Kunschman v. United States
| Decision Date | 11 January 1932 |
| Docket Number | No. 118.,118. |
| Parties | KUNSCHMAN v. UNITED STATES et al. |
| Court | U.S. Court of Appeals — Second Circuit |
COPYRIGHT MATERIAL OMITTED
Simone N. Gazan, of New York City, for libelant-appellant.
George Z. Medalie, U. S. Atty., of New York City (Frederick H. Cunningham, of New York City, of counsel), for respondents-appellees.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
CHASE, Circuit Judge (after stating the facts as above).
The above-mentioned statute under which this action was brought gives to a seaman, in addition to his rights under the maritime law, new rights and remedies, and also gives his personal representative a cause of action for death. Charles Nelson v. Curtis (C. C. A.) 1 F. (2d) 774. These rights and remedies are those possessed by railway employees and their personal representatives under the laws of the United States. Panama R. R. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748. As this action was brought by the personal representative to recover damages for the death of the seaman, the rights of the parties depend upon the statute and not upon the general maritime law, under which there can be no recovery on a death claim. Western Fuel Co. v. Garcia, 257 U. S. 233, 240, 42 S. Ct. 89, 66 L. Ed. 210; U. S. Shipping Board Emergency Fleet Corporation v. Greenwald, 16 F.(2d) 948 (C. C. A. 2). Consequently, it is not enough to show that the ship was unseaworthy, but it must appear that the death was caused by negligence chargeable in law to the employer. As it fairly appears that Kunschman's death was due to negligence in the construction of the engine which exploded, it remains to be seen whether that negligence is to be attributed to his employer, the owner of the Triumph.
That an engine of the type of the No. 4 would have been safe if there had been no negligence in respect to the air compressor piston, we shall assume for the purposes of this case, although there was a well-supported claim that faulty design in the ventilating system of the crank case contributed to the cause of the accident.
Gibbs & Cox were not independent contractors, but acted for the government to supplement its own force of engineers. Although the defective engine was built by an independent contractor, McIntosh & Seymour Corporation, the selection of the faulty piston was in every real sense the selection of Cook and so that of the libelees. While an owner who lets the construction of an engine to an independent contractor may not be responsible under the doctrine of respondent superior for the negligence of such contractor or his servants, where the owner supervises the work and knows, or should know because of such supervision, that the engine...
To continue reading
Request your trial
-
Burns v. Marine Transport Lines, Inc.
...for unseaworthiness under federal or state law." Accord, de Hyman v. M/V Montego, 1960 AMC 360 (S.D.Fla.1959); see Kunschman v. United States, 54 F.2d 987, 989 (2 Cir. 1932); Halecki v. United New York & New Jersey Sandy Hook Pilots Ass'n, 251 F.2d 708, 712 (2 Cir. 1958) rev'd on other grou......
-
Larry v. Moody
...Washington Fish & Oyster Co., 9 Cir., 138 F.2d 801; American Pacific Whaling Company v. Kristensen, 9 Cir., 93 F.2d 17; Kunschman v. United States, 2 Cir., 54 F.2d 987. Third: A seaman may also recover from an employer for injuries due to unseaworthiness of a vessel at the commencement of a......
-
Lopoczyk v. Chester A. Poling, Inc.
...machinery, * * * or other equipment." Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265; Kunschman v. United States, 2 Cir., 54 F.2d 987; Thunberg v. Panama R. Co., 2 Cir., 139 F.2d 567; Hiltz v. Atlantic Refining Co., 3 Cir., 151 F.2d 159, It is true that here, contr......
-
McGhee v. United States, 77
...264 U.S. 375, 392, 44 S.Ct. 391, 68 L.Ed. 748. 5 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813. 6 278 U.S. 130, 49 S.Ct. 75, 73 L.Ed. 220. 7 2 Cir., 54 F.2d 987. 8 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 9 2 Cir., 60 F.2d 893. 10 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813. 11 2 Cir., 54 F.2d 987. 12 The......