Lyon v. United States

265 F.2d 219, 1959 U.S. App. LEXIS 5113

• Court: Court of Appeals for the Second Circuit
• Decided: April 2, 1959
• Docket: 25334
• Status: Published

Opinion

265 F.2d 219

Randolph G. LYON, Libelant-Appellant,
v.
UNITED STATES of America, Respondent-Appellee-Appellant, and
Project Construction Corp., Respondent-Impleaded-Appellee.

No. 198, Docket 25334.

United States Court of Appeals Second Circuit.

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.

Before MEDINA and HINCKS, Circuit Judges, and MATHES, District Judge.1

PER CURIAM.

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. Compagnic 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 denied79 S.Ct. 605.

Affirmed.

1 United States District Judge for the Southern District of California, sitting by designation