Hartman v. Toyo Kisen Kaisha S.S. Co.

• Decision Date: 06 August 1917
• Docket Number: 15877.
• Parties: HARTMAN v. TOYO KISEN KAISHA S.S. CO.
• Court: U.S. District Court — Northern District of California

244 F. 567

HARTMAN v. TOYO KISEN KAISHA S.S. CO.

No. 15877.

United States District Court, N.D. California, Southern Division.

August 6, 1917

Edgar D. Peixotto, of San Francisco, Cal., for plaintiff.

Samuel Knight, of San Francisco, Cal., for defendant.

VAN FLEET, District Judge.

This is an action to recover for personal injuries alleged to have been suffered by plaintiff while in defendant's employment, through the negligence of those for whom it is claimed defendant is responsible. A jury was waived, and the action tried to the court.

Plaintiff at the time of the injury was employed as a barber on the Shinyo Maru, one of defendant's liners plying between Japanese and American ports, the vessel being on the particular occasion in the port of Nagasaki. At that port where conditions are such that steamers do not lay at the bund or wharf, but out in midstream, defendant had a contract with Holme, Ringer & Co., a steamship agency, part of whose business was the operation of launches for the transportation of passengers and crews of vessels to and from the shore, to perform such service on their behalf, and this was the exclusive means afforded for the purpose.

On the day of the accident, plaintiff had been ashore on leave, for purposes of his own, and in due time was returning to the vessel; when he reached the bund he found that a large launch usually employed in the transportation was absent on other work, and he was taken out to the steamer on a smaller one in charge of employes of the same agency. In attempting to board the ship, the sea being somewhat choppy, he was thrown down and injured, having his leg broken.

At the conclusion of the oral argument, in giving counsel leave to file briefs, the court stated that there were but two questions of law giving rise to any doubt in its mind as to the way the judgment should go: First, whether, as claimed by defendant, the demand was one falling within the Workmen's Compensation Act of the state as affording the exclusive remedy; and, second, whether, under the circumstances disclosed, the defendant was responsible for the negligence of the employes of Holme, Ringer & Co. through whose instrumentality the injury occurred. And as to the evidence the court at the same time stated:

'I can state in a very few words my views as to what the evidence shows: I think that the court must find, under the facts, that there was a negligent handling of this boat this launch, at the time of the injury; that is, that the plaintiff's injury was caused by negligence. I do not think the circumstances are such as to show contributory negligence in plaintiff, as claimed; it does not appear that he was not justified in endeavoring to board the steamer in the manner he did and which resulted in his injury; in other words, the situation was not such as to advertise to an ordinarily reasonable man that there was any extra hazard in his attempt to board the steamer at the time. I think that the duty rested upon whoever was responsible for the management of the launch to so handle it as to afford reasonable opportunity to the plaintiff to safely land upon the gangway of the vessel. I think, moreover, that under the evidence the plaintiff was quite within his rights and within the protection of his contract of employment, in going ashore and returning to the vessel on the occasion in question. Whether he went for his own personal ends, as seems to be conceded, or on an errand for the ship, makes no difference under the circumstances. It is a matter of common knowledge that it is customary on all vessels coming into port, unless under exceptional circumstances, that those employed aboard are, on proper occasions, permitted to go ashore; and that privilege does not ordinarily take them out of the terms of their employment. Of course, if they go without leave or engage while absent in something which is wholly apart from anything connected with their service, and receive injury, that is a different thing; but if an employe of a ship is permitted to go ashore, as this plaintiff was, under proper conditions, and for a proper purpose, and in due course returns to the ship, and is injured, under circumstances and in a manner such as here shown, I think it entirely too narrow a view to say that he is acting merely on his own personal responsibility and without the protecting terms of his contract.

'Furthermore, the evidence satisfies me that the plaintiff, in returning to the steamer, was entirely within his rights in taking passage on board this small launch, as to which some question is made. The evidence shows without any serious conflict that this was not the only instance in which the small launch was used for a like purpose, but that it was so used in many other instances when the larger launch was not available. The agent was under contract with the defendant to furnish means of communication back and forth between the pier and steamer, the situation being such in that harbor, as stated, that there could be no approach of liners of this draught to the wharf, but where they had to seek an anchorage and maintain communication with the shore by means of launches, the contract called upon Holme, Ringer & Co. to furnish that medium of communication, and I have no doubt that under the law the use of that small launch for such purpose should be held to have been entirely within the terms of the contract between the parties. The defendant held out to its employes aboard the ship that they were to use the means of transportation thus afforded; and if the circumstances are such under the law as to make the employes of Holme, Ringer & Co. the employes pro hac vice of the defendant, then, of course, the defendant would be responsible for the negligence of those in charge of the launch. I am satisfied that, had due precautions been taken in the handling of the launch, plaintiff, like the other two men who were aboard, could have landed safely, and this want of care seems to me to have arisen either in one of the men managing the launch not handling his boat hook as he should, or a failure to have some one on the gangway of the steamer with a hook or other proper means to aid in holding the small craft in a safe position while the landing was being effected. That being the means furnished by the defendant for the purpose for which it was being used, a due regard for the safety of its employes would have dictated the necessity, especially in view of the somewhat rough character of the water, of having a man on the gangway with some appropriate means to aid in holding the launch while those on board were being taken off.

'Accordingly my judgment is, as before suggested, that the circumstances here are such as to warrant the court in finding that there was negligence on the part of those handling the small boat which proximately caused the injury, and the question I wish to examine more definitely in this connection is as to where responsibility for such negligence rests. If the defendant is to be held responsible for the management of the launch, as I am inclined to think it is, then, of course, the plaintiff has a right of recovery. What that recovery should be, since I am not ready to decide the case definitely, by reason of the legal questions suggested, I will determine should I reach the conclusion that the defendant is legally responsible.'

The views thus expressed upon the evidence have not been modified by my further consideration of the case, nor do I deem it necessary to add to them.

As concerns the questions of law reserved.

1. The contention that plaintiff's claim is within the Workmen's Compensation Act of the state (St. 1913, p 279), and that jurisdiction accordingly rests exclusively with the Industrial Accident Commission, has been settled adversely to defendant, since this case was submitted, in the very recent case of Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 Sup.Ct. 524, 61 L.Ed. 1086. In that case it was sought to uphold an award under the Workmen's Compensation Act of New York (Consol. Laws, c. 67) for an injury received in a maritime transaction, as against the objection that that act had...