Nos. 27, 28.
November 7, 1932.
Appeal from the District Court of the United States for the Eastern District of New York.
In Admiralty. Separate petitions by the New York Dock Company, and by Howard P. Converse, doing business under the firm name and style of H.P. Converse Co., for exoneration and limitation of liability as owner and as charterer, respectively, of a certain pile driver, known as pile driver No. 2, opposed by Martin Hansen, which were heard together. From decree exonerating the New York Dock Company, claimant appeals, and, from decree holding Howard P. Converse, doing business under the firm name and style of H.P. Converse Co., liable, but entitled to limitation, such petitioner and claimant appeal; the appeals being heard together.
Decree in the petition of the New York Dock Company affirmed. Decree in the petition of Howard P. Converse modified to deny limitation of liability, and, as so modified, affirmed.
Howard P. Converse, doing business as H.P. Converse Co., chartered a pile driver of the New York Dock Company under a written agreement dated July 15, 1926. The pile driver had previously been inspected for Converse by a Mr. Heyer, his superintendent, and the agreement set forth this fact, together with the assertion that Heyer "is entirely familiar with the condition of the same." It was towed by the Converse Company to the foot of Exterior street, Harlem River, New York, where that company was driving piles in building a dock. The pile driver was on a scow forty-eight feet long, having a beam of 24½ feet and a depth of 5 feet 6 inches. The hammer tower was about 60 feet high, and the hammer weighed 3,200 pounds. The pile driver was chartered on the recommendation of Heyer, who testified that he inspected it before it was chartered "to see if this pile driver was suitable for the job we had to do, and I thought it was." He knew it had been idle for some months, and did not go up the tower during his inspection. After it had been towed to the foot of Exterior street, Heyer told a dock builder named Olsen, who was employed by Converse, to take four men and rig it for use. Olsen went to the top of the tower "and back again and looked all over the place." It appeared to him to be in good condition. He rigged it and for nine days it was used to drive piles. Then a wooden wedge, about 30 inches long and 6 inches wide, that weighed about 25 pounds fell out of its place 26 or more feet up on the tower and struck the claimant Hansen on the shoulder. He was seriously injured. This wedge had been placed in the crotch formed by joining a lead to the stiff leg and served to reinforce the lead and take up some of the vibration from the hammer. Its base had merely rested on a crosspiece without being nailed or bolted and adequate inspection would have revealed this fact. Its presence on the tower without being secured except by friction and the cross brace on which it rested made a dangerous condition for men working below, as it was liable to become dislodged by the vibration of the pile driver in use and to fall.
The claimant, Hansen, brought a suit against the New York Dock Company in the New York Supreme Court. Converse was made a party by supplemental summons and answered. Then the New York Dock Company as owner, and Converse, as charterer, of the pile driver, brought separate petitions for exoneration and limitation of liability to the District Court which the claimant answered without insisting upon having his action at common law tried on the merits. Accordingly, the two petitions were heard together in the District Court on issue joined on the merits and on the question of limitation. The New York Dock Company was exonerated, and claimant appealed from that decree. Converse was held liable but entitled to limitation. Both parties appealed.
Arthur Butler Graham, of New York City (Ralph A. Gilchrist, of New York City, of counsel), for New York Dock Co.
Harry S. Austin, of New York City, for claimant-appellant.
Alexander, Ash Jones, of New York City (Lawson R. Jones and Edward Ash, both of New York City, of counsel), for petitioner charterer cross-appellant Converse.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
Whatever the legal obligations of the New York Dock Company, under the charter or otherwise, may be to Converse, this claimant must look for indemnity solely to his employer, Converse, who had the entire control of the pile driver. Its faulty condition was not due to any hidden defect. Converse chartered the pile driver in its then present condition, after Heyer, his superintendent, had looked it over and decided that it was suitable for the intended job. Converse was to, and did, rig it for use. No one understood that it was ready for use when chartered. Consequently the New York Dock Company was not bound to furnish a seaworthy pile driver then safe for the employees of Converse to use in driving piles. Regardless of whether we might be disposed to adopt the doctrine of liability at large for latent defects which make things dangerous instrumentalities which one supplies to be used without test or change as developed through Devlin v. Smith, 89 N.Y. 470, 42 Am. Rep. 311, Statler v. George A. Ray Mfg. Co., 195 N.Y. 478, 88 N.E. 1063, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, Ann. Cas. 1916C, 440, L.R.A. 1916F, 696, and Smith v. Peerless Glass Co., 259 N.Y. 292, 181 N.E. 576, from the old falsely labeled poison case of Thomas v. Winchester, 6 N.Y. 397, 57 Am. Dec. 455, it should be plain that no such liability can rest upon the owner of a pile driver for defects which proper inspection would disclose when the charterer is to inspect and rig it for use. And so the decree below exonerating the New York Dock Company was right, since there were no hidden defects, and the pile driver was to be made ready for use by the charterer; not because the dock company's negligence as to the claimant was remote, but because it was not negligent at all; not because the pile driver was seaworthy, but because it was in the condition Heyer upon adequate inspection would have known it to be.
The negligence of the Converse Company rests on inadequate inspection and conditioning at the start and inadequate inspection and repair while the work was being done. The only reasonable explanation of how and why this wedge dropped is that it worked loose during the nine days because of the vibration in the tower from the hammer blows on the piles.
The suggestion that the men who inspected it for Converse may have assumed that the wedge was secured from the inside put forth a possibility, but at the same time discloses the certainty that, if so, they merely jumped to a conclusion both contrary to the fact and contrary to what they could have known the fact to be had they taken the pains to find out. In short, it was careless to make that assumption, and especially is this so because spike heads were to be seen in the base of a wedge opposite this one and similar in place and purpose. Nor does it matter that subsequent use without the wedge proved that its presence was unnecessary. The test is whether the pile driver was seaworthy with the wedge aloft and unfastened as it was, not whether it would have been seaworthy with no wedge there at all. When the pile driver was being rigged for use, it only needed the driving of a few spikes to resolve in favor of safety any doubt about whether or not this wedge was fastened.
The duty of Converse to furnish to the claimant a seaworthy pile driver on which to work was so clearly left unperformed because of the negligence of Heyer, his superintendent, that we shall pass to the question of the right to limit liability under sections 4283-4286 R.S. as amended (46 USCA §§ 183-186). This depends upon whether he has proved that the privity or knowledge of Heyer are not in law his own. Heyer was the general superintendent in charge of the work for Converse. He made the arrangements for hiring the pile driver, saw to the inspection and rigging of it, and controlled its use. It is true that Converse himself signed the written agreement with the dock company under which the pile driver was obtained, but otherwise in respect to it Heyer acted in his place and stead with full authority. At least it was not shown that Heyer did not have full and complete authority over it both as to its condition and use in behalf of Converse as his general superintendent in charge of the work. So the scope of the authority delegated to Heyer by Converse was so broad that his privity or knowledge as to the unseaworthiness of the pile driver was in law that of Converse. Spencer Kellogg Sons v. Hicks, 285 U.S. 502, 52 S. Ct. 450, 76 L. Ed. 903; In re P. Sanford Ross (C.C.A.) 204 F. 248; Chesapeake Lighterage Towing Co., Inc., v. Baltimore Copper Smelting Rolling Co. (C.C.A.) 40 F.2d 394; Boston Towboat Co. v. Darrow-Mann Co. (C.C.A.) 276 F. 778. We have been urged to change the amount of the award, but it is reasonable and just to all concerned.
Decree in Re Petition of New York Dock Company affirmed.
Decree in Re Petition of Howard P. Converse modified to deny limitation of liability, and, as so modified, affirmed.