West v. United States

• Decision Date: 02 July 1958
• Docket Number: No. 12507.,12507.
• Parties: Edgar Allen WEST, Appellant, v. UNITED STATES of America, United States Department of Commerce, Maritime Administration (Respondents), (Atlantic Port Contractors, Inc., Impleaded Respondent).
• Court: U.S. Court of Appeals — Third Circuit

256 F.2d 671 (1958)

Edgar Allen WEST, Appellant, v. UNITED STATES of America, United States Department of Commerce, Maritime Administration (Respondents), (Atlantic Port Contractors, Inc., Impleaded Respondent).

No. 12507.

United States Court of Appeals Third Circuit.

Argued June 2, 1958.

Decided July 2, 1958.

Abraham E. Freedman, Philadelphia, Pa. (Joseph Weiner, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellant.

Carl C. Davis, Washington, D. C., for U. S. (George Cochran Doub, Asst. Atty. Gen., G. Clinton Fogwell, Jr., U. S. Atty., Philadelphia, Pa., Leavenworth Colby, Atty., Dept. of Justice, Washington, D. C., George Jaffin, Atty., Dept. of Justice, New York City, Harold K. Wood, U. S. Atty., Philadelphia, Pa., on the brief).

Thomson F. Edwards, Philadelphia, Pa., for Atlantic Port Contractors (John B. Hannum, 3rd, Philadelphia, Pa., on the brief).

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

GOODRICH, Circuit Judge.

This is an appeal from a judgment for the respondent in a personal injury case brought by the libelant against the United States as owner of a ship called "S.S. Mary Austin." The case is here for the second time. Following the first hearing, we sent it back to the district court for a further finding which has been made, 3 Cir., 1957, 246 F.2d 443. The case comes to us after a very competent discussion of its problems by the trial judge, D.C.E.D.Pa.1956, 143 F.Supp. 473, which has already been cited with approval by other courts.¹ We do not need to state more than a brief summary of the facts for the purpose of our discussion here.

The "Mary Austin," owned by the United States, was one of the ships put in "moth balls" at Norfolk, Virginia, after World War II. During the Korean conflict the decision was made to reactivate her and she was towed from Norfolk to Chester, Pennsylvania, and from Chester brought up and tied alongside a pier in Philadelphia. The contract for the work to put the ship back in service was let to a concern called Atlantic Port Contractors, Inc. This company had full charge of the work. On the day of the accident which is the source of this litigation, West, an engineer, was working in the low-pressure cylinder of the ship's main engine. He was hit on the knee by a metal plug which came out of an overhead water pipe when some other employee of the contractor turned on the water without warning. The plug was evidently loose enough so that the pressure of the water forced it from the pipe. West sues for the injuries thus received.

The libelant's case is in the usual form for this type of litigation. Unseaworthiness is charged; likewise, negligence in failing to provide plaintiff with a "safe place to work." The latter can be treated first because its discussion will take a very short time. On West's behalf it is urged that the duty to provide a safe place to work is absolute and nondelegable and hence the United States, as owner of the ship, cannot escape responsibility by placing a contractor in charge of the ship. In other words, we would have, if libelant's theory were followed, something like, and even greater than, the insurer's liability for seaworthiness which an owner fails to fulfill at his peril.

But the legal responsibility for the place in which a workman carries on activities is not an insurer's liability for safety but responsibility only for the exercise of reasonable care with regard to the premises at which work is done. It is a nondelegable duty but not an absolute one. It is rather a nondelegable obligation that reasonable care shall be used. This was pointed out with clarity by this Court in Barbazon v. Belships Co., 3 Cir., 1953, 202 F.2d 904, and reiterated by us in Osnovitz v. United States, 3 Cir., 1953, 204 F.2d 654.

So far as these premises were concerned there was no lack of safety. Even if the plug was loose that did no harm to West or anyone else. The accident to West came because a fellow employee of the contractor did a positive and negligent act. For such superadded, affirmative conduct, the owner of the premises is not responsible. See 2 Restatement, Torts § 426 (1934).

We come then to the problem of seaworthiness. Here is a responsibility not discharged by the exercise of reasonable care. Mahnich v. Southern Steamship Co., 1944, 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. In Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, this protection was extended to a stevedore who was doing seamen's work.²

We do not think that the "Mary Austin" at the time of this accident was a ship in navigation nor do we think that the work which West was doing was seamen's work so that the warranty of seaworthiness ran to him.

Counsel for the libelant insists that anything floating on the water is in navigation although he concedes that an uncompleted vessel just launched is not in navigation. See Franke v. Bethlehem-Fairfield Shipyard, Inc., 4 Cir., 1942, 132 F.2d 634. But cf. United States v. Lindgren, 4 Cir., 1928, 28 F.2d 725.

The closest ruling authority is Desper v. Starved Rock Ferry Co., 1952, 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205. There sightseeing boats had been hauled up on the shore for the winter layoff. The Court held that the warranty of seaworthiness did not extend to the libelant's decedent who was fatally injured while engaged in painting and repairing these vessels in preparation for their seasonal launching. We do not find in the Court's discussion in that case any such rule of thumb test as contended for by the appellant. We think the reason which controls here is that the vessel was out of service as a ship fully and as completely as a vessel...