145 F.2d 514 | 2d Cir. | 1944
This is an action for personal injuries brought by the plaintiff, a seaman, against Hugh J. Chisholm, owner of the yacht Aras, and Brewer Dry Dock Company, owner of a dry dock in which the vessel was undergoing repairs and alterations at the time the plaintiff sustained his injuries. The action was discontinued against Chisholm. For brevity the corporate defendant, against
The motion was supported by an affidavit by Hugh M. Thon, superintendent of Brewer’s shipyard, a transcript of the plaintiff’s testimony upon his examination before trial, and an affidavit by Brewer’s attorney with respect to a deposition of foreman Pesce, under whose supervision the plaintiff worked. An affidavit by the plaintiff was read in opposition to the motion. From the motion papers the following facts appeared: The yacht was to be converted into a naval auxiliary vessel and Brewer had contracted with the United States Navy to do the work of conversion in accordance with the Navy’s plans and specifications. Brewer had sublet to Union Engineering Corporation, an independent contractor, the work of scaling and painting the exterior of the hull. The plaintiff was employed by Union and was engaged in its work when the accident occurred which caused his fall. He was standing upon a heavy plank which was hung as a scaffold from the ship’s rail over’ her starboard side toward the bow. To keep the scaffold close to the ship’s side a rope was led from each end of the plank through an open porthole and tied to the ringbolt intended for use in holding the port closed. On the day of the accident the ringbolt to which the forward line was tied broke, causing the scaffold to spring suddenly away from the vessel’s side and the plaintiff to fall. The plank and ropes used in rigging the scaffold were furnished by Union and the rigging was done by the plaintiff and a fellow employee under the direction of Union’s foreman. Upon these facts the District Judge was of opinion that if the injury resulted from negligence, it was Union’s negligence, not Brewer’s, and that under New York law a general contractor, exercising only limited supervision and control for the purpose of seeing that the subcontractor’s work complied with the plans and specifications, is not liable for the subcontractor’s negligence.
That this is a correct statement of the New York rule usually applicable between a general contractor and his subcontractor cannot be doubted. Moore v. Charles T. Wills, Inc., 250 N.Y. 426, 165 N.E. 835; Ahbol v. Harden Contracting Co., 265 N.Y. 564, 565, 193 N.E. 322. The rule, however, is not without exceptions. Rosenberg v. Schwartz, 260 N.Y. 162, 166, 183 N.E. 282; see also De Haen v. Rockwood Sprinkler Co., 258 N.Y. 350, 179 N.E. 764; Wright v. Tudor City Twelfth Unit, Inc., 276 N.Y. 303, 12 N.E.2d 307, 115 A.L.R. 962; Schwartz v. Merola Bros. Construction Co., 290 N.Y. 145, 48 N.E.2d 299. In the case at bar we are not convinced that the general rule is so clearly applicable as to warrant a summary judgment for the defendant.
Although one of the charges of negligence in the complaint was that the defendant caused the scaffold “to be tied in an insecure and unusual manner”, the plaintiff swore in his examination before trial that it was tied up in “the usual way”. We must accept this as the tender of a substantial issue of fact, if it is a relevant issue. We believe it is. Brewer had control and custody of the vessel. If it was customary to use the ringbolt of the dead light of a porthole to fasten a line holding such a scaffold in toward the vessel’s side, we think Brewer might be held to have furnished it to the subcontractor for that purpose and, if the ringbolt was not suitable for the purpose or was defective, to have been negligent in so furnishing it. Plaintiff’s opposing affidavit states that the ring-bolt was “defective” and that the scaffold was tied “under the direction of the de
Judgment reversed and cause remanded.