Berryhill v. Pacific Far East Line, 14993.

• Decision Date: 18 February 1957
• Docket Number: No. 14993.,14993.
• Citation: 238 F.2d 385
• Parties: William BERRYHILL, Appellant, v. PACIFIC FAR EAST LINE, Inc., a Corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

238 F.2d 385 (1956)

William BERRYHILL, Appellant, v. PACIFIC FAR EAST LINE, Inc., a Corporation, Appellee.

No. 14993.

United States Court of Appeals Ninth Circuit.

October 24, 1956.

Rehearing Denied February 18, 1957.

Jay A. Darwin, Charles H. Warren, Darwin, Peckham & Warren, San Francisco, Cal., for appellant.

Dorr, Cooper & Hays, Charles W. Kenady, Jay T. Cooper, San Francisco, Cal., for appellee.

Before STEPHENS, BONE, and BARNES, Circuit Judges.

BARNES, Circuit Judge.

Appellant sues for personal injuries sustained when a grinding wheel, owned and furnished by appellant's employer, Todd Shipyards Corporation, shattered or disintegrated while the S. S. "Flying Dragon", owned by appellee, was docked for repairs. These repairs were performed under contract made between the appellee shipowner and the Todd Shipyards Corporation. The grinding wheel had been attached to a portable grinding machine or tool, owned and furnished by Todd. Repairs were being made on the "shaft keyway" of the ship.

Appellant's complaint and the interrogatories filed show that the grinding wheel was alleged to have been unseaworthy. Appellee's motion for judgment on the pleadings was granted. This appeal followed.

Appellant relies on the theory expressed in Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and subsequent cases hereinafter discussed. In the Sieracki case, a shore-side worker, (a stevedore), was held covered by the shipowner's absolute liability for breach of warranty of seaworthiness.

In that case the latent defect was in the ship's shackle which supported the ship's boom. The person injured was loading cargo aboard the ship; traditionally a part of "the ship's work".

Appellant quotes in his brief the following language from that case:

"On principle we agree with the Court of Appeals that this policy (warranty of seaworthiness) is not confined to seamen who perform the ship\'s service under immediate hire to the owner, but extends to those who render it with his consent, or by his arrangement. All the considerations which gave birth to the liability and have shaped its absolute character dictate that the owner should not be free to nullify it by parcelling out his operations to intermediary employers whose sole business is to take over portions of the ship\'s work or by other devices which would strip the men performing its service of their historic protection." Appellant\'s Brief, p. 6.

The Supreme Court case which followed the Sieracki decision and refused to limit the extension of the doctrine of absolute liability to stevedores, alone, was Pope & Talbot, Inc., v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. There the injured man, an employee of an independent contractor, was a workman adjusting "feeders" used to load the vessel with grain. He was injured by falling through an uncovered hatch.

In Torres v. The Kastor, 2 Cir., 1955, 227 F.2d 664, an independent contractor was cleaning a vessel of loose pitch, to make the vessel ready for general cargo. Again, such labor is traditionally a part of ship's work, usually performed by the crew.

In Petterson v. Alaska Steamship Co., 9 Cir., 1953, 205 F.2d 478, this court held the shipowner liable for unseaworthiness when a stevedore was injured because a snatch-block broke. This snatch-block had been brought aboard the vessel by the injured man's employee. The operation, to-wit: loading, was again part of the traditional "ship's work".

The Supreme Court, in a per curiam decision, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, affirmed this court's decision. Mr. Justice Burton dissented, and was joined by Mr. Justice Frankfurter and Mr. Justice Jackson. The dissent points out that the Sieracki and Hawn cases assert the liability of a shipowner to stevedores and carpenters "for the unseaworthiness of his the shipowner's ship and its equipment * * *. They assert the liability of a shipowner to stevedores and carpenters who, in consequence of the unseaworthiness of his ship or its equipment, are injured on board in navigable waters while engaged in work connected with loading or unloading the ship. Those cases establish that such liability for unseaworthiness exists although the injured maritime workers are not employees of the shipowner but are employees of a third party who is under contract to supply stevedoring services." (Italics added.)

The dissent points out that the majority affirmance in Petterson goes one step further than Sieracki and Hawn cases, in holding that the equipment which causes the injury need not belong to the shipowner nor be a part of the ship's equipment.

Just how far should this doctrine be extended?

The doctrine of seaworthiness, and the shipowners' absolute liability for the lack of it, was first enunciated in The Osceola, 1902, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760:

"The vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship."

This was because the Master's power was absolute on any ship. In any weather and under any conditions the seaman was required to do the ship's work, with the equipment furnished by the shipowner, and in whatever places or areas the master saw fit to order.

The Sieracki case extended the indemnity to stevedores, says Justice Burton in his dissenting Petterson opinion:

"* * * largely on the premise that the stevedores were then rendering services usually and formerly performed by the crew. The decision assumed that the stevedores, like their predecessors, used the ship\'s equipment." 347 U.S. 396, 400, 74 S.Ct. 601, 603.

To quote the Sieracki case directly:

"For these purposes he the stevedore is, in short, a seaman because he is doing a seaman\'s work and incurring a seaman\'s hazards." 328 U.S. 99, 66 S.Ct. 880.

The Hawn case extended the doctrine to a carpenter. Hawn was not a stevedore, but a workman repairing the equipment the stevedores used to unload the ship. Thus, it had to do with "ship's work".

The Petterson case, by the majority opinion of the Supreme Court, extended the absolute liability to an injury to a...