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THE W. D. ANDERSON

January 13, 1937

THE W. D. ANDERSON; In re ATLANTIC REFINING CO.


The opinion of the court was delivered by: KIRKPATRICK

This is a proceeding in admiralty upon a petition for limitation of liability by the owner and operator of the oil tanker W. D. Anderson.

On June 7, 1934, at 5:10 p.m., while the vessel was in dry-dock at the plant of the Kensington Shipyard & Drydock Corporation undergoing repairs, an explosion occurred in the forepeak water ballast tank of the ship. Three men were killed and fifteen others injured, all of them being employees of the Shipyard Corporation and engaged in work upon the ship. The petitioner claims exemption from liability upon the ground that the accident resulted solely from the negligence of an independent contractor.

 The commissioner, appointed to hear, try, and decide the issue, has filed a very carefully considered report, finding the facts and concluding that the petitioner is under no legal liability to the claimants.

 The facts need not be restated, except so far as necessary to an understanding of the question involved. As to certain facts, I differ somewhat from the commissioner and shall find them specially. As to all others, not inconsistent with such special findings, I affirm and adopt, as the findings of the court, the facts reported by the commissioner.

 Several months before the accident, the W. D. Anderson sustained grounding damage, but continued in trade until it was determined to make the necessary repairs. She was delivered to the Shipyard Corporation during the morning of June 7 and had been in dry-dock some six or seven hours when the explosion occurred.

 I. I agree with the commissioner that the Shipyard Corporation had been placed in complete control of the vessel prior to the accident and that it was, as to the repair work, an independent contractor within the ordinary meaning of that term. But the contract was in some respects unusual and must be examined in detail, particularly with regard to the division of responsibility for taking precautions against the presence of oil vapor in the vessel. The following special findings are therefore made:

 First. The contract involved the doing of work which both parties knew, or should have known, was sure to be dangerous unless the forepeak compartment was entirely free from oil sediment which might volatilize as explosive gas vapor. The petitioner knew that work would be done upon the forepeak. Repairs to a tanker were nothing new to it, and it must have known that acetylene torches would be used.

 Third. The contract was an oral contract. The papers drawn up and signed by the parties were not intended by them as a complete integration. There were oral terms. Then, too, the custom of seven years' standing by which the petitioner had regularly steamed, washed, and tested its vessels before it delivered them to the Shipyard Corporation for repairs was tacitly incorporated into the agreement or at least made a basis for it. It is not necessary, however, to detail the various circumstances surrounding the contract which lead to the conclusion that it was in fact oral (although I have no doubt upon the point) because, even if the contract were a written one, the parol evidence rule does not apply where the rights of third partise depend upon ascertaining the real contractual relationship of two other parties. Wigmore, § 2446.

 Fourth. The actual obligation assumed by the contractor in respect of precautions for the safety of workmen was (a) to make a test to ascertain whether the vessel, after having been steamed, washed, and tested by the owner, was in fact gas free -- in other words, to ascertain whether the work done by the petitioner had been properly done and to make certain that nothing new had occurred which required further precautions. (b) If this test revealed that the compartment was not safe and that more work had to be done, then and only then the duty of completing the job devolved upon the contractor. The petitioner would still be required to contribute, but only to the extent of furnishing steam, at its expense, for further steaming. As a matter of fact, the petitioner kept some men aboard in order to keep steam up if it should be required. What additional washing was to be done the contractor was to do and, in addition, if the tanks required "cleaning" (giving that word the specialized meaning of loosening and removing oil adhering to the walls of the tank, which it apparently had for the parties), the contractor was to do that also.

 II. I also agree with the commissioner that the law of Pennsylvania governs. In Silveus v. Grossman, 307 Pa. 272, 161 A. 362, the Pennsylvania Supreme Court wholly repudiated the doctrine of Bower v. Peate, 1 Q.B.Div. 321, to the effect that even an independent contract will not relieve the contractee of the duty of seeing to it that precautions necessary to make certain types of work safe are taken.The Pennsylvania court held that, whether the work is inherently dangerous or of a type from which danger may be expected to arise unless precautions are adopted to avert it, the contractee is not liable for the negligent act or omission of an independent contractor. The rule of the federal court for this circuit is otherwise ( Doll & Sons v. Ribetti [C.C.A.] 203 F. 593), but with this we are not further concerned.

 But the Pennsylvania rule has to do only with an injury which results solely from the negligence of the contractor, and when the injury is caused in whole or in part by the negligent act or omission of the contractee, the interposition of an independent contractor is no defense. "The rule exempting the contractee from liability for injuries resulting from the negligence of an independent contractor or his servants cannot be so extended as to relieve the contractee from liability for injuries caused by his own negligence, even though the contractor may also be negligent. * * * Where injuries are sustained by the servant of an ...


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