United States v. Arrow Stevedoring Co., 11519.
| Decision Date | 09 August 1949 |
| Docket Number | No. 11519.,11519. |
| Citation | 175 F.2d 329 |
| Parties | UNITED STATES v. ARROW STEVEDORING CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank J. Hennessy, U.S. Atty., San Francisco, Cal., Leavenworth Colby and Keith R. Ferguson, Sp. Assts. to Atty. Gen., William E. Licking, Asst. U. S. Atty. San Francisco, Cal., for appellant.
John H. Black, Edw. R. Kay, San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.
The government appeals from a decree in admiralty denying it recovery from Arrow Stevedoring Company, hereafter called Arrow, which the government impleaded in a proceeding brought against it by one Percy L. Williams, a stevedore employee of Arrow. The government sued Arrow upon Arrow's contract to indemnify the government against any loss suffered by it from Arrow's performance of its agreement to unload the steamer's cargo. It claimed Arrow's liability to the government for Arrow's failure to give Williams a safe place to work while unloading naval cargo from the U.S.S. Edgecomb, resulting in Williams' injury, for which the government became liable. Williams' injury arose from the negligent use of a defective hatch cover which fell on him.
The government admits liability to the stevedore because it had a continuing duty to him to see that at all times he had a safe place to work, and is so liable to him for a failure to keep the vessel seaworthy in that regard. Such liability exists even though the sole proximate cause of such unseaworthiness and the injury to Williams was not the defect in the hatch cover but, as the government claims, its conscious use with knowledge of its defect, by the stevedore's superintendent in a way making it dangerous and causing the injury to Williams.
It is not questioned that though the unseaworthy condition arising from the negligent use of the hatch cover was not caused by the government's fault, it is nevertheless liable. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90, 66 S.Ct. 872, 90 L.Ed. 1099.
Williams was injured just after 7 a. m. on May 28, 1945, by the falling of the cover of the No. 4 port hatch on the third and lower deck of the Edgecomb. The hatch cover was of steel, 14 feet long fore and aft and 8 feet wide athwartship, and weighed about 3500 pounds. When raised it was intended to be secured by dogs held by pins, one fore dog attached to the hatch bulkhead there and another aft attached to the hatch's after bulkhead. We agree with the district court's finding that both dogs were defective and their pins absent and could not hold erect the heavy hatch cover and that it fell on Williams because so insecurely held by the defective dogs.
However, we think that the court's finding that "none of the defects" in the dogs "were known to * * * respondent Arrow Stevedoring Company nor its agents, servants and employees" is clearly erroneous and that it was error to hold that Arrow's conduct was not a proximate cause of the injury to Williams.
Arrow's stevedore supervisor, Bowers, testified that on the night before the accident he was supervising the night shift's unloading of both the starboard and port No. 4 hatches. That the port hatch was raised and secured by the stevedores at about 2 o'clock of the morning of the accident to Williams which occurred shortly after 8 o'clock. The defect in the dogs of the port hatch cover was then discovered and the work discontinued at that hatch. His statement is repeated. One is:
The dogs were to be held to the cover by pins, and Bowers states:
With the port hatch standing in this unsafe condition, Bowers' stevedores worked the opposite safe starboard hatch until six o'clock in the morning, when their shift ended. The morning stevedore shift began work at seven o'clock. Bowers testifies that he did not warn anyone on the morning shift of the dangerous condition of the port hatch.
At seven o'clock Larsen, Arrow's boss of the No. 4 hatch, from the top deck "looked down in the hatch and everything seemed safe to me." O'Shea was foreman of the day gang and his six men were sent into the port hatch to remove empty shells which were stored to within six inches of the top of the compartment below. The hatch cover started to fall, a warning was shouted three escaped and three men, including Williams, were caught under it, Williams being injured and another, Mitchell, was killed.
Bowers testified that on the afternoon before the accident he asked the lieutenant officer of the ship to rig a boom to lift the hatch on the port side. A part of the conversation is as follows:
It is thus apparent that Arrow's supervisor knew that the ship would do nothing about the cover of port hatch No. 4 until "sometime" during the day shift. Assuming that this transferred to the ship, to perform sometime in the morning shift, the obligation of Arrow's contract, later considered, to raise this hatch door, Arrow clearly owed the duty to see that none of its stevedores should work under it until the danger known to exist was removed. Certainly the ship had no obligation to do more than it promised, that is to rig the door sometime during the day shift, not before the shift began to work.
The testimony is uncontradicted that in this defective condition of the dogs of the port hatch the cover could have been securely held erect by a clamp and turnbuckle attached to both starboard and port hatch doors. Such turnbuckle and gear was right there by the hatch for that purpose. Of this Arrow's day boss on the morning of the accident, Larsen, stated: "As a rule you secure the two tanktops together."
The evidence shows that the door was so safely secured by the clamp and turnbuckle during the day shift but, unhappily, after the injury and death of the...
To continue reading
Request your trial
-
Whirlpool Corporation v. Morse
...16, 18 (3rd Cir. 1954) (text accompanying fn. 5), but that has not changed the results of those cases. Compare United States v. Arrow Stevedoring Co., 175 F.2d 329 (9th Cir. 1949) (negligence of stevedore "sole proximate cause" of accident; shipowner allowed indemnity) with Hawn v. Pope & T......
-
Ryan Stevedoring Co v. Steamship Corporation
...792—793; Brown v. American-Hawaiian S.S. Co., 3 Cir., 211 F.2d 16; Rich v. United States, 2 Cir., 177 F.2d 688; United States v. Arrow Stevedoring Co., 9 Cir., 175 F.2d 329.5 The shipowner's action here is not founded upon a tort or upon any duty which the stevedoring contractor owes to its......
-
Finley v. United States
...insulate the employer from all liability to a third party from whom an employee has recovered damages. See United States v. Arrow Stevedoring Co., 9 Cir., 1949, 175 F.2d 329, 332. Liability for indemnity as distinguished from contribution, may arise from the contractual relations of the emp......
-
Hugev v. Dampskisaktieselskabet International
...injury or damage, whenever the stevedore realizes that it would be unsafe under the circumstances to proceed. United States v. Arrow Stevedoring Co., 9 Cir., 1949, 175 F.2d 329, certiorari denied, 1949, 338 U.S. 904, 70 S.Ct. 307, 94 L.Ed. 557; The Adah, 2 Cir., 1919, 258 F. 377, 380; The R......