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March 18, 1947

SHIELDS et al.

The opinion of the court was delivered by: KIRKPATRICK

The libellant joined the steamship 'Hannibal Hamlin' as a member of the crew on September 18, 1944. At the time, longshoremen were engaged in loading cargo into the holds and the libellant was assigned to the duty of oiling the deck winches. On the morning of the third day of his employment, while he was oiling the port winch at No. 2 hatch, the machinery was prematurely started by the winch operator, an employee of the stevedore, and the liballant suffered injuries which resulted in the amputation of his left hand and a degree of permanent impairment of the right.

Two suits were instituted in his behalf (he being then a minor), one a suit at law against the stevedore, B. H. Sobelman & Co., and the other, the present suit, in admiralty, against the United States as owner and (through an agent) operator of the vessel. The Sobelman case came to trial first and, after the liballant's case was closed, a settlement was made by which the libellant received $ 30,000. The release contained an express provision that the settlement was without prejudice to his claim against the vessel, her owners and operators. The testimony in the Sobelman case ( Shields v. Sobelman, D.C., 64 F.Supp. 619) has been, by stipulation, received as part of the evidence in this case.

 The libel charges the respondent with negligence in starting the winch and with a number of other negligent acts and omissions, all of which are rather closely related to that act. Now, however, after the hearing, the libellant contends that the negligence consisted in (1) failing to instruct an inexperienced seaman, (2) supplying the libellant with a defective oil can, (3) providing a place to work which was unsafe by reason of the improper method of operating the winch adopted by the longshoremen.

 Findings of Fact.

 1. Instructions.

 The libellant was a new hand but by no means a green one. He had received three months training at the Maritime Service Training School in the engine room course and had there been instructed in oiling deck winches like those on the Hamlin. He had made half a dozen voyages covering the period of a year, serving as an oiler on all of them. There had been no occasion for him to oil deck winches on those ships, which were tankers, but he had observed the oiling of such winches as they had. He was 20 years old and, judging by his appearance and testimony, an intelligent young man. He had spent the two days before the accident oiling the winches on the Hamlin and had probably performed the operation between 50 and 100 times. On the morning of the accident, the first assistant engineer stood by watching him while he oiled the starboard winch at the No. 2 hatch and observed that he did the work in a proper and satisfactory manner. He was, of course, entirely familiar with the construction of cargo winches and knew how they worked. There was no testimony as to how long it would take a man of Shields' training and experience as an oiler to learn all there was to know about oiling any particular type of winch, but one can hardly believe that more than an hour would be needed.

 At no time did Shields ask for instructions. Nor did he at any point in his testimony assert that any lack of experience or ignorance of the operation of the winches or of the method of oiling them on his part was in any way responsible for his injury. As a matter of fact, he would not have been hurt had he not attempted to oil a bearing by thrusting his hand through an opening in the flywheel, and it would have been unnecessary and really absurd to have explained to a man of his experience and intelligence that that would be a dangerous thing to do and that his hand would be caught if the winch should start.

 2. Oil can.

 The oil can with which Shields was working had a broken spout which made it about three inches shorter than the ordinary type of can used for oiling the winches. Without regard to the question whether there is anything dangerously defective about such a can, the fact is that the shortened spout had nothing to do with the accident. The regular length oil can was too short, by five inches, to reach the bearing from outside the flywheel and if Shields had had one he still would have had to put his hand through the flywheel, so long as he chose to oil the bearing from the place where he attempted to do it.

 3. Method and Place of Work.

 The work of loading cargo was entirely in the hands of the stevedoring company, an independent contractor. The place where the work was being performed, however, was the deck of the vessel which was in the respondent's control with crew and officers on board.

 An employer's duty to his own employees to see that the place where they work is safe is non-delegable -- -that is to say, it is in nowise affected by the fact that employees of an independent contractor are doing most of the work. Closely assimilated to the duty to furnish a safe place for his own employees to work, and not always distinguishable from it, is the duty to see to it that they are not subjected to danger in the course of their duties by reason of any improper or unsafe methods of carrying on the work by employees of the independent contractor. In most cases the result of such improper methods of work is to create an unsafe place for the employer's own men to perform their work and hence the close interrelation of improper methods and unsafe place. In the present case they come very close to amounting to the same thing and need not be separately considered. Of course, the respondent could not control the manner in which the longshoremen did their work but it was under a duty not to assign its own employees to duties which the longshoremen's method made unsafe.

 At No. 2 hatch there were two large cargo winches, one on each side of the deck. Each winch had its own separate control, or throttle, and each winch had a brake. For reasons of convenience, or possibly of economy of manpower, the stevedore had rigged a pair of long wooden handles by means of which one man standing between the two winches could operate both, either simultaneously or separately. This arrangement, the libellant contends, led to an improper method of operation which made it dangerous for a man at work oiling the winches, because the winch operator, standing between the wooden handles, would not be likely to see him unless he turned his head. At the time of the accident the operator was not looking and did not see that Shields was working on the winch, and his starting the winch without warning was one of the two prime causes of the accident, the ...

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