Kaufman, Anderson and Oakes, Circuit Judges. Oakes, Circuit Judge (dissenting).
ROBERT P. ANDERSON, Circuit Judge:
On December 6, 1966 the defendant American Export Isbrandtsen Lines, Inc., (Export) and the defendant House of Albert, a partnership, entered into a contract under the terms of which the defendant House of Albert was granted a concession by Export to maintain, staff and operate the barber and beauty shops on Export's three large passenger liners. During the life of the contract, one of them, the S.S. INDEPENDENCE, made a voyage to the Mediterranean and back between February 28, 1967 and May 4, 1967. The plaintiff, Anna Mahramas, a professional hairdresser, was at that time employed by House of Albert, and she was assigned to work in the beauty shop on the S.S. INDEPENDENCE on the Mediterranean cruise. While so employed on the vessel, the plaintiff was required to have seaman's papers and sign ship's articles, but she was hired and paid solely by House of Albert as called for by the contract, and took orders only from House of Albert's supervisor on the ship. There was an informal understanding that Export, as the shipowner, would furnish the plaintiff and other employees of House of Albert who were on the ship, subsistence and quarters.
The plaintiff shared a cabin with another beauty shop employee, and used the upper of the two berths in the cabin, to which access was gained by a ladder. It is the plaintiff's claim that on March 11, 1967, as she started up the ladder to her upper berth, the bottom step gave way; as a result she struck her face against the side of the ladder and fell to the floor of the cabin, straining her lower back.
She brought this action on November 21, 1967 under the Jones Act*fn1 and under the general maritime law of unseaworthiness, maintenance and cure, and negligence for damages arising out of her shipboard injury. Because of the Jones Act allegations, a jury was impaneled which heard the entire case, but when, at the conclusion of the evidence the trial court dismissed the Jones Act claims, it also discharged the jury and, as there was no diversity of citizenship, decided the remaining admiralty issues itself.
The plaintiff testified that, following the accident, she told her roommate, whose name was Rabar, about the broken ladder and that Rabar said she would get the repair man to fix it for her. The plaintiff did not report the accident or the broken ladder to any of the officers or crew, but said she told everyone in the beauty shop. Sixteen days later she sought medical attention at the dispensary and the surgeon noted she had capped teeth and diagnosed her trouble as neuralgia and prescribed penicillin. She said she told the surgeon she had suffered an accident, but no such thing was recorded by the surgeon. On April 5, 1967 and again on April 30, 1967, the pain in her jaw was diagnosed as diseased roots of her teeth and she was given penicillin; the surgeon's log, however, makes no reference to an accident or back pains.
She worked every day throughout the voyage. After her return on May 4, 1967 she was treated by two dentists for an infection in her teeth. On June 9, 1967 she had outpatient treatment in the surgery clinic at the United States Public Health Service Hospital on Staten Island for diarrhea, resulting from antibiotics given her for the infected teeth. June 13, 1967, the surgery clinic found her fit for duty. Thereafter she made a last voyage for House of Albert, during August, on another ship.
She complained of back pain for the first time when she returned to the surgery clinic on September 22, 1967 but she denied having had any injury to her back. She returned there twice in the early part of October for difficulty in swallowing and for lower abdominal pain. She again went there on October 17th for abdominal pain and attended the orthopedic clinic which described her symptoms as a gradual onset of lumbosacral pain and pain in knee and fingers. It was at that time that she first made mention of what the medical record described as a "vague [history] of trauma, March 1967, when she tripped on a step aboard ship and struck her face." From then on until she commenced the action on November 21, 1967 she made several more visits to the Public Health Hospital for removal of a scar from her knee, lower abdominal pain and swallowing difficulty. On November 24, 1967 she visited the orthopedic clinic where she represented that her back pain had gone away.
The plaintiff's roommate, Rabar, testified that the plaintiff never mentioned having an accident on the ship or that there was a broken step on the ladder; and Rabar said she never asked anyone to fix the ladder.
Plaintiff, in rebuttal, offered the testimony of one Caparones, another House of Albert employee on the ship, who said the plaintiff had told him she had hurt her jaw when she fell in her stateroom because a ladder was broken. Previously, however, he had said she had not told him how the accident occurred, and he had never heard about or seen any broken step in her cabin. Outside of the plaintiff's own testimony, there was no evidence of a broken ladder step or of any accident befalling the plaintiff.
The court dismissed the Jones Act and maintenance and cure claims against Export because it was not the plaintiff's employer and against House of Albert because it did not own or control the ship. The court then found against the plaintiff on the unseaworthiness and general negligence claims, because she "failed to show by a fair preponderance of the evidence that the accident occurred as she has testified."*fn2
We affirm the judgments of the district court, though on somewhat different legal bases from those relied on by the court below.
This case raises important questions concerning the proper parties to the various admiralty causes of action in an unusual context, that is, one where a plaintiff-employee is injured aboard a ship but is not employed by the shipowner and is not covered by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (Compensation Act).*fn3
At the outset, it should be noted that there is no question raised concerning the propriety of the plaintiff's actions against the shipowner for unseaworthiness and general negligence. The duty to provide a seaworthy ship extends not only to the owner's employees but to all "who perform the ship's service . . . with his consent or by his arrangement," Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95, 66 S. Ct. 872, 877, 90 L. Ed. 1099 (1946).*fn4 Furthermore, under maritime law, the owner of the ship owes a duty of reasonable care "to all who are on board for purposes not inimical to [the shipowner's] legitimate interests," Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S. Ct. 406, 410, 3 L. Ed. 2d 550 (1959),*fn5 and, of course, the owner's employees cannot be held to be fellow servants of third-party employees, Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 413, 74 S. Ct. 202, 98 L. ...