Appeal from order of judgment of the United States District Court for the Eastern District of New York, Leo F. Rayfiel, Judge, dismissing appellant's complaint on the ground that he is neither a seaman nor a longshoreman and is therefore unable to sue his employer for an injury in 1966 aboard a floating crane. Held, determination that appellant was not a seaman is not clearly erroneous; determination that appellant was not a longshoreman because he was loading a freighter not the floating crane reversed as a matter of law. Appellee, owner of floating crane, owes appellant warranty of seaworthiness.
Kaufman, Chief Judge, Mansfield and Oakes, Circuit Judges.
This case involves the question whether appellant, injured on board a floating crane in 1966, can sue his employer, the owner of the crane, for negligence or breach of the warranty of seaworthiness. The appeal is from a judgment of dismissal by the United States District Court for the Eastern District of New York, Leo F. Rayfiel, Judge, sitting without a jury. The sole issue before the court below was one of status, whether appellant was a seaman entitled to sue under the Jones Act, 46 U.S.C. § 688, and for breach of the warranty of seaworthiness, or a longshoreman entitled to sue under Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90 L. Ed. 1099, 66 S. Ct. 872 (1946), and Reed v. The Yaka, 373 U.S. 410, 10 L. Ed. 2d 448, 83 S. Ct. 1349 (1963), for breach of the seaworthiness warranty. The parties had agreed that, if necessary, liability and damages would be determined in a second trial. The court below found that appellant was neither a seaman nor a longshoreman but rather a harborworker entitled to no relief beyond the compensation he had received under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-50.
We reverse on the grounds that appellant is a Sieracki seaman, a longshoreman working aboard a vessel, who is owed a warranty of seaworthiness by the vessel's owner, his employer.
On September 19, 1966,*fn1 appellant Pedro Salgado was injured on board a floating crane when an electromagnet, used in loading scrap metal onto freighters, slid, crushing his foot. The floating crane, known as the R6, was owned by the appellee, M. J. Rudolph Corp. (Rudolph). Rudolph, Salgado's employer on the day of the accident, was a stevedoring company which had employed Salgado for approximately a year prior to the accident on an hourly basis when Salgado's services were needed. The court below found that Salgado's duties included working winches on the decks of ships, acting as a signalman to crane operators, and, on occasion, working on floating cranes -- tying, untying and moving them. When working winches Salgado would, by the use of a chute, assist in placing the cargo into the hold of a ship. During the year before the accident Salgado also had worked for other stevedoring companies on an hourly basis.
The day before the accident a foreman from Rudolph, Mr. Bonilla, had called Salgado and told him to report to work the next day. Rudolph had contracted to load a freighter with scrap metal. Rudolph did not own the freighter, nor is the freighter a party to this suit. Salgado was a member of the gang that loaded the freighter. The loading was done by means of the floating crane, "R6," which, with either a bucket or a magnet, transferred scrap metal from a lighter to the freighter. The R6 was between the freighter and the lighter during this process. It had no motive power of its own but was moved over the water by tug boats and moved between hatches of a vessel by lines from the ship's winches maneuvered by workers on the deck of the R6. When a freighter was being loaded the crane's operator sat in an enclosed cab approximately 30 feet above the deck. By the use of levers he could move the cab and permanently affixed boom in a 160 degree circular motion and could raise and lower the boom. The fireman/oiler aboard the R6 maintained the diesel and electric power for these operations.
Appellant spent most of the day of the accident on the deck of the freighter using the ship's winches to move a chute into a hatch so that the hold could be loaded with metal. After the hold was filled it was necessary to move the R6 by maneuvering lines. Salgado and two other Rudolph employees were told by a Rudolph foreman to go onto the R6, where Salgado was told to pick up a loose sling. As he did so the boom on the R6 moved, the R6 listed, and the electromagnet sitting on the deck of the R6 slid, hitting Salgado's foot. It should be added that Salgado neither ate meals nor slept on the R6 and that the R6 was not equipped with sleeping facilities.
Appellant sought and accepted benefits under the Longshoremen's and Harbor Workers' Compensation Act. He filed two suits, one alleging a seaman's cause of action, the second a longshoreman's action against his employer, Rudolph. The cases were consolidated for trial.
II. CONTENTIONS OF THE PARTIES.
Appellant argues that the court's finding below that he is not a seaman is clearly erroneous. He also argues that as a matter of law and fact the determination that he is not a longshoreman should be reversed.
Appellee, in addition to supporting the trial court's determination that Salgado is a harborworker and unable to sue his employer under either the Jones Act or the Reed doctrine, argues that appellant's status is a question of fact reviewable only ...