The opinion of the court was delivered by: BARD
Plaintiff, a merchant seaman, instituted a civil action to recover damages for injuries which he sustained during the performance of his duties aboard a ship owned and operated by the defendant. The ship was travelling in convoy under rigid blackout regulations, and plaintiff fell from the midship deck to the shelter deck as a result of mistaking, in the darkness, an unguarded doorway for a passageway.
The complaint contained three counts. The first of these was based on defendant's negligence in failing to maintain a chain across the doorway, and the second was for maintenance and cure. On these counts the case was submitted to the jury and a verdict was rendered for the plaintiff.
The policy is procured by the ship owner for the benefit of the merchant seamen employed by it. By the terms of the policy, the only persons entitled to its benefits are the seamen themselves in the event of injury, or their beneficiaries, in the event of death. No obligation is undertaken by the ship owner. Nor is there any provision indemnifying the ship owner against claims of the seamen who, by the Act of June 29, 1936, c. 858, Title II, § 225, as amended, 46 U.S.C.A. § 1128d, are given the right by statute to bring action against the United States under marine insurance policies written by the War Shipping Administration.
It is conceded that the plaintiff has rights which plaintiff asserts did not exist prior to the creation of the Maritime War Emergency Board, the issuance of the orders referred to above, and the issuance of the insurance policy in suit pursuant to those orders. It is difficult to see any basis of liability of the defendant under this insurance policy, by the terms of which it assumed no obligation. Nor do the orders themselves create a duty by the ship owner to the seamen employed by it other than to procure the prescribed insurance. The obvious purpose of those orders was to assure the members of the Merchant Marine compensation for injuries or death resulting from the added hazards of war without the necessity of establishing negligence of the ship owner or other conventional bases of liability. This purpose might have been effected by imposing an absolute liability on the ship owner for injury or death resulting to members of their crews from war time risks, and leaving it to them to obtain insurance indemnifying them against such liability or to assume the liability therefor themselves. Instead, the Board ordered that the ship owners insure their employees by policies under the prescribed terms of which the insurer agrees to pay the benefits directly and only to the employees or their beneficiaries. The sole duty of the ship owner, therefore, is to procure the requisite insurance, and no rights against it are created under the policy in suit.
My attention has been directed to the decision in McCormick v. Moore-McCormack Lines, Inc., D.C., 54 F.Supp. 399, 1943 A.M.C. 1422, in which a contrary result was reached. After a most careful consideration of that case, I do not wish to alter the views expressed herein.
Defendant's motion to dismiss the third count of the ...