Luckenbach SS Co. v. Buzynski

• Decision Date: 02 June 1927
• Docket Number: No. 4786.,4786.
• Citation: 19 F.2d 871
• Parties: LUCKENBACH S. S. CO., Inc., et al. v. BUZYNSKI.
• Court: U.S. Court of Appeals — Fifth Circuit

19 F.2d 871 (1927)

LUCKENBACH S. S. CO., Inc., et al. v. BUZYNSKI.^*

No. 4786.

Circuit Court of Appeals, Fifth Circuit.

June 2, 1927.

J. Newton Rayzor, of Houston, Tex. (Lockhart, Hughes, Lockhart & Rayzor, of Galveston, Tex., on the brief), for appellants.

W. E. Price, of Galveston, Tex. (D. B. MacInerney, of Galveston, Tex., on the brief), for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Appellee, Karl Buzynski, filed a libel against the Luckenbach Steamship Company, hereafter called the Steamship Company, owner of the steamship Edgar F. Luckenbach, against William Parr & Co., agents of the Steamship Company, and against the Texas Contracting Company, contracting stevedores, hereafter called the Contracting Company, to recover damages for personal injuries suffered while working as a longshoreman on the said ship in the port of Galveston.

Buzynski was employed by the Contracting Company, an independent contractor engaged in loading the ship. The ship's winches were used, the Contracting Company supplying the winchman. On the morning of October 25, 1924, just after he had started to work, and while he was engaged with a number of other men in removing the hatch covers from No. 3 hatch on the said ship, without warning, a chain sling, or bridle, weighing about 40 pounds, fell from aloft and struck and injured him.

The libel alleged in general terms that respondents were negligent in not providing libelant with a safe place to work and safe equipment to work with, and in failing to keep the same in reasonably safe condition, without specifying wherein the premises were unsafe or the appliances defective. On the trial of the case it developed that the chain which injured libelant fell from the end of the boom of a derrick at No. 3 hatch. The derrick was equipped with a fall rigged with an upper and a lower block. In some way, not shown by direct evidence, the winch to which this fall was connected was put in motion, the blocks jammed at the end of the boom, the lower block upset, the chain came against the mousing of a hook from which it was suspended, the mousing gave way, and the chain dropped.

Libelant contended that the winch was defective, because not fitted with a pin to hold the control lever of the winch in neutral, that the mousing was insufficient and defective, and that the lower block should have been fitted with a shackle, instead of a hook.

The District Court found that the mousing was insufficient, but that this was not the proximate cause of the accident; found that the winch was put in motion because of steam leaking into the cylinders, causing it to start up when no one was in attendance; and held that it was defective in not being fitted with a pin to hold the lever in position. The libel was dismissed as to Wm. Parr & Co., and judgment was entered in solido against the other two respondents in the sum of $12,500, less some $720, paid by the Construction Company to libelant under the provisions of the Texas Workmen's Compensation Law (Vernon's Ann. Civ. St. 1925, arts. 8306-8309).

We agree with the District Court that the mousing was not the proximate cause of the accident. It is shown without dispute that it was the usual mousing and was put on by the foreman of the Contracting Company under the supervision of the mate of the vessel. A mousing is not intended to support any weight. Its purpose is to keep the sling from slipping out of the hook when the tackle is slacked off to release the load after it has landed, and, while it is true that if the block had been fitted with a shackle, instead of a hook, the accident would not have occurred, unless some part of the tackle gave way, for the purpose of doing the work at hand the hook was sufficiently strong and safe. The accident was not such as should have been reasonably anticipated, so as to require the use of a shackle in the exercise of reasonable care.

As libelant was an employee of an independent contractor, the relationship of master and servant did not exist between him and the steamship company. However, it owed him the duty of using reasonable care to furnish him with reasonably safe appliances to work with, suitable to the work being done, and of inspecting these appliances before turning them over to the Contracting Company. If thereafter the appliances became defective through use while in charge of the Contracting Company, it was necessary for notice of that fact to be brought home to the Steamship Company to impress it with liability. Navigazione Alta Italia v. Vale (C. C. A.) 221 F. 413.

On the other hand, the relationship of master and servant did exist as between libelant and the Contracting Company, and they owed him the absolute and nondelegable duty of using reasonable care to provide him with a reasonably safe place to work and reasonably safe appliances to do the work with; but in the exercise of this degree of care the Contracting Company was entitled to rely to some extent upon the duty of the Steamship Company to initially furnish safe appliances. Labatt's Master and Servant, pars. 1055 to 1065.

The winch which caused the accident is described as a typical twin cylinder single drum controlled gear winch. It is operated by a vertical throttle valve, controlled by...