Eagle Indemnity Co. v. United States Lines Co.

• Decision Date: 07 November 1949
• Docket Number: No. 3078.,3078.
• Citation: 1949 AMC 2061,86 F. Supp. 949
• Parties: EAGLE INDEMNITY CO., to Use of BEALL v. UNITED STATES LINES CO.
• Court: U.S. District Court — District of Maryland

86 F. Supp. 949

1949 AMC 2061

EAGLE INDEMNITY CO., to Use of BEALL v. UNITED STATES LINES CO.

No. 3078.

United States District Court D. Maryland.

November 7, 1949.

Daniel E. Klein, Baltimore, Md., Mezger & Mezger, Baltimore, Md. (W. Giles Parker and I. Winston Mezger, Baltimore, Md.), for plaintiff.

Ober, Williams, Grimes & Stinson, Baltimore, Md. (William A. Grimes, Baltimore, Md.), for defendant.

CHESNUT, District Judge.

This case presents a libel in personam for injuries sustained by Willis L. Beall, a carpenter in the employ of The Waterfront Company, engaged as an independent contractor in "ship ceiling" on the ship "American Veteran" on March 1, 1947 while docked at a wharf in the Baltimore Harbor. Beall obtained a compensation award from the Deputy Commissioner under the federal Longshoremen's and Harbor Workers' Compensation Act, 33 U. S.C.A. § 901 et seq. This award has been paid by the Eagle Indemnity Company, the compensation insurer of The Waterfront Company. This suit has now been brought by the insurer as subrogee of Beall and the balance of recovery, if any, for the latter's personal benefit, as provided in the Longshoremen's Act. Recovery is sought on the principles of the general maritime law as announced in The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, and Seas Shipping Co. v. Sieracki, 328 U. S. 85, 66 S.Ct. 872, 90 L.Ed. 1099.¹

The injury to Beall was caused by the fall of a manhole hatch cover while he was descending a ladder leading from the opening of the hatch to the lower deck before his head had cleared the opening. In the libel it was alleged that the cover fell "because it was not properly secure in an open position". The libelant's contention is two-fold; that the fall of the manhole cover was due to negligence of the ship and if not, then to the alleged unseaworthiness of the ship with respect to the manhole cover. Both contentions are denied by the respondent.

From the evidence in the case I make the following findings of fact.

1. Willis L. Beall, the equitable libelant, was on March 1, 1947, 69 years of age and an employee of The Waterfront Company, a ship ceiling company, employed by the United States Lines Company, the respondent, to shore cargo on the SS American Veteran then docked in the Baltimore Harbor.

2. The SS American Veteran is a C-2 type cargo vessel built about 1943 by or for the United States Government and purchased by the respondent in the latter part of 1945 or the first part of 1946 in good condition and having standard equipment of a C-2 vessel. She is about 400 feet long, 60 foot beam and of seven thousand tons gross weight.

3. The means of access to the No. 4 shelter-deck, tween-deck and the lower holds of the SS American Veteran is by a hatch located just forward of the No. 4 after bulk-head consisting of ladders or iron rungs affixed to said bulkhead, one running from the main deck to the shelter-deck, another from the shelter-deck to the tween-deck and the third from the tween-deck to the lower hold. Access to the rung ladders from one deck to another is through a manhole on each deck, each manhole having a cover which can be fastened down by dogs or opened back on hinges affixed to the manhole and to the cover. The manhole is an opening in the surface of the deck but having a coaming surrounding the opening of an inch or two in height. Surrounding the manhole are upright vertical heavy wooden battens to prevent portions of the cargo being placed over the manhole. The manhole cover is oblong in shape, about 20 inches long in its longer dimension and constucted of steel weighing about 60 pounds. When opened by fully releasing the dogs by which it can be fastened down, it can be raised from the horizontal through the vertical to a position beyond the perpendicular before it comes to rest against the wooden battens. In this position by reason of its weight it would not fall unless manually handled or possibly somehow substantially jarred while moored in a quiet dock. But to prevent accidental fall or closing of the cover when the ship is at sea or to avoid falling from other interference or accidental jarring, there is a heavy hook fastened to the batten against which the cover when fully open rests, and a ring bolt in the cover through which the crook of the hook is inserted to securely fasten the cover back. The arrangement of the ladder leading from the main deck to the shelter-deck and from the shelter-deck to the tween-deck, is as shown in respondent's exhibits 1-A to 1-E inclusive. It is in accordance with the standard equipment of the C-2 type of ship.

4. On Saturday, March 1, 1947, the SS American Veteran was moored at Pier 3, Locust Point, Baltimore, Maryland, and had been there for several days during which stevedores had been loading cargo. Employees of The Waterfront Company had been working on the vessel shoring up cargo on February 28, 29 and March 1, 1947. On Saturday March 1, 1947, the vessel was in charge of a relief mate, and most of the crew had been granted permission to go ashore, leaving only a skeleton crew aboard the vessel. None of the crew was working in the No. 4 hold on March 1, 1947.

5. About 9:30 P.M. on March 1, 1947, after the stevedores had finished loading cargo in the No. 4 holds, a group of Waterfront employees including Willis Beall, the equitable libelant, were ordered by their foreman into No. 4 lower hold. The No. 4 main hatch had been covered and The Waterfront Company employees used the "escape hatch", descending the ladder from the main deck to the shelter-deck, and then the ladder from the shelter-deck to the tween-deck, and then the ladder from the tween-deck to the lower hold. At least three Waterfront Company employees went safely through the manhole to the shelter-deck and on down toward the lower hold. As Willis Beall was descending the ladder from the shelter-deck to the tween-deck and was nearly through the manhole on the shelter-deck, the manhole cover fell, from some unknown reason, striking Willis Beall on the head and crushing his face against the manhole coaming.

6. At the time of the accident to Willis Beall, there was a hook attached to a cargo batton immediately behind the manhole cover in the raised position which could be put through the ring-bolt in the manhole cover and secure the manhole cover in the open position.

7. Shortly after the time of the accident to Willis Beall, the foreman of his gang, Cecil Beall (the son of Willis Beall) says he told Masters, the leader of the particular gang of which Willis Beall was a member, to fasten back the hatch cover to prevent its again falling. Masters testified that he did so using a piece of rope which he tied around the batten. The inference contended for by the libelant is that the hook referred to constituting a part of the standard equipment, must have been missing. But there was no sufficient evidence to show that either the hook or ring-bolt were absent or defective or that the equipment in question relating to the manhole cover was other than standard equipment for C-2 type of ships.

8. The accident to Willis Beall was not reported by The Waterfront Company, or any of its employees, to the relief mate on duty on the SS American Veteran or anyone else aboard the ship at the time of the accident. The first knowledge of the accident by the United States Lines Company was a letter dated May 9, 1947, from Eagle Indemnity Company, the insurance carrier of The Waterfront Company, calling upon United States Lines Company for reimbursement of all of its expenditures on account of the accident.

9. The findings of the Deputy Commissioner in making the award were to the effect that the injury to Beall's nose and also to his left shoulder totally disabled him from performing his prior activities as a carpenter, and he was therefore awarded compensation for 56 weeks at $23.49 per week, the same to continue until a change in his condition which has not yet occurred. Independent affirmative evidence by the libelant in this case tends to confirm the finding of the Deputy Commissioner with repect to disability. The insurer has paid to date a total of $3129 to Beall.

Conclusions as to Ultimate Facts

As the stevedores and ship ceilers had been in charge of the ship for the loading and stowing of cargo for several days prior to March 1, 1947, when the accident to Beall occurred, and in the absence of any evidence to the contrary as to the operation of the manhole cover by the ship, I find that the manhole cover was not legally and factually under the management or control of the ship, its officers or crew, at the time, and its fall from an unknown cause was not due to any defective construction or negligent operation of the manhole cover attributable to the officers or crew of the ship or to the ship itself. And I find also that at the time of the accident the equipment of the ship with respect to the manhole cover was not defective or otherwise classed as unseaworthy and the accident to Beall was not due to the unseaworthiness of the ship.

The only question of law presented by the case is whether the occupation of a ship ceiler, that is the shoring of cargo to prevent its shifting during the voyage, is of such a nature that the occupation can properly be considered in the same class with stevedoring; and thus bring this particular case within the doctrine of the majority opinion of the Supreme Court in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. As will appear from the dissenting opinion of Chief Justice Stone in that case the decision marked an extension of the previously understood maritime law by imposing on a shipowner the obligation of seaworthiness (previously held applicable to seamen only) to a stevedore while working aboard the ship. In this case the libelant contends, while the respondent denies, that the occupation of a ship ceiler is substantially in the same class as that of stevedores, as...