Scheffler v. Moran Towing & Transportation Co.

• Decision Date: 11 December 1933
• Docket Number: No. 81.,81.
• Citation: 68 F.2d 11
• Parties: SCHEFFLER v. MORAN TOWING & TRANSPORTATION CO., Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

68 F.2d 11 (1933)

SCHEFFLER v. MORAN TOWING & TRANSPORTATION CO., Inc., et al.

No. 81.

Circuit Court of Appeals, Second Circuit.

December 11, 1933.

E. C. Sherwood, of New York City (William L. O'Brion, of New York City, of counsel), for appellant.

Edgar J. Treacy, of New York City, for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

The libellant was a cook employed on one of the respondent's harbor tugs. The crew of five consisted of a master, a deckhand, an engineer, a fireman, and the libellant, who engaged not only as cook, but as deckhand if needed. On the morning in question the deckhand failed to appear when the tug left her berth; he boarded the tug only after the accident. Part of the tug's work was to pick up two scows lying side by side at a pier end in the North River, made fast to each other by a head line. She nosed in between them, meaning to take up one on either hand. The libellant tended the forward lines; the fireman, the stern lines. Two towing straps were rigged forward on the tug, one for each scow. The libellant by his own story passed the star-board strap to the bargee of the starboard scow, and then a head line to him. He then passed the port towing strap to the bargee of the port scow, who carried it aft on the scow, and made it fast. Next the libellant passed a head line to the same bargee who was carrying it forward to make fast, when the libellant carelessly got his leg in a bight of the port towing strap, which, as the scow drifted back with the tide, caught and injured him. Meanwhile the tug was being properly managed; indeed, but for the quick action of the master in relieving the strain on the towing strap, the injury would have been much greater. The libellant, a man fifty-two years old, had had an experience of twenty-five years in handling lines; it was his custom, when the deckhand was missing, to take his place. The only reason to charge the tug is that when the deckhand was on board he handled the forward lines, which were more numerous than the after ones, and therefore needed more constant attention and activity. The judge found the tug unseaworthy because short-handed, and thought the injury a consequence for which the respondent was liable; a "proximate" result. However, he found the libellant negligent on his own part and accordingly reduced his recovery to $1,500. On the appeal the libellant by leave of this court added a cause of suit for maintenance and cure. The respondent in turn moved to compel him to elect between the cause of suit, as alleged under the Jones Act, and any cause of suit implicitly arising under the maritime law. As will appear, we do not find it necessary to pass upon this motion.

We shall assume arguendo with the judge that the tug was unseaworthy, and confine our difference with him to the responsibility arising from that fault. If liability for unseaworthiness depends alone upon the causal relation of the fault to the injury, it existed here. The libellant would have been aft, had the deckhand been present, and would not have caught his foot; the short-handedness of the tug was the cause of the injury in fact. Our decision in Storgard v. France and Canada S. S. Corp., 263 F. 545, held that the likelihood of the injury was not a factor in liability for gear which was unseaworthy, and there would seem to be no distinction between that and a deficient complement. But though the holding certainly went so far, as will appear from the excerpt from the charge below, it is not wholly clear whether we meant to say that an owner was liable for all injuries arising from unseaworthiness, or whether we were invoking the doctrine announced on the same day in Cricket S. S. Co. v. Parry (C. C. A.) 263 F. 523; that is, that a seaman does not assume the risk of defective gear which he is ordered to...