In re New York Dock Co.

• Decision Date: 07 November 1932
• Docket Number: 28.,No. 27,27
• Citation: 61 F.2d 777
• Parties: In re NEW YORK DOCK CO. In re CONVERSE.
• Court: U.S. Court of Appeals — Second Circuit

61 F.2d 777 (1932)

In re NEW YORK DOCK CO.

In re CONVERSE.

Nos. 27, 28.

Circuit Court of Appeals, Second Circuit.

November 7, 1932.

Arthur Butler Graham, of New York City (Ralph A. Gilchrist, of New York City, of counsel), for New York Dock Co.

Harry S. Austin, of New York City, for claimant-appellant.

Alexander, Ash & Jones, of New York City (Lawson R. Jones and Edward Ash, both of New York City, of counsel), for petitioner charterer cross-appellant Converse.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge (after stating the facts as above).

Whatever the legal obligations of the New York Dock Company, under the charter or otherwise, may be to Converse, this claimant must look for indemnity solely to his employer, Converse, who had the entire control of the pile driver. Its faulty condition was not due to any hidden defect. Converse chartered the pile driver in its then present condition, after Heyer, his superintendent, had looked it over and decided that it was suitable for the intended job. Converse was to, and did, rig it for use. No one understood that it was ready for use when chartered. Consequently the New York Dock Company was not bound to furnish a seaworthy pile driver then safe for the employees of Converse to use in driving piles. Regardless of whether we might be disposed to adopt the doctrine of liability at large for latent defects which make things dangerous instrumentalities which one supplies to be used without test or change as developed through Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311, Statler v. George A. Ray Mfg. Co., 195 N. Y. 478, 88 N. E. 1063, MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, Ann. Cas. 1916C, 440, L. R. A. 1916F, 696, and Smith v. Peerless Glass Co., 259 N. Y. 292, 181 N. E. 576, from the old falsely labeled poison case of Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, it should be plain that no such liability can rest upon the owner of a pile driver for defects which proper inspection would disclose when the charterer is to inspect and rig it for use. And so the decree below exonerating the New York Dock Company was right, since there were no hidden defects, and the pile driver was to be made ready for use by the charterer; not because the dock company's negligence as to the claimant was remote, but because it was not negligent at all; not because the pile driver was seaworthy, but because it was in the condition Heyer upon adequate inspection would have known it to be.

The negligence of the Converse Company rests on inadequate inspection and conditioning at the start and inadequate inspection and repair while the work was being done. The only reasonable explanation of how and why this wedge dropped is that it worked loose during the nine days because of the vibration in the tower from the hammer blows on the piles.

The suggestion that the men who inspected it for Converse may have assumed that the wedge was secured from the inside put forth a possibility, but at the same time discloses the certainty...