Appeal from a judgment after a jury verdict in the United States District Court for the Southern District of New York, Robert L. Carter, Judge, finding foreign ship owner and operator liable for negligence under the Jones Act and for unseaworthiness under general maritime law for injuries to foreign seaman that occurred while vessel was in a U.S. port. Affirmed.
Before: OAKES, MINER, and MAHONEY, Circuit Judges.
The operator and owner of a Greek-flag vessel, Constellation Lines S.A. ("Constellation") and Entemar Shipping Co., S.A. ("Entemar") respectively, appeal a judgment after a jury verdict in favor of a Greek seaman, George Karvelis, who was injured while working aboard the vessel Constellation Enterprise. The United States District Court for the Southern District of New York, Robert L. Carter, Judge, entered judgment for $300,000 on Karvelis's claims of negligence under the Jones Act, 46 U.S.C. § 688 (1982), and unseaworthiness under general maritime law. The jury expressly found Karvelis not contributorily negligent. Entemar and Constellation argue on appeal that the district court lacked subject matter jurisdiction, that the identity of any Jones Act employer of Karvelis was a jury question, that only the shipowner, Entemar, could be liable under general maritime law for unseaworthiness, that Judge Carter erroneously charged and failed to charge the jury in connection with contributory negligence, and that there must be a new trial if any of the defendants' directed verdict motions to dismiss the unseaworthiness and negligence claims for insufficient proof should have been granted. We affirm.
Applying the tests laid down by the Supreme Court in Lauritzen v. Larsen, 345 U.S. 571, 97 L. Ed. 1254, 73 S. Ct. 921 (1953), and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 26 L. Ed. 2d 252, 90 S. Ct. 1731 (1970), the district court looked behind "the facade of the operation," Hellenic Lines, 398 U.S. at 310, 90 S. Ct. at 1734, toward "the actual operational contacts that this ship and this owner have with the United States," id., to hold that there was Jones Act jurisdiction. Karvelis v. Constellation Lines S.A., 608 F. Supp. 966, 971 (S.D.N.Y. 1985). For the reasons stated in Judge Carter's opinion, id. at 968-71, and on the facts set forth therein, we agree that there was subject matter jurisdiction under the Jones Act. While the appellants' brief does not make the suggestion, their oral argument was to the effect that with the changing composition of the United States Supreme Court since the decision in Hellenic Lines, that case and the "operational gloss" it put on the Lauritzen test, 398 U.S. at 308-10, 90 S. Ct. at 1733-34, would not now be credited by the Supreme Court. We decline the exercise. Appellants have pointed to no case, no commentaries, no statutes, and no authorities that would lead us to believe that the Supreme Court has overruled Hellenic Lines sub silentio or would do so were it given the opportunity. Cf. Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347 (2d Cir. 1985) (rejecting the argument that Keogh v. Chicago & Northwestern Railway, 260 U.S. 156, 67 L. Ed. 183, 43 S. Ct. 47 (1922), had been overruled), aff'd, 476 U.S. 409, 106 S. Ct. 1922, 90 L. Ed. 2d 413 (1986).
Constellation was found liable for negligence under the Jones Act and both Constellation and Entemar were found liable under the general maritime law. Appellants argue that the identity of Karvelis's employer for Jones Act purposes is a jury question and that it was error to charge that Constellation was the employer as a matter of law. Then appellants argue that only a ship's owner may be liable under general maritime law for unseaworthiness, that Entemar is the owner, and that Constellation should not have been held liable because it was merely the ship's nonowning operator. These arguments, side by side, plunge us into the Serbonian Bog, see J. Milton, Paradise Lost, Book II, line 592 (1667); Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491, 499, 78 L. Ed. 934, 54 S. Ct. 461 (1934) (Cardozo, J., dissenting); Diematic Manufacturing Corp. v. Packaging Industries, Inc., 516 F.2d 975, 978 (2d Cir.) (Mulligan, J.), cert. denied, 423 U.S. 913, 46 L. Ed. 2d 141, 96 S. Ct. 217, 187 U.S.P.Q. (BNA) 592 (1975), that is the law relating to a seaman's recovery for death and injury. We use this term advisedly, for the leading commentators refer in their treatise to the fact that "the perils of the sea, which mariners suffer and shipowners insure against, have met their match in the perils of judicial review." G. Gilmore & C. Black, The Law of Admiralty § 6-1, at 272 (2d ed. 1975). The title of another commentator's article bears this out. See Currie, Federalism and the Admirality : "The Devil's Own Mess," 1960 Sup. Ct. Rev. 158. As Gilmore and Black point out,
The Jones Act count and the unseaworthiness count overlap completely: they derive from the same accident and look toward the same recovery. As a matter of jurisprudential elegance or even of common sense it would have been desirable (and would still be desirable) to abandon the cumbersome fiction that two causes of action are involved and to restate the seaman's cause of action for death or injury as being what it is. That has not been done and, in all probability, will never be done. After ten or fifteen years of confusion the admiralty lawyers and the admiralty judges came to understand that the Jones Act count and the unseaworthiness count are Siamese twins. The only danger here is the possibility that a non-admiralty lawyer will be retained to handle such a case or that a non-admiralty judge will be called on to decide one.
G. Gilmore & C. Black, supra, § 6-38, at 383.
Presented with the "Siamese twins," we do nevertheless have to examine each one, for no election between the counts is required and the Supreme Court, at least in its last five-to-four vote on the issue, maintains that "the Court has repeatedly taken pains to point out that liability based upon unseaworthiness is wholly distinct from liability based upon negligence." Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 27 L. Ed. 2d 562, 91 S. Ct. 514 (1971); see also Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 4 L. Ed. 2d 941, 80 S. Ct. 926 (1960).
Considering first the Jones Act count, our court has held that only an employer can be liable under the Jones Act. Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 473 (2d Cir.), cert. denied, 417 U.S. 947, 94 S. Ct. 3072, 41 L. Ed. 2d 667 (1974); see also Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165, 170 (2d Cir. 1973). But see G. Gilmore & C. Black, supra, § 6-21(a), at 338-39 (recommending reconsideration of the assumption that the only possible Jones Act defendant is a single employer). We believe that Judge Carter did not err when he decided that Constellation was Karvelis's employer rather than put the question as to who was the employer to the jury. The facts that defendant's answer to plaintiff's Interrogatory 50 stated that Entemar was the employer and that the employment contract on Constellation's form identified Entemar as the shipowner (from which it might be implied that Entemar was the employer, see Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670, 674 n.2 (2d Cir. 1971)) are irrelevant. Exhibit 1, Karvelis's employment contract, was on Constellation's form, as were his wage receipts. Constellation managed the ship and operated it, chartering the vessel. It paid for Karvelis's transportation from Greece to the United States to join the ship. In the circumstances, there was no sufficient evidence to go to the jury that Entemar, rather than Constellation, was the employer.
We turn next to appellants' argument that Constellation was not the owner and so could not be liable on the unseaworthiness count. There is language in the opinions that the obligation of the owner [and] one he cannot delegate." Seas Shipping Co. v. Sieracki, 328 U.S. 85, 100, 90 L. Ed. 1099, 66 S. Ct. 872 (1946). But in Reed v. The Yaka, 373 U.S. 410, 412-13, 10 L. Ed. 2d 448, 83 S. Ct. 1349 (1963), the Court held that a bareboat charterer, being in "full possession and control" of a vessel, may be treated as an owner, "generally called owner pro hac vice," and may be personally liable for the unseaworthiness of a chartered vessel. In this case, though Entemar was the record owner with title to the vessel, Constellation was much more than a mere time or voyage charterer. The district court held that Constellation also operated and managed the vessel at the time Karvelis sustained his injury. As operator, manager, and charterer, Constellation had such control and possession of the vessel as to be its owner pro hac vice. See id. ; Eskine v. United Barge Co., 484 F.2d 1194, 1196 (5th Cir. 1973). Hence, Constellation could properly be held liable on the unseaworthiness count.
The district court indicated in accordance with Fed. R. Civ. P. 51 that it would charge at least the substance of the defendant's contributory negligence requests 19, 20, 22, and 23, which read as set forth in the margin.*fn1 Appellants claim that it did not do so. We disagree. The court's charge, also set forth in the margin,*fn2 does so in substance.
Entemar and Constellation were represented at trial by the same counsel, William M. Kimball, Esquire. He moved on behalf of Entemar to dismiss any negligence or unseaworthiness claim against Entemar pertaining to the space underneath the cables on the starboard side of a winch, the cables on which served to raise and lower the "car deck" of the Constellation Enterprise, a so-called "roll on-roll off" vessel. The argument is that there was no notice to or negligence by Entemar because it did not know and could not reasonably have known that Karvelis would use that space as he did, trying to get out of the way of the deck, which he feared would fall because one of the cables was overriding. But the evidence was that Karvelis slipped and grabbed a moving cable and that his hand got stuck on the cable. According to expert testimony, his gloves apparently snagged on cable "fish hooks," pulling his hand into the block of the winch. Entemar, then, was not being held liable for negligence under the Jones Act but solely for unseaworthiness under the general maritime law and notice or negligence is therefore immaterial. Mitchell v. Trawler Racer, Inc., supra ; see also G. Gilmore & C. Black, supra, § 6-44(a), at 401-04. True, counsel did argue that there could be no unseaworthiness with respect to a "fish hook" because it was never intended that anybody grab the cable while it was being moved. However, Karvelis had been specifically assigned to the task of lubricating and adjusting the cables. He was given no instruction manuals or diagrams with respect to the equipment. The cables had to be adjusted to spool evenly and to do that the adjustment bolts had to be loosened and a safety device holding the end of the cable moved. Then Karvelis and his coworker were ...