Arrow Transportation Co. v. Cooper Stevedoring Co.
| Decision Date | 17 June 1960 |
| Docket Number | No. 2633.,2633. |
| Parties | ARROW TRANSPORTATION COMPANY, a corporation, as Chartered Owner of THE Steel Barge ATC-304, Libelant, v. COOPER STEVEDORING COMPANY, Inc., a corporation, Respondent-Petitioner, v. ZURICH INSURANCE COMPANY, a corporation, Respondent-Impleaded. |
| Court | U.S. District Court — Southern District of Alabama |
Alexander F. Lankford III, of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., for libelant.
T. E. Twitty, Jr., of Inge, Twitty & Duffy, Mobile, Ala., for respondent-petitioner.
Alex T. Howard, Jr., of McCorvey, Turner, Johnstone, Adams & May, Mobile, Ala., for respondent-impleaded.
Early on the morning of July 15, 1957, the Steel Barge ATC-304, belonging to Arrow Transportation Company, libelant herein and hereafter referred to as Arrow, was in the process of being loaded with coal ore cargo by Cooper Stevedoring Company, Inc., respondent-petitioner herein and hereafter referred to as Cooper. The barge lay alongside the Alabama State Docks in Mobile, Alabama. Alabama State Docks, pursuant to an agreement, provided Cooper with a crane, an operator, and a flagman, to enable Cooper to fulfill its obligation in loading the barge. During the process of loading the barge, the clamshell bucket attached to the crane allegedly struck and damaged a cargo hatch cover of Arrow's barge. Subsequently, Arrow brought this libel seeking to recover damages from Cooper for its alleged negligence in damaging the hatch cover. Cooper impleaded Zurich Insurance Company, insurers of the Alabama State Docks, alleging that if any damage had resulted to the barge, it occurred through the fault of the State Docks and not through any fault of Cooper.
This cause came on for trial without a jury and now, after due deliberation and after considering the evidence and the briefs submitted by counsel, the Court makes the following findings of fact and conclusions of law.
1. Shortly prior to July 15, 1957, Cooper was engaged by Arrow to load the barge ATC-304 at the Alabama State Docks in Mobile, Alabama, on the date of July 15, 1957. Cooper engaged the Alabama State Docks to assist with the loading. The State Docks furnished a crane, a crane operator, and a flagman to Cooper pursuant to the agreement. Cooper paid the State Docks for these services. At all times pertinent to the loading of the barge the crane operator and flagman were on the payroll of the State Docks and were not paid directly by Cooper. Both men required special and skilled training and experience to perform their respective duties.
2. Under the loading procedure, Cooper's walking boss, Mr. Bill Allen, was in charge of the general loading of the barge. The employees of Cooper would open the cargo hatches; after which, the crane operator would load coal ore into the hatch by means of a clamshell bucket attached to the crane. The operator would attempt to place the ore as close as possible to the wings of the hatch; then, Cooper's employees would spread the ore to the areas which the bucket could not reach. The crane operator, not being able to actually observe the hatch into which he was loading, manipulated the crane with the assistance of signals from the flagman on the deck of the barge.
3. Cooper's employees were unsuccessful in rolling back the hatch cover on the Number 2 cargo hatch because it had become jammed or stuck. Thereupon, Cooper's walking boss requested the flagman to signal the operator of the crane to lower the clamshell bucket down to a position where the bucket could strike the edge of the cover and loosen it. The bucket was lowered as requested, but instead of striking the edge of the cover, it struck the top, and consequently inflicted damage to it. The evidence is not clear as to whether this resulted from faulty signals of the flagman, misdirection of Allen, carelessness of the crane operator, or a combination of the three.
4. Zurich Insurance Company was the insurer of the State Docks during the time in question. The terms of the policy agreement between Zurich and the State Docks embody coverage of the damages sought to be recovered herein. Therefore, in the event the Court should find the State Docks liable, this liability would be imputed to Zurich under the terms of the policy.
5. A marine survey, introduced into evidence, estimated the costs of repairs to the cargo hatch cover to be $840 (L-1). Paid repair bills (L-2 and L-3) showed the actual repair costs to the hatch cover to have been $850.68. The Court finds as a matter of fact that this latter figure was the amount of damages suffered by the libelant as a result of the clamshell bucket's striking the hatch cover.
The Court has jurisdiction of the parties and the subject-matter now before it. 28 U.S.C. § 1333.
There is little doubt but what the libelant is entitled to recover the amount of damages which it claims herein.1 The method employed to loosen the cargo hatch cover may have been customary and routine, but custom is not an excuse for negligence in the performance of the task of loading a vessel. Stevedores are under a duty to use due care and to act in a prudent manner in the performance of their work in loading and unloading vessels.2 That duty was breached when the crane operator, either through negligence, misdirection, misjudgment, or a combination of the three, dropped the clamshell bucket on the cargo hatch cover of Barge ATC-304. There is little, if any, dispute among the parties themselves that Arrow is entitled to recover damages in this action.
The primary dispute in this cause is whether Cooper or Zurich, as insurer of the Alabama State Docks, should bear the damages. This dispute resolves itself in the application of the agency doctrine of the "borrowed servant". It is the contention of Cooper that the crane operator and flagman remained the agents of the State Docks throughout the entire period of the loading operation, and inasmuch as these workmen were paid by the State Docks, used its equipment, and remained under its ultimate control, they were State Docks servants and not those of Cooper. On the other hand, Zurich takes the position that for purposes of this particular loading operation, the workmen became the servants of Cooper.
It is a well-established rule of law that a general servant may be lent or hired by his master to another party for some special service or purpose so as to become, for that particular service or purpose, an agent or servant of the other party.3
In the Alabama Court of Appeals decision of Ridgeway v. Sullivan-Long & Hagerty, supra (footnote 3), 39 Ala.App. at page 343, 98 So.2d at page 667, it is stated that:
"As to whether one who is the servant of one master has become specially the servant of another is ordinarily a question of fact."
The authorities abound with various tests to be applied in ascertaining the ultimate fact of agency. These numerous tests and their applications led Mr. Justice Cardozo to remark:
"The law that defines or seeks to define the distinction between general and special employers is beset with distinctions so delicate that chaos is the consequence." A Ministry of Justice, 35 Harvard Law Review, 113, at 121.
A reading of the various decisions dealing with the "borrowed servant" doctrine more than substantiates this observance.
In Alabama, as is the case in a number of other jurisdictions, the primary test which has been applied in determining the issue of the agency relationship is one of control. In Martin v. Anniston Foundry Co., supra (footnote 3), 259 Ala. at page 637, 68 So.2d at page 327, the Alabama Supreme Court concluded:
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