United States Fidelity & Guaranty Co. v. United States, 85.

• Decision Date: 09 November 1945
• Docket Number: No. 85.,85.
• Citation: 152 F.2d 46
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

152 F.2d 46 (1945)

UNITED STATES FIDELITY & GUARANTY CO. v. UNITED STATES.

No. 85.

Circuit Court of Appeal, Second Circuit.

November 9, 1945.

Simone N. Gazan, of New York City, for libellant.

Corydon B. Dunham, and John F. X. McGohey, U. S. Atty., both of New York City, for respondent.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

Both parties appeal from a decree in the admiralty, awarding damages for personal injuries to one, Walsh, a longshoreman, which he sustained while boarding the respondent's ship, "Charles A. Dana," in Savannah, on June 28, 1943. Walsh was a rigger and diver, employed by the Savannah Machine and Foundry Company; the libellant was the insurance company which carried workmen's compensation for that company and had paid Walsh his award. The suit was to recover full indemnity for Walsh's injuries. The judge found the respondent liable, and awarded $13,000 to the libellant made up as follows: $10,000 for loss of earning power, $1300 for suffering due to the injury; $1700 for hospital expenses. The respondent denies liability for several reasons which we shall take up later; the libellant appeals because the award for suffering was inadequate. The facts as developed upon the trial were as follows. The Savannah Machine and Foundry Company had contracted with the respondent to install fuel tanks upon the ship, which had docked on the evening of July 28. Walsh was ordered to begin the work on board; and when he came to the dock that morning, he found a gondola car on the dock alongside the ship, at a distance of about eighteen inches from her side. A "Jacob's ladder" was over the ship's side at the end of this car; and as it seemed an easy way to board the ship, Walsh mounted the gondola, walked along its top until he came to the ladder, and started to climb up. According to this own testimony, he had gone up some distance when the ladder slipped down over the ship's rail and threw him upon the stringpiece of the dock, causing severe injuries to his spine. (The more plausible testimony is that the ladder slipped as soon as he put his weight upon it; but it makes no difference which version is correct.) The evidence does not show how the ladder came to be left, hung over the ship's side; but it does appear that at some time during the morning its lower steps had been lying upon the dock and had been damaged. The boatswain saw this from the ship's deck, and directed a sailor to pull up the ladder; and the sailor did pull it up so that the bottom steps were clear of the deck, though not so high as to be out of reach of anyone standing on the dock who wished to use it. Presumably the end had originally been properly fastened to some cleat or stanchion on the deck; but when the sailor pulled it up, he left the slack lying on the deck unsecured; and in consequence, as soon as Walsh put his weight upon it, the slack paid out over the rail.

We agree that it was actionable negligence to leave the ladder in this condition. Had not the gondola car been beside the ship, there can be no doubt; the ladder would then have been an invitation to any active man who had business on board to use it as Walsh did. We cannot see that the presence of the gondola car made any material difference. It was still possible, as we read the testimony, to use the ladder from the dock, and Walsh gave as his only reason for first mounting the car, that that gave him an easier ascent for the first seven or eight feet. It is quite true that if he had started from the dock, his fall would have been through so short a distance as probably to have caused little or no serious injury; yet we cannot accept this as an excuse for the respondent. What actually happened was not so far beyond expectation as to pass outside the scope of liability. Similarly, as to Walsh's negligence in using the ladder: strictly matter of defense. It stood there, apparently safe, and still intended for the use to which he put it: he could not see that it would not in fact give him the promised security.

The next defense is that the libellant cannot recover full indemnity. Section 933(i) of Title 33, U.S.C.A., vests all rights of the "employer" in an insurer, who has paid workmen's compensation; § 933(b) vests all the injured longshoreman's rights in the employer after he has paid compensation; § 933(d) gives the employer the workman's remedy over against the third person; and § 933(e) prescribes how the employer shall distribute any recovery. The meaning is plain; the injured employee loses his claim against the third person by accepting compensation; but the employer may prosecute it — or the insurer, if the employer is insured — and, when the employer recovers, he is to distribute the recovery. It is not necessary to join the employee, but it is permissible. Moore v. Hechinger, 75 U.S.App.D.C. 391, 127 F. 2d 746.

Next, the respondent argues that it should be excused because it paid the premiums which insured the Savannah Machine and...