Brabazon v. Belships Co.

• Decision Date: 26 March 1953
• Docket Number: No. 10822.,10822.
• Parties: BRABAZON v. BELSHIPS CO., LIMITED, SKIBS A/S.
• Court: U.S. Court of Appeals — Third Circuit

202 F.2d 904 (1953)

BRABAZON v. BELSHIPS CO., LIMITED, SKIBS A/S.

No. 10822.

United States Court of Appeals Third Circuit.

Argued November 4, 1952.

Decided March 26, 1953.

Thomas E. Byrne, Jr., Philadelphia, Pa. (Joseph J. Murphy, Robert Cox, Krusen, Evans & Shaw, Philadelphia, Pa., on the brief), for appellant.

Milton M. Borowsky, Philadelphia, Pa. (Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellee.

Before MARIS, GOODRICH and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

During the loading and securing of a ponderous cargo of forty-eight locomotives and forty-eight tenders in the hold of a ship owned and operated by appellant Belships Co. Ltd., the appellee, Brabazon, working as an employee of Jarka Stevedoring Company, an independent contractor engaged by Belships for this operation, fell and suffered serious injuries. The accident occurred while the ship was docked in navigable water in the port of Philadelphia. Brabazon sued Belships in admiralty for maritime tort and recovered. The shipowner has appealed. We have to determine whether the record shows any actionable wrong of Belships to which Brabazon's injury can properly be attributed.

At the time of the accident, rows of locomotives had already been loaded so as to fill the lower part of the hold. Beams and frames had then been installed at a level some six feet above the tops of the locomotives, and tenders loaded on these. Brabazon was a member of the lashing gang working at night to secure the tenders. Desiring a tool from the bottom of the hold at a point some distance away, Brabazon left the place on the port side where his gang was lashing a tender to go to the starboard side and thence down to the bottom of the hold. Earlier movements that night by him and his gang between different levels had all been on the port side where they were working. But on this occasion Brabazon walked from port to starboard, across the tops of the locomotive cabs. Moving thus athwartship and in semi-darkness he came to a gap of some three or four feet between the roofs of the cabs of two locomotives standing side by side. Bridging this gap were two boards. He walked on them. One board broke under his weight and he fell some twenty feet to the bottom of the hold sustaining the injuries in suit.

Concerning the character and history of the board which broke the evidence shows only that it was about 8 feet long, 7½ inches wide and ¾ of an inch thick, too thin to safely bear the weight of a man when used to bridge a four foot gap; that it was not placed across the locomotive cabs by Brabazon or any member of his particular gang, who had come to work less than two hours before the accident; and that it was not a piece of lumber which had been supplied by Belships.

More generally, during the period in question, Belships retained possession and control of the vessel as a whole. However, the activities in progress in the hold, the placement and securing of the cargo, were being accomplished under contracts with Belships by two independent corporations, Jarka Stevedoring Company, and Haenn Ship Ceiling and Refitting Corporation. The lashing work was being done by Jarka gangs under the immediate and continuing control and direction of their own foreman. However, through the ship's officers who retained their normal shipboard authority and responsibility, Belships exercised general supervision over the placement and attachment of the cargo.

At the outset it is to be noted that this case is distinguishable on its facts from those which impose liability upon a shipowner, whether on the basis of negligence or unseaworthiness, for consequences which flow from defects or dangerous conditions already existing on its ship when an independent contractor and his employees have come on board. Hawn v. Pope & Talbot, Inc., 3 Cir., 1952, 198 F.2d 800; Lauro v. United States, 2 Cir., 1947, 162 F.2d 32; Munson S. S. Lines v. Newman, 5 Cir., 1928, 24 F.2d 416; The Etna, D.C. E.D.Pa.1942, 43 F.Supp. 303. It is not suggested that the accident here resulted from anything that was wrong when the loading began. Moreover, the possibility of actionable wrong is further limited in this case by the admitted fact that Belships did not furnish anything defective to Brabazon or his employer. Specifically, Belships did not supply the board which broke. Indeed, there is no proof of any blameworthy affirmative action of Belships which can be charged as the responsible cause of the accident. Therefore, cases which impose liability on any such basis are not helpful here. E. g. McNeil v. United States, D.C. E.D.Pa.1950, 94 F.Supp. 303; Olszewski v. United Fruit Co., D.C.E.D.Pa.1940, 34 F. Supp. 113; The Dalhem, D.C.D.Mass.1941, 41 F.Supp. 718. If chargeable at all, Belships must be held for some omission during the loading operation.

With the issue thus narrowed, appellant urges that, the hold having been safe when loading operations began, the shipowner thereafter has no affirmative responsibility whatever for shipboard hazards not of his own creation that may come into existence in the independent contractor's work area during the course of loading. We do not accept so sweeping a generalization. The owner who retains control of the vessel as a whole and general supervision of what is being accomplished by an independent contractor in one part of the vessel is not relieved of all responsibility in connection with the prevention, discovery or correction of new hazards which may make the area temporarily used and occupied by independent contractors an unsafe place to work. E. g. Anderson v. Lorentzen, 2 Cir., 1947, 160 F.2d 173; Fodera v. Booth American Shipping Corp., 2 Cir., 1947, 159 F.2d 795. At the same time, as this court has recently pointed out, the duty of a shipowner in any case to provide a safe place to work, unlike the distinct if sometimes overlapping duty to provide a seaworthy vessel and appurtenances, is not absolute. Rather it is a requirement of reasonable care under the circumstances. See Cookingham v. United States, 3 Cir., 1950, 184 F.2d 213. Cf. Baltimore & Ohio S. W. R. R. Co. v. Carroll, 1930, 280 U.S. 491, 496, 50 S.Ct. 182, 74 L.Ed. 566; Chicago & N. W. Ry. Co. v. Payne, 8 Cir., 1925, 8 F.2d 332, 334. In such cases as we are now considering, the nature of the work being done in the hold, the fact that it was being accomplished by responsible independent contractors whose employees were the only persons working in the hold, and the fact that the area was safe when that work began, all may have bearing upon the issue of what would constitute due care by the shipowner during the loading period. The stated factors may have lessened the need or occasion for further precautions in the view of a reasonable person in the shipowner's place. But this is a matter of appraisal of particular facts and their impact upon reasonable behavior. It involves no general rule of absolution from responsibility. It permits different conclusions as to liability on the basis of relatively small factual differences. Compare the recent decisions of this court in Hawn v. Pope & Talbot, Inc., supra, and Lopez v. American-Hawaiian Steamship Co., 3 Cir., 1953, 201 F.2d 418.

Accordingly, we come to a consideration of the particular omissions by Belships as the loading progressed which are said to constitute negligent failure to do its part in making or keeping the working area safe. Specifically, it is said that the evidence establishes failure to supply enough heavy lumber for staging, failure to remove all thin and unserviceable lumber from the hold, failure to inspect and discover the hazardous bridging board, and failure to provide adequate lighting.

While it is agreed that the plank which broke was not lumber supplied by Belships, it is also clear that under its agreement with the contractors Jarka and Haenn, the shipowner undertook to supply suitable lumber which the contractors might use as needed for staging throughout the several weeks of the loading operation. A quantity of such lumber was supplied. There is conflicting evidence concerning the adequacy of the supply and the need from time to time for more staging lumber. But there is nothing to show that whoever laid the thin plank between the locomotives could not at that time, whenever it may have been, have as readily procured a board of suitable thickness. Nor is there anything to show that at the time of the accident there was no suitable lumber at hand for Brabazon to use if he had discovered the need. To the contrary, the evidence affirmatively showed and the District Court found that when Brabazon and his gang began work on the night of the accident there were at hand loose boards of "varied sizes in length, breadth and thickness. Some were lengths of staging lumber, others sweat boards * * *, others an in-between size". 103 F.Supp. 594. There is nothing to show that had Brabazon realized the inadequacy of the particular plank he would have been unable conveniently to replace it with suitable lumber of the stock furnished by Belships. Finally, on this phase of the matter, Brabazon makes the point that there were miscellaneous boards varying in size and thickness lying around in the hold. From this fact it is argued that Belships was negligent...