Mystic Terminal Co. v. Thibeault, 3514.
| Decision Date | 18 January 1940 |
| Docket Number | No. 3514.,3514. |
| Citation | 108 F.2d 813 |
| Parties | MYSTIC TERMINAL CO. v. THIBEAULT et al. |
| Court | U.S. Court of Appeals — First Circuit |
Francis P. Garland and Hurlburt, Jones, Hall & Bickford, all of Boston, Mass., for appellant.
Harry Kisloff, of Boston, Mass., for appellee Thibeault.
Albert T. Gould, Howard F. Fanning, and Bingham, Dana & Gould, all of Boston, Mass., for appellee Boston Towboat Co.
Before WILSON and MAGRUDER, Circuit Judges, and PETERS, District Judge.
This is an appeal from an interlocutory decree in admiralty, determining the rights and liabilities of the parties, taken under authority of U.S.C., Title 28, Section 227, as amended, 28 U.S.C.A. § 227.
The District Court held respondent, The Mystic Terminal Company, liable for injuries sustained by the libellant when he stepped through the roof of a carfloat operated by that company while being taken by a tug, on which he was a mate, to be placed alongside a vessel in Boston Harbor.
The court held that the libellant was in the place where he got hurt by implied invitation of the Terminal Company, which, at the time, was subject to the liability of an owner, and that the accident was due to the failure of the duty of the Company to furnish a reasonably safe place in which to work or to warn the workmen of its insufficiency.
The Terminal Company maintains that the evidence does not warrant a conclusion that the libellant was invited to be upon the place where the accident occurred and that there was no breach of duty owed a mere licensee.
Unless the court erred in holding that the libellant was an invitee upon the roof of the carfloat its decree should be sustained.
The evidence involved no dispute of any consequence. It appears that the float was a long scow carrying freight cars and had to be moved about the harbor by a tug. There were two tracks on the float running lengthwise of the craft with a capacity of four cars on each track. Between the tracks, also running the length of the float, was a loading-platform covered by a nearly flat wooden roof, of such a height from the deck that it came about on a level with the tops of the freight cars when in position on the float, the roof occupying most of the space between them, a width of about seven feet. The roof was made of 7/8 inch matched boards with battens of the same thickness, amply strong, when sound, to hold a man walking on it.
At the place of the accident the roof was unsafe owing to the rotting of the boards, a condition discoverable on proper inspection by an owner or operator, for lack of which the operator here was properly held liable to the libellant, unless he was a mere licensee when upon the roof. Conley v. Consolidation Coastwise Co., D.C., 242 F. 591. The Illinois, D.C., 63 F. 161. Burrell v. Fleming, 5 Cir., 109 F. 489.
As to the point made by respondent that libellant was a mere licensee, it is clear from the evidence that in handling the loaded carfloat with a towboat it is necessary for a member of the crew of the tug to be on the roofs of the cars and to cross...
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