Sherwood Lester, Libelant-Appellant v. United States of America, and Marine Basin Company, Respondent-Impleaded-Appellee
234 F.2d 625
2d Cir.
1956
Check Treatment

*1 Libelant-Appellant, LESTER, Sherwood America, STATES

UNITED Respondent-Appellant, Respondent- Company, Impleaded-Appellee. 23867. Docket

No. Appeals States Court Circuit. Second

Argued March 4, 1956.

Decided June (Edward City Bloch, York New Louis Behrens, York Behrens, Gay New

J. libelant-appellant. counsel), City, Atty. Gen., Burger, Asst. Warren E. Brooklyn, Atty., Moore, U. S. Leonard P. Sweeney, Leavenworth Y., Paul A. N. Dept, Attys., Laughlin, Colby, John G. C., Washington, for the Unit- Justice, D. States, respondent-appellant. ed City, O’Connor, York New S. William respondent-impleaded-appellee. FRANK, LUMBARD Before Judges. WATERMAN, Circuit Judge. WATERMAN, Circuit Lester, Libelant, instituted Sherwood admiralty against proceeding damages for in- recover United States to Q-100, in a fall juries sustained operated by yacht owned a motor Army. jurisdic- court rests the district tion Act, 46 U.S.C.A. § Public Vessels seq. et July 15,1947, occurred accident high a time *2 charges negligence dry dry of Marine Ba- of and unseaworthi- the No. 2 dock Q-100 by sin dergoing was un- ness were denied States Co. On date the general affirmatively by answer, its and it alleged preparatory injuries from were transfer serv- libelant's negligence. adjacent solely by caused ice in New and York harbor his own Admiralty for the Pursuant waters to Great Lakes use Rule C.A., Commanding petitioned of the and staif of the United States to im- General plead Army Chicago, employer, the Fifth Illinois. libelant’s Marine Basin at Li- belant, years’ experi- alleging, alia, who had had inter Marine Ba- six working indemnify vessels, drydocked sin had ence employed contracted to and hold against by as an harmless the United Marine Basin assist- all morning arising resulting ant claims fault, negligence, wrongful or “from electrician. On of day of the or omis- accident he boarded the act pilot employees. sion” went of Marine Basin to the started work or its house and running light panel. oh the To deter- alleged Libelant had fall from his running lights mine whether the vessel’s top pilot trunk roof aft house operative, pilot were house, libelant left by presence oil, grease, was caused of steps took three or four on the foreign or other The trial substance. (known pilot deck aft the as the house court found that libelant failed top”), footing “trunk lost his and fell prove charge: libelant’s evi- “[T]he dry overboard the floor of the any dence is of devoid of demonstration and, clear, The weather was as we shall grease oil, foreign or other substance see, the trial court found the fall which caused him to fall.” No other by presence oil, was not caused explanation causative fall grease foreign other or substance advanced libelant or found top. Thus, libelant, trunk for some un- however, found, The court. explained reason fell an from unobstruct- a 24-inch rail been in- virtually ed and level canvas-covered sur- cap stalled main on the deck bulwark past face across main deck to rail, originally provided Specifi- as the floor dock below.1 The overhaul, cation 1.15 of the contract legs, fifteen-foot fractured both his grasped libelant could have leg permanent- and as a result his left fell and saved from thus himself ly deformed. injurious consequences of fall. his Ex- negli- onerating The libel raised as to the negligence, issues of all gence government agents and as to court held that the failure of the United specified the seaworthiness of the vessel. The States to install the complete port 1. A more of the statement undis The main star- deck consists puted concerning help passageways, approximately facts will board lateral wide, to visualize the reader the circumstances 18 inches between the cabin surrounding the libelant’s fall. The Q- extend bulwarks. bulwarks length approximate 100 has an overall about 14 inches above the main deck ly capped with a beam feet 60 feet of 14 6 inches and are wooden rail inches high. top afloat and a draft of about feet. Her The trunk to 24 is 18 superstructure deck; cabin consists of a extend inches the main above access to ing cockpit top at the forward stern the trunk roof collapsible deck is main approximately steps 15 feet the stem. facilitated affixed to roughly midships port Above the cabin and and starboard sides of cabin. house, entry pilot is the is had which the trunk When service roof of the port opening starboard dinghy doors aft on boat Q-100 serves as a deck skiff; utility to the roof cabin. roof of the or it also houses box top, cabin, gas containing propane is about 10 feet wide bottles. On the pilot day the entrance to the house and of the accident these items of the ship’s gear position, to about feet narrows at the cock wide and the pit ; place. is a canvas-covered flush deck davits were not with a camber about of an inch. % unseaworthy, The trial court’s conclusion and award- made the vessel because $18,000. ed extending above of a government’s respect claim With *3 based bulwark on main deck was the the indemnity, against Basin for Marine reasoning: (a) following entirely on the in- not found that the decision to specification in the the inclusion of a by Specifi- guard for rail called stall calling overhaul, in- of contract government by a 1.15 was made cation by of a 24-inch stallation Marine Basin, agent, by and that not Marine guard deck bul- main brass rail on the negligent in Basin had not been wark, such a established that failing any provide rail or in to necessary ves- order to make the was holding court, particular. other seaworthy; (b) of sel indemnity inap- of was the contract day of accident was a rail on negligence plicable in the absence of ad- United to due to failure of the Basin, part of Marine dis- therefore specification and to the contract here impleading petition. missed the causally in- to libelant’s was connected appeals The libelant from decree juries, for rail as contracted since “the ground recovery is inade- on the that the quoted specification would in the cross-ap- quate; and the United States in the effort been available to libelant asserting peals, that the trial court erred going from overside.” to save himself determining that was con- not fact contained in the inferences of With Q-100 tributorily negligent, that the was quarrel, (b) since we are we have no unseaworthy, and that Marine Basin was latitude accorded mindful of the broad obligated indemnify to determining of facts the trier fact in hold, drawing Since we on the basis States. to a and in inferences as causal Therefore, accept undisputed relation.3 we the trial and the facts facts court, Q-100 the decision to aban- court’s found specified unseaworthy, the installation of the will don guard it be unneces- government questions rail was made sary us to consider the for agent, damages relating and its causal inference that to indemnification. provide vertent libelant no casual it is little contrary ties. belant quoted cessity those guest recognition the installation railing] liance of Supp. 414] : from its soning, the In order « “Had * [*****] one of contempation very presence purpose, reasonable to room properly on board the * * for this oversight, unless specification it, been adhered [Specification the trial court on the above rea- to the Government memorandum defect in the those and for following demonstrate not have fallen the Government of the ne- which was not an inad- present argument of a main deck bulwark element of whose ajjSence appears it must in the contract of the suppose failure to excerpts constitutes to 1.15 on the vessel was safety opinion prior contracting par- Q-100. that a cf the rail from the testi- respond contracted protection providing complete to adhere to overside. business July [127 such a On the to this the li- quoted within re- for F. Schulz They der 740, otherwise not Ct. not have course P. personal contractual er of reasonably fit, etc., reported absence which ant’s mony related edy * “The word “The cases U. * * [*] an obvious appear 76 S.Ct. cause have that the all involve Kurn, 1946, under circumstances Ry. contains to Lester’s fall. L.Ed. 88 L.Ed. 520. been at necessity injury. [i]f the evidence Pennsylvania Co., 1944, recognition in the contract [*] relied ‘necessity’ 134, Cir., quoted deficient condition deficiency. any pains been Q-100 for in this case. None reversing the Government would Tennant [*] upon such element as the installing rail, examined specification causally U.S. F.2d R. had been deemed contract is used because the vessel own- to defeat libel- of a rail U.S. * remote in fact [*] our decision ** a related to Peoria overhaul. 66 S.Ct. * * to rem- ” Laven- 64 S. [*] un- *. Q-100 Lakes; time the rail had installed service been on the Great unnecessary engage accident, been would have but con- jecture concerning grasp able it as fell what saving Regardless top above, from the States had himself in mind. thus possible past consequences his fall. But we serious future unseaworthiness court’s are unable with the trial while in active service presence specifi- the conclusion of a New York that the harbor or on the Great calling Lakes, contract, cation in an overhaul because of its lack of main deck guard rails, rails, question for the installation of certain involved in this question case wheth- was whether was determinative was unsea- *4 necessary worthy, guard in to er such rails were order because of the lack of such rails, reasonably for the as to those make the vessel fit on board the vessel being purpose dry undergoing when for which then she was in it was dock re- pair. Improvements used. undertaken a shipowner implied do not constitute an ship, seaworthiness of a her that, improve- admission without such equipment appurtenance rela is a ment, structurally the vessel is defective concept, dependent tive in each instance unseaworthy, particularly when the upon the in which its fit question involved is unseaworthiness question. ness is drawn in Thus in this dry of the vessel in while dock and with case the crucial consideration is wheth respect persons who, to it is contem- er, in view of all the circumstances at plated, improvement. will effect the tending libelant’s fall and the status do not We think that the Unit time, Q-100 was, any obligation ed States under respects pertinent injury, all sonably rea guard provide the with main deck permit perform fit to libelant to railings against possibility the remote ship task aboard with his safety. reasonable experienced dry that an dock worker such as libelant 18 to 24 The trial court erred in disre some inches garding Admittedly above main deck. these considerations. It stated guard railings Specification might that 1.15 in such the overhaul constitute unseaworthiness for contract between the United States and some of purposes Basin, calling to which the vessel for the installation was to “recognition put;4 rail, be this of a hand constituted but does not mean a they necessary necessity the Government of the make the vessel seaworthy protection element of while it was this to those on motionless a * * Although board the treating *”—in doctrine of sea effect specifica worthiness has been extended in the inclusion of recent this years employees to shorebased tion as an admission as li United injured belant, working unseaworthy who are States that vessel was while port,5 likely a board without such a rail. We think the measure liability remains the installation of a same as that to sea Army men at sea: whether the desired because United vessel was rea thought sonably improvement purpose fit for such an for which she be being necessary used.6 In anticipated Hanrahan useful v. Pacific See Shipping Krey 1946, States, Cir., Sieracki, 1941, Co. v. v. United 2 Seas 328 1008; 85, 872, 66 Zinnel v. U.S. S.Ct. 90 L.Ed. 123 F.2d United States 1099. Board, Shipping Cir., 1925, 2 10 F.2d 47. Lykes Co., Inc., Boudoin v. Bros. 6. See S.S. Petterson, 1955, 336, 338-340, 1954, 382, Alaska S.S. Co. v. 347 75 S.Ct. 354; 396, 601, 798; States, Manhat 99 L.Ed. 74 S.Ct. 98 L.Ed. U.S. 147-148; Talbot, 1955, Inc., Cir., 143, Pope Hawn, 1953, 220 F.2d 406, 202, Cir., Freitas Pacific-Atlantic S.S. 98 L.Ed. U.S. S.Ct. Judge (dissenting). FRANK, Circuit Cir., 262 F. Transport Co., 2 579, 40 S.Ct. U.S. judge, heard denied who saw and trial certiorari ship testified, held they we found L.Ed. the witnesses pier was negligent. port and fast This which libellant who unseaworthy a crewman accepted by is since it us must be upper deck from an “clearly overboard I with fallen erroneous.” “Seaworth- rails: colleagues accepting hand my lacked because may term; a vessel judge’s a relative conclusion that iness yet port, be quality causally related to the rail was have wholly rough water, colleagues’ McLanahan disagree my unfit with accident. I Co., 1 Pet. Etc. circumstances, Insurance that, v. Universal in the conclusion Q-100 say seaworthy. 7 L.Ed. was nevertheless because she ship was The evidence shows that the alongside lying up, while no handrail accident, spe- contract, made before the cargo, merely discharging un- wharf (but cifically for a called also, See, page 952. 262 F. true.” installed). was never reason it some *5 Dry Shipbuilding & Dock Newport News My colleagues judge the mis- hold that 832; 1927, Cir., Watson, 19 F.2d 4 Co. v. takenly provision of this the considered 1927, Long 245 Island R. Brick v. evidence that contract as these 222, think 93. We N.E. 157 N.Y. unseaworthy. rendered the vessel the rail under the authoritative precedents are Wigmore Evidence, I would —see The Unit- presented here. a con- 283—if here there were Section provided mo- with a ed tionless, improvement (or plan) an to make tract virtually unobstructed, level that, I the accident. think But after libel- from which surface canvas-covered accident, respondent, the since before worker, dry-dock experienced ant, an improvement, planned to make this had lights running whether could observe gave correctly judge this evidence operative. exercise of With the weight. much per- care, have libelant could reasonable colleagues that, My say if the also even safety. in formed task rail have without the been vessel if, below the decree We would affirm sea, unseaworthy is when the same proper application criteria court, in of the vessel when not true we were facts as found saying that amounts was This for a con- find a reasonable basis able to when and for seaworthiness essential only was that the clusion the vessel was in motion when Likewise, libelant’s fall. the time of rough agree. I waters. cannot In findings remand for further we would States, Cir., Krey 2 123 F.2d any important factual issues had fact shipowner liable, 1008, we held However, since left undetermined. been unseaworthiness, to a seaman account facts found is view that the our slipped injured shower, when he a demonstrate that the trial court ship port. despite fact that the was of the was a rea- trunk libellant, negligence, without here That place perform sonably fit for libelant top, and suffered fell from seri- ship aboard the with reasonable his task fall, injury from the ous resultant safety, the decision below must be re- not occurred if that the versed.7 rail, a serve show been was safe even when mo- and remanded for dismissal Reversed colleagues my Nor correct tionless. libel. ship we hold that was not un- Since 218 F.2d Berti v. Com question seaworthy Navigation Fabre, Cyprien pagnie Cir., we do not reach the 2 De 397, 400; the trial court’s whether 213 F.2d Ondato v. negligent clearly Co., Cir., 1954, is er- 210 Standard Oil 2 F.2d roneous. 233-234. 630 engaged Cir., suggesting assumed libellant was F. the court very contemplated plaintiff injured neg- repairs ligence nothing ship’s replac- do He had officers in not contract: ing setting rail, tempora- up with the work of been rily removed, an worker. but the court electrical decided for ship’s owner on the sole basis distinguishable easily I consider Hedley Pinkney (1894), rationale of colleagues rely my cases on which App.Cas. Oregon 222 and Olson v. Coal their conclusion the vessel Navigation Co., Cir., & 104 F. unseaworthy. Newport Ship- In News that, ship’s Those cases held building Dry Watson, 4 Dock Co. v. equipment adequate equipment but the Cir., 1927, 832, 833, F.2d adequately neg- is not used because of the pointed out “the launch in this ligence injured seaman’s fellow carrying heavy employed case servants, ship thereby if the rendered shipyard, lines or hawsers about the unsafe, the owner is not liable. We have equipped it was a hand rail around with rejected rulings; Mollica Cam- coping its deck house and a around the pania Americana, Cir., Sud 202 F.2d high. It can outer deck a few inches States, cf. Cir., Grillea v. United railing readily be seen that a hand rehearing. F.2d greatly around the outer in- deck would handling heavy with terfere general cases, statements in the sought carried.” the" lines to be On my colleagues on which rely, related to facts, said, of these basis the court facts different from those involved in the *6 protected “Within the waters of Sanborn, instant case. Wason See shipyard, plied (it where launch did N.H. 170: “Whenever fixed go protracted voyages into certain established, rule can be it is im- rough water), would seem that mensely important it should be. lack an outer rail did ren- large But there is a class of cases and of der launch or unfit for questions, where the circumstances ad- employed.” service which was mit so variations, numerous that no Long In R. Brick Island N.Y. comprehensive rule can be framed 93, 94, 157 N.E. there was a enough to reach them. In such cases de- sufficiently point close to the must cisions be made in the exercise of a seaman so which the fell that he could judgment upon sound all circum- grasped it, been careful: stances, and such decisions can furnish Cardozo,J. stated: “A boat is unsea- cases, only rules new where the same spaces worthy because there here and occur, yet seaman, con-

there where awkward or inattentive, may possible striving prece- find it to fall.” treat stant dents, them as regard expressions not this case. Here the vessel That used along stating grounds all the main the courts had no decisions, (to repeat) accept deck, per- we must and which their are true regard negligent. haps hand, was not libellant case in universally Transport Co., Pacific true.” In Hanrahan v. See also Chafee, Equity Simpson Maloney, (1951) Cases 1058-1059.