Opinion
April 9, 1920.
E. Clyde Sherwood [ Edward J. Redington, William B. Davis and Amos H. Stephens with him on the brief], for the appellant.
Theodore H. Lord [ John C. Robinson with him on the brief], for the respondent.
This recovery, if sustained, puts on the employing stevedore a stringent obligation quite beyond the field and work of loading. It calls for a care and obligation regarding objects beyond the master's control, which, if attempted, would put a stevedore into conflict with the officers of the ship, especially those of a government vessel. The gangways of a government transport are put out during the ship's stay in port, for accommodation of the crew, also to take aboard military forces going overseas, and are not something specially furnished for longshoremen. In the absence of anything to excite suspicion or apprehension, the defendant might assume that due care would be used by those in charge of the transport. The foreman stevedore, however, might notice (and if necessary examine and test) anything faulty in the steps, railings or lifelines in a gangway, even on a government vessel. But in the absence of any such knowledge, or indications of defects, he cannot be chargeable with notice of the wear or internal decay of a part of the ship's permanent standing rigging far above where the men are to pass. His duty of reasonable care toward the things his men will use may extend to the ship's loading appliances, and even to its permanent fixtures, such as an eyebolt visibly corroded (See Liverani v. Clark Son, 191 App. Div. 337, decided herewith); but the scope of his work and the lack of control and management are reasonable limits upon such a requirement. After such an unusual casualty as the weight of four men bringing down the companionway of a troopship, the stevedore cannot be blamed because he had never demanded from the ship's officers to have the standing rigging taken down and unrove for his inspection.
The evidence may possibly have made a prima facie case to recover against the shipowner (had the Celebes been a private merchant vessel, and not a government transport), but did not establish fault on the part of the stevedore. An employee cannot recover for an injury from such a defective place, where the place was not under the master's control, without showing that the employer had knowledge of the defect. ( Powell v. Cohoes Railway Co., 136 App. Div. 204 — a general principle specially applicable to shore laborers on a vessel; Hughes v. Leonard, 199 Penn. St. 123; Moynihan v. King's Windsor Cement, etc., Co., 168 Mass. 450; O'Malley v. N.Y., N.H. H.R.R. Co., 210 id. 344.)
Therefore, appellant's exceptions to the denial of its motions to dismiss the complaint when plaintiff rested, and at the close of the whole case, should be sustained. This result does not require us to consider the defense under the State Workmen's Compensation Law, claimed to be available by the amendment of October 6, 1917 (40 U.S. Stat. at Large, 395, chap. 97, §§ 1, 2), to subdivision 3 of section 24 and subdivision 3 of section 256 of the Federal Judicial Code (36 U.S. Stat. at Large, 1091, § 24, subd. 3; Id. 1161, § 256, subd. 3).
The judgment and order should, therefore, be reversed, with costs of the appeal, and the complaint dismissed, with costs.
JENKS, P.J., RICH, BLACKMAR and JAYCOX, JJ., concur.
Judgment and order reversed, with costs of the appeal, and complaint unanimously dismissed, with costs.