Summary
In Kunschman v. United States, 2 Cir., 54 F.2d 987, 989, the court said: "* * * As this action was brought by the personal representative to recover damages for the death of the seaman, the rights of the parties depend upon the statute and not upon the general maritime law, under which there can be no recovery on a death claim.
Summary of this case from Carstens v. Great Lakes Towing Co.Opinion
No. 118.
January 11, 1932.
Appeal from the District Court of the United States for the Southern District of New York.
In Admiralty. Libel by Mary Kunschman, as administratrix of the estate of Frederick William Kunschman, deceased, against the United States and the United States Shipping Board Merchant Fleet Corporation. From a decree of dismissal [ 51 F.2d 306], libelant appeals.
Reversed, with directions.
This suit was brought to recover for the death of the libelant's intestate, Frederick W. Kunschman, who was killed while in the performance of his duty as an assistant engineer on the motorship Triumph, a merchant vessel owned by the United States Shipping Board Merchant Fleet Corporation. It was based on the provisions of section 33 of the Merchant Marine Act of June 5, 1920 (46 USCA § 688). The libel was dismissed, and the libelant appealed.
The Triumph was originally steam-driven. She was one of the Fleet Corporation's vessels selected for conversion into Diesel-powered electric-drive ships, and the firm of Gibbs Cox of New York City, marine architects, was employed to assist the government's engineers to prepare plans and specifications for the necessary alterations. In so doing, Diesel engines of eight cylinders which, with only what changes were necessary to adapt them for use with a salt-water cooling system, followed the design of a standard McIntosh Seymour six-cylinder Diesel engine, were chosen for installation, and the McIntosh Seymour Corporation was given the contract to build them. They were built in its factory at Auburn, N.Y., under the supervision of Gibbs Cox, who had one of their engineers, Joseph Cook, constantly in attendance as an inspector with authority to accept or reject any part of the construction as the work proceeded. Cook and the chief engineer of Gibbs Cox both made tests and inspections while the engines were being built. In due time, these engines were shipped to Boston and installed on the Triumph. After preliminary tests were made, the engines were found to be satisfactory. In accordance with its contract, the McIntosh Seymour Corporation appointed a guaranty engineer to sail on the Triumph, and selected Mr. Cook for this purpose. The Triumph then proceeded from Boston to Baltimore, to New York, to Norfolk, and through the Panama Canal to Honolulu without mishap. She left Honolulu bound for Manila, Philippine Islands, and was within about twelve hours of her destination when the accident occurred which caused Kunschman's death.
He and Cook were in the engine room when Cook saw Kunschman running toward No. 4 engine and followed him to see what was the matter. Just as Kunschman reached the engine it exploded. He was burned so severely that he died in a hospital in Manila two days later.
After the accident, it was discovered that an air compressor piston which was fourteen inches in diameter and twenty inches long was split in half and the wall of the cylinder in which it had been working was scraped. The evidence was undisputed that, had this piston broken before the explosion and caused a spark when scraping the cylinder walls, that spark would have been sufficient to ignite the gas impregnated air in the crank case of the engine and cause the explosion. Nothing else appears in evidence which could have caused it.
It was also undisputed that this broken piston, which was of cast iron and hollow with one end closed should have been of a uniform thickness of one-quarter of an inch, but that it was defective in that one side was one-half an inch, or twice as thick as it should have been. There was competent, though somewhat disputed, evidence to show that the side thrust on this piston caused by its connecting rod, which not only traveled up and down in actuating the piston, but also had a pendulumlike motion, induced by the action of its crank shaft, would be likely to set up what is known as fatigue strain in the piston and cause it to split and scrape the cylinder walls with a resultant spark. There was no reason apparent from the evidence for believing that the piston in its cylinder could have been split by the explosion in the crank case of the engine. All this, coupled with the fact that Kunschman doubtless ran toward the engine because he was aware that something was wrong just before the explosion, makes it reasonable to believe that he heard this split piston scraping in its cylinder before the engine exploded, and ran in an effort to prevent further trouble before it was too late.
The libelee's evidence was to the effect that it would have been impossible by inspection to have discovered that the air compressor piston was defective because that would have required such drilling and plugging of the holes that the piston would have been spoiled. The libelant introduced ample evidence, however, to show that drilling was not necessary unless a nice degree of accuracy was sought; that inspection which would have rejected such a defect as was present in this piston and would have determined when its thickness was uniform for all practical purposes could have been made simply by using calipers. This evidence seems to be so clearly right that we have no hesitancy in coming to the conclusion that negligence in inspection was responsible for the defective piston being accepted and used.
Kunschman was 29 years old and unmarried. He contributed an average amount of $20 a week to the support of his needy parents. His mother was then 63 years old and is still living. His father has since died.
Simone N. Gazan, of New York City, for libelant-appellant.
George Z. Medalie, U.S. Atty., of New York City (Frederick H. Cunningham, of New York City, of counsel), for respondents-appellees.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
The above-mentioned statute under which this action was brought gives to a seaman, in addition to his rights under the maritime law, new rights and remedies, and also gives his personal representative a cause of action for death. Charles Nelson v. Curtis (C.C.A.) 1 F.2d 774. These rights and remedies are those possessed by railway employees and their personal representatives under the laws of the United States. Panama R.R. v. Johnson, 264 U.S. 375, 44 S. Ct. 391, 68 L. Ed. 748. As this action was brought by the personal representative to recover damages for the death of the seaman, the rights of the parties depend upon the statute and not upon the general maritime law, under which there can be no recovery on a death claim. Western Fuel Co. v. Garcia, 257 U.S. 233, 240, 42 S. Ct. 89, 66 L. Ed. 210; U.S. Shipping Board Emergency Fleet Corporation v. Greenwald, 16 F.2d 948 (C.C.A. 2). Consequently, it is not enough to show that the ship was unseaworthy, but it must appear that the death was caused by negligence chargeable in law to the employer. As it fairly appears that Kunschman's death was due to negligence in the construction of the engine which exploded, it remains to be seen whether that negligence is to be attributed to his employer, the owner of the Triumph.
That an engine of the type of the No. 4 would have been safe if there had been no negligence in respect to the air compressor piston, we shall assume for the purposes of this case, although there was a well-supported claim that faulty design in the ventilating system of the crank case contributed to the cause of the accident.
Gibbs Cox were not independent contractors, but acted for the government to supplement its own force of engineers. Although the defective engine was built by an independent contractor, McIntosh Seymour Corporation, the selection of the faulty piston was in every real sense the selection of Cook and so that of the libelees. While an owner who lets the construction of an engine to an independent contractor may not be responsible under the doctrine of respondeat superior for the negligence of such contractor or his servants, where the owner supervises the work and knows, or should know because of such supervision, that the engine is inherently dangerous, the owner is not freed of responsibility for its condition. The primary duty was on the shipowner to provide a safe engine in the fulfillment of its obligation to the deceased to furnish safe appliances with which to work. Panama R.R. Co. v. Johnson, supra. And the statute allows recovery for negligence in this regard. Howarth v. United States Shipping Board Emergency Fleet Corporation et al. (C.C.A.) 24 F.2d 374, although such owner is not an insurer. Burton v. Greig (C.C.A.) 271 F. 271. When it undertakes to fulfill this duty by means of an independent contractor but nevertheless keeps such control over the work that it has, or is charged with, the same knowledge of defects it would have had if it had done the work itself and one of its employees who is furnished the appliance with which to work is injured because of a defect due to negligent construction, the proximate cause of the injury is not the negligence of the independent contractor, but that of the shipowner. Under such circumstances the owner cannot escape responsibility for the negligence because in law it is its own. See Caspersen v. La Sala Bros., 253 N.Y. 491, 171 N.E. 754; Hooey v. Airport Construction Co., 253 N.Y. 486, 171 N.E. 752, 754. As was said in the last-cited case: "Escape from responsibility through the delegation of duty to another is a defense to be proved, not a privilege presumed." In this case the evidence is conclusive that the McIntosh Seymour Corporation was not under contract to build suitable Diesel engines for the Triumph, but to build the engines, according to the plans and specifications of the owner and under the owner's actual controlling supervision, which the owner wanted built. No permitted delegation of duty to a competent independent contractor was shown even if it be assumed for the purposes of this case that the duty could be delegated.
Considering the age and circumstances of the deceased and his parents and the fact that he contributed $20 a week to their support, $8,000 represents, in our opinion, the reasonable pecuniary value of the loss sustained through his death.
Decree reversed, with directions to enter a decree for the libelant to recover the sum of $8,000.