Lester v. United States

• Decision Date: 04 June 1956
• Docket Number: No. 269,Docket 23867.,269
• Citation: 234 F.2d 625
• Parties: Sherwood LESTER, Libelant-Appellant, v. UNITED STATES of America, Respondent-Appellant, and Marine Basin Company, Respondent-Impleaded-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

234 F.2d 625 (1956)

Sherwood LESTER, Libelant-Appellant, v. UNITED STATES of America, Respondent-Appellant, and Marine Basin Company, Respondent-Impleaded-Appellee.

No. 269, Docket 23867.

United States Court of Appeals Second Circuit.

Argued March 14, 1956.

Decided June 4, 1956.

Louis Bloch, New York City (Edward J. Behrens, Gay & Behrens, New York City, of counsel), for libelant-appellant.

Warren E. Burger, Asst. Atty. Gen., Leonard P. Moore, U. S. Atty., Brooklyn, N. Y., Paul A. Sweeney, Leavenworth Colby, John G. Laughlin, Attys., Dept. of Justice, Washington, D. C., for the United States, respondent-appellant.

William S. O'Connor, New York City, for respondent-impleaded-appellee.

Before FRANK, LUMBARD and WATERMAN, Circuit Judges.

WATERMAN, Circuit Judge.

Libelant, Sherwood Lester, instituted this proceeding in admiralty against the United States to recover damages for injuries sustained in a fall from the Q-100, a motor yacht owned and operated by the United States Army. The jurisdiction of the district court rests on the Public Vessels Act, 46 U.S.C.A. § 781 et seq.

The accident occurred on July 15, 1947, at a time when the Q-100 was high and dry in the No. 2 dry dock of Marine Basin Co. On that date the Q-100 was undergoing a general overhaul by Marine Basin preparatory to transfer from service in the New York harbor and adjacent waters to the Great Lakes for the use of the Commanding General and staff of the Fifth Army at Chicago, Illinois. Libelant, who had had six years' experience working on drydocked vessels, was employed by Marine Basin as an assistant electrician. On the morning of the day of the accident he boarded the vessel, went to the pilot house and started work on the running light panel. To determine whether the vessel's running lights were operative, libelant left the pilot house, took three or four steps on the deck aft the pilot house (known as the "trunk top"), lost his footing and fell overboard to the floor of the dry dock. The weather was clear, and, as we shall see, the trial court found that the fall was not caused by the presence of oil, grease or other foreign substance on the trunk top. Thus, libelant, for some unexplained reason fell from an unobstructed and virtually level canvas-covered surface across and past the main deck to the floor of the dry dock below.¹ The fifteen-foot fall fractured both his legs, and as a result his left leg is permanently deformed.

The libel raised issues as to the negligence of government agents and as to the seaworthiness of the vessel. The charges of negligence and unseaworthiness were denied by the United States in its answer, and it was affirmatively alleged that libelant's injuries were caused solely by his own negligence. Pursuant to Admiralty Rule 56, 28 U.S. C.A., the United States petitioned to implead libelant's employer, Marine Basin Co., alleging, inter alia, that Marine Basin had contracted to indemnify and hold harmless the United States against all claims arising or resulting "from the fault, negligence, wrongful act or omission" of Marine Basin or its employees.

Libelant had alleged that his fall from the trunk top roof aft the pilot house was caused by the presence of oil, grease, or other foreign substance. The trial court found that libelant had failed to prove this charge: "The libelant's evidence is devoid of demonstration of any oil, grease or other foreign substance which caused him to fall." No other causative explanation for the fall was advanced by libelant or found by the trial court. The court found, however, that if a 24-inch guard rail had been installed on the main deck bulwark cap rail, as originally provided for in Specification 1.15 of the contract of overhaul, libelant could have grasped it as he fell and thus saved himself from the injurious consequences of his fall. Exonerating libelant of all negligence, the court held that the failure of the United States to install the specified guard rail made the vessel unseaworthy, and awarded libelant $18,000.

With respect to the government's claim against Marine Basin for indemnity, the court found that the decision not to install the guard rail called for by Specification 1.15 was made by a government agent, not by Marine Basin, and that Marine Basin had not been negligent in failing to provide a guard rail or in any other particular. The court, holding that the contract of indemnity was inapplicable in the absence of negligence on the part of Marine Basin, therefore dismissed the impleading petition.

The libelant appeals from the decree on the ground that the recovery is inadequate; and the United States cross-appeals, asserting that the trial court erred in determining that libelant was not contributorily negligent, that the Q-100 was unseaworthy, and that Marine Basin was not obligated to indemnify the United States. Since we hold, on the basis of the undisputed facts and the facts found by the trial court, that the Q-100 was not unseaworthy, it will be unnecessary for us to consider the questions relating to damages and indemnification.

The trial court's conclusion that the Q-100 was unseaworthy because of the absence of a guard rail extending above the bulwark on the main deck was based entirely on the following reasoning: (a) the inclusion of a specification in the contract of overhaul, calling for the installation by Marine Basin of a 24-inch brass guard rail on the main deck bulwark, established that such a guard rail was necessary in order to make the vessel seaworthy; and (b) the absence of such a rail on the day of the accident was due to failure of the United States to adhere to the contract specification and was causally connected to libelant's injuries, since "the rail as contracted for in the quoted specification would have been available to libelant in the effort to save himself from going overside."² With the inferences of fact contained in (b) we have no quarrel, since we are mindful of the broad latitude accorded the trier of fact in determining facts and in drawing inferences as to a causal relation.³ Therefore, we accept the trial court's finding that the decision to abandon the installation of the specified guard rail was made by a government agent, and its causal inference that if the rail had been installed by the time of accident, libelant would have been able to grasp it as he fell from the trunk top above, thus saving himself from the serious consequences of his fall. But we are unable to agree with the trial court's conclusion that the presence of a specification in an overhaul contract, calling for the installation of certain guard rails, was determinative of the question whether such rails were necessary in order to make the vessel reasonably fit for the purpose for which it was then being used.

The seaworthiness of a ship, her equipment and appurtenance is a relative concept, dependent in each instance upon the circumstances in which its fitness is drawn in question. Thus in this case the crucial consideration is whether, in view of all the circumstances attending libelant's fall and the status of the Q-100 at the time, the Q-100 was, in all respects pertinent to the injury, reasonably fit to permit libelant to perform his task aboard the ship with reasonable safety.

The trial court erred in disregarding these considerations. It stated that Specification 1.15 in the overhaul contract between the United States and Marine Basin, calling for the installation of a hand rail, constituted a "recognition by the Government of the necessity of this element of protection to those on board the vessel, * * *" — in effect treating the inclusion of this specification as an admission by the United States that the vessel was unseaworthy without such a rail. We think it likely that the installation of a guard rail was desired because the United States Army thought such an improvement would be useful or necessary for the anticipated service of the Q-100 on the Great Lakes; but it is unnecessary to engage in conjecture concerning what the United States had in mind. Regardless of the possible past or future unseaworthiness of the Q-100 while in active service in the New York harbor or on the Great Lakes, because of its lack of main deck guard rails, the question involved in this case was whether the Q-100 was unseaworthy, because of the lack of such guard rails, as to those on board the vessel when she was in dry dock undergoing repair. Improvements undertaken by a shipowner do not constitute an implied admission that, without such improvement, the vessel is structurally defective and unseaworthy, particularly when the question involved is the unseaworthiness of the vessel while in dry dock and with respect to persons who, it is contemplated, will effect the improvement.

We do not think that the United States was under any obligation to provide the Q-100 with main deck guard railings against the remote possibility that an experienced dry dock worker such as libelant would fall from the trunk top roof some 18 to 24 inches above the main deck. Admittedly the absence of such guard railings might constitute unseaworthiness for some of the purposes to which the vessel was to be put;⁴ but this does not mean that they were necessary to make the vessel seaworthy while it was motionless in a dry dock. Although the doctrine of seaworthiness has been extended in recent years to shorebased employees such as libelant, who are injured while working on board a vessel in port,⁵ the measure of liability remains the same as that to seamen at sea: whether the vessel was reasonably fit for the purpose for which she was being used.⁶ In Hanrahan v. Pacific Transport Co., 2 Cir., 1919, 262 F. 951, certiorari denied 252 U.S. 579, 40 S.Ct. 345, 64 L.Ed. 726, we held that a ship which was in port and fast to a pier was not unseaworthy as to a crewman who had fallen overboard from an upper deck because it lacked hand rails: "Seaworthiness is a relative...