wharf operator in suit arising out of personal injuries suffered by seaman due to condition of wharf where vessel was berthed. Ammesmaki v Interlake S.S. Co. (1965, CA7 Ill) 342 F2d 627.

Because 46 USCS Appx § 688 created rights in injured seamen only against their employers, judgment under § 688 cannot be entered against negligent dry dock owner which did not employ seaman. Tug Raven v Trexler (1969, CA4 Va) 419 F2d 536, cert den 398 US 938, 26 L Ed 2d 271, 90 S Ct 1843.

Owner of dock upon which seaman was injured cannot be charged with unseaworthiness, but any such claim must be made against owner of ship from which seaman is alighting. Haskins v Point Towing Co. (1970, CA3 Pa) 421 F2d 532, cert den 400 US 834, 27 L Ed 2d 66, 91 S Ct 68.

Where seaman employed on vessel moored at dock was injured by reason of negligence of owner of dock in operating equipment thereon, his remedy against owner of dock was action at common law, and such action could not be joined with action under 46 USCS Appx § 688 against owner of vessel. Eggleston v Republic Steel Corp. (1942, DC NY) 47 F Supp 658.

233. Fellow servants

In action under 46 USCS Appx § 688 by injured seaman against United States, defendant could not join as defendant fellow servant of plaintiff's on theory that if such joinder was denied it would encourage perpetration of frauds whereby fellow servants might be induced to aid and assist claimants without fear of personal liability. Dezerene v United States (1945, DC NY) 59 F Supp 797, 1945 AMC 83.

Employee of Marine Resources Commission, state agency, could not pursue action under 46 USCS Appx § 688 against fellow employees of Commission. West v Marine Resources Com. (1970, ED Va) 330 F Supp 966.

Employee may not sue co-employee under Jones Act (46 USCS Appx § 688). Ivy v Security Barge Lines, Inc. (1980, ND Miss) 89 FRD 322.

Claim under 46 USCS Appx § 688 was sole avenue for negligence claims asserted by injured seamen against president of corporation that owned vessel on which they were working when injured, regardless of whether seamen were employed by corporation or merely by one of its affiliates, where either seamen and president were fellow servants or president was agent of seamen's employer. Jurgens v Poling Transp. Corp. (2000, ED NY) 113 F Supp 2d 388.

234. Government entities--United States

United States was liable under 46 USCS Appx § 688 for death of seaman employed on fleet corporation vessel from explosion of engine constructed by contractor under supervision of engineers who were employed by government to supplement its own force of engineers. Kunschman v United States (1932, CA2 NY) 54 F2d 987, 1932 AMC 103.

In action by marine engineer against his employer for personal injuries, complaint alleged that defendant had chartered or leased vessel on which injuries were received from United States; even if this is construed to mean bare-boat charter, Suits in Admiralty Act (46 USCS Appx § § 141 et seq.) would not apply, and federal District Court would have jurisdiction under 46 Appx USCS § 688. Foster v Moore-McCormack Lines, Inc. (1942, CA2 NY) 131 F2d 907, 1943 AMC 42, cert den 318 US 762, 87 L Ed 1134, 63 S Ct 560.

Stevedore allegedly injured while working on vessel owned and operated by United States could maintain 46 USCS Appx § 688 libel against United States to recover damages for such injuries, in view of 46 USCS Appx § 781, although there was no private cargo aboard. Militano v United States (1943, DC NY) 55 F Supp 904, 1944 AMC 1250.

Where 46 USCS Appx § 688 libel by seaman for personal injuries did not allege that libellant was employee of United States through War Shipping Administration, it failed to state cause of action within admiralty and maritime jurisdiction of federal District Court. Siclana v United States (1944, DC NY) 56 F Supp 442, 1944 AMC 696.

United States, as time charterer, was not liable under 46 USCS Appx § 688 for injuries sustained by seaman as result of failure to have lifeboats fixed in position prescribed by coast guard regulations. Ryan v United States (1944, DC Pa) 57 F Supp 586, 1945 AMC 60, affd (CA3 Pa) 150 F2d 366, 1945 AMC 690.

Libel was brought against United States and marine corporation for damages under 46 USCS Appx § 688 for injuries sustained by libellant while employed as chief steward on board vessel owned by United States and for maintenance and cure; since vessel was operated and controlled by marine corporation under time charter and claim was negligence, suit was required to be dismissed except as against respondent marine corporation. Battice v United States (1948, DC NY) 79 F Supp 932.

Jones Act, 46 USCS Appx § 688, applies only to vessels of private ownership or operation; when vessel is owned by United States or by corporation in which United States or its representatives owns entire capital stock rights under 46 USCS Appx § 688 are enforceable by Suits in Admiralty Act, 46 USCS Appx § § 741 et seq. Schwecke v United States (1951, DC Cal) 96 F Supp 225.

U.S., as owner of vessel, was liable for total and permanent disability of seaman, where injuries resulted from actions by chief Steward, because under Jones Act (46 USCS Appx § 688) employers are responsible for negligence of persons employed by them. Cella v United States (1992, ND Ind) 825 F Supp 1383, affd (CA7 Ind) 998 F2d 418, 37 Fed Rules Evid Serv 1229, reh, en banc, den (CA7 Ind) 1993 US App LEXIS 20311.

Seaman injured while aboard vessel of War Shipping Administration is entitled to all rights under law applicable to citizens of United States employed as seamen on privately owned and operated American vessels. Cohen v American Petroleum Transport Corp. (1947) 188 Misc 465, 68 NYS2d 250.

235. --States and state agencies

Bi-state corporation is not immune from suit brought in federal court under 46 USCS Appx § 688 to recover for death of employee of corporation aboard ferryboat operated by corporation when it sank. Petty v Tennessee-Missouri Bridge Com. (1959) 359 US 275, 3 L Ed 2d 804, 79 S Ct 785.

State employee-seaman is barred by Eleventh Amendment from suing state in Federal District Court for claims under Jones Act (46 USCS Appendix § 688). Collins v Alaska (1987, CA9 Wash) 823 F2d 329.

State which owned and operated vessel waived its sovereign immunity as to suits under 46 USCS Appx § 688 by its employees on board vessel for negligence, but did not waive its immunity as to claims based on general maritime law in unseaworthiness. Cocherl v Alaska, (1965, DC Alaska) 246 F Supp 328, 1966 AMC 1228.

Congress intended and had power to subject state to suit in federal court under 46 USCS Appx § 688 just as it did under 33 USCS § § 901 et seq. Huckins v Board of Regents (1967, ED Mich) 263 F Supp 622, 1968 AMC 697.

Parent's federal statutory causes of action against board of trustees of state university arising out of son's apparent death during scuba diving for marine life course must be dismissed, because Congress did not, in Jones Act (46 USCS Appx § 688) or Death on High Seas Act (46 USCS Appx § § 761 et seq.) abrogate Eleventh Amendment immunity afforded state instrumentalities. Harvis v Board of Trustees of University of Illinois (1990, ND Ill) 744 F Supp 825.

Suit may not be brought against State in its own courts under 46 USCS Appx § 688 without State's consent; plea in abatement of action filed under § 688 by crew member of vessel belonging to state university would be sustained where no statute of state authorized such suit. Lyons v Texas A & M University (1976, Tex Civ App Houston (14th Dist)) 545 SW2d 56, writ ref n r e.

236. --Municipalities

46 USCS Appx § 688 applies to municipality when it owns and operates vessel in navigation. Jacob v New York City (1942) 315 US 752, 86 L Ed 1166, 62 S Ct 854; Pariser v New York (1645, CA2 NY) 146 F2d 431; Hendriksen v Chicago (1946) 330 Ill App 141, 70 NE2d 848.

Although 46 USCS Appx § 688 endowed seamen with right of action against their employers for negligence, it did not give permission to sue state or civil division thereof; New York City cannot be sued under § 688. Levine v New York (1957) 8 Misc 2d 410, 167 NYS2d 980.

237. Miscellaneous

Greek corporation almost wholly owned by Greek citizen who had been for many years permanent resident of United States and who conducted his business in New York was employer under 46 USCS Appx § 688 where ship on which seaman was injured was earning income from cargo originating or terminating in United States. Hellenic Lines, Ltd. v Rhoditis (1970) 398 US 306, 26 L Ed 2d 252, 90 S Ct 1731, reh den 400 US 856, 27 L Ed 2d 94, 91 S Ct 23.

In order for any mortgagee, guarantor of mortgage, or any similar encumbrancer, not holder of equitable title, to be held to be employer for purposes of 46 USCS Appx § 688, he must exercise exclusive actual control over vessel's operation; that is, either he or his agent must be in charge of details of operating vessel, such as engaging master, hiring crew, and furnishing fuel, food and supplies; because it is so unlikely that any mortgagee will have such control, burden of proving it is on one who asserts it. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.

Pilot association which owned pilot boat, which association was owned by benevolent association, was liable for negligent operation of pilot boat. Peterson v United New York Sandy Hook Pilots Asso. (1935, DC NY) 11 F Supp 411, 1935 AMC 1031, mod (CA2 NY) 82 F2d 758, 1936 AMC 334, cert den 298 US 684, 80 L Ed 1404, 56 S Ct 954.

Board of Regents of University of Michigan as owners of vessel upon which seaman was injured are subject to action by seaman under 46 USCS Appx § 688. Huckins v Board of Regents (1967, ED Mich) 263 F Supp 622.

President of ship's corporate owner is not personally liable for injuries to crew members when crew members at all times looked to corporation as their employer, and not to president personally. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

Successor corporation was not "employer" of deceased seaman where it purchased assets of seaman's employer over two weeks after accident on which claim was based and plaintiff had failed to adduce any facts to establish either that successor had succeeded to rights and liabilities of predecessor or that successor represented mere continuation of predecessor. Groover v West Coast Shipping Co. (1979, SD NY) 479 F Supp 950.

For purposes of Jones Act (46 USCS Appx § 688), United States corporation which owns Brazilian subsidiary by which injured Brazilian worker is employed and which owns oil drilling rig upon which worker was performing his duties at time of worker's injury may be found to be worker's employer. Das Chagas v Sedco, Inc. (1983, ED Pa) 557 F Supp 442.

Trainee's Jones Act (46 USCS Appx § 688) claim is denied summarily, even though he suffered heart attack while participating in toxic spill drill on derelict barge while training to become tankerman, because barge owner was not Jones Act employer and Act only allows seaman to sue his employer. Speer v Taira Lynn Marine, Ltd. (2000, SD Tex) 116 F Supp 2d 826.

C. Injury as Sustained in Course of Employment

238. Generally

"Service of the ship" formula, used in maintenance and cure cases, is equivalent of provision under 46 USCS Appx § 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 § 688; seaman injured as consequence of employer's negligence is injured "in the course of his employment" so as to be entitled to recover in action under 46 USCS Appx § 688 where, at time of injury, he was doing work of his employer pursuant to his employer's orders; in determining whether seaman was injured in course of his employment, fact that injury did not occur on vessel is not controlling. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.

Employment of seaman includes performance not only of physical tasks required of him, but also of such ordinary tasks for his comfort and convenience as are incident to and necessarily connected with employment. States S.S. Co. v Berglann (1930, CA9 Or) 41 F2d 456, cert den 282 US 868, 75 L Ed 767, 51 S Ct 75.

When seaman, by his own volition, creates extraneous circumstance, he brings about intervening cause that directly affects his relation to his employers and to ship; he is responsible for such intervening cause if it consists of his own willful misconduct, is something which is done in pursuance of some private avocation or business, or grows out of relations unconnected with service, or is not logical incident of duty. Jackson v Pittsburgh S.S. Co. (1942, CA6 Ohio) 131 F2d 668.

Where injury results from duties performed in service of ship, fact that injured seaman is not actually performing duty for ship at time when injury occurs is immaterial. Kyriakos v Goulandris (1945, CA2 NY) 151 F2d 132.

To recover under 46 USCS Appx § 688, plaintiff must prove himself employee of defendant and that his injury arose in course of that employment. Bergan v International Freighting Corp. (1958, CA2 NY) 254 F2d 231.

In cases under 46 USCS Appx § 688, jury is to decide factual question of employment when there is conflicting evidence. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.

In action under 46 USCS Appx § 688 for injuries suffered by seaman which resulted in his death, it was jury question whether decedent was acting in course of employment as seaman at time of injury. Southard v Independent Towing Co. (1971, CA3 Pa) 453 F2d 1115.

Remedies afforded by 46 USCS Appx § 688 are designed to protect those who perform services upon ships and are exposed to unique hazards of work upon sea and therefore benefits should be available to anyone so engaged, even if not in employ of ship itself; seaman status will be accorded to those performing tasks not necessary to actual navigation of ship but who are engaged in employment on board ship. Mahramas v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 475 F2d 165.

46 USCS Appx § 688 contemplates action by seaman against his employer only and is concerned with relative rights and obligations of seamen and their employers arising out of personal injuries sustained by former in course of their employment; this is matter which falls within recognized sphere of maritime law, and in respect of which maritime rules have differed materially from those of common law applicable to injuries sustained by employees in nonmaritime service. Eggleston v Republic Steel Corp. (1942, DC NY) 47 F Supp 658.

"In the course of employment" under 46 USCS Appx § 688 is to be given its plain meaning, and is not to be restricted to injuries occurring in any particular place. Vincent v Harvey Well Service (1970, ED La) 309 F Supp 964, revd on other grounds (CA5 La) 441 F2d 146.

Seaman, because of inability to leave ship during its voyage, is considered to be within scope of his employment for purposes of 46 USCS Appx § 688, if injured while engaged in any activity incidental to and necessarily connected with his duties. Craighead v Equitable Life Assur. Soc. (1975, La App 1st Cir) 324 So 2d 554, application den (La) 329 So 2d 452.

239. On high seas

Nothing in legislative history of 46 USCS Appx § 688 indicates that its words "in the course of his employment" do not mean what they say or that they were intended to be restricted to injuries occurring on navigable waters. O'Donnell v Great Lakes Dredge & Dock Co. (1943) 318 US 36, 87 L Ed 596, 63 S Ct 488, 1943 AMC 149.

Under 46 USCS Appx § 688, right to recovery follows from seaman's employment status and is 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.

Seaman can recover under 46 USCS Appx § 688 for injuries suffered in course of ship's services, whether on land or sea. Re Dearborn Marine Service, Inc. (1974, CA5 Tex) 499 F2d 263, 30 ALR Fed 499, reh den (CA5 Tex) 512 F2d 1061 and cert dismd 423 US 886, 46 L Ed 2d 118, 96 S Ct 163.

240. On board vessel

Fact that injury did not occur on vessel is not controlling as to whether injured person has right of recovery under 46 USCS Appx § 688. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.

241. On dock, wharf, or pier

Seaman injured on dock while departing from ship on shore leave was in service of vessel. Aguilar v Standard Oil Co. (1943) 318 US 724, 87 L Ed 1107, 63 S Ct 930; Catrakis v Nautilus Petroleum Carriers Corp. (1977, SD NY) 427 F Supp 255.

No recovery could be had under 46 USCS Appx § 688 to seaman for injuries sustained on wharf alongside of which vessel was moored, where seaman was at place of injury for purposes of his own. Todahl v Sudden & Christenson (1925, CA9 Cal) 5 F2d 462.

Employee of fishing boat falling from dock to sloping surface below floor of dock, such surface being provided for different stages of tide, was not entitled to sue in admiralty, as sloping surface or "slip" was part of "land structure." Lindh v Booth Fisheries Co. (1932, DC Wash) 2 F Supp 19.

Under 46 USCS Appx § 688, shipowner assumes responsibility for acts of negligence toward seamen on shore leave only when acts are committed by those with whom owner of ship has contracted to provide some product or service that enables seaman to get ashore; shipowner may only be held responsible for negligence of pier owner if there is contractual relationship between them. Hamilton v Marine Carriers Corp. (1971, ED Pa) 332 F Supp 223.

46 USCS Appx § 688 is inapplicable to injury sustained by seaman while on dock assisting in loading of vessel. Rudo v A. H. Bull S. S. Co. (1935) 168 Md 281, 177 A 538, cert den 295 US 759, 79 L Ed 1701, 55 S Ct 916.

242. Ashore

Seaman injured on shore while in service of his vessel is entitled to recover for his injuries in suit brought against his employer under 46 USCS Appx § 688. O'Donnell v Great Lakes Dredge & Dock Co. (1943) 318 US 36, 87 L Ed 596, 63 S Ct 488, 1943 AMC 149.

Fact that employee's injury occurred on land is not material, since admiralty jurisdiction and coverage of 46 USCS Appx § 688 depends only on finding that injured was employee of vessel engaged in course of his employment at time of injury. Senko v La Crosse Dredging Corp. (1957) 352 US 370, 1 L Ed 2d 404, 77 S Ct 415, reh den 353 US 931, 1 L Ed 2d 724, 77 S Ct 716.

Seaman injured as consequence of employer's negligence is injured "in the course of his employment" so as to be entitled to recover in action under 46 USCS Appx § 688 where, at time of injury, he was doing work of his employer pursuant to his employer's orders; in determining whether seaman was injured in course of his employment, fact that injury did not occur on vessel is not controlling. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.

Protection of 46 USCS Appx § 688 is extended to seamen who are injured through negligence of their employers while acting in course of their employment even though injuries occur on land. Marceau v Great Lakes Transit Corp. (1945, CA2 NY) 146 F2d 416, 1945 AMC 223, cert den 324 US 872, 89 L Ed 1426, 65 S Ct 1018.

In action brought under 46 USCS Appx § 688, seaman may recover for injuries received while off ship and engaged in temporary work for employer unrelated to service of ship. Higginbotham v Mobil Oil Corp. (1977, CA5 La) 545 F2d 422 (disagreed with on other grounds Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with on other grounds Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

Once it is established that worker is seaman, Jones Act (46 USCS Appx § 688) permits him to recover from his employer even for injuries received while he is on shore; Jones Act does not require that seaman's tasks at time he was injured be related to service of ship; seaman does not lose his status when he is temporarily assigned by his employer to duties off vessel; however, this does not mean that maritime worker assigned to work ashore for long period of time would continue indefinitely to be seaman merely because it is contemplated that he will someday return to vessel, nor that seaman's status continues if worker commences work for another employer. Guidry v South Louisiana Contractors, Inc. (1980, CA5 La) 614 F2d 447 reh den (CA5 La) 616 F2d 568.

Accident to member of vessel's crew while on errand on land was not in course of navigation or interstate commerce and federal acts relative to such employments were not applicable. Powers v Murray (1934) 266 Mich 688, 254 NW 559.

243. --Particular circumstances

Procuring of net by fisherman for vessel on which he was employed for her forthcoming fishing venture was nonetheless in maritime employment, though service for venture was on shore. The Betsy Ross (1944, CA9 Cal) 145 F2d 688, 1944 AMC 1468.

Where plaintiff, ship's purser, was accompanying ship's captain on shore business and fell through an open door while leaving coffee shop it was found that although plaintiff was acting within scope of his employment, captain, nevertheless, was not acting in scope of his employment when he failed to warn plaintiff of opening in floor and in light of such latter fact, it was unnecessary to reach question whether 46 USCS Appx § 688 may be applied to accidents occurring considerable distances from ship in places on shore which are in no respect under control of ship owner. Trost v American Hawaiian S.S. Co. (1963, CA2 NY) 324 F2d 225, cert den 376 US 963, 11 L Ed 2d 981, 84 S Ct 1125.

Employer was not liable under 46 USCS Appx § 688 for death of employee, where negligent employee was beyond scope of his employment relationship in leaving barge without authorization. Moore v Associated Pipeline Contractors (1972, CA5 La) 468 F2d 815.

Seaman who admitted that he was not sent ashore by anyone in authority on his ship but went ashore with permission to get few things for himself could not maintain action under 46 USCS Appx § 688 for injuries he received while ashore. Wahlgren v Standard Oil Co. (1941, DC NY) 42 F Supp 992, 1941 AMC 1788.

46 USCS Appx § 688 claimant's operation of winch, although on shore, was clearly in course of his employment as member of crew of ferry. Dardar v Louisiana (1971, ED La) 322 F Supp 1115, affd (CA5 La) 447 F2d 952, cert den 405 US 918, 30 L Ed 2d 788, 92 S Ct 943, reh den 405 US 1048, 31 L Ed 2d 591, 92 S Ct 1308.

Diver who is regularly employed as seaman and performs majority of his work from vessel is covered by 46 USCS Appx § 688 even though injured while on land assisting in building diving training tank for underwater use. Taylor v Packer Diving & Salvage Co. (1972, ED La) 342 F Supp 365, affd (CA5 La) 457 F2d 512, reh den (CA5 La) 471 F2d 650.

244. While off-duty on vessel

For purposes of 46 USCS Appx § 688 seaman, because of his inability to leave ship, is considered to be in course of his duties if engaged in any matter incidental to his required duties; off-duty seaman, injured while pointing out sea lions to other persons on board vessel was injured while in course of his employment. Sundberg v Washington Fish & Oyster Co. (1943, CA9 Wash) 138 F2d 801, 1943 AMC 1337.

245. While on shore leave

Injury received by seaman during period of shore leave was injury occurring in service of ship. Warren v United States (1951) 340 US 523, 95 L Ed 503, 71 S Ct 432.

Seaman injured while enjoying shore leave in foreign port was "in the course of his employment" and thus entitled to benefits provided by 46 USCS Appx § 688. Central Gulf S.S. Corp. v Sambula (1968, CA5 Tex) 405 F2d 291, 16 ALR Fed 70.

When under labor contract, no employee had any right to shore leave until job was completed, employee who left barge, left scope of employment relationship and employer barge company was no longer liable under 46 USCS Appx § 688 for injuries which occurred. Moore v Associated Pipeline Contractors (1972, CA5 La) 468 F2d 815.

Seaman was injured in service of his ship, although he was ashore on leave when he sustained his injury. Dasher v United States (1945, DC NY) 59 F Supp 742, 1945 AMC 100.

Seaman who brought suit under 46 USCS Appx § 688 against operators of merchant vessel for personal injuries which he sustained as result of fist fight in barroom with chief engineer of his vessel while on shore leave was on shipowner's business and in course of his employment. Nowery v Smith (1946, DC Pa) 69 F Supp 755, 1946 AMC 1702, affd (CA3 Pa) 161 F2d 732, 1947 AMC 756.

Shipowner is not under duty to warn crew members who are going ashore for their own pleasure of existence of possible dangerous conditions in shore area beyond ship's control. D'Costa v United States Lines Co. (1964, SD NY) 227 F Supp 180, 1965 AMC 2199.

Seaman's claim that choice of site for and supervision of crew's liberty at remote anchorage were negligent and created liability for injuries he suffered on liberty under 46 USCS § 688 is dismissed, where captain permitted off-duty crewmen to investigate shipwreck in groups and seaman lowering himself from shipwreck by use of rope he found on 20-year-old shipwreck fell 30-40 feet, fracturing 2 vertebrae and left heel, because even though shore leave is "elemental necessity in sailing of ships," seaman was not "in service of ship" or "in course of his employment" but rather "in pursuit of his own affairs" when injury occurred. Howard v M/V Bristol Monarch (1987, WD Wash) 652 F Supp 677.

Jones Act (46 USCS Appx § 688) claim of engineer, stabbed while trying to break up fight between 2 other crew members in bar while on authorized shore leave, is denied, even though engineer showed that previous incidents of violent behavior by stabber had been reported to superior officers, because at time of stabbing engineer was pursuing his own private interests, and he was not acting "in course of his employment." Colon v Apex Marine Corp. (1993, DC RI) 832 F Supp 508, summary op at (DC RI) 14 R.I.L.W. 495.

246. Boarding or leaving vessel

Seaman injured on dock while departing from ship on shore leave was in service of vessel. Aguilar v Standard Oil Co. (1943) 318 US 724, 87 L Ed 1107, 63 S Ct 930.

Seaman continues in course of employment when departing from his place of work and injury while using ladder to leave ship is injury in course of employment for purposes of 46 USCS Appx § 688. Wong Bar v Suburban Petroleum Transport, Inc. (1941, CA2 NY) 119 F2d 745.

Employee is deemed to be in course of his employment while going to or from his place of work by only practicable route of immediate ingress and egress. Marceau v Great Lakes Transit Corp. (1945, CA2 NY) 146 F2d 416, cert den 324 US 872, 89 L Ed 1426, 65 S Ct 1018; Walton v Continental S.S. Co. (1946, DC Md) 66 F Supp 836; Monteiro v Paco Tankers, Inc. (1950, DC Pa) 93 F Supp 93; McDonough v Buckeye S.S. Co. (1951, DC Ohio) 103 F Supp 473, affd (CA6 Ohio) 200 F2d 558, cert den 345 US 926, 97 L Ed 1357, 73 S Ct 785, Monteiro v Paco Tankers, Inc. (1950, DC Pa) 93 F Supp 93.

Seaman who was attempting to move from ship to shore at time of injury was acting within scope of employment. Hudson Waterways Corp. v Coastal Marine Service, Inc. (1977, ED Tex) 436 F Supp 597.

247. --Particular circumstances

Plaintiff injured while leaving ship on which he was employed, for purpose of answering long distance call from his wife, was not in service of ship at time of accident, injury being result of plaintiff's free act and conscious motion of his will, apart from any obligation of his employment. The President Coolidge (1938, DC Wash) 23 F Supp 575.

Fact that rigger ordered by his employer to go board ship to assist in installation of some tanks was injured while going from dock to ship did not support contention that his injury was nonmaritime, since "direction of travel" rule has been abandoned. United States Fidelity & Guaranty Co. v United States (1944, DC NY) 56 F Supp 452, 1944 AMC 633.

Seaman was within scope of his employment when he fell from gangway on returning to ship to perform duties after shore leave. Weissbach v Matson Navigation Co. (1972, ND Cal) 345 F Supp 1176.

Seaman who drowned while attempting to return to his sleeping quarters was acting within scope of his employment for purposes of 46 USCS Appx § 688; where only means of access to quarters was across inadequately lighted dock, to which defendant's vessel was moored, and vessel was unlighted, jury could reasonably find that defendant owner was negligent. Hocut v Insurance Co. of North America (1971, La App 3d Cir) 254 So 2d 108, cert den 260 La 411, 256 So 2d 292.

248. Commuting to and from vessel

For purposes of 46 USCS Appx § 688, tugboat employee who drowned while returning from another boat with loaf of bread for crew's lunch was killed in scope of employment. Thompson v Eargle (1950, CA4 SC) 182 F2d 717.

Shipowner is under no duty to provide safe means of transportation between ship and any place of amusement crew members desire to visit while on shore leave in vessel's home port. Thurnau v Alcoa S.S. Co. (1956, CA2 NY) 229 F2d 73, 1956 AMC 323, cert den 351 US 925, 100 L Ed 1455, 76 S Ct 783.

For purposes of 46 USCS Appx § 688, seaman, injured by railroad engine while returning to ship at 2:00 a. m. from shore leave, was injured in scope of employment. Wheeler v West India S.S. Co. (1951, DC NY) 103 F Supp 631, 1952 AMC 148, affd (CA2 NY) 205 F2d 354, 1953 AMC 1240, cert den 346 US 889, 98 L Ed 393, 74 S Ct 141.

Plaintiff, while returning to vessel from shore leave, was in course of his employment within meaning of 46 USCS Appx § 688. Dangovich v Isthmian Lines, Inc. (1963, SD NY) 218 F Supp 235, affd (CA2 NY) 327 F2d 355, 1964 AMC 629.

Shipowner is under no duty to provide safe means of transportation between ship and place of seaman's amusement; shipowner is under no duty to warn seamen of dangerous conditions over which they have no control that exist beyond ship's gangway. Broussard v Marine Transport Lines, Inc. (1974, ED Tex) 369 F Supp 103.

When transportation to and from work aboard vessel is supplied by employer in employer's interest, employee is engaged in course of his employment during period of transportation; thus, fact that seaman's injury occurred prior to his actual arrival aboard vessel did not mean that he had not yet become seaman for purposes of 46 USCS Appx § 688. Porche v Gulf Mississippi Marine Corp. (1975, ED La) 390 F Supp 624.

Jones Act applies to death or injury of seamen occurring while being transported by their employer to or from vessel. Sherrill v Brinkerhoff Maritime Drilling (1985, ND Cal) 615 F Supp 1021.

249. --Particular circumstances

For purposes of 46 USCS Appx § 688, American seaman who in United States signed articles for voyage on Panamanian vessel providing that he would be signed off at foreign port and that owner would arrange at its cost for his transportation back to United States, during which time he was to be paid full wages, was not killed in course of his employment, where, while returning, he met his death in crash of airplane owned and operated by independent contractor. McCall v Overseas Tankship Corp. (1955, CA2 NY) 222 F2d 441, 1955 AMC 1175.

Assuming crew members were in course of employment while departing from yacht to obtain meals and return thereto in normal manner, they were not in such course when they took liberty of spending 3 hours consuming intoxicants, and employment status was not restored when they attempted to return to yacht. Petition of Atlass (1965, CA7 Ill) 350 F2d 592, cert den 382 US 988, 15 L Ed 2d 476, 86 S Ct 551, reh den 383 US 923, 15 L Ed 2d 679, 86 S Ct 884 and reh den 384 US 914, 16 L Ed 2d 368, 86 S Ct 1336 and cert den 382 US 988, 15 L Ed 2d 476, 86 S Ct 556, reh den 383 US 923, 15 L Ed 2d 679, 86 S Ct 884 and reh den 384 US 914, 16 L Ed 2d 368, 86 S Ct 1336.

Where seaman employed aboard dredge and was required to live at home and commute to job daily, was killed in accident while commuting; commuting was part of job and in circumstances hazards of journey could fairly be regarded as hazards of service; his widow was entitled to maintenance and cure and 46 USCS Appx § 688 damages. Williamson v Western Pacific Dredging Corp. (1971, CA9 Or) 441 F2d 65, cert den 404 US 851, 30 L Ed 2d 91, 92 S Ct 90.

Where defendant operated inland water submersible drilling barge on which there were no sleeping facilities and supplied automobile and driver to transport employees to and from pierhead to convenient metropolitan assembly point 50 miles away, plaintiff, derrick hand, who was injured in automobile accident while being so transported was in course of his employment and could bring action under 46 USCS Appx § 688. Vicent v Harvey Well Service (1971, CA5 La) 441 F2d 146.

Member of drilling crew could not recover under 46 USCS Appx § 688 for injury suffered while going from home to work where his pay began and ended at dock, he was not paid for days off duty spent at home and was responsible for his own transportation to and from home, physically and financially, and while off duty he was free to do as he pleased; he was neither on shore leave nor answerable to call of duty and was not within course of his employment at time of his death. Daughdrill v Diamond M. Drilling Co. (1971, CA5 La) 447 F2d 781, cert den 405 US 997, 31 L Ed 2d 466, 92 S Ct 1261.

Worker on drilling barge, located 100 miles at sea, was seaman in course of his employment at time of his death so as to render employer liable under 46 USCS Appx § 688, where worker died when helicopter, which was transporting him to drilling barge, crashed at sea. Higginbotham v Mobil Oil Corp. (1977, CA5 La) 545 F2d 422 (disagreed with on other grounds Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with on other grounds Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part on other grounds (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

Aircraft that crashed while transporting decedent to work on drilling barge did not and could not land on vessel, had no direct relation to vessel, and was therefore not "appurtenance" to vessel. Craig v Atlantic Richfield Co. (1994, CA9 Cal) 19 F3d 472, 94 CDOS 2019, 94 Daily Journal DAR 3755, 1994 AMC 1354, 28 FR Serv 3d 1044.

Since maritime law imposes on shipowner no obligation to furnish transportation to and from shore to seamen granted shore leave, libel failed to state cause of action for recovery of damages for death of seaman while returning to his ship on itinerant launch plying the harbor. Lemon v United States (1946, DC Md) 68 F Supp 793.

Seaman who was off duty from ship, walked to beach to go swimming, and was injured when, while returning to vessel in transportation furnished by shipowner, he was thrown from pickup truck, was in "course of employment" on occasion in question; "course of employment" as used in 46 USCS Appx § 688, is equivalent of "service of the ship" in maintenance and cure cases. Broussard v Marine Transport Lines, Inc. (1974, ED Tex) 369 F Supp 103.

Third assistant marine engineer who reported to vessel's agent in New York, was flown to Cairo and, while being transported from Cairo to vessel's berth in Port Said was injured in automobile accident, was Jones Act employee notwithstanding that captain of vessel might have rejected him pursuant to terms of collective bargaining agreement. Mounteer v Marine Transport Lines, Inc. (1979, SD NY) 463 F Supp 715.

Professional diver, killed on Louisiana highway while en route to his job site, was not seaman within meaning of 46 USCS Appx § 688. Samayoa v Michel Lecler, Inc. (1975, La App 4th Cir) 310 So 2d 162, cert den (La) 313 So 2d 828 and cert den (La) 313 So 2d 828.

250. Pre-employment

Prospective employee sent by union as part of contract to fulfill crew requirement for ship was not within scope of employment when at time he sustained injury he had not yet reported to any of ship's officers, but was injured while going aft with intention of reporting for duty. 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.

Employer-employee relationship must exist at time of negligence in order for recovery under 46 USCS Appx § 688; when negligence alleged occurred during pre-employment physical examination, shipowner as seaman's subsequent employer was not liable for injuries occurring, examination was not in course of seaman's employment. Pennington v Pacific Coast Transport Co. (1969, CA5 La) 419 F2d 122.