Badalamenti v. United States

• Decision Date: 21 February 1947
• Docket Number: No. 145,Docket 20430.,145
• Citation: 160 F.2d 422
• Parties: BADALAMENTI et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

160 F.2d 422 (1947)

BADALAMENTI et al. v. UNITED STATES.

No. 145, Docket 20430.

Circuit Court of Appeals, Second Circuit.

February 21, 1947.

J. Vincent Keogh, U. S. Atty., and Kirlin, Campbell, Hickox & Keating, all of New York City (Raymond Parmer and Vernon Sims Jones, both of New York City, of counsel), for appellant, United States of America.

Albert Martin Cohen, of Brooklyn, N. Y., and Harold L. Fisher, of New York City (Solomon A. Klein, of Brooklyn, N. Y., of counsel), for libellants.

Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The libellants Badalamenti and Scagnelli were longshoremen employed by John T. Clark & Sons. They were engaged in loading the Steamship El Oriente, a vessel owned and operated by the United States. This suit was brought in admiralty to recover for personal injuries to the libellants occasioned by falling through open No. 1 hatch which they suffered on November 22, 1943, while on shipboard. At the time of the accident the work of their gang was at No. 2 hatch in the lower tween deck. The accident happened when they left No. 2 hatch and walked forward on the lower tween deck in the direction of No. 1 hatch into which each one of them fell. Badalamenti was the first to fall; Scagnelli followed shortly thereafter. Both No. 1 and No. 2 were cargo hatches between which there was a deck space of 56 feet.

John T. Clark & Son were employed by the respondent under an agreement which required the respondent to "furnish and maintain in good working order * * * necessary lights on wharves, piers and vessels when lights are required due to darkness," and to furnish "ropes for falls and dunnage."

Prior to and at the time of the accident, another independent contractor, Chelsea Ship Repair Company, was engaged in sheathing bulkheads and decks with lumber in order to form magazines for carrying ammunition.

The libellants were on board the ship for the first time on Saturday, November 20, and worked from 8 a. m. to 12 noon on the upper tween deck at hatch No. 2. They were engaged in loading lumber for the sheathing. While working on the upper tween deck the libellant Badalamenti saw a chain locker and a big light with a full chain in the bow of the ship on the forward side of hatch No. 1. On that Saturday the carpenters group of the Chelsea Ship Repair Company completed all the work that had to be done by them at hatch No. 1 and hatch No. 2 with the exception of a little work to be done on the bulkhead of hatch No. 2. At 5 o'clock that afternoon the carpenters closed both hatches at the top and upper tween decks but left the hatches open on the lower tween decks. With respect to the covers of hatch No. 1 on the lower tween deck the respondent's witness testified that they were stowed away in piles near the hatch. He further admitted that no light was left there and that no guardrail or ropes were put around the open and unlighted hatch.

The trial court made the following findings which were supported by the evidence:

"Seventh: The libelants returned to work on said ship at 8:00 A. M. on the date of the accident, a Monday, and the accident complained of occurred shortly thereafter. Upon arrival at their place of work on the date of the accident, the libelants were assigned to load at Hatch No. 2 on the lower tween deck. Before proceeding to the tween deck, they took the iron doors, or hatch covers, off the top-most Hatch No. 2 on the upper tween deck, and at that time it was observed that the hatch covers, at Hatch No. 1, on the upper tween deck, were closed.

"Eighth: Due to some difficulty at Hatch No. 2, the gang was compelled to have lowered to it, two skidboards which were put over the place where the hatch covers should have gone, but did not fit. The skid-boards were then tied. It was necessary in the orderly performance of their work, at times, to stand on these skid-boards. At about 9:30 A. M. the first draft was lowered and the libelants and the other members of the inshore part of the gang were waiting their turn to take care of this draft. There was some trouble with the draft because it hit the skid-boards when it came down. It was then found that the skid-boards had a tendency to slide, and for that reason, the men were fearful of standing on them. It was then decided to get some rope in order to pull the drafts in, thus avoiding the danger of standing on the skid-boards.

"Ninth: Daylight was coming into Hatch No. 2, and in addition, two clusters of light, one on each corner of the hatch, provided the light by which the men worked. This light penetrated some 15 to 20 feet toward Hatch No. 1.

"Tenth: The libelant, Jack Badalamenti, decided to walk in the direction of Hatch No. 1 for the purpose of finding the rope necessary to do this work. He fell into Hatch No. 1 which was open, unguarded, and unlighted, and around which there were no hatch combings. The libelant, Paul Scagnelli, who was the header of the gang, missing his coworker, the libelant Jack Badalamenti, proceeded toward Hatch No. 1 to look for him, and fell into the same hatch.

"Eleventh: The distance between Hatch No. 1 and Hatch No. 2 was approximately 50 feet.

"Twelfth: Before proceeding to Hatch No. 1, libelant Jack Badalamenti searched for rope at Hatch No. 2 but could * * * find none. There was rope on the dock, a long distance from the place where the men were working, but due to the fact that war work was being done, and speed was essential, he elected to go toward Hatch No. 1 for the purpose of finding this rope. In walking towards Hatch No. 1, he intended to snap on a chain light which he expected to find in a locker in which rope of the kind needed, was customarily kept on board ship.

"Thirteenth: It is admitted that there was no such light, but libelant Jack Badalamenti saw such a chain light in such a chain locker on the upper tween deck on the Saturday prior to the accident, and therefore reasoned that there must be a similar locker with a chain light on the lower tween deck.

"Fourteenth: It is admitted and conceded that there was a light in such a chain locker on the upper tween deck, as described by libelant Jack Badalamenti.

"Fifteenth: The libelant Jack Badalamenti walked some 15 to 20 feet, it got dark, he stretched out his hand and kept walking, endeavoring to reach for the aforementioned light. He took two or three steps after it actually got dark, before he fell into Hatch No. 1. Before falling, as he kept walking, it got darker, but not absolutely dark. There was a haze in front of him. He expected to find a light as he had seen on the upper deck. Hatch No. 1 was closed on the upper tween deck, and said libelant had a right to expect, in the absence of lights, guards, or combings that Hatch No. 1 on the lower tween deck was closed, and he could not anticipate that Hatch No. 1 on the lower tween deck was left open.

* * * * * *

"Twenty-eighth: The libelant Paul Scagnelli knew that the libelant Jack Badalamenti had gone after rope and noticed in which direction he had gone. Libelant Paul Scagnelli knew there was another hatch in that direction but he did not think it possible to go from the hatch where he was working to another hatch, as on other ships that he had worked on, there was a partition between the two hatches.

"Twenty-ninth: The libelant, Paul Scagnelli, went to look for the...