Fox v. The SS Moremacwind
| Citation | 1960 AMC 689,182 F. Supp. 7 |
| Decision Date | 21 March 1960 |
| Docket Number | No. 7929.,7929. |
| Parties | Allen S. FOX, Libellant, v. THE SS MOREMACWIND, her boats, tackle, etc., in rem, and Moore-McCormack Lines, Inc., as owners, operators, etc., in personam, Respondents and Third-Party Petitioner, Waterfront Ship Service Corporation, Third-Party Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
Sidney H. Kelsey, Norfolk, Va., for libellant.
Seawell, McCoy, Winston & Dalton, Harry E. McCoy, Norfolk, Va., for respondents and third-party petitioner.
Jetts, Sykes & Coupland, Norfolk, Va., for third-party respondent.
Libellant, employed by Waterfront Ship Service Corporation, hereinafter called "Waterfront", was a member of the gang doing ship's carpentry work aboard the Moremacwind on September 10, 1957, while the vessel was anchored in the stream off the piers of the Chesapeake & Ohio Railway Company at Newport News, Virginia. At approximately 3:20 p. m., libellant, while operating a portable electric hand saw bearing the trade name Skilsaw, caught his left hand in the blade of the saw, causing him to lose three fingers of the left hand. Libellant was wearing gloves at the time.
In the final analysis the determination of this controversy rests upon a question of causal connection between an unseaworthy appliance and the resulting injury, but it is necessary to discuss the background of the case in the first instance.
Libellant alleges that the vessel was unseaworthy in that the portable electric hand saw, brought aboard the vessel by Waterfront's employees, was defective. Libellant also alleges negligence on the part of the shipowner in failing to inspect the equipment which proved to be defective. Certain exceptive allegations were filed by the respondent-owner, the hearing on which was reserved pending the presentation of all evidence. Suffice it to say that the exceptive allegations require no discussion, with the exception of respondent's contention that the portable electric hand saw used by libellant did not take the place of equipment usually furnished and necessarily required by a ship.
The respondent has impleaded Waterfront as a third-party respondent alleging, in substance, that (1) Waterfront holds itself out to be an expert in the ship's carpentry business, (2) Waterfront agreed to provide suitable appliances and competent employees with which to do the work, and (3) Waterfront breached its implied contract to perform the work in a safe and proper manner, and hence is liable over to Moore-McCormack Lines, Inc., for any judgment which may be rendered against Moore-McCormack, plus attorney's fees and costs. For reasons hereinafter stated, we do not reach the third-party liability but, if reached, it is clear that Waterfront would be liable over to Moore-McCormack as the implied contract of indemnity undoubtedly existed.
Waterfront answered the libel and impleading petition, and likewise filed exceptive allegations relying principally upon the exceptive allegations filed by Moore-McCormack. Additionally, Waterfront has impleaded the libellant as a third-party respondent contending that libellant impliedly agreed to indemnify Waterfront for any damages for which Waterfront would be held liable to Moore-McCormack. We do not approach this latter point, which, if reached, would complete the circle of liability. We note in passing, however, that the evidence does not support any such implied contract between libellant and Waterfront, assuming that public policy permitted the ultimate liability to rest upon the party instituting the action.
On the day of the accident, the Moremacwind, in anticipation of taking on a cargo of coal, made arrangements with Waterfront, a concern engaged in the business of ship's carpentry, to board the vessel with a number of carpenters and equipment to build and install dunnage tank covers for the purpose of covering and protecting metal tank tops in the No. 2 and 5 lower holds from damage which may be done to the tank tops by clamshell buckets used in loading coal, and for the further purpose of preventing coal and dust from settling in the deep tanks. It was work customarily done in connection with the operation of the vessel and, prior to the introduction of specialists in the field, these tasks were performed by the ship's crew.
Libellant and other employees1 went to the vessel in a launch, carrying with them certain equipment, including the portable electric hand saw, owned by Waterfront. Work was commenced in the No. 2 hold, at which time the portable saw was used primarily by an employee named Weishaupt. During the morning hours the stop-bolt on the saw broke, flew out, and struck another Waterfront employee. Weishaupt did not report the broken stop-bolt to any of the ship's officers or crew and, while libellant testified that he reported the condition of the saw to Waterfront's foreman, we think that this fact is unimportant to a decision of this case.
Following completion of the work in the No. 2 hold, the gang moved to the No. 5 hold, where the installation of tank top covers was commenced. At approximately 3:20 p. m., libellant sustained his injury while operating the portable hand saw.
In constructing these tank top covers the carpenters used dunnage found aboard the vessel. To cover the tank tops it was necessary to construct the sides and top, similar to a table but with the sides enclosed. In order to prevent a clamshell bucket from catching a side or corner of the dunnage top cover, it was necessary to saw the edges in such a manner as to prevent any portion of the dunnage from extending beyond other parts of same.
The sides and top of the dunnage cover had been constructed and libellant was using the portable hand saw in trimming the left side of the top to make the edge of same flush with the side. He had cut approximately one-third of the trim when the blade of the saw struck a nail. He then caused the nail to be removed before proceeding further. If libellant had been in the process of beginning his cut, as contrasted with having already partially completed his cut, the absence of the stop-bolt could then have probably contributed to his unfortunate accident. At the very start of a cut the stop-bolt holds the lower blade guard in place but, as to this particular cut, it was necessary to manually retract the lower blade guard and rest the saw in a position where the guard was held back by the dunnage with the blade not touching the wood. The operator would then place his left hand on the upper saw handle,...
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...Lines, Inc., 423 F.2d 913, 915 (1970); Bryant v. Partenreederei-Ernst Russ, 330 F.2d 185, 188 (4th Cir. 1964); Fox v. S. S. MOREMACWIND, 182 F.Supp. 7, 11 (E.D.Va.1960), aff'd. 285 F.2d 222 (4th Cir. 1960). Once a seaman has sustained an injury, in order to recover under the theory that the......
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