McKnight v. NM Paterson & Sons, Limited

• Decision Date: 23 February 1960
• Docket Number: Civ. No. 34787.
• Citation: 181 F. Supp. 434
• Parties: Alonzo McKNIGHT, Plaintiff, v. N. M. PATERSON & SONS, LIMITED, Defendant and Third Party Plaintiff, Nicholson Cleveland Terminal Co., Third Party Defendant.
• Court: U.S. District Court — Northern District of Ohio

181 F. Supp. 434

Alonzo McKNIGHT, Plaintiff, v. N. M. PATERSON & SONS, LIMITED, Defendant and Third Party Plaintiff Nicholson Cleveland Terminal Co., Third Party Defendant.

Civ. No. 34787.

United States District Court N. D. Ohio, E. D.

February 23, 1960.

S. Eldridge Sampliner, Cleveland, Ohio, for plaintiff.

Scott H. Elder of Johnson, Branand & Jaeger, Cleveland, Ohio, was on the brief for defendant and third-party plaintiff.

Clarence L. Mollison of Hauxhurst, Inglis, Sharp & Cull, Cleveland, Ohio, for third-party defendant.

CONNELL, District Judge.

This cause is before the Court on a motion for summary judgment, filed by Paterson and Sons (hereinafter called Paterson), the defendant and third-party plaintiff in the case, against the plaintiff Alonzo McKnight. Since under Fed. Rules Civ.Proc., Rule 56, 28 U.S.C.A., the pleadings, depositions and admissions on file, together with any affidavits, must show that there is no genuine issue of material fact before a summary judgment can be granted, a brief resume of the settled facts, as shown from the record of the case as a whole, is in order.

McKnight, at the time of the alleged injury, was employed as a longshoreman by the Nicholson Cleveland Terminal Company (hereinafter called Nicholson), a stevedoring contractor and the third-party defendant in this case. At the time in question, the plaintiff was working in the hold of Paterson's vessel, the Humberdoc, assisting in unloading newsprint. There is no question that Nicholson was acting as an independent contractor, and that it had complete control and operation of the unloading process being undertaken at that time. The injury to plaintiff, upon which this action is based, was apparently inflicted as a result of being struck by part of the unloading gear being lowered into the ship's hold by means of a shore-based, Nicholson owned and operated crane. Although the original petition filed in the Cuyahoga County Common Pleas court (the case was removed here by Paterson) alleged that the unloading gear which caused plaintiff's injury was owned by Paterson, subsequent pleadings, especially the deposition of McKnight, the affidavit of the crane operator, and plaintiff's supplemental brief in opposition to this motion clearly show this allegation to be mistaken and without merit. In assuming the facts that are most favorable to plaintiff, as is our duty in resolving this motion, the injury may have occurred either because of a defect in the crane itself, or because of the negligence of the Nicholson-employed signalman stationed on the deck of the ship. But in neither event does a question of fact arise concerning the status of either Nicholson or Paterson as to the unloading process in general, and the ownership, control and location of the crane in particular, and thus the undetermined cause of the injury does not create, for our purposes, a material issue of fact.

On the above uncontroverted recitation of fact,¹ the Court is faced with two questions of law: 1) Whether the injury suffered by plaintiff was in any way caused by negligence on the part of the vessel owner through its equipment or employees, and 2) whether the vessel Humberdoc was, at the time of the injury, in an unseaworthy condition, which condition materially caused or contributed to the injury of plaintiff?

We will dispose of the negligence issue first. Although plaintiff, by means of an affidavit attached to his reply brief to this motion, alleged negligence on the part of Paterson in allowing Nicholson, the independent stevedoring contractor, to operate a defective crane, the allegation actually is grounded on unseaworthiness. Although a shipowner is liable in negligence for any lack of reasonable care in ascertaining the methods and manner in which an independent contractor carries on his activities, Halecki v. United N. Y. and N. J. Sandy Hook Pilots Ass'n, 2 Cir., 1958, 251 F.2d 708, vacated and remanded on other grounds, 1959, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541, he has neither the right nor the duty to supervise an independent contractor, or to instruct him as to the instrumentalities and methods adopted in the unloading process. Cornec v. Baltimore & Ohio Ry., 4 Cir., 1931, 48 F.2d 497, cited with approval in Revel v. American Export Lines, D.C.Va.1958, 162 F.Supp. 279, affirmed 4 Cir., 1959, 266 F.2d 82. See also Doll v. Scott Paper Co., 3 Cir., 1937, 91 F.2d 860. Even if the injury were caused because the crane was left uncovered the night before, we cannot conceive that "reasonable care" demands that a vessel owner inspect and operate each piece of equipment of an independent contractor to insure that it is in proper working order before it is used in the actual unloading operation. Certainly the crane was the normal, and perhaps the only (see plaintiff's supplemental brief), equipment suitable for use in unloading this type of cargo, and there is absolutely no indication of anything that should have put Paterson on guard for defective brakes on this or any other crane. Since the only negligence in the operation of the crane is attributable to the plaintiff's employer or to his fellow-employee, the owner of the vessel cannot be held responsible for this negligence. Freitas v. Pacific-Atlantic S. S. Co., 9 Cir., 1955, 218 F.2d 562. See also Harrell v. Lykes Bros. S. S. Co., D.C.E.D.La.1958, 165 F.Supp. 125.

The allegation of unseaworthiness presents a far more complex problem. It cannot now be denied that longshoremen, though employed by an independent contractor, are, when performing the "ship's service", entitled to the same protection against unseaworthiness that members of the crew doing the same work would receive. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S. Ct. 872, 90 L.Ed. 1099. To constitute unseaworthiness, the defect must be in the ship's hull, gear or stowage, and even as to these she need not be perfectly, but only reasonably, fit for service, Grillea v. United States, 2 Cir., 1956, 232 F.2d 919. Certainly the duty of unloading a vessel is one in the ship's service and once McKnight came within the protected class, the vessel could not delegate this protective duty to Nicholson, the independent contractor. Seas Shipping Co. v. Sieracki, supra, 328 U.S. at page 100, 66 S.Ct. at page 880. Additionally, a seaman (or one standing in his shoes) is entitled to indemnification for injury caused by unseaworthiness, not only of the vessel itself in its hull, gear and stowage, but also of the vessel's appurtenant appliances and equipment. Mahnich v. Southern S.S. Co., 1944, 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Imperial Oil, Limited v. Drlik, 6 Cir., 1956, 234 F.2d 4, modifying D.C.N.D.Ohio 1956, 141 F.Supp. 388.

We now turn to what we consider the controlling issue on this motion; i. e., whether the crane and its attached loading gear, if proved defective, will make the Humberdoc unseaworthy so as to hold the vessel and its owner liable to this injured plaintiff. In reaching our decision the court recognizes the fact that although the crane and attached gear were entirely owned and operated by the independent stevedoring contractor, this is not decisive of the question of unseaworthiness. Two recent Supreme Court decisions clearly indicate that a vessel can become unseaworthy even though the equipment making it so was initially brought onto the vessel by an independent contractor without the knowledge of the officers or crew of the vessel, and even though such equipment is expected to remain on the ship only temporarily. See Alaska S.S. Co. v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, affirming per curiam and on the basis of Petterson v. Alaska S.S. Co., 9 Cir., 1953, 205 F.2d 478; Rogers v. United States Lines, 1954, 347 U.S. 984, 74 S.Ct. 849, 98 L. Ed. 1120, reversing per curiam 3 Cir., 1953, 205 F.2d 57.

Although there appear to be no reported cases which contain the identical facts of the instant case (yet the same loading and unloading process must occur countless times during each shipping season), the decisions of federal courts attempting to isolate and define situations wherein the injured employer of an independent stevedoring contractor can proceed against a non-negligent vessel owner as a result of injuries suffered while working on the vessel are numerous. Since the increasing policy of the law is towards liberality in affording the injured longshoreman recourse against the vessel owner,² no decision in this area can be well-considered unless the court examines the more important or landmark decisions to determine whether the case before it falls within the liability pattern as established by these cases, and even though the precise factual situation before the court might afford a basis for departure from the more liberal precedents, a non-conforming decision on the District level would be at best tenuous.

In Petterson v. Alaska S.S. Co., supra, 74 S.Ct. 602, 98 L.Ed. 798. The question before the Court of Appeals was, "whether a vessel's owner is liable for injuries received by an employee of a stevedoring company (an independent contractor) on board ship while engaged in the loading of the ship where the injuries are caused by a breaking block brought on board by the stevedoring company." 205 F.2d at page 478. The block was found lying unused on the vessel, and when used by the longshoreman in its proper and customary manner, it broke, causing the injury.³ The Ninth Circuit held that this fact situation made the vessel unseaworthy, and reversed the district court's finding of seaworthiness. The decision was then affirmed by the Supreme Court, on the basis of the Ninth Circuit's opinion.

In Rogers v. United States Lines, supra, special tub gangs of the stevedoring contractor would use one of the ship's booms, the ship's winches, and a ship's runner on one of the winches, together with the stevedore's...