Mahnich v. Southern S. S. Co.

GOODRICH, Circuit Judge. The libellant brought an action in admiralty under the general maritime law to recover for indemnity by reason of injuries sustained by an alleged unseaworthy appliance and for cure and maintenance. We are not presently concerned with the latter cause of action.1 The injuries complained of were received while libellant was engaged in a painting job upon the ship of which he was a member of the crew. The injuries were received when the rope supporting the stage upon which he was working broke throwing him to the deck below. The rope had been selected for use by the mate of the ship. It was taken from the Lyle gun box and had not theretofore been used. It may be assumed, for the purpose of discussion here, that the failure to detect the weakness of the rope was negligence on the part of the officer who selected it for the purpose used. The libellant’s claim would obviously be an appropriate one for redress under the provisions of the Jones Act2 were it not for the fact, as his counsel concedes, that the action was begun too late. His claim for recovery, therefore, rests upon the maritime law and the basis for the claim is alleged unseaworthiness (The Osceola, 1903, 189 U.S. 159, 23 S.Ct. 483, 47 L.Ed. 760) of the vessel because the rope was defective. There was, however, an ample supply of good rope on board the ship at the time of the acts complained. The respondent contends that the decision in Plamals v. The Pinar Del Rio, 1928, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827, settles the question of the libellant’s claim adversely to the latter. That case also involved an injury to a seaman which was sustained while he was engaged in working on a paint job. The rope broke, the injured man was hurt when he fell to the deck. There, .too, the accident occurred when the mate selected a bad rope and an abundant supply of good rope was on board. The greater part of the discussion by the Supreme Court concerns the question whether in a suit under the Jones Act a libel in rem could be had and this the Supreme Court decided in the negative. The Court also, however, stated that the record did not support the suggestion that the “Pinar Del Rio” was unseaworthy. “The mate selected a bad rope when good ones were available.” 277 U.S. at page 155 48 S.Ct. at page 458, 72 L.Ed. 827. The libellant says that this was only dictum by Mr. Justice McReynolds who wrote the opinion of the Court. We think it cannot be so lightly dismissed. The claim that recovery could be had under the general maritime law for injury sustained for lack of seaworthiness of the vessel was fully presented by the appellant in his brief in the Supreme Court, as an inspection of that brief will show. It also appears in the summary of his argument given in the official report of the decision of the Supreme Court. (277 U.S. 151, 153, 48 S.Ct. 457, 72 L.Ed. 827.) While the opinion, it is true, does not discuss the matter at length we do not think that the authority of the case as a decision on this point can be disregarded by us because the Court, through the writer of the opinion, chose to dispose of the matter in three lines instead of three hundred. The libellant urges also that this portion of the “Pinar Del Rio” decision is no longer authority after the opinion of the majority of the Court in Socony-Vacuum Oil Co. v. Smith, 1939, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265. The sole question in that case, however, was whether assumption of risk is a defense in a suit brought [604] by a seaman under the Jones Act to recover for injuries resulting from his use, while on duty, of a defective appliance on the ship instead of a known safe method of doing his work. All of the discussion in the opinion by Mr. Justice Stone is directed to this point. The decision was one under the Jones Act. We do not, as we read the opinion, find even a dictum to support the position of the libellant here. Our conclusion is, therefore, that this Court was right in its affirmance of the decree of the Court below upon the first hearing. 1942, 129 F.2d 857. We have no disposition to narrow the basis of recovery under the maritime law for injuries sustained by the seaman while in the service of the ship. See Jones v. Waterman S.S. Corporation, 3 Cir., 1942, 130 F.2d 797, affirmed by the Supreme Court on April 19, 1943, 317 U.S. 621, 63 S.Ct. 930, 87 L.Ed. —. However, the “Pinar Del Rio” decision seems to be squarely on the point and it is our duty to follow it. The decree of the District Court is affirmed. Footnotes [1] There has been no request for reargument upon this phase of the ease. [2] 41 Stat. 1007 (1920), 46 U.S.C.A. § 688.