202 Mass. 17 | Mass. | 1909
These are two actions of tort to recover damages for the alleged negligence of the defendants. The declaration in the one against the Ley land Company contains a single count averring liability at common law for providing an unsafe place in which the plaintiff was rightfully at work. It contains no count based upon B. L. c. 106, § 76. The declaration in the
The plaintiff was a longshoreman in the employ of Booth, a stevedore, and was working upon the Columbian, a vessel owned by the Leyland Company. On the day of the accident he had been helping to load the vessel. Just before midnight he, with others, was directed to stop work and put on the hatches. The hatches, made of wooden planks, were about five feet long, two feet wide, three inches thick, and were each so heavy that two men were required to handle them. The hatchway itself was about fourteen feet long by ten feet wide, surrounded by an iron frame called the coamings. When the hatch was to be put on, there was first placed across the middle of the hatchway an iron beam called the thwartship piece, and on its middle two other iron beams rested, called fore and aft pieces, one reaching to the middle of the forward coamings and the other to the middle of the aft coamings. These three beams fitted in sockets, and on both sides of the fore and aft pieces were flanges two to two and one half inches in width, and on the inside of both the inshore and offshore coamings were flanges one to one and one half inches in width. It was the customary, and the only practicable way, after the first hatch was put on, for one man to stand on it and successive hatches in placing the next. The night of the accident was dark and a canvas suspended from a boom over the hatchway came down within two or three feet of the deck and covered the whole hatchway except for' an opening where the cargo was taken in. There was no light on the deck. The plaintiff with others was putting down the hatches, his post of duty requiring him to stand on the hatches as they were successively placed. As he was standing on the fourth or fifth hatch and helping to put the next one in position, the one on which he was standing went down and he sustained thereby the injuries for which in these actions he seeks recovery. There was sufficient evidence to support á finding that the hatches were being put down in the same order and places in which they were when the ship came into port, and there was no evidence which compelled the conelusion that they were being placed in any way other than that
The defendant Booth was doing the work of loading and unloading the Columbian under a contract with her owner, from which this extract was in evidence:
“ The said stevedore agrees to discharge and load each of the said steamships at the stated rates promptly upon her arrival in Boston. 'Said stevedore agrees to hire and pay the necessary men for the purpose, to provide all necessary engines, fuel, lights, tackle and other appliances for the purpose, and shall have the sole and entire charge, direction and control of the work; (the work, however, is to be done to the satisfaction of Fred’k Leyland & Co. (1900) Ltd. and of the Owners of the steamers stated on the attached schedule) and the Steamship Company agrees to pay for discharging and loading the same at the rates specified, payment for the work on each ship to be made when each ship is loaded ready for sea. A sufficient number of men is to be provided by Mr. Booth whenever required and at his sole expense for docking and undocking the various steamers coming under this contract.
“ There is to be no extra charge for rigging up to start the ship or for taking off hatches and putting them on again whenever required, neither is there to be any charge for handling cargo tents and stages used in discharging and loading.
“ In loading and discharging the steamships in question, the stevedore has permission to use the ship’s winches, booms, falls and tackle or any other appliances of the ship if he desires so to do, in such condition as he may find them in, on or over*21 the ship’s deck, the stevedore furnishing men to run them; but no obligation or undertaking of any sort is assumed by the Steamship Company or its agents, or is to be implied from such permission to use or from the furnishing by the ship of the necessary steam or otherwise to keep or have such winches, booms, falls and tackle or other appliances or any of them at any time in safe or fit condition for use, or to have any winches, booms, falls and tackle or other appliances in any condition on or over the ship’s deck, and this permission shall be construed as a mere license to the stevedore and his men to use at his or their own risk and discretion for the purposes aforesaid, any winch, boom, fall, tackle or other appliance that may happen to be on or over the ship’s deck without any responsibility whatever on the part of the Steamship Company or its agents in respect to the fitness or safety of such winch, boom, fall, tackle or other appliance for such use or its condition in any respect at any time.”
The plaintiff was not a party to this contract and did not know of its existence. Due notice under the employers’ liability act was given to the defendant Booth. The presiding judge directed a verdict in favor of both defendants.
In the absence of any special contract governing the relation between a shipowner and stevedore, it seems to be settled that the hatchway and hatches are not a part of the ways, works and machinery of the stevedore. Hyde v. Booth, 188 Mass. 290. Bamford v. G. H. Hammond Co. 191 Mass. 479. Hatches are as much a part of the ship as doors are of a house. It is impossible to load or unload her without using them. The defendant Booth could not perform his contract with the other defendant without using them, and taking them off and putting them on is specifically referred to in the contract. But this is not decisive in favor of either of the defendants.
It appears that the work of putting on these hatches was being done in the dark late at night. There is nothing to show that this was not the usual way for performing this work, or that the plaintiff assumed the risk of any beyond the ordinary dangers of working without light. Apart from contract, the duty of the defendant shipowner toward a longshoreman lawfully at work upon his vessel is the same as that of an employer respecting his apparatus and the permanent constructions with and upon which
The circumstances in the case at bar bring it within the latter rule. The duty of the defendant shipowner is in this respect as strong as it would be if it was the employer of labor. The danger was fraught with highly perilous consequences. The shortness of a little over half an inch, which rendered the hatch unsafe when placed in one position though harmless when put in another, was one which cannot be said as matter of law to have been apparent upon inspection by the eye as hatches of that size and character were lying on the deck. They were so heavy that they could not be moved by one man. It cannot be ruled
The written agreement between the shipowner and the stevedore, by which the parties attempted to make the latter and his employees mere licensees, does not by its terms or fair intendment include hatches. Therefore it is not necessary to discuss whether such a contract would affect the rights of those not parties to it and ignorant of its terms. See R. L. c. 106, § 76; Kansas Pacific Railway v. Peavey, 29 Kans. 169. While it is possible that under some circumstances and in another connection the word “ appliance ” might be broad enough to comprehend them, reading it as used in this contract in the
The case against the Leyland company is also plainly distinguishable from Pingree v. Leyland, 135 Mass. 398. There the injury arose from a defective winch belonging to the shipowner but used by the stevedore whose employee was the plaintiff. There was no evidence as to the terms under which it was thus used. It was said that it might be a mere loan of the winch in its then defective condition with no express or implied agreement that it was in good repair. That case was governed by the principle applied in Mahoney v. W. A. Murtfeldt Co. 198 Mass. 471, which these defendants embodied in their contract. But here the hatches were not a piece of machinery; they were an essential part of the vessel. The relation of longshoreman and shipowner implied by inherent necessity an invitation on the part of the latter to the former to use the ship for purposes of loading and unloading, and to use the hatches therefore as much as the hold. It must have been the intention of the shipowner that the hatches should be used by the plaintiff and his fellow laborers. Out of this springs liability. Hayes v. Philadelphia Reading Coal Iron Co. 150 Mass. 457. The duty is not onerous; it is only to call attention to dangers not obvious nor incident to the business or to pay for the consequences of failure to do so.
It is strongly urged that the defendant Booth is exonerated from liability in a case like the present by Hyde v. Booth, 188 Mass. 290. But without impugning that decision in any degree, the present case is distinguishable from it. As has been pointed out, the contract entered into between the two defendants does not include the hatches. But the contract between the two defendants distinguishes this from the Hyde case in that the stevedore here has “the sole and entire charge, direction and control of the work ” of discharging and loading the steamship. This involves such possession as is necessary to perform the contractual obligation. It constitutes an appropriation by him for the time being of the ship for the purposes of performing
Moreover, it might have been found that a proximate contributing cause to the plaintiff’s injury was the darkness in which he was directed to assist in putting on the hatches by the foreman of the defendant Booth. The duty to furnish lights was one cast by the contract between the two defendants upon the defendant Booth. Many cases, where failure to furnish proper lights has been held not to be evidence of negligence, are not in point, for the reason that the danger, which confronted the plaintiff, was one as to which he may have been found to have had no knowledge and which adequate light might have revealed. The defendant Booth therefore had sufficient control of the ship to enable him to provide necessary lights, and it might have been found to be his duty with reference to such a condition as existed here to furnish them. Even though as to ordinary conditions it may have been the usual way to put on the hatches in the dark, yet to set his men at work in the dark with a short hatch amounted substantially to a trap. Though he could not change the construction of the ship, he could have done something to enable the men to see hidden and unusual dangers. Graynor v. Old Colony & Newport Railroad, 100 Mass. 208. Haggblom v. Winslow Bros. & Smith Co. 198 Mass. 114. Hodde v. Attleboro Manuf. Co. 193 Mass. 237. Johnson v. Field-Thurber Co. 171 Mass. 481.
Exceptions sustained in both cases.