Rich v. United States, 21

• Decision Date: 07 November 1949
• Docket Number: No. 21,Docket 21345.,21
• Parties: RICH v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Second Circuit

177 F.2d 688 (1949)

RICH v. UNITED STATES et al.

No. 21, Docket 21345.

United States Court of Appeals Second Circuit.

Argued October 13, 1949.

Decided November 7, 1949.

John F. X. McGohey, U. S. Atty., New York City, John L. Quinlan, New York City, and Bigham, Englar, Jones & Houston, New York City, for appellant.

Harry Teichner, Brooklyn, N. Y., and S. Spevack, Brooklyn, N. Y., for respondent.

Before AUGUSTUS N. HAND, CHASE and FRANKS, Circuit Judges.

CHASE, Circuit Judge.

Rich, the appellee, was a tank cleaner employed by Pyrate Tank Cleaners, Inc. His employer was performing a contract it had made to clean the tanks of the S. S. William Crompton, a vessel owned and operated by the United States and moored at Pier 35, Brooklyn, N. Y., when on September 14, 1945 he was injured by falling from a Jacob's ladder while working on that job. Pyrate Tank Cleaners, Inc., was an employer liable to him pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C.A. § 901 et seq., and it made payments to him as that statute required for about twenty-eight weeks. Then Rich elected to sue a third party as he might under § 33 of that statute, as amended, 33 U.S. C.A. § 933, and brought this suit against the United States¹ as permitted by the Public Vessels Act, 46 U.S.C.A. § 781 et seq. The United States filed its answer which denied all liability and later moved to amend it and to implead, under the 56th Rule in Admiralty, 28 U.S.C.A., Pyrate Tank Cleaners, Inc., which, it then alleged, was solely at fault for negligently causing any injuries the libellant might have sustained. The libellant opposed on the grounds that he did not charge his employer with any negligence and sought no recovery from it but solely from the United States; that the latter did not allege any joint liability with Pyrate and sought no contribution from it; and that the libellant who could of right choose to sue the United States would be wrongfully prejudiced by having his right to employee's compensation made the subject of inquiry therein. The district judge took the view that, while the 56th Admiralty Rule² should be liberally construed, the petition to implead Pyrate should be denied because no joint liability with it or liability over was asserted by the United States and, because the libellant could not recover in the suit from Pyrate in view of the provisions of § 5 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 905, Pyrate "would not necessarily have an adequate motive to defend."

Thereafter the United States amended its petition to implead to allege "Ninth: That upon information and belief Pyrate Tank Cleaners, Inc., was negligent, among other things, in that its employees, without permission or authority and unknown to respondents, proceeded to and placed over the side of the William Crompton a Jacob's ladder from which the libellant fell. That if libellant's fall from said ladder was caused by said ladder slipping or because said ladder was insecurely or improperly tied then Pyrate Tank Cleaners, Inc., is solely responsible and liable for this accident." "Tenth: That by reason of the foregoing, the petitioner has a right of liability over against Pyrate Tank Cleaners, Inc., and that therefore Pyrate Tank Cleaners, Inc., should be liable over to the United States for whatever amount, if any, may be awarded libellant against petitioner * * *" But the petition was again denied for the same reasons as before and this appeal followed.

The libellant had alleged and it was admitted by each answer to the libel that the owner of the vessel managed and controlled it. Libellant also alleged that he was injured "solely by reason of the carelessness of the respondents, their agents, servants and employees, in that they failed to furnish him with a reasonably safe place to perform his work; in that they used improper and unsafe equipment for his leaving the said vessel; in that they failed to properly examine and to take the usual and customary precautions for the use and maintenance of the equipment for him to leave the said vessel; in that they improperly adjusted, tied, fastened and placed the jacobs sic ladder; these negligent conditions existed for a long time prior to the happening of this accident, to the knowledge and notice of the respondents, their agents, servants and employees; * * *."

This makes it clear that a good cause of action was alleged against the United States, regardless of whether libellant's employer was primarily liable for his injuries, and it seems plain enough that the United States has sufficiently alleged in this petition a claim that Pyrate Tank Cleaners, Inc., "may be partly or wholly liable * * * to respondent by way of remedy over * * * growing out of the same matter * * *." And thus it has shown ground for relief under the express terms of the 56th Rule in Admiralty provided the Longshoremen's and Harbor Workers' Compensation Act, supra, does not require a different result.

Section 5 of that Act, 33 U.S.C.A. § 905, provides in part that the liability of an employer under the Act "shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife,...