262 F. 11 | 4th Cir. | 1919
On August 25, 1917, the Stevedore Company contracted with the owner of the launch Rosa to carry a number of its workmen from the pier adjacent to the slip in which the Chesapeake was dredging to the place where they were to work. ■ The Rosa having taken, on the stevedores undertook to pass under the cables of the Chesapeake. While passing one of the cables fell on the launch and knocked off the stevedore, William Boddie, who was sitting in the stern. Boddie was drowned, and the state of Maryland filed this libel for the benefit of Louise Boddie, widow of William Boddie, against the Baltimore & Ohio Railroad Company, the Empire Engineering Company, Maryland Dredging & Contracting Company, and the Patapsco Ship Ceiling & Stevedore Company, alleging that his death was due to the negligence of all the respondents. The owner of the launch was not made a party. The District Court held (1) that the dredge was at fault and liable; (2) that since the Dredging Company was abundantly solvent it was unnecessary to decide whether the Baltimore & Ohio Railroad Company and the Engineering Company were exempt from liability on the ground that the Dredging Company was an independent contractor; (3) that even if the master of the launch was at fault, and its owner liable, no decree could be entered against him because he was not a party to the action; (4) that the Stevedore Company could not be held liable for any negligence in the navigation of the launch because the owner of the launch was an independent contractor.
We think the first finding is well supported by the evidence. The-dredge cannot claim, without limitation,' the privileges of a vessel resting at anchor. True, the vessel itself was stationary, but it was
We think the 'District. Judge was right in the opinion he intimated that the navigator of the launch was also negligent. The master of the launch knew the great danger of attempting to pass under the lines when the dredge was in operation, and he knew, also, that if not then in operation it might begin to operate at any moment. Although his boat was loaded with men, all of whose lives would be imperiled if the lines fell while he was passing, he subjected them to the hazard of the passage, on the chance that the master or watchman on the dredge had heard and would heed his signal, although he had had no response to it and no evidence of assent to his passage. This was negligence for which we can find no excuse.
We are unable to agree that the Stevedore Company can escape the consequences of the negligence of the master of the launch on the ground that its owner was employed as an independent contractor. Doubtless the owner of the boat was an independent contractor as between himself and the Stevedore Company, and in his relation to the general public. For any negligence the consequences of which would fall on the Stevedore Company he would be liable over to the Stevedore Company. For any injury inflicted by his negligence on the outside public, such for example as an injury to another boat by collision, the owner of the launch as an independent contractor would be liable to the exemption of the Stevedore Company. Sturgis v. Boyer et al., 24 How. 110, 16 L. Ed. 591; The Eugene F. Moran, 212 U. S. 466,
But the Stevedore Company having contracted to convey its em-ployés to their work, its obligation to use reasonable care in the carriage is implied as a part of the contract; and it cannot shift this obligation to another by an independent contract to which the em-ployés were not parties and to which they did not assent. Water Co. v. Ware, 16 Wall. 566, 21 L. Ed. 485; City & S. Ry. Co. v. Moores, 80 Md. 348, 30 Atl. 643, 45 Am. St. Rep. 345; Atlanta & F. R. Co. v. Kimberly, 87 Ga. 161, 13 S. E. 277, 27 Am. St. Rep. 231; John J. Radel Co. v. Borches, 147 Ky. 506, 145 S. W. 155, 39 L. R. A. (N. S.) 227; note 66 L. R. A. 148, 150; Hussey v. Franey, 205 Mass. 413, 91 N. E. 391, 137 Am. St. Rep. 460; 14 R. C. L. 99. There is no evidence.that Boddie or any other employe consented to look to-the owner of the launch for the safety of their transportation.
But the question was settled by the following statute:
“In any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not be held to be fellow servants with those under their authority.” Act March 4, 1915, c. 153, § 20, 38 Stat. 1185 (Comp. St. § 8337a).
Hence, even if the launch had been the property of the Stevedore Company and the master its employé he would have been its representative, and for his negligence it would be liable to the workmen it had contracted to transport
But, even if that were not true, Boddie and the other workmen were-not fellow servants of the servant of one with whom the Stevedore Company had contracted to perform for it its contract obligation for their safe transportation. It chose to displace its own servants with the servants of another master, and it cannot be heard to say that the servant of that other over whom it had no control was a fellow servant of its own workmen. 18 R. C. L. 762, and cases cited; Bernheimer
The result is that the owner of the launch is not a necessary party, and that the Stevedore Company is liable equally with the Dredging Company for the damages found by the District Court. A decree will be entered, so modifying the decree of the District Court.
Modified.