
    Michael Callahan, Appellant, v. The Munson Steamship Line and American Sugar Refining Company of the State of New York, Respondents, Impleaded with American Sugar Refining Company.
    Second Department,
    December 30, 1910.
    Appeal — power of Appellate Division—master and servant — proximate cause — negligence — charter party—construction —liability of charterer for negligence of crew.
    The Appellate Division has power to entertain an appeal from an order denying a motion for a new trial and incidentally denying a motion.made at the same ■ time for the reversal of the direction of a verdict, although no appeal has been taken from, the judgment.
    In an action by a stevedore in the employ of a sugar company to"recover for personal injuries sustained while he was helping to unload a cargo of sugar, it . appeared that the work consisted of hoisting bags of sugar out of a hatch by a [ cable operated by a-winch; that at the close of the day’s work it was necessary to place a heavy iron thwartship piece across the hatch in order to close it; that this piece had been hoisted by the winchman, an employee on the vessel, until it became jammed against the hatch coaming; that the winch- .whs then stopped, and plaintiff and others seized the iron and hauled it clear,' and, when it was thus released, signaled the winchman to go ahead again, and that, instead of doing .so, he negligently reversed the power, whereupon the thwart-ship piece fell t-o the deck and struck the plaintiff’s foot.
    
      Held, that the accident was caused by the negligence of the winchman so 'that the plaintiff could not hold his master, who did not employ the winchman, liable on the ground that the chain and hook iised in the hoisting, and which . belonged to his master, were defective. ■ ■
    The mere power to select men and the payment of their wages are not the conclusive tests of the relation of master and servant. Such relationship may ■ depend upon the parties’ connection with a special or limited service in which the men may be engaged at the time of the accident.
    Thus, where it appears that the steamship company, a codefendarit, hired the ves-, ’ sel from a third person under a charter party, which provided for the delivery of the vessel to the charterer for its use until the expiration of the lease, when it was to be redelivered to the owners, and further providing that the vessel was placed “at the disposal of the charterers” to be laden and discharged at' any place desired by them; that the captain was to be under their orders and direction, and that all the steam winches on the' vessel were to be at the “ Charterer’s disposal during the loading and discharging,” the charterer is liable for the negligence of the winchman, although he was in the general employ of the owners of the vessel and was one of. the crew furnished in accordance with the charter party. - -
    Under the terms of the charter party the duty of unloading the vessel devolved upon the charterers and was not assumed by the owner.
    Reaegument of appeal by the plaintiff, Michael Callahan, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 2d day of July, 1909, denying the plaintiff’s motion to set ■ aside the direction of the court dismissing the amended complaint upon the' trial as against, the defendants, the Munson Steamship Line and American Sugar. ¡Refining Company of-.¡New York, and denying the plaintiff’s motion for a new* trial made upon the minutes. ...
    
      Thomas F. Maguer,- for the appellant.
    
      John Yernou Boicvier, Jr. [Dudley Davis and Frank Y. Johnson with him on the brief], for the respondent Munson Steamship Line. ' '
    
      Bertrand L. Pettigrew, for the respondent American Sugar Refining Company of ¡New York. -
   Hibsohbeeg, P. J.:

At the close of the evidence on both sides the learned trial justice directed a dismissal of the amended complaint and entertained a motion on the part of the plaintiff for a new trial upon the minutes. The appeal is from the order denying the motion, and incidentally denying a motion made at the same time for a reversal of the direction in defendants’ favor. Judgment Was subsequently entered in favor of the defendants, but no appeal has been taken therefrom. The case, however, may be heard upon the appeal as taken. (Voisin v. C. M. Ins. Co., 123 N. Y. 120.)

The action is for negligence occasioning an accident which occurred on board a steamship, the Denaby, at a dock on the East river in the borough of Brooklyn, on the afternoon of April 19, 1907 The plaintiff at the time was one of a gang of stevedores in the employ of the defendant, the American Sugar Refining Company of New York, and was engaged with his fellow-workmen in the discharge of the vessel’s cargo of sugar. The cargo had been brought to the dock of the sugar refining company by the defendant, the Munson Steamship Line, which latter company had hired or chartered the steamship from the owners thereof for a period of. three months, to be used in its business of ■ carrying freight, the charter covering and including the vessel with machinery, steam winches, etc., and a full complement of officers, seamen, engineers arid firemen. The work of unloading consisted in the incipient stage in hoisting the bags of sugar out of a hatch in the vessel .by means of a wire cable which operated from a drum on a steam winch on deck, through a single boom-end block' directly over the hatch. The outer end of the wire cable had an eye in which was hung, by sister hooks or clippers, a heavy iron chain with a.singlé hook at the lower end. At the close of the day the men were engaged in covering the hatch. Before it could be covered, it was necessary to place in. position across the opening a heavy iron thwartship piece, about fifteen feet long and three feet high, weighing about a ton and a half, and which contained an iron hook for the purpose of attaching it to the hoisting apparatus. The lower hook of the hoisting apparatus had been attached to the hook bn the thwartship piece and the lattei had been hoisted by the winch-man, an employee on the vessel in charge of the winch, until it had .become jammed against the hatch coaming. -The foreman in1 charge of the gang of men with whom the plaintiff was working, all employees of the Sugar Eefining Company of Mew York, ordered the'winchman to stop the winch. ■ This was done, and the plaintiff. thereupon,’ with others of his coeihpioyees, seized the piece and hauled it clear of the coaming. When it was thus released, the foreman, both called and signaled to the winchman to go ahead again. Instead of doing so, however, the latter negligently reversed the power, whereupon the piece-dropped Ho the'deck and toppled . over on the plaintiff’s foot, causing injuries which required amputation of the limb.

, • So far as concerns the claim made by the plaintiff against the American. Sugar Eefining Company of Mew York, the only ground of negligence asserted or urged, is .that the chain and hook which were used, and which were furnished by that company, were defective both. in construction and in the manner of their application to the- apparatus. It is sufficient to say in answer to this claim that the evidence .does not establish a defect, or that the‘accident was caused by a defect in either of the particulars suggested; Itispractically undisputed that the accident was occasioned solely by the negligence or insubordination of the Winchman, and the case was, therefore, correctly disposed of'with respect to the sugar refining company.

On behalf of .the respondent the Munson Steamship Line, it is urged that the winchman,. being in the general employment of the unknown owners, of the vessel,, is'to'be regarded as engaged in that employment- wdiile unloading, and that he is not to be regarded in any sense as a servant of the charterers. In other words, the claim is made that the liability for the winchman’s negligence attaches to the, owners and not tó the charterers. I cannot accede to this1 contention. The - fair inference from the evidence is that the winch-man was one.of the crew of the vessel and was furnished in accordanee with the provisions of the charter party, and it seems clear to me that by the terms of that instrument the duty of unloading the vessel devolved upon, the charterers and was not assumed by the owners: ■ _ '

-It is alleged in the amended complaint and admitted in'the answer that -the Munson.Steamship Line is engaged in the business of ' carrying, freight by steamships, ■ and • the charter party expressly provides for the- delivery of the Denaby to that company for its use in such business until the expiration of the lease, when it- is to be redelivered to the agents of the owners. By the terms of the contract the boat is to be delivered to the charterers at' Baltimore at such wharf as the charterers may direct, and is to be redelivered in good order and condition at a port “ North of Hatteras but not north of Boston,” the “ redelivery port to be named two or three wéeks in advance of actual redelivery.’■’ During the three months’ term the steamer is expressly placed “ at the disposal of the charterers ”, for carrying merchandise within certain designated limits of territory, and to be laden and discharged “in any dock or at any wharf or place that the Charterers' or their Agents may direct, provided the steamer can safely lie afloat.” The captain (although appointed by the owners) is to be “ under the orders and direction of the Charterers as. regards employment, agency, or other arrangements,” the charterers agreeing to indemnify the owner's from' all consequences or liabilities that may arise from his signing bills of lading or otherwise complying with the same, And all the steam winches on the vessel are to be at the. “ Charterers’ disposal during loading and discharging,” the steamer to provide men to work the same both day and night as required,' the “ Charterers agreeing to pay extra expense if any incurred by. reason of night work, at tké current local rate.” In view of these provisions of the contract it is impossible to avoid the conclusion that the beneficial object sought was to place the charterers in possession of the means of carrying'on their business rather than to retain such means in the •possession of the owners of the. vessel for the purpose of enabling such owners to conduct the charterers’ business, for hire. Aside from the responsibilities and perils of navigation which are not' directly involved,, it is difficult to conceive why the contract should place the appliances for loading and unloading the boat at the disposal of the charterers if the owners intended to assume and to retain the burden and responsibility of doing that work.

That the mere fact of the power of the selection of the men and th’e payment of their wages is not the conclusive or controlling test of the relationship of master and servant creating liability for the happening of an accident, but that such relationship may depend upon • the parties’ connection with a special or limited service in which the men may be engaged at the very timé óf the occurrence has been often1 decided in this State. Among-the cases so holding the following may be noted: Baldwin v. Abraham, (57 App. Div. 67; affd., 171 N. Y. 677); Howards v. Ludwig (57 App. Div. 94; affd., 171 N. Y. 507); Kellogg v. Church Charity Foundation (128 App. Div. 214; 135 id. 839); McCarthy v. McCabe (131 id. 396); Muldoon v. City Fireproofing Co. (134 id. 453, 456); Wyllie v. Palmer (137 N. Y. 248); Higgins v. Western Union Telegraph Co. (156 id. 75), and Friedman v. Scholes Co. (142 App. Div.-).

In his brief herein tlie learned' counsel for the respondent, the Munson Steamship Line;- cites the, case -of Auten v. Bennett (88 App. Div. 15) as an instance wherein a charter party such as that in evidence in this case has been the subject of judicial examination • resulting in a determination that the master and crew remained the servants of the owners at the time of the injury complained of. The construction of the contract in that case was aided by oral evidence and the ultimate determination of the controversy was adverse to the respondent’s contention. On a subsequent trial of the case a judgment in favor of the defendant, the charterer, was reversed by the Court of Appeals (Auten v. Bennett, 183 N. Y. 496), and it was held that the charter party then under consideration was in effect a demise of the vessel and not a mere contract of affreightment, that holding being based upon provisions for the' delivery and return of the vessel similar to those.in-the document now. under consideration. The court said (p. 502): “ The Appellate Division on the first appeal held that under the terms of the charter party there was no demise off the yacht Í Mindora’to tlie defendant and that the latter was not an insurer. We are of opinion that the very plain reading of the charter-, party leads to a contrary result. A charter party, is nothing more than an agreement between parties ■ and is to be construed in the same manner as ahy Other contract. In the charter party we are considering tlie owner agrees to deliver - the ‘Mindora-’ at 27ew York;, the-defendant agrees to return her in as good, condition as when she was received; he • also' agrees to make the return in the city of 27ew York. It would seem as clear as language can make it that the yacht was to be delivered to the defendant and returned by him to the owner at the expiration of the time provided for in the charter party,” . 1

In Anderson v. Boyer (156 N. Y. 93) the plaintiff was injured through the negligence of the captain of a lighter in unloading the charterer’s goods at the place of destination. The action was against the owners, but it was held that they were not liable and that the captain must be deemed to have been acting ás the servant of the eharterei. The court said (p. 97): “The defendants were the owners of the lighter, but they claim that at the 'time of the accident and for some time prior thereto, she was in the possession of one Schoenewolf under a charter which gave to him the absolute control of the lighter, together with its captain and his mate. There is of course no question but that if the" defendants by their agreement with Schoenewolf, had in fact given him possession and absolute control of the boat and its men until he should have accomplished the work for which he engaged her, then the captain in what he did was acting as the servant of Schoenewolf and not of the defendants.” And at page 103 : “ It may well be that the captain still owed to these defendants the duty of navigating the vessel carefully, but that Schoenewolf, undei this contract, had the right to retain the,possession and control of her so long as it should l>e necessary to move the materials which he had chartered her to move, is beyond question, and it is equally true that during such time he had the right to control both the captain and the mate * in loading and v/nloading the vessel. If more than two men had been •needed, either to load or unload, Schoenewolf^ and not the defendants, would have had to employ them. As matter of fact more men were required and were employed by Schoenewolf, the charterer, and certainly nowhere in the contract as testified to, can there be found a basis for charging that the defendants had anything whatever to do with the loading or unloading of this boat, or the right to control it.”

In Rosenstein v. Vogemann (102 App. Div. 39) this court held that under a charter party precisely similar to the one at bar, the defendants, who were the charterers, and not the owners, were'liable for the consequences of a negligent selection of a place to. unload and deposit the cargo. The court appears to have been controlled by the fact, as stated in the head note, that the charter party provided, as in the case at bar, that the captain, although appointed by the owners, should be under the orders and direction of the charterers as regards employment, agency or other arrangements. A verdict was directed for the plaintiff, and it was decided that in so • doing the trial court must have held, among other things (p. 42), “ That under the charter party and bill of lading the defendants were the parties .who contracted to carry the plaintiff’s goods, and hence became bound by the obligations of common carriers.” The court said (p.' 42): “ The learned counsel for the appellants has. failed to satisfy us that the trial court was wrong in these eonclusions. It seems to us that the terms of the charter party were .such as to make it a contract for the lease' of the vessel for' a period of twelve months, and that the charterers became subject to the duties and responsibilities of ownership. ‘ The question as to -the character in which the charterer is to be treated is, in all cases, one of construction. If the charter party- let the entire. vessel to the charterer with a transfer to him of its command and possession and consequent control over its navigation, he will generally be considered as owner for the voyage or. service stipulated.’ (Leary v. United States, 81 U. S. [14 Wall.] 607.) Here the charter party even goes so fa/r as to provide that the .captain., although appointed by the owners, shall be' under the orders and direction of the. charterers as regards employment, agency or.other arrangements;, and the charterers agree ‘to indemnify the owners from all consequences or liabilities that may arise from the Captain signing Bills of Lading or otherwise complying with the same.’ ” The case' was affinped in the Court of Appeals (Rosenstein v. Vogemann, 184 N. Y. 325), that court holding, as per the head note, that “ Where a charter party, gives to the charterers of a steamship the absolute right of selecting the dock, wharf or place for the discharge of, the cargo with which the steamship is laden, provided only that the steamer shall always he safely afloat at any tide, the charterers to indemnify the-owner from all consequences or liabilities that might arise from the signing of bills of lading, the owner is not liable for the value of goods destroyed by the collapse of a pier as - the result- of the alleged negligence of the .charterers in failing to exercise reasonable care and diligence in selecting a suitable place in which -to unload and deposit the goods.” Independently, however, .of the question of negligence, the court also held , that the charterers were liable under the terms of the contract as common carriers, saying (p. 336): “ We, consequently, conclude 'that the defendants were not relieved of their liability as common carriers by a discharge of the goods upon the dock, under the circumstances of this ease, and that such liability is not dependent upon the question whether they were guilty of negligence with reference to their destruction.”

It follows that the order appealed from should be affirmed, with costs as to the respondent the American Sugar. Refining Company of New York, but reversed as to the respondent the MunsonSteamship Line, and a new trial granted, costs to abide the event.

Woodward, Jenks, Burr and Rich, JJ., concurred.

Order affirmed on ' reargument, with, costs as to the respondent American Sugar Refining Company of New York, but reversed as to the respondent the Munson Steamship Line, and a new trial granted, costs to abide the event.  