Opinion of the Court. 337 U.S. an election to employ the means for redress theretofore possessed by them, such as those mentioned in § 1 of the Clarification Act, note 8, supra, or to enjoy the same rights as similar employees on merchant vessels.13 Nothing has been presented to us from the Act or from its legislative history indicative of congressional purpose to do anything other than to extend existing rights of merchant seamen to all seamen employed through the War Shipping Administration. This was specifically declared in H. R. Rep. No. 107, 78th Cong., 1st Sess., p. 21: "The various rights and remedies under statute and general maritime law with respect to death, injury, illness, and other casualty to seamen, have been rather fully set forth hereinabove. Under clause 2 of section 1 (a) these substantive rights would be governed by existing law relating to privately employed seamen. The only modification thereof arises from the remedial provision that they shall be enforced in accordance with the provisions of the Suits in Admiralty Act. This procedure is appropriate in view of the fact that the suits will be against the Government of the United States. In such a suit no provision is made for a jury trial as may otherwise be had in a proceeding such as one under the Jones Act for reasons set forth in the letter of the Attorney General (September 14, 1942)." See S. Rep. No. 62, 78th Cong., 1st Sess., pp. 11-12; S. Rep. No. 1813, 77th Cong., 2d Sess., p. 6; Hearings before the Committee on the Merchant Marine and Fish 13 For a full discussion see the dissent in Hust v. Moore-McCormack, 328 U. S. 707, 744, and the excerpts from the Senate and House Reports, footnotes 9 and 10. For the background of the statutory distinctions drawn between public vessels and merchant vessels, see Canadian Aviator, Ltd. v. United States, 324 U. S. 215, 218-22; American Stevedores v. Porello, 330 U. S. 446, 450–54. 783 Opinion of the Court. eries, House of Representatives, 77th Cong., 2d Sess., on H. R. 7424, p. 33. The Caldarola case, 332 U. S. 155, undermined the foundations of Hust. See the dissent therein at pp. 161163. Caldarola held that the general agents under the standard form contract were not in possession and control of the vessel so as to make them liable under New York law to an invitee for injuries arising from negligence in its maintenance. Pp. 158-59. Our ruling was based on "the interpretation of that contract" as "a matter of federal concern." We do not think it consistent to hold that the general agent has enough "possession and control" to be an employer under the Jones Act but not enough to be responsible for maintenance under New York law. It is true, as respondent argues, that Caldarola dealt only with the general agent's liability to a stevedore, as opposed to a crew member, under the law of New York. We think, however, that vicarious liability to anyone must be predicated on the relation which exists under the standard form agreement and the shipping articles between the general agent on the one hand and the master and crew of the vessel on the other. Caldarola held that this relation was not one which involved that proximity necessary to a finding of liability in the general agent for the torts of the master and crew. We perceive no reason why the rationale of this holding does not apply with equal force to a suit under the Jones Act. Under common-law principles of agency such a conclusion is required. We think it equally compelled even if we are to adopt, as the Court in Hust suggested, the perhaps less technical and more substantial tests propounded in Labor Board v. Hearst Publications, 322 U. S. 111. Hust was decided June 10, 1946; Caldarola June 23, 1947. Certainly from the latter date, the danger of relying on Hust was apparent to the world though it must be admitted there was enough uncertainty in the law Opinion of the Court. 337 U.S. properly to give concern to Congress." Notwithstanding there may be some undesirable results in overruling Hust, such as loss of rights under the Suits in Admiralty Act by reliance on Hust, we think that in view of Caldarola, the uncertainty as to remedies that the two decisions generate, and the desirability of clarifying the position of the United States as an employer through the War Shipping Administration, that case should be and is overruled. II. A re-examination of the present standard service agreement will make clear the conclusion set out in Part I of this opinion. 46 C. F. R. Cum. Supp. § 306.44 et seq. 14 Although Congress has not enacted legislation to make entirely clear the remedies of W. S. A. seamen against the United States for torts, there has been an effort to do so. H. R. 4873, 80th Cong., 2d Sess., sought to do so by amending the Suits in Admiralty Act, § 5, 41 Stat. 525, 526, so as to make the remedy in admiralty of that act exclusive as to the same subject matter so as to protect the general agent from suits such as Hust or Caldarola. The bill was passed by the House June 8, 1948, 94 Cong. Rec. 7388-89, but was not passed by the Senate. H. R. 483 and 4051 of the 81st Cong., 1st Sess., to the same effect, are now pending. In H. R. Rep. No. 2060 on H. R. 4873, 80th Cong., 2d Sess., the Committee on the Judiciary said, p. 2: "Then the Supreme Court on June 23, 1947, handed down its decision in Caldarola v. Eckert (332 U. S. 155), which clarified, in the opinion of the committee, the rule previously announced so as to make it plain that the agent while liable for the negligence of its own employees was not liable for the negligence of the civil-service masters and crews with whom the United States manned the vessels. For the negligence of those, the United States was the only responsible party. The committee believes that litigants should not be made the victims of the legal confusion regarding the proper remedy in such cases, and are not responsible for the conditions brought about by the lack of clarity in the opinions of the Supreme Court. Legislative relief is requisite not only to save to litigants possessing meritorious claims their right to a day in court, but also to settle the question of remedy in future cas is." 783 Opinion of the Court. The solution of the problem of determining the employer under such a contract depends upon determining whose enterprise the operation of the vessel was. Such words as employer, agent, independent contractor are not decisive. No single phrase can be said to determine the employer. One must look at the venture as a whole. Whose orders controlled the master and the crew? Whose money paid their wages? Who hired the crew? Whose initiative and judgment chose the route and the ports? It is in the light of these basic considerations that one must read the contract. No evidence has come to our attention that indicates the general agent ever undertook to give orders or directions as to the route or management of the ship while on voyage. An examination of the terms of the contract and the actual conduct of the parties under this agreement, so far as shown by the record, demonstrates that the United States had retained for the entire voyage the possession, management, and navigation of the vessel and control of the ship's officers and crew to the exclusion of the general agent. Under the General Agency Agreement the general agent is appointed by the United States "as its agent and not as an independent contractor, to manage and conduct the business of vessels assigned to it." Art. I. The general agent agrees "to manage and conduct the business for the United States, in accordance with such directions, orders, or regulations as the latter has prescribed, or from time to time may prescribe." Art. 2. The general agent engages itself to "maintain the vessels in such trade or service as the United States may direct," to "collect all moneys due the United States" under the agreement, to "equip, victual, supply and maintain the vessels, subject to such directions, orders, regulations and methods of supervision and inspection as the United States may from time to time prescribe," Art. 3A, to "arrange for the repair of the vessels" and to "exercise reasonable diligence in making inspections and obtaining Opinion of the Court. 337 U.S. information with respect to the state of repair and condition of the vessels." Art. 14. The agreement provides in Art. 3A (d) that: "(d) The General Agent shall procure the Master of the vessels operated hereunder, subject to the approval of the United States. The Master shall be an agent and employee of the United States, and shall have and exercise full control, responsibility and authority with respect to the navigation and management of the vessel. The General Agent shall procure and make available to the Master for engagement by him the officers and men required by him to fill the complement of the vessel. Such officers and men shall be procured by the General Agent through the usual channels and in accordance with the customary practices of commercial operators and upon the terms and conditions prevailing in the particular service or services in which the vessels are to be operated from time to time. The officers and members of the crew shall be subject only to the orders of the Master. All such persons shall be paid in the customary manner with funds by the United States hereunder." It is thus seen that the duties of the respondent were expressly and intentionally limited to those of a ship's husband who has been engaged to take care of the shoreside business of the ship and who has no part in the actual management or navigation of the vessel. This view is reinforced by the considerations which led to the establishment of the War Shipping Administration to control "the operation, purchase, charter, requisition, and use of all ocean vessels under the flag or control of the United States." 15 Secrecy, speed, and efficiency of oper 15 Executive Order 9054 of February 7, 1942, issued under the First War Powers Act of December 18, 1941, 55 Stat. 838. 3 C. F. R. Cum. Supp. 1086. |