Rainey v. New York & P.S.S. Co.

• Decision Date: 03 August 1914
• Docket Number: 2011.
• Citation: 216 F. 449
• Parties: RAINEY v. NEW YORK & P.S.S. CO., Limited, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

216 F. 449

RAINEY v. NEW YORK & P.S.S. CO., Limited, et al.

No. 2011.

United States Court of Appeals, Ninth Circuit.

August 3, 1914

William H. Gorham, of Seattle, Wash., for appellant.

Hughes McMicken, Dovell & Ramsey and Otto B. Rupp, all of Seattle Wash., for appellees.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

ROSS Circuit Judge.

Subsequent to the filing in the court below of the libel in this case the respective parties thereto entered into this 'Stipulation as to Facts and Dismissal.

'It is hereby stipulated by and between the above-named libelant, W. R. Grace & Co., one of the above-named respondents, and the New York & Pacific Steamship Company, Limited, one of the above-named respondents, heretofore appearing specially and now appearing specially for the purposes of this stipulation, as follows:

'First. That the respondent New York & Pacific Steamship Company, Limited, a corporation of Great Britain, was between the 1st day of August, 1907, and the 25th day of February, 1908, the owner of the British steamship Cacique, mentioned in the libel herein.

'Second. That the respondent W. R. Grace & Co. at all times subsequent to the 1st day of August, 1907, was and still is a corporation organized and existing under the laws of the state of Connecticut and doing a shipping business and maintaining an office in the city of Seattle, state of Washington.

'Third. That at all times between the 1st day of August, 1907, and the 25th day of February, 1908, the respondent W. R. Grace & Co. was the charterer of said steamship Cacique under a charter party from said New York & Pacific Steamship Company, Limited, as owner, whereby, for a valuable consideration, (1) said owner delivered to said charterer the possession, command, and navigation of the entire vessel Cacique aforesaid, for and during the voyage mentioned and described in said libel, and (2) said charterer, as owner pro hac vice, manned (including the hiring and appointment of the master, officers, and crew), equipped, supplied, navigated, and operated said vessel for and during said voyage, assuming all liabilities and making all necessary disbursements therefor, and collecting the earnings of said vessel for and during said voyage for its own proper use and benefit.

'Fourth. That said libel may be dismissed as to the respondent New York & Pacific Steamship Company, Limited, without costs to either party, with prejudice.'

Such dismissal was entered, and the libel thereupon amended. Subsequently a second amended one was filed, to which exceptions were taken by W. R. Grace & Co., and, the libelant declining to further amend, a decree was entered dismissing the libel, from which decree the present appeal was taken.

In substance the second amended libel alleges that the libelant is a citizen and resident of the state of Washington, the widow and sole heir at law of David L. Rainey, deceased, the administratrix of his estate, and sues the said W. R. Grace & Co. for her own benefit to recover damages growing out of the alleged death on the 25th day of February, 1908, at the port of Mollendo, Peru, of the said David L. Rainey, her husband; that the New York & Pacific Steamship Company, Limited, a corporation of Great Britain, was at all times between the 1st day of August, 1907, and the 25th day of February, 1908, the registered owner of the British steamship Cacique, and that at all times subsequent to August 1, 1907, the said W. R. Grace & Co. was, and still is, a corporation duly organized and existing under the laws of the state of Connecticut and doing a shipping business and maintaining an office in the city of Seattle, state of Washington; that at all times between the said 1st day of August, 1907, and February 25, 1908, Grace & Co. was the charterer of the steamship mentioned, under a charter party from the New York & Pacific Steamship Company, Limited, as owner, whereby, for a valuable consideration, the said owner delivered to the charterer the possession, command, and navigation of the entire vessel for and during a voyage 'from the port of Seattle, Wash., to a port or ports in Peru, South America, and return to the Pacific coast of the United States,' and that the said charterer, 'as owner pro hac vice, manned, including the hiring and appointment of the master, officers, and crew, equipped, supplied, navigated, and operated said vessel for and during said voyage, assuming all liabilities, and making all necessary disbursements therefor, and collecting the earnings of said vessel for and during said voyage for its own proper use and benefit,' and thereafter, on or about September 1, 1907, as such charterer and owner pro hac vice dispatched the said vessel on the said voyage; that on or about September 1, 1907, and for a long time prior thereto, and at all times thereafter until his death on the said 25th day of February, 1908, the said David L. Rainey was a citizen of the United States and a resident of the city of Seattle, state of Washington, and during all of that time was duly licensed by the United States government, as well as by the British government, as chief engineer of ocean-going United States and British steamships, respectively; that on or about September 1, 1907, at Seattle, Wash., the said charterer, through its managing agent there, engaged Rainey as chief engineer of the steamship Cacique, then being in the waters of Puget Sound in the state of Washington, for a voyage then about to be commenced from a port on Puget Sound to a port or ports in Peru and return to the Pacific Coast of the United States, pursuant to which engagement Rainey 'signed shipping articles, British from, to serve in the capacity of chief engineer of said vessel for said voyage, and for a term not to exceed . . . months,' at certain specified wages, and thereafter, on or about September 1, 1907, said Rainey reported on board the ship to the master thereof, and entered upon and continued in the discharge of his duties as such chief engineer until his death; that at no time from the entry of Rainey upon his employment to the time of the injury which resulted in his death was the ship mentioned in a seaworthy condition; 'that said steamship was what is known as an oil-burner, using oil as fuel for the purpose of generating the steam used in propelling said steamship, in operating winches for handling her cargo, and in operating an electric dynamo to illuminate said vessel, its passageways on, between, and below decks, and its several decks, so as to enable its crew, including said David L. Rainey, to perform their several duties required of them from time to time; that the feed pump on said steamship, used for supplying oil as fuel for the purposes aforesaid, was liable to become clogged with oil, fail to supply sufficient or any oil for fuel purposes, and would require to be put in working order again before the work of the vessel could go on, which was or should have been known to respondent; that said steamship was not furnished or supplied with safety lamps or any other method of illumination (exclusive of its electric plant) from which the volatile fumes of said fuel oil, wherever present on board said steamship, would be protected and ignition therewith thereby prevented, when said dynamo was for any reason out of commission and other means of illuminating had to be resorted to to enable the crew, including its chief engineer, to do the work necessary aboard said vessel;' that on the 30th day of January, 1908, at the port of Mollendo, Peru, and while Rainey was performing his duties as chief engineer, through no fault of his or of any member of the crew immediately under his authority, a feed pump on board the ship, used for the purpose of supplying oil for fuel generating steam, became clogged, and failed to supply sufficient or any oil to keep up or generate any steam for the purposes of the ship, in consequence of which its dynamo was immediately put out of commission; that it thereupon became necessary and the duty of Rainey to immediately put the pump in working order in order to generate and keep up the steam, and the dynamo running in order to illuminate the ship, to the end that the work of the crew and of the vessel might proceed, and that in the prosecution of that duty Rainey was obliged, for want of other methods of illumination, to use and did use a lantern furnished by the charterer, which was what is known as a Dietz lamp, an oil lamp with its flame unprotected; that in doing so the volatile fumes of the oil arising from the oil in the feed pump became ignited by the flame of the lantern, thereby causing an explosion, which inflicted burns upon Rainey, from the effects of which he died the following 25th day of February, 1908, in the hospital at Mollendo, Peru, all of which was caused by the failure of the charterer to keep and maintain the said ship in a seaworthy condition.

In the libel the cause is designated as one 'of tort, civil and maritime,' and, besides allegations bearing upon the question of the amount of damages, it contains these further averments:

'That the laws of the United States in force at all of said times between the 1st day of August, 1907, and the 30th day of January, 1908, provided, inter alia, that in every contract of service, express or implied, between the owner of a ship and the master or any seaman thereof, there is implied, notwithstanding any agreement to the contrary, an obligation on the owner of the ship that the owner of the ship shall provide a seaworthy ship for the voyage at the time of the commencement of the voyage, and shall keep said ship in a seaworthy condition for the voyage during the voyage; and that the laws of Great Britain in force at all times between

...