Appeal from the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
Before BIGGS, MARIS, and GOODRICH, Circuit Judges.
The libellant brought an action in admiralty under the general maritime law to recover for indemnity by reason of injuries sustained by an alleged unseaworthy appliance and for cure and maintenance. We are not presently concerned with the latter cause of action.*fn1 The injuries complained of were received while libellant was engaged in a painting job upon the ship of which he was a member of the crew. The injuries were received when the rope supporting the stage upon which he was working broke throwing him to the deck below. The rope had been selected for use by the mate of the ship. It was taken from the Lyle gun box and had not theretofore been used. It may be assumed, for the purpose of discussion here, that the failure to detect the weakness of the rope was negligence on the part of the officer who selected it for the purpose used.
The libellant's claim would obviously be an appropriate one for redress under the provisions of the Jones Act*fn2 were it not for the fact, as his counsel concedes, that the action was begun too late. His claim for recovery, therefore, rests upon the maritime law and the basis for the claim is alleged unseaworthiness (The Osceola, 1903, 189 U.S. 159, 23 S. Ct. 483, 47 L. Ed. 760) of the vessel because the rope was defective. There was, however, an ample supply of good rope on board the ship at the time of the acts complained.
The respondent contends that the decision in Plamals v. The Pinar Del Rio, 1928, 277 U.S. 151, 48 S. Ct. 457, 72 L. Ed. 827, settles the question of the libellant's claim adversely to the latter. That case also involved an injury to a seaman which was sustained while he was engaged in working on a paint job. The rope broke, the injured man was hurt when he fell to the deck. There, too, the accident occurred when the mate selected a bad rope and an abundant supply of good rope was on board. The greater part of the discussion by the Supreme Court concerns the question whether in a suit under the Jones Act a libel in rem could be had and this the Supreme Court decided in the negative. The Court also, however, stated that the record did not support the suggestion that the "Pinar Del Rio" was unseaworthy. "The mate selected a bad rope when good ones were available." 277 U.S. at page 155 48 S. Ct. at page 458, 72 L. Ed. 827. The libellant says that this was only dictum by Mr. Justice McReynolds who wrote the opinion of the Court. We think it cannot be so lightly dismissed. The claim that recovery could be had under the general maritime law for injury sustained for lack of seaworthiness of the vessel was fully presented by the appellant in his brief in the Supreme Court, as an inspection of that brief will show. It also appears in the summary of his argument given inthe official report of the decision of the Supreme Court. (277 U.S. 151, 153, 48 s.Ct. 457, 72 L. Ed. 827). While the opinion, it is true, does not discuss the matter at length we do not think that the authority of the case as a decision on this point can be disregarded by us because the Court, though the writer of the opinion, chose to dispose of the matter in three lines instead of three hundred.
The libellant urges also that this portion of the "Pinar Del Rio" decision is no longer authority after the opinion of the majority of the Court in Socony-Vacuum Oil Co. v. Smith, 1939, 305 U.S. 424, 59 S. Ct. 262, 83 L. Ed. 265. The sole question in that case, however, was whether assumption of risk is a defense in a suit brought by a seaman under the Jones Act to recover for injuries resulting from his use, while on duty, of a defective appliance on the ship instead of a known safe method of doing his work. All of the discussion in the opinion by Mr. Justice Stone is directed to this point. The decision was one under the Jones Act. We do not, as we read the opinion, find even a dictum to support the position of the libellant here.
Our conclusion is, therefore, that this Court was right in its affirmance of the decree of the Court below upon the first hearing. 1942, 129 F.2d 857. We have no disposition to narrow the basis of recovery under the maritime law for injuries sustained by the seaman while in the service of the ship. See Jones v. Waterman S.S. Corporation, 3 Cir., 1942, 130 F.2d 797, affirmed by the Supreme Court on April 19, 1943, 317 U.S. 621, 63 S. Ct. 930, 87 L. Ed. . However, the "Pinar Del Rio., decision seems to be squarely on the point and it is our duty to follow it.
The decree of the District Court is affirmed.
BIGGS, Circuit Judge (dissenting).
In the instant case the first officer of the S.S. Wichita Falls caused two pieces of rope to be cut from a 1,500 foot length of rope which was in the Lyle-gun box on board the ship and used them to hang a stage to the bridge of the vessel. The appellant was ordered to get on the stage so that he might scrape and paint the bridge. He had no sooner gotten on the stage when one of the ropes broke, causing him to fall a distance of fifteen feet to the deck. He was injured and brought this suit under the general maritime law (not under the Jones Act) to recover damages.
The conclusion reached by the majority opinion is based upon the words used by Mr. Justice McReynolds in the opinion of the Supreme Court in Plamals v. Pinar Del Rio, 277 U.S. 151, 155, 48 S. Ct. 457, 458, 72 L. Ed. 827, "The mate selected a bad rope when good ones were available."
In Plamals v. Pinar Del Rio, Plamals was being hoisted up the smoke stack of the vessel in a boatswain's chair. A rope broke supporting the chair and he fell to the deck and was injured. The mate of the Pinar Del Rio had selected rope which was visibly old and worn.
There has been much argument in the case at bar as to the nature of the suit which Plamals brought. Actually he set forth two causes of action in his libel; one was based on the general maritime law for indemnity; the other, on the Jones Act. As I have indicated, Plamals' suit was an action in rem against the vessel. Mr. Justice McReynolds stated, pages 154-155, of 277 U.S., S. Ct. at page 457, 72 L. Ed. ,im, that the "* * * libel alleged that * * * [Plamals] injuries 'were due to the fault or neglect of the said steamship or those in charge of her in that the said rope was old, worn, and not suitable for use'. * * * The record does not support the suggestion that the Pinar Del Rio was unseaworthy. The mate selected a bad rope when good ones were available." He went on to say, "We must treat the proceeding as one to enforce the liability prescribed by Section 33. It was so treated by petitioner's proctor at the original trial; and the application for certiorari here spoke of it as based upon that section. The evidence would not support a recovery upon any other ground." The Supreme Court held that Plamals, at his election, was entitled to assert his rights ...