169 F.2d 619 | 3rd Cir. | 1948
Lead Opinion
The plaintiff, Albert J. Palardy, is a longshoreman-carpenter who was employed by the Luckenbach Steamship Company in connection with the loading of the cargo of the S. S. Niantic Victory at Philadelphia on June 20, 1946. He was injured in the course of his work on that day as the result of the alleged negligent disconnecting by a member of the crew of the vessel of an extension electric light which had been illuminating the hold in which he was at work shoring up cargo. The Niantic Victory was owned by the United States and had been assigned to the defendant, American-Hawaiian Steamship Company, as general agent for the United States under the standard form of general agency service agreement in use by the War Shipping Administration during the war.
The trial judge directed a verdict for the defendant upon two grounds. First he held that under the rule laid down in Caldarola v. Eckert, 1947, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968, the defendant could not be held liable for the alleged tort of the crew member and, second, he ruled that there was no evidence of negligence on the part of any member of the crew which would support a verdict for the plaintiff in any event. Since we are satisfied that the trial judge’s first ground was well taken we have no need to consider his second.
As we have had occasion to point out in two other cases decided this day, Aird v. Weyerhaeuser Steamship Company, 169 F.2d 606, and Gaynor v. Agwilines, Inc., 169 F.2d 612, a general agent for the United States, such as American-Hawaiian Steamship Company, acting under the standard form of general agency service agreement in use during the period in question is not an operating agent or owner pro hac vice of the vessel assigned to it but rather is a shoreside agent or ship’s husband employed to manage the business of the vessel. The possession of the vessel and its management and operation remain with the United States through its direct employee and agent, the master.
Under these circumstances the general agent does not owe a duty of care to third persons with respect to the management and operation by the master and crew of the vessel assigned to it by the government. It was expressly so held by the Supreme Court in Caldarola v. Eckert, 1947, 332 U.S. 155, 159, 67 S.Ct. 1569, 91 L.Ed. 1968, the case relied upon by the trial judge and which involved a claim by an injured longshoreman against the general agent of the government merchant vessel upon which he was injured. Upon the authority of that case the judgment in this case must be affirmed.
The plaintiff, however, strongly urges that certain evidence offered in the present case establishes that the defendant was in possession of the Niantic Victory and, therefore, he argues, the Caldarola case is not applicable. He refers to the certificate of delivery which passed between the War Shipping Administration and the defendant on May 18, 1944 at Portland, Oregon, and the certificate of redelivery which passed between the same parties on November 6, 1946 at Boston, Massachusetts. We think, however, that the presence of these certificates in evidence did not lay the basis for finding that the defendant was owner pro hac vice of the Niantic Victory contrary to the ruling of the Caldarola case. On the contrary it appears that the Supreme Court had similar
The certificates in question state that the S. S. Niantic Victory was “delivered” by the War Shipping Administration to the American-Hawaiian Steamship Company on May 18, 1944, and “redelivered” by the latter to the United States Maritime Commission on November 6, 1946 “under the terms and conditions of Contract WSA 206, service agreement Form GAA, said agreement having been executed March 6, 1942, having on board full stores and equipment as per inventories taken.” Contract WSA 206, service agreement Form GAA, was the standard form of general agency service agreement which the parties had signed on March 6, 1942. As we have held in the Aird and Gaynor cases and as the Supreme Court indicated in the Caldarola case the general agent under that agreement does not acquire possession of the vessel or become owner pro hac vice but is merely a shoreside agent or ship’s husband. As such, however, he is responsible for equipping, victualing, supplying and maintaining the vessel.
As a matter of fact the use of the word “deliver” is not uncommon in maritime contracts which do not contemplate the transfer of possession of the vessel involved. Thus the word used in a time or voyage charter has frequently been held not to evidence a demise or transfer of possession and control so as to impose liability for negligence of the master and crew.
The judgment of the district court will be affirmed,
7 F.R. 7561, 46 C.F.R. Cum.Supp. § 306.44.
Article 3A (e) of the general agency service agreement provides: “Article 3A. To the best of its ability, the General Agent shall for the account of the United States:
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“(c) Equip, victual, supply and maintain the vessels, subject to such directions, orders, regulations and methods of supervision and inspection as the United States may from time to time prescribe;”
Adams v. Homeyer, 1870, 45 Mo. 545, 551-553, 100 Am.Dec. 391; Grimberg v. Columbia Packers’ Ass’n, 1905, 47 Or. 257, 270, 271, 83 P. 194, 199, 119 Am. St.Rep. 927, 8 Ann.Cas. 491; Clyde Commercial S. S. Co. v. West India S. S. Co., 2 Cir., 1909, 169 F. 275, 277; The Volund, 2 Cir., 1910, 181 F. 643, 665-667.
Concurrence Opinion
(concurring),
For the reasons stated in my concurring opinion in Aird v. Weyerhaeuser, 169 F.2d 606. I concur in the result reached by this court.