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Ira S. Bushey v. United States Scope of Employment Cases of Interest
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Ira S. Bushey and Sons v. U.S.

CYBER LAW BOYD 3.doc

Ira S. Bushey & Sons v. U.S. 398 F.2d 167 (2nd Cir.)
Danielle Boyd

FACTS
- Seaman returned from shore leave late one night, turned some wheels on the drydock wall, opening valves that controlled the flooding of the tanks on one side of the drydock. Ship listed, slid off the blocks, and fell against the wall. Parts of the drydock sank, and the ship partially did.
- Seaman Lane was drunk, and quartermaster reported he was “loose”. Turned wheels 20 times, muttered to seaman (off-duty) that he had “turned some valves”, an engineer was also standing by. 30 minutes past before the ship slid and fell against the drydock wall.

PROCEDURE:
• Drydock owner sought and was granted compensation by the District Court for the Eastern District of New York in amount to be determined.
• Government attacks imposition of liability on the ground that Lane’s acts were not within the scope of his employment.
o LAW: Restatement of Agency 2d- Section 228(1): conduct of a servant is within the scope of employment if, but only if: ***(c) it is actuated, at least in part, by a purpose to serve the master.
 Judge Hand: concluded that a drunken boatswain who routed the plaintiff out of bed with a blow, saying “Get up you big son of a bitch and turn to,” might have thought he was acting in the interest of the ship. Nelson v. American West African Line

ANALYSIS:
• K provided that personnel assigned to vessel undergoing repair shall have access to the vessel at all times, it should be understood that such personnel will not interfere with the work or the contractor’s workmen.
o Route past security guard at gate, through the yard, up a latter to the top of one drydock wall and along the wall to a gangway leading to the fantail deck, where men reurning from leave reported at a quartermaster’s shack.
• Using Nelson it would be going too far to say that although Lane was returning to serve his employer, he was acting in the same interest or see turning the wheels to be in the best interest of the ship.
• District Court argued that respondeat superior can find a sufficient basis in that expansion of the Nelson theory of liability is a more efficient allocation of resources. This can only be justified if there is some reasont hat imposing a particular cost on the enterprise will lead it to consider whether steps should be taken to prevent a recurrence of the incident. This is strikingly not the case here, and in most cases plaintiff won’t be in the position to insure if the burden is placed on them for accident prevention. However, the fact that the defendant is better able to afford damages is not alone sufficient to justify legal responsibility…and this overarching principle must be taken into account in deciding whether to expand the reach of respondeat superior.
• Policy analysis is therefore not adequate in this case:
o Respondeat Superior rests more so within the governing principles of tort law as in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.
o Nelson and the facts of this case reflect a wholly unrealistic attitude toward the risks characteristically attendant upon the operation of ship.
 Justice Rutledge analysis of human nature and men not discarding personal characteristics at work.
 Lane’s conduct was not so “unforeseeable” as to make it unfair to charge the government with responsibility.
 LAW: What is foreseeable in the context of respondeat superior is much different than in standard negligence…The employer should be held to expect risks, to the public also, which arist ‘out of and in the court of’ his employment and labor…proclivity of seamen to find solace in the bottle while ashore has been noted as well.
• Must expand Nelson, for the activities of the enterprise do not reach into areas where the servant does not create risks different from those attendant on the activities of the community in general

CONCLUSION

The risk that seamen going and coming from Tamaroa might cause damage to the drydock is enough to make it fair that the enterprise bear the loss. It is not a fatal objection that the rule we lay down lacks sharp contours; in the end, as Judge Andrews said in a related context, ‘it is all a question (of expediency,)*** of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of Mankind.’

Restatement of Agency Section 228


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107 doc CYBER LAW BOYD 3.doc Fri 24 of Apr., 2009 06:11 GMT by DanielleBoyd 31.00 Kb 872 View Download  

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