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prior to the date of hearing. The applicant for relief should notify the board in writing at least 15 days prior to the hearing date as to whether he will be present, the name of his counsel and the names of any witnesses he intends to call in his behalf. The applicant should be given access to such official records as are deemed necessary to an adequate presentation of his case. Classified or privileged matter, however, will not be disclosed or made available without the express finding of the chairman of the BCNR that such disclosure is required in the case and is not detrimental to the public interest.

The hearing is conducted by the chairman and is subject to his rulings so as to insure a full and fair hearing. The board is not limited by legal rules of evidence but is required by regulations to maintain "reasonable bounds of competency, relevancy, and materiality." All testimony before the board is given under oath or affirmation and the proceedings and testimony are recorded verbatim.

If the applicant fails to appear before the board, in person or by counsel, the board will consider the case on the basis of all the material before it. The board may require the applicant to obtain additional evidence or it may obtain, on its own, such further evidence and information as it considers essential to a complete and impartial determination of the facts and issues.

Following the hearing the board makes written findings, decisions and recommendations. In case of a disagreement between members of the board, a minority report may be submitted either as to findings, decision, or the recommendations or to all, including the reasons therefor. The record of proceedings of the board is forwarded to the Secretary of the Navy who directs such action in each case as he determines to be appropriate.

After final action by the Secretary, the record of proceedings is returned to BCNR. The board notifies the proper authorities to take appropriate action to effect the relief granted by the Secretary. The Board also notifies the applicant and his counsel of the action of the Secretary.

IV

SCOPE OF RELIEF BY BCNR

It will be noted that the statute authorizing BCNR provides that the Secretary acting hrough the Board "may correct any military

4. NAVEXOS P-473, para. V2(a); 32 CFR 723.5(a). 5. NAVEXOS P-473, para. VIII; 32 CFR 723.8.

record of that department when he considers it necessary to correct an error or remove an injustice." The Attorney General has ruled on numerous occasions that relief may be granted under the statute in any instance where Congress was empowered to enact a bill for private relief. The statute has now been in effect for nearly 20 years and its validity never has been questioned seriously in the courts.

In cases where relief has been requested from injustices resulting from court-martial sentences, the authority of the Board to act has been challenged because of statutory provisions providing for the finality of conviction after final review." The Attorney General has ruled that relief may be granted in cases involving punitive discharges or dismissals by court-martial on the ground that issuance of a new discharge should be regarded as an act of clemency or in mitigation and not as affecting the conclusiveness of judgments of court-martial.

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In the case of Peterson v. United States the plaintiff was dismissed from the service in 1944 by reason of conviction by general court-martial. In 1948 the Secretary, acting on the favorable recommendation of BCNR, had the plaintiff's records corrected to show separation under honorable conditions. The Secretary, however, refused to grant his application for reenlistment in his permanent enlisted grade and transfer to the Fleet Reserve. The court held that the correction of records to show separation under honorable conditions was an act of clemency and the conviction was still in effect. Consequently, the Secretary's action in refusing transfer to Fleet Reserve was not arbitrary.

Petitions requesting correction to show separation from the service with a more favorable type of discharge make up a large percentage of the cases processed by the BCNR. These cases are carefully and impartially considered. Relief is not automatic, however. In 1962, 213 petitions were processed which requested correction to show separation with a more desirable type discharge than the punitive or administrative discharge originally awarded. Relief was granted in 56 cases-slightly over one-quarter of those considered.

Other types of cases where relief has been granted by BCNR are: removal of derogatory entries from a service record, removal of letters of censure from an officer's jacket, correction to

6. 41 Ops. Att'y Gen. 10 (1948); 41 Ops. Att'y Gen. 71 (1951); 41 Ops. Att'y Gen. 95 (1952).

7. UCMJ, Art. 76.

8. 40 Ops. Att'y Gen. 504 (1947).

9. 292 F.2d 892 (Ct. Cl. 1957).

show promotion at an earlier date, correction to show exercise of contingency option on retired pay, correction of fitness reports where the reporting officers did not follow instructions in report, correction to show retirement by reason of physical disability rather than longevity, removal of mark of desertion, correction to show retirement at a later date in order to collect for unused leave. This list is not intended to be all-inclusive. The Attorney General has stated that the words "error" and "injustice" as used in the statute do not have a limited or technical meaning and the error or injustice need not have been caused by the service involved.10 The "correction" may actually create a legal fiction if it corrects an injustice.

V

REVIEW OF BOARD'S FINDINGS, PROCEEDINGS AND RECOMMENDATIONS

It will be noted that the statute provides that the Secretary acting through boards of civilians may correct any military record. This raises the question of whether the Secretary may act contrary to the findings and recommendations of the Board. The case of Proper v. United States " is one of the leading cases on this question. Proper was a reserve Army officer. The record of proceedings before the correction board contained extensive evidence to the effect that he showed various symptoms indicative of multiple sclerosis as early as 1938; that these symptoms were of a recurrent nature and during periods of apparent remission he showed no readily discernible symptoms; that he was on active duty as an enlisted man when the symptoms were first noted. He was commissioned a 2nd Lt., Infantry, AUS, on 21 September 1942 and served in the China-Burma-India Theatre from November 1942 until February 1945. Prior to his release to inactive duty in February 1945, plaintiff described his recurring symptoms to the medical officers, but no diagnosis was reached and he was released, not by reason of disability. After his release he had another attack of blurring and double vision. His vision returned to normal and he returned to active duty and served from October 1946 to April 1948. He continued to show recurrent symptoms indicative of multiple sclerosis which were progressive in nature and violence. No diagnosis was reached and, during a state of apparent remission, he was released to inactive duty,

10. 41 Ops. Att'y Gen. 94 (1952). 11. 154 F. Supp. 317 (Ct. Cl. 1957).

again not by reason of physical disability. His condition then began to deteriorate progressively until he was totally disabled. In June 1953, a private specialist in neurology diagnosed his condition as multiple sclerosis. This was the first time he had received a neurological examination. The Veterans Administration awarded him 100% disability. The correction board received expert testimony to the effect that if Proper had been given a neurological examination while on active duty it would have resulted in a diagnosis of multiple sclerosis and a finding that he was unfit for duty.

The majority of the board recommended that Proper's records be corrected to show that he was released by reason of physical disability. The Secretary of the Army referred the record and the board's recommended findings to a special assistant who was a retired Army officer. This officer advised the Secretary that in his opinion Proper was not unfit by reason of physical disability while on active duty because he had fully performed all his duties and had received high performance ratings; that he had received repeated medical examinations while on active duty and none of them had revealed multiple sclerosis. The Secretary refused to correct his military records.

The Court of Claims, in a split decision, held that the Secretary acted arbitrarily and capriciously in refusing to correct the military record in this case. This holding was apparently based on two grounds: (a) the Secretary did not act through the Board; and (b) the Secretary's findings were not supported by the evidence in the record before the Board.

With reference to the first ground the majority opinion of the court states:

In the instant case the Secretary of the Army, in denying plaintiff's application for correction of his military record did not act through the Army board of civilian officers or employees as required by the above statute. On the contrary, the Secretary of the Army wholly disregarded the findings of the civilian board that plaintiff had been totally and permanently disabled in line of duty at the time of his release to inactive duty on April 27, 1948, and, apparently acting through a retired regular Army officer, refused to correct plaintiff's record in the manner recommended by the civilian board." With reference to the second ground, the majority opinion of the court states:

On the other hand, we do not suggest that the Secretary may not overrule the recommendations of the (Continued on page 24)

12. Id. at 326.

MARITIME PERSONAL INJURIES AND THE DOCTRINE OF SEAWORTHINESS

A Matter of Status

LCDR LAVERNE EVANS, USN*

I think that the best and most perfect arrangement of things which I ever saw was when I went to look at the great Phoenician sailing vessel, for I saw the largest amount of naval tackling separately disposed in the smallest stowage possible.

For a ship, as you will know, is brought to anchor, and again got under way, by a vast number of wooden implements and of ropes, and sails the sea by means of a quantity of rigging, and is armed with a number of contrivances against hostile vessels, and carries about with it a large supply of weapons for the crew, and, besides, has all the utensils that a man keeps in his dwelling-house, for each of the messes. Xenophon 430-355 B.C.1

H

ISTORY HAS NOT recorded whether the seaman embarked upon the great Phoenician sailing vessel had any legal rights against the owner when he was injured on board as a result of a defect in the ship's lines or rigging." However, subsequent medieval sea codes recognized a sailor's right to wages, maintenance and cure when he was taken sick or injured in the service of his vessel. In modern times the law has given the seaman, in addition to this traditional right, two additional remedies against his employer when he is injured. The seaman has causes of action for negligence and for the unseaworthiness of the vessel, her appurtenances and her crew. This article will attempt to define the doctrine of seaworthiness and its scope, particularly in those areas of activity where a naval vessel may be involved in an incident requiring its application.

4

A seaman has two distinct causes of action against the shipowner for his injuries-unseaworthiness and negligence. A ship's visitor can only sue for negligence, that is, failure of the

*Lieutenant Commander LaVerne E. Evans, USN, is presently assigned to the Admiralty and Shipping Section, West Coast, Department of Justice, San Francisco. He holds a B.S. degree from the U.S. Merchant Marine Academy and the LL.B. from the University of Wisconsin. He is a member of the Wisconsin bar.

1. Thomas, Stowage-The Properties and Stowage of Cargoes, 3 (3rd ed. 1942).

2. Morrison & Stumberg, Cases and Materials on Admiralty, 2 (1954).

3. Robinson, Admiralty § 36 (1939).

4. Jones Act, 46 U.S.C. 688, 41 Stat. 988 (1920).

5. The OSCEOLA, 189 U.S. 158 (1903); and infra note 9.

shipowner to exercise reasonable care towards. him.6 It will be seen that the warranty of seaworthiness, on the other hand, does not involve any concept of negligence in order to fix legal responsibility on the shipowner. Generally, this warranty is extended only to persons doing seaman's work on vessels that are engaged in

commerce.

At the outset it should be emphasized that naval personnel, civil service seamen on MSTS vessels, and shoreworkers employed by naval shipyards or other government activities do not have a legal right to sue the United States for negligence or unseaworthiness. However, seamen employed on MSTS contract operated tankers are not considered civil servants, and may sue for shipboard injuries based on both negligence and unseaworthiness."

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In 1903, the Supreme Court, in The OSCEOLA, considered the law settled with respect to the legal obligation of the vessel and her owner to furnish the crew a seaworthy ship. The Court stated:

That the vessel and her owner are . . . liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship ...o

This is still the law. Basically, the term "seaworthy vessel" means a vessel whose hull and equipment are reasonably fit for the impending voyage and whose crew is equal in disposition to the ordinary men in the calling.10 In the case of Mahnich v. Southern Steamship Co.11 it was held that the duty to provide a seaworthy vessel is a non-delegable duty of the shipowner and the fact that he was not negligent does not relieve him from liability if an injury results from an unseaworthy condition. In Mahnich, the libelant fell from a stage when one of its

6. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 1959 A.M.C. 597 (1959).

7. JAG INST. P5880.1A, Admiralty Claims, p. 6.

8. Supra note 5. Id. at 175.

9. Id. at 175.

10. Boudoin v. Lykes Bros. Steamship Co., Inc., 348 U.S. 336, 1955 A.M.C. 488 (1955).

11. 321 U.S. 96, 1944 A.M.C. 1 (1944).

supporting lines parted. The line had been tested by the mate prior to use, and it appeared sound. However, upon examination after the accident, it appeared that the point where the line parted was rotten. One of the defenses raised by the shipowner was that there was a sufficient supply of good line aboard and the defective line was used due to the negligence of the mate. The U.S. Supreme Court in holding that the negligence of the ship's officer did not affect the liability of the shipowner stated:

The staging from which petitioner fell was an appliance appurtenant to the ship. It was unseaworthy in the sense that it was inadequate for the purpose for which it was ordinarily used, because of the defective rope with which it was rigged. Its inadequacy rendered it unseaworthy, whether the mate's failure to observe the defect was negligent or unavoidable. Had it been adequate, petitioner would not have been injured and his injury was the proximate and immediate consequence of the unseaworthiness. . . Any negligence of the mate in selecting the rope could not relieve respondent of the duty to furnish a seaworthy staging. . . . Nor does the fact that there was sound rope on board, which might have been used to rig a safe staging, afford an excuse to the owner for the failure to provide a safe one.12

...

The Court in its decision noted that the seaman is subject to the discipline of the sea. He must accept the working conditions and appliances furnished him. Therefore, the Court concluded, it is imperative that they must be safe.

STATUS OF THE WORKER

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Until 1946 it was thought that the warranty of seaworthiness ran only to members of the crew. This status was usually initiated by signing articles.13 However, in the case of Seas Shipping Co. v. Sieracki 14 it was held that this contractual requirement was not necessary in order to bring a land based worker within the scope of the warranty of seaworthiness. Sieracki laid down the rule that persons, whether employed by the shipowner or an independent contractor, who are performing work on board ship that had been historically or traditionally done by seamen, are within the scope of the warranty.

In 1942 Sieracki was on SS ROBIN SHER

WOOD loading cargo. He was employed as a longshoreman by an independent stevedore contractor and was operating a winch when a shackle on the boom parted. The boom and tackle fell and injured him. The evidence dis

12. Id. at 103, 1944 A.M.C. at 7.

13. Robinson, op. cit. supra note 3 at § 35. 14. 328 U.S. 85, 1946 A.M.C. 698 (1946).

closed that the shackle parted as a result of a defect in its manufacture. The evidence failed to show that the shipowner's negligence caused the injury. Liability of the shipowner for the injury had to be founded on his absolute duty to provide reasonably fit cargo gear. The fact that the shipowner had used due diligence in inspecting the gear would be no defense.

The

The real issue before the Supreme Court was whether the shipowner's obligation of seaworthiness, traditionally applicable to seamen within the usual meaning of that term, extended to longshoremen doing the ship's work aboard. In describing the obligation, the Supreme Court held that the warranty's scope was not necessarily dependent on any contractual basis and might extend to "situations where the ship's work is done by others not in such an immediate relation of employment to the owner." 15 court noted that the longshoreman's work was traditionally done by seamen.16 Therefore, the fact that cargo handling was not being performed by seamen during modern times should not deprive those who are now performing the work of the legal protection formerly given to seamen when they were so engaged. Accordingly, recovery against shipowner was allowed. Sieracki was reaffirmed by the United States Supreme Court several years later in a case involving a land based carpenter who was injured while repairing a grain feeder on a vessel.1 This repair work was necessary in order that loading operations could continue. While making repairs the carpenter, Hawn, slipped on some loose grain and fell through a hatch which had been left uncovered. The court noted that Hawn and Sieracki were essentially engaged in the same kind of work-loading the ship. Accordingly, both were entitled to the same protection of the warranty of seaworthiness. 18 The scope of the warranty rests on the nature of the work, its relationship to the ship and whether the work is traditionally performed by

seamen.

15. Id. at 93, 1946 A.M.C. at 703.

16. Tetreault questions the historical basis for this statement in an article, Seaman, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381 at 412 et seq., but it seems firmly fixed in the law as a result of this and many other Supreme Court decisions; Shields & Byrne discuss the adverse effect Sieracki has had on insurance rates in the maritime industry in an article, Application of the "Unseaworthiness" Doctrine to Longshoremen, 111 U. Pa. L. Rev. 1137 at 1148 et seq. They also make a detailed survey of cargo handling practice going back to ancient times, and find no basis for the view that this work was traditionally performed by seamen.

17. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 1954 A.M.C. 1 (1953). 18. Hawn also decided that a land based "seaman" could also have

a cause of action for negligence against the shipowner for failing to use reasonable care; Id. at 413, 414, 1954 A.M.C. at 9, 10.

As

The same criteria resulted in a similar holding in the case of M/V TUNGUS v. Skovgaard 19 which involved a shoreworker who was killed when he was called on board TUNGUS to repair a pump that was being used to discharge cargo. TUNGUS was discharging a cargo of hot coconut oil when a pump owned by the deceased's employer malfunctioned, resulting in a large quantity of oil being spilled over the adjacent deck area. When efforts to repair the pump failed, Skovgaard was summoned aboard. he was stepping from a hatch beam to the uncovered tanktop, he slipped on the spilled oil and fell to his death into the tank of hot coconut oil. Skovgaard's working status was considered analogous to that of Hawn by the court, and it held that the deceased was entitled to the same warranty.20 The court also noted that recovery could be upheld on the theory of negligence, inasmuch as the vessel remained under control of her crew and they were well aware of the oil spill and its attending danger for an hour prior to Skovgaard's arrival.

In 1960 it was held in the case of Lawlor v. Socony-Vacuum Oil Company 21 that the warranty of seaworthiness also ran to an employee of a ship repair contractor who was injured on the tank vessel MOBILFUEL. The ship was alongside the contractor's pier and her crew was embarked when the accident occurred. While on the vessel, Lawlor was supervising fellow yard workers in the marking and inspection of the internal tank bulkheads for leaks and cracks. A series of scaffolds were set up in the tank and a perpendicular ladder had been placed against one of the scaffolds but was not secured. As Lawler descended the ladder, it fell backwards and he fell to the bottom of the tank and was injured. It was clear that the negligence of the contractor's employees caused the accident. However, liability was fixed on the shipowner under the doctrine of seaworthiness. In deciding that Lawlor was doing seaman's work, it appears that the court gave great weight to the testimony of the chief officer of MOBILFUEL concerning the nature of the work in which Lawlor was engaged. He testified that repair of the tank bulkheads for leaks was done by him and other members of the crew when the ship was not at a repair facility; furthermore, equipment including ladders was carried on board for this purpose. The court considered that the Supreme Court's decision in Hawn

19. 358 U.S. 588, 1959 A.M.C. 813 (1959).

20. Id. at 595, n. 9, 1959 A.M.C. at 818 n. 9.

21. 275 F.2d 599 (2d Cir. 1960), 1960 A.M.C. 716, cert. denied, 363 U.S. 844 (1960).

governed this case. Recognizing that the work being done in the Hawn case was the repair of a cargo loading apparatus, the court stated that this did not mean that the warranty extended only to those shoreworkers who were engaged in cargo operations. The crucial test it said was whether the workman is performing a ship's service.

The court then went on to review the status of MOBILFUEL at the time of the incident. The repair contract covered only miscellaneous items of repair and did not provide for any major ship alterations. The evidence showed that the vessel's crew was aboard and was in overall control of the vessel. Based on these factors, it was held that the vessel was in active navigation.22 From Lawlor it would appear that when naval vessels are in a commercial shipyard undergoing regular overhaul or miscellaneous minor and routine repairs, shoreworkers injured doing jobs that are normally done by the ship's crew are within the scope of the warranty of seaworthiness.23

However, it was held in United New York & New Jersey Sandy Hook Pilots Assn. v. Halecki 24 that a repair contractor's employee performing the specialized service of cleaning the ship's generators was not within the scope of the warranty. In 1951 the pilot boat NEW JERSEY was undergoing annual overhaul. One of the job orders called for the dismantling and overhaul of the boat's generators. This task

was subcontracted out to Halecki's employer. On a Saturday when no one was aboard the generators were sprayed with carbon tetrachloride. There was evidence showing that the engine room space had an adequate ventilation system for normal operations. Halecki had worn a gas mask. Nevertheless, he became sick the next day and died two weeks later of carbon tetrachloride poisoning. In denying recovery on the basis that Halecki was not within the scope of the warranty of seaworthiness, the court stated:

The work that he did was in no way "the type of work" traditionally done by the ship's crew. It was work that could not even be performed upon a ship ready for sea, but only when the ship was "dead" with its generators dismantled. Moreover, it was the work of a specialist, requiring special skill and special

22. See text accompanying note 36 infra.

23. See Morrell & Valle v. United States, 193 F. Supp. 705 (N.D. Cal. 1960), 1961 A.M.C. 129, 397 F.2d 662 (9th Cir. 1961), 1962 A.M.C. 671, cert. denied 370 U.S. 960 (1962), where the district court implied that shoreworkers repairing and reconditioning lifeboats of ships undergoing normal overhaul (not major alteration or repair) are entitled to a warranty of seaworthiness. 24. 358 U.S. 613, 1959 A.M.C. 588 (1959).

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