Muscelli v. Frederick Starr Contracting Co.

73 N.E.2d 536, 296 N.Y. 330

• Court: New York Court of Appeals
• Decided: May 22, 1947
• Status: Published

Opinions

Desmond, J.

Plaintiff’s complaint alleges that he, while employed by a corporation other than defendant and while boarding, by defendant’s invitation, a derrick boat owned by defendant but chartered to plaintiff’s employer, was injured when part of the deck or side of the craft gave way. The part of the boat which collapsed had been, according to the complaint, allowed by defendant to be and remain in an unsafe condition for a long time before the accident. Defendant served its answer, then moved on affidavits for summary judgment dismissing the complaint. The motion was denied. The Appel-. late Division affirmed the order but granted defendant leave to appeal to this court, certifying questions which call for a decision from us as to whether or not defendant was, as matter of law, entitled to judgment of dismissal.

From the pleadings, the moving affidavits and the countering affidavits,- there emerges a picture, complete and undisputed for present purposes, of the relation between, the parties and the cause of this injury. Plaintiff, employed by a sand and gravel company, had gone to work on the vessel when his employer chartered it from defendant, about five months before the accident. The “ wearing strip ” which broke or collapsed when plaintiff stepped upon it, was a sort of outside planking around the craft and was in bad condition when plaintiff’s employer took possession under the charter.

The charter, which was in writing, recited that the hiring was on a “ daily bare boat ” basis. It required the charterer (plaintiff’s employer) to make at its expense “ all repairs and changes both to hull and machinery ” and, at the end of the charter period, to return the craft to defendant in as good condition as when taken, ordinary wear and tear excepted. The derrick boat had no motive power (see Brooklyn v. Connell, 225 N. Y. 503, 505). . It is entirely clear, if not conceded, that this was a demise charter, one where.the entire control and possession of the vessel, and subsequent control over her navigation is “ surrendered to the charterer ” who thus becomes her “ special owner ” (Leary v. United States, 14 Wall. [U. S.] 607, 611). Such a charterer is clothed with “ the character or legal responsibility of ownership ” (Reed v. United States, 11 Wall. [U. S.] 591, 601) and is the owner for the voyage without any sale or purchase of the ship (United States v. Shea, 152 U. S. 178, 186, cited in Auten v. Bennett, 183 N. Y. 496, 501). Such a pro hac vice ownership, we think,, casts all responsibility onto the charterer, and makes it impossible to hold defendant, the actual owner, liable here.

It is clear that if we were governed by common-law rules defendant, as an owner long out of possession, would have no legal responsibility for the perilous condition (Mayor of Albany v. Cunliff, 2 N. Y. 165, 181; Kilmer v. White, 254 N. Y. 64; Culling s v. Goetz, 256 N. Y. 287; see Caldarola v. Moore-McCormack Lines, 295 N. Y. 463). Plaintiff, however, seeks support in the law maritime, for his theory of action. “ The complaint ” argues plaintiff’s brief, “ states g good cause of action * * * on account of its [defendant’s] breach of its requisite warranty of seaworthiness at the time of the charter.” There is, of course, no question but that, at" maritime law, the “ owner ” of a ship impliedly but absolutely covenants that she is seaworthy for her intended voyage (Scarf v. Metcalf, 107 N. Y. 211; The Osceola, 189 U. S. 158). But it does not follow that the actual owner, hiring out his ship and surrendering all possession and control, remains, nonetheless, liable on that implied covenant to third parties, with whom he is not in privity. None of the cases go nearly that far and there is much authority, direct or suggestive, the other way.

The cases pressed upon us by plaintiff deal with other situations. Seas Shipping Co. v. Sieracki (328 U. S. 85), while it enlarged the category of those to whom an owner owes the duty, had to do with the liability of an owner actually operating the vessel, not an owner out of possession, like defendant. Work v. Leathers (97 U. S. 379), Cullen Fuel Co. v. Hedger Co. (290 U. S. 82) and Pendleton v. Benner (246 U. S. 353) were suits by charterers against actual owners, on the latter’s implied contract with the former to furnish ships seaworthy for the intended voyages or services. De Pinto v. O’Donnell Transportation Co. (293 N. Y. 32) is not in point since there the owner apparently abandoned, on the trial, its contention that it was free from liability because the charter amounted to a demise. A probable reason for that change of position in the Be Pinto case is found in the proof in that record that the actual owner, though out of possession, was still under an express contractual duty to inspect and repair. Nor are the in rem cases (such as The Spokane, 294 F. 242, certiorari denied 264 U. S. 583, or The Arizona v. Anelich, 298 U. S. 110) helpful, since it is undisputed that the personified- ship itself, as distinguished from her owner remains liable in rem regardless of ownership, possession or charter.

So much is said in the briefs about Seas Shipping Co. v. Sieracki (supra) that we add a further comment thereon. The Supreme Court’s opinion carefully pointed out (328 U. S. at p. 89) that the precise question was “ whether the ship owner’s obligation of seaworthiness extends to longshoremen injured while doing the ship’s work aboard but employed by an independent stevedoring contractor whom the owner has hired to load or unload the ship.” The court announced that the humanitarian policy of the unseaworthiness rule is not to be “ confined to seamen who perform the ship’s service under immediate hire to the owner, but extends to those who render it with his consent or by his arrangement.” In the present case there was no relationship whatever between plaintiff and defendant. Plaintiff rendered no service, direct or indirect, to defendant, and defendant had nothing to do with plaintiff’s presence on the derrick boat (the allegation in the complaint that plaintiff “ was invited ” by defendant to go upon the boat does not mean, it is conceded, an actual or express invitation). Further on in the opinion in the Sierachi case, the Supreme Court said that the seaworthiness guaranty extends to persons like stevedores, “ intermediately employed ” to do the traditional work of seamen, and that the owner’s “ consent to performance of the service ” defines the boundary of the class to whom the duty is owed. The only “ owner ” in our case who consented to plaintiff’s presence on the ship, or employed him, directly or “ intermediately ”, was the pro hac vice owner, the demise charterer, not defendant. Finally, at page 97 of its opinion, the Supreme Court held that the liability for Sieracki’s accidental injuries arose as an incident “ of performing the ship’s service with the owner’s consent. ’ ’ That could not validly be applied to defendant here.

A charterer under a demise charter, that is, a charterer who is in full command and custody of the ship, is the owner pro hac vice with all the rights and obligations of an owner (Leary v. United States, supra; Scarf v. Metcalf, 107 N. Y. 211, 217, supra; see Hagar v. Clark, 78 N. Y. 45, 50). Such a charterer is the u owner of the ship for all intents and purposes ” (see Auten v. Bennett, supra, 183 N. Y. at p. 503). Liability for unseaworthiness is imposed upon the “ owner ” but in the case of a demise charter, it is the charterer who is the owner. That was the view taken in Bárbaro v. Auditore Contracting Co. (215 App. Div. 595, 601) where the court said, discussing liability to an injured longshoreman, for an unsafe winch, that the “ duty [to keep the appliance safe] cannot, in my opinion, be upon both the owner and the charterer.” The court, in Barbaro v. Auditor e Contracting Co. (supra), went on to say that if this charter was a demise, then the liability was the charterer’s only, otherwise it was the actual owner’s responsibility. The Barbaro ease was cited with approval in Kuhn v. City of New York (274 N. Y. 118, 131) where a charterer was absolved from responsibility for a ship’s condition, because that particular charterer lacked full possession and control. Presumably if that charterer had had such possession and control under its contract with the true owner, then it and not the true owner would have been answerable. The same idea is at least suggested in Judge Pound’s opinion in Barnevo v. Munson Steamship Lime (239 N. Y. 486,490) and by our decision in Lloyd v. Hedger Transportation Corp. (270 N. Y. 617).

. The English authorities, too, say that a chartering owner, divesting himself of control, divests himself also of liability (see Baumwoll v. Furness, 62 L. J. [Q. B.] 201, [1893] A. C. 8, and comment thereon at page 275 of the seventh edition of Maclaehlan on Merchant Shipping).

Very much in point, we think, is Matter of New York Dock Co. (61 F. 2d 777) where a claimant’s injury resulted from an unseaworthy condition which had existed before the pile driver had been chartered to one Converse by New York Dock Company. Said the Second Circuit Court of Appeals: “ 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.” The Circuit Court noted that the defect there was not a hidden one, and that the charterer was under a contractual obligation to put the pile driver in shape for use, and so the court did not find it necessary to say whether or not, under other circumstances, it would adopt the rule of MacPherson v. Buick Motor Co. (217 N. Y. 382) as to “ liability at large for latent defects which make things dangerous instrumentalities which one supplies to be used without test or change * * * ”. A more recent decision in another circuit is Vitozi v. Balboa Shipping Co. (69 F. Supp. 286 [District of Massachusetts]). The holding of that case was that the general or actual owner of a vessel was not liable to a longshoreman for injuries caused by the unseaworthy condition of the ship, since the obligation of seaworthiness was on the charterer, who, under charter party provisions, was the apparent or special owner. Discussing Seas Shipping Co. v. Sieracki {supra) the District Judge in the Vitozi case said that nothing in the Sieracki opinion “ intimates that the obligation of seaworthiness of a ship is imposed on anyone except the owner in control of the ship.”

In all of the above we have been treating the present case as one brought under the “ Osceola ” doctrine for unseaworthiness, not in tort for negligence. The maritime law, of course, gives recovery for negligence in appropriate cases. But, looking at the facts in the light most favorable to plaintiff, we find here no breach of duty by defendant and so there was no negligence (see Flat-Top Fuel Co. v. Martin, 85 F. 2d 39, 41, certiorari denied 299 U. S. 585 and Cullen Fuel Co. v. Hedger Co., 62 F. 2d 68, affd. 290 U. S. 82; see, also, the discussion in the New York Dock Co. case, supra, as to negligence as distinguished from unseaworthiness).

The orders should be reversed and the motion for summary judgment dismissing the complaint granted, with costs in all courts. The first certified question should be answered in the negative, the second certified question in the affirmative.