Tim v. American President Lines, Ltd.

• Decision Date: 15 April 1969
• Docket Number: No. 22395.,22395.
• Citation: 409 F.2d 385
• Parties: Shaffer C. TIM, Appellant, v. AMERICAN PRESIDENT LINES, LTD., a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

409 F.2d 385 (1969)

Shaffer C. TIM, Appellant, v. AMERICAN PRESIDENT LINES, LTD., a corporation, Appellee.

No. 22395.

United States Court of Appeals Ninth Circuit.

March 18, 1969.

Rehearing Denied April 15, 1969.

R. Jay Engel (argued), Hugh B. Miller, of Jarvis, Miller & Stender, San Francisco, Cal., for appellant.

Garrett P. Graham (argued), and Graydon S. Staring of Lillick, McHose, Wheat, Adams & Charles, San Francisco, Cal., for appellee.

Before HAMLEY, HAMLIN and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

Shaffer C. Tim, the appellant, sustained serious personal injuries while employed by American President Lines and acting in the course of his employment as chief electrician aboard the S.S. President Tyler. At the time of the accident cargo at the No. 4 hatch of the ship was being worked by employees of Matson Terminals, Inc., a stevedore company employed by the United States Government to handle the Government's cargo.

The cargo was being unloaded with a gantry crane. A supervisory employee of Matson Terminals, Inc. complained to Tim that the crane was not operating fast enough. Tim went to the operator's cab and made the necessary adjustments. While there he thought he noticed that an overhead electrical cable had become disengaged from its reel. He told the operator, a longshoreman-employee of Matson Terminals, to stop the crane in order to permit an inspection. He then proceeded to the steel mesh platform outside the cab where a ladder led from the platform to the top of the crane. Above the ladder was a safety screen designed so that a person could not climb to the top of the crane while the crane was in operation. In order to climb the ladder a person had to slide back the safety screen. When the screen was moved back two to three inches the electrical circuit which energized the crane was disconnected. Tim knew that moving the safety screen would render the crane inoperative, but rather than do this he placed his feet on the second step of the ladder and craned his head outside and above the screen. As he did so the crane operator started the crane, causing Tim's head to be caught between the safety screen and a stationary overhead object.

Tim filed this libel against American President Lines in the United States District court for the Northern District of California, seeking damages under the Jones Act (46 U.S.C. § 688) on a claim of negligence and under the general maritime law on a claim of unseaworthiness. The District Court held against Tim. We discuss each claim in turn.

NEGLIGENCE

The District Court found that the American President Lines was not negligent and that the injury was caused by the concurrent negligence of Tim and the gantry crane operator.¹ Tim does not challenge the finding that the American President Lines was not itself negligent. Rather he contends that American President Lines is liable for the negligence of the stevedore's employee — the gantry crane operator. American President Lines is not liable for the negligence of the stevedore's employee unless that employee was an "agent" as that term is used in the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq.² The test for agency under the FELA and the Jones Act has been elucidated by Sinkler v. Missouri Pac. R.R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed. 2d 799 (1958) and Hopson v. Texaco, Inc., 383 U.S. 262, 86 S.Ct. 765, 15 L.Ed. 2d 740 (1966).

In Sinkler the petitioner was employed by the Missouri Pacific Railroad Company. He was injured as a result of the negligence of a switching crew employed by Belt Railway. Missouri Pacific was one of the organizers of Belt Railway and owned half its stock and designated one-half of its directors. The Supreme Court held, 356 U.S. 331-332, 78 S.Ct. 762:

"In the present case the respondent Missouri Pacific rather that doing the necessary switching incident to its business in the Houston Terminal area, arranged that the Belt Railway should supply the crews and equipment to perform this operation on its behalf. But the evidence clearly establishes that the respondent\'s trains, when under the control of the Belt Railway\'s switching crews, were being handled to further the task of the respondent\'s enterprise. While engaged in switching and handling respondent\'s cars and trains about the terminal area, the Belt Railway employees on the job were, for purposes of the FELA, as much a part of the respondent\'s total enterprise as was the petitioner while engaged in his regular work on the respondent\'s car.

"It is manifest that the corporate autonomy of the Belt Railway, and its freedom from detailed supervision of its operations by respondent, are irrelevant inasmuch as the switching crew of the Belt Railway Company at the moment of the collision in the station was engaged in furthering the operational activities of respondent. We therefore hold that when a railroad employee\'s injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are `agents\' of the employer within the meaning of § 1 of FELA."

In Hopson, two seamen became ill in Trinidad and were unable to continue the voyage. In order to comply with the statutory requirement that incapacitated seamen be brought before a United States Consul before discharge in a foreign port the ship's Master procured a cab for the trip. En route a collision occurred as a result of the negligence of the taxi driver, killing one seaman and seriously injuring the other. The Supreme Court emphasized at 383 U.S. 264, 86 S.Ct. 766:

"Getting these two ill seamen to the United States Consul\'s Office was, therefore, the duty of respondent. And it was respondent — not the seaman — which selected, as it had done many times before, the taxi service. Respondent — the law says — should bear the responsibility for the negligence of the driver which it chose."

The facts, as found by the District Court in the present case, are not contested:

"Respondent American President Lines did not select Matson Terminals, Inc. to load or unload the cargo aboard the SS PRESIDENT TYLER on February 2, 1965, had no oral or written contract with Matson Terminals, Inc. to do so and was not shown to have any ownership or other financial interest in Matson Terminals, Inc."

Applying the test of Sinkler and Hopson to these facts, we agree with the District Court that Matson Terminals, Inc. was not the agent of American President Lines.

UNSEAWORTHINESS

A shipowner is required to furnish a seaworthy vessel. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903). This duty is absolute Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960) and continuing. Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944). But the ship owner is not an insurer against every injury that may occur in connection with the ship.

"What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service."

Mitchell v. Trawler Racer, Inc., 362 U. S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960). See also Morales v. City of Galveston, 370 U.S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412 (1962).

In the present case the District Court found that the vessel and her appurtenances were reasonably fit for their intended use, that they were seaworthy, that both Tim and the operator were negligent, and that their negligence concurred as the sole proximate causes of the accident. Tim does not contend that the vessel or her appurtenances were inherently defective. Rather, he contends that the vessel was rendered unseaworthy by reason of negligence of the gantry crane operator at the very moment of the injury. A long line of cases in this Circuit has consistently rejected any doctrine of "instant unseaworthiness." We have held that liability attaches if an act leaves the vessel in an unsafe condition subsequently resulting in injury but does not if the act and resulting injury are simultaneous. Alaska S.S. Co. v. Garcia, 378 F.2d 153, 155 (9th Cir. 1967); Huff v. Matson Navigation Co., 338 F.2d 205, 216 n. 14 (9th Cir. 1964), cert. denied, 380 U.S. 943, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965); Beeler v. Alaska Aggregate Corp., 336 F.2d 108 (9th Cir. 1964), cert. denied, 379 U.S. 1000, 85 S.Ct. 719, 13 L.Ed.2d 701 (1965); Billeci v. United States, 298 F.2d 703 (9th Cir. 1962); Rawson v. Calmar S.S. Corp., 304 F.2d 202, 205 (9th Cir. 1962); Titus v. The Santorini, 258 F.2d 352 (9th Cir. 1958).³Cf. Blassingill v. Waterman S.S. Corp., 336 F. 2d 367 (9th Cir. 1964). The District Court's finding must be affirmed on the basis of these cases unless, as urged by Tim, they have been recently overruled by implication by the Supreme Court in Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 87 S.Ct. 1410, 18 L. Ed.2d 482 (1967) or Mascuilli v. United States, 387 U.S. 237, 87 S.Ct. 1705, 18 L. Ed.2d 743 (1967).

Waldron provides Tim no support. There the court stated: "The single legal question presented by this case is whether a vessel is unseaworthy when its officers assign too few crewmen to perform a particular task in a safe and prudent manner." 386 U.S. at 724, 87 S.Ct. at 1410. In answering this question in the affirmative the Court had no occasion to and did not consider whether a longshoreman's negligence in itself constituted unseaworthiness.

And we regard Mascuilli as inapposite. That case was one to recover damages for the death of a longshoreman who was killed during a loading operation when fellow members of the stevedoring crew negligently allowed one of three interconnected cables to be wound in by its...