6. The plaintiff was inexperienced in this work, and was justified in following the orders of the Captain literally. In the circumstances, the Captain was negligent in directing the removal of the bolt in an improper manner in view of the plaintiff's precarious position.
7. In falling, the plaintiff-libellant struck his head against a steel ladder and lacerated his scalp, requiring six sutures to close the wound. He suffered sprains of the neck, left shoulder joint, lumbo-sacral area, traumatic coccyodynia, and a sprain of the right third metacarpo-phalangeal joint. As a result of these injuries, he was under treatment and unable to work from March 6, 1950, to May 4, 1950. He has continued to suffer some residual effects from these injuries.
8. Plaintiff's earnings in the two months preceding the accident averaged $ 60 per week.
9. The daily rate of maintenance and cure to which libellant is entitled during his fifty-nine day period of disability has been stipulated by counsel to be $ 6 per day.
The principal issue in this case is whether the plaintiff-libellant was at the time of his injury a member of the crew of a vessel. If, as an employee aboard defendant's dredge, he was a member of the crew of a vessel, he may maintain this action under the Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688, and this libel for maintenance and cure under the maritime law; otherwise, his exclusive remedy is under the Longshoremen's and Harborworkers' Compensation Act, 44 Stat. 1424, 33 U.S.C.A. § 901 et seq.
There can be no doubt that the dredge is a vessel. 'Vessel' is defined in R.S. § 3, 1 U.S.C. § 3, to include 'every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.' A dredge is a vessel within the Compensation Act, even when it has no motive power of its own, since it is a means of transportation on water. Cf. Norton v. Warner Co., 321 U.S. 565, 64 S. Ct. 747, 88 L. Ed. 430.
But whether plaintiff-libellant was a member of the crew of the dredge requires the evaluation of the facts of his employment against the legal criterion of membership in a crew. In South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S. Ct. 544, 84 L. Ed. 732, crew members were defined as those persons who are on board naturally and primarily to aid in navigation. 'But navigation is not limited to 'putting over the helm'. It also embraces duties essential for other purposes of the vessel. Certainly members of the crew are not confined to those who can 'hand, reef and steer'. * * * '(E)very one is entitled to the privilege of a seaman who, like seamen, at all times contribute to the labor about the operation and welfare of the ship when she is upon a voyage." Norton v. Warner Co., supra, 321 U.S.at page 572, 64 S. Ct.at page 751, 88 L. Ed. 430. 'It is most important to note that one is aiding in navigation even though he happens to be a cook or an engineer. The whole ship's company is aiding in navigation.' Carumbo v. Cape Code S.S. Co., 1 Cir., 123 F.2d 991, 995.
From the authorities it is apparent that aiding in the navigation of a vessel means assisting in some way in the forwarding of its enterprise, whether it be carrying passengers or freight, or dredging, and that one who has a more or less permanent connection with the vessel may be a member of the crew whether he is a helmsman, bartender or dredge worker. Norton v. Warner Co., supra; Gahagan Construction Corp. v. Armao, 1 Cir., 165 F.2d 301; Long Island R. Co. v. Lowe, 2 Cir., 145 F.2d 516; Schantz v. American Dredging Co. 3 Cir., 138 F.2d 534; Maryland Cas. Co. v. Lawson, 5 Cir., 94 F.2d 190; Kibadeaux v. Standard Dredging Co., 5 Cir., 81 F.2d 670. See also Pariser v. City of New York, 2 Cir., 146 F.2d 431, 433: 'It is well settled that such an employee working on a dredge is a seaman entitled to sue under the Jones Act * * *.' The facts that the plaintiff-libellant did not live aboard the dredge, ate his morning and evening meals at home, signed no ship's articles, worked an eight-hour day, received overtime pay, and was not required to and did not have seaman's papers, do not conclusively bar him from status as a member of the crew. Daffin v. Pape, 5 Cir., 170 F.2d 622, and cases cited in footnote 1, page 625; Kibadeaux v. Standard Dredging Co., supra; Schantz v. American Dredging Co., supra; Gahagan Const. Corp. v. Armao, supra; Long Island R. Co. v. Lowe, supra. The composite picture of plaintiff-libellant's duties as detailed in the findings of fact, indicates that the purpose of his presence on board the dredge was to further the operation of the vessel in the accomplishment of its chief objective, namely: dredging. The Court, therefore, finds that plaintiff-libellant was a member of the crew of the vessel, and is entitled to maintain an action under the Jones Act, as well as an action for maintenance and cure under the maritime law.
Conclusions of Law
1. The Court has jurisdiction over the parties and the subject-matter of this suit.
2. The Dredge Commodore is a vessel; plaintiff-libellant was aboard her in aid of navigation, performing duties essential for the purposes of the vessel, and was a member of the crew of the vessel, entitled to bring an action to recover damages for the personal injuries he suffered during the course of his employment, under the provisions of the Jones Act, and an action for maintenance and cure under the maritime law.
3. The proximate cause of the injuries and damages sustained by the plaintiff was the negligence of the captain in ordering the plaintiff to perform the work in an improper manner and under circumstances which render its performance unsafe.
4. The plaintiff was not guilty of contributory negligence in following out the orders of his superior.
5. The plaintiff is entitled to recover the sum of $ 1800 in damages, for loss of wages and pain and suffering.
6. In addition, the libellant is hereby awarded fifty-nine days' maintenance and cure, in the amount of $ 354.
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