# William Connolly v. Weyerhaeuser Steamship Company Weyerhaeuser Steamship Company v. Nacirema Operating Co., Inc > Court of Appeals for the Second Circuit · September 11, 1956 · 236 F.2d 848 URL: https://www.frixlaw.com/law-library/cases/9445315 ## Case - **Full name:** William CONNOLLY v. WEYERHAEUSER STEAMSHIP COMPANY Et Al.; WEYERHAEUSER STEAMSHIP COMPANY, Et Al., v. NACIREMA OPERATING CO., Inc. - **Court:** Court of Appeals for the Second Circuit - **Decided:** September 11, 1956 - **Citations:** 236 F.2d 848; 1956 U.S. App. LEXIS 4739 - **Precedential status:** Published - **Opinion:** Dissent by Lumbard - **Judges:** Lumbard, Medina, Waterman - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563 (1958). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9445315 ## Opinion text LUMBARD, Circuit Judge (dissenting). In my view this case is governed by Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 1956, 350 U.S. 124 , 76 S.Ct. 232 , affirming Palazzolo v. Pan-Atlantic S. S. Corp., 2 Cir., 1954, 211 F.2d 277 . Since there was evidence in the record to support a jury finding that it was the active negligence of Nacirema which caused the plaintiff’s injury, the direction of a verdict for Nacirema was erroneous. My colleagues do not deny that the evidence in this case would be sufficient to support a jury finding that the loose boards were placed upon the winch shelter by Nacirema’s longshoremen in New York. Nor do I understand them to deny that under the contract between Nacire-ma and Weyerhaeuser, Nacirema had a duty to perform its loading and unloading *852 operations' in a reasonably safe and workmanlike manner and an obligation to indemnify Weyerhaeuser for any injury to it resulting from the negligent conduct of the unloading and loading operations. Indeed this much indisputably follows from the Ryan case. The majority seeks to distinguish the Ryan case by arguing that here Weyer-haeuser was guilty of intervening active negligence in failing to tear down the shelter upon leaving New York, and that this negligence by Weyerhaeuser absolves Nacirema of responsibility. The majority seems to employ this- argument in two ways. First, it is argued that Nacirema’s negligence was not a proximate cause of the injury to Connolly because it was not foreseeable that Weyer-haeuser would fail to remove the shelter before the ship reached Boston. Second, it is argued that even if Nacirema’s negligence was a proximate cause of the accident, Weyerhaeuser is barred from recovering indemnity because it was guilty of independent, active negligence which contributed to the injury. Let us assume with the majority, that Weyerhaeuser was guilty of negligence as a matter of law in failing to tear down the shelter. Such negligence is not implicit in the jury’s verdict in favor of Connolly since that might well have been based on Weyerhaeuser’s failure to detect the negligent construction of the shelter rather than its failure to tear it down upon leaving New York. But all of the testimony in the case indicates that it was the custom to remove such shelters upon leaving port and that it was dangerous to leave them standing when the ship went to sea. But merely because Weyerhaeuser was guilty of intervening negligence, it does not necessarily follow that the chain of causation was broken between Nacire-ma’s negligence and the injury to the longshoreman. Where a person negligently creates a risk of harm, he is not ordinarily permitted to escape liability merely, because he assumed that someone else would, in the performance of an independent duty, terminate or protect against the risk which he created. Cf. Restatement of Torts §§ 447, 452. But even if we assume that Nacirema was entitled to rely on Weyerhaeuser’s tearing down the shelter, and even if we assume that it was unforeseeable that Weyer-haeuser might fail in this duty, it does not follow that Nacirema was guiltless of negligence which caused the injury. Nacirema had a continuing duty to use in its work reasonably safe equipment and reasonably safe methods. When it commenced unloading in Boston its employees presumably discovered and used this structure which had been constructed by its employees in New York. Even if the risk resulting from the negligence in New York had ended, a new risk arose when Nacirema began to- use in Boston the negligently constructed shelter. Merely because the shelter had been allowed to stand while the ship traveled from New York to Boston it does not follow that it in some way became a part of the ship so that responsibility for it passed over from the stevedore to the shipowner. It was still a piece of equipment supplied by the stevedore for use in its work, and responsibility for its dangerous condition rested primarily on the stevedore. Therefore I cannot agree that a jury could not have found that Na-cirema’s negligence was a proximate cause of the accident. Nor am I convinced that Weyerhaeuser was guilty, as a matter of law, of active negligence such as would bar indemnity. I have assumed that Weyerhaeuser was guilty of negligence in failing to dismantle the shelter upon leaving New York. I am willing to admit also that this negligence was active negligence. It does not follow, however, that this active negligence was a proximate cause of the injury to Connolly. Weyerhaeuser’s duty to tear down the shelter was quite unrelated to the defectiveness of the shelter or to the risk resulting from its dangerous condition. The custom was to tear down all such shelters, defective or not, because it was *853 dangerous to have such structures on a ship at sea. The testimony was that high winds at sea might blow them down causing a risk of injury from flying timbers. If the plaintiff here had been a seaman injured in this manner while on the voyage, I have no doubt that Weyerhauser would be liable for its negligence in leaving the shelter standing. In this case, however, Connolly’s injury did not occur at sea and did not result from the risk created by Weyerhaeu-ser’s breach of its duty to tear down the shelter. Suppose, for example, that Wey-erhaeuser had removed the shelter upon leaving New York and had handed it over to the stevedore upon arriving in Boston. Weyerhaeuser would not then be guilty of any active negligence, but if the stevedore had continued to use the shelter the accident would still have happened. It is true that Weyerhaeuser had the additional duty of providing the longshoremen with a safe place to work and that the jury has properly found it liable for a breach of this duty. But insofar as Weyerhaeuser is liable only for allowing Nacirema to use an unsafe shelter, its negligence is passive, not active. Its negligence in this respect is comparable to the negligence of the shipowner in the Ryan case. There the owner had a duty to supervise and inspect the loading of the cargo. This duty was nondelegable and the shipowner was held liable for failing to perform it. But the Supreme Court held in the Ryan case that, this negligence did not bar indemnity from the stevedore which was primarily responsible for the loading. In the same manner Weyerhaeuser’s failure to inspect the shelter used by Nacirema does not bar it from recovering indemnity for injuries resulting from Nacirema’s failufe to use proper equipment. The district court should have left the issue of Nacirema’s liability to the jury. We should, therefore, reverse and remand for that purpose. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9445315. Public record. Not legal advice.