Muscelli v. Frederick Starr Contracting Co. , 296 N.Y. 330 ( 1947 )

The question presented involves an oral demise charter, confirmed by letter, of a nonpower boat in New York Harbor while in an unseaworthy condition and as a result thereof, the injury of a seaman employed by the charterer. The demise was on a daily bare-boat basis with all repairs to be made by the charterer. The seaman sued the owner alone and it is urged in defense that under a doctrine akin to our decision in Cullings v. Goetz (256 N.Y. 287) liability for the injury suffered may be imposed only upon the charterer since he had become the owner pro hac vice for the term of the charter. There is no question here of any negligence by the charterer in the handling of the boat or its equipment. The unseaworthiness had existed for a period of approximately one year prior to the charter and continued until plaintiff's resultant injury.

In The Osceola (189 U.S. 158, 175) the rule as to unseaworthiness was clearly stated: "That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship. Scarff v.Metcalf, 107 N.Y. 211." (Emphasis supplied.) For a long period courts proceeded upon the basis that liability for unseaworthiness flowed from contract but it has now been authoritatively settled in the recent case of Seas Shipping Co. v. Sieracki (328 U.S. 85) that it is absolute and non-delegable. Even prior to that time the Supreme Court of the United States in Cullen Fuel Co. v. Hedger Co. (290 U.S. 82, see, also, opinion of SWAN, C.J., below in 62 F.2d 68) had held that the owner might not limit liability on his personal warranty of seaworthiness of a deck scow as against the charterer. In other words that his liability to the charterer was in personam and unlimited. The facts in that case are very similar in some respects to those in the instant one. The petitioner there was the owner of a scow which it chartered at a fixed daily rate of hire arranged orally by telephone. The scow was chartered by the respondent to lighter ore from shipside in New York harbor to the plant of the consignee of the ore. "The day following the demise, while being loaded from the ship, the scow capsized, dumped her cargo, and damaged an adjacent wharf and vessel. Suits ensued, one of them by the respondent as bailee of the cargo, against the petitioner as owner of the scow. Limitation of liability was sought by the petitioner, but the district court refused a decree for limitation, finding that the scow was unseaworthy at the time of the demise." (290 U.S. at p. 87.) Three points were there decided: 1. That the owner's contract of warranty was personal; 2. that the respondent was entitled to recover as bailee of the cargo although the owner had made no contract and had no contract relations whatsoever with the cargo owner and although there was no allegation by the respondent of liability over to the cargo owner, and 3. that the warranty of seaworthiness was implied from the circumstances of the parties and the subject matter of the contract and could only be negatived by express covenant — that it was as much a part of the contract as any express stipulation (p. 88). The briefs in that case show that it was urged unsuccessfully by the petitioner that it had made no contract for the carriage of the cargo and that the charter was a demise whereby the charterer became the owner pro hac vice of the boat. It was likewise argued unsuccessfully (1) that the warranty was only as to the seaworthiness of the boat at the time of its delivery and was not continuous, and (2) that there was no implied warranty by the owner of the boat to the owner of the cargo but that there was an implied warranty of seaworthiness to the cargo owner by the charterer.

It must be noted that the Sieracki case (supra) involved a stevedore and not a seaman and therefore went further than is necessary here where a seaman is involved. Neither reason nor cited authority requires us to hold that the liability of an owner for unseaworthiness exists in favor of the charterer and even of a bailee of a cargo and yet does not extend to a seaman in the employ of the charterer. As was said in the Sieracki case, the warranty of seaworthiness imposes an absolute duty, and thus absolute liability, to all who come within the range of its humanitarian policy. It seems to me that the seaman is more within the range of that policy than the charterer and cargo bailee in the Cullen Fuel Co. case (supra). The following from the Sieracki case (pp. 93-94) well expresses the reason for and the scope of this policy: "Because rationalizing the liability as one attached by law to the relation of shipowner and seaman, where this results from contract, may have been thought useful to negative the importation of those common-law tort limitations does not mean, however, that the liability is itself contractual or that it may not extend to situations where the ship's work is done by others not in such an immediate relation of employment to the owner. That the liability may not be either so founded or so limited would seem indicated by the stress the cases uniformly place upon its relation, both in character and in scope, to the hazards of marine service which unseaworthiness places on the men who perform it. These, together with their helplessness to ward off such perils and the harshness of forcing them to shoulder alone the resulting personal disability and loss, have been thought to justify and to require putting their burden, in so far as it is measurable in money, upon the owner regardless of his fault. Those risks are avoidable by the owner to the extent that they may result from negligence. And beyond this he is in position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its cost.

"These and other considerations arising from the hazards which maritime service places upon men who perform it, rather than any consensual basis of responsibility, have been the paramount influences dictating the shipowner's liability for unseaworthiness as well as its absolute character. It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character. Mahnich v. Southern S.S. Co., supra [321 U.S. 96]; Atlantic Transport Co. v. Imbrovek,234 U.S. 52 [34 S.Ct. 733, 58 L.ed. 1208, 51 L.R.A. (N.S.) 1157];Carlisle Packing Co. v. Sandanger, supra [259 U.S. 255]. It is a form of absolute duty owing to all within the range of its humanitarian policy."

It seems clear from that and other language in the opinion in the Sieracki case that this humanitarian policy of the law is not to be confined to seamen or stevedores 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 or to intermediary employers such as charterers or master stevedores. This is made more clear when we consider that the owner of a vessel who charters her "is bound to see that she is seaworthy and suitable for the service in which she is to be employed. If there be defects known, or not known, he is not excused." That is his obligation to the charterer. (Work v. Leathers,97 U.S. 379, 380.) The liability under the warranty is thus clearly not dependent on the owner's occupation and control but upon the existence of unseaworthiness at the time of the charter. This differs from our State court rules applicable to a lease or demise of real property. This is not to say, of course, that there was not liability here also to the seaman on the part of the charterer. The liability was several. (Seas Shipping Co. v.Sieracki, supra, at p. 89.)

The cases decided prior to the Sieracki and the Cullen FuelCo. cases (supra) are not very helpful. However, no case has been cited to us in this State which holds the law to be as the defendant here contends. On the contrary, the matter came before us in De Pinto v. O'Donnell Transportation Co. (293 N.Y. 32). In that case the owner had chartered a nonpower boat to one Dwyer. De Pinto, a stevedore, while working on the boat, stepped on a hatch cover which became displaced causing him to fall into the hold. His widow brought action against the owner and charterer Dwyer and the matter of the warranty of seaworthiness was litigated as between the defendants and submitted to the jury. The jury rendered a verdict against the owner and in favor of the charterer. In our opinion we said (p. 36): "The evidence amply supports the finding by the jury that there was negligence on the part of the defendant-appellant and freedom from contributory negligence on the part of the deceased."

In Caldarola v. Moore-McCormack Lines (295 N.Y. 463), the plaintiff, a longshoreman, sued a defendant which had neither ownership, possession nor control of the vessel. The case is not applicable here and the question of unseaworthiness was not presented to us.

The judgment should be affirmed and the first question certified answered in the affirmative and the second in the negative.

LOUGHRAN, Ch. J., LEWIS, THACHER, DYE and FULD, JJ., concur with DESMOND, J.; CONWAY, J., dissents in opinion.

Orders reversed, etc.