(dissenting).
In my opinion Puleo’s death was not caused by any breach of duty owed him by the shipowner; it was caused solely by the negligence of employees of the Robins Company who did their work in a manner which they knew, or should have known, was dangerous because they violated one of the safety rules established by their employer.
At the time of the accident Robins and not the shipowner was in control of the vessel. See Pan-American Petroleum T. Co. v. Robins, 2 Cir., 281 97, 107; Gucci-ardi v. Chrisholm, 2 Cir., 145 F.2d 514, 516. The ship was delivered to Robins without any representation by anyone that its tanks and pipes were free from fumes. From the character of the vessel, a tanker equipped to carry gasoline, Robins was as fully aware as was the shipowner that fumes might still remain in tanks and pipes despite the fact that the tanks had been filled with sea water for ballast on her return voyage. Such knowledge was demonstrated not only by Robins’ safety rules of many years’ standing but also with respect to this very vessel by Healy’s test and certificate. Moreover, the contract for repairs required Robins to “take all reasonable precautions” against fire and to “provide all proper safeguards for the prevention of accidents.” Under these circumstances the duty to provide Puleo with a safe place to work was, in my opinion, his employer’s, not the shipowner’s.
My brothers’ opinion makes the shipowner’s liability turn on the failure of the ship’s chief engineer, Elliott, to give a specific warning to Gerard and Pointon when he learned on the afternoon of June 30th that they intended to burn the bolts off the valve casing the following morning. I agree that that is the crucial issue but I am unable to concur in my brothers’ conclusion. Their opinion assumes that Elliott knew of the safety rule requiring a new test and a new certificate before fire was brought into proximity to a pipe which was to be opened; therefore, he had good reason to believe that such a test would be made before the proposed burning operation was begun. Hence his conversation with Gerard gave him no notice that dangerous work was to be undertaken; the work would become dangerous only if Gerard neglected a precaution which Elliott knew was required and which he had no reason to suppose Gerard would neglect. To hold that Elliott was duty bound to say to Gerard “The work you proposed will be dangerous, unless you make the test your employer’s rule requires,” imposes a standard contrary to what could reasonably be expected of a man in Elliott’s position, in my opinion. One can well imagine how Gerard would have reacted to a suggestion that he might be going to do his work negligently and contrary to his employer’s rule. To charge the shipowner with responsibility because Elliott failed to make such a suggestion seems to me unreasonable. It must be remembered that Elliott had no authority to direct how the repairs were to be made; nor had he control over those parts of the ship where they were to be made. Consequently, in conversing with Gerard, Elliott was not acting on behalf of the shipowner; he was a mere bystander. Gerard was not consulting him about how to do the work; it was a casual conversation because Elliott happened to be present when Gerard and Pointon found themselves unable from the deck to turn the valve in tank seven. My brothers say “Gerard and Pointon were therefore justified in assuming that in Elliott’s judgment the torch would not endanger them.” I disagree; they did not tell him they proposed to do the work without making the customary safety test. In my opinion the shipowner should not be held liable for Puleo’s death.