Before CLARK, WATERMAN and FRIENDLY, Circuit Judges.
This now famous case, Romero v. International Terminal Operating Co., D.C.S.D.N.Y.1956, 142 F.Supp. 570, 2 Cir., 1957, 244 F.2d 409, 1959, 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368, returns to us after a voyage that has taken it to the Supreme Court and then back to the Southern District. Most of the dramatis personae on the defendants' side have disappeared - the steamship owner, Compania Trasatlantica, as a result of the Supreme Court's ruling; International Terminal Operating Co., lessee of the pier and employer of the longshoremen (who boarded the vessel only after the accident), through discontinuance by the plaintiff; and Quin Lumber Co., the marine carpenter contractors, after a settlement for $25,000. Plaintiff went to trial solely against Garcia & Diaz, Inc., hereafter G & D, the husbanding agent for the vessel. Somewhat surprisingly in view of the history of the case, see D.C., 142 F.Supp. at page 574, and Currie, The Silver Oar and All That: A Study of the Romero Case, 27 U.Chi.L.Rev. 1, 3-8 (1959), the trial was without a jury.
After a ten day trial, the District Judge made findings of fact and conclusions of law which were entered as a judgment. He concluded that G & D "had substantial control of the activities and circumstances proximately related to the plaintiff's injuries," and that "The defendant was negligent and its negligence was proximately related to the accident * * *" He awarded plaintiff $4,022.50 for hospital and related expenses and loss of earnings from the date of the accident, May 12, 1954, to May 16, 1955, when the plaintiff again became employed, and $65,000 for mutilation, humiliation, pain and suffering, from which the $25,000 paid in settlement by Quin was to be deducted. He declined to award damages for loss of earnings after May 16, 1955, on the ground that Romero's present earnings as a power press operator in the United States considerably exceeded what he had earned as a Spanish seaman prior to the accident. Defendant appeals from the entire judgment and plaintiff from the refusal to award damages for loss of earnings after reemployment. We have concluded that the evidence did not warrant a judgment against G & D and accordingly that the judgment must be reversed and the complaint dismissed.
Since none of the three previous opinions recite the circumstances of the accident in any detail and Judge Palmieri's findings and conclusions have not been reported, it becomes necessary to outline the facts.
The S.S. Guadalupe was a combination passenger and cargo vessel of Spanish ownership and registry, owned by Compania Trasatlantica and in service between Spain and ports on the eastern and southern seaboards of the United States, Cuba, and Mexico. G & D served Compania Trasatlantica as agent for the United States and Cuban ports. It had booked a shipment of grain for an eastbound trip; while the Guadalupe was in New York harbor on her westbound voyage to Cuba, Suarez, a responsible employee of G & D, had a representative of the Board of Underwriters come to the ship and discuss the stowage of the grain with the mate, who gave orders as to what shifting boards, feeders, etc., he wished constructed for stowage on the ship's return to New York. G & D arranged for Quin to do this work. Learning that the Guadalupe would arrive early on May 12, 1954, at an International Terminal Co. pier in Hoboken, Suarez instructed Quin to have its carpenters ready that morning and International to have longshoremen available at 1 P.M., by which time it was thought the carpentry would be completed and the vessel ready to load.*fn1
As the Guadalupe sailed up the harbor, the crew removed her booms from their cradles and placed them at a 30 to 35 degree angle from the mast, parallel with the center line of the vessel, and secured by guys. Shortly after 8:30 A.M., a gangplank was put ashore to Pier I at Hoboken. Suarez came aboard, along with some 20 Quin carpenters under a foreman. The Court found that, in the course of removing tarpaulins and hatch covers, the carpenters cluttered the deck space in the vicinity of the No. 2 hatch and disarrayed the cables used for raising and lowering the forward starboard boom on that hatch which "had been disposed beside the hatch in an orderly fashion by the crew members who had removed the boom from its cradle earlier that morning." Then Selvaggio, foreman of the Quin carpenters, approached Sampedro, boatswain of the Guadalupe, who was working at the No. 5 hatch, and requested Sampedro to lower the boom at No. 2 hatch so that lumber needed by the carpenters could be lifted from the pier. Campos, the chief mate, and Suarez were standing together on the deck near the No. 5 hatch. Sampedro reported Selvaggio's request to Campos, who authorized him to comply; Suarez was in a position to hear this but denied that he did. Sampedro went off, taking with him the assistant boatswain, the plaintiff and another seaman. Romero's assignment was to handle the topping lift cable which secured the boom as it was being lowered; the cable was being fed around a small drum or "gypsyhead." A marine carpenter voluntarily took a position several feet behind Romero and handed him the moving cable; a portion of this contained a kink, or "codillo," which Romero testified had been there before the vessel reached New York. Since Romero could not clear the kink in time to save himself from being caught in the revolving drum, he let go of the cable, whereupon a turn or turns slipped off the drum and entangled his legs. The slipping of the cable caused the boom to drop of its own weight. The force of the fall of the boom, with its consequent pull on the cable, resulted in the amputation of Romero's left foot and a severe fracture of his right leg.
The theory of plaintiff's case was that G & D was in control of the loading, either alone or jointly with the owner. Negligence appears to have been predicated on three alternative grounds: first, that it was negligent not to have the boom lowered by longshoremen; second, that if the boom was not to be lowered by longshoremen, it was negligent not to have it lowered by the carpenters; and, third, that, in any event, it was negligent to permit the boom to be lowered as it was in view of the disarray alleged to have been created by the carpenters, their claimed presence on the scene, and the intervention of the volunteer. Recognizing the limitations placed upon the scope of review by F.R.Civ.Proc. 52, 28 U.S.C.A., we are unable to sustain the trial judge's conclusions as to control and of negligence by G & D.
We are met at the outset by a claim of G & D that the issue of control was settled in its favor by the Supreme Court. The relevant passage is at 358 U.S. 384-385, 79 S. Ct. 487; we quote it in full in the margin.*fn2 The contention is that since the only issue remanded was "a claim independent of the employment relationship or operation and control," the District Court was forbidden to find that G & D had any degree of control. This is reading the words out of context. All that the Supreme Court ruled out was a contention that G & D had such an "employment relationship or operation and control" as to give rise to claims for unseaworthiness or maintenance and cure or under the Jones Act, cf. Cosmopolitan Shipping Co. v. McAllister, 1949, 337 U.S. 783, 69 S. Ct. 1317, 93 L. Ed. 1692. On the other hand, since it is essential to a conclusion of liability for negligence that defendant was or ought to have been able to prevent the harm, the Supreme Court, in remanding for trial of "a claim based upon the negligence of Garcia & Diaz," could not have meant to preclude the trial court from finding any facts, established on the trial, that would show such liability.
The relationship between Compania Trasatlantica and G & D was outlined in an agreement made in 1948. This designated G & D as the "consignee" of arriving vessels. G & D was to maintain offices in New York, to obtain passengers and cargo for the vessels, and to enter into all necessary agreements to that end. It was also to collect moneys owing to Compania Trasatlantica, to institute proceedings to recover such moneys, and to expedite the arrival and departure of vessels by carrying out all customs, health, police and other regulations. Further, G & D was to receive cargo for the shipowner's account, to safeguard it, and to deliver it to its consignee. Finally, G & D was "To organize for the account of the Ship-Owner all operation of boarding and landing passengers, loading and discharging of merchandies and baggage and other tasks called for in port to assure regular service on the part of the Ship-Owner's vessels, making available to them for the account of the Ship-Owner, all equipment in personnel and material required for the purpose and governed by the availabilities at each port." For these services G & D was to receive a commission of 5% on originating and 2 1/2% on terminating business, with a minimum of $500 for a freighter and $750 for a passenger vessel. G & D was to bear the cost of the maintenance of its office, including rent and employees' salaries, but not out-of-pocket expenses which it paid simply for the owner's account.
The degree of control exercised by G & D must be determined not simply from the language of the agreement but from operation under it. Much evidence was taken on this. G & D's case was that its function was to serve as a coordinator between ship and shore; it would decide where Compania Trasatlantica vessels would dock and who was to supply longshoremen and then would act as intermediary between the officers of the vessel and the stevedoring company. The usual practice was for Suarez to board Compania Trasatlantica vessels on their arrival, take aboard the mail and booking sheets for cargo, assist debarking passengers requiring hotel accommodations or other special services, talk with the mate, see that loading or unloading operations had gotten started, and then depart. Normally he would spend one or two hours on the vessel in the morning and again in the afternoon, although he might altogether miss days other than those of arrival and departure. When on board, he would frequently act as liaison between the officers and shore personnel, a task for which he was peculiarly fitted by his fluency in Spanish as well as English. This, according to Suarez, was the limit of what he did or was expected to do.
There is much controversy whether or not Suarez bore the title "Pier Superintendent." The evidence was that he had acquired that title in earlier years when G & D had itself leased piers and, as is not unusual, the title may have stuck after the office ceased. Plainly Suarez did not have powers of superintendence on Pier I, that function being discharged by Captain Garner, an employee of International Terminal, and the expert testimony as to the responsibilities of a true "pier superintendent" was thus of little relevance. The only evidence that could be seriously urged as contradicting Suarez was certain testimony of Selvaggio, the carpenter foreman; but when this is read as a whole, it also is consistent with the position that Suarez, when on the ship, acted only as intermediary between the carpenters and the officers - Selvaggio admitted he had never had occasion to appeal to Suarez to give orders to the officers.*fn3 True the judge was not obliged fully to credit Suarez, whom he evidently regarded as a not wholly trustworthy witness, as will be seen below; but Suarez' testimony as to the general nature of his responsibilities was supported by that of Martinez, the treasurer of G & D, of the mate and of the boatswain, and accords with normal business practice - an agent like G & D is usually employed to perform functions the ship cannot perform without a shore establishment, not to do things she can do quite as well herself. Clearly G & D was not in control of the vessel during the long periods when Suarez was absent; there would hardly be a shift to joint control whenever he came on board.
Taking the evidence most favorably to the plaintiff, it is apparent that the relation of G & D to the vessel differed toto coelo from that of the defendant in Quinn v. Southgate Nelson Corp., 2 Cir., 121 F.2d 190, 191, certiorari denied 1941, 314 U.S. 682, 62 S. Ct. 185, 86 L. Ed. 546, upon which the Court relied in imposing liability. In that case, the defendant had undertaken to "manage, operate and conduct the business of the line" and "to man, equip, victual, supply and operate the vessels, subject to such restrictions and in such manner as the owner may prescribe." There the agent was the operator of the vessel, picking the officers and crew subject only to a veto by the Maritime Commission over choice of the former and to other restrictions of a most general sort. Here the officers and crew were selected by the owner, and the ship's officers continued to function while the Guadalupe was in port.
We accept fully that "The liability of an agent for his own negligence has long been embedded in the law," Brady v. Roosevelt S.S. Co., 1943, 317 U.S.0 575, 580, 63 @S. Ct. 425, 428, 87 L. Ed. 471. But it by no means follows that an agent is liable whenever its principal would be. G & D did not have an affirmative duty to see to it that plaintiff was provided with a safe place and with safe methods to work. Admittedly, Suarez did not himself harm Romero, and no other employee of G & D was about. Under such circumstances an agent is liable in tort only if he "directs or permits conduct of another under such circumstances that ...