Smith v. Olsen & Ugelstad
| Decision Date | 24 February 1971 |
| Docket Number | Civ. A. No. 32042,32126. |
| Citation | 324 F. Supp. 578 |
| Parties | Fannie SMITH, Admx., Plaintiff, v. OLSEN & UGELSTAD, Defendant. OLSEN & UGELSTAD, Plaintiff, v. DETROIT HARBOR TERMINALS, INC., Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Samuel Posner, Posner & Posner, Detroit, Mich., for plaintiff Fannie Smith.
John L. Foster of Foster, Meadows & Ballard, Detroit, Mich., for defendant and third party plaintiff Olsen & Ugelstad.
Earl Remer, Detroit, Mich., for third party defendant Detroit Harbor Terminals, Inc.
Civil Action #32042 is a civil action brought by Fannie Smith, Administratrix of the Estate of Joseph Smith, against Olsen & Ugelstad, owners of a ship, the M/V MAKEFJELL. Mr. Smith was crushed by a falling crate in the hold of that vessel during its unloading by the Detroit Harbor Terminals, Inc., decedent's employer, on October 14, 1968.
Civil Action #32126 is a suit by the shipowner, Olsen & Ugelstad, to recover indemnity for any sum adjudged due the Administratrix in Civil Action #32042 and for the expenses of defense.
The cases were consolidated for trial and were tried before the Court on September 24, 25, and 29th, 1970. The parties were ordered to file proposed findings of fact and conclusions of law. Proposed findings and conclusions were filed by Olsen & Ugelstad, defendant in Civil Action #32042 and plaintiff in Civil Action #32126 on October 2, 1970. No other proposed findings and conclusions or objections to those already filed have been received, despite informal extensions of time.
Plaintiff Fannie Smith is a Michigan citizen who is the Administratrix of the Estate of Joseph Smith, Deceased, now pending in Wayne County Probate Court, Wayne County, Michigan.
Defendant in #32042 and Plaintiff in #32126, Olsen & Ugelstad, is a Norwegian business entity which was at all pertinent times the owner and operator of the M/V MAKEFJELL, a general cargo vessel of Norwegian registry, containing five holds, engaged in commerce and navigation upon the high seas and the Great Lakes.
Defendant Detroit Harbor Terminals, Inc., is a Michigan corporation with its office and principal place of business in Detroit and was at all pertinent times engaged in stevedoring at its dock and warehouse facility on the Detroit River.
Jurisdiction is founded upon the commission of a maritime tort upon navigable waters of the United States.
The accident occurred when the decedent, Mr. Smith, as a member of a longshoreman gang employed by Detroit Harbor Terminals, Inc., was crushed to death by a falling crate containing glass.
The glass had been stowed by stevedores in Hamburg and had survived the ocean crossing and seaway voyage without shifting. Each crate weighed in excess of one ton and was constructed of new, rough hewn wood and each crate had three 4" skids permanently affixed to facilitate loading, stowage and discharge by the use of hilos or fork lift trucks.
The crates were stowed in the forward end of the hold, both port and starboard, four tiers high except near the scuttle hatches where only three high stowage permitted entrance to the hold for checking the cargo during the voyage.
Immediately prior to the accident, most of the crates of glass had been removed from the hold and there remained only a single line of crates stowed flush against the forward bulkhead and extending from the center of the vessel to the starboard shipside. The remaining crates varied somewhat in size. Two of the crates, including the fatal crate, were 2'5" wide, 3'5" long and 3'6" high, slightly smaller than the others. Immediately against the side of the ship, crates of similar dimensions were stowed four tiers high. These presented a smooth and even stow. However, inward from the shipside and in the fourth or highest tier were stowed the two smaller crates on top of a column of the wider crates with the result that the two smaller crates overlapped the wider crate and were unsupported at their outer edges. No dunnage was employed since while all the crates were in stow they were quite secure. It was only after some of the lower crates had been removed that the fatal crate became insecure.
One of the wider crates was set immediately to port of the fatal lift in the fourth tier. This crate was lifted down by the hilo operator and set in the star-board forward corner of the hold, out of the way, while the operator returned and picked up two of the wider crates which were partly supporting the fatal lift. The stow of the fatal crate was such that its entire skid on the side nearest the center of the ship was unsupported when the two crates were removed. Probably the fatal crate was jostled when the operator lifted the two crates out of stow. However, the fatal crate did not fall at this time. The operator took the two crates to the center of the hold and set them down, all of the longshoremen except the deceased following along with the fork lift truck.
The deceased remained in the area where the two crates had been removed and picked up an empty cigar box lying loose in the hold and then proceeded to the point where the two crates had been removed and placed his hand on the last remaining crate of the column which had partly supported the fatal crate and attempted to look behind the remainder of the crates, apparently in hopes of finding some cigars or other article left in the hold from a previous voyage. At that time the fatal crate descended and crushed his head against the remaining crate upon which he had placed his hand to steady himself as he leaned over.
The Court estimates that the fatal crate was precariously balanced some thirty seconds, the time necessary for the hilo to back away from the stow with its load of two crates and set them down in the center of the hold.
The fatal crate was largely supported...
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