Gainar v. SS Longview Victory, 8200-8203

• Decision Date: 10 February 1964
• Docket Number: No. 8200-8203,8212.,8211,8200-8203
• Parties: Claude GAINAR, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents. John THORNTON, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents. Otis SUMLER, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents. Charlie HARRIS, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents. Roland OWENS, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents. York BRYANT, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents. VICTORY CARRIERS, INCORPORATED, Impleading Petitioner, v. WHITEHALL TERMINAL CORPORATION, Respondent Impleaded (six cases).
• Court: U.S. District Court — Eastern District of Virginia

226 F. Supp. 912

Claude GAINAR, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents.

John THORNTON, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents.

Otis SUMLER, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents.

Charlie HARRIS, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents.

Roland OWENS, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents.

York BRYANT, Libelant, v. SS LONGVIEW VICTORY, etc., in rem, and Victory Carriers, Incorporated, in personam, Respondents.

VICTORY CARRIERS, INCORPORATED, Impleading Petitioner, v. WHITEHALL TERMINAL CORPORATION, Respondent Impleaded (six cases).

Nos. 8200-8203, 8211, 8212.

United States District Court E. D. Virginia, Norfolk Division.

February 10, 1964.

Kanter & Kanter, Norfolk, Va. (H. Lee Kanter and L. B. Sachs, Norfolk, Va.), for libelants.

Seawell, McCoy, Winston & Dalton (John W. Winston, Norfolk, Va.), for respondents and impleading petitioner.

Rixey & Rixey, Norfolk, Va. (Wm. B. Eley, Norfolk, Va.), for respondent impleaded.

WALTER E. HOFFMAN, Chief Judge.

The six libelants in the foregoing actions, consolidated for trial, were, at the time of their injuries, employed by Whitehall Terminal Corporation, a stevedoring concern, in their capacities as longshoremen. On the afternoon of March 5, 1961, they were loading conex vans of household effects and miscellaneous general cargo into the after end of the #3 lower hold of the LONGVIEW VICTORY, a VC-2-S-AP3 type vessel owned by the respondent, Victory Carriers, Incorporated, time-chartered to States Marine Corporation of Delaware and subtime-chartered to States Marine Lines, Inc. While the present actions were filed in rem and in personam, the vessel has not been arrested and the proceedings are solely in personam against Victory Carriers, Incorporated, a corporation properly served with process under Virginia law. Victory Carriers, while denying liability, has impleaded Whitehall seeking indemnity over in the event any damages or expenses are incurred by the shipowner.

The #3 hatch was only partially open during the entire loading operation. There were, in all, seven pontoons covering the main deck hatch #3, but only four pontoons were removed from the after end by the stevedore who was in charge of the loading. An equivalent amount of wooden hatch board covering was removed from the two 'tween deck hatches. A part of the gang was at work by 1:00 P.M., opening the hatch and laying a dunnage floor in the lower hold where the vans, weighing as much as 8000 to 9000 lbs., but averaging 4000 to 5000 lbs., were to be stored for shipment.¹ By 2:00 P.M. two tractors had been lowered into the lower hold and were put in operation for the purpose of pushing the vans across the dunnage floor, assisted by greased skids attached to the vans.² The tractors were described as "two-ton"; one was gasoline powered, the other used propane gas. The evidence reflects that the tractors labor heavily when pushing cargo similar to the vans being loaded on the day in question.

Air temperatures on March 5 were warm for that time of the year. Commencing at 76° at 1 P.M., the temperature continued upward until 3 P.M. when it reached 83° and thereafter dropped to 82° at 4 P.M., 81° at 5 P.M., and 77° at 6 P.M. Water temperatures ranged from 43° at Chesapeake Lightship in the vicinity of Cape Henry to 53° at Portsmouth Naval Shipyard. The vessel was tied up on the north side of Pier 2 at the Hampton Roads Army Terminal — a location more protected than Chesapeake Lightship, but not as far up the river as Portsmouth Naval Shipyard. As the ship had arrived from New York on the previous day, it may be assumed that the colder water tended to slightly reduce the air temperature in the #3 lower hold while at Norfolk. The surface wind was light, with velocity readings ranging from 5 to 12 knots at varying times between 2 P.M. and 10 P.M. The wind was essentially out of the southwest with the vessel's bow headed east and docked, as previously noted, on the northern side of Pier 2. Thus, the wind from the southwest would create little or no ventilation to the vessel because of intervening buildings and the pier.

The vessel, along with many others of a similar type, was constructed near the end of World War II. The design calls for natural ventilation, rather than forced draft or mechanical ventilation. This system of ventilation is in use on many vessels and is approved by Coast Guard Merchant Marine Inspection Service. It is confined to two cowl type ventilators at the forward end of the #3 hatch, extending above the main deck. The cowls may be turned toward the wind and the air (if any) runs through a shaft extending downward below each cowl into the lower hold. The openings are approximately two feet square. At the after end of the #3 hatch are two fluted mushroom-type ventilators which are fixed and do not turn, but have baffle plates to keep the rain out. Each after end ventilator has a shaft extending down to the upper 'tween deck and, to a very limited extent,³ exhausts air from the #3 lower hold.

No blowers were placed in the lower hold and, as noted, the vessel was not equipped with fixed mechanical ventilation. These facts were known by the stevedore foreman and the vessel's first mate. The Safety and Health Regulations for Longshoring adopted by the U. S. Department of Labor provide in § 9.93 that, where neither natural ventilation nor the ship's ventilating system is adequate to keep the carbon monoxide content of the atmosphere in the hold below 100 parts per million, blowers are required when internal combustion engines exhaust into the hold. The failure to use blowers constituted a violation of safety requirements. Provenza v. American Export Lines, Inc., 4 Cir., 324 F.2d 660, cert. den. 84 S.Ct. 970. Subsequent to the accident in question the Coast Guard Regulations were amended to provide for substantially the same requirements. § 78.80-15(c), Special Operating Conditions, Federal Register, November 23, 1961. While the Court rejected evidence of the Coast Guard Regulation, it requires no expert to realize the dangers from carbon monoxide escaping in a confined area with limited ventilation. Indeed, the first mate and another stevedore testified that it was customary in the Port of Hampton Roads to use mechanical ventilation whenever tractors are put into the hold. And it seems elementary that all hatches should be open to the fullest extent to permit the fumes to escape.

The two tractors were in use until shortly after 4 P.M., when one operator went on deck for air. Shortly before 5 P.M. the stevedore foreman called down to the hatch boss to determine why the cargo was moving so slowly. Upon being advised that "this gas is bad down here," the stevedore foreman entered the lower hold. The stevedore foreman described the odor as "awfully bad, never smelled anything like it in my life." Work was thereafter knocked off, the other tractor stopped, and the longshoremen came on deck. Libelant Gainar was lifted out on a skid. All men were out of the hold by 5:30 P.M.

The first mate, charged with the responsibility for the safety of the vessel, had previously received word that the longshoremen in the #3 hold were complaining about fumes. He entered the hold, found the stevedore foreman present, and observed the longshoremen still at work. He noted that the atmosphere was somewhat smoky, but it did not appear to either the first mate or stevedore foreman that it was unsafe for the men to continue working. The mate inquired of the stevedore foreman whether blowers were available but was told that the stevedore did not own any. Both men returned to the deck and the work continued. The mate did not reenter the lower hold until he later learned that two men had been taken to the hospital. Upon his return the tractors had stopped and the men had finished or were finishing their work. Apparently both tractors were in fairly constant use between 2 P.M. and 4 P.M., and one tractor continued operating thereafter for an additional hour, or nearly so.

While the fundamental design of the vessel was not unseaworthy for use when constructed, the use of tractors and like equipment in the lower hold of a vessel was not then commonplace as it is in the present day. True, a vessel to be seaworthy need not have the latest, best and most modern equipment, but when equipment is placed within a hold which knowingly emits a dangerous and invisible element such as carbon monoxide, it manifestly is incumbent upon the vessel to protect from such a danger. The obligation to provide a seaworthy vessel is a continuing one and seaworthiness as of 1944 does not infer seaworthiness as of 1961, especially where the equipment uses adaptable to the vessel have changed over the years.

Shortly before 7:00 P.M. the tractors were again placed into operation for a brief period of fifteen minutes at which time the stevedore foreman said the "odor was still there but not near as bad." At approximately 7:00 P.M. the vessel's representative sent for a chemical engineer to test the air in the #3 lower hold. Upon arrival at 9:30 P.M. the chemical engineer found that there existed a concentration of 100 to 150 parts per million of carbon monoxide. He satisfied himself that the carbon monoxide originated from the exhausts of internal combustion engines. It was his opinion — and it appears to be obvious — that the concentration of carbon monoxide was significantly higher during the earlier hours while the men were working. The maximum safe limit for eight hours work is 100 parts per million of carbon monoxide to air; but this standard does not differentiate between types of labor being...