Allen v. United States, 241 of 1957.

• Decision Date: 01 July 1959
• Docket Number: No. 241 of 1957.,241 of 1957.
• Citation: 178 F. Supp. 21
• Parties: Wilbert ALLEN, Libelant, v. UNITED STATES of America, Respondent. Keystone Drydock & Ship Repair Co., Inc., Respondent-Impleaded.
• Court: U.S. District Court — Eastern District of Pennsylvania

178 F. Supp. 21

Wilbert ALLEN, Libelant, v. UNITED STATES of America, Respondent Keystone Drydock & Ship Repair Co., Inc., Respondent-Impleaded.

No. 241 of 1957.

United States District Court E. D. Pennsylvania.

July 1, 1959.

Bernard Sacks (of Dorfman, Pechner, Sacks & Dorfman), Philadelphia, Pa., for libelant.

Harold K. Wood, U. S. Atty., Philadelphia, Pa., for respondent. Carl C. Davis, Asst. Chief, Admiralty & Shipping Section, Dept. of Justice, Washington, D. C., of counsel.

John B. Hannum, 3rd, Philadelphia, Pa., for respondent-impleaded.

LAYTON, District Judge.

This is an Admiralty proceeding brought on behalf of the libelant, Wilbert Allen, against the United States, as owner of the U.S.S. Casa Grande (LSD-13),¹ pursuant to the Public Vessels Act of 1925, 46 U.S.C.A. §§ 781-790. Allen, a shipyard welder, seeks to recover damages for injuries sustained in a fall while he was engaged in removing temporary staging in the forward ballast tank of the Casa Grande. The staging was erected in the tank by the contractor which had contracted to make extensive repairs and alterations to the vessel. Pursuant to Admiralty Rule 56, 28 U.S.C.A., the respondent, United States, impleaded the contractor, Keystone Drydock and Ship Repair Co., Inc., libelant's employer, asserting a right of indemnification over against the latter.

Allen charges that the Casa Grande was unseaworthy due to the defects in the staging which gave way while he was standing on it and, furthermore, that the government was negligent in failing to furnish him with a reasonably safe place to work.

Whether or not the Casa Grande was seaworthy in large part depends upon Allen's status while working about her which, in turn, depends upon the nature of the repairs. Accordingly, a rather detailed statement as to the nature, extent and cost of the overhaul is required.

Prior to June 7, 1956, the LSD-type vessel was found to be well adapted to the work of Arctic Base Supply except for the fact that the hull was not of sufficient strength to navigate in ice conditions. Moreover, the Casa Grande was then in need of an extensive overhaul and, in addition, a request had been made to the Bureau of Ships for certain alterations, the most substantial of which were (a) the stiffening of the entire hull just mentioned and (b) the removal of the mast for the installation of extensive new radar equipment.

On June 7, 1956, while en route from Sonerestrom to Goose Bay, Labrador, the Casa Grande was struck by an iceberg causing such extensive damage to the hull as to compel her immediate return to the United States. So serious was the hull damage that her captain refused to take on a return cargo of floating barges. Temporary emergency repairs were effected which enabled her to limp back to Norfolk where she was ordered to Philadelphia for the overhaul, repairs and alterations previously mentioned as well as the repairs to the hull. At Fort Mifflin, all ammunition was unloaded. At the Sun Shipbuilding Co., she was drydocked to ascertain the exact nature of the damage to the hull. This was found to be a hole 20 feet high and 40 feet long together with extensive cracks in the hull. The hole itself was like a "rolled up sardine can". While at the Sun Drydock, the propellers² were removed. She remained there until the bid for repairs and alterations was awarded to Keystone and then she was towed by Navy tug to a point near the Keystone yard where she was placed under tow by a civilian tug under the direction of a civilian pilot, taken into the custody of, and berthed by, Keystone at its dock.

The Overhaul

The work on the radar mast was both extensive and costly. The mast had to be unstepped, hoisted onto the dock by crane and transferred to the yard. After the new equipment was installed, the mast had to be restepped.

The work of stiffening the entire hull, exclusive of repairs to the hull, was substantial also. Heavy steel strengthening members were inserted and welded in place around the entire hull and a large bulkhead was installed in the forepeak tank. The designs for these alterations were apparently prepared by the Bureau of Ships in accordance with drawings and blueprints made up by Naval architects. It appears also that the services of a shipyard were needed in fabricating the plates which comprised the bulkhead some of which were so large (3 feet × 8 feet) as to necessitate cutting a hole in the deck in order that they could be lowered into the forepeak tank. The hull stiffening job alone required the services of about 45 men for a substantial portion of the time the ship was at Keystone.

Aside from the alterations to the radar mast and the strengthening of the hull, numerous major and minor repairs were made. The ship's starboard turbine had to be completely removed and trucked back to the manufacturer. The task of transferring the turbine from the ship onto a truck was substantial in itself, involving, as it did, the removal of a good deal of wooden and steel decking and the assistance of a shipyard crane. Both boilers had to be torn down and completely rebricked. The steering mechanism was entirely overhauled. The ship's ballasting system, vitally important to the functioning of a Landing Ship Drydock, was found to be in an unusually bad condition due to extensive rust, requiring the removal of much rusted pipe, some as large as 6 inches in diameter, together with the installation of new pumps. This job alone took two weeks. In addition, certain new type pumps were installed in other parts of the ship to replace existing pumps and new propellers had to be installed. Some steel decking (not the decking torn out to remove the turbine) was removed and replaced and over 4,000 feet of new wooden decking was installed. There were repairs to the radio. The two boiler room blowers were removed and ice damage to the bow (exclusive of hull damage) was repaired.

In addition to all this was the substantial job of fabricating plates and welding for the repair of the 800 square foot hole in the hull.

In summation, the repairs, alterations and overhaul took in excess of 2½ months. During 1½ months of that period, the Casa Grande was drydocked. The services of 275 Keystone employes were required, and even aside from the very costly equipment on the radar mast, the job cost $700,000. Including this radar equipment, which the government itself supplied, it may be assumed that the over-all job cost nearly $1,000,000.

The Law

It has long been settled that a shipowner is liable to indemnity for injuries to seamen as the result of un-seaworthiness of the ship. Mahnich v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760. This indemnity, however, extends only to those who are performing work on vessels in navigation and work which is historically and traditionally performed by seamen. United New York and New Jersey Pilots Ass'n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541; Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205. Whether or not Casa Grande, badly holed, minus most of her propulsion units such as propellers and one turbine, her boilers in very bad condition, her vital ballasting system partially nonoperational due to rust, and facing a 2½ month lay-up including a long period in drydock to effect these and numerous other repairs, could by any stretch of the imagination be considered in navigation is, at least, doubtful.³

Traditional Ship's Work

Completely aside from this, however, it is my judgment that the work being performed by Allen was not traditionally seamen's work within the meaning of Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, which extended the warranty of seaworthiness even to shoreside workers provided they were performing the type of work upon the vessel traditionally done by seamen.⁴

Even conceding, arguendo, that most repair work constitutes ship's work,⁵ Allen was injured on an aspect of this job which, as I view it, cannot be characterized as part of repairs or of an overhaul. The hull of a Landing Ship Drydock could not withstand the pressures of operating in Arctic waters. Yet the ship generally was found ideal for supplying Arctic bases. To render it fit for such service, the hull had to be considerably strengthened. Such a job demanded something more than mere workmen, tools and materials. It obviously required the study of skilled experts and the reduction of their conclusions to blueprints and drawings. By the admission of Commander Walker, no one aboard the Casa Grande was capable of such a task. Certainly it is in evidence that Keystone was doing this particular work in accordance with blueprints and drawings furnished from some source. By the clearest inference, this was the work of Naval architects. And judging from the testimony of Di Carlontonio and Mahler, the Keystone foremen who directed this job, even when this was done, the practical work of interpreting the plans, fabricating plates and laying out and administering such a job was probably beyond the capabilities of the engineering department of a relatively small ship such as Casa Grande. Certainly, Commander Walker admitted that he was not certain that his engineering department was capable of doing the job. Again, while the engineering department of Casa Grande included welders, there is a rather clear inference from the testimony that these men were not expert and could be relied on only for the more simple phases of welding.

All in all, this was no repair job. Neither was it part of any normal overhaul. In effect, Casa Grande was being converted for use in Arctic waters. This was a hull alteration of some substance. So viewed, the case falls more logically within the rationale of Raidy v. United States, and Berge v. National Bulk Carriers, Inc., D.C., ...