Petterson v. Alaska SS Co. Inc.

• Decision Date: 19 June 1953
• Docket Number: No. 13268.,13268.
• Citation: 205 F.2d 478
• Parties: PETTERSON v. ALASKA S. S. CO., Inc.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F.2d 478 (1953)

PETTERSON v. ALASKA S. S. CO., Inc.

No. 13268.

United States Court of Appeals Ninth Circuit.

June 19, 1953.

John Geisness, Bassett, Geisness & Vance, Seattle, Wash., for appellant.

Bogle, Bogle & Gates, Robert V. Holland, Seattle, Wash., for appellee.

Before DENMAN, Chief Judge, ORR, Circuit Judge, and JAMES M. CARTER, District Judge.

DENMAN, Chief Judge.

This is an appeal in admiralty from a decree of the United States District Court for the Western District of Washington, Northern Division, denying recovery by Petterson, a stevedore, against Alaska Steamship Company, Inc., hereafter the Owner, for injuries received on the Owner's steamship Susitna claimed to be caused by the ship's unseaworthiness. The question presented is 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.

Libellant-Appellant Petterson was an employee of the Alaska Terminal and Stevedoring Co., hereafter Stevedoring Co. Stevedoring Co. was engaged by the Owner to load the latter's vessel, the S. S. Susitna. In performing their duties, Stevedoring Co.'s employees used a block which was found lying unused on the vessel. It is not clear whether the block belonged to the ship or the Stevedoring Co., it being the type of equipment commonly found as part of the gear of both ships and stevedoring firms. For the purposes of this appeal, it will be assumed that it was brought on board by Stevedoring Co. While being put to a proper use in a proper manner, the block broke causing the injuries complained of to Petterson. There was no proof as to the condition of the block prior to its use other than what may be implied from the accident.

The court below granted a decree for the Owner on the ground that it was not shown that the block belonged to or was a part of the gear of the Susitna. Petterson's argument that liability should be imposed even if the gear belonged to the Stevedoring Co. was rejected by the court on the ground that Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, did not go so far.

The Owner contends that as there was no proof of the unseaworthiness of the block, Petterson cannot recover. This contention is without merit. The Court below found that the block was used "in a customary and usual manner" and that it "was of a type ordinarily and customarily used and proper for the use to which it was being put upon the occasion in question." R. 14-15. In admiralty appeals, findings of fact based upon credibility of witnesses who testified in open court will not be set aside. Crowley Launch & Tugboat Co. v. Wilmington Transp. Co., 9 Cir., 117 F.2d 651, 653. But an admiralty appeal is a trial de novo, Olsen v. Alaska Packers Ass'n, 9 Cir., 114 F.2d 364, and this court may make its own inferences from the facts as found where it does not upset the findings based upon the credibility of witnesses. If the block was being put to a proper use in a proper manner, as found by the district judge, it is a logical inference that it would not have broken unless it was defective — that is, unless it was unseaworthy.

In making this inference we do not rely upon the tort doctrine of res ipsa loquitur, although the result is similar. Res ipsa loquitur is a doctrine of causation usually applied in cases of negligence. Here we are dealing with a specie of strict liability regardless of fault. Seas Shipping Co. v. Sieracki, supra, 328 U.S. at page 94, 66 S.Ct. 872. It is not necessary to show, as it is in negligence cases, that the shipowner had complete control of the instrumentality causing the injury, see O'Mara v. Pennsylvania R. Co., 6 Cir., 95 F.2d 762; or that the result would not have occurred unless someone were negligent, see Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490, 78 So. 365. It is only necessary to show that the condition upon which the absolute liability is determined — unseaworthiness — exists. Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. That has been shown here.

Appellee argues that even if the unseaworthiness of the block is shown, it is not liable because control of that portion of the ship upon which Petterson was working had been surrendered to Stevedoring Co. In so contending they rely, as did the court below in its decision, upon the "relinquishment of control" doctrine which has been adopted in the Second and Third Circuits. That doctrine is that a shipowner is under an initial duty to provide a seaworthy ship; but that this duty is a concomitant of control, and the shipowner is not liable for unseaworthiness which arises after control of the ship, or that part which includes the unseaworthy condition, has been surrendered to the stevedores. Mollica v. Compania Sud-Americana, 2 Cir., 202 F.2d 25; Lopez v. American Hawaiian Steamship Lines, 3...