Opinion
Rehearing Denied Sept. 26, 1930
Hearing Granted by Supreme Court Oct. 23, 1930
Appeal from Superior Court, City and County of San Francisco; Daniel C. Deasy, Judge.
Action by Henry Petersen against C.F. Klitgaard and the Naknek Packing Company. Judgment for plaintiff against defendant last named and in favor of defendant first named, and defendant last named appeals.
Judgment against last named defendant reversed.
See, also, 284 P. 519.
COUNSEL
F.V. Keesling and C.A.S. Frost, both of San Francisco, for appellant.
Daniel A. Ryan, of San Francisco (George F. Snyder, of San Francisco, of counsel), for respondent Petersen.
Bronson, Bronson & Slaven, of San Francisco, for respondent Klitgaard.
OPINION
CAMPBELL, Justice pro tem.
This is an appeal from a judgment entered upon the verdict of the jury awarding plaintiff $15,000 damages against Naknek Packing Company and in favor of defendant C.F. Klitgaard on account of personal injuries sustained by plaintiff on appellant’s steamship while he was employed by defendant Klitgaard, a master stevedore, assisting in loading a vessel docked in San Francisco Bay.
Plaintiff in maintaining his action had three courses open to him. He could proceed in rem against the vessel, in personam in the admiralty court, or in personam at common law in the state court. Pottage v. Luckenbach Steamship Co., 206 Cal. 622, 275 P. 410, 412. He chose to proceed at common law in the state court. It appears from the evidence that plaintiff, who was working for the defendant Klitgaard, a master stevedore, employed under contract with the defendant Naknek Packing Company, owners of the steamship Hyades, was severely injured on April 25, 1927, by falling into the hold of the steamship when he stepped on the hatch cover at the starboard aft corner of No. 4 hatch, the cover giving way under him and letting him down onto the cargo, some 15 feet below. Plaintiff had been working for defendant Klitgaard on the Hyades several days prior to the day he was injured. The hatch covers had been placed on the hatch the Saturday previous to the accident at about 4:45 o’clock p.m., by a gang of men employed by defendant Klitgaard. On the day in question, plaintiff started to work at 8 o’clock on the dock hauling cargo to the ship. About 9 in the morning he got an order to go down into No. 4 hold to get some slings. Paddy Clark, the gang boss, gave the order to plaintiff and his working partner, Otto Flinkenberg. Henry Galland, the work boss, was mad and hollered at them, and Clark cursed plaintiff and Flinkenberg, and they were hurrying to get the slings. Plaintiff and Flinkenberg went to the hatch and took hold of the tarpaulin covering and moved it forward almost to the first strongback. They were looking for the ladder to go down into the hold. They looked down through the crack, and, not seeing the ladder, knew then it would be at the front or forward end of the hatch. Plaintiff was on the starboard and Flinkenberg on the port side. Before they started to remove the tarpaulin, it covered the whole hatch. Before they could take the hatch cover off, it was necessary to throw the far or forward tarpaulin or cover back. Flinkenberg, who had gone around the hatch, had thrown the tarpaulin on the forward port corner, and plaintiff, instead of going around the hatch, as it is customary to do, stepped up on the starboard aft corner of the hatch cover and started across the hatch, hurrying because the gang boss and work boss were mad and cursing at him. He took about two steps, when one of the hatch covers gave way, and he fell into the hold of the ship, receiving the injuries complained of. No one saw plaintiff fall or knew of the accident until after it had occurred.
The steamship Hyades was inspected on April 19, 1927, six days before the accident, and the certificate of inspection shows that at that time all things conformed with the laws governing the steamboat inspection service and the rules and regulations of the board of supervising inspectors. Against this is the testimony that the planks used as hatch covers were worn and too short. The witness Flinkenberg testified: "I looked at them when I took them off. I found some in pretty bad shape, they were worn around the edges, around the corners, some were pretty round and did not fit in. They were kind of short for this plate. There is a plate in there. If I shove them as far as I can on the plate it would not be safe to walk on there." The witness Gregory stated: "The hatch covers were all on there but that corner hatch. There was a space there that I could put my hand in, down between the coaming and the hatch. They were not snug *** some were old and some were new planks, those that were worn round were real old planks." From the witness Ford’s testimony it appears: "It just seemed as though you could shake them in between, you could shake and rattle them, they were too dangerous to work on *** they were worn where they rested on the flanges or lips, and they were too short." The witness Loberg stated: "They did not fit properly, they were too short, there was play in them fore and aft. Some of the ends were worn underneath, but not all of them, but some of the sharp edges were gone." And plaintiff testified: "I fell through because the hatch was too short." He also says that his memory was very poor after the accident, but that he thinks he stepped on the after section of the hatch about opposite the winch, a little to the starboard, probably the first or second board to the starboard of the center. In this he is evidently mistaken, as the testimony without contradiction shows that it was not the first or second board that fell through the hatchway, but the corner board, and that all the rest of the boards remained in place. The witness Schwartz testified: "The board that was down there was at the corner. The board that was down there could not fit anywhere else but that corner. *** When I first saw the hatch the corner was the only one that was out."
We have searched the record in vain for any testimony showing that this corner board was worn or too short, nor has respondent mentioned any such testimony in his brief nor pointed to any in the record. On the contrary, the evidence shows that, if the board was properly placed, it would not go through. While it is the duty of the owner of the ship to furnish stevedores working thereon with a reasonably safe place to work, the ship’s company cannot be held liable because of defective hatch covers unless they contribute in some way to the accident. As the corner board which was rounded on one corner to fit the rounded corner of the hatch coaming was the only one that fell, it is just as reasonable to suppose from the evidence before us that it fell because of being improperly placed by the stevedores working for Klitgaard when the hatch was closed by them on the Saturday preceding the accident as it is to conclude that it fell because it was worn or too short. Plaintiff’s claim for damages being predicated upon defective hatch coverings, it was upon him to show that the hatch cover which fell through the hatchway was defective; the circumstances here not being such as to call for the application of the doctrine of res ipsa loquitur. Furthermore, it appears without contradiction that the hatch cover in question was replaced upon the hatch by Klitgaard’s men, that this board after the accident continued to be used, and that, if this hatch board was properly placed, it would not fall through.
Captain Genereaux, a marine engineer called by defendant Klitgaard, testified that the hatches in general were in good fair condition as far as the wood was concerned, except that the new hatches were in excellent condition and each hatch cover "quite in order," with the exception of the corner one, which, according to his measurements— he did not test it, did not try to force it down, but by measuring the distance, the distance between the hatch and the coaming— he found it could be forced down. That was the only hatch on the after section that he found by his measurements was not in a safe position where it was when he found it. But on being confronted with the dimensions of this hatch cover (which he numbered "36" and which is numbered "S.A. 1" by Engineer Smith), he admitted that the difference between the coaming and the strongback was six feet and five-eighths inches, which would be a difference of only one-eighth inch, so that the hatch-board in the starboard aft corner, which his error in measurement— or, as he said, "I made an error on that hatch"— led him to think it was not in a safe position, was also all right.
On the plan drawn by Engineer Smith (defendant Naknek Packing Company’s Exhibit E), the hatch cover is designated as "S.A. 1." The measurements thereon agree exactly with the witness Genereaux’s measurement, to wit, six feet and five-eighths inches. Smith’s testimony also agrees with that of Genereaux that there was a difference or variation in the distance between the hatch coaming and the strongback from lip to lip. "The shortest board is six feet five and three-eights inches and the (longest) distance is six feet six and five-eighths inches. The difference is one and one-quarter inches or one and three-eighths inches. If we happen to get the longest one in the place of the shortest one, that would be the maximum amount that the line would show broken" (line painted across hatch covers).
The steamship Hyades was built in the year 1900, and consequently was twenty-seven years old at the time of the accident, and had during these years developed a slight bend in the after-hatch coaming amounting to one and one-quarter inches. It further appears without conflict that about April 1, 1927, the ship’s master marked the hatches; that he marked on the after tier a red stripe three inches wide right across, a green stripe across the middle section, and a white stripe across the fore section so that it could be seen if the hatches were in line and in the right places. These stripes were freshly painted and plainly visible at the time of the accident. In this respect the facts in the present case are similar to those in the recent case of Seaboard Stevedoring Corp. v. Sagadahoc S.S. Co., 32 F.2d 886, decided by the United States Circuit Court of Appeals, Ninth Circuit, May 20, 1929, wherein the evidence shows that there was a bend in a strongback or coaming so as to necessitate provision of hatch covers of different lengths and which were marked so as to indicate they should be carefully and properly placed. There it is held that a shipowner is not held to a high degree of care to see that the covers are properly placed by the stevedore, whose duty it is to place and replace them.
It appears from the testimony quoted that the after starboard hatch cover which fell and let plaintiff down into the hold was not too short, and there is no testimony that it was worn, that it was plainly marked not only by the painted stripe, but also by a rounded corner, so that it would fit the rounded coaming at that corner if properly placed; and we can but conclude from the foregoing that the owner of the vessel exercised reasonable diligence, at least so far as the hatch board in question is concerned, to furnish reasonably safe hatch covers.
As to appellant’s contention that hatchways on ships are known sources of danger and that their uses and locations on ships even when wholly covered, are calculated to warn rather than to induce persons familiar with ships to step upon them, or, in other words, that it is contributory negligence for a stevedore to step upon a covered hatch without first seeing that it can be done with safety, it may be said that while Dwyer, Adm’x, etc., v. National Steamship Co., 4 F. 493 (C.C.E.D.N.Y.1880), seems to support this contention, the later cases hold that it is not negligence as a matter of law for a stevedore unloading a vessel to step upon a covered hatch before investigating to ascertain whether the hatch cover is defective (Ford v. Allen Steamship Co., 227 Mass. 109, 16 N.E. 505), and that the court is justified in submitting the question of negligence to the jury. (International Mercantile Marine Co. v. Fleming [C.C.A.] 151 F. 203).
Respondent contends that a "stevedore" is a "seaman" within the meaning of the Jones Act (46 USCA § 688), providing, "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply, ***" and cites International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 159, as so holding, and that, under the authority of Standard Oil Co. v. Anderson, 212 U.S. 218, 29 S.Ct. 252, 254, 53 L.Ed. 480, the relation of master and servant exists between the owner of the vessel and the stevedore. The court in that case uses this language: "It sometimes happens that one wishes a certain work to be done for his benefit, and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work, and places them under his exclusive control in the performance of it, those men become pro hac vice the servants of him to whom they are furnished." The court there also says: "Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking."
An independent contractor may be subject to direction of the ship-owner without affecting the relationship of employer and employee, the stevedore transmitting such orders to his men. The ship’s officer customarily in charge is in command of the ship, discharging the responsibilities other than those relating to stevedoring. In other words, he will note that a hatch is covered, if it should be. It is not his duty to inspect the detail by removing the tarpaulin, or, if not covered by a tarpaulin, to do more than to note that the hatch covers are placed thereon. The testimony shows that, while the ship’s officers had the right to give orders to Klitgaard, the master stevedore (or his appointed boss) as to what was to be done in stowing cargo or covering hatches and to see that it was done, they could not and did not interfere with how it was to be done.
However, whatever may be the rule elsewhere, Pottage v. Luckenbach Steamship Co., supra, has established the status of a stevedore in this state as to his coming under the provisions of the Jones Act and his relationship with respect to his being an employee of the shipowner. In that case the court says: "The Jones Act, as above noted, made the Federal Employers’ Liability Act (45 USCA § § 51-59) the rule of decision in actions by employees for personal injuries resulting from marine service to their employers. But it does not apply to any such situation unless the relation of master and servant does obtain; hence, in the cause before us, the act may have applied to the stevedore company, but it does not apply to the steamship company, and said paragraph is out of place now that the employer is out of the case."
As the conclusion we have reached disposes of the case upon its merits, it becomes unnecessary to discuss the point urged that the court erred in denying defendant Naknek Packing Company’s motion to amend its answer so as to set up the defense of the fellow-servant rule, as also the assignment that the court erred in refusing certain instructions.
The judgment against appellant is reversed.
We concur: TYLER, P.J.; CASHIN, J.