Olsen Water & Towing Co. v. United States

• Decision Date: 26 July 1927
• Docket Number: No. 368.,368.
• Citation: 21 F.2d 304
• Parties: OLSEN WATER & TOWING CO., Inc., v. UNITED STATES, and three other cases.
• Court: U.S. Court of Appeals — Second Circuit

21 F.2d 304 (1927)

OLSEN WATER & TOWING CO., Inc., v. UNITED STATES, and three other cases.

No. 368.

Circuit Court of Appeals, Second Circuit.

July 26, 1927.

Charles H. Tuttle, U. S. Atty., of New York City (George A. Washington and Walter Schaffner, Sp. Asst. U. S. Attys., both of New York City, of counsel), for the United States.

Macklin, Brown, Lenahan & Speer and Crowell & Rouse, all of New York City (Paul Speer and E. Curtis Rouse, both of New York City, of counsel), for appellee Alderton Dock Yards, Limited.

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

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

Alderton Dock Yards, Limited, made a contract to carry out certain alterations and repairs on the West Nohno. She is an oil-burning ship, and part of the work contracted for consisted in the installation in No. 2 hold of reach rods from the bridge deck down to the valves in the feed pipes for the fuel oil. The oil is carried in tanks amidships along the bottom of the ship. The bilges are about three feet from the top of the tanks and on either side thereof. In doing the work, an acetylene torch was used by Dock Yards' employees to burn off a nut, and the fire was caused by sparks falling into the bilge and igniting the film of oil on the surface of the bilge water.

For a fire so caused the appellee was made responsible by its contract, unless it could affirmatively show that this was a cause beyond its control and nonpreventable by the exercise of reasonable care. The contract provision reads as follows:

"While the vessel is undergoing repairs or alterations at the contractor's yard or wharf, the contractor shall be held responsible for and make good at his expense any and all damage, of whatsoever nature or/and loss, to the vessel, and/or its equipment or/and its movable stores, except where contractor can affirmatively show that such loss or damage is due to causes beyond contractor's control and which by the exercise of reasonable care he was unable to prevent."

The sole question, therefore, is whether the evidence shows that the Dock Yards was free from negligence. The Dock Yards contends, and the court so found, that the customary way to do the work was to use a burner and have a man hold a bucket to catch the sparks, and that the government's inspectors and the ship's officers were aware of the method employed and thought there was no danger in it.

It would doubtless be conceded that to do the burning without having a man to hold a bucket for the sparks would not be customary practice and would evidence a negligent performance of the work. But, in effect, work was being done without a bucket at the moment the fire started. The workman had dropped his bucket because sparks had burned him. He testified:

"The same time I dropped the bucket sparks fell in the bilge. That started the fire."

The bucket holder was a pipe fitter by trade. He was inexperienced in burning, having never held a bucket before. There is no evidence that he wore gloves or took customary precautions against being burned. For a workman, whose duty is to catch sparks, to drop his bucket and thus allow them to fall just where his duty is to prevent their falling, seems to us clear evidence of negligence in...