Crimmins v. Booth

• Decision Date: 19 May 1909
• Parties: CRIMMINS SAME v. BOOTH. SAME v. FREDERICK LEYLAND & CO., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 17

88 N.E. 449

CRIMMINS SAME v. BOOTH. SAME v. FREDERICK LEYLAND & CO., Limited.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1909

COUNSEL

Harry F. R. Dolan and Thos. R. Bateman, for plaintiff.

Hill Barlow & Homans and F. J. Sulloway, for defendant Frederick Leyland & Co.

John Lowell and Jas. A. Lowell, for defendant Booth.

OPINION

RUGG J.

These are two actions of tort to recover damages for the alleged negligence of the defendants. The declaration in the one against the Leyland Company contains a single count averring liability at common law for providing an unsafe place in which the plaintiff was rightfully at work. It contains no count based upon Rev. Laws, c. 106, § 76. The declaration in the action against Booth contains one count alleging negligence at common law and two others based respectively upon clauses first and second of section 71, c. 106, Rev. Laws. The plaintiff was a longshoreman in the employ of Booth, a boss stevedore, and was working upon the Columbian, a vessel owned by the Leyland Company. On the day of the accident he had been helping to load the vessel. Just before midnight he with others, was directed to stop work and put on the hatches. The hatches, made of wooden planks, were about 5 feet long, 2 feet wide, 3 inches thick, and were each so heavy that two men were required to handle them. The hatchway itself was about 14 feet long by 10 feet wide, surrounded by an iron frame called the 'coamings.' When the hatch was to be put on there was first placed across the middle of the hatchway an iron beam called the 'thwartship piece' and on its middle two other iron beams rested, called 'fore and aft pieces,' one reaching to the middle of the forward coamings and the other to the middle of the aft coamings. These three beams fitted in sockets and on both sides of the fore and aft pieces were flanges 2 inches to 2 1/2 inches in width and on the inside of both the inshore and offshore coamings were flanges 1 inch to 1 1/2 inches in width. It was the customary and only practicable way, after the first hatch was put on, for one man to stand on it and successive hatches in placing the next. The night of the accident was dark and a canvas suspended from a boom over the hatchway came down within 2 or 3 feet of the deck and covered the whole hatchway except for an opening where the cargo was taken in. There was no light on the deck. The plaintiff with others was putting down the hatches, his post of duty requiring him to stand on the hatches as they were successively placed. As he was standing on the fourth or fifth hatch and helping to put the next one in position, the one on which he was standing went down and he sustained thereby the injuries for which in these actions he seeks recovery. There was sufficient evidence to support a finding that the hatches were being put down in the same order and places in which they were when the ship came into port and there was no evidence which compelled the conclusion that they were being placed in any way other than that for which they were supplied by the defendant shipowner. The next morning after the accident the officers of the vessel and the defendant Booth and others tested the hatch that went down with the plaintiff on it. It then appeared that when pressed hard against the coamings (where the flange was 1 inch to 1 1/2 inches wide), it would hold, but when pressed against the fore and aft piece (where the flange was 2 inches to 2 1/2 inches wide), the hatch cleared the flange on the coamings by about half an inch and would go down. It does not appear that the plaintiff had had anything to do with these hatches before the accident except that he helped to put hatches upon the same hatchway at 6 o'clock on the night of his accident. The defendant Booth was doing the work of loading and unloading the Columbian under a contract with her owner, from which this extract was in evidence:

'The said stevedore agrees to discharge and load each of the said steamships at the stated rates promptly upon her arrival in Boston. Said stevedore agrees to hire and pay the necessary men for the purpose, to provide all necessary engines, fuel, lights, tackle and other appliances for the purpose, and shall have the sole and entire charge, direction and control of the work (the work, however, is to be done to the satisfaction of Fred'k Leyland & Co. [1900] Limited, and of the owners of the steamers stated on the attached schedule); and the steamship company agrees to pay for discharging and loading the same at the rates specified, payment for the work on each ship to be made when each ship is loaded ready for sea. A sufficient number of men is to be provided by Mr. Booth whenever required and at his sole expense for docking and undocking the various steamers coming under this contract.

'There is to be no extra charge for rigging up to start the ship or for taking off hatches and putting them on again whenever required, neither is there to be any charge for handling cargo tents and stages used in discharging and loading.

'In loading and discharging the steamships in question, the stevedore has permission to use the ship's winches, booms, falls and tackle or any other appliances of the ship if he desires so to do, in such condition as he may find them in, on or over the ship's deck, the stevedore furnishing men to run them; but no obligation or undertaking of any sort is assumed by the steamship company or its agents, or is to be implied from such permission to use or from the furnishing by the ship of the necessary steam or otherwise to keep or have such winches, booms, falls and tackle or other appliances or any of them at any time in safe or fit condition for use, or to have any winches, booms, falls and tackle or other appliances in any condition on or over the ship's deck, and this permission shall be construed as a mere license to the stevedore and his men to use at his or their own risk and discretion for the purposes aforesaid, any winch, boom, fall, tackle or other appliance that may happen to be on or over the ship's deck without any responsibility whatever on the part of the steamship company or its agents in respect to the fitness or safety of such winch, boom, fall, tackle or other appliance for such use or its condition in any respect at any time.'

The plaintiff was not a party to this contract and did not know of its existence. Due notice under the employer's liability act was given to the defendant Booth. The superior court directed a verdict in favor of both defendants.

In the absence of any special contract governing the relation between a shipowner and stevedore, it seems to be settled that the hatchway and hatches are not a part of the ways works and machinery of the stevedore. Hyde v. Booth, 188 Mass. 290, 74 N.E. 337; Bamford v. G. H. Hammond Co., 191 Mass. 479, 78 N.E. 115. Hatches are as much a part of the ship as doors are of a house. It is impossible to load or unload her without using them. The defendant Booth could not perform his contract with the other defendant without using them, and taking them off and putting them on is specifically referred to in the contract. But this is not decisive in favor of either of the defendants. It appears that the work of putting on these hatches was being done in the dark late at night. There is nothing to show that this was not the usual way for performing this work, or that the plaintiff assumed the risk of any beyond the ordinary dangers of working without light. Apart from contract, the duty of the defendant shipowner toward a stevedore lawfully at work upon his vessel is the same as that of an employer respecting his apparatus and the permanent constructions with and upon which the laborer is expected to work, even though that laborer may be in the immediate employ of an independent contractor. Hayes v. Philadelphia & Reading Coal & Iron Co., 150 Mass. 457, 23 N.E. 225; Toomey v. Donovan, 158 Mass. 232, 33 N.E. 396; Elliott v. Hall, 15 Q. B. D. 315; Moynihan v. King's Windsor Cement Dry Mortar Co., 168 Mass. 450, 47 N.E. 425. Such duty is commensurate only with the scope of the invitation extended to the laborer which is simply to use the ship and its appurtenances as they then are and does not require improvements or changes, which would make conditions of labor safer. As was said in Sullivan v. New Bedford Gas & Edison Light Co., 190 Mass. 288, at page 292, 76 N.E. 1048, 1050: 'The employé as matter of contract assumes all obvious risks incident to the use...