Lowe v. Vessel Madrid

• Decision Date: 25 April 1962
• Docket Number: No. 2096-M-Adm.,2096-M-Adm.
• Citation: 210 F. Supp. 826
• Parties: Roosevelt LOWE, Libelant, v. The VESSEL MADRID, her engines, tackle, apparel, furniture and equipment, Respondent, v. LUCKENBACH STEAMSHIP COMPANY, Inc., a corporation, Third-Party Respondent.
• Court: U.S. District Court — Southern District of Florida

210 F. Supp. 826

Roosevelt LOWE, Libelant, v. The VESSEL MADRID, her engines, tackle, apparel, furniture and equipment, Respondent, v. LUCKENBACH STEAMSHIP COMPANY, Inc., a corporation, Third-Party Respondent.

No. 2096-M-Adm.

United States District Court S. D. Florida, Miami Division.

April 25, 1962.

COPYRIGHT MATERIAL OMITTED

Nichols, Gaither, Beckham, Colson & Spence, Miami, Fla., for libelant.

Joseph Pardo, Miami, Fla., for respondent.

Fowler, White, Gillien, Humkey & Trenam, Miami, Fla., for third-party respondent, Luckenbach Steamship.

DYER, District Judge.

This is an in rem action in admiralty, in which the Libelant longshoreman charged that the Respondent vessel "MADRID" was unseaworthy and was negligent in failing to furnish Libelant with a safe place to work. The Respondent vessel impleaded LUCKENBACH STEAMSHIP COMPANY, INC., as a third party Respondent, claiming breach of warranty to perform the obligations of its contract with the Respondent with reasonable safety. LOWE, the longshoreman, who was fifty one years old when the accident occurred, sustained a permanent partial injury to his back on January 8, 1960, while working in the number three hold of the vessel "MADRID" (then named the "MARIA TERESA"), which was discharging bagged sugar at the LUCKENBACH STEAMSHIP COMPANY docks in Tampa, Florida. At the time of the accident, which occurred between 1:00 and 2:00 p. m., the Libelant was employed by the LUCKENBACH STEAMSHIP COMPANY as a "puller" working in a stevedore gang.

The vessel "MADRID" arrived in Tampa from Cuba and began unloading its cargo of 100 lb. bags of sugar on January 7, 1960. The Libelant reported for work on the vessel for the first time at approximately 8:00 a. m. on January 8, 1960, and worked with his gang in the number 3 hold of the vessel from 8:00 a. m. to noon and from 1:00 p. m. to the time of his injury, which was approximately 45 minutes before the completion of the unloading of the number 3 hold that afternoon.

The number 3 hold of the vessel "MADRID" was divided longitudinally by a "keelson" or drive-shaft housing standing about 6 feet, 4 inches high. Libelant and three other pullers were working on the "in-shore" side of this keelson.

When the work began on the day in question, the number 3 hold contained 100 lb. bags of sugar stacked completely across the hold about 8 to 10 levels high or to a height of approximately five feet. The gang first unloaded the bags immediately below the hatch opening or in the "lead" down to the floor and from there proceeded to unload the remaining bags.

The bags were unloaded by means of a pallet hoisted by the vessel's winches. The pallet consisted of a flat board surface approximately 5 feet by 6 feet in dimension. The four "pullers", working in pairs, loaded the pallet with 30 bags of sugar (6 levels of 5 bags each), hooked the pallet on to the winch line, and the pallet was then lifted by the winch off the bottom of the vessel, guided by the four pullers to the "lead" and steadied and then hoisted out of the hatch.

At the time of the accident Libelant was stationed at the outside forward corner of the pallet — that is, at the corner of the pallet toward the lead and closest to the outside skin of the vessel. Across from him on the inside forward corner was his work mate or "breaster". The two remaining pullers were on the stern corners of the pallet. The loaded pallet on this occasion jumped when lifted and began swinging while being drawn to the lead for hoisting. To escape the swinging 3,000 lb. pallet both of the two forward pullers who were between the pallet and the lead had to break and run. Puller on the inside forward corner ran along the keelson forward while Libelant turned and ran toward the side or skin of the vessel.

Libelant's injury resulted when he slipped and fell in an unusually excessive accumulation of loose sugar on the floor along the side of the vessel while trying to get out of the way of the swinging loaded pallet. The loose sugar was scattered unevenly over the floor of the hold which was covered with loose sheets of paper. The accumulation of sugar was particularly heavy along the skin of the vessel — reaching a depth of 3 inches or ankle deep. This rendered the footing underneath especially slippery and dangerous and was a material and direct cause of Libelant's slipping and falling.

The reason for the unusually heavy accumulation of sugar in the area adjacent to the skin of the vessel was:

(1) The absence in number 3 hold of approximately 50 per cent of the sweat boards which are customarily placed alongside of the vessel to keep such bagged cargo away from the skin and ribs of the vessel. The inside skin tends to produce moisture from the condensation caused by heated air around the cargo coming into contact with the metal sides which had been cooled by the water outside. The resulting condensation moistens paper bags of cargo permitting them to be easily torn. In addition, the rubbing of the bags against the ribs of the vessel during its ocean movement likewise tends to cause them to tear.

(2) Of the remaining sweat boards present on the vessel, many were broken and jagged. Bags stacked against these were broken and torn by the jagged edges.

(3) In addition to sweat boards, it is customary for sugar or bagged cargo vessels to use water-proofed paper on the floor and sides of the hold to keep out moisture. A sample of the paper used on this vessel was introduced as Libelant's exhibit number 1. Visual examination shows that it was not water proof. Additionally, along much of the vessel's side or skin there was no paper of any kind.

A method and equipment for cleaning the hold to remedy the excessive accumulation of sugar during the unloading was available to the vessel but not used. If requested by the ship owner, LUCKENBACH would have swept and cleaned the hold during the unloading for a price. LUCKENBACH was equipped to do so, but the ship owner made no such request because of the extra expense and the delay it would have encountered in discharging the cargo. It elected to make use of its own crew for this purpose, after discharging was completed and the voyage resumed. As a direct result of such unseaworthy condition and the negligence of the Respondent in not furnishing the Libelant a safe place to work, the Libelant slipped and fell as aforesaid and suffered a permanent partial injury to his back.

Since Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, there has been no question but that a ship owner is under an absolute non-delegable duty to provide a longshoreman with a seaworthy ship, that is, a vessel reasonably sufficient in all respects for the trade in which it is employed. The warranty extends not only to the vessel itself but to the stowage of its cargo. Palazzolo v. Pan-Atlantic S. S. Corp., 2 Cir., 1954, 211 F.2d 277, aff'd sub. nom. Ryan Stevedoring Co., Inc. v. Pan-Atlantic S. S. Corp., 1955, 349 U.S. 901, 75 S.Ct. 575, 99 L.Ed. 1239, aff'd on rehearing, (1956) 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133; Gindville v. American Hawaiian S. S. Co., 3 Cir., 1955, 224 F.2d 746; Amador v. A/S J. Ludwig Mowinckels Rederi, 2 Cir., 1955, 224 F.2d 437, cert. den. (1955), 350 U.S. 901, 76 S.Ct. 179, 100 L.Ed. 791.

It matters not that the defect or unseaworthy condition is caused by the stevedores or is transitory and of short duration. Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941; Grillea v. United States, 2 Cir., 1956, 232 F.2d 919, cited with approval in Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 427, 79 S. Ct. 445, 3 L.Ed.2d 413. As was said in Waterman S. S. Corp. v. Dugan and McNamara, Inc., 1960, 364 U.S. 421, 424, 81 S.Ct. 200, 5 L.Ed.2d 169: "The ship and its owner are equally liable for a breach by the contractor of the owner's nondelegable duty to provide a seaworthy vessel." To like effect is Johnson Line v. Maloney, 9 Cir., 1957, 243 F.2d 293 and the rather recent case of Hagens v. Ellerman and Bucknall Steamship Company, U.S.D.C.E.D.Pa.1961, 196 F.Supp. 593.

From the established facts the liability of the respondent vessel to the Libelant on the basis of unseaworthiness would seem to be clear.

By the same token and as a distinct basis for liability there was a breach of duty by the Respondent vessel to furnish the Libelant with a safe place to work. When such a duty exists, that its negligent breach gives rise to liability was settled by Palazzolo, Ryan and Johnson, supra. The Respondent's contention that the Libelant may not claim a cause of action for negligence in rem, citing Osceola, 1902, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, is not sound. The Osceola case held only that a crew member may not recover for negligence and did not involve a cause of action asserted by a longshoreman. The Supreme Court in Pope and Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, distinguished the holding in the Osceola (where the Libelant was a crew member of the ship) and pointed out that the mere fact that Sieracki upheld the right of longshoremen to recover for unseaworthiness did not justify an argument that the Court thereby extinguished their long recognized right to recover in admiralty for negligence.

It therefore follows that the Libelant is entitled to recover from the Respondent. At the time of his injury Libelant was 51 years old, with a life expectancy at the time of trial of 21 years. His average annual earnings for the three years prior to injury amounted to approximately $3,900. As a consequence of his injury, Libelant underwent medical care and an operation to his back. He incurred hospital and doctor's bills totalling $911.23. Prior to the injury he apparently had an unstable low back with moderate pre-existing arthritis. He is able to do sedentary work and can probably lift weights up to 50 lbs. but not continuously throughout a day. The Court finds that, as...