Before FRANK, MEDINA and WATERMAN, Circuit Judges.
These are consolidated actions, based on diversity, but governed by maritime law,*fn1 to recover damages for personal injuries to plaintiff Luaces and for the death of Joseph Dimas, plaintiff Dimas' intestate. The court directed the jury to return a verdict for the defendant, and plaintiffs appeal.
The damages complained of arose out of an explosion of the boiler of the Captain C. Mathiasen, a tug on which Luaces and Dimas were employed as firemen. At the time of the accident, March 24, 1948, the vessel was owned by Mathiasen Transportation Co., Inc. and in the possession and under the control of Mathiasen Shipping Co., Inc., the employer of Luaces and Dimas and, apparently, an affiliate of Mathiasen Transportation Co., Inc.
Defendant, the Lehigh Valley Railroad Company (hereinafter called "Lehigh") is a prior owner of the tug, having purchased it in 1924 when it was five years old. From 1924 until 1944, Lehigh owned and, for most of that period, operated the tug, then called the Niagara. In December 1944,*fn2 Lehigh sold the tug "as is" and "subject to complete inspection" of Mathiasen Transportation Co., Inc., the bill of sale providing, in part, that Lehigh "does not hereby warrant the seaworthiness or the condition" of the vessel or its appurtenances.
The tug's boiler was of a type called Scotch Marine, a large cylindrical outer shell, inside which were three furnaces, a combustion chamber common to all three furnaces and, located between them and the inner shell, a cylinder 10 inches smaller in diameter than the outer shell to which it was fastened by staybolts. The rear of the inner shell is known as a flame sheet and its sides, which were riveted to the flame sheet, are known as the wrapper sheet; the shell surface toward the furnace is called the fire side; that toward the outer shell is called the water side.
At the trial, Luaces who had been employed as fireman on the Captain C. Mathiasen for some years prior to the explosion and, before that, for a short time on the same tug while it was the Niagara, testified that while in the combustion chamber or "back connection" he observed that "two big welding jobs" had been done on the wrapper sheet at the bottom of the "back connection." As fireman, it was part of his job to clean the combustion chamber, to remove the ashes, scrape when necessary, and so forth. He testified that while shoveling out ashes - both when the tug was the Niagara and when it was the Captain C. Mathiasen - he noticed that the ashes were wet. He said nothing about it to his superior or anyone else, although he knew that wet ashes signified a leak.
Plaintiff Mrs. Marinello, formerly Mrs. Dimas and the widow of Joseph Dimas, deceased, testified that Joseph Dimas had commented to her with respect to the tug that "more repair could be made," that when it was put in for repairs, "it wasn't in the shop long enough at times," and that he had "often made the remark that some day it might blow up."
Plaintiffs also called as a witness Francis J. Swan, a commander in the Coast Guard connected with marine inspection, for the sole purpose of laying a foundation for the entire Coast Guard investigation file on the explosion, which was offered in evidence. Included in this file were two reports:*fn3 The first of these, in point of time, hereinafter referred to as the "Board Report," is addressed to the Commandant of Merchant Vessel Inspection and sets forth the "Findings of Fact," "Conclusions" and "Recommendations" of the Board, based on interviews with the witnesses listed in the report. The second, hereinafter referred to as the "Commandant's Report," is from the Commandant to Commander Malony, Chairman of the investigatory board, whose report it reviews, approving it in part and reversing it in part. Plaintiff also introduced into evidence Marine Engineering Regulation Section 52.01-65 requiring that prior approval for any repair or replacement be obtained and that such repair or replacement "shall so far as practicable be made with materials and in the manner specified for new construction."*fn4 Largely on the basis of this Regulation and the Board Report, which will be discussed in detail below, plaintiffs contend that they have made out a case for the jury on the theories of unseaworthiness, of negligence and of nuisance.
Until the decision in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099, the prevailing view was that liability for unseaworthiness was an incident of contract, see e.g., Hamilton v. United States, 4 Cir., 268 F. 15, certiorari denied 254 U.S. 645, 41 S. Ct. 15, 65 L. Ed. 454; Rainey v. New York & P.S.S. Co., 9 Cir., 216 F. 449, certiorari denied sub nom. Rainey v. W. R. Grace & Co., 235 U.S. 704, 35 S. Ct. 209, 59 L. Ed. 433, and imposed on the shipowner only while he was in control of his vessel, In re New York Dock Co., 2 Cir., 61 F.2d 777, and only in favor of seamen employed by him. See Benedict, Admiralty, page 260 (6 Ed. 1940). Seas Shipping Co. v. Sieracki, supra [328 U.S. 85, 66 S. Ct. 877], rejecting as the basis of liability not only contract, but negligence as well, established that liability for unseaworthiness "is essentially a species of liability without fault." That case also enlarged the class of persons within the protection of the doctrine of unseaworthiness to include employees of an independent contractor performing what has traditionally been considered "ship's work." And, in this circuit, the Sieracki decision has also resulted in an enlargement of the class subject to liability: in Cannella v. Lykes Bros. S.S. Co., 2 Cir., 174 F.2d 794, certiorari denied 338 U.S. 859, 70 S. Ct. 102, 94 L. Ed. 526, we held that the owner of a vessel demised under a bareboat charter was subject to liability for unseaworthiness existing at the time of the demise. Compare Vitozi v. Balboa Shipping Co., Inc., 1 Cir., 163 F.2d 286 and also Muscelli v. Frederick Starr Contracting Co., 296 N.Y. 330, 73 N.E.2d 536.
Plaintiffs argue that Cannella v. Lykes S.S. Co., Inc., supra, is squarely apposite to the case before us, there being no substantial difference between an owner not in control, such as Lykes S.S Co., and a former owner, such as Lehigh, adding "parenthetically" this this elimination of the element of control brings liability for unseaworthiness into line with that for negligence under MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696. Cannella v. Lykes S.S Co., however, rested on the authority of Sieracki, which, as we read it, is far from suggesting that present ownership, as of the time of the accident, is no longer to be a material fact; rather its clear premise is that there exists the traditional three-cornered relationship of master, vessel, and ship-worker, upon which responsibility is predicated. In other words, we cannot find in Sieracki, even by implication, any authority for taking the step plaintiffs urge, which would impose absolute liability on a party who at the time of the accident had no relation whatever to the vessel or to the injured ship-worker.
And while MacPherson v. Buick Motor Co., supra, has enjoyed wide approbation, of this court as of others, see Fredericks v. American Export Lines, 2 Cir., 227 F.2d 450, it may well be unwise to make the alignment plaintiffs urge since unlike liability for negligence which is based on fault, liability for unseaworthiness is absolute and imposed regardless of fault. But cf. concurring opinion in Cannella v. Lykes, supra, 174 F.2d at page 797. This consideration is, we think, made more cogent by the fact that seamen and others performing "ship's work" who might otherwise recover under the doctrine of MacPherson v. Buick Motor Co. are not precluded from recovering by reason of having been injured within the jurisdiction of admiralty. Sieracki v. Seas Shipping Co., D.C.E.D.Pa., 57 F.Supp. 724.
We may defer decision on this question, however, because the law in this circuit is that not even an owner, albeit out of control, is liable for an unseaworthy condition arising after control has been transferred. See Cannella v. Lykes S.S. Co., supra, 174 F.2d at page 795. And plaintiffs' proof, while it without question establishes unseaworthiness at the time of the explosion, fails to establish that the unseaworthy condition existed at the time defendant sold the vessel. As we shall see, the failure of proof in this case is such as to be fatal not only to plaintiff's recovery for unseaworthiness, but to recovery on any theory whatever.
The foundation of plaintiffs' case without which, even in their view, no one of the three theories can stand, is that defendant renewed a section of the inner shell. While it seems to be conceded that part of the wrapper and flame sheets were renewed, the record is bare of proof that the repairs were made by defendant. The mere fact that the renewal had been made some time prior to 1944, when defendant's ownership ceased, is not enough since defendant was not the original owner of the tug. Moreover, a renewal such as is here involved must be noted on the inspection record for the year in which it was made. No ...