Alvarez v. Van Camp Sea Food Co.

BARNARD, P. J. This is an action for damages brought under the Merchant Seaman’s Act, commonly known as the Jones Act (Title 46 U.S.C.A., § 688).

The plaintiff was one of the crew on a tuna boat owned by the defendants. The boat left San Diego in October, 1947, on a fishing trip. One of its owners, Jose Alves, was in charge of the vessel as master. He had hired the crew, one of whom was his son Eduenno Alves, who was an apprentice seaman making his first trip on a tuna boat. The plaintiff was injured on January 4, 1948, while the boat was in the vicinity of the Galapagos Islands in the Pacific Ocean, and while certain members of the crew were engaged in fishing.

This tuna boat was nearly new and modern. It had a live bait box consisting of three tanks near the center of its deck. A wooden canopy held up by stanchions covered the rear two tanks but not the front tank. The evidence is undisputed that the canopy on such boats is never extended over the front tank because it would interfere with other operations which are necessary. Briefly stated, the method of fishing was as follows. There were a number of racks along the side of the boat outside the bulwark, where the fishermen stand several feet apart. The fishermen were using short poles some 8 or 9 feet long with about a 5-foot line to which was attached a “squid,” which is a heavy barbless hook. When a fish was hooked the fisherman would try to bring it around nearly in front of him and then throw the fish over his right shoulder so it would land on the deck. Frequently the hook would tear loose while the fish was fighting. When this happened the fisherman would fall back against the bulwark and the hook on the end of the line would fly back over his head. Usually, the hook would hit the top of the canopy or the side of the bait box. On the occasion in question, Eduenno Alves was fishing on a rack about the middle of the side of the boat, and he had hooked a 25 or 30-pound fish. As he was trying to work the fish around in front of him, with th'e fish fighting, the fish broke loose. He fell back and the hook and line went over his head, the hook striking the plaintiff and causing the loss of an eye. The line and hook wound itself around a stanchion at the front end of the canopy.

Before the accident the plaintiff was on duty on the bait [649]tank, helping the ehummers, where he had been passing bait from the forward tank to the middle tank. He testified that he was under the canopy and beside the middle tank at the time he was injured. There ^ras other evidence that when he was first seen by other people after the accident he was standing outside of the protected canopy near the forward tank. There was no evidence, and it is not contended, that the portion of the boat under the canopy was other than a safe place to work. There is evidence that these portions of the boat were similar to those used on all tuna boats.