American Export Lines, Inc. v. Revel

Decision Date08 April 1959
Docket NumberNo. 7787.,7787.
Citation266 F.2d 82
PartiesAMERICAN EXPORT LINES, INC., Appellant, v. John REVEL, Appellee, WHITEHALL TERMINAL CORPORATION, Appellant, v. UNITED STATES of America, AMERICAN EXPORT LINES, INC., and John Revel, Appellees, and American Export Lines, Inc., Cross-Appellant, v. UNITED STATES of America and Whitehall Terminal Corporation, Cross-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

John W. Winston and Harry E. McCoy, Norfolk, Va. (Seawell, Johnston, McCoy & Winston, Norfolk, Va., on the brief), for appellant American Export Lines, Inc.

Sidney H. Kelsey, Norfolk, Va., for appellee John Revel.

William E. Eley, Norfolk, Va. (Rixey & Rixey, Norfolk, Va., on the brief), for appellant Whitehall Terminal Corp.

Herbert E. Morris, Atty., Dept. of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Samuel D. Slade, Atty., Dept. of Justice, Washington, D. C., and Lester S. Parsons, Jr., U. S. Atty., Norfolk, Va., on the brief), for appellee and cross-appellee United States.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOBELOFF, Chief Judge.

In a civil action in the District Court, judgments were entered in favor of an injured longshoreman against the owner of a vessel; for the vessel's owner against the United States, as charterer; and for the United States against the longshoreman's employer, a stevedoring company.

The longshoreman, John Revel, was injured while standing on Pier 1, U.S. Army Base, Norfolk, Virginia, helping to load the American Export Line's S.S. Executor. Export had leased space in the ship's No. 1 hold to the United States pursuant to a contract with the Military Sea Transport Service (MSTS). The contract required MSTS to supply men to load and stow the cargo aboard the Executor, and MSTS thereupon contracted with Whitehall Terminal Corporation, a stevedore, to furnish the personnel for that purpose.

The loading was done on June 9, 1956, by Whitehall's employees, who were in complete charge. A number of longshoremen testified that when they went aboard at about 8:00 A.M., the operator of the starboard winch at the No. 1 hold found that its controls were not working properly.1 They claim to have reported the condition to the ship's mate who, according to them, instructed them to continue operating the winch "as best they could." The ship's mate and the other officers to whom he would have relayed such a report denied receiving notice of the defective condition.

At the time of the accident, Revel was working as a "slinger." As the cargo was brought to the side of the ship, he would attach a cargo hook to the load so that the winch operators could lift the draft aboard. The accident occurred when the defective winch caused a pallet, loaded with 30 drums containing calcium carbide, each weighing approximately 111 pounds, to strike the side of the vessel. The drums fell to the pier, and one of them rolled against and fractured Revel's right leg.

Before instituting this action, Revel applied for compensation benefits, which he later received from his employer, Whitehall, under the Virginia Workmen's Compensation Statute. His allegations here are that his injuries resulted from the faulty winches supplied by Export and the negligence of its employees.

Export impleaded the United States and Whitehall as third-party defendants, claiming indemnity for any recovery which Revel might obtain, on the theory that the accident resulted from the negligence of the longshoremen supplied by the United States and Whitehall. The United States, in turn, counter-claimed against Whitehall asserting that Whitehall had contracted to do the loading in a proper, skillful and workmanlike manner, and was therefore liable to indemnify the United States for any amount which might have to be paid to Export.2

I.

Since Revel was injured while standing on the dock, (an extension of the land) his remedies are restricted to those afforded by the local law. Swanson v. Marra Bros., 1946, 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045; State Industrial Comm. v. Nordenholt Corp., 1922, 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933; Cf. The Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 903 and Kermarec v. Compagnie Generale Transatlantique, 1959, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550. This is true even though the Congress has embraced such cases within the maritime jurisdiction of the United States. Extension of Admiralty Act, 46 U.S.C.A. § 740.

II.

Export submits that the terms of the Virginia Workmen's Compensation Statute preclude Revel from maintaining this action. Its argument is that the Virginia courts have construed the act to deny an injured employee recovery at law from a statutory employer, or any person not a stranger to the business or work being performed at the time of the injury. Rather than being a stranger, Export insists that it is so intimately connected with the loading of one of its ships that the work actually constitutes part of its "trade, business or occupation."

From our examination of the Virginia cases we conclude that they do not support Export's contention. The recent case of Kramer v. Kramer, 1957, 199 Va. 409, 100 S.E.2d 37, 44 is dispositive of this issue. There, a church had engaged a carpentry contractor to enlarge its existing structure. In the course of the construction, it became necessary to erect six large trusses or arches which could not be raised into position without using a crane. As the contractor did not own a crane, a hoisting company was hired to provide one together with a crew to operate it. Erection of the trusses required the contractor's employees and those of the hoisting company to work in unison. Four trusses were raised into position by the hoisters and installed by the carpenters. A fifth, somewhat smaller than the first four, was then raised and leaned against the wall temporarily in order to clear the church floor. The carpentry contractor's employees tied the truss with a rope to keep it from falling, but a short time later the rope broke and the truss fell and struck the decedent, an employee of the hoisting company, causing fatal injuries.

When the decedent's administrators sued the carpentry contractor, it was claimed in defense that the action was barred by the provisions of the Workmen's Compensation Act. The first question which had to be decided under this defense was whether the work of raising the trusses was the business of the defendant under his contract with the church. While the contract gave the defendant general supervision over the entire operation, it did not speak in specific terms of raising trusses. It was obvious, however, from their weight and size that a crane would be required to raise them into position. The defendant admitted that he did not own a crane and that the operation of cranes was not normally part of his business. There was conflict in the testimony as to whether the hoisting company had been hired by the contractor or directly by the church. The court concluded:

"In this case the evidence which the jury could accept showed that the work being done by Old Dominion Hoisting Service, an independent contractor, was not included in the carpentry contract of the defendant, Kramer, and was not a part of the trade, business or occupation of Kramer; that the decedent, whose general employer was Hoisting Service, was performing work which had some relation to the work of the defendant, but was not a part of trade, business or occupation of the defendant, and the decedent in doing that work was not `engaged in the same work as defendant\'. * * *"

The Supreme Court of Appeals of Virginia then held that an employee of one independent contractor could sue another independent contractor at common law for the negligence of the latter or his employees, even though "both contractors being engaged in work which is to become a component part of the same structure."

We think the same rule applicable here. Whether loading and unloading was traditionally performed by members of the ship's crew is not the question. In recent years such services have been performed almost exclusively by contract with stevedores, who are recognized to be in a separate and distinct occupation. McGrath v. Pennsylvania Sugar Co., 1925, 282 Pa. 265, 127 A. 780, 782; 48 Am.Jur. 211, 212. While so engaged, the employees of the stevedore are generally in complete charge.

In handling ordinary commercial freight, the shipowner is the one who contracts for the stevedoring services and his contract with the owner of the goods includes a charge for loading. In such cases the stevedore has no direct contact with the owner of the goods, and the shipowner might be, under the Virginia statute Art. 65, Sec. 27,3 the statutory employer of the longshoremen, regardless of the fact that the shipowner never performs this function with his own employees. This we are not called upon to decide here.

In this case, Export's contract with the United States provided that the latter would supply the personnel to load its cargo; and the United States, in turn, contracted with Whitehall to provide the service. There was no contract between Export and Whitehall. In these circumstances, we hold that under Virginia law, while the loading operation was, in the Virginia Court's language, "related to the activities" of Export, it was not part of its "trade, business or occupation," and that Revel as the employee of another independent contractor may maintain this suit at common law against Export.4

III.

Export's next contention is that if Revel is not barred by the Virginia compensation statute, then the protection of the seaworthiness doctrine cannot be extended to him. Export's reasoning involves the following steps: (1) Seas Shipping Co., Inc. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, extended the doctrine of seaworthiness to longshoremen because they per...

To continue reading

Request your trial
63 cases
  • Brand Distributors, Inc. v. Insurance Co. of No. Am.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 2. Oktober 1974
    ...(1972); Tow v. Miners Memorial Hospital Ass'n., supra; Revel v. American Export Lines, Inc., 162 F.Supp. 279 (E.D.Va.1958), aff'd. 266 F.2d 82 (4th Cir. 1959). The construction of insurance contracts is governed by the same general rules as are applied to the construction of other written c......
  • Hagans v. Ellerman & Bucknall Steamship Company
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 17. Mai 1963
    ...Scrap Iron & Metal Co., 157 F.Supp. 709 (E.D.Pa.1957); Winters v. Herdt, 400 Pa. 452, 162 A.2d 392 (1960) and American Export Lines, Inc. v. Revel, 266 F.2d 82 (4 Cir. 1959). We fail to see how these cases support Atlantic's 22 Toward the end of Hagans's case he introduced an expert witness......
  • Marine Stevedoring Corporation v. Oosting
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 20. Juni 1968
    ...of a vessel. 11 To the extent that the present opinion deviates from this court's earlier pronouncement in American Export Lines, Inc. v. Revel, 266 F.2d 82 (4 Cir. 1959), we are of the view that Revel has been overruled by 12 Voris v. Eikel, 346 U.S. 328, 333, 74 S.Ct. 88 (1958). 13 We are......
  • McCross v. Ratnakar Shipping Co., Admiralty No. 4897
    • United States
    • U.S. District Court — District of Maryland
    • 16. März 1967
    ...288, 9 L.Ed.2d 230 (1962); Revel v. American Export Lines, Inc., 162 F.Supp. 279, 281 (E.D.Va.1958), aff'd, American Export Lines, Inc. v. Revel, 266 F.2d 82, 84 (4th Cir. 1959) (in which the "plaintiff was working on the Three of the seven cases were instituted as libels in admiralty. The ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT