Before SWAN and MEDINA, Circuit Judges, and DIMOCK, District Judge.
MaKane Kane, appellant, was employed as a fireman and water tender aboard a vessel owned and operated by American Tankers Corporation of Delaware, appellee. This action was brought under the Jones Act, 46 U.S.C. § 688, for personal injuries alleged to have been sustained by appellant as a result of fault on the part of appellee. A jury verdict was rendered for appellee and a judgment of dismissal entered thereon. Appellant seeks a reversal and a new trial.
First, appellant urges that the trial judge erred in dismissing that part of appellant's case which charged appellee with a violation of section 673 of Title 46, United States Code.
That section reads, in material part:
"In all merchant vessels of the United States of more than one hundred tons gross * * * the licensed officers and sailors, coal passers, fireman, oilers, and water tenders shall, while at sea, be divided into at least three watches, which shall be kept on duty successively for the performance of ordinary work incident to the sailing and management of the vessel. No licensed officer or seaman in the deck or engine department of any tug documented under the laws of the United States * * * shall be required or permitted to work more than eight hours in one day except in case of extraordinary emergency affecting the safety of the vessel and/or life or property. The seamen shall not be shipped to work alternately in the fireroom and on deck, * * * nor shall any licensed officer or seaman in the deck or engine department be required to work more than eight hours in one day * * *."
Although it is clear that appellant labored more than eight hours per day for a substantial number of days, it is equally clear that he was never required to do so. Appellant's contention is that appellee violated section 673 in permitting him to labor more than eight hours per day. Study of the language of that section reveals that, while seamen employed on tug boats must not be permitted to work overtime, other seamen are merely protected from being required to work overtime.
Recognizing that he was not employed on a tug, appellant seeks to construe that part of the statute applicable to him as prohibiting overtime work. He says that the case of O'Hara v. Luckenbach S.S. Co., 269 U.S. 364, 46 S. Ct. 157, 70 L. Ed. 313, supports his position.
In the O'Hara case the court determined only that the 1915 Act*fn1 compelled division of the crew of a vessel into a deck department and fireroom department. In reaching this conclusion the court gave effect to the explicit language of the Act, which states that the seamen "shall" be divided and "shall not be shipped to work alternately in the fireroom and on deck * * *." The Act continues, "nor shall those shipped for deck duty be required to work in the fireroom, or vice versa * * *", but the court had no occasion to decide whether merely permitting a seaman shipped for duty in one department to work in the other would be a violation of the prohibition. We are thus given no reason to depart from the clear import of the language of the statute. Where the statute intends to prohibit overtime work it says so. See, The Youngstown, 5 Cir., 110 F.2d 968; Madden v. Lykes Bros.-Ripley S.S. Co., certiorari denied 311 U.S. 690, 61 S. Ct. 69, 85 L. Ed. 446.
The court did not err in dismissing plaintiff's charge of violation of section 673 of Title 46 U.S.C.
Second, appellant argues that the trial court erred in submitting to the jury the question whether the course taken by the ship was a deviation from the voyage described in the ship's Articles.*fn2 Both parties agree on the course of the voyage; the only question presented was whether this voyage was a deviation from the one described in the Articles. This was a question of law which should not have been left to the jury. Since we are satisfied, as a matter of law, however, that there was no deviation, submission of this question to the jury was too favorable, rather than prejudicial, to appellant.
We may assume that if read literally the description of the voyage contained in the Articles is too broad to be legally effective. See, The Kentra, D.C., 286 F. 163.By permitting the general words to be cut down by the specific words and the circumstances, we may narrow the description so as to bring it within the limits of permissible generality. The question is whether the actual voyage was a deviation from the voyage indicated by the description thus narrowed. The ship was an oil tanker bound, to start, with, for Caribbean ports. From the Caribbean she sailed to Europe. Certainly this course would be within the contemplation of the parties in using the general words. The ship proceeded from Europe to Ras Tanura in South Arabia and from there to the United States. We believe that this course too - from Europe to the oil producing Middle East - was within the parties' contemplation. It must be remembered that the Articles contemplated the ship's return to New York at a maximum of twelve months from the date of departure. Certainly it could not have been thought that the tanker would criss-cross the Caribbean for all that time.
Third, appellant urges that the trial court erred in its charge to the jury concerning appellee's duty to provide seaworthy appliances and equipment and in its refusal to charge as requested by appellant.
Appellant made no objection to the trial judge's charge in these respects. Rule 51, F.R.C.P. 28 ...