Berti v. Compagnie De Navigation Cyprien Fabre

• Decision Date: 26 May 1954
• Docket Number: No. 73,Docket 22786.,73
• Citation: 213 F.2d 397
• Parties: BERTI v. COMPAGNIE DE NAVIGATION CYPRIEN FABRE (AMERICAN STEVEDORES, Inc., third-party defendant-appellee).
• Court: U.S. Court of Appeals — Second Circuit

213 F.2d 397 (1954)

BERTI v. COMPAGNIE DE NAVIGATION CYPRIEN FABRE (AMERICAN STEVEDORES, Inc., third-party defendant-appellee).

No. 73, Docket 22786.

United States Court of Appeals, Second Circuit.

Argued December 14, 15, 1953.

Decided May 26, 1954.

Robert Klonsky, New York City (Philip F. DiCostanzo, Brooklyn, N. Y., and Jack Steinman, New York City, on the brief), for plaintiff-appellee.

Eugene Underwood, New York City (Burlingham, Hupper & Kennedy, Benjamin E. Haller, and John A. Gleason, New York City, on the brief), for defendant third-party plaintiff-appellant.

George A. Garvey, New York City, for American Stevedores, Inc., third-party defendant-appellee.

Before CLARK, FRANK, and HINCKS, Circuit Judges.

CLARK, Circuit Judge.

This appeal involves the recurring problems of liability of a vessel owner to an injured employee of the stevedore it has hired to load or unload the vessel and of the liability of the stevedore for indemnity to the vessel owner.

Plaintiff, Thomas Berti, a longshoreman employed by third-party defendant, The American Stevedores, Inc., was injured in the course of his employment while loading a vessel owned and operated by defendant-appellant, Compagnie de Navigation Cyprien Fabre. American was in charge of the loading operation, during which it stationed plaintiff on the cover of a partly open hatch. His function was to direct two winchmen, situated on the main deck, whose winches were operating through the hatch opening and down into the lower decks. While plaintiff was thus standing on the hatch cover, a cable from the winches dislodged a supporting beam, and he was dumped 35 feet into the hold below.

Plaintiff thereafter brought this action against defendant Cyprien, alleging unseaworthiness of the vessel in that the beam was inadequately secured, and that the winch cable was defective. He also alleged negligence in failure to provide safe equipment and adequate inspection, and failure to provide adequate supervision for the loading operation. Cyprien filed a third-party complaint against American, seeking full indemnity for any recovery by plaintiff on the theory that any fault was that of American, which was in complete control of the operation. American, in its answer, set up its compliance with the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. After trial of the issues the district court dismissed the third-party complaint, and in the main action entered judgment on a jury verdict for plaintiff of $52,000. This appeal challenges both judgments.

At the trial there was virtual agreement on the condition of the ship's equipment, but the witnesses drew sharply different conclusions as to its adequacy. There was also disagreement as to the propriety of American's method of operating. The trial judge, at one point in his charge, stated:

"Another witness, Giani, who was a superintendent employed by the defendant steamship line, he testified that he was in the vicinity of the hatch opening at the time this work was being done, and that he saw the plaintiff on the hatch board. Now, I said before that the longshore concern has control of the loading operations, yet, nevertheless, the master of the ship is still in charge, and those underneath him could have stopped the work if they thought that what the plaintiff was doing was unsafe. They could not tell him how to do the work, but they could stop him from continuing to do it if they felt there was a danger or hazard in connection with the work."

Later in the charge he stated: "On the other hand, if you find that the carelessness or the contributory negligence of the plaintiff or his fellow workers was the sole cause of the accident, then, of course, you will find for the defendant." And in a subsequent discussion of counsel's exception (out of the jury's hearing) he pointed out that "I didn't use the word `duty,' and I deliberately refrained from using the word `duty.'"¹ But the later statements do not correct the error. The inference appears unmistakable that Cyprien could be found liable, despite fully adequate equipment, solely on the basis of its failure properly to supervise the operation. This we think was fatal error.

The contract required that American

"2. b. Provide all necessary stevedoring labor, including winchmen, hatch tenders, tractor and dock crane operators, also foremen and such other stevedoring supervision as are needed for the proper and efficient conduct of the work."

American relies heavily on the fact that two of Cyprien's men were present at the hatch supervising distribution of the cargo and guarding against pilfering. But there is no evidence that they were in any other way concerned with the manner in which American performed its work. As we said in Gallagher v. United States Lines Co., 2 Cir., 206 F.2d 177, 179, certiorari denied 346 U.S. 897, 74 S.Ct. 221, "a general ability to control the work in order to insure that it is satisfactorily completed in accordance with the requirements of the contract does not of itself make the hirer of an independent contractor liable for harm resulting from negligence in conducting the details of the work." American has continually asserted that there was an issue as to control of the operation, but we see virtually no evidence to support its contention. And had there been, the question would properly have been one for the jury. We are clear that since control of the details of the operation was left to American, Cyprien cannot be held for negligence in the latter's performance.

The Supreme Court has recently held that an owner's absolute duty to provide a seaworthy vessel, together with its appurtenant appliances and equipment, is not affected by relinquishment of control to another. The owner is liable even for defects in equipment brought aboard by a stevedore and used under the stevedore's sole control. Alaska S. S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, affirming Petterson v. Alaska S. S. Co., 9 Cir., 205 F.2d 478. This appears to be contrary to a line of cases in this circuit: Grasso v. Lorentzen, 2 Cir., 149 F.2d 127, certiorari denied 326 U.S. 743, 66 S.Ct. 57, 90 L.Ed. 444; Lauro v. United States, 2 Cir., 162 F.2d 32; Lynch v. United States, 2 Cir., 163 F.2d 97; Mollica v. Compania Sud-Americana de Vapores, 2 Cir., 202 F.2d 25, certiorari denied Compania Sud-Americana de Vapores v. Mollica, 345 U.S. 965, 73 S.Ct. 952, 97 L.Ed. 1384; Gallagher v. United States Lines Co., supra; and to the same effect Lopez v. American Hawaiian S. S. Co., 3 Cir., 201 F.2d 418, certiorari denied 345 U.S. 976, 73 S.Ct. 1125, 97 L.Ed. 1391; see discussion and criticism in 102 U. of Pa.L.Rev. 402. But that, as we view it, does not control the issue before us.

In its basic form the doctrine of seaworthiness imposes a warranty on the shipowner that the ship and its equipment are not defective. Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; The Osceola, 189 U. S. 158, 23 S.Ct. 483, 47 L.Ed. 760. That warranty has been extended to the adequacy and competency of the crew. Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515, certiorari denied Overseas Tankship Corp. v. Keen, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363; Yates v. Dann, D.C.Del., 11 F.R.D. 386; cf. The Rolph, 9 Cir., 299 F. 52, certiorari denied Rolph Navigation & Coal Co. v. Kohilas, 266 U.S. 614, 45 S.Ct. 96, 69 L.Ed. 468...