The Robert R.

255 F. 37 | 2d Cir. | 1918

AUGUSTUS N. HAND, District Judge

(after stating the facts as above). [1,2] There can be no doubt that the steamship under the contract of carriage is liable in any event for the damage suffered. In spite of the fact that the Pellegrinos were independent contractors, it is contended that the steamship is liable in tort on the ground that a contract to discharge a vessel of a cargo like copper ore, without adequate provision for trimming, was dangerous in itself because large lumps of ore would not spread by mere dumping. This theory will hardly bear analysis. Other vessels were safely loaded with ore at Pier 3 without trimming, and trimming was apparently required, if at all, under circumstances which could only develop as the work proceeded. It therefore is unreasonable to regard the contract as in itself negligent and improper. It was one in which circumstances might arise during the performance where the stevedores should call on the steamship to trim, and their failure to do this, and persistence in dangerous loading, rather than the making of a contract which did not call for trimming, were the negligent acts that caused the damage. Indeed, the fact that the stevedores did not contract to trim seems to us in no way to relieve the latter from liability. They undertook to discharge the cargo, and were bound to do this in a prudent manner. If it became unsafe to load the barge without trimming, as proved to be the fact, it was the plain duty of the stevedores to stop work and call upon the steamship to trim. Instead of doing this, they continued to pile the ore on the deck of the lighter, without seeing that it was spread by some one, until thé center of gravity of the lighter became so high that she dumped her load.

[3] It is argued that because the vessel did not do the trimming when it was bound to do so, and had not provided other means, the damages should either be placed on her alone, or be divided. We cannot say, however, that under the circumstances shown the ship in a legal sense was liable in tort. If the stevedores had ceased loading and called for trimming and secured assistance, the accident would not have happened. Their continuance in loading when danger was imminent was the proximate cause of the damage, and they only are liable in tort. It was the dumping of the last buckets of ore on the lighter that caused the injury. The M. E. Luckenbach, 214 Fed. 571, 131 C. C. A. 177; The Satilla, 235 Fed. 58, 148 C. C. A. 552.

Cases are cited where owners of merchandise consented to place it on deck and were not allowed to recover for any damage suffered by a jettison of the cargo which became necessary by reason of this method of stowage. Eawrence v. Minturn, 17 How. 100, 15 L. Ed. 58.

[4] Cases are also cited where a specific contract has been made to do something which from its very nature resulted in loss. MacKnight F. Stone Co. v. City of New York, 160 N. Y. 72, 54 N. E. 661; Penn Bridge Co. v. City of New Orleans, 222 Fed. 737, 138 C. C. A. 191. The contracts involved in these cases are entirely different from the one under consideration. Here the shipowner never contracted that the stevedores should discharge the steamer in a dangerous manner and cause the lighter to dump the cargo by piling on more ore until she lost her equilibrium. He did not contract that the steamer should be discharged, at all events, without trimming of the cargo, but only that the stevedores should discharge her subject to the ordinary standard of care. If conditions showed that continuance in discharging was unsafe, the stevedores, like any one else, were bound to cease discharging. Only an express contract, or consent, to do dangerous acts, can shift the liability for these acts, and no such, situation appears here. The whole question turns on what the contract called for. Only the clearest requirement to do something which is dangerous can relieve the contractors from the exercise of ordinary prudence. The contract in question is very different from a specific consent to stow all the cargo in a place where it is likely to have to be jettisoned in a storm, or a contract to build a bridge according to specifications furnished by the owner which would result in a weak structure.

It is contended that the master of the lighter should have warned the stevedores of the ganger. We think the District Court was correct in holding that the contract with the lighterage company was only for carriage and that a price was made which expressly did not include trimming by the lighter. The master of the lighter, as found by the court below, protested repeatedly at what was being done. This protest was made both to the foreman of the stevedores, and on the second day to one of the Pellegrinos. The statement of the trial judge that in all probability the protests did not get any further than an Italian, who did not understand English, seems to have been inadvertent, for both of these men testified in English at the trial and would certainly have understood words used every day in their business. We think the master of the lighter did all that could be reasonably expected of him, under the circumstances.

The decree should be modified so as to hold the stevedores primarily liable.