O'Brien v. Luckenbach S.S. Co., Inc.

• Decision Date: 25 June 1923
• Docket Number: 284.
• Citation: 293 F. 170
• Parties: O'BRIEN v. LUCKENBACH S.S. CO., Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

293 F. 170

O'BRIEN v. LUCKENBACH S.S. CO., Inc., et al.

No. 284.

United States Court of Appeals, Second Circuit.

June 25, 1923

William Austin Moore, of Brooklyn, N.Y. (George A. Green, of Brooklyn, N.Y., of counsel), for appellant.

Carter Carter & Phillips, of New York City (Peter S. Carter and Robert Phillips, both of New York City, of counsel), for appellee Luckenbach Steamship Co.

J Arthur Hilton, of New York City (Alfred T. Tompkins, of New York City, of counsel), for Union Transport Co., Inc.

For opinion below, see 286 F. 301.

The Luckenbach Steamship Company is a corporation organized under the laws of the state of Delaware and is doing business in the Eastern district of New York, and at the times involved herein was the owner of the steamship Louis Luckenbach hereinafter called the steamship.

On October 24, 1920, Flurance M. O'Brien was employed as a carpenter on the steamship by the Union Transport Company Inc., hereinafter called the transport company, the latter being a corporation organized under the laws of the state of New York.

The libel alleges that while the said O'Brien was so employed on the steamship he was called upon in the regular course of his work to pass over and stand upon the cover of a certain hatch in said vessel, and that while standing upon the hatch cover it gave way without any negligence upon his part, and he was precipitated through the hatchway into the hold of the steamship and sustained injuries as a result of which he died.

It is alleged that he was injured and came to his death because the transport company did not take the care required by law to protect him while he was so employed, and because it did not use due diligence to see that he had a safe place in which to work, in that the hatch cover was defective and improperly secured.

It is alleged that the decedent left surviving him a widow, the libelant, and four children; and that letters of administration upon his estate have been duly granted to the libelant.

Damages are asked in the sum of $50,000.

The steamship company and the transport company put in separate answers in which they denied any negligence upon their part, or upon the part of any person for whom they were responsible. They alleged that any injury which the decedent sustained occurred in the ordinary course of his employment and occupation and resulted from the necessary risks of his employment and occupation and were inherent to the nature of the business in which he was employed or to his own fault and negligence.

The court below dismissed the libel as against both respondents.

Before ROGERS, HOUGH, and MAYER, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

This is a suit in admiralty to recover damages arising from the death of the libelant's husband, while employed in making repairs on a steamship while lying at a dock in the borough of Brooklyn, New York City.

The owners of the steamship had entered into a contract with the transport company so to fit the vessel that she could properly carry a cargo of grain. This necessitated the installation of wooden bulkheads in the hold of the ship, and the decedent was one of the carpenters employed by the transport company in doing this work. He began his work on Friday, October 25, 1920. The accident happened on Sunday, two days later.

The accident occurred at hatch No. 6. This hatch was 24 feet wide by 36 feet long. When the men arrived for work on the morning of the accident, hatch No. 6 was found covered with very heavy timbers stretched lengthwise across the hatch and piled up so as to obscure the hatch covers. These timbers are described as 6 by 8 and about 26 feet long. It appears there were 'a great many' of these pieces of timber which are described as 'very heavy timber,' and as piled 'across the covers.' They had been placed in that position by the stevedores under the control of the transport company. The decedent was instructed by the boss in charge of the stevedores to stand upon the timbers and upon the hatch covers and measure the lumber and then mark each piece indicating where each was to be cut. Other men did the cutting and as the timbers were needed by the men down in the holds they were lowered with a winch. When the time came to lower the lumber, it was the decedent's duty to cross the timbers and the covers on the hatch in order to signal to the winchman. It was also his duty to warn the man below prior to the descent of the timbers. And in order to do this he had to approach the opening in the hatch through which the timber was lowered. At about 11 o'clock in the forenoon he approached the opening in hatch No. 6 apparently to warn those below that a load was about to descend, and stepped upon the hatch cover, when it dropped with him into the open hatch, and his body fell to the bottom of the hold, a distance of 75 feet, and he was almost instantly killed. A witness who saw the accident testified as follows:

'Q. Did you see this accident? A. Yes, sir.

'Q. Just tell us what you saw and how you saw it. A. Well, I think O'Brien was ready to hoist the lumber down, and he was working against the hatch cover, and hauled it down.

'Q. O'Brien was getting ready to lower it down? A. Yes, and he hollered down there to those fellows to look out below because he was going to hoist the lumber down, and he tried to give him a warning, and I saw the heavy cover slip underneath, and O'Brien fell in between.

'Q. Did you see him step on the hatch cover? A. Yes.

'Q. How did it look to you then? A. It looked to me all right, safe.

'Q. How far away were you standing? A. It was like from here to you on the deck of the ship.

'Q. About 10 feet? A. Yes.'

It seems to be agreed that the hatch covers were constructed in the usual manner. They were supported by 7 strongbacks running athwartships.

Right after the accident happened an examination was made to discover how it happened, and it was discovered that one of the strongbacks was missing. Then they looked around the ship to see where it was and it was found on one side of the ship 'covered up with ashes and a pile of lumber on top of it. ' The strongback which was out of place was the center one.

It is, however, beyond question that those in charge of this work should not have permitted these timbers to be placed upon the hatch. The chief officer of the steamship who was called by the respondents testified as follows:

'The hatch was covered with a lot of timber which showed that if the proper orders had been issued it would not have been placed on top of the hatch.'

He testified that when he arrived at the vessel on the morning of the accident he found no one on board representing the steamship company. After stating that he found timber lying across hatch No. 6 which ought not to have been there and observing the men working on the hatch for about two minutes, he said he turned around to go down from the officers' deck to warn these men of their dangerous position in standing on the hatch, when he heard a crash. He testified:

'The men were standing on the hatch, which is a dangerous position. Turning around to warn these men of their dangerous position, I heard a crash. I immediately turned around quick and yelled, 'What happened?' I was informed that a man had fallen down the hold.'

His testimony also discloses that the hatch cover itself was not in good condition. Asked as to hatch cover No. 6, his testimony was as follows:

'Q. It was not chewed or worn off, or out of shape in any way? A. Yes, sir; it was chewed and worn off in the corners; there were several hatch covers, which were unfit for use, in use at the time of the accident. However, being chief officer only about one day, it did not come under my jurisdiction to have the matter corrected. I joined the ship on Saturday afternoon, or morning, and on Sunday the accident happened. I noticed though that the hatch covers in some places were in very bad shape. Whether those near No. 6 were in bad shape I cannot remember.

'Q. How about the one that the man was on? A. That was chewed on the edges.

'Q. Do you mean due to wear, or was it a new break? A. It showed signs of having been in use for some time.'

The winchman was asked as to the lumber which was placed on the hatch covers. He testified as follows:

'Q. Did you notice how the lumber was placed on top of the hatch covers? A. Across the hatch; they were laying a pile of lumber across the hatch, which had never been piled that way before since I am in the business.'

There was testimony from other witnesses that they had never before seen lumber placed on the hatch covers and that it was usual to place it on the side of the ship.

No right of action was given by the common law to recover damages arising from the death of a human being caused by the negligent act of another. Actio personalis moritur cum persona. Mobile Life Insurance Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580. The same doctrine exists in the general maritime law. The Supreme Court in The Harrisburg, 119 U.S. 199, 7 Sup.Ct. 140, 30 L.Ed. 358, held that in the absence of an act of Congress or a statute of a state giving a right of action therefor a suit in admiralty cannot be maintained in the courts of the United States to recover damages for the death of a human being on the high seas, or on waters navigable from the sea which is caused by negligence. As said in Butler v. Boston Steamship Co., 130 U.S. 555, 9 Sup.Ct. 612, 32 L.Ed. 1017, the maritime law of this country gives no such right.

In The Hamilton, 207 U.S. 398, 28 Sup.Ct. 133, 52 L.Ed. 264, the court sustained the right to sue in admiralty to recover damages for causing death, the action being based upon a Delaware statute giving a...