Before CLARK, FRIENDLY and MARSHALL, Circuit Judges.
Williams, an employee of Wm. Spencer & Son Corporation, stevedores, brought this action in the Supreme Court of New York, Kings County, against Pennsylvania Railroad Company, to recover for personal injuries sustained as a result of certain acts of a Pennsylvania Railroad "hoister" while he was unloading a barge; the complaint alleged negligence and unseaworthiness. The Pennsylvania removed the action to the District Court for the Eastern District of New York on the ground of diverse citizenship. There it answered and filed a third-party complaint against Spencer claiming indemnification for any sum recovered by Williams. Trial before Judge Rosling without a jury resulted in a $2500 judgment for Williams against the Pennsylvania and a dismissal of the third-party complaint. We affirm Williams' judgment against the Pennsylvania but vacate the dismissal of the Pennsylvania's claim against Spencer and remand for further proceedings as hereafter set forth.
Williams' injury occurred while he was aboard and engaged in unloading a barge, the "#114", belonging to the Lehigh Valley Railroad, which was moored in navigable waters at a Brooklyn pier. Tied up alongside the barge, and helping to unload it, was Pennsylvania hoister #218, a scow carrying a crane with a 10-ton lifting capacity. The cargo being unloaded from the barge consisted of four large 6-ton crates containing "payloaders". Staples were set into the upper surface of the machines at each of the four corners, and protruded through the top of the crate. Hooks on lines running from the boom of the hoister's crane would be fixed in the eyes of these staples, and the hoister would then lift the crate to the pier. Spencer's foreman, Alexander, was in charge of the unloading, in which five Spencer stevedores were engaged. Wall, whose general employment was with the Pennsylvania as "captain" of the hoister, operated the crane on signals from Alexander.
After three of the crates had been removed without incident, Williams mounted the last to attach the hooks to the staples. A part of another crate containing a rocker shovel, which was not to be removed, overhung one corner of this last crate and thereby prevented attachment of the fourth hook. In order to make that possible, Alexander decided to have the payloader crate slid out from under the overhang of the shovel, by means of the three hooks that had been attached, at a level slightly above the deck. With Williams remaining on the crate, Alexander signalled Wall to "boom up" slowly; Wall complied. When the crate was about a foot above the deck surface, Alexander motioned Wall to stop. But the crate rose a little higher and struck the nether surface of the overhang. The impact caused one of the staples to detach, and the freed hook then backlashed and hit Williams in the face, with the result that he was catapulted to the deck from the tilting load and sustained further injury.
In an opinion, the judge found in favor of Williams and against the Pennsylvania both on the ground that the hoister was unseaworthy, in that Wall was not equal in disposition and seamanship to ordinary men in the calling, and on the ground that Wall was negligent. He dismissed the claim over because the Pennsylvania's own negligence was "active". The Pennsylvania challenges the judge's conclusion based on unseaworthiness, argues that Wall was acting as Spencer's employee rather than its own so that liability for his negligence should rest solely on Spencer, and asserts that it is entitled to indemnity from Spencer if held liable to Williams. We find it unnecessary to determine the contention with respect to unseaworthiness since we sustain the trial judge's conclusion as to negligence; with respect to indemnity our views differ from his.
Referring to Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), and Rich v. Ellerman & Bucknall S.S. Co., 278 F.2d 704 (2 Cir. 1960), the judge said, "The principle of Sieracki in light of the well reasoned gloss in Rich, supra, enfolds within its amplitude the factual situation which here confronts us wherein the vessel to be ruled unseaworthy is one other than the vessel upon which the effects of such unseaworthiness operate. Cf. Flanagan v. The H. F. Gilligan, 170 F.Supp. 217 (S.D.N.Y.1959)." What is critical, however, is not where the effect of the alleged unseaworthiness of the vessel operates, but upon whom.*fn1 Rich did not put a "gloss" on Sieracki in any respect relevant to that. Each was a longshoreman's suit against the owner of the vessel he was unloading; Rich differed from Sieracki only in that the unseaworthiness was not a defect in the ship's gear but one created by the stevedores themselves.*fn2 Neither does the Flanagan case, dealing with the claim of a barge captain against a tug, support so broad a conclusion as the judge seems to have drawn. Judge Bryan did not there disagree with the earlier statement by Judge Weinfeld in the same action, 170 F.Supp. 793, 794 (S.D.N.Y.1958), that "no case has gone so far as to hold that the doctrine [of recovery for unseaworthiness] extends to a non-crew member who does not perform a function traditionally performed by crew members with respect to the ship" sought to be charged; he held only that the libelant had put himself "within the contours of 'crew work'" by alleging that at the time of his injury he "was acting as a 'lookout' for the tug," while intimating some doubt that the proof would substantiate this claim, since the libelant was aboard the barge rather than the tug.
"Absolute and nondelegable" as the duty to furnish a seaworthy ship is, it is still a duty "which the owner of a vessel owes to the members of the crew who man her." United N. Y. and N. J. Sandy Hook Pilots Assn. v. Halecki, 358 U.S. 613, 616, 79 S. Ct. 517, 518, 3 L. Ed. 2d 541 (1959). It is true, as the Halecki opinion continues, that Seas Shipping Co. v. Sieracki, supra, and Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143 (1953), "made clear that the shipowner could not escape liability for unseaworthiness by delegating to others work traditionally done by members of the crew", but the reference is to the crew of the shipowner's ship, or persons doing their work, and not to the crew of another ship or persons doing their work, with whom the shipowner has no consensual relationship. Hence the status of the plaintiff in doing crew work for the Lehigh Valley barge, which he was aboard and engaged in unloading and by whose owner the services of his employer had been retained, would not in itself allow him to recover for the unseaworthiness of another ship, the Pennsylvania hoister. Any recovery by plaintiff for unseaworthiness of the hoister would have to rest rather on the basis that he might properly have been found to have been doing crew work for the hoister as well as for the barge. We are not required to pass on the issues that would be raised by such an argument, some of which we outline in the margin.*fn3 Neither need we determine whether the judge was justified in concluding that Wall was an "unseaworthy" employee.*fn4 For we sustain his alternative holding that Williams was entitled to judgment against the Pennsylvania on the ground of negligence.
The Pennsylvania does not seriously challenge the judge's finding that Wall, knowing, as he did, of the risk of impact with the overhang and of the eccentric listing stress caused by the absence of the fourth hook, was negligent in raising the crate on which he saw Williams to be standing. Its defense to the negligence claim is rather that Wall was acting as Spencer's servant and not as its own. To support this position it relies on evidence that the Spencer foreman, Alexander, was in general charge of the unloading; that Wall raised the crate on Alexander's direction; that Alexander "hired" Wall to do the hoisting; that Wall held a Spencer identification card which stated that it "must be presented by you each time you are hired by us and each time you receive your pay check"; and that Spencer paid Wall $2.73 for each hour he spent in helping to unload the barge, as it also did for similar services before and after. As against this, the Pennsylvania paid Wall a monthly wage of $450, which was not diminished by any payments he received from Spencer. The judge remarked that it was "a puzzling thing at the close of the case not yet to have learned, how a man could possibly be paid by two separate employers under these circumstances, and not to have that question at least put by somebody so that the Court may know what the answer is." However, the parties made no attempt to satisfy this natural curiosity.
The facts in the leading case of Standard Oil v. Anderson, 212 U.S. 215, 29 S. Ct. 252, 53 L. Ed. 480 (1909), where a winchman was held to have continued to be the servant of his general employer rather than coming under the employment of the stevedore whose signals he obeyed, bear a striking resemblance to those here - save for two elements which the Pennsylvania asserts to be vital distinctions. These are the presence in that case of a payment by the stevedore to the general employer for the use of the winch, and the absence there of evidence of an employment relationship between the winchman and the stevedore, including the important element of compensation. Although payment to the general employer for the service rendered is good evidence that the employee was still doing the general employer's work, it is not the only possible means of proving that. Here there was other evidence. The judge thought it only common sense that the hoister was serving some business purpose of the Pennsylvania, and deemed himself warranted in drawing this inference in view of the Pennsylvania's failure to rebut it. In fact the record contained an exhibit marked for identification but, apparently through oversight, not actually introduced, which showed what that business purpose was. Since the Pennsylvania has referred to this exhibit, a contract signed by the Pennsylvania, the Lehigh Valley, and the six other railroads serving New York harbor, in its brief and reproduced it in its appendix, we see no reason why we should not consider it, as we could even without such reference if the case had been tried on the "admiralty side" of the court, as the judge at one place in the transcript said it was. See Admiralty Rule 45; Robillard v. A. L. Burbank & Co., Ltd., 186 F.Supp. 193, 194 (S.D.N.Y.1960). The contract recites that "it is the arrangement and practice at the Port of New York for the parties and the contract stevedores of the parties hereto to use hoisting lighters or derricks owned by any of the parties hereto in performing the work of loading or unloading cargo to or from deck scows, lighters or other vessels owned by or in the custody or possession of any of the parties hereto, when available and in the vicinity of the work," and that "the parties hereto are agreeable to such arrangement and practice, which is for the mutual benefit of the parties hereto, and is designed to further the efficient and expeditious handling of traffic at the Port of New York." It contains detailed clauses relating to indemnification and the handling of claims arising out of the hoisting services rendered. Although the contract makes no provision for payment for these services, it nevertheless shows that hoister #218 was indeed serving a business purpose of the Pennsylvania, as the judge surmised: the benefit received by the Pennsylvania for the #218's service in unloading the Lehigh Valley barge was the reciprocal service of Lehigh Valley hoisters in unloading Pennsylvania barges.
The other point said to distinguish this case from Anderson - the employment relationship between Wall and Spencer - does not require a conclusion that Wall had ceased to be the Pennsylvania's servant when he was still doing the Pennsylvania's work and had by no means surrendered control over the Pennsylvania's valuable machine. See American Law Institute, Restatement of Agency 2d, sec. 227, comments a, b, c, illustration 4; sec. 220(1), comment c; Ware v. Cia de Navegacion Andes, S.A., 180 F.Supp. 939, 942-944 (E.D.Va.1960); Charles v. Barrett, 233 N.Y. 127, 135 N.E. 199 (1922). What it may well mean is that Wall had become Spencer's servant too. See American ...