RESPONDENT: Moore-McCormack Lines, Inc.
LOCATION: Roth's mail-order book business
DOCKET NO.: 59
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 352 US 521 (1957)
ARGUED: Dec 10, 1956
DECIDED: Feb 25, 1957
Facts of the case
Media for Ferguson v. Moore-McCormack Lines, Inc.Audio Transcription for Oral Argument - December 10, 1956 (Part 2) in Ferguson v. Moore-McCormack Lines, Inc.
Audio Transcription for Oral Argument - December 10, 1956 (Part 1) in Ferguson v. Moore-McCormack Lines, Inc.
Number 59, Henry Ferguson, Petitioner, versus Moore-McCormack Lines, Incorporated.
George J. Engelman:
May it please the Court.
This case represents a review of judgment to the United States Court of Appeals for the Second Circuit though the action is won by a merchant seaman who invokes the Jones Act, a federal statute to recover damages for personal injuries allegedly due to negligence, the Act, the federal statute, the Jones Act, being one admittedly where recovery is granted only for negligence.
A case was tried before Mr. Justice Conger and a jury in the United States District Court.
At the end of the plaintiff's case, the respondent moved for a directed verdict.
His motion was denied.
The case went to the jury where plaintiff had a verdict and respondent, defendant below appealed to the Circuit Court and plaintiff's judgment was reversed.
There is no cause of action for unseaworthiness.
George J. Engelman:
No cause of action for unseaworthiness.
The facts are substantially these, the plaintiff was employed as a member of a crew of respondent's vessel, Brazil, which was on a 40-day -- 42-day cruise to South America carrying 500 first class passengers.
In addition to his duties as a baker, during the evening meal at night, he had the job of filling the orders of waiters for ice cream.
The ice cream was kept in the bakeshop adjacent to the galley.
It was stored in two and a half gallon containers in what is known as a tempering or dispensing chest such as we are all familiar with and see in drugstores and confectioner shops.
The only tool with which he was furnished was the usual hemispherical scoop by means of which he could press this tool into the ice cream, bring it up with a bowl, apply a liver and put it in silver conditions.
On the night of this accident, he said that he came on watch and he had dispensed about a half of a tub of ice cream which was of proper consistency where upon he proceeded to dispense from a new tub, but he found it hard.
But with the exercise of considerable pressure, he was able to go down about halfway in this tub of ice cream and serve it.
He then got an order from a ship's waiter for 12 portions of ice cream.
At that point halfway down, he found the ice cream as he said as hard as a brickbat and the tool, the scoop, was utterly useless.
He testified that he had met with this situation previously on ships and had been provided with a tool to wit an ice chipper which was a simple tool with a handle and had six or eight prongs in a vertical line.
And that he would take this ice chipper and dig it into the ice cream, smashing it into small pieces and then use the scoop to form it into balls.
Lacking the ice chipper and seeing no other tool that he might improvise with, he took a butcher knife which was lying nearby in a brittle and there's no allegation if there was any defect in the knife itself.
And using the butcher knife as a chipper, he first separated the hard ice cream from the sides of the container in order to get air in there.
And then with his hand, he -- grasping the knife in sort of a dagger-like fashion, he proceeded to hack away, making small shavings or slivers of ice cream which he formed into bowls by means of the scoop.
In that way, he was able to make nine servings of ice cream.
When the point of the knife struck a piece of ice cream that was so hard that it resisted the cutting surface and his hands slipped down the blade with the result that he was badly cut and had an injury of 60% loss of the functional use of his hand.
He testified that no one gave him a specific order to use this knife.
He appreciated that it was not designed as an ice chipper and he appreciated that it involved certain hazards in its use.
However, he relied on the compulsion of the job, the fact that he had an order from the waiter.
And he relied on the implications in a general order which he got from his superior when he joined the vessel in which he was told that he was working on a first class passenger vessel and that he would have to give good service, prompt service and give the waiters what they want.