Colonna Shipyard v. Bland

• Decision Date: 14 June 1928
• Citation: 150 Va. 349
• Parties: COLONNA SHIPYARD, INC. v. WILLIAM H. BLAND.
• Court: Virginia Supreme Court

Page 349

150 Va. 349

COLONNA SHIPYARD, INC. v. WILLIAM H. BLAND.

Supreme Court of Virginia, Richmond.

June 14, 1928.

Argued and submitted before Judge Holt took his seat.

1. ADMIRALTY — Maritime Torts — Injury Suffered by Repairing Ship at Dock in Navigable Water. — An injury suffered by a mechanic through the negligence of his master, while repairing a ship at a dock in navigable water of the United States, is a maritime tort and cognizable in admiralty.

2. ADMIRALTY — Jurisdiction — Saving of Common-Law Remedy — Case at Bar. — Section 9 of the judiciary act of 1789 (chapter 20, 1 Stat. at L. 76), U.S. Judicial Code, sections 24 and 256, preserves a commonlaw remedy in the State courts in admiralty and maritime causes where the common law is competent to give it. Therefore, the instant case, an action for injuries to a mechanic through the negligence of his master while repairing a ship at a dock in navigable waters of the United States, was properly brought in the State court.

3. ADMIRALTY — Action for Maritime Tort in Common-Law Court — Words and Phrases — Rights and Remedies Distinguished. — A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury. Under section 9 of the judiciary act of 1789 (chapter 20, 1 Stat. at L. 76), U.S. Judicial Code, sections 24 and 256, a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law; but nothing therein reveals an intention to give the complaining party an election to determine whether the defendant's liability shall be measured by common-law standards rather than the maritime law.

4. ADMIRALTY — Jurisdiction — Action in State Courts — Whether Common-Law Rules are Applicable. — In cases of maritime tort the general rules of the maritime law apply whether the proceeding be instituted in the admiralty or common-law court.

5. ADMIRALTY — Jurisdiction — Action in State Courts — Whether Common-Law Rules are Applicable. — When one suffers an injury under such circumstances as to be a maritime tort, his rights are fixed by the admiralty law; but he may choose the forum in which to assert those rights. He has his remedy at common law, but his recovery and the precise relief to be afforded him are determined by the admiralty law which is applied, whether he sues in the common-law or the admiralty court. He may pursue his remedy at common law in the State court, but that court must administer the admiralty law. He may select his court, but cannot add to or change his rights or the defendant's rights which are the same in both forums.

6. ADMIRALTY — Jurisdiction — Action in State Courts — Whether Common-Law Rules are Applicable — Contributory Negligence — Case at Bar. — The instant case was an action by a ship carpenter against his employer for injuries received in the course of his employment while working on the repairs of a vessel moored in navigable waters of the United States. The trial court refused to instruct the jury that contributory negligence would be an absolute bar to the action, but instructed them, on the contrary, in accordance with the admiralty rule, that if they believed from the evidence that the injuries received by the plaintiff were the result of negligence on the part of both the plaintiff and the defendants, they should apportion the loss against both the plaintiff and the defendants, and that such negligence on the part of the plaintiff should mitigate the damages which they would otherwise find for the plaintiff.

Held: That the court's instruction was a correct presentation of the law governing the case.

7. MASTER AND SERVANT — Negligence of Master — "Simple" or "Common Tool" Doctrine. — It is well settled that the employer is under no obligation to his servants to inspect, during their use, those common tools and appliances with which every one is conversant; and that it is not the master's duty to repair defects arising in the daily use of such appliances.

8. MASTER AND SERVANT — Negligence of Master — "Simple" or "Common Tool" Doctrine — Ladder — Case at Bar. — The instant case was an action by a ship carpenter against his employer for injuries sustained by him in the course of his employment by falling from a ship's ladder. The evidence was sufficient to show that the ladder, though in use, was unsafe and unsuitable. There was a verdict for plaintiff and defendant contended that the court erred in refusing to set aside the verdict because there was no evidence that defendant was guilty of any negligence. This contention was based upon what is generally spoken of as the "simple" or "common tool" doctrine.

Held: That while this doctrine is well settled, it could not be applied to the instant case. The defective ladder which caused the injury in the instant case was not such an appliance, was not a tool. On the contrary, it was rather a place, the equivalent of a staircase.

9. MASTER AND SERVANT — Negligence of Master — "Simple" or "Common Tool" Doctrine — Ladder. — The ladder cases in which it is held that the employer has discharged his duty if he supplies the servant with proper material for the construction of the ladder, of which he has custody and which he is to use, have no application to the instant case, where the employee was injured by falling from a ship's ladder, which apparently belonged to the ship as part of its equipment, which, though in use, was unsafe and unsuitable. Nor do those cases apply in which the ladder itself is supplied by the master ready for the use of the servant. The master's duty is discharged in such case if the ladder is reasonably safe when delivered to the employee for use.

10. MASTER AND SERVANT — Duty to Furnish Safe Place in which Servants are Required to Work — Safe Entrance and Egress. — As a rule the employer is required to provide for the safety of all that portion of his premises where his employees are required to labor and such of the places thereon as they are expressly or impliedly invited and premitted to use. It is well established that this obligation extends to the places of entrance and exit from the place where the work is performed.

11. MASTER AND SERVANT — Safe Place to Work — Defective Ladder — Case at Bar. — In the instant case a ship carpenter engaged on the repair of a vessel was injured by falling from the ship's ladder while descending to the hold. The ladder, because of its structural weakness, tilted, sagged, or buckled on its weak side, and this caused the fall and injuries to plaintiff. The ladder was in no sense an appliance entrusted to the plaintiff for use in connection with his work. He had not constructed it, it was not in his custody, it was accessible to others, he had no reason to doubt its sufficiency, and was not charged with any specific duty to inspect it. It was like a stairway, merely his means of access to his work in the hold of the ship, which his employer directed him to use, and this direction imposed upon the employer the duty to exercise reasonable care to see that it was a reasonably safe means of access.

Held: That the court could not say, as a matter of law, that the defendant was free from negligence. The most that could be said was that the questions of original and contributory negligence were questions of fact to be submitted to the jury.

Error to a judgment of the Court of Law and Chancery of the city of Norfolk, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Sinnott, May & Leaman, for the plaintiff in error.

Ernest S. Merrill, for the defendant in error.

PRENTIS, P., delivered the opinion of the court.

William H. Bland was a ship carpenter, employed by Colonna Shipyard, Incorporated. He sustained serious and permanent injuries to his head, hips and back by falling from a ship's ladder while acting in obedience to orders of his employer and in the course of his work. He has recovered a substantial verdict against the defendant, Colonna Shipyard, Incorporated (employer), which is here assigning error.

The circumstances of the injury are these: The steamship "Gloucester," a fishing vessel owned by Marine Products, Incorporated, having been damaged by fire, was brought to the repair yard of the defendant for repairs. While at the repair yard, afloat in the Elizabeth river, a navigable stream of the United States, the plaintiff was required to go into the hold of the ship to build foundations for ammonia tanks, to be used in connection with refrigeration. The way of access provided for him from the deck through the hatchway to the hold of the ship was by a ladder fourteen or fifteen feet long, the foot of which was scotched or so fastened to the botton of the hold as to keep it from sliding, while the top was resting against one of the sides or coaming of the hatchway. The ladder was old, one side of it had broken and been repaired by patching or splicing on that side and was weak. The evidence is quite sufficient to show that the ladder, though in use, was unsafe and unsuitable. It apparently belonged to the ship as a part of its equipment, and was movable within the hatchway, an opening twelve feet wide and twenty-four feet seven inches long. The plaintiff, with his tool box, weighing twenty-five or thirty pounds, was descending to the hold when the ladder, because of its structural weakness, tilted, sagged, or buckled on its weak side, and this caused his fall and injuries.

That an injury suffered by a mechanic through the negligence of his master, while repairing a ship at a dock in navigable water of the United States, is a maritime tort and cognizable in admiralty is perfectly well settled.

Among the latest authorities on this point is Great Lakes Dredge & Dock Co. Sophia Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756. That was an action to recover damages for the death of one employed to make repairs on a vessel moored in...