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EARLY v. AMERICAN DREDGING CO.

November 15, 1951

EARLY
v.
AMERICAN DREDGING CO. (two cases)



The opinion of the court was delivered by: MCGRANERY

Findings of Fact

1. The plaintiff-libellant, William J. Early, was employed as a deck hand on the dredge Commodore, a bucket type dredge owned and operated by the defendant, for a period of four months prior to March 6, 1950.

 2. The dredge was owned and operated by the defendant upon navigable waters to deepen docks, wharves and channels in and about the Delaware River.

 3. As a deck hand Early took orders from the captain and the mate; he assisted in moving the dredge by means of its 'spuds', handled lines between the tug and dredge for towage purposes, assisted in moving the dredge by means of lines to the shore, handled lines to scows, upped scow pockets, repaired and oiled deck machinery, repaired and spliced dredging equipment and scow pocket cables, washed down the deck, painted and scraped, brought supplies aboard, handled channel and range lights, stood lookout to line up the dredge with the cut to be followed in the dredging operation, and performed other services essential to the maintenance and use of the dredge in dredging operations.

 4. Early worked an eight-hour shift, was paid an hourly wage, signed no ship's articles, was not required to have and did not have seaman's papers. Although he was entitled to eat and sleep aboard, he slept ashore and took only the noon meal aboard.

 5. On March 6, 1950, the dredge Commodore was tied alongside another dredge in the Delaware River, a part of the navigable waters of the United States, undergoing routine repairs preparatory to engaging in regular dredging operations on the following day. Early was assisting with the removal of the main stream pipe in the boiler room. The line measured ten feet in length and ten inches in diameter, and ran fore and aft above the top and center of the boiler, from seven to eight and one-half feet above the boiler room deck. One end of the pipe was bolted at a flange connection to a stop valve above the boiler approximately seven feet from the deck and like distance inboard from the side of the boiler. Twelve bolts secured the connection. Early was assisting with the removal of the bolts. The captain of the dredge was present and in direct charge of the operation. Early and another employee removed all but one bolt, which was jammed in the pipe flange because the bolt holes were out of line. To loosen this bolt, the captain instructed Early to insert a spud wrench into one of the bolt holes and shake the pipe, in order to realign the bolt holes. At the time the order was given to him, Early was standing astride the rounded metal surface of the boiler, which measured between ten and twelve feet in diameter, with one foot resting on the lower dog of a manhole plate and the other on the side of the boiler. Early inserted the tapered end of his spud wrench in a bolt hole and, with both hands on the wrench, started to shake the pipe. The end of the wrench slipped out of the bolt hole, causing him to fall backwards down to an opening in the deck and to sustain the injuries complained of.

 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.

 Discussion

 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 ...


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