Pioneer Steamship Company v. Hill

Decision Date23 November 1955
Docket NumberNo. 12374.,12374.
PartiesPIONEER STEAMSHIP COMPANY, Appellant, v. Walter E. HILL, Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Lucian Y. Ray, Cleveland, Ohio (John H. Hanninen, McCreary, Hinslea & Ray, Cleveland, Ohio, on the brief), for appellant.

J. Harold Traverse, Cleveland, Ohio (Victor M. Todia, Cleveland, Ohio, Edward F. McDermott, Cleveland, Ohio, on the brief), for appellee.

Before McALLISTER, MILLER and STEWART, Circuit Judges.

STEWART, Circuit Judge.

Appellee, a shipfitter's helper, injured aboard appellant's vessel "John Stanton" when he fell into a hole cut into the deck of a coal bunker, was awarded a money judgment after trial in the district court with jury waived. The complaint charged both unseaworthiness of the vessel and negligence on the part of appellant, its owner. During the trial, however, the appellee abandoned his right to recover on the ground of unseaworthiness, and the judgment rests upon the district court's finding that appellee's injuries were proximately caused by appellant's negligence. D.C., 134 F.Supp. 366.

The accident occurred during the vessel's winter layup period at Cleveland, Ohio, at a time when its regular officers and crew were not aboard. Appellee was one of several employees of a ship repair contractor engaged in making substantial repairs to the vessel during this period by agreement with the appellant. The hole into which appellee fell had been cut in the bunker some weeks before by his fellow employees for the purpose of facilitating access to an area where repairs were being made. It was located at the end of a ramp leading from the fire hold into the coal bunker in a place that was usually in darkness. It was not guarded in any way. Appellee did not know it was there. He fell into it and was injured on the first morning he came to work aboard the vessel. Only one employee of appellant was present at the time, a "shipkeeper," who lived on board and who was entrusted with general custodial duties with respect to the ship.

If appellant's liability were based upon unseaworthiness of the vessel, the bare facts recited might suffice to support the judgment, assuming no contributory negligence on the part of appellee, because the absolute duty to provide a seaworthy vessel has now been held to be a non-delegable one. Alaska Steamship Co. v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, affirming 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 Rogers v. United States Lines, 3 Cir., 1953, 205 F.2d 57; cf. Poignant v. United States, 2 Cir., 1955, 225 F.2d 595. Moreover, appellee was probably within the broadened class of workers to whom the protection of the seaworthiness doctrine has now been extended. Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 412, 74 S.Ct. 202, 98 L.Ed. 143. But in its present posture this is not an unseaworthiness case. The judgment is based upon appellant's failure to exercise ordinary care. The Supreme Court's recent decisions in the Petterson and Rogers cases, supra, do not, therefore, seem relevant. See Petterson v. Alaska S. S. Co., Inc., 9 Cir., 205 F.2d 478, 480; Berti v. Compagnie de Navigation Cyprien Fabre, 2 Cir., 1954, 213 F.2d 397, 400.

The district judge found as a fact, however, that the appellant, through its shipkeeper, remained in general control of the vessel while the repairs were being made by appellee's employer. The evidence showed that the shipkeeper had had actual knowledge of the existence of the hole in the coal bunker for approximately two weeks, and that he was in a position to see the appellee approach the hole and to warn him of its existence, but failed to do so. The court concluded that the appellant, through its shipkeeper, owed appellee the duty of exercising reasonable care for his safety while at work aboard its vessel, by reason of the general supervision and control of the vessel which it retained during the course of the repair work, and that this duty was violated when the shipkeeper failed to warn the appellee, orally or otherwise, of the existence of the hole in the coal bunker deck. The court further found appellee free of contributory negligence.

The district court's factual inference that appellant retained control of the vessel during the course of the repair work was primarily based upon the court's interpretation of the written "Instructions to Shipkeepers" outlining the duties and responsibilities of the shipkeeper on behalf of the appellant.

Although this is an admiralty case, in which an appeal is still said to be a trial de novo, we are free to disturb this finding of the district court only if it is clearly erroneous. McAllister v. United States, 1954, 348 U.S. 19, 75 S. Ct. 6; United States v. Standard Oil Co. of Kentucky, 6 Cir., 1954, 217 F.2d 539, 540. Cf. Rule 52(a) Federal Rules of Civil Procedure, 28 U.S.C.A. Applying that test, we cannot set aside the district court's crucial...

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  • Universe Tankships v. Pyrate Tank Cleaners
    • United States
    • U.S. District Court — Southern District of New York
    • June 10, 1957
    ...S.Ct. 275, 97 L.Ed. 692; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 409, 411, 74 S.Ct. 202, 98 L.Ed. 143; Pioneer Steamship Co. v. Hill, 6 Cir., 1955, 227 F.2d 262, 264; Cannella v. Lykes Bros. S. S. Co., 2 Cir., 1949, 174 F.2d 794, At all of the material times plaintiff was (and is) ......
  • Petition of Canal Barge Company
    • United States
    • U.S. District Court — Northern District of Mississippi
    • February 26, 1971
    ...pilot of a hazard to navigation of which he had knowledge. Davis v. Parkhill-Goodloe Co., 302 F.2d 489 (5 Cir. 1962); Pioneer S. S. Co. v. Hill, 227 F.2d 262 (6 Cir. 1955); Sylve v. E. W. Gravolet Canning Co., Inc., 278 F.Supp. 669 (c) In failing to instruct his pilot as to the proper metho......
  • Farrell Lines, Inc. v. Devlin, 45
    • United States
    • Maryland Court of Appeals
    • December 11, 1956
    ...brought on board and was being operated by them when it caused the injury, and the ship was held liable. See also Pioneer Steamship Company v. Hill, 6 Cir., 227 F.2d 262. Even when the control of the area doctrine flourished in the Second and Third Circuits, it was decided from time of time......
  • United New York and New Jersey Sandy Hook Pilots Association v. Halecki
    • United States
    • U.S. Supreme Court
    • February 24, 1959
    ...Co., D.C.E.D.La., 156 F.Supp. 652 (plumbing repair contractor's helper carying on home port repairs). See also Pioneer S.S. Co. v. Hill, 6 Cir., 227 F.2d 262, 263 (vessel in winter lay-up; regular officers and crew not aboard; substantial repairs being effected; dictum that a shipfitter's h......
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