As Amended on Denial of Rehearing Oct. 21, 1946. [328 U.S. 707, 708] Messrs. B. A. Green, of Portland, Or., and Abraham E. Freedman, of Philadelphia, Pa., for petitioner.
Messrs. Erskine Wood and Erskine B. Wood, both of Portland, Or., for respondent.
Mr. Justice RUTLEDGE delivered the opinion of the Court.
This case arises by virtue of the fact that during most of the Second World War substantially our entire merchant marine became part of a single vast shipping pool, said to have been the largest in history,1 operated and controlled by the United States through the War Shipping Administration. 2 So huge an enterprise necessarily comprehended many intricate and complex readjustments from normal, peacetime shipping arrangements. These [328 U.S. 707, 710] were executed largely through broad powers conferred upon the Administration. 3
Eventually almost every vessel not immediately belonging to naval and other armed forces came under the Administration's authority. Otherwise than by direct construction and ownership, this was accomplished complished by transfer from private shipping interests to the Administration, pursuant to requisition or other arrangement.
Inevitably the industry's transfer from private to public control was achieved to a very great extent by making use not only of private property but also of private shipping men, both in management and for labor. 4 This too [328 U.S. 707, 711] was brought about in various ways, but chiefly two for presently pertinent purposes. One was by time-chartering of privately owned vessels with crew, in which case the men remained the private employees of the vessel's owner. The other was by either bareboat-charter or outright ownership by the Administration. In such instances, as will appear, master and seamen became technically employees of the United States. 5
The difference is important for the issues and the decision in this case. They concern the broad question whether seamen employed in the latter capacity, as members of the United States Merchant Marine,6 lost during the period of such service prior to March 24, 1943,7 some of the American seamen's ordinary and usual protections in respect to personal injury or death incurred in the course of employment, or retained those rights. Specifically, in this case the question is whether petitioner Hust retained the seaman's usual right to jury trial in a suit against the respondent, pursuant to the provisions of the Jones Act,8 for personal injuries incurred in the course of his employment as a seaman on the S.S. Mark Hanna. [328 U.S. 707, 712] This was a Government-owned Liberty ship operated under a so-called General Agent Service Agreement between respondent and the Administration.
The Mark Hanna had been torpedoed in the Atlantic Ocean on March 9, 1943. Early on the morning of the 17th, the day of Hust's injury, the vessel was being towed to port. He was ordered to go to the ship's locker in the forepeak of the second deck and bring out a mooring line to be used in towing. The electric bulb lighting the locker room had burned out and the room was dark. While crossing it to get the line, Hust fl l through an unguarded hatch about twelve feet to the third deck. In landing the struck a steel manhole cover projecting some six inches above the deck, and incurred the injuries for which this suit was brought on September 24, 1943, in the Circuit Court for the County of Multnomah, State of Oregon.
The complaint alleged that Hust was respondent's employee, was injured through its negligence, and that the suit was brought pursuant to 33 of the Merchant Marine Act of 1920. Trial before a jury brought a verdict and judgment for Hust. On appeal to the Supreme Court of Oregon the judgment was reversed and an order was entered for the cause to be remanded, with directions to enter judgment for the respondent notwithstanding the verdict. The Supreme Court held that, as a matter of law,9 petitioner was an employee of the United States, not of respondent, and therefore he was not entitled to [328 U.S. 707, 713] recover from it under the Jones Act for the injuries alleged and proved. Or., 158 P.2d 275. The importance of the question for the administration of the Act in application to persons situated similarly to the petitioner caused us to grant certiorari in order to review this ruling. 327 U.S. 771 , 66 S.Ct. 520.
The Supreme Court of Oregon considered that the controlling question was whether Hust was respondent's employee when the injuries were incurred; and that 'it must be assumed ... that the case is governed by the rule of the common law' to determine this question and thus the outcome of the case. Accordingly it examined with great care the arrangements which had been made between respondent and the Government for operation of the Mark Hanna, with special reference to the provisions of the General Service Agreement10 to which the Administration and respondent were parties. From this examination the court concluded that respondent was an agent of the Administration for only limited purposes, not including control, authority or principalship of the master and crew or responsibility for negligent occurrences taking place at sea and not attributable to the manner of discharging any duty of respondent while the [328 U.S. 707, 714] vessel was in port. 11 Hence, applying the common-law 'control' test, 12 the court came to its conclusion that Hust was not respondent's employee as that relation is contemplated in the Jones Act. The court also found that the so-called Clarification Act13 in no way gave support to his view that he could recover from respondent under the Jones Act. 14
It is around these questions and the effect for determining them of various authorities, particularly Brady v. Roosevelt S.S. Co., 317 U.S. 575 , 63 S.Ct. 425, that the controversy has revolved in the state courts and here. In connection with the bearing of the Clarification Act, it is of some importance to note that Hust's injuries were sustained [328 U.S. 707, 715] only a few days before that Act became effective on March 24, 1943, and that it contained features relating to injuries like Hust's incurred between that date and October 1, 1941, retroactive in character. 15 It is, in part, concerning those features that argument has been most intense.
At the outset it is important to state just what the decision may mean in consequences for injured seaman and their dependents as well as for the Government.
The Jones Act was the culmination of a long struggle by seamen to secure more adequate relief in case of injury or death, incurred in the course of employment, than had been afforded by preexisting law. 16 We do not stop to review that history. But the history of the Jones Act since its enactment has been distinctive in that, at all subsequent times, seaman have opposed substituting for its provisions other forms of relief which have been tendered as being more in accord with modern trends of legislation for these matters. 17 Wisely or unwisely, they have steadfastly preferred the traditional remedy of jury trial for negligence to workmen's compensation based on liability without fault. By 1942, when the Government took over the merchant marine, that remedy had become a thoroughly established incident of the seaman's contract of employment, as much so as the historic relief afforded by the general maritime law for maintenance and cure [328 U.S. 707, 716] or maritime tort. 18 It was one which attached to every seaman's contract.
Moreover, by 1 of the Suits in Admiralty Act, like the Jones Act enacted in 1920, 41 Stat. 525, 46 U.S.C. 741, 46 U.S.C.A. 741, arrest and seizure under judicial process were forbidden of vessels owned by the United States or a governmental corporation 'or operated by or for the United States or such corporation'; and by 2, 46 U.S.C.A. 742, in place of that right of seizure, 'a libel in personam may be brought against the United States or against any (governmental) corporation' in cases where 'if such vessel were privately owned or operated ... a proceeding in admiralty could be maintained.'
By the decision in Johnson v. United States Shipping Board Emergency Fleet Corporation, 280 U.S. 320 , 50 S.Ct. 118, it was held that the remedies given by the Suits in Admiralty Act 'are exclusive in all cases where a libel might be filed under it,' that is, on 'maritime causes of action covered by the act.' Id. 280 U.S. at page 327, 50 S.Ct. at page 120.
The Johnson ruling was made broadly to cover maritime causes of action which could be asserted in admiralty against the United States or governmental corporations and also against private operators for the Government. 19 United States Shipping Board Merchant Fleet Corporation v. Lustgarten, 280 U.S. 320 , 50 S.Ct. 118, a companion [328 U.S. 707, 717] case. But in Brady v. Roosevelt S.S. Co., supra, the Johnson (Lustgarten) ruling was modified, in accordance with the obvious scope and purpose of the Act, to restrict the exclusiveness of the statutory remedy provided to causes asserted against the Government or governmental corporations. The Act, it was held in effect, did not affect or exclude the seaman's rights, in admiralty or otherwise, against the private operator. It merely substituted one remedy against the Government for what was, in substance though not technically, another against it, that is, the libel in personam provided by 2 for the libel in rem taken away by 1.20
Prior to 1942, therefore, the privately employed seaman had not only his remedy under the Jones Act, but also his rights under the general maritime law enforceable in admiralty or by various forms of proceedings elsewhere. But even more favorably situated, under the Brady ruling, was the seaman employed on vessels owned by the United States and operated for it by private companies under arrangements with the Fleet Corporation or the Maritime Commission. 21 He had his exclusive remedy against the [328 U.S. 707, 718] Government or the appropriate governmental corporation, under the Suits in Admiralty Act, for all causes of action which could be maintained in admiralty if the vessel on which he was employed had been privately owned or operated; and, moreover, under the Brady ruling he retained his rights under maritime law against the private company operating the vessel as agent for the Government. 22 Although never specifically decided here, this was held in Carroll v. United States, 2 Cir., 133 F.2d 690, to include not only general maritime rights such as the Brady case involved, but also recovery under the Jones Act. The Carroll case was decided flatly on authority of the Brady decision and the result was fully justified [328 U.S. 707, 719] both by its ruling and by the terms of the Suits in Admiralty Act.