Ives v. United States, 337.
| Decision Date | 02 May 1932 |
| Docket Number | No. 337.,337. |
| Parties | IVES v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
William F. Lally, of New York City (L. F. Fish, of New York City, of counsel), for appellant.
Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Frederick H. Cunningham, of New York City, of counsel), for the United States.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
While engaged as a fireman on the S. S. Edenton, appellant made a voyage from New York to Norfolk. The port and starboard ventilators of the fire room were closed and frozen so that they could not be turned. The ventilator turned by means of a reach rod which extended from the fire room to the cowl at deck level, a distance of about 30 feet, at which point the cowl turned on cogs which meshed. At the lower end of the rod was a handle about 15 inches long. The ventilator was turned by pulling or pushing on this handle. The port ventilator could not be turned by the use of the handle. This condition, it is conceded, was known to the chief engineer and other officers of the ship, who promised to have it repaired at Norfolk. The appellant called attention of the second assistant engineer to the condition of the ventilator. Apparently, the term "frozen" means that the ventilator was stuck. Other seamen besides the appellant complained of its condition, and the chief and second assistant engineers admitted knowledge of it. Appellant says that on April 1st, when the ship arrived at Norfolk for a stop of 24 hours, he spoke to the second assistant engineer and asked when the ventilator would be fixed. On April 2d, the ship left Norfolk. Some few days thereafter and in the early morning of April 7th, the fire room was very hot, and appellant again spoke to the second engineer asking when the ventilator would be fixed, and was told, "If you were not so lazy, you would try and fix them yourself and try and get a pipe or something." Immediately thereafter, an oiler came into the fire room and told appellant that the second engineer had sent him to give appellant a hand in turning the ventilator. This oiler suggested getting a pipe, which was procured. He thereupon placed the pipe over the handle, and the oiler and appellant jointly endeavored to force open the port ventilator; the appellant pushing and the oiler pulling the pipe in an effort to turn it. Suddenly the pipe slipped off the handle and sprang back, due to the fact that the torsion which had been exerted on the reach rod was released, striking the appellant in the eye. As a result, he lost the sight of his left eye and the partial sight of his right eye.
The chief engineer testified that he directed the appellant to leave the ventilators alone and not attempt to fix them. But the ship was unseaworthy when she left port with the ventilators in this condition, and the shipowner is responsible and liable for injuries proximately caused thereby. Globe S. S. Co. v. Moss., 245 F. 54 (C. C. A. 6); Patton-Tully Transp. Co. v. Turner, 269 F. 334 (C. C. A. 6). The injury to appellant was due to the use of the pipe in the manner described and to the effort of attempting to turn the ventilator by this means, which would make the ship seaworthy. It was a negligent act to make the repair by attempting to open the ventilator in the manner described and as suggested by the second assistant engineer. With a reach rod as long as this, it should have been foreseen by the appellant's superior that the use of the pipe as described would cause a spring and incur the danger of a torsion of the rod. The leverage with the push and pull thereon would cause it. The nondelegable duty to use due and reasonable care to make and keep the ship...
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