Before CLARK, Chief Judge, and LUMBARD, and WATERMAN, Circuit Judges.
This action was brought to recover damages for personal injuries sustained by the plaintiff, Joseph Kermarec, a citizen of New York, aboard defendant's vessel, the S.S. Oregon, while berthed in the North River at New York.
Evidence was adduced at trial from which a jury could find that on November 28, 1948, about noon, Kermarec went aboard the S.S. Oregon with Henry Yves, a member of the crew. Yves had secured the issuance of a pass by the defendant to Kermarce.*fn1 Concededly the visit was a purely personal and social call and the two men went to Yves' room and partook of some refreshments. About four or five o'clock in the afternoon the two men decided to leave the ship. As they started down a stairway, Yves was called by another member of the crew. He turned back and Kermarec proceeded down the stairs by himself.
The stairway consisted of twelve steps, covered by a white canvas runner 1/8 inch thick. The canvas was clean and Kermarec testified that, as he started down, the stairs "looked all right all the way down." Holding the handrail, he continued his descent until he reached the fourth or fifth step from the bottom. The canvas then slipped from under his foot and he fell to the bottom of the stairway fracturing his right hip. While lying at the bottom of the stairway, Kermarec testified, he saw the canvas hanging loose off the edge of the step. Yves and Rene Dufy, the ship's bartender, came down the stairway immediately after Kermarec but they did not fall.
The canvas had been fastened to a rubber tread on the stair by the ship's porter, Bourdon. Two small tacks, similar to carpet tacks, had been hammered through the canvas and into the rubber on each step; one on each side of the canvas. Bourdon further testified that the tacks were placed in the same position day after day and that they could be removed easily by "taking hold" of the canvas.
There was other and conflicting evidence but we have stated the facts in the light most favorable to the plaintiff to test the propriety of the dismissal by the district court. Eckenrode v. Pennsylvania R. Co., 1948, 335 U.S. 329, 69 S. Ct. 91, 93 L. Ed. 41.
This action was brought on the civil side of the district court, the complaint alleging diversity of citizenship and that Kermarec's injuries resulted from the vessel's unseaworthiness and from the defendant's negligence. The trial court dismissed the issue of unseaworthiness and submitted only the negligence count to the jury, charging them that the plaintiff was a mere licensee and that the defendant would be liable "only if both of the following conditions are present:
"1. If the defendant knows of the unsafe condition and realizes that it involves an unreasonable risk to the plaintiff and has reason to believe that the plaintiff will not discover the condition or realize the risk; and
"2. If the defendant invites or permits the plaintiff to enter or remain upon the ship without exercising reasonable care either to make the condition reasonably safe or to warn the plaintiff of the condition and risk involved therein."
The jury returned a verdict for the plaintiff for $7,500. The defendant thereupon moved to set aside the verdict and dismiss the complaint. Judge Murphy granted the motion on the ground that there was no evidence that the defendant had knowledge of the dangerous condition; or that such knowledge could be imputed to the defendant because its servants had used tacks inadequate for the purpose. It is from this order that the plaintiff appeals and also from dismissal of the unseaworthiness count.We agree with both rulings of the district court.
The plaintiff does not stand in such a relationship to the ship that he could maintain an action on the theory of unseaworthiness; Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143; nor did he show facts entitling him to a recovery on the theory of negligence. Gunnarson v. Robert Jacob, Inc., 2 Cir., 1938, 94 F.2d 170, certiorari denied, 1938, 303 U.S. 660, 58 S. Ct. 764, 82 L. Ed. 1119; rehearing denied 304 U.S. 588, 58 S. Ct. 948, 82 L. Ed. 1548.
It seems abundantly clear that Kermarec was a mere licensee.He came upon the ship for his own pleasure and convenience and while the defendant consented to his coming, it did not invite him aboard for any "business" purpose.
Although the concept of analogizing the guest of a seaman on ship to the guest of a tenant on a leasehold, advanced in the dissenting opinion, would be an interesting argument if this were a novel question, it has long been held that the guest of a seaman is nothing more than a licensee. Thus in Metcalfe v. Cunard S.S. Co., 1888, 147 Mass. 66, 16 N.E. 701 the plaintiff, going aboard defendant's ship to consult with the ship's doctor, was held to be a licensee; and in Freeman v. United Fruit Co., 1916, 223 Mass. 300, 111 N.E. 789 a tailor, admitted aboard ship to fit a seaman's uniform, was held to be a licensee; in Kosba v. Bank Line, D.C.Md.1931, 46 F.2d 119 plaintiff came aboard ship to install a piano, the personal property of the captain, in order to provide entertainment for the ship's officers, and was denied recovery since he was a mere licensee; in Silverado S.S. Co. v. Prendergast, 9 Cir., 1929, 31 F.2d 225, the plaintiff was invited aboard the defendant's cargo ship as the social guest of the master, and was held to be a licensee. See also Apostolou v. Eugenia Chandris, D.C.Or.1938 A.M.C. 995, social guest of a steward, held licensee. As to an employee's vistor on business premises, ...