Halecki v. UNITED NEW YORK AND NEW JERSEY, ETC.

• Decision Date: 22 July 1960
• Docket Number: No. 329,Docket 26069.,329
• Citation: 282 F.2d 137
• Parties: Anna HALECKI, Administratrix ad Prosequendum of the Estate of Walter Joseph Halecki, deceased, and Anna Halecki, Administratrix of the Estate of Walter Joseph Halecki, deceased, Plaintiff-Appellant, v. UNITED NEW YORK AND NEW JERSEY SANDY HOOK PILOTS ASSOCIATION, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

282 F.2d 137 (1960)

Anna HALECKI, Administratrix ad Prosequendum of the Estate of Walter Joseph Halecki, deceased, and Anna Halecki, Administratrix of the Estate of Walter Joseph Halecki, deceased, Plaintiff-Appellant, v. UNITED NEW YORK AND NEW JERSEY SANDY HOOK PILOTS ASSOCIATION, a corporation, Defendant-Appellee.

No. 329, Docket 26069.

United States Court of Appeals Second Circuit.

Argued May 11, 1960.

Decided July 22, 1960.

Bernard Chazen, Hoboken, N. J. (Nathan Baker and Milton Garber, Hoboken, N. J., on the brief), for plaintiff-appellant.

Lawrence J. Mahoney, New York City (Dougherty, Ryan & Mahoney and Thomas J. Short, New York City, on the brief), for defendant-appellee.

Before CLARK, MOORE and FRIENDLY, Circuit Judges.

MOORE, Circuit Judge.

This case now comes before us on appeal for the second time. The first trial resulted in a jury verdict for the plaintiff. The complaint was based upon two counts, negligence and unseaworthiness. Upon appeal the judgment was affirmed, Chief Judge Lumbard dissenting as to unseaworthiness and contributory negligence (251 F.2d 708). Certiorari was granted by the Supreme Court (357 U.S. 903, 78 S.Ct. 1149, 2 L.Ed.2d 1154). That Court vacated and remanded upon the ground that the decedent was not performing the type of work which entitled him to a warranty of seaworthiness (358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541). Upon the second trial (restricted to negligence), the jury returned a verdict for the defendant. Appellant claims that the jury's determination was the result of an erroneous statement of the law by the trial court in its charge and a failure to inform the jury of applicable principles set forth in the opinions of this court and the Supreme Court on the previous appeals.

Plaintiff on the retrial attempted to fortify her position to the effect that the work done by the deceased was traditionally performed by seamen. The trial court, however, ruled that the essential facts were the same as on the first trial and, relying on the Supreme Court's rejection of the warranty of seaworthiness contention, refused to send this question to the jury. With this decision we agree. The case was thus submitted solely on the negligence count.

Although an end of litigation is desirable, our system demands its continuance until the courts are satisfied that the issues have been resolved by the jury upon a correct exposition of the law. Our task, therefore, is to compare the trial court's charge upon which the jury is presumed to have relied during its deliberations with the applicable law.

Repetition of the facts, set forth with clarity in 251 F.2d 708 and 358 U.S. 613, 79 S.Ct. 517, is not required beyond the reminder that the defendant owner of the "New Jersey" entrusted its ship for annual overhaul to Rodermond Industries. One of the specified items was a cleaning of the generators by spraying them with carbon tetrachloride, the fumes of which unless carefully controlled can be deadly. Rodermond, not equipped to do this work, subcontracted it to K & S Electric Company of which the decedent was an employee. The generators were located in the engine room, one deck below the main deck. Because of the danger the work was assigned to a Saturday when the crew was absent. The equipment was brought on board by the decedent and another K & S electrician. It consisted primarily of gas masks, air hoses for spray and exhaust and a high compression blower. In addition, the ship had its own ventilating system in operation by which air was drawn in by fans and vents at the top of the engine room. The spraying was exclusively within the control of the two K & S electricians. No officer or crew member from the ship was present except a single watchman on deck. Despite the precautions taken, the decedent within two weeks died of carbon tetrachloride poisoning. There was testimony that the ventilating means provided were adequate to carry off only a fraction of the deadly fumes.

The questions arise: was the ship owner negligent and what criteria are to be considered in making this determination? This court on the first appeal said, "As to the claim based on negligence, * * * the shipowner was liable, not only for the negligence of the master² but, although the work was let out to a subcontractor, also for any lack of `reasonable care to ascertain the methods and manner in which the concessionaire or independent contractor carries on his activities, not only at the time when the concession is let, or the contractor employed, but also during the entire period in which the concessionaire or contractor carries on his activities.'<sup>3</sup> Being charged with knowledge that so dangerous a substance as tetrachloride might be used, it was proper to leave to the jury whether the `methods and manner' of its use were proper" (251 F.2d 708, 711).

Upon appeal, the Supreme Court found that decedent's work was that "of a specialist, requiring special skill and special equipment — portable blowers, air hoses, gas masks, and tanks of carbon tetrachloride, all brought aboard the vessel for this special purpose, and none connected with a ship's seagoing operations" (358 U.S. 613, 617, 79 S.Ct. 517, 519). Despite the complete independence of the spraying operation from normal activities of a ship's crew and the assumption of control by an independent specialist with respect to method and equipment, both this court and the Supreme Court agreed that as to the claim based on negligence there was an issue which could be decided only by a verdict. The Supreme Court furnished a more specific guide in saying, "The defendants owed a duty of exercising reasonable care for the safety of the decedent. They were charged with knowledge that carbon tetrachloride was to be used in the confined spaces of the engine room. It was for the triers of fact to determine whether the defendants were responsibly negligent in permitting or authorizing the method and manner of its use" (358 U.S. 613, 618-619, 79 S.Ct. 517, 520).

At the end of the second trial the court was requested by the plaintiff to charge the jury in these very words but the court refused, saying in part, "I don't believe that that is the fundamental issue in the case, in the factual situation which has developed at this trial. The question is who was in control of this work that was being done?" A trial judge is, of course, not required to deliver his instructions as to the law either in the specific words requested by the parties or in the exact language of any opinion. However, the substance of the applicable law must be stated so that the facts may be applied thereto. Examining the charge to this end, we find that the jury was told that the decedent "was entitled to a reasonably safe place to work"; that "The extent of a ship owner's duty is largely determined by the facts and circumstances, including the nature of the work to be done, the degree of control relinquished by the owner to a responsible contractor, and knowledge or the reasonable possibility of acquiring knowledge of an unsafe condition"; that "If the owner had the power to control the manner of performing the work in which the carelessness occurred, then the owner might be liable"; that a general ability to control "does not make the owner liable for the negligence of a subcontractor"; and that "Where a ship owner surrenders control of part of the ship to an independent contractor, the duty with respect to the surrendered part then becomes the duty of the subcontractor. The owner would not be responsible for an unsafe condition thereafter created by the subcontractor."

The factual issue centered around the adequacy of the ventilation in the engine room to carry off the fumes. The court advised the jury that "there was no proof that the officers of the ship or the officers of the defendant corporation had anything to do with placing the ventilating equipment on the ship" and "If the officers of the ship, or of the defendant, had supervised this work, then there might have been a duty upon them. However, the evidence is undisputed that they did not supervise...