Pioneer S.S. Co. v. McCann

• Decision Date: 15 May 1909
• Docket Number: 1,880,1,934.
• Citation: 170 F. 873
• Parties: PIONEER S.S. CO. v. McCANN. McCANN v. PIONEER S.S. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

170 F. 873

PIONEER S.S. CO. v. McCANN.

McCANN v. PIONEER S.S. CO.

Nos. 1,880, 1,934.

United States Court of Appeals, Sixth Circuit.

May 15, 1909

Libelant McCann, claims to have received personal injuries through negligence of the owners and master of the steamship William Payne, for which he seeks to recover $20,000. The Pioneer Steamship Company appeared and executed the usual bond as owner of the ship and filed answer.

The libel avers, and the answer admits, that on August 21, 1905 the ship was lying alongside the Cleveland & Pittsburg Dock in the harbor of Cleveland, for the purpose of unloading ore from her holds, and that libelant was one of a number of longshoremen employed to assist in taking the ore out of the vessel; that the ore was removed from the hold of the vessel by means of an immense clam-shell bucket, known as a grabber which had wide and distended jaws, and when lowered could be made to swing around in the hold; that the jaws of the clam are forced into the ore and closed, and the grabber is then lifted by a hoisting appliance and the ore so removed from the hold; that libelant, with others, was to shovel the ore so as to bring it within the reach of the grabber.

Issue was joined upon averment and denial as to whether the ship afforded a place of safety for libelant to stand when the grabber was lowered into the hold, and whether the place in which libelant sought safety and met with his injury was where his employment called him. In this way two issues of fact were presented; one of negligence of the ship, and the other of contributory negligence of libelant.

The case was tried to the court upon deposition and some oral testimony, and resulted in findings that there was negligence on the part of those in charge of the vessel, and that libelant was guilty of some contributory negligence; and, under the rule in admiralty, a recovery of $3,000 was allowed libelant.

Two appeals are prosecuted; one by the appellant, the Pioneer Steamship Company, from the whole decree except the finding against libelant, and the other by the libelant so far as he was found guilty of some contributory negligence and limited in recovery to $3,000.

According to averments of the libel, and the evidence, the ship Payne was in some respects of unusual design. At a distance of from 8 to 10 feet aft of the usual dunnage room was a partition athwart the ship called a 'false bulkhead,' which was designed to prevent the cargo of the forward compartment from extending under the dunnage room and into the forward part of the ship. The space thus left extended from port side to starboard side, and from the deck to the bottom of the ship. On each side was a place called a 'shelf.' Libelant fell from the shelf on the starboard side. In the false bulkhead, about 13 inches above and over this shelf, was an opening with oval top and bottom some 42 inches in height, and for a portion of its height about 22 inches in width. This opening was furnished with door and latch. There was also an opening and a door over the shelf at the dunnage room, the shelf being the top of the tank and extending along the side and the length of the ship.

There was no railing or other device at the inner edge of the shelf between the false bulkhead and the dunnage room, and no light, artificial or otherwise, was furnished for the guidance of persons passing through these doors and along this shelf between then. The space was dark. The inner edge of the shelf was nearly if not quite on a line with the inner side of the opening leading to the shelf. The main difference between this ship and the ordinary ship, so far as important here, was the existence of this unprotected shelf and dark space.

The object of the doors, as claimed on behalf of the shipowner, was to enable members of the crew to enter the forward cargo hold for purposes of repair or other attention to appliances carried along the shelf. It appears that there are openings called 'Manholes' through the portions of the ship's arches, which come into contact with or are very close to the top of the shelf. Description of the port side is omitted.

Cargoes are loaded and unloaded through hatches opening into the cargo compartments. There were three of these compartments and libelant's work at the time of the accident was in No. 1, forward; that is, the one next to the false bulkhead. The means provided for entering this compartment, aside from the way along the shelf, before described, were a scuttle at its top and a ladder leading thence perpendicularly along the center of the false bulkhead to the bottom. From a point in the ladder opposite to the top of the shelf, a plank with railing was extended as a footway from the ladder to the shelf near the opening above described in the false bulkhead above the shelf. This bulkhead was about seven feet forward of the hatch of compartment No. 1. One of the arches before described was between this hatch and the false bulkhead. It was claimed by libelant that this false bulkhead with the opening through it at the end of the plankway had an appearance, then usual in ships, of an entrance directly into the dunnage room, a place of safety.

Arrangement had been made between the ship and an independent contractor for unloading the cargo at the dock. Libelant, with other stevedores, was an employe of this independent contractor. At the time of the accident, libelant had passed down the ladder and reached the plankway when the grabber was being lowered through the forward hatch. Libelant's claim is that the grabber was swaying so that he became frightened, and, believing the aforesaid opening over the shelf through the false bulkhead led to the dunnage room, he entered the opening and fell to the bottom of the ship.

T. S. Dunlap, for Hugh McCann.

H. D. Goulder and F. L. Leckie, for Steamship Co.

Before LURTON and WARRINGTON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

So far as concerns the assignments of error made on behalf of the shipowner, they must depend upon the nature and extent of its duty to libelant.

In Gerrity v. The Kate Cann (D.C.) 2 Fed. 241, libelant had been employed by an independent contractor to trim grain in the hold of the ship. At the time of his injury he was sitting in the between-decks, his work having been suspended. While sitting there, a quantity of dunnage and planks which had been stowed by the crew fell upon him. Benedict, District Judge, said (page 246):

'In regard to the presence of the libelant in the between-decks, the evidence shows that he was not there by the mere sufferance or license of the shipowner, but for the purpose of performing a service that could not be performed elsewhere, and in which the shipowner had an interest. To be sure, the libelant was not directly employed by the shipowner, and it may be truly said that no relation by contract existed between the shipowner and the libelant. But the libelant was trimming the shipowner's ship. He was doing what was necessary to be done to enable the ship to carry the cargo in safety, and the reason why he was so employed was because the shipowner had, by a contract with the charterer, indirectly provided for the performance of this service. * * * The libelant had, therefore, a right to be where he was; and it follows that there was a duty on the part of the owner to see to it that the dunnage and plank stowed above him was so secured as to prevent its falling upon him of its own weight. Nicholson v. Erie R.R., 43 N.Y. 533.'

Citing, also (page 247) Smith v. Dock Co., 3 L.R.C.P. 326; Indemaux v. Dawes, 2 L.R.C.P. 311.

The decision was affirmed by Blatchford, Circuit Judge, 8 F. 719, the learned judge saying:

'I am entirely satisfied with the conclusions arrived at by the District Judge in this case, and with the reason assigned by him therefor in his decision.'

In The Rheola (C.C.) 19 F. 926, libelant was employed by a master stevedore to discharge cargo. While at his work in the lower hold, a chain carrying a tub furnished by the ship broke, from which the injuries were received. Wallace, Judge, said (page 927):

'Libelant was performing a service in which the shipowners had an interest, and which they contemplated would be performed by the use of appliances which they had agreed to provide. They were under the same obligations to him not to expose him to unnecessary danger that they were under to the master stevedore, his employer. * * * What would be negligence toward one would be towards the other. Coughtry v. Globe Co., 56 N.Y. 124, 15 Am.Rep. 387; Mulchey v. Methodist Society, 125 Mass. 487.'

In The Jos. B. Thomas, 86 F. 658, 30 C.C.A. 333, 46 L.R.A. 58 (9), libelant was an employe of a stevedore who was loading the vessel under a contract with the owners, and while in the lower hold libelant suffered injuries from the falling of a keg placed in a dangerous position by an employe of the ship and knocked over by a co-employe of libelant. It was held that the placing of the keg in the dangerous position was the proximate cause, and was a breach of the shipowner's duty to provide a safe place for libelant. Hawley, District Judge, speaking for the court (86 F. 660 (30 C.C.A. 333, 46 L.R.A. 58)) said:

'What duty did appellants owe to appellee? Their duty was to provide him a safe place in which to work, and to exercise ordinary and due diligence and care in keeping the premises reasonably secure against injury or danger. This is the pith and substance of all the decisions upon this subject, as expressed in a great variety of cases, each having reference to the special facts and surroundings of the evidence relating thereto.'

Among the decisions thus alluded to by the Court of Appeals was Leathers v. Blessing,...