205 F.

2d 38

PAUL,
v.
UNITED STATES et al.
No. 10895.

United States Court of Appeals Third Circuit.

Argued Feb. 6, 1953.
Decided June 8, 1953.
Rehearing Denied June 29, 1953.

Joseph Weiner, Philadelphia, Pa. (Freedman, Landy & Lorry,

Philadelphia, Pa., on the brief), for appellant.
John B. Shaw, Philadelphia, Pa. (Gerald A. Gleeson, U.S. Atty. for the
Eastern District of Pennsylvania, Philadelphia, Pa., Krusen, Evans &
Shaw, Philadelphia, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit
Judges.
KALODNER, Circuit Judge.

Other than in the immediate vicinity of a vessel's gangplank, is a shipowner

under a duty to provide safe means of passage from or to the vessel over a dock
area over which the shipowner has no control and/or to inspect and give
warning of the conditions prevailing along the dock's passageway?

That is the primary issue presented by this appeal from the Order of the District
Court for the Eastern District of Pennsylvania decreeing judgment in favor of
the United States in an action in admiralty to recover damages for injuries
sustained.

The facts were stipulated and appear in the District Court's Opinion, E.D. Pa.
1951, 101 F.Supp. 89. They may be summarized as follows:Libellant, in May
1946, was Chief Engineer of the SS. 'William Moultrie' owned and operated by
the United States. He was at the time 40 years of age and had been a merchant

seaman for over 20 years. The vessel arrived at the Port of Brindisi, Italy, on
the morning of May 6, 1946. It was moored at a long dock which was
constructed parallel to the shore-line. A railroad track ran the length of the
dock, and alongside the track and parallel to it was a cement walkway which
was accessible via three or four steps. The walkway was six or seven feet wide
and several hundred feet long. It had neither railings nor lights and was
unguarded. About 100 feet beyond the bow of the 'William Moultrie' there was
a recess in the walkway about two and one-half feet square and four and onehalf feet deep. The recess was a permanent part of the dock structure and was
designed to contain shunting gear used in the operation of the railroad track.
4

Following the mooring on May 6th, the libellant went ashore during daylight
hours. At that time he chose to walk along the railroad track rather than use the
walkway. After dark, on the evening of May 7th, the libellant again went
ashore on liberty. On that occasion he mounted to the walkway and proceeded
along it until he fell into the recess previously mentioned, sustaining a
contusion of his right knee and aggravation of a pre-existing arthritic
condition.1 The libellant had not been given notice of the existence of the recess
by the ship's officers or crew. At the time, the Port of Brindisi was not blackedout.

On the facts as stated the District Court found that the injuries sustained by the
libellant were not caused by negligence of the United States. It should be noted
that while the libel sought recovery of maintenance and cure in addition to
damages for negligence, prior to the District Court's disposition the parties
settled the maintenance and cure aspect of the case leaving open by stipulation
only the question of damages for negligence.

On this appeal the libellant contends, as he did below, that (1) it was the
shipowner's duty to provide safe egress from the vessel and that the duty was
breached; and (2) it was the shipowner's duty to inspect and warn the libellant
of the existence of the recess in the walkway and that this duty too, was
breached.

With respect to libellant's first point, it should be observed that he maintains the
duty to provide safe egress continues until the seaman reaches the public
highway and is not limited to egress from the ship to the dock. Anent libellant's
second point, it is his view that the shipowner's duty to give warning arises out
of the parent-child, guardian-ward relationship of shipowner-seaman.

In making the contentions above stated, libellant asserts that the duty to provide

a safe means of ingress to, and egress from, the vessel is part and parcel of the
traditional duty on the part of a vessel to provide its seamen with a safe place in
which to work.
9

Libellant has cited a number of cases to support his position but unfortunately
for him they fail to do so.

10

Thus in Marceau v. Great Lakes Transit Corporation, 2 Cir., 1945, 146 F.2d
416, 418 a seaman recovered damages for injuries sustained when he slipped,
while returning to work, on an accumulation of wet flour some three to five feet
from the foot of an ill-lighted ladder leading from the dock to the vessel's deck.
The Court held that the jury reasonably could have found that the flour was
swept from the vessel to the dock and that the shipowner was negligent in
causing or permitting the condition at the foot of the ladder to exist and in
failing to provide proper lights under the circumstances. Moreover, the Court
pointed to the fact that the seaman 'was acting under orders when he returned to
the ship' and 'consequently at the time of the accident he was not only acting in
the course of his employment but suffered his injuries while on property in the
possession and under control of thedefendant * * * .' (Emphasis supplied.)

11

Sassaman v. Pennsylvania R. Co., 3 Cir., 1944, 144 F.2d 950 on which libellant
has placed treat reliance is inapposite. There we merely held that for an injured
employee to be able to claim a right of action under the Federal Employers'
Liability Act2 it must appear that his injuries were sustained either upon the
premises where he normally performed duties of his employment or upon
premises so closely adjacent thereto as to be part of the working premises in the
sense that the employee was required to traverse them in going to or upon
leaving his work. We did not hold in that case that an employer is under a duty
to provide safe ingress and egress to the place of employment since the point
was not in issue.3

12

Patrick v. Atlas Knitting Co., 164 App.Div. 753, 149 N.Y.S. 845, 847, is
likewise not in point. There the employee was killed while crossing the New
York Central's tracks adjoining the factory and the Court held that an actionable
claim was presented. However, the record disclosed that the only means of
egress from the employer's premises was over the railroad tracks and on that
score the Court said: 'It will not answer for the master to turn his employes out
at twilight upon the tracks of the most used railroad in the United States, where
the swiftest trains in the world are constantly passing and repassing. This does
not comply with the law.'

13

In Walton v. Continental S.S. Co., D.C. Md. 1946, 66 F.Supp. 836, the seaman

13

In Walton v. Continental S.S. Co., D.C. Md. 1946, 66 F.Supp. 836, the seaman
on his return to his ship in the dark mistook a coal chute for the gangway which
was some 20 feet distant and was injured. The chute belonged to or was under
control of the dock and had no relation to the ship. The Court held the evidence
was sufficient to establish a slight degree of negligence on the part of the
shipowner in that a gangway watchman whose duty it was to guide seamen
across the gangway with a flashlight was absent from his post at the time of the
accident. Rather pointedly, however, the Court stated 66 F.Supp.at page 839: 'I
find no negligence attributable to the ship with respect to the coal chute. It
belonged to or was under the control of the dock owner.' (Emphasis supplied.)

14

As evidence of the duty of the shipowner to exercise 'parental care' towards

seamen, libellant has cited cases in which liability was imposed under the Jones
Act, 46 U.S.C.A. 688, for assaults committed on seamen by fellow crew
members while ashore. With respect to them the District Court properly held
they 'may be considered as sui generis and have no bearing on the problem
before me.'4 (101 F.Supp 92.)

15

As was stated by the District Court, the libellant has failed to cite a single case
which supports his position.

16

A number of cases have evidenced a contrary viewpoint although none of them

may fairly be said to be four square with the issue here presented.

17

In Todahl v. Sudden & Christenson, 9 Cir., 1925, 5 F.2d 462, 464, a seaman
was injured by falling into a hole on the dock when returning to his ship after
going ashore to make some private purchases. The dock was in control of a
charterer of the vessel. In a suit against the charterer and the owner, a demurrer
by the owner was sustained. Affirming the trial court, the Court said:

18

'The owners of the steamship owed him the duty of providing a safe in which to
perform his work as a seaman. That duty did not extend to his protection when
going beyond the premises of his employment for purposes of his own and over
premises of which his employers had no dominion or control.' (Emphasis
supplied.)

19

Also militating against appellant's position is the case of Lemon v. United

States, D.C. Md. 1946, 68 F.Supp. 793, where it was held that there is no
obligation upon the shipowner to furnish transportation to and from shore to
seamen granted shore leave when their ship is far from dock. The seaman in
that case returned to the ship in an unseaworthy launch, of his own choosing,
and upon arrival at the ship, was found dead in the cabin of the launch. The

cause of his death was asphyxiation by fumes of carbon monoxide gas which
had enveloped the cabin of the launch. To recover against the shipowner it was
necessary to show an obligation to provide safe transportation for the members
of the crew. But the court held that there was no obligation to provide
transportation at all. A fortiori, it would seem, there was no duty to inspect the
various launches to ascertain their safety. See also Lilly v. United States Lines
Co., D.C.S.D.N.Y. 1941, 42 F.Supp. 214, 215;5 Kuhn v. P. J. Carlin Constr.
Co., 1937, 274 N.Y. 118, 8 N.E.2d 300, where the Court applied the principles
and rules of substantive maritime law.6
20

In the instant case the Stipulation of Facts discloses absence of notice to the
libellant of the existence of the recess in the walkway but is silent on the
question as to whether the shipowner had any knowledge of the situation.

21

That brings us to the determination of the question as to whether there was a

duty on the part of the shipowner to inspect the dock area owned and controlled
by a third party before granting shore leave to crew members and to give
warning of any hazards. In our opinion no such duty exists.

22

An exhaustive research in analogous situations in nonmaritime law, where an

employee must traverse the premises of a third person while going from his
employer's property to a public highway, discloses that no such duty to inspect
exists.

23

The general rule in master and servant cases goes even further. In Sharpley v.
Wright, 1903, 205 Pa. 253 at page 258, 54 A. 896, at page 898, the Supreme
Court of Pennsylvania said:

24

'It is well settled that an employer is not responsible for an injury sustained by
his employee caused solely by unsafe premises which are owned and controlled
by a third person, and where the employee's services are performed. The reason
of the rule is that the employer does not own, use, or control the premises, and
hence he cannot be made responsible for injuries sustained by reason of their
unsafe condition.'

25

In Israel v. Lit Brothers, 1915, 248 Pa. 463, 94 A. 136, the Pennsylvania
Supreme Court cited with approval Sharpley v. Wright, supra. In doing so it
held that there was no duty on the part of the master to inspect the premises of a
third person on which he required the servant to work.

26

In Dravo Corp. v. Copeland, 1941, 190 Miss. 269, 199 So. 769 at page 770, it

was held:
27

'Nor is a master liable for allowing or requiring a servant to be transported to

premises of a third person, even though potentially dangerous, in the absence of
actual knowledge by the master of an inherent condition which requires
exposure by the servant to a danger so imminent and so reasonably unavoidable
as to render resultant injury foreseeable as a reasonable probability.'7

28

In view of these well-settled principles in nonmaritime cases what compelling

reasons would require extending the law of maritime torts to include a duty of
inspection over premises of another? Libellant cites a number of cases
discussing the 'father-child' and 'ward-guardian' relationship between shipowner
and seaman.8 'It is against this background', says the libellant 'that respondent's
duty must be examined.'

29

On that score it should be noted that when we say that seamen are the wards of
admiralty, we do not thereby mean to throw wide open the gate to liability for
any and all injuries which befall them. The paternal regard of the Courts and
Congress for seamen has, for the most part, grown out of the peculiar
conditions of their employment. These conditions, by their very nature rigorous
and subjecting the seaman to unusually severe discipline for extended periods
of time, are quite unlike the conditions which attend land labor, and have
resulted in extraordinary remedies being made available to those who accept
this calling.9 In addition to maintenance and cure 10 is the doctrine of
unseaworthiness,11 and of equal importance is the abrogation of the commonlaw defenses of contributory negligence and assumption of risk.12

30

It is pertinent to distinguish at this point between the seaman's right to damages

from the vessel for negligence and his right to maintenance and cure. Under the
circumstances of the case at bar a seaman undoubtedly has available to him the
latter remedy as was evidenced here by the settlement of the libellant's claim
for maintenance and cure. But fault, i.e., the breach of a duty, is not an element
in an action for maintenance and cure; it is the primary element of an action for
damages. This was succinctly pointed out by the Supreme Court of the United
States in Aguilar v. Standard Oil Co., 1943, 318 U.S. 724, 736, 737, 63 S.Ct.
930, 937, 87 L.Ed. 1107, wherein it was stressed that breach of a duty is not an
element in an action for maintenance and cure. In doing so the Court stated:

31

'Plaintiffs here were injured while traversing an area between their moored
ships and the public streets by an appropriate route. * * * And it is said the
shipowner should not be liable (for maintenance and cure) because he had no

control over the premises. But it was the shipowner's business which required
the use of those facilities. And his obligation to care for the seaman's injuries
is, as has been shown, in no sense a function of his negligence of fault. * * *
Consequently the fact that the shipowner might not be liable to the seaman in
damages for the dock owner's negligence, cf. Todahl v. Sudden & Christenson,
9 Cir., 5 F.2d 462, does not relieve him of his duty of maintenance and cure.'
(Emphasis supplied.)
32

The latter statement must be accorded the significance which it merits in view
of the fact that in Todahl v. Sudden & Christenson, supra, previously discussed,
it was held the shipowner was not liable for the dock owner's negligence.

33

In conclusion we need only state that while subscribing to the considerations

which have prevailed in the granting of special remedies and privileges to
seamen as above discussed, we can see no justification or reason for
obliterating by what could be nothing less than judicial legislation the
applicable principles of the law of negligence as they have long been applied.

34

For the reasons stated the Order of the District Court will be affirmed.

35

BIGGS, Chief Judge (dissenting).

36

The suit at bar is an action in personam in admiralty based on the Jones Act,
against the United States. See 46 U.S.C.A. 741. It is based on the negligence
of the shipowner rather than on unseaworthiness of the vessel, the issue of
seaworthiness having been expressly abandoned by the plaintiff.

37

The shipowner did not have control of the dock but I cannot bring myself to the
conclusion that the master of the 'Mountrie' did not have a duty to the libellant,
as a ward of the admiralty, to exercise reasonable diligence to make sure that
the walkway, the customary way of egress from the vessel to the shore, was
safe. If the master had exercised even slight care he would have been aware of
the defect and could have warned Paul of the danger.

38

The pit into which Paul fell was within one hundred feet of the bow of the
vessel, unguarded and unlighted. The accident occurred at night. Though Paul
was going on shore leave he nonetheless was in the course of his employment.
See Marceau v. Great Lakes Transit Corp., 2 Cir. 1945, 146 F.2d 416, certiorari
denied 324 U.S. 872, 65 S.Ct. 1018, 89 L.Ed. 1426, and O'Donnell v. Great
Lakes Dredge & Dock Co., 1943, 318 U.S. 36, 42-43, 63 S.Ct. 488, 87 L.Ed.
596. Cf. John Stewart & Son, Ltd. v. Longhurst, Ann. Cas. 1917D, p. 196

(under a workmen's compensation statute), and Todahl v. Sudden &

Christenson, 9 Cir., 1925, 5 F.2d 462. Since the ship's master did not fulfill
what I think was his duty to the seaman I conclude that the United States
should be liable to him for damages. See The Iroquois, 1904, 194 U.S. 240,
247, 24 S.Ct. 640, 48 L.Ed. 955; Jones v. Waterman S.S. Corp., 3 Cir., 1946,
155 F.2d 992, 1000; Murphy v. American Barge Line, 3 Cir., 1948, 169 F.2d
61, 64, certiorari denied 335 U.S. 859, 69 S.Ct. 133, 93 L.Ed. 406. Negligence
within the purview of the Jones Act is to be construed liberally, bearing in mind
that the obligation of a shipowner to his seamen is greater than that of the
ordinary employer to his employees. See Koehler v. Presque-Isle
Transportation Co., 2d Cir., 1944, 141 F.2d 490, 491.
39

There is no case in point albeit the principle that the duty of the ship to supply
safe egress and ingress was recognized in this circuit in Monteiro v. Paco
Tankers, Inc., D.C.E.D. Pa. 1950, 93 F.Supp. 93, and affords the substantial
basis of the decision in the Marceau case, supra, 146 F.2d 418419. The
majority decision rests upon cases in which the plaintiff was a licensee or a
business-invitee, and was not a seaman. In this connection see Patrick v. Atlas
Knitting Co., 1914, 164 App.Div. 753, 149 N.Y.S. 845, which rules in favor of
the plaintiff.

40

For the reasons stated I dissent.

Libellant received treatment in Brindisi and Trieste, Italy. He was a patient in

the United States Marine Hospital, Baltimore, Maryland from August 28, 1946,
to September 5, 1946, and received out-patient treatment at the United States
Public Health Service in Philadelphia, Pennsylvania at various times from June
18, 1946 to November 6, 1946. Libellant was unable to work from the date of
the termination of the 'William Moultrie' 's voyage on June 11, 1946 until
December 27, 1946. During this period he attended Engineering School from
September 19, 1946, to October 18, 1946

45 U.S.C.A. 51 et seq

In point of fact our finding was that the Federal Employers' Liability Act was
inapplicable by reason of failure of proof that the employee and employer were
engaged in interstate commerce at the time of the accident. Furthermore, the
employee there was injured because of a defective condition on the employer's
own property

In Koehler v. Presque-Isle Transp. Co., 2 Cir., 1944, 141 F.2d 490, the libellant

was assaulted by a fellow crew member while on and off the ship. It was held
that the officers of the ship were negligent in that they should have known of
the assailant's vicious nature and thus should have discharged him. To the same
effect are Nowery v. Smith, D.C.E.D. Pa. 1946, 69 F.Supp. 755, and Kyriakos
v. Goulandris, 2 Cir., 1945, 151 F.2d 132. Cf. Monteiro v. Paco Tankers, Inc.,
D.C.E.D. Pa. 1950, 93 F.Supp. 93
5

There the seaman was injured in returning to the ship after having gone ashore
to exchange a pair of gloves when he somehow fell from the dock with which
he was not familiar while attempting to find the gangplank leading to the ship
in the dark during a blackout. In dismissing his action the Court said: 'Plaintiff
claims there were no guards, lines, handropes or other means of protection on
the dock. But nowhere does it appear that this defendant owned, operated or
controlled the dock.' (Emphasis supplied.)

Cf. Wheeler v. West India S.S. Co., D.C.S.D.N.Y. 1951, 103 F.Supp. 631, 634,
where the Court made the following observation:
'Though the defendant was duty-bound to provide reasonably safe means of
immediate access to the vessel, * * * shipowners have generally been held not
liable for unsafe conditions in places beyond the gangway not under their
control when the seaman is there for his own purposes and not in the
performance of his duties. * * * The suggestion that the Supreme Court's
decisions in the O'Donnell and Aguilar cases indicate an extension of the
shipowner's liability so as to include such situations was clearly rejected in
Lemon v. United States, D.C., 68 F.Supp. 793, 1946 A.M.C. 1640. The court
accordingly is forced to conclude that, at least as yet, it can not be held that the
shipowner's liability extends to such situations.'

See also Ward Furniture Co. v. Ortner, 1926, 170 Ark. 581, 280 S.W. 371;
Neely v. Goldberg, 1938, 195 Ark. 790, 114 S.W.2d 455; Carson v. Dierks
Lumber & Coal Co., 1938, 196 Ark. 163, 117 S.W.2d 39; Walsh v. Turner
Center Dairying Ass'n, 1916, 223 Mass. 386, 111 N.E. 889; Channon v.
Sanford Co., 70 Conn. 573, 40 A. 462, 41 L.R.A. 200; American Bridge Co. v.
Bainum, 3 Cir., 1906, 146 F. 367

Robertson v. Baldwin, 1897, 165 U.S. 275, 287, 17 S.Ct. 326, 41 L.Ed. 715;
Jones v. Waterman Steamship Corporation, 3 Cir., 1946, 155 F.2d 992, 1000;
The Iroquois, 1904, 194 U.S. 240, 247, 24 S.Ct. 640, 48 L.Ed. 955; Murphy v.
American Barge Line Co., 3 Cir., 1948, 169 F.2d 61, 64; Spellman v. American
Barge Line, 3 Cir., 1949, 176 F.2d 716, 721

Aguilar v. Standard Oil Co., 1943, 318 U.S. 724, 728, 63 S.Ct. 930, 87 L.Ed.
1107

10

Aguilar v. Standard Oil Co., supra; Farrel v. U.S., 1949, 336 U.S. 511, 69 S.Ct.
707, 93 L.Ed. 850; Warren v. U.S., 1951, 340 U.S. 523, 71 S.Ct. 432, 95 L.Ed.
503

11

The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760

12

The Arizona v. Anelich, 1936, 298 U.S. 110, 122, 123, 56 S.Ct. 707, 80 L.Ed.
1075; Mahnich v. Southern S.S. Co., 1944, 321 U.S. 96, 103, 104, 64 S.Ct. 455,
88 L.Ed. 561