*1 add it would for testimony details his Knud- said as to nothing to what barge Victor, worked on sen. who
“Chester,” some occasions that on testified times operated at other the hoist and hook, cargo,
helped checked with the He paid them off. longshoremen and
hired average work week of that in an
added
hours, in connection his maritime duties occupied 15 minutes barge or 20
with the day. Judge Knox
In view of the record before properly held findings we think he his plaintiffs exempt as sea-
that the were meaning the Fair Labor
men within the
Standards Act. judgment awarding accordingly
for be affirmed. overtime should al.
LYNCH UNITED STATES et No. Docket 20561. Appeals,
Circuit Court of Second Circuit. July 3, 1947. Baker, Hoboken, (Wil- Nathan N. J. Cahill, City,
liam Jersey J., T. N.
brief), libellant-appellant. Allen,
Ray Rood City York New (John McGohey, Atty., F. X. Burling- U. S. ham, Veeder, Hupper, Clark & and C.B.M. O’Kelley, City, all of New York on the brief), respondent-appellee States. Bull,
Frank A. York City (Dun- New Huttenbrauck, & Mount Daniel can City, brief), York New for re- spondent-impleaded-appellee. HAND, CHASE, CLARK,
Before L. Circuit Judges.
CLARK, Judge. appeal requires definition duty of to em- independent contractor work- of an August libel- on its On ing husband, decedent lant’s helper employed Bethle- electrician’s *2 98 both petition, the libel impleading had a contract and the
hem Steel which repair appeals. and libellant cargo “Ben F. Dixon” to the vessel o’- From one by owned United States. the The aof to happening of the clock that afternoon until longshoremen by employed a ste contract Bethlehem the accident here involved vedore loading in unloading ship and the ship, includ- part all or the control of in was recently by discussed this court in ship’s performed 5 crew ing No. hatch. The States, Lauro Cir., v. United 2 162 F.2d day during that at hatch No. 5 no work pointed 32. It was there out the night. During afternoon some and the provide must longshoremen the part employees Bethlehem removed the a seaworthy with ship a safe connection that hatch in of the cover of work. Seas Shipping Sieracki, Co. v. 328 work there with their work. Bethlehem’s 85, 872, 66 S.Ct. L.Ed. 90 1099. It was P.M., and continued until at least 5 out, pointed however, further that when he shipown- area to the was not back turned surrenders part ship control of of his accident, nor was er’s control before the the part stevedore his as to the sur replaced. At the section of the rendered up extends only the time the P.M., Lynch ship 10 boarded and com- assumes stevedore control. Grasso v. quarters in menced work crew aft Lorentzen, Cir., 2 149 F.2d certio ship. on At A. the starboard side of the 3 743, 57, 66 S.Ct. 90 rari denied 326 U.S. M., ashore for he and his electrician started 444; Inc., Riley 296 Agwilines, v. clear-lighted passage- a A drink water. 402, 718; Fred Muscelli v. N.Y. 73 N.E.2d provided portside of the Co., 296 N.Y. Contracting erick Starr ship. Nevertheless chose instead 536, citing v. Balboa 73 N.E.2d Vitozi proceed gangway, to the which was Co., D.C.Mass., F.Supp. 286. Shipping portside amidships by crossing hatch No. agents the stevedore If thereafter unlighted. however, which was fell condition, dangerous cause opening into hatch was killed. resulting from not liable accidents it. These were found by facts the Dis States, supra. v. It is un Lauro United Court, adequate trict and there is speculate necessary ship whether support only all of them. Indeed the employee owner’s contract an strongly light contested fact concerns a repairman great than as that lesser hung a boom rest aft No. 5 stevedore. to the of a contract opening. above Libellant’s evi assuming great, libellant cannot For it is light dence was position this in recover from the United States here. by and was removed before the accident condition, dangerous because the follows respondent. Respond of the unlighted open by was caused ent’s evidence light hung was that the after Bethlehem’s accident aid in por least that control of at had assumed Lynch’s body, and the court tion of the so found. recover from Beth Libellant cannot wife, administratrix, Lynch’s as his filed suit; her against in relief lehem this against libel for his death the United Longshore provisions of the lies under Shipping States and the War Administra- Compensa Harbor Workers’ men’s tion, operator,1 the vessel’s Suits Act, And Bethle 33 U.S.C.A. § tion Act, Admiralty seq. U.S.C.A. et § obligated it is hem concedes impleaded States The United Bethlehem as appropriate compensation in pay her respondent party ground proceeding. negligence Bethlehem’s caused accident. After a trial District Court dismissed Affirmed. below, need not discuss and we In its court answer United States raised States, v. suability Benevento
an issue
the War
here. See
487;
Dollar,
Administration,
Shipping
Land
F.2d
which
appear.
This was
decided
HAND,
gangway.
vessel
Judge (concurring).
L.
If the
which
course
Lynch actually
took was one which
Shipping
Co. v.
doctrine of Seas
shipowner might
supposed an em-
Sieracki,1
stevedores,
the em
covers
*3
ployee
take, and,
care
would
if reasonable
“busi
still remain
contractor
of a
would have detected the absence of
it,
guests,”
and are
ness
as I understand
cover,
liability
I should hold that
was
seaworthy ship
not
entitled
However,
established.
I cannot find that the
duty to
the Osceola.2
doctrine of
proved
though
libellant
those facts. Even
any
is
them of
therefore
advise
argument
assume for
the officers
that
dangers,
any
or
have
known
that would
probable
have
should
seen
it
that
that was
been
discovered
care. This
reasonable
men, working
room,
might
not
duty
put
is sometimes
it was the
though
ways
the better
choose
two
reach
work,
place
same as
a safe
providing
hatch,
might
the gangway, but
cross the
but,
speaking,
strictly
that is not true. The
charge
there was no
evidence
responsible
is
giving
not
with notice
the hatch cover
off.
that
was
work;
them a safe
all he need do
Reynolds
prove
tried
Soderling each
dangers
any
tois
discover
and tell them.
that
sleeping
there were seamen
Practically,
very
there
probably
not
much
hatch, and,
argument,
I will assume
between
difference
the two duties.
In
they succeeded;
that
they
had no
Hardie
Dry Dock,3
v. New York Harbor
charge
not
the owner. There were
that,
we held
way pro
if there
a safe
no
P.M.;
officers
board
five
contractor,
vided for an
of a
four
only had
men
chief officer
three
he
way,
unsafe
chose an
ab
the owner was
any
only officer at
board
and he was
solved.
right,
applied
That was
was taken off
time.
the hatch
Since
cover
case,
it
facts of that
but I doubt that would
by employees
say
be safe to
that
mere existence of
possible
be
liability would
way
always
complete
one safe
exon
chief,
P.M.,
before he left at
should
five
depends,
think, upon
eration. That
I
have
off and
seen
likelihood that
would not
replaced.
have
it
had
the work
As
way;
take
unsafe
if there was a rea
going
through
night,
and some
probability
they
so,
might
sonable
do
I
it was
hold in No. 5
there
in the
think the
extends to rea
would have been
reason for him do
no
sonable care to see what dangers lurk in
this, even if
had
the hatch
he
seen
cover
way,
other
and to
advise
P.M.,
properly
off before
for might
five
of them. Our
in Holm
decision
v. Cities
expected
replace
men at
work
Co.,4
explained
is to
Service
be
in this
it when
were done. But
is no
also,
suppose.
I should
he saw the
off
cover
enough
left,
Therefore
it was
before he
or that
off before
Johnson,
employee, provided
the Bethlehem
Therefore,
impose
then.
even we
if
well-lighted passage
port
upon him,
from
off,
door
had he seen
the libellant
the gun
port
room
side of
out her case.
the did
make
3 Cir.,
1 328 U.S.
S.Ct.