The opinion of the court was delivered by: BARD
This is a seaman's action in admiralty against The Atlantic Refining Company (hereinafter called Atlantic) to recover damages for injuries sustained by the libellant on or about January 8, 1946 while employed aboard the S.S. Four Lakes, and to recover maintenance and cure. It is now before me on the respondent's peremptory exceptions to the libel wherein the respondent prays that the libel be dismissed.
The libellant alleges that Atlantic owned, operated and controlled the 'Four Lakes', and that his injuries resulted from the negligence of the master or the crew and from the unseaworthiness of the vessel. The libel was filed on June 6, 1949.
An affidavit with its accompanying documents filed by Atlantic shows that when the accident happened the 'Four Lakes' was owned by the United States of America, War Shipping Administration; that War Emergency Tankers, Inc. (hereinafter called Emergency Tankers) handled certain phases of the ship's husbandry pursuant to a service agreement G.A.A.-Tankers (Special)
; and that Atlantic performed some of Emergency Tankers duties pursuant to a Principal Sub-Agent agreement.
Article 3A(d) of the service agreement with the War Shipping Administration provided that Emergency Tankers, as General Agent, shall procure the master of the vessel subject to the approval of the United States; that the master 'shall have and exercise full control, responsibility and authority with respect to the manning, navigation and management of the vessel'; that the master, officers and crew of the vessel shall be employees of the United States; and that such persons shall be paid with funds provided by the United States.
In keeping with the terms of this service agreement, the Principal Sub-Agent and Atlantic expressly stated in Article 3 thereof that, 'The General Agent shall arrange for the appointment of the Master of any vessel, and the engagement by the Master of the officers and members of the crew of the vessel, and such Master, officers and members of the crew of the vessel shall be employees of the United States. The Master shall be an agent of the United States and shall have and exercise full control, responsibility and authority with respect to the manning, navigation and management of the vessel.'
The shipping articles signed by the libellant on January 2, 1946 show that the 'Operating Company on This Voyage' was 'United States of America War Shipping Administration' with its 'Address' at 'War Emergency Tankers, Inc. General Agent- 30 Broad St., N.Y.' Words to that effect were also stamped on the shipping articles. Furthermore, these articles had stamped on them the agreement 'that the Master, officers and all other Members of the Crew are employees of the United States of America * * * and are not employees of War Emergency Tankers, Inc. * * * '
Under the terms of the libellant's contract of employment- the shipping articles, under the terms of the Principal Sub-Agent agreement between Atlantic and Emergency Tankers, and under the terms of the service agreement between Emergency Tankers and the United States, it is obvious that Atlantic did not own or operate the 'Four Lakes', and had no control over its master and crew.
The Supreme Court of the United States has recently decided that a General Agent of the War Shipping Administration is not the seaman's employer and is not liable to him for damages for injuries resulting from the negligence of the master or the crew or for maintenance and cure for injuries resulting therefrom. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S. Ct. 1317, 93 L. Ed. 1692; Fink v. Shepard Steamship Co. (Gaynor v. Agwilines, Inc.), 337 U.S. 810, 69 S. Ct. 1330, 93 L. Ed. 1709. See also cases cited in Thomson v. Alcoa Steamship Company, Inc., D.C.E.D. Pa., 90 F.Supp. 572.
In the McAllister and Fink cases the Supreme Court had before it another service agreement, GAA 4-4-42, and based its decision on Article 3A(d) of that agreement. Article 3A(d) of GAA 4-4-42 and Article 3A(d) of GAA-Tankers (Special) are identical.
Emergency Tankers, as General Agent, had no control over the master and the crew of the 'Four Lakes', did not pay them their wages, and did not choose the route or destination of the 'Four Lakes'. Since under the McAllister and Fink cases Emergency Tankers would not be liable to the libellant for injuries resulting from the negligence of the master or the crew, then Atlantic, who as Principal Sub-Agent had less control, if possible, over these factors than Emergency Tankers had, should not be liable.
Although the problem in the McAllister and Fink cases is not identical with the problem in this case, it is so analogous that I consider those decisions as controlling my decision on the negligence phase of this case.
The libellant also alleges that his injuries were caused by the respondent's failure to provide a seaworthy vessel in that the handrails in the ladder from which he shipped were loose.
The McAllister and Fink cases did not determine the General Agent's liability for failure to provide a seaworthy vessel. However, these decisions do cast some light on this problem.
The discussion in the McAllister case about the Clarification Act
makes it clear that the purpose of this Act was to hold the United States liable, as the seaman's employer, for damages and maintenance and cure for injuries received in the course of employment. ...