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Lyon v. United States

decided: April 2, 1959.

RANDOLPH G. LYON, LIBELANT-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE-APPELLANT, AND PROJECT CONSTRUCTION CORP., RESPONDENT-IMPLEADED-APPELLEE.



Before MEDINA and HINCKS, Circuit Judges, and MATHES, District Judge.*fn*

Per Curiam.

The District Court rightly held that the libelant, an employee of the impleaded contractor, was entitled to no warranty of seaworthiness. He was engaged in a type of work not "traditionally done by seamen." United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 79 S. Ct. 517, 519.

To the negligence count maritime, rather than state law, applied. Kermarec v. Compagnie Generale Transatlantique, 79 S. Ct. 406. The District Court found that the United States had no power of supervision or control over the work and was under no duty to provide temporary protection for the libelant. This finding is not assailed, and in any event is not clearly erroneous. McAllister v. United States, 348 U.S. 19. 75 S. Ct. 6, 99 L. Ed. 20; Alison v. United States, 2 Cir., 251 F.2d 74. In the absence of power to supervise or control the work, the shipowner cannot be held negligent. Filipek v. Moore-McCormack Lines, 2 Cir., 258 F.2d 734, certiorari denied 79 S. Ct. 605.

Affirme ...


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