Thorson v. Inland Navigation Company
| Citation | 77 ALR 2d 825,270 F.2d 432 |
| Decision Date | 09 October 1959 |
| Docket Number | No. 16255.,16255. |
| Parties | Carl E. THORSON, Appellant, v. INLAND NAVIGATION COMPANY, a Corporation, Appellee (Archer-Daniels-Midland Co., Third Party Appellee). |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Ben Anderson, Anderson & Franklin, Portland, Or., for appellant.
Mautz, Souther, Spaulding, Denecke & Kinsey, Arno H. Denecke, Portland, Or., for Inland Nav. Co.
Gray & Lister, Wendell Gray, Portland, Or., Nathan J. Heath, Portland, Or., for Archer-Daniels-Midland Co.
Before ORR and POPE, Circuit Judges, and YANKWICH, District Judge.
The appellant, libelant below, was a longshoreman who received injuries aboard the appellee's barge while he was engaged in unloading bulk grain from the hold while the barge was lying in the navigable waters of the Columbia River at the Port of Vancouver. Appellant was employed by Archer-Daniels-Midland Co., a stevedoring firm doing the unloading.
Appellant was in No. 1 hatch of the barge when he was injured by being struck on the head and shoulders by a metal baker flag which fell into the hatch. This was a red flag which the barge was required to carry, as it carried petroleum on its up-river trips. It was made of sheet metal, 24 inches long, and from 12 to 16 inches wide, and weighed 25 pounds. The flag was welded on a stem made of a 1¼ inch iron pipe, which stem was about a foot long. It was mounted at the bow of the barge. There the stem was held in place by slipping it loose into the top of a larger, upright pipe which was welded to the deck. Thus it could be lifted out of this larger pipe, and it was free to swing about on this pivot.
The grain, which the barge hauled on its down-river trips, was unloaded by flexible suction hoses which extended into the hold. These hoses were lowered into the various holds by mechanical hoists, but the longshoremen handled them when they were being put in place, or being hoisted out of the hold. The hose was in process of being hoisted out when the flag fell on appellant. No. 1 hatch, where he was hit, was about 8 feet from the location of the flag and its socket. No witness testified that he saw how the flag was thrown from its socket; but the evidence did disclose that the lines of the stevedore's gear used for lowering or raising the hoses hung freely in the area of the baker flag. It was testified that as the boom was lifted to take out the suction hose, the hanging lines would be raised.
The trial court made no finding as to whether in this process these lines caught on the flag and lifted it out for after finding that the baker flag was recognized gear on such barges, and that it was impossible for the flag to become disengaged through its own action, — that "it would have to have been manually withdrawn or cast by a person or some line would have to become fouled with the flag which caused it to be yanked from its socket," the court concluded its findings as follows: "The lines and gear of the stevedore hung freely in the area of the baker flag and these lines and gear were not part of the barge's gear." From this the court concluded that the barge was not unseaworthy and that neither the barge nor her crew were negligent.
Clearly the court was of the view that having noted that these lines and gear "were not part of the barge's gear" the question of the barge owner's liability for unseaworthiness was conclusively negatived. But the case of Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 427, 79 S.Ct. 445, 3 L.Ed.2d 413, decided February 24, 1959, since the decision of this case, calls attention to the fact that not only is the shipowner liable to a longshoreman for injuries due to the ship's unseaworthiness, Seas Shipping Company v. Sieracki, 328 U.S. 85, 66...
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