Henson v. Fidelity & Columbia Trust Co.

• Decision Date: 10 September 1932
• Docket Number: No. 1205.,1205.
• Citation: 3 F. Supp. 950
• Court: U.S. District Court — Western District of Kentucky
• Parties: HENSON v. FIDELITY & COLUMBIA TRUST CO.

3 F. Supp. 950

HENSON v. FIDELITY & COLUMBIA TRUST CO.

No. 1205.

District Court, W. D. Kentucky.

August 9, 1932.

On Rehearing September 10, 1932.

Woodward, Hamilton & Hobson, of Louisville, Ky., and Odie Duncan and B. S. Morris, both of Henderson, Ky., for libelant.

Worsham & King, of Henderson, Ky., for libelee.

ANDREW M. J. COCHRAN, District Judge.

This is a proceeding in admiralty under section 183, 46 USCA (Rev. St. § 4283) for limitation of liability. It is before me on the petitioner's exceptions to the special master's report, to whom the issues therein were referred to hear the evidence and make findings, whose findings were adverse to him, and for final decree. The petitioner operates a ferry across the Green river in the highway between Owensboro and Henderson, which, at this point, divides the counties of Daviess and Henderson, the former being on the east and the latter on the west, known as Hambleton's Ferry. The ferry consists of a barge operated by a motorboat. On December 6, 1929, the decedent Bennett McGee was driving a truck for J. C. Fisel & Co. of Louisville, Ky., from that city to Henderson going west. He had in the cab with him his wife, the decedent Henrietta McGee, and his son, the decedent Robert Lee McGee, 4 years of age. He drove the truck from the Daviess county side on to the barge, and was transported to the other side. As he was leaving the barge, the chain by which it was tied to the bank broke, the barge backed from under the truck, and the truck itself backed into the river. All three of the occupants of the cab were drowned. The petition seeks to limit the liability of the petitioner, the owner of the ferry, for their deaths to the value of the barge and motorboat, appraised at $1,500. This is not a case for the application of the statutory provision relied on. It applies only when the owner of the vessel is sought to be made liable for the fault of some person other than himself. In such case the liability is to be limited to the value of the vessel and earned freight if such fault is without his "privity or knowledge." Here the petitioner is sought to be made liable, not for the fault of some person other than himself, but for his own fault. The owner of a vessel owes to the passengers thereon the duty of exercising reasonable care to see that the vessel is in a reasonably safe condition, i. e. that it is seaworthy, and if he fails personally, i. e., not through some employee, to exercise such care, and by reason thereof a passenger is injured, he is liable for the entire damage caused thereby. He has no right of limitation of his liability in such case. As to the duty of the owner of a vessel in this particular this was said in the case of Patton-Tully Transp. Co. v. Turner (C. C. A.) 269 F. 334, 338. "It is equally clear that there is liability if the injuries result from lack of original seaworthiness (Chelentis v. Luckenbach S. S. Co., 247 U. S. 381, 38 S. Ct. 503 62 L. Ed. 1171); and we think it is the proper inference from the principles stated in the opinion just cited as well as from the discussion in The Osceola, 189 U. S. 158, 175, 23 S. Ct. 483, 47 L. Ed. 760, that the duty to use reasonable care in keeping the ship and her appliances in safe condition is a continuing duty resting upon the owners during the voyage, that this is nondelegable, and that, for injuries resulting from its breach, the owners are liable to the seamen, even if there is an entire lack of that privity or knowledge which will deny to the owners the right to limit their liability. We do not find this to be expressly decided in cases which are later than, and recognize the rule of, The Osceola; but it had often been held prior to The Osceola. The Osceola seems to accept these holdings as right, when based on a failure to maintain the ship or appliances in seaworthy condition, and there is close analogy to the common law nondelegable duty of maintaining a safe place to work."

To the same effect is the case of Henry Gillen's Sons Lighterage v. Fernald (C. C. A.) 294 F. 520.

In the case of Stewart v. United States (D. C.) 25 F.(2d) 869, 870, it was said: "The law is that the owner owes a nondelegable duty to furnish a seaworthy vessel, and is liable where the injuries result from lack of original seaworthiness."

The petitioner owed this duty to the decedents, passengers on his ferry, and the question is whether he personally breached it, and, if he did, whether such breach was a proximate cause of the deaths. It is the personal fault of the petitioner that is in issue. The matter of the fault of any other person is not necessarily involved. Hence it is that the authorities cited on behalf of the petitioner as to the application of the statute referred to have no bearing here.

The particular in which the defendant claims that the petitioner personally breached this duty was in the chain which he provided for tying the barge to the bank, the breaking of which was the direct cause of the disaster. It claims that the chain was unsafe and that the petitioner himself failed to exercise reasonable care in seeing that it was reasonably safe. The links in the chain were made out of five-eighths soft steel and were 6 inches in length. It was made about 5 or 6 months before by a negro blacksmith in the neighborhood. The blacksmith was old enough to be called "Uncle" and he had followed his craft for 40 years, 35 of which were on his own account. His father before him had been a blacksmith. His reputation as a skilled and competent blacksmith was good. The links were formed by welding the steel by heat supplied by the usual blacksmith's furnace. His method was to make two links and then make a third link connecting the two. The giving away of the chain was due to one of the links parting where it had been welded. The weld was a bad one. It may be said that it was a very bad one. Its two ends were held together by a slight connection at the outer edge, which does not seem to have gone all the way around. It is the petitioner's claim, and he so testified, that the defect in the link could not be detected by a visual inspection. There is evidence on behalf of defendant that it could. But the case will be disposed of on the basis that it could not — that as to such inspection it was a hidden defect. The petitioner made no test as to the safety of the chain. He did no more than give it a visual inspection. He testified that upon its delivery to him, and before he used it, he so inspected it, and this he did a number of times thereafter, the last time being about 15 days before the accident.

The question which the case presents is whether this is all that reasonable care required of him or whether he should not have subjected it to some test that would have determined its safety. A master owes his servants the duty of exercising reasonable care to provide him with reasonably safe appliances with which to work. This duty is said to be performed if he purchases the appliances from a reputable manufacturer. In 39 C. J. p. 424, it is said: "Where a master purchases simple or common tools from a reputable manufacturer he need not make inspection thereof to ascertain their fitness for use although where the instrumentalities so purchased are not of such character he is required to use reasonable care and to inspect the same, but he is not guilty of negligence for his failure to discover latent defects."

According to this, he owes no duty of testing the appliance so purchased. He need not even inspect it. He has the right to take it for granted that it is not defective, having purchased it from such a manufacturer. Here the petitioner did not purchase the chain in question from a reputable manufacturer. He purchased it from a reputable blacksmith, who had himself made it. Does the principle referred to apply to such a case? There is a difference in the two cases that may make it inapplicable. I think it may be said to be a matter of common knowledge that a manufacturer of chains tests them so as to determine what strain they will bear, and he can furnish the purchaser of a particular chain with information as to just how much strain it will stand; i. e., its factor of safety. An ordinary blacksmith is not supplied with such means of testing the safety of a chain. This is the best possible means of testing its safety. It puts it to the test. In view of this difference, it may be that a purchaser of a chain from a reputable blacksmith by a master for the use of his servants owes him the duty, not only of inspecting it, but of subjecting it to such tests for determining its safety as he may have at hand, and that in the matter of inspection he should use a magnifying glass in aid of his eyes.

But this case does not involve the duty of a master to his servant in the matter of appliances but of the carrier to his passengers. A carrier owes to his passengers a higher degree of care than a master owes to his servants. The care which a carrier owes his passengers is said in the case of Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141, to be "to observe the utmost caution characteristic of very careful, prudent men" and to exercise "extraordinary vigilance aided by the highest skill." As to its liability for injuries caused by a defective appliance purchased from a reputable manufacturer, it has been held that it is liable for the negligence of the manufacturer in the construction of the appliance, even though it has not been guilty of a failure to exercise the high degree of care required of it. It was so held in the cases of Morgan v. Chesapeake & O. R. Co., 129 Ky. 731, 112 S. W. 859; Id., 127 Ky. 433, 105 S. W. 961, 15 L. R. A. (N. S.) 790, 16 Ann. Cas. 608; Dibbert v. Metropolitan Inv. Co., 158 Wis. 69, 147 N. W. 3, 148 N. W. 1095, L. R. A. 1915D, 305, Ann. Cas. 1916E, 924.

Such is the law in New York and California. This position shows how far the courts holding it will go in making a carrier liable...