Before MEDINA, WATERMAN and MOORE, Circuit Judges.
On April 19, 1956 Lawrence Bernardo, a shore-based welder in the employ of Bethlehem Steel Company, was injured when he fell from a scaffold on a floating drydock in a slip of Bethlehem's 27th Street shipyard in Brooklyn, New York. In this action against Bethlehem, Bernardo alleged claims under the Jones Act, 46 U.S.C. § 688, and the general maritime law; and, as the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, 44 Stat. 1424, 33 U.S.C. § 901 et seq. restricts the benefits of the Jones Act to "members of the crew of a vessel plying in navigable waters," Swanson v. Marra Bros., Inc., 1946, 328 U.S. 1, 7, 66 S. Ct. 869, 90 L. Ed. 1045, and as Bernardo's claim under the general maritime law could succeed only if he was at the time he received his injuries a member of the crew of a vessel, the trial judge at the ensuing jury trial decided to sever the issues under Rule 42(b) of the Federal Rules of Civil Procedure, and first try out and submit to the jury the issues involved in the following two questions:
"First: Was floating drydock No. 3, owned by the defendant, Bethlehem Steel Company, a vessel engaged in navigation in navigable waters or on navigable waters?
"Second: Was the plaintiff, Lawrence Bernardo, a member of a crew on floating drydock No. 3 on April 19, 1956?"
From the outset Bethlehem took the position that as matter of law the floating drydock was not a "vessel," and that Bernardo was not a "member of the crew" of the drydock. Bernardo's position, both at pre-trial motions and at the trial itself, was that the issues were issues of fact for determination by the jury. At the close of the evidence the trial judge reserved decision on Bethlehem's motion to dismiss and submitted the two questions to the jury, who answered both questions in the negative. There was, accordingly, no occasion to proceed further with the trial, the complaint was dismissed, and Bernardo appealed.*fn1 The opinion below is reported at 200 F.Supp. 534.
When the case was called for oral argument Jacob Rassner, Esq., counsel for Bernardo, informed this Court that he thought many of the points discussed in appellant's brief were without merit, that he desired to withdraw the brief and present as a basis for reversal of the judgment the following: (1) that the floating drydock, in the light of the evidence adduced at the trial, was as matter of law a "vessel" and that, also as matter of law, Bernardo was a "member of the crew" of that "vessel"; (2) the instructions to the jury were so incorrect and inadequate that, even in the absence of specific objection or exception, this Court should take note of the error and order a new trial in the exercise of its inherent powers to prevent a miscarriage of justice; and (3) it was error to refuse appellant's Request No. 19 "in the language requested * * * other than as covered in the general charge."
It was then stipulated by the parties in open court that appellant would rely solely upon the points above enumerated and we ordered new briefs filed on that basis. At the request of counsel for both parties the case was then argued and the new briefs filed in due course, as directed. Accordingly, after hearing argument and studying the new briefs, we have considered only the above-mentioned points.
Bernardo testified he had worked for Bethlehem about 14 years on a nightly "shape up" basis; that he was a member of a maritime union; that on April 19, 1956 he was assigned to work welding a vertical crack in a seam on the steel wall of the drydock and that he fell from a scaffold as he was doing this welding. He said the drydock had previously been "tied up" at Pier No. 3, but some three months prior to the accident had been towed around in sections by tug to the slip where it was when he was injured. While he admitted working on other drydocks and various ships during the six months prior to his fall, he estimated that most of the time he was working on Drydock No. 3. "They always kept me moving around on the drydocks, working on the ships." The repairs consisted of removing the wooden wings and replacing them with steel. He did not remember signing any ship's articles as a seaman, and lived on shore with his mother.
Frank Albino, who worked in the plate shop in the 27th Street Yard, alongside the slip where Drydock No. 3 was floating when Bernardo was hurt, testified that due to an accident at Pier 3 ("A ship was on there and the wings broke") Drydock No. 3 was moved to the slip and new wings put on. He said the new steel wings "were already up" when Bernardo was hurt, and that "evidently" some time later Drydock No. 3 was towed back to Pier 3, its regular berth. Except for the steel wings and new pumps he could not recall any other changes from the time it was taken from the slip and brought back to its berth at Pier No. 3.
Captain Edward L. Hays was Bernardo's principal witness and he testified as an expert. Relying on his experience in the Pacific after the close of World War II he said the drydock could be towed at sea, and he made various comparisons between a drydock and scows, dredges, floating cranes, and barges. He also explained how modern drydocks perform their functions, said the United States Navy classified floating drydocks as vessels, expressed the opinion that everyone working on a drydock, including welders engaged in the repairing of seams, was a member of the crew of the drydock and that if a welder worked on a number of different drydocks "he is a member of the crew of the one that he is working on for the moment." In answer to a hypothetical question based upon Bernardo's testimony, he stated his opinion to the effect that Drydock No. 3 at the time of the accident was a vessel in navigation and that Bernardo was a member of the crew of that vessel. He also testified that he had seen members of the crew of vessels doing welding while the vessels were on the high seas, and that ship's papers were not customary or necessary except for foreign service. The following questions and answers are part of the testimony of Captain Hays:
"Q. Did you say that there was a continual operation there that required a crew? A. I am sorry, I don't understand what you mean by 'continual operation' - of what?
"Q. That is what I am trying to find out what you meant. You said they are required to have a crew there for continuous operation, and I asked you why. A. Yes. If I understand what you are referring to properly, what I meant by 'continuous operation' was that when the dry dock is in service, that a crew must be maintained - must be available and employed to keep it in operation."
Part of the pre-trial deposition of Anton Pettersen, a Bethlehem superintendent, was read to the effect that members of the crew of a vessel at sea sometimes do ...