Gallagher v. United States Lines Co.
| Decision Date | 06 July 1953 |
| Docket Number | No. 281,Docket 22719.,281 |
| Citation | 206 F.2d 177 |
| Parties | GALLAGHER v. UNITED STATES LINES CO. (T. HOGAN & SONS, Inc., third party defendant). |
| Court | U.S. Court of Appeals — Second Circuit |
Kirlin, Campbell & Keating, New York City, Raymond Parmer and Vernon Sims Jones, New York City, of counsel, for United States Lines Co., defendant and third-party plaintiff-appellant.
Levine, Baker & Heiberger, New York City, Moe Levine and Jack Steinman, New York City, of counsel, for Julia Gallagher, as adm'x of Estate of James Gallagher, deceased, plaintiff-appellee.
Bleakley, Platt, Gilchrist & Walker, New York City, Frank A. Fritz, John B. Forrest and Cyril Crimmins, New York City, of counsel, for T. Hogan & Sons, Inc., third party defendant-appellee.
Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.
The decedent James Gallagher1 was a longshoreman employed by the third party defendant T. Hogan & Sons, Inc. (hereafter referred to as Hogan). On the date of his injury July 10, 1950, Gallagher had been assigned by Hogan to assist in the unloading of cargo from one of the ships owned by the defendant United States Lines Company (hereafter referred to as United). Hogan was an independent contractor hired by United pursuant to the terms of a written contract to discharge cargo from its ships. Gallagher suffered the injuries for which he sued when he was struck by a bale of scrap rope that had fallen from an airplane skid belonging to Hogan which was being used to unload the cargo. The jury's finding in answer to special interrogatories that the airplane skid was not a reasonably safe piece of equipment for handling the baled scrap rope is not disputed on this appeal. The further finding by the jury that Gallagher was free from contributory negligence is also not contested. There was no claim that the vessel and its appliances were in any way unseaworthy or defective.
The parties stipulated that "United States Lines Company did not supervise T. Hogan & Sons, Inc., or any of its employees in the performance of any of T. Hogan & Sons, Inc.'s stevedoring activities, but relied, for the proper performance of the stevedoring work in all its details, on the performance by T. Hogan & Sons, Inc. of its contractual obligation to the United States Lines Company," but that if there had been such supervision it would have been possible for United to have directed the use by Hogan of some other method to discharge the baled scrap rope.
Federal jurisdiction was invoked on the ground of diversity of citizenship. The first trial before Judge Weinfeld resulted in a disagreement among the jurors. On a second trial before Judge Edelstein, the jury, in response to special interrogatories, found, inter alia, that United failed to exercise reasonable care when it did not prevent the use of the airplane skid by Hogan, and returned a verdict of $250,000. The jury also found that Hogan's negligence in providing the skid did not differ in quality from United's negligence so that the latter's negligence was not "secondary." United's third party compaint against Hogan was therefore dismissed. (Hogan's individual liability is governed exclusively by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq.). United has appealed, contending that it owed no duty to Gallagher, and that if it did, Hogan is liable over to it, since Hogan's negligence was "primary" as a matter of law. In view of our disposition of this appeal only the first point need be considered.
In the three year contract between United and itself, Hogan promised to load and discharge all cargo, and that it would furnish all necessary equipment and manpower. Paragraph eleven provided for the handling of the loading operations by Hogan "in the order directed by and manner satisfactory to the Owner." In addition it read: "The Contractor Hogan performing any service required by this contract shall use such equipment approved by the Owner as is best adapted for the proper and safe...
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