Connolly v. Weyerhaeuser Steamship Company

Citation1956 AMC 2263,236 F.2d 848
Decision Date11 September 1956
Docket NumberNo. 350,Docket 23197.,350
PartiesWilliam CONNOLLY v. WEYERHAEUSER STEAMSHIP COMPANY et al. WEYERHAEUSER STEAMSHIP COMPANY, et al., v. NACIREMA OPERATING CO., Inc.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Dow & Symmers, New York City (William G. Symmers, Frederick Fish, New York City, of counsel), for defendant and third-party plaintiff-appellant.

Galli & Locker, New York City (Oscar A. Thompson, Patrick E. Gibbons, New York City, of counsel), for third-party defendant-appellee.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

WATERMAN, Circuit Judge.

William Connolly, a Boston longshoreman employed by Nacirema Operating Co., a New York corporation, was seriously injured aboard the steamship "F. E. Weyerhaeuser" a vessel owned by Weyerhaeuser Steamship Company, a Delaware corporation, when he was struck on the head by a piece of wood while working at the bottom of No. 1 lower hold. Nacirema Operating Co. is an independent contracting stevedore and had contracted with Weyerhaeuser to discharge cargo at the ports of New York and Boston. The S. S. F. E. Weyerhaeuser had carried a full cargo of lumber, including a deck load, from the West Coast to New York. Her deck load and part of her underdeck cargo had been discharged there by Nacirema, and the ship had then proceeded to Boston to discharge the remainder. On the fifth working day after docking in navigable water at Boston this accident happened. The piece of wood that struck Connolly was approximately four feet long, eight inches wide and one inch thick. There was credible evidence that the only possible place from which it could have fallen was the top of a temporary shelter over the winches at No. 1 hatch, presumably erected by the longshoreman employes of Nacirema solely to protect them against the weather. This particular shelter was about 4 ft. x 6 ft. and some 7 ft. high. It was constructed of scrap lumber nailed together, and a tarpaulin was nailed across the top.

There was testimony from which the jury could reasonably conclude that at the time of the accident there was a loose second tarpaulin on top of the first one, not nailed down but held down by three boards of about the same size, and that one of these fell down the hatch into the hold and caused the injury.

Connolly alleged two causes of action against the shipowner Weyerhaeuser, one claiming the defendant negligent and the other claiming the ship unseaworthy. Weyerhaeuser brought a third-party complaint against Nacirema alleging the injury was caused by Nacirema's negligence and that Nacirema's contract with the shipowner entitled it to be indemnified for any damages that Connolly might recover from Weyerhaeuser.

The case was tried to a jury. The trial judge first submitted Connolly's case against Weyerhaeuser with a statement he was reserving submission of the cross-action until reception of the first verdict. The jury returned a verdict in favor of Connolly in the negligence cause of action and in favor of the ship in the unseaworthiness cause of action.1 Thereupon the Court directed a verdict in favor of Nacirema in the third-party action for indemnity. Weyerhaeuser appeals from this directed verdict and from the failure of the trial court to grant its motion for a directed verdict against Nacirema. Connolly is not a party to this appeal. His judgment against the shipowner has been paid and satisfied. The appeal before us relates only to the third-party proceedings.

The undisputed testimony was that shelters similar to the one at No. 1 hatch are routinely erected on the ships' decks by longshoremen at all United States ports upon the arrival of cargo vessels; that they serve no purpose except for the personal convenience of the winch drivers; and that, the cargo having been discharged, the ships' crews tear them down as part of the process of squaring away the deck and making ready for sea again.

There was a sharp conflict in the evidence on a most material point. Fellow longshoremen who worked with Connolly testified that when the S. S. "F. E. Weyerhaeuser" docked at Boston, shelters were already construted at most of its hatches, including No. 1 hatch, so they did not construct a shelter at No. 1 hatch although they had arrived at shipside prepared to do so. The ship's officers emphatically denied that any shelters were on deck when the vessel docked. There was no testimony tending to show the ship's crew constructed them; and the only fair inference from the jury verdict must be that they were erected there by longshoremen at the port of New York, who, like Connolly, were employees of Nacirema. The master stated that it "would be carelessness on the part of myself and the chief mate" if shelters erected in New York had been left on the vessel on its way to Boston, and the chief officer testified that it was his job to see that these shelters were taken down and that he would have been derelict in his duty if any were on the ship upon arrival in Boston.

The Court charged the jury that Connolly could not recover damages from the shipowner if the jury should find that the shelters were not in place when the ship arrived in Boston. The jury verdict in favor of Connolly therefore establishes that the shelter over the winch drivers at No. 1 hatch was built before the ship arrived at Boston, that a board on top of it fell from it causing the injury, and that the shipowner negligently failed to perform a duty it owed to Connolly under the circumstances.

In this setting the shipowner now claims that Connolly's employer failed to perform a duty owed to the shipowner; that there would have been no injury to Connolly if this duty had been properly performed; and that therefore the stevedore company should indemnify the shipowner the amount of Connolly's judgment.

Even though the shipowner be found not liable for unseaworthiness it may be found liable in a negligence action if it does not provide a reasonably safe place for a business visitor, Palazzolo v. Pan-Atlantic S. S. Corp., 2 Cir., 1954, 211 F.2d 277, affirming the district court on this issue, D.C., 111 F.Supp. 505; Fodera v. Booth American Shipping Corp., 2 Cir., 1947, 159 F.2d 795; Vanderlinden v. Lorentzen, 2 Cir., 1944, 139 F.2d 995. This is a duty the shipowner cannot delegate. It was clearly on this doctrine that the shipowner here was held liable.2

The unsafe condition of the shelter (more specifically the loose board on the top thereof) was the proximate cause of the injury. Assuming a careless erection of the structure by longshoremen in New York the injury did not occur in New York, but in Boston — and in the meantime the structure was there to be seen on the ship's deck, and the ship had exclusive control over it. The ship negligently departed from established practice in not removing it. It was built to last only as needed in New York, and the New York longshoremen had no reason to anticipate that the structure would be standing when the vessel reached Boston and be offered as a shelter to the longshoremen there. If the New York-built structure had been removed, as all rules of good seamanship dictated, the Boston longshoremen would have erected their own shelter. Offering a ready-made shelter to Connolly the ship could not shift its nondelegable responsibility for the unsafe condition thereof onto Connolly's employer.

However, Weyerhaeuser relies upon Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, affirming our decision in Palazzolo v. Pan-Atlantic S. S., Pan-Atlantic S. S. v. Ryan Stevedoring Co., supra. In that case a stevedoring contractor was found liable to reimburse a shipowner for damages paid by the latter to one of the contractor's longshoremen on account of injuries received by him in the course of his employment on shipboard where the contractor, without entering into an express agreement of indemnity, contracts to perform a shipowner's stevedoring operation and the longshoreman's injuries are caused by the contractor's unsafe stowage of the ship's cargo. Indemnity was awarded on the theory that there had been a breach by the contractor of its consensual implied obligation to stow cargo in a reasonably safe manner and thus to save the shipowner harmless for failure to do so.

We do not consider the Ryan Stevedoring case controlling here. Though some of the facts are strikingly similar, there is a crucial fact here that is just as strikingly dissimilar, a fact that we believe differentiates the two cases and requires different...

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