Opinion
No. 198, Docket 25334.
Argued March 4, 1959.
Decided April 2, 1959.
Jack Steinman, New York City (Harry H. Lipsig, New York City, on the brief), for libelant-appellant.
Walter L. Hopkins, Atty., Admiralty Shipping Section, Dept. of Justice, New York City (George Cochran Doub, Asst. Atty. Gen., Cornelius W. Wickersham, Jr., U.S. Atty., for the Eastern District of New York, Brooklyn, N.Y., Leavenworth Colby, Chief, Admiralty Shipping Section, Washington, D.C., and Benjamin H. Berman, Atty., Admiralty Shipping Section, Dept. of Justice, New York City, on the brief), for respondent-appellee-appellant.
Edmund F. Lamb, New York City (Purdy, Lamb Catoggio, and Arthur V. Lynch, New York City, on the brief), for respondent-impleaded-appellee.
The District Court rightly held that the libelant, an employee of the impleaded contractor, was entitled to no warranty of seaworthiness. He was engaged in a type of work not "traditionally done by seamen." United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 79 S.Ct. 517, 519.
To the negligence count maritime, rather than state law, applied. Kermarec v. Compagnie Generale Transatlantique, 79 S.Ct. 406. The District Court found that the United States had no power of supervision or control over the work and was under no duty to provide temporary protection for the libelant. This finding is not assailed, and in any event is not clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Alison v. United States, 2 Cir., 251 F.2d 74. In the absence of power to supervise or control the work, the shipowner cannot be held negligent. Filipek v. Moore-McCormack Lines, 2 Cir., 258 F.2d 734, certiorari denied 79 S.Ct. 605.
Affirmed.