Imperial Oil, Limited v. Drlik

Decision Date05 June 1956
Docket NumberNo. 12613.,12613.
Citation234 F.2d 4
PartiesIMPERIAL OIL, Limited, Appellant, v. Frank DRLIK, Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

COPYRIGHT MATERIAL OMITTED

Lucian Y. Ray, Cleveland, Ohio (H. W. D. Kilgour, McCreary, Hinslea & Ray, Cleveland, Ohio, on the brief), for appellant.

J. Harold Traverse, Cleveland, Ohio (Edward J. Hagerty, Miller, Hagerty & Shoemaker, Toledo, Ohio, on the brief), for appellee.

Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The appellee, Frank Drlik, brought this action in Admiralty to recover for injuries sustained by him while acting as a member of a dock crew in connection with the undocking of appellant's Steamer Imperial Leduc. The District Judge, hearing the case without a jury, entered judgment in his favor in the sum of $64,950.00, from which this appeal was taken.

The Imperial Leduc had been materially damaged as the result of an explosion and fire, and at the time of the accident on August 8, 1952, was being repaired by the American Ship Building Company at its Toledo, Ohio, Yard. Appellee was an employee of the American Ship Building Company. The vessel was in drydock preparatory to being undocked for removal to an adjacent pier to complete repairs. She was headed bow in, with four of her mooring cables running from winches on her deck to spiles located ashore, which held her in a proper position while the drydock was being flooded.

The movement of the vessel aft into the river was being accomplished by moving cables from spiles to which they were already attached to spiles closer to the river, whereupon the drawing taut of such cables would accomplish such result. The tightening of the cables was caused by the turning on of a winch engine on the deck of the vessel by its operator Pether, appellant's employee. After applying force and tension to the cable it would then be released by the winch operator which would provide slack in the cable and allow it to be moved by the dock crew and its "eye" placed over the next spile. The vessel was twelve feet from each side of the drydock and its deck some fifteen feet higher than the dock. When operating the winch Pether was not able to see the dock crew handling the cables. Appellant had no employee as watchman at the rail while Pether was operating the winch, who could advise Pether of the movements of the dock crew.

The handling of the shore end of the cables in moving them from spile to spile was being performed by ship yard employees, one of whom was the appellee. Drlik's companions handled the "eye" end of the cable which was to be placed over the spile while Drlik handled the slack part of the cable between his companions and the ship. During the movement along the dock the slack of the cable became caught several times on the end of railroad ties of the railroad which ran alongside of the drydock and Drlik would reach down to extricate the cable from such tie. At the time of the accident Drlik was in a stooped position with both hands on the cable just after having extricated it from a tie and just as his companions dropped the "eye" over the spile. The winch operator, unexpectedly and without warning, set the winch in motion, causing the cable to become taut with great force, which threw Drlik into the air landing on his head and side upon the railroad tracks.

In operating the winch engine Pether went some four or five times from the engine on the starboard side of the ship to its port side where Drlik and his companions were working and made visual observations for the purpose of determining when to apply and when to release the force and tension on the cable. The final application of force resulting in the accident was made by Pether without any signal from the dock so to do or from Pether to the dock that he so intended, but was solely on Pether's observation as made the last time he was at the rail before returning to the winch engine.

It was alleged in the libel that the injuries suffered by the appellee were directly caused by the unseaworthiness of the vessel and by the negligence of the appellant; that the vessel was unseaworthy in that no watchman was stationed at the side of the vessel to advise the winch operator as to the presence of dock employees near the cable, and that the winch operator was incompetent to perform his work as appellant well knew, under the conditions then existing; and that the appellant was negligent in failing to observe the presence of the appellee with the cable in his hand before starting the winch, in failing to warn appellee of its intention to operate the winch while appellee was working with the dock end of it, and in creating for the appellee an unsafe place to do his work. The appellant denied the allegations of unseaworthiness and negligence and pleaded affirmatively the defenses of assumption of risk and contributory negligence on the part of the appellee. Both of these defenses are based on the contention that Drlik knew, or in the exercise of reasonable care should have known, that there was no watchman at the rail other than when Pether was there, and that Pether was operating the winch engine without the assistance of such a watchman to advise him of the movements of the dock crew.

The District Judge made a finding that the failure of the officers of the ship to post a watchman at the rail or to give warning to the dock crew in any form was the proximate cause of appellee's injuries; that the ship's officers had a duty to post a watchman at the rail for such purpose; that the winch operator had a duty not to operate the winch without a watchman posted at the rail; and that such failure on the part of the appellant constituted "unseaworthiness of the vessel and negligence and created for libelant an unsafe place in which to work." He also ruled that on the facts there was a failure to establish that appellee was guilty of sole or contributory negligence or that there was an assumption of risk upon his part.

We first consider the finding of unseaworthiness. If that finding is approved the defense of assumption of risk is eliminated as a matter of law as such defense is not applicable to liability based on that ground. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 428-429, 59 S.Ct. 262, 83 L.Ed. 265; Mahnich v. Southern S. S. Co., 321 U.S. 96, 103, 64 S.Ct. 455, 88 L.Ed. 561; The Seeandbee, 6 Cir., 102 F.2d 577, 581. Appellant contends that on the undisputed facts the finding of unseaworthiness is erroneous as a matter of law.

The Admiralty rule that the vessel and its owner are liable to indemnify a seaman for injury caused by unseaworthiness of the vessel or its appurtenant appliances and equipment has been the settled law since the Supreme Court's ruling to that effect in The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760. Mahnick v. Southern S. S. Co., supra, 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. The rule has lately been extended to stevedores and others doing a seaman's work and incurring a seaman's hazards, although not in the employ of the owner of the vessel. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 412-413, 74 S.Ct. 202, 98 L.Ed. 143; Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798. Appellee would fall within the protection of the rule so extended. However, in the present case there was no evidence that the vessel or any part of her equipment was defective. The accident arose out of the negligent use of seaworthy equipment. The obligation of the vessel owner to provide seaworthy appliances has not been extended to require the owner to keep those appliances from being used in a negligent manner. If so used, liability rests upon negligence rather than upon unseaworthiness. Burkholder v. United States, D.C.E.D.Pa., 60 F.Supp. 700.

Appellee relies upon Poignant v. United States, 2 Cir., 225 F.2d 595, as establishing a different rule. However, liability in that case was based upon the temporary presence of a foreign substance on the floor of a public corridor, which, in our opinion, is not an analogous question. Nor do we find any merit in appellee's additional contention that the vessel was unseaworthy due to inadequate and incompetent personnel. There was no finding by the District Judge that the operator of the winch was not competent. The evidence, on the contrary, indicates that he was an experienced seaman. Although there was a failure to post a watchman at the port rail, the evidence does not show that a man was not available for this particular duty if the ship's officer had decided to use one for that purpose.

Liability in the present case must accordingly rest upon negligence. Appellant does not challenge the finding of negligence, but contends that the defenses of assumption of risk and contributory negligence are applicable when liability is based on that ground. Although these are well recognized defenses at common law, the common law rules are not controlling in Admiralty. Southern Pacific Co. v. Jensen, 244 U.S. 205, 215, 37 S.Ct. 524, 61 L.Ed. 1086. Dealing first with the defense of assumption of risk, appellant contends that it is applicable to the present case, and if sustained by the facts, is a bar to any recovery, relying upon Scheffler v. Moran Towing & Transportation Co., Inc., 2 Cir., 68 F.2d 11, 12, Skolar v. Lehigh Valley R. Co., 2 Cir., 60 F.2d 893, The Scandinavia, D.C.Me., 156 F. 403, and other authorities referred to in those opinions. See also: Gaderson v. Texas Contracting Co., 5 Cir., 3 F.2d 140. Appellee contends that the defense is not applicable, relying upon Socony-Vacuum Oil Co. v. Smith, supra, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265. See also The Arizona v. Anelich, 298 U.S. 110, 56 S. Ct. 707, 80 L.Ed. 1075.

The foregoing cases indicate that in cases involving a maritime tort, where the libelant was not a seaman, the defense of...

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