behind the braces and ribs on the floor of the tank. This was vaporized when heat from the acetylene torches and from the hot rivets was applied; and the gradual introduction of air into the compartment through the increased number of rivet holes ultimately produced a mixture of oil vapor and oxygen which became highly explosive and did explode.
V. I affirm the commissioner's finding that the testing of the forepeak tank by the Shipyard Corporation's expert was negligently done and that the presence of oily sediment could and should have been easily detected there by him or by employees of the Shipyard Corporation. This requires a word upon the question of proximate cause.
If the injury was, even in part, the direct result of the petitioner's failure to perform a duty which it had assumed jointly with the contractee, as I am persuaded that it was, then, of course, the liability of both or either follows. If, however, it be looked on as the result of successive negligent omissions, the question of proximate cause would be met. The fault of the Shipyard Corporation was in point of time closer to the disaster than that of the petitioner. But the negligent omission of a third party, without which the injury would not have occurred, is not always regarded as the intrusion of an independent event, breaking the chain of causation and freeing the original wrongdoer from liability. Upon this point, the American Law Institute, Restatement of the Law of Torts (Negligence), says at section 302: "The actor is often required to anticipate and provide against that occasional negligence which is one of the ordinary incidents of human life and therefore to be anticipated, particularly if there is little or no utility in the creation of the situation and the harm likely to be done is something more than trivial."
In the present case there was a great deal more than merely the anticipation of possible negligence on the part of the Shipyard Corporation. In fact, it really seems as though the petitioner had done everything within its power to invite the error. It had undertaken to steam and wash the forepeak. When it turned the vessel over to the Shipyard Corporation, it may not have "guaranteed" that it was gas-free, but it certainly represented impliedly that the work had been done. As a matter of fact, it had been so carelessly performed that it might be said that it had not been done at all. True, the contractor was not supposed to rely upon the work done, but as human beings ordinarily think and act, it was to be anticipated that a reasonable belief that it had been properly done would have had some effect upon the thoroughness of its own part of the work. In addition, there was a special and unusual situation which made it necessary that the test be carried out with the utmost care and thoroughness, as to which the petitioner left the contractor in ignorance.
VI. In fixing the petitioner's responsibility for what might be called passive omissions, it is to be borne in mind that in all cases the duty of care is commensurate with the danger present. The greater the danger, the greater is the care required. 45 C.J. 696.
The present case is one in which the threatened danger did not merely involve damage to property or a possibility of slight injury to a single man. The petitioner must have understood perfectly well at all times that carelessness would result in a major disaster involving a number of lives. I do not think it is imposing any unreasonable duty upon it to say that, as to the part of the work of making the job safe which it had voluntarily assumed, it was bound to do it with reasonable care and that, as to the part which it had delegated to another, it was bound not to withhold knowledge which was highly important to the proper performance of such delegated work.
VII. I therefore find that the injuries to the claimants were the result of negligence on the part of the petitioner.
The claimant's thirty-fourth, fifty-second, fifty-third, fifty-fourth, sixty-third, and sixty-fourth exceptions are sustained. The other exceptions need not be passed upon, as their subject-matter is covered by the findings and conclusions contained in this opinion.
The statements of fact contained in this opinion may be taken as special findings of fact and the statements of law may be taken as conclusions of law.
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