Thorneal v. Cape Pond Ice Co. Et Al‪.‬

QUA, Justice. On July 1, 1944, the plaintiff, a fisherman by trade but not at that time employed, was hired by the master of a fishing vessel owned by the defendant Linquata to 'ice up' the vessel with crushed ice to be supplied by the defendant Cape Pond Ice Company at its wharf in Gloucester. On that same day the plaintiff, while upon the vessel, which was in navigable water at the wharf, and, while using an iron chute owned by the defendant Cape Pond Ice Company to convey the ice into the hold of the vessel, was injured, as he contends, by a defect in the chute. The declaration is in four counts. Count 1 is against the defendant Cape Pond Ice Company alone. This count alleges that that defendant furnished the chute, and that the chute was in a dangerous and defective condition and was unsuitable for the safe and proper performance of the work. Both parties involved in this count treat it as a count for negligence causing injury, and no question of pleading in reference to it has been raised. Counts 2, 3, and 4 are each against the defendant Linquata alone. Count 2 alleges the employment of the plaintiff by that defendant as a seaman, the duty to supply suitable and safe appliances, and negligence of the defendant causing injury. This count expressly states that it is under the Jones Act, U.S.C. (1940 ed.) Title 46, § 688, 46 U.S.C.A. § 688, which in its present form was originally enacted by section 33 of the Merchant Marine Act of 1920, 41 U.S. Sts. at Large, 1007. Count 3 is for maintenance, care, and cure. This court alleges the employment of the plaintiff as a seaman on the defendant Linquata's vessel and the plaintiff's injury while in the performance of his duties. Count 4 alleges simply negligence of the defendant Linquata, his agents or servants, causing injury to the plaintiff and says that it is for the same cause of action as count 2. For authority to join in a single action counts against several defendants see G.L.(Ter.Ed.) c. 231, § 4A, inserted by St.1943, c. 350, § 1.