Berge v. National Bulk Carriers

• Decision Date: 26 February 1957
• Citation: 148 F. Supp. 608
• Parties: Gunnleik BERGE, Plaintiff, v. NATIONAL BULK CARRIERS, Inc. and Todd Shipyards Corp., Defendants.
• Court: U.S. District Court — Southern District of New York

148 F. Supp. 608

Gunnleik BERGE, Plaintiff, v. NATIONAL BULK CARRIERS, Inc. and Todd Shipyards Corp., Defendants.

United States District Court S. D. New York.

February 26, 1957.

Harry H. Lipsig, New York City, for plaintiff (Klonsky & Steinman, New York City, of counsel).

Frederick H. Cunningham, New York City, for defendant National Bulk Carriers, Inc. (Victor S. Cichanowicz, New York City, of counsel).

Galli & Locker, New York City, for defendant Todd Shipyards Corp. (Patrick J. McCann, New York City, of counsel).

MURPHY, District Judge.

In its final form, this is an action for personal injuries brought against National Bulk Carriers, Inc. on the theory of unseaworthiness only. National Bulk in turn sues Todd Shipyards Corp. alleging that Todd is obliged to indemnify it should it be held liable to plaintiff.

After trial, but before submission to the jury, all the parties agreed that the court should reserve to itself three factual issues, to wit, (1) whether or not defendant National Bulk Carriers retained control over the vessel, the S.S. Bulklube; (2) whether or not the shackle pin was defective, and (3) if yes, whether or not this was the proximate cause of the accident. The case was given to the jury solely on the question of damages. A verdict of $100,000 was returned. After trial motions were made by both defendants to set it aside as being excessive.

The legal issues awaiting decision by the court relate to whether or no the warranty of seaworthiness applies to this plaintiff and whether or no defendant Todd is obligated to indemnify defendant National Bulk Carriers.

Most of the facts were undisputed. National Bulk Carriers, the owner and operator of the tanker S.S. Bulklube, entered into a contract with Todd whereby the latter was to perform certain rather extensive repairs, including renewals of the transverse and longitudinal bulkheads, for a contract price of $981,133. The vessel was delivered to Todd on June 22, 1952, and returned to its owner December 19, 1952. On the date of the accident it was tied up alongside a pier in Todd's shipyard.

By the terms of the contract, the work was to be carried out "under the supervision of and to the satisfaction of representatives of the U. S. Coast Guard, American Bureau of Shipping and Owner." In this connection, the vessel's former chief mate was aboard every day from 8 A.M. to 5 P.M. acting as Assistant Repair Supervisor. Sleeping quarters aboard ship were available for his convenience if he chose to use them. He had not signed articles and was paid a weekly salary the same as defendant's other shoreside employees. National Bulk Carriers' Port Engineer also came aboard every day, although he had no regular hours. These men gave no orders but inspected the work as it was completed.

The contract also called upon Todd to provide all the necessary labor and material required for the completion of the work, and it is conceded that Todd supplied the materials involved in the accident, including the shackle pin.

There were no provisions in the specifications pertaining to indemnification. The printed terms on Todd's letterhead contain the following language: "In connection with the accident and/or indemnity and/or insurance clauses, if any, contained in your specifications, relating to liability for personal injuries, please note that we do not agree to same, in so far as they undertake to impose any liability or any obligations to take out or maintain insurance beyond the liabilities or the obligations to insure imposed upon us by law." The specifications were accepted subject to the above condition.

On October 31, 1952, the date of the accident, plaintiff was employed as a rigger by Todd. He and several other men were working below deck in one of the tanks of the Bulklube. The specific task involved the installation of a tank bulkhead. Prior to the accident the bulkhead had been removed and renewed by Todd. The installation operation proceeded in the following manner: employees of Todd welded padeyes to the under-deck, attached shackles to them, hung chain hoists from the shackles, brought the bulkhead from the pier and lowered it into the tank, welded padeyes onto the bulkhead, attached the above mentioned chain hoists to the bulkhead, raised it 3" to 4" off the deck and set it against the framework where it was permanently welded into place, and finally removed the padeyes from the bulkhead and the under-deck. Plaintiff was standing on a scaffold approximately 15 feet above the bottom of the tank, and had just begun pulling on the chain hoist to raise the bulkhead into position when the shackle pin between the chain hoist and the under-deck padeye sheared off and the chain part of the tackle fell hitting the plaintiff who fell from the scaffold to the deck below. Upon inspection after the accident, the shackle pin was found to be sheared in half although it appeared to be bright and shiny.

Upon these undisputed facts I find: (1) that at the time of the accident defendant National Bulk Carriers was not in control of the vessel; (2) that the shackle pin was defective, and (3) that the defective shackle pin was the proximate cause of the accident.

Thus,...