The opinion of the court was delivered by: KAUFMAN
The plaintiff brought this action against the defendant under the Jones Act, 46 U.S.C.A. 688, for recovery of damages for personal injuries occasioned by the alleged negligence of the defendant, and for the cost of his maintenance and cure. At the outset of the trial the defendant moved to dismiss the complaint on the ground that being a general agent under the war-time standard form of agency agreement there was no liability on its part to the plaintiff, and that the proper defendant was the United States of America.
Prior to the taking of evidence on the negligence phase of the case, a preliminary hearing was conducted by the Court on this question; at this hearing certain exhibits were introduced in evidence and certain facts stipulated.
The disposition of the motion presents the following question: Can a general agent who services a vessel under the terms of the war-time standard form of agency agreement be held liable under the Jones Act, as the employer, for injury to a member of the crew employed as a seaman aboard the vessel, if such agency is not disclosed to the seaman.
Plaintiff in this action, an infant, was a seaman employed aboard the tanker 'Four Lakes' during December of 1947, and was injured on the 19th day of that month when a wave, which swept over the forward main deck of the vessel, knocked him down. Plaintiff brings this action under the Jones Act to recover for these injuries, alleging that they were occasioned by the negligence of the defendant in failing and neglecting to provide him with competent superiors and coemployees. The defendant in addition to denying the alleged negligence on its part, asserts in bar that it was a general agent in accordance with the terms of the general agency agreement between it and the United States of America acting through the Administrator, War Shipping Administration, and his successor, the United States Maritime Commission.
It was conceded at the preliminary hearing that at the time of the accident the tanker was owned by the United States of America and serviced by defendant, American Petroleum Transport Corporation, under the terms of the standard general agency agreement (Federal Register, 46 CFR,Cum.Supp., 306.44). The agreement in this case
is similar in all respects to those considered by the Supreme Court in Cosmopolitan Shipping Co. v. McAllister, 1949, 337 U.S. 783, 69 S. Ct. 1317; Weade v. Dichman, Wright & Pugh, Inc., 1949, 337 U.S. 801, 69 S. Ct. 1326; and Fink v. Shepard Steamship Co., 1949, 337 U.S. 810, 69 S. Ct. 1330.
In the McAllister case, supra, the Supreme Court held that the United States Government and not the general agent, was the employer of a seaman working under such an agreement.
Plaintiff seeks to distinguish the McAllister, Weade and Fink cases on the ground that in those cases, the agency was disclosed to the injured seaman, and it claims that there was no such disclosure in this case. As a result of this absence of disclosure, the plaintiff contends that the general agent can be sued as the employer under the common-law agency rules concerning the undisclosed principals.
The remedy which the plaintiff has sought in his complaint in the instant case is purely statutory. It inures to the benefit of an employee against an employer under the Merchant Marine Act of 1920, Section 33, known as the Jones Act and so referred to above and hereinafter. 41 Stat. 1007, 46 U.S.C.A. 688 (1946).
Plaintiff's action is not based upon common-law negligence, nor upon rules of private agency. The Jones Act discloses on its face that the seaman may take advantage of the provisions of that Act, only against his employer. See McAllister case, 337 U.S.at page 787, 69 S. Ct. 1317, at page 1320, footnote 6. As to this the court stated in the McAllister case, 337 U.S.at page 791, 69 S. Ct.at page 1322: 'We have no doubt that, under the Jones Act, only one person, firm, or corporation can be sued as employer. Either Cosmopolitan
or the Government is that employer. The seaman's substantive rights are the same whoever is the employer.
It is evident from this language that the remedies afforded the seaman by the Jones Act are statutory and can only be exercised against the party who in fact is the employer. See Steele v. American South African Line, D.C., N.D. Cal. 1945, 62 F.Supp. 636, 638. It does not seem material that the name of the employer may not have been revealed to the seaman at the time of hiring; his rights in the light of the McAllister case cannot be enlarged, simply by characterizing the general agent as an employer, when in fact the general agent was not the employer.
The McAllister case sets out the test to be applied to determine who is the actual employer, for the purposes of the Jones Act. There the court said: 'No single phrase can be said to determine the employer. On must look at the venture as a whole. Whose orders controlled the master and the crew? Whose money paid their wages? Who hired the crew? Whose initiative and judgment chose the route and the ports? It is in the light of these basic considerations that one must read the contract.' 337 U.S.at page 795, 69 S. Ct.at page 1323.
It is apparent that the Supreme Court was posing an objective test, to determine who stood in the employer-employee relationship, and would not predicate liability on the basis of who the seaman believed was his employer.
An examination of the general agency agreement in this case makes clear the following: That the general agent was merely an agent, not an independent contractor (Article 1); that the general agent accepted the appointment and undertook and promised to manage and conduct the business for the United States in accordance with the directions, orders and regulations of the United States (Article 2); that the general agent agreed to maintain the vessels in suc Trade or service as the United States may direct, subject to its orders as to voyages, cargoes, and all matters connected with the use of the vessel (Article 3A); that the general agent agreed to equip, victual, supply and maintain the vessels subject to the directions, orders, regulations and methods of supervision and inspection of the United States (Article 3A(c)); that the general agent agreed to procure a master of the vessel subject to the approval of the United States, and that the master would be an agent and an employee of the United States; that the officers and members of the crew procured would be paid in the customary manner with funds provided by the United States (Article 3A(d)); that the general agent agreed to furnish a bond with sufficient surety to the United States to be conditioned upon the due and faithful performance of all the covenants and agreements under the general agency agreement (Article 3B(c)).
The entire tenor of this general agency agreement was intended to and did in fact reserve to the United States of America the full right of ...